2022 UT App 128

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF D.G.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

V.G.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20210836-CA

Filed November 17, 2022

Third District Juvenile Court, Tooele Department

The Honorable Elizabeth M. Knight

No. 1173613

K. Andrew Fitzgerald, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Candace 

Roach, Attorneys for Appellee

Amy L. Williamson, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 D.G. (Child) was removed from his mother’s (Mother)

home as a result of Mother’s habitual drug use, and after 

reunification efforts proved unsuccessful, the juvenile court 

terminated Mother’s parental rights. On appeal, we have been 

asked to consider whether the juvenile court erred in concluding 

that termination was strictly necessary and in Child’s best interest 

and whether Mother’s counsel was ineffective for failing to seek 

accommodations for her under the Americans with Disabilities 
In re D.G.

20210836-CA 2 2022 UT App 128

Act (the ADA). Because we previously rejected Mother’s strictlynecessary argument on the merits, relying on the arguments made 

in her petition on appeal, we do not consider that argument 

further and grant the State’s motion to strike the portions of 

Mother’s brief addressing that issue. Further, we reject Mother’s 

ineffective assistance of counsel claim on the basis that she cannot 

establish that she was prejudiced by any deficient performance.

BACKGROUND

¶2 Mother first encountered the child welfare system when 

Child was removed from her care at birth after being exposed to 

drugs in utero and suffering withdrawal. In an effort to be 

reunited with Child, Mother participated in reunification services

and began inpatient treatment at a treatment facility. When Child 

was nearly six months old, and based upon Mother’s compliance 

with the Child and Family Service Plan (Service Plan) adopted by 

the juvenile court, the court allowed a trial home placement with 

Mother at the treatment facility while she continued to participate 

in services. By the time Child was eighteen months old, he was 

returned to Mother’s custody. However, Mother soon began to 

“struggle” by resuming her drug use, stopping her prescribed 

medication, losing her job, missing therapy appointments, and 

refusing to drug test. A little more than four months after being 

returned to Mother’s custody, Child was again removed from her 

care and placed in a foster home. Following a permanency 

hearing, the juvenile court terminated reunification services and 

changed Child’s permanency goal to adoption. Subsequently, the 

juvenile court terminated Mother’s parental rights to allow Child 

to be adopted by his foster family.

¶3 Mother appealed the juvenile court’s termination order, 

raising two issues for our review: (1) that the juvenile court erred 

in determining that it was strictly necessary to terminate Mother’s 

rights without considering an alternative placement with Child’s 

biological father and (2) that her trial counsel was ineffective for 

failing to seek accommodations for her under the ADA. After 
In re D.G.

20210836-CA 3 2022 UT App 128

reviewing Mother’s petition, we issued an Expedited Briefing 

Order and Notice of Hearing (the Briefing Order) requesting full 

briefing only as to Mother’s second appellate issue. As to the first

issue, we rejected Mother’s argument, explaining,

[T]here is nothing in the record that indicates a 

paternity determination. Caseworker testified at 

trial that paternity had not been established and that

the man who initially came forward was not the 

father. In the termination order, the juvenile court 

found that paternity had not been established. There 

is nothing in the record that shows that finding is 

clearly erroneous.

¶4 Despite this court’s Briefing Order limiting full appellate 

briefing to only Mother’s second stated issue, Mother filed a brief 

addressing both issues for our consideration. In response, the 

State requested that we strike the portion of Mother’s brief 

addressing the strictly-necessary issue because it did not comply 

with the Briefing Order and also because the Briefing Order had 

already resolved that issue on the merits. Mother opposed the 

State’s motion, arguing that the supreme court’s ruling in In re 

J.A.L., 2022 UT 12, 506 P.3d 606, issued three weeks after the 

Briefing Order, gave rise to exceptional circumstances because it 

changed “the interpretation of the law . . . while her appeal was 

pending.” We deferred ruling on the motion to strike “pending 

plenary consideration of the appeal by this court.”

ISSUES AND STANDARDS OF REVIEW

¶5 First, we must address the issue raised in the State’s motion 

to strike. We consider such a motion, made first and relevant only 

on appeal, in the first instance. See Aurora Credit Services, Inc. v. 

Liberty West Dev., Inc., 2007 UT App 327, ¶ 7, 171 P.3d 465. Because 

we ultimately grant the State’s motion, we do not reconsider the 

merits of Mother’s argument concerning the juvenile court’s 

consideration of the strictly-necessary requirement.
In re D.G.

20210836-CA 4 2022 UT App 128

¶6 Second, we address Mother’s argument that she received 

ineffective assistance of counsel. “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

(quotation simplified).

ANALYSIS

I. Motion to Strike

¶7 In child welfare proceedings, the appellant is required to 

file a “petition on appeal” that outlines the nature of the case, the 

relief sought, relevant dates, a concise statement of facts, a 

statement of the legal issues presented, the applicable standard of 

review, and supporting legal authority and argument for each 

issue raised. Utah R. App. P. 55(a), (d). While such petitions are

not intended to be full appellate briefs, they do set the parameters 

of the issues presented for appeal. Parties are required to address 

the merits of their appellate arguments, and petitions should be 

“designed to zealously advocate the positions of the parties and 

to assist the court in resolving the matter.” In re J.F., 2014 UT App 

82, ¶ 11, 327 P.3d 26 (quotation simplified). In drafting their 

petitions, parties in child welfare proceedings should err on the 

side of inclusiveness because our rules allow us to make a 

substantive ruling on the merits of a party’s appellate arguments 

or order further briefing on the issues presented after reviewing 

only the way those arguments are framed in a petition.1 See Utah 

R. App. P. 58(a)–(b) (stating that “[a]fter reviewing the petition on 

appeal, any response, and the record, the Court of Appeals may 

rule by opinion, memorandum decision, or order” or, 

alternatively, the court may “set the case for full briefing” and 

1. In this important way, petitions filed in child welfare appeals 

are different from docketing statements filed in other appeals. See 

generally Utah R. App. P. 9. Nothing in our rules allows us to make 

substantive rulings on a party’s appellate arguments after 

reviewing only a docketing statement.
In re D.G.

20210836-CA 5 2022 UT App 128

“specify which issues must be briefed”). A party who disagrees 

with the court’s ruling following review of a petition may not seek 

further review on the basis of the court’s refusal to grant full 

briefing. Id. R. 58(b). However, a party may file a petition for 

rehearing on the merits of the court’s decision, id.; id. R. 35, or 

petition the supreme court for a writ of certiorari, id. R. 45(a).

¶8 Here, our Briefing Order resolved the merits of Mother’s 

argument regarding the juvenile court’s application of the strictlynecessary standard and directed Mother to further address only 

the ineffective assistance of counsel issue raised in her petition.

Our rules do not allow Mother to seek rehearing on our decision 

not to order full briefing on the strictly-necessary issue raised in 

her petition, see id. R. 58(b), and she did not seek the court’s 

permission to file any supplemental briefing on that issue on the 

basis that the law had changed after she filed her petition. Mother 

simply addressed the issue in her appellate brief. This was 

improper, and regardless of the grounds presented, Mother’s 

briefing of the strictly-necessary issue violated our Briefing Order. 

We therefore grant the State’s motion to strike that portion of the 

brief. Mother’s remedy, should she disagree with our ruling, is to 

file a petition for rehearing2 or to petition the supreme court for 

certiorari.

2. For those readers who may register some dissatisfaction with 

our resolution of this issue on what may appear to be a 

technicality of appellate procedure, we offer our observation—

informed by our review of Mother’s briefing—that even if Mother 

had sought permission to file supplemental briefing, we would 

have been disinclined to grant Mother any relief. We are 

unpersuaded by Mother’s assertion that the supreme court’s 

ruling in In re J.A.L., 2022 UT 12, 506 P.3d 606, should change the 

analysis set forth in our Briefing Order. In re J.A.L. stands for the 

proposition that a juvenile court cannot find termination strictly 

necessary based on “the categorical concern that a permanent 

(continued...)
In re D.G.

20210836-CA 6 2022 UT App 128

II. Ineffective Assistance of Counsel

¶9 We now turn to the single question on appeal on which we 

requested full briefing. Mother argues that she received 

ineffective assistance of counsel because her attorney did not 

request that she receive accommodations under the ADA, which

she claims would have enabled her to better access services to 

regain custody of Child. To establish her ineffective assistance of 

counsel claim, Mother “must show that counsel’s performance 

guardianship is not as stable or permanent as an adoption.” Id.

¶ 25. But here, the juvenile court was not presented with any 

feasible option for a guardianship placement. The only potential 

placements Mother suggested on appeal were with the adoptive 

parents of Child’s half-siblings or with Child’s alleged biological

father. But there is nothing in the record indicating that Child has 

a relationship with his half-siblings or their adoptive parents or 

that his siblings’ adoptive parents would be willing to also act as 

Child’s guardians. Further, it is undisputed that Child’s paternity 

had not been established. And there is no other option, short of 

termination and adoption, that would have otherwise been 

apparent to the juvenile court. See generally In re J.J.W., 2022 UT 

App 116, ¶ 19 (“[I]n some instances (e.g., where the existence of a 

particular option would not be readily apparent to the court), a 

parent may need to expressly ask a trial court to consider a 

specific non-termination option in order to properly preserve the 

right to argue, on appeal, that the court did not adequately 

consider that option.”). The court observed that “Mother has very 

little family support and her grandfather, who is her closest 

relative, lives in [a town] . . . that is a trigger for her to use drugs.” 

Thus, even assuming that the juvenile court’s analysis of the 

strictly-necessary question could have or even should have been 

more robust, without any remotely feasible alternatives to 

termination and adoption, Mother cannot show that the juvenile 

court’s finding that termination of Mother’s rights was strictly 

necessary was against the clear weight of the evidence.
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20210836-CA 7 2022 UT App 128

was objectively deficient and that counsel’s deficient performance 

prejudiced the case.” See In re S.S., 2015 UT App 230, ¶ 22, 360 P.3d 

16 (quotation simplified). To accomplish this, she must point “to 

specific instances in the record demonstrating both counsel’s 

deficient performance and the prejudice it caused” her. See State 

v. Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166.

¶10 To establish prejudice, Mother would need to “proffer 

sufficient evidence to support a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” See In re S.H., 2007 UT App 8, ¶ 12, 

155 P.3d 109 (quotation simplified). In the context of this case, 

such evidence would need to support a reasonable probability 

that Mother’s invocation of the ADA here would have led to 

modifications to the Service Plan intended to accommodate her 

disability, that those accommodations would have better allowed

her to access needed services, and that better access to services 

would have prevented the termination of her parental rights. To 

persuade us that counsel’s failure to invoke the ADA changed the 

outcome of this case, Mother must present record evidence that 

demonstrates that (1) Mother is disabled; (2) because of Mother’s

disability, she is entitled to particular accommodations to allow 

her to access services; (3) had Mother received such 

accommodations, she would have accessed the provided 

reunification services; and (4) the reunification services would 

have enabled Mother to successfully complete the Service Plan

and avoid having her rights terminated. See In re K.T., 2015 UT 92, 

¶¶ 22–28, 362 P.3d 1248.

¶11 Mother points to evidence in the record indicating that she 

did not receive a psychological evaluation and that one of her 

therapists opined that she “wondered if [Mother] was on the 

autism spectrum.” Mother also asserts that the record indicates 

that her “mental health” problems had a “substantial impact . . . 

on her life’s activities” and that all parties involved were aware 

that she suffered from “significant mental health problems.” 

(Quotation simplified.) However, because Mother never received 

a psychological evaluation, there is no evidence in the record 
In re D.G.

20210836-CA 8 2022 UT App 128

diagnosing her with any specific disability or indicating how any 

such disability impacted her life, and Mother has made no effort 

to supplement the record with any such evidence.

3 See In re 

C.M.R., 2020 UT App 114, ¶¶ 29–32, 473 P.3d 184. See generally 

State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92 (explaining that the 

individual asserting ineffective assistance of counsel “bears the 

burden of assuring the record is adequate” and that if the record 

is inadequate that individual also “bears the primary obligation 

and burden of moving for a temporary remand”). Essentially, 

Mother asks us to assume that had she received a psychological 

evaluation, it would have identified a specific disability that could 

be accommodated under the ADA and that it is reasonably 

probable that such accommodations would have changed the 

outcome of the termination trial. But we are not in a position to 

make such assumptions, and in fact, in the absence of specific 

evidence to the contrary, we must assume that counsel performed 

effectively. See Litherland, 2000 UT App 76, ¶ 16.

¶12 Without evidence indicating what a psychological 

evaluation would have concluded, what disability Mother had, 

what accommodations Mother needed, and how those 

accommodations might have helped her to more successfully 

participate in reunification services, she cannot show that she 

suffered prejudice as a result of counsel’s allegedly deficient 

performance in failing to request a psychological evaluation and 

accommodations under the ADA. Accordingly, she has not 

3. Mother asserts that had counsel performed effectively, he 

would have ensured that she receive a psychological evaluation. 

However, we have procedures available for an appellant to 

request remand to supplement the record, which are designed to 

address the problem that “the insufficient record may often be the 

result of the very inadequate assistance alleged.” Cf. State v. 

Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166. Where Mother has not 

requested such a remand, we can consider only the evidence 

before us in assessing her ineffective assistance of counsel claim. 

See In re D.R., 2022 UT 124, ¶ 18. 
In re D.G.

20210836-CA 9 2022 UT App 128

carried her burden of establishing that she received ineffective 

assistance of counsel.

CONCLUSION

¶13 Because we did not order full briefing on the strictlynecessary issue and instead rejected Mother’s arguments 

regarding that issue on the merits on the basis of her petition on 

appeal, we grant the State’s motion to strike with respect to the 

portions of Mother’s brief that addressed the strictly-necessary

issue. As to the merits of the issue that we asked Mother to brief, 

we conclude that she cannot establish that she received ineffective 

assistance of counsel, because the record before us is insufficient 

to establish that she suffered prejudice as a result of her counsel’s 

allegedly deficient performance. Accordingly, we affirm the 

juvenile court’s order.