In re B.G.: No Ineffective Assistance for Acquiescing to ICPC Use as the Practical Mechanism for Out-of-State Parental Home-Visit Findings

Introduction

In re B.G., 2026 UT 2, arises from juvenile court proceedings after the Utah Division of Child and Family Services (DCFS) removed a child (B.G.) from the custodial mother’s care in Utah. The noncustodial father (N.G.), living in Georgia, sought placement. Utah’s shelter framework requires the juvenile court, before placing a child with the noncustodial parent, to make specific findings about the parent’s fitness and the “safety and appropriateness” of the placement—findings that, at minimum, require DCFS to conduct a home visit. See UTAH CODE § 80-3-302(2)(c)(i)-(ii).

Because the father lived out of state, the juvenile court used the Interstate Compact on the Placement of Children (ICPC) process to obtain a home-study/home-visit equivalent from Georgia authorities. Georgia attempted the process twice but could not complete it due to the father’s unstable housing. The juvenile court later changed the permanency goal to adoption and ultimately terminated the father’s parental rights.

On appeal (certified to the Utah Supreme Court), the father did not directly obtain review of whether the ICPC legally applies to out-of-state placements with a natural parent—an issue Utah courts had not yet decided. Instead, he framed the matter as ineffective assistance of counsel, arguing that appointed counsel should have objected to using the ICPC and proposed alternatives.

Summary of the Opinion

The Utah Supreme Court affirmed. The Court held that, even assuming arguendo the ICPC might not apply to natural-parent placements, the father failed to show his counsel performed deficiently under Strickland v. Washington, 466 U.S. 668 (1984). The Court emphasized:

  • Utah law required the juvenile court to make safety/appropriateness findings that, at minimum, required a home visit.
  • Juvenile courts commonly use the ICPC process to accomplish those requirements for out-of-state parents.
  • The record did not establish that proposed alternatives were practically available, commonly used, faster, or more effective.
  • Once the case posture became urgent (goal changed to adoption; termination imminent), counsel’s “expedited ICPC” request could reasonably be viewed as a strategic, last-ditch effort within the wide range of professional judgment.

Importantly, the Court again declined to decide the open, substantive question of whether the ICPC applies to placements with a natural parent, reasoning that an unpreserved issue raised only through ineffective assistance is often a poor vehicle to establish first-impression doctrine.

Analysis

Precedents Cited

The opinion is heavily shaped by Utah’s ineffective-assistance jurisprudence and by a prior Utah Court of Appeals decision discussing the ICPC question without deciding it.

In re K.S., 2022 UT App 68, ¶ 11, 512 P.3d 497

In re K.S. is the opinion’s central ICPC-adjacent precedent. The Supreme Court relied on it for two related propositions:

  • The ICPC’s applicability to natural parents is unsettled in Utah. The Court cites In re K.S. to confirm the issue is open and that there is a broader split of authority.
  • Practicality matters in shelter-stage compliance. In re K.S. noted the shelter statute’s minimum requirement that DCFS “visit the parent’s home” becomes logistically difficult when the home is out of state and that courts need “some mechanism” for inspection. The Supreme Court used this to support the reasonableness of counsel’s acquiescence to the ICPC as the commonly employed mechanism, especially absent record support that other mechanisms were workable.

The Supreme Court also adopted In re K.S.’s caution about using preservation-exception cases (plain error there; ineffective assistance here) to decide unsettled, first-impression questions.

State ex rel. M.M., 2003 UT 54, ¶ 7, 82 P.3d 1104

This case grounds the father’s right to counsel in termination proceedings as statutory and recognizes that such a right “implicitly guarantees effective assistance of counsel.” It supplies the doctrinal basis for allowing ineffective-assistance claims in termination proceedings in the first place.

Strickland v. Washington, 466 U.S. 668 (1984) and In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994)

Strickland provides the familiar two-prong test (deficient performance and prejudice). The Supreme Court noted Utah’s appellate courts (via In re E.H.) have applied Strickland in the termination context, but the Supreme Court expressly stated it has not yet decided whether the constitutional Strickland standard should apply when the right to counsel is statutory rather than Sixth-Amendment-based. Still, because neither party argued for a different standard, the Court assessed the claim under Strickland and found it failed on the deficiency prong.

Utah ineffective-assistance framework cases

The Court used a suite of criminal ineffective-assistance decisions to articulate how deficiency is evaluated in Utah—particularly the presumption of reasonable professional judgment and the importance of context and strategy:

  • State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350 (recites the Strickland formulation as used in Utah).
  • State v. Samora, 2023 UT 5, ¶ 21, 529 P.3d 330 (a court may resolve on either prong; failure on one is fatal).
  • State v. Eyre, 2021 UT 45, ¶ 22, 500 P.3d 776 (high bar; strong presumption; “no such thing as per se deficient performance”).
  • State v. Baugh, 2024 UT 33, ¶ 19, 556 P.3d 35 (prevailing norms; strategic plays).
  • State v. Carter, 2023 UT 18, ¶ 46, 535 P.3d 819 (evaluate “what the world looked like” when counsel acted/omitted).
  • State v. Ray, 2020 UT 12, ¶¶ 31–36, 469 P.3d 871 (not objecting to error is not automatically deficient; ask whether it is “a battle that competent counsel would have fought”; strategy can justify inaction).
  • State v. Johnson, 2017 UT 76, ¶ 22, 416 P.3d 443 (substantive issue is evaluated only “through the lens of counsel’s performance”).
  • State v. Silva, 2019 UT 36, ¶¶ 19–20, 456 P.3d 718 (counsel is not categorically excused from failing to raise arguments unsupported by existing precedent).
  • State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 and In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16 (ineffective assistance reviewed as a question of law).

Legal Reasoning

The Court’s reasoning is best understood as a vehicle-and-performance decision rather than an ICPC merits decision.

1) The Court avoids deciding ICPC applicability (again) because posture matters

The Court acknowledged that “whether the ICPC applies to natural parents is an open question” in Utah. But it refused to decide it because the issue was unpreserved and thus only reachable, if at all, via a preservation exception. Mirroring the caution in In re K.S., the Court explained that preservation-exception cases are often poor vehicles for first-impression doctrine, particularly where:

  • the trial court did not rule on the legal question,
  • the factual record may not have been developed with the legal theory in mind, and
  • the appellate posture forces analysis through secondary doctrines (plain error/ineffective assistance) rather than direct statutory interpretation.

2) Deficiency analysis turns on the shelter statute’s mandatory findings and the need for a workable mechanism

The Court emphasized that, regardless of the ICPC’s formal scope, Utah’s shelter statute required the juvenile court to make placement-safety findings that “at minimum” required a home visit. See UTAH CODE § 80-3-302(2)(c)(ii). When the parent lives in another state, the court must still satisfy these obligations. The question, then, was whether it was objectively unreasonable for counsel to accept the ICPC as the mechanism to accomplish the required investigation.

The Court held it was not objectively unreasonable because:

  • Prevailing practice: The record indicated Utah juvenile courts “commonly use the ICPC process” for out-of-state parental placements, and counsel recognized it as “the primary means” DCFS uses to secure an out-of-state home visit and related checks.
  • Lack of record support for alternatives: The father proposed alternatives on appeal (e.g., self-obtained background checks; flying a DCFS caseworker to Georgia), but the Court found no record evidence these were normally available, accepted by courts, or more efficient than ICPC coordination.
  • Efficiency/strategy: Even if alternatives existed in theory, attempting to design “untested” alternatives could create delay and uncertainty. Choosing the known, institutionally supported pathway could be a reasonable strategic choice.

3) Counsel’s choices at key procedural moments were evaluated in context

The father’s appellate theory targeted three moments, but the Court narrowed the dispute and then assessed reasonableness in context:

  • March 2023 (initial ICPC order): The father conceded forfeiture of challenges to that early ruling by not appealing the later adjudication order. The Court therefore treated the case as about whether counsel should have sought later reconsideration or alternatives, not whether counsel should have objected at the outset.
  • October 2023 (after Georgia’s denial): The Court noted the denial was tied to unstable housing and that counsel represented the father was close to obtaining stable housing. Given the apparent imminence of a fix and the denial letter’s suggestion a new referral could be completed once the father was “moved and settled,” counsel could reasonably choose to stay the course rather than litigate a novel legal issue or propose a bespoke process.
  • January 2024 (termination posture; request for expedited ICPC): The Court saw counsel’s request for an expedited ICPC—after the permanency goal shifted to adoption and termination was imminent—as a potentially rational last effort. Counsel could reasonably infer that persuading the court to allow one more attempt via the existing ICPC channel was more likely than convincing the court to adopt untested alternatives at a late stage.

Finally, relying on State v. Ray and State v. Eyre, the Court reiterated two key deficiency principles: there is no per se deficient performance, and failure to object—even to potential error—is not automatically unreasonable; the question is whether competent counsel would have viewed it as a necessary battle under the circumstances.

Impact

In re B.G.’s immediate doctrinal effect is not to resolve the ICPC’s scope, but to shape how that unresolved question is litigated and reviewed in Utah.

  • Higher practical hurdle for IAC-based ICPC challenges: Parents seeking to contest ICPC use for natural-parent placements will have difficulty succeeding via ineffective assistance unless they can build a record showing viable, court-acceptable, timely alternatives and show that competent counsel would have pursued them.
  • Incentive to preserve the ICPC issue early: The Court signaled that first-impression statutory questions are better decided when preserved and ruled on below. Litigants who believe ICPC use is unlawful (or unlawfully burdensome) should raise it timely to obtain a merits ruling rather than relying on preservation exceptions.
  • Reinforcement of “mechanism” framing under § 80-3-302: Even if ICPC applicability remains open, the decision underscores that Utah courts must still satisfy shelter-statute findings for out-of-state parents. ICPC may continue to function as the default mechanism absent objection and a workable alternative.
  • Open question remains open (and consequential): The Court explicitly acknowledged that Utah appellate courts may need to decide ICPC applicability “at some point.” This opinion suggests that the Court is waiting for a clean vehicle: preserved issue, developed record, and a direct merits posture.

Complex Concepts Simplified

ICPC (Interstate Compact on the Placement of Children)
A nationwide agreement among states that sets procedures for placing children across state lines, typically involving a home study and ongoing oversight. In practice, it provides a structured way for one state to ask another to check a proposed home placement.
Shelter hearing placement findings (UTAH CODE § 80-3-302)
When a child is removed from the custodial parent, the court must decide temporary custody. If the other parent wants custody, the court must decide whether that parent is fit and whether placement is safe and appropriate—requiring, at minimum, a home visit and background-related checks.
Preservation
The requirement that parties raise issues in the trial court in time for the judge to rule on them. If an issue is not preserved, appellate courts usually will not decide it unless an exception applies.
Ineffective assistance of counsel (Strickland)
A claim that counsel’s work was so deficient it violated the right to effective representation. Under Strickland, the claimant must show (1) deficient performance (objectively unreasonable lawyering) and (2) prejudice (a reasonable probability of a different outcome).
“Deficiency” is not “error”
A lawyer can fail to object to something that might be legally wrong and still be considered reasonable, especially if the choice can be justified as a strategy or if the alternative path is uncertain, impractical, or unlikely to succeed.
Certified appeal
A process where the court of appeals sends a case to the supreme court to decide, often because it involves important legal issues or clarification of law.

Conclusion

In re B.G. holds that, in the termination context, counsel does not perform deficiently merely by acquiescing to the ICPC process as the practical tool for satisfying Utah’s mandatory out-of-state placement investigation requirements, even where the ICPC’s formal applicability to natural parents is unsettled. The Court reaffirmed that ineffective-assistance review is context-driven and strategy-tolerant, and it cautioned that unpreserved, first-impression legal questions are poorly suited for resolution through preservation exceptions.

The enduring significance of the decision is procedural and strategic: parties seeking a definitive Utah ruling on whether the ICPC applies to natural-parent placements should preserve the issue squarely in juvenile court and develop a record on feasible alternatives, rather than relying on ineffective assistance to reach the merits.