In re A.H...

2026 UT App 88 THE UTAH COURT OF APPEALS STATE OF UTAH, IN THE INTEREST OF A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE. N.H., Appellant, v. STATE OF UTAH, Appellee. Opinion No. 20210353-CA Filed June 4, 2026 Fourth District Juvenile Court, Provo Department The Honorable Suchada P. Bazzelle The Honorable Elizabeth Lindsley No. 1145453 Alexandra Mareschal, Kirstin H. Norman, Jason B. Richards, and Debra M. Nelson, Attorneys for Appellant Derek E. Brown, Deborah A. Wood, and John M. Peterson, Attorneys for Appellee Martha Pierce, Alisha Giles, and Heath Haacke, Guardians ad Litem JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred. HARRIS, Judge: ¶1 This termination-of-parental-rights case comes before us for a second time. In our first opinion, we reversed the juvenile court’s determination to terminate the parental rights of S.H.  In re A.H. (Mother) and N.H. (Father) (collectively, Parents) regarding their two youngest children, Alice and Liam. 1 See In re A.H., 2022 UT App 114, 518 P.3d 993, rev’d, 2024 UT 26, 554 P.3d 969. In particular, we concluded that, “based on the evidence presented at trial in October 2020, termination of Parents’ rights was not strictly necessary to promote [Alice’s and Liam’s] best interest.” Id. ¶ 58. In light of that conclusion, we had no occasion to reach the other two issues Parents had raised in their original appeal: (a) that they had received ineffective assistance of counsel and (b) that the Utah Division of Child and Family Services (DCFS) had failed to exercise reasonable efforts to keep the family together. ¶2 Later, the Utah Supreme Court agreed to review our decision, but it limited its review solely to the best-interest determination. That court reversed our decision, concluding that the juvenile court, in its original decision, had appropriately determined, based on the evidence presented to it, “that severing the legal connection with Alice and Liam’s biological parents was strictly necessary to serve their best interest.” In re A.H., 2024 UT 26, ¶ 73, 554 P.3d 969. The supreme court then sent the case back to this court “for consideration of the remaining issues in [Parents’] initial appeal.” Id. ¶ 5. ¶3 Within days of receiving the case back from the supreme court, we issued an order granting Parents’ motion—filed in connection with their initial appeal—for a remand to the juvenile court for supplementation of the record regarding Parents’ claims of ineffective assistance. The juvenile court held a four-day evidentiary hearing, at which thirteen witnesses—most of whom had not testified at the original trial—provided testimony. A few weeks later, the juvenile court issued comprehensive and 1. The names we use to refer to the two youngest children are pseudonyms. For consistency, we use the same pseudonyms our supreme court used in its opinion in this case. See In re A.H., 2024 UT 26, ¶ 2, 554 P.3d 969. 20210353-CA 2 2026 UT App 88  In re A.H. thorough findings of fact, and we then asked the parties for supplemental briefing. ¶4 Now, with a more complete record before us, we address Father’s continuing assertion that Parents received ineffective assistance of counsel during the October 2020 trial.2 For the reasons discussed, we conclude that all three attorneys involved in the case on Parents’ side rendered deficient performance, and we additionally conclude that the attorneys’ deficient performance prejudiced Father. On this basis, we once again vacate the juvenile court’s order terminating Father’s rights regarding Alice and Liam, and we once again remand this matter to the juvenile court, this time for a new trial. BACKGROUND ¶5 Because this is the third appellate opinion in this case, and because the events leading to the initiation of these proceedings have already been thoroughly described in the first two opinions, see In re A.H., 2024 UT 26, ¶¶ 6–28; In re A.H., 2022 UT App 114, ¶¶ 2–29, we limit our discussion of the original background facts to those “necessary to resolve the issues” remaining in this appeal, In re R.D., 2024 UT App 91, n.1, 554 P.3d 318 (cleaned up), cert. denied, 558 P.3d 90 (Utah 2024). In this opinion, we focus on the more recent remand proceedings, describing in some detail the findings made by the juvenile court on remand. And we recite the evidence relevant to those proceedings “in a light most favorable to the [remand] court’s findings.” Id. (cleaned up). 2. Tragically, Mother died in a car accident in December 2024, after both appellate opinions had been issued and while the case was on remand to the juvenile court. Given Mother’s untimely passing, only Father’s rights remain at issue. Nevertheless, we sometimes refer to Mother and Father collectively as “Parents,” even though Mother is no longer a party to this appeal. 20210353-CA 3 2026 UT App 88  In re A.H. DCFS Involvement with the Family ¶6 Parents have seven children (collectively, Children)— Alice, Liam, and their five older brothers (Siblings). Alice was born in February 2015, and Liam was born in December 2016. DCFS first became involved with the family in 2017, when Alice was two years old, and Liam was just seven months old. See In re A.H., 2022 UT App 114, ¶¶ 2, 4. Over the next few years, DCFS remained involved with the family, twice removing the Children—who were all minors at the time—from the family home and placing them in foster care. See id. ¶¶ 5–13. But due to the number of affected children—seven—DCFS could not always find placements that kept the Children together; often, they were placed in three groups, with the oldest children together, the middle children together, and Alice and Liam together. See id. ¶¶ 12–13. In August 2019, Alice and Liam were placed—for the first time—with the foster family who now wishes to adopt them and with whom they have lived for the past (nearly) seven years. See id. ¶ 13. During the remaining time prior to trial, which occurred a little over a year later, DCFS did not actively facilitate any sibling visitation but, instead, “left that mostly up to the foster parents,” who “managed a few meet-ups on their own” at first, but whose efforts in this regard “diminished over time.” See id. The Termination Trial ¶7 As the case proceeded, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel). In the months leading up to trial, Appointed Counsel attended pretrial hearings where trial dates and pretrial disclosure deadlines were set. But as trial approached, Parents stopped communicating with Appointed Counsel because—without telling Appointed Counsel—they had retained a private attorney (Retained Counsel) to represent them in the case, and Retained Counsel instructed Parents not to communicate with Appointed Counsel. The juvenile court, on remand, found that Parents had 20210353-CA 4 2026 UT App 88  In re A.H. paid Retained Counsel a $1,000 retainer and that Retained Counsel “was acting as Parents’ attorney and not as a consultant.” ¶8 Retained Counsel represented to Parents that he would act as their attorney and would handle matters, including taking care of meeting (or arranging for the extension of) impending trial and disclosure deadlines. Parents reasonably understood that Retained Counsel had undertaken representation of them in the matter, and they reasonably relied on him to take care of the promised filings. And Parents refrained from independently seeking relief from the court, or from coordinating with Appointed Counsel, in reasonable reliance on Retained Counsel’s assurances and instructions. ¶9 None of the three attorneys filed pretrial disclosures on behalf of Parents. Appointed Counsel did not do so, apparently because Parents—at Retained Counsel’s urging—had ceased all communication with them and because both Appointed Counsel had a practice of not submitting such disclosures unless the client signed off on them first. Retained Counsel told Parents that he would seek an extension of the pretrial disclosure deadline, but he failed to do so. Indeed, prior to the first day of trial, Retained Counsel never entered an appearance or filed any documents. ¶10 The scheduled trial began on October 5, 2020, and took place by video conference due to the COVID-19 pandemic. All three of Parents’ lawyers appeared. That morning, Retained Counsel filed his first documents in the case—a notice of limited appearance and a motion for extension of time and to continue the trial. The juvenile court chastised Retained Counsel for the “very, very late notice and request,” see In re A.H., 2022 UT App 114, ¶ 20, and it rejected any motion to continue as “untimely” and out of “compl[iance] with governing deadlines and procedures.” After observing the court deny Retained Counsel’s request for a continuance, Appointed Counsel opted not to ask for a continuance because they felt it would not be granted. Instead, 20210353-CA 5 2026 UT App 88  In re A.H. Appointed Counsel proceeded with the trial, and Retained Counsel remained involved only to assist with negotiations with the State and the guardian ad litem (the GAL) that were to occur that day. Those negotiations were successful in part, resulting in a stipulation that it was in Siblings’ best interest for them to be placed in the permanent custody and guardianship of the oldest sibling’s biological paternal grandparents (Grandparents). See id. ¶ 2 (“Father is the biological parent of the six youngest Children and the legal parent of all of them[.]”). But the stipulation did not include Alice and Liam, and as to them, the termination trial went forward later that day, with only Appointed Counsel representing Parents. ¶11 During that trial, the State presented testimony from “four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the” foster family Alice and Liam were placed with. See id. ¶ 22. But when it was Parents’ turn to present their case, the juvenile court—due to the failure of any attorney to file pretrial disclosures on behalf of Parents— imposed strict limitations on Parents’ ability to present witnesses and evidence. The court allowed Parents to offer their own testimony and to call Grandparents, and it offered to allow them to call witnesses that were listed on the State’s witness list. See id. ¶ 24. But the court did not allow Parents, even upon request, to present testimony from Siblings. See id. And no expert witness testified on Parents’ behalf; none had been retained by any of Parents’ attorneys, and Appointed Counsel made no request, at trial, to present any such testimony. ¶12 A few months after the trial, the juvenile court issued a written decision terminating Parents’ rights as to Alice and Liam. See id. ¶ 27. It found sufficient statutory grounds for termination, and it found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” Id. ¶¶ 27–28. As to best interest, the court determined—in keeping with the parties’ stipulation—that Siblings’ interest was best served by a 20210353-CA 6 2026 UT App 88  In re A.H. permanent custody and guardianship arrangement with Grandparents. See id. ¶ 29. ¶13 But as to Alice and Liam, and based on the evidence presented during the trial, the court reached a different decision, concluding that their interest would be best served by adoption by the foster family and that termination of Parents’ rights was strictly necessary to advance that interest. See id. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” Id. It offered several reasons for its decision. ¶14 First, it noted that Alice and Liam were very young when they were first removed from the family home and that, as a result, they “had a very short time to be with [Siblings].” Id. Second, the court concluded that the bonds Alice and Liam had with Siblings were not particularly strong, opining that Alice and Liam had “little beyond a biological connection” with Siblings. Id. Third, the court discussed the unquestionably strong bonds that Alice and Liam had formed with the foster family. See id. Fourth, the court concluded that disrupting Alice and Liam’s “placement at [that] time would be very detrimental” to them. Id. Fifth, the court expressed concern that, absent termination, Parents would retain some level of residual parental rights and might attempt “to regain custody of [Alice and Liam] in the future,” an eventuality the court believed would “pose a risk to” Alice and Liam. Id. And finally, the court emphasized the importance of stability, offering its view that Alice and Liam, as well as the foster family, “deserve[d], and indeed need[ed], the highest level of legal protection available, which would be achieved through adoption.” Id. Post-Trial Appeals ¶15 After the juvenile court issued its ruling, Parents appealed to this court, challenging the juvenile court’s best-interest decision 20210353-CA 7 2026 UT App 88  In re A.H. on its merits, and in addition asserting that DCFS had failed to provide reasonable efforts toward reunification and that all three lawyers—Retained Counsel and both Appointed Counsel—had rendered ineffective assistance. In October 2022, we issued our opinion reversing the juvenile court’s best-interest determination on its merits and therefore declining to reach the other two issues. See id. ¶ 58. A few months later, our supreme court granted the GAL’s petition for certiorari, agreeing to consider whether this court “erred in reversing the juvenile court’s best interest determination and in vacating its order terminating [Parents’] parental rights as to” Alice and Liam. Then, in July 2024, the supreme court reversed this court’s determination. See In re A.H., 2024 UT 26. In its opinion, the supreme court concluded that the juvenile court, based on the evidence presented to it, had appropriately determined “that severing the legal connection with Alice and Liam’s biological parents was strictly necessary to serve their best interest.” Id. ¶ 73. The supreme court then sent the case back to this court “for consideration of the remaining issues in [Parents’] initial appeal.” Id. ¶ 5. The Remand Hearing ¶16 Soon after the case was returned to this court, we issued an order remanding it to the juvenile court for supplementation of the record related to Parents’ claims of ineffective assistance of counsel. 3 In the meantime, two events occurred that have had 3. In our order, we explained that, in criminal cases, requests for remand in the context of ineffective assistance claims are governed by rule 23B of the Utah Rules of Appellate Procedure. But even though that rule does not apply in child welfare cases, see Utah R. App. P. 1(f), we explained that “parents who provide extra-record evidence alleging ineffective assistance on appeal [may be] entitled to a remand similar to that provided by rule 23B to develop the record in support of their claims,” see In re adoption (continued…) 20210353-CA 8 2026 UT App 88  In re A.H. procedural consequences in this case. First, Mother passed away in December 2024, an event which served to moot all issues as to her. Second, in late 2024, both Appointed Counsel were appointed to fill judicial vacancies on the Fourth District Juvenile Court. Thereafter, Father filed a motion seeking the disqualification of the entire Fourth District Juvenile Court bench, given that Appointed Counsel (now both judges) would likely be called as witnesses at the remand hearing. That motion was granted by the presiding judge, and a senior judge from another district was later assigned to preside over and adjudicate the case. ¶17 The juvenile court on remand—a court we refer to herein as “the remand court”—then held a four-day evidentiary hearing. At the time of that hearing, Alice was ten years old and Liam was eight, and they had been in the continuous care of their foster family for about six years. At the hearing, thirteen witnesses testified and more than seventy exhibits were admitted into evidence. Father called eleven of those witnesses: himself; one of Alice and Liam’s former foster parents (Former Foster Father); all five Siblings; Retained Counsel; both Appointed Counsel; and an expert witness (Expert). After Father presented his evidence, the State called two rebuttal witnesses, but it did not call either of Alice and Liam’s current foster parents. ¶18 We include here a robust summary of the testimony presented at that hearing and the findings the remand court made afterward, because that testimony and the associated findings bear materially on the question of whether Appointed Counsel and Retained Counsel rendered ineffective assistance at the October 2020 trial. of P.P., 2024 UT App 62, ¶ 13, 549 P.3d 628. After our order was entered, Utah’s rules of appellate procedure were amended to add a rule that expressly governs this situation and allows for such a remand. See Utah R. App. P. 55A. 20210353-CA 9 2026 UT App 88  In re A.H. ¶19 Sibling and Family Bonds. Father presented extensive testimony intended to shed light on the strength of the bonds among the Children generally, and specifically on the strength of the bonds Alice and Liam had with Siblings. The remand court found that, prior to 2017 when DCFS became involved with the family, “[t]he [C]hildren had a close relationship with each other, with [Parents], and lived a normal family life.” When the Children were first removed from the home, Alice was “terrified” and “sad and wanted her brothers,” and she was eventually consoled by one of her older brothers. After a short stay at a group home, the Children were put into “three separate placements,” though Alice and Liam remained together. ¶20 For a while, the Children enjoyed “at least weekly visitation” together and, during this time, the Children’s “bond with each other,” including Siblings’ bond with Alice and Liam, “grew and was strengthened.” Siblings remembered those visits as “positive” and “happy,” where they “would talk, play games, [and] share stories.” Alice and Liam would be “excited” to see Siblings, Alice “would hug” Siblings, and Liam “would always open his arms” to them. Former Foster Father testified about these “positive” and “mutually affectionate” visits that “reinforced the [C]hildren’s emotional connection to their family of origin.” ¶21 Father also testified about the Children’s bonds with one another. He spoke of Alice “expressing a consistent desire to be with her [biological] family,” even when she was separated from them. Father believed that this “showed that the [C]hildren maintained emotional awareness and attachment to their family members despite physical separation.” He also remembered visits with Alice and Liam as “consistently loving and positive,” “during which [Alice and Liam] ran to [Parents], hugged them tightly, and appeared joyful throughout,” which Father believed “reflected an enduring parental bond.” 20210353-CA 10 2026 UT App 88  In re A.H. ¶22 The remand court found that, after the Children were removed from the family home a second time in May 2019, “all of the [C]hildren were extremely upset,” yet “[n]obody talked to them about how they felt or balanced the harm that removal would cause with the risk of staying in the home.” After removal, the Children were taken to a DCFS office and “placed in a small room for over two hours.” One of the brothers “barricade[d] the door with toys,” eventually leading to his arrest and placement at a “youth receiving center,” where he “remained for two weeks with no change of clothing” and no opportunities for parental visits. The court found that the “removal was very traumatizing and impactful on the family” and that Siblings “were terrified about [Alice and Liam] leaving and worried if they would ever see them again.” ¶23 Based on the testimony presented at the hearing, the remand court made findings about the Children’s bonds with one another. In particular, the court found as follows: Testimony across the [S]iblings consistently demonstrated a deep mutual affection and enduring emotional bond. Each described their relationships as close, loving, and protective. Despite ordinary childhood disagreements, they testified that they always supported and defended one another, particularly in public or school settings. [Two of the brothers] explained that while they might argue at home, if someone else was in conflict with a brother, they would always intervene to protect him. This consistent loyalty reflected a unified and resilient sibling bond. In this vein, the court discussed Siblings’ testimony about the “numerous shared activities that strengthened their relationships,” and it found that those “shared experiences created a foundation of trust, familiarity, and companionship 20210353-CA 11 2026 UT App 88  In re A.H. among” the Children. The court found that “[e]ach of the older brothers expressed love and protectiveness toward” Alice and Liam, and that Alice and Liam “were viewed as integral parts of the sibling group and were treated with affection and inclusion by their older brothers.” And the court noted that all five of the Siblings “testified that they are a sibling group of seven” and that “they will always [be] a sibling group of seven.” ¶24 The court also made specific findings about J.H., the brother closest in age to Alice and Liam; he is less than two years older than Alice and was only four years old at the time of the first removal. J.H. doesn’t have as many memories of the pre- removal era as his older brothers do, so “his older brothers often [tell] him stories about their parents, about family trips, birthdays, and everyday memories from before he could remember,” and J.H. testified that, “through those stories, he got to know his parents better.” The court found that J.H.’s “testimony demonstrated that the [brothers’] recollections and storytelling served to strengthen [J.H.’s] emotional connection to his parents and preserve a sense of shared family identity even during times of separation.” The court noted that J.H. “became visibly emotional when talking about” Alice and Liam and “had to pause for about a minute” before continuing to discuss his quite specific memories of them. ¶25 Siblings also “testified that [Parents] were consistently involved in their lives, providing structure, discipline, and care” and “foster[ing] a strong sense of belonging and family unity.” Testimony showed that Parents were “active in [the Children’s] schooling, attended events, and encouraged participation in church and community activities.” Some of the Siblings described feeling “safe and comforted in [Parents’] presence,” and the eldest son “described the home as a stable and loving environment.” Siblings also testified that Parents “made sustained efforts to stay connected,” even during periods of separation, and “consistently expressed love and encouragement” and “never gave up.” 20210353-CA 12 2026 UT App 88  In re A.H. ¶26 The court found Siblings’ testimony to be “credible and persuasive” and that their “accounts of family relationships were consistent, detailed, and mutually reinforcing.” The court also found that each of the Siblings “testified sincerely, with emotional insight and clarity.” Based on their testimony, the court found that Siblings “share not only a deep bond with one another but also a strong, healthy, and enduring attachment to . . . [P]arents.” ¶27 Expert’s Testimony and Opinions. Father also presented testimony from Expert, who is a board-certified licensed clinical social worker with over twenty years of “experience in the fields of infant and early childhood mental health, attachment, and family systems therapy.” Expert testified about various topics, including “attachment and placement transitions,” the “importance of sibling bonds,” “termination of parental rights and adoption related loss,” and “therapeutic out of home placement transitions.” Although Expert had never met or evaluated any of the Children, she became familiar with their circumstances after a forensic review of the “case record, reports, and testimony” regarding the family. The court found that Expert’s testimony “reflected a thorough understanding of the [C]hildren’s procedural history, placement experiences, and the issues before the [c]ourt.” The court found that Expert’s “forensic testimony was coherent, credible, and persuasive” and that Expert’s “analytical process demonstrated methodological rigor, ethical objectivity, and adherence to the highest professional standards.” The court offered its overarching view that Expert “provided the [c]ourt with reliable, evidence-based insight into the emotional and developmental needs of” the Children. ¶28 Expert first “testified extensively on attachment and disruption of secure attachments.” She stated that “[a]chieving a secure attachment in an out-of-home placement is [a] positive indicator of a child’s mental health and wellbeing.” She acknowledged that “abruptly severing a secure attachment can be traumatic” to a child. But she offered her view that the inquiry 20210353-CA 13 2026 UT App 88  In re A.H. “cannot be guided through a myopic lens of attachment alone” and that, when done correctly and in appropriate cases, it is possible and sometimes even preferable to transition a child out of a secure attachment. In order to “safely” accomplish this, the transition process “must be gradual, mindful, and supported by a mental health professional.” She explained that successful transitions involve cooperation between caregivers to maintain the child’s routines and emotional security, and she offered her view that “the more people who love a child the better—children shouldn’t lose anyone in the process.” And she said that, ideally, “the prior caregiver should be invited to remain part of the child’s emotional network, giving the child implicit permission to attach to new caregivers while maintaining existing bonds.” ¶29 Expert stated that “[d]espite the difficulty in transitions from a foster placement to a relative placement, [a relative placement] is still the optimal permanency outcome for children.” Specifically, she opined that kinship placement provides continuity of identity, culture, and familial narrative, which are critical for a child’s sense of belonging and long-term emotional health. . . . [C]hildren placed with relatives maintain connections to their family history, which anchors their self-concept and reduces feelings of abandonment associated with removal and separation. Expert “acknowledged that kinship placement is not appropriate in every circumstance,” but she “emphasized that where a family member can provide safety, stability, and structure, that setting is generally superior to non-relative foster care.” And she testified “that long-term family placements are particularly beneficial when siblings can remain together,” because “siblings share a unique and validating connection that anchors them to their shared identity and experiences.” 20210353-CA 14 2026 UT App 88  In re A.H. ¶30 Applying these principles to the case at hand, Expert opined that “it is not in the best interests of [Alice and Liam] to separate them from their family,” that it is “very likely” they “would transition well into the home with Grandparents and [Siblings],” and that it “is in [their] long-term best interests to remain connected to [Siblings], Parents, Grandparents, relatives, community, and culture.” ¶31 Next, Expert “testified at length regarding the developmental and emotional benefits of children being placed together with their siblings whenever safely possible.” Expert “explained that sibling bonds are foundational to a child’s identity formation and represent the longest-lasting family relationships most individuals will have in life,” and that sibling “relationships are particularly significant for children who have experienced separation, trauma, or loss, as they provide familiarity, shared memory, and continuity of family experience.” She stated that “children who are separate from siblings following removal from their parents often experience an additional layer of grief, confusion, and loss,” which “compounds the trauma of parental separation by depriving children of one of their primary sources of emotional regulation and mutual reassurance.” ¶32 Expert “described sibling relationships as ‘the single most protective factor’ for children in the child welfare system who experience separation from parents.” She explained that this is so because “[s]iblings frequently serve as one another’s attachment figures, particularly in families affected by instability or neglect, and thus function as key protective factors during adversity.” She also testified that siblings should be separated “only as a last resort, and only when joint placement would clearly endanger one or more of the children or compromise therapeutic treatment.” And she offered her view that, if siblings cannot be kept together, then “maintaining consistent, meaningful contact is critical” “to preserve relational continuity,” “reduce trauma responses,” and “reinforce a child’s sense of family belonging.” 20210353-CA 15 2026 UT App 88  In re A.H. ¶33 After listening to and considering Expert’s testimony on sibling bonds, the remand court made the following finding: The [c]ourt finds [Expert’s] testimony on sibling permanency credible and strongly supported by the empirical findings [of the studies Expert discussed]. Together, these authorities establish that sibling relationships are fundamental to emotional security, placement stability, and long-term well- being. The evidence presented demonstrates that permanency planning that preserves sibling unity produces measurably superior outcomes and aligns with best practices in child welfare and attachment science. ¶34 Expert also “testified that there are several long-term consequences associated with the termination of parental rights that are devastating for children.” In this vein, Expert discussed two different types of loss children may experience after their parents’ rights are terminated. She described the first type of loss as “ambiguous loss,” which is “a psychological state of unresolved grief where the loved one remains psychologically present but physically absent.” The second type of loss Expert described was “definitive loss,” which is “the legal and physical separation from their biological parents” and siblings. Related to this loss, Expert testified that in “her clinical experience, children who are encouraged to talk about their biological families and allowed to maintain safe, appropriate contact show greater emotional stability and stronger attachment to adoptive caregivers.” Expert presented supporting research for these opinions. The court found that research reinforced the idea that “termination of parental rights should never happen if there is a safe viable alternative that will give a child legal permanency and a permanent connection to their biological family,” and that “[w]hen there is a safe and appropriate caregiver that can take permanent custody and guardianship of a child and maintain 20210353-CA 16 2026 UT App 88  In re A.H. family connections, the court should always take th[at] option.” Expert explained that, empirically, “kinship care tends to produce better outcomes in school performance, mental health stability, and social functioning because the child’s sense of continuity is maintained.” She discussed studies indicating that adopted children face “increased risk of juvenile delinquency” and “suicidality” relative to “their non-adopted peers,” and indicating that “adoption is not a singular event but a lifelong process marked by recurring developmental challenges related to loss, identity, and belonging.” And she opined that “the future risk of harm associated with termination of parental rights and adoption far outweighs the temporary heartache of adjusting placements.” ¶35 On this topic also, the remand court found Expert’s testimony to be “credible and compelling,” “empirically grounded[,] and profoundly relevant to the emotional well-being of” Liam and Alice, and for these reasons, the court “accord[ed] significant weight to [Expert’s] analysis of ambiguous and adoption-related loss.” ¶36 Finally, Expert “testified that therapeutic out-of-home placement transitions must be gradual, mindful, planned, and purposeful, and that each step of the process must be guided by a mental health professional skilled in attachment and transitions.” Expert opined that even when children are in secure attachments, as Alice and Liam are in with their foster family, they are “capable of adapting successfully when transitions are handled therapeutically, at the child’s pace, and under professional supervision.” Expert explained that this works best when the transition process occurs in “distinct phases: preparation, overlap, and stabilization.” The court found Expert’s testimony on this topic to be “consistent, evidence-based, and highly persuasive, demonstrating that gradual, professionally guided transitions produce superior emotional outcomes for children.” 20210353-CA 17 2026 UT App 88  In re A.H. ¶37 Testimony from the Attorneys. The remand court also made findings regarding Retained Counsel’s and Appointed Counsel’s performance. Some of those findings have been discussed already. See supra ¶¶ 7–10. We include here a discussion of additional findings the court made regarding the attorneys. ¶38 Regarding Appointed Counsel, the remand court found that, in the months leading up to trial, Appointed Counsel anticipated that the case would be resolved short of trial by placing the Children together with Grandparents. Appointed Counsel for Father testified “that if Father could not get custody back, [Father] wanted the [C]hildren placed” together with Grandparents. The court also found that Appointed Counsel for Father “admitted that he did not file pretrial disclosures on behalf of Father, including a witness list and exhibit list, as required by the court’s pretrial scheduling order,” even though he had previously been present when the pretrial disclosure deadline was set. Appointed Counsel for Father testified that he did not file pretrial disclosures because “Father had not personally reviewed or approved them” and it was his policy not to file disclosures until his client signed off on them first. And Appointed Counsel for Mother made the same admission, even going so far as to agree that his actions “prejudiced Mother because she could then not call any witnesses or present any evidence.” Appointed Counsel for Father acknowledged “that the juvenile court would not allow [him] to put on witnesses” because of the lack of disclosures. ¶39 Appointed Counsel for Father testified that Father sent him an email on October 5, 2020—the first day of trial—in which Father had included “a list of witnesses [he] wanted to testify.” Siblings and Former Foster Father were all originally on this list. But the remand court found that Appointed Counsel for Father did not know or understand that Former Foster Father was also on the State’s witness list—meaning he would have been able to testify at the termination trial if Appointed Counsel had called him. Importantly, the court found that Father’s emailed witness 20210353-CA 18 2026 UT App 88  In re A.H. list was “sent . . . prior to the State shifting its position to wanting to separate the sibling group,” meaning that, at the time he put together the list, Father would not have known of any need to call an expert witness on sibling bonds, and that “[t]his change in tactic may have resulted in Father finding different witnesses— like an expert witness [that] could testify to the harm caused by separating siblings, attachment, and ambiguous loss.” On remand, Appointed Counsel for Father acknowledged that he would have been able to obtain such an expert and that it would have been “helpful,” but that he did not do so. Appointed Counsel for Mother recognized that “in hindsight, they probably should have asked for a continuance based on the new dynamics and shift in DCFS[’s] desire to permanently separate the [Children].” ¶40 Retained Counsel testified that the “initial $1,000” fee was only a “consultation” fee “for limited engagement.” But the remand court found Retained Counsel’s testimony on this point “not credible,” and it made a specific finding—based on Parents’ “text messages, bank records, and audio recordings”—that Retained Counsel “was acting as Parents’ attorney and not as a consultant.” As already noted, Retained Counsel failed to live up to the promises he made to Parents, and the court found that Retained Counsel’s actions “resulted in the loss of the opportunity to extend discovery deadlines, adjust trial settings, or otherwise prepare a defense before trial commenced.” ¶41 The court also made findings about Retained Counsel’s credibility. At the hearing, Retained Counsel “refused to answer” certain questions and invoked his Fifth Amendment right. Nonetheless, “judicial findings, sanctions orders, [and] criminal case filings arising from his professional conduct” were admitted into evidence. That evidence showed that, at the time he represented Parents, Retained Counsel was “the subject of ongoing attorney discipline and criminal proceedings.” Because of this, the court found that Retained Counsel’s “refusal to answer questions about these proceedings and his invocation of the Fifth 20210353-CA 19 2026 UT App 88