In re C.M.R.
In re C.M.R., 2020 UT App 114 (Christiansen, J., majority; Orme, J., concurring; Harris, J., concurring)
Parental Rights Termination
The Division of Child and Family Services (DCFS) filed a petition alleging Mother’s children were abused, neglected, and dependent. Following counsel’s advice, Mother admitted certain allegations in the State’s petition under rule 34(e) of the Utah Rules of Juvenile Procedure. Counsel had not investigated the evidence. The juvenile court subsequently adjudicated Mother’s children abused, neglected, and dependent. The court made no specific finding of harm under rule 34(e). Mother appealed and filed a motion under Rule 23B of the Utah Rules of Appellate Procedure, claiming conflict counsel discovered evidence negating Mother’s most damning pleas and that counsel would have found that evidence had she investigated the claims. The Utah Court of appeals affirmed in part and remanded in part, holding:
- The juvenile court did not plainly err when it failed to make an express finding of harm because Mother could not show prejudice. Sufficient evidence supports a finding of harm. Mother grabbed one child by the collar tightly enough to constrict that child’s breathing. An unidentified witness said she saw the incident and that when child told Mother that she hurt him and that he could not breathe, Mother did not let go of his collar.
- Mother might have received ineffective assistance of counsel. The extra-record evidence Mother attached to her brief could exonerate Mother from some of the claims of abuse that will follow Mother throughout the proceedings. If the evidence is credible, then the information might undermine the propriety of counsel’s advice not to contest the factual findings the State presented. The Court remands the case for an evidentiary hearing on the ineffective assistance of counsel claim.
- Harris concurrence: The Court of Appeals’ precedent opening the door to a 23B-type of motion in the child welfare context might merit reexamination in light of rule 1(f) of the Utah Rules of Appellate Procedure.
- Orme concurrence: The right to effective assistance of counsel unquestionably belongs to parents whose children could potentially be removed from their care. That right would ring hollow if the court were not allowed to remand for entry of extra-record evidence to show ineffective assistance. If rule 1(f) prohibits remand under rule 23B, then the sound exercise of the inherent power of the court would not. In that way, In re S.H. is best understood as an appropriate exercise of the court’s inherent power to improvise procedures necessary to resolve important issues—like a parent’s constitutional right to the effective assistance of counsel in child welfare cases.