2024 UT App 47

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.J., M.J., AND K.J.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.F. AND K.J.,

Appellants,

v.

STATE OF UTAH,

Appellee.

Opinion

Nos. 20230102-CA and

20230103-CA

Filed April 4, 2024

First District Juvenile Court, Logan Department

The Honorable Bryan P. Galloway

No. 1218130

Alexandra Mareschal, Kirstin Norman, and Jason B. 

Richards, Attorneys for Appellant D.F.

Emily Adams, Attorney for Appellant K.J.

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 In separate appeals that we consider together in this 

opinion, K.J. (Father) and D.F. (Mother) (collectively, Parents)

challenge the juvenile court’s orders removing their three children

(Children) from their home and, later, adjudicating the Children

abused and neglected. Parents’ main challenge concerns the 
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court’s adjudication that they abused and neglected the Children. 

Parents also assert that, in one respect, they received ineffective 

assistance of counsel. For the reasons discussed, we find Parents’ 

arguments on these two topics unpersuasive.

¶2 But Parents also assert that, during the shelter hearing held 

at the beginning of the case, the juvenile court did not undertake 

a proper and complete analysis of the factors the governing 

statute required the court to consider. In this respect, Parents’ 

arguments have merit, and we remand the case so that the 

juvenile court can conduct the proper statutory analysis. 

BACKGROUND

¶3 Parents are the legal and biological parents of three 

“medically complex” children: Kevin, Mia, and Kaleb.1 The family 

moved to Utah in 2022, after having lived in Nevada and Arizona;

at that time, Kevin was five years old, Mia was four, and Kaleb 

was not quite two. Parents believed that the Children suffered 

from a long list of various medical maladies; when the family 

arrived in Utah, all three Children—despite having largely

different medical diagnoses—had surgically placed gastric 

feeding tubes (G-tubes), were developmentally delayed, and used

wheelchairs for mobility. 

¶4 In July 2022, Kevin was rushed to a local hospital by 

ambulance after Mother reported that he had suffered a seizure. 

Mia was hospitalized at the same time due to concerns about 

weight and dehydration. Kevin and Mia were transferred to 

Primary Children’s Medical Center (PCMC) in Salt Lake City; 

Kevin was treated with IV fluids to address “severe 

hypernatremia” due to dehydration. Kevin and Mia ended up 

1. For readability, we use pseudonyms (rather than initials) to 

refer to the Children. 
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staying at PCMC for nearly two weeks, and Kevin was even 

admitted to the pediatric intensive care unit. While Kevin and Mia 

were at PCMC, medical professionals there became concerned 

that they were being medically neglected. In particular, hospital 

personnel observed that Kevin and Mia were “severely 

underweight,” despite the presence of G-tubes, and “were 

considered a failure to thrive.” 

¶5 After Kevin and Mia were discharged from PCMC, all 

three Children were referred to a pediatric nurse practitioner 

(Nurse Practitioner) for follow-up primary care. When the 

Children arrived at her medical clinic, Nurse Practitioner 

discovered that the Children—partly due to only recently having 

arrived in Utah—were not yet set up for medical insurance. But 

after examining the Children, Nurse Practitioner agreed to treat 

them anyway, despite their lack of insurance, because in her view 

“it was medically necessary to see them regardless of the 

insurance difficulties.” As she saw it, “these kids needed medical 

care whether [she] got paid” or not, because they were facing 

“significant medical issues” that she considered potentially “life 

and death” matters. The Children arrived at her clinic in 

wheelchairs and were developmentally delayed and nonverbal. 

None were toilet trained. Over the course of her treatment—

which lasted several weeks—Nurse Practitioner also observed

that the Children had not been “gaining [weight] as they [had 

been] in the hospital,” which made her wonder whether the 

Children might at some point need “to be rehospitalized.” 

¶6 A few weeks later, a pediatrician (Pediatrician) was 

assigned to the Children. When he first saw the Children, he 

observed that they were all “nonverbal,” and while Kevin had 

some ability to walk on his own, Mia and Kaleb were 

“nonambulatory.” During the course of his treatment of the 

Children, he worked with them to improve their motor skills and 

their ability to walk, and he monitored their weight, which he 
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indicated was the thing he was “following most closely.” Soon 

after Pediatrician took over primary care of the Children, Kaleb 

came in for his “two-year well[ness] visit.” During that visit, 

Mother indicated that Kaleb had spina bifida, which is “a neural 

defect at the base of the spine” that can often be fixed with 

surgery. Mother insisted that Kaleb had already had the surgery

to correct the spina bifida, and she even pointed to Kaleb’s back

where she indicated there was a scar from the surgery. But 

Pediatrician saw no scar.

¶7 At some point after Kevin and Mia were released from 

PCMC, a physician at Nurse Practitioner’s clinic contacted the 

Utah Division of Child and Family Services (DCFS) to notify them 

about potential issues with the Children. Thereafter, DCFS 

assigned caseworkers to investigate the matter, and those 

caseworkers made some ten visits to Parents’ home, prior to 

removal, to check on the Children and to assess the situation. 

These visits occurred at different times of day, yet in every visit 

except for one, the Children were all confined in “Pack ‘n Play” 

playpens. Parents stated that the Children needed to be in the 

playpens so that their G-tubes could function properly, but 

caseworkers observed that Parents had—but were not using—

portable devices that would have maintained a “continuous feed” 

from the feeding tubes without restricting the Children’s 

movement. On one visit, one of the caseworkers asked Mother to 

show her the Children’s medications, and in response Mother 

brought out a large “two feet by three feet” sized tote bag “full of 

prescription bottles and different ointments.” During this time, 

Kevin—who was five years old and eligible to begin 

kindergarten—was not enrolled in school and therefore was not 

receiving any of the services a school could potentially provide to

a medically complex child. 

¶8 In addition to receiving primary care from Nurse 

Practitioner and Pediatrician , the Children were also referred to 
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and treated by the Pediatric Complex Care Clinic at PCMC. They 

missed their first scheduled appointment with the clinic, which 

caused the lead physician there (Physician) a great deal of 

concern, because she knew that “it was critical that [PCMC] 

follow up with” the Children. Physician notified DCFS of the 

missed appointment, which was eventually rescheduled for about 

three weeks later. 

¶9 At that rescheduled visit, Mother reported to Physician 

that the Children were all suffering from “dysphagia,” which is 

the “inability to swallow food properly.” Physician observed that 

Kevin and Mia had “continued to lose weight” since their 

discharge from the hospital. This was troubling, because the 

Children all had G-tubes, which exist primarily to make sure the 

Children are receiving enough nutrition; as one member of the 

PCMC team testified, “a child with a G-tube whose caregiver is 

fully responsible for that nutrition intake should not be 

experiencing failure to thrive in the absence of a disease or 

pathology that could cause failure to thrive.” 

¶10 PCMC doctors investigated whether there could be any 

medical reason for the Children’s continued malnutrition and 

failure to gain weight, and eventually concluded that “none of the 

[C]hildren [had] a pathology consistent with a disease process 

that could cause failure to thrive.” Indeed, the PCMC team 

eventually determined that the Children’s “malnourishment and 

poor growth [were] directly related to insufficient caloric intake,” 

despite their G-tubes, and that the Children’s “failure to thrive 

was not due to their medical conditions but due to [Parents’] 

neglect . . . in feeding them appropriately.” 

¶11 In addition, after her examination of the Children, 

Physician was concerned “that the [medical] history being 

provided by” Parents was “not consistent with what” she was 

“seeing on physical exam.” Given these concerns, the PCMC team 
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then set out to review the Children’s various medical diagnoses, 

as reported by Parents, with the goal of verifying or eliminating 

each of them. As reported by Parents, the Children suffered from 

the following medical maladies, among others:

• Kevin had suffered a stroke either in utero or shortly 

after birth, and had Ehlers-Danlos syndrome, Erb’s 

palsy, a seizure disorder, hearing loss, premature birth, 

sleep apnea, and an “allerg[y] to the sun.” 

• Mia had DiGeorge syndrome, blindness, hearing loss, 

premature birth, cerebral palsy, and prediabetes. 

• Kaleb had spina bifida, gastroparesis, premature birth, 

clubfoot affecting both feet, urinary retention issues 

that required catheterization, and hydrocephalus. 

In an effort to confirm these diagnoses, the PCMC team requested, 

obtained, and reviewed over 7,000 pages of medical records 

regarding the Children, including records from Nevada and 

Arizona. After completing their review, and after examining the 

Children both before and after removal, the PCMC team was able 

to confirm some of the diagnoses. For instance, Kaleb does suffer 

from clubfoot in both feet, and Mia does have a genetic disorder 

similar to DiGeorge syndrome. But with regard to most of the 

diagnoses, the PCMC team concluded that Parents’ assertions 

were simply unsupported by any medical evidence. In particular, 

they eventually determined that Kevin does not suffer from 

Ehlers-Danlos syndrome or any seizure disorder, and that he did 

not have a stroke either in utero or shortly after birth; that Mia 

was not legally blind; and that Kaleb did not have spina bifida or 

hydrocephalus and did not need catheterization. 

¶12 Based on these conclusions, and on their examination of 

the Children, the PCMC team determined that Kevin and Kaleb 
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“had been the victim[s] of” “medical child abuse,”2 and that the 

team had “serious concerns” in that regard about Mia. They called 

for “hospital admission” for the Children to “de-escalate elements 

of [their] care that are unfounded” and to “restart crucial 

interventions that have been ignored,” with a focus on “nutrition 

and aiding age-appropriate development.” And they 

recommended “development of a long-term plan for traumainformed counseling and adherence to broad therapies, including 

speech therapy, occupational therapy, and physical therapy.”

¶13 The PCMC team then met with DCFS caseworkers to 

explain their findings. Based in part on the information its agents 

learned at that meeting, the State determined to seek removal of 

the Children from Parents’ home, and the very next day the State 

sought and obtained a removal warrant. 

¶14 After obtaining the warrant, DCFS caseworkers traveled to 

Parents’ home to remove the Children. When they arrived, the 

caseworkers again found the Children in their playpens. Parents 

were cooperative, however, and Mother changed the Children’s 

clothes in preparation for the drive to PCMC. One caseworker 

observed that the Children were “a little stinky” and “had an odor 

to them like they hadn’t bathed in a few days.” The drive to the 

2. In its reports regarding the Children, the PCMC team stated 

that “medical child abuse” is “a form of child maltreatment 

characterized by the fabrication or exaggeration of medical 

history, symptoms, and even exam findings and/or the induction 

of symptoms by a caregiver.” Medical child abuse “occurs when 

a child receives unnecessary and harmful or potentially harmful 

medical care at the instigation of the caregiver,” and it “results in 

manipulation of the medical system leading to child maltreatment 

in the form of unnecessary medical examinations, diagnostic 

testing . . . , imaging, and invasive procedures.” Medical child 

abuse, in the past, was called “Münchausen syndrome by proxy.”
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hospital was uneventful; Kaleb “babbled . . . baby talk,” while 

Kevin and Mia were “lethargic” and had a “very flat affect.” 

¶15 When the Children arrived at PCMC, hospital staff 

immediately noticed that the Children exhibited “very poor 

hygiene” and observed that the Children were each double or 

triple diapered and that the diapers were “sopping through.”

After the wet diapers were removed, hospital staff discovered that 

the Children had “fairly extensive [skin] breakdown in the diaper 

area” that was severe enough to require the assistance of the 

hospital’s “wound clinic.” Hospital staff noted that these sorts of 

wounds do not occur “overnight” and were the result of “there 

being wetness on the skin without appropriate response for some 

period of time.” The Children also had “irritability and 

breakdown” around their G-tube sites; as with the diaper-area 

wounds, these wounds also required the assistance of the 

hospital’s wound clinic. 

¶16 Medical personnel also observed that the Children were 

“malnourished and under expected weight for [their] ages.”

Kevin was determined to be “severely malnourished,” while Mia 

and Kaleb were determined to be “moderately malnourished.” 

And blood tests on Kaleb “revealed abnormalities very 

concerning for chronic malnutrition.” 

¶17 The doctors considered the Children’s malnutrition to be 

concerning, and they set about to discover why the Children were 

unable to regularly eat solid food. All three Children were 

administered “swallow studies” to determine their “ability to eat 

and drink by mouth.” Kevin had such a severe “oral aversion to 

food and drink” that hospital personnel were unable to complete 

the test, and he was referred to a “speech/language pathologist” 

to help him overcome the aversion. Mia was “found to have a 

significant oral aversion to liquids,” and was also referred to a 

“speech/language pathologist.” Kaleb, on the other hand, was 
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determined to have no oral aversion and was “eager to eat and 

engaged with all thicknesses of feeds.” Doctors concluded that 

Kevin and Mia’s oral aversion was “likely the result of not being 

provided with solid food” at home, and that Kaleb’s test results 

indicated a “serious concern” that he “did not need a feeding 

tube” at all. 

¶18 Following removal, the Children stayed in the hospital for 

six days “to medically stabilize them and properly diagnose their 

conditions” through further examination and testing. During this 

time, the PCMC team was (as noted above) able to confirm the 

conclusions it had reached based on the earlier records review. 

¶19 Upon discharge from PCMC, the Children were placed 

into foster care. Kevin and Mia were placed in the same homes, a 

temporary one at first for a few weeks before being moved to a 

more permanent placement. Kaleb was placed with a different 

foster family. Once in foster care, the Children showed rapid and 

measurable improvement. After having Kevin and Mia for only 

about a month, their foster mother reported that, while Kevin 

could only “scootch around the house on his hiney” when he 

arrived, he eventually learned not only to walk but to run, and he 

could often be seen doing “laps” around the kitchen island. He 

also began to allow his teeth to be brushed (something he had 

refused to allow at first), had become “a lot more personable” and 

affectionate, and began attending kindergarten and “loves 

school.” Mia had some ability to walk when she arrived but was 

“[v]ery unstable”; over time, however, she had learned to “run 

really fast.” The foster mother obtained glasses for Mia, which 

helped her navigate the world better. In the beginning, Mia 

refused to bathe, and would start “screaming and rocking and 

shaking” when asked to do so, but over time had become 

accustomed to it and “now she loves bath time.” And Kaleb’s 

foster mother reported that Kaleb could not crawl, walk, or talk 

when he arrived, but within a few weeks he learned how to not 
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only crawl but walk with the help of furniture, and he was able to 

say several words. 

¶20 The foster parents also reported that they had enrolled the 

Children in appropriate schooling. Kevin was enrolled in 

kindergarten, where he began to receive speech and occupational 

therapy through the school. Mia was enrolled in preschool, where 

she was given an individualized education plan that included

speech therapy. And Kaleb was enrolled in a state-run program 

known as “Up to Three,” where he was able to obtain physical 

and speech therapy. 

¶21 With regard to nutrition and weight gain, all three 

Children demonstrated swift and marked improvement in foster 

care. It wasn’t long before the Children no longer required 24-

hour G-tube feeding; soon, the Children were receiving feedings 

through the tube only at night and just two or three times during 

the day. All of them were soon eating solid foods; Kevin’s foster 

mother reported that he had “tried 20 new foods” and he liked

“spaghetti and pasta and yogurt and ice cream.” Following an 

appointment about a month after foster placement, Physician 

noted that Kevin “looks to be doing great” and stated that, from 

“a weight perspective, he is gaining weight appropriately.” And 

she noted that Mia “looked to be in excellent physical health.”

¶22 Soon after the Children were removed from Parents’ care, 

Pediatrician set up a meeting to inform Parents of the Children’s 

condition and accurate diagnoses. Parents refused to accept the 

PCMC team’s conclusion that many of the previous diagnoses 

were inaccurate; indeed, Pediatrician described Parents’ reaction 

as one of “scoffing and disbelie[f] and unacceptance.” Pediatrician 

later stated that, because of Parents’ “blatant disregard of facts 

from medical tests and expert opinions from specialists,” he 

“would be very worried” about the Children if they were to be 

placed back in Parents’ care.
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¶23 In the meantime, legal proceedings began in the juvenile 

court. One week after removal, the court held a shelter hearing, at 

which it heard testimony from Mother, Father, and one member 

of the PCMC medical team. At the conclusion of the hearing, the 

court stated that it was “convinced by a preponderance [of the 

evidence] that the [C]hildren were being neglected” by Parents. 

The court noted that daily oversight of the Children had been 

Parents’ responsibility, and that this “oversight was done in a way 

that was neglectful.” It specifically mentioned that, upon arrival 

at the hospital after removal, the Children all had “soiled” diapers 

and “open sores” in the diaper area as well as around the G-tube 

sites. The court noted that the Children “needed a great deal more 

medical oversight” than they had been getting, and that “at the 

very least” the case presented “medical neglect” with a “strong 

indication” that there was also “medical abuse.” The court stated 

that it had been “up to [Parents] to identify [the issues] and care 

for these [C]hildren,” who “were not thriving.” 

¶24 After making its findings of neglect, the court finished its 

shelter analysis with the following remarks:

The [c]ourt does find that given the current state of 

the [C]hildren, exigent circumstances existed with 

regards to the removal. The removal was proper. At 

this particular time until there is a plan in place, the 

continued removal is necessary. Okay? At some 

point in time if a plan is in place and the parents 

have shown the ability to take into consideration the 

current medical condition of the [C]hildren and 

have shown the ability to work with the 

professionals that are providing that care for the 

[C]hildren, I don’t see why it cannot at least be 

considered that the ongoing continued removal 

would not be necessary. Okay?
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At this point, I just don’t have enough with regards 

to that. The only thing I have is that there was 

testimony that if placed back in the care of [Parents], 

this is going to get worse and worse and worse. I 

don’t think that has to be the case really.

So I do find removal proper, . . . [a]nd I do find that 

exigent circumstances, emergency circumstances 

did exist with relation to the removal at the time the 

[C]hildren were removed which absolved [DCFS] of 

the need to provide reasonable efforts to keep the 

[C]hildren in the home.

¶25 Later, the court issued an order memorializing its oral 

ruling. It found that “[t]he lack of physical care that the [C]hildren 

received by [Parents] constitutes neglect,” and that the Children 

were “clearly not thriving.” The court found that “[r]emoval of 

the [C]hildren from the home was proper and in [their] best 

interest,” and that it was “contrary to [their] well-being . . . to 

remain in the home.” And it found that, “because an emergency 

situation . . . existed at the time of removal, . . . any lack of preplacement preventative efforts was appropriate and justified.” 

¶26 About six weeks later, the juvenile court held an 

adjudication trial. Over three trial days, the court heard from 

thirteen witnesses, including the involved DCFS caseworkers, 

Nurse Practitioner, Pediatrician, the foster parents, and various 

members of the PCMC medical team. They all testified about the 

events described above. At one point during the trial, the Children 

visited the courtroom, an event the court noted for the record, 

stating that it “was able to” see the Children and “watch them 

interact with” Parents. At the conclusion of the trial, the court took 

the matter under advisement. 

¶27 Some ten days later, the court issued a lengthy written 

ruling in which it summarized the evidence presented at trial and 
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then determined that the Children had been abused and neglected

by both Parents. With regard to abuse, the court found that the 

Children had “suffered or been threatened with nonaccidental 

harm in that unnecessary medical interventions have been 

performed that have caused physical harm” to the Children. In 

support of this finding, the court pointed to six different 

“unnecessary medical interventions”: (1) a CT scan performed on 

Kaleb in 2022 that was against medical advice; (2) Mother’s 

“[i]ntermittent catheterization” of Kaleb; (3) various medical tests 

performed on Kevin that “expos[ed him] to radiation 

unnecessarily”; (4) various unnecessary blood draws on Mia; 

(5) “bronchoscopies and modified Barium swallow studies” 

performed on all three Children that “may not have been 

necessary”; and (6) Parents’ actions in “maintaining the 

[C]hildren on G-tubes” and “constant[ly] plac[ing]” them in 

playpens, actions the court found had “harmed the [C]hildren to 

the point that they became unable to eat food orally or develop 

the ability to walk.” 

¶28 With regard to neglect, the court’s conclusion rested on 

two separate grounds. First, the court pointed to the Children’s 

condition upon arriving at the hospital, finding that they were 

“malnourished” without any “medical reason” and “[d]espite 

placement of feeding tubes and 24/7 feeding,” and that they were 

“nonverbal and unable to walk” because of parental neglect and 

not because of “their medical complexity.” Based on their 

condition at the time of removal, the court concluded that the 

Children were neglected because Parents had failed “to provide 

for their basic physical needs on a day-to-day basis.” 

¶29 Second, the court pointed to Parents’ belief that the 

Children had various medical maladies, many of which did not 

appear to be borne out by medical evidence, noting by way of 

example that there is no evidence that Kaleb has spina bifida or 

hydrocephalus. In that same vein, the court found that the 
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Children “have not received appropriate interventions for their 

developmental needs,” noting specifically that Mia had not 

received appropriate medical treatment for certain neurological 

conditions and that none of the Children had been “enrolled in 

any physical therapy, occupational therapy, feeding therapy, or 

speech therapy since the family arrived in Utah.” Accordingly, the 

court concluded that the Children were neglected because Parents 

had “failed or refused to provide proper and necessary 

subsistence [and] medical care when required.” 

¶30 After finding both abuse and neglect, the court concluded 

that “continued removal” was “in the best interest” of the 

Children, and that DCFS had “made reasonable efforts to prevent 

the removal,” but that those efforts had been “unsuccessful.” The 

court ordered that the Children “be placed in [DCFS’s] custody 

and guardianship for appropriate placement.” 

ISSUES AND STANDARDS OF REVIEW

¶31 Parents now appeal, and they raise three issues for our 

review. First, Parents challenge the juvenile court’s 

determination, made after the adjudication trial, that they had 

abused and neglected the Children. In this context, “we apply 

differing standards of review to findings of fact, conclusions of 

law, and determinations of mixed questions of law and fact.” In re

M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (quotation simplified).

The factual findings underlying an abuse or neglect adjudication 

are reviewed deferentially and are reversed only if clearly 

erroneous. See In re K.K., 2023 UT App 13, ¶ 21, 525 P.3d 519. But 

the court’s ultimate determination regarding abuse or neglect is 

reviewed for correctness, because making that determination, 

which involves applying a given set of facts to statutory criteria, 

“is primarily a law-like endeavor.” See In re M.S., 2023 UT App 74, 

¶ 23 (quotation simplified). 
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¶32 Second, Parents assert that, in one respect, their attorneys 

rendered constitutionally ineffective assistance. “When a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the [party] was deprived of the effective 

assistance of counsel as a matter of law.” State v. Kitzmiller, 2021 

UT App 87, ¶ 14, 493 P.3d 1159 (quotation simplified). 

¶33 Finally, Parents challenge the juvenile court’s earlier order 

following the shelter hearing, asserting that the court failed to 

engage in the proper statutory analysis before issuing its order 

finding that removal was necessary. In particular, Parents assert 

that the court did not properly analyze whether DCFS had made 

reasonable efforts to prevent removal, and that the court did not 

properly analyze whether there were services available, going 

forward, that might have prevented removal. At root, Parents’ 

assertion is that the juvenile court misapplied the shelter statute. 

“We review [a lower] court’s application of a statute for 

correctness.” Estate of Higley v. Utah Dep’t of Transp., 2010 UT App 

227, ¶ 6, 238 P.3d 1089 (quotation simplified).

ANALYSIS

I. Adjudication Order

¶34 Parents’ main challenge is to the merits of the juvenile 

court’s adjudication order, in which the court determined that the 

Children were abused and neglected as to both Parents. For the 

reasons discussed, we affirm the juvenile court’s determination 

that Parents neglected the Children. In light of that ruling, and 

given the posture of Parents’ arguments on appeal, we need not 

consider the merits of the court’s abuse adjudication. 
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A. Neglect

¶35 We first consider Parents’ challenge to the juvenile court’s 

neglect adjudication. In this context, “[n]eglect” includes parental

“action or inaction causing” any one of six different results. See

Utah Code § 80-1-102(58)(a). Yet not all six results are necessary 

for a neglect determination; when “the juvenile court [finds]

neglect under several subsections, to affirm we need conclude 

only that neglect was established under one of the bases.” In re

G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631.

¶36 In this case, the juvenile court determined that Parents had 

neglected the Children under two of the six statutory subsections. 

First, based on the condition of the Children at removal, the court 

determined that Parents’ action or inaction caused a “lack of 

proper parental care of a child by reason of the fault or habits of 

the parent.” See Utah Code § 80-1-102(58)(a)(ii). Second, and 

alternatively, the court determined, based on the Children’s 

medical conditions, that Parents had failed or refused “to provide 

proper or necessary subsistence or medical care, or any other care 

necessary for the child’s health, safety, morals, or well-being.” Id.

§ 80-1-102(58)(a)(iii). For the reasons discussed, we conclude that 

the juvenile court’s first ground is supported by the evidence in 

this case, and we therefore need not reach the second.

¶37 In our view, the Children’s condition at removal alone was 

sufficient for the juvenile court to determine that the Children 

were neglected. The Children were all malnourished, one of them 

“severely” so. They were all underweight and failing to thrive. 

Moreover, they all had mobility problems; none of them could 

walk in an age-appropriate manner. And none were toilet-trained. 

In addition, they arrived at PCMC with open sores in their diaper 

areas and around their G-tube sites that were severe enough to 

require consultation with the hospital’s wound clinic. 
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¶38 Even though the Children are medically complex, the 

juvenile court found that there was no medical reason for their

malnourishment, failure to thrive, or open wounds. That finding 

was not clearly erroneous. It should go without saying that

allowing open wounds to develop or remain untreated is not 

medically necessary; certainly, Parents make no assertion to the 

contrary. And with regard to malnourishment and failure to 

thrive, PCMC doctors investigated whether there could be any 

medical reason for the Children’s continued malnutrition and 

failure to gain weight, and eventually concluded that no such 

medical cause existed here. Absent a medical cause, children with 

G-tubes should not be malnourished. Following examination and 

testing, the PCMC team eventually determined that the 

Children’s “malnourishment and poor growth [were] directly 

related to insufficient caloric intake,” despite G-tubes, and that 

their “failure to thrive was not due to their medical conditions but 

due to [Parents’] neglect . . . in feeding them appropriately.” 

¶39 Parents resist the court’s neglect determination by pointing 

to the neglect statute’s exception for “reasonable and informed” 

health care decisions. See id. § 80-1-102(58)(b)(ii) (“Neglect does 

not include . . . a health care decision made for a child by the 

child’s parent or guardian, unless the state . . . shows . . . that the 

health care decision is not reasonable and informed.”). They 

assert, in essence, that their care of the Children has consisted of 

a series of health care decisions that the State has not shown to be 

unreasonable or uninformed. And on that basis they argue that 

the court’s neglect determination was incomplete and improper. 

¶40 Parents’ arguments might have more force if the reason the 

State was asserting neglect had to do with a specific medical 

decision Parents made for the Children—say, for instance, their

decision to place G-tubes in all three Children. But in this case, the 

juvenile court’s neglect determination was—at least in relevant 

part—not based on any specific health care decision but, instead, 
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on the Children’s condition at the time of removal. On that score, 

Parents—unlike the parents in In re M.S., 2023 UT App 74, ¶¶ 41–

48, 533 P.3d 859, who asserted that their baby’s low weight was 

due to their decision to exclusively use breast milk rather than 

formula—make no effort to defend the Children’s malnutrition 

and failure to thrive by pointing to any particular health care 

decision, whether reasonable and informed or not. Indeed, as 

noted, PCMC doctors concluded, after examination and testing, 

that there was no medical justification for the Children’s 

malnutrition and failure to thrive. Under these circumstances, the 

statutory exception to “neglect” for “reasonable and informed” 

health care decisions simply has no application. 

¶41 We therefore affirm the juvenile court’s determination that, 

based on the Children’s condition at removal, Parents—through 

their own “fault or habits”—had failed to provide “proper 

parental care” to the Children. See Utah Code § 80-1-102(58)(a)(ii). 

Because we affirm under subsection (a)(ii), we need not further 

discuss the court’s alternative neglect determination, made under 

subsection (a)(iii). See In re G.H., 2023 UT App 132, ¶ 28.

B. Abuse

¶42 Moreover, because we affirm the juvenile court’s neglect 

determination, we need not—in this case—consider the merits of 

the court’s abuse determination. Juvenile court jurisdiction over a 

child can be based on, among other things, either abuse or neglect. 

See In re G.B., 2022 UT App 98, ¶ 32, 516 P.3d 781 (“Importantly, 

jurisdiction could properly be based on either the abuse 

determination or the neglect determination.”). Our decision 

affirming the juvenile court’s neglect adjudication means that the 

court has continuing jurisdiction over the Children, regardless of 

the merits of Parents’ challenge to the court’s abuse adjudication. 

¶43 In situations like this one, the propriety of the court’s abuse 

adjudication ends up being an inconsequential point, unless the 
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affected parent can demonstrate that there will be “collateral 

consequences associated with an abuse determination that do not 

follow from a neglect determination.” Id. ¶ 34. In this case, Parents 

make no effort to articulate any collateral consequences that might 

follow from an abuse adjudication that are not already present 

from a neglect adjudication. And when asked during oral 

argument if we would need to address abuse if we were to affirm 

on neglect, Parents agreed that, in that situation, we would not

need to address abuse. We therefore have no occasion to consider 

the merits of Parents’ challenge to the court’s abuse adjudication. 

II. Ineffective Assistance of Counsel

¶44 Next, Parents assert that their attorneys provided 

ineffective assistance during the adjudication proceedings by 

failing to consult with or call an expert who could have testified 

about “medical child abuse” and about Parents’ state of mind and 

intentions regarding their care of the Children. Under the 

circumstances of this case, we reject Parents’ claim of ineffective 

assistance of counsel. 

¶45 In child welfare cases, we employ the “Strickland test to 

determine a claim for ineffective assistance of counsel.” See In re 

E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. 

Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 

1994). Under that test, Parents “must show that (1) counsel’s 

performance was deficient and (2) this deficient performance 

prejudiced the defense.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 

P.3d 184 (quotation simplified). “To demonstrate deficient 

performance,” Parents “must persuade this court that, 

considering the record as a whole, [c]ounsel’s performance was 

objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 

P.3d 627. And to show prejudice, Parents “must demonstrate a 

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

been different absent counsel’s error.” In re C.M.R., 2020 UT App 
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114, ¶ 21 (quotation simplified). “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome of 

the proceeding.” Id. (quotation simplified). In this case, Parents 

cannot meet either element of the Strickland test. 

¶46 In support of their ineffective assistance claim, Parents 

have submitted a declaration from a forensic pathologist (Expert) 

who indicates that he has experience in cases of medical child 

abuse. Expert offers his view that, in most cases of medical child 

abuse, the “responsible parent . . . receives some form of 

secondary benefit, either financial or psychologic, from the 

inappropriate and unwanted medical care the child receives.” But 

he states that, in other cases, the unnecessary medical care is the 

result of “miscommunication between medical providers and 

patients” and of “the unsophistication and/or limited cognitive 

resources” of the parents. Expert states that, in order to offer a 

useful opinion in this case, he would need to undertake “an 

adequate psychologic and cognitive assessment” of Parents. He 

has not yet undertaken any such assessment, although he notes 

that he has reviewed the reports of another examiner who 

assessed Parents, and he offers his view that these reports “appear 

to endorse mental functioning deficits” on Parents’ part “that 

could lead to inaccurate conceptualizations of [the Children’s] 

medical conditions and treatment needs,” and that nothing he 

sees in those reports “implies [that Parents] are putting [the 

Children] at risk for selfish or self-aggrandizing motives.” 

¶47 Under the circumstances presented here, a reasonable 

attorney could have decided not to consult Expert. The opinions 

Expert offers speak only to medical child abuse, and not to 

whether Parents neglected the Children by not feeding them 

enough and not enabling them to grow and thrive despite their 

medical maladies. As noted above, we affirm the juvenile court’s 

neglect determination without reaching the merits of any 

questions about the propriety of the Children’s various medical 
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diagnoses. Because Expert has nothing useful to say about 

Parents’ manifest neglect of the Children notwithstanding their 

diagnoses, a reasonable attorney could have determined that 

consultation with Expert was not necessary or helpful. 

Accordingly, we conclude that Parents have not demonstrated 

that their attorneys performed deficiently. 

¶48 For much the same reason, Parents have also not shown 

prejudice. Even if their attorneys had consulted with and retained 

Expert, his testimony—given that it goes only to abuse and not to 

Parents’ neglect of the Children as evidenced by the Children’s 

condition at removal—would not have made a difference to the 

outcome of this case. 

¶49 Thus, we conclude that Parents have not borne their 

burden of demonstrating that their attorneys rendered 

constitutionally ineffective assistance. 

III. The Shelter Order

¶50 Finally, we consider Parents’ challenge to the juvenile 

court’s earlier shelter order. Before considering the merits of that 

challenge, we address one preliminary issue: whether Parents

have properly appealed the shelter order. After concluding that 

Parents have properly mounted an appeal from the shelter order, 

we proceed to address the merits of Parents’ arguments. 

A. Appealability

¶51 We do not see very many appeals from shelter orders. We 

suspect that this is because shelter hearings occur at the very 

beginning of any child welfare case, and because orders coming 

out of those hearings are not considered final orders that are 

immediately appealable as of right. We therefore take this 

opportunity to discuss the appealability of shelter orders, and we 
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conclude that Parents have properly appealed from the shelter 

order here. 

¶52 “As a general rule, an appellate court does not have 

jurisdiction to consider an appeal unless the appeal is taken from 

a final order or judgment that ends the controversy between the 

litigants.” In re J.E., 2023 UT App 3, ¶ 17, 524 P.3d 1009 (quotation 

simplified). And, at least conceptually, “the finality of an order in 

juvenile proceedings is determined the same way as the finality 

of an order in other courts.” Id. ¶ 18 (quotation simplified). “But 

it is fair to say that, in appeals from juvenile court, finality is 

viewed somewhat more flexibly than in the district court context.” 

Id. ¶ 19. In juvenile court cases, “the determining factor” as to

finality “is whether [the order in question] effects a change in the 

permanent status of the child.” Id. (quotation simplified). Using 

this “pragmatic analysis of the order itself,” Utah appellate courts 

have concluded that, in juvenile court cases, “appeals may be 

heard from more than one final judgment.” Id. (quotation 

simplified). In particular, adjudication orders and termination 

orders are considered final orders that are appealable as of right, 

while “shelter orders” are “not considered final.” Id. ¶ 20; see also

In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037 (“An adjudication 

order is one such judgment that we have found to be final for 

purposes of appeal.”); In re M.V., 937 P.2d 1049, 1051 (Utah Ct. 

App. 1997) (per curiam) (holding that, because a shelter hearing 

only creates temporary orders, “a shelter hearing order . . . is not 

final and appealable as a matter of right”). 

¶53 Because shelter orders are not considered to be final orders, 

they are not immediately appealable as of right.3 To properly 

3. Parties can, of course, request permission to appeal any 

interlocutory order (including shelter orders) under rule 5 of the 

Utah Rules of Appellate Procedure. But parties are not required 

(continued...)
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appeal such orders as a matter of right, the party wishing to 

challenge the shelter order must wait until the court has entered 

a final appealable order. At that point, the party may take an 

appeal from the final order, which appeal “may include 

challenges to interlocutory orders” issued by the court prior to 

entry of the final order. Jensen v. Jensen, 2013 UT App 143, ¶ 2 n.1, 

304 P.3d 878 (per curiam); accord U.P.C., Inc. v. R.O.A. Gen., Inc., 

1999 UT App 303, ¶ 13, 990 P.2d 945. 

¶54 In this situation, the adjudication order was the first final 

and appealable order issued by the juvenile court following entry 

of the shelter order. Thus, Parents’ opportunity to appeal the 

shelter order as of right presented itself upon entry of the court’s 

adjudication order. And Parents seized that opportunity by filing 

their notices of appeal. In each notice, Parents specified that they 

were appealing from the court’s adjudication order; they did not 

specify that they also wanted to appeal from the court’s interim 

shelter order, but parties are not required to include such 

to seek review under rule 5, and such review is in any event

completely discretionary with the appellate court. See Utah R. 

App. P. 5(a), (g). In this case, Parents did not seek permission to 

appeal the shelter order under rule 5, but this fact does not affect 

their ability to later appeal the shelter order following the 

eventual entry of a final order. See State v. Troyer, 866 P.2d 528, 530 

(Utah 1993) (stating that “the scope of appellate review from a 

final judgment” is not “in any way affected or limited by the 

possibility that any one or more of the trial court’s rulings might 

have formed the basis of a petition for an interlocutory appeal”); 

see also In re S.F., 2012 UT App 10, ¶ 28, 268 P.3d 831 (stating that 

the fact that a parent “could have elected to petition for 

interlocutory appeal” from an earlier nonfinal order “does not 

eliminate our authority to review” the earlier order “once the 

neglect and termination proceedings were completed and an 

appeal timely filed”), cert. denied, 280 P.3d 421 (Utah 2012). 
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specification in the notice of appeal. See Wilson v. Sanders, 2019 UT 

App 126, ¶ 28, 447 P.3d 1240 (“The language of rule 3(d) [of the 

Utah Rules of Appellate Procedure] does not require a party 

appealing from an entire final judgment to specify each 

interlocutory order of which the appellant seeks review.” 

(quotation simplified)), cert. denied, 456 P.3d 388 (Utah 2019). 

Parents then indicated in their appellate petition, filed a few 

months later, that they were challenging not only the adjudication 

order but also the interlocutory shelter order. 

¶55 Thus, Parents took all the right steps to appeal the juvenile 

court’s shelter order. Such orders are not immediately appealable 

as of right, but a challenge to such orders may be included in any 

appeal from the next subsequently entered final order. Parents 

properly included their challenge to the shelter order in their 

appeal from the next final order entered by the juvenile court: the 

adjudication order.

B. Parents’ Challenge to the Shelter Order

¶56 Having concluded that Parents have properly mounted an 

appeal from the juvenile court’s shelter order, we proceed to 

consider the merits of Parents’ appellate challenge. In this case, 

Parents raise a very specific objection to the shelter order. They 

assert that the court did not properly address two of the required 

components of the statutorily mandated removal analysis: 

(1) “whether reasonable efforts were made to prevent or eliminate 

the need for removal,” and (2) “whether there are available 

services that would prevent the need for continued removal.” See

Utah Code § 80-3-301(10)(a)(i). In considering the merits of 

Parents’ challenge, we first conclude that the juvenile court did 

indeed err in its application of the shelter statute. In a separate 

section, we then discuss the appropriate remedy in this situation.
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1

¶57 Utah law requires juvenile courts, before removing a child 

from a parent’s home, to make several specific findings. At issue 

here are the requirements of subsection 10(a) of the shelter statute. 

That subsection states, in relevant part, as follows:

(i) The juvenile court shall make a determination on 

the record as to whether reasonable efforts were 

made to prevent or eliminate the need for 

removal of the child from the child’s home and 

whether there are available services that would 

prevent the need for continued removal.

(ii) If the juvenile court finds that the child can be 

safely returned to the custody of the child’s 

parent or guardian through the provision of the 

services described in Subsection 10(a)(i), the 

juvenile court shall place the child with the 

child’s parent or guardian and order that the 

services be provided by [DCFS].

Id. § 80-3-301(10)(a). 

¶58 Thus, this statutory provision requires juvenile courts to 

make, “on the record,” two separate but related determinations. 

See id. § 80-3-301(10)(a)(i). The first one is a backward-looking 

inquiry that asks whether, prior to removal, DCFS has made 

“reasonable efforts” to “prevent or eliminate the need for 

removal.” Id. However, if DCFS’s “first contact with the family 

occurred during an emergency situation in which the child could 

not safely remain at home,” the juvenile court need not engage in 

a traditional reasonable-efforts analysis but, instead, “shall make 

a finding that any lack of preplacement preventive efforts . . . was 

appropriate.” Id. § 80-3-301(11). 
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¶59 The second—and related—determination requires analysis 

of “whether there are available services that would prevent the 

need for continued removal.” Id. § 80-3-301(10)(a)(i). As we 

understand it, this inquiry is different from the reasonable-efforts 

analysis, in that it looks forward rather than backward. As 

relevant here, the question is not whether reasonable efforts have 

been made in the past, but whether services are available, going 

forward, that could “prevent the need for continued removal.” Id.

¶60 With regard to the first part of this inquiry, the court in its 

oral ruling offered its view that “emergency circumstances did 

exist” at the time of removal “which absolved [DCFS] of the need 

to provide reasonable efforts.” And in its later written order, it 

found that, “because an emergency situation and aggravated 

circumstances existed at the time of removal, and the [C]hildren 

could not safely remain in [Parents’] home, any lack of preplacement preventative efforts was appropriate and justified.”4

4. There are other statutory provisions that, in specific cases, may 

operate to excuse or render irrelevant any lack of pre-removal 

reasonable efforts. See, e.g., Utah Code § 80-2a-201(6) (stating that, 

“in cases where sexual abuse, sexual exploitation, abandonment, 

severe abuse, or severe neglect are involved, the state has no duty 

to make reasonable efforts or to . . . maintain a child in the child’s 

home”); id. § 80-2a-302(4) (same); id. § 80-3-301(12) (same). No 

party asserts that any of these other Utah statutes are applicable 

here. In a supplemental authority letter submitted to us after oral 

argument, however, the guardian ad litem (GAL) asserts—for the 

first time—that the juvenile court’s allusion to “aggravated 

circumstances” was an implicit effort to resort to a provision of 

federal law, which provides that “reasonable efforts . . . shall not 

be required . . . if a court of competent jurisdiction has determined 

that the parent has subjected the child to aggravated 

(continued...)
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¶61 Parents assert that this analysis was erroneous because the 

“emergency” exception that absolves DCFS from making 

reasonable pre-removal efforts to prevent removal applies only in 

cases in which DCFS’s “first contact with the family occurred 

during an emergency situation,” see id. § 80-3-301(11) (emphasis 

added), a situation not applicable here. The State advances a 

broader interpretation of this statutory exception, but in our view 

Parents’ interpretation is the correct one. 

¶62 The State agrees with Parents that, in situations in which 

DCFS’s first contact with the family is in an emergency situation, 

the statute requires the court to make a finding that any lack of 

reasonable efforts was appropriate. See id. But it asserts that this 

provision does not prevent a court from “mak[ing] a finding of 

exigency in any case where [DCFS] has already been working 

with the parents,” and it posits that a juvenile court has the 

authority to dispense with the pre-removal reasonable-efforts 

inquiry anytime it believes the situation is emergent. We disagree. 

¶63 The previous subsection requires that a pre-removal 

reasonable-efforts finding be made. See id. § 80-3-301(10)(a)(i). 

circumstances.” 42 U.S.C. § 671(a)(15)(D)(i). As an initial matter, 

we note that parties may not raise new legal theories in postargument supplemental authority letters. Cf. State v. Seat, 2022 UT 

App 143, ¶ 39 n.4, 523 P.3d 724 (stating that parties are “not 

permitted to raise a new question for the first time at oral 

argument” before this court). But more substantively, the GAL’s 

argument fails on its face; even if we assume, for purposes of the 

discussion, that the juvenile court’s comment was actually a 

reference to a federal statutory exception to the reasonable-efforts 

requirements, resort to the federal statute is unhelpful here 

because, at the time of the shelter hearing, no “court of competent 

jurisdiction” had made any determination that Parents had done 

anything wrong.
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There are no exceptions built into this subsection. To be sure, there 

is an exception built into the next statutory subsection, but that 

provision, on its face, applies only to situations in which DCFS’s 

first encounter with the family occurred in an emergency 

situation. We decline the State’s invitation to read a broader 

emergency exception into the statute. See St. Jeor v. Kerr Corp., 2015 

UT 49, ¶ 13, 353 P.3d 137 (“[W]e will not read additional 

limitations into [a rule] that the language cannot bear.”); Greene v. 

Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156 (“[W]e will not 

disturb explicit legislative requirements and read into the statute 

an actual notice exception.”). We conclude that subsections (10) 

and (11) of the shelter statute, when read together, contemplate an 

exception to the reasonable-efforts requirement that is applicable 

only when DCFS’s first encounter with the family occurs during 

an emergency situation.

5

¶64 That narrow exception is not applicable here. DCFS was 

first notified of potential problems with the Children in August 

2022, some three months before removal. Between DCFS’s first 

notification (in August) and removal (in November), DCFS 

assigned caseworkers to the family, and those caseworkers made 

at least ten visits to Parents’ home. This is simply not a situation 

in which DCFS’s “first contact with the family” occurred in an 

emergency situation, and therefore the “emergency” exception to 

the reasonable-efforts inquiry does not apply here. The juvenile 

court therefore erred in applying that exception in this case, and 

it should have proceeded, at the shelter hearing, to consider 

5. We can certainly envision policy concerns that might support a 

broader exception to the reasonable-efforts requirement that 

could apply in any emergency situation, regardless of whether 

DCFS had already been working with the affected family. We note 

here, as we sometimes do, that our legislature is free to amend the

statute if it believes we have misinterpreted legislative intent. 
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whether DCFS had made reasonable pre-removal efforts to avoid 

taking the Children out of Parents’ home. 

¶65 The juvenile court’s error in this regard, however, appears 

to have been rendered moot by the court’s later finding, made 

after the adjudication trial, that DCFS had “made reasonable 

efforts to prevent the removal of the [C]hildren, but those efforts 

were unsuccessful.” While Parents complain that the court did not 

undertake this analysis after the shelter hearing, they do not make 

any effort to challenge the finding that the court eventually made

just two months later after the adjudication trial. Under these 

circumstances, any error the court made by relying on the 

emergency exception at the shelter hearing, and by failing to make 

a “reasonable efforts” finding at that time, has been rendered 

inconsequential by the court’s later unchallenged finding that 

DCFS had indeed made reasonable efforts to prevent removal. 

¶66 We turn now to the second part of the inquiry, the part that

requires the court to determine, on a going-forward basis,

“whether there are available services that would prevent the need 

for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In this 

vein, the court stated, in its written order, as follows: 

If, at some point, there is a plan in place and 

[Parents] have shown the ability to take into 

consideration the current medical condition of the 

[C]hildren, and have shown the ability to work with 

the professionals providing that care for the 

[C]hildren, the [c]ourt would re-consider whether 

ongoing and continued removal would be 

necessary. 

This comment indicates that the court was of course aware that 

services do exist—such as physical, speech, and occupational 

therapy for the Children and medical education and in-home 

health care assistance for Parents—that are designed to improve 
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situations like the one presented here. And it indicates that the 

court was making an effort to apply the second part of the 

statutory analysis.6 But the court, in its analysis, did not take the 

next analytical step and assess whether specific services could be 

provided to the family, in that moment and going forward, that 

might obviate the need for removal. See id. Simply stating that, at 

some point in the future, the court might reconsider its removal 

order is not sufficient; indeed, in most child welfare cases, the 

initial permanency goal is reunification, and juvenile courts 

nearly always stand ready to reconsider removal orders in 

appropriate cases. The shelter statute requires a more exacting 

analysis prior to removal, and the court’s failure here to ask and 

answer the correct statutory question was error. 

¶67 And unlike the court’s error regarding the backwardlooking reasonable-efforts determination, this error was not later 

remedied by later findings made after the adjudication trial. The 

State points to no similar finding made after the trial, and we are 

aware of none. 

¶68 We therefore conclude that the juvenile court made two 

errors in its attempt to comply with the shelter hearing statute. 

First, it misapplied the “emergency” exception to its obligation to 

make a backward-looking reasonable-efforts determination at the 

shelter hearing. Second, it failed to make a specific forwardlooking determination about whether services could be provided 

6. On this basis, we reject the State’s assertion, also advanced by 

the GAL, that Parents failed to preserve any objection to the 

court’s application of the shelter statute. Our supreme court has 

made clear that there is no preservation problem where the trial 

court “not only had an opportunity to rule on the issue . . . but in 

fact did rule on it.” See Fort Pierce Indus. Park Phases II, III & IV 

Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218

(quotation simplified). 
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to the family that would serve to obviate the need for removal. 

The first error was rendered inconsequential by later findings. But 

the second one wasn’t, and we must therefore consider what the 

proper remedy is, in this situation, to address the court’s error. 

2

¶69 Before doing so, we take the opportunity to emphasize the 

importance of completing the proper statutory analysis at the 

shelter hearing. While such hearings take place early in the case 

and are generally not comprehensive trials, they can assume a 

position of great importance in the arc of a child welfare case. To 

be sure, removal orders are temporary nonfinal orders that can 

be—and in many cases are, see, e.g., In re M.S., 2023 UT App 74, 

¶¶ 2–21, 533 P.3d 859 (considering a situation where a child was 

placed back into the parent’s home at a later hearing, after initial 

removal)—amended or modified, but removal orders 

nevertheless memorialize a seminal moment in a child welfare 

case. Such cases often proceed much differently after the shelter 

hearing depending on whether the child was (or was not) 

removed. It is therefore vital that courts undertake the analysis 

required by the shelter statute, and that, before removal, they 

engage with both the backward-looking reasonable-efforts 

analysis as well as the forward-looking services analysis. 

¶70 The importance of getting shelter hearings right the first 

time is highlighted by the difficulty of putting the removal genie 

back in the proverbial bottle. As this case illustrates, by the time 

appellate review of a shelter order can take place, the family’s 

situation will often look much different than it did at the shelter 

hearing. While post-adjudication events are not part of the record 

submitted to us on appeal, we are nevertheless aware that, while 

this appeal has been pending, significant events have taken place 

that might affect the way the juvenile court analyzes the question 

of whether services are available that could obviate the need for 
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continued removal. For instance, we are aware that criminal child 

abuse charges have been filed against Parents. In addition, we are 

aware that, since the adjudication hearing, Parents have received 

certain services, and the court has had the opportunity—at a 

permanency hearing held in January 2024—to assess the efficacy 

of those services. And there have doubtless been other 

developments that have occurred in the previous sixteen months 

of which we are appropriately unaware. 

¶71 In this case, by way of remedy, Parents ask us to vacate the 

initial removal order and remand the case so that the juvenile 

court can conduct an entirely new shelter hearing. We do not view 

this as an unreasonable request; indeed, when an error is made at 

a hearing, a common remedy is to remand the case for the court 

to conduct a new hearing. But even though we do not view 

Parents’ request as unreasonable, in this situation the request is 

not entirely practical. After all, the situation is much different now 

from what it was in November 2022, and in cases involving 

children, our usual remand instructions include an admonition to 

the court to conduct any new hearing, on remand, in present-tense 

fashion, as of the date of the renewed hearing, taking into account 

all that has happened in the child’s situation since. See In re 

Z.C.W., 2021 UT App 98, ¶ 12, 500 P.3d 94. 

¶72 Under the circumstances, we agree with Parents that the 

juvenile court’s error cannot go entirely unremedied, and that the 

case should therefore be remanded so that the juvenile court can 

complete the analysis required by the shelter statute and, in 

particular, consider “whether there are available services that 

would prevent the need for continued removal.” See Utah Code 

§ 80-3-301(10)(a)(i). But this inquiry should not be undertaken as 

of the date of the initial shelter hearing; instead, this inquiry 

should, on remand, be conducted in present-tense fashion, taking 

into account all relevant existing developments. See In re Z.C.W., 
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2021 UT App 98, ¶ 12.7 Moreover, we offer no specific instruction 

to the juvenile court as to whether, and to what extent, it must 

hold an evidentiary hearing on remand; we conclude only that the 

court must properly complete the required statutory analysis and 

that it “must—in some manner—consider and appropriately deal 

with proffered new evidence.” See id. ¶ 15. And we do not, in this 

opinion, order that the removal order be vacated; the juvenile 

court may order that relief, if it deems such relief appropriate, 

only after completing its analysis on remand. 

¶73 Finally, we wish to make clear that we harbor no opinion 

as to how the juvenile court’s renewed analysis should come out; 

given the realities of chronology, the juvenile court (conducting a 

present-tense analysis) will have a lot more information than we 

do now, on this record, about how the Children are doing and 

how Parents have responded to the situation during the period

between the shelter hearing and the permanency hearing. It may 

well be that the court reaches the same result, after conducting a 

more complete shelter analysis, that it reached at the permanency 

hearing in January 2024. On the other hand, it may be that the 

court, after conducting the proper shelter analysis, finds it 

appropriate to vacate or amend one or more of its previous orders. 

But either way, it is important that courts conducting shelter 

7. In In re Z.C.W., 2021 UT App 98, 500 P.3d 94, our instruction 

that the renewed hearing be conducted, on remand, in presenttense fashion was a function of the applicable statute using a 

present-tense locution. Seeid. ¶ 13 (interpreting a statute requiring 

juvenile courts to assess “whether termination is in the best 

interest of the child” (quotation simplified)). The statute at issue 

here also uses a present-tense locution. See Utah Code § 80-3-

301(10)(a)(i) (requiring assessment of “whether there are available 

services that would prevent the need for continued removal” 

(emphasis added)). We therefore conclude that, in this situation, 

a present-tense perspective is required on remand. 
In re K.J.

20230102-CA 

20230103-CA 34 2024 UT App 47

hearings, before they take the rather drastic step of removing 

children from a parent’s home, follow the requirements of the 

shelter statute. We remand the matter so that these requirements 

may be satisfied in this case, albeit belatedly. 

CONCLUSION

¶74 We discern no error in the juvenile court’s determination 

that, based on the condition of the Children upon removal, the 

Children were neglected by both Parents. And we reject Parents’ 

assertion that their attorneys rendered ineffective assistance 

during the adjudication process. 

¶75 However, we conclude that the juvenile court did not

conduct the proper statutory analysis at the initial shelter hearing. 

We therefore remand this case to the juvenile court so that it can 

complete the required analysis and assess, in present-tense 

fashion, whether there are services available that can prevent the 

need for continued removal.