Father motion in Utah

2018In its written ruling, the court stated that it was not persuaded that Father's "due process rights are violated by the State pursuing alternative petitions and acting on the more final petition first." First, the court determined that "there is no recognized substantive due process right that would require the state to either dismiss ... or proceed on a verified [abuse or neglect adjudication] petition prior to proceeding with a Petition for Termination of Parental Rights." The court recognized that parents have a " 'fundamental liberty interest in the care, custody, and management of their c

2018In its written ruling, the court stated that it was not persuaded that Father’s “due process rights are violated by the State pursuing alternative petitions and acting on the more final petition first.” First, the court determined that “there is no recognized substantive due process right that would require the state to either dismiss . . . or proceed on a verified [abuse or neglect adjudication] petition prior to proceeding with a Petition for Termination of Parental Rights.” The court recognized that parents have a “‘fundamental liberty interest in the care, custody, and management of their

2018In its written ruling, the court stated that it was not persuaded that Father's "due process rights are violated by the State pursuing alternative petitions and acting on the more final petition first." First, the court determined that "there is no recognized substantive due process right that would require the state to either dismiss ... or proceed on a verified [abuse or neglect adjudication] petition prior to proceeding with a Petition for Termination of Parental Rights." The court recognized that parents have a " 'fundamental liberty interest in the care, custody, and management of their c

2018In its written ruling, the court stated that it was not persuaded that Father's "due process rights are violated by the State pursuing alternative petitions and acting on the more final petition first." First, the court determined that "there is no recognized substantive due process right that would require the state to either dismiss ... or proceed on a verified [abuse or neglect adjudication] petition prior to proceeding with a Petition for Termination of Parental Rights." The court recognized that parents have a " 'fundamental liberty interest in the care, custody, and management of their c

2017Thereafter, on August 13, the juvenile court granted Father’s motion and adjudicad ed him as the legal father of Child. ¶ 24 We acknowledge, and the State concedes, that “Father may have been hampered in establishing his paternity due to his incarceration.” But “means other than genetic testing were available to [Father] to establish his paternity,” see In re S.H., 2005 UT App 324, ¶ 20 , 119 P.3d 309 , a fact.which Father recognizes.

2017Thereafter, on August 13, the juvenile court granted Father’s motion and adjudicad ed him as the legal father of Child. ¶ 24 We acknowledge, and the State concedes, that “Father may have been hampered in establishing his paternity due to his incarceration.” But “means other than genetic testing were available to [Father] to establish his paternity,” see In re S.H., 2005 UT App 324, ¶ 20 , 119 P.3d 309 , a fact.which Father recognizes.

2014Cummings, 821 P.2d at 476 .

2014We will therefore overturn a district court’s resulting findings of fact only when ‚they are clearly erroneous.‛ Cummings, 821 P.2d at 476 .

2014However, the district court’s findings did not seek to assign blame; rather the district court focused on whether Child’s weight gain was being addressed. 11 We therefore read Father’s claim that the district court should have entered a finding blaming Mother as a challenge to the adequacy of the findings rather than the sufficiency of the evidence. ‚A challenge to the adequacy of the court’s findings is notably different from a challenge to the sufficiency of evidence.‛ In re K.F., 2009 UT 4, ¶ 61 , 201 P.3d 985 .

2014However, the district court’s findings did not seek to assign blame; rather the district court focused on whether Child’s weight gain was being addressed. 11 We therefore read Father’s claim that the district court should have entered a finding blaming Mother as a challenge to the adequacy of the findings rather than the sufficiency of the evidence. ‚A challenge to the adequacy of the court’s findings is notably different from a challenge to the sufficiency of evidence.‛ In re K.F., 2009 UT 4, ¶ 61 , 201 P.3d 985 .

2013Id. 17 .

2013Id. 17 .

2012(In re I.K.), 2009 UT 70, ¶¶ 2-3 , 220 P.3d 464 (noting that the birth mother only informed the father "that she was pregnant and intended to have an abortion " and later "without informing the Natural Father, the Birth Mother consented to adoption and relinquished the baby" (emphases added)); Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶¶ 3-4 , 70 P.3d 58 (noting that the birth mother informed the father twice that "she had decided mot to place the child for adoption in Utah" (emphasis added)); Swayne v. L.D.S.

2012(In re I.K.), 2009 UT 70, ¶¶ 2-3 , 220 P.3d 464 (noting that the birth mother only informed the father "that she was pregnant and intended to have an abortion " and later "without informing the Natural Father, the Birth Mother consented to adoption and relinquished the baby" (emphases added)); Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶¶ 3-4 , 70 P.3d 58 (noting that the birth mother informed the father twice that "she had decided mot to place the child for adoption in Utah" (emphasis added)); Swayne v. L.D.S.

2012(In re I.K.), 2009 UT 70, ¶¶ 2-3 , 220 P.3d 464 (noting that the birth mother only informed the father "that she was pregnant and intended to have an abortion " and later "without informing the Natural Father, the Birth Mother consented to adoption and relinquished the baby" (emphases added)); Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶¶ 3-4 , 70 P.3d 58 (noting that the birth mother informed the father twice that "she had decided mot to place the child for adoption in Utah" (emphasis added)); Swayne v. L.D.S.

2012(In re I.K.), 2009 UT 70, ¶¶ 2-3 , 220 P.3d 464 (noting that the birth mother only informed the father "that she was pregnant and intended to have an abortion " and later "without informing the Natural Father, the Birth Mother consented to adoption and relinquished the baby" (emphases added)); Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶¶ 3-4 , 70 P.3d 58 (noting that the birth mother informed the father twice that "she had decided mot to place the child for adoption in Utah" (emphasis added)); Swayne v. L.D.S.

2004In response, Mother argues that the juvenile court's findings of fact and order terminating Father's parental rights were based on other evidence in addition to the stipulated findings. [2] ¶6 Mother and the guardian ad litem also both argue that Father failed to properly preserve his sufficiency of the findings argument below and should be barred from raising it on appeal. [3] At oral arguments before this court, the guardian ad litem discussed the preservation argument, and argued that under a recent Utah Supreme Court decision, 438 Main Street v. Easy Heat, Inc., 2004 UT 72 , 99 P.3d 801 ,

2004In response, Mother argues that the juvenile court's findings of fact and order terminating Father's parental rights were based on other evidence in addition to the stipulated findings. [2] ¶6 Mother and the guardian ad litem also both argue that Father failed to properly preserve his sufficiency of the findings argument below and should be barred from raising it on appeal. [3] At oral arguments before this court, the guardian ad litem discussed the preservation argument, and argued that under a recent Utah Supreme Court decision, 438 Main Street v. Easy Heat, Inc., 2004 UT 72 , 99 P.3d 801 ,

2026None of the parties have argued that a different standard should apply, and we conclude that Father’s claim fails even under the Strickland standard. ¶27 To establish ineffective assistance of counsel under Strickland, a party must show: (1) “counsel’s performance was deficient in that it ‘fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350 (quoting Strickland, 466 U.S. at 687–88).

2026Father asserts that “Retained Counsel did nothing and lied to Parents,” so much so that the “deficiency of [Retained Counsel’s] performance cannot 20210353-CA 23 2026 UT App 88 In re A.H. be seriously contested.” And he contends that “Appointed Counsel failed to comply with deadlines, prepare for trial, or request a continuance,” which “[c]ompound[ed] the disastrous effects of [Retained Counsel’s] deficient performance” and constituted “independent” deficient performance. ¶52 The State agrees with Father on this point.

2026None of the parties have argued that a different standard should apply, and we conclude that Father’s claim fails even under the Strickland standard. ¶27 To establish ineffective assistance of counsel under Strickland, a party must show: (1) “counsel’s performance was deficient in that it ‘fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350 (quoting Strickland, 466 U.S. at 687–88).

2026None of the parties have argued that a different standard should apply, and we conclude that Father’s claim fails even under the Strickland standard. ¶27 To establish ineffective assistance of counsel under Strickland, a party must show: (1) “counsel’s performance was deficient in that it ‘fell below an objective standard of reasonableness’ and (2) ‘the deficient performance prejudiced the defense.’” State v. Scott, 2020 UT 13, ¶ 28 , 462 P.3d 350 (quoting Strickland, 466 U.S. at 687–88).

2025Later, in May 2019, the juvenile court directed Parents to submit to a hair follicle test for illegal substances, indicating that if the results were negative, overnight visits with Child would begin immediately and if the results were positive, overnight visits would begin thirty days 20230945-CA 5 2025 UT App 17 In re K.M. later.

2024The GAL points out that Father’s brief uses the phrase “preserved by appeal” to demonstrate preservation for each issue, but that rule 24(a)(5) mandates that the appealing party also include a “citation to the record,” see id., which Father did not do in the preservation (continued…) 20230620-CA 18 2024 UT App 104 In re B.D.

2024We therefore decline the GAL’s invitation to affirm the juvenile court’s adjudication order on the basis of these asserted briefing deficiencies on Father’s part. 20230620-CA 19 2024 UT App 104 In re B.D. fault.

2024The GAL points out that Father’s brief uses the phrase “preserved by appeal” to demonstrate preservation for each issue, but that rule 24(a)(5) mandates that the appealing party also include a “citation to the record,” see id., which Father did not do in the preservation (continued…) 20230620-CA 18 2024 UT App 104 In re B.D.

2024We therefore dismiss Father’s appeal for lack of jurisdiction. 20230712-CA 15 2024 UT App 165

2023He also requested a hearing regarding the GAL’s challenge to the VDP. 20210921-CA 4 2023 UT App 3 In re J.E. ¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father. ¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation.

2022But “because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25 , 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021 UT 12 , ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment) (“Jurisdiction is not an argument that can be waived or ignored by the parties.”).

2022But “because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25 , 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021 UT 12 , ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment) (“Jurisdiction is not an argument that can be waived or ignored by the parties.”).

2022The juvenile court did not specifically set forth the dates of the six-month period in question, but there is evidence indicating that Father had no contact with the Children from December 2019 to June 2020, a period that does not include any of the time following the court’s order that any contact between Father and the Children be had, if at all, through DCFS or therapists. 20210520-CA 24 2022 UT App 53 In re K.S. supported its determination that Father had consciously disregarded his parental obligations and that Father’s conduct contributed significantly to the evident deterioration of the

2022But in any event, we need not decide this challenge on its merits because Father has not challenged the court’s separate and independent determination that the children were neglected. ¶30 “Utah’s juvenile courts are creatures of statute, and thus are courts of limited jurisdiction.” In re B.B., 2002 UT App 82 , ¶ 12, 45 P.3d 527 .

2022But in any event, we need not decide this challenge on its merits because Father has not challenged the court’s separate and independent determination that the children were neglected. ¶30 “Utah’s juvenile courts are creatures of statute, and thus are courts of limited jurisdiction.” In re B.B., 2002 UT App 82 , ¶ 12, 45 P.3d 527 .

2019A court may grant such a motion "if (1) the claimant has failed to introduce sufficient evidence to establish a prima facie case, or (2) the trial court is not persuaded by that evidence." In re J.A. , 2018 UT App 29 , ¶ 26, 424 P.3d 913 (quotation simplified). 2 ¶14 In this case, although the juvenile court determined that statutory grounds existed to terminate Father's parental rights, the court granted Father's motion on best-interest grounds, concluding that the evidence Mother presented in her case-in-chief did not provide "compelling reasons" to terminate Father's rights.

2019A court may grant such a motion "if (1) the claimant has failed to introduce sufficient evidence to establish a prima facie case, or (2) the trial court is not persuaded by that evidence." In re J.A. , 2018 UT App 29 , ¶ 26, 424 P.3d 913 (quotation simplified). 2 ¶14 In this case, although the juvenile court determined that statutory grounds existed to terminate Father's parental rights, the court granted Father's motion on best-interest grounds, concluding that the evidence Mother presented in her case-in-chief did not provide "compelling reasons" to terminate Father's rights.