In re Adoption of P.P.

2024 UT App 62

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF P.P.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.

B.P.,
Appellant,
v.
B.M. AND J.M.,
Appellees.

Opinion
No. 20230486-CA
Filed May 2, 2024

Third District Court, Salt Lake Department
The Honorable Kara Pettit
No. 222900323

Sheleigh Harding, Attorney for Appellant
Sierra D. Hansen, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 B.P. (Father) appeals from a district court order
terminating his parental rights to his daughter, Phoebe. 1 Father’s
only claim on appeal is that his counsel (Counsel) provided
ineffective assistance for failing to call certain witnesses to testify
at trial. But because Father’s claim hinges on his request for a
remand to develop the record, and because we deny the request,
we affirm the district court’s order.

1. We employ a pseudonym for the child.
In re Adoption of P.P.

BACKGROUND

¶2 In 2014, two weeks after Phoebe was born, Father was
arrested on a parole violation, and he remained incarcerated on
various charges for “a big portion of her life.” Phoebe lived with
her mother (Mother) until the summer of 2021, when Mother
became seriously ill and was hospitalized with rapidly declining
health. Two weeks before Mother’s eventual death, Father was
released from prison.

¶3 Phoebe spent the day before Mother’s death with Father.
But, on Mother’s wishes, B.M., Phoebe’s maternal grandmother
(Grandmother), and Grandmother’s husband, J.M. (Step-
Grandfather; collectively, Grandparents), retrieved her from
Father.2 The next day was an “extremely traumatic day,” as it
became clear that Mother was dying. Father appeared at the
hospital demanding to take Phoebe with him. His behavior was
“intense,” “erratic,” and “scary” enough that security removed
him from the hospital. That night, at a vigil in Mother’s honor,
Grandmother refused to let Phoebe leave with Father, so he called
the police to assist him. But the police declined to physically place
Phoebe with Father.

¶4 Phoebe then went to live with Grandparents. Grandmother
initiated guardianship proceedings and Father filed an objection.
The case was referred to mediation, which was unsuccessful
because Father failed to appear. The court found that Father’s
failure to appear “amount[ed] to a default” and granted
Grandmother permanent guardianship. The court noted Father’s
parental rights had not been severed and recommended he seek

2. There is some dispute about how much time Phoebe spent with
Father before Mother died. Father testified it was “four or five
days,” but according to Grandparents, she spent just one day with
him.

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services and parent-time, but because he was eventually
incarcerated again, Father did not do so.

¶5 In August 2022, Grandparents petitioned to adopt Phoebe.
The district court held a one-day bench trial. At trial, Step-
Grandfather testified that Phoebe was “scared” of Father because
of his behavior and had expressed fear that Father would try to
take her. Step-Grandfather testified that Phoebe felt abandoned
by Father, as he had never written her letters, called her on her
birthday, or sent her gifts. Step-Grandfather stated he had a “very
minimal” relationship with Father and believed “it wouldn’t be a
safe environment” for Phoebe to live with him. Mother’s friend
(Friend), who had been at the hospital on the day of Mother’s
death, testified about Father’s “scary” and “intense” behavior in
trying to take Phoebe with him against Mother’s wishes.
Grandmother testified that Father called Phoebe only one time
since Mother’s death and had not followed the court’s
guardianship order to establish a relationship with her.
Grandmother stated that she could not work well with Father
because she did not have a relationship with him.

¶6 Although Father’s initial disclosures included a list of ten
potential witnesses, Counsel called only one witness at trial—
Father himself. Father testified that he had regular
communication with Mother while Mother was still alive and he
would talk to Phoebe whenever he could, but he admitted that
these phone calls mostly consisted of his talking to Mother. He
admitted he had been incarcerated for a “big portion” of Phoebe’s
life and had not attended the guardianship proceedings, but he
noted that Phoebe had spent “four or five days” with him before
Mother died. And he testified that he had tried to contact Phoebe
after Mother’s death, but Grandparents had given him a “bogus
number” and he could not “get ahold of them.” He stated that
Grandparents had a “vendetta” against him.

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¶7 The court then issued its findings of fact and conclusions
of law. First, the court found clear and convincing evidence of
statutory grounds for termination, concluding Father had both
abandoned Phoebe and made only token efforts to support or
communicate with her. With respect to abandonment, the court
found prima facie evidence that Father had no communication
with Phoebe since shortly after Mother’s death, he had defaulted
in the guardianship proceeding, and Grandparents were not
aware of his location until they saw a news report that he had been
arrested. And with respect to token efforts, the court found Father
had, in fact, made no effort to support Phoebe “financially or
emotionally”; he was incarcerated for “substantial periods” of her
life and had made no attempt to communicate with her while
incarcerated; and though he had “some communication with
[Phoebe] while out of jail, these time periods were short.” The
court also found that Father had “never provided a home” for
Phoebe and had never lived with her.

¶8 The court then turned to what it called the “crux of this
case”—whether termination was in Phoebe’s best interest. The
court found the presumption of preserving “natural familial
bonds” had been rebutted in this case because Father had never
lived with Phoebe, did not fulfill “the normal parental
obligations/responsibilities,” and “never had a positive, nurturing
parent-child relationship” with her. The court also considered
whether a permanent guardianship could equally protect and
benefit Phoebe, but it found that Father and Grandparents “have
a terrible relationship” and “will never be able to work together
to ensure [Phoebe] has a healthy relationship” with both parties.
And though Phoebe had some interaction with Father’s extended
family, the court found this was “not substantial enough to
outweigh the harms” to Phoebe resulting from a lack of
permanence in her guardianship arrangement. The court also
found that Father was unable to act in Phoebe’s best interest,
demonstrated by his calling the police to remove Phoebe from

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Mother’s vigil, which was “highly traumatic” for Phoebe. The
court found it likely that, should the guardianship remain intact,
Phoebe would have to endure the fear of recurring traumatic
events. Thus, the court found it strictly necessary from Phoebe’s
point of view to terminate Father’s parental rights.

¶9 Father immediately filed a notice of appeal from the
termination order. In the meantime, the court granted
Grandparents’ petition for adoption. Father then filed a notice of
appeal from the adoption decree. On the parties’ stipulation, this
court then consolidated the two appeals. After his appeals were
consolidated, Father filed a motion requesting a stay of briefing,
alleging Counsel provided ineffective assistance and requesting a
remand to the district court to develop the record in support of
his claim. Father noted that because this was a civil case, remand
under rule 23B of the Utah Rules of Appellate Procedure was not
available but urged that remand could nonetheless be granted
under one of several other “procedural pathways.”

¶10 In support of his request for remand, Father attached
declarations from six potential witnesses—his mother, sister,
grandmother, uncle, aunt, and wife. Each declaration offered a
variation on the same basic facts: Father’s extended family
members were “heavily involved” with Phoebe’s and Mother’s
lives, Father and Phoebe had “weekly” phone contact, Father and
Phoebe “lived” together with Father’s mother and sister before
Mother’s death, Father was a “regular dad” and had established
a “loving and affectionate . . . father/daughter relationship” with
Phoebe, and Grandparents were “difficult to contact” or had
“completely blocked” Father’s extended family from contacting
Phoebe after Mother’s death. Father argued this testimony would
have changed the outcome of his trial—rendering Counsel’s
failure to call the witnesses ineffective assistance. We denied the
stay and deferred ruling on Father’s request for remand “pending
briefing and plenary consideration of the appeal.”

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ISSUE AND STANDARD OF REVIEW

¶11 Father’s only argument on appeal is that Counsel provided
ineffective assistance by failing to call several witnesses during
the termination proceeding. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned
up).

ANALYSIS

¶12 Father argues Counsel provided ineffective assistance in
failing to call several witnesses at the termination trial. To prevail
on his claim, Father “must demonstrate both (1) that [Counsel’s]
performance was deficient and (2) that [he] suffered prejudice as
a result.” In re D.R., 2022 UT App 124, ¶ 16, 521 P.3d 545 (cleaned
up), cert. denied, 525 P.3d 1264 (Utah 2023). But because the record
does not support his claim, Father requests a remand for the
district court to hold an evidentiary hearing regarding Counsel’s
alleged ineffective assistance.

¶13 Father recognizes that remand here is not possible under
rule 23B of the Utah Rules of Appellate Procedure. See Utah R.
App. P. 23B(a) (“A party to an appeal in a criminal case may move
the court to remand the case to the trial court for entry of findings
of fact, necessary for the appellate court’s determination of a claim
of ineffective assistance of counsel.” (emphasis added)). But he
urges we may nonetheless grant a remand patterned after two of
our prior decisions, In re S.H., 2007 UT App 8, 155 P.3d 109, and
In re C.M.R., 2020 UT App 114, 473 P.3d 184. In both cases we
determined that—in the context of child welfare proceedings in
juvenile court—parents who provided extra-record evidence
alleging ineffective assistance on appeal were entitled to a remand
similar to that provided by rule 23B to develop the record in
support of their claims. See In re C.M.R., 2020 UT App 114, ¶¶ 31–

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32; In re S.H., 2007 UT App 8, ¶¶ 14–16. As this type of remand is
“analogous to remand under rule 23B of the Utah Rules of
Appellate Procedure, it requires a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.” In re
D.R., 2022 UT App 124, ¶ 18 (cleaned up).

¶14 This procedure has not yet been applied in the context of
private termination petitions filed in district court. 3 But we
decline Father’s invitation to do so here because even were we to
grant him such a remand, he would be unable to show that
Counsel was ineffective. In order to terminate Father’s parental
rights, the district court was required to find that (1) one or more
of the statutory grounds for termination were present and (2)
termination was in Phoebe’s best interest. See In re adoption of J.E.,
2024 UT App 34, ¶ 10. The court made detailed findings on each
step and, even accepting the facts asserted in the carefully worded
witness declarations as true, they do not undermine these
findings.

¶15 Several of the declarations asserted that Father had weekly
phone contact with Phoebe before Mother’s death. But this does
not contradict the court’s finding that Father’s last contact with
Phoebe was shortly after Mother’s death and nearly two years
prior to the trial. Several of the declarations stated that Phoebe

3. Given the concern that the “rule 23B-like remand” procedure
created in In re S.H., 2007 UT App 8, 155 P.3d 109, may conflict
with the Utah Rules of Appellate Procedure, see In re C.M.R., 2020
UT App 114, ¶¶ 36–37, 473 P.3d 184 (Harris, J., concurring), and
because it has been applied only in the child welfare context in
juvenile court, we urge the Supreme Court’s Advisory Committee
on the Rules of Appellate Procedure to consider lending formality
to the procedure and to provide for its application to district court
private termination proceedings as well as to juvenile court
termination proceedings.

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had “lived” with Father before Mother’s death. But Father himself
testified he had only spent “four or five days” with Phoebe during
that time. And, regardless, this testimony would not have altered
the court’s finding that Father had “never provided a home for
[Phoebe], much less a permanent home, and has never lived with”
her.

¶16 All six witness declarations suggested that Father was a
“regular dad,” had a “loving and affectionate . . . father/daughter
relationship” with Phoebe, and was attentive to her needs. But the
court determined that there was strong evidence that Father
“lacks the ability to act in [Phoebe’s] best interest” because, after
never having custody of her, “he called the police to physically
remove her from” the vigil on the day of Mother’s death, which
was “highly traumatic” for her. Further, the court found that
Father knowingly allowed guardianship to be granted to
Grandparents and had never followed the court’s orders to
develop a relationship with Phoebe pursuant to the guardianship
order. Testimony about positive interactions between Phoebe and
Father—observable for at most five days—does not dispel the
court’s finding that Father had “never had a positive, nurturing
parent-child relationship” with her.

¶17 Several of the potential witnesses stated that Grandparents
had “abducted” Phoebe from Father. And several alleged that
Grandparents had either been difficult to reach or had
“completely blocked” them from contacting Phoebe. But the court
found that Phoebe had interacted with Father’s extended family
under the guardianship order, though this contact was “not
substantial enough to outweigh the harms to” Phoebe from a lack
of permanency. And, if anything, these apparent conflicts
between Grandparents and Father’s family only seem to add
support to the court’s finding that Grandparents and Father had
a “terrible relationship” and would be unable to work together to
facilitate a healthy relationship between all parties.

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¶18 We fail to see how this testimony from Father’s family
members would have changed the court’s conclusion that
statutory grounds for termination existed and that termination
was in Phoebe’s best interest. Thus, even were we to grant a
remand to Father, he would be unable to show that Counsel’s
failure to call these witnesses prejudiced him. And without a
showing of prejudice, his ineffective assistance claim would fail.
See In re D.R., 2022 UT App 124, ¶ 16 (noting a parent must show
“both (1) that counsel’s performance was deficient and (2) that [the
parent] suffered prejudice as a result” (emphasis added) (cleaned
up)). Accordingly, we deny Father’s request for remand. Cf. State
v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (stating that, in the rule
23B context, “[i]t stands to reason that if the defendant could not
meet the test for ineffective assistance of counsel, even if his new
factual allegations were true, there is no reason to remand the
case, and we should deny the motion”).

CONCLUSION

¶19 Father’s appeal presented one issue: whether Counsel
provided ineffective assistance. Because this argument is
contingent on Father’s request for a remand, and because we deny
this request, we affirm the district court’s order in all respects.

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