In re E.S...(A.S. & J.S. v. State & R.S.)

2013 UT App 222_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF E.S. AND N.S., PERSONS UNDER
EIGHTEEN YEARS OF AGE.
A.S. AND J.S.,
Appellants,
v.
STATE OF UTAH AND R.S.,
Appellees.
Per Curiam Decision
No. 20130461‐CA
Filed September 6, 2013
Fourth District Juvenile, American Fork Department
The Honorable Suchada P. Bazzelle
No. 1047900
Matthew Hilton, Attorney for Appellants
John E. Swallow and John M. Peterson, Attorneys
for Appellee State of Utah
Ronald D. Wilkinson and Nathan S. Shill,
Attorneys for Appellee R.S.
Martha Pierce, Guardian ad Litem
Before JUDGES DAVIS, THORNE, and VOROS.
PER CURIAM:
¶1 A.S. (Father) and J.S. (Stepmother) appeal the juvenile
court’s order denying their petition to terminate the parental rights
of R.S. (Mother) and granting Mother custody of E.S. and N.S. We
affirm in part and reverse and remand in part.
¶2 Father and Stepmother assert that the juvenile court
inappropriately appointed a therapist for the children. The
In re E.S...
therapist was appointed in November 2011. In May 2012, Father
and Stepmother moved the juvenile court to remove that therapist
from the case and appoint a different therapist. Their motion to
change therapists was granted by the juvenile court in June 2012.
Accordingly, this issue is moot because the relief sought was
received earlier in the proceedings.
¶3 Father and Stepmother also argue that the juvenile court
improperly acted in dual roles when the court ordered the removal
of the children and then remained as the judge for the rest of the
proceedings. They assert that after the removal, the juvenile court
judge could no longer assure a “fair trial in front of a fair tribunal.”
The gist of the argument is that the juvenile court judge was either
biased or took on conflicting roles in the process. However, Father
and Stepmother did not file a motion to disqualify the judge under
rule 63 of the Utah Rules of Civil Procedure.1 Because they did not
raise this issue in the juvenile court, it is not properly before this
court on appeal. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51,
99 P.3d 801.
¶4 Father and Stepmother assert that there was insufficient
evidence for the juvenile court to find that they were actively
alienating the children from Mother and had engaged in emotional
maltreatment of the children. A juvenile court’s findings of fact will
not be overturned unless they are clearly erroneous. In re E.R., 2001
UT App 66, ¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous
only when, in light of the evidence supporting the finding, it is
against the clear weight of the evidence. Id. “When a foundation for
1. Under rule 63, a motion to disqualify a judge may be made no
later than twenty days after the “date on which the moving party
learns . . . of the grounds upon which the motion is based.” Utah R.
Civ. P. 63(b)(1)(B)(iii). A motion to disqualify must be supported by
an affidavit identifying facts to show “bias, prejudice, or conflict of
interest.” Id. R. 63(b)(1)(A). The Utah Rules of Civil Procedure
apply to juvenile proceedings except where inconsistent with the
Utah Rules of Juvenile Procedure. Utah R. Juv. P. 2(a).
20130461‐CA 2 2013 UT App 222In re E.S...
the [juvenile] court’s decision exists in the evidence, an appellate
court may not engage in a reweighing of the evidence.” In re B.R.,
2007 UT 82, ¶ 12, 171 P.3d 435.
¶5 Father and Stepmother essentially ask this court to reweigh
the evidence more in their favor, which this court cannot do. See id.Furthermore, to challenge the sufficiency of evidence supporting
a finding or conclusion, an appellant must include in the record on
appeal a transcript of all evidence relevant to the challenged
finding or conclusion. Utah R. App. P. 54(b). Father and
Stepmother have not provided transcripts of the testimony
presented at trial.2 Absent an adequate record for review, this court
cannot reach the issue of sufficiency of the evidence and must
presume the regularity of the proceedings below. See State v.
Blubaugh, 904 P.2d 688, 699 (Utah Ct. App. 1995).
¶6 Father and Stepmother also argue that the juvenile court
erred in finding them in contempt without giving them notice or
holding a separate hearing. The juvenile court’s findings on
contempt refer to admissions, stipulations, pleadings, and
discussions in open court that establish Father’s and Stepmother’s
failure to comply with certain court orders.3 However, it appears
that no hearing to address the allegations of contempt was held,
thereby depriving Father and Stepmother of the opportunity to
respond to the charges. We agree that this was error.
¶7 Under Utah law, a court may summarily punish contempt
when it “is committed in the immediate view and presence of the
court.” Utah Code Ann. § 78B‐6‐302(1) (LexisNexis 2012). However,
the ability of a court to summarily punish contempt is further
2. The transcripts provided on appeal are transcripts of hearings
and oral rulings and include nothing from the testimony at trial.
3. It appears that the contempt sanctions against Father and
Stepmother are criminal in nature. Contempt is “considered
criminal when the sentence is fixed,” indicating a punitive intent.
Gardiner v. York, 2010 UT App 108, ¶ 32, 233 P.3d 500.
20130461‐CA 3 2013 UT App 222In re E.S...
limited by due process requirements even if committed in the
court’s presence. Gardiner v. York, 2010 UT App 108, ¶¶ 39–40, 233
P.3d 500. A court may punish contempt without a hearing only
when the “contemptuous conduct occurs in open court or the
presence of the judge, disturbs the court’s business, and
necessitates immediate punishment.” Id. ¶ 40. Accordingly,
summary punishment may be warranted where the contemptuous
conduct disrupts the operation of the court and requires immediate
action to restore order to the proceedings. Id.
¶8 However, “[w]here conviction and punishment for
contemptuous behavior committed during trial is delayed until
after trial, there is no need for speed and criminal contempt
sanctions may not be imposed summarily.” Id. In this case, the
juvenile court found Father and Stepmother in contempt for their
conduct during trial and assessed sanctions summarily as part of
its final ruling and order on the trial. Clearly, under these
circumstances, there was no need for immediate action to restore
order, and the juvenile court erred in imposing the sanctions
without a hearing. Therefore, we vacate the findings of contempt
and the sanctions imposed, and remand for a hearing on the
allegations of contempt.
¶9 The juvenile court’s order is affirmed in all respects except
for the determination of contempt, the findings of contempt are
vacated, and the matter is remanded to the juvenile court for a
hearing on the contempt allegations.4
4. The petition on appeal also includes a claim regarding violations
of canons of judicial conduct, which we find to be without merit.
We decline to address it further. See State v. Carter, 776 P.2d 886,
888 (Utah 1989).
20130461‐CA 4 2013 UT App 222