In re J.S. , 2017 UT App 197 ( 2017 )

2017 UT App 197THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.S.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
N.P.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20170622-CA
Filed October 26, 2017
Third District Juvenile Court, Salt Lake Department
The Honorable Charles D. Behrens
No. 1138567
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Virginia L. Sudbury and Alison Satterlee, Attorneys
for Father P.S.
Before JUDGES DAVID N. MORTENSEN, JILL M. POHLMAN, and
DIANA HAGEN.
PER CURIAM:
¶1 N.P. (Mother) appeals from the juvenile court’s July 10,
2017 order granting permanent custody and guardianship of her
child to the child’s Father and terminating the jurisdiction of the
court. Mother argues that she was denied effective assistance of
counsel and that she was denied a reasonable accommodation
under the Americans with Disabilities Act (the ADA).
In re J.S.
¶2 Mother first asserts that she was denied effective
assistance of counsel. By statute, an indigent parent is entitled to
appointment of counsel in a child welfare action. See Utah Code
Ann. § 78A-6-1111(1)(a) (LexisNexis Supp. 2017). In this case,
Mother was appointed counsel, later requested and obtained
appointment of substitute counsel, and ultimately chose to
represent herself with the assistance of appointed standby
counsel. Mother does not identify any conduct by any one of her
three appointed attorneys that supports a traditional ineffective
assistance of counsel claim. Mother also fails to demonstrate that
there is a reasonable probability that but for any deficiency in
her attorneys’ actions the case would have been resolved
differently. Accordingly, Mother has failed to demonstrate that
she was denied effective assistance of counsel. 1
¶3 Mother next argues that she was denied reasonable
accommodations under the ADA. However, Mother has failed to
demonstrate that she preserved such a claim by requesting an
accommodation. “[I]n order to preserve an issue for appeal, the
issue must be presented to the trial court in such a way that the
1. To the extent Mother is challenging the juvenile court’s
decision to allow counsel to withdraw and Mother to proceed
pro se, Mother has failed to provide the court with an adequate
record to review such claims. Mother has not provided a
transcript of any hearing in which her right to counsel was
discussed or in which the juvenile court resolved any of the
motions to withdraw as counsel. Nor has Mother provided a
transcript of the hearing in which Mother requested to proceed
pro se. Without such transcripts, the court cannot evaluate
Mother’s claims. See Bevan v. J.H. Construction Co., 669 P.2d 442,
443 (Utah 1983) (stating that “[i]n the absence of a transcript, we
assume that the proceedings at trial were regular and proper and
that the judgment was supported by competent and sufficient
evidence”).
20170622-CA 2 2017 UT App 197In re J.S.
trial court has an opportunity to rule on that issue.” 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and
internal quotation marks omitted); see also In re K.C., 2015 UT 92,
¶ 29, 362 P.2d 1248 (indicating that the juvenile court had no
obligation to examine whether reasonable accommodations were
made under the ADA until the parent actually “invoked” the
Act). Mother fails to demonstrate that she ever indicated to the
court that she believed that the services offered to her did not
adequately take into account her alleged disability. In fact, the
record demonstrates that the juvenile court actually did take
Mother’s disability into account in determining the services
Mother would be offered. Specifically, when the juvenile court
entered its disposition order in March of 2017, it found that the
“[s]ervices are a reasonable accommodation for the parent’s
disability.” There is no indication that Mother objected to the
finding or otherwise requested services that were not offered.
Accordingly, because Mother did not preserve the issue, and has
not otherwise argued that an exception to the preservation rule
applies in this case, we do not address the issue on appeal.
¶4 Affirmed.
20170622-CA 3 2017 UT App 197