In re A.H...

2026 UT App 88

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF
A.H., J.H., J.H., L.H., N.H., S.H., AND E.H.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.H.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20210353-CA
Filed June 4, 2026

Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle
The Honorable Elizabeth Lindsley
No. 1145453

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

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 This termination-of-parental-rights case comes before us
for a second time. In our first opinion, we reversed the juvenile
court’s determination to terminate the parental rights of S.H.
In re A.H.

(Mother) and N.H. (Father) (collectively, Parents) regarding their
two youngest children, Alice and Liam. 1 See In re A.H., 2022 UT
App 114, 518 P.3d 993, rev’d, 2024 UT 26, 554 P.3d 969. In
particular, we concluded that, “based on the evidence presented
at trial in October 2020, termination of Parents’ rights was not
strictly necessary to promote [Alice’s and Liam’s] best interest.”
Id. ¶ 58. In light of that conclusion, we had no occasion to reach
the other two issues Parents had raised in their original appeal:
(a) that they had received ineffective assistance of counsel and (b)
that the Utah Division of Child and Family Services (DCFS) had
failed to exercise reasonable efforts to keep the family together.

¶2 Later, the Utah Supreme Court agreed to review our
decision, but it limited its review solely to the best-interest
determination. That court reversed our decision, concluding that
the juvenile court, in its original decision, had appropriately
determined, based on the evidence presented to it, “that severing
the legal connection with Alice and Liam’s biological parents was
strictly necessary to serve their best interest.” In re A.H., 2024 UT
26, ¶ 73, 554 P.3d 969. The supreme court then sent the case back
to this court “for consideration of the remaining issues in
[Parents’] initial appeal.” Id. ¶ 5.

¶3 Within days of receiving the case back from the supreme
court, we issued an order granting Parents’ motion—filed in
connection with their initial appeal—for a remand to the juvenile
court for supplementation of the record regarding Parents’ claims
of ineffective assistance. The juvenile court held a four-day
evidentiary hearing, at which thirteen witnesses—most of whom
had not testified at the original trial—provided testimony. A few
weeks later, the juvenile court issued comprehensive and

1. The names we use to refer to the two youngest children are
pseudonyms. For consistency, we use the same pseudonyms our
supreme court used in its opinion in this case. See In re A.H., 2024
UT 26, ¶ 2, 554 P.3d 969.

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thorough findings of fact, and we then asked the parties for
supplemental briefing.

¶4 Now, with a more complete record before us, we address
Father’s continuing assertion that Parents received ineffective
assistance of counsel during the October 2020 trial.2 For the
reasons discussed, we conclude that all three attorneys involved
in the case on Parents’ side rendered deficient performance, and
we additionally conclude that the attorneys’ deficient
performance prejudiced Father. On this basis, we once again
vacate the juvenile court’s order terminating Father’s rights
regarding Alice and Liam, and we once again remand this matter
to the juvenile court, this time for a new trial.

BACKGROUND

¶5 Because this is the third appellate opinion in this case, and
because the events leading to the initiation of these proceedings
have already been thoroughly described in the first two opinions,
see In re A.H., 2024 UT 26, ¶¶ 6–28; In re A.H., 2022 UT App 114,
¶¶ 2–29, we limit our discussion of the original background facts
to those “necessary to resolve the issues” remaining in this appeal,
In re R.D., 2024 UT App 91, n.1, 554 P.3d 318 (cleaned up), cert.
denied, 558 P.3d 90 (Utah 2024). In this opinion, we focus on the
more recent remand proceedings, describing in some detail the
findings made by the juvenile court on remand. And we recite the
evidence relevant to those proceedings “in a light most favorable
to the [remand] court’s findings.” Id. (cleaned up).

2. Tragically, Mother died in a car accident in December 2024, after
both appellate opinions had been issued and while the case was
on remand to the juvenile court. Given Mother’s untimely
passing, only Father’s rights remain at issue. Nevertheless, we
sometimes refer to Mother and Father collectively as “Parents,”
even though Mother is no longer a party to this appeal.

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In re A.H.

DCFS Involvement with the Family

¶6 Parents have seven children (collectively, Children)—
Alice, Liam, and their five older brothers (Siblings). Alice was
born in February 2015, and Liam was born in December 2016.
DCFS first became involved with the family in 2017, when Alice
was two years old, and Liam was just seven months old. See In re
A.H., 2022 UT App 114, ¶¶ 2, 4. Over the next few years, DCFS
remained involved with the family, twice removing the
Children—who were all minors at the time—from the family
home and placing them in foster care. See id. ¶¶ 5–13. But due to
the number of affected children—seven—DCFS could not always
find placements that kept the Children together; often, they were
placed in three groups, with the oldest children together, the
middle children together, and Alice and Liam together. See id.
¶¶ 12–13. In August 2019, Alice and Liam were placed—for the
first time—with the foster family who now wishes to adopt them
and with whom they have lived for the past (nearly) seven years.
See id. ¶ 13. During the remaining time prior to trial, which
occurred a little over a year later, DCFS did not actively facilitate
any sibling visitation but, instead, “left that mostly up to the foster
parents,” who “managed a few meet-ups on their own” at first,
but whose efforts in this regard “diminished over time.” See id.

The Termination Trial

¶7 As the case proceeded, Parents had each been provided
with a court-appointed lawyer (collectively, Appointed Counsel).
In the months leading up to trial, Appointed Counsel attended
pretrial hearings where trial dates and pretrial disclosure
deadlines were set. But as trial approached, Parents stopped
communicating with Appointed Counsel because—without
telling Appointed Counsel—they had retained a private attorney
(Retained Counsel) to represent them in the case, and Retained
Counsel instructed Parents not to communicate with Appointed
Counsel. The juvenile court, on remand, found that Parents had

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paid Retained Counsel a $1,000 retainer and that Retained
Counsel “was acting as Parents’ attorney and not as a consultant.”

¶8 Retained Counsel represented to Parents that he would act
as their attorney and would handle matters, including taking care
of meeting (or arranging for the extension of) impending trial and
disclosure deadlines. Parents reasonably understood that
Retained Counsel had undertaken representation of them in the
matter, and they reasonably relied on him to take care of the
promised filings. And Parents refrained from independently
seeking relief from the court, or from coordinating with
Appointed Counsel, in reasonable reliance on Retained Counsel’s
assurances and instructions.

¶9 None of the three attorneys filed pretrial disclosures on
behalf of Parents. Appointed Counsel did not do so, apparently
because Parents—at Retained Counsel’s urging—had ceased all
communication with them and because both Appointed Counsel
had a practice of not submitting such disclosures unless the client
signed off on them first. Retained Counsel told Parents that he
would seek an extension of the pretrial disclosure deadline, but
he failed to do so. Indeed, prior to the first day of trial, Retained
Counsel never entered an appearance or filed any documents.

¶10 The scheduled trial began on October 5, 2020, and took
place by video conference due to the COVID-19 pandemic. All
three of Parents’ lawyers appeared. That morning, Retained
Counsel filed his first documents in the case—a notice of limited
appearance and a motion for extension of time and to continue the
trial. The juvenile court chastised Retained Counsel for the “very,
very late notice and request,” see In re A.H., 2022 UT App 114, ¶ 20,
and it rejected any motion to continue as “untimely” and out of
“compl[iance] with governing deadlines and procedures.” After
observing the court deny Retained Counsel’s request for a
continuance, Appointed Counsel opted not to ask for a
continuance because they felt it would not be granted. Instead,

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In re A.H.

Appointed Counsel proceeded with the trial, and Retained
Counsel remained involved only to assist with negotiations with
the State and the guardian ad litem (the GAL) that were to occur
that day. Those negotiations were successful in part, resulting in
a stipulation that it was in Siblings’ best interest for them to be
placed in the permanent custody and guardianship of the oldest
sibling’s biological paternal grandparents (Grandparents). See id.
¶ 2 (“Father is the biological parent of the six youngest Children
and the legal parent of all of them[.]”). But the stipulation did not
include Alice and Liam, and as to them, the termination trial went
forward later that day, with only Appointed Counsel
representing Parents.

¶11 During that trial, the State presented testimony from “four
DCFS caseworkers, two therapists, Mother’s former and current
probation officers, and the mother from the” foster family Alice
and Liam were placed with. See id. ¶ 22. But when it was Parents’
turn to present their case, the juvenile court—due to the failure of
any attorney to file pretrial disclosures on behalf of Parents—
imposed strict limitations on Parents’ ability to present witnesses
and evidence. The court allowed Parents to offer their own
testimony and to call Grandparents, and it offered to allow them
to call witnesses that were listed on the State’s witness list. See id.
¶ 24. But the court did not allow Parents, even upon request, to
present testimony from Siblings. See id. And no expert witness
testified on Parents’ behalf; none had been retained by any of
Parents’ attorneys, and Appointed Counsel made no request, at
trial, to present any such testimony.

¶12 A few months after the trial, the juvenile court issued a
written decision terminating Parents’ rights as to Alice and Liam.
See id. ¶ 27. It found sufficient statutory grounds for termination,
and it found that DCFS had made “reasonable efforts towards the
permanency goal of reunification.” Id. ¶¶ 27–28. As to best
interest, the court determined—in keeping with the parties’
stipulation—that Siblings’ interest was best served by a

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In re A.H.

permanent custody and guardianship arrangement with
Grandparents. See id. ¶ 29.

¶13 But as to Alice and Liam, and based on the evidence
presented during the trial, the court reached a different decision,
concluding that their interest would be best served by adoption
by the foster family and that termination of Parents’ rights was
strictly necessary to advance that interest. See id. The court
reached that decision even though it meant permanently
separating the Children, and even though the court
acknowledged that Grandparents were “certainly appropriate
caregivers.” Id. It offered several reasons for its decision.

¶14 First, it noted that Alice and Liam were very young when
they were first removed from the family home and that, as a
result, they “had a very short time to be with [Siblings].” Id.
Second, the court concluded that the bonds Alice and Liam had
with Siblings were not particularly strong, opining that Alice and
Liam had “little beyond a biological connection” with Siblings. Id.
Third, the court discussed the unquestionably strong bonds that
Alice and Liam had formed with the foster family. See id. Fourth,
the court concluded that disrupting Alice and Liam’s “placement
at [that] time would be very detrimental” to them. Id. Fifth, the
court expressed concern that, absent termination, Parents would
retain some level of residual parental rights and might attempt “to
regain custody of [Alice and Liam] in the future,” an eventuality
the court believed would “pose a risk to” Alice and Liam. Id. And
finally, the court emphasized the importance of stability, offering
its view that Alice and Liam, as well as the foster family,
“deserve[d], and indeed need[ed], the highest level of legal
protection available, which would be achieved through
adoption.” Id.

Post-Trial Appeals

¶15 After the juvenile court issued its ruling, Parents appealed
to this court, challenging the juvenile court’s best-interest decision

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In re A.H.

on its merits, and in addition asserting that DCFS had failed to
provide reasonable efforts toward reunification and that all three
lawyers—Retained Counsel and both Appointed Counsel—had
rendered ineffective assistance. In October 2022, we issued our
opinion reversing the juvenile court’s best-interest determination
on its merits and therefore declining to reach the other two issues.
See id. ¶ 58. A few months later, our supreme court granted the
GAL’s petition for certiorari, agreeing to consider whether this
court “erred in reversing the juvenile court’s best interest
determination and in vacating its order terminating [Parents’]
parental rights as to” Alice and Liam. Then, in July 2024, the
supreme court reversed this court’s determination. See In re A.H.,
2024 UT 26. In its opinion, the supreme court concluded that the
juvenile court, based on the evidence presented to it, had
appropriately determined “that severing the legal connection
with Alice and Liam’s biological parents was strictly necessary to
serve their best interest.” Id. ¶ 73. The supreme court then sent the
case back to this court “for consideration of the remaining issues
in [Parents’] initial appeal.” Id. ¶ 5.

The Remand Hearing

¶16 Soon after the case was returned to this court, we issued an
order remanding it to the juvenile court for supplementation of
the record related to Parents’ claims of ineffective assistance of
counsel. 3 In the meantime, two events occurred that have had

3. In our order, we explained that, in criminal cases, requests for
remand in the context of ineffective assistance claims are
governed by rule 23B of the Utah Rules of Appellate Procedure.
But even though that rule does not apply in child welfare cases,
see Utah R. App. P. 1(f), we explained that “parents who provide
extra-record evidence alleging ineffective assistance on appeal
[may be] entitled to a remand similar to that provided by rule 23B
to develop the record in support of their claims,” see In re adoption
(continued…)

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In re A.H.

procedural consequences in this case. First, Mother passed away
in December 2024, an event which served to moot all issues as to
her. Second, in late 2024, both Appointed Counsel were appointed
to fill judicial vacancies on the Fourth District Juvenile Court.
Thereafter, Father filed a motion seeking the disqualification of
the entire Fourth District Juvenile Court bench, given that
Appointed Counsel (now both judges) would likely be called as
witnesses at the remand hearing. That motion was granted by the
presiding judge, and a senior judge from another district was later
assigned to preside over and adjudicate the case.

¶17 The juvenile court on remand—a court we refer to herein
as “the remand court”—then held a four-day evidentiary hearing.
At the time of that hearing, Alice was ten years old and Liam was
eight, and they had been in the continuous care of their foster
family for about six years. At the hearing, thirteen witnesses
testified and more than seventy exhibits were admitted into
evidence. Father called eleven of those witnesses: himself; one of
Alice and Liam’s former foster parents (Former Foster Father); all
five Siblings; Retained Counsel; both Appointed Counsel; and an
expert witness (Expert). After Father presented his evidence, the
State called two rebuttal witnesses, but it did not call either of
Alice and Liam’s current foster parents.

¶18 We include here a robust summary of the testimony
presented at that hearing and the findings the remand court made
afterward, because that testimony and the associated findings
bear materially on the question of whether Appointed Counsel
and Retained Counsel rendered ineffective assistance at the
October 2020 trial.

of P.P., 2024 UT App 62, ¶ 13, 549 P.3d 628. After our order was
entered, Utah’s rules of appellate procedure were amended to add
a rule that expressly governs this situation and allows for such a
remand. See Utah R. App. P. 55A.

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In re A.H.

¶19 Sibling and Family Bonds. Father presented extensive
testimony intended to shed light on the strength of the bonds
among the Children generally, and specifically on the strength of
the bonds Alice and Liam had with Siblings. The remand court
found that, prior to 2017 when DCFS became involved with the
family, “[t]he [C]hildren had a close relationship with each other,
with [Parents], and lived a normal family life.” When the Children
were first removed from the home, Alice was “terrified” and “sad
and wanted her brothers,” and she was eventually consoled by
one of her older brothers. After a short stay at a group home, the
Children were put into “three separate placements,” though Alice
and Liam remained together.

¶20 For a while, the Children enjoyed “at least weekly
visitation” together and, during this time, the Children’s “bond
with each other,” including Siblings’ bond with Alice and
Liam, “grew and was strengthened.” Siblings remembered those
visits as “positive” and “happy,” where they “would talk, play
games, [and] share stories.” Alice and Liam would be “excited” to
see Siblings, Alice “would hug” Siblings, and Liam “would
always open his arms” to them. Former Foster Father testified
about these “positive” and “mutually affectionate” visits that
“reinforced the [C]hildren’s emotional connection to their family
of origin.”

¶21 Father also testified about the Children’s bonds with
one another. He spoke of Alice “expressing a consistent desire
to be with her [biological] family,” even when she was
separated from them. Father believed that this “showed that
the [C]hildren maintained emotional awareness and
attachment to their family members despite physical
separation.” He also remembered visits with Alice and Liam as
“consistently loving and positive,” “during which [Alice and
Liam] ran to [Parents], hugged them tightly, and appeared joyful
throughout,” which Father believed “reflected an enduring
parental bond.”

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In re A.H.

¶22 The remand court found that, after the Children were
removed from the family home a second time in May 2019, “all of
the [C]hildren were extremely upset,” yet “[n]obody talked to
them about how they felt or balanced the harm that removal
would cause with the risk of staying in the home.” After removal,
the Children were taken to a DCFS office and “placed in a small
room for over two hours.” One of the brothers “barricade[d] the
door with toys,” eventually leading to his arrest and placement at
a “youth receiving center,” where he “remained for two weeks
with no change of clothing” and no opportunities for parental
visits. The court found that the “removal was very traumatizing
and impactful on the family” and that Siblings “were terrified
about [Alice and Liam] leaving and worried if they would ever
see them again.”

¶23 Based on the testimony presented at the hearing, the
remand court made findings about the Children’s bonds with one
another. In particular, the court found as follows:

Testimony across the [S]iblings consistently
demonstrated a deep mutual affection and enduring
emotional bond. Each described their relationships
as close, loving, and protective. Despite ordinary
childhood disagreements, they testified that they
always supported and defended one another,
particularly in public or school settings. [Two of the
brothers] explained that while they might argue at
home, if someone else was in conflict with a brother,
they would always intervene to protect him. This
consistent loyalty reflected a unified and resilient
sibling bond.

In this vein, the court discussed Siblings’ testimony about the
“numerous shared activities that strengthened their
relationships,” and it found that those “shared experiences
created a foundation of trust, familiarity, and companionship

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among” the Children. The court found that “[e]ach of the older
brothers expressed love and protectiveness toward” Alice and
Liam, and that Alice and Liam “were viewed as integral parts of
the sibling group and were treated with affection and inclusion
by their older brothers.” And the court noted that all five of the
Siblings “testified that they are a sibling group of seven” and that
“they will always [be] a sibling group of seven.”

¶24 The court also made specific findings about J.H., the
brother closest in age to Alice and Liam; he is less than two years
older than Alice and was only four years old at the time of the
first removal. J.H. doesn’t have as many memories of the pre-
removal era as his older brothers do, so “his older brothers often
[tell] him stories about their parents, about family trips, birthdays,
and everyday memories from before he could remember,” and
J.H. testified that, “through those stories, he got to know his
parents better.” The court found that J.H.’s “testimony
demonstrated that the [brothers’] recollections and storytelling
served to strengthen [J.H.’s] emotional connection to his parents
and preserve a sense of shared family identity even during times
of separation.” The court noted that J.H. “became visibly
emotional when talking about” Alice and Liam and “had to pause
for about a minute” before continuing to discuss his quite specific
memories of them.

¶25 Siblings also “testified that [Parents] were consistently
involved in their lives, providing structure, discipline, and care”
and “foster[ing] a strong sense of belonging and family unity.”
Testimony showed that Parents were “active in [the Children’s]
schooling, attended events, and encouraged participation in
church and community activities.” Some of the Siblings described
feeling “safe and comforted in [Parents’] presence,” and the eldest
son “described the home as a stable and loving environment.”
Siblings also testified that Parents “made sustained efforts to stay
connected,” even during periods of separation, and “consistently
expressed love and encouragement” and “never gave up.”

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¶26 The court found Siblings’ testimony to be “credible and
persuasive” and that their “accounts of family relationships were
consistent, detailed, and mutually reinforcing.” The court also
found that each of the Siblings “testified sincerely, with emotional
insight and clarity.” Based on their testimony, the court found that
Siblings “share not only a deep bond with one another but also a
strong, healthy, and enduring attachment to . . . [P]arents.”

¶27 Expert’s Testimony and Opinions. Father also presented
testimony from Expert, who is a board-certified licensed clinical
social worker with over twenty years of “experience in the fields
of infant and early childhood mental health, attachment, and
family systems therapy.” Expert testified about various topics,
including “attachment and placement transitions,” the
“importance of sibling bonds,” “termination of parental rights
and adoption related loss,” and “therapeutic out of home
placement transitions.” Although Expert had never met or
evaluated any of the Children, she became familiar with their
circumstances after a forensic review of the “case record, reports,
and testimony” regarding the family. The court found that
Expert’s testimony “reflected a thorough understanding of the
[C]hildren’s procedural history, placement experiences, and the
issues before the [c]ourt.” The court found that Expert’s “forensic
testimony was coherent, credible, and persuasive” and that
Expert’s “analytical process demonstrated methodological rigor,
ethical objectivity, and adherence to the highest professional
standards.” The court offered its overarching view that Expert
“provided the [c]ourt with reliable, evidence-based insight into
the emotional and developmental needs of” the Children.

¶28 Expert first “testified extensively on attachment and
disruption of secure attachments.” She stated that “[a]chieving a
secure attachment in an out-of-home placement is [a] positive
indicator of a child’s mental health and wellbeing.” She
acknowledged that “abruptly severing a secure attachment can be
traumatic” to a child. But she offered her view that the inquiry

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“cannot be guided through a myopic lens of attachment alone”
and that, when done correctly and in appropriate cases, it is
possible and sometimes even preferable to transition a child out
of a secure attachment. In order to “safely” accomplish this, the
transition process “must be gradual, mindful, and supported by a
mental health professional.” She explained that successful
transitions involve cooperation between caregivers to maintain
the child’s routines and emotional security, and she offered her
view that “the more people who love a child the better—children
shouldn’t lose anyone in the process.” And she said that, ideally,
“the prior caregiver should be invited to remain part of the child’s
emotional network, giving the child implicit permission to attach
to new caregivers while maintaining existing bonds.”

¶29 Expert stated that “[d]espite the difficulty in transitions
from a foster placement to a relative placement, [a relative
placement] is still the optimal permanency outcome for children.”
Specifically, she opined that

kinship placement provides continuity of identity,
culture, and familial narrative, which are critical for
a child’s sense of belonging and long-term
emotional health. . . . [C]hildren placed with
relatives maintain connections to their family
history, which anchors their self-concept and
reduces feelings of abandonment associated with
removal and separation.

Expert “acknowledged that kinship placement is not appropriate
in every circumstance,” but she “emphasized that where a family
member can provide safety, stability, and structure, that setting is
generally superior to non-relative foster care.” And she testified
“that long-term family placements are particularly beneficial
when siblings can remain together,” because “siblings share a
unique and validating connection that anchors them to their
shared identity and experiences.”

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¶30 Applying these principles to the case at hand, Expert
opined that “it is not in the best interests of [Alice and Liam] to
separate them from their family,” that it is “very likely” they
“would transition well into the home with Grandparents and
[Siblings],” and that it “is in [their] long-term best interests to
remain connected to [Siblings], Parents, Grandparents, relatives,
community, and culture.”

¶31 Next, Expert “testified at length regarding the
developmental and emotional benefits of children being placed
together with their siblings whenever safely possible.” Expert
“explained that sibling bonds are foundational to a child’s
identity formation and represent the longest-lasting family
relationships most individuals will have in life,” and that sibling
“relationships are particularly significant for children who have
experienced separation, trauma, or loss, as they provide
familiarity, shared memory, and continuity of family experience.”
She stated that “children who are separate from siblings following
removal from their parents often experience an additional layer of
grief, confusion, and loss,” which “compounds the trauma of
parental separation by depriving children of one of their primary
sources of emotional regulation and mutual reassurance.”

¶32 Expert “described sibling relationships as ‘the single most
protective factor’ for children in the child welfare system who
experience separation from parents.” She explained that this is so
because “[s]iblings frequently serve as one another’s attachment
figures, particularly in families affected by instability or neglect,
and thus function as key protective factors during adversity.” She
also testified that siblings should be separated “only as a last
resort, and only when joint placement would clearly endanger
one or more of the children or compromise therapeutic
treatment.” And she offered her view that, if siblings cannot be
kept together, then “maintaining consistent, meaningful contact
is critical” “to preserve relational continuity,” “reduce trauma
responses,” and “reinforce a child’s sense of family belonging.”

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¶33 After listening to and considering Expert’s testimony on
sibling bonds, the remand court made the following finding:

The [c]ourt finds [Expert’s] testimony on sibling
permanency credible and strongly supported by the
empirical findings [of the studies Expert discussed].
Together, these authorities establish that sibling
relationships are fundamental to emotional
security, placement stability, and long-term well-
being. The evidence presented demonstrates that
permanency planning that preserves sibling unity
produces measurably superior outcomes and aligns
with best practices in child welfare and attachment
science.

¶34 Expert also “testified that there are several long-term
consequences associated with the termination of parental rights
that are devastating for children.” In this vein, Expert discussed
two different types of loss children may experience after their
parents’ rights are terminated. She described the first type of loss
as “ambiguous loss,” which is “a psychological state of
unresolved grief where the loved one remains psychologically
present but physically absent.” The second type of loss Expert
described was “definitive loss,” which is “the legal and physical
separation from their biological parents” and siblings. Related to
this loss, Expert testified that in “her clinical experience, children
who are encouraged to talk about their biological families and
allowed to maintain safe, appropriate contact show greater
emotional stability and stronger attachment to adoptive
caregivers.” Expert presented supporting research for these
opinions. The court found that research reinforced the idea that
“termination of parental rights should never happen if there is a
safe viable alternative that will give a child legal permanency and
a permanent connection to their biological family,” and that
“[w]hen there is a safe and appropriate caregiver that can take
permanent custody and guardianship of a child and maintain

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family connections, the court should always take th[at] option.”
Expert explained that, empirically, “kinship care tends to
produce better outcomes in school performance, mental health
stability, and social functioning because the child’s sense of
continuity is maintained.” She discussed studies indicating that
adopted children face “increased risk of juvenile delinquency”
and “suicidality” relative to “their non-adopted peers,” and
indicating that “adoption is not a singular event but a lifelong
process marked by recurring developmental challenges related to
loss, identity, and belonging.” And she opined that “the future
risk of harm associated with termination of parental rights and
adoption far outweighs the temporary heartache of adjusting
placements.”

¶35 On this topic also, the remand court found Expert’s
testimony to be “credible and compelling,” “empirically
grounded[,] and profoundly relevant to the emotional well-being
of” Liam and Alice, and for these reasons, the court “accord[ed]
significant weight to [Expert’s] analysis of ambiguous and
adoption-related loss.”

¶36 Finally, Expert “testified that therapeutic out-of-home
placement transitions must be gradual, mindful, planned, and
purposeful, and that each step of the process must be guided by
a mental health professional skilled in attachment and
transitions.” Expert opined that even when children are in
secure attachments, as Alice and Liam are in with their foster
family, they are “capable of adapting successfully when
transitions are handled therapeutically, at the child’s pace, and
under professional supervision.” Expert explained that this works
best when the transition process occurs in “distinct phases:
preparation, overlap, and stabilization.” The court found Expert’s
testimony on this topic to be “consistent, evidence-based, and
highly persuasive, demonstrating that gradual, professionally
guided transitions produce superior emotional outcomes for
children.”

20210353-CA 17 2026 UT App 88
In re A.H.

¶37 Testimony from the Attorneys. The remand court also
made findings regarding Retained Counsel’s and Appointed
Counsel’s performance. Some of those findings have been
discussed already. See supra ¶¶ 7–10. We include here a discussion
of additional findings the court made regarding the attorneys.

¶38 Regarding Appointed Counsel, the remand court found
that, in the months leading up to trial, Appointed Counsel
anticipated that the case would be resolved short of trial by
placing the Children together with Grandparents. Appointed
Counsel for Father testified “that if Father could not get custody
back, [Father] wanted the [C]hildren placed” together with
Grandparents. The court also found that Appointed Counsel for
Father “admitted that he did not file pretrial disclosures on behalf
of Father, including a witness list and exhibit list, as required by
the court’s pretrial scheduling order,” even though he had
previously been present when the pretrial disclosure deadline
was set. Appointed Counsel for Father testified that he did not file
pretrial disclosures because “Father had not personally reviewed
or approved them” and it was his policy not to file disclosures
until his client signed off on them first. And Appointed Counsel
for Mother made the same admission, even going so far as to agree
that his actions “prejudiced Mother because she could then not
call any witnesses or present any evidence.” Appointed Counsel
for Father acknowledged “that the juvenile court would not allow
[him] to put on witnesses” because of the lack of disclosures.

¶39 Appointed Counsel for Father testified that Father sent him
an email on October 5, 2020—the first day of trial—in which
Father had included “a list of witnesses [he] wanted to testify.”
Siblings and Former Foster Father were all originally on this list.
But the remand court found that Appointed Counsel for Father
did not know or understand that Former Foster Father was also
on the State’s witness list—meaning he would have been able to
testify at the termination trial if Appointed Counsel had called
him. Importantly, the court found that Father’s emailed witness

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In re A.H.

list was “sent . . . prior to the State shifting its position to wanting
to separate the sibling group,” meaning that, at the time he put
together the list, Father would not have known of any need to call
an expert witness on sibling bonds, and that “[t]his change in
tactic may have resulted in Father finding different witnesses—
like an expert witness [that] could testify to the harm caused by
separating siblings, attachment, and ambiguous loss.” On
remand, Appointed Counsel for Father acknowledged that he
would have been able to obtain such an expert and that it would
have been “helpful,” but that he did not do so. Appointed Counsel
for Mother recognized that “in hindsight, they probably should
have asked for a continuance based on the new dynamics and
shift in DCFS[’s] desire to permanently separate the [Children].”

¶40 Retained Counsel testified that the “initial $1,000” fee was
only a “consultation” fee “for limited engagement.” But the
remand court found Retained Counsel’s testimony on this point
“not credible,” and it made a specific finding—based on Parents’
“text messages, bank records, and audio recordings”—that
Retained Counsel “was acting as Parents’ attorney and not as a
consultant.” As already noted, Retained Counsel failed to live up
to the promises he made to Parents, and the court found that
Retained Counsel’s actions “resulted in the loss of the opportunity
to extend discovery deadlines, adjust trial settings, or otherwise
prepare a defense before trial commenced.”

¶41 The court also made findings about Retained Counsel’s
credibility. At the hearing, Retained Counsel “refused to answer”
certain questions and invoked his Fifth Amendment right.
Nonetheless, “judicial findings, sanctions orders, [and] criminal
case filings arising from his professional conduct” were admitted
into evidence. That evidence showed that, at the time he
represented Parents, Retained Counsel was “the subject of
ongoing attorney discipline and criminal proceedings.” Because
of this, the court found that Retained Counsel’s “refusal to answer
questions about these proceedings and his invocation of the Fifth

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In re A.H.

Amendment, when viewed alongside these exhibits, substantially
undermine[d] his credibility and support[ed] an adverse
inference that his professional and criminal misconduct was
ongoing during the time of his representation of [Parents].”

ISSUE AND STANDARD OF REVIEW

¶42 The sole issue before us is whether Parents’ attorneys
rendered ineffective assistance at the October 2020 termination
trial. 4 “An ineffective assistance of counsel claim raised for the
first time on appeal presents a question of law.” In re R.D., 2024
UT App 91, ¶ 17, 554 P.3d 318 (cleaned up), cert. denied, 558 P.3d
90 (Utah 2024).

4. As already noted, Parents raised another issue in their original
appeal: “Whether the juvenile court erred in determining [that]
DCFS made reasonable efforts to keep the family together when
DCFS failed to timely facilitate placement with Grandparents and
ensure sibling visitation, as required by statute.” Given our
resolution of Father’s ineffective assistance claim, we do not
address the reasonable-efforts issue, other than to offer our view
that Father has raised matters related to DCFS malfeasance in the
appropriate procedural location. Indeed, now that our supreme
court has made clear that such matters may not generally be
raised in the best-interest portion of the inquiry, see In re A.H., 2024
UT 26, ¶¶ 51–61, similarly affected parents in future cases would
seem to have no place other than the reasonable-efforts portion of
the inquiry in which to raise such matters. Thus, in our view
Father raised these arguments in the right place, and other
similarly situated parents should be afforded an opportunity, in
connection with reasonable-efforts inquiries, to make arguments
regarding actions DCFS may have taken (or not taken) that, in
their view, contributed to the deterioration of family bonds or the
unavailability of kinship placements.

20210353-CA 20 2026 UT App 88
In re A.H.

ANALYSIS

¶43 Under Utah law, “a parent or legal guardian facing an
action initiated by the state” regarding child welfare or
termination of parental rights has the right to effective counsel.
See Utah Code § 78B-22-201(1)(b); see also In re E.H., 880 P.2d 11,
13 (Utah Ct. App. 1994) (holding that appellants in child welfare
proceedings are “entitled to effective assistance of counsel,” and
“adopt[ing] the Strickland [v. Washington] test to determine a claim
for ineffective assistance of counsel in proceedings involving
termination of parental rights”).

¶44 To establish ineffective assistance of counsel under the
prevailing test, “a party must show that counsel’s performance
was objectively deficient and that counsel’s deficient performance
prejudiced the case.” In re H.H., 2024 UT App 25, ¶ 96, 546 P.3d 39
(cleaned up); see also Utah Code § 78B-22-201(1)(b) (providing a
right to counsel in termination of parental rights proceedings). To
establish deficient performance, Father “must overcome the
strong presumption that [Retained Counsel and Appointed
Counsel] rendered adequate assistance by persuading the court
that considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” See In re C.M.R., 2020 UT App
114, ¶ 20, 473 P.3d 184 (cleaned up).

¶45 To establish prejudice, Father must show there was a
“reasonable probability that the outcome of [the] case would have
been different absent counsel’s error.” See id. ¶ 21. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding.” Id. (cleaned up). “In evaluating
the likelihood of a different result, we consider the totality of the
evidence before the judge, bearing in mind that some errors will
have had a pervasive effect on the inferences to be drawn from
the evidence, altering the entire evidentiary picture, and some
will have had an isolated, trivial effect.” In re A.H., 2021 UT App
57, ¶ 37, 493 P.3d 81 (cleaned up).

20210353-CA 21 2026 UT App 88
In re A.H.

¶46 We begin our analysis by addressing whether Father’s
right to effective assistance of counsel attached to Retained
Counsel, and we conclude that it did. We then transition to an
analysis of whether Father’s attorneys rendered deficient
performance, and we conclude that they did. Finally, we address
Father’s contention that this deficient performance prejudiced
him during the October 2020 trial. For the reasons discussed, we
find merit in Father’s ineffective assistance claim.

I. Retained Counsel

¶47 As noted, Father contends that Appointed Counsel and
Retained Counsel each rendered ineffective assistance. As
discussed more fully later, the State and the GAL take issue with
parts of Father’s argument on its merits, but as a threshold matter,
the GAL asserts that Father’s right to effective assistance of
counsel did not extend to Retained Counsel because Retained
Counsel “was never counsel of record” in the case. We find the
GAL’s position unpersuasive, both legally and factually.

¶48 While no Utah appellate court has addressed this legal
issue, other courts have, and those courts have concluded that
“[a]n attorney’s constitutional ineffectiveness can manifest itself
at trial even though the attorney never appears in court.” Stoia v.
United States, 22 F.3d 766, 769 (7th Cir. 1994); see also United States
v. Logan, 257 F. Supp. 3d 880, 888 (W.D. Mich. 2017) (stating that
there is no “bright-line rule that an attorney must be counsel of
record before a defendant can make a valid claim of ineffective
assistance against him [or her]”), aff’d, 910 F.3d 864 (6th Cir. 2018).
For instance, “an attorney hired to do ‘behind the scenes’ work
may, through deficient performance, negatively impact the trial
counsel’s ability to give the defendant an adequate defense.”
Stoia, 22 F.3d at 769. Thus, there is no requirement “that a trial
court must be aware of a retained attorney’s out of court
participation in the case to implicate” a litigant’s right to effective
assistance of counsel. Id.; see also Roderick v. Ricks, 2002 UT 84, ¶ 32,

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In re A.H.

54 P.3d 1119 (“An attorney-client relationship exists when the
client reasonably believes the attorney represents the client’s legal
interests.”). We consider these authorities persuasive, and we
accordingly reject the GAL’s legal argument that an attorney must
have entered an official appearance in a case before being
responsible for effectively representing the client.

¶49 Moreover, as a factual matter, the remand court clearly
found, based on the evidence presented at the hearing, that
Parents had formally hired Retained Counsel to represent them in
the case. Specifically, the court found that Parents had paid
Retained Counsel a $1,000 retainer and that Retained Counsel
“was acting as Parents’ attorney and not as a consultant.” The
court expressly rejected Retained Counsel’s assertion that the
$1,000 payment was merely a “consultation” fee “for limited
engagement,” finding that Retained Counsel’s testimony on this
point was “not credible.” Indeed, the court found that, because
Retained Counsel represented to Parents that he would act as
their attorney, Parents reasonably understood that Retained
Counsel had undertaken representation of them in the matter and
that he would take care of satisfying or extending impending trial
and disclosure deadlines. The GAL does not challenge any of
these factual findings as clearly erroneous. See In re S.H., 2005 UT
App 324, ¶ 12, 119 P.3d 309 (“We review the juvenile court’s
findings for clear error . . . .”).

¶50 For these reasons, we conclude that Father’s right to
effective assistance of counsel extended not just to his appointed
attorney but also, in this case, to Retained Counsel.

II. Deficient Performance

¶51 We turn now to the merits of Father’s claim that his
attorneys each rendered ineffective assistance, and we first
address whether they performed deficiently. Father asserts that
“Retained Counsel did nothing and lied to Parents,” so much so
that the “deficiency of [Retained Counsel’s] performance cannot

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In re A.H.

be seriously contested.” And he contends that “Appointed
Counsel failed to comply with deadlines, prepare for trial, or
request a continuance,” which “[c]ompound[ed] the disastrous
effects of [Retained Counsel’s] deficient performance” and
constituted “independent” deficient performance.

¶52 The State agrees with Father on this point. Indeed, the State
not only concedes, but “readily” concedes, that “the performance
of all of Parents’ counsel was objectively deficient.” The State
characterizes as “well-taken” Father’s assertion that all of Parents’
attorneys “provided objectively deficient representation,” and it
agrees with Father that “[t]he complete failure of any of their
attorneys to even file pretrial disclosures, and to seek expert
testimony, precluded Parents from presenting testimony which
could conceivably have helped in their defense.”

¶53 The GAL, however, contests the point. With regard to
Retained Counsel, the GAL asserts (as discussed above) that
Retained Counsel’s actions cannot be the subject of an ineffective
assistance claim. And with regard to Appointed Counsel, the GAL
contends that Appointed Counsel did not perform deficiently
because “Appointed [C]ounsel’s performance must be considered
in terms of Father’s choices” and because, in any event,
Appointed Counsel “could well have had tactical reasons to
decline to call” certain witnesses.

¶54 We have already rejected the GAL’s argument that
Retained Counsel’s actions cannot be the subject of an ineffective
assistance claim. See supra Part I. And the GAL makes no other
argument regarding Retained Counsel—that is, not even the GAL
contends that Retained Counsel’s performance was reasonable. It
quite clearly wasn’t. After Parents paid Retained Counsel a $1,000
retainer, he told them that he would act as their attorney and
would take care of matters, including taking care of meeting
impending trial and disclosure deadlines. He said he would seek
an extension of the pretrial disclosure deadline, but he failed to

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In re A.H.

actually do so. Not only did he break that promise to Parents, but
he also never—prior to the first day of trial—entered an
appearance or filed any documents with the court on behalf of
Parents. And when Retained Counsel arrived on the first day of
trial requesting a continuance, the court rejected any continuance
as “untimely” and out of “compli[ance] with governing
deadlines and procedures.” Because of these actions, the remand
court specifically found that Retained Counsel’s actions “resulted
in the loss of the opportunity to extend discovery deadlines,
adjust trial settings, or otherwise prepare a defense before trial
commenced.” There was no conceivable strategic value to
Retained Counsel’s decisions—as Father persuasively puts it,
Retained Counsel simply “did nothing.” On this record, and
based on the court’s findings, the conclusion is inescapable that
Retained Counsel’s performance was objectively unreasonable
and thus deficient.

¶55 Indeed, as we see it, Retained Counsel’s actions were the
primary reason for the trouble Parents found themselves in at the
October 2020 trial. Not only did he do nothing, but he instructed
Parents not to communicate with their Appointed Counsel, which
instruction Parents followed, and that action led to problems with
Appointed Counsel as well.

¶56 But Appointed Counsel also performed deficiently here in
their own right. Despite the lack of communication with their
clients, they remained as counsel of record in the case—that is,
they did not seek to withdraw. Yet they took no steps to make sure
that their clients complied with pending pretrial disclosure
deadlines, apparently opting not to do so because they had a
policy not to submit such disclosures without client sign-off. Nor
did they seek an extension of those deadlines or a continuance of
the trial. This action was objectively unreasonable. Cf. Dahl v.
Dahl, 2015 UT 79, ¶ 83, 459 P.3d 276 (“Pretrial discovery and
disclosure are basic skills that we expect all attorneys to possess.”
(cleaned up)).

20210353-CA 25 2026 UT App 88
In re A.H.

¶57 The GAL attempts to defend Appointed Counsel’s actions,
asserting that there may have been tactical explanations for their
failure to meet disclosure deadlines and that we must assess their
performance in light of Father’s conduct. In particular, the GAL
cites In re R.G., 2023 UT App 114, 537 P.3d 627, in which this court
“rejected the notion that a party can assert a claim of ineffective
assistance where that party failed to communicate with counsel
between the time of the pretrial hearing and the termination trial
and failed to appear at the trial.” Id. ¶ 19. There, the client “fail[ed]
to appear or to assist.” Id.

¶58 We certainly acknowledge that Appointed Counsel found
themselves in a tough spot after their clients stopped
communicating with them and, as noted, that circumstance was
Retained Counsel’s fault. Indeed, on this basis alone, In re R.G. is
distinguishable: the lack of communication here did not have its
genesis in a client who stopped caring about the case. Here, the
lack of communication rests at the feet of one of the attorneys—
Retained Counsel—who specifically told Parents to cease
communication with Appointed Counsel.

¶59 But even placing the blame for the lack of communication
fully on Retained Counsel’s shoulders, Appointed Counsel’s
actions in response to the situation were not reasonable. They
remained counsel of record yet took no action aimed at preparing
Parents for trial. They did not file pretrial disclosures. They did
not seek an extension of those deadlines. They did not ask for a
continuance of the trial, even after learning—on the first day of
trial—that the State had changed its position about keeping the
Children together and was going to advocate for splitting up the
Children. Indeed, Appointed Counsel for Mother acknowledged,
during the remand hearing, that “in hindsight, they probably
should have asked for a continuance based on the new dynamics
and shift in DCFS[’s] desire to permanently separate the
[Children].” Appointed Counsel’s actions left Father in the
position of being unprepared for the trial and unable to call many

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In re A.H.

of the witnesses that he would have needed to call in order to
present an effective case.

¶60 The GAL argues briefly that Appointed Counsel could
have had strategic reasons, at trial, not to call the witnesses
that Father later called on remand. But the GAL offers no
possible strategic reason that Appointed Counsel could have
had for consciously deciding not to call Siblings or Former
Foster Father. And as a factual matter, the juvenile court
specifically ruled that Parents would only be able to call
themselves, Grandparents, and witnesses already listed by the
State (a list that, apparently unbeknownst to Appointed Counsel,
included Former Foster Father). Here, we see no strategic reason
for Appointed Counsel’s failure to call additional critical
witnesses.

¶61 Finally, the GAL contends that Appointed Counsel’s
decision not to seek a continuance was not deficient performance,
asserting that any such request would have been futile. At trial,
the court denied Retained Counsel’s request for a continuance, so
Appointed Counsel opted not to ask for a continuance “because
they felt it would not be granted.” “The decision not to pursue a
futile motion is almost always a sound trial strategy, [so] counsel’s
failure to make a motion that would be futile if raised does not
constitute deficient performance.” In re F.C.G., 2023 UT App 55,
¶ 11, 531 P.3d 763 (cleaned up). But we see two problems with the
GAL’s position.

¶62 First, Appointed Counsel could have—and arguably
should have—asked for a continuance (or for withdrawal) much
earlier, once Parents stopped communicating with them and
once they knew they wouldn’t be able to file pretrial
disclosures or effectively prepare for trial. There is no indication,
in this record, that an earlier motion for a continuance (or related
relief) would have been futile. Indeed, one of the reasons the court
gave for denying the day-of-trial motion for continuance was

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In re A.H.

because it was “untimely” and out of “compli[ance] with
governing deadlines and procedures.” A motion made weeks
before the scheduled trial date and explaining that
communication had ceased would have stood a better chance of
success.

¶63 Second, there was an alternative basis for a successful day-
of-trial motion for a continuance that was not attempted. As the
day unfolded, it became apparent—especially after the
negotiations that took place throughout the day—that the State
was changing its position and was, apparently for the first time,
taking the position that the Children should be split up, with
Siblings going to Grandparents and with Alice and Liam staying
with their foster family for adoption. During the run-up to trial,
Appointed Counsel had been under the continuous impression
that the Children would remain together; indeed, the remand
court found that the State didn’t “shift[] its position” about
“wanting to separate the sibling group” until the day of trial. At
that point, Appointed Counsel had a new basis for seeking a
continuance: they had theretofore been unaware of the State’s
new position, and they could have asked for more time to respond
to the State’s change in position. Indeed, Appointed Counsel for
Mother acknowledged, during the remand hearing, that “in
hindsight, they probably should have asked for a continuance
based on the new dynamics and shift in DCFS[’s] desire to
permanently separate the [Children].” But despite the State’s
change in position, Appointed Counsel did not seek a continuance
on that basis. We are unpersuaded that such a motion would have
been futile, given that the reason for the continuance apparently
surfaced only that day. Appointed Counsel’s actions, including
their failure to seek such a continuance, doomed any effort they
might have made to present testimony from an expert witness on
topics such as sibling bonds, adoption-related loss, and
attachment and placement transitions. As noted, Appointed
Counsel acknowledged that such an expert “would have been
helpful” and would have been available to them.

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In re A.H.

¶64 For all of these reasons, we conclude—like the State has—
that both Retained Counsel and Appointed Counsel performed
deficiently in connection with the October 2020 trial.

III. Prejudice

¶65 Next, we assess whether the attorneys’ deficient
performance prejudiced Father. As noted above, to establish
prejudice, Father must show that there was a “reasonable
probability that the outcome of [the] case would have been
different absent counsel’s error.” In re C.M.R., 2020 UT App 114,
¶ 21, 473 P.3d 184. We agree with Father that, if Retained Counsel
and Appointed Counsel had not performed deficiently and if the
juvenile court at trial had heard the evidence presented at the
remand hearing, there is a reasonable probability that the October
2020 trial would have come out differently. 5

¶66 Our determination in this regard is informed by an analysis
of the reasoning underlying the juvenile court’s decision to
terminate Parents’ rights as to Alice and Liam.

¶67 In our original opinion, we discussed the reasons for the
juvenile court’s decision. See supra ¶ 14. Those reasons fall into

5. The prejudice analysis of an ineffective assistance claim is by its
nature a backward-looking inquiry, where we “consider a
hypothetical—an alternative universe in which the trial went off
without the error.” See State v. Mason, 2024 UT App 171, ¶ 32, 562
P.3d 1158 (cleaned up), cert. denied, 570 P.3d 658 (Utah 2025). This
remains the case even though any new trial ordered as a result of
ineffective assistance must be “conducted in [a] present-tense
fashion, with the effective date of the inquiry being the date of the
hearing, trial, or other judicial determination.” See In re A.H., 2024
UT 26, ¶ 55 (cleaned up). So, for purposes of our prejudice inquiry,
we assess whether the October 2020 trial would have come out
differently if the court, at that moment in time, had heard the
testimony presented at the remand hearing.

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In re A.H.

three general categories: (1) the court’s conclusion that Alice and
Liam’s bonds with Siblings and Parents were not particularly
strong; (2) the court’s concerns about the risks of changing
placements, especially where Alice’s and Liam’s attachment to
their foster family was strong; and (3) the court’s conclusions
about the longer-term effects of termination of parental rights and
adoption. At the remand hearing, much of the evidence Father
presented was aimed at rebutting these conclusions. In the
paragraphs that follow, we explain that Father’s evidence was
persuasive on these points to the remand court, and based on how
that court reacted to this evidence, we think it reasonably likely
that the outcome of the October 2020 trial would have been
different had the juvenile court at that time heard the evidence
that was later presented at the remand hearing.

¶68 Bonds with Siblings and Parents. In its original ruling, the
juvenile court deemed important the fact that Alice and Liam
“were very young” when they were removed from the family
home and, “as a result, they had a very short time to be with
[Siblings].” In re A.H., 2022 UT App 114, ¶ 29. Indeed, it
considered any rupture of the sibling bonds to be a matter of small
concern, offering its view that Alice and Liam had “little beyond
a biological connection” with Siblings. Id. But because of the
attorneys’ failure to file pretrial disclosures (and their lack of
awareness of who was listed in the State’s disclosures), the
juvenile court did not hear testimony, during the October 2020
trial, from any of the Siblings, from Former Foster Father, or from
Expert. The testimony on remand—from those new witnesses as
well as from Father—painted a very different picture than that
which the court was shown the first time around.

¶69 On remand, after hearing from the new witnesses, the
court made very different findings regarding the Children’s
bonds with one another. It specifically found that Siblings’
testimony “consistently demonstrated” that the Children had “a
deep mutual affection and enduring emotional bond” with one

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In re A.H.

another. It also found that the bond between the Children was
“unified and resilient” and that the Children’s relationships with
each other were “close, loving, and protective.” And in general, it
found Siblings’ testimony “credible and persuasive,” stating that
their “accounts of family relationships were consistent, detailed,
and mutually reinforcing.” The court found that “each child
testified sincerely, with emotional insight and clarity.”

¶70 The remand court appeared particularly moved by the
testimony offered by J.H., the brother closest in age to Alice and
Liam. J.H. testified that because he was younger, he had fewer
memories of his family’s life before removal. To help with this,
“his older brothers often told him stories about their parents,
about family trips, birthdays, and everyday memories from
before he could remember.” He testified that “through those
stories, he got to know his parents better.” The court found that
his “testimony demonstrated that the [brothers’] recollections and
storytelling served to strengthen [J.H.’s] emotional connection to
his parents and preserve a sense of shared family identity even
during times of separation.” And the court made particular note
that J.H. “became visibly emotional when talking about” Alice
and Liam and when describing his remarkably vivid memories of
them before the sibling group was separated.

¶71 The court also made note of the testimony offered by
Former Foster Father, who described how Alice and Liam
“maintained a positive and affectionate bond with [Siblings]
during visits” and “enjoyed spending time with them.” Based on
his testimony, the court noted that Siblings’ visits “reinforced
[Alice’s and Liam’s] emotional connection to their family of origin
and did not cause distress or behavioral regression following
contact.” The court found Former Foster Father “to be a credible
witness” and “accord[ed] significant weight to his testimony.”

¶72 In addition, the court made findings about Parents’
relationship with the Children. Siblings testified that Parents

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In re A.H.

“made sustained efforts to stay connected,” even during periods
of separation, and “consistently expressed love and
encouragement” and “never gave up.” And Siblings described
their Parents as “consistently involved in their lives,” which in
turn “foster[ed] a strong sense of belonging and family unity.”
From this, the court found that the Children “share not only a
deep bond with one another but also a strong, healthy, and
enduring attachment to their parents.”

¶73 From the tenor of the remand court’s findings, it is evident
that the testimony from the new witnesses about Alice and Liam’s
bonds with Siblings and Parents painted those relationships in a
new light. Had the juvenile court heard this additional testimony
in October 2020, we deem it extremely unlikely that the court
would have found that Alice and Liam “have little beyond a
biological connection” with Siblings.

¶74 In addition to hearing new evidence about the strength of
the bonds between and among the Children, the remand court
also heard evidence from Expert about the importance of
preserving sibling bonds. During her testimony, in which she
repeatedly referenced empirical studies, Expert “described
sibling relationships as the single most protective factor for
children in the child welfare system who experience separation
from parents.” She “testified at length regarding the
developmental and emotional benefits of children being placed
together with their siblings whenever safely possible.” And she
opined specifically that in relation to Alice and Liam, it was “very
likely” they “would transition well into the home with
Grandparents and [Siblings]” and that it was in their “long-term
best interests to remain connected to [Siblings], Parents,
Grandparents, relatives, community, and culture.” The court
found Expert’s testimony to be “credible and strongly supported
by the empirical findings” that “establish that sibling
relationships are fundamental to emotional security, placement
stability, and long-term well-being.” And the court noted that

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In re A.H.

“[t]he evidence presented demonstrate[d] that permanency
planning that preserves sibling unity produces measurably
superior outcomes and aligns with best practices in child welfare
and attachment science.”

¶75 The lack of trial testimony—like that presented by Expert
on remand—about the importance of sibling bonds was crucial
not only to the juvenile court’s original ruling but also to the
supreme court’s reversal of our decision. We had originally
offered our view—based on caselaw and social science
literature—that sibling bonds were important, especially “to
children who experience chaotic circumstances like abuse or
neglect.” In re A.H., 2022 UT App 114, ¶ 42 (citing cases and
articles). But the supreme court was critical of us on this point,
chiding us for relying on cases and articles when the trial record
itself contained no such evidence. See In re A.H., 2024 UT 26, ¶ 50
(“The role of an appellate court is to review the record as it exists.
Here, the court of appeals relied upon generalized observations
from caselaw and academia about the importance of sibling
relationships and then determined that those observations
outweighed the specific evidence about Alice and Liam that was
in the record.”).

¶76 At the remand hearing, Father filled this evidentiary gap
by presenting precisely the sort of evidence that our supreme
court found lacking. And that evidence was extremely persuasive
to the remand court. Under these circumstances, we consider it
relatively clear that Father was prejudiced by his attorneys’ failure
to present both lay and expert testimony about the strength and
importance of the bonds Alice and Liam had with Siblings.

¶77 Changing Placements, Especially Where Attachment Is
Strong. In its original ruling, the juvenile court emphasized the
strength of the bonds Alice and Liam had with their foster family,
and it concluded that “disruption” of that placement “would be
very detrimental” and would “put them at unnecessary risk for

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future emotional and mental health issues.” In re A.H., 2022 UT
App 114, ¶ 29. But Appointed Counsel did not present any
testimony from an expert witness concerning these issues, and
therefore the juvenile court made these findings and expressed
these concerns in the absence of such evidence. During the
remand hearing, Expert testified about these issues at length, and
the remand court found her testimony on these topics to be
“consistent, evidence-based, and highly persuasive,
demonstrating that gradual, professionally guided transitions
produce superior emotional outcomes for children.” And the
remand court found Expert’s testimony, as a general matter, to be
“coherent, credible, and persuasive,” and presented with
“methodological rigor, ethical objectivity, and adherence to the
highest professional standards.” It is evident from the remand
court’s findings that these issues were presented in a completely
different light than during the October 2020 trial.

¶78 Expert began her testimony on these topics by noting that
children often “securely attach to their foster parent,” and by
explaining that this was “part of the normal child development
trajectory.” Thus, Expert viewed Alice and Liam’s secure and
positive attachment to their foster family as a good thing and as
something to be valued, not only for its own sake but also as an
indication that Alice and Liam are capable of securely attaching
to a caregiver. And Expert acknowledged that disrupting this sort
of strong attachment can certainly be “traumatic” to a child.

¶79 But Expert explained that a placement with relatives is “the
optimal permanency outcome” for children and that permanency
outcomes “cannot be guided through a myopic lens of attachment
alone.” She explained that “kinship placement provides
continuity of identity, culture, and familial narrative, which are
critical for a child’s sense of belonging and long-term emotional
health.” Such placements help a child “maintain connections to
their family history,” which “anchors their self-concept and
reduces feelings of abandonment associated with removal and

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separation.” And she explained that, empirically, “kinship care
tends to produce better outcomes in school performance, mental
health stability, and social functioning because the child’s sense of
continuity is maintained.” She testified that “long-term family
placements are particularly beneficial when siblings can remain
together,” because “siblings share a unique and validating
connection that anchors them to their shared identity and
experiences.” And she offered her view that “separating siblings
should be considered only as a last resort, and only when joint
placement would clearly endanger one or more of the children or
compromise therapeutic treatment.”

¶80 Operating from these premises, Expert offered her
view that, in order to further the objective of prioritizing
placement with relatives, it is often better to transition a child
out of a foster placement—even one in which a strong
attachment has been formed—so that the child can be placed
with relatives. She emphasized that a secure foster-family
attachment should ideally not be abruptly severed. But she
explained that, when done gradually, mindfully, and supported
by a trained mental health professional, children can and should
be safely transitioned out of even secure foster-family
attachments and into kinship placements. She testified that
“successful transitions involve cooperation between caregivers”
and that, when done appropriately, the child “shouldn’t lose
anyone in the process” and the prior caregiver “should be invited
to remain part of the child’s emotional network.” She stated that
this sort of gradual, cooperative transition gives “the child
implicit permission to attach to new caregivers while maintaining
existing bonds.”

¶81 Based on her forensic review of Alice and Liam’s case, and
even after acknowledging the strong attachment they had formed
with their foster family, Expert opined that “it is not in the best
interests of [Alice and Liam] to separate them from their family.”
She offered her view that Alice and Liam would likely “transition

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well” from the foster family “into the home with Grandparents
and [Siblings]” if the transition was undertaken in the manner she
described. And she opined that this sort of transition should be
attempted here because it is in Alice and Liam’s “long-term best
interests to remain connected to” Father and Siblings, as well as
to their “relatives, community, and culture.”

¶82 Judging from the remand court’s description of Expert’s
testimony on these topics and from its findings after listening to
that testimony, it is clear that this testimony would have made a
difference had it been presented at the October 2020 trial. During
the original trial, the juvenile court gave great weight to the
strength of the positive attachment Alice and Liam had with their
foster family. But no testimony was presented at that trial about
safe and gradual transitions out of such placements and into
kinship placements; certainly, no testimony was presented about
how, in many cases, such transitions are the optimal outcome for
a child despite the potential for some temporary short-term
discomfort. When Expert presented this testimony at the remand
hearing, the court found it to be extremely persuasive. We
therefore discern a reasonable probability that the juvenile court,
had it heard testimony like this during the original trial, would
have made different findings and reached different conclusions
about these topics.

¶83 Long-Term Effects. Lastly, the court expressed concern
that “absent termination, Parents . . . might attempt to regain
custody of [Alice and Liam] in the future,” and it concluded that,
in order to protect Alice and Liam’s “stability,” termination and
adoption were in their best interest. In re A.H., 2022 UT App 114,
¶ 29 (cleaned up). But Appointed Counsel did not present any
expert testimony on these topics either, which left the juvenile
court to make its determination without the benefit of such
testimony. On remand, Expert testified at some length about “the
enduring harms associated with termination of parental rights
and the experience of ambiguous loss.” The remand court

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characterized this testimony as “credible and compelling” and
gave it “significant weight,” “finding it to be both empirically
grounded and profoundly relevant to the emotional well-being”
of Alice and Liam. This testimony would have been likely to have
made a difference at the October 2020 trial.

¶84 During the remand hearing, Expert acknowledged that
termination of parental rights followed by adoption does provide
“legal finality.” But she discussed at some length the emotional
costs of achieving legal finality in this way, noting that adoption
“can also introduce profound experiences of loss,” which comes
in two forms: “definitive loss” and “ambiguous loss.” Definitive
loss is “the legal and physical separation from their biological
parents (and in this case, biological siblings).” Ambiguous loss is
“a psychological state of unresolved grief where the loved one
remains psychologically present but physically absent.”
Regarding ambiguous loss, Expert discussed several studies
indicating that adopted children face “increased risk of juvenile
delinquency” and “suicidality” relative to “their non-adopted
peers” and indicating that “adoption is not a singular event but a
lifelong process marked by recurring developmental challenges
related to loss, identity, and belonging.” Expert discussed ways in
which these feelings of loss can be managed and treated.

¶85 But Expert characterized adoption as, in many cases, “a
preventable harm,” and she opined that, where possible, adoption
and its associated “termination of parental rights should never
happen if there is a safe viable alternative that will give a child
legal permanency and a permanent connection to their biological
family,” because “the future risk of harm associated with
termination of parental rights and adoption far outweighs the
temporary heartache of adjusting placements.” And Expert
described “literature and a lot of researchers who say that
generally it is in the best interest of the child, and society, for
parental rights not to be terminated if there’s ever a less-drastic
alternative to it.”

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¶86 Testimony like this was not presented at the October 2020
trial, because Appointed Counsel didn’t file pretrial disclosures
and didn’t seek a continuance once it became apparent that the
State would seek to separate the Children. And especially given
the weight the remand court afforded this testimony, it is
apparent that this testimony would likely have made a difference
at that trial. As with the sibling-bonds issue, see supra ¶ 75,
evidence on these topics was also identified as an evidentiary
lacuna by our supreme court, which noted that the record from
the October 2020 trial “contain[ed] no evidence supporting the
idea that termination would risk causing Alice or Liam long-term
trauma, either from ambiguous loss or otherwise.” In re A.H., 2024
UT 26, ¶ 49. Expert’s testimony filled this gap by presenting
precisely the evidence that our supreme court found lacking.

¶87 Despite the significant weight the remand court appeared
to give the new testimony on all of these fronts, the State and the
GAL nevertheless contend that none of this new testimony would
have made a difference to the outcome of the October 2020 trial,
and they make three arguments in this regard.

¶88 First, the State argues that Father was not prejudiced by the
exclusion of Siblings’ testimony, because Siblings “cannot speak
to the experience of” Alice and Liam and can only testify about
whether they felt a strong bond to Alice and Liam. As the State
puts it, Siblings “cannot speak to the experience of” Alice and
Liam, and even if they could, “their life experiences within the
family are markedly different from those of” Alice and Liam. We
acknowledge that fact witnesses can only ever speak to their own
experiences and their own feelings, and that Siblings therefore
cannot testify directly about whether Alice and Liam feel (or felt,
in 2020) a strong bond with the other members of the family. But
we nevertheless agree with Father’s assertion that “[b]onds
between people are inherently bilateral” and that “[e]vidence of
an older siblings’ bond with a younger sibling is at least probative
as to the younger sibling’s bond with the older sibling.” We

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likewise agree with Father’s statement that juvenile courts
“routinely rely on testimony of parents, foster parents, therapists,
friends, caseworkers, and siblings to determine the [strength of
the] bonds between a particular child and those around them.”
Especially given the court’s reaction to and findings about
Siblings’ testimony, we think that testimony was likely to have
made a difference to the outcome of the juvenile court’s original
findings about the strength of the bonds between the Children.

¶89 Second, both the State and the GAL make a similar
argument, pointing out that a best-interest determination must be
“child-specific” and “considered from the particular child’s point
of view and not from the point of view of the child’s siblings.” We
acknowledge that the question presented concerns the best
interest of Alice and Liam, and not the other five Siblings. But as
already noted, in assessing the best interest of a child, it is
common for a court to hear testimony from other family members,
including siblings and parents.

¶90 Third, the State asserts that Expert’s testimony would not
have made a difference to the juvenile court’s original termination
decision. The State argues that although Expert may have been
qualified, she had never met or examined Alice and Liam, and her
testimony presupposes the idea that Grandparents and Alice and
Liam’s foster family would be cooperative in a therapeutic
transition. The State points out that Expert testified that any
successful transition “would require a carefully staged transition
with the full cooperation of both the current foster parents as well
as the Parents’ family.” And the State argues that this sort of
transition would also “require an immense expenditure of
resources” across states and over a “substantial span of time.”

¶91 But while these things may be true, they do not mean that
Expert’s testimony wasn’t extremely relevant and likely to have
made a difference if it had been presented at trial. First of all,
forensic examinations are common, and findings from such

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examinations are often presented during trials; the fact that Expert
had not met or examined Alice or Liam is not something that
renders her testimony irrelevant. And second, the potential
complexity of a gradual transition in this case does not eliminate
it as a possibility.

¶92 Regarding Expert’s testimony more generally, it would be
one thing if the remand court had found Expert to be not credible,
or if it had found her analysis to be unpersuasive. But that was
emphatically not the case. In an especially passionate and
comprehensive series of findings, the remand court made clear
that it was impressed with Expert. And as noted, Expert’s
testimony helped fill two important evidentiary holes identified
by our supreme court in its decision. We are persuaded that, on
balance, Expert’s testimony would have been likely to have made
a difference to the outcome of the October 2020 trial.

¶93 In the end, Father has shown that Retained Counsel’s and
Appointed Counsel’s deficient performance did indeed prejudice
him at trial. Accordingly, Father has made the necessary showings
on both parts of the ineffective assistance test.

CONCLUSION

¶94 For the reasons discussed, we conclude that Retained
Counsel and Appointed Counsel rendered deficient performance
and that Father was prejudiced thereby. On this basis, we again
vacate the juvenile court’s original order terminating Father’s
rights regarding Alice and Liam, and we once again remand this
matter to the juvenile court, this time for such additional
proceedings as may be appropriate, including a new trial.

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