S.R. v. State (In re N.D.)

S.R. v. State (In re N.D.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of N.D., P.R., M.R., and D.R., persons under eighteen years of age.

______________________________

S.R.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030226-CA
 

F I L E D
(February 5, 2004)
 

2004 UT App 20

 

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Fifth District Juvenile, St. George Department

The Honorable Thomas M. Higbee

Attorneys: Alan D. Boyack, St. George, 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.

PER CURIAM:

S.R. appeals the order terminating her parental rights to P.R., M.R., and D.R.(1)

S.R. claims that the juvenile court erred in admitting a videotaped interview of N.D. as evidence under rule 37A of the Utah Rules of Juvenile Procedure. Rule 37A allows admission of the oral statement of a child as evidence in abuse, neglect or dependency proceedings if the conditions of the rule are met. See Utah R. Juv. P. 37A(1)(a)-(h). S.R. does not dispute that the juvenile court made the requisite findings for admission under the rule. S.R. does not articulate any argument regarding the rule's application to the facts of this case, but states a generalized criticism of the rule in concept. Rule 37A is intended to be interpreted using the case law developed under analogous rule 15.5 of the Utah Rules of Criminal Procedure. See Utah R. Juv. P. 37A Advisory Committee Note; see also Utah R. Crim. P. 15.5 (allowing admission of child's recorded statement about abuse or sexual offense).

In State v. Lenaburg, 781 P.2d 432, 436 (Utah 1989), the Utah Supreme Court held the district court erred in admitting a child's videotaped statement where the statement could not "be viewed as reliable so as to qualify for admission without [the child's] having been subjected to cross-examination." The statement included fantastic details that left "doubt as to the accuracy of the child's version of the incident." Id. After concluding that the statement failed the reliability test, the supreme court held "it was error for the trial court to have admitted it into evidence without affording defendant any right of cross-examination." Id. The court then analyzed whether admission of the tape was harmless. After concluding the tape was "the most damning evidence presented at trial," the court held the defendant was prejudiced by having "no means to explore the contradictory or confusing portions of [the child's] testimony." Id. at 437. Under Lenaburg, it is apparent that a videotape satisfying the reliability criteria comes in as evidence without allowing cross-examination, and even assuming a tape is admitted in error, the error will be deemed harmless if there is no "reasonable likelihood of a more favorable result absent the error." Id.

S.R. does not assert on appeal that inconsistencies or other aspects of the statement undermine its reliability or the trial court's determination to admit it. S.R. provides no marshaling of the evidence, no analysis of the rule's application, and no meaningful legal analysis. As such, her "brief fails to adequately set forth an argument as required by rule 24(a)(9) of the Utah Rules of Appellate Procedure." State v. Gamblin, 2000 UT 44,¶6, 1 P.3d 1108. However, even assuming for purposes of this appeal, that the tape was erroneously admitted, S.R. would be hard-pressed to demonstrate that the error was harmful, given the considerable weight of the remaining evidence supporting the court's termination order. Unlike the tape in Lenaburg, in this case, the tape was a relatively small portion of the evidence considered.

S.R. also claims that the evidence was insufficient to support termination of her parental rights. However, her brief contains no statement of facts, identifies no specific findings that she challenges, and makes no attempt to marshal the evidence supporting the juvenile court's findings. Her argument is apparently that only P.R. engaged in violent behavior or substance abuse. This fails to acknowledge that the case involved a pattern of her failure to protect the children from P.R., her failure to comprehend that P.R. posed a risk to the children, her failure to understand and address the children's most basic needs, and her failure to remedy the circumstances that caused removal despite being provided reasonable services. An appellant challenging the juvenile court's findings must marshal "the evidence in support of the findings and then demonstrate that despite this evidence the [juvenile] court's findings are so lacking in support as to be against the clear weight of the evidence." In re S.T., 928 P.2d 393, 400 (Utah Ct. App. 1996). "When an appellant fails to properly discharge his [or her] duty to marshal, we assume that 'the evidence introduced at trial adequately supported the findings, and, accordingly, affirm the findings as written.'" In re L.M., 2001 UT App 314,¶15, 37 P.3d 1188 (citation omitted).

We affirm the order terminating S.R.'s parental rights to P.R., M.R., and D.R.

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge

______________________________

Gregory K. Orme, Judge

1. N.D. was not named in the termination petition. Her permanency goal is custody with her biological father.