R.D. v. R.D.

----ooOoo----

In the matter of the adoption of A.K.
and J.K., minors. R.D.,
Appellant,

v.

R.D.,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990582-CA

F I L E D
December 21, 2000 2000 UT App 370 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
William R. Morse, Salt Lake City, for Appellant
James H. Woodall, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

"We will not overturn a trial court's decision to terminate parental rights unless the findings are clearly erroneous." In re E.R., 918 P.2d 162, 164 (Utah Ct. App. 1996). A trial court has the authority to terminate a parent's rights if it finds that the parent has abandoned his child. See Utah Code Ann. § 78-3a-407(1) (Supp. 1996). Prima facie evidence of abandonment includes a parent's "fail[ing] to communicate with the child by mail, telephone, or otherwise for six months." Utah Code Ann. § 78-3a-408(1)(b) (Supp. 1998). It is undisputed that appellant has had no physical contact with his children since 1992 and had not communicated with them since 1993--a period of time well in excess of the statutory period. Moreover, the trial court, which is in the best position to weigh the credibility and demeanor of each of the parties, was not swayed by appellant's arguments as to why his long absence should have been excused.(1) The record shows that appellant was unable to rebut the prima facie evidence of abandonment, and this evidence alone is sufficient to support the court's termination of appellant's parental rights.

Appellant also asserts that sections 78-3a-407 and -408 violate his due process rights by allowing the court to take away his parental rights upon a showing of six months of no contact--a problematic position given that appellant's lack of contact was more on the order of six years. In any event, appellant failed to raise this issue at the trial level, and "'issues not raised at trial cannot be argued for the first time on appeal.' This rule applies to all claims, including constitutional questions, unless the [appellant] demonstrates that 'plain error' occurred or 'exceptional circumstances' exist." Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) (quoting State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)). Because appellant argues neither plain error nor exceptional circumstances, we do not address this claim.

To prevail on his claim of ineffective assistance of counsel, appellant must show that counsel's performance was objectively deficient and that the deficient performance prejudiced his case. See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994), cert. denied, 890 P.2d 1034 (Utah 1994). The trial court terminated appellant's parental rights based on its finding that he abandoned his children. The evidence that he had not seen or talked to his children in at least six years was undisputed and there is nothing that counsel could have done at trial to change that fact. Against this reality, appellant has failed to satisfy his burden of showing that absent counsel's allegedly deficient performance,(2) there was a reasonable likelihood that his parental rights would not have been terminated.

Affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge
 

1. In fact, the trial court commended appellant for his candor in acknowledging the mistakes he made in the past but concluded that the harm done by his failure to stay in contact with his children for such a long period of time was irreversible.

2. "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.