State of Utah, in the interest of A.S. and A.S.

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State of Utah, in the interest of A.S. and A.S., persons under eighteen years of age, Case No. 971430-CA Filed March 4, 1999 IN THE UTAH COURT OF APPEALS


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



State of Utah,

(Not For Official Publication)

Case No. 971430-CA

March 4, 1999

1999 UT App 067


Third District Juvenile, Salt Lake Department
The Honorable Olof A. Johansson

D. Bruce Oliver, Salt Lake City, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha M. Pierce and Kristin G. Brewer,
Salt Lake City, Guardians Ad Litem


Before Judges Wilkins, Bench, and Orme.

ORME, Judge:

This court recently held that, while the juvenile court in termination proceedings must consider a parent's present parenting ability, it must do so "in light of the parent's past conduct and its debilitating effect on the parent-child relationship." In re S.L., 965 P.2d 551, 562 (Utah Ct. App. 1998). The court explained that if a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the very near future, after a long period of separation, a history of problems and failure to remedy, and deterioration of the relationship between the child and parent, this court should not overturn a court's order terminating parental rights. Id.

The juvenile court's findings show that it properly considered appellant's recent improvements in light of her past failures. The findings also show that the court did not believe appellant's testimony that she no longer had a drug problem. Despite the progress she made after DCFS reunification services ceased, and especially in light of the trial court's finding that her drug problem remained, the evidence was adequate to demonstrate that appellant would not be able to provide a proper home for her children in the near future.

By the time of trial, appellant had been separated from the children for almost two years. During that time, she failed to comply with DCFS service plans. The long separation necessarily harmed her relationship with the children, and the destruction of the relationship was hastened by appellant's failure to keep scheduled visits. Under these circumstances, we will not overturn the juvenile court's termination of appellant's parental rights.

Turning to appellant's more general attack on the adequacy of the evidence to support termination of her parental rights, "'[w]e will not disturb the juvenile court's findings and conclusions unless the evidence clearly preponderates against the findings as made or the court has abused its discretion.'" Id. at 559 (citation omitted). Moreover, "[t]o establish clear error and thereby merit reversal, an appellant '"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) (citations omitted). Appellant wholly fails to marshal the evidence presented at trial supporting the termination of her parental rights and show that the quantum of evidence is insufficient to support the findings.

Finally, appellant assails the constitutionality of the entire Termination of Parental Rights Act, Utah Code Ann. § 78-3a-401 to -414 (1996 & Supp. 1998). "To preserve a substantive issue for appeal, a party must first raise the issue before the trial court." Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App.), cert. denied, 953 P.2d 449 (Utah 1997). An issue is not raised before the trial court if it is not timely submitted. See id. at 129-30. Where issues are not properly preserved for appeal, this court routinely refuses to address them. See In re E.D., 876 P.2d 397, 401 (Utah Ct. App.), cert. denied, 890 P.2d 1034 (Utah 1994).

Accordingly, we decline to address the merits of appellant's constitutional challenge because she failed timely to raise the issue before the juvenile court. Appellant first raised her constitutional claim in a motion for new trial following entry of the juvenile court's order terminating her parental rights. However, the motion was not timely filed, and the issue was therefore never properly before the juvenile court.(1) It follows that it is not properly before us.(2)


Gregory K. Orme, Judge



Michael J. Wilkins,
Presiding Judge

Russell W. Bench, Judge

1. Appellant's justification for failure to raise her constitutional challenge prior to the close of trial is unpersuasive. Under Rule 59 of the Utah Rules of Civil Procedure, grounds for the granting of motions for new trial are limited to seven circumstances, all of which set a bar higher than mere surprise at having lost one's case. Appellant was certainly aware far in advance of trial that the Termination of Parental Rights Act would govern her case. If she believed the entire statute was unconstitutional, she had a duty to say so from the earliest stage of these proceedings. "[A]ppellate review is not intended to grant litigants a second chance to present their case when they have had a full and fair opportunity to do so at an earlier trial." Slattery v. Covey & Co., 909 P.2d 925, 928 (Utah Ct. App. 1995).

Further, appellant's untimely filing of her post-trial motion is not excused by the State's alleged failure to comply with Rule 4-504 of the Utah Rules of Judicial Administration. "'Our rules . . . put the burden on counsel to check periodically with the clerk of the court as to the date of entry . . . ." West v. Grand County, 942 P.2d 337, 340 (Utah 1997) (citation omitted).

2. Appellant raises other contentions on appeal, including allegations of misconduct on the part of the Guardian ad Litem and of malfeasance by DCFS in its placement and supervision of the older child. We have considered these arguments, which are irrelevant to the instant appeal or are otherwise without merit, and decline to address them further. See State v. Carter, 776 P.2d 886, 888 (Utah 1989); State v. Payne, 964 P.2d 327, 332 n.3 (Utah Ct. App. 1998).