STATE EX REL. TM
| Decision Date | 12 June 2003 |
| Docket Number | No. 20020570-CA.,20020570-CA. |
| Citation | 2003 UT App 191,73 P.3d 959 |
| Parties | STATE of Utah, in the interest of T.M., K.M., and N.M., persons under eighteen years of age. T.M. and S.M., Appellants, v. State of Utah, Appellee. |
| Court | Utah Court of Appeals |
Gary L. Bell, Salt Lake City, for Appellants.
Mark L. Shurtleff, Attorney General, Carol L. Verdoia, and John M. Peterson, Assistant Attorneys General, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before BILLINGS, Associate P.J., and DAVIS and ORME, JJ.
¶ 1 T.M. (Father) and S.M. (Mother) (collectively, Parents) appeal the juvenile court's order terminating Parents' parental rights to T.M., N.M., and K.M. (Children). We affirm in part, reverse in part, and remand.
¶ 2 Parents are the natural parents of T.M., K.M., and N.M. In October 1997, Parents voluntarily submitted to protective supervision services through the Division of Child and Family Services (DCFS) after allegations that Children were living in unsanitary conditions at home. On February 26, 1998, DCFS filed a Petition for Protective Supervision Services based upon further allegations of physical neglect and because Parents had failed to respond to voluntary services. Parents requested appointed counsel, and due to their indigence the juvenile court appointed counsel to represent them. On June 4, 1998, Children were adjudicated abused or neglected. The juvenile court allowed Children to remain in the home, but ordered DCFS to provide protective supervision services.
¶ 3 On September 15, 1998, Parents stipulated to an amended custody petition and for the second time, the juvenile court adjudicated Children neglected. The juvenile court ordered T.M. remain with the great-grandmother and placed K.M. and N.M. with DCFS. The juvenile court ordered DCFS to prepare a service plan and ordered Parents to comply with the service plan. The juvenile court also appointed conflict counsel to represent Father. On October 22, 1998, the juvenile court ordered DCFS to provide reunification services.
The juvenile court converted the agreement into an order and allowed T.M. to return home in April 2000, pursuant to the terms of the agreement.
¶ 5 At an evidentiary hearing on June 29, 2000, Judge Valdez found Parents were not in compliance with the agreement because Parents had failed to participate in domestic violence counseling, provide proof of employment, and become self-sufficient. Accordingly, Judge Valdez entered findings of fact and conclusions of law on July 7, 2000, adjudicating Parents "unfit" pursuant to statute and ordering trial to proceed on the best interests of the children.
¶ 6 On September 27, 2000, Parents filed a Motion to Reconsider, which was denied on October 6, 2000. On October 6, 2000, Parents filed a motion seeking to recuse Judge Valdez and to have the case reassigned. Judge Valdez certified the recusal motion to the presiding judge for determination and on October 19, 2000, Judge Behrens entered the juvenile court's Order of Recusal and Reassignment. The matter was reassigned to Judge Hornak.
¶ 7 On March 26, 2001, a trial was held on the best interests of the children. At the onset of trial, appointed counsel for Parents indicated to the juvenile court that after consulting with other attorneys, Parents wished to discharge court-appointed counsel and proceed with a private attorney. In addition, Mother stated on the record her reasons for wanting new counsel and why Parents waited until the onset of trial to move for substitution of counsel. The juvenile court ruled that the trial would proceed and that Parents could either proceed pro se or with their presently-appointed counsel. The juvenile court made no further inquiry as to Parents' dissatisfaction with appointed counsel. Parents opted to keep their court-appointed counsel rather than proceed pro se.
¶ 8 On June 5, 2002, the juvenile court entered its findings of fact, conclusions of law, and order terminating Parents' parental rights. Parents now appeal.
¶ 9 First, Parents argue the juvenile court erred in terminating their parental rights without first making findings required by the amended version of Utah Code Ann. § 78-3a-407 (2002) (termination statute), effective May 6, 2002. Determining "which version of the termination statute applie[s] is a matter of statutory interpretation, which presents a `question[ ] of law which we review for correctness, according no particular deference to the [juvenile] court's interpretation.' " In re S.Y., 2003 UT App 66, ¶ 10, 66 P.3d 601 () (quoting State v. Coleman, 2001 UT App 281, ¶ 5, 34 P.3d 790). However, when "`a party ... fails to bring an issue to the [juvenile] court's attention,' that party is `barred from asserting it on appeal' absent a showing of `exceptional circumstances or plain error.'" Id. (alterations in original) (quoting Brigham City v. Stuart, 2002 UT App 317, ¶ 14, 57 P.3d 1111). ¶ 10 Second, Parents assert the juvenile court erred when it failed to inquire into their complaints regarding court-appointed counsel before denying their request to be represented by private counsel. We review "` court's failure to investigate a... timely substitution request [made by an indigent party with appointed counsel]'" under a correction of error standard. In re C.C., 2002 UT App 149, ¶ 13, 48 P.3d 244 () (quoting State v. Vessey, 967 P.2d 960, 962 (Utah Ct.App.1998)).
¶ 11 Third, Parents contend the juvenile court erred in relying on a stipulation agreement to adjudicate Parents "unfit" under subsection 408(2) of the termination statute. See Utah Code Ann. § 78-3a-408(2) (2002). "Given that the facts were stipulated, we review the conclusions drawn by the juvenile court for correctness." In re N.K.C., 1999 UT App 345, ¶ 7, 995 P.2d 1. However, when a party "fails to bring an issue to the [juvenile] court's attention, that party is barred from asserting it on appeal absent a showing of exceptional circumstances or plain error." In re S.Y., 2003 UT App 66 at ¶ 10, 66 P.3d 601 (alterations in original) (quotations and citation omitted).
¶ 12 Fourth, Parents maintain that the juvenile court committed plain error by not declaring a mistrial following the recusal of Judge Valdez and reassignment of the case. To prevail on a claim of plain error, Parents must establish that "(i) [a]n error exists; (ii) the error should have been obvious to the ... court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).
¶ 13 Parents argue the juvenile court erred in terminating their parental rights without making findings required by an amendment to the termination statute. See Utah Code Ann. § 78-3a-407 (2002). The amendment at issue, effective May 6, 2002, see id. (Amendment Notes), provides that "[i]n any case in which the [juvenile] court has directed [DCFS] to provide reunification services to a parent, the court must find that [DCFS] made reasonable efforts to provide those services before the court may terminate the parent's rights." Id. § 78-3a-407(3)(a).
¶ 14 On October 22, 1998, the juvenile court entered an order requiring DCFS to provide Parents with reunification services. Later, on June 5, 2002, the juvenile court terminated Parents' parental rights pursuant to section 78-3a-407. The juvenile court did not include in the termination order a finding that DCFS made reasonable efforts to provide reunification services. In re S.Y., 2003 UT App 66, ¶ 14, 66 P.3d 601.
¶ 15 In other cases presenting this same retroactivity argument we have "decline[d] to address" the issue on the merits because it was not addressed by the juvenile courts and "[o]n appeal, [the parties have] not argue[d] plain error or exceptional circumstances." Id.
¶ 16 However, Parents here argue exceptional circumstances on appeal. We agree with Parents that the exceptional circumstances exception applies. "[T]he `exceptional circumstances' rubric [may be employed] where a change in law or the settled interpretation of law color[s] the failure to have raised an issue at trial." State v. Irwin, 924 P.2d 5, 10 (Utah Ct.App.1996). In the instant case, an amendment to the termination statute now requires juvenile courts to make findings that DCFS provided reasonable reunification efforts prior to terminating parental rights. See Utah Code Ann. § 78-3a-407(3)(a). We conclude the amendment was "a change in law or the settled interpretation of law [that] colored the failure to have raised [the retroactivity] issue at trial" in this case. Irwin, 924 P.2d at 10. Accordingly, we proceed to the merits.
¶ 17 It is a "well-established rule that statutory enactments which affect substantive or vested rights generally operate only...
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