State of Utah in the interest of N.R. and S.R.

----ooOoo----

State of Utah, in the interest of N.R. and S.R.,
persons under eighteen years of age.
______________________________

K.A.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990339-CA

F I L E D
February 10, 2000
  2000 UT App 027 -----

Second District Juvenile, Ogden Department
The Honorable L. Kent Bachman

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

-----

Before Judges Bench, Jackson, and Wilkins.(1)

BENCH, Judge:

Appellant first contends that her right to fundamental due process was violated when the juvenile court terminated her parental rights, arguing that the State was required to take into account her "developmental disabilities" when designing her reunification plan. However, we do not reach that issue in this case because only two of the statutory grounds require the juvenile court to first find that the State provided reasonable and adequate services before terminating parental rights. To terminate parental rights under section 78-3a-407(4) (the failure to remedy the circumstances which caused the out-of-home placement) and section 78-3a-407(5) (the failure of parental adjustment), the juvenile court is required to find that DCFS first provided "diligent" or "reasonable" services. In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997).

In addition to the two grounds requiring reasonable services, the juvenile court found that: 1) the children had been neglected or abused; 2) appellant was unfit or incompetent; and 3) appellant made only token efforts to support her children or eliminate the risk of serious physical, mental or emotional abuse and neglect and avoid being an unfit parent. A finding of any one of these additional grounds independently supports the juvenile court's order to terminate appellant's parental rights, without regard to whether services were provided. See Utah Code Ann. § 78-3a-407 (1996); see also M.E.C., 942 P.2d at 960 (stating "a juvenile court has the statutory authority to order the termination of a parent's rights based on finding . . . neglect, unfitness, and token efforts, regardless of whether the State provided any services, reasonable or not").

Appellant next argues that she received ineffective assistance when trial counsel failed "to object to
witnesses for the State testifying to the [a]ppellant's noncompliance with the State's reunification of the family plans, that were not designed to take into account [her developmental disabilities]." Assuming for purposes of this appeal that the State was required to take appellant's "developmental disabilities" into account when designing her reunification plan, and that trial counsel was deficient in not objecting to testimony of appellant's noncompliance with the plan, appellant still cannot demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). As discussed above, the juvenile court found five grounds supporting termination of appellant's parental rights, three of which independently support the termination order without requiring the State to offer any services. Thus, any testimony regarding noncompliance with a reunification plan would not have affected the juvenile court's termination order on the three independent grounds. See, e.g., M.E.C., 942 P.2d at 958-61.

Therefore, because "the juvenile court found sufficient grounds, independent of the service plan, upon which to order the termination of [appellant's] parental rights," id. at 958, there was no violation of fundamental due process and appellant was not denied effective assistance of counsel. Accordingly, we affirm the juvenile court's final order terminating appellant's parental rights.
 
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson, Judge
 
 
 
 

______________________________
Michael J. Wilkins, Judge

1. Utah Supreme Court Justice Michael J. Wilkins sitting by special appointment pursuant to Utah Code Ann. § 78-7-9.5 (1996); Utah Code Jud. Admin. R3-108(3).