2024 UT App 62

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF P.P.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

B.P.,

Appellant,

v.

B.M. AND J.M.,

Appellees.

Opinion

No. 20230486-CA

Filed May 2, 2024

Third District Court, Salt Lake Department

The Honorable Kara Pettit

No. 222900323

Sheleigh Harding, Attorney for Appellant

Sierra D. Hansen, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which 

JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 B.P. (Father) appeals from a district court order 

terminating his parental rights to his daughter, Phoebe.1 Father’s 

only claim on appeal is that his counsel (Counsel) provided 

ineffective assistance for failing to call certain witnesses to testify 

at trial. But because Father’s claim hinges on his request for a 

remand to develop the record, and because we deny the request, 

we affirm the district court’s order.

1. We employ a pseudonym for the child.
In re Adoption of P.P.

20230486-CA 2 2024 UT App 62

BACKGROUND 

¶2 In 2014, two weeks after Phoebe was born, Father was 

arrested on a parole violation, and he remained incarcerated on 

various charges for “a big portion of her life.” Phoebe lived with 

her mother (Mother) until the summer of 2021, when Mother 

became seriously ill and was hospitalized with rapidly declining 

health. Two weeks before Mother’s eventual death, Father was 

released from prison. 

¶3 Phoebe spent the day before Mother’s death with Father. 

But, on Mother’s wishes, B.M., Phoebe’s maternal grandmother 

(Grandmother), and Grandmother’s husband, J.M. (StepGrandfather; collectively, Grandparents), retrieved her from

Father.

2 The next day was an “extremely traumatic day,” as it 

became clear that Mother was dying. Father appeared at the 

hospital demanding to take Phoebe with him. His behavior was 

“intense,” “erratic,” and “scary” enough that security removed 

him from the hospital. That night, at a vigil in Mother’s honor, 

Grandmother refused to let Phoebe leave with Father, so he called 

the police to assist him. But the police declined to physically place

Phoebe with Father.

¶4 Phoebe then went to live with Grandparents. Grandmother

initiated guardianship proceedings and Father filed an objection.

The case was referred to mediation, which was unsuccessful 

because Father failed to appear. The court found that Father’s 

failure to appear “amount[ed] to a default” and granted 

Grandmother permanent guardianship. The court noted Father’s 

parental rights had not been severed and recommended he seek 

2. There is some dispute about how much time Phoebe spent with 

Father before Mother died. Father testified it was “four or five 

days,” but according to Grandparents, she spent just one day with 

him. 
In re Adoption of P.P.

20230486-CA 3 2024 UT App 62

services and parent-time, but because he was eventually 

incarcerated again, Father did not do so.

¶5 In August 2022, Grandparents petitioned to adopt Phoebe. 

The district court held a one-day bench trial. At trial, StepGrandfather testified that Phoebe was “scared” of Father because 

of his behavior and had expressed fear that Father would try to 

take her. Step-Grandfather testified that Phoebe felt abandoned 

by Father, as he had never written her letters, called her on her 

birthday, or sent her gifts. Step-Grandfather stated he had a “very 

minimal” relationship with Father and believed “it wouldn’t be a 

safe environment” for Phoebe to live with him. Mother’s friend 

(Friend), who had been at the hospital on the day of Mother’s 

death, testified about Father’s “scary” and “intense” behavior in 

trying to take Phoebe with him against Mother’s wishes. 

Grandmother testified that Father called Phoebe only one time 

since Mother’s death and had not followed the court’s 

guardianship order to establish a relationship with her.

Grandmother stated that she could not work well with Father 

because she did not have a relationship with him. 

¶6 Although Father’s initial disclosures included a list of ten 

potential witnesses, Counsel called only one witness at trial—

Father himself. Father testified that he had regular 

communication with Mother while Mother was still alive and he 

would talk to Phoebe whenever he could, but he admitted that 

these phone calls mostly consisted of his talking to Mother. He 

admitted he had been incarcerated for a “big portion” of Phoebe’s 

life and had not attended the guardianship proceedings, but he 

noted that Phoebe had spent “four or five days” with him before 

Mother died. And he testified that he had tried to contact Phoebe

after Mother’s death, but Grandparents had given him a “bogus 

number” and he could not “get ahold of them.” He stated that 

Grandparents had a “vendetta” against him. 
In re Adoption of P.P.

20230486-CA 4 2024 UT App 62

¶7 The court then issued its findings of fact and conclusions 

of law. First, the court found clear and convincing evidence of 

statutory grounds for termination, concluding Father had both 

abandoned Phoebe and made only token efforts to support or 

communicate with her. With respect to abandonment, the court 

found prima facie evidence that Father had no communication 

with Phoebe since shortly after Mother’s death, he had defaulted 

in the guardianship proceeding, and Grandparents were not 

aware of his location until they saw a news report that he had been

arrested. And with respect to token efforts, the court found Father 

had, in fact, made no effort to support Phoebe “financially or 

emotionally”; he was incarcerated for “substantial periods” of her 

life and had made no attempt to communicate with her while 

incarcerated; and though he had “some communication with 

[Phoebe] while out of jail, these time periods were short.” The 

court also found that Father had “never provided a home” for 

Phoebe and had never lived with her. 

¶8 The court then turned to what it called the “crux of this 

case”—whether termination was in Phoebe’s best interest. The 

court found the presumption of preserving “natural familial 

bonds” had been rebutted in this case because Father had never 

lived with Phoebe, did not fulfill “the normal parental 

obligations/responsibilities,” and “never had a positive, nurturing 

parent-child relationship” with her. The court also considered 

whether a permanent guardianship could equally protect and 

benefit Phoebe, but it found that Father and Grandparents “have 

a terrible relationship” and “will never be able to work together 

to ensure [Phoebe] has a healthy relationship” with both parties. 

And though Phoebe had some interaction with Father’s extended 

family, the court found this was “not substantial enough to 

outweigh the harms” to Phoebe resulting from a lack of 

permanence in her guardianship arrangement. The court also 

found that Father was unable to act in Phoebe’s best interest, 

demonstrated by his calling the police to remove Phoebe from 
In re Adoption of P.P.

20230486-CA 5 2024 UT App 62

Mother’s vigil, which was “highly traumatic” for Phoebe. The 

court found it likely that, should the guardianship remain intact, 

Phoebe would have to endure the fear of recurring traumatic 

events. Thus, the court found it strictly necessary from Phoebe’s 

point of view to terminate Father’s parental rights.

¶9 Father immediately filed a notice of appeal from the 

termination order. In the meantime, the court granted 

Grandparents’ petition for adoption. Father then filed a notice of 

appeal from the adoption decree. On the parties’ stipulation, this 

court then consolidated the two appeals. After his appeals were 

consolidated, Father filed a motion requesting a stay of briefing, 

alleging Counsel provided ineffective assistance and requesting a 

remand to the district court to develop the record in support of 

his claim. Father noted that because this was a civil case, remand 

under rule 23B of the Utah Rules of Appellate Procedure was not 

available but urged that remand could nonetheless be granted 

under one of several other “procedural pathways.” 

¶10 In support of his request for remand, Father attached 

declarations from six potential witnesses—his mother, sister, 

grandmother, uncle, aunt, and wife. Each declaration offered a 

variation on the same basic facts: Father’s extended family 

members were “heavily involved” with Phoebe’s and Mother’s 

lives, Father and Phoebe had “weekly” phone contact, Father and 

Phoebe “lived” together with Father’s mother and sister before 

Mother’s death, Father was a “regular dad” and had established 

a “loving and affectionate . . . father/daughter relationship” with 

Phoebe, and Grandparents were “difficult to contact” or had 

“completely blocked” Father’s extended family from contacting 

Phoebe after Mother’s death. Father argued this testimony would 

have changed the outcome of his trial—rendering Counsel’s 

failure to call the witnesses ineffective assistance. We denied the 

stay and deferred ruling on Father’s request for remand “pending 

briefing and plenary consideration of the appeal.”
In re Adoption of P.P.

20230486-CA 6 2024 UT App 62

ISSUE AND STANDARD OF REVIEW 

¶11 Father’s only argument on appeal is that Counsel provided 

ineffective assistance by failing to call several witnesses during 

the termination proceeding. “An ineffective assistance of counsel 

claim raised for the first time on appeal presents a question of 

law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned 

up).

ANALYSIS 

¶12 Father argues Counsel provided ineffective assistance in 

failing to call several witnesses at the termination trial. To prevail 

on his claim, Father “must demonstrate both (1) that [Counsel’s] 

performance was deficient and (2) that [he] suffered prejudice as 

a result.” In re D.R., 2022 UT App 124, ¶ 16, 521 P.3d 545 (cleaned 

up), cert. denied, 525 P.3d 1264 (Utah 2023). But because the record 

does not support his claim, Father requests a remand for the 

district court to hold an evidentiary hearing regarding Counsel’s 

alleged ineffective assistance.

¶13 Father recognizes that remand here is not possible under 

rule 23B of the Utah Rules of Appellate Procedure. See Utah R. 

App. P. 23B(a) (“A party to an appeal in a criminal case may move 

the court to remand the case to the trial court for entry of findings 

of fact, necessary for the appellate court’s determination of a claim 

of ineffective assistance of counsel.” (emphasis added)). But he 

urges we may nonetheless grant a remand patterned after two of 

our prior decisions, In re S.H., 2007 UT App 8, 155 P.3d 109, and 

In re C.M.R., 2020 UT App 114, 473 P.3d 184. In both cases we 

determined that—in the context of child welfare proceedings in 

juvenile court—parents who provided extra-record evidence 

alleging ineffective assistance on appeal were entitled to a remand 

similar to that provided by rule 23B to develop the record in 

support of their claims. See In re C.M.R., 2020 UT App 114, ¶¶ 31–
In re Adoption of P.P.

20230486-CA 7 2024 UT App 62

32; In re S.H., 2007 UT App 8, ¶¶ 14–16. As this type of remand is 

“analogous to remand under rule 23B of the Utah Rules of 

Appellate Procedure, it requires a nonspeculative allegation of 

facts, not fully appearing in the record on appeal, which, if true, 

could support a determination that counsel was ineffective.” In re 

D.R., 2022 UT App 124, ¶ 18 (cleaned up). 

¶14 This procedure has not yet been applied in the context of 

private termination petitions filed in district court.3 But we 

decline Father’s invitation to do so here because even were we to 

grant him such a remand, he would be unable to show that 

Counsel was ineffective. In order to terminate Father’s parental 

rights, the district court was required to find that (1) one or more 

of the statutory grounds for termination were present and (2) 

termination was in Phoebe’s best interest. See In re adoption of J.E., 

2024 UT App 34, ¶ 10. The court made detailed findings on each 

step and, even accepting the facts asserted in the carefully worded

witness declarations as true, they do not undermine these 

findings.

¶15 Several of the declarations asserted that Father had weekly 

phone contact with Phoebe before Mother’s death. But this does 

not contradict the court’s finding that Father’s last contact with

Phoebe was shortly after Mother’s death and nearly two years

prior to the trial. Several of the declarations stated that Phoebe 

3. Given the concern that the “rule 23B-like remand” procedure 

created in In re S.H., 2007 UT App 8, 155 P.3d 109, may conflict 

with the Utah Rules of Appellate Procedure, see In re C.M.R., 2020 

UT App 114, ¶¶ 36–37, 473 P.3d 184 (Harris, J., concurring), and 

because it has been applied only in the child welfare context in 

juvenile court, we urge the Supreme Court’s Advisory Committee 

on the Rules of Appellate Procedure to consider lending formality 

to the procedure and to provide for its application to district court 

private termination proceedings as well as to juvenile court 

termination proceedings.
In re Adoption of P.P.

20230486-CA 8 2024 UT App 62

had “lived” with Father before Mother’s death. But Father himself 

testified he had only spent “four or five days” with Phoebe during 

that time. And, regardless, this testimony would not have altered 

the court’s finding that Father had “never provided a home for 

[Phoebe], much less a permanent home, and has never lived with” 

her. 

¶16 All six witness declarations suggested that Father was a 

“regular dad,” had a “loving and affectionate . . . father/daughter 

relationship” with Phoebe, and was attentive to her needs. But the 

court determined that there was strong evidence that Father 

“lacks the ability to act in [Phoebe’s] best interest” because, after 

never having custody of her, “he called the police to physically 

remove her from” the vigil on the day of Mother’s death, which 

was “highly traumatic” for her. Further, the court found that 

Father knowingly allowed guardianship to be granted to 

Grandparents and had never followed the court’s orders to 

develop a relationship with Phoebe pursuant to the guardianship 

order. Testimony about positive interactions between Phoebe and 

Father—observable for at most five days—does not dispel the 

court’s finding that Father had “never had a positive, nurturing 

parent-child relationship” with her.

¶17 Several of the potential witnesses stated that Grandparents 

had “abducted” Phoebe from Father. And several alleged that 

Grandparents had either been difficult to reach or had 

“completely blocked” them from contacting Phoebe. But the court 

found that Phoebe had interacted with Father’s extended family 

under the guardianship order, though this contact was “not 

substantial enough to outweigh the harms to” Phoebe from a lack 

of permanency. And, if anything, these apparent conflicts 

between Grandparents and Father’s family only seem to add 

support to the court’s finding that Grandparents and Father had 

a “terrible relationship” and would be unable to work together to 

facilitate a healthy relationship between all parties. 
In re Adoption of P.P.

20230486-CA 9 2024 UT App 62

¶18 We fail to see how this testimony from Father’s family 

members would have changed the court’s conclusion that 

statutory grounds for termination existed and that termination 

was in Phoebe’s best interest. Thus, even were we to grant a 

remand to Father, he would be unable to show that Counsel’s 

failure to call these witnesses prejudiced him. And without a 

showing of prejudice, his ineffective assistance claim would fail. 

See In re D.R., 2022 UT App 124, ¶ 16 (noting a parent must show 

“both (1) that counsel’s performance was deficient and (2) that [the 

parent] suffered prejudice as a result” (emphasis added) (cleaned 

up)). Accordingly, we deny Father’s request for remand. Cf. State 

v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (stating that, in the rule 

23B context, “[i]t stands to reason that if the defendant could not 

meet the test for ineffective assistance of counsel, even if his new 

factual allegations were true, there is no reason to remand the 

case, and we should deny the motion”).

CONCLUSION 

¶19 Father’s appeal presented one issue: whether Counsel 

provided ineffective assistance. Because this argument is

contingent on Father’s request for a remand, and because we deny 

this request, we affirm the district court’s order in all respects.