In re A.C..

2015 UT App 107_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.C. AND I.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
P.C.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20140236-CA
Filed April 30, 2015
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1060284
Neil D. Skousen, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.
VOROS, Judge:
¶1 The juvenile court terminated the parental rights of a
father to two children on the ground that the father had sexually
abused his children’s half sister. The father, a Peruvian national,
lived in the United States for eight years before a series of
criminal convictions culminated in his deportation. The father
was represented at trial, but the juvenile court denied a motion
In re A.C.
to appoint a Spanish-speaking attorney. The juvenile court also
denied a motion to continue. We affirm.
BACKGROUND
¶2 The juvenile court proceeding originally involved five
children. P.C. (Father) fathered two of the five children, A.C. and
I.C., and acted as a stepfather to the other three children. By the
time of the trial in this case, the juvenile court had already
terminated the parental rights of the children’s mother.
¶3 A.C., I.C., and their mother are American citizens; Father
is a citizen of Peru. Father lived in the United States for eight
years and worked at a fast food restaurant for at least part of that
time. Father testified that while living in the United States he
was convicted of disorderly conduct, driving under the
influence, driving on a suspended license, and giving false
information to a police officer. In addition, Father admitted that
he completed a court-ordered domestic-violence treatment
program. Father’s legal difficulties culminated in his deportation
on September 9, 2011. Father cannot re-enter the United States
for at least five years from the date of his deportation.
¶4 Two years after Father’s deportation, the Division of
Child and Family Services (DCFS) filed a verified petition to
terminate the parental rights of the five children’s mother and
their respective fathers, including Father. From Peru, Father filed
a financial affidavit seeking appointment of counsel. The
juvenile court appointed Father’s current counsel (Counsel).
¶5 Four months later, and eleven days before Father’s trial,
Counsel moved (1) to substitute a Spanish-speaking attorney; (2)
to bifurcate and continue the trial; and (3) to allow Father to
participate in the trial telephonically. In support of the motions,
Counsel alleged that the language barrier between himself and
Father amounted to a complete communication breakdown that
infringed Father’s right to effective assistance of counsel.
20140236-CA 2 2015 UT App 107In re A.C.
¶6 Four days later, the juvenile court held a hearing on
Counsel’s motions. For reasons unclear from the record, Father
did not participate in the hearing (telephonically or otherwise),
and the hearing proceeded without him. Counsel stated that he
had difficulty communicating with Father because Father did
not understand English. Counsel explained that he had tried to
communicate with Father through Father’s sisters but without
much success, as ‚one sister does not speak English‛ and the
other speaks only limited English. Counsel also expressed
concern that having Father’s sister interpret for him risked
waiving the attorney–client privilege because both sisters
appeared on the State’s witness list. The State responded that
Counsel’s communication difficulties stemmed more from
Father’s uncooperativeness than from the language barrier. The
Guardian ad Litem, concerned about the motion’s timeliness,
responded, ‚This trial has been scheduled since November
23rd . . . and the motion could have been raised at any time after
*Counsel’s+ appointment, but it’s raised right now [eleven] days
before trial.‛
¶7 The juvenile court made no express findings concerning
Counsel’s communication difficulties but did suggest that
Counsel ‚may have an unwilling client.‛ Nevertheless, the
juvenile court explained its intention to continue the hearing
until ‚Tuesday [when] we can try to get a hold of [Father] and
we’ll have somebody that can speak the language. And if we
can’t get a hold of him or if he doesn’t avail himself of—of
making himself available, then I think we need to go ahead with
the trial.‛
¶8 At the continued hearing, with the aid of an interpreter,
the juvenile court called Father’s home phone in Peru. Whoever
answered the phone stated that Father’s work schedule made
him unavailable until after 6:00 p.m. Peru time, or 4:00 p.m. Utah
time. Counsel told the interpreter to inform Father ‚that we need
[Father] available 8:30 this Friday for a trial. 10:30 their time.
And that’s this Friday.‛ Counsel further told the interpreter to
‚tell him that if *Father is+ interested in participating in the trial,
he needs to be available.‛
20140236-CA 3 2015 UT App 107In re A.C.
¶9 The juvenile court then had a brief discussion with
Counsel concerning Father’s English proficiency and whether
Father had notice of the hearing:
The Court: [Counsel,] . . . last Friday, we . . . gave
you an opportunity through one of our clerks to—
to talk with your client.
[Counsel]: Right.
The Court: And in talking with my clerk, he
indicated to me that your client understood
English.
*Counsel+: He didn’t speak to my client, he—
apparently one of the family members . . . told the
clerk that my client speaks English.
The Court: And so—
*Counsel+: But he doesn’t—but I saw in one of the
e-mails, Your Honor, that was sent to [the State]
before I came on to the case that apparently he
doesn’t read English but he speaks English. And so
I—there’s some confusion as to—to what extent he
understands and speaks English.
The Court: But was he aware of this—this hearing
or this—this conference this morning[?]
[Counsel]: At least through his family member, not
personally.
The juvenile court judge, in accordance with his earlier
pronouncement, concluded, ‚Regarding the trial, it sounds
like . . . we have a participant that may be unwilling to
participate in his—his trial. I can’t see that I can do anything but
start with the trial.‛ The juvenile court informed Counsel that it
could not provide Counsel with an out-of-court interpreter and
20140236-CA 4 2015 UT App 107In re A.C.
suggested that Counsel look into whether the public defender’s
office could provide one.
¶10 Trial proceeded as scheduled. Father apparently received
Counsel’s message notifying him of the trial date and time
because he appeared telephonically at the beginning of trial.
Before starting the trial, the juvenile court allowed Counsel to
speak to Father privately with the help of the court interpreter.
During their private pre-trial consultation, the interpreter read
the general and specific allegations of the amended petition to
Father and Father indicated he understood ‚what was read to
him.‛ Counsel later informed the juvenile court that Father
understood the proceeding and that Counsel had ‚gone over
*Father’s+ right to go to trial or to voluntarily relinquish his
parental rights‛ and that Father ‚elected to go to trial.‛
¶11 At trial, the State’s termination case consisted largely of
testimony that Father had sexually abused the half sister of A.C.
and I.C. During the trial, but before Father was sworn, Counsel
advised Father—through the interpreter—to ‚not give testimony
about any allegations regarding physical abuse or sexual abuse.‛
Father did not testify about the sexual abuse allegations, nor did
anyone question him about those allegations. After the parties’
opening statements, Father testified on his own behalf.
Specifically, Father testified that since his deportation he spoke
to his children by phone, that the children would speak to him in
English, and that he ‚would kind of talk to them back in *his+
broken English.‛ He testified that he had lived in the United
States for eight years before his deportation and during that time
learned ‚[a] little bit of English . . . with [his wife] and . . . at
work.‛ He testified that he spoke ‚a little bit of English‛ with his
wife at home but that they mostly spoke Spanish. Father also
testified about the support he provided his children, and the
relationship he had with them both before and after his
deportation.
¶12 The juvenile court found by clear and convincing
evidence that Father had sexually abused the children’s half
sister and entered findings and conclusions. Based on its factual
20140236-CA 5 2015 UT App 107In re A.C.
findings, which Father does not challenge on appeal, the court
terminated Father’s parental rights.
ISSUES ON APPEAL
¶13 Father asserts two claims of error on appeal. First, Father
contends that the juvenile court erred when it denied his motion
to substitute bilingual counsel.1 Second, Father contends that the
juvenile court erred when it denied his motion to continue trial.
As a subsidiary argument to the second issue, Father argues that
the juvenile court denied the motion to continue on an
impermissible basis. Specifically, Father asserts that the juvenile
court erred when it based its denial of a continuance on the
eighteen-month time-limit for terminating parental rights set
forth in Utah Code section 78A-6-314(13)(c).2
1. Wrapped into this claim is an alternative claim that Father was
entitled to an appointed out-of-court interpreter. However, the
standard governing the right to an out-of-court interpreter is
different from the standard governing the right to substitution of
counsel, as these rights derive from different sources. Compare
Utah R. Jud. Admin. 3-306 (providing language access in the
courts), with Utah Code Ann. § 78A-6-1111 (providing the right
to counsel for indigent defendants in parental termination
proceedings). Father did not separately or adequately brief the
standard governing the right to an out-of-court interpreter.
Accordingly, we decline to address that contention. See Hess v.
Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d 161; State v.
Worwood, 2007 UT 47, ¶ 19, 164 P.3d 397; Utah R. App. P.
24(a)(9).
2. This section states, ‚A decision on a petition for termination of
parental rights shall be made within 18 months from the day on
which the minor is removed from the minor’s home.‛ Utah Code
Ann. § 78A-6-314(13)(c) (LexisNexis 2012).
20140236-CA 6 2015 UT App 107In re A.C.
ANALYSIS
I. The Motion to Substitute Counsel
¶14 Father contends that the juvenile court erred when it
denied his motion to appoint bilingual counsel. Father advances
two arguments in support of this contention: (1) that the juvenile
court violated his constitutional rights to due process and equal
protection and (2) that the juvenile court deprived him of the
right to effective assistance of counsel under Utah Code section
78A-6-1111. Utah Code Ann. § 78A-6-1111 (LexisNexis 2012).3
A. Due Process and Equal Protection
¶15 Father relies nominally on the Due Process and the Equal
Protection Clauses of the United States Constitution. Our
supreme court has ‚repeatedly warned that *the appellate
courts] will not address arguments that are not adequately
briefed, and that [we] are not a depository in which the
appealing party may dump the burden of argument and
research.‛ Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d
161 (citations and internal quotation marks omitted). ‚To satisfy
our adequate briefing requirement, a party’s brief must contain
meaningful legal analysis. Specifically, [a] brief must go beyond
providing conclusory statements and fully identify, analyze, and
cite its legal arguments.‛ Id. (alteration in original) (citations and
3. The State contends that Father did not preserve his due
process and equal protection issue for appeal. ‚*T+o preserve an
issue for appeal the issue must be presented to the trial court in
such a way that the trial court has an opportunity to rule on that
issue.‛ Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366. But
Counsel raised the constitutional issue in a written motion in the
juvenile court, the State and Guardian ad Litem both filed
written oppositions to the motion, and the juvenile court denied
the motion. We therefore conclude that Father preserved this
issue for appeal.
20140236-CA 7 2015 UT App 107In re A.C.
internal quotation marks omitted); see also Utah R. App. P.
24(a)(9).
¶16 Father’s due process and equal protection argument does
not satisfy these briefing requirements. Father’s briefing of this
argument consists of conclusory statements supported by
citations to the Due Process and Equal Protection Clauses of the
Constitution with no application of controlling precedent to the
facts of this case. Accordingly, Father has not carried his burden
of persuasion on appeal with respect to his constitutional claims.
B. Effective Assistance under Section 78A-6-1111
¶17 Father also contends that the controlling statute required
the juvenile court to appoint bilingual counsel. Father asserts
that under Utah Code section 78A-6-1111, ‚When the court
determines the parent is indigent during a parental rights
termination proceeding, the parent has a statutory right to
receive court-appointed counsel.‛ He then argues that this
statute gives ‚*p+arents who have court-appointed counsel in
child welfare cases in Utah . . . a statutory . . . right to the
effective assistance of counsel.‛
¶18 Utah law provides for the appointment of counsel for
indigent respondents in parental termination cases. Utah Code
Ann. § 78A-6-1111 (LexisNexis 2012); see also In re C.C., 2002 UT
App 149, ¶ 8, 48 P.3d 244. This court has ‚left no doubt that
indigent parents facing the permanent deprivation of their
parental rights are entitled not only to an appointed attorney,
but to the effective assistance of counsel.‛ Id. ¶ 7. ‚[C]onstruing
the statute any other way would render it meaningless or
illusory.‛ Id. ¶ 9 (citations and internal quotation marks
omitted).4
4. The court in In re C.C. construed Utah Code section 78-3a-913.
2002 UT App 149, ¶¶ 8–9, 48 P.3d 244. Section 78-3a-913 was
renumbered in 2008 as Utah Code section 78A-6-1111. See 2008
Utah Laws Ch. 3 (H.B. 78).
20140236-CA 8 2015 UT App 107In re A.C.
¶19 In In re C.C., this court explained that substitution of
counsel is part and parcel of the right to effective assistance of
counsel and thus courts must inquire into whether
circumstances require substitution of counsel:
An integral part of the right to the effective
assistance of counsel is the opportunity to have
substitute counsel appointed when necessary, and
to that end, to have the court explore a party’s
complaints regarding the assistance his or her
attorney has provided to determine if substitute
counsel is indeed necessary.
Id. Accordingly, when we review the denial of a motion to
substitute counsel, we first ‚determine whether the juvenile
court . . . satis[fied+ its duty to inquire.‛ Id. ¶ 11. Then, if the
court’s inquiry sufficed, or if the indigent party ‚does not
dispute that the juvenile court made the required inquiry . . . but
argues that her motion was erroneously denied[,] [w]e review
the juvenile court’s denial of *the+ request for new counsel for an
abuse of discretion.‛ In re J.F., 2013 UT App 288, ¶ 11, 317 P.3d
964 (citing In re C.C., 2002 UT App 149, ¶¶ 6, 10, 12).
¶20 Father does not challenge the sufficiency of the juvenile
court’s inquiry. Therefore, we assume without deciding that the
juvenile court made a sufficient inquiry into Father’s request for
substitute counsel. See id. We next consider whether the juvenile
court abused its discretion when it denied Father’s request for
substitute counsel. See id.
¶21 ‚The juvenile court has the discretion to appoint
substitute counsel if the court’s inquiry into the party’s request
reveals good cause for the substitution.‛ Id. ¶ 12. ‚*T+o warrant
substitution of counsel, [an indigent parent] must show good
cause, such as . . . a complete breakdown in
communication . . . .‛ Id. (first alteration in original) (citation and
internal quotation marks omitted). ‚Although the right to
effective assistance of counsel in parental termination cases is
grounded in statute, unlike the Constitutional guarantee of a
criminal defendant’s right to effective counsel, our jurisprudence
20140236-CA 9 2015 UT App 107In re A.C.
relies on criminal law for guidance on the question of
substitution of counsel in juvenile proceedings.‛ Id. ¶ 12 n.5; see
also In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (adopting the
test established in Strickland v. Washington, 466 U.S. 668 (1984), to
determine the effectiveness of counsel under the statute).
¶22 Father argues that an important element of the right to
effective assistance of counsel ‚is maintaining the ability to
actually communicate regarding one’s case with one’s court-
appointed attorney.‛ He maintains that ‚a presumption *of
ineffectiveness] applies when the breakdown in communication
is severe enough to prevent [trial] preparation or adequate
representation.‛ And indeed courts have held that ‚a breakdown
in communication between an attorney and his or her client can
be severe enough to prevent even the most able counsel from
providing effective assistance.‛ United States v. Soto Hernandez,
849 F.2d 1325, 1328 (10th Cir. 1988). Further, ‚*c+ounsel’s
inability to communicate with his client because of a language
barrier may render his assistance constitutionally ineffective.‛
Gallo-Vasquez v. United States, 402 F.3d 793, 799 (7th Cir. 2005)
(citing Granada v. United States, 51 F.3d 82, 85 (7th Cir. 1995)
(citing Strickland v. Washington, 466 U.S. 668, 688 (1984))). At oral
argument both the State and the Guardian ad Litem
acknowledged that a substantial language barrier may deprive
an indigent party of the statutory right to effective assistance of
counsel. We agree.
¶23 However, in State v. Pursifell, we explained that the
communication breakdown between an attorney and client must
be ‚complete,‛ and ‚so substantial as to rise to a . . . level
requiring appointment of new counsel.‛ 746 P.2d 270, 274 (Utah
Ct. App. 1987); see also In re J.F., 2013 UT App 288, ¶ 12 (‚[T]o
warrant substitution of counsel, a defendant must show good
cause, such as . . . a complete breakdown in communication.‛
(citation and internal quotation marks omitted)). Thus, the issue
before us is not whether a substantial language barrier resulting
in a complete breakdown of communication requires
substitution of counsel—it does. The issue rather is whether the
20140236-CA 10 2015 UT App 107In re A.C.
language barrier in this case resulted in such a breakdown of
communication.
¶24 Father fails to point to facts on the record demonstrating
that the language barrier in this case qualified as substantial
enough to prevent Counsel from providing effective assistance.
Counsel did, in the juvenile court and in briefs on appeal, assert
that ‚Father is from Lima*,+ Peru and doesn’t understand and
speak English.‛ But Counsel’s assertions, unsupported by
specific facts, do not establish that the language barrier rose to
the required level. Further, Counsel stated that ‚there’s some
confusion as to—to what extent [Father] understands and speaks
English.‛ Where Counsel acknowledges confusion exists on the
issue of Father’s English-speaking abilities, Counsel has an
obligation to establish specific facts to clarify the confusion.
¶25 We now consider the facts before the juvenile court here.
Father testified, through the in-court interpreter, that he lived in
the United States for eight years before his deportation; that he
learned some English during that time with the help of his wife
and at work; that he spoke ‚a little bit of English‛ with his wife
at home but that they mostly spoke Spanish; and that when he
spoke to his children on the phone, they would speak to him in
English and he would respond in English—albeit limited
English. These facts clear up some of the confusion surrounding
Father’s English proficiency and show that while he may not
speak English fluently, he has some ability to communicate in
English.
¶26 Counsel asserts ‚it is near impossible to translate legal
concepts and terminology without any legal knowledge or
background and with only a very limited English vocabulary.‛
However, ‚a lack of understanding as to legal terminology and
the way in which a case proceeds is certainly not unique to non-
English speakers.‛ State v. Jadama, 2010 UT App 107, ¶ 17, 232
P.3d 545. Accordingly, mere inability to understand legal
terminology does not establish a language barrier requiring
replacement of counsel.
20140236-CA 11 2015 UT App 107In re A.C.
¶27 The facts on the record also show that Father consulted,
privately, with his attorney through an interpreter before the
trial began; that Father understood the proceedings as they were
explained to him; and that Father testified on his own behalf
through the in-court interpreter.
¶28 The record also shows that Father had an opportunity to
demonstrate his lack of English ability. While we understand
that Counsel may have had difficulty establishing facts relevant
to Father’s English proficiency when Father did not appear for
the hearing on the matter, Counsel did have the opportunity
both before the trial began and during his direct examination of
Father to establish the necessary facts. In fact, the Guardian ad
Litem asked Father during cross-examination how long Father
lived in the United States (eight years) and whether he learned
any English during that time (‚Yes. A little bit of English . . .
with [my wife] and also . . . at work.‛). Thus, the Guardian ad
Litem established facts on the record showing Father had some
English ability.
¶29 In short, the record contains sparse factual development
of the alleged language barrier in this case. Accordingly, we are
not persuaded that the language barrier rose to the required
level or that Counsel had no opportunity to establish otherwise.
¶30 Further, ‚*t+he cause of the breakdown . . . in an attorney–
client relationship significantly affects whether the breakdown
. . . requires the court to substitute . . . court-appointed counsel.‛
In re J.F., 2013 UT App 288, ¶ 12, 317 P.3d 964 (second omission
in original) (citation and internal quotation marks omitted). An
indigent parent cannot show good cause when the breakdown is
due to his own failure to respond to counsel’s communications,
or is otherwise uncooperative. See id. ¶ 13.
¶31 Father asserts that ‚[i]t is improper to presume‛ that
‚*j+ust because *C+ounsel stated he could not communicate
with . . . Father and that communication was frustrated,‛ that
‚Father deliberately chose not to communicate with him.‛ Father
further asserts that ‚the record is silent as to any evidence‛ that
‚Father chose not to communicate with *C+ounsel.‛ On the
20140236-CA 12 2015 UT App 107In re A.C.
contrary, the court’s conversation with Counsel after Father
failed to appear for the continued hearing suggests Father’s
unwillingness to participate.5
¶32 Father did not appear (telephonically or otherwise) for the
hearing—a hearing that the juvenile court continued for his
benefit—and Counsel indicated that Father had notice of the
hearing ‚[a]t least through his family member.‛ In addition,
when the juvenile court decided to continue the hearing it did so
with the understanding that ‚if we can’t get a hold of *Father+ or
if he doesn’t avail himself of—of making himself available, then I
think we need to go ahead with the trial.‛ Thus, Counsel knew
the significance of Father’s appearance at the continued hearing.
¶33 Considering the facts on the record as a whole, we cannot
agree that the language barrier here prevented Father’s
understanding of the proceedings, deprived him from
participating in his own trial, denied him the ability to proffer a
viable defense to the allegations of sexual abuse, or prevented
Counsel from preparing for the case. While we recognize
Counsel’s communication difficulties, we are not persuaded that
the facts of record establish that the language barrier rose to the
level required ‚[t]o warrant substitution of counsel.‛ In re J.F.,
2013 UT App 288, ¶ 12. Accordingly, we hold that the juvenile
court did not abuse its discretion when it denied Father’s motion
for substitution of bilingual counsel.
II. The Motion to Continue
¶34 Finally, Father contends that the juvenile court erred
when it denied his motion to continue trial. Father asserts that
the juvenile court abused its discretion when it denied his
motion because denial of the motion prejudiced him.
¶35 ‚*O+nce a matter has been set for trial, the matter may be
continued only with the approval of the court.‛ Utah R. Juv. P.
5. See supra ¶ 9 for a complete recounting of court and Counsel’s
conversation.
20140236-CA 13 2015 UT App 107In re A.C.
54(a). ‚The juvenile court has substantial discretion in deciding
whether to grant or deny a request for a continuance, and that
discretion will not be disturbed unless that discretion has clearly
been abused.‛ In re V.L., 2008 UT App 88, ¶ 15, 182 P.3d 395.
¶36 In In re V.L., the father ‚argue*d+ that the juvenile court
abused its discretion in denying his motion for a continuance.‛
2008 UT App 88, ¶ 25, 182 P.3d 395. Specifically, he argued that
because the juvenile court appointed new counsel two weeks
before trial, the substitute counsel ‚did not have adequate time
to prepare.‛ Id. We explained then that the father ‚failed to
demonstrate with any specificity how the denial of his motion
for a continuance prejudiced him at trial.‛ Id. ¶ 26. We also
pointed out that ‚the termination proceedings were under way,
and the other parties would have been significantly
inconvenienced by any further delay‛ and that one of the other
parties objected to the continuance. Id. ¶ 27. Therefore, we
‚conclude*d+ that the juvenile court did not abuse its discretion
in denying [the] [f]ather’s motion for a continuance.‛ Id.
¶37 Here, the apparent reason to continue Father’s trial was to
allow substitute counsel time to come up to speed. But if the
father in In re V.L. did not establish prejudice due to a lack of
preparation when the juvenile court actually appointed new
counsel, Father has not shown here how he suffered prejudice
when he proceeded with existing counsel. Accordingly, we
conclude that the juvenile court did not abuse its discretion
when it denied Father’s motion.
¶38 In a subsidiary argument, Father asserts that ‚the juvenile
court erred in determining that it could not deviate from‛ the
eighteen-month time-limit for terminating parental rights set
forth in Utah Code section 78A-6-314(13)(c), ‚even
upon . . . good cause.‛
A decision on a petition for termination of parental
rights shall be made within 18 months from the
day on which the minor is removed from the
minor’s home.
20140236-CA 14 2015 UT App 107In re A.C.
Utah Code Ann. § 78A-6-314(13)(c) (LexisNexis 2012). Section
78A-6-314(13)(c) contains no express ‚good cause‛ exception to
its statutorily established time frame, but Father argues ‚*a+n
exception should have been applied herein given the
constitutional issues raised by [C]ounsel.‛ Thus, Father argues
his ‚constitutional Due Process rights trumped the state statute
or, at a minimum, provided ‘good cause’ to extend *the statutory
deadline+.‛
¶39 Father thus argues that section 78A-6-314(13)(c) is
unconstitutional as applied. However, Father provides no
authority to support his argument, nor does he provide any
meaningful legal analysis explaining why the statute as applied
in this case is unconstitutional. Given the inadequate briefing on
this issue, Father has failed to carry his burden of persuasion on
appeal. See Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 25, 254 P.3d
161.
¶40 Father also appears to argue that, even if his rights to due
process and effective assistance of counsel did not ‚trump‛ the
statute’s eighteen-month deadline, they at least provided good
cause for the juvenile court to disregard the requirements of
section 78A-6-314(13)(c). However, as stated, the principal
reason for the juvenile court to grant Father’s continuance was to
allow substitute counsel time to prepare. But here, the juvenile
court properly denied Father’s request for substitute counsel.
¶41 To the extent that Father argues that Counsel needed time
to prepare for trial, we have also already determined that the
facts of this case did not prevent Counsel from adequately
preparing for trial. In September 2013 the juvenile court
appointed Counsel to this case and on November 23, 2013, the
court set the case for trial on January 24, 2014. The State served
Counsel with the first amended verified petition on December
17, 2013. Eleven days before trial Counsel moved for a
continuance. At the hearing on Counsel’s motions, Counsel
acknowledged the untimeliness of his motion stating, ‚[A]s the
Court knows, we’ve had an extremely heavy calendar, all of us,
in January and previous, and so I haven’t had a whole lot of time
20140236-CA 15 2015 UT App 107In re A.C.
to focus on this case other than I’m having difficulty
communicating with my client.‛ On these facts, we cannot agree
that the juvenile court ‚clearly‛ abused its discretion in denying
the continuance. See In re V.L., 2008 UT App 88, ¶ 15, 182 P.3d
395.
¶42 Further, if good cause to substitute counsel does not exist
where the request stems from the client’s own ‚decision to avoid
communicating and cooperating with Counsel,‛ In re J.F., 2013
UT App 288, ¶ 13, 317 P.3d 964, it cannot exist if the client’s
uncooperativeness played a major role in Counsel’s lack of
preparation for trial. Where, as here, Counsel did not provide
the juvenile court with any assurance that his client would begin
to participate in his own defense, we cannot say the juvenile
court acted beyond the bounds of reason, or abused its
discretion, when it determined Counsel ‚may have an unwilling
client‛ and thus denied Counsel’s motion.
¶43 Accordingly, we affirm the juvenile court’s denial of
Father’s motion to continue.
CONCLUSION
¶44 The judgment of the juvenile court is affirmed.
20140236-CA 16 2015 UT App 107