T.S. v. State (In re M.M.)

T.S. v. State (In re M.M.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of M.M., A.M., and S.S.,
persons under eighteen years of age.

______________________________

T.S.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031048-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 63

 

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Third District Juvenile, Salt Lake Department

The Honorable Robert S. Yeates

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

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

Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem

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Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

    T.S. (Mother) appeals the juvenile court's termination of her parental rights to M.M., A.M., and S.S. (collectively, the children). We affirm.

    Parents facing termination proceedings have a statutory right to counsel. See Utah Code Ann. § 78-3a-913(1)(a) (Supp. 2004).(1) This court has interpreted section 78-3a-913 to mean "that indigent parents facing the permanent deprivation of their parental rights are entitled not only to an appointed attorney, but to the effective assistance of counsel." In re T.M., 2003 UT App 191,¶21, 73 P.3d 959 (quotations, citation, and emphasis omitted). When examining an ineffective assistance of counsel claim in the context of a termination proceeding, this court employs the test articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984). See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994). Accordingly, "[t]o establish a claim for ineffective assistance of counsel, an appellant must show that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the case." In re A.G., 2001 UT App 87,¶9, 27 P.3d 562 (quotations and citation omitted). "To facilitate this analysis, an appellate court may skip to the second prong of the Strickland standard and determine that the ineffectiveness, if any, did not prejudice the trial's outcome." State v. Goddard, 871 P.2d 540, 545 (Utah 1994).

    Mother argues that her trial counsel rendered ineffective assistance when he failed to (1) adequately and accurately respond to the State's requests for admissions, and (2) object to the admissibility of certain hearsay testimony during the termination trial. Mother further argues that, as a result of these alleged deficiencies, one incorrect response to the State's requests for admissions and several inadmissible hearsay statements (collectively, the evidence) were admitted into evidence. Because the evidence concerned a critical issue at trial--Mother's knowledge of R.S.'s sexual abuse of the children--Mother asserts that its admission into evidence prejudiced the outcome of this case. We disagree.

    Even if we were to agree that her trial counsel's performance was objectively deficient, Mother has not demonstrated that the evidence prejudiced the outcome of this case. Although Mother is correct in asserting that the evidence concerned the critical issue of her knowledge of R.S.'s sexual abuse of the children, we are not persuaded that in the absence of the evidence, the juvenile court would have reached a different conclusion on that issue. Our review of the record reveals that even if the evidence had not been admitted, there was ample other evidence indicating that Mother had knowledge of R.S.'s sexual abuse of the children.(2)

    Because Mother has not demonstrated the second prong of our test for ineffective assistance of counsel, see In re A.G., 2001 UT App 87 at ¶9, her claim fails. Therefore, we affirm.

______________________________

James Z. Davis, Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

1. Because this statutory provision has not changed since the termination petition was filed by the State, we cite to the most current version for convenience.

2. This other evidence includes, but is not limited to, Mother's November 28, 2000 verified petition for a protective order that she filed against R.S. on behalf of the children. In that petition, Mother specifically, clearly, and conclusively establishes her knowledge of R.S.'s sexual abuse of the children.