In re G.C.

2025 UT App 182

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF G.C.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

S.C. AND J.H.,
Appellants,
v.
STATE OF UTAH,
Appellee.

Per Curiam Opinion
Nos. 20240512-CA and 20240524-CA
Filed December 11, 2025

Fifth District Juvenile Court, Cedar City Department
The Honorable Troy A. Little
No. 1207032

Sheleigh A. Harding, Attorney for Appellant S.C.

Alexandra Mareschal, Kirstin H. Norman, and Debra
M. Nelson, Attorneys for Appellant J.H.
Derek E. Brown and John M. Peterson,
Attorneys for Appellee
Martha Pierce, Alisha Giles, and Heath Haacke,
Guardians ad Litem

Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and AMY J. OLIVER.

PER CURIAM:

¶1 S.C. (Father) and J.H. (Mother) (collectively, Parents)
appeal the juvenile court’s permanent guardianship order and its
order denying Parents’ motion to set aside the guardianship order
under rule 60(b) of the Utah Rules of Civil Procedure. We affirm.
In re G.C.

BACKGROUND 1

¶2 G.C. (Child) was removed from Parents’ custody in 2022 at
the age of three. Child was adjudicated to be abused and
neglected as to both parents. The court ordered concurrent
permanency goals of reunification and permanent custody and
guardianship. Ten months after Child’s removal, Parents had
another child together (Sister). Sister was also removed from
Parents’ care. The two children’s cases continued on separate
permanency timelines. Both children were placed with their
uncle’s sister-in-law (Aunt).

¶3 At Child’s permanency hearing, the juvenile court
determined that it was not safe to return Child to either Mother or
Father and terminated reunification services. Thereafter, the court
entered the permanent guardianship order at issue on appeal,
appointing Aunt as Child’s permanent guardian.

¶4 The court ordered that Parents would have supervised
virtual parent-time once per month and a supervised in-person
visit four times per year for at least two hours. Aunt was also
directed to “invite Parents to sporting events, school activities,
and other events in which [Child] will participate.” The court
stated that this was the “minimal parent-time requirement” and
indicated its understanding that Aunt was “willing to do more.”
The court explained that the minimum time was fashioned to “be
sustainable for nearly 14 years, especially considering that [Aunt]
is responsible for facilitating visits with two separate parents.”
The court also ordered that Aunt “use reasonable efforts” to allow
Child to have contact with Sister and with his three other half-

1. “We recite the facts in the light most favorable to the juvenile
court findings.” In re J.M., 2020 UT App 52, n.1, 463 P.3d 66
(cleaned up).

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siblings, who are under the permanent guardianship of their
grandparents, as well as other extended family members.

¶5 Mother and Father each filed notices of appeal from the
court’s permanent guardianship order. However, they moved to
stay the appeals until Sister’s permanency status was adjudicated.
While the appeals were stayed, Sister was returned to Father’s
custody.

¶6 After the stay was lifted, Parents filed a joint motion to set
aside the guardianship order for Child under rules 60(b)(5) and
60(b)(6) of the Utah Rules of Civil Procedure. Their rule 60(b)(5)
argument asserted that it was “no longer equitable” for the order
to “have prospective application” because Sister had been
returned to Father. Their rule 60(b)(6) argument asserted that
Father regaining custody of Sister was an extraordinary
circumstance that justified relief from the guardianship order.

¶7 The State asked the court to construe the rule 60(b) motion
as a petition for restoration of custody and deny it because such
petitions are not permitted when a child is subject to a permanent
guardianship order. See Utah Code § 78A-6-357(3)(d). The court
declined to do so and analyzed the motion under rule 60(b).
However, the court denied the motion. The court concluded that
a permanent guardianship order is not an order that has
“prospective application” as that term is used in rule 60(b)(5) and
that the case did not present extraordinary circumstances that
would justify setting aside the guardianship order. Parents then
filed amended notices of appeal to challenge the court’s denial of
their rule 60(b) motion.

ISSUES AND STANDARDS OF REVIEW

¶8 Parents first assert that the juvenile court erred in
determining that a permanent guardianship order does not have

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prospective application as that term is used in rule 60(b)(5) of the
Utah Rules of Civil Procedure. Relatedly, they assert that the
juvenile court erred in determining that Father’s regaining
custody of Sister was not an extraordinary circumstance justifying
relief under rule 60(b)(5). They also challenge the court’s
determination that the guardianship order should not be set aside
under rule 60(b)(6). “Normally, we review a court’s denial of a
[rule] 60(b) motion under an abuse of discretion standard of
review.” Sanders v. Sanders, 2021 UT App 122, ¶ 4, 502 P.3d 1230
(cleaned up). Nevertheless, we review the “application of our
rules of civil procedure for correctness.” Id.

¶9 Second, Parents argue that the juvenile court should have
handled Child’s and Sister’s cases as a single case on the same
permanency timeline. They acknowledge that this issue was not
preserved and ask that we review it for plain error and ineffective
assistance of counsel. To demonstrate plain error, an appellant
must show that “(i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e., absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant.” State v. Holgate, 2000 UT 74, ¶ 13, 10
P.3d 346 (cleaned up). To demonstrate ineffective assistance, an
appellant must show, first, “that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment,” and, second, “that counsel’s deficient
performance was prejudicial—i.e., that it affected the outcome of
the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92. 2

2. Parents also seek to challenge the juvenile court’s award of
parent-time, asserting that the order was unreasonable. However,
this issue was not preserved for appeal, and Parents do not argue
that it should be reviewed under an exception to the preservation
rule. Parents assert that Father’s counsel preserved the issue by
(continued…)

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ANALYSIS

I. Rule 60(b) Motion

¶10 Rule 60(b)(5) of the Utah Rules of Civil Procedure allows a
party to seek relief from a judgment if “it is no longer equitable
that the judgment should have prospective application.” Utah R.
Civ. P. 60(b)(5). “Rule 60(b)(5) applies to any judgment that has
prospective effect but does not apply where a party seeks to alter
a judgment that remedies a past wrong.” Utah Res. Int’l, Inc. v.
Mark Techs. Corp., 2014 UT 60, ¶ 29, 342 P.3d 779 (cleaned up). In
other words, the rule “does not allow relitigation of issues that
have been resolved by the judgment. Instead, it refers to some
change in conditions that makes continued enforcement
inequitable.” Id. (cleaned up). A “judgment operates
prospectively if it requires a court to supervise changing conduct
or conditions that are provisional or tentative.” Id. (cleaned up).
Furthermore, a “court’s power of equity is only to be applied

asking the court to order in-person weekly visits. But “to preserve
an issue for appeal, the issue must be presented to the trial court
in such a way that the trial court has an opportunity to rule on
that issue.” In re K.F., 2009 UT 4, ¶ 62, 201 P.3d 985 (cleaned up).
Father’s request for weekly parent-time was not sufficient to
preserve a challenge to the reasonableness of the parent-time
ultimately awarded or the adequacy of the juvenile court’s
findings. The court was aware only that the ordered parent-time
differed from the time Father wanted to have, not that Father
considered the award to be unreasonable or the findings to be
inadequate, as Parents now assert. Because the parent-time issue
was not preserved, we are unable to review it on appeal. State v.
Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise
and argue an issue in the trial court, it has failed to preserve the
issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.”).

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under the rule when highly significant changes alter the
landscape of a judgment—for instance, subsequent legislation, a
change in the decisional law, or a change in the operative facts”—
and “the burden will be high on those seeking relief on this
ground as they must demonstrate extraordinary circumstances
justifying relief.” Id. ¶ 28 (cleaned up).

¶11 Parents argue that the permanent guardianship order is
similar to a permanent injunction, which falls within the scope of
rule 60(b)(5), because it “permanently enjoins, in a sense, a parent
from exercising . . . the right to parent their child.” They further
argue that such an order is prospective in nature because it does
not “function to remediate past wrongs” but to limit the future
relationship between the parent and child. They argue that
“[c]ontinued jurisdiction of the court is not required to make a
judgment prospective in nature” and that it is enough that the
order “functions as a permanent limitation on Parents’ rights”
and Child’s best interests “going forward.” Finally, they argue
that not permitting review under rule 60(b)(5) would
impermissibly hamper the juvenile court in its ability to do equity
and act in Child’s best interests in the long-term.

¶12 However, we agree with the juvenile court that an order of
permanent guardianship does not have “prospective
application,” as that term is used in rule 60(b)(5), because it is a
permanent order that does not require the court “to supervise
changing conduct or conditions that are provisional or tentative.”
Id. ¶ 29 (cleaned up). It serves the remedial purpose of
establishing permanency for a child who is unable to be safely
returned to the parents within the timeline set by the legislature,
see Utah Code § 80-3-409, and is an order that effects a permanent
change in the child’s status vis-à-vis the parent that is not subject
to revision, see In re A.F., 2007 UT 69, ¶ 6, 167 P.3d 1070. Here,
Child’s best interests were fully litigated at the time the court
issued the guardianship order, and the juvenile court terminated

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its jurisdiction at that time. Furthermore, the Utah Code explicitly
restricts parents from seeking to restore custody while a
permanent guardianship order exists. See Utah Code § 78A-6-
357(3)(d). Thus, it would be contrary to the legislature’s intent to
permit a parent to circumvent this restriction by seeking to set
aside a permanent guardianship order under rule 60(b)(5) based
on changed circumstances.

¶13 Even if a permanent guardianship order could be
considered to have prospective application, we agree with the
juvenile court that the circumstances presented here are not so
extraordinary that the court should have employed its equitable
powers to alter the judgment. Parents maintain that Sister being
raised by Father constitutes a sufficiently significant “change in
the operative facts” of the case to justify setting aside the decision.
However, this may be the case for many siblings as their parents’
circumstances change over time. Moreover, the fact that it may be
in one child’s best interest to return to their parent’s care does not
necessarily mean that it is in their sibling’s best interest. Each child
is an individual, whose unique permanency needs are the product
of age, experiences, and other circumstances.

¶14 Additionally, the fact that the court found that it was safe
for Sister to return to Father’s care does not make this case any
more extraordinary than a similar case not involving a sibling.
The only difference is that Sister’s case gave Father the
opportunity to create a record of his improved parenting ability—
an opportunity he would not have been given had Child not had
a sibling who was removed soon after him. As the juvenile court
observed, Child and Sibling are individuals with different child
welfare timelines, and Parents were at different stages of progress
in their reunification efforts at the time of Child’s permanency
hearing compared to Sister’s permanency hearing. Given these
circumstances, the findings at Sister’s permanency hearing do not
change the operative facts relevant to Child’s permanence, which

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was necessarily litigated within his own permanency timeline.
Accordingly, the juvenile court did not err in concluding that the
circumstances here were not sufficiently extraordinary to justify
relief under rule 60(b)(5). See Utah Res. Int’l, Inc., 2014 UT 60, ¶ 28.

¶15 The juvenile court also did not err in determining that relief
was not available under rule 60(b)(6). Rule 60(b)(6) permits relief
from judgment for “any other reason that justifies relief,” see Utah
R. Civ. P. 60(b)(6)—in other words, a reason different from those
listed in the other five subsections of the rule. Accordingly, rule
60(b)(6) “may not be relied upon if the asserted grounds for relief
fall within any other subsection of rule 60(b).” Menzies v. Galetka,
2006 UT 81, ¶ 71, 150 P.3d 480. Moreover, rule 60(b)(6) is to be
“sparingly invoked and used only in unusual and exceptional
circumstances.” 3 Id. (cleaned up).

¶16 Rule 60(b)(5) covers situations where extraordinary
circumstances resulting from a change in the law or facts make it
“no longer equitable that the judgment should have prospective
application.” Utah R. Civ. P. 60(b)(5); see also Utah Res. Int’l, Inc. v.
Mark Techs. Corp., 2014 UT 60, ¶ 28, 342 P.3d 779 (“The burden will
be high on those seeking relief on [rule 60(b)(5)] ground[s] as they
must demonstrate extraordinary circumstances justifying relief.”
(cleaned up)). While we have determined that rule 60(b)(5) does
not apply here because a guardianship order does not have
prospective application, that does not mean Parents may
alternatively bring their extraordinary circumstances argument
under rule 60(b)(6). The extraordinary circumstances alleged by
Parents under rule 60(b)(6) are the same extraordinary
circumstances alleged under rule 60(b)(5)—that Sister being

3. We see no meaningful distinction between “extraordinary
circumstances” and “exceptional circumstances” as those terms
are used in this discussion. Thus, going forward, we use the term
“extraordinary circumstances” for consistency.

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returned to Father’s custody changed the operative facts in such
an extraordinary way that the guardianship order should be set
aside. The reason rule 60(b)(5) applies only to judgments that have
prospective application is that rule 60(b) cannot be used as a
means to relitigate issues that have already been decided. Utah
Res. Int’l, 2014 UT 60, ¶ 29. There was nothing inequitable or
unjust about the guardianship order at the time it was entered,
and it would make no sense to allow parties to circumvent the
prospective application requirement of rule 60(b)(5) by appealing
to equity under rule 60(b)(6). Moreover, we have already
determined that Sister being returned to Father is not an
extraordinary circumstance to justify relief under rule 60(b)(5).
For the same reasons, this fact does not justify relief under rule
60(b)(6).

II. Plain Error and Ineffective Assistance of Counsel

¶17 Parents also argue that the juvenile court plainly erred4 by
not handling Child’s and Sister’s cases as a single case on the same
permanency timeline or, alternatively, that counsel was
ineffective for not requesting that the cases be combined.

¶18 Parents assert that it was inequitable, under the
circumstances of this case, to treat the children separately.
However, they recognize that “the child welfare statutes do not
provide direction on how to handle a child born during the
pendency of a child welfare case” and that “[i]t is unclear whether
the older child should share the permanency timeline of the
afterborn baby, or whether they should have separate timelines.”

4. Although it remains unclear whether plain error review is
available in child welfare cases, we need not resolve that question
today because even if the exception were to apply, we ultimately
conclude that Parents cannot establish that the juvenile court
committed plain error. See In re P.M., 2025 UT App 154, ¶ 28 n.4.

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Given the lack of authority in support of Parents’ position, they
cannot establish that the alleged error would have been obvious
to the juvenile court, and thus, they cannot prevail on grounds of
plain error. See State v. Maestas, 2012 UT 46, ¶ 37, 229 P.3d 892 (“An
error is obvious only if the law governing the error was clear at
the time the alleged error was made.” (cleaned up)).

¶19 For similar reasons, Parents cannot demonstrate that
counsel performed deficiently by failing to request that the court
treat the siblings as a unit. While “attorneys are not [categorically]
excused from failure to raise an argument not supported by
existing legal precedent,” a party alleging ineffective assistance
must demonstrate that the attorney’s failure “was objectively
unreasonable—i.e., a battle that competent counsel would have
fought.” State v. Calata, 2022 UT App 127, ¶ 20, 521 P.3d 920
(cleaned up). Here, Parents’ counsel had no basis in existing law
to believe that Child’s and Sister’s timelines should or even could
be consolidated. In fact, Utah law suggests otherwise, as the
permanency timeline is based on the date “the minor is initially
removed from the minor’s home” and Sister’s removal date was
ten months after Child’s. See Utah Code § 80-3-409. Moreover, it
is unlikely counsel would have recognized at the outset of Sister’s
case that the separate timelines would result in the drastically
different outcomes between the children’s cases such that
requesting consolidation would be important. Finally, given the
strict permanency timelines set by the Utah Code, it is highly
unlikely that the juvenile court would have extended Child’s
timeline to stay on track with Sister’s even if counsel had made
such a request, and counsel cannot be considered ineffective for
not making a futile objection. See Calata, 2022 UT App 127, ¶ 20.

CONCLUSION

¶20 Because we agree with the juvenile court that a permanent
guardianship order does not have prospective application, as that

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term is used in rule 60(b)(5) of the Utah Rules of Civil Procedure,
and because the circumstances presented here are not sufficiently
extraordinary to justify setting aside the guardianship order, we
affirm the juvenile court’s denial of Parents’ rule 60(b) motion.
Furthermore, we conclude that the court did not plainly err by not
consolidating Child’s and Sister’s permanency timelines and that
Parents’ counsel was not ineffective for failing to request
consolidation. Finally, we decline to consider Parents’ challenge
to the court’s parent-time order because that challenge was not
preserved. Accordingly, we affirm the court’s permanent
guardianship order.

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