C.C. v. State , 6 P.3d 1137 ( 2000 )

OPINION

BENCH, Judge:

[ 1 C.C. appeals the juvenile court's order terminating her parental rights, arguing that the court erred in quashing her subpoena to compel the Guardian Ad Litem (the GAL) to testify. We affirm.

BACKGROUND

T2 C.C. is the natural mother of A.D., R.D., A.D., and AD. (the children). The Division of Child and Family Services (DCFS) removed the children from C.C.'s care and custody in February 1997 because C.C. physically abused a child who is not a party to this matter, and thus, the children were deemed to be at risk. After unsuceess-fully attempting a relative placement with one of the children, DCFS was awarded temporary custody and guardianship of all four children. The children were adjudicated as "neglected," and DCFS formulated two service plans with the goal of returning custody of the children to C.C. However, because C.C. failed to comply with the requirements of the service plans, the court terminated reunification services and changed the children's permanency goal to adoption.

13 DCFS filed a petition to terminate C.C.'s parental rights When C.C. began complying with some of the requirements of the service plans, DCFS filed a motion to dismiss the petition and to change the per-manencey goal back to reunification. The GAL, however, filed an amended petition to terminate C.C.'s parental rights.

T4 Counsel for C.C. subpoenaed the GAL to testify at trial because the GAL had personally verified the amended petition. The GAL filed a motion to quash the subpoena, which the juvenile court granted. A trial was held on the GAL's termination petition, at which the GAL called witnesses to present testimony and evidence concerning, inter alia, C.C.'s mental health and substance abuse, and the children's need for permanency. The juvenile court determined that sufficient grounds existed to terminate C.C.'s parental rights, but stayed the order pending C.C.'s compliance with certain other court orders. When C.C. failed to comply with the other court orders, the juvenile court lifted the stay on the order terminating her parental rights. This appeal followed.

ISSUE AND STANDARD OF REVIEW

$5 We must determine whether the juvenile court properly quashed C.C.'s subpoena to compel the GAL to testify,. "We will not reverse the trial court{'s refusal to allow testimony] unless the appellant demonstrates that the trial court has clearly abused its discretion and thereby affected the appellant's substantial rights." Turner v. Nelson, 872 P.2d 1021, 1023 (Utah 1994); see also State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993) ("The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard.").

ANALYSIS

16 C.C. first argues that because the GAL verified the termination petition, C.C. should have been "permitted an opportunity to question [the GAL] regarding her basis of knowledge for signing the verification." We disagree. Verifying a petition does not require the GAL to have any personal or first-hand knowledge of the underlying allegations. See Utah Code Ann. § 78-8a-109(2) (Supp.1999). Verification simply means that, to the best of the GAL's "infor-ration and belief[,]" the statements in the petition are true. Id. In fact, verifying a petition to the juvenile court is analogous to presenting any other pleading or motion to a court. See Utah R. Civ. P. 11(b) (providing that when attorney signs and presents "pleading, written motion, or other paper to the court[,]" attorney certifies that to the best of his or her "knowledge, information, and belief," factual allegations have or will likely have evidentiary support). Accordingly, the simple fact that the GAL verified the petition does not entitle C.C. to call the GAL as a witness. .

17 C.C. also argues that she should have been permitted to call the GAL as a witness due to the GAL's statutory responsibility to investigate and make recommendations regarding the best interests of the children. See Utah Code Ann. § 78-3a-912(8)(c) & (s) (Supp.1999). C.C. contends that this statutory responsibility "places [the GAL] in the position of expert witness." We again disagree. The juvenile court "may appoint an attorney [GAL] to represent the best interest of a minor involved in any case before the court." Id. § 78-8a-912(1). Due to the unique role the GAL plays in representing abused, neglected, or dependent children, the Legislature has specifically outlined, by statute, the manner in which the GAL is to properly represent the children's best interests. See id. § 78-8a-912.

18 When representing a minor, the GAL is to "conduct or supervise an independent investigation in order to obtain first-hand, a clear understanding of the situation and needs of the child." Id. § 78-82-912(8)(c). In addition, the GAL is to "make clear and specific recommendations to the court concerning the best interest of the minor at every stage of the proceeding." Id. § 78-8a-912(8)(s). Those recommendations "shall be a result of [the GAL's] independent investi--gation." Id. § 78-Sa-912(8)(b). We will therefore focus our analysis on whether the duty to make recommendations to the court based on an independent investigation necessarily subjects the GAL to being called as a witness.

T9 Although the statute requires the GAL to make recommendations to the court, it does not suggest that those recommendations are to be treated as evidence. Moreover, the statute does not direct, or even allow, the court to give any particular weight or deference to the recommendations. What the statute does require in proceedings to terminate parental rights is that the petitioner (the GAL in this ease) "establish the facts by clear and convincing evidence." Id. § 78-3a-~406(8) (1996). < The GAL must meet this burden by "present[ing] witnesses and exhibits." Id. § 78-32-912(8)(0) (Supp.1999). Although the GAL makes recommendations to the court, the court may not treat those recommendations as evidence. See Utah R. Profil Conduct 8.7 (prohibiting attorney, with limited exceptions, from acting as advocate and witness in same trial). When seeking termination of parental rights, the GAL must clearly and convincingly establish the facts supporting termination just as any other attorney would.

[ 10 In this case, the juvenile court terminated C.C.'s parental rights based on clear and convincing evidence of C.C.'s unfitness, which was established through numerous witnesses called by the GAL. In fact, C.C. does not dispute the sufficiency of the evidence terminating her parental rights to the children. Further, the GAL did not testify, and C.C. has not demonstrated that the juvenile court treated any of the GAL 's recommendations as evidence. In short, the GAL-as the children's attorney-did not act as a witness in making the statutorily required recommendations, and the juvenile court did not treat those recommendations as evidence. Thus, the juvenile court properly quashed the subpoena to compel the GAL's testimony.

CONCLUSION

{ 11 The GAL did not become a witness in the proceeding to terminate C.C.'s parental rights simply by verifying the termination petition. The GAL also did not act as an "expert witness" by fulfilling her statutory responsibility to make recommendations to the court regarding the children's best interests. Accordingly, the juvenile court did not abuse its discretion in quashing the subpoena to compel the GAL to testify at the termination proceeding.

1 12 We therefore affirm.

13 I CONCUR: NORMAN H. JACKSON, Associate Presiding Judge.