E.A. v. State of Utah

E.A. v. State of Utah

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of W.A., a person under eighteen years of age.

______________________________

E.A.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20000461-CA

F I L E D

(February 6, 2003)
 

2003 UT App 31

 

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Third District Juvenile, Sandy Department

The Honorable Olof A. Johansson

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L. Verdoia, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Bench, and Thorne.

BENCH, Judge:

This matter is before us on remand from the supreme court. Having concluded that the trial court had personal jurisdiction over E.A. (Father), the supreme court remanded the case to us for consideration of the remaining arguments raised on appeal. See In re W.A., 2002 UT 126,¶12, 463 Utah Adv. Rep. 20.

I. SUFFICIENCY OF PROCESS

Father's argument as to the sufficiency of process boils down to the fact that the document he was personally served with contains the title "Notice of Hearing on Joint Petition for Termination of Parental Rights," instead of "Summons." Rule 18 of the Utah Rules of Juvenile Procedure instructs that the summons should contain "the name and address of the court, the title of the proceeding, the type of hearing scheduled, and the date, place and time of the hearing. It shall also contain an abbreviated reference to the substance of the petition." Utah R. Juv. P. 18(a)(1)(B). The notice Father was served with contained all of these elements. It is these elements that constitute the process due Father, not the word "summons." Therefore, we conclude that the process was sufficient in that it was the functional equivalent of a summons.

Father also alleges that service of the process was faulty because the return of service does not indicate that it was served by "the sheriff or constable, or by the deputy of either, by a United States Marshal or by the marshal's deputy, or by any other person 18 years of age or older at the time of service, and not a party to the action or a party's attorney." Utah R. Civ. P. 4(3)(d). The Return of Service indicates that Father was personally served by a "duly qualified and acting peace officer in Oklahoma." In Oklahoma, "[t]he term 'peace officer' means any sheriff, police officer, federal law enforcement officer, or any other law enforcement officer whose duty it is to enforce and preserve the public peace." Okla. Stat. Ann. tit. 21 § 99 (West 1999). We can conceive of no reason why it would matter if the notice were served on Father by a local police officer instead of a deputy sheriff. Both are designated as peace officers, both take an oath to uphold and protect the Constitution, and both would be subject to the same penalty for falsifying a return of service. See Utah Code Ann. § 78-12a-4 (1996). The Oklahoma peace officer who served Father indicated on the return of service that he was a peace officer, served Father on "12-3-98" at the "Mack Alford Correctional Center" with a "Notice and Verified Petition" and that he endorsed "the date and place of service and my name on the copy served." See Utah R. Civ. P. 4(h) (outlining manner of proof of service). We conclude, therefore, that Father was properly served.

II. MINUTES OF ADJUDICATION HEARING

Father contends that the juvenile court erred when it admitted into evidence the minutes and order from the shelter hearing wherein Child was adjudicated dependent and placed in the custody of DCFS. The State counters that Father has not properly preserved the issue for our review. During trial, when the State moved to enter the exhibit, Mother's attorney objected on the basis that the parents were not part of that hearing. Father's attorney said, "I would enter the same objection . . . and I'd also add that the parents were not present for that proceeding." The juvenile court received the exhibit over the objections, acknowledging that the parents were not there, but stating that the hearing "does not intend to adjudicate any rights of parents." The juvenile court said the document would "stand by itself as a finding by the court as it relates to the child['s dependency]."

The due process constitutional argument that Father now raises on appeal is improperly raised here for the first time. For an issue to be properly preserved for appellate review, it must "be raised to a level of consciousness such that the trial judge can consider it." State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993). Additionally, "the 'mere mention' of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal." Id. (citation omitted). We conclude that Father did not sufficiently raise below the constitutional issues that he now argues on appeal; therefore, we do not address them.

III. ADMISSION OF NOLO CONTENDERE PLEA

Father's final claim of error is that his nolo contendere plea was admitted into evidence in violation of rules 410(2) and 803(22) of the Utah Rules of Evidence. Rule 410 provides, in part: "Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: . . . a plea of nolo contendere." Utah R. Evid. 410(2). The First Circuit Court of Appeals decided this issue as it relates to the federal rule, which is identical to the Utah rule, in Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999). In Olsen, the court concluded that evidence of the appellant's nolo contendere plea and conviction for manslaughter were admissible under rule 410 because "[t]he evidentiary rules that exclude evidence of nolo pleas do not directly apply to the convictions and sentences that result from such pleas." Id. at 58. As in Olsen, Father's nolo contendere pleas were introduced into evidence by the State simply to prove the fact of Father's conviction and incarceration, as part of the State's case that Father is not presently nor for the foreseeable future in a position to care for the immediate needs of Child. Therefore, we conclude that rule 410 does not preclude the admission of the judgment and sentence of the Oklahoma court.

We are also unconvinced by Father's argument that rule 803(22) of the Utah Rules of Evidence bars admission of the judgment. Rule 803(22) is also identical to the federal rule, and was discussed by the Olsen court. Rule 803(22) provides that "[e]vidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere)," is not excluded by the hearsay rule. Id. As with the rule 410 analysis, the critical differentiation is whether the judgment is being offered to "'prove any fact essential to sustain the judgment.'" Olsen, 189 F.3d at 63 (citation omitted). Rule 803(22) "'reaches convictions as proof of underlying facts and does not apply to convictions that are important as facts in themselves and as indicators of the official disposition of the convicted person.'" Olsen, 189 F.3d at 63 (quoting 4 Mueller & Kirkpatrick, Federal Evidence, § 472, at 660 (2d ed. 1994)). The Olsen court also concluded that "[w]hen offered to show the fact of conviction rather than underlying guilt 'a judgment readily fits the public records exception [to the rule against hearsay].'" Id. (citation omitted). Because Father's conviction was not offered to prove that he committed any of the acts underlying the charges to which he pleaded nolo contendere, evidence of the judgment and sentence were properly received into evidence pursuant to the public records exception. See Utah R. Evid. 803(8).

Accordingly, we affirm the judgment of the juvenile court.

Russell W. Bench, Judge

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I CONCUR:

Judith M. Billings,

Associate Presiding Judge

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I CONCUR IN THE RESULT:

William A. Thorne Jr., Judge