State Ex Rel. Rh

2003 UT App 154, 71 P.3d 616, 2003 WL 21195474
CourtCourt of Appeals of Utah
DecidedMay 22, 2003
Docket20020691-CA
StatusPublished
Cited by2 cases

This text of 2003 UT App 154 (State Ex Rel. Rh) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Rh, 2003 UT App 154, 71 P.3d 616, 2003 WL 21195474 (Utah Ct. App. 2003).

Opinion

71 P.3d 616 (2003)
2003 UT App 154

STATE of Utah, in the interest of R.H. and C.H., persons under eighteen years of age.
D.H., Appellant,
v.
State of Utah, Appellee.

No. 20020691-CA.

Court of Appeals of Utah.

May 22, 2003.

*617 Justin Gary Jensen, Draper, for Appellant.

Mark L. Shurtleff, Attorney Generals Office, and Carol L. Verdoia, Assistant Attorney General, Salt Lake City, for Appellee.

Martha Pierce, Salt Lake City, Guardian Ad Litem.

Before Judges BILLINGS, BENCH, and GREENWOOD.

OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 D.H. appeals the decision of the Third District Juvenile Court terminating his parental rights to his two children. We affirm.

BACKGROUND

¶ 2 D.H. is the natural father of eleven-year-old R.H. and nine-year-old C.H. (the children). On January 15, 1998, the Division *618 of Child and Family Services (DCFS) received a referral alleging physical abuse and physical neglect of the children by N.H., their natural mother (the mother).[1] At the time, D.H. was incarcerated. DCFS subsequently removed the children from their home in January 1998.

¶ 3 On February 27, 1998, the State of Utah filed a Verified Petition with the juvenile court seeking protective supervision of the children alleging they were abused and/or neglected. On August 26, 1998, the juvenile court found D.H. was unable to care for the children, as he was incarcerated, and found the children were neglected pursuant to Utah Code Ann. § 78-3a-103 (1998). The juvenile court ordered DCFS to maintain protective supervision services over the children until such time as the mother submitted to psychological evaluation and both parents submitted to drug and alcohol assessments. The children were eventually returned to their parents in June 1999, following the juvenile court's Order for Termination of Jurisdiction and Services.

¶ 4 Less than three months later, in September 1999, the children were returned to the custody of DCFS, as the mother was apparently homeless and D.H. had returned to jail. Later that month, the State filed a Second Verified Petition renewing allegations of neglect, again praying the juvenile court would award temporary custody and guardianship of the children to DCFS. On February 15, 2000, the juvenile court partially adjudicated the Second Verified Petition. The juvenile court continued the matter until March 13, 2000, when it ordered that the children remain in the custody of DCFS, that DCFS provide a Reunification Service Plan, and that the Assistant Attorney General be allowed to file a supplemental petition. On December 27, 2000, the State filed a Verified Petition praying the juvenile court permanently terminate the parental rights of both the mother and D.H.

¶ 5 On September 8, 1999, the court appointed the firm of Laherty and Associates to represent D.H. Between that time and July 1, 2002, Mr. Laherty appeared on behalf of D.H. on nine occasions. During the same period, three of Mr. Laherty's associates represented D.H. on five other occasions. D.H. did not object to the effectiveness of his counsel during this period, save for one occasion.

¶ 6 On February 6, 2002, Mr. Laherty failed to appear at a pre-trial hearing. The juvenile court noted Mr. Laherty's absence, and D.H. indicated he was considering requesting new counsel as he felt Mr. Laherty was too difficult to reach. The juvenile court ordered D.H. to notify the court within thirty days if he intended to discharge Mr. Laherty as counsel. D.H. never filed a notice of discharge, and Mr. Laherty appeared on behalf of D.H. in later proceedings.

¶ 7 Trial was held on the Petition for Termination of Parental Rights on July 1, 2002. D.H. was again incarcerated at the time of trial. An associate from Mr. Laherty's office, Mr. Pietryga, represented D.H. at the proceeding. At the commencement of the trial, D.H. expressed his desire to have new counsel appointed, and through counsel motioned accordingly:

D.H.: Your Honor, I'd like to relinquish counsel at this time. I want to be appointed new counsel.
THE COURT: You've got appointed counsel. There is no reason for—
D.H.: Mr. Laherty isn't here to represent me. He's been here, isn't this four times now, and now I don't even know who this person is. He hasn't seen the case and now he's representing me in the trial case?
THE COURT: Well, Mr. Pietryga is perfectly qualified to represent you. He's an associate of Mr. Laherty. I don't see any reason that he can't—he can't represent you in this matter.
MR. PIETRYGA: And, Judge, I apologize for that. He actually had two motions. He wanted one to continue to confer with counsel again, and his next motion was to have new counsel appointed to him.
THE COURT: We've continued this matter, literally, for years at this point and I'm not going to continue. And, frankly, *619 Mr. H., I don't see any reason that Mr. Pietryga can't represent your interest just fine here. So those motions will be denied.

¶ 8 At the conclusion of the trial, the juvenile court permanently terminated D.H.'s parental rights to the children, pursuant to Utah Code Ann. §§ 78-3a-407(2), (4), (5), and (8) (Supp.2000). D.H. now appeals the juvenile court's order terminating his parental rights.

ISSUES AND STANDARDS OF REVIEW

¶ 9 D.H. asserts the juvenile court abused its discretion when it failed to inquire into his complaints regarding his court-appointed counsel before denying him substitute counsel. "Whether to appoint a different lawyer for an indigent defendant who expresses dissatisfaction with his court-appointed counsel ... is a matter committed to the sound discretion of the trial court and will be reversed only for an abuse of discretion." State v. Pursifell, 746 P.2d 270, 272 (Utah Ct.App.1987).

¶ 10 Next, D.H. argues the juvenile court failed to make findings required by the amended version of Utah Code Ann. § 78-3a-407 (Termination Statute), effective May 6, 2002, in its order terminating D.H.'s parental rights. "The juvenile court's decision concerning which version of the [T]ermination [S]tatute applied is a matter of statutory interpretation, which presents a question[ ] of law which we review for correctness, according no particular deference to the [juvenile] court's interpretation." In re S.Y., 2003 UT App 66,¶ 10, 66 P.3d 601 (third and fourth alterations in original) (quotations and citations omitted). "However, where a party ... fails to bring an issue to the [juvenile] court's attention, that party is barred from asserting it on appeal absent a showing of exceptional circumstances or plain error." Id. (alteration in original) (quotations and citation omitted).

ANALYSIS

I. Juvenile Court's Duty to Inquire

¶ 11 D.H. argues the juvenile court abused its discretion by not inquiring into his complaints regarding his court-appointed counsel before denying his motion for substitute counsel. The right to counsel in parental termination proceedings is granted pursuant to Utah Code Ann.

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Bluebook (online)
2003 UT App 154, 71 P.3d 616, 2003 WL 21195474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-rh-utahctapp-2003.