State of Utah, in the interest of A.B., E.B., N.B., and H.B.

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State of Utah, in the interest of A.B., E.B., N.B., and H.B., persons under eighteen years of age v. State, Case No. 20000770-CA, Filed June 28, 2001 IN THE UTAH COURT OF APPEALS


State of Utah, in the interest of A.B., E.B., N.B., and H.B., persons under eighteen years of age.



State of Utah,

(Not For Official Publication)

Case No. 20000770-CA

June 28, 2001 2001 UT App 203 -----

First District Juvenile, Brigham City Department
The Honorable Larry E. Jones

Dale M. Dorius and Justin C. Bond, Brigham City, for Appellant
Mark L. Shurtleff, John Peterson and Carol L.C. Verdoia, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, and Dianne R. Balmain, Logan, Guardians Ad Litem


Before Judges Greenwood, Billings, and Davis.

DAVIS, Judge:

E.B. (Father) appeals the juvenile court's order terminating his parental rights. Father first argues the court erred by allowing inadmissible hearsay into the trial, which the court later relied on in terminating Father's parental rights. Father contests four statements admitted into evidence: (1) the mother's statement to her children, telling them not to tell police officers that there had been any violence between their parents; (2) the children's statement to their therapist concerning Father's behavior toward them; (3) the therapist's statement about the children's school attendance; and (4) a letter by a social worker concerning Father's attempts to contact the children.

Based upon its findings of fact, the court relied, at least partially, on the first three statements for their truth of the matter asserted. However, the court used the letter merely to explain that the stalking allegation was the basis for a protective order; thus, it was not admitted for the truth of the matter asserted, and is not hearsay.

We need not determine whether the court improperly admitted and relied on the three statements because [t]he pivotal question is whether the error resulted in prejudice sufficient to warrant reversal of the termination order. An error is prejudicial "only if a review of the record persuades the [appellate] court that without the error there was 'a reasonable likelihood of a more favorable result for the defendant.'" In re C.Y., 765 P.2d 251, 254 (Utah Ct. App. 1988) (citations omitted). Based on a review of the record, we determine that there is not a reasonable likelihood that the outcome of the termination hearing would have been more favorable to Father had the juvenile court not allowed these hearsay statements into evidence because there was other properly admitted evidence establishing those same facts. As acknowledged by counsel at oral argument, there was evidence properly before the court, through testimony from the mother, E.W.B., and other witnesses that Father punched his daughter E.W.B. in the stomach, that he assaulted the mother on numerous occasions, and that he was often violent. In addition, Father's parental rights were terminated not only because he was abusive, but also because of his chronic drug abuse, unemployment, and failure to make any efforts respecting his service plan. This independent evidence compels our conclusion that it was harmless error for the juvenile court to consider these statements.

Father next argues that the court abused its discretion in terminating his parental rights because he did not receive adequate services and he was not given time to complete the service plan. However, a parent has no fundamental right to reunification services. See In re N.R., 967 P.2d 951, 956 (Utah Ct. App. 1998). In addition, a court is not bound to continue services merely because services have been commenced. See Utah Code Ann. § 78-3a-311(2)(c) (Supp. 2000). The court may terminate services at any time. See id. Here, termination was based upon unfitness, abuse and neglect, and token efforts--none of which require a showing of reasonable efforts. See In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997) ("[A] juvenile court has the statutory authority to order the termination of a parent's rights based on finding abandonment, neglect, unfitness, and token efforts, regardless of whether the State provided any services, reasonable or not."). Thus, Father's argument fails.

Father next argues that the court erred in allowing the State's expert witness to reference and read from the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) because it was not provided to them in discovery. An expert witness, however, is allowed to use facts or data at trial, as long as it is "of a type reasonably relied on by experts in the particular field in forming opinions or inferences upon the subject." Utah R. Evid. 703. "Facts or data used by a properly qualified expert in forming an opinion need not be in evidence . . . ." Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 839 (Utah 1984). The DSM-IV is a standard reference manual, regularly relied on by experts in this field. See, e.g., State v. Bakalov, 1999 UT 45,¶36 n.6, 979 P.2d 799 (noting expert's reliance upon the DSM-IV). Additionally, the definition read aloud from the DSM-IV mirrored testimony previously given by Ms. Ure, which received no objections. Also, Father stipulated to the admission of the 1994 psychological evaluation which specifically referred to DSM-IV definitions. For these reasons, the court did not err when it allowed the State's expert to reference the DSM-IV.

Finally, Father argues that the court abused its discretion by disallowing Father's use of the mother's journal in cross-examination because Father did not produce it in discovery. The admissibility of an item of evidence is a legal question; "[h]owever, the trial court has a great deal of discretion in determining whether to admit or exclude evidence." Gorostieta v. Parkinson, 2000 UT 99,¶14, 17 P.3d 1110. Whenever a party fails to disclose a document when there is a court order to do so, that party shall not be allowed to use the document "unless the failure to disclose is harmless or the party shows good cause for the failure to disclose." See Utah R. Civ. P. 37(f). Because the evidence against Father was overwhelming, he was not prejudiced by the exclusion of the journal; also, the court gave Father broad latitude to cross-examine the mother, and would address issues of impeachment if they arose. Thus, the trial court did not abuse its discretion by disallowing use of this journal.


James Z. Davis, Judge -----


Pamela T. Greenwood,
Presiding Judge

Judith M. Billings, Judge