N.R.E. v. T.J.R. and E.R.

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N.R.E. v. T.J.R. and E.R. Filed November 4, 1999 IN THE UTAH COURT OF APPEALS

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In the matter of the adoption of Infant Anonymous, a minor.
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N.R.E.,
Appellant,

v.

T.J.R. and E.R.,
Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981248-CA

F I L E D
November 4, 1999
  1999 UT App 318

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Third District, Salt Lake Department
The Honorable Sandra Peuler

Attorneys:
N.R.E., Salt Lake City, Appellant Pro Se
Mark O. Morris, Salt Lake City, for Appellees

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Before Judges Greenwood, Billings, and Jackson.

JACKSON, Judge:

N.R.E. challenges the trial court's denial of her motion under Utah Rule of Civil Procedure 60(b)(3) for relief from the trial court's judgment rejecting her attempt to withdraw her consent to the adoption of her child. We affirm.

ISSUES

In this appeal, N.R.E. argues that Judge Peuler (1) clearly erred at the May 23d hearing in her findings about N.R.E.'s state of mind at the time of the consent on May 15th; (2) erred in disallowing rebuttal testimony for N.R.E. at the March 1998 trial; (3) clearly erred in finding attorney John Spencer Snow a credible witness; (4) clearly erred in finding that Snow did not commit fraud upon or unduly influence N.R.E.; (5) clearly erred in finding that N.R.E.'s consent was fully informed and voluntary, with an understanding that the consent was irrevocable; (6) incorrectly applied Utah Code Ann. § 78-30-4.20 (1996), violating N.R.E.'s due process rights under the United States and Utah Constitutions; and (7) incorrectly refrained from considering the child's best interests in the context of the Rule 60(b)(3) motion, violating Utah Code Ann. §§ 78-3a-414(4) and 78-30-1.5 (1996) and N.R.E.'s constitutional rights. N.R.E. further argues that the irrevocable consent provision of the adoption statute is facially unconstitutional and Judge Peuler incorrectly interpreted that provision in determining that N.R.E.'s consent was indeed irrevocable.(1)

ANALYSIS

N.R.E. first maintains that Judge Peuler clearly erred in her findings at the May 23d hearing about N.R.E.'s state of mind at the time of the consent on May 15th. N.R.E. complains that Judge Peuler's findings were erroneously made "independent of any expert testimony." However, N.R.E. did not present any expert testimony at the May 23d hearing. Thus, Judge Peuler could not have relied on such testimony in making her findings on N.R.E.'s mental state. Further, N.R.E. appeals the denial of her Rule 60(b)(3) motion, not the May 23d ruling. Consequently, N.R.E. may not challenge Judge Peuler's findings from May 23d, but only her findings from the March 1998 trial.

Secondly, N.R.E. asserts that Judge Peuler erred in disallowing rebuttal testimony for N.R.E. at the March 1998 trial. Our review of the record shows quite the opposite, however. After T.J.R. and E.R. (the Rs) had finished presenting their case, Judge Peuler asked if N.R.E. had any rebuttal witnesses. N.R.E.'s counsel replied, "No, Your Honor." So, contrary to N.R.E.'s assertion, Judge Peuler actually invited rebuttal. It was N.R.E.'s counsel who chose not to present any.

Third, N.R.E. contends that Judge Peuler clearly erred in finding Snow to be a credible witness. It is the trial court's role to evaluate witness credibility, and we greatly defer to its judgment. See In re Estate of Beesley, 883 P.2d 1343, 1349 (Utah 1994) ("The district court is in the best position to weigh conflicting testimony, assess credibility, and from this make findings of fact. An appellate court does not lightly disturb the verdict of a jury or the factual findings of a trial court."); see also State v. Pena, 869 P.2d 932, 936 (Utah 1994) (stating trial judge is "considered to be in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record"). Our painstaking review of the trial testimony reveals nothing that persuades us to withdraw our vast deference to the trial court's credibility appraisal here.

Fourth, N.R.E. argues that Judge Peuler clearly erred in finding that Snow did not commit fraud or unduly influence N.R.E. We conclude that ample evidence supports the trial court's factual determination that Snow did not commit a fraud upon or unduly influence N.R.E. See Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985) (stating existence of fraud is fact question); In re Adoption of D, 122 Utah 525, 530, 252 P.2d 223, 226 (1953) (reviewing trial court's "finding" of lack of duress or undue influence as fact question).

To prove that Snow unduly influenced her, N.R.E. was required to show an exhibition of more than influence or suggestion[;] there must be substantial proof of an overpowering of [her] volition at the time the [consent] was made, to the extent [s]he [was] impelled to do that which [s]he would not have done had [s]he been free from such controlling influence, so that the [consent] represents the desire of the person exercising the influence rather than that of [N.R.E.]. In re Lavelle's Estate, 122 Utah 253, 259, 248 P.2d 372, 375-76 (1952) (will context).

To prove that Snow committed fraud, N.R.E. was required to show by the heightened standard of clear and convincing evidence that Snow "intentionally or recklessly misrepresent[ed] a presently existing material fact, thereby inducing [N.R.E.] to reasonably rely and act upon that falsehood to [her] detriment." Von Hake, 705 P.2d at 770.

Again, we emphasize the trial court's role as evaluator of witness credibility. See Pena, 869 P.2d at 936. The trial court very clearly found Snow more believable regarding these issues than N.R.E., and we must defer to the trial court's judgment. We thus affirm the trial court's determination that N.R.E. did not meet her burden of proving the elements of fraud and undue influence here.(2)

Fifth, N.R.E. attacks her consent, charging that Judge Peuler erred in making the factual finding that the consent was fully informed and voluntary, with an understanding that the consent was irrevocable. See In re Adoption of Infant Anonymous, 760 P.2d 916, 918 (Utah Ct. App. 1988) (noting whether consent to adoption is given knowingly is question for fact finder); cf. Estate of Beesley, 883 P.2d at 1349 (holding whether party voluntarily and knowingly agreed to contractual terms is question of fact).

Establishing that a particular finding of fact is clearly erroneous requires the appellant to first marshal [or list] all the evidence in support of the district court's finding and then demonstrate that even viewing it in the light most favorable to the district court, the evidence is insufficient to support the finding.

Estate of Beesley, 883 P.2d at 1347; see In re D.G., 938 P.2d 298, 301 (Utah Ct. App. 1997). N.R.E. did not carry her burden of marshaling the substantial body of evidence supporting these challenged findings; accordingly, we affirm the findings without further analysis. See In re M.W., 970 P.2d 284, 291 (Utah Ct. App. 1998) (rejecting appellant's challenge to factual finding because evidence not marshaled), cert. granted, 1997 Utah LEXIS 161 (Utah May 18, 1999); In re T.J., 945 P.2d 158, 164 (Utah Ct. App. 1997) (affirming juvenile court when appellant raised no record evidence contradicting findings and conclusions and simply reargued "same points she argued to the juvenile court").(3)

Finally, we decline to address N.R.E.'s remaining arguments because she did not properly preserve them for appeal by raising them before Judge Peuler and giving the judge a chance to consider and rule on those issues.(4) See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129-30 (Utah Ct. App. 1997) ("To preserve a substantive issue for appeal, a party must first raise the issue before the trial court. '"A matter is sufficiently raised if it is submitted to the trial court, and the court is afforded an opportunity to rule on the issue."'" (Citations omitted.)), cert. denied, 953 P.2d 449 (Utah 1997). The principle underlying "preservation" is that in fairness the trial court should be given the chance to fix its own errors. See In re Estate of Morrison, 933 P.2d 1015, 1018 (Utah Ct. App. 1997). Assertions of error ought to be raised in a timely manner so that thoughtful and probing analysis can begin early in the proceedings; otherwise, the assertions of error are waived. See State v. Brown, 856 P.2d 358, 359-60 (Utah Ct. App. 1993); Ashcroft v. Industrial Comm'n, 855 P.2d 267, 268-69 (Utah Ct. App. 1993). If the trial court has not dealt with a matter, there is nothing for the appellate court to review--plain error and exceptional circumstances aside. See State v. Marvin, 964 P.2d 313, 318 (Utah 1998). And, N.R.E. has not set forth a plain error or exceptional circumstances analysis to support our attention to these issues raised for the first time on appeal.

CONCLUSION

We conclude that N.R.E. did not properly appeal Judge Peuler's findings from the May 23d hearing about N.R.E.'s state of mind during the May 15th consent hearing. We further conclude that Judge Peuler did not keep N.R.E. from presenting rebuttal evidence at the March 1998 trial. After reviewing the evidence, we also uphold the trial court's factual determination that Snow neither committed fraud upon nor unduly influenced N.R.E. Because N.R.E. did not marshal the evidence regarding whether her consent was fully informed and voluntary, we affirm the trial court's findings on that issue. Finally, we decline to address N.R.E.'s remaining arguments because she neither properly preserved those issues before the trial court, nor presented us with a plain error analysis. Accordingly, we affirm.(5)
 
 
 

______________________________
Norman H. Jackson, Judge

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WE CONCUR:
 
 

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Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

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Judith M. Billings, Judge

1. N.R.E. also seems to indirectly assert that her trial lawyer rendered ineffective assistance of counsel. The general rule is that ineffective assistance of counsel is not a valid claim in a civil case. See Rukavina v. Triatlantic Ventures, Inc., 931 P.2d 122, 126 (Utah 1997). In any event, N.R.E. has failed to show that her trial attorney's actions prejudiced her in any way. See id.

2. As part of her argument about fraud and undue influence, N.R.E. asserts that Snow engaged in dual representation of her and the Rs, which prejudiced her. We must agree with the New York Court of Appeals that "[o]f course, separate representation of biological and adoptive parents avoids any potential conflict of interest on the part of an attorney and provides enhanced assurance that the biological parent's consent is freely given with full understanding of the consequences." In re Chaya S., 683 N.E.2d 746, 750 (N.Y. 1997). However, we also agree with the New York court's statement that "[i]t does not follow, however, that every adoption finalized in the era of dual representation must be voided." Id.

Here, the trial court did not make findings about the nature of Snow's relationship with N.R.E. N.R.E. testified that she thought Snow was her attorney, while Snow testified that he served only as attorney to the Rs. Nonetheless, even if Snow had served as attorney to both N.R.E. and the Rs, we would conclude under all the circumstances of this case that this particular dual representation would "not [have] vitiate[d this] otherwise valid judicially approved consent." Id.

3. As part of her argument that her consent was not knowing and voluntary, N.R.E. seems to contend that her emotional state at the time of the consent places the validity of her consent at issue. We acknowledge that N.R.E. appeared to be quite emotional, both at the consent hearing and at the hearing in which she sought to withdraw her consent. Indeed, it was apparent that N.R.E.'s decision was hard on her.

However, our review of the videotape of the hearing shows that Judge Peuler recognized this as well and personally took over questioning N.R.E. to ensure N.R.E. was doing what she really wanted to do. Judge Peuler went so far as to ask if N.R.E. needed more time to make her decision or would prefer another option. N.R.E. replied that she needed no more time and that she would stay with her decision to place her child for adoption.

In her oral ruling, Judge Peuler noted, "[T]his is difficult, I'm sure for everyone. . . . I recall that [N.R.E.] was emotional then [at the time of the consent], as she is today, and I can certainly understand that." Judge Peuler went on to say that "it was normal for [N.R.E.] to be emotional like that at such a time." Still, Judge Peuler found her consent to be informed and voluntary. These statements by Judge Peuler comport with our supreme court's observation that such emotion is "to be expected of any mother when she gives up a child" and does not mean the consent was involuntary and unknowing. In re Adoption of K, 24 Utah 2d 59, 61, 465 P.2d 541, 542 (1970); accord In re Adoption of S, 572 P.2d 1370, 1373-74 (Utah 1977).

In fact, this case is quite similar to Adoption of S, 572 P.2d at 1370, in which the natural mother "was distraught and in tears" when she gave her consent. Id. at 1373. There, as in this case, the judge "placed particular emphasis on her testimony to make sure she understood her rights, and that her consent was given freely and voluntarily." Id. Even so, though the mother was emotional at the time of consent, "[t]here was no question in the judge's mind she fully understood the procedure." Id. The supreme court deferred to that trial judge's finding, just as we defer to Judge Peuler's findings here. See id. at 1374.

4. These issues are (1) whether the use at the consent hearing of language about termination of rights, as opposed to irrevocability of consent, confused N.R.E. so as to place her knowledge of the consequences of her consent in question; (2) whether Judge Peuler incorrectly applied Utah Code Ann. § 78-30-4.20 (1996), violating N.R.E.'s due process rights under the United States and Utah Constitutions; (3) whether Judge Peuler incorrectly refrained from considering the child's best interests in the context of the Rule 60(b)(3) motion, violating Utah Code Ann. §§ 78-3a-414(4), 78-30-1.5 (1996), and N.R.E.'s constitutional rights; and (4) whether the irrevocable consent provision of the adoption statute is facially unconstitutional and whether Judge Peuler incorrectly interpreted that provision in determining that N.R.E.'s consent was indeed irrevocable.

Regarding the issue of whether the trial court erred in not considering the child's best interests in the trial on the Rule 60(b)(3) motion, not only did N.R.E. not raise the many bases upon which she now contends the trial court should have addressed best interests, but N.R.E. specifically and repeatedly objected to a consideration of the child's best interests at the trial.

5. Also, in motions filed in this court while this appeal was pending, N.R.E. requested permission to correct the record with a transcript she arranged to have prepared of the May 15, 1997 hearing and to supplement the record with a transcript of an October 23, 1997 pretrial hearing. We deferred our resolution of those motions pending plenary presentation of this case and deny the motions now.

First, regarding N.R.E.'s motion to correct the record, the record contains a videotape of the May 15, 1997 hearing. Thus, we were able to actually view the tape and have no need of another transcript.

Second, regarding the motion to supplement the record with the October 23, 1997 transcript, N.R.E. hopes to establish through this transcript that she asked about the child's best interests in a pretrial hearing, thus preserving the issue for appeal. However, we have already noted in this opinion that not only was the issue of the child's best interests not properly preserved for appeal at trial, but N.R.E. actually objected to any discussion or evidence about the child's best interests at trial. Beyond that, the Rule 60(b)(3) trial was solely about whether fraud and undue influence were grounds for N.R.E. to revoke her consent and was not the place for the trial court to consider the child's best interests. We therefore have no need of any evidence showing N.R.E. raised this issue at a pretrial hearing.