S.S.H. v. State (In re B.M.)

S.S.H. v. State (In re B.M.)

IN THE UTAH COURT OF APPEALS
 

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State of Utah, in the interest of B.M., a person under eighteen years of age.

______________________________

S.S.H.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040258-CA
 

F I L E D
(November 12, 2004)
 

2004 UT App 409

 

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Fourth District Juvenile, Provo Department

The Honorable Louis G. Tervort

Attorneys: Jose Silva, Provo, 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 Greenwood, Jackson, and Orme.

GREENWOOD, Judge:

    S.H. (Mother), the natural mother of B.M., appeals the juvenile court's order asserting jurisdiction over B.M. and finding him to be dependant and neglected. Mother argues that the juvenile court erred by (1) not sufficiently investigating her complaints of ineffective assistance of appointed counsel, and (2) failing to conduct an in-depth colloquy before allowing her to waive her right to counsel and proceed pro se. We affirm.

    Indigent parents facing dependency, neglect, or termination proceedings are entitled to an appointed attorney. See Utah Code Ann. § 78-3a-913(1)(a) (2002). Interpreting section 78-3a-913, this court has held that a parent not only has the right to appointed counsel, "'but to the effective assistance of counsel.'" In re T.M., 2003 UT App 191,¶21, 73 P.3d 959 (citation omitted). However, this right to appointed counsel is a statutory right rather than a constitutional right such as the one granted to defendants in a criminal case. See id. We have articulated different standards for safeguarding a statutory right to counsel versus a constitutional right to counsel. See In re A.E., 2001 UT App 202,¶¶11-12, 29 P.3d 31 (reviewing a parent's waiver of a statutory right to counsel under a "record-as-a-whole" standard instead of the constitutional "knowingly, intelligently, and voluntarily" standard).

    Mother argues that her statutory right to the effective assistance of court-appointed counsel was not protected by the juvenile court because it failed to sufficiently inquire into her complaints of ineffective assistance of counsel and failed to ensure that she understood the significance of waiving her appointed counsel and proceeding pro se. However, after reviewing the record and the juvenile court's findings and conclusions, we conclude that in this case, even if the juvenile court erred, it was harmless error.

    Harmless error is "'an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.'" In re W.A., 2002 UT 127,¶36 n.11, 63 P.3d 607 (quoting State v. Evans, 2001 UT 22,¶20, 20 P.3d 888); see also In re R.H., 2003 UT App 154,¶15, 71 P.3d 616 (holding that court's failure to inquire into complaint of ineffective assistance is harmless error because "the record contains sufficient information to make that determination").

    Given the status of this case, Mother's situation, and other evidence in the record, any error by the juvenile court would not have affected the outcome. First, this proceeding was not a termination of Mother's parental rights, but rather an adjudication of a neglect and dependency petition. Next, because Mother's parental rights to five of B.M.'s siblings had previously been terminated on the basis of abuse and neglect, B.M. is a sibling at risk under Utah Code section 78-3a-103. See Utah Code Ann. § 78-3a-103(1)(s)(i)(E) (2002). Finally, at the time of the adjudication hearing, and this appeal, Mother was incarcerated, and she still faces incarceration for a number of years to come. Given these circumstances, the juvenile court had no choice but to find that B.M. was a neglected child and to assert its jurisdiction over him. Neither a substitution of counsel at the start of the trial, nor a more in-depth colloquy with Mother prior to her waiver of counsel could have affected the outcome of the proceedings.

    Accordingly, we affirm the trial court's findings of fact and conclusions of law finding B.M. to be dependent and neglected.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge