C.Y. v. State (In re M.Y.)

C.Y. v. State (In re M.Y.)

IN THE UTAH COURT OF APPEALS
 

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

______________________________

C.Y.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040709-CA
 

F I L E D
(November 18, 2004)
 

2004 UT App 428

 

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Fifth District Juvenile, St. George Department

The Honorable Thomas M. Higbee

Attorneys: Michael A. Reason, St. George, for Appellant

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

Martha Pierce and Mandy Rose, Salt Lake City, Guardians Ad Litem

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    C.Y. appeals from a final order of the juvenile court terminating his parental rights. C.Y. also appeals from the juvenile court's denial of his motion for a new trial.

    C.Y. first argues that the juvenile court abused its discretion when it held that he would not benefit from reunification services. After a dispositional hearing on April 30, 2003, the juvenile court determined by clear and convincing evidence that M.Y. had been abused and neglected by C.Y. The court held that "nine years of this lifestyle [was] enough," and entered a permanency order on May 22, 2003, denying reunification services. This order was final and appealable. See In re M.W., 2000 UT 79,¶26, 12 P.3d 80. C.Y. failed to file his notice of appeal within thirty days from entry of the court's final order regarding reunification services. See Utah R. App. P. 4(a). Because C.Y. failed to timely appeal the juvenile court's determination regarding reunification services, this court lacks jurisdiction to consider this argument. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. ("[F]ailure to timely perfect an appeal is a jurisdictional failure requiring dismissal of the appeal.").

    C.Y. also appeals certain evidentiary determinations made during the course of the parental termination hearing. C.Y. argues that the court erred by failing to properly address an alleged conflict of interest between his wife's (K.Y.) attorney and a witness, and by allowing that same witness to testify as "Jane Doe." Each of these objections were raised for the first time in C.Y.'s motion for new trial. "Issues that are not raised at trial are usually deemed waived." 438 Main St. v. Easy Heat, Inc., 2004 UT 72,¶51, 507 Utah Adv. Rep. 3. Raising an issue in a post-trial motion does not preserve that issue for appeal. See Estate of Covington v. Josephson, 888 P.2d 675, 678 (Utah Ct. App. 1994). Therefore, C.Y. has waived these issues on appeal.

    Even if these issues were properly preserved, we would find no error. For instance, C.Y. alleges that a potential conflict existed between K.Y.'s trial counsel and M.Y.'s foster mother, a witness in the termination proceedings. C.Y. argues that the juvenile court erred when it failed to adequately inquire into, and obtain a knowing and voluntary waiver from K.Y. regarding, this alleged conflict. However, C.Y. lacks standing to make this argument. See Shelledy v. Lore, 836 P.2d 786, 789 (Utah 1992) ("The general rule is that a litigant must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." (quotations and citation omitted)). Moreover, C.Y. fails to make any showing that any conflict existed, that the trial court's questions were inadequate, or that he was prejudiced in any manner. See State v. Lovell, 1999 UT 40,¶22, 984 P.2d 382 (stating that a party "must establish both that [the attorney] had an actual conflict of interest, and that the conflict adversely affected [the attorney's] performance."). "[H]ypothetical or speculative conflicts will not suffice to establish a violation." State v. Humphrey, 793 P.2d 918, 923 (Utah Ct. App. 1990). As a result, C.Y.'s argument is without merit.

    Additionally, C.Y.'s argument that the juvenile court erred in allowing M.Y.'s foster mother to testify as "Jane Doe" is also without merit. C.Y. waived any objection by stipulating to the same at trial. Further, C.Y. has failed to make any showing of prejudice.

    Finally, C.Y. has failed to meet his burden regarding ineffective assistance of counsel. "To successfully challenge a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the case." In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994). C.Y. has made no showing whatsoever in this regard.

    Accordingly, the juvenile court's order terminating parental rights and the order on C.Y.'s motion for new trial are affirmed.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge