In re J.S. (L.M. v. State)

2013 UT App 294
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.S.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
L.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20130811-CA
Filed December 12, 2013
Third District Juvenile Court, Salt Lake Department
The Honorable Andrew A. Valdez
No. 1086191
Colleen K. Coebergh, Attorney for Appellant
Brian L. Tarbet and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, CAROLYN B. MCHUGH, AND
STEPHEN L. ROTH.
PER CURIAM:
¶1 L.M. (Mother) appeals the August 23, 2013 adjudication
order. We affirm.
¶2 Mother asserts that she received ineffective assistance of
counsel after her trial counsel declined to subpoena Mother’s

In re J.S.
20130811-CA 2 2013 UT App 294
proposed witnesses. Parents in a child welfare proceeding have a
statutory right to the effective assistance of counsel. See Utah Code
Ann. § 78A-6-1111(1)(a) (LexisNexis 2012). To prevail on an
ineffective assistance of counsel claim, an appellant must
demonstrate that counsel’s performance was objectively deficient,
and that a reasonable probability exists that but for the deficient
conduct, defendant would have obtained a more favorable
outcome at trial. See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶3 During trial, Mother informed the juvenile court that she
would like to call certain witnesses, which her trial counsel had
declined to subpoena. Mother requested a continuance in order to
subpoena the proposed witnesses. The juvenile court questioned
Mother regarding the proposed witnesses’ identity and the
substance of their anticipated testimony. The record objectively
demonstrates that Mother’s proposed witnesses would have been
unable to offer any testimony that was relevant to the issues before
the court. It is apparent from the record that trial counsel had a
legitimate basis for declining to call Mother’s proposed witnesses,
and that no prejudice resulted from trial counsel’s strategic
decision.
¶4 Mother next asserts that rule 55(b) of the Utah Rules of
Appellate Procedure improperly requires trial counsel to assert his
or her own ineffectiveness in a petition on appeal. See Utah R. App.
P. 55(b) (“Claims of ineffective assistance of counsel do not
constitute extraordinary circumstances [to allow withdrawal of
counsel] but should be raised by trial counsel in the petition on
appeal.”). In the context of child welfare proceedings, once a claim
of ineffective assistance of trial counsel is raised, this court
independently reviews the juvenile court’s record, and any
responses to the petition on appeal. If the court determines that the
alleged ineffective assistance of counsel warrants further briefing,
we may order the juvenile court to appoint conflict counsel for
further briefing and argument. We conclude that rule 55(b) does

In re J.S.
1. We observe that this court reached the same result in an earlier
case when we determined that rule 55(b) does not impede an
appellant from asserting ineffective assistance of counsel claims in
the petition on appeal. See In re J.D., 2006 UT App 29U, para. 1 (per
curiam).
20130811-CA 3 2013 UT App 294
not deprive Mother of a fair opportunity to present her ineffective
assistance of counsel claims on appeal.1
¶5 Affirmed.