2023 UT App 114
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF R.G.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.M.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20220629-CA
Filed September 28, 2023
Second District Juvenile Court, Ogden Department
The Honorable Tasha Williams
No. 1183589
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 M.M. (Mother) appeals the juvenile court’s order
terminating her parental rights to R.G. (Child). Mother argues she
received ineffective assistance of counsel because the court would
not allow her lawyer (Counsel) to withdraw from representing
her at trial despite the fact that Mother did not appear at trial.
Mother has not persuaded us that the court was wrong to deny
Counsel’s motion to withdraw or that Counsel was ineffective as
a result, and we affirm the court’s termination order.
In re R.G.
BACKGROUND
¶2 Child was born on January 12, 2020. The following day, the
Division of Child and Family Services (DCFS) received a referral
indicating that Mother tested positive for illegal substances both
at the time of Child’s birth and during her pregnancy. The referral
also reported that Child was Mother’s sixth biological child and
that Mother had lost custody of her other five children. Thereafter,
a DCFS caseworker put a safety plan in place and Child was
allowed to leave the hospital and return home with Mother and
Child’s biological father, G.G. (Father). 1 Approximately one
month later, the juvenile court found that Mother had abused
Child by using illegal substances during her pregnancy and that
Child was a sibling at risk of abuse or neglect. Child was removed
from Mother’s custody and placed in the custody of DCFS.
¶3 The juvenile court ordered reunification services for
Mother. After a year working with her, the court terminated
reunification services, finding that Mother had failed to comply
with the court’s orders and the service plan and to consistently
engage in services. The matter proceeded to a termination trial
that took place in November 2021.
¶4 Despite having proper notice, Mother failed to appear at
the termination trial. Counsel moved to be released due to this
failure, and the juvenile court granted Counsel’s motion. The trial
then proceeded by proffer. At the close of trial, the court entered
an order terminating Mother’s parental rights, which Mother
subsequently appealed. Thereafter, the State, the guardian ad
litem (GAL), Mother, and Father filed a stipulated motion for
summary reversal, wherein all parties agreed that this first
termination trial “failed to comport with due process.” This court
1. Father’s parental rights to Child were terminated at the same
time as Mother’s. Because this appeal does not concern Father, we
recount the facts that relate specifically to Mother.
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granted the motion and accordingly vacated the termination
order and remanded for a new trial.
¶5 The second termination trial occurred over the course of
three days in April 2022. Approximately three weeks before trial,
the juvenile court issued an order informing the parties that the
trial would be held in person. 2 In the order, the court noted that
Mother had made a “request to appear virtually.” The court
granted the request, stating that Mother “may be allowed to
attend virtually if she joins the hearing by video and her video
remains on camera throughout the hearing.”
¶6 Mother did not appear—virtually or in person—during
any part of the three-day termination trial. On the first day of trial,
Counsel asked the court for a continuance, arguing that Mother
had “a health concern.” But Counsel did not provide any
additional information or documentation to support this claim,
and the court denied the request, finding that Counsel could not
establish that a continuance was warranted under rule 54 of the
Utah Rules of Juvenile Procedure.
¶7 The trial then proceeded with Father as the first witness. In
the middle of Father’s testimony, Counsel interrupted and asked
the court to be “released.” Counsel explained that she was in a
“tricky situation . . . attempting to defend a termination petition
with no client.” The State and the GAL objected to Counsel’s
request to withdraw. Both parties acknowledged that the
withdrawal of counsel in the first termination trial had been
2. Prior to the entry of this order, the trial was scheduled to be
conducted remotely, in accordance with the Administrative
Order for Court Operations During Pandemic. See Administrative
Order for Court Operations During Pandemic, Utah Supreme
Court (June 26, 2020), https://legacy.utcourts.gov/alerts/docs/202
00626%20-%20Amended%20Pandemic%20Administrative%20Or
der.pdf [https://perma.cc/9KE8-9U7R].
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In re R.G.
problematic and that it had likely been a contributing factor in the
decision to retry the case. 3 However, the GAL opined that if
Counsel complied with the withdrawal process set forth in rule 53
of the Utah Rules of Juvenile Procedure, he would not oppose
Counsel’s request to withdraw. But when the court questioned
Counsel about whether she had complied with the rule 53
requirements, and specifically whether she had informed Mother
that she would be withdrawing, she acknowledged that she had
not.
¶8 After considering the parties’ arguments, the court denied
Counsel’s motion to withdraw. The court explained that while it
understood its decision put Counsel “in a precarious situation,”
Counsel had not met the criteria to withdraw pursuant to rule 53.
The court asked Counsel to “do the best you can,” and informed
her that the court would “readdress [the request] if there’s more
information that comes through.”
¶9 Counsel appeared without Mother on the remaining two
days of trial. At the close of trial, the juvenile court entered a
comprehensive order terminating Mother’s parental rights to
Child.
ISSUE AND STANDARDS OF REVIEW
¶10 Mother now appeals the juvenile court’s termination order,
asserting that Counsel rendered constitutionally ineffective
3. As explained above, the first termination order was vacated
based on the parties’ stipulated motion for summary reversal.
Consequently, the merits of the first termination order were not
briefed, and this court’s order reversing and remanding did not
resolve the merits of the issues raised on appeal. Therefore, while
all parties acknowledge that the absence of counsel in the first trial
was an issue, there is no appellate decision affirmatively stating
that this was the basis for reversal.
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In re R.G.
assistance because Counsel had a “legal conflict” with Mother.
Although Mother frames the issue as an ineffective assistance of
counsel claim, her argument mostly implicates the propriety of
the juvenile court’s decision to deny Counsel’s motion to
withdraw. “Whether to allow an indigent [party’s] attorney to
withdraw . . . is a matter committed to the [juvenile] court’s sound
discretion and will be reversed only for an abuse of discretion.”
State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997). “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” In re S.S., 2015 UT App 230,
¶ 20, 360 P.3d 16 (quotation simplified).
ANALYSIS
¶11 Mother argues the juvenile court’s refusal to allow Counsel
to withdraw after Mother failed to appear for trial gave rise to a
conflict of interest between Mother and Counsel that resulted in
Mother receiving ineffective assistance of counsel. According to
Mother, the court’s “erroneous ruling” created a conflict by
placing Counsel in a position that required Counsel “to present
damaging evidence just to placate [Mother] and demonstrate to
the Court [that Counsel] was ‘doing her best.’” In essence,
Mother’s argument raises two questions: (1) whether the juvenile
court erred in denying Counsel’s motion to withdraw and
(2) whether Mother received ineffective assistance of counsel as a
result of the court’s ruling. Because we conclude the court did not
abuse its discretion in denying Counsel’s motion to withdraw, we
likewise determine that Mother did not receive ineffective
assistance because of that decision.
¶12 Motions for appointed counsel to withdraw are governed
by rule 53 of the Utah Rules of Juvenile Procedure. That rule
provides that “[c]ourt-appointed counsel may not withdraw as
counsel of record except upon motion and order of the court.”
Utah R. Juv. P. 53(b)(2). A motion to withdraw must be made
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In re R.G.
“either in writing or orally before the court at a hearing” and must
include
(i) A certification from counsel that the represented
party has been informed of the motion to withdraw
and their right to counsel; and
(ii) A certification from counsel that the represented
party has been informed of their rights to appeal,
and the availability of post judgment motions and
motion to stay pending appeal; or
(iii) The efforts counsel has made to inform the
represented party of subsections (c)(1)(i) and
(c)(1)(ii).
Id. R. 53(c)(1).
¶13 Here, Counsel moved to withdraw shortly after the
termination trial began. After listening to the State’s and the
GAL’s opposition to her motion, Counsel admitted to the juvenile
court that she could not meet the certification requirements under
rule 53(c). Counsel explained that prior to trial, she received a
memo indicating that the “main” reason the case had been
remanded for a new trial “was the release of counsel” in the first
trial. In light of this, Counsel stated, “[I] mention[ed] to [Mother]
that it was possible that I would be trying to defend a case, a
termination petition without her, without a client. So I have not
notified her that the Court would release me.” After considering
the parties’ arguments, the court denied Counsel’s motion to
withdraw, explaining that Counsel had not made the
certifications required under rule 53(c). In addition, the court
noted that release under rule 53(b) is discretionary.
¶14 In light of the foregoing, we cannot say the juvenile court
abused its discretion in denying Counsel’s motion to withdraw.
The court explained on the record the reasons for denying the
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In re R.G.
motion. Importantly, the court found that Counsel had not made
the required rule 53(c) certifications supporting the motion,
inasmuch as Counsel had admitted that Mother had not been
informed that Counsel would be moving to withdraw. Moreover,
the court found that even if the proper certifications had been
made, the ultimate decision to approve the motion was
discretionary with the court. Here, even assuming Counsel could
certify that she spoke to Mother about her right to representation
and appeal rights, we cannot say that it would have been an abuse
of the court’s discretion to deny the motion. Among other reasons
the court might have exercised its discretion to deny the motion
include that the motion was not made until after the start of trial,
despite ample notice of the proceedings; that the release of
counsel in the first trial was an issue that had likely been a
contributing factor in the need for a remand; and that it was
Mother’s conduct in failing to appear at trial, rather than
Counsel’s actions, which prompted Counsel to make the motion. 4
4. Mother resists this conclusion, asserting that while rule 53(c)
requires “certification” by counsel about certain advisements to
the client, this court “must weigh the purpose, practicality and
advisability of strict compliance [with rule 53(c)] against the
institutional harm of ‘setting appointed counsel up’ to be forced
into the untenable position [Counsel] was placed in this case.” But
Mother’s position ignores that “it is our duty and practice to
adhere to the plain language of a rule.” Cougar Canyon Loan, LLC
v. Cypress Fund, LLC, 2020 UT 28, ¶ 13, 466 P.3d 171 (quotation
simplified). Because of this, “where an appellant presents
compelling reasons for a policy shift that is not currently
supported by the plain language of our rules of procedure, we do
not rewrite the rule on the fly. Rather, we refer the issue to the
appropriate rules committee for additional study, and, if
appropriate, we amend the language of the relevant rule through
our normal rule-making process.” Id. ¶ 15 (quotation simplified).
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In re R.G.
¶15 Notwithstanding the correctness of the juvenile court’s
denial of Counsel’s motion to withdraw, Mother contends the
representation Counsel provided to Mother in her absence did not
amount to effective assistance. “To establish her ineffective
assistance of counsel claim, Mother must show that Counsel’s
performance was objectively deficient and that Counsel’s
deficient performance prejudiced the case.” See In re D.G., 2022 UT
App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527
P.3d 1106 (Utah 2023). Because failure to establish either deficient
performance or prejudice is fatal to an ineffective assistance claim,
we are free to address Mother’s claim under either prong. See State
v. Rosen, 2021 UT App 32, ¶ 8, 484 P.3d 1225, cert. denied, 496 P.3d
714 (Utah 2021). Accordingly, we address only the deficient-
performance prong here.
¶16 To demonstrate deficient performance, Mother must
persuade this court that, considering the record as a whole,
Counsel’s performance was objectively unreasonable. See State v.
Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. But Mother cannot do so
here, where Counsel’s continued participation at trial comported
with the juvenile court’s proper denial of Counsel’s motion to
withdraw and Mother’s claim that Counsel’s continued
representation in her absence harmed her.
¶17 First, Mother was not required to appear at the termination
trial. As this court has explained, “there is no absolute statutory
or constitutional right to attend the trial in child welfare matters,
including termination proceedings.” In re Z.Z., 2013 UT App 215,
¶ 20, 310 P.3d 772 (quotation simplified), cert. denied, 324 P.3d 640
(Utah 2014). “Notice of the proceedings is alone sufficient to allow
a [parent] to exercise the right to be present by appearing, or to
waive that right through voluntary absence.” Id. (quotation
simplified). Here, Mother had actual notice of the proceeding. As
Mother’s appellate counsel concedes, “[t]he [termination] trial
commenced with an expectation that [Mother] would sign on as a
virtual participant to the hearing.” That Mother chose not to
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In re R.G.
appear may have put her at a disadvantage, but it does not follow
that Counsel was ineffective as a result.
¶18 Second, despite Mother’s failure to appear at trial, she was
still entitled to representation. A parent’s right to counsel at a
termination trial is statutorily based. See In re A.E., 2001 UT App
202, ¶ 10, 29 P.3d 31; see also Utah Code § 78B-22-201(1)(b). To
safeguard this right, appointed counsel may be properly waived
only if “the record as a whole reflects the parent’s reasonable
understanding of the proceedings and awareness of the right to
counsel.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (per
curiam) (quotation simplified); see also In re A.E., 2001 UT App 202,
¶¶ 12–13. Here, Mother did not discuss with the juvenile court
any desire to waive her right to counsel, nor did the court engage
in a colloquy regarding a potential waiver. On these facts, it
would have been inappropriate for the court to conclude that
Mother had waived her right to counsel. By requiring Mother to
be represented absent a valid waiver, the juvenile court helped to
protect Mother’s interests in a fair trial. Indeed, even without
Mother present, Counsel was present to lodge objections, draw
attention to any deficiencies in the State’s case, and ensure that
Mother’s procedural rights were protected.
¶19 Third, and perhaps most notably, this court has already
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.” In re M.L.M., No. 20070465-CA,
2007 WL 2446497, at *2 (Utah Ct. App. Aug. 30, 2007) (per curiam).
Without client participation, counsel is substantially limited in
presenting an effective defense. But this fault lies with the client,
not with counsel. And this distinction matters. Indeed, a deficient
defense caused by counsel’s actions may be grounds for reversal,
whereas a mere inability to present the strongest defense—
particularly when owing to the client’s failure to appear or to
assist—does not warrant reversal. And specifically in this
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instance, where Mother claims that in order to appease the court
rather than protect her client, Counsel allowed negative testimony
from Father and called unhelpful and damaging witnesses,
Counsel’s inability to present the strongest defense was not the
fault of Counsel. Even if we were to agree that Counsel’s
performance at trial was somehow deficient—which we do not—
it was Mother’s own failure to appear that created the situation.
¶20 In sum, because the juvenile court complied with rule 53 of
the Utah Rules of Juvenile Procedure when denying Counsel’s
motion to withdraw, the court did not abuse its discretion in
denying the motion. Further, the court’s action in properly
denying the motion did not result in Mother receiving ineffective
assistance of counsel because it was not objectively unreasonable
for Counsel to continue to represent Mother at trial after the
juvenile court denied the motion to withdraw and Mother failed
to appear for trial.
CONCLUSION
¶21 The juvenile court did not abuse its discretion when it
denied Counsel’s motion to withdraw, thereby requiring Counsel
to represent Mother at trial despite Mother’s absence. In denying
the motion, the juvenile court adhered to rule 53 of the Utah Rules
of Juvenile Procedure, and the decision was therefore not an abuse
of the court’s discretion. And because Mother has not
demonstrated how Counsel’s representation was ineffective, nor
has she alleged that the juvenile court’s termination analysis was
flawed in any other respect, we affirm the court’s order
terminating Mother’s parental rights.
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In re R.G.
Combined Opinion