2021 UT App 57

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.H. AND N.H., 

PERSONS UNDER EIGHTEEN YEARS OF AGE. 

K.H.,

Appellant, 

v. 

STATE OF UTAH, 

Appellee. 

Opinion

No. 20190846-CA

Filed May 28, 2021 

Third District Juvenile Court, Salt Lake Department

The Honorable Mark W. May 

No. 1148287 

Colleen K. Coebergh, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. 

Peterson, Attorneys for Appellee

Martha Pierce and Dixie Jackson, 

Guardians ad Litem

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred. 

POHLMAN, Judge: 

¶1 K.H. (Father) appeals the juvenile court’s termination of 

his parental rights as to A.H. and N.H., raising three arguments. 

First, Father contends that he was denied his right to effective 

assistance of counsel. Second, he contends that the juvenile court 

erred in finding that the Division of Child and Family Services 

(DCFS) provided reasonable efforts toward reunification. Third, 

he contends that the juvenile court’s reasoning and reliance on 
In re A.H.

20190846-CA 2 2021 UT App 57

the ground of unfitness in terminating his rights was flawed. We

affirm.

BACKGROUND1

¶2 Father and R.R. (Mother) have three young children

together: four-year-old A.H., two-year-old N.H., and an infant, 

Am.H., who was born during the course of these proceedings. 

This appeal concerns only Father’s parental rights as to the older 

children, A.H. and N.H. (collectively, the Children). Mother’s 

parental rights are not at issue in this appeal, and we mention 

her only when relevant and necessary for context.

The Initial Verified Child Welfare Petition

¶3 Father and Mother’s relationship was “off and on, volatile 

and abusive.” After reports of drug use in the home and an 

incident of domestic violence in August 2017, the Children were 

taken into protective custody and placed with foster parents. 

Soon afterward, the juvenile court ordered Mother and Father 

not to have contact with each other. In October 2017, the court 

held Father’s adjudication hearing and disposition hearing on 

the same day. The court concluded that Father neglected the 

Children, that they should remain in the custody of DCFS, and 

that the primary goal for the Children was reunification with 

their parents with a secondary goal of adoption.

¶4 After this hearing, the court also entered findings of fact, 

including findings about the August 2017 domestic violence 

incident. Specifically, the court found that Father arrived at the 

home to find Mother doing drugs. Mother then pulled a knife on 

1. “We recite the facts in the light most favorable to the juvenile

court findings.” In re J.M., 2020 UT App 52, ¶ 3 n.1, 463 P.3d 66

(cleaned up).
In re A.H.

20190846-CA 3 2021 UT App 57

Father, and Father twisted her arm to get the knife away before 

leaving. The Children were present during the incident and were 

frightened.2

¶5 At the disposition hearing, the juvenile court also 

addressed the reunification service plan with regard to Father. 

At that time, a separate plan had not yet been created for Father, 

but it was explained to him that the requirements of Mother’s 

plan also applied to him. Father confirmed that he had “gone 

over all the requirements of the service plan,” and the court 

found that Father understood them.

The Period of Reunification Services

¶6 Beginning in October 2017, a separate service plan created 

just for Father required, among other things, Father to submit to 

random drug testing, complete a substance abuse evaluation and 

a domestic violence assessment, complete a parenting class, 

participate in weekly supervised visitation with the Children, 

provide financially for the Children, and maintain a stable and 

healthy living environment for them. By the December 2017 

review hearing, Father had completed the domestic violence 

assessment but had not called in to drug test. At the next review 

hearing in February 2018—six months after the Children were 

removed—Father had attended domestic violence treatment, but 

he had failed to take all the requested drug tests, had tested 

positive for THC3 on some drug tests, and had not attended 

2. Father was charged with several offenses, but the charges

were later dismissed.

3. “‘THC’ is an acronym for tetrahydrocannabinol, which is a

crystalline compound that is the main active ingredient of

cannabis.” State v. Akers, 2018 UT App 235, ¶ 3 n.3, 438 P.3d 70

(cleaned up).
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20190846-CA 4 2021 UT App 57

drug treatment. Although at both hearings DCFS and the 

guardian ad litem (the GAL) asked to schedule a permanency 

hearing based on Father’s and Mother’s failure to fully engage in 

services, the juvenile court denied those requests.

¶7 By the final review hearing in May 2018—nine months 

after removal—Father was taking domestic violence classes and 

had been more consistent in calling in to determine whether he 

should submit to a drug test. But he was still missing some calls 

and tests and was still testing positive for THC. Additionally, 

Father had been verbally aggressive with a DCFS caseworker 

after a visit had to be canceled because he arrived too late. As a 

result, the court ordered Father to participate in anger 

management classes.

¶8 The court held a permanency hearing in August 2018—

twelve months after removal. At this point, Mother was making 

progress and had the Children in a trial home placement. For his 

part, Father was also doing well, and he had begun attending 

drug and alcohol treatment, domestic violence treatment, and 

anger management classes. By the parties’ agreement, the court 

found that there had been substantial compliance with the 

treatment plan, reunification was likely within ninety days, and 

continued services were in the Children’s best interests. Thus, 

the court extended reunification services for another three 

months.

¶9 In November 2018—fifteen months after removal—the 

juvenile court held a second permanency hearing, during which 

it considered the GAL’s motion to terminate the trial home 

placement and reunification services. Things had “not gone 

well” for Mother; she had a positive drug test, missed taking the 

Children to doctor appointments, and had been kicked out of her 

in-patient treatment center. Father had “done better”; he had 

completed his substance abuse treatment and was close to 

finishing his domestic violence classes. But he had missed 
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20190846-CA 5 2021 UT App 57

call-ins for his drug tests until mid-September 2018 and had not 

completed a psychological exam. Although DCFS discussed 

placing the Children with Father, he was “decidedly 

non-committal” and refused to allow DCFS to inspect his home. 

When asked who would watch the Children while he worked, 

he answered, “I’ve never thought about it, I don’t know.” And 

although he was asked in October 2018 to create a plan for how 

he would handle daycare, work, and medical appointments, he 

still had not submitted a plan before the second permanency 

hearing. The Children were returned to foster care, while DCFS, 

Mother, and Father asked for reunification services to be 

extended again. But the juvenile court found that even though 

there had been “substantial progress by both parents, there was 

not clear and convincing evidence that reunification was 

probable within 90 days.” Accordingly, the court terminated 

reunification services and changed the Children’s permanency 

goal to adoption.

¶10 Shortly afterward, Mother and Father’s newborn, Am.H., 

was placed in DCFS custody in a separate child welfare case. 

Even though reunification services were terminated with respect 

to A.H. and N.H., nearly the same services were ordered and in 

place for Am.H.’s case. 

The Petition to Terminate Parental Rights and the Termination Trial

¶11 DCFS petitioned to terminate Mother’s and Father’s 

parental rights as to A.H. and N.H. Father then changed 

attorneys, and Father’s new counsel represented him during the 

ten-day trial before the juvenile court.

¶12 To his credit, Father continued to improve and “largely 

rehabilitated himself” in the time between the second 

permanency hearing and trial. Nevertheless, the juvenile court 

found that Father’s “lackadaisical approach to services and the 

length of time that it took him to achieve substantial 

rehabilitation [had a] destructive effect [on] his parent/child 
In re A.H.

20190846-CA 6 2021 UT App 57

relationship,” and the court ultimately terminated Father’s 

parental rights as to the Children.

¶13 After trial, the juvenile court issued a seventy-nine-page 

written decision and made extensive findings regarding Father’s 

efforts and reunification services. Regarding drug testing, the 

court found that Father tested positive ten times for THC, 

repeatedly failed to call in to determine if he should test, and 

provided excuses about his failures to call in that were not 

credible. Even when the caseworker and the court “constantly 

reminded” him to submit to drug tests, Father “purposely 

refused.” Instead, Father decided “to test only when he wanted,” 

which effectively “deprived the Court of the ability to determine 

if he was using drugs other than marijuana” because, in the 

court’s experience, sophisticated drug users know how to time 

drug tests so that the tests “only reveal[] marijuana use but not 

other substances.” The court found that Father’s first clean drug 

test was nine months after the Children’s removal and that 

Father did not consistently call in to be tested until midSeptember 2018. Thus, by the second permanency hearing, 

Father had complied with this aspect of the service plan for only 

two months. The court noted, however, that he had been clean 

since services were terminated. As for the required substance 

abuse evaluation, the court found that Father completed that 

portion of the service plan.

¶14 Father had mixed results on other requirements in the 

service plan. He had not finished the domestic violence 

assessment before the second permanency hearing but did finish 

before trial. Regarding the anger management classes, Father 

completed that requirement of the service plan, yet he 

“continue[d] to have outbursts after he completed treatment.” 

Concerning the psychological evaluation, Father had not 
In re A.H.

20190846-CA 7 2021 UT App 57

completed it before the second permanency hearing.4 Father 

managed to do so before trial, but it was unknown whether 

Father had participated in the recommended therapy.

¶15 As for the required parenting class, Father completed it, 

but “it did not have the desired effect.” He was “not able to 

sufficiently improve his parenting abilities in relation to” A.H. 

and N.H., and he was not in compliance with this requirement

by the second permanency hearing in November 2018. 

¶16 One month earlier, in October 2018, Father began Parent 

Child Connections Interactive Therapy (PCCIT), which is 

designed to “support the development of healthier child-parent 

interactions and improve attachment patterns overall.” During 

PCCIT, Father acknowledged that he “felt like he did not have a 

lot of skills to handle [A.H.],” who has disabilities. A PCCIT 

therapist also observed that Father “did not have a close 

relationship with [N.H.].” Overall, Father attended five PCCIT 

sessions. A PCCIT therapist observed that N.H. showed “fear 

and hesitation towards” Father and that although in later 

sessions N.H. started going to Father earlier in the session, “her 

reunions with [Father] still highlight[ed] significant anxiety.” 

The therapist also observed that Father “had to work to set limits 

with [A.H.] and often tends to just give [A.H.] what he wants 

and allows him to be aggressive” but that Father had improved 

in the last two sessions. The PCCIT sessions stopped in 

November 2018 because the court ended reunification services 

and changed the Children’s goal to adoption. Even though 

Father wanted to continue PCCIT and pay for it himself, the 

court denied that request because it was inconsistent with the 

goal of adoption. And although PCCIT could have been started 

4. The court observed that Father “had a pattern of claiming

confusion on court orders with which he disagreed or with

which he did not want to comply.”
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20190846-CA 8 2021 UT App 57

earlier, a PCCIT therapist testified at trial that even if Father 

“had been given the full amount of time to complete PCCIT[,]

she did not think therapy would have been successful because 

[Father] made minimal progress in the time he had.”

¶17 With one exception, Father regularly attended his weekly 

supervised visits with the Children. The visits were “troubling,” 

however, because Father persisted in bringing toys and food 

even when asked not to do so. The toys and food interfered with 

creating a “normal” setting for the evaluators to observe the 

parent/child interaction and led the Children to view Father “as 

a party dad or a type of Santa—one who comes with toys and 

gifts.” While Father complied with the requirement to attend 

visits, he showed a “lack of progress” and never “progressed to 

unsupervised visits.”

¶18 In terms of the requirement to provide financially for the 

Children, the court found that Father had “paid nothing in child 

support” since the court became involved in the matter and that 

he owed a total of $11,841.75 in back payments. At the same 

time, Father testified that he had $7,000 in savings and owned 

his mortgaged home. The court further found that Father works 

three jobs and had the ability to pay child support. Father told 

the court that he would pay child support if the Children were 

returned to him, but the court found that this statement showed 

that Father “fundamentally misunderstands the concept of child 

support.” Because Father “has purposely avoided his 

obligation,” the court found that Father did not comply with this 

portion of the service plan “at any time.”

¶19 As for Father’s housing situation, the court found that at 

the time of the second permanency hearing, Father “did not have 

a stable and healthy living environment for his Children.” 

Multiple times, Father “purposely refused” to allow DCFS to 

inspect his home until after services were terminated. By the end 
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20190846-CA 9 2021 UT App 57

of December 2018, however, his home was deemed suitable for 

children.

¶20 At trial, Father testified that he contacted the Office of 

Child Protection Ombudsman (the Ombudsman) in December 

2018 to express concerns over how DCFS had handled his case. 

The Ombudsman issued a letter in which it “largely validated 

[Father’s] concerns,” and in his defense, Father presented the 

Ombudsman’s opinion to support his position that DCFS did not 

provide reasonable services to him. But the court found that the 

Ombudsman did not speak with Father’s caseworkers and 

supervisors and did not review all the relevant documentation. 

The court thus had “serious concerns about the quality of the 

investigation done by [the Ombudsman].” In written detail, the 

court discredited much of the Ombudsman’s opinion, finding 

instead that DCFS provided adequate support to Father.

¶21 Notably, in rejecting the Ombudsman’s opinion, the court 

found that Father “did not take reunification services seriously 

for nearly a year.” According to the court, Father “knew what 

was expected” of him, yet he “showed little interest in 

reunification until he realized too late that [Mother] was not 

going to have the [C]hildren returned to her.” Indeed, “[c]ajoling 

by the caseworker at visits and by the Court at review hearings 

appeared to have little effect.” And even when DCFS “made a 

push to return” the Children to Father in the fall of 2018, Father 

“showed little interest” in reunification. The court further found 

that “[b]y his own fault, not [DCFS’s], [Father] chose to rely on 

[Mother] to get the [C]hildren back,” and thus he “just took a 

lackadaisical approach to completing services on time” and “did 

not seriously engage in services in a timely fashion.” Ultimately, 

the court found that DCFS “made a fair and honest attempt to 

provide services to [Father] and the services provided to [Father] 

were reasonable.”
In re A.H.

20190846-CA 10 2021 UT App 57

¶22 The juvenile court recognized that while Father had 

“limited general parenting skills with young children,” he was 

“doing better”; he had “a steady job, an appropriate home and is 

drug free.” In fact, by the end of trial, Father had the infant, 

Am.H., in a trial home placement. The court saw that Father was 

“developing further skills at managing and appropriately 

responding to his children.” Yet the court observed that 

“providing daily care of three young children would be a 

significant challenge,” especially considering A.H.’s disabilities. 

When Father was given special training on how to deal with 

A.H., he “did not seem to learn or progress in his

understanding.” The Children did not have an attachment to

Father, and even though Father had some positive interactions

with the Children, those interactions were “more about drinking,

eating, and playing with toys,” not “a need by the children for

affection or connection (physical or emotional) with” Father.

¶23 Significantly, with respect to N.H., the court found that 

during the time it took Father to improve himself, “the 

parent-child relationship was severely damaged.” N.H. was 

never in Father’s custody before she was removed, and thus “no 

parent/child relationship ever existed” between them. Further, 

the court found that no relationship between Father and N.H. 

“developed over the course of the case” and that N.H. “has 

never viewed [Father] as a caregiver or parent and she is 

apprehensive in his presence.” The court concluded that Father’s 

present parenting ability did not help him with regard to N.H. 

and his “lackadaisical approach to services deprived him of the 

opportunity to form a meaningful parent/child bond” with N.H.

¶24 With respect to A.H., the court found that while Father 

and A.H. had a parent/child relationship before A.H.’s removal, 

“that relationship has drastically changed” in the two years since 

then. For example, A.H. was excited to see Father at visits but his 

excitement was “more about drinking, eating, and playing,” and 

when the visits ended, A.H. did not initiate hugs with Father or 
In re A.H.

20190846-CA 11 2021 UT App 57

whine for Father not to leave. Instead, A.H. would run to his

foster parents. The court found that A.H.’s relationship with his

foster parents “has transformed into the only meaningful 

attachment relationship that he has” and that removing A.H. 

from them would present “a danger of [A.H.] suffering from 

Reactive Attachment Disorder.” The court concluded that the 

duration of A.H.’s removal and the length of time that “it took 

[Father] to substantially rehabilitate himself had a significant 

destructive effect on their parent/child relationship”; thus, 

Father’s “present parenting ability [did] not overcome the 

destructive effects of his past actions/inactions.”

¶25 Additionally, the court made findings about Mother and 

Father’s relationship, which it viewed as “concerning” and 

“troubling.” The court found that Mother and Father “largely 

ignored” the court’s no-contact order, and Father stated in April 

2019 that they were living together. It also noted that while 

Mother and Father tried at trial “to downplay the amount of 

domestic violence that had occurred between them,” they were 

“quite upfront” in evaluations “about the significant role 

domestic violence had played in their relationship.” It further 

found that Father “has problems setting boundaries with 

[Mother],” that he had “chosen to remain” with Mother, and that 

“[a]s a couple they cannot properly raise [the Children].” The 

court noted that it had returned custody of Am.H. to Father, not 

Mother, and that if Father “reunites” with Mother, Am.H.’s 

“custody situation could change.”

¶26 In conclusion, the juvenile court found five grounds for 

terminating Father’s parental rights as to A.H. and N.H. See Utah 

Code Ann. § 78A-6-507(1)(b)–(f) (LexisNexis 2018).5 The court 

also found that terminating Father’s parental rights was in the 

Children’s best interests. See id. § 78A-6-503(12). It added that 

5. We cite the statutes in effect at the relevant time.
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20190846-CA 12 2021 UT App 57

termination “would also prevent the substantial likelihood of 

continued neglect if the [C]hildren were returned to the 

parents.” It also found that the Children “view the foster parents 

as their caretakers and providers,” not Father and Mother, and 

that the foster parents are “ready and willing to adopt” the 

Children. Furthermore, the court found that terminating Father’s 

parental rights was “strictly necessary” and in the Children’s 

best interests so that their foster parents could adopt them. See 

id. § 78A-6-507(1). 

¶27 Accordingly, the juvenile court entered an order 

terminating Father’s parental rights as to A.H. and N.H.6 Father 

appeals.

ISSUES AND STANDARDS OF REVIEW

¶28 Now represented by different counsel on appeal, Father 

raises three main issues. First, Father asserts that his trial counsel 

rendered constitutionally ineffective assistance in various ways. 

“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 (cleaned up). 

¶29 Second, Father asserts that the juvenile court erred in 

finding that DCFS provided reasonable efforts toward 

reunification. “A court’s determination that DCFS made 

reasonable efforts to provide reunification services involves an 

application of statutory law to the facts that presents a mixed 

question of fact and law, requiring review of the juvenile court’s 

factual findings for clear error and its conclusions of law for 

6. The juvenile court terminated Mother’s parental rights as to

A.H. and N.H. at the same time that it terminated Father’s

parental rights. Mother appealed separately, and this court

affirmed the juvenile court’s order.
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20190846-CA 13 2021 UT App 57

correctness, affording the court some discretion in applying the 

law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 

(cleaned up).

¶30 Third, Father asserts that the juvenile court erred in 

terminating his parental rights on the ground of unfitness. “The 

ultimate conclusion that a parent is unfit or that other grounds 

for termination have been established is a legal question, but 

such decisions rely heavily on the juvenile court’s assessment 

and weighing of the facts in any given case.” In re J.M., 2020 UT 

App 52, ¶ 22, 463 P.3d 66 (cleaned up). We thus “afford a high 

degree of deference to a juvenile court’s decision with regard to 

the existence of statutory grounds, and overturn it only when the 

result is against the clear weight of the evidence or leaves us 

with a firm and definite conviction that a mistake has been 

made.” Id. (cleaned up). Further, “when a foundation for the 

juvenile court’s decision exists in the evidence, an appellate 

court may not engage in a reweighing of the evidence.” Id.

(cleaned up).

ANALYSIS

¶31 To terminate parental rights, the juvenile court must make 

two separate findings by clear and convincing evidence. See In re 

B.T.B., 2020 UT 60, ¶ 46, 472 P.3d 827; see also Utah Code Ann. 

§ 78A-6-506(3) (LexisNexis 2018); In re C.Z., 2021 UT App 28,

¶¶ 17–18, 484 P.3d 431. “First, it must find grounds for

termination under Utah Code section 78A-6-507.” In re B.T.B.,

2020 UT 60, ¶ 46 (cleaned up). Clear and convincing evidence

establishing “any one” of the enumerated statutory grounds for

termination is sufficient to fulfill the first finding for termination.

See Utah Code Ann. § 78A-6-507(1) (LexisNexis 2018); see also In

re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66; In re F.C. III, 2003 UT

App 397, ¶ 6, 81 P.3d 790. Second, the court “must find that

termination of the parent’s rights is in the best interests of the

child.” In re B.T.B., 2020 UT 60, ¶ 46 (cleaned up); see also Utah
In re A.H.

20190846-CA 14 2021 UT App 57

Code Ann. § 78A-6-503(12) (LexisNexis 2018). As part of the 

best-interests inquiry, “a court must specifically address whether 

termination is strictly necessary to promote the child’s welfare 

and best interest.” In re B.T.B., 2020 UT 60, ¶ 76; see also Utah 

Code Ann. § 78A-6-507(1). Additionally, when “the court has 

directed [DCFS] to provide reunification services to a parent, the 

court must find that [DCFS] made reasonable efforts to provide

those services before the court may terminate the parent’s 

rights.” Utah Code Ann. § 78A-6-507(3)(a). 

¶32 The juvenile court in this case found five separate 

grounds to terminate Father’s parental rights: (1) “the parent has 

neglected . . . the child,” id. § 78A-6-507(1)(b); (2) “the parent is 

unfit or incompetent,” id. § 78A-6-507(1)(c); (3) “the child is 

being cared for in an out-of-home placement under the 

supervision of the court or [DCFS] . . . [and] the parent has 

substantially neglected, wilfully refused, or has been unable or 

unwilling to remedy the circumstances that cause the child to be 

in an out-of-home placement; and . . . there is a substantial 

likelihood that the parent will not be capable of exercising 

proper and effective parental care in the near future,” id.

§ 78A-6-507(1)(d); (4) “failure of parental adjustment,” id.

§ 78A-6-507(1)(e), which means that the parent has been “unable

or unwilling within a reasonable time to substantially correct the

circumstances, conduct, or conditions that led to placement of

their child outside of their home, notwithstanding reasonable

and appropriate efforts made by [DCFS] to return the child to

that home,” id. § 78A-6-502(2); and (5) “only token efforts have

been made by the parent . . . to support . . . the child,” id.

§ 78A-6-507(1)(f). The juvenile court also found that terminating

Father’s parental rights was strictly necessary and in the

Children’s best interests. Father does not challenge the court’s

decision regarding the Children’s best interests.
In re A.H.

20190846-CA 15 2021 UT App 57

¶33 We now turn to Father’s arguments regarding ineffective 

assistance of counsel, reasonable efforts at reunification, and 

grounds for termination.

I. Ineffective Assistance

¶34 Father first contends that his trial counsel provided 

ineffective assistance in four respects. First, he argues that trial 

counsel misunderstood that the initial adjudication was not 

being relitigated at trial and thus employed a flawed trial 

strategy aimed at the domestic violence incident underlying the 

initial adjudication. See supra ¶¶ 3–4. Second, Father argues that 

trial counsel “devoted a significant portion of the trial” urging 

the juvenile court to rely on the Ombudsman’s opinion, which 

was ultimately discredited. Third, Father argues that trial 

counsel misunderstood or was unaware of the applicable law, 

process, and court rules, including the burden of proof, and he 

further claims that trial counsel erroneously believed proving a 

justification for the domestic violence incident would mitigate 

the harm to the Children. Fourth, Father argues that trial counsel 

introduced or emphasized harmful evidence, including that 

Father had $7,000 in savings and had paid his own attorney fees 

and that Father had physically disciplined his older child several 

years earlier. 

¶35 “To prevail on an ineffective assistance of counsel claim, 

[Father] must show that (1) ‘counsel’s performance was 

deficient’ and (2) this ‘deficient performance prejudiced the 

defense.’” See In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see 

also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (stating that 

parents are entitled to effective assistance of counsel in child 

welfare proceedings and adopting “the Strickland test to 

determine a claim for ineffective assistance of counsel in 

proceedings involving termination of parental rights”). “Because 

failure to establish either prong of the [Strickland] test is fatal to 
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20190846-CA 16 2021 UT App 57

an ineffective assistance of counsel claim, we are free to address 

[Father’s] claims under either prong.” See In re C.M.R., 2020 UT 

App 114, ¶ 19 (cleaned up). 

¶36 Father has identified some questionable decisions on trial 

counsel’s part. But even if trial counsel did perform deficiently, 

we resolve Father’s ineffective assistance claims on the prejudice 

prong. 

¶37 To establish prejudice, Father “must ‘demonstrate a 

reasonable probability that the outcome of [his] case would have 

been different absent counsel’s error. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome 

of the proceeding.’” See id. ¶ 21 (quoting State v. Scott, 2020 UT 

13, ¶ 43, 462 P.3d 350). In evaluating the likelihood of a different 

result, we “consider the totality of the evidence before the 

judge,” bearing in mind that “[s]ome errors will have had a 

pervasive effect on the inferences to be drawn from the evidence, 

altering the entire evidentiary picture, and some will have had 

an isolated, trivial effect.” Strickland, 466 U.S. at 695–96. 

¶38 Father has not carried his burden of demonstrating 

prejudice. “To establish ineffective assistance of counsel in 

parental rights termination proceedings, it is imperative that a 

parent demonstrate deficient performance and prejudice for each 

ground justifying termination.” In re B.H., 2003 UT App 160U, 

para. 4. Thus, because the juvenile court found five statutory 

grounds warranting the termination of Father’s parental rights, 

Father must explain why the court’s finding on each ground 

likely would have been different but for trial counsel’s alleged 

deficient performance. See Utah Code Ann. § 78A-6-507(1) 

(LexisNexis 2018) (stating that the court may terminate parental 

rights upon finding “any one” ground for termination). He has 

not even attempted to do so. 

¶39 Instead, Father generally asserts that trial counsel’s tactics 

“detracted from the fact that [Father] had done everything 
In re A.H.

20190846-CA 17 2021 UT App 57

necessary to cure the domestic violence situation found in the 

initial adjudication” and that trial counsel “set the stage” for the 

court to believe Father “doesn’t get it,” because the defense cast 

blame on Mother for the domestic violence incident. (Cleaned 

up.) But the juvenile court acknowledged that Father “spent a lot 

of time presenting evidence” of his continued work on services 

up to the time of trial, and the court gave Father credit for his 

progress, finding that he had “largely rehabilitated himself” by 

the time of trial. And apart from trial counsel’s arguments, the 

court had other evidence that Father did not progress in 

important ways. For example, the court found “the initial 

parenting class was not successful, even according to [Father],” 

and Father’s visits with the Children never progressed to 

unsupervised visits. What’s more, the court found that Father 

did not seriously engage in services in a timely manner. Father’s 

delay was especially problematic in this case because it had a 

significant destructive effect on his parent-child relationship 

with A.H. and prevented him from developing any parent-child 

relationship with N.H.

¶40 Referring to the approximately twelve-month timeframe 

after a child’s removal during which a parent must show 

progress in changing the conduct or condition that required the 

removal, the court explained the importance of “removing the 

child from the legal limbo of State custody as soon as possible so 

as to provide that child with a permanent and stable home.” 

(Quoting In re M.L., 965 P.2d 551, 560 (Utah Ct. App. 1998).) The 

court further recognized the connection between “a parent’s 

inaction over a long period of time” and “the deterioration of the 

parent-child relationship during that time period.” (Quoting In 

re M.L., 965 P.2d at 560.) The court’s approach was consistent 

with Utah caselaw, which directs that “the weight which a 

juvenile court must give any present ability evidence is 

necessarily dependent on the amount of time during which the 

parent displayed an unwillingness or inability to improve his or 

her conduct and on any destructive effect the parent’s past 
In re A.H.

20190846-CA 18 2021 UT App 57

conduct or the parent’s delay in rectifying the conduct has had 

on the parent’s ability to resume a parent-child relationship with 

the child.” See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned 

up). In this case, even if trial counsel had done more to 

emphasize Father’s rehabilitation or less to emphasize Father’s 

rationalization of the domestic violence incident, it is unlikely 

that the juvenile court would have changed its view regarding 

the destruction of the parent-child relationships. See Utah Code 

Ann. § 78A-6-507(1)(e); In re M.L., 965 P.2d at 561–62 (instructing 

that in considering a failure of parental adjustment, the court 

must weigh a parent’s present ability evidence “in light of the 

parent’s past conduct and its debilitating effect on the 

parent-child relationship”).

¶41 Father also suggests that his trial counsel’s performance 

was prejudicial because trial counsel elicited testimony about 

Father’s financial condition and Father’s earlier physical 

discipline of another child that “then served as grounds for 

termination.” But even without the testimony elicited by Father’s 

counsel about Father’s finances, the State introduced evidence 

that Father was employed yet had paid no child support since 

the time the Children were taken into DCFS custody. Thus, 

Father’s testimony may not have been helpful, but Father has not 

shown that without it the court was reasonably likely to find that 

Father had made more than token efforts to financially support 

the Children. See Utah Code Ann. § 78A-6-507(1)(f).7 As to 

Father’s physical discipline of another child, the court made a 

finding that this incident had occurred seven years earlier. But 

this finding does not appear to have played a significant role in 

the court’s decisions regarding the grounds for termination. The 

7. Father also has not shown that even if the evidence his counsel

elicited on his finances led to a finding of token efforts, its

omission from trial likely would have led the court to reject the

other four grounds supporting termination.
In re A.H.

20190846-CA 19 2021 UT App 57

court did not mention it again and instead repeatedly 

emphasized the destructive effect Father’s neglect and inaction 

had on the Children. Given the totality of the circumstances, it is 

not reasonably likely that the court would have viewed Father 

and his relationship with the Children any differently had 

counsel not introduced these two pieces of evidence. 

¶42 Additionally, our own review of the record indicates that 

Father was not prejudiced by his trial counsel’s performance. 

The court understood and analyzed the facts, most of which are 

unchallenged on appeal. In a detailed written decision, the court 

carefully applied the correct law and was not misled by any 

confusion that trial counsel may have had. Despite Father’s 

strides, the court still had numerous concerns about Father, and 

its decision to terminate Father’s parental rights was driven 

largely by Father’s own untimely efforts to engage in services. 

¶43 Indeed, termination for failure of parental adjustment is 

well supported in the evidence. Citing Utah Code section 

78A-6-507(1)(e), the court found that Father was “unable or 

unwilling within a reasonable time to substantially correct the 

circumstances, conduct or conditions that led to the placement of 

[the Children] outside of” his home. Although DCFS provided 

reasonable and appropriate reunification services to Father, 

Father did not take the various services seriously for almost a 

year. See infra ¶¶ 46–49. For example, Father did not comply 

with the drug-testing requirement for more than eleven 

months—around two months before the second permanency 

hearing. He also “purposely refused” multiple times to allow 

DCFS to inspect his home until after services were terminated. 

And even when DCFS “made a push to return” the Children to 

Father, he “showed little interest” in the attempts to reunify. Cf. 

In re C.Z., 2021 UT App 28, ¶ 24 (affirming the juvenile court’s 

conclusion that “the father’s efforts were far too little far too 

late” (cleaned up)). Importantly, Father’s delay caused damage 

to his parent-child relationships with both of the Children. 
In re A.H.

20190846-CA 20 2021 UT App 57

¶44 Furthermore, Father largely ignored the court’s no-contact 

order with Mother, and he had “chosen to remain” in a volatile 

relationship with her—a relationship that involved domestic 

violence. Given that the Children were removed after a domestic 

violence incident, Father’s refusal to distance himself from 

Mother showed his unwillingness to correct the circumstances 

that led to the Children’s removal. Cf. id. ¶¶ 25–26 (“The father’s 

choice to remain involved with the mother—whether 

romantically or as a co-parent—placed the child at continued 

risk.”). In light of this strong evidence that Father exhibited a 

failure of parental adjustment, we conclude that it is unlikely 

that trial counsel’s performance had any impact on the court’s 

findings or conclusion on this ground for termination. In other 

words, even if counsel had performed more effectively in the 

ways Father identifies, it is not reasonably likely that the court 

would not have found at least one ground upon which to base 

its termination of Father’s parental rights.

¶45 In short, our confidence in the outcome of this case is not 

undermined by any of trial counsel’s perceived shortcomings. 

Father’s claims of ineffective assistance are therefore unavailing.

II. Reunification Efforts

¶46 Next, Father contends that DCFS did not provide 

reasonable reunification services to him and that the juvenile 

court erred in finding to the contrary. Father asserts that despite 

knowing he needed help with his parenting skills given A.H.’s

disabilities and N.H.’s attachment issues, DCFS did not provide 

additional support “until it was too late.” In particular, Father 

points out that the PCCIT sessions began during an extension 

period for reunification services and only one month before the 

second permanency hearing, at which the court terminated 

services. He further argues that DCFS’s efforts were 

unreasonable because its delay in providing PCCIT until he was 

“up against the permanency deadline” limited his success in the 
In re A.H.

20190846-CA 21 2021 UT App 57

time allotted and “virtually assured termination of reunification 

services.”

¶47 “Generally, as long as DCFS has made a fair and serious 

attempt to reunify a parent with a child prior to seeking to 

terminate parental rights, [DCFS] has complied with its statutory 

obligation.” In re A.W., 2018 UT App 217, ¶ 29, 437 P.3d 640 

(cleaned up). But the process of reunification is recognized as “a 

two way street which requires commitment on the part of the 

parents, as well as the availability of services from the State.” In 

re K.K., 2017 UT App 58, ¶ 5, 397 P.3d 745 (per curiam) (cleaned 

up). Reunification services ordinarily last twelve months after a 

child’s removal, but the juvenile court may, under certain 

conditions, extend services for up to 180 days. Utah Code Ann. 

§ 78A-6-314(6)–(7) (LexisNexis 2018). Ultimately, 

“reasonableness is an objective standard that depends upon a 

careful consideration of the facts of each individual case,” and 

the juvenile court thus has “broad discretion in determining 

whether DCFS made reasonable efforts to reunify” a parent with

a child. In re K.K., 2017 UT App 58, ¶ 5 (cleaned up); accord In re 

A.W., 2018 UT App 217, ¶ 29.

¶48 Here, DCFS provided numerous services to Father for 

more than a year, including drug testing, substance abuse 

treatment, psychological evaluation, domestic violence 

treatment, anger management classes, parenting classes, and 

weekly supervised visitation with the Children. The juvenile 

court extended these services, and it found that Father “actually 

engaged in the services,” knew what services needed to be 

completed, and “knew what was expected” of him. Yet Father, 

by his own fault, “took a lackadaisical approach to completing 

the services on time because he was relying on [Mother] to get 

the [C]hildren back.” The caseworker’s “[c]ajoling” at visits had 

“little effect” on Father. As discussed, DCFS’s provision of 

services is “a two way street which requires commitment on the 

part of the parents.” In re K.K., 2017 UT App 58, ¶ 5 (cleaned up).
In re A.H.

20190846-CA 22 2021 UT App 57

But the court found that Father “did not take reunification 

services seriously for nearly a year.” While DCFS’s provision of 

various services and attempts to help Father were reasonable, 

Father bore the responsibility of participating in and completing 

those services, and it was Father’s “lackadaisical” and belated 

efforts that fell short.

¶49 Father also complains that DCFS unreasonably delayed 

PCCIT, especially when the juvenile court found that the therapy 

“could have been provided earlier.” But Father overlooks that 

the court also found that PCCIT “was limited because the initial 

parenting class was not successful, even according to [Father].” 

Given Father’s lack of progress in parenting class and his overall 

lack of timely efforts, we cannot say that DCFS’s services were 

unreasonable under the circumstances. We thus reject this 

challenge to the court’s decision.

III. Grounds for Termination

¶50 Finally, Father asserts that the juvenile court erred in 

terminating his parental rights on the ground of unfitness. He 

suggests that this ground is unsupported by the evidence 

because he had made significant progress by the time of trial and 

the court had returned Am.H. to his care. He also claims that the 

court erroneously deemed him an unfit parent when he merely 

failed to be a “model parent.” See generally Utah Code Ann. 

§ 78A-6-503(4) (LexisNexis 2018) (stating that a parent’s

fundamental liberty interest “does not cease to exist simply

because a parent may fail to be a model parent”).

¶51 To the extent that Father pursues a sufficiency of the 

evidence challenge, he has not carried his burden on appeal. 

Although he discusses unfitness and mentions neglect, he has 

not undertaken an analysis of each ground supporting the 

court’s termination decision. “And we will not reverse a ruling 

of a lower court that rests on independent alternative grounds 
In re A.H.

20190846-CA 23 2021 UT App 57

where the appellant challenges less than all of those grounds.” In 

re J.M., 2020 UT App 52, ¶ 30, 463 P.3d 66 (cleaned up). 

¶52 To the extent Father believes that the court terminated his 

rights based solely on his failure to be a model parent, we are not 

persuaded. The court made detailed findings in support of five 

grounds for termination, and this case involves much more 

serious problems than Father’s mere failure to be a model

parent. Thus, we reject Father’s challenge to the grounds for 

termination.

CONCLUSION

¶53 Father has not shown that he was prejudiced by his trial 

counsel’s performance, and we therefore reject his claims of 

ineffective assistance of counsel. Father also has not established 

error in the juvenile court’s decisions regarding DCFS’s 

reasonable efforts and the grounds for termination. Accordingly, 

we affirm the court’s decision terminating Father’s parental 

rights as to A.H. and N.H.