In re J.D. and C.M. (S.S. v. State) ( 2013 )

2013 UT App 14_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.D. AND C.M.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
S.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20120790‐CA
Filed January 25, 2013
Fourth District Juvenile, Provo Department
The Honorable Kay A. Lindsay
No. 1072055
David R. Boyer, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES DAVIS, MCHUGH, AND VOROS.
PER CURIAM:
¶1 S.S. (Mother) appeals the juvenile court’s October 11, 2012
order adjudicating her children as neglected. The order placed J.D.
in the temporary custody of his father and placed C.M. in the
temporary custody of the Division of Child and Family Services.
We affirm.
¶2 Mother asserts that the juvenile court erred by failing to
construe her September 14, 2012 pro se notice of appeal as a motion
In re J.D. and C.M.
to withdraw her rule 34(e) plea. “It is the substance, not the
labeling, of a [pleading] that is dispositive in determining the
character of the [pleading].” Bishop v. GenTec Inc., 2002 UT 36, ¶ 28,
48 P.3d 218. Here, both the labeling and the substance of Mother’s
pleading is consistent with a notice of appeal. The document is
unambiguously titled, “Notice of Appeal.” Furthermore, the
substance of Mother’s September 14, 2012 pro se notice of appeal
clearly indicates her intention to appeal the juvenile court’s August
30, 2012 ruling. Mother plainly stated “I would like to appeal Judge
Lindsay’s ruling from August 30, 2012.” Mother’s September 14,
2012 notice of appeal also seeks to challenge the juvenile court’s
“unsubstantiated findings and claims.” Mother fails to demonstrate
that the juvenile court erred by declining to construe her September
14, 2012 notice of appeal as a motion to withdraw her rule 34(e)
pleas.
¶3 Mother next asserts that her rule 34(e) pleas were not
knowingly and voluntarily entered because she did not understand
the consequences of a rule 34(e) plea. Utah Code section 78A‐6‐311
provides that “[i]f, at the adjudication hearing, the court finds, by
clear and convincing evidence, that the allegations contained in the
petition are true, it shall conduct a dispositional hearing.” Utah
Code Ann. § 78A‐6‐311(1) (LexisNexis 2012). Rule 34(e) of the Utah
Rules of Juvenile Procedure provides that “[a] respondent may
answer by admitting or denying the specific allegations of the
petition, or by declining to admit or deny the allegations.” Utah R.
Juv. P. 34(e). “Allegations not specifically denied by a respondent
shall be deemed true.” Id. There is no requirement under rule 34(e)
that the juvenile court conduct a colloquy before accepting a
parent’s rule 34(e) admissions. See In re J.S., 2012 UT App 107, ¶ 4,
276 P.3d 1238.
¶4 Although the juvenile court was not required to engage in
a colloquy under rule 34(e), the record demonstrates that the
juvenile court fully explained that Mother had the right to a trial in
which the State would bear the burden of proving all of the
allegations in the petition as true by clear and convincing evidence.
20120790‐CA 2 2013 UT App 14In re J.D. and C.M.
Mother affirmatively waived her right to a trial and the juvenile
court confirmed that Mother desired to waive her right to trial.
Although the juvenile court was not required to do so, the juvenile
court also had counsel explain to all parties the nature of a rule
34(e) plea and that such pleas would be accepted as true and held
against Mother by the clear and convincing standard. Mother fails
to demonstrate that the juvenile court erred in its October 11, 2012
adjudication order.
¶5 Affirmed.
20120790‐CA 3 2013 UT App 14