In re D.G.

2022 UT App 128THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.G.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
V.G.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210836-CA
Filed November 17, 2022
Third District Juvenile Court, Tooele Department
The Honorable Elizabeth M. Knight
No. 1173613
K. Andrew Fitzgerald, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Candace
Roach, Attorneys for Appellee
Amy L. Williamson, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 D.G. (Child) was removed from his mother’s (Mother)
home as a result of Mother’s habitual drug use, and after
reunification efforts proved unsuccessful, the juvenile court
terminated Mother’s parental rights. On appeal, we have been
asked to consider whether the juvenile court erred in concluding
that termination was strictly necessary and in Child’s best interest
and whether Mother’s counsel was ineffective for failing to seek
accommodations for her under the Americans with Disabilities
In re D.G.
Act (the ADA). Because we previously rejected Mother’s strictly-
necessary argument on the merits, relying on the arguments made
in her petition on appeal, we do not consider that argument
further and grant the State’s motion to strike the portions of
Mother’s brief addressing that issue. Further, we reject Mother’s
ineffective assistance of counsel claim on the basis that she cannot
establish that she was prejudiced by any deficient performance.
BACKGROUND
¶2 Mother first encountered the child welfare system when
Child was removed from her care at birth after being exposed to
drugs in utero and suffering withdrawal. In an effort to be
reunited with Child, Mother participated in reunification services
and began inpatient treatment at a treatment facility. When Child
was nearly six months old, and based upon Mother’s compliance
with the Child and Family Service Plan (Service Plan) adopted by
the juvenile court, the court allowed a trial home placement with
Mother at the treatment facility while she continued to participate
in services. By the time Child was eighteen months old, he was
returned to Mother’s custody. However, Mother soon began to
“struggle” by resuming her drug use, stopping her prescribed
medication, losing her job, missing therapy appointments, and
refusing to drug test. A little more than four months after being
returned to Mother’s custody, Child was again removed from her
care and placed in a foster home. Following a permanency
hearing, the juvenile court terminated reunification services and
changed Child’s permanency goal to adoption. Subsequently, the
juvenile court terminated Mother’s parental rights to allow Child
to be adopted by his foster family.
¶3 Mother appealed the juvenile court’s termination order,
raising two issues for our review: (1) that the juvenile court erred
in determining that it was strictly necessary to terminate Mother’s
rights without considering an alternative placement with Child’s
biological father and (2) that her trial counsel was ineffective for
failing to seek accommodations for her under the ADA. After
20210836-CA 2 2022 UT App 128In re D.G.
reviewing Mother’s petition, we issued an Expedited Briefing
Order and Notice of Hearing (the Briefing Order) requesting full
briefing only as to Mother’s second appellate issue. As to the first
issue, we rejected Mother’s argument, explaining,
[T]here is nothing in the record that indicates a
paternity determination. Caseworker testified at
trial that paternity had not been established and that
the man who initially came forward was not the
father. In the termination order, the juvenile court
found that paternity had not been established. There
is nothing in the record that shows that finding is
clearly erroneous.
¶4 Despite this court’s Briefing Order limiting full appellate
briefing to only Mother’s second stated issue, Mother filed a brief
addressing both issues for our consideration. In response, the
State requested that we strike the portion of Mother’s brief
addressing the strictly-necessary issue because it did not comply
with the Briefing Order and also because the Briefing Order had
already resolved that issue on the merits. Mother opposed the
State’s motion, arguing that the supreme court’s ruling in In re
J.A.L., 2022 UT 12, 506 P.3d 606, issued three weeks after the
Briefing Order, gave rise to exceptional circumstances because it
changed “the interpretation of the law . . . while her appeal was
pending.” We deferred ruling on the motion to strike “pending
plenary consideration of the appeal by this court.”
ISSUES AND STANDARDS OF REVIEW
¶5 First, we must address the issue raised in the State’s motion
to strike. We consider such a motion, made first and relevant only
on appeal, in the first instance. See Aurora Credit Services, Inc. v.
Liberty West Dev., Inc., 2007 UT App 327, ¶ 7, 171 P.3d 465. Because
we ultimately grant the State’s motion, we do not reconsider the
merits of Mother’s argument concerning the juvenile court’s
consideration of the strictly-necessary requirement.
20210836-CA 3 2022 UT App 128In re D.G.
¶6 Second, we address Mother’s argument that she received
ineffective assistance of counsel. “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(quotation simplified).
ANALYSIS
I. Motion to Strike
¶7 In child welfare proceedings, the appellant is required to
file a “petition on appeal” that outlines the nature of the case, the
relief sought, relevant dates, a concise statement of facts, a
statement of the legal issues presented, the applicable standard of
review, and supporting legal authority and argument for each
issue raised. Utah R. App. P. 55(a), (d). While such petitions are
not intended to be full appellate briefs, they do set the parameters
of the issues presented for appeal. Parties are required to address
the merits of their appellate arguments, and petitions should be
“designed to zealously advocate the positions of the parties and
to assist the court in resolving the matter.” In re J.F., 2014 UT App
82, ¶ 11, 327 P.3d 26 (quotation simplified). In drafting their
petitions, parties in child welfare proceedings should err on the
side of inclusiveness because our rules allow us to make a
substantive ruling on the merits of a party’s appellate arguments
or order further briefing on the issues presented after reviewing
only the way those arguments are framed in a petition.1 See Utah
R. App. P. 58(a)–(b) (stating that “[a]fter reviewing the petition on
appeal, any response, and the record, the Court of Appeals may
rule by opinion, memorandum decision, or order” or,
alternatively, the court may “set the case for full briefing” and
1. In this important way, petitions filed in child welfare appeals
are different from docketing statements filed in other appeals. See
generally Utah R. App. P. 9. Nothing in our rules allows us to make
substantive rulings on a party’s appellate arguments after
reviewing only a docketing statement.
20210836-CA 4 2022 UT App 128In re D.G.
“specify which issues must be briefed”). A party who disagrees
with the court’s ruling following review of a petition may not seek
further review on the basis of the court’s refusal to grant full
briefing. Id. R. 58(b). However, a party may file a petition for
rehearing on the merits of the court’s decision, id.; id. R. 35, or
petition the supreme court for a writ of certiorari, id. R. 45(a).
¶8 Here, our Briefing Order resolved the merits of Mother’s
argument regarding the juvenile court’s application of the strictly-
necessary standard and directed Mother to further address only
the ineffective assistance of counsel issue raised in her petition.
Our rules do not allow Mother to seek rehearing on our decision
not to order full briefing on the strictly-necessary issue raised in
her petition, see id. R. 58(b), and she did not seek the court’s
permission to file any supplemental briefing on that issue on the
basis that the law had changed after she filed her petition. Mother
simply addressed the issue in her appellate brief. This was
improper, and regardless of the grounds presented, Mother’s
briefing of the strictly-necessary issue violated our Briefing Order.
We therefore grant the State’s motion to strike that portion of the
brief. Mother’s remedy, should she disagree with our ruling, is to
file a petition for rehearing2 or to petition the supreme court for
certiorari.
2. For those readers who may register some dissatisfaction with
our resolution of this issue on what may appear to be a
technicality of appellate procedure, we offer our observation—
informed by our review of Mother’s briefing—that even if Mother
had sought permission to file supplemental briefing, we would
have been disinclined to grant Mother any relief. We are
unpersuaded by Mother’s assertion that the supreme court’s
ruling in In re J.A.L., 2022 UT 12, 506 P.3d 606, should change the
analysis set forth in our Briefing Order. In re J.A.L. stands for the
proposition that a juvenile court cannot find termination strictly
necessary based on “the categorical concern that a permanent
(continued…)
20210836-CA 5 2022 UT App 128In re D.G.
II. Ineffective Assistance of Counsel
¶9 We now turn to the single question on appeal on which we
requested full briefing. Mother argues that she received
ineffective assistance of counsel because her attorney did not
request that she receive accommodations under the ADA, which
she claims would have enabled her to better access services to
regain custody of Child. To establish her ineffective assistance of
counsel claim, Mother “must show that counsel’s performance
guardianship is not as stable or permanent as an adoption.” Id.
¶ 25. But here, the juvenile court was not presented with any
feasible option for a guardianship placement. The only potential
placements Mother suggested on appeal were with the adoptive
parents of Child’s half-siblings or with Child’s alleged biological
father. But there is nothing in the record indicating that Child has
a relationship with his half-siblings or their adoptive parents or
that his siblings’ adoptive parents would be willing to also act as
Child’s guardians. Further, it is undisputed that Child’s paternity
had not been established. And there is no other option, short of
termination and adoption, that would have otherwise been
apparent to the juvenile court. See generally In re J.J.W., 2022 UT
App 116, ¶ 19 (“[I]n some instances (e.g., where the existence of a
particular option would not be readily apparent to the court), a
parent may need to expressly ask a trial court to consider a
specific non-termination option in order to properly preserve the
right to argue, on appeal, that the court did not adequately
consider that option.”). The court observed that “Mother has very
little family support and her grandfather, who is her closest
relative, lives in [a town] . . . that is a trigger for her to use drugs.”
Thus, even assuming that the juvenile court’s analysis of the
strictly-necessary question could have or even should have been
more robust, without any remotely feasible alternatives to
termination and adoption, Mother cannot show that the juvenile
court’s finding that termination of Mother’s rights was strictly
necessary was against the clear weight of the evidence.
20210836-CA 6 2022 UT App 128In re D.G.
was objectively deficient and that counsel’s deficient performance
prejudiced the case.” See In re S.S., 2015 UT App 230, ¶ 22, 360 P.3d
16 (quotation simplified). To accomplish this, she must point “to
specific instances in the record demonstrating both counsel’s
deficient performance and the prejudice it caused” her. See State
v. Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166.
¶10 To establish prejudice, Mother would need to “proffer
sufficient evidence to support a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” See In re S.H., 2007 UT App 8, ¶ 12,
155 P.3d 109 (quotation simplified). In the context of this case,
such evidence would need to support a reasonable probability
that Mother’s invocation of the ADA here would have led to
modifications to the Service Plan intended to accommodate her
disability, that those accommodations would have better allowed
her to access needed services, and that better access to services
would have prevented the termination of her parental rights. To
persuade us that counsel’s failure to invoke the ADA changed the
outcome of this case, Mother must present record evidence that
demonstrates that (1) Mother is disabled; (2) because of Mother’s
disability, she is entitled to particular accommodations to allow
her to access services; (3) had Mother received such
accommodations, she would have accessed the provided
reunification services; and (4) the reunification services would
have enabled Mother to successfully complete the Service Plan
and avoid having her rights terminated. See In re K.T., 2015 UT 92,
¶¶ 22–28, 362 P.3d 1248.
¶11 Mother points to evidence in the record indicating that she
did not receive a psychological evaluation and that one of her
therapists opined that she “wondered if [Mother] was on the
autism spectrum.” Mother also asserts that the record indicates
that her “mental health” problems had a “substantial impact . . .
on her life’s activities” and that all parties involved were aware
that she suffered from “significant mental health problems.”
(Quotation simplified.) However, because Mother never received
a psychological evaluation, there is no evidence in the record
20210836-CA 7 2022 UT App 128In re D.G.
diagnosing her with any specific disability or indicating how any
such disability impacted her life, and Mother has made no effort
to supplement the record with any such evidence.3 See In re
C.M.R., 2020 UT App 114, ¶¶ 29–32, 473 P.3d 184. See generally
State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92 (explaining that the
individual asserting ineffective assistance of counsel “bears the
burden of assuring the record is adequate” and that if the record
is inadequate that individual also “bears the primary obligation
and burden of moving for a temporary remand”). Essentially,
Mother asks us to assume that had she received a psychological
evaluation, it would have identified a specific disability that could
be accommodated under the ADA and that it is reasonably
probable that such accommodations would have changed the
outcome of the termination trial. But we are not in a position to
make such assumptions, and in fact, in the absence of specific
evidence to the contrary, we must assume that counsel performed
effectively. See Litherland, 2000 UT App 76, ¶ 16.
¶12 Without evidence indicating what a psychological
evaluation would have concluded, what disability Mother had,
what accommodations Mother needed, and how those
accommodations might have helped her to more successfully
participate in reunification services, she cannot show that she
suffered prejudice as a result of counsel’s allegedly deficient
performance in failing to request a psychological evaluation and
accommodations under the ADA. Accordingly, she has not
3. Mother asserts that had counsel performed effectively, he
would have ensured that she receive a psychological evaluation.
However, we have procedures available for an appellant to
request remand to supplement the record, which are designed to
address the problem that “the insufficient record may often be the
result of the very inadequate assistance alleged.” Cf. State v.
Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166. Where Mother has not
requested such a remand, we can consider only the evidence
before us in assessing her ineffective assistance of counsel claim.
See In re D.R., 2022 UT 124, ¶ 18.
20210836-CA 8 2022 UT App 128In re D.G.
carried her burden of establishing that she received ineffective
assistance of counsel.
CONCLUSION
¶13 Because we did not order full briefing on the strictly-
necessary issue and instead rejected Mother’s arguments
regarding that issue on the merits on the basis of her petition on
appeal, we grant the State’s motion to strike with respect to the
portions of Mother’s brief that addressed the strictly-necessary
issue. As to the merits of the issue that we asked Mother to brief,
we conclude that she cannot establish that she received ineffective
assistance of counsel, because the record before us is insufficient
to establish that she suffered prejudice as a result of her counsel’s
allegedly deficient performance. Accordingly, we affirm the
juvenile court’s order.
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