State of Utah, in the interest of M.H., A.H., A.H., S.H., and K.H.

Annotate this Case
State of Utah, in the interest of M.H., A.H., A.H., S.H., and K.H., persons under eighteen years of age, Case No. 20001115-CA, Filed October 12, 2001 IN THE UTAH COURT OF APPEALS


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

State of Utah,



(Not For Official Publication)

Case No. 20001115-CA

October 12, 2001 2001 UT App 298 -----

Second District Juvenile, Ogden Department
The Honorable Kathleen M. Nelson

Maurice Richards and Jerald N. Engstrom, Ogden, for Appellant
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem


Before Judges Greenwood, Billings, and Davis.


Appellant R.L.H. appeals from an order terminating his parental rights.

R.L.H. first argues the juvenile court denied his right to the assistance of counsel by refusing to appoint substitute counsel on the first day of trial. Contrary to his assertion that the request for counsel was made two weeks prior to trial, it is clear from the record that R.L.H. did not mail the request to the court prior to trial. The juvenile court found that R.L.H. had twice discharged appointed counsel. R.L.H. also filed a written pretrial motion stating his dissatisfaction with appointed counsel and requesting that he be allowed to proceed pro se and cross-examine the State's witnesses. The juvenile court found that it had advised R.L.H. of his right to representation and of the consequences of his decision to proceed pro se in an October 2, 2000 hearing. The juvenile court concluded that R.L.H. had voluntarily and knowingly waived his right to have an attorney represent him and denied the request made at the start of the trial on October 30, 2000.(1) The court further found that a continuance would not be in the children's best interest.

R.L.H. contends that he was denied his constitutional right to counsel, citing only criminal cases as authority. The State correctly notes that the termination proceeding is a civil matter and the right to counsel is statutory; however, R.L.H. wholly fails to address this distinction. In addition, R.L.H. has not provided a transcript of the October 2 hearing on his motion seeking to have counsel released. It is appellant's responsibility to provide a record of all evidence relevant to a finding or conclusion challenged on appeal. See Utah R. App. P. 11(e)(2). In the absence of an adequate record on appeal, this court cannot address the issues raised and will presume the correctness of the disposition made in the trial court. SeeState v. Rawlings, 829 P.2d 150, 152-53 (Utah Ct. App. 1992). We conclude that the juvenile court did not err in denying appointment of substitute counsel.

R.L.H. also contends the juvenile court denied his right to due process by refusing his request to be unshackled. At the time of trial, R.L.H.'s status as a federal prisoner in Utah for trial on state criminal charges required him to remain shackled. The juvenile court ensured that R.L.H. was able to write and function by handling papers. State v. Mitchell, 824 P.2d 469, 472-73 (Utah Ct. App. 1991), which held that a criminal defendant tried before a jury is entitled to the "indicia of innocence," is distinguishable. The termination proceeding was a civil bench trial, not a criminal jury trial. R.L.H. has made no factual argument demonstrating that he was prejudiced and has presented no legal authority supporting a right to be unshackled in this civil proceeding. Accordingly, R.L.H. demonstrates no basis in law or fact for his due process claim.

Because R.L.H. otherwise raises no challenge to the merits of the juvenile court's decision to terminate his parental rights, we affirm the decision.

Pamela T. Greenwood,
Presiding Judge

Judith M. Billings, Judge

James Z. Davis, Judge

1. The juvenile court subsequently continued the trial after the close of the State's case to allow R.L.H. to conclude a criminal trial and avoid the possibility of self-incrimination. Counsel was appointed to conduct the examination of R.L.H. during the continued termination trial.