S.T. v. State (In re F.T.)

S.T. v. State (In re F.T.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of F.T., a person under eighteen years of age.

_____________________________

S.T.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020771-CA
 

F I L E D
(March 20, 2003)
 

2003 UT App 81

 

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Third District, Salt Lake Department

The Honorable Sharon P. McCully

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

Mark L. Shurtleff and Carol L.C. Verdoia, Salt

Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Bench, and Thorne.

PER CURIAM:

This case is before the court on Appellant's motion for summary reversal on the basis that a portion of the trial on the petition to terminate Appellant's rights was not tape recorded and, therefore, cannot be transcribed. Approximately fifty-seven minutes of the almost three hour trial is missing. The missing portion contains much of the State's cross-examination of Appellant. Appellant contends, pursuant to State v. Tunzi, 2000 UT 38,¶3, 998 P.2d 516, that the remedy is a new trial because re-creation of the record is not practical because of the nature of Appellant's issues on appeal. Appellant was represented by different counsel on appeal than at trial. His claims on appeal are ineffective assistance of counsel and sufficiency of the evidence supporting termination of his parental rights. Appellant argues, as in Tunzi, that a substantial portion of the evidence is missing and that a detailed record is crucial to determination of his appeal. See id.

Appellee argues that Tunzi is distinguishable from this case because, in this case, it is not a significant portion of the evidence missing. Appellee argues that Appellant should be required to attempt to re-create the record pursuant to rule 11(g) of the Utah Rules of Appellate Procedure. In support of its argument, Appellee submits affidavits of the Assistant Attorney General and Guardian Ad Litem, who participated in the trial, as to their recollection of the evidence.(1) Citing the three part test articulated in West Valley City v. Roberts, 1999 UT App 358,¶11 , 993 P.2d 252, Appellee argues that Appellant has not demonstrated that the flaw in the record prejudices him. Appellee also claims that Appellant has not adequately shown that the record cannot be re-created.

Roberts, however, is distinguishable from this case because it involved an administrative hearing in which the City had an affirmative statutory obligation to record the proceedings. Moreover, this court determined in Roberts that Appellant had met the requirements to entitle him to a new hearing because the city's failure to record the proceedings "created a situation which denied appellants meaningful judicial review." Id. at ¶17.

We conclude that Appellant has adequately demonstrated that a substantial (one-third) portion of the evidence at trial is missing from the record and that, because of the nature of the issues raised on appeal, the absence of a detailed record deprives Appellant of an adequate appeal.

We reverse the order terminating Appellant's parental rights and remand for a new trial on the State's petition to terminate parental rights.

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge

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William A. Thorne Jr., Judge

1. The affidavit of the Guardian Ad Litem consists primarily of his conclusion that the cross-examination of Appellant was detrimental to his case rather than helpful.