S.E. v. State, 360 P.3d 16

Mother (respondent) had two young sons, A.S. (b. 2010) and S.S. (b. 2012); after an incident of abuse by the boys' father in 2012, DCFS intervened and the children were eventually placed in foster care. Mother later moved to Iowa and had sporadic contact with the children and DCFS.
DCFS terminated reunification services in July 2013 and the State filed a petition to terminate Mother's parental rights in August 2013, alleging abandonment, neglect, failure to remedy circumstances, and lack of parental adjustment (no allegation Mother abused the children).
Trial was set for November 12, 2013. Mother repeatedly expressed dissatisfaction with her appointed counsel (Trial Counsel) and attempted to retain new counsel; the juvenile court denied a continuance without probing the reasons for her dissatisfaction.
At trial Trial Counsel: made no opening statement, lodged virtually no objections to thirty-six exhibits, did not cross-examine State witnesses, declined to present evidence or a direct examination of Mother, asked questions that attacked Mother’s credibility, and made no closing argument. The State and GAL questioned Mother; the court terminated her parental rights.
On appeal Mother argued ineffective assistance of counsel. The juvenile court record showed a strained attorney-client relationship but also that competent advocacy could have elicited evidence (e.g., foster-home logs of near-weekly calls, Mother’s efforts in Iowa) that might have undercut abandonment findings.

Issue	Mother’s Argument	State/GAL’s Argument	Held
Was Mother's trial counsel ineffective under Strickland such that she is entitled to a new trial?	Trial Counsel’s courtroom inaction and affirmative actions that undercut Mother (no opening, no cross, no closing, undermining questions) fell below objective standards and prejudiced the outcome.	Any deficiencies were attributable to Mother’s failure to communicate; even with different counsel outcome likely the same given Mother’s extended absence and noncompliance.	Reversed: counsel was ineffective. Performance was objectively deficient and prejudicial; remanded for further proceedings.

Strickland v. Washington, 466 U.S. 668 (establishing two-part ineffective assistance test—deficient performance and prejudice)
State in Interest of E.H., 880 P.2d 11 (Utah Ct. App.) (parent’s statutory right to counsel in termination proceedings includes effective assistance)
State v. Clark, 89 P.3d 162 (Utah) (ineffective assistance raised on appeal is a question of law)
Menzies v. Galetka, 150 P.3d 480 (Utah) (attorney abdication of advocacy is below objective standard of reasonableness)
Warner v. Ford, 752 F.2d 622 (11th Cir.) (silence can sometimes be a trial strategy)
State v. Lenkart, 262 P.3d 1 (Utah) (diminishing a party’s credibility via counsel’s conduct can be prejudicial)
State ex rel. T.E., 266 P.3d 739 (Utah) (parental duties to support, communicate, and bond inform termination analysis)