D.W. v. State of Utah

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D.W. v. State. Filed November 4, 1999 IN THE UTAH COURT OF APPEALS


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



State of Utah,

(Not For Official Publication)

Case No. 981522-CA

November 4, 1999
  1999 UT App 322


Eighth District Juvenile, Vernal Department
The Honorable Larry A. Steele

Julie George, Salt Lake City, for Appellant
Jan Graham and Carol L.C. Verdoia, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, and Cleve J. Hatch, Vernal, Guardians Ad Litem


Before Judges Greenwood, Bench, and Billings.

BENCH, Judge:

Appellant argues that the order terminating his parental rights should be vacated, and a new trial granted because he was denied the effective assistance of counsel. Appellant must show that "counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the case." In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994). We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [appellant] as a result of the alleged deficiencies." Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984). Appellant argues that counsel "clearly prejudiced his case" by failing to secure appellant's attendance at trial to testify on his own behalf and, in appellant's absence, failing to secure the attendance of additional witnesses to corroborate appellant's progress in complying with the DCFS service plan. We reject this argument.

Appellant concedes that his current lengthy incarceration in Arizona is itself a valid ground for terminating parental rights under unfitness considerations. See Utah Code Ann. §§ 78-3a-407(4), -408(2)(e) (1996). Moreover, appellant's incarceration impacts other independent grounds for termination including neglect and failure of parental adjustment. The only ground not clearly impacted by his incarceration is the ground of abuse, a ground that appellant has admitted to in any event. Hence, even assuming that the additional testimony would have demonstrated substantial compliance with the service plan, any one of these other grounds adequately supports the termination of appellant's parental rights. See Utah Code Ann. § 78-3a-407 (1996) ("The court may terminate all parental rights with respect to one or both parents if it finds any one of the [foregoing grounds].") (emphasis added).

Appellant's degree of compliance with the plan before incarceration and the probability of ultimately completing the plan if he had not been incarcerated are therefore irrelevant because he is incarcerated, and thus cannot complete the plan. Therefore, "there is [no] reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S. Ct. at 2068. "Because we hold that appellant has not satisfied his burden of showing prejudice, we need not determine whether trial counsel's performance was deficient." In re E.H., 880 P.2d at 13.

Appellant also argues that there was insufficient evidence to support the termination order. We disagree. The findings in this case are not "against the clear weight of the evidence." In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997). To the contrary, the evidence in this case strongly supports each of the grounds for termination. Once again, even assuming that appellant had substantially complied with the DCFS service plan before being incarcerated, his lengthy incarceration impacts the other adequate and independent grounds for termination and makes compliance with, and completion of, the plan impossible.

Finally, appellant contends that his due process rights were violated when the trial was held without appellant in attendance --an absence caused by his incarceration in Arizona. The record before us does not reflect that appellant raised this issue in proceedings before the trial court. Because appellant has not preserved the issue, we do not address it. See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App.), cert. denied, 953 P.2d 449 (Utah 1997) ("To preserve a substantive issue for appeal, a party must first raise the issue before the trial court."); see also Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah Ct. App. 1989) ("Issues not raised in the trial court in timely fashion are deemed waived, precluding this court from considering their merits on appeal.").

We affirm the termination order.

Russell W. Bench, Judge



Pamela T. Greenwood,
Associate Presiding Judge

Judith M. Billings, Judge