In re A.H...

2021 UT App 57THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.H. AND N.H.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
K.H.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20190846-CA
Filed May 28, 2021
Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1148287
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce and Dixie Jackson,
Guardians ad Litem
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 K.H. (Father) appeals the juvenile court’s termination of
his parental rights as to A.H. and N.H., raising three arguments.
First, Father contends that he was denied his right to effective
assistance of counsel. Second, he contends that the juvenile court
erred in finding that the Division of Child and Family Services
(DCFS) provided reasonable efforts toward reunification. Third,
he contends that the juvenile court’s reasoning and reliance on
In re A.H.
the ground of unfitness in terminating his rights was flawed. We
affirm.
BACKGROUND 1
¶2 Father and R.R. (Mother) have three young children
together: four-year-old A.H., two-year-old N.H., and an infant,
Am.H., who was born during the course of these proceedings.
This appeal concerns only Father’s parental rights as to the older
children, A.H. and N.H. (collectively, the Children). Mother’s
parental rights are not at issue in this appeal, and we mention
her only when relevant and necessary for context.
The Initial Verified Child Welfare Petition
¶3 Father and Mother’s relationship was “off and on, volatile
and abusive.” After reports of drug use in the home and an
incident of domestic violence in August 2017, the Children were
taken into protective custody and placed with foster parents.
Soon afterward, the juvenile court ordered Mother and Father
not to have contact with each other. In October 2017, the court
held Father’s adjudication hearing and disposition hearing on
the same day. The court concluded that Father neglected the
Children, that they should remain in the custody of DCFS, and
that the primary goal for the Children was reunification with
their parents with a secondary goal of adoption.
¶4 After this hearing, the court also entered findings of fact,
including findings about the August 2017 domestic violence
incident. Specifically, the court found that Father arrived at the
home to find Mother doing drugs. Mother then pulled a knife on
1. “We recite the facts in the light most favorable to the juvenile
court findings.” In re J.M., 2020 UT App 52, ¶ 3 n.1, 463 P.3d 66(cleaned up).
20190846-CA 2 2021 UT App 57In re A.H.
Father, and Father twisted her arm to get the knife away before
leaving. The Children were present during the incident and were
frightened. 2
¶5 At the disposition hearing, the juvenile court also
addressed the reunification service plan with regard to Father.
At that time, a separate plan had not yet been created for Father,
but it was explained to him that the requirements of Mother’s
plan also applied to him. Father confirmed that he had “gone
over all the requirements of the service plan,” and the court
found that Father understood them.
The Period of Reunification Services
¶6 Beginning in October 2017, a separate service plan created
just for Father required, among other things, Father to submit to
random drug testing, complete a substance abuse evaluation and
a domestic violence assessment, complete a parenting class,
participate in weekly supervised visitation with the Children,
provide financially for the Children, and maintain a stable and
healthy living environment for them. By the December 2017
review hearing, Father had completed the domestic violence
assessment but had not called in to drug test. At the next review
hearing in February 2018—six months after the Children were
removed—Father had attended domestic violence treatment, but
he had failed to take all the requested drug tests, had tested
positive for THC 3 on some drug tests, and had not attended
2. Father was charged with several offenses, but the charges
were later dismissed.
3. “‘THC’ is an acronym for tetrahydrocannabinol, which is a
crystalline compound that is the main active ingredient of
cannabis.” State v. Akers, 2018 UT App 235, ¶ 3 n.3, 438 P.3d 70(cleaned up).
20190846-CA 3 2021 UT App 57In re A.H.
drug treatment. Although at both hearings DCFS and the
guardian ad litem (the GAL) asked to schedule a permanency
hearing based on Father’s and Mother’s failure to fully engage in
services, the juvenile court denied those requests.
¶7 By the final review hearing in May 2018—nine months
after removal—Father was taking domestic violence classes and
had been more consistent in calling in to determine whether he
should submit to a drug test. But he was still missing some calls
and tests and was still testing positive for THC. Additionally,
Father had been verbally aggressive with a DCFS caseworker
after a visit had to be canceled because he arrived too late. As a
result, the court ordered Father to participate in anger
management classes.
¶8 The court held a permanency hearing in August 2018—
twelve months after removal. At this point, Mother was making
progress and had the Children in a trial home placement. For his
part, Father was also doing well, and he had begun attending
drug and alcohol treatment, domestic violence treatment, and
anger management classes. By the parties’ agreement, the court
found that there had been substantial compliance with the
treatment plan, reunification was likely within ninety days, and
continued services were in the Children’s best interests. Thus,
the court extended reunification services for another three
months.
¶9 In November 2018—fifteen months after removal—the
juvenile court held a second permanency hearing, during which
it considered the GAL’s motion to terminate the trial home
placement and reunification services. Things had “not gone
well” for Mother; she had a positive drug test, missed taking the
Children to doctor appointments, and had been kicked out of her
in-patient treatment center. Father had “done better”; he had
completed his substance abuse treatment and was close to
finishing his domestic violence classes. But he had missed
20190846-CA 4 2021 UT App 57In re A.H.
call-ins for his drug tests until mid-September 2018 and had not
completed a psychological exam. Although DCFS discussed
placing the Children with Father, he was “decidedly
non-committal” and refused to allow DCFS to inspect his home.
When asked who would watch the Children while he worked,
he answered, “I’ve never thought about it, I don’t know.” And
although he was asked in October 2018 to create a plan for how
he would handle daycare, work, and medical appointments, he
still had not submitted a plan before the second permanency
hearing. The Children were returned to foster care, while DCFS,
Mother, and Father asked for reunification services to be
extended again. But the juvenile court found that even though
there had been “substantial progress by both parents, there was
not clear and convincing evidence that reunification was
probable within 90 days.” Accordingly, the court terminated
reunification services and changed the Children’s permanency
goal to adoption.
¶10 Shortly afterward, Mother and Father’s newborn, Am.H.,
was placed in DCFS custody in a separate child welfare case.
Even though reunification services were terminated with respect
to A.H. and N.H., nearly the same services were ordered and in
place for Am.H.’s case.
The Petition to Terminate Parental Rights and the Termination Trial
¶11 DCFS petitioned to terminate Mother’s and Father’s
parental rights as to A.H. and N.H. Father then changed
attorneys, and Father’s new counsel represented him during the
ten-day trial before the juvenile court.
¶12 To his credit, Father continued to improve and “largely
rehabilitated himself” in the time between the second
permanency hearing and trial. Nevertheless, the juvenile court
found that Father’s “lackadaisical approach to services and the
length of time that it took him to achieve substantial
rehabilitation [had a] destructive effect [on] his parent/child
20190846-CA 5 2021 UT App 57In re A.H.
relationship,” and the court ultimately terminated Father’s
parental rights as to the Children.
¶13 After trial, the juvenile court issued a seventy-nine-page
written decision and made extensive findings regarding Father’s
efforts and reunification services. Regarding drug testing, the
court found that Father tested positive ten times for THC,
repeatedly failed to call in to determine if he should test, and
provided excuses about his failures to call in that were not
credible. Even when the caseworker and the court “constantly
reminded” him to submit to drug tests, Father “purposely
refused.” Instead, Father decided “to test only when he wanted,”
which effectively “deprived the Court of the ability to determine
if he was using drugs other than marijuana” because, in the
court’s experience, sophisticated drug users know how to time
drug tests so that the tests “only reveal[] marijuana use but not
other substances.” The court found that Father’s first clean drug
test was nine months after the Children’s removal and that
Father did not consistently call in to be tested until mid-
September 2018. Thus, by the second permanency hearing,
Father had complied with this aspect of the service plan for only
two months. The court noted, however, that he had been clean
since services were terminated. As for the required substance
abuse evaluation, the court found that Father completed that
portion of the service plan.
¶14 Father had mixed results on other requirements in the
service plan. He had not finished the domestic violence
assessment before the second permanency hearing but did finish
before trial. Regarding the anger management classes, Father
completed that requirement of the service plan, yet he
“continue[d] to have outbursts after he completed treatment.”
Concerning the psychological evaluation, Father had not
20190846-CA 6 2021 UT App 57In re A.H.
completed it before the second permanency hearing. 4 Father
managed to do so before trial, but it was unknown whether
Father had participated in the recommended therapy.
¶15 As for the required parenting class, Father completed it,
but “it did not have the desired effect.” He was “not able to
sufficiently improve his parenting abilities in relation to” A.H.
and N.H., and he was not in compliance with this requirement
by the second permanency hearing in November 2018.
¶16 One month earlier, in October 2018, Father began Parent
Child Connections Interactive Therapy (PCCIT), which is
designed to “support the development of healthier child-parent
interactions and improve attachment patterns overall.” During
PCCIT, Father acknowledged that he “felt like he did not have a
lot of skills to handle [A.H.],” who has disabilities. A PCCIT
therapist also observed that Father “did not have a close
relationship with [N.H.].” Overall, Father attended five PCCIT
sessions. A PCCIT therapist observed that N.H. showed “fear
and hesitation towards” Father and that although in later
sessions N.H. started going to Father earlier in the session, “her
reunions with [Father] still highlight[ed] significant anxiety.”
The therapist also observed that Father “had to work to set limits
with [A.H.] and often tends to just give [A.H.] what he wants
and allows him to be aggressive” but that Father had improved
in the last two sessions. The PCCIT sessions stopped in
November 2018 because the court ended reunification services
and changed the Children’s goal to adoption. Even though
Father wanted to continue PCCIT and pay for it himself, the
court denied that request because it was inconsistent with the
goal of adoption. And although PCCIT could have been started
4. The court observed that Father “had a pattern of claiming
confusion on court orders with which he disagreed or with
which he did not want to comply.”
20190846-CA 7 2021 UT App 57In re A.H.
earlier, a PCCIT therapist testified at trial that even if Father
“had been given the full amount of time to complete PCCIT[,]
she did not think therapy would have been successful because
[Father] made minimal progress in the time he had.”
¶17 With one exception, Father regularly attended his weekly
supervised visits with the Children. The visits were “troubling,”
however, because Father persisted in bringing toys and food
even when asked not to do so. The toys and food interfered with
creating a “normal” setting for the evaluators to observe the
parent/child interaction and led the Children to view Father “as
a party dad or a type of Santa—one who comes with toys and
gifts.” While Father complied with the requirement to attend
visits, he showed a “lack of progress” and never “progressed to
unsupervised visits.”
¶18 In terms of the requirement to provide financially for the
Children, the court found that Father had “paid nothing in child
support” since the court became involved in the matter and that
he owed a total of $11,841.75 in back payments. At the same
time, Father testified that he had $7,000 in savings and owned
his mortgaged home. The court further found that Father works
three jobs and had the ability to pay child support. Father told
the court that he would pay child support if the Children were
returned to him, but the court found that this statement showed
that Father “fundamentally misunderstands the concept of child
support.” Because Father “has purposely avoided his
obligation,” the court found that Father did not comply with this
portion of the service plan “at any time.”
¶19 As for Father’s housing situation, the court found that at
the time of the second permanency hearing, Father “did not have
a stable and healthy living environment for his Children.”
Multiple times, Father “purposely refused” to allow DCFS to
inspect his home until after services were terminated. By the end
20190846-CA 8 2021 UT App 57In re A.H.
of December 2018, however, his home was deemed suitable for
children.
¶20 At trial, Father testified that he contacted the Office of
Child Protection Ombudsman (the Ombudsman) in December
2018 to express concerns over how DCFS had handled his case.
The Ombudsman issued a letter in which it “largely validated
[Father’s] concerns,” and in his defense, Father presented the
Ombudsman’s opinion to support his position that DCFS did not
provide reasonable services to him. But the court found that the
Ombudsman did not speak with Father’s caseworkers and
supervisors and did not review all the relevant documentation.
The court thus had “serious concerns about the quality of the
investigation done by [the Ombudsman].” In written detail, the
court discredited much of the Ombudsman’s opinion, finding
instead that DCFS provided adequate support to Father.
¶21 Notably, in rejecting the Ombudsman’s opinion, the court
found that Father “did not take reunification services seriously
for nearly a year.” According to the court, Father “knew what
was expected” of him, yet he “showed little interest in
reunification until he realized too late that [Mother] was not
going to have the [C]hildren returned to her.” Indeed, “[c]ajoling
by the caseworker at visits and by the Court at review hearings
appeared to have little effect.” And even when DCFS “made a
push to return” the Children to Father in the fall of 2018, Father
“showed little interest” in reunification. The court further found
that “[b]y his own fault, not [DCFS’s], [Father] chose to rely on
[Mother] to get the [C]hildren back,” and thus he “just took a
lackadaisical approach to completing services on time” and “did
not seriously engage in services in a timely fashion.” Ultimately,
the court found that DCFS “made a fair and honest attempt to
provide services to [Father] and the services provided to [Father]
were reasonable.”
20190846-CA 9 2021 UT App 57In re A.H.
¶22 The juvenile court recognized that while Father had
“limited general parenting skills with young children,” he was
“doing better”; he had “a steady job, an appropriate home and is
drug free.” In fact, by the end of trial, Father had the infant,
Am.H., in a trial home placement. The court saw that Father was
“developing further skills at managing and appropriately
responding to his children.” Yet the court observed that
“providing daily care of three young children would be a
significant challenge,” especially considering A.H.’s disabilities.
When Father was given special training on how to deal with
A.H., he “did not seem to learn or progress in his
understanding.” The Children did not have an attachment to
Father, and even though Father had some positive interactions
with the Children, those interactions were “more about drinking,
eating, and playing with toys,” not “a need by the children for
affection or connection (physical or emotional) with” Father.
¶23 Significantly, with respect to N.H., the court found that
during the time it took Father to improve himself, “the
parent-child relationship was severely damaged.” N.H. was
never in Father’s custody before she was removed, and thus “no
parent/child relationship ever existed” between them. Further,
the court found that no relationship between Father and N.H.
“developed over the course of the case” and that N.H. “has
never viewed [Father] as a caregiver or parent and she is
apprehensive in his presence.” The court concluded that Father’s
present parenting ability did not help him with regard to N.H.
and his “lackadaisical approach to services deprived him of the
opportunity to form a meaningful parent/child bond” with N.H.
¶24 With respect to A.H., the court found that while Father
and A.H. had a parent/child relationship before A.H.’s removal,
“that relationship has drastically changed” in the two years since
then. For example, A.H. was excited to see Father at visits but his
excitement was “more about drinking, eating, and playing,” and
when the visits ended, A.H. did not initiate hugs with Father or
20190846-CA 10 2021 UT App 57In re A.H.
whine for Father not to leave. Instead, A.H. would run to his
foster parents. The court found that A.H.’s relationship with his
foster parents “has transformed into the only meaningful
attachment relationship that he has” and that removing A.H.
from them would present “a danger of [A.H.] suffering from
Reactive Attachment Disorder.” The court concluded that the
duration of A.H.’s removal and the length of time that “it took
[Father] to substantially rehabilitate himself had a significant
destructive effect on their parent/child relationship”; thus,
Father’s “present parenting ability [did] not overcome the
destructive effects of his past actions/inactions.”
¶25 Additionally, the court made findings about Mother and
Father’s relationship, which it viewed as “concerning” and
“troubling.” The court found that Mother and Father “largely
ignored” the court’s no-contact order, and Father stated in April
2019 that they were living together. It also noted that while
Mother and Father tried at trial “to downplay the amount of
domestic violence that had occurred between them,” they were
“quite upfront” in evaluations “about the significant role
domestic violence had played in their relationship.” It further
found that Father “has problems setting boundaries with
[Mother],” that he had “chosen to remain” with Mother, and that
“[a]s a couple they cannot properly raise [the Children].” The
court noted that it had returned custody of Am.H. to Father, not
Mother, and that if Father “reunites” with Mother, Am.H.’s
“custody situation could change.”
¶26 In conclusion, the juvenile court found five grounds for
terminating Father’s parental rights as to A.H. and N.H. See Utah
Code Ann. § 78A-6-507(1)(b)–(f) (LexisNexis 2018). 5 The court
also found that terminating Father’s parental rights was in the
Children’s best interests. See id. § 78A-6-503(12). It added that
5. We cite the statutes in effect at the relevant time.
20190846-CA 11 2021 UT App 57In re A.H.
termination “would also prevent the substantial likelihood of
continued neglect if the [C]hildren were returned to the
parents.” It also found that the Children “view the foster parents
as their caretakers and providers,” not Father and Mother, and
that the foster parents are “ready and willing to adopt” the
Children. Furthermore, the court found that terminating Father’s
parental rights was “strictly necessary” and in the Children’s
best interests so that their foster parents could adopt them. See
id. § 78A-6-507(1).
¶27 Accordingly, the juvenile court entered an order
terminating Father’s parental rights as to A.H. and N.H. 6 Father
appeals.
ISSUES AND STANDARDS OF REVIEW
¶28 Now represented by different counsel on appeal, Father
raises three main issues. First, Father asserts that his trial counsel
rendered constitutionally ineffective assistance in various ways.
“An ineffective assistance of counsel claim raised for the first
time on appeal presents a question of law.” In re S.S., 2015 UT
App 230, ¶ 20, 360 P.3d 16 (cleaned up).
¶29 Second, Father asserts that the juvenile court erred in
finding that DCFS provided reasonable efforts toward
reunification. “A court’s determination that DCFS made
reasonable efforts to provide reunification services involves an
application of statutory law to the facts that presents a mixed
question of fact and law, requiring review of the juvenile court’s
factual findings for clear error and its conclusions of law for
6. The juvenile court terminated Mother’s parental rights as to
A.H. and N.H. at the same time that it terminated Father’s
parental rights. Mother appealed separately, and this court
affirmed the juvenile court’s order.
20190846-CA 12 2021 UT App 57In re A.H.
correctness, affording the court some discretion in applying the
law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116(cleaned up).
¶30 Third, Father asserts that the juvenile court erred in
terminating his parental rights on the ground of unfitness. “The
ultimate conclusion that a parent is unfit or that other grounds
for termination have been established is a legal question, but
such decisions rely heavily on the juvenile court’s assessment
and weighing of the facts in any given case.” In re J.M., 2020 UT
App 52, ¶ 22, 463 P.3d 66 (cleaned up). We thus “afford a high
degree of deference to a juvenile court’s decision with regard to
the existence of statutory grounds, and overturn it only when the
result is against the clear weight of the evidence or leaves us
with a firm and definite conviction that a mistake has been
made.” Id. (cleaned up). Further, “when a foundation for the
juvenile court’s decision exists in the evidence, an appellate
court may not engage in a reweighing of the evidence.” Id.(cleaned up).
ANALYSIS
¶31 To terminate parental rights, the juvenile court must make
two separate findings by clear and convincing evidence. See In re
B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann.
§ 78A-6-506(3) (LexisNexis 2018); In re C.Z., 2021 UT App 28,
¶¶ 17–18, 484 P.3d 431. “First, it must find grounds for
termination under Utah Code section 78A-6-507.” In re B.T.B.,
2020 UT 60, ¶ 46 (cleaned up). Clear and convincing evidence
establishing “any one” of the enumerated statutory grounds for
termination is sufficient to fulfill the first finding for termination.
See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018); see also In
re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66; In re F.C. III, 2003 UT
App 397, ¶ 6, 81 P.3d 790. Second, the court “must find that
termination of the parent’s rights is in the best interests of the
child.” In re B.T.B., 2020 UT 60, ¶ 46 (cleaned up); see also Utah
20190846-CA 13 2021 UT App 57In re A.H.
Code Ann. § 78A-6-503(12) (LexisNexis 2018). As part of the
best-interests inquiry, “a court must specifically address whether
termination is strictly necessary to promote the child’s welfare
and best interest.” In re B.T.B., 2020 UT 60, ¶ 76; see also Utah
Code Ann. § 78A-6-507(1). Additionally, when “the court has
directed [DCFS] to provide reunification services to a parent, the
court must find that [DCFS] made reasonable efforts to provide
those services before the court may terminate the parent’s
rights.” Utah Code Ann. § 78A-6-507(3)(a).
¶32 The juvenile court in this case found five separate
grounds to terminate Father’s parental rights: (1) “the parent has
neglected . . . the child,” id. § 78A-6-507(1)(b); (2) “the parent is
unfit or incompetent,” id. § 78A-6-507(1)(c); (3) “the child is
being cared for in an out-of-home placement under the
supervision of the court or [DCFS] . . . [and] the parent has
substantially neglected, wilfully refused, or has been unable or
unwilling to remedy the circumstances that cause the child to be
in an out-of-home placement; and . . . there is a substantial
likelihood that the parent will not be capable of exercising
proper and effective parental care in the near future,” id.
§ 78A-6-507(1)(d); (4) “failure of parental adjustment,” id.
§ 78A-6-507(1)(e), which means that the parent has been “unable
or unwilling within a reasonable time to substantially correct the
circumstances, conduct, or conditions that led to placement of
their child outside of their home, notwithstanding reasonable
and appropriate efforts made by [DCFS] to return the child to
that home,” id. § 78A-6-502(2); and (5) “only token efforts have
been made by the parent . . . to support . . . the child,” id.
§ 78A-6-507(1)(f). The juvenile court also found that terminating
Father’s parental rights was strictly necessary and in the
Children’s best interests. Father does not challenge the court’s
decision regarding the Children’s best interests.
20190846-CA 14 2021 UT App 57In re A.H.
¶33 We now turn to Father’s arguments regarding ineffective
assistance of counsel, reasonable efforts at reunification, and
grounds for termination.
I. Ineffective Assistance
¶34 Father first contends that his trial counsel provided
ineffective assistance in four respects. First, he argues that trial
counsel misunderstood that the initial adjudication was not
being relitigated at trial and thus employed a flawed trial
strategy aimed at the domestic violence incident underlying the
initial adjudication. See supra ¶¶ 3–4. Second, Father argues that
trial counsel “devoted a significant portion of the trial” urging
the juvenile court to rely on the Ombudsman’s opinion, which
was ultimately discredited. Third, Father argues that trial
counsel misunderstood or was unaware of the applicable law,
process, and court rules, including the burden of proof, and he
further claims that trial counsel erroneously believed proving a
justification for the domestic violence incident would mitigate
the harm to the Children. Fourth, Father argues that trial counsel
introduced or emphasized harmful evidence, including that
Father had $7,000 in savings and had paid his own attorney fees
and that Father had physically disciplined his older child several
years earlier.
¶35 “To prevail on an ineffective assistance of counsel claim,
[Father] must show that (1) ‘counsel’s performance was
deficient’ and (2) this ‘deficient performance prejudiced the
defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see
also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (stating that
parents are entitled to effective assistance of counsel in child
welfare proceedings and adopting “the Strickland test to
determine a claim for ineffective assistance of counsel in
proceedings involving termination of parental rights”). “Because
failure to establish either prong of the [Strickland] test is fatal to
20190846-CA 15 2021 UT App 57In re A.H.
an ineffective assistance of counsel claim, we are free to address
[Father’s] claims under either prong.” See In re C.M.R., 2020 UT
App 114, ¶ 19 (cleaned up).
¶36 Father has identified some questionable decisions on trial
counsel’s part. But even if trial counsel did perform deficiently,
we resolve Father’s ineffective assistance claims on the prejudice
prong.
¶37 To establish prejudice, Father “must ‘demonstrate a
reasonable probability that the outcome of [his] case would have
been different absent counsel’s error. A reasonable probability is
a probability sufficient to undermine confidence in the outcome
of the proceeding.’” See id. ¶ 21 (quoting State v. Scott, 2020 UT
13, ¶ 43, 462 P.3d 350). In evaluating the likelihood of a different
result, we “consider the totality of the evidence before the
judge,” bearing in mind that “[s]ome errors will have had a
pervasive effect on the inferences to be drawn from the evidence,
altering the entire evidentiary picture, and some will have had
an isolated, trivial effect.” Strickland, 466 U.S. at 695–96.
¶38 Father has not carried his burden of demonstrating
prejudice. “To establish ineffective assistance of counsel in
parental rights termination proceedings, it is imperative that a
parent demonstrate deficient performance and prejudice for each
ground justifying termination.” In re B.H., 2003 UT App 160U,
para. 4. Thus, because the juvenile court found five statutory
grounds warranting the termination of Father’s parental rights,
Father must explain why the court’s finding on each ground
likely would have been different but for trial counsel’s alleged
deficient performance. See Utah Code Ann. § 78A-6-507(1)
(LexisNexis 2018) (stating that the court may terminate parental
rights upon finding “any one” ground for termination). He has
not even attempted to do so.
¶39 Instead, Father generally asserts that trial counsel’s tactics
“detracted from the fact that [Father] had done everything
20190846-CA 16 2021 UT App 57In re A.H.
necessary to cure the domestic violence situation found in the
initial adjudication” and that trial counsel “set the stage” for the
court to believe Father “doesn’t get it,” because the defense cast
blame on Mother for the domestic violence incident. (Cleaned
up.) But the juvenile court acknowledged that Father “spent a lot
of time presenting evidence” of his continued work on services
up to the time of trial, and the court gave Father credit for his
progress, finding that he had “largely rehabilitated himself” by
the time of trial. And apart from trial counsel’s arguments, the
court had other evidence that Father did not progress in
important ways. For example, the court found “the initial
parenting class was not successful, even according to [Father],”
and Father’s visits with the Children never progressed to
unsupervised visits. What’s more, the court found that Father
did not seriously engage in services in a timely manner. Father’s
delay was especially problematic in this case because it had a
significant destructive effect on his parent-child relationship
with A.H. and prevented him from developing any parent-child
relationship with N.H.
¶40 Referring to the approximately twelve-month timeframe
after a child’s removal during which a parent must show
progress in changing the conduct or condition that required the
removal, the court explained the importance of “removing the
child from the legal limbo of State custody as soon as possible so
as to provide that child with a permanent and stable home.”
(Quoting In re M.L., 965 P.2d 551, 560 (Utah Ct. App. 1998).) The
court further recognized the connection between “a parent’s
inaction over a long period of time” and “the deterioration of the
parent-child relationship during that time period.” (Quoting In
re M.L., 965 P.2d at 560.) The court’s approach was consistent
with Utah caselaw, which directs that “the weight which a
juvenile court must give any present ability evidence is
necessarily dependent on the amount of time during which the
parent displayed an unwillingness or inability to improve his or
her conduct and on any destructive effect the parent’s past
20190846-CA 17 2021 UT App 57In re A.H.
conduct or the parent’s delay in rectifying the conduct has had
on the parent’s ability to resume a parent-child relationship with
the child.” See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned
up). In this case, even if trial counsel had done more to
emphasize Father’s rehabilitation or less to emphasize Father’s
rationalization of the domestic violence incident, it is unlikely
that the juvenile court would have changed its view regarding
the destruction of the parent-child relationships. See Utah Code
Ann. § 78A-6-507(1)(e); In re M.L., 965 P.2d at 561–62 (instructing
that in considering a failure of parental adjustment, the court
must weigh a parent’s present ability evidence “in light of the
parent’s past conduct and its debilitating effect on the
parent-child relationship”).
¶41 Father also suggests that his trial counsel’s performance
was prejudicial because trial counsel elicited testimony about
Father’s financial condition and Father’s earlier physical
discipline of another child that “then served as grounds for
termination.” But even without the testimony elicited by Father’s
counsel about Father’s finances, the State introduced evidence
that Father was employed yet had paid no child support since
the time the Children were taken into DCFS custody. Thus,
Father’s testimony may not have been helpful, but Father has not
shown that without it the court was reasonably likely to find that
Father had made more than token efforts to financially support
the Children. See Utah Code Ann. § 78A-6-507(1)(f). 7 As to
Father’s physical discipline of another child, the court made a
finding that this incident had occurred seven years earlier. But
this finding does not appear to have played a significant role in
the court’s decisions regarding the grounds for termination. The
7. Father also has not shown that even if the evidence his counsel
elicited on his finances led to a finding of token efforts, its
omission from trial likely would have led the court to reject the
other four grounds supporting termination.
20190846-CA 18 2021 UT App 57In re A.H.
court did not mention it again and instead repeatedly
emphasized the destructive effect Father’s neglect and inaction
had on the Children. Given the totality of the circumstances, it is
not reasonably likely that the court would have viewed Father
and his relationship with the Children any differently had
counsel not introduced these two pieces of evidence.
¶42 Additionally, our own review of the record indicates that
Father was not prejudiced by his trial counsel’s performance.
The court understood and analyzed the facts, most of which are
unchallenged on appeal. In a detailed written decision, the court
carefully applied the correct law and was not misled by any
confusion that trial counsel may have had. Despite Father’s
strides, the court still had numerous concerns about Father, and
its decision to terminate Father’s parental rights was driven
largely by Father’s own untimely efforts to engage in services.
¶43 Indeed, termination for failure of parental adjustment is
well supported in the evidence. Citing Utah Code section
78A-6-507(1)(e), the court found that Father was “unable or
unwilling within a reasonable time to substantially correct the
circumstances, conduct or conditions that led to the placement of
[the Children] outside of” his home. Although DCFS provided
reasonable and appropriate reunification services to Father,
Father did not take the various services seriously for almost a
year. See infra ¶¶ 46–49. For example, Father did not comply
with the drug-testing requirement for more than eleven
months—around two months before the second permanency
hearing. He also “purposely refused” multiple times to allow
DCFS to inspect his home until after services were terminated.
And even when DCFS “made a push to return” the Children to
Father, he “showed little interest” in the attempts to reunify. Cf.
In re C.Z., 2021 UT App 28, ¶ 24 (affirming the juvenile court’s
conclusion that “the father’s efforts were far too little far too
late” (cleaned up)). Importantly, Father’s delay caused damage
to his parent-child relationships with both of the Children.
20190846-CA 19 2021 UT App 57In re A.H.
¶44 Furthermore, Father largely ignored the court’s no-contact
order with Mother, and he had “chosen to remain” in a volatile
relationship with her—a relationship that involved domestic
violence. Given that the Children were removed after a domestic
violence incident, Father’s refusal to distance himself from
Mother showed his unwillingness to correct the circumstances
that led to the Children’s removal. Cf. id. ¶¶ 25–26 (“The father’s
choice to remain involved with the mother—whether
romantically or as a co-parent—placed the child at continued
risk.”). In light of this strong evidence that Father exhibited a
failure of parental adjustment, we conclude that it is unlikely
that trial counsel’s performance had any impact on the court’s
findings or conclusion on this ground for termination. In other
words, even if counsel had performed more effectively in the
ways Father identifies, it is not reasonably likely that the court
would not have found at least one ground upon which to base
its termination of Father’s parental rights.
¶45 In short, our confidence in the outcome of this case is not
undermined by any of trial counsel’s perceived shortcomings.
Father’s claims of ineffective assistance are therefore unavailing.
II. Reunification Efforts
¶46 Next, Father contends that DCFS did not provide
reasonable reunification services to him and that the juvenile
court erred in finding to the contrary. Father asserts that despite
knowing he needed help with his parenting skills given A.H.’s
disabilities and N.H.’s attachment issues, DCFS did not provide
additional support “until it was too late.” In particular, Father
points out that the PCCIT sessions began during an extension
period for reunification services and only one month before the
second permanency hearing, at which the court terminated
services. He further argues that DCFS’s efforts were
unreasonable because its delay in providing PCCIT until he was
“up against the permanency deadline” limited his success in the
20190846-CA 20 2021 UT App 57In re A.H.
time allotted and “virtually assured termination of reunification
services.”
¶47 “Generally, as long as DCFS has made a fair and serious
attempt to reunify a parent with a child prior to seeking to
terminate parental rights, [DCFS] has complied with its statutory
obligation.” In re A.W., 2018 UT App 217, ¶ 29, 437 P.3d 640(cleaned up). But the process of reunification is recognized as “a
two way street which requires commitment on the part of the
parents, as well as the availability of services from the State.” In
re K.K., 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (cleaned
up). Reunification services ordinarily last twelve months after a
child’s removal, but the juvenile court may, under certain
conditions, extend services for up to 180 days. Utah Code Ann.
§ 78A-6-314(6)–(7) (LexisNexis 2018). Ultimately,
“reasonableness is an objective standard that depends upon a
careful consideration of the facts of each individual case,” and
the juvenile court thus has “broad discretion in determining
whether DCFS made reasonable efforts to reunify” a parent with
a child. In re K.K., 2017 UT App 58, ¶ 5 (cleaned up); accord In re
A.W., 2018 UT App 217, ¶ 29.
¶48 Here, DCFS provided numerous services to Father for
more than a year, including drug testing, substance abuse
treatment, psychological evaluation, domestic violence
treatment, anger management classes, parenting classes, and
weekly supervised visitation with the Children. The juvenile
court extended these services, and it found that Father “actually
engaged in the services,” knew what services needed to be
completed, and “knew what was expected” of him. Yet Father,
by his own fault, “took a lackadaisical approach to completing
the services on time because he was relying on [Mother] to get
the [C]hildren back.” The caseworker’s “[c]ajoling” at visits had
“little effect” on Father. As discussed, DCFS’s provision of
services is “a two way street which requires commitment on the
part of the parents.” In re K.K., 2017 UT App 58, ¶ 5 (cleaned up).
20190846-CA 21 2021 UT App 57In re A.H.
But the court found that Father “did not take reunification
services seriously for nearly a year.” While DCFS’s provision of
various services and attempts to help Father were reasonable,
Father bore the responsibility of participating in and completing
those services, and it was Father’s “lackadaisical” and belated
efforts that fell short.
¶49 Father also complains that DCFS unreasonably delayed
PCCIT, especially when the juvenile court found that the therapy
“could have been provided earlier.” But Father overlooks that
the court also found that PCCIT “was limited because the initial
parenting class was not successful, even according to [Father].”
Given Father’s lack of progress in parenting class and his overall
lack of timely efforts, we cannot say that DCFS’s services were
unreasonable under the circumstances. We thus reject this
challenge to the court’s decision.
III. Grounds for Termination
¶50 Finally, Father asserts that the juvenile court erred in
terminating his parental rights on the ground of unfitness. He
suggests that this ground is unsupported by the evidence
because he had made significant progress by the time of trial and
the court had returned Am.H. to his care. He also claims that the
court erroneously deemed him an unfit parent when he merely
failed to be a “model parent.” See generally Utah Code Ann.
§ 78A-6-503(4) (LexisNexis 2018) (stating that a parent’s
fundamental liberty interest “does not cease to exist simply
because a parent may fail to be a model parent”).
¶51 To the extent that Father pursues a sufficiency of the
evidence challenge, he has not carried his burden on appeal.
Although he discusses unfitness and mentions neglect, he has
not undertaken an analysis of each ground supporting the
court’s termination decision. “And we will not reverse a ruling
of a lower court that rests on independent alternative grounds
20190846-CA 22 2021 UT App 57In re A.H.
where the appellant challenges less than all of those grounds.” In
re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (cleaned up).
¶52 To the extent Father believes that the court terminated his
rights based solely on his failure to be a model parent, we are not
persuaded. The court made detailed findings in support of five
grounds for termination, and this case involves much more
serious problems than Father’s mere failure to be a model
parent. Thus, we reject Father’s challenge to the grounds for
termination.
CONCLUSION
¶53 Father has not shown that he was prejudiced by his trial
counsel’s performance, and we therefore reject his claims of
ineffective assistance of counsel. Father also has not established
error in the juvenile court’s decisions regarding DCFS’s
reasonable efforts and the grounds for termination. Accordingly,
we affirm the court’s decision terminating Father’s parental
rights as to A.H. and N.H.
20190846-CA 23 2021 UT App 57