State of Utah, in the interest of D.F. and E.F.

Annotate this Case
State of Utah, in the interest of D.F. and E.F., persons under eighteen years of age., Case No. 20000195-CA, Filed September 7, 2001 IN THE UTAH COURT OF APPEALS


State of Utah, in the interest of D.F. and E.F.,
persons under eighteen years of age.



State of Utah,

(Not For Official Publication)

Case No. 20000195-CA

September 7, 2001 2001 UT App 256 -----

Third District Juvenile, Salt Lake Department
The Honorable Merrill J. Hermansen

Theodore R. Weckel, Springville, for Appellant
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Karen Flynn, Salt Lake City, Guardians Ad Litem


Before Judges Bench, Davis, and Orme.

BENCH, Judge:

Appellant K.F. (Mother) argues on appeal the following constitutional issues: (1) the Child Welfare Reform Act is unconstitutionally vague; (2) the process by which the State removed her children, and ultimately terminated her parental rights to them, was flawed in that it did not comport with due process; and (3) her eldest child, D.F., was "seized" without a warrant in violation of the Fourth Amendment. "As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances." State v. Brown, 856 P.2d 358, 359 (Utah Ct. App. 1993). In her brief, Mother cannot point to a specific reference in the record where these three constitutional issues were raised before the trial court. Instead, Mother claims that her attorney "alluded to these rights in his closing argument." We have previously held that the "'mere mention' of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal." Id. at 361 (citation omitted).

For an issue to be properly preserved for appellate review, it must "be raised to a level of consciousness such that the trial judge can consider it." Id. (internal quotations and citations omitted). Mother's trial counsel made no specific objections to the constitutionality of the Child Welfare Reform Act, nor its application to Mother throughout the process, including the six-day trial on the State's termination petition. Mother also never raised her Fourth Amendment argument during the shelter hearing or trial. Accordingly, the trial court made no mention of these arguments in its Findings of Fact and Conclusions of Law. Therefore, we conclude that these issues were not sufficiently raised to the trial court's awareness to allow the trial court to rule on them, and we cannot consider them on appeal. Additionally, we find no plain error on the part of the trial court or exceptional circumstances that would allow us to review these issues.

Mother's next argument is that the State presented insufficient evidence to prove her parental rights should be terminated. We have previously determined that "a party challenging the juvenile court's findings must marshal the evidence in support of those findings, and then show that the marshaled evidence is insufficient, as a matter of law, to support the findings." In re S.L., 1999 UT App 390,¶20, 995 P.2d 17. Mother does not marshal the evidence in support of the trial court's findings; instead, she simply reargues her own evidence. Therefore, we accept the trial court's findings of fact as true, and conclude that these findings adequately support the trial court's determination to terminate Mother's parental rights.

Mother also alleges that because she was not provided with reunification services, she was not afforded equal protection under the law. In briefing this argument, Mother offers nothing more than an oblique statement that she was discriminated against because she has a non-mainstream dietary code, and a citation to a case that she claims "alluded to the insidious form of discrimination in the context of equal protection." "'[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.'" State v. Bishop, 753 P.2d 439, 450 (Utah 1988) (alteration in original) (citation omitted). Mother has failed to either "cite to the record where the alleged actions occurred or provide any authority or argument as to why such actions constituted reversible error." Id. Because Mother has not complied with the briefing requirements of Rule 24 of the Utah Rules of Appellate Procedure, we decline to address her argument.

Mother's final challenge is to the trial judge's failure to recuse himself after Mother filed an affidavit pursuant to Rule 63 of the Utah Rules of Civil Procedure alleging bias or prejudice. The State concedes, and we agree, that the trial judge should not have ruled on Mother's Rule 63 motion himself. See Barnard v. Murphy, 882 P.2d 679, 682 (Utah Ct. App. 1994). However, the trial judge's error in initially ruling on the motion himself does not warrant reversal because Mother's affidavit was not timely.

Rule 63(b)(1)(B) states in part: The motion shall be filed after commencement of the action, but not later than 20 days after the last of the following: . . . (iii) the date on which the moving party learns or with the exercise of reasonable diligence should have learned of the grounds upon which the motion is based. Id. The incident upon which Mother bases her affidavit occurred on November 19, 1999, when the trial judge fell asleep briefly during Mother's testimony. Mother filed her motion to recuse on January 3, 2000, forty-seven days after the incident occurred. Since Mother was present in court during the incident, and during the in-chambers conference where the trial judge asked that the portion of testimony he missed be read back to him, we find no legitimate reason for her delay in filing the motion. Mother's motion was, therefore, not timely filed.

Accordingly, we affirm the judgment of the trial court.

Russell W. Bench, Judge -----


James Z. Davis, Judge

Gregory K. Orme, Judge