In re Adoption of D.A.T.R.

2024 UT App 185

THE UTAH COURT OF APPEALS

IN THE MATTER OF D.A.T.R.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

A.K.,
Appellant,
v.
T.K. AND K.K.,
Appellees.

Opinion
No. 20230543-CA
Filed December 19, 2024

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
The Honorable Laura Scott
No. 222900420

Jason B. Richards and Alexandra Mareschal,
Attorneys for Appellant
Theodore Weckel, Attorney for Appellees

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

ORME, Judge:

¶1 For over twenty years, A.K. (Mother) has struggled with
drug addiction and has been continually involved in the criminal
justice system. In 2022, Mother’s parole officer found
methamphetamine in her wallet, resulting in her arrest and
incarceration. Mother’s brother and sister-in-law, T.K. and K.K.
(collectively, Guardians), who live in Idaho, eventually took over
the care of Mother’s nine-month-old daughter, D.A.T.R. (Child).
Not long afterward, a Utah district court granted Guardians
temporary guardianship of Child pursuant to the Probate Code.
In re D.A.T.R.

¶2 The same month Mother was released from jail, Guardians
filed a petition in Utah district court to adopt Child. Mother
subsequently filed a motion to terminate the probate
guardianship. The petition and motion were consolidated into a
single case, which proceeded to a two-day bench trial. The trial
court found that Mother was unfit because of her habitual
substance abuse, and thus, a statutory ground to terminate her
parental rights existed. But the court also determined that a
permanent guardianship—not termination of Mother’s parental
rights and adoption—was in Child’s best interest. Accordingly,
the court granted Guardians permanent guardianship of Child. In
light of this ruling, the court dismissed Mother’s petition to
terminate the probate guardianship as moot.

¶3 On appeal, Mother raises several arguments challenging
both the prior probate guardianship and the current permanent
guardianship. We hold that Mother’s arguments related to the
probate guardianship are moot, and accordingly we do not reach
their merits. As concerns the permanent guardianship, we hold
that Mother has not shown plain error or ineffective assistance of
counsel regarding any alleged failure to comply with the
Interstate Compact for the Placement of Children (the ICPC). And
we affirm the trial court’s determination that Mother is unfit.

BACKGROUND 1

¶4 For most of her adult life, Mother has struggled with illegal
drug use, particularly methamphetamine. As a result, even by her
own admission, Mother was not a good parent to her three older
children (the Older Children) as she was unable to care for them
for any meaningful period of time. The trial court found the Older
Children “suffered neglect and experienced trauma” due to

1. We recount the findings of fact the trial court entered following
a bench trial, which findings Mother does not challenge on
appeal.

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Mother’s drug use and that they continued to struggle at the time
of trial in this case. The Older Children have primarily been raised
by their maternal grandmother (Grandmother), who in 2014
sought and was granted guardianship of them. Mother’s siblings
have also actively helped care for the Older Children. By the time
of trial, Mother had not sought to terminate Grandmother’s
guardianship of the Older Children, so it remained in place.

¶5 Mother’s drug use has also resulted in her involvement
with the criminal justice system throughout her adult life.
Between 2009 and 2022, she had “been on probation, on the run,
or in jail or prison” most of the time. As relevant here, in 2018,
Mother was sentenced to prison for burglary. After spending a
little over two years in prison, she was released on parole.

¶6 Several months after her release, Mother became pregnant
with Child, who was born in August 2021. During her pregnancy,
Mother was employed and there was no indication that she was
using drugs or engaged in criminal activity. Both during the
pregnancy and after Child’s birth, Mother lived with
Grandmother and the Older Children. For the first time, Mother
was able to spend time and engage with the Older Children.

¶7 Following Child’s birth, Mother suffered from postpartum
depression and was unable to maintain her employment.
Nevertheless, with the help of Grandmother and Child’s
then-15-year-old sister (Sister), Mother was able to care for Child
and “they developed a strong bond with each other.” During this
time, Mother and Child also spent a lot of time with Child’s
godmother (Godmother), who lived nearby. Mother and
Godmother were middle school friends who reconnected a few
months prior to Child’s birth.

¶8 In May 2022, a parole officer found methamphetamine in
Mother’s wallet during a search of the house. At trial in the
current matter, Mother admitted to purchasing and using

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methamphetamine “one time.” 2 Mother was arrested and taken to
jail. Child, who was home at the time of Mother’s arrest, was left
in Grandmother’s care. Mother was charged with possession of a
controlled substance, possession of a dangerous weapon by a
restricted person, and possession of drug paraphernalia. Mother
pled guilty to the weapon charge and was sentenced. She was
released from jail that November.

¶9 On the day of Mother’s arrest, Grandmother sent a
message via the family group chat informing Mother’s siblings,
including Guardians, of the situation and asking for help caring
for the children. Grandmother told the siblings that Mother had
been arrested because the parole officer found a beer can and a
pocketknife in Mother’s room—not because he found
methamphetamine in her wallet. Grandmother later testified that
she was unaware that Mother had relapsed at the time of arrest.
Guardians responded to Grandmother’s message, indicating that
if Mother was going to be away for a while, they were willing to
take Child to Idaho and care for her there. Grandmother informed
Mother the following day of Guardians’ offer to take Child.

¶10 Mother later testified that upon arriving at the jail, she
called Godmother and asked her to care for Child. Godmother
picked Child up that same day and cared for her for the next two
weeks. But because Godmother had to work, Grandmother or
Sister cared for Child during the day and Godmother cared for
her at night.

2. Mother denied relapsing prior to May 2022. Some of her family
members began to suspect that she had resumed using drugs in
December 2021 when, during a family holiday party, she
exhibited behaviors similar to those she displayed when she was
under the influence of drugs. But other than the party, family
members were unable to identify another instance when they
suspected Mother of being under the influence.

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¶11 Mother eventually agreed to allow Guardians to take Child
to Idaho so long as certain “conditions” were met, which included
virtual visits with Mother, not changing Child’s pediatrician, and
bringing Child to Utah “regularly.” Mother testified that this
arrangement was to be “temporary,” meaning that it was to last
only while she remained incarcerated. When Guardians picked
Child up in Utah, she required medical attention for a severe
diaper rash and sores in her mouth. The trial court found that both
conditions likely predated Mother’s arrest. Child also did not
have a car seat or clothing that fit. Guardians took Child to a
pediatrician near their home, who prescribed medication, and
they purchased the necessary car seat and clothing. From June
until October 2022, Guardians facilitated weekly virtual visits
between Child and Mother.

¶12 Mother soon regretted her decision to allow Guardians to
take Child and told Grandmother to direct them to return Child
to Utah. Mother also wrote a letter indicating that she wanted
Child to stay with Godmother, though the letter was not notarized
or sent directly to Guardians. Mother attributed her change of
heart to “lack of trust” and her fear that Guardians would attempt
to “take” Child. 3 She also testified that Guardians had failed to
facilitate visits with Child. But the trial court later noted that the
jail to which Mother had been transferred allowed only virtual
visits or phone calls with Child, which Guardians had facilitated.

¶13 Guardians initially refused to return Child to Utah because
Mother’s letter was not notarized and because they did not know
Godmother’s background or relationship with Child. The trial
court later found that under the circumstances, “Guardians’ initial

3. Specifically, Mother testified that she was afraid Guardians
would try to “take” Child as they had tried to do with the Older
Children. But the trial court noted that there was no evidence that
Guardians ever tried to “take” the Older Children.

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concerns were reasonable given Mother’s previous lack of
judgment with respect to the Older Children.”

¶14 On June 16, 2022, Guardians filed a petition for
guardianship in Utah probate court. 4 The petition alleged that
Mother was “unwilling or unable to exercise her parental rights”
and that she had “violated parole, been given new charges, ha[d]
been arrested, and [was] currently” incarcerated. The trial court
later found that “Guardians did not make any misrepresentations
in the Guardianship Petition” and that “as a result of her
incarceration, Mother was ‘unable to exercise her parental rights’
because she was unable to care for” Child. The court also found
that “[t]here was no credible, much less persuasive evidence,
presented at trial that Guardians misrepresented any facts to the
probate judge in connection with the Guardianship Petition.”

¶15 The day after Guardians filed their petition, they returned
Child to Godmother in Utah after receiving a notarized letter from
Mother. Given their misgivings about Godmother and about
Mother’s judgment, Guardians remained concerned about Child.
It was also around this time that Guardians learned that Mother
had been arrested for methamphetamine possession—not for
having a beer can and a pocketknife in her bedroom, as
Grandmother had initially told them.

¶16 On July 6, 2022, Mother signed a notarized letter that
purported to retroactively give Godmother temporary

4. Because the initial guardianship was entered pursuant to the
Probate Code, we refer to the district court that ruled on the
guardianship petition as “the probate court,” and to the resulting
guardianship as “the probate guardianship.” We refer to the court
that ruled on the later adoption petition in the current matter as
“the trial court,” and to the resulting guardianship as “the
permanent guardianship.” Different judges presided over the two
proceedings before they were consolidated in the trial court.

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guardianship of Child from the day of her arrest until “the day of
[her] release from incarceration.” Mother did not file the letter
with the probate court. A week later, on July 13, the probate court
held a hearing on Guardians’ petition seeking guardianship of
Child. Mother was not present at the hearing. She later indicated
that this was because the jail failed to make the necessary
arrangements. The trial court in the present matter later found it
noteworthy that Mother never filed an objection to Guardians’
petition prior to the hearing, despite knowing about the
upcoming hearing for weeks. Godmother, who appeared
virtually at the hearing, did not object or otherwise speak, which
she later attributed to technical difficulties.

¶17 Because there were no objections, the probate court
granted the guardianship petition, and Godmother returned
Child to Guardians. The following day, on July 14, Mother mailed
a letter to the probate court indicating that she was “writing to
appeal” because she objected “to every part of” the guardianship
petition. Although the letter was received and docketed, there is
no indication that it was forwarded to the responsible judge.
Mother did not otherwise take any action to set aside the probate
guardianship until after she was released from jail in November
2022.

¶18 Child continued to have weekly virtual visits with
Mother until October 2022, at which point Guardians stopped
accepting Mother’s phone calls or facilitating virtual visits.
Although there had been some disagreement as to who was to pay
for the phone calls, the trial court found that the more likely
reason the virtual visits stopped was Guardians’ decision to seek
to adopt Child.

¶19 On November 7, 2022, Guardians filed a petition for
adoption, which was served on Mother later that month. Mother,
who had been released from jail sometime that same month,
subsequently filed a motion to terminate the probate

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guardianship and a motion to intervene in the adoption. The
probate court stayed the motion to terminate the guardianship
pending the outcome of the adoption case. The trial court granted
Mother’s motion to intervene and directed that the probate
guardianship case be reassigned to the trial court so that the two
matters could be consolidated. Because the adoption petition
sought to terminate Mother’s parental rights, the trial court
appointed counsel to represent her.

¶20 At subsequent status conferences, the trial court ordered
that Mother have virtual and supervised in-person visits with
Child, which commenced on a regular basis thereafter. At the first
supervised in-person visit, Child did not appear to recognize
Mother, and Grandmother did not observe a bond between the
two, although with each subsequent visit, Child became more
comfortable with Mother. Conversely, Child had developed a
strong bond with Guardians. Child considered Guardians her
parents and viewed their children as her siblings. Guardians had
provided for Child financially, and she was “thriving” in their
“permanent, stable, and healthy home.”

¶21 In March and May 2023, the matter proceeded to a two-day
bench trial on Mother’s motion to terminate the probate
guardianship and on Guardians’ adoption petition. In June,
the trial court entered its findings of fact and conclusions of
law. The majority of the court’s findings are summarized
above. The court also found that there was “no question that
Mother loves . . . Child very much and wants to be part of her
life” and that there was “also no question that Mother is
sincere in her desire to live a sober and productive life and
that she is taking important steps to address her substance
use issues.” Mother had voluntarily enrolled in a 90-day drug
treatment program in early December 2022, but she had
not graduated by the last day of trial in May 2023 in part due to
her being sanctioned for testing positive for alcohol on one
occasion.

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¶22 In its conclusions of law, the trial court first addressed
Mother’s motion to terminate the probate guardianship. The court
concluded that the motion was moot because the court was also
considering whether Mother’s parental rights should be
terminated. But the court ruled that in any event, Mother’s motion
would have been denied because there was no evidence that
Guardians committed fraud, made misrepresentations, or
otherwise engaged in misconduct in obtaining the probate
guardianship—as Mother had alleged; Mother’s due process
rights were not violated; and it was unlikely that Mother’s
post-hearing letter objecting to the guardianship petition would
have resulted in a different outcome if considered by the probate
court.

¶23 The trial court next turned to the issue of termination of
Mother’s parental rights—a necessary precondition to adoption in
the absence of Mother’s consent. The court concluded that a
ground for termination existed. Specifically, the court held that
Guardians had established by clear and convincing evidence that
“Mother is unfit because of her habitual use of dangerous drugs
that render her unable to care for” Child. The court considered
Mother’s history of drug use to be relevant for the following
reasons:

• In the over twenty years since Mother began using drugs,
she had not had any significant period of sobriety or
employment.

• Mother had not parented the Older Children for any
meaningful period of time.

• During the few months that Mother cared for Child, she
“was unable to maintain employment or live on her own
and relied on Grandmother and [Sister] (who should have
been in school) for assistance.”

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• It was undisputed that when Mother is using drugs, “she
is incapable of caring for the children not only because of
the effect it has on her but because of the legal
consequences of relapse, i.e., a violation of parole or
probation and incarceration.”

• “[I]t is impossible to predict whether Mother’s current
efforts [to maintain sobriety] will prove successful.”

¶24 The trial court acknowledged “Mother’s current efforts
over a short period of time—while certainly encouraging—do not
overcome her lengthy history of drug abuse, which has rendered
her unfit to care for the Older Children for 16 years and incapable
of caring [for] Child for almost half of her young life.” The court
further stated that it was “unable to conclude that Mother’s
situation is ‘stable’ or that her risk of relapse is ‘low,’ especially
given her use of alcohol shortly before trial.”5 The court indicated
that the fact that Mother had not yet completed the 90-day
treatment program by the last day of trial, which she began five
months earlier, suggested that she “is not yet capable of providing
the stability and protection that . . . Child deserves.” And the court
was also concerned by “Mother’s focus on . . . Child as the key to
her sobriety, which creates a significant risk that . . . Child will
grow up feeling like she is responsible for Mother or needs to take
care of her.” The court noted that “there was compelling evidence
at trial that this parentification has already happened with
[Sister], who Mother brought to trial for ‘emotional support.’” The
court also stated that as a result of Mother’s relapse and
subsequent incarceration, the bond between Mother and Child
had been severed and Child now viewed Guardians as her

5. The trial court recognized that alcohol was not Mother’s “drug
of choice,” but it stated that the treatment program Mother was
enrolled in prohibited alcohol consumption and “individuals in
long-term recovery are advised to avoid [alcohol] because it can
trigger a relapse cycle.”

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parents. Although the bond between Mother and Child could be
re-established, the court noted that Child may nevertheless have
been harmed by the severance.

¶25 The trial court stated that it was not discounting Mother’s
love and prior care for Child, but it also could not ignore that
Mother struggled with depression, was unable to maintain
employment, brought methamphetamine to the home she shared
with Child, or that Child suffered from severe diaper rash and
sores in her mouth immediately prior to Mother’s relapse.

¶26 Finally, the trial court expressed concern regarding
“Mother’s anger towards Guardians and her apparent desire to
sever the bond between Guardians and” Child. Specifically,
Mother testified that if she were to be incarcerated again, she
would give guardianship of Child to Godmother rather than to
Guardians. The court stated that “[t]his position reflects a lack of
judgment and a failure to focus on what would be best for the
Child, even if it conflicts with what might be most comfortable for
Mother.” Ultimately, the court concluded that Mother is unfit.

¶27 Having concluded that a ground for termination existed,
the trial court next addressed whether termination of Mother’s
parental rights was in Child’s best interest and whether it was
strictly necessary. The court concluded that “a permanent
guardianship would serve . . . Child’s best interests at least as well
as adoption” because “a permanent guardianship would not
result in the complete severance of . . . Child’s familial bonds with
Mother and the Older Children”; it would benefit Child to
maintain a relationship with Mother so long as she is able to
maintain sobriety; and “Child can be ‘equally protected and
benefitted by’ a permanent guardianship because it preserves the
status quo and creates permanency because Mother would not be
permitted to petition the Court to dissolve the guardianship.” The
court further stated that “[a] permanent guardianship also
advances the goals of reunification, i.e., the preservation of the

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relationship between Mother and . . . Child” because it “is a
practical way to keep Mother meaningfully involved in . . . Child’s
life while ensuring that . . . Child remains safe and protected in a
stable and loving and healthy environment.”

¶28 The court also determined that it would not be in Child’s
best interest to return her to Mother because Child’s “‘physical,
mental, or emotional condition and needs’ would not be served
by removing her from Guardians’ care,” especially if the bond she
shared with them was severed and then she was returned to their
care at a later point; Guardians’ continued care of Child would
allow Mother to proceed with her recovery without the looming
threat of relapse resulting in termination of her parental rights;
“remaining with Guardians allows Child to separate her love [for]
Mother from the emotional burden of being raised by someone
who has struggled with addiction for her entire adult life”; and
Child would “be left in limbo for years” if she were returned to
Mother.

¶29 The court thus concluded that termination of Mother’s
parental rights was not strictly necessary and that it was in Child’s
best interest that Guardians be granted a permanent guardianship
“with Mother having limited rights to be informed about . . . Child
and to have regular parent-time” with Child. The court
subsequently entered an order of permanent guardianship that
included a detailed parenting plan for Mother.

¶30 Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶31 Mother’s arguments on appeal can be categorized as
challenges to the probate guardianship and as challenges to the
permanent guardianship. In challenging the probate
guardianship, Mother argues that due to several alleged errors in
the proceedings before the probate court, the guardianship was

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void ab initio. Alternatively, she argues that the trial court erred
in not terminating the probate guardianship after the probate
guardianship and adoption cases were consolidated. For the
reasons discussed in Part I below, Mother’s challenges to the
probate guardianship are moot, and we therefore lack judicial
power to address their merits. See Utah Transit Auth. v. Local 382 of
Amalgamated Transit Union, 2012 UT 75, ¶ 12, 289 P.3d 582.

¶32 In challenging the permanent guardianship, Mother makes
two primary arguments. 6 First, Mother contends that the

6. Mother also argues that the trial court misapplied the Adoption
Act when it did not provide reunification services. She asserts that
this issue “is preserved because the [trial] court raised the issue
sua sponte in the findings.” Specifically, the court included a
footnote in its findings of fact and conclusions of law stating,
When parental rights are terminated under the
Adoption Act and the Court enters an adoption
decree, the Act does not provide for continued court
involvement because a new parent-child
relationship has been formed and the parent’s rights
in, and obligations to, the child are extinguished. In
such cases, there is no provision for reunification of
the parent and the child.
But here, the trial court did not enter an adoption decree creating
“a new parent-child relationship” between Guardians and Child,
nor did it fully terminate Mother’s parental rights. Furthermore,
in discussing why it was granting a permanent guardianship, the
court stated that “[a] permanent guardianship also advances the
goals of reunification, i.e., the preservation of the relationship
between Mother and” Child. We thus disagree with Mother’s
assertion that the court sua sponte ruled that reunification
services were not available in this case.

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permanent guardianship violated the ICPC. 7 Mother
acknowledges that this issue was not preserved and asks us to
review it for plain error or, alternatively, for ineffective assistance
of counsel. “Claims for plain error and ineffective assistance of
counsel present questions of law, which we evaluate for
correctness.” State v. Samora, 2022 UT App 7, ¶ 16, 504 P.3d 195,
cert. denied, 525 P.3d 1254 (Utah 2022). Second, Mother asserts that
in determining that she was unfit, the court failed to engage in a
statutorily mandated protocol. “The proper interpretation and
application of a statute is a question of law which we review for
correctness.” McFarland v. McFarland, 2021 UT App 58, ¶ 19, 493
P.3d 1146 (quotation simplified).

ANALYSIS

I. The Probate Guardianship

¶33 Mother raises several challenges to the probate
guardianship. Specifically, she argues that the guardianship was
void because (i) Godmother was not given notice of the hearing
on Guardians’ guardianship petition, (ii) Mother was unable to
participate at the hearing, (iii) the probate court did not address
Mother’s post-hearing letter objecting to the probate
guardianship, and (iv) “the probate court ignored Mother’s
parental presumption and right to designate a guardian.” Mother
also argues that the trial court erred in denying her motion to
terminate the probate guardianship after the probate
guardianship case and the adoption case were consolidated.

7. Mother contends that the probate guardianship also violated
the ICPC. But because, as discussed in Part I below, her challenges
to the probate guardianship are moot, we limit our review of the
ICPC issue to the argument pertaining to the permanent
guardianship.

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¶34 Before we can address the merits of Mother’s arguments,
we must address whether they are moot. See Ramos v. Cobblestone
Centre, 2020 UT 55, ¶ 22, 472 P.3d 910 (stating that “mootness is a
threshold determination”). The mootness doctrine “is a
constitutional principle limiting our exercise of judicial power
under article VIII of the Utah Constitution.” Transportation All.
Bank v. International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171
(quotation simplified). It “is not a simple matter of judicial
convenience or an ascetic act of discretion.” Id. (quotation
simplified). “The defining feature of a moot controversy is the lack
of capacity for the court to order a remedy that will have a
meaningful impact on the practical positions of the parties.” Utah
Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75,
¶ 24, 289 P.3d 582. In other words, a case is moot when “the
parties’ interest in [the case’s] resolution is purely academic.” Id.
See Transportation All. Bank, 2017 UT 55, ¶ 15 (“A case may be
mooted on appeal if the relief requested is rendered impossible or
of no legal effect.”) (quotation simplified).

¶35 Here, the trial court held that Mother’s motion to terminate
the probate guardianship was moot because the court was also
deciding whether Mother’s parental rights should be terminated.
And ultimately, the probate guardianship was replaced with the
permanent guardianship. On appeal, Mother contends that her
challenges to the probate guardianship are not moot because the
failure to terminate that guardianship “infected” the trial court’s
findings supporting the permanent guardianship. 8 Specifically,
Mother asserts that the probate guardianship contributed to the
trial court’s findings that Grandmother did not observe a bond
between Mother and Child during their first supervised in-person

8. Mother has not argued that an exception to the mootness
doctrine applies to this case. See State v. Jones, 2024 UT App 13, ¶ 4,
544 P.3d 1043 (discussing the exceptions to the mootness
doctrine).

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visit, although Child was becoming more comfortable with
Mother with each subsequent visit; 9 that Child had developed
strong bonds with Guardians and their children to the point that
Child considered them her family; that Guardians provided Child
with a “permanent, stable, and healthy home”; and that Child was
“thriving” in Guardians’ care. Mother contends that but for the
probate guardianship, Child would not have been placed with
Guardians and never would have developed the strong bond the
trial court relied on in granting the permanent guardianship. She
asserts that the trial court “completely ignored these ill-gotten
gains in its findings.”

¶36 Our Supreme Court’s recent decision, In re A.H., 2024 UT
26, 554 P.3d 969, addressed this same basic issue. In that case, the
Division of Child and Family Services (DCFS) removed seven
siblings from their parents’ care and placed them in foster care. Id.
¶¶ 6, 8–9. At one point, the possibility of all seven children being
placed with their grandparents was raised. Id. ¶ 10. But because
the grandparents lived out-of-state, the juvenile court ordered
DCFS to begin the ICPC process in July 2019. Id. ¶¶ 10–11. DCFS
did not actually begin the process until three months later, and
the grandparents were not approved for placement until October
2020—the same month that trial on the termination of the parents’
parental rights commenced. Id. ¶¶ 11–12. In the meantime, the
two youngest children were placed with a foster family separate
from their siblings, id. ¶ 9, and did not have regular visitation with
their siblings, id. ¶ 53. As a result, the bonds between the two
youngest children and their siblings deteriorated. Id.

¶37 Following the termination trial, the juvenile court
concluded that it was in the two youngest children’s best interest
to be adopted by their foster family, id. ¶ 27, and, in accordance

9. The trial court also found that the bond between Mother and
Child had been severed due to Mother’s relapse and resulting
incarceration.

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with the parties’ stipulation, in the older children’s best interest to
be placed under the permanent guardianship of their
grandparents, id. ¶¶ 12, 22. The court based its decision, in
relevant part, on the strong bond the youngest children had
developed with their foster parents and their foster siblings and
the fact that the children “had more in common with their foster
siblings than with their biological siblings.” Id. ¶ 23. In contrast,
the grandparents were “biological, legal, and factual strangers” to
the youngest children, id. ¶ 24 (quotation simplified), and the
separation caused the children’s bonds with their older siblings
“to deteriorate to the point that they were little more than
biological,” id. ¶ 62. The court further found that breaking the
children’s bond with their foster family by placing them “with
their grandparents and biological siblings would be very
detrimental to them and would put them at unnecessary risk for
future emotional and mental health issues.” Id. ¶ 23 (quotation
simplified).

¶38 On appeal, this court reversed the juvenile court’s
termination decision on the ground that the court’s “best-interest
determination was against the clear weight of the evidence
presented at trial.” In re A.H., 2022 UT App 114, ¶ 57, 518 P.3d 993,
rev’d, 2024 UT 26. This conclusion was based, in part, on the
consideration that the deterioration of sibling bonds was “largely
the result of decisions made by DCFS and the court during the
pendency of these proceedings.” Id. ¶ 41. This court cautioned
that “a court must be careful not to ascribe too much weight to
circumstances that are of the court’s own making.” Id.

¶39 On certiorari, our Supreme Court reversed this court’s
decision. In re A.H., 2024 UT 26, ¶ 73. The Court instructed
that the best-interest inquiry “is to be conducted in present-tense
fashion, with the effective date of the inquiry being the date of
the hearing, trial, or other judicial determination.” Id. ¶ 55
(quotation simplified). See id. ¶ 57 (stating that the juvenile court’s
“job is to ask: ‘what outcome is in the child’s best interest now?’”)

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(emphasis in original; quotation simplified). Due to the
“present-tense format” of the best-interest inquiry, “a court’s
ability to assess the past” is limited, id. ¶ 56, and the court
“should not be unduly swayed by considerations of whether
past decisions should have been made differently,” id. ¶ 61. See id.
¶ 56 (stating that “the best interest analysis must focus on the
children and their current circumstances”—not on “[w]hether
either would have been different in some other hypothetical
situation,” nor on “who is to blame for the present situation”).
Accordingly, the Court held that this court “erred by allowing
its review to be influenced by its belief that DCFS and the
juvenile court were to blame for the deteriorated sibling bonds.”
Id. ¶ 61.

¶40 In light of our Supreme Court’s recent decision, In re A.H.,
we reject Mother’s contention that her challenges to the probate
guardianship are not moot because that guardianship set the
stage for the trial court’s later findings regarding Child’s
deteriorated bond with Mother and Child’s strong bond with
Guardians and their family. Even if we were to agree with Mother
that the probate guardianship was improperly entered (a
determination that, to be clear, we do not make), such a holding
would have no effect on our review of the permanent
guardianship given our Supreme Court’s directive that our
review should focus on Child’s best interest at the time of trial, id.
¶¶ 55–57, and that our review “should not be unduly swayed by
considerations of whether past decisions should have been made
differently,” id. ¶ 61.

¶41 In sum, a holding that the probate guardianship was
flawed and should have been terminated would not “have a
meaningful impact on the practical positions of the parties.” Utah
Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75,
¶ 24, 289 P.3d 582. Mother’s challenges to the probate
guardianship are therefore moot, and we lack judicial authority to
reach the merits of her arguments.

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II. The Permanent Guardianship

A. The ICPC

¶42 The ICPC is a compact among all fifty states, the District of
Columbia, and the U.S. Virgin Islands “to cooperate with each
other in the interstate placement of children.” Utah Code Ann.
§ 80-2-905 art. I (LexisNexis 2022). 10 See In re adoption of B.H., 2020
UT 64, ¶ 54 & n.14, 474 P.3d 981. The purpose of the ICPC is to
ensure that children requiring placement “receive 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.” Utah Code
Ann. § 80-2-905 art. I(1). The ICPC allows the proper authorities
of the receiving state to “have full opportunity to ascertain the
circumstances of the proposed placement, thereby promoting full
compliance with applicable requirements for the protection of the
child”; allows the proper authorities of the sending state to
“obtain the most complete information on the basis of which to
evaluate a projected placement before it is made”; and promotes
“[a]ppropriate jurisdictional arrangements for the care of the
children.” Id. § 80-2-905 art. I(2)–(4).

¶43 Mother argues that the permanent guardianship is void
because the trial court granted Guardians, who live in Idaho,
permanent guardianship of Child without first complying with
ICPC requirements. Because this issue is unpreserved, Mother

10. Since the time of trial, the relevant provisions of the Utah Code
relating to both the ICPC and the termination of parental rights,
addressed in Part II.B., have been renumbered. Because the
provisions currently in effect do not materially differ from those
in effect at the time of trial, we cite the current version of the code
for convenience.

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asks us to review it for plain error and ineffective assistance of
counsel.

1. Plain Error

¶44 “To demonstrate plain error, a [party] must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.” 11 In re K.S., 2022 UT App
68, ¶ 22, 512 P.3d 497 (quotation simplified), cert. denied, 525 P.3d
1262 (Utah 2022). Here, the trial court did not plainly err because
any alleged error in not ensuring compliance with the ICPC was
not obvious.

¶45 The ICPC directs that

[n]o sending agency shall send, bring, or cause to be
sent or brought into any other party state any child
for placement in foster care or as a preliminary to a
possible adoption unless the sending agency shall
comply with each and every requirement set forth
in this article and with the applicable laws of the
receiving state governing the placement of children
therein.

Utah Code Ann. § 80-2-905 art. III(1) (LexisNexis 2022) (emphasis
added). See also id. § 80-2-905 art. III(2) (stating that for any child

11. Although plain error review is generally not available in civil
cases, see Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23,
¶ 44, 507 P.3d 357, it remains unresolved whether it is available in
cases involving parental rights, see id. ¶ 42 n.10. Because neither
party challenges the applicability of plain error review, and
because we ultimately hold that the trial court did not plainly err,
we need not resolve this question here. See In re K.S., 2022 UT App
68, ¶ 22 n.7, 512 P.3d 497, cert. denied, 525 P.3d 1262 (Utah 2022);
Miner v. Miner, 2021 UT App 77, ¶ 11 n.3, 496 P.3d 242.

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being “sent or brought into a receiving state for placement in foster
care or as a preliminary to a possible adoption, . . . [t]he child shall not
be sent, brought, or caused to be sent or brought into the receiving
state until the appropriate public authorities in the receiving state
shall notify the sending agency, in writing, to the effect that the
proposed placement does not appear to be contrary to the
interests of the child”) (emphasis added). Under its plain terms,
the ICPC applies when a child is sent to another state for
“placement in foster care or as a preliminary to a possible
adoption.” Id. § 80-2-905 art. III(1), (2). Moreover, “placement” is
defined, in relevant part, as “the arrangement for the care of a
child in a family free, adoptive, or boarding home, or in a child-
caring agency or institution.” Id. § 80-2-905 art. II(4). And “a court
of a party state” qualifies as a “sending agency.” Id. § 80-2-905 art.
II(2).

¶46 Here, the trial court, acting as the “sending agency,”
entered an order granting permanent guardianship of Child to
Guardians—her aunt and uncle. Facially, it is unclear whether the
permanent guardianship with out-of-state relatives constitutes a
“placement in foster care” or “a preliminary to a possible
adoption.” Mother’s argument on this point in her opening brief
is limited to the assertion that “[w]hile the [ICPC] specifically
refers to adoptions, its provisions apply to all out-of-state custody
transfers of children” and that “Utah appellate courts have
examined several cases of ICPC compliance in conjunction with
custody-specific cases.” She then cites three cases—In re R.G., 2023
UT App 144, 540 P.3d 1148, cert. denied, 544 P.3d 459 (Utah 2024);
In re A.H., 2022 UT App 114, 518 P.3d 993, rev’d, 2024 UT 26, 554
P.3d 969; and In re K.S., 2022 UT App 68—in which the ICPC was
complied with before a child was sent to live with an out-of-state
relative. But none of these cases directly addressed whether the
ICPC applied to such situations. Rather, the ICPC was complied
with in the proceedings before the trial court and, with the
exception of In re K.S., the applicability of the ICPC was not raised

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on appeal. 12 See In re R.G., 2023 UT App 144, ¶ 6; In re A.H., 2022
UT App 114, ¶ 14; In re K.S., 2022 UT App 68, ¶ 11. See also In re
A.H., 2024 UT 26, ¶ 10. And as for In re K.S., this court did not
reach the merits of the appellant’s challenge regarding the
applicability of the ICPC.

¶47 As discussed in In re K.S., an out-of-state father challenged
the juvenile court’s decision to order “an expedited ICPC” instead
of immediately placing his children with him after they had been
removed from their mother’s custody. 2022 UT App 68, ¶ 34
(quotation simplified). He argued “that the plain language of the
ICPC indicates that its requirements apply only to placements for
‘foster care’ or for purposes of facilitating an ‘adoption,’ and not
to placements with a noncustodial parent.” Id. ¶ 35. This court
recognized “a sharp split” among other jurisdictions that had
addressed that question, id. ¶¶ 35–37, but we did not ultimately
decide the issue, in part because it was not preserved and the
father had not demonstrated plain error, id. ¶ 38. Specifically, this
court held that because “no Utah appellate court has yet offered
an interpretation of the ICPC in [that] context, and courts in other
jurisdictions are sharply divided” on the issue, any alleged error

12. In our opinion in In re R.G., 2023 UT App 144, 540 P.3d 1148,
cert. denied, 544 P.3d 459 (Utah 2024), this court assumed, without
analysis, that “an approved ICPC is a precursor to any out-of-state
placement.” Id. ¶ 28. Nevertheless, this court’s decision did not
turn on the applicability of the ICPC. Rather, this court affirmed
on the ground that regardless of the outcome of the ICPC, the
juvenile court’s best-interest analysis was sufficient to foreclose
placement with the out-of-state relative. Id.
Similarly, on certiorari, our Supreme Court stated in In re A.H.,
2024 UT 26, 554 P.3d 969, that the juvenile court ordered
compliance with the ICPC because placing the children with their
out-of-state grandparents “required compliance with the [ICPC].”
Id. ¶ 10. But again, as discussed in detail in part Part I above, the
applicability of the ICPC was not at issue in that case.

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by the juvenile court in ordering “an expedited ICPC” was not
obvious. Id. ¶ 38 (quotation simplified).

¶48 Similarly, Utah appellate courts have not addressed
whether a permanent guardianship with out-of-state relatives
constitutes “placement with foster care.” 13 Utah Code Ann.
§ 80-2-905 art. III(1). The ICPC itself does not offer a ready answer.
As concerns “placement in foster care,” the ICPC’s definition of
“placement” contemplates, in pertinent part, “a family free” home
or a “boarding home.” Id. § 80-2-905 art. II(4). But the ICPC does
not define either of these terms. The ICPC’s regulations, which are
promulgated by the Association of Administrators of the ICPC, 14
offer definitions, but it could readily be argued that some of those
definitions only serve to muddy the issue even further. Also, an
additional issue arises regarding whether, and if so, to what
extent, the regulations apply if they contradict the language of the
ICPC.

13. As concerns “a preliminary to a possible adoption,” Utah Code
Ann. § 80-2-905 art. III(1) (LexisNexis 2022), the trial court here
expressly held that adoption was not strictly necessary or in
Child’s best interest and entered the permanent guardianship as
an alternative to the adoption Guardians sought—not as a
preliminary to adoption.

14. The ICPC provides,
The executive head of each jurisdiction party to this
compact shall designate an officer who shall be
general coordinator of activities under this compact
in his jurisdiction and who, acting jointly with like
officers of the party jurisdictions, shall have power
to promulgate rules and regulations to carry out
more effectively the terms and provisions of this
compact.
Utah Code Ann. § 80-2-905 art. VII (LexisNexis 2022).

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¶49 For example, the regulations contradictorily define “family
free” as “the home of a relative or unrelated individual whether or
not the placement recipient receives compensation for care or
maintenance of the child.” American Public Human Services
Association, ICPC Regulations, Reg. No. 3(4)(24),
https://aphsa.org/wp-content/uploads/2024/10/ICPC-Regulations
_TOC.pdf [https://perma.cc/VR5B-U3VG] (emphasis added). If
the definition encompasses both relatives and non-relatives, the
regulation seems to be at odds with the ICPC’s reference to
“family free.” Additionally, that definition also indicates that it
“has the same meaning as boarding home.” Id. See id. Reg. No.
3(4)(8) (defining “[b]oarding home” and indicating that it “has
[the] same meaning as family free”). These identical definitions
run contrary to the well-accepted principle that “when
interpreting a contract we attempt to give effect to each provision,
and we look for a reading that harmonizes the provisions and
avoids rendering any provision meaningless” and that “an
interpretation which gives effect to all provisions of the contract
is preferred to one which renders part of the writing superfluous,
useless, or inexplicable.” UDAK Props. LLC v. Canyon Creek Com.
Center LLC, 2021 UT App 16, ¶ 18, 482 P.3d 841 (quotation
simplified), cert. denied, 509 P.3d 768 (Utah 2022). See generally
Tarrant Reg’l Water Dist. v. Herrmann, 569 U.S. 614, 628 (2013)
(“Interstate compacts are construed as contracts under the
principles of contract law.”).

¶50 In addition, the regulations define “foster care” as “24-hour
substitute care for children placed away from their parents or
guardians and for whom the state agency has placement and care
responsibility,” which “includes, but is not limited to, placements
in foster family homes, foster homes of relatives, group homes,
emergency shelters, residential facilities, child care institutions
and pre-adoptive homes.” American Public Human Services
Association, ICPC Regulations, Reg. No. 3(4)(26),
https://aphsa.org/wp-content/uploads/2024/10/ICPC-Regulations
_TOC.pdf [https://perma.cc/VR5B-U3VG] (emphasis added). For

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the same reason discussed above, the inclusion of “foster homes
of relatives” in the definition potentially conflicts with the phrase
“placement in foster care” where “placement” contemplates the
child living in a “family free” home. Utah Code Ann. § 80-2-905
arts. II(4) & III(1).

¶51 Additionally, the ICPC expressly does not apply to “[t]he
sending or bringing of a child into a receiving state by his parent,
step-parent, grandparent, adult brother or sister, adult uncle or
aunt, or his guardian and leaving the child with any such relative
or nonagency guardian in the receiving state.” Id. § 80-2-905 art.
VIII(1). In other words, the ICPC does not apply when any of the
listed relatives send the child out-of-state of their own accord.
Although this provision is inapplicable here because the trial
court acted as the “sending agency,” the regulations have
expanded this provision by directing that “[p]lacement of a child
requires compliance with the [ICPC] if such placement is . . . . with
parents and relatives when a parent or relative is not making the
placement.” American Public Human Services Association, ICPC
Regulations, Reg. No. 3(2)(a)(3), https://aphsa.org/wp-
content/uploads/2024/10/ICPC-Regulations_TOC.pdf [https://per
ma.cc/VR5B-U3VG]. This regulation appears to assume that
anything falling outside of the exceptions listed in article VIII(1)
are governed by the ICPC, regardless of article III’s provision that
the ICPC applies to children sent out of state “for placement in
foster care or as a preliminary to adoption.” Utah Code Ann.
§ 80-2-905 art. III(1). This regulation also potentially conflicts with
the ICPC’s definition of “placement,” which expressly
contemplates “family free” homes. Id. § 80-2-905 art. II(4).

¶52 Believe it or not, this is not a comprehensive discussion of
the many considerations relating to the determination of whether
a permanent guardianship with an out-of-state relative—
specifically an adult uncle and aunt—falls under the ambit of the
ICPC. And again, we do not answer this question here. As
discussed above, a key element of a successful plain error

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challenge is that any alleged error must have been obvious. See In
re K.S., 2022 UT App 68, ¶ 22, 512 P.3d 492, cert. denied, 525 P.3d
1262 (Utah 2022). “For an error to be obvious to the trial court, the
party arguing for [plain error] must show that the law governing
the error was clear or plainly settled at the time the alleged error
was made.” State v. Johnson, 2017 UT 76, ¶ 21, 416 P.3d 443
(quotation simplified).

¶53 Notwithstanding the problems outlined in the foregoing
paragraphs, Mother’s argument that the error was obvious is
limited to asserting that article III(2)(f) of the ICPC is clear that
“[c]ourts must comply with the ICPC when transferring custody
to an individual or agency that is out of state.” But Article III(2)(f)
is not as expansive as Mother asserts. It states,

The child shall not be sent, brought, or caused to be
sent or brought into the receiving state until the
appropriate public authorities in the receiving state
shall notify the sending agency, in writing, to the
effect that the proposed placement does not appear
to be contrary to the interests of the child.

Utah Code Ann. § 80-2-905 art. III(2)(f). Earlier on, article III
clarifies that “[t]he child” to which article III(2)(f) refers is “any
child to be sent or brought into a receiving state for placement in
foster care or as a preliminary to a possible adoption.” Id. § 80-2-905 art.
III(2) (emphasis added). Accordingly, article III(2)(f) is not a silver
bullet that resolves the rather complicated question of whether
the permanent guardianship with Guardians constituted a
“placement in foster care.”

¶54 Mother has not meaningfully addressed this question on
appeal. As discussed above, Mother’s reliance on three Utah cases
was insufficient to establish that this issue has been resolved by
Utah courts. To the contrary, Utah appellate courts have not
previously decided this issue. Mother also has not addressed
whether courts of other jurisdictions have addressed this issue,

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In re D.A.T.R.

much less argued that they are all in agreement and that no split
exists among them. See In re K.S., 2022 UT App 68, ¶ 38 (discussing
the split in authority as a relevant consideration regarding
whether an error is obvious). For these reasons, Mother has not
carried her burden in arguing that any alleged error was obvious,
and Mother’s plain error challenge fails.

2. Ineffective Assistance of Counsel

¶55 To succeed on a claim of ineffective assistance of counsel,
the appellant must show both that (1) trial counsel’s “performance
was deficient” and (2) “the deficient performance prejudiced the
defense.” See Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim.” State v. Samora, 2023 UT 5,
¶ 21, 529 P.3d 330 (quotation simplified). Here, because we hold
that Mother’s court-appointed counsel did not perform
deficiently in not requesting ICPC compliance, Mother’s claim of
ineffective assistance fails, and we need not address the prejudice
prong of the inquiry.

¶56 “Judicial scrutiny of counsel’s performance” is “highly
deferential,” meaning the appellant must overcome the “strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
Accordingly, “even if an omission is inadvertent and not due to a
purposeful strategy, relief is not automatic.” State v. Ray, 2020 UT
12, ¶ 34, 469 P.3d 871 (quotation simplified). Rather, “even if a
court concludes that counsel made an error, the ultimate question
is always whether, considering all the circumstances, counsel’s
acts or omissions were objectively unreasonable.” State v. Scott,
2020 UT 13, ¶ 36, 462 P.3d 350.

¶57 Mother argues that “counsel’s performance was deficient
for failing to raise an obvious statutory bar to the district court’s
order of permanent custody and guardianship.” She further
asserts that “[a]ny counsel representing parents in guardianship

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actions should be aware that all out of state transfers of a child are
subject to procedural protections under the ICPC.” Mother’s
argument is entirely premised on the assertion that the ICPC’s
application to permanent guardianships with out-of-state
relatives is obvious and that counsel therefore performed
deficiently by not raising such an obvious statutory prerequisite
to the permanent guardianship. But, for the reasons discussed in
Part II.A.1 above, the ICPC’s application to the situation
presented in this case was far from obvious. Accordingly,
Mother’s ineffective assistance claim likewise fails.

B. Unfitness

¶58 Parental rights may be terminated “for the purpose of
facilitating the adoption” of a child, Utah Code Ann.
§ 78B-6-112(1) (LexisNexis 2022), only if the district court finds
both that “(1) one or more of the statutory grounds for termination
are present and (2) termination of the parent’s rights is in the best
interests of the child,” In re adoption of J.E., 2024 UT App 34, ¶ 10,
546 P.3d 972 (quotation simplified). See Utah Code Ann.
§ 78B-6-112(5)(e) (stating that a court may terminate parental
rights if “the individual’s parental rights are terminated on
grounds described in Title 80, Chapter 4, Termination and
Restoration of Parental Rights, and termination is in the best
interests of the child”). The statutory grounds for termination
under the first prong are currently located in Utah Code section
80-4-301, one of which is when “the parent is unfit or
incompetent.” See Utah Code Ann. § 80-4-301(1)(c) (LexisNexis
2022). Here, the trial court found that Mother was “unfit because
of her habitual use of dangerous drugs that render her unable to
care for” Child. 15 See id. § 80-4-302(2)(c) (Supp. 2023) (stating that

15. Here, under the second prong, the trial court found that
termination of Mother’s parental rights was not strictly necessary
to promote Child’s best interest and ordered a permanent
(continued…)

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In re D.A.T.R.

in determining whether a parent is unfit, the court “shall consider
. . . habitual or excessive use of intoxicating liquors, controlled
substances, or dangerous drugs that render the parent unable to
care for the child”).

¶59 Mother argues that the trial court erred in finding that a
statutory ground for termination—i.e., unfitness—existed
because it did not follow the statutory mandate that

[i]f a child is not in the physical custody of the
child’s parent or parents, the juvenile court, in
determining whether parental rights should be
terminated, shall consider . . . the effort the child’s
parent or parents have made to adjust the parent’s
or parents’ circumstances, conduct, or conditions to
make it in the child’s best interest to return the child
to the child’s home after a reasonable length of time.

Id. § 80-4-303(1)(b) (2022) (emphasis added). In light of this statute,
Mother argues that the trial court erred by focusing on her past
struggles with substance abuse without considering her most
recent recovery efforts.

¶60 Even accepting Mother’s characterization of the trial
court’s unfitness analysis as correct, this argument nonetheless
fails. By its plain terms, section 80-4-303(1)(b) applies to the
best-interest determination—not to the determination whether
statutory grounds for termination exist. See In re J.A.L., 2022 UT
12, ¶ 20, 506 P.3d 606 (stating that “in a case where the child is not
in the parent’s physical custody, the court must consider a set of
specific considerations in assessing whether termination is strictly

guardianship. Mother does not challenge the trial court’s best
interest analysis, much less argue that the best interest analysis
under the Adoption Act differs from the analysis set forth in Utah
Code section 80-4-301(1).

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In re D.A.T.R.

necessary in the best interest of children,” including the consideration
currently set forth in section 80-4-303(1)(b)) (emphasis added;
quotation simplified). And here, notwithstanding its conclusion
that there were grounds for termination, the court determined it
was not in Child’s best interest to terminate Mother’s parental
rights. Accordingly, the trial court did not err by not applying
section 80-4-303(1)(b) to its analysis regarding whether Mother
was unfit.

CONCLUSION

¶61 Mother’s arguments challenging the probate guardianship
are moot, and we therefore do not reach their merits. Mother has
not shown plain error or ineffective assistance of counsel relating
to any alleged failure to comply with the ICPC. The trial court also
did not err in concluding that Mother was unfit.

¶62 Affirmed.

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