State of Utah, in the interest of M.S.

Annotate this Case
State of Utah, in the interest of M.S., a person under eighteen years of age, Case No. 20000190-CA, Filed May 17, 2001 IN THE UTAH COURT OF APPEALS


State of Utah, in the interest of M.S.,
a person under eighteen years of age.



State of Utah,

(Not For Official Publication)

Case No. 20000190-CA

May 17, 2001 2001 UT App 161 -----

Third District Juvenile, Salt Lake Department
The Honorable Olaf A. Johansson

Matthew Hilton, Springville, for Appellant
Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem


Before Judges Bench, Davis, and Thorne.

THORNE, Judge:

Appellant argues the Guardian Ad Litem (the GAL) is without statutory authority to file a termination petition. We review questions of statutory interpretation for correctness, giving no deference to the lower court's conclusions. See Adkins v. Uncle Bart's, Inc., 2000 UT 14,¶11, 1 P.3d 528.

Utah Code Ann. § 78-3a-404 (Supp. 1997), the provision explaining who may file a termination petition, states that "[a]ny interested party . . . may file a petition for termination of the parent-child relationship with regard to a child." Id. (emphasis added). The unambiguous language of section 78-3a-404 clearly allows any interested party, including the GAL, whose primary responsibility is the best interest of the child, see id. § 78-3a-912(2), to file a termination petition. Accordingly, appellant's argument fails.

Appellant next argues the juvenile court erred when it retroactively applied the July 1, 1998 amendment to Utah Code Ann. § 78-3a-312, which allows the juvenile court to "combine the permanency hearing and the hearing on termination of parental rights," to the present matter. Utah Code Ann. § 78-3a-312(6)(c) (Supp. 2000).(1) Appellant contends the juvenile court's decision to hear the GAL's Motion for No Reunification Services, the Verified Petition to Terminate Parental Rights, and appellant's Motion to Restore Custody, all in one hearing, constituted an unlawful combination of a termination and a permanency hearing.

Recently, we explained that the amendment to section 78-3a-312, which allows the juvenile court to combine termination and permanency hearings, is effective if the motion for the permanency plan hearing was filed after July 1, 1998. See In re E.R., 2001 UT App 66,¶16 n.10, 416 Utah Adv. Rep. 22. In the present matter, the GAL filed the Motion for No Reunification Services on September 28, 1998, and the Verified Petition for Termination of Parental Rights on December 1, 1998, while appellant filed the Motion to Restore Custody on December 2, 1998. All documents were filed after July 1, 1998, when section 78-3a-312(6)(c) was in effect. We therefore conclude that the juvenile court did not err by combining the two hearings.

Appellant also argues that the evidence was insufficient to support the juvenile court's decision terminating appellant's parental rights. "To successfully challenge the juvenile court's findings of fact, [appellant] must '"marshal all of the evidence supporting the trial court's findings and then . . . show the evidence to be legally insufficient to support the findings."'" In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998) (citations omitted).

Appellant has failed to marshal the evidence. Indeed, appellant only reargues the points favorable to her position, the same points the juvenile court has already considered. Clearly this does not satisfy appellant's duty to marshal. Appellant attempts to circumvent the marshaling requirement by arguing that she had no duty to marshal because the factual representations made in appellant's brief went uncontested. Appellant is mistaken. Accordingly, because appellant failed to marshal the evidence, we "assume[] that the record supports the [court's] findings." Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991).

Finally, appellant argues that trial counsel's representation was ineffective. To prevail on a claim for ineffective assistance, appellant must show that (1) counsel's performance was deficient and below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced the defendant. See State v. Martinez, 2001 UT 12,¶16, 414 Utah Adv. Rep. 51.

Appellant contends that six separate incidents support her argument that trial counsel's performance was below average. For example, appellant points to trial counsel's failure to request an evidentiary shelter hearing after M.S.'s removal, as well as his failure to request that the parents' termination hearings be bifurcated so the father's case would not taint appellant's case. After reviewing all six incidents, we cannot conclude that trial counsel's decisions were not related to trial strategy, and therefore, were not objectively reasonable choices designed to facilitate appellant's reunification with M.S. Finally, appellant has failed to demonstrate that counsel's performance prejudiced her, and that absent counsel's deficient performance a different result would surely have occurred.

The judgment of the juvenile court is therefore affirmed.

William A. Thorne, Jr., Judge -----


Russell W. Bench, Judge

James Z. Davis, Judge

1. Although we cite to the 2000 provision of the Code, doing so does not alter our analysis.