State v. State

• Decision Date: 06 August 2020
• Docket Number: No. 20190808-CA,20190808-CA
• Parties: STATE of Utah, IN the INTEREST OF C.M.R., B.T.R., P.J.R., F.S., and O.S., Persons Under Eighteen Years of Age. C.S., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

473 P.3d 184

STATE of Utah, IN the INTEREST OF C.M.R., B.T.R., P.J.R., F.S., and O.S., Persons Under Eighteen Years of Age.C.S., Appellant,

v.State of Utah, Appellee.

No. 20190808-CA

Court of Appeals of Utah.

Filed August 6, 2020

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 C.S. (Mother) appeals the juvenile court's order adjudicating abuse, neglect, and dependency. Mother argues that the court erred in concluding that she abused her children without also making an express finding of harm. Alternatively, Mother asserts that her counsel (Trial Counsel) rendered ineffective assistance in advising her to enter admissions to the petition without adequate investigation. We affirm in part and remand for a limited evidentiary hearing.

BACKGROUND

¶2 The Division of Child and Family Services (DCFS) filed a petition in July 2019 seeking protective supervision of Mother's five children (collectively, the Children). Based on information DCFS received from several referents, the petition alleged that the Children were abused, neglected, and dependent. Specifically, the petition asserted that Mother did not provide the Children with adequate nutrition and supervision; the Children lived in an unsanitary and unsafe home; Mother punished the Children with a hammer, fork, belt, and stick; Mother was unwilling to work with DCFS to address her lack of parenting skills, which exacerbated the Children's behavioral issues and led to contentious and inconsistent visitation; and finally, Mother had recently been arrested. With regard to one child, the petition alleged that, while in the waiting room of a family counseling center, a witness observed,

Mother grabbed [the child] by the back-collar area of his shirt in such a manner that it restricted his ability to breathe and caused him to choke. Mother shoved his face into the corner with force and told him he needed to think about what he had done. [The child] told Mother he was having difficulty breathing and that Mother was hurting him. Despite [the child's] statements Mother did not let up on his shirt or the forcing of his face into the corner.¹

¶3 The juvenile court appointed Trial Counsel to represent Mother, and the parties reached a mediated agreement in response to the petition.² At the adjudication hearing held by the court following mediation, the State indicated that Mother would enter a plea responding to the allegations in the petition pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure. See Utah R. Juv. P. 34(e) ("A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.").

¶4 The juvenile court explained that under rule 34(e), a parent who does not specifically deny the State's allegations essentially enters a "no-contest" plea in which that parent neither admits nor denies an allegation, but such an answer under the rule is treated "as if it were an admission." The court further explained that each parent enjoyed "the right to deny the allegations," in which case the matter would go to trial and the State would bear "the burden of proving the allegations in the ... petition by ... clear and convincing evidence." Mother stated that she understood the consequences of not specifically denying the allegations in the petition under rule 34(e), namely, that she would be giving up her right to contest the allegations contained in the petition and that her right to appeal would be limited. Mother further explicitly confirmed that she was not under the influence of any drugs, alcohol, or medication during the hearing; that she was thinking clearly; and that she had not been forced, threatened, or promised anything to respond in a particular way to the allegations in the petition.

¶5 The juvenile court also asked Mother if she understood that by not denying the allegations under rule 34(e), she gave the court "authority to enter orders that would affect [her]. This could include orders for custody, visitation, child support, treatment requirements and parental rights." The court informed Mother that if she "wanted more time" to ponder her decision, it would "be happy" to accommodate her. Mother assured the court that she was ready to proceed, and she invoked rule 34(e) with respect to the paragraphs of the petition that detailed the abuse and neglect suffered by the Children. The court then accepted Mother's rule 34(e) admissions.

¶6 After a recess, the court reconvened. Mother and Trial Counsel immediately informed the court that there was an apparent conflict stemming from Trial Counsel's representation of Mother's former brother-in-law in a different case. Mother made a motion to withdraw her rule 34(e) admissions and set the matter for trial. The State opposed the motion. The guardian ad litem also opposed withdrawal, pointing out that by conducting an extensive "colloquy of rights," the court ensured that Mother had made "a very knowing and voluntary admission to the facts." Trial Counsel responded that Mother had realized, after talking to Trial Counsel during the recess, that the rule 34(e) plea would be taken "as an admission." Trial Counsel also revealed that Mother had attempted to alert Trial Counsel to the potential conflict by writing a note to her during the hearing.

¶7 The court denied Mother's oral motion to withdraw her plea, but it granted Mother leave to file a written motion to withdraw within thirty days, reasoning that Mother might determine that it was "okay" to accept the plea "after some more consideration as to what a [ rule 34(e) plea] means." However, the court noted that it was "very careful" during the colloquy to confirm that Mother knew what she was doing and was acting voluntarily. With regard to the conflict of interest, the court asked Trial Counsel, "Other than the technical relationship, was there anything in your representation that was awry or that you look back on and say well I may have advised her differently had I ... known of the conflict ... ?" Trial Counsel responded that her advice "would be the same," pointing out that the conflict did not influence her because, at the time she rendered her advice, she did not know Mother and Mother's ex-brotherin-law were, at one time, related. The court stated that even in the presence of the conflict, it did not observe anything "per se deficient in the way" Trial Counsel represented Mother. Mother agreed that there was nothing "specifically" wrong "in the way [Trial Counsel] represented" her in court but that she sought new counsel merely "because of the relationship that exists." The court granted Trial Counsel's motion to withdraw and appointed substitute counsel (Conflict Counsel), who entered an appearance for Mother approximately a month after the adjudication hearing.

¶8 About three weeks after the hearing, based on Mother's rule 34(e) admissions, the juvenile court entered an adjudication order that deemed the allegations in the petition to be true and found the Children to be abused, neglected, and dependent. The court made no express finding that the Children had been harmed, but it did include in its written decision a detailed account of the incident in which Mother choked one of the Children by the shirt collar at a counseling session and stated that its findings of abuse, neglect, and dependency were based on, among other things, that incident. The court ordered that a Child and Family Service Plan (the Plan) be prepared for the family and each child, set a primary permanency goal of reunification, and ordered DCFS to provide reunification services to Mother. The court's adjudication findings were used to generate the Plan, which required Mother to take those steps necessary to provide a home where the Children would be safe, nurtured, loved, and protected from any form of abuse or neglect. See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis Supp. 2019) ("[C]hild and family plans shall address problems that ... keep a child in placement ...."). The Plan also recommended that Mother continue to receive therapy, with a particular emphasis on developing parenting skills and developing a more positive view toward the Children. While the Plan addressed abuse in general terms, it did not mention any specific incident of abuse or set forth specific requirements to address the abuse.

¶9 Ultimately, Mother never filed a written motion to withdraw her rule 34(e) admissions. However, in the course of investigating the case, Conflict Counsel discovered allegedly exculpatory evidence that Mother now asserts demonstrates that she received ineffective assistance of counsel leading up to and during the adjudication hearing. Specifically, Conflict Counsel obtained a statement from the Children's babysitter, various police reports, and footage from a police body camera that Mother asserts Trial Counsel "would have found had she investigated" and that would have "negated Mother's most damning pleas" under rule 34(e). Mother appealed the court's adjudication order and subsequently filed a motion under rule 23B of the Utah Rules of Appellate Procedure seeking remand to the juvenile court to consider her claim of ineffective assistance. This court denied that motion but instructed Mother to address the need for remand in her appellate brief in accordance with In re S.H. , 2007 UT App 8, 155 P.3d 109.³

ISSUES AND STANDARDS OF REVIEW

¶10 Mother first asserts that the juvenile court erred when it failed to make an express finding of harm before it concluded that the facts to which Mother admitted in her rule 34(e) plea met the statutory requirements of abuse. Because Mother did not preserve this issue below, she seeks review under the plain error doctrine. To establish plain error, Mother must show that "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a...