D.J. v. State (In re D.J.)

D.J. v. State (In re D.J.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of D.J., a person under eighteen years of age.

______________________________

D.J.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020584-CA
 

F I L E D

(April 10, 2003)
 

2003 UT App 103

 

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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 Billings, Bench, and Greenwood.

BILLINGS, Associate Presiding Judge:

Appellant D.J. Sr. (Father) appeals the juvenile court's termination of his parental rights to D.J. Jr. (Child). Father challenges the sufficiency of the evidence supporting the juvenile court's finding that Father had previously sexually abused Child's half-siblings. Specifically, Father argues that the juvenile court erred by "rel[ying] completely on the first two sentences of paragraph 5 of the [Verified] Petition for its conclusion that the Child is a 'sibling-at-risk.'"

Father concedes that at trial he admitted there was a "petition filed by the State alleging sexual abuse," that "there was a child protection proceeding pending [before Judge Johansson,]" and "that findings had been entered [in that proceeding] regarding sexual abuse of his children from another marriage" to which he "did enter a [rule 34(e)] proffer." See Utah R. Juv. P. 34(e) (2002)).

Moreover, at the trial, counsel for the State said, "[A]s I understand it from Mr. Noland, criminal charges are no longer pending against [Father]. So I would move to strike [the] third sentence of paragraph 5."(1) Counsel for the State then continued,

And with that, I don't know if there could be a dispute about the other two sentences [that Father currently has a child protection case pending in the Third District Juvenile Court before Judge Johansson wherein the court made findings which include sexual abuse of his children from a previous marriage]. It seems like those are findings that this Court has made.

Counsel for Father replied, "This is true, Judge."

At another point in the proceedings, counsel for the State said, "And, Judge, with that, I think, essentially, we're asking for a finding that the child is . . . a sibling-at-risk, based on the sexual abuse that the father perpetrated, as alleged in paragraph 5." Father's counsel made no objections either during or after this colloquy.

On appeal, Father argues that this stipulation does not support a finding that he was the perpetrator of the sexual abuse. We agree that the record could be clearer. However, given the context of the proceeding and Judge Johansson's familiarity with Father from proceeding involving Child's sexually-abused half-siblings, we conclude that Father's admission at trial to amended paragraph 5 of the Verified Petition and to the proffer of counsel for the State essentially amounted to a trial stipulation that Father had previously sexually abused Child's half-siblings. Stipulations in open court are enforceable. See Bagshaw v. Bagshaw, 788 P.2d 1057, 1059 (Utah Ct. App. 1990) (citing Brown v. Brown, 744 P.2d 333 (Utah Ct. App. 1987)).

When we view the record in its totality, including Father's admission to amended paragraph 5 and his counsel's statements at

trial, we conclude that the juvenile court's finding was not clearly erroneous. Affirmed.(2)

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

1. Paragraph 5 made reference to criminal charges previously filed against Father based on allegations of his sexual abuse of his other children. These charges were subsequently dismissed.

2. We do not reach the legal issue of the applicability of the sibling at risk statute, see Utah Code Ann. § 78-3a-103(1)(s)(i)(E) (2002), which Father relied on below, as this issue is not raised on appeal.