In re R.D...
K. Andrew Fitzgerald, Attorney for Appellant
Jason B. Richards, Attorney for Appellees
Martha Pierce, Guardian ad Litem
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 A mother and her children were in the company of the mother‘s boyfriend as he allegedly robbed a business. The children had recently been adjudicated as abused by their father, who was living with the mother at the time of the abusive events, and were thus under the jurisdiction of the juvenile court. Fearing that this latest incident might result in the children being placed in foster care, the mother sent the children to her parents in Texas. The children have been in Texas ever since. After the children moved in with them, the grandparents intervened in the juvenile court case and petitioned the court for guardianship and custody, which the court granted. The mother now appeals, asserting, in addition to other claims of error and ineffective assistance of counsel, that the juvenile court lacked jurisdiction to grant the guardianship and custody. We affirm on all grounds.
BACKGROUND1
¶2 K.J. (Mother) has two children (the Children) by the same man (Father)—a girl born in December 2015 and a boy born in January 2018.
¶3 In October 2018, law enforcement was dispatched to a disturbance at the family home. Father was intoxicated, had become “destructive,” and was “not making much sense.” Father was transported to the hospital. Within a few days of this incident, Mother sent the Children to live with her parents, N.J. and A.J. (Grandparents), in Texas, where they stayed about three months.
¶4 In February 2019, law enforcement was again dispatched to the family home. Father was again found intoxicated, and he had locked Mother out of the residence. It was reported that Father would “jump on” Mother and “shake her.”
¶5 In April 2019, law enforcement responded to a call involving aggravated assault at the family home. Father was yet again intoxicated, and he had pushed Mother into a wall of their apartment, an action that knocked her to the ground. Father had then grasped Mother from behind and had begun hitting her, giving her a bloody nose. Father had also choked Mother, causing her to nearly lose consciousness. The Children were present during this assault.
¶6 A few days after this incident, having received a referral regarding the Children, the Utah Division of Child and Family Services (DCFS) initiated a home visit. Mother admitted that law enforcement had been called to the home due to Father‘s “drinking and getting out of control.” But she “minimized the domestic violence incidents,” noting that she could usually get the Children to bed and sleeping so they would not hear any of the parents’ arguments. Mother asked the DCFS caseworker to tell Father that she still wanted “to be with him,” but the caseworker advised Mother that doing so would be a violation of a no contact order that was in place. And as the caseworker was leaving the home, Mother said, “So what [you are] saying is the best thing I can do is go to court next week and ask for the no contact order to be dropped?” The caseworker responded that was not what was being communicated, and she discussed with Mother “the concerns of her failure to protect the [C]hildren from the ongoing domestic violence.” Mother responded that she just wanted to speak with Father.
¶8 In May 2019, DCFS initiated proceedings, pursuant to
¶9 In July 2019, the juvenile court determined that the Children were subject to the jurisdiction of the juvenile court and adjudicated them “abused children” by Father in that they “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence by assaulting Mother. Accordingly, the court appointed a guardian ad litem (GAL) to represent the best interests of the Children; ordered DCFS to provide protective supervision services; ordered Mother and Father to comply with a family plan that included mental health assessments, a domestic violence assessment, completion of a parenting course, and maintenance of stable housing and income; and ordered Father to complete drug and alcohol assessment and treatment. The juvenile court further ordered Mother and Father to “have no contact with each other in the presence” of the Children.
¶10 Notably, the court made a custody determination at this juncture in two respects. First, at least impliedly, it determined that the Children would remain in the custody of Mother, albeit subject to the jurisdiction of the court pursuant to the provisions of the family plan. Second, it placed severe restrictions on Father‘s parent-time with the Children. Specifically, the court ordered that Father “shall not return to the family home until further order” of the court. And the court specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by the [GAL], until further order of the [c]ourt.”
¶11 Not long after the adjudication, Mother began a relationship with another man (Boyfriend). This relationship too was marked by incidents of domestic violence. In one instance, Boyfriend called police claiming that Mother tried to hit him with her car, while a witness said it was Boyfriend who jumped on the hood of Mother‘s car. But a more serious incident—at least insofar as it concerned the safety of the Children—happened when Boyfriend allegedly robbed an oil-change shop while Mother and the Children were with him in Mother‘s car. This prompted Mother, in October 2019, to arrange for the Children to go to Texas to live with Grandparents again. Mother was apparently “afraid that the [Children] would go to foster care if [authorities] thought [she] was involved in the robbery.” The Children have been in Texas ever since.
¶12 In June 2020, Grandparents moved to intervene in the Children‘s welfare action and petitioned the juvenile court for temporary child custody. The court granted the motion and awarded them temporary custody. In an October 2020 hearing, the court changed the Children‘s permanency goal to permanent custody with a relative and terminated reunification services with Mother and Father. Also in October 2020, Grandparents petitioned for permanent custody and guardianship, which was supported by the GAL. Mother and Father opposed Grandparents’ petition. As relevant here, Mother argued that there had been a substantial and material
¶13 In August 2022, the juvenile court entered detailed findings, concluding that Mother had not changed her circumstances and that it was necessary for the welfare of the Children that Grandparents be awarded permanent custody and guardianship.3
¶14 Mother appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Mother first contends that the juvenile court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), see generally
¶16 Next, Mother argues that the juvenile court violated the Interstate Compact on the Placement of Children (ICPC), see generally
¶17 Mother next asserts that her trial counsel (Counsel) was ineffective for failing to call her therapist to testify on her behalf regarding her current mental health status. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).
¶18 Mother lastly maintains that the juvenile court erred in applying an incorrect standard of proof, arguing that the custody dispute should have been governed by the parental presumption. The application of the correct standard of proof, including the juvenile court‘s “interpretation of the parental presumption, presents a legal issue, which we review for correctness.” In re A.T., 2020 UT App 50, ¶ 11, 464 P.3d 173.
ANALYSIS
I. Jurisdiction
¶19 Mother argues that the juvenile court lacked jurisdiction to consider Grandparents’ custody petition because the Children had been residing in Texas for more than six months prior to the petition. Mother‘s argument is grounded in the UCCJEA, which states, in pertinent part, that
a court of this state has jurisdiction to make an initial child custody determination only if . . . this state is the home state of the child on the date of the commencement of the proceeding[] or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
“Child custody proceeding” means a proceeding in which legal custody, physical custody, or parent-time with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.
¶20 From these statutory provisions, Mother argues that the PSS petition filed by DCFS did not indicate that “legal custody” or “physical custody” of the Children was at issue, asserting “the PSS petition was arguably not a ‘child custody proceeding’ for purposes” of the UCCJEA. Mother further argues that because the Children had been in Texas for more than six months by the time Grandparents petitioned for custody in June
¶21 Mother is mistaken. The statutory language makes it clear that the Utah juvenile court had jurisdiction over the custody petition. Under the plain language of the UCCJEA, Utah was the “home state” of the Children “on the date of the commencement of the proceeding” that determined child custody. See
¶22 Here, the “child custody proceeding” commenced when the juvenile court adjudicated the PSS petition. While it is true that the PSS petition—filed in May 2019 when the Children were living in Utah—did not mention legal custody, physical custody, or parent-time, it did recount three incidents of domestic violence, one of which was committed in the presence of the Children, perpetrated by Father. Based on these allegations, DCFS asked the juvenile court to adjudicate the Children “abused, neglected and/or dependent” because they had “suffered non-accidental harm or threatened harm . . . [w]hen [Father] committed domestic violence in the presence of the [C]hildren by hitting [Mother,] causing her a bloody nose, choking her, and knocking her to the ground.”
¶23 In adjudicating the PSS petition, the court specifically found that the Children were “abused” by Father in that the Children had “suffered non-accidental harm or threatened harm” when Father “committed domestic violence” in their presence. And, as it was allowed to do given the finding of abuse,4 the juvenile court also made a “custody” determination—at least according to the terms of the UCCJEA—when it limited Father‘s parent-time. Specifically, the juvenile court ordered that Father “shall not return to the family home until further order” of the court. And it further specified that “[v]isitation between [Father] and the [C]hildren shall be reasonable and supervised as approved by [DCFS] and the [GAL], until further order of the [c]ourt.”
¶24 The Utah juvenile court obtained jurisdiction as soon as it entertained the PSS petition because two conditions were met. First, the PSS petition resulted in a “proceeding for . . . abuse . . . and protection from domestic violence.”
¶25 Once jurisdiction attached at the commencement of proceedings by the filing of the PSS petition, it remained intact. Mother argues the opposite—that while Utah may have had jurisdiction of the initial matters in the PSS petition, jurisdiction switched to Texas for the custody matters related to Grandparents. We rejected a similar argument in In re A.J.B., 2017 UT App 237, 414 P.3d 552, where we stated that “once a state
¶26 In sum, the Utah juvenile court‘s jurisdiction commenced on the filing of the PSS petition—which alleged abuse, neglect, and dependency due to domestic violence—and resulted in limitations on Father‘s parent-time. Accordingly, Mother‘s first claim of error fails.
II. ICPC Violation
¶27 Mother next contends that the juvenile court also violated the ICPC by failing to ensure that Grandparents were fit for custody before placing the Children with them.5
¶28 The purpose of the ICPC is to ensure that “[e]ach child requiring placement” receives “the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care.”
¶29 By its own terms, the ICPC is oriented toward facilitating interstate placements in the context of anticipated adoptions coordinated by state authorities or private agencies, a point that it makes explicitly clear:
This compact shall not apply to . . . [t]he sending or bringing of a child into a receiving state by [the child‘s] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or . . . guardian and leaving the child with any such relative or nonagency guardian in the receiving state.
¶30 Here, Mother is the one who sent the Children to stay with Grandparents, a point about which there is no disagreement. Mother sent the Children to live with Grandparents after a criminal episode allegedly committed by Boyfriend in the presence of the Children because she was concerned that her alleged involvement in the incident might lead to the placement of the Children in foster care. Thus, the sending of the Children to live with Grandparents was voluntarily and directly done by Mother while the Children were in her custody. It was only later, after Grandparents petitioned for custody due to Mother‘s persistent instability and ongoing involvement in relationships plagued by domestic violence, that the juvenile court entered custody orders for Grandparents. And by this time, the Children were physically living in Texas.
¶31 The provisions of the ICPC that work to ensure the suitability of the placement to which a child is sent simply do not apply here because Mother herself sent the Children to
III. Ineffective Assistance
¶32 Mother‘s next claim is that she received ineffective assistance when Counsel failed to call her therapist to testify “as to her current mental health status in terms of her ability to parent the Children effectively.” Mother argues that having her therapist testify would have shown that “she was actively engaged in and had never stopped working on her mental health issues/concerns,” thus allowing the juvenile court “to make better informed decisions” about her parenting abilities.
¶33 Parents are entitled to the effective assistance of counsel in child welfare proceedings. See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (recognizing an implicit guarantee of effective assistance of counsel in a proceeding to terminate the fundamental right of parenting one‘s children); see also
¶34 Here, Counsel had an easily discernable strategic reason to refrain from calling Mother‘s therapist to report on her current mental health progress. The record indicates that the juvenile court made findings that Mother had been untruthful throughout the proceedings and was not taking her mental health treatment seriously. Specifically, the court found that Mother (1) had not “internalized her treatment“; (2) was not “truthful with [DCFS], her treatment providers, her parents, or the [c]ourt“; (3) did not disclose domestic violence incidents involving Father; (4) claimed that she “was fully engaging in her individual counseling and being honest with her therapist” while also admitting through her testimony that she was “not fully honest [with her therapist] about the extent of her contact” with Boyfriend; and (5) was “vague” in stating that she did not know if she was present when Boyfriend committed the robbery with the Children in the car. The court also stated that “[b]ecause of [Mother‘s] dishonesty to the [c]ourt for nearly two years,” it had no way of knowing whether Mother was currently in contact with Boyfriend. And it concluded, “She has continued to violate [c]ourt orders, . . . and she continues to not understand the dangerous situation she puts [the Children] in when bringing people around them with violence and drug use problems.”
¶35 Knowing of Mother‘s serious credibility problems—problems obviously well known to the court—Counsel had a sound strategic reason not to call her current therapist as a witness. Mother‘s ongoing pattern of lying, not following court orders, and failing to internalize her therapy would have given Counsel little reason to suspect that anything had changed with respect to her behavior. Counsel might well have feared that calling her current therapist would have, at best, done nothing to help Mother‘s case or, more likely, compounded the honesty concerns that already plagued her.
¶36 Moreover, Counsel would have legitimate concerns about what might be revealed on cross-examination. While limiting exposure of inconsistencies that would exacerbate Mother‘s credibility issues might be possible on direct examination, Counsel would have no such control over the direction of questioning on cross-examination, where opposing counsel would certainly take the opportunity to highlight Mother‘s already glaring credibility issues.
IV. Burden of Proof
¶38 Mother‘s final assertion is that the juvenile court applied the incorrect standard for the post-adjudication hearing. More specifically, Mother argues that the court “applied the wrong standard by requiring proof” from Grandparents of what was necessary for the welfare of the children, see
A. Parental Presumption
¶39 Mother was not entitled to the parental presumption. Our supreme court has expressly stated that “the parental presumption does not apply . . . to cases brought before the juvenile court on abuse, neglect, or dependency petitions. In such cases, the petition alone is sufficient to overcome the parental presumption for purposes of adjudicating the allegations in the petition.” In re K.F., 2009 UT 4, ¶ 69, 201 P.3d 985 (cleaned up); accord In re A.S.A., 2012 UT App 151, ¶ 3, 279 P.3d 419. And “in cases in which abuse, neglect, or dependency is established, the usual parental presumption that prevents the State (a nonparent) from intervening in parental decision-making no longer applies, and the State (supervised by the juvenile court) may take custody of children, even over their parents’ objections, and place them appropriately.” In re A.T., 2020 UT App 50, ¶ 14.
¶40 Here, not only had DCFS filed a petition alleging abuse, neglect, or dependency, but the juvenile court had actually adjudicated the Children as abused. This court long ago observed that “the legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. . . . The legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent‘s custody.” In re J.M.V., 958 P.2d 943, 948 (Utah Ct. App. 1998). Since the Children had been so “adjudicated and the court had continuing jurisdiction over them, it was also within the court‘s dispositional authority to vest legal custody” in DCFS or in another appropriate person. See In re S.F., 2012 UT App 10, ¶ 44, 268 P.3d 831 (cleaned up); see also
¶41 In sum, after the juvenile court‘s adjudication pursuant to Mother‘s entry of a rule 34(e) plea in response to the allegations of abuse, neglect, or dependency contained in the PSS petition, Mother was not entitled to invoke the parental presumption.
B. Burden of Proof
¶42 Even deprived of the parental presumption, Mother argues that the juvenile court held her “to a higher standard than required under the rules for her to modify a temporary order of custody,” thereby shifting the burden to her rather than keeping it with Grandparents. It appears that Mother is arguing that the juvenile court erred not in applying the wrong burden of proof to Grandparents—namely “by clear and convincing evidence“—but that it applied that
¶43 Mother‘s petition to modify or restore custody was considered along with Grandparents’ petition for custody. The juvenile court recognized that modifications to custodial orders are generally “treated as disposition hearings and subject to the preponderance of the evidence standard.” However, because DCFS was no longer a party to this case at this point, the juvenile court determined that it was “more similar to a custody dispute between a parent and non-parent.” And given this circumstance, the court concluded that the dispute “should proceed at the clear and convincing standard of proof for all parties.”
¶44 It appears that the juvenile court applied the wrong standard of proof to Mother‘s petition to modify or restore custody. Modifications of an interim order, which was the procedural situation here, are governed by rule 47 of the Utah Rules of Juvenile Procedure. See
¶45 While Mother may be right that the clear and convincing standard should not have been applied to her petition to modify, she has made no showing that an application of the correct standard of proof—preponderance of the evidence—would have resulted in a better outcome. Thus, any error of the juvenile court as to the standard of proof has not been shown to have prejudiced Mother. Cf. In re L.B., 2015 UT App 21, ¶ 6, 343 P.3d 332 (per curiam) (“Harmless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” (cleaned up)); accord In re A.M., 2009 UT App 118, ¶ 21, 208 P.3d 1058.
¶46 First, Mother makes no showing that Grandparents failed to demonstrate that it was in the Children‘s best interest to award them permanent custody and guardianship. Thus, the application of the wrong standard of proof—which was more rigorous in any case—was largely irrelevant to Grandparents’ ability to prove their case.
¶47 Moreover, the juvenile court entered extensive factual findings. Based on these findings, the court concluded that Mother had “not changed her circumstances,” making it unnecessary to conduct an examination of the Children‘s best interests with regard to Mother‘s petition to modify custody. Such an examination was unnecessary because a change of circumstance is necessary to restore custody to a parent whose legal custody has been transferred by the juvenile court. See
¶48 Because Mother has not demonstrated how this alleged error regarding the increased burden of proof prejudiced her, this claim fails.
CONCLUSION
¶49 Mother‘s challenge to the jurisdiction of the Utah juvenile court fails because the court‘s jurisdiction commenced with the filing of the PSS petition, which resulted in limitations on Father‘s parent-time and the continued jurisdiction of the juvenile court. Mother‘s claim that the juvenile court violated the
¶50 Affirmed.