In re J.F. (S.K. v. State)

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2013 UT App 288
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.F., A.F., AND A.F., PERSONS
UNDER EIGHTEEN YEARS OF AGE.
S.K.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Memorandum Decision
No. 20130242-CA
Filed December 5, 2013
Third District Juvenile Court, Salt Lake Department
The Honorable James R. Michie Jr.
No. 1016730
Colleen K. Coebergh, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE JAMES Z. DAVIS authored this Memorandum Decision,
in which JUDGE CAROLYN B. MCHUGH and SENIOR JUDGE
PAMELA T. GREENWOOD concurred.1
DAVIS, Judge:
¶1 S.K. (Mother) appeals the juvenile court’s termination of her
parental rights to J.F., A.F., and A.F. (the Children). We affirm.

In re J.F.
2. Mother explicitly declines to challenge the grounds for
termination identified by the juvenile court. See Utah Code Ann.
§ 78A-6-507 (LexisNexis 2012); In re D.R.A., 2011 UT App 397, ¶ 9,
266 P.3d 844 (“In order to terminate parental rights, the juvenile
court must make two separate findings. First, it must find grounds
for termination under Utah Code section 78A-6-507. . . . Second, the
juvenile court must find that termination of the parent’s rights is in
the best interests of the child.” (omission in original) (citation and
internal quotation marks omitted)).
3. Mother makes specific reference to “unrefuted” “clear and
convincing” evidence that she “maintained contact with the
[Children] by way of visitation”; she “appropriately and promptly
attended to the [C]hildren’s needs”; the Children “looked to [her]
for help, support, and nurturing”; the Children “were overheard
to express their love for [her]”; and her relationship with her
youngest child fulfilled what “the [Division of Child and Family
Services] worker would hope to see between a baby and
caretaker.”
20130242-CA 2 2013 UT App 288
¶2 Mother raises two issues on appeal. First, she argues that the
juvenile court’s determination that termination of her parental
rights was in the Children’s best interests was not supported by
sufficient evidence. Second, Mother contends that the juvenile2
court’s denial of her motion for new counsel constituted prejudicial
error. We address each argument in turn.
I. Best Interests Determination
¶3 Mother argues that the juvenile court “implicit[ly]” and
exclusively relied on its finding of grounds for termination to
support its best interests determination and failed to consider
“unrefuted evidence of the loving and beneficial developed
relationship between [her] and the [Children].” We review3
Mother’s challenge to the juvenile court’s best interests
determination for an abuse of discretion. See In re Adoption of T.H.,
2007 UT App 341, ¶ 9, 171 P.3d 480.

In re J.F.
20130242-CA 3 2013 UT App 288
¶4 Mother is correct that her parental rights cannot be
terminated solely upon the juvenile court’s finding of grounds for
termination and that a finding of grounds does not necessarily
diminish the import of “a positive and strong parent–child bond.”
Cf. In re D.R.A., 2011 UT App 397, ¶¶ 18, 21, 266 P.3d 844 (holding
that though the mother admitted that there were grounds to
support termination of her parental rights, “the benefits of
allowing” the mother’s relationship with her teenage daughter “to
continue [were] too palpable, and the benefits of severing it too
speculative for us to agree that the State [had] shown by clear and
convincing evidence that termination [was] in the best interest of
[the] child”). However, we conclude that, on its own, this loving
relationship does not mean termination is not in the best interests
of the Children. We disagree that the juvenile court failed to
consider or place sufficient weight on the evidence of the loving
relationship shared by Mother and the Children or any other
factors it had not already considered in its findings of grounds for
termination.
¶5 Where, as here, the children are not in the parent’s physical
custody, the juvenile court must consider, at a minimum, the
following factors in reaching its best interests determination:
(a) the physical, mental, or emotional condition and
needs of the child and his desires regarding the
termination, if the court determines he is of sufficient
capacity to express his desires; and
(b) the effort the parent or parents have made to
adjust their circumstances, conduct, or conditions to
make it in the child’s best interest to return him to his
home after a reasonable length of time, including but
not limited to:
(i) payment of a reasonable portion of
substitute physical care and maintenance, if
financially able;
(ii) maintenance of regular parent–time or
other contact with the child that was designed and

In re J.F.
20130242-CA 4 2013 UT App 288
carried out in a plan to reunite the child with the
parent or parents; and
(iii) maintenance of regular contact and
communication with the custodian of the child.
Utah Code Ann. § 78A-6-509(1) (LexisNexis 2012).
¶6 In consideration of this test, the juvenile court noted that
since the court became involved in the case in April 2008, the
Children have been exposed to multiple incidents of domestic
violence between Mother and the Children’s father (Father). At
least one of the Children has been in therapy, and her therapist
expressed great concern about the child’s ongoing exposure to
verbal or physical fighting between Mother and Father.
¶7 The juvenile court indicated that the initial “problems of
domestic violence” and later-discovered problems of substance
abuse “have continued” through the years and resulted in multiple
neglect findings despite the Division of Child and Family Services’s
(DCFS) reunification efforts and the juvenile court’s repeated
orders for services, domestic violence counseling, and drug and
alcohol treatment. Mother repeatedly failed to respond to services;
did not complete counseling; skipped at least three drug tests; and
regularly violated the court’s no-contact order as to Father,
exposing the Children to additional incidents of domestic violence.
¶8 On the other hand, the juvenile court described Mother’s
relationship with the Children as affectionate, tender, and
responsive, stating that it “does not go unnoticed” that “there is a
connection between these kids and their mom.” However, the
juvenile court also described the Children’s placement with their
paternal grandparents as a safe, loving, and structured
environment where “their needs are being met.” The court found
that the grandparents are willing to adopt the Children, are willing
to consider allowing Mother and Father contact with the Children
based on “the mantra of what’s best for the kids,” and would not
give their son, Father, special treatment. See generally In re D.R.A.,
2011 UT App 397, ¶¶ 11, 15, 21 (considering both the mother’s

In re J.F.
4. In this case, overlap in the findings was inevitable given the
grounds for termination identified by the juvenile court. Compare
Utah Code Ann. § 78A-6-507(1)(d) (indicating that grounds for
termination exist where the juvenile court finds that “the child is
being cared for in an out-of-home placement under the supervision
of the court or the division; . . . the parent has substantially
(continued...)
20130242-CA 5 2013 UT App 288
loving relationship with her daughter and the daughter’s limited
adoption prospects before concluding that termination of the
mother’s parental rights was not in the best interests of her
daughter).
¶9 The juvenile court concluded that “[r]eturning the
[C]hildren [to Mother] would create a substantial risk of detriment
to the [C]hildren’s physical and emotional well-being” based on
Mother’s repeated violations of its no-contact order as to Father as
well as “her failure to respond to services, her failure to complete
domestic violence counseling and drug and alcohol counseling, and
her repeated failure to provide her children with what they
needed.” The court noted that it did not make its ruling “lightly”
but that years of efforts to break Mother’s patterns of destructive
behavior had not worked, ultimately making termination “in the
long-term best interest of [the Children].”
¶10 Accordingly, “[w]hile the juvenile court did not expressly
refer to the statute when considering [the best interests] factors, the
court’s findings are replete with detailed discussion of the offered
services, the [C]hildren’s conditions and needs, and [Mother’s]
efforts.” See In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996). That
there is some overlap between the juvenile court’s findings
supporting grounds for termination and its findings supporting the
best interests analysis is of little import. See id. at 399–400
(explaining that the bifurcated analysis involved in parental
termination cases “does not require courts to separately hear and
consider evidence pertaining to unfitness and best interests” nor
does it require “two different sets of findings and conclusions”).4

In re J.F.
4. (...continued)
neglected, wilfully refused, or has been unable or unwilling to
remedy the circumstances that cause the child to be in an out-of-
home placement; and . . . there is a substantial likelihood that the
parent will not be capable of exercising proper and effective
parental care in the near future”), with id. § 78A-6-509(1)(b)
(explaining that in its best interests analysis, a juvenile court must
consider “the effort the parent or parents have made to adjust their
circumstances, conduct, or conditions to make it in the child’s best
interest to return him to his home after a reasonable length of
time”).
20130242-CA 6 2013 UT App 288
Accordingly, the juvenile court did not abuse its discretion when
it determined that termination of Mother’s parental rights was in
the best interests of the Children.
II. Denial of Mother’s Motion for Substitute Counsel
¶11 Mother next argues that the juvenile court erroneously
denied her day-of-trial motion for substitute counsel because the
“total” breakdown in communication between her and her
appointed counsel (Counsel) amounted to a deprivation of her
statutory right to effective counsel, see Utah Code Ann. § 78A-6-
1111(1)(a) (LexisNexis 2012); In re C.C., 2002 UT App 149, ¶ 9, 48
P.3d 244 (recognizing that the statutory right to counsel in parental
termination cases requires that the appointed counsel provide
effective assistance). Mother does not dispute that the juvenile
court made the required inquiry into her motion for substitute
counsel, see In re C.C., 2002 UT App 149, ¶ 12, but argues that her
motion was erroneously denied. We review the juvenile court’s
denial of Mother’s request for new counsel for an abuse of
discretion. See id. ¶¶ 6, 10.
¶12 The juvenile court has the discretion to appoint substitute
counsel if the court’s inquiry into the party’s request reveals good
cause for the substitution. See id. ¶¶ 12, 14. “[T]o warrant
substitution of counsel, a defendant must show good cause, such

In re J.F.
5.Although the right to effective assistance of counsel in parental
termination cases is grounded in statute, unlike the Constitutional
guarantee of a criminal defendant’s right to effective counsel, our
jurisprudence relies on criminal law for guidance on the question
of substitution of counsel in juvenile proceedings. See, e.g., In re
C.C., 2002 UT App 149, ¶¶ 12–14, 48 P.3d 244 (reviewing a parent’s
request for new counsel under standards borrowed from criminal
case law).
20130242-CA 7 2013 UT App 288
as a conflict of interest, a complete breakdown in communication
or an irreconcilable conflict which leads to an apparently unjust
verdict.” State v. Lovell, 1999 UT 40, ¶ 31, 984 P.2d 382 (citation and
internal quotation marks omitted). “[T]he cause of the5
breakdown—or who is to ‘blame’—in an attorney–client
relationship significantly affects whether the breakdown . . .
requires the court to substitute a defendant’s court-appointed
counsel.” State v. Scales, 946 P.2d 377, 382 (Utah Ct. App. 1997)
(applying a constitutional standard). Accordingly, “[a] defendant
must do more than show that he or she does not have a
‘meaningful relationship’ with his or her attorney,” and “[t]he fact
that a defendant does not get along with his [or her] attorney does
not, standing alone, establish a denial of the effective assistance of
counsel.” Id. (second and third alterations in original) (citations and
internal quotation marks omitted). Likewise, a defendant cannot
rely “solely on [her] illegitimate complaints or subjective
perception of events” to establish that her attorney–client
relationship is “imperiled” by “intense animosity.” Id. (citation and
internal quotation marks omitted).
¶13 We agree with the juvenile court that Mother’s decision not
to cooperate with Counsel after having cooperated with her for
several years, combined with Mother’s vague assertion that
Counsel had not been doing “enough” and may have been rude at
times, do not establish good cause for substitution of counsel. See
State v. Pando, 2005 UT App 384, ¶¶ 27–30, 122 P.3d 672
(concluding that the defendant’s bare assertion that he and his trial
counsel “disagreed about defense strategy” did not provide “good

In re J.F.
20130242-CA 8 2013 UT App 288
cause” to grant his request for substitute counsel). Mother admitted
to having affirmatively avoided Counsel’s communications by
failing to respond to Counsel’s various letters requesting that they
schedule a meeting. The juvenile court acknowledged that
Mother’s decision to avoid communicating and cooperating with
Counsel was illustrative of “friction” in their attorney–client
relationship but determined that Mother’s choice to avoid Counsel
did not “establish[] that a complete breakdown of communication
existed.” See In re S.W., 2007 UT App 50U, para. 3 (mem.) (per
curiam) (affirming the juvenile court’s denial of a father’s motion
for substitute counsel and rejecting the father’s argument that there
was a complete breakdown in communication between him and his
appointed counsel because any such breakdown was “a result of
his own voluntary decision”); see also Gardner v. Holden, 888 P.2d
608, 621–22 (Utah 1994) (concluding that an “acrimonious
relationship” between the defendant and his appointed counsel
was insufficient to substantiate the defendant’s claims of ineffective
assistance of counsel absent any evidence that the acrimony
affected counsel’s performance); Scales, 946 P.2d at 383 (holding
that the defendant “had no legitimate basis” to justify his “refusal
to cooperate with” his appointed attorney and therefore did not
demonstrate “good cause” for the court to appoint substitute
counsel). Despite Mother’s avoidance of Counsel, she and Counsel
had met once before trial and again the morning of trial. Counsel
asserted that she was prepared and ready to represent Mother at
trial. Cf. State v. Wulffenstein, 733 P.2d 120, 121 (Utah 1986)
(considering the criminal defendant’s trial counsel’s “willingness
and ability” to represent the defendant at trial as a relevant factor
in upholding the trial court’s rejection of the defendant’s request
for new counsel). Accordingly, the juvenile court did not abuse its
discretion in denying Mother’s motion to appoint substitute
counsel.
¶14 The juvenile court considered the appropriate factors and
made sufficient findings to support its determination that
termination of Mother’s parental rights is in the best interests of the
Children and therefore did not abuse its discretion in reaching its
decision. The juvenile court also did not abuse its discretion in
rejecting Mother’s motion to appoint substitute counsel given

In re J.F.
20130242-CA 9 2013 UT App 288
Mother’s failure to demonstrate that her request was for good
cause. Affirmed.