V.H. v. State (In re B.H.)

V.H. v. State (In re B.H.)

IN THE UTAH COURT OF APPEALS

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

______________________________

V.H.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020216-CA
 

F I L E D
(May 22, 2003)
 

2003 UT App 160

 

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Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

Attorneys: Jeffrey J. Noland, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Davis, Greenwood, and Thorne.

GREENWOOD, Judge:

V.H. (Father) first claims error in the juvenile court's determination that he abandoned B.H., V.H., D.H., and A.H. (the children), and its subsequent termination of his parental rights pursuant to Utah Code Ann. § 78-3a-407(1) (2001) (amended in 2002, partially renumbering and adding new subsections). Father argues that because a protective order prohibited him from contacting the children, the juvenile court erred in determining he abandoned the children.

"'We review the trial court's findings of fact for clear error and its legal conclusions for correctness.'" In re C.M., 965 P.2d 590, 591 (Utah Ct. App. 1998) (citation omitted). We cannot conclude that the juvenile court erred in terminating Father's parental rights because, pursuant to section § 78-3a-407, the juvenile court "may terminate all parental rights with respect to one or both parents if it finds any one" of a list of grounds that justify the termination of parental rights. (Emphasis added.) In this matter, the juvenile court terminated Father's parental rights on five of the grounds outlined in section 78-3a-407. On appeal, Father challenges only the juvenile court's determination of abandonment. Therefore, even if the juvenile court erred in determining that Father abandoned the children, there are still four other grounds for terminating Father's parental rights that Father does not appeal, including: abuse, unfitness, token efforts, and failure to properly care for the children during trial periods. Because Father "does not challenge these findings as clearly erroneous and fails to direct this court's attention to any contrary evidence . . . [this court] accept[s] th[e] [juvenile court's] findings as adequately supported by the record and hold[s] that the juvenile court properly terminated [Father]'s parental rights."(1) In re M.E.C., 942 P.2d 955, 960 (Utah Ct. App. 1997) (citing In re P.H., 783 P.2d 565, 570 (Utah Ct. App. 1989) (finding that because mother failed to marshal the evidence the court must "'rely heavily on the presumption of correctness'" (citation omitted))).

Father next argues that the juvenile court's termination of his parental rights should be reversed because he was denied effective assistance of counsel. "'When, as in this case, the claim of ineffective assistance is raised for the first time on appeal, we resolve the issue as a matter of law.'" State v. Gallegos, 967 P.2d 973, 975-76 (Utah Ct. App. 1998) (quoting State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994) (footnote omitted)). Utah Code Ann. § 78-3a-913 (2002) implicitly guarantees parents the effective assistance of counsel in termination proceedings. See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994). "To successfully challenge a claim of ineffective assistance of counsel, [Father] must show that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the case." Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2069 (1984)). "Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective." State v. Diaz, 2002 UT App 288,¶38, 55 P.3d 1131.

"When it is 'easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,' we will do so without addressing whether counsel's performance was professionally unreasonable." Parsons v. Barnes, 871 P.2d 516, 523 (Utah 1994) (citation omitted). "To demonstrate prejudice, [Father] must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Carter v. Galetka, 2001 UT 96,¶31, 44 P.3d 626 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2052). On appeal, Father claims that counsel was ineffective in failing to obtain visitation for him with the children.(2) However, even if we agreed with Father that failing to obtain visitation is objectively deficient, Father cannot establish prejudice. There is nothing before this court that establishes how counsel's failure to obtain visitation affected the other grounds for terminating his parental rights, namely, abuse, unfitness, token efforts, and failure to care for the children during trial periods. To establish ineffective assistance of counsel in parental rights termination proceedings, it is imperative that a parent demonstrate deficient performance and prejudice for each ground justifying termination. Because Father failed to establish deficiencies and prejudice for each ground used to
terminate his parental rights, we cannot determine he was prejudiced. Therefore, we affirm.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. While we affirm the termination of Father's parental rights because he failed to challenge all five bases for termination, we note that the juvenile court did take into account the protective order when it found Father had abandoned the children:

This Court is not unmindful of the existence of the no-contact order against the father. However, he has appeared at numerous hearings with Court appointed counsel and interpreter, but has not petitioned nor moved this Court to modify, stay, or vacate the no-contact order; he has not provided any letters, cards, gifts, or other attempts at support for them; he has paid $60.00 in financial support for the children; he has made little or no effort to restore physical or legal custody to himself for a period in excess of six (6) months[.]

2. Father cites several instances when his various attorneys moved for visitation which was denied due to the protective order, but did not follow up or seek to have the protective order dismissed. Father also asserts that he did not understand what he needed to do to have visitation with the children or to contact DCFS.