State v. State, 20140055–CA.

• Decision Date: 11 September 2015
• Docket Number: No. 20140055–CA.,20140055–CA.
• Citation: 2015 UT App 230,360 P.3d 16
• Parties: STATE of Utah, in the interest of S.S. and A.S., persons under eighteen years of age. S.E., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

360 P.3d 16

2015 UT App 230

STATE of Utah, in the interest of S.S. and A.S., persons under eighteen years of age.

S.E., Appellant,

v.State of Utah, Appellee.

No. 20140055–CA.

Court of Appeals of Utah.

Sept. 11, 2015.

Paul D. Doddand Aaron P. Dodd, Provo, for Appellant.

Sean D. Reyesand John M. Peterson, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian ad Litem.

Opinion

PEARCE, Judge:

¶ 1 S.E. (Mother) appeals from the juvenile court's order terminating her parental rights in her two boys, A.S. and S.S. Mother argues that she received ineffective assistance from her counsel at the termination trial and that the juvenile court failed to adequately inquire into the reasons for her expressed dissatisfaction with counsel. We agree that Mother received ineffective assistance of counsel. We reverse the juvenile court's termination order and remand for further proceedings.

BACKGROUND

¶ 2 This appeal concerns Mother's right to parent A.S., born in July 2010, and S.S., born in June 2012. As of early 2012, Mother lived with A.S. and his father (Father).¹Mother's two older children from a prior relationship, P.P. and S.P., also lived in the home.²

¶ 3 In May 2012, while Mother was jailed in an unrelated case, Father became upset at P.P. for “being disrespectful” to an uncle. During this episode, Father grabbed P.P. by the arm and hit him, causing “bruises and scratches on [P.P.'s] right forearm and scratches on both sides of his neck.” Father also threw a beer can at P.P. and spat on him. The next day, while P.P. was at school, a teaching assistant noticed and reported the bruising and scratches. In response, the Division of Child and Family Services (DCFS) requested, and the juvenile court issued, a warrant to take P.P. and S.P. into protective custody. A.S. was placed in the care of relatives. The juvenile court adjudicated the three children as abused or neglected. After S.S. was born in June 2012, he was found to be a sibling at risk. Upon Mother's release from jail, the children were returned to her custody, subject to protective supervision services provided by DCFS.

¶ 4 Mother initially responded fairly well to those services. But by the fall of 2012, Mother had become non-compliant with DCFS's supervision services. Mother was also jailed again. The juvenile court ordered P.P. and S.P. to be placed in the custody of their biological father in Iowa and ordered DCFS to take custody of A.S. and S.S. A.S. and S.S. were subsequently placed in a non-kinship foster home.

¶ 5 In January 2013, after Mother was released from jail, she moved to Iowa to be with P.P. and S.P. During the first few months of 2013, Mother called A.S. and S.S. only four times.³Mother did not maintain regular contact with DCFS, although the record reflects that in March 2013 she demanded that DCFS return A.S. and S.S. to her. During this time, Mother apparently had no contact with her appointed counsel in this matter (Trial Counsel).⁴

¶ 6 In April 2013, the juvenile court held a hearing to determine A.S. and S.S.'s placement. Mother did not attend the hearing. Trial Counsel was present. At the conclusion of the hearing, the juvenile court placed A.S. and S.S. in a foster home in Wyoming with foster parents that are relatives of Father.

¶ 7 Between April and July 2013, Mother remained in Iowa and did not visit A.S. and S.S. During this time, Mother was also arrested for theft in Iowa. She did not call A.S. and S.S. at all in April or May, but by June she began calling them more often. Between June 10 and August 14, Mother called A.S. and S.S. at least eight times, or almost once a week. During this period, DCFS had difficulties contacting Mother by phone and considered her to be non-compliant with its reunification efforts.

¶ 8 In July 2013, the juvenile court conducted a review hearing; Mother participated telephonically. Despite Mother's assertions that she had been calling A.S. and S.S. and attempting to comply with DCFS's requirements, the juvenile court terminated reunification services and changed the permanency goal for A.S. and S.S. to termination of Mother's and Father's parental rights and adoption. At the July hearing, Mother expressed dissatisfaction with Trial Counsel, stating that she was trying to obtain a different lawyer because Trial Counsel “hasn't been doing a lot.”

¶ 9 In August 2013, the State filed a petition to terminate Mother's parental rights. The petition alleged multiple grounds for termination, including abandonment, neglect, lack of parental adjustment, and failure to remedy the circumstances that led to A.S. and S.S.'s out-of-home placement. The petition contained no allegation that Mother had ever abused A.S. or S.S. Rather, all of the grounds for termination flowed directly or indirectly from Mother's absence from A.S. and S.S.'s lives.

¶ 10 The juvenile court set November 2013 as the date for the termination of parental rights trial. Mother participated telephonically in two pretrial hearings during September and October. At the October hearing, she stated to the juvenile court that she was in the process of retaining different counsel, explaining that Trial Counsel “hasn't really done anything to help me on this case [and all] he's really actually done is hurt my case.”

¶ 11 Trial was held on November 12, 2013. Mother participated by phone. Trial Counsel was present in person. At the beginning of the trial, Trial Counsel informed the juvenile court that he had received a fax from Mother that morning “asking for a continuance on this case so she can seek better counsel, since her lawyer isn't doing anything at all.” In response to the juvenile court's questioning, Mother explained that she had recently obtained the funds she needed to retain new counsel. The juvenile court denied the request for a continuance on timeliness grounds without inquiring into the reasons for Mother's dissatisfaction with Trial Counsel.⁵

¶ 12 Trial then commenced. Trial Counsel made no opening statement on Mother's behalf. After its opening statement, the State began submitting documentary exhibits. After the State offered its third exhibit, Trial Counsel announced, “Your Honor, I have seen all the exhibits. I have no objection to any of them.... [T]he Court would accept them no matter whether there was an objection or not.” The juvenile court responded, “Not necessarily. If you want to make [an objection], make one.” Trial Counsel remained silent as DCFS submitted its remaining exhibits, thirty-six in total, and confirmed at the end of the process that he had no objections.

¶ 13 At trial, the State called Mother's DCFS case worker and A.S. and S.S.'s Wyoming foster mother. The case worker testified about Mother's sporadic communications with A.S. and S.S., Mother's failure to stay in contact with DCFS, and Mother's failure to comply with DCFS's reunification requirements. Trial Counsel raised no objections during the case worker's testimony. Trial Counsel then declined to cross-examine the case worker.

¶ 14 The foster mother testified about her relationship with A.S. and S.S. and Mother's communications with them. Trial Counsel remained silent during the foster mother's testimony, except when the foster mother offered testimony concerning pictures of A.S. and S.S. at her home. At this point, Trial Counsel volunteered that he was “willing to stipulate that [A.S. and S.S.] look cute and they're happy in the home.” Trial Counsel also commented to the foster mother, “And you do a very excellent job with the camera.” Trial Counsel did not raise any objections to the foster mother's testimony and again declined to conduct cross-examination. The State then rested its case.⁶

¶ 15 The juvenile court asked Trial Counsel if there was anything he would like to present, and Trial Counsel responded, “No, your Honor.” The juvenile court then asked Mother if she had anything to say. Mother made a brief statement to the court. Mother began trying to explain that she maintained telephone contact with A.S. and S.S., that she had a suitable home for them in Iowa and was working, and that her children should never have been placed in Wyoming. Trial Counsel did not conduct a direct examination to help Mother present her version of events to the juvenile court. Instead, the State, then the guardian ad litem (the GAL), cross-examined Mother.

¶ 16 Trial counsel raised no objections during Mother's cross-examination, during which Mother admitted that she had not seen A.S. and S.S. for close to a year. Mother also testified that she “[did not] have the means to come out and see them,” that she was expecting them to be sent to her in Iowa under the “interstate compound,” and that she currently lived in a large house that was suitable for A.S. and S.S.⁷

¶ 17 After the State and the GAL finished their questioning, Trial Counsel finally decided to question Mother. However, rather than attempt to elicit favorable testimony from Mother or otherwise rehabilitate her case, Trial Counsel questioned Mother regarding her lack of communication with him. When Mother responded that she had tried to call Trial Counsel “a few times,” Trial Counsel asked her, “What were the dates that you tried to call my office?” Mother thought she had called Trial Counsel in February, March, and June, and on the day of trial, but had not received return calls. Trial Counsel then asked if Mother had ever written him to inform him of her address. Mother continued to focus on the phone calls, stating, “I never got any return phone calls from you, actually. Like even when—you never even cross examined the witnesses, let alone—” Trial Counsel cut her off, stating, “Nothing further. There's no sense in it, Judge.”

¶ 18 The juvenile court then called for closing arguments, beginning with Trial Counsel. Trial Counsel responded, “Nothing to argue, Judge.” The State and the GAL also submitted the matter without closing argument, and the juvenile court issued its oral ruling terminating Mother's parental...