C.S.V. v. State (In re E.V.)

C.S.V. v. State (In re E.V.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of E.V. and S.S., persons under eighteen years of age.

______________________________

C.S.V.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020218-CA
 

F I L E D

(February 13, 2003)
 

2003 UT App 36

 

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Third District Juvenile, Salt Lake Department

The Honorable Sharon P. McCully

Attorneys: John E. Laherty, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Bench, Greenwood, and Thorne.

BENCH, Judge:

Appellant argues that the trial court erred when it admitted evidence of the child's urinalysis test results without requiring the State to establish a chain of custody. Specifically, Appellant argues that the Division of Child and Family Services (DCFS) failed to establish "any chain of custody with regard to the urine sample, prior to the sample being received and tested by Northwestern Drug Testing Services."

We have previously concluded that "[b]efore a substance connected with the commission of a crime is admissible as evidence, there must be a showing that the proposed exhibit is what it purports to be and is in substantially the same condition as it was at the time of the crime." State v. Wynia, 754 P.2d 667, 671 (Utah Ct. App. 1988). In making an admissibility determination, the trial judge should consider "[t]he circumstances surrounding the custody of the article and the likelihood of tampering." Id. However, the judge may presume "that the exhibits were handled with regularity, absent an affirmative showing of bad faith or actual tampering." Id.

The State's failure to call a witness to testify as to who obtained the sample and mailed it to the testing facility is, at most, a weak link in the chain of custody. "A weak link in the chain of custody and any doubt created by it go to the weight of the evidence." Id. Further, Appellant made no showing that the urine sample was actually tampered with, and the State is not required to "eliminate every conceivable possibility that the evidence may have been altered." Id. Therefore, we conclude that the trial court did not abuse its discretion and properly admitted the evidence.

Even without the results of the child's urine sample, the State presented ample evidence to prove that Appellant was an unfit parent because she consumed illegal drugs while pregnant. The State's evidence included Appellant's admission to DCFS workers that she had used cocaine during her pregnancy as well as Appellant's own urine sample indicating that she continued her drug use after the child's birth. This additional evidence provides a sufficient basis upon which the trial judge could conclude that termination of her parental rights was warranted. Thus, even had error occurred in the admission of the child's urine test, such error would have been harmless.

The judgment of the juvenile court is affirmed.

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Russell W. Bench, Judge

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WE CONCUR:

Pamela T. Greenwood, Judge

William A. Thorne Jr., Judge