In re P.D. (E.D. v. State) ( 2013 )

2013 UT App 162_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF P.D., A PERSON
UNDER EIGHTEEN YEARS OF AGE.
E.D.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20120227‐CA
Filed June 27, 2013
Third District Juvenile, Summit Department
The Honorable Mark W. May
No. 1046790
Gail E. Laser, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Attorney for Guardian Ad Litem
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JAMES Z. DAVIS and WILLIAM A. THORNE JR. concurred.
ORME, Judge:
¶1 Appellant E.D. (Father) appeals an order from the juvenile
court that awarded full custody and guardianship of their son to
Mother. Father argues that he was improperly denied an
evidentiary hearing as required by rule 47 of the Utah Rules of
Juvenile Procedure. We agree with Father, but we decline to
reverse because Father has failed to meet his burden to show that
the error was harmful.
In re P.D.
BACKGROUND
¶2 Following their divorce in 2008, Father and Mother shared
custody of their son, P.D. In January 2011, allegations of abuse
were brought against Father, and an ex parte petition for a
protective order was filed. The juvenile court entered a protective
order, and Mother was temporarily given full physical custody.
Following an investigation, no prosecution was initiated by police
and the Division of Child and Family Services (DCFS)
substantiated only some of the allegations. In August 2011,
however, Father entered a plea under rule 34(e) of the Utah Rules
of Juvenile Procedure by which he “declin[ed] to admit or deny the
allegations.” See Utah R. Juv. P. 34(e). When a plea is entered under
rule 34(e), “[a]llegations not specifically denied by a respondent
shall be deemed true,” id., and Father was made aware that by
entering a rule 34(e) plea he was waiving his right to a trial on
those allegations.
¶3 The allegations to which Father entered a rule 34(e) plea
included spanking P.D.’s bare buttocks, requiring P.D. to sleep
with him while Father slept in the nude, requiring P.D. to touch
Father’s genitals while Father watched pornographic material,
calling P.D. names like “jerk off” and “asshole,” and grabbing P.D.
by the neck and holding him against a wall until P.D. urinated. In
early September, the juvenile court adjudicated Father to have
abused P.D., and, while the previously entered protective order
was dismissed, the grant of physical custody to Mother as well as
restrictions on Father’s visitation time were continued in effect. A
November order ratified this arrangement.
¶4 The next hearing was held in February 2012. The juvenile
court permitted portions of a report from P.D.’s Court‐Appointed
Special Advocate (CASA volunteer) to be read aloud. The report
stated that P.D. “just wants to move forward in his life and not be
forced to see his father so frequently.” The report also indicated
that P.D. felt uncomfortable around his father and that the CASA
volunteer believed “the Court should not force this relationship
20120227‐CA 2 2013 UT App 162In re P.D.
until the father gets some psychological help.” The court reviewed
the summary of a psychosexual evaluation, which had only
recently been completed by Father, that concluded that Father
continued to deny the occurrence of any abuse. The court then
indicated that it would grant full custody of P.D. to Mother.
Previous orders for family therapy were vacated, and Father
was allowed one hour per week of supervised visitation. Future
contact between Father and P.D. was to be determined by P.D.’s
therapist. The court requested Mother’s attorney to prepare an
order implementing these dispositions. Upon hearing this, Father’s
counsel requested an evidentiary hearing under rule 47 of the Utah
Rules of Juvenile Procedure. The court denied the motion saying,
“I don’t believe you’re entitled to that.”
ISSUE AND STANDARD OF REVIEW
¶5 Father appeals the juvenile court’s denial of the requested
evidentiary hearing, insisting that he was entitled to one by the
express terms of rule 47 of the Utah Rules of Juvenile Procedure.
“[T]his court generally reviews interpretations of rules for
correctness.” In re Fox, 2004 UT 20, ¶ 5, 89 P.3d 127.
ANALYSIS
¶6 Rule 47 of the Utah Rules of Juvenile Procedure provides:
The court shall not modify a prior order in a review
hearing that would further restrict the rights of
the parent, guardian, custodian or minor if the
modification is objected to by any party prior to or in
the review hearing. The court shall schedule the case
for an evidentiary hearing and require that a motion
for modification be filed with notice to all parties in
accordance with Section 78A‐6‐1103.
20120227‐CA 3 2013 UT App 162In re P.D.
Utah R. Juv. P. 47(b)(3) (emphasis added). Father characterizes as
timely the objection he made in, albeit at the end of, the review
hearing where custody of his son was permanently granted to
Mother.1 He argues that he was therefore entitled to the benefit of
an evidentiary hearing before any modification was made to P.D.’s
custody arrangements. The Guardian Ad Litem argues that rule 47
does not apply to this hearing because Father’s rights were not
further restricted as a result of the hearing. The State argues that
failure to grant such a hearing was harmless error. We review each
of these arguments in turn.
I. Father’s Objection Was Timely.
¶7 Father argues that the juvenile court erred in denying his
request for an evidentiary hearing because his objection was timely
given the language of rule 47. Under the rule, an evidentiary
hearing must be granted if objection is made “prior to or in the
review hearing.” Utah R. Juv. P. 47(b)(3). Rule 47, however, does
not provide any specific guidance as to when a party would have
to make an objection in order for it to qualify as having been made
“in the review hearing.” Id. “We interpret court rules, like statutes
and administrative rules, according to their plain language.” Burns
v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370. Because the plain
1
The State argues that this was not a “review hearing” but
was instead a “final dispositional review” and that rule 47 does
not apply in this case. Whether this was a review hearing, as
argued by Father, or a final dispositional review, as argued by
the State, we see no language in the rule leading us to believe
that the requirement in rule 47(b)(3) would not be applicable in
either situation. In other words, even if this had been a
dispositional hearing governed by rule 47(c) as the State
suggests, we see no language exempting it from rule 47(b)(3)’s
mandate to grant an evidentiary hearing upon demand. If
anything, this mandate is even more important in a dispositional
review hearing than in a routine review hearing.
20120227‐CA 4 2013 UT App 162In re P.D.
language of the rule permits the objection to be made “in” the
review hearing, it rather clearly allows the objection to be made at
any time before the hearing ends. Thus, Father’s objection was
timely.
¶8 That said, we concede that it is quite odd that a party could
wait as long as Father did here and still be allowed to interpose his
objection and trigger his entitlement to an evidentiary hearing.
Essentially, Father was permitted to participate in a non‐
evidentiary hearing, see which way the wind was blowing, and
then make his request at the eleventh hour—indeed, after the
juvenile judge had already directed Mother’s attorney to prepare
the implementing order, just prior to adjourning the hearing. This
is not a format that enhances orderly process, and it may well be
that the rule is in need of revision. Nevertheless, we must conclude
that Father’s objection was made “in the review hearing” and that
he was therefore entitled to the requested evidentiary hearing.
II. Father’s Rights Were Modified.
¶9 The Guardian Ad Litem argues that rule 47 should not apply
because Father’s rights were not further restricted or substantially
changed at the hearing in question. Rule 47 mandates an
evidentiary hearing only in cases where the rights of a party are
“further restrict[ed].” Utah R. Juv. P. 47(b)(3). The Guardian
contends that P.D. was already in Mother’s full custody per the
November 2011 order and so the only substantive changes made
to Father’s rights were that he was granted one hour of supervised
visitation and that an order for family therapy was vacated.
The Guardian goes so far as to argue that Father’s rights were
actually broadened as a result of the hearing because of the grant
of additional visitation. We disagree.
¶10 While the practical effect of the February 2012 order was
merely to continue the custody arrangement ordered in November
2011, Father’s rights were still significantly restricted when
compared with the permanent custody order included in the
20120227‐CA 5 2013 UT App 162In re P.D.
couple’s divorce decree. Indeed, the divorce decree appears to be
the order that the juvenile court was referring to when it stated,
“The prior order that [Father] and [Mother] have joint legal custody
of [P.D.] is vacated. Full custody and guardianship of [P.D.] is
awarded to [Mother].” Moreover, while the February 2012 order
did not tinker much with the quantum of custody and visitation
that had been decreed in the November 2011 order, the new order
moved the disposition from temporary to permanent—a
momentous change in Father’s view. Father’s rights had been in a
state of flux following the allegations of abuse and petition for a
protective order. We determine that the modification made at the
February 2012 hearing was a change that, if for no other reason
than it moved the custody arrangement from being temporary to
permanent, “further restrict[ed]” Father’s parental rights. See id.Therefore, we conclude that rule 47 does apply.
III. The Juvenile Court’s Failure To Grant An Evidentiary
Hearing Was Harmless.
¶11 While the State argues that the failure to grant an
evidentiary hearing was harmless, Father argues that a juvenile
court’s failure to grant an evidentiary hearing “can never constitute
harmless error” because it implicates the due process rights of
parents. This conclusory statement ignores Father’s burden to show
that the error committed by the juvenile court ultimately impacted
the outcome of the proceedings. “On appeal, the appellant has the
burden of demonstrating an error was prejudicial—that there is a
reasonable likelihood that the error affected the outcome of the
proceedings.” Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 489
(Utah Ct. App. 1991) (citation and internal quotation marks
omitted).
¶12 Father has failed to meet his burden to show that had an
evidentiary hearing been granted, “‘the likelihood of a different
outcome [would have been] sufficiently high as to undermine our
confidence in the [judgment].’” Covey v. Covey, 2003 UT App 380,
¶ 21, 80 P.3d 553 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789,
20120227‐CA 6 2013 UT App 162In re P.D.
796 (Utah 1991)). Mother was given full custody, on a temporary
basis, after the allegations of sexual and other abuse were made
against Father. These allegations were later deemed by the court to
be true after Father entered a plea under rule 34(e). As the juvenile
court pointed out, “There’s a court finding in place he sexually
abused his son. And so I take that and determine . . . what I need
to do, given this information.” While the juvenile court expressed
concern that Father had not fully understood the consequences of
a rule 34(e) plea, the court also made it clear that the consequences
were fully explained to and acknowledged by Father before the
plea was entered. The findings of sexual abuse against Father have
not been vacated or modified, and Father has failed to demonstrate
how an evidentiary hearing would have elicited evidence that
would convince the court that requiring P.D. to spend more time
with an adjudicated sex offender—an adjudicated sex offender
who had abused him—was in the child’s best interest.
¶13 Instead of demonstrating how an evidentiary hearing would
have benefitted him, or attempting to explain to this court what
additional evidence or testimony he would have provided at the
hearing that might have altered the juvenile court’s custody
determination,2 Father instead primarily argues that he was
2
Father did not proffer, nor even ask to proffer, the
evidence he expected to adduce at the evidentiary hearing.
Absent such a proffer, a harmless error conclusion is almost
automatic. See, e.g., State v. Frame, 723 P.2d 401, 406 (Utah 1986)
(holding defendant could not show that counsel’s failure to call
certain witnesses was prejudicial when defendant did “not
identify what other persons should have been called as
witnesses or how their testimony was essential to his defense”);
Black v. Hennig, 2012 UT App 259, ¶ 16, 286 P.3d 1256 (holding
“no appellate relief is available” to a party who fails to proffer
the contents of improperly excluded evidence, and that such
failure to proffer “prevents [the court] from undertaking a
(continued...)
20120227‐CA 7 2013 UT App 162In re P.D.
necessarily harmed simply because the error occurred. Father does
point to his efforts to cooperate with court orders, including
enduring a psychosexual evaluation and attending parenting
classes, the success of visitation with P.D., and a positive report
from another therapist as evidence that the juvenile court had
another choice besides granting full custody to Mother. However,
Father fails to explain how this information demonstrates that the
error of denying an evidentiary hearing was harmful or how the
introduction of these facts at such a hearing would have changed
the ultimate custody arrangement. After all, this information was
already before the juvenile court when it made the determination
to permanently grant Mother full custody of P.D.
CONCLUSION
¶14 We determine that the plain language of rule 47 of the Utah
Rules of Juvenile Procedure entitled Father to an evidentiary
hearing. However, because Father has failed to meet his burden to
demonstrate how this error ultimately impacted the juvenile
court’s custody determination, we affirm.
2
(...continued)
meaningful harmless error analysis”). See also Downey State Bank
v. Major‐Blakeney Corp., 578 P.2d 1286, 1288 (Utah 1978) (holding
that “failure to make a proffer as to what his evidence would
show precludes him from asserting on appeal that the exclusion
was error”), overruled on other grounds by Management Servs. Corp.
v. Development Assocs., 617 P.2d 406, 409 (Utah 1980).
20120227‐CA 8 2013 UT App 162