2013 UT App 7

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, IN THE INTEREST OF C.B.,

A PERSON UNDER EIGHTEEN YEARS OF AGE

M.B.,

Appellant,

v.

S TATE OF U TAH

,

Appellee.

Opinion

No. 20120036

‐ CA

Filed January 10, 2013

Third District Juvenile, Salt Lake Department

The Honorable Frederic M. Oddone

No. 1047739

David C. Cundick, Attorney for Appellant

John E. Swallow and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

J UDGE C AROLYN B. M C H UGH authored this Opinion, in which

J UDGE J. F REDERIC V OROS J R

. concurred. J UDGE J AMES Z. D AVIS

concurred, in part, and concurred in the result only, in part, with

opinion.

McHUGH, Judge:

¶1 M.B. (Mother) appeals from the juvenile court’s order

terminating her parental rights with respect to her minor child, C.B.

In particular, Mother contests the juvenile court’s denial of herIn re C.B.

20120036

‐ CA 2013 UT App 7 2 motion to stay termination proceedings pending an evaluation of

her competency. We affirm in part and dismiss Mother’s appeal in

part.

BACKGROUND

¶2 On February 4, 2011, the Division of Child and Family

Services (DCFS) took three

‐ month

‐ old C.B. into protective custody

after residents of a homeless shelter reported that Mother had left

him unattended and had tried to suffocate him. The verified

petition asserted that “[t]he [DCFS] caseworker met with [Mother]

and observed [Mother] to have an erratic thought process as she

jumped from topic to topic and [Mother] appeared to be confused.”

After a shelter hearing, Mother stipulated to the shelter findings

and C.B. was placed in the interim custody of DCFS. The juvenile

court held an adjudication hearing on April 8, 2011, and found that

Mother had neglected C.B. The court also ordered that Mother

undergo a psychological evaluation and parenting assessment.

¶3 On May 10, 2011, the juvenile court held a disposition

hearing at which the State proposed a Child and Family Plan for

reunification services. At that time, Mother’s trial counsel reported

that he had concerns about whether he could effectively represent

Mother because he was having difficulty communicating with her.

Mother’s trial counsel asked that Mother undergo a psychological

assessment or, in the alternative, that he be permitted to withdraw.

The State did not object to the request that the disposition hearing

be continued so long as the child welfare permanency deadlines

would not be stayed while the psychological evaluation was being

completed. As a result, the juvenile court continued the disposition

hearing pending the psychological assessment.

¶4 Because Mother was incarcerated on the date of the contin

‐

ued disposition hearing, the juvenile court again postponed the

hearing. After being released, Mother failed to appear on the

second rescheduled date, and the juvenile court ordered a thirdIn re C.B.

20120036

‐ CA 2013 UT App 7 3 continuance. Although Mother appeared for the disposition

hearing on June 30, 2011, she still had not completed her psycho

‐ logical evaluation. The juvenile court again ordered that Mother

undergo a psychological evaluation so that it could proceed with

the disposition hearing, which was scheduled for August 9, 2011.

On July 22, 2011, over two months after she was originally ordered

to do so, Mother completed her psychological evaluation.

¶5 When Mother failed to appear at the August 9, 2011

disposition hearing, trial counsel again moved to withdraw on the

ground that he had been unable to communicate with Mother since

the prior hearing. The juvenile court granted trial counsel’s motion

to withdraw and ordered that further “reunification services

should not be offered because aggravating circumstances exist.”

Thereafter, DCFS indicated its intent to pursue the termination of

Mother’s parental rights and the juvenile court reappointed trial

counsel to represent Mother in those proceedings.

¶6 DCFS filed its petition to terminate Mother’s parental rights

on September 8, 2011. On October 25, 2011, the day set for the

termination trial, Mother’s trial counsel filed a motion to stay

pending a determination of Mother’s competency based on his

concerns that Mother did not understand the nature of the

proceedings and was unable to assist in her defense. The juvenile

court continued the termination trial in order to allow for briefing

and argument on the issue. Ultimately, the juvenile court denied

the motion to stay the proceedings based on its conclusion that

“[t]here is no authority or procedural rule for a competency

evaluation of a parent to determine if a parent is competent to

stand trial and indeed, incompetence is a ground for the termina

‐

tion of parental rights.” The juvenile court also found that Mother

had been effectively represented by her trial counsel and that the

psychological evaluation indicated that Mother did not exhibit any

“abnormal thought processes.” As a result, the juvenile court

ordered that the case proceed to trial.In re C.B.

20120036

‐ CA 2013 UT App 7 4 ¶7 After a termination trial was held on December 8, 2011, the

juvenile court entered an order terminating Mother’s parental

rights with respect to C.B. In its findings of fact, the court noted

that Mother had testified “coherently and clearly” at trial and that

it did “not have any basis to find that [Mother was] psychologically

impaired [at trial] or for any time during the past nine months that

she [had] appeared before the [juvenile court].” Mother appeals

from the juvenile court’s decision.

ISSUES AND STANDARDS OF REVIEW

¶8 Mother asserts that the juvenile court erred by not staying

the termination proceedings in order to authorize a competency

evaluation. In particular, she claims that the juvenile court violated

her rights under the Utah Rules of Civil Procedure and her due

process rights under the Utah and United States constitutions. The

“interpretation of a rule of procedure is a question of law” that we

review for correctness. Ostler v. Buhler

, 1999 UT 99, ¶ 5, 989 P.2d

1073. “‘Due process challenges are questions of law that we review

applying a correction of error standard.’” Certified Bldg. Maint. v.

Labor Comm ʹ n

, 2012 UT App 240, ¶ 17, 285 P.3d 831 (mem.)

(quoting Utah Auto Auction v. Labor Comm ʹ n, 2008 UT App 293, ¶

9, 191 P.3d 1252).

ANALYSIS

¶9 We first consider Mother’s argument that she was entitled

to a competency hearing under the relevant procedural rules and

statutes governing competency in criminal cases. Because we

conclude that the procedural rules governing juvenile court

proceedings did not afford Mother a right to a competency hearing,

we then consider Mother’s due process claims. Cf. Gardner v. State

,

2010 UT 46, ¶ 93, 234 P.3d 1115 (noting that it is an appellate court’sIn re C.B.

20120036

‐ CA 2013 UT App 7 5 “obligation to avoid addressing constitutional issues unless

required to do so” (citation and internal quotation marks omitted)).

I. Procedural Rights

¶10 Mother first claims that the juvenile court was empowered

under Utah court rules to stay the termination proceedings and

order Mother to undergo a competency evaluation. Proceedings to

terminate parental rights are governed by the Utah Rules of

Juvenile Procedure and, to the extent not inconsistent with those

rules, the Utah Rules of Civil Procedure. See Utah R. Juv. P. 2(a).

Mother points us to rule 17 of the Utah Rules of Civil Procedure,

which states, “An

. . . incompetent person who is a party must

appear either by a general guardian or by a guardian ad litem

. . . .”

See Utah R. Civ. P. 17(b). Mother first argues that rule 17 affords the

juvenile court “the right to appoint a guardian ad litem for an

incompetent party” and then contends that, by inference, the court

“is certainly empowered with making the determination regarding

whether or not a mother of a juvenile in a child welfare proceeding

is competent once it has been raised.” Although trial counsel did

request a competency evaluation, there is nothing in the record to

suggest that counsel also requested that a guardian be appointed

for Mother. Furthermore, rule 17 contains no provision suggesting

that a civil litigant must be competent in order for the case to

proceed. Instead, rule 17 provides that through appointment of a

guardian, the case may go forward while the litigant remains

incompetent. See Utah R. Civ. P. 17(b). Nothing in rule 17 supports

Mother’s claim that she was entitled to a stay of the termination

proceedings pending a determination of her competency.

¶11 Mother also relies on the statute governing issues of

incompetency in criminal proceedings, which provides that an

incompetent person cannot “be tried for a public offense,” because

an incompetent person does not “have a rational and factual

understanding of the proceedings against him or of the punish

‐

ment specified for the offense charged” or the ability “to consult

with his counsel and to participate in the proceedings against himIn re C.B.

1. Where the relevant provisions of the Utah Code have not

changed, we cite the current version for the reader’s convenience.

20120036

‐ CA 2013 UT App 7 6 with a reasonable degree of rational understanding.” See Utah

Code Ann. §§ 77

‐ 15

‐ 1,

‐ 2 (LexisNexis 2012). 1 Unlike rule 17’s

treatment of a party to a civil proceeding, if a criminal defendant

is found incompetent, the proceedings must be stayed until the

defendant is found competent to stand trial. See id. § 77

‐ 15

‐ 6(1)

(2012); id

. § 77

‐ 15

‐ 1. We agree with the juvenile court that the focus

of a criminal trial is quite different than that of a child welfare

proceeding.

¶12 The “ultimate goal and purpose” of DCFS is “protecting

children.” Id

. § 62A

‐ 4a

‐ 103(2)(b) (2011). In accordance with this

goal, the Utah Code directs DCFS to, “when possible and appropri

‐

ate, provide

. . . family preservation services.” Id

. But in cases

where “a child’s welfare is endangered or reasonable efforts to

maintain or reunify a child with his family have failed,” DCFS

“shall act in a timely fashion

. . . to provide the child with a stable,

permanent environment.” Id. The Utah Code further provides

statutory timelines for establishing permanency. See id

. § 78A

‐ 6

‐ 312(9) (2012); see also In re S.C.

, 1999 UT App 251, ¶ 13, 987 P.2d 611

(stressing the importance of courts “adher[ing] to the time restric

‐

tions imposed by law” for resolving child welfare cases); cf. In re

G.R.

, 2008 UT App 265, ¶ 3, 191 P.3d 1241 (per curiam) (explaining

that the statutory time limit on reunification services suggests “that

a person is not entitled to an indeterminate amount of time to

resolve any mental health issues prior to the beginning of reunifica

‐

tion services”). Not only is “[m]ental illness

. . . not a defense to a

parental termination action,” it “may actually be evidence of

unfitness.” In re G.R.

, 2008 UT App 265, ¶ 2 (citing Utah Code Ann.

§ 78

‐ 3a

‐ 408(2)(a) (LexisNexis Supp. 2007) (current version at id

. § 78A

‐ 6

‐ 508(2)(a) (2012))). As the guardian ad litem observes in her

brief, “[m]aking a claim of incompetence to stand trial comes close

to conceding the very issue of parental competence” that is at issue

in a termination proceeding. See generally Utah Code Ann. § 78A

‐ 6

‐In re C.B.

20120036

‐ CA 2013 UT App 7 7 507(1)(c) (LexisNexis 2012) (“[T]he court may terminate all parental

rights with respect to a parent if the court finds

. . . that the parent

is unfit or incompetent[.]”); id. § 78A

‐ 6

‐ 503(12) (“[I]f a parent is

found, by reason of his conduct or condition, to be unfit or

incompetent

. . . , the court shall then consider the welfare and best

interest of the child of paramount importance in determining

whether termination of parental rights shall be ordered.”). In fact,

“[t]here is a presumption that reunification services should not be

provided to a parent if the court finds, by clear and convincing

evidence, that

. . . the parent is suffering from a mental illness of

such magnitude that it renders the parent incapable of utilizing

reunification services.” See id. § 78A

‐ 6

‐ 312(21)(b).

¶13 Furthermore, our jurisprudence regarding competence in

termination cases refutes the notion that there is any procedural or

statutory requirement that a parent be competent to proceed. In In

re G.R.

, 2008 UT App 265, 191 P.3d 1241 (per curiam), a mother

whose parental rights were terminated appealed on the ground

that “the parental termination proceedings and her requirement to

comply with the terms of her service plan should have been stayed

pending resolution of her mental health issues.” Id. ¶ 1. In rejecting

the mother’s claim, this court explained that “because mental

illness can constitute evidence supporting a determination of

unfitness, it cannot be used as a defense enabling a parent to stay

termination proceedings.” Id. ¶ 2 (citing Utah Code Ann. § 78

‐ 3a

‐ 408(2)(a) (LexisNexis Supp. 2007) (current version at id

. § 78A

‐ 6

‐ 508(2)(a) (2012))). The In re G.R. court also relied on the Utah

Legislature’s adoption of “strict limits” on the amount of time in

which reunification services are available, concluding that “a

person is not entitled to an indeterminate amount of time to resolve

any mental health issues prior to the beginning of reunification

services.” Id. ¶ 3 (citing Utah Code Ann. § 78

‐ 3a

‐ 312(4)(d)

(LexisNexis Supp. 2007) (current version at id

. § 78A

‐ 6

‐ 314(7)

(2012))).

¶14 As a result, we agree with the juvenile court that the

procedural and statutory framework governing child welfareIn re C.B.

2. Mother does not challenge the reasonableness of the services

DCFS provided in connection with the reunification plan. See

generally In re T.M.

, 2003 UT App 191, ¶ 13, 73 P.3d 959 (“‘[I]n any

case in which the [juvenile] court has directed [DCFS] to provide

reunification services to a parent, the court must find that [DCFS]

made reasonable efforts to provide those services before the court

may terminate the parent’s rights.’” (second, third, and fourth

alterations in original) (quoting Utah Code Ann. § 78

‐ 3a

‐ 407(3)(a)

(LexisNexis 2002) (current version at id. § 78A

‐ 6

‐ 507(3)(a) (2012)))).

As a result, this opinion should not be construed as an impediment

to making appropriate efforts to restore a parent to competence,

where such may be accomplished as part of a reunification plan

within the time allotted for reunification. See generally Utah Code

Ann. § 78A

‐ 6

‐ 312(13)(a) (LexisNexis 2012) (“The time period for

reunification services may not exceed 12 months from the date that

the minor was initially removed from the minor’s home, unless the

period is extended under Subsection 78A

‐ 6

‐ 314(8)[, which allows

additional time for reunification services if certain criteria are

met].”).

20120036

‐ CA 2013 UT App 7 8 matters does not include the right to stay termination proceedings

pending the evaluation of a parent’s competency. 2 In particular,

there is nothing in the rules or statutes that would permit the

juvenile court to suspend the time limits for permanency due to the

parent’s mental illness. See Utah Code Ann. § 78A

‐ 6

‐ 314(7), (8)(a)

(stating that reunification time may not be extended beyond one

year unless “there has been substantial compliance with the child

and family plan; reunification is probable

. . . ; and

. . . the extension

is in the best interest of the minor”).

II. Due Process Rights

¶15 Even in the absence of a statutory or rule

‐ based procedural

method for staying the termination proceedings pending a

competency evaluation, Mother contends that such a right is

afforded by the Due Process Clause of the Fourteenth AmendmentIn re C.B.

3. Although Mother also lists the Utah Constitution’s Due Process

Clause as governing authority, she makes no “separate legal

analysis and has not otherwise suggested a reason that warrants a

distinct analytical treatment under the Utah Constitution.” See State

v. Davis

, 972 P.2d 388, 392 (Utah 1998). Therefore, we do not

consider her state constitutional due process claim. See id.

20120036

‐ CA 2013 UT App 7 9 to the United States Constitution. 3 See U.S. Const. amend. XIV, § 1.

She relies on our pronouncement in In re W.S.

, 939 P.2d 196 (Utah

Ct. App. 1997), which held that “[d]ue process requires that a

parent be given a meaningful opportunity to be heard by

submitting testimony herself and by witnesses.” See id. at 202

(citation and internal quotation marks omitted). According to

Mother, if the juvenile court had ordered a competency evaluation

and found her to be incompetent, “[t]here was a distinct possibility

that [she]

. . . could have become competent through mental

services and/or proper medication,” and thereby been able to

participate meaningfully in the termination proceeding. Mother

also contends that the juvenile court’s determination that it did not

have the authority to stay a termination trial to allow the parent’s

mental competency to be evaluated violates the due process rights

of mentally incompetent parents who might be restored to

competency in time to remedy the circumstances that led to the

removal within the statutory deadlines.

A. Mother’s Claim of Incompetency Was Not Supported by the

Record.

¶16 Unlike in a criminal proceeding, there is no statute or rule

requiring that child welfare proceedings be stayed upon a parent’s

request for a competency evaluation. But see Utah Code Ann. §§ 77

‐

15

‐ 1,

‐ 5(1)(a) (LexisNexis 2012) (requiring that the court stay

proceedings against a person charged with a public offense upon

the filing of a petition raising issues of the defendant’s competency

to stand trial). Nevertheless, Mother contends that the due process

concerns that require a criminal defendant to be mentallyIn re C.B.

20120036

‐ CA 2013 UT App 7 10 competent to stand trial are equally applicable to parental

termination proceedings in the juvenile court. Cf. State v. Arguelles

,

2003 UT 1, ¶ 47, 63 P.3d 731 (“It is well established that due process

requires that a defendant be mentally competent to plead guilty

and to stand trial.”). We need not decide this issue because, even

under the criminal due process standard, the juvenile court was not

required to order a competency evaluation under the present facts.

¶17 In the absence of a statutory obligation to order a

competency evaluation of a criminal defendant, due process

requires the trial court to order such an evaluation only if the

“observable, objective facts

. . . raise[] a reasonable doubt as to the

defendant’s competence.” See State v. Young

, 780 P.2d 1233, 1238

(Utah 1989) (holding that the trial court did not violate the

defendant’s due process rights by failing to hold a competency

hearing before proceeding with trial); see also State v. Bailey

, 712

P.2d 281, 284–85 (Utah 1985) (holding that there was no statutory

or due process right to a competency hearing where the defense

did not file a petition requesting one and the record did not

indicate that the defendant’s mental condition had deteriorated

since a psychiatric evaluation found him competent). Furthermore,

in accepting a guilty plea, due process requires the trial court to

hold a competency hearing on its own motion only “when there is

a substantial question of possible doubt as to a defendant’s

competency at the time of the guilty plea.” Arguelles

, 2003 UT 1,

¶ 49 (citation and internal quotation marks omitted); see also State

v. Young

, 780 P.2d 1233, 1236 (Utah 1989) (explaining that Bailey

held that “[a]n uncorroborated assertion of mental illness at trial

was not sufficient to require a competency hearing” where there

was no petition or evidence of mental illness). When determining

whether there was a substantial question of possible doubt, “the

focus should be on what the trial court did in light of what it then

knew of the defendant.” See Young, 780 P.2d at 1237 (citation

omitted).

¶18 In this case, psychological testing and therapy were

provided for in the reunification plan. In addition, the juvenileIn re C.B.

20120036

‐ CA 2013 UT App 7 11 court responded to concerns about Mother’s mental health by

ordering her to undergo a “full

‐ scale clinical psychological

evaluation.” The results of that evaluation did not suggest that

Mother was incompetent. Instead, the examiner determined that

Mother was of average intelligence, “responded to [testing] in a

manner that suggested she understood the directions,” “should not

experience any difficulty in comprehending and meeting the

intellectual demands of her day

‐ to

‐ day and occupational

functioning,” and “possesses the cognitive ability to fully

appreciate why she is involved with DCFS.” The evaluator also

observed that Mother was “oriented to person, place, situation, and

time.”

¶19 Furthermore, the juvenile court had its own opportunity to

observe Mother’s behavior during the proceedings. In reaching the

decision to terminate Mother’s parental rights, the juvenile court

found her courtroom behavior appropriate, indicating that Mother

“coherently described her efforts to obtain her general education

degree and she explained that she is not working because she lacks

the proper education to obtain a job. [Mother] testified coherently

and clearly that she has an apartment in Salt Lake City

. . . .” Cf.

Young

, 780 P.2d at 1238 (noting that the defendant’s “testimony at

trial was clear and coherent”). The juvenile court also indicated that

trial counsel’s frustration was “in part due to [Mother’s] failure to

come to meetings and failure to come to some court hearings,

. . . but her behavior could just as well be from her lack of interest as is

alleged in the State’s petition as easily as it could [be] from any

other factor.” Based on what it then knew of Mother, the juvenile

court concluded that it did “not have any basis to find that [Mother

was] psychologically impaired [at trial] or for anytime during the

past nine months that she [had] appeared before the Court.” Under

these circumstances, even assuming, without determining, that the

due process constraints governing the nonstatutory right to a

competency evaluation in a criminal trial applies equally to a

parental termination, the juvenile court’s refusal to order a

competency evaluation did not violate Mother’s due process rights.

Cf. Id

. (holding that isolated emotional distress did not mandate aIn re C.B.

20120036

‐ CA 2013 UT App 7 12 competency hearing where there was no indication that the

defendant was unable to assist counsel).

B. Mother Lacks Standing to Challenge the Juvenile Court

Procedures on Behalf of Incompetent Parents Who Might Be

Restored to Competency.

¶20 Mother also raises a facial challenge, arguing that if the

juvenile court procedures do not include a mechanism by which

termination proceedings can be stayed pending the restoration of

the parent’s competency, those procedures violate due process.

However, we have determined that Mother’s claims of

incompetence were not supported by the record. As a result,

Mother lacks standing to advance this argument.

¶21 In State v. Mace

, 921 P.2d 1372 (Utah 1996), the Utah

Supreme Court considered an analogous situation. There, the

defendant challenged Utah’s statutory insanity defense, arguing

that it “allow[ed] for the conviction of those who have the requisite

mens rea, even though they may not appreciate the wrongfulness

of their conduct or are unable to control their conduct.” Id

. at 1376

(citing Utah Code Ann. § 76

‐ 2

‐ 305(1) (Michie 1995) (current version

at id

. (LexisNexis 2012))). In particular, the defendant claimed that

punishing this class of persons violated the federal and state

constitutional prohibitions against cruel and unusual punishment.

See id. ; U.S. Const. amend. VIII; Utah Const. art. I, § 9. However, the

supreme court refused to consider the defendant’s constitutional

challenge because “[t]hose facts are not present in this case, and

.

. . [the defendant] lacks standing to assert such a broad facial

challenge.” Mace

, 921 P.2d at 1379. In reaching that conclusion, the

Mace court applied a “three

‐ step inquiry in reviewing the question

of a complainant’s standing to sue,” which had been “previously

outlined” in Jenkins v. Swan

, 675 P.2d 1145 (Utah 1983). See Mace

,

921 P.2d at 1379.

¶22 “The first step of the inquiry is directed to ascertaining the

complainant’s personal stake in the controversy” and considersIn re C.B.

20120036

‐ CA 2013 UT App 7 13 whether there is “‘some causal relationship alleged between the

injury to the [complainant], the governmental actions and the relief

requested.’” Id. (alteration in original) (quoting Jenkins, 675 P.2d at

1150). If this requirement is met, the complainant has established

standing. Id. Because the complainant could not satisfy the first

step of the standing inquiry, the Mace court proceeded to the

second step, which considers “whether anyone else would have a

‘more direct interest in the issues who can more adequately litigate

the issues.’” Id. (quoting Jenkins

, 675 P.2d at 1150). The third step in

the standing analysis applied in Mace was whether “the issues

raised by the [complainant] are of sufficient public importance in

and of themselves to grant

. . . standing.” Id. (alteration in original)

(quoting National Parks & Conservation Ass ʹ n v. Board of State Lands

,

869 P.2d 909, 913 (Utah 1993)).

¶23 Ten years after Mace

, in Utah Chapter of the Sierra Club v. Utah

Air Quality Board

, 2006 UT 74, 148 P.3d 960, the Utah Supreme

Court refined the standing test because the “treatment of standing

principles ha[d] become somewhat convoluted, leading to

occasional missteps in their application.” Id. ¶ 18. In Sierra Club

, the

court explained that a proper standing analysis involves a two

‐ step

process, which considers whether the party has standing under the

traditional standing test and, if not, whether standing exists under

an alternative standing test. See id. ¶¶ 18, 41. The traditional

standing test, or the “‘distinct and palpable injury’” requirement,

encompasses the first prong of the standing test that was

articulated in Jenkins and applied in Mace. See id. ¶ 19 (quoting

Jenkins

, 675 P.2d at 1148); Mace

, 921 P.2d at 1379. Even if a party

cannot meet that traditional test, however, the party may have

standing under the alternative standing test, which assesses the

appropriateness of the party to raise the particular issue and the

likelihood that it will be advanced if the party is denied standing.

See Sierra Club

, 2006 UT 74, ¶ 41. While these concepts are included

in the standing test discussed in Jenkins

, the analysis now requires

only that the plaintiff be an appropriate party, not the most

appropriate party to raise the issue. Id. ¶ 36. Thus, under the

modern standing test, multiple parties may have standing to raiseIn re C.B.

20120036

‐ CA 2013 UT App 7 14 the same issue. Id. ¶ 37. But even if the party is an appropriate

person to raise the issue, to qualify for alternative standing, the

party must also establish that the relevant issues “‘are of sufficient

public importance in and of themselves’ to warrant granting the

party standing.” Id. ¶ 39 (quoting Jenkins

, 675 P.2d at 1150). Thus,

we consider Mother’s standing in light of the analogous situation

in Mace

, as refined by the standing test announced in Sierra Club

.

¶24 We begin our traditional standing analysis by considering

whether Mother has a “personal stake in the controversy.” See

Mace

, 921 P.2d at 1379. In Mace, the supreme court concluded that

the defendant had “no personal stake in his claim that the statutory

scheme might punish people who are unable to appreciate the

wrongfulness of their conduct” because the facts indicated that the

defendant “did appreciate the wrongfulness of his conduct.” Id

. In

particular, the clinical director of the Utah State Hospital’s forensic

unit testified that the defendant “‘obviously had intent’” and

“‘obviously knew [that his conduct] was wrong.’” See id. at

1374–75. Thus, the supreme court concluded that the defendant did

not satisfy the first prong of the standing test articulated in Jenkins

. See id. at 1379; Jenkins

, 675 P.2d at 1150.

¶25 The same conclusion is appropriate under the traditional

standing test here. Mother has no personal stake in her claim that

persons unable to understand the juvenile court proceedings or the

requirements of the reunification plan due to mental incompetency

have a constitutional right to a competency hearing, to a guardian,

or to be restored to competency. Early in the proceedings, the

juvenile court ordered that Mother undergo a psychological

evaluation. The resulting report concluded that Mother “possesses

the cognitive ability to fully appreciate why she is involved with

DCFS” and that she “should not experience any difficulty in

comprehending and meeting the intellectual demands of her day

‐

to

‐ day and occupational functioning.” The juvenile court made

similar observations based on its interaction with Mother and

ultimately found that it did not have any basis to question her

competence. As in Mace

, the juvenile court’s finding, based on theIn re C.B.

20120036

‐ CA 2013 UT App 7 15 available evidence, excluded Mother from the class of persons

affected by the challenged conduct. See 921 P.2d at 1378–79.

¶26 Because Mother cannot satisfy the traditional standing

inquiry, we proceed to the consideration of alternative standing.

See Sierra Club

, 2006 UT 74, ¶ 41. “To make this determination, the

court must first ask whether the party is an appropriate party. If

the party is not an appropriate party, the court’s inquiry ends and

standing is denied.” Id

. (citation omitted).

[A] court addressing standing under

the alternative test does not need to

determine which party seeking to

intervene is the most appropriate party

in comparison to any other potential

party, but rather needs to determine

only which parties are, in fact,

appropriate parties to a full and fair

litigation of the dispute in question.

Id

. ¶ 36.

¶27 In Mace

, the supreme court concluded that persons suffering

from mental illnesses which “made it impossible for them to

appreciate the wrongfulness of their conduct” were better situated

to pursue the constitutional challenge. State v. Mace

, 921 P.2d 1372,

1379 (Utah 1996). The due process challenge advanced by Mother

would also be more appropriately raised by parents whose mental

incompetency prevents them from understanding the juvenile

court proceedings but who could be restored to competency within

the statutory time limits. However, because Mother need not be the

most appropriate party to raise the challenge, we proceed to the

second part of the alternative standing test to determine whether

she is “asserting issues of sufficient public importance to balance

the absence of the traditional standing criteria. If so, the party has

standing.” See Sierra Club

, 2006 UT 74, ¶ 41 (citation omitted).

Considering this issue in Mace, the supreme court concluded,In re C.B.

20120036

‐ CA 2013 UT App 7 16 “Deciding the issue now would have no conceivable concrete

benefit to anyone” because “the statutory scheme at issue here

applies only to individual defendants and does not threaten to chill

or generally infringe on the rights of others.” See 921 P.2d at 1379.

Likewise, Mother has no stake in the outcome of this broad

constitutional issue and has not established any compelling reason

to grant her alternative standing. Thus, we do not reach the merits

of her due process challenge to the juvenile court procedures.

CONCLUSION

¶28 We affirm the juvenile court’s determination that juvenile

court procedures do not allow for the stay of termination

proceedings pending a competency evaluation. Even assuming that

the due process constraints of criminal trials are applicable to

termination proceedings, an issue we do not decide, we hold that

the juvenile court did not err in denying Mother’s motion because

her claim of incompetency was unsupported by the record. Finally,

we dismiss Mother’s general due process challenge to the juvenile

court procedures because she does not have standing to advance

that claim.

¶29 Affirmed, in part, and dismissed, in part.

DAVIS, Judge (concurring and concurring in result only):

¶30 I concur in the majority’s analysis and conclusion as to Part

I. However, I concur only in the result as to Part II because I do not

think criminal cases relating to competency are applicable in this

context and because I disagree with the majority’s standing

analysis.

¶31 I agree with the majority that we need not reach Mother’s

due process argument in light of the fact that psychological testing

and the juvenile court’s own observations indicated that MotherIn re C.B.

4. This point is aptly illustrated by the majority’s analysis of

Mother’s statutory rights. See supra ¶¶ 11–12.

20120036

‐ CA 2013 UT App 7 17 was competent. However, I disagree with the majority’s

insinuation that the criminal standard, which requires a stay of the

proceedings if a defendant is found to be incompetent, could

potentially apply to a parental termination proceeding. While the

general issue of whether Utah’s juvenile procedures comply with

constitutional due process requirements may be left for another

day, I do not believe that the due process required in a parental

termination proceeding is equal to that afforded criminal

defendants. 4

¶32 Although I recognize the jurisdictional implications of

standing, I believe it is inappropriate in most cases to address an

issue raised by none of the parties on appeal. Also, even if it were

appropriate in this civil proceeding to rely on a criminal case to

analyze standing to seek a separate competency determination, it

is fundamentally illogical to require a determination of

incompetence in order to establish standing to seek a determination

of incompetence. Accordingly, I am untroubled by Mother’s raising

the issue both in the juvenile court and on appeal.