State of Utah in the interest of S.N.R., M.A.R., and J.R.

Annotate this Case
W.R. v. State. Filed October 7, 1999 IN THE UTAH COURT OF APPEALS

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

A.R. and W.R.,
Appellants,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981536-CA

F I L E D
October 7, 1999


1999 UT App 284

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Third District Juvenile, Salt Lake Department
The Honorable Joseph W. Anderson

Attorneys:
Monica Z. Kelley, David C. Blum, and Gary L. Bell, Salt Lake City, for Appellants
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Karen Flynn, Salt Lake City,Guardians Ad Litem

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Before Judges Bench, Billings, and Davis.

DAVIS, Judge:

Appellants A.R. and W.R., respectively the father and mother of S.N.R., M.A.R., and J.R., appeal the trial court's denial of their motions under Rule 60(b), Utah Rules of Civil Procedure, to set aside the order terminating their parental rights.(1) Because appellants' absence from the trial on the petition was occasioned through their own voluntary conduct, we conclude that the trial court did not abuse its discretion by denying appellants' motions.

Appellants argue the trial court erred in denying their motion to set aside the termination order. Without assailing the court's conclusion that clear and convincing evidence adduced at the trial supported termination of their parental rights, appellants argue that termination should not have been ordered because they were absent from the hearing.(2) Specifically, they argue that the termination order here was rendered pursuant to a hearing at which they were involuntarily absent and thereby violated their right to due process. We review the denial of a Rule 60(b) motion to set aside a judgment for an abuse of discretion. See State Dep't of Soc. Servs. v. Vijil, 784 P.2d 1130, 1132 (Utah 1989).

This court has previously explained that "parents have a fundamental liberty interest in maintaining family relationships with their children. Proceedings in which parental rights are terminated must accordingly comport with the requirements of Due Process. This does not mean, however, that parents have an absolute right to be in attendance at such proceedings." In re M.A.V. v. Vargas, 736 P.2d 1031, 1033 n.2 (Utah Ct. App. 1987) (citations omitted). Rather, by statute, parents have an absolute right "only to receive proper notice and to be advised of their right to counsel." Id. at 1033; accord Utah Code Ann.
§ 78-3a-406(1), (2) (1996).

The trial court properly concluded that appellants were afforded an opportunity to present a defense. In support of this conclusion, the undisputed facts show that although W.R. received a courtesy notice showing that the hearing was to begin at 1:30 p.m., appellants were present at two conferences during which the correct time of the hearing was announced and the court's written orders indicated the correct time. Furthermore, all other parties were present at 8:30 a.m., including counsel for appellants. Even assuming appellants relied upon the courtesy notice, had they maintained proper contact with their attorneys, rather than failing to exercise due diligence as the trial court found, they would have had no misunderstanding as to the correct time. Hence, appellants' absence resulted from their voluntary actions. See also In re M.A.V., 736 P.2d at 1033-34 (affirming termination of a father's parental rights in his absence because the absence resulted from his choice to leave local incarceration and risk deportation). Appellants were not faced with an onerous burden and needed only to have maintained contact with their counsel or the court, or simply to have paid attention during the conferences when scheduled times were announced.

In light of these facts, the trial court clearly did not abuse its discretion in concluding that appellants "were not prevented from attending the trial by circumstances beyond their control," and in denying their motions to set aside the order.

Affirmed.
 
 
 
 

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James Z. Davis, Judge

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WE CONCUR:
 
 
 
 

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Russell W. Bench, Judge
 
 
 
 

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Judith M. Billings, Judge

1. In their motions, appellants also moved to set aside the entry of default under Rule 55(c), Utah Rules of Civil Procedure, which motions the court granted.

2. A.R. also argues the termination order should have been set aside insofar as it was based upon the entry of default for appellants' failure to appear at the trial. However, because the trial court set aside the default but left the termination order intact based upon the evidence proffered at the adjudication hearing, we focus here only on appellants' arguments pertaining to the hearing.