In re F.C.G.

2023 UT App 55THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF F.C.G.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
L.C.G.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20221129-CA
Filed May 25, 2023
Third District Juvenile Court, Salt Lake Department
The Honorable Monica Diaz
No. 1205462
Julie J. Nelson Attorney for Appellant
Sean D. Reyes and John M. Peterson,
Attorneys for Appellee
Martha Pierce Guardian ad Litem
Before JUDGES GREGORY K. ORME,
MICHELE M. CHRISTIANSEN FORSTER, and AMY J. OLIVER.
PER CURIAM:
¶1 L.C.G. (Mother) appeals the juvenile court’s order
terminating her parental rights. We affirm.
¶2 “To terminate parental rights, a juvenile court must make
two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d
100 (quotation simplified). First, a court must find by clear and
convincing evidence that there is at least one statutory ground for
termination.” Id. (quotation simplified). “Second, “a court must
find that termination of the parent’s rights is in the best interest of
In re F.C.G.
the child.” Id. Because a parent’s rights are constitutionally
protected, a court may terminate parental rights only if it finds
that termination is strictly necessary for the best interest of a child.
See id.¶3 Mother does not challenge the juvenile court’s
determination that there were statutory grounds supporting the
termination of her parental rights, or the court’s determination
that doing so was strictly necessary and in F.C.G.’s (Child) best
interest. However, the record supports the juvenile court’s
determination that there were statutory grounds supporting the
termination of Mother’s parental rights, that termination was
strictly necessary, and that terminating Mother’s rights was in
Child’s best interest.
¶4 Instead, Mother asserts that the juvenile court erred by
determining that she waived her right to counsel, and by
permitting counsel to withdraw at trial. Specifically, Mother
asserts that the juvenile court violated rule 53(c) of the Utah Rules
of Juvenile Procedure and her due process rights by permitting
counsel’s withdrawal. “We review waiver of a statutory right to
counsel for correctness but grant the trial court a reasonable
measure of discretion when applying the law to the facts.” In re
A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (quotation simplified).
The “termination of parental rights involves a statutory right to
counsel, not a constitutional right to counsel. See id. Accordingly,
“waiver of a statutory right to counsel is proper as long as the
record as a whole reflects the parent’s reasonable understanding
of the proceedings and awareness of the right to counsel.” Id.(quotation simplified).
¶5 Rule 53(c) provides that a motion to withdraw may be
made orally before the court, and counsel’s request to withdraw
should demonstrate a parent’s familiarity with his or her right to
counsel, the withdrawal of counsel, the right to appeal, and post-
judgment motions. Utah R. Juv. P. 53(c)(1). The record
demonstrates that Mother was aware of the rights identified in
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rule 53(c). On November 30, 2021, the juvenile court appointed
counsel for Mother. Based on Mother’s lack of contact with
counsel, and her failure to meaningfully participate in the
proceeding, the court permitted counsel to withdraw.
¶6 On October 13, 2022, Mother appeared at the termination
trial. Knowing that counsel had been permitted to withdraw,
Mother once again requested the appointment of counsel. The
juvenile court re-appointed Mother’s counsel and continued the
trial until December 12, 2022, so that Mother could participate in
trial preparations and trial. The court scheduled a pretrial hearing
for November 7, 2022. Mother failed to appear at the pretrial
hearing. Mother also failed to appear at the December 12, 2022
trial.
¶7 The court determined that Mother received notice of both
the pretrial hearing and the continued trial when she appeared on
October 13, 2022. Mother failed to communicate with counsel and
assist in trial preparations. Mother’s counsel attempted to contact
Mother at least twelve times prior to the continued trial. Mother’s
counsel received only one email from Mother, but it was not
substantive, and it did not address any of counsel’s “questions or
advice or anything that I had given to her.” The court determined
that based on Mother’s nonappearances in court, plus her lack of
contact with counsel, Mother waived her right to counsel.
¶8 Mother next argues that the court violated her due process
rights. Specifically, she argues that she had a constitutional right
to counsel, beyond that of a statutory right to counsel. Mother
asserts that “the Utah Supreme Court determined that, under
certain factual circumstances, a parent facing termination of their
parental rights has a right to counsel under the Due Process
Clause of the Fourteenth Amendment of the federal constitution.”
In re adoption of K.A.S., 2016 UT 55, ¶ 35, 390 P.3d 278. Mother
argues that a constitutional right to counsel requires a heightened
showing that a parent knowingly and voluntarily waived the
right to counsel, rather than whether the “record as a whole
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reflects the parent’s reasonable understanding of the proceedings
and awareness of the right to counsel.” In re A.B., 2017 UT App
99, ¶ 5.
¶9 Mother acknowledges that the Supreme Court did not hold
that parents are always entitled to the constitutional right to
counsel. The Supreme Court determined that “where, for
example, the parent has not taken an interest in the proceedings
and the weight of the evidence of the parent’s lack of interest is
great—the presumption against the right to counsel will not be
overcome.” In re adoption of K.A.S., 2016 UT 55, ¶ 38 (quotation
simplified). Given the juvenile court’s determinations regarding
Mother’s nonappearances in court, her lack of contact with
counsel, and her lack of participation, the record supports the
juvenile court’s determination that Mother did not take an interest
in the proceedings, and the weight of the evidence of Mother’s
lack of interest is great. The record does not support that Mother
had a constitutional right to counsel, or that the court erred in its
waiver determination and allowing counsel to withdraw.
¶10 Mother next asserts that she received ineffective assistance
of counsel when counsel withdrew, rather than requesting
another trial continuance or additional appointment of counsel.
To prevail on an ineffective assistance of counsel claim, Appellant
must show: (1) her counsel’s performance was deficient and
(2) the deficient performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 669, 687 (1984); In re C.M.R., 2020
UT App 114, ¶ 19, 473 P.3d 184 (applying Strickland to an
ineffective assistance of counsel claim in a child welfare
proceeding). To demonstrate deficient performance, Mother must
persuade this court that, considering the record as a whole,
counsel’s performance was objectively unreasonable. State v.
Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. To demonstrate prejudice,
Mother must show that “there exists a reasonable probability that
the case would have had a different outcome had trial counsel not
performed deficiently.” State v. Florez, 2020 UT App 76, ¶ 43, 465
P.3d 307.
20221129-CA 4 2023 UT App 55In re F.C.G.
¶11 Mother asserts that counsel was deficient because he did
not adequately comply with rule 53(c) of the Utah Rules of
Juvenile Procedure. However, as addressed above, it was
apparent from the record that Mother was familiar with her rights
identified in rule 53(c). See Utah R. Juv. P. 53(c)(1)(iii). Counsel had
been appointed twice in Mother’s proceeding, and the court
permitted counsel’s withdrawal due to Mother’s refusal to
communicate with counsel, participate, and to attend court.
Counsel’s decision to withdraw, rather than request yet another
continuance or additional counsel was not deficient. “Because the
decision not to pursue a futile motion is almost always a sound
trial strategy, counsel’s failure to make a motion that would be
futile if raised does not constitute deficient performance.” State v.
Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705. Given the required
short time frames in child welfare cases, Mother’s
nonappearances, lack of communication with counsel, and her
lack of participation, the record does not support Mother’s claim
that counsel was ineffective for declining to request yet another
continuance or requesting that the court appoint another attorney.
¶12 Mother next argues that the doctrine of structural prejudice
suggests that she was prejudiced when counsel withdrew at trial.
See State v. Bond, 2015 UT 88, ¶ 40, 361 P.3d 104. To satisfy this part
of Strickland’s test, Mother must demonstrate particularized
prejudice in her specific case. See State v. Juarez, 2021 UT App 53,
¶ 27, 489 P.3d 231. “Allegations of structural prejudice, or
prejudice per se, are generally insufficient in the context of an
ineffective assistance claim.” Id. (quotation simplified). However,
we need not address both components of the Strickland inquiry if
we determine that Mother made an insufficient showing on either
prong. See id. ¶ 26. Because the record does not support Mother’s
claim that counsel was deficient, we need not address this claim.
See id.
¶13 The juvenile court’s order terminating Mother’s parental
rights is affirmed.
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