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Feb. 20, 2026 Get Citation Alerts Download PDF Add Note

In re B.G.

Utah Supreme Court

• Citations: 2026 UT 2

• Docket Number: Case No. 20240852

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.8K)

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Combined Opinion

This opinion is subject to revision before final
publication in the Pacific Reporter

2026 UT 2

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, in the interest of B.G.,
a person under eighteen years of age.

N.G.,
Appellant,
v.
STATE OF UTAH,
Appellee.

No. 20240852
Heard November 5, 2025
Filed February 20, 2026

On Certification from the Court of Appeals

Second District Juvenile Court, Weber County
The Honorable Jeffrey J. Noland
No. 1214206

Attorneys∗:
Sara Pfrommer, Emily Adams, Anna Grigsby, Bountiful,
for appellant
Derek E. Brown, Att’y Gen., Deborah A. Wood, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee
Martha Pierce, Alisha Giles, Heath Haacke, Salt Lake City,
Guardian ad Litem

---

∗ Additional attorneys: Erin Byington, Jason B. Richards,
Alexandra Mareschal, Logan, for amicus curiae Utah Family
Defenders Association, in support of appellant.
In re B.G.
Opinion of the Court

JUSTICE HAGEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PETERSEN,
ASSOCIATE CHIEF JUSTICE POHLMAN, and JUDGE MONTAGUE joined.
Due to his retirement, JUSTICE PEARCE did not participate herein;
DISTRICT COURT JUDGE AMANDA N. MONTAGUE sat.
JUSTICE NIELSEN became a member of the Court on
November 19, 2025, after oral argument in this matter,
and accordingly did not participate

JUSTICE HAGEN, opinion of the Court:
INTRODUCTION
¶1 When a child is removed from a custodial parent by the
Utah Division of Child and Family Services (DCFS), a juvenile court
must determine whether there is another suitable parent who
desires to take custody of the child. But before placing the child
with the other parent, the court must make findings about “the
fitness of the parent” and “the safety and appropriateness of the
placement,” which, at minimum, requires DCFS to conduct a home
visit. UTAH CODE § 80-3-302(2)(c)(i)–(ii).
¶2 In this case, the child was removed from the mother’s care
in Utah, and the father who sought custody lived in Georgia. The
court ordered DCFS to ask Georgia officials to conduct the home
visit pursuant to the Interstate Compact on the Placement of
Children (ICPC). Georgia officials twice attempted to conduct the
home visit but were unable to do so because the father did not have
a stable residence. The court ultimately found that the child could
not be safely returned to the father and terminated his parental
rights.
¶3 On appeal, the father argues that his appointed counsel
should have objected to using the ICPC process. Whether the ICPC
applies to an out-of-state placement with a natural parent is an
open question. But because the issue was not preserved, we can
reach it only if an exception to preservation applies. Although the
father invokes the ineffective assistance of counsel exception, he
has not shown that it was objectively unreasonable for his
appointed counsel to acquiesce to using the ICPC process rather
than suggesting potential alternatives for conducting the required
home visit. Therefore, we affirm.

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Opinion of the Court

BACKGROUND
A. Interstate Compact on the Placement of Children
¶4 When DCFS takes a child into protective custody, the
juvenile court must “hold a shelter hearing to determine the
temporary custody of a child within 72 hours.” UTAH CODE § 80-3-
301(1). At that hearing, the court must determine “whether there is
another parent with whom the child was not residing at the time
the events or conditions that brought the child within the juvenile
court’s jurisdiction occurred, who desires to assume custody of the
child.” Id. § 80-3-302(2)(a). But before the court can place the child
with such a parent, it must “make a specific finding regarding the
fitness of the parent . . . and the safety and appropriateness of the
placement.” Id. § 80-3-302(2)(c)(i). Before making that finding, the
court “shall, at a minimum, order the division to visit the parent’s
home,” run the parent’s criminal history, and check for any
previous reports of abuse or neglect by the parent. Id. § 80-3-
302(2)(c)(ii). The court may also order DCFS to conduct “any
further investigation regarding the safety and appropriateness of
the placement.” Id. § 80-3-302(2)(c)(iii).
¶5 When the parent seeking temporary custody lives outside
of Utah, conducting the required investigation presents logistical
challenges. Juvenile courts in Utah commonly use the ICPC process
to determine the safety and appropriateness of child placement
with a parent across state lines. See, e.g., In re K.S., 2022 UT App 68,
¶ 11, 512 P.3d 497.
¶6 The ICPC is a uniform law adopted in all fifty states and
establishes the process “for coordinating the placement of children
across state lines.” Id. ¶ 35. The purpose of the ICPC is to ensure
children “receive the maximum opportunity to be placed in a
suitable environment and with persons or institutions having
appropriate qualifications and facilities to provide necessary and
desirable care.” UTAH CODE § 80-2-905(I)(1).
¶7 The parties and the juvenile court refer to “an ICPC” as
shorthand for the investigation the ICPC requires before a child is
placed in another state. According to testimony presented in this
case, a DCFS caseworker initiates the ICPC process by submitting
a request with the receiving state. From there, the receiving state
assigns an official to complete a “home study.” Generally, the
process requires a background screening of all adults living in the
home. The official in the receiving state visits the home in person
to “assess[] the home for appropriateness [for] the child, [and] any

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In re B.G.
Opinion of the Court

safety concerns.” The official also interviews the placement adult
and reviews his or her health and financial situation to ensure that
the placement adult “is going to be able to care for the child
adequately” and “to meet the needs of [the] child.” Once a
placement is approved, the receiving state will also “provide
courtesy supervision, meaning someone would go out to the home
once a month to meet with the child and the [adult] to see how
things are going” and report back to the caseworker from the
sending state.
B. Facts of Father’s Case and Juvenile Court Proceedings
¶8 Appellant N.G. (Father) married E.T. (Mother), and
together they had B.G. (Child) in July 2019. The family lived with
Father’s mother (Grandmother) in Georgia. Father and Mother’s
relationship was plagued by violent domestic disputes, which
often involved Grandmother and occurred while Child was in the
home. One such dispute led to Mother calling the police, resulting
in Father’s arrest. Because Father is a non-U.S. citizen, his arrest led
to U.S. Immigration and Customs Enforcement detaining him for
fourteen months.
¶9 Following his release, Father reunited with Mother and
Child for a short period, this time living with Mother’s family. But
problems continued. As a result, Father left Mother and Child.
After the separation, Father had various living arrangements with
friends and family, and at one point he was living temporarily in a
hotel. The record includes conflicting accounts as to Father’s
attempts to remain in contact with Mother and Child and as to
Mother’s purported efforts to keep Father from doing so. But it is
undisputed that Father did not see Child for two years, from June
2021 until June 2023.
¶10 Meanwhile, Mother became pregnant with E.T. (Infant),
who was born in May 2022. 1 At some point, Mother went to Utah
based on an agreement with an adoption agency to place Infant for
adoption. When Mother came to Utah, she brought Child with her;
Father was unaware of the move. Mother ultimately decided

---

1 Father was initially presumed to be the biological father of

both Child and Infant at the outset of these proceedings because he
and Mother were still married when Infant was born. A paternity
test later determined that Father is the biological father of Child,
but not of Infant. Thus, the juvenile court’s determination
regarding Father’s parental rights applied only as to Child.

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Opinion of the Court

against adoption and, shortly after Infant’s birth, experienced a
mental health crisis resulting in her hospitalization. DCFS took
protective custody of Child and Infant. DCFS filed a petition for
custody and legal guardianship in juvenile court.
¶11 The court held a shelter hearing where it found that the
“initial removal of the children from the home was proper and in
the children’s best interest.” The court further concluded that the
“continued removal of the children is necessary and in the
children’s best interest.” Shortly after the shelter hearing, the court
held an adjudication hearing where it concluded that Child was
dependent as to Mother under Utah Code section 80-1-102(21)
because Child was without care through no fault of Mother. As to
Father, the court found that the child was neglected because Child
had been abandoned by Father within the meaning of Utah Code
section 80-1-102(58)(a)(i). Father did not participate in these
hearings because he claims he “was not aware that . . . [Child was]
in [Utah] state custody.”
¶12 In February 2023, Father filed a paternity motion seeking
to establish paternity over Child on an expedited basis and to
obtain visitation rights. The court held a hearing where Father
made his first appearance in the proceedings in early March 2023,
and the court advised Father of his right to counsel. The court then
issued an order where it indicated that the “primary permanency
goal for the children is reunification with a concurrent goal of
adoption.” The court also concluded that it was in the best interest
of Child to remain in the custody and guardianship of DCFS.
Because Father lived in Georgia, the court ordered DCFS to “begin
an ICPC for [Father]” before Child could return to live with Father.
¶13 Shortly after Father’s initial appearance, the court
appointed him counsel. Later that same month, the court
proceeded with another adjudication hearing. Father asked the
court to revisit its earlier finding of neglect through abandonment
because Mother had denied him access to Child. DCFS filed an
amended petition alleging that Child was dependent as to Father,
and Father stipulated to an adjudication of dependency. The court
agreed and found that the alleged facts did not establish that Father
failed to provide for Child. Accordingly, the court revised its
findings and adjudicated Child dependent as to Father, rather than
neglected. The court ordered Child to remain in DCFS custody and
maintained the permanency goal of reunification.

5
In re B.G.
Opinion of the Court

¶14 A couple weeks later, DCFS initiated an ICPC with the
state of Georgia, where Father was living. Georgia officials
attempted to complete the ICPC home study. But at the time, Father
lived in a hotel and “report[ed] that he was moving in August . . .
2023 and that he couldn’t complete the home study evaluation . . .
until he moved in his new residence.” As a result, Georgia officials
sent a letter to DCFS in May 2023, indicating that Father “does not
wish to start the assessment process until he is moved and settled.”
Georgia officials informed Father that they could “complete a new
[ICPC] referral once he [was] moved and settled.”
¶15 In June 2023, DCFS sent a second ICPC request to Georgia.
Around the same time, the juvenile court held a review hearing as
to Father, where Father’s counsel indicated that “it [was] important
to get the ICPC moving forward.”
¶16 The court then held a permanency hearing in August 2023,
where DCFS asked to extend the reunification period for ninety
days because Father and Mother were making progress in their
reunification services. Father also indicated that “he just moved”
and was “waiting for [the] paperwork to go through on the ICPC.”
¶17 Following the ninety-day period, the court reconvened the
permanency hearing (October 2023 Hearing). Sometime prior,
Georgia had denied the second ICPC because “the home study
could not be completed due to [Father] . . . not having a stable
residence.” At the October 2023 Hearing, Father’s counsel
acknowledged the difficulty in completing the ICPC. But he argued
that the main issue was Father living in a hotel, which was only a
problem for Georgia officials. He claimed that if Father had been
living in a hotel in Utah it would be “a very different conversation.”
Nevertheless, Father’s counsel represented to the court that Father
was going to move to new housing within a few weeks, and once
that occurred, Father could complete the ICPC.
¶18 In response, DCFS argued that services for Father should
be terminated because the second ICPC failed due to Father’s
unstable housing. In the months prior to the October 2023 Hearing,
a DCFS caseworker had corresponded with Georgia officials
regarding the ICPC process. The caseworker indicated that Father
“seemed a little bit worried about [the ICPC].” The caseworker
stressed that they needed Father’s updated “address first because”
otherwise Georgia officials could not “complete the home study,
and it [would] just come back as denied.”

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Opinion of the Court

¶19 After the October 2023 Hearing, the court issued a written
ruling concluding that Child could “not be safely returned to the
custody” of Father (or Mother). The court thus terminated services
for Father (and Mother) and changed the permanency goal for
Child to adoption.
¶20 DCFS then filed a petition to terminate Father’s parental
rights. At a pretrial hearing in January 2024 (January 2024 Hearing),
Father’s counsel acknowledged that the main issue with the failed
ICPCs was Father’s housing but that the issue had since been
resolved. Father’s counsel also requested “an expedited ICPC for
[Father]” so that Child could be placed with Father. In making that
request, Father’s counsel acknowledged the split of authority on
whether the ICPC applies to natural parents. But Father’s counsel
also noted that the shelter statute required DCFS to “conduct a
background check and a home study” and despite possible
alternatives, “the ICPC is the primary means” DCFS uses to
complete that process. The court denied the request.
¶21 The case then proceeded to trial. After trial, the court
issued a written order terminating Father’s parental rights as to
Child. 2 As part of its reasoning, the court found that Father
“abandoned [Child] in that he has failed to show the normal
interest of a natural parent without just cause.” Additionally,
Father failed to “remedy the circumstances that caused and
continue to cause [Child] to be in . . . [an] out-of-home
placement[].” The court also indicated that Father was “given the
opportunity [to] have an ICPC conducted to have [his residence]
walked through and the safety of the environment assessed” but
the ICPC was “not completed and denied due to the inaction or
instability of” Father.
¶22 Father appealed the termination order to the court of
appeals. See UTAH CODE § 78A-4-103(3)(c) (granting the court of
appeals appellate jurisdiction over appeals from the juvenile
courts). He argued that his court-appointed trial counsel rendered
ineffective assistance for failing to argue that the ICPC process does
not apply to natural parents. The court of appeals certified the case
to us. See id. § 78A-4-103(5); UTAH R. APP. P. 43(a).

---

2 The court also terminated Mother’s parental rights as to Child

and Infant.

7
In re B.G.
Opinion of the Court

ISSUE AND STANDARD OF REVIEW
¶23 On appeal, Father argues that his trial counsel provided
ineffective assistance by failing to argue that the ICPC process does
not apply to natural parents and for not requesting alternatives to
the ICPC. 3 Utah appellate courts address a claim for ineffective
assistance of counsel as a question of law. See State v. Clark, 2004 UT
25, ¶ 6, 89 P.3d 162; In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16.
ANALYSIS
¶24 In Utah, parents have a statutory right to counsel in
parental rights termination proceedings. UTAH CODE §§ 78B-22-
201(1)(b)(iii), 80-4-106(1)(b); see also State ex rel. M.M., 2003 UT 54,
¶ 7, 82 P.3d 1104. This statutory right to counsel “implicitly
guarantees effective assistance of counsel.” State ex rel. M.M., 2003
UT 54, ¶ 7 (cleaned up).
¶25 In criminal cases where the right to counsel is guaranteed
by the Sixth Amendment, we review claims of ineffective assistance
of counsel under the well-known standard from Strickland v.
Washington, 466 U.S. 668 (1984). The court of appeals has expressly
adopted the Strickland standard in the parental rights termination
context. See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994). But this
court has never decided whether that constitutional standard
applies when an ineffective assistance claim arises from a statutory
right to counsel.
¶26 This case does not present an opportunity to answer that
question. None of the parties have argued that a different standard
should apply, and we conclude that Father’s claim fails even under
the Strickland standard.
¶27 To establish ineffective assistance of counsel under
Strickland, a party must show: (1) “counsel’s performance was
deficient in that it ‘fell below an objective standard of
reasonableness’ and (2) ‘the deficient performance prejudiced the
defense.’” State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350 (quoting
Strickland, 466 U.S. at 687–88). “Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel claim,

---

3 In his opening brief, Father raised a second issue: whether the

juvenile court erred when it determined that DCFS made
reasonable efforts to prevent termination of his parental rights. At
oral argument, Father acknowledged that this issue had likely not
been properly preserved and withdrew it from consideration.

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Opinion of the Court

we are free to address [a party’s] claims under either prong.” State
v. Samora, 2023 UT 5, ¶ 21, 529 P.3d 330 (cleaned up).
¶28 We resolve this case on the first prong. The deficiency
prong of the Strickland standard “sets a high bar for [a party], given
the strong presumption that trial counsel rendered adequate
assistance and exercised reasonable professional judgment.” State
v. Eyre, 2021 UT 45, ¶ 22, 500 P.3d 776 (cleaned up). To guide our
inquiry, we consider a number of factors, such as the “prevailing
professional norms” and “whether counsel’s actions can be
considered strategic plays.” State v. Baugh, 2024 UT 33, ¶ 19, 556
P.3d 35 (cleaned up). We also look at “what the record tells us about
what the world looked like when [a party’s] counsel forwent [an
action],” State v. Carter, 2023 UT 18, ¶ 46, 535 P.3d 819, to determine
whether the unraised argument was “a battle that competent
counsel would have fought,” State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d
871. The ultimate question is “whether counsel’s act or omission
fell below an objective standard of reasonableness.” Id. ¶ 36.
¶29 In his opening brief, Father argued that his counsel
performed deficiently in three respects: (1) by failing to object when
the court first ordered the ICPC in March 2023; (2) by failing to
object at the October 2023 Hearing to using the ICPC process after
Georgia denied the ICPC; and (3) by requesting an expedited ICPC
rather than proposing an alternative method at the January 2024
Hearing. Father has since conceded that he forfeited any challenge
to the ICPC ruling that occurred in March 2023 by failing to appeal
the subsequent adjudication order. The question then is not
whether trial counsel performed deficiently by failing to object to
the ICPC in the first instance, but whether trial counsel should have
asked the court to later reconsider using the ICPC process to
investigate the appropriateness of the placement with Father.
¶30 Father’s principal argument is that the ICPC does not
apply to parental placements. He contends that the plain language
of the ICPC “limits its scope to placements of children in foster care
or placements preliminary to an adoption” and that his counsel
should have objected to using that process to assess the
appropriateness of a parental placement. (Citing UTAH CODE § 80-
2-905(III)(1).)
¶31 Utah’s appellate courts have never answered the
substantive question of whether the ICPC applies to natural
parents. See In re K.S., 2022 UT App 68, ¶¶ 37–38, 512 P.3d 497
(noting that whether the ICPC applies to natural parents is an issue

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In re B.G.
Opinion of the Court

of first impression in Utah but declining to reach it through the
plain error exception to preservation). But because Father did not
preserve this issue below, he now raises it under the ineffective
assistance of counsel exception to preservation. Although claims of
ineffective assistance of counsel require “the court to look at the
substantive issue the [party] argues his counsel should have
raised,” that issue “is only viewed through the lens of counsel’s
performance.” State v. Johnson, 2017 UT 76, ¶ 22, 416 P.3d 443.
¶32 In In re K.S., a parent presented the ICPC issue to the court
of appeals through the plain error exception to preservation. 2022
UT App 68, ¶ 23. The court of appeals noted the split in authority
on the issue, id. ¶¶ 35–36, and stated that “Utah’s appellate courts,
at some point, may need to weigh in on this question,” id. ¶ 37. But
it declined to reach the issue because the plain error context of the
case did not “present an appropriate opportunity” to resolve that
question. Id. We take a similar approach in this case. Viewing the
issue through the lens of counsel’s performance, we can determine
that Father’s counsel did not perform deficiently without deciding
whether the ICPC applies to natural parents. As in In re K.S., this
case does not present an appropriate vehicle for us to weigh in on
the applicability of the ICPC to natural parents. 4
¶33 Father acknowledges that, before a child can be placed
with “another parent with whom the child was not residing,” the
juvenile court must determine “the fitness of the parent” and “the
safety and appropriateness of the placement.” UTAH CODE § 80-3-
302(2)(a), (c)(i). But he contends that the ICPC process is arguably
more restrictive or onerous than what the shelter statute requires,
and it is therefore an impermissible impediment to placing a child
with a natural parent.

---

4 Like the court of appeals, we acknowledge that “at some point,

[we] may need to weigh in on this question.” In re K.S., 2022 UT
App 68, ¶ 37, 512 P.3d 497. We also appreciate the parties’ efforts
to thoroughly brief the issue. But a case in which the issue was not
raised below—and thus can only be reached through the ineffective
assistance or plain error exception to preservation—is often a poor
vehicle to resolve a legal question of first impression. Even if the
ICPC does not apply to natural parents, it does not automatically
follow that the juvenile court would be prohibited from taking
advantage of the existing ICPC process to determine the suitability
of an out-of-state parental placement if none of the parties object.

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Opinion of the Court

¶34 Even assuming that is true, the juvenile court must
conduct some form of inquiry to make its findings under the shelter
statute. In In re K.S., a parent whose rights had been terminated
made a similar argument regarding the applicability of the ICPC.
2022 UT App 68, ¶¶ 38–41. The court of appeals noted that under
the shelter statute it would be “impractical for the court to order
DCFS to visit” the out-of-state home, unlike if the parent lived in
Utah. Id. ¶ 40. “Instead, the court need[s] to come up with some
mechanism for inspection of” the out-of-state home. Id.
¶35 The record indicates that juvenile courts commonly use the
ICPC process to determine the safety and appropriateness of the
placement described in section 80-3-302(2)(c), when the placement
would occur across state lines. Father’s counsel was aware of this
practice and “acknowledged that the ICPC was the main process
DCFS used to perform its duties to do a background check and
home check” outside of Utah. Although Father has proposed
alternative processes on appeal, there is no indication in the record
that such alternatives are normally available or employed by
juvenile courts in similar cases. The court of appeals has opined
that such alternatives are “impractical.” Id. It was not objectively
unreasonable for an attorney practicing in this area of law to have
reached a similar conclusion.
¶36 And even if feasible alternatives existed, it was not
objectively unreasonable to conclude that the ICPC process was the
best way to complete the inquiry needed under the shelter statute.
Father has not shown that an ICPC is meaningfully slower or less
efficient than the alternatives he suggests on appeal. Attempting to
devise an alternative process could have been more time-
consuming, leading to additional delays. Regardless of whether the
ICPC governs parental placements, Father’s counsel made a
reasonable decision to proceed with the process that was normally
followed under these circumstances.
¶37 Still, Father argues that, once the initial ICPC was denied,
his counsel should have proposed an alternative. The denial from
Georgia officials states that Father “plans to be moving in the near
future and does not wish to start the assessment process until he is
moved and settled.” But at the October 2023 Hearing, Father
claimed that Georgia could not complete the ICPC because Father
was living in a hotel rather than a traditional residence. Father
argues that his counsel rendered deficient performance by not
objecting to the ICPC at that point because “the State

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In re B.G.
Opinion of the Court

acknowledged that . . . Father living in a hotel in Utah would not
necessarily have been a bar to Father receiving custody of Child.”
Under those circumstances, Father contends that reasonable
counsel “would have argued that requiring Father to pass the ICPC
was creating impermissible barriers.”
¶38 Even assuming that Father’s characterization of the denial
was accurate, it was not objectively unreasonable for counsel to
forgo proposing alternatives when he knew that Father’s
temporary residence in a hotel was not a permanent impediment to
completing the ICPC. Father’s counsel represented to the court that
Father was going to move to new housing within “another couple
of weeks” and could complete the ICPC then. Indeed, the denial
letter stated that Father had been informed that Utah could
“complete a new referral once he is moved and settled.” Counsel
understood that the only problem for Georgia officials was Father’s
housing—a problem that Father was on the cusp of solving. Given
that Father’s move to a stable long-term residence was imminent, it
was objectively reasonable for counsel to conclude that it would be
more efficient and productive to allow Georgia officials to complete
the ICPC home study, rather than ask the court to fashion a new
process.
¶39 Father also claims that his counsel rendered deficient
performance at the January 2024 Hearing when his counsel
requested an expedited ICPC. Father argues that his counsel
“unreasonably declined to ask the court to order alternative
methods,” including “having Father order his own background
check and have a DCFS caseworker fly to Georgia.” Instead,
Father’s counsel notified the court that the issue with Father’s
housing had been resolved and requested “an expedited ICPC” so
that Child could be placed with Father.
¶40 In making that request, Father’s counsel acknowledged a
split of authority on whether the ICPC applied to a natural parent
like Father. But Father’s counsel also noted that the shelter statute
required DCFS to “conduct a background check and a home study”
and, despite possible alternatives, “the ICPC is the primary means”
DCFS uses to complete that process.
¶41 The parties invoke counsel’s acknowledgement of the
issue below as proof that counsel either did or did not perform
deficiently. Father argues that his counsel’s awareness of the split
of authority should have led him to raise a challenge to the ICPC
once counsel realized it was an impediment to Father’s ability to

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Opinion of the Court

have custody of Child. The State contends that Father’s counsel
could not have performed deficiently by not challenging the
applicability of the ICPC “given the unsettled state of the law.”
¶42 We disagree with the State that the unsettled nature of the
law necessarily means that counsel acted reasonably in failing to
raise the issue. We have previously indicated that our review of an
attorney’s performance is not limited “to the law in effect at the
time.” State v. Silva, 2019 UT 36, ¶ 20, 456 P.3d 718. Thus, “trial
counsel is [not] categorically excused from failure to raise an
argument not supported by existing legal precedent.” Id. ¶ 19.
¶43 But, just as importantly, “there is no such thing as per se
deficient performance.” Eyre, 2021 UT 45, ¶ 22. Even assuming that
it would be error for the juvenile court to use the ICPC process if
the compact does not apply to natural parents, “not objecting to an
error does not automatically render counsel’s performance
deficient.” Ray, 2020 UT 12, ¶ 31. “We must view a decision to not
object in context and determine whether correcting the error was
sufficiently important under the circumstances that failure to do so
was objectively unreasonable—i.e., a battle that competent counsel
would have fought.” Id. ¶ 32.
¶44 Father has not convinced us that competent counsel would
have fought this battle. Indeed, the decision to ask for an expedited
ICPC rather than challenge the applicability of the compact “could
have been intended to further a reasonable strategy.” Id. ¶ 34. By
the time of the January 2024 Hearing, the juvenile court had
changed the permanency goal to adoption, Father had already
failed two ICPCs due to unstable housing, and Father was facing
an imminent decision on DCFS’s petition to terminate his parental
rights. Father’s counsel could have reasonably determined that the
court would be more likely to allow one final attempt at the ICPC
given that Father had new housing, rather than to order DCFS to
use untested alternatives. Counsel’s last-ditch effort to convince the
court to allow Father to complete the ICPC process was within the
wide range of reasonable decisions counsel could have made in
these circumstances. See Strickland, 466 U.S. at 689 (explaining that
the appellant must overcome “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance”).
CONCLUSION
¶45 Father has not shown that trial counsel’s acquiescence to
an ICPC was objectively unreasonable. Even if the ICPC does not

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In re B.G.
Opinion of the Court

apply to natural parents, competent counsel could have reasonably
concluded that it was an expedient way to evaluate the suitability
of placement with Father and that alternative methods would be
impractical or unlikely to meet with the court’s approval. Because
counsel’s performance was not objectively deficient, Father has not
established ineffective assistance of counsel even under the
Strickland standard. Affirmed.

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