Does failing to challenge ICPC procedures constitute ineffective assistance of counsel? In re B.G. Explained

In In re B.G., the Utah Supreme Court addressed whether trial counsel’s failure to challenge the use of the Interstate Compact on the Placement of Children (ICPC) process for out-of-state parental placement constituted ineffective assistance of counsel.

Background and Facts

When DCFS removed a child from the mother’s care in Utah, the father living in Georgia sought custody. The juvenile court ordered an ICPC home study through Georgia officials to evaluate the placement’s safety and appropriateness. Georgia officials twice denied the ICPC because the father lacked stable housing—first living in a hotel, then reporting an imminent move. After the second denial, the court terminated services and eventually the father’s parental rights. The father’s appointed counsel never challenged whether ICPC applies to natural parents, instead requesting expedited ICPC processing.

Key Legal Issues

The central issue was whether counsel performed deficiently under the Strickland standard by failing to argue that ICPC does not apply to natural parent placements and by not proposing alternative investigation methods. The court noted that Utah appellate courts have never determined whether ICPC applies to natural parents, acknowledging a split of authority on this question nationwide.

Court’s Analysis and Holding

The Utah Supreme Court affirmed, finding no ineffective assistance. The court explained that counsel’s performance must be evaluated by whether it “fell below an objective standard of reasonableness.” Here, counsel’s acquiescence to ICPC was reasonable because: (1) juvenile courts commonly use ICPC for out-of-state placements, (2) counsel was aware this was “the primary means” DCFS used for background checks and home studies outside Utah, (3) alternative methods appeared impractical or untested, and (4) counsel reasonably believed the housing issue was temporary and resolvable through ICPC.

Practice Implications

This decision demonstrates that courts will not second-guess counsel’s reasonable strategic decisions, even when unsettled legal questions exist. The court emphasized that “there is no such thing as per se deficient performance” and that counsel’s decisions must be viewed contextually. For practitioners, this case underscores the importance of preserving issues at trial rather than relying on ineffective assistance claims to raise novel legal arguments on appeal.