M.T. v. State (In re I.B.)

M.T. v. State (In re I.B.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of I.B. and N.B., persons under eighteen years of age.

______________________________

M.T.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020399-CA
 

F I L E D
(March 6, 2003)
 

2003 UT App 65

 

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Third District Juvenile, Salt Lake Department

The Honorable Kimberly K. Hornak

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 Jackson, Bench, and Davis.

DAVIS, Judge:

First, Appellant claims her counsel was ineffective for failing to cross-examine the State's witness, providing inadequate evidence on Appellant's behalf, and offering Appellant's testimony through proffer. Parents in termination proceedings have the right to effective assistance of counsel. See Utah Code Ann. § 78-3a-913(1)(a) (2002) ("The parents . . . shall be informed that they have the right to be represented by counsel at every stage of the proceedings.")(1); In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (holding that parents' counsel during termination proceedings must be effective). "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. Silva, 2000 UT App 292,   ¶12, 13 P.3d 604 (quotations and citations omitted).

To succeed on a claim of ineffective assistance, an appellant "must show that counsel's performance was objectively deficient and that counsel's deficient performance prejudiced the case." E.H., 880 P.2d at 13. To show prejudice, an appellant "must proffer sufficient evidence to support a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Silva, 2000 UT App 292 at    ¶22 (quotations and citations omitted). If we hold that the "appellant has not satisfied [her] burden of showing prejudice, we need not determine whether trial counsel's performance was deficient." E.H., 880 P.2d at 13.

In this case, Appellant has failed to show prejudice. The unchallenged findings of fact show: (1) on June 16, 2001, the father assaulted Appellant in the presence of the children and knocked one child from Appellant's arms; (2) Appellant has a substantial criminal history of drug abuse and domestic violence in the presence of the children; (3) on June 21, 2001, Appellant was arrested on several outstanding warrants; (4) Appellant regularly leaves the children with family members or friends without notice or information about where she is going, when she will return, or how to contact her; (5) Appellant signed but failed to complete a voluntary service plan that called for a drug and alcohol assessment and random urine analysis testing; (6) Appellant signed but failed to successfully complete any of the requirements of a reunification service plan that required her to attend a drug and alcohol assessment and follow its recommendations, attend drug treatment, attend a domestic violence/anger management class, attend a parenting class, submit to a psychological evaluation and follow its recommendations, obtain employment, obtain and maintain stable housing, participate in drug court, and comply with random drug testing; (7) Appellant has failed to provide the children with food, shelter, clothing, or other care for a period exceeding six months and has had inconsistent visits with the children; and (8) the children have thrived in the grandmother's care.

In light of the unchallenged findings of fact, and even if we were to consider Appellant's affidavit,(2) Appellant has offered no evidence that would have changed the result of the hearing had counsel brought it to the trial court's attention.

Second, Appellant argues the trial court erred by accepting the proffer of her testimony in violation of rule 43(b) of the Utah Rules of Juvenile Procedure. We do not address this issue because Appellant did not preserve it for appeal. See Brinkerhoff v. Schwendiman, 790 P.2d 587, 589 (Utah Ct. App. 1990) ("It is axiomatic in our adversary system that a party must raise an objection in an earlier proceeding or waive its right to litigate the issue in subsequent proceedings.").

Accordingly, we affirm.

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James Z. Davis, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge

1. For convenience, we cite to the most recent version of the Utah Code. There has been no significant change to section 78-3a-913(1)(a) that would affect our analysis.

2. We denied Appellant's Motion to Supplement Appellant's Brief with Appellant's Affidavit on October 15, 2002.