In re R.D...

2024 UT App 91

THE UTAH COURT OF APPEALS

IN THE INTEREST OF R.D. AND Z.J.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

K.J.,
Appellant,
v.
N.J. AND A.J.,
Appellees.

Opinion
No. 20220798-CA
Filed June 27, 2024

Second District Juvenile Court, Ogden Department
The Honorable Debra J. Jensen
No. 1174368

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
In re R.D.

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.

BACKGROUND 1

¶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

1. We limit our discussion to “those background facts necessary
to resolve the issues on appeal.” Blosch v. Natixis Real Estate Cap.,
Inc., 2013 UT App 214, ¶ 2 n.2, 311 P.3d 1042 (cleaned up). And
we recite the evidence in a light most favorable to the juvenile
court’s findings. See In re adoption of B.H., 2020 UT 64, n.2, 474 P.3d
981.

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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 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.

¶7 About a week later, DCFS spoke with Father, who was at
this point incarcerated. He admitted that there had been a
“scuffle” in which he had “knocked” Mother in the nose but
claimed there had only been one physical altercation between the
two of them.

¶8 In May 2019, DCFS initiated proceedings, pursuant to Utah
Code section 80-3-201(1), by filing a petition for protective
supervision services (PSS petition) that alleged the Children were

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abused, neglected, or dependent. 2 Mother and Father both
entered rule 34(e) pleas in response to the allegations contained in
the PSS petition. See Utah R. Juv. P. 34(e) (“A respondent may
answer by admitting or denying the specific allegations of the
petition, or by declining to admit or deny the allegations.
Allegations not specifically denied by a respondent shall be
deemed true.”).

¶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.

2. While courts and practitioners frequently refer to a petition for
protective supervision services, see, e.g., In re M.J., 2011 UT App
398, ¶ 2, 266 P.3d 850; In re T.M., 2003 UT App 191, ¶ 2, 73 P.3d
959, the term does not formally exist in the juvenile code. Instead,
Utah Code section 80-3-201(1) states that “any interested person
may file an abuse, neglect, or dependency petition.” The PSS
petition filed by DCFS in this case referenced section 78A-6-304,
which has since been renumbered and amended as section 80-3-
201. See Act of Mar. 3, 2021, ch. 261, § 64, 2021 Utah Laws 1752,
1799–800.

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¶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

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there had been a substantial and material change in her
circumstances and requested the Children be returned to her
custody. In December 2020, the court released DCFS from the
case.

¶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 Utah Code §§ 78B-
13-101 to -318, to enter custody orders in favor of Grandparents.
Whether a court has jurisdiction is a matter of law reviewed for
correctness. In re adoption of B.B., 2017 UT 59, ¶ 16, 417 P.3d 1.

¶16 Next, Mother argues that the juvenile court violated the
Interstate Compact on the Placement of Children (ICPC), see
generally Utah Code §§ 80-2-901 to -910, by failing to ensure that
Grandparents were fit for custody of the Children prior to
placement. “The proper interpretation and application of a statute
is a question of law which we review for correctness.” In re
adoption of B.H., 2019 UT App 103, ¶ 9, 447 P.3d 110 (cleaned up),
aff’d, 2020 UT 64, 474 P.3d 981.

3. The court found that while Father had met the burden of proof
showing a change in circumstances, a change of custody was
nevertheless in the best interest of the Children.

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¶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.

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Utah Code § 78B-13-201(1)(a). In developing this argument,
Mother points to the definition of a child custody proceeding
found in the Utah Code:

“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.

Id. § 78B-13-102(4).

¶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 and August 2020,
“Texas was the ‘home state’ of the Children under” the UCCJEA
and Utah did not have jurisdiction to consider Grandparents’
custody petition.

¶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 id. § 78B-13-
201(1)(a) (“[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
. . . .”). And a “child custody proceeding” includes “a proceeding

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in which . . . parent-time with respect to a child is an issue.” See id.
§ 78B-13-102(4) (emphasis added).

¶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

4. A custody determination is implicit in a petition asking a
juvenile court for a finding of abuse, which is precisely what
DCFS presented here. The statute does not require a talismanic
invocation of the words “custody” or “parent-time,” because it is
presumed that once a finding of abuse is reached, custody or
parent-time will naturally be addressed. Indeed, section 80-3-405
states that the “juvenile court may vest custody of an abused,
neglected, or dependent minor in [DCFS] or any other
appropriate person.” See Utah Code § 80-3-405(1)–(2).
Moreover, that DCFS did not mention “custody” or
“parent-time” in the PSS petition did not deprive the juvenile
court of jurisdiction, because the petition is not where the issue
(continued…)

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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.” Id. § 78B-13-102(4).
Second, in that proceeding, “parent-time with respect to [the
Children was] an issue.” Id. Accordingly, under the terms of the
UCCJEA, the PSS petition gave rise to a child custody
determination because parent-time—specifically with respect to
Father—was “an issue.” Id. And the juvenile court had
jurisdiction from that time on because Utah was the “home state
of the [Children] on the date of the commencement” of the PSS
petition and resulting proceeding. See id. § 78B-13-201(1)(a).

¶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

must arise for a proceeding to become a “[c]hild custody
proceeding.” See id. § 78B-13-102(4). The statute merely says that
a child custody proceeding “includes a proceeding for,” among
other things, “neglect, abuse, dependency,” or “protection from
domestic violence, in which the issue” of “legal custody, physical
custody, or parent-time with respect to a child . . . . may appear.”
Id.

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UT App 237, 414 P.3d 552, where we stated that “once a state
makes an initial child custody determination, that state obtains
exclusive, continuing jurisdiction, which exists until that state
relinquishes or is divested of its exclusive jurisdiction in
accordance with the UCCJEA or a similar act.” Id. ¶ 16 (cleaned
up). Because the juvenile court never relinquished its jurisdiction
over the case here, “whether pursuant to section 207 of the
UCCJEA or any other statute,” it retained jurisdiction over the
Children. See id.; see also Utah Code § 78B-13-207(1) (“A court of
this state that has jurisdiction under this chapter to make a child
custody determination may decline to exercise its jurisdiction at
any time if it determines that it is an inconvenient forum under
the circumstances and that a court of another state is a more
appropriate forum.”).

¶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

5. Grandparents argue that this challenge is unpreserved, an
assertion that has some merit. However, “if the merits of a claim
can easily be resolved in favor of the party asserting that the claim
was not preserved, we readily may opt to do so without
addressing preservation.” State v. Kitches, 2021 UT App 24, ¶ 28,
484 P.3d 415 (cleaned up). “[B]ecause we can easily dispose of”
Mother’s ICPC claim on its “merits, we choose to exercise our
(continued…)

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¶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.” Utah Code § 80-2-905 art. I(1). The
ICPC also allows the “appropriate authorities in a state where a
child is to be placed [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.” Id. § 80-2-905 art. I(2). Moreover, the ICPC ensures that the
“proper authorities of the state from which the placement is made
may obtain the most complete information on the basis of which
to evaluate a projected placement before it is made.” Id. § 80-2-905
art. I(3).

¶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.

Id. § 80-2-905 art. VIII(1). Thus, the ICPC exempts parents from
the requirement of ascertaining the suitability of the placement if
the parent is sending the child to one of the identified relatives or
guardians.

prerogative to simply assume that [it was] preserved and proceed
to consideration of the merits.” Id.

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¶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 live with
Grandparents long before they petitioned for custody.
Accordingly, Mother’s second claim of error fails.

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

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fundamental right of parenting one’s children); see also Utah Code
§ 78B-22-201(1)(b). “To prevail on an ineffective assistance of
counsel claim, Mother must show that (1) Counsel’s performance
was deficient and (2) this deficient performance prejudiced the
defense. Because failure to establish either prong of the test is fatal
to an ineffective assistance of counsel claim, we are free to address
Mother’s claims under either prong.” In re C.M.R., 2020 UT App
114, ¶ 19, 473 P.3d 184 (cleaned up). For the deficiency prong,
Mother must demonstrate “that, considering the record as a
whole, Counsel’s performance was objectively unreasonable.” In
re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. “In other words,
Mother must show that . . . Counsel rendered a deficient
performance in some demonstrable manner, and that Counsel’s
performance fell below an objective standard of reasonable
professional judgment.” In re C.M.R., 2020 UT App 114, ¶ 20
(cleaned up).

¶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

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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.

¶37 Because Counsel had a strategically reasonable basis for
not calling the therapist as a witness, Mother’s ineffective
assistance claim necessarily fails.

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 Utah Code § 78A-6-

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357(4)(a), rather than considering the more demanding parental-
presumption standard. The parental presumption means that
“where one party to [a custody dispute] is a nonparent, there is a
presumption in favor of the natural parent, even if an ordinary
best-interest inquiry would come out in favor of the nonparent.”
In re A.T., 2020 UT App 50, ¶ 12, 464 P.3d 173 (cleaned up).

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

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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 Utah Code § 80-3-405(1)–
(2) (“Upon adjudication . . . , [t]he juvenile court may vest custody
of an abused, neglected, or dependent minor in [DCFS] or any
other appropriate person . . . .”). Thus, Mother’s parental
presumption didn’t apply because the juvenile court exercised
continuing jurisdiction over the Children after the adjudication,
which allowed the court “to impose any of the dispositional
choices available to it.” See In re M.J., 2011 UT App 398, ¶ 56, 266
P.3d 850; see also In re S.A., 2016 UT App 191, ¶ 6, 382 P.3d 642
(“The adjudication of a child as dependent, neglected, or abused
forms the basis for juvenile court jurisdiction, thereby making all
of the dispositional options . . . available to that court.”).

¶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 same standard to her as well. But because
Mother was not entitled to the parental presumption, the question
becomes what standard of proof the juvenile court should have
applied to Mother’s petition to modify or restore custody.

¶43 Mother’s petition to modify or restore custody was
considered along with Grandparents’ petition for custody. The

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In re R.D.

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 Utah R. Juv. P. 47(b)(2)–(3), (c)
(providing the process for modification of prior dispositional
orders). And the burden of proof employed in imposing “any of
the dispositional choices” available to the juvenile court, In re M.J.,
2011 UT App 398, ¶ 56, is the preponderance of the evidence
standard, cf. Utah R. Juv. P. 41(c) (“[M]atters regarding child
custody, support, and visitation certified by the district court to
the juvenile court must be proved by a preponderance of the
evidence . . . .”).

¶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.

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In re R.D.

¶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 Utah
Code § 78A-6-357(3)(b) (“A parent or guardian may only petition
the juvenile court [for restoration of custody] on the ground that
a change of circumstances has occurred that requires modification
or revocation in the best interest of the child or the public.”).
Mother has not challenged the court’s finding that she has not
changed her circumstances. Nor has she made any attempt to
show how the court’s application of a less rigorous burden of
proof would have made a difference in its determination that a
consideration of the Children’s best interests was unnecessary
given the lack of the change in circumstances.

¶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

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In re R.D.

parent-time and the continued jurisdiction of the juvenile court.
Mother’s claim that the juvenile court violated the ICPC fails
because she voluntarily sent the Children to live with
Grandparents. Mother’s ineffective assistance claim falls short for
lack of deficient performance. And the parental presumption was
unavailable to Mother owing to the juvenile court’s jurisdiction
over the Children, so Mother has not demonstrated prejudice on
her burden-of-proof claim.

¶50 Affirmed.

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