State of Utah, in the interest of B.A., E.A., and J.A.

(State of Utah, in the interest of B.A., E.A., and J.A., persons under eighteen years of age.) N.J.A., v. State of Utah

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest

of B.A., E.A., and J.A., persons under eighteen years of age.

_____________________________

N.J.A.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 971689-CA

F I L E D

(December 3, 1998)

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First District Juvenile, Brigham Department

The Honorable Robert L. Newey

Attorneys: Candace S. Bridgess, Ogden, for Appellant

Jan Graham and John Peterson, Salt Lake City, for Appellee

Martha Pierce and Dianne R. Balmain, Salt Lake City,

Guardians Ad Litem

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Before Judges Wilkins, Bench, and Greenwood.

WILKINS, Associate Presiding Judge:

Appellant N.J.A. challenges the juvenile court's order terminating her parental rights to her three children, B.A., E.A., and J.A. We affirm.

Appellant contends that (1) the juvenile court's findings of fact are insufficient to support the termination of her parental rights; (2) the state Division of Child and Family Services (DCFS) violated her rights to travel and to due process; (3) the juvenile court violated her Fifth Amendment right against self-incrimination; and (4) the juvenile court erred by terminating her parental rights without first making the State prove by clear and convincing evidence that the parent-child relationship was destroyed.

PROPRIETY OF COURT'S FINDINGS AND CONCLUSIONS

First, appellant challenges several of the juvenile court's findings of fact supporting its decision to terminate her parental rights. "We overturn findings of fact in a parental termination proceeding only if they are clearly erroneous. . . . To obtain a reversal based on clear error grounds, an appellant must marshal all the evidence supporting the challenged findings and then show that despite that evidence, the findings are clearly lacking in support." In re Adoption of B.O., 927 P.2d 202, 205 (Utah Ct. App. 1996).  Here, N.J.A. simply reiterates facts supporting her position and urges this court to reweigh the evidence. Because N.J.A. has failed to marshal the evidence in support of the court's findings and thereafter demonstrate why this evidence is insufficient to support the court's findings, and because this court does not sit to retry cases, we cannot consider further the merits of her sufficiency claim. See In re S.T., 928 P.2d 393, 401 (Utah Ct. App. 1996) (stating "mere fact that we could reach a different result than the juvenile court . . . does not justify setting aside the juvenile court's findings"). Therefore we uphold the juvenile court's findings.

RIGHTS TO TRAVEL & DUE PROCESS

Second, appellant claims that DCFS violated her constitutional rights to travel and to due process by failing to implement the Interstate Compact on Placement of Children Act. See Utah Code Ann. §§ 62A-4a-701 to - 709 (1997). However, N.J.A. has failed to preserve this issue before the juvenile court, thus precluding our consideration of it on appeal.

"[A]ppellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances." State v. Brown, 856 P.2d 358, 359 (Utah Ct. App. 1993). To preserve a substantive issue for appeal, Utah law requires a party to assert a contemporaneous objection or some specific preservation of claim of error before the trial court. See id. at 360. "The mere mention of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal." Id. at 361 (citation omitted) (holding oblique reference to issue insufficient to preserve issue); see LeBaron & Assoc. v. Rebel Enter., 823 P.2d 479, 483 (Utah Ct. App. 1991) (stating for "issue to be sufficiently raised, even if indirectly, it must at least be raised to a level of consciousness such that trial judge can consider it") (citations omitted).

At various times during the trial, both N.J.A. and her counsel, in passing statements, alluded to a deprivation of her constitutional rights. However, neither N.J.A. nor her counsel specifically articulated what constitutional rights the state was alleged to have violated nor offered supporting evidence of any such deprivation. Because this general reference is insufficient, and N.J.A. has failed to assert plain error or demonstrate exceptional circumstances, the issues are not properly before this court.

FIFTH AMENDMENT

Third, appellant maintains that the juvenile court violated her Fifth Amendment privilege against self-incrimination when it ordered her to testify at the termination hearing. This presents a question of law which we review for correctness. See State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995) (reviewing alleged constitutional violation for correctness).

Under Utah law, there is no Fifth Amendment privilege against self-incrimination in parental rights termination proceedings. See In re P.L.L., 597 P.2d 886, 889 (Utah 1979). The Fifth Amendment privilege applies "only where a specific question is asked, the answers to which might later subject the witness to criminal prosecution." Id. N.J.A. has not alleged that any of the questions asked had the potential of subjecting her to future criminal liability and made no claim to this privilege at trial.(1) Moreover, while N.J.A. alternatively urges us to "revisit" the Utah Supreme Court's holding of P.L.L., we are unable to do so under the doctrine of stare decisis. See Beltran v. Allan, 926 P.2d 892, 898 (Utah Ct. App. 1996). We therefore affirm the juvenile court's ruling on this issue.

DESTRUCTION OF PARENT-CHILD RELATIONSHIP

Finally, appellant contends that the juvenile court erred in terminating her parental rights without making the state prove by clear and convincing evidence that the parent-child relationship was destroyed.

Appellant misinterprets the State's burden. Clearly, Utah Code Ann. § 78-3a-407 (1996) provides alternative grounds for terminating parental rights and does not require a showing of destruction of the parent-child relationship when the petition to terminate is based on a ground other than abandonment. See id.; State ex rel. J.R.T. v. Timperly, 750 P.2d 1234, 1237 n.1 (Utah Ct. App. 1988) (holding finding of abandonment sufficient to terminate parental rights without requiring proof of alternate ground). Because the juvenile court terminated N.J.A.'s parental rights on grounds other than abandonment, the state was not required to prove destruction of the parent-child relationship.

Affirmed.

______________________________

Michael J. Wilkins,

Associate Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

1. While N.J.A.'s counsel raised this point at trial, counsel can advise but cannot invoke this privilege for the client. See P.L.L., 597 P.2d at 889 & n.12.