M.M. v. State (In re D.S.)

M.M. v. State (In re D.S.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of D.S., S.S., and I.M.,
persons under eighteen years of age.

______________________________

M.M.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020430-CA
 

F I L E D

(April 17, 2003)
 

2003 UT App 108

 

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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 Carol L. Verdoia, Salt Lake City, for Appellee

Martha Pierce and Elizabeth Knight, Salt Lake City, Guardians Ad Litem

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Before Judges Jackson, Bench, and Orme.

ORME, Judge:

It is questionable whether Appellant's opening brief adequately marshals the evidence. See Atlas Steel, Inc. v. Utah State Tax Comm'n, 2002 UT 112,¶¶41-43, 61 P.3d 1053 (requiring an appellant to "undertake and meet its heavy marshaling burden in its opening memorandum of law on appeal" rather than "in its reply brief"). Although the brief does refer to some testimony supporting each challenged finding, it cannot be said that Appellant's counsel, in undertaking the marshaling burden, has amassed all of the supporting evidence, as required by West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991).

For example, Appellant challenges finding seventeen, which states that she "has repeatedly and continuously failed to provide the children with adequate food, clothing, shelter, education, or other care necessary for [the children's] physical, mental, and emotional health and development." Appellant's purported marshaling as to this finding consists only of the following statement: "The evidence presented at trial that supports this finding deals only with the alleged instability of Appellant's housing situation and that Appellant had not paid child support." It can hardly be said that this vague evidentiary summary includes "every scrap of competent evidence introduced at trial which supports" finding seventeen. Id. (emphasis in original). Noticeably absent from this summary is the fact, as the State pointed out in its brief, that it is the foster parents rather than Appellant who have provided the children with sustenance for a substantial amount of time, both before and after they became the children's foster parents.

However, we need not delve into a finding-by-finding analysis of the adequacy of Appellant's marshaling effort because we can readily resolve this case on the merits. The State presented evidence that supports all of the findings that Appellant challenges. Although much of Appellant's and her mother's testimony is contrary to the State's evidence, we defer to the juvenile court's credibility determinations, and we do not disturb the reasonable inferences it drew from the testimony it heard. See State v. Reed, 839 P.2d 878, 879 (Utah Ct. App. 1992) ("Ultimately, it is the province of the trier of fact to determine which testimony and facts to believe and what inferences to draw from those facts."). Therefore, Appellant's factual challenges are unavailing.

As for the question of whether the trial court was subject to Utah Code Ann. § 78-3a-407(3) (2002), Appellant did not preserve any such argument below and her opening brief fails to "argue plain error or exceptional circumstances, and we therefore decline to address [this] claim." In re S.Y., 2003 UT App 66,¶14, 468 Utah Adv. Rep. 10.

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge