Background
This is the third appellate opinion in a long-running Utah termination-of-parental-rights case involving seven siblings. N.H. (Father) and S.H. (Mother) became the subjects of a DCFS investigation in 2017 when the two youngest children — Alice and Liam, referred to by pseudonyms — were ages two and seven months respectively. In October 2020, the juvenile court held a trial and terminated both Parents’ rights as to Alice and Liam. At that trial, Parents had three attorneys: two court-appointed lawyers (Appointed Counsel) and a retained private attorney (Retained Counsel) to whom Parents had paid a $1,000 retainer and who had agreed to act as their attorney. In the weeks before trial, Retained Counsel instructed Parents to stop communicating with Appointed Counsel, assuring them he would handle all matters including pretrial disclosure deadlines. He did not. None of the three attorneys filed pretrial disclosures on behalf of Parents. Retained Counsel never entered a formal appearance or filed any documents until the morning of trial, when he moved for a continuance that the court denied as “untimely” and noncompliant with “governing deadlines and procedures.”
The consequences were severe. Because no pretrial disclosures had been filed, the juvenile court limited Parents’ evidence presentation to their own testimony and that of Grandparents and witnesses already on the State’s list. Parents could not call Siblings — their five older children — and no expert testified on their behalf. The juvenile court terminated parental rights as to Alice and Liam, concluding that adoption by the foster family, where the two youngest had lived for about a year, was strictly necessary for their best interest. That finding permanently separated Alice and Liam from their five older siblings, despite the juvenile court acknowledging that Grandparents were “certainly appropriate caregivers.”
The first appeal, decided in 2022, reversed on best-interest grounds without reaching IAC. The Utah Supreme Court reversed this court’s best-interest ruling in 2024, then remanded for consideration of the remaining issues. Tragically, Mother died in a car accident in December 2024, mooting all issues as to her; only Father’s rights remain. This court then ordered a further remand for an evidentiary hearing on Father’s IAC claims. Thirteen witnesses testified over four days, and more than seventy exhibits were admitted. Both Appointed Counsel had by then been appointed to judicial positions, requiring the assignment of a senior judge to preside over the remand hearing.
The Court’s Holding
The Utah Court of Appeals vacated the termination order as to Father and remanded for a new trial, holding that all three trial attorneys rendered ineffective assistance and that the deficient performance prejudiced Father.
IAC right extends to Retained Counsel. As a threshold matter, the court held that Utah’s right to effective assistance of counsel under Utah Code § 78B-22-201(1)(b) extended to Retained Counsel even though he never formally entered an appearance. The court adopted the reasoning of the Seventh Circuit in Stoia v. United States, 22 F.3d 766 (7th Cir. 1994): an attorney engaged in “behind the scenes” work can render constitutionally deficient performance. The remand court had found that Parents paid a $1,000 retainer and reasonably believed Retained Counsel had undertaken representation — findings unchallenged on clear-error review.
Deficient performance (all three attorneys). The State itself “readily” conceded that the performance of all of Parents’ counsel was objectively deficient. The court agreed. Retained Counsel took no meaningful action before trial: he filed nothing, sought no extension, and instructed Parents to cease communication with Appointed Counsel, promising he would handle the deadlines himself. He broke that promise and then arrived on the first morning of trial requesting a continuance — too late. Appointed Counsel, who remained counsel of record throughout, had a professional obligation to prepare Parents for trial. Instead, they failed to file pretrial disclosures (citing a practice of not doing so without client sign-off), made no effort to seek an extension of deadlines, and did not seek a continuance even when it became clear on the first day of trial that the State was changing its position and would now advocate permanently splitting the sibling group. One of Appointed Counsel later acknowledged that “in hindsight, they probably should have asked for a continuance.” The court rejected the GAL’s argument that a continuance would have been futile: an earlier motion — before trial — or one based on the State’s last-minute position shift would have had a significantly better chance of success.
Prejudice. The deficient performance deprived Father of the ability to call Siblings, whose testimony at the remand hearing about close family bonds was extensive and credible. The remand court found that the Children had a “deep mutual affection and enduring emotional bond” and that Alice and Liam had been “terrified” when separated from Siblings. No expert testified at the original trial on Parents’ behalf, though expert testimony was presented at the remand hearing. Because this evidence — which substantially addressed the juvenile court’s finding that Alice and Liam had “little beyond a biological connection” with Siblings — was never before the fact-finder, confidence in the outcome of the October 2020 trial was undermined. The court vacated Father’s termination order and remanded for a new trial.
Key Takeaways
- Under Utah Code § 78B-22-201(1)(b), the right to effective assistance of counsel in termination-of-parental-rights proceedings extends to privately retained attorneys who never formally enter an appearance, provided the parent reasonably believes they have been retained to represent the parent in the matter.
- An attorney who instructs a client to cease communicating with other counsel of record, promises to handle pending deadlines, and then does nothing renders deficient performance — and those actions can also establish the deficiency of appointed counsel who, despite the communication breakdown, failed to independently seek extensions, file disclosures, or request a continuance.
- A complete failure to file pretrial disclosures in a TPR trial — regardless of the reason — is objectively deficient performance; the failure to seek a continuance when an opposing party shifts its position on the first day of trial may also be deficient where that shift changes the fundamental structure of the proceeding.
Why It Matters
Utah’s right-to-counsel statute for termination-of-parental-rights proceedings is one of the most important safeguards in the child welfare system. In re A.H. establishes for the first time in Utah that the IAC guarantee extends to retained attorneys acting “behind the scenes,” even without a formal appearance — mirroring federal circuit court practice. Practitioners retained as “consultants” or “limited scope” counsel in child welfare cases who hold themselves out as the client’s attorney must understand they may be held to the same effectiveness standards as counsel of record.
For appointed counsel, the case is an important cautionary note. When a client stops communicating — particularly when there are signals that another attorney has instructed the client not to communicate — appointed counsel cannot simply wait. The professional obligation to prepare the client for trial requires proactive steps: seeking extensions, filing protective disclosures, or moving to withdraw with adequate notice. The practical consequence here is stark: Alice and Liam have now spent more than six years with their foster family while this litigation has proceeded, and they face yet another trial on whether to sever their legal ties to their father. That outcome underscores how critical rigorous representation is at the original trial.