May 16, 2013 Utah Court of Appeals Case Summaries

May 16, 2013

Utah Court of Appeals Cases

Fu v. Rhodes, 2013 UT App 120, No. 20110081-CA (May 16, 2013)

ISSUE: Striking Answer and Entering Default Judgment as  Rule 37 Sanctions 

Judge Davis,

[Defendants] appeal from an Order and Judgment, claiming that the trial court abused its discretion by striking their Answer and entering judgment against them as a discovery sanction pursuant to rule 37 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 37(e)(2). [Alternatively], Defendants contend that even if the sanction was otherwise appropriate, the trial court erred by entering judgment because [Plaintiff]’s Complaint fails to set forth factual allegations supporting the relief requested.

Affirmed and remanded for calculation of fees on appeal.

At ¶ 1

The Court details the claims and allegations contained in the original Complaint.

At ¶ 2

The Court outlines the facts of the case.

¶ 3-7.

ISSUES AND STANDARDS OF REVIEW

Defendants argue that the rule 37 sanctions the trial court imposed in this case—striking their Answer and entering default judgment—were unduly severe and therefore constituted an abuse of the trial court’s discretion. See generally Utah R. Civ. P. 37(e)(2). “As a general rule, district courts are granted a great deal of deference in selecting discovery sanctions, and we overturn a sanction only in cases evidencing a clear abuse of discretion.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957.

Defendants also contend that even if it was otherwise appropriate for the trial court to strike their Answer, the trial court erred when it entered default judgment because the facts alleged in the Complaint do not support recovery under the stated legal theories. Defendants concede that this issue was not preserved but assert that supreme court precedent belies the necessity of preserving this type of claim for appeal. See infra ¶ 14. We generally do not consider claims raised for the first time on appeal unless they fall under a recognized exception to the preservation rule. See Strawberry Elec. Serv. Dist. v. Spanish Fork City, 918 P.2d 870, 880 (Utah 1996).

At ¶¶ 8-9.

ANALYSIS—Severity of Sanctions

In reviewing a challenge to rule 37 sanctions, we first “consider whether the district court was justified in ordering sanctions” and “then review the type and amount of sanctions for abuse of discretion.” PC Crane Serv., LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 32, 273 P.3d 396. . . . “Even though dismissing an action is ‘one of the most severe of the potential sanctions that can be imposed, it is clear from the language of rule 37 that it is within a trial court’s discretion to impose such a sanction.’” Allen v.Ciokewicz, 2012 UT App 162, ¶ 32, 280 P.3d 425 (quoting Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997)); see also Utah R. Civ. P. 37(e)(2). Accordingly, Defendants undertake a significant

burden in attempting to show that the trial court abused its discretion in striking their Answer and entering default judgment. To meet that burden, Defendants “must show either that the sanction is based on an erroneous conclusion of law or that the sanction lacks an evidentiary basis.” SFR, Inc. v. Comtrol, Inc., 2008

UT App 31, ¶ 14, 177 P.3d 629 (citation and internal quotation marks omitted). Defendants have failed to identify any error of law, and the record supports the trial court’s decision.

The trial court expressly warned Defendants…they were at risk of having judgment entered against them…if they “fail[ed] to provide all requested discovery within ten days… .Not only did they fail to meet this deadline, but they failed to provide the requested discovery even by the extended…deadline stipulated to in the amended case management order. By the time the trial court entered judgment against Defendants…nearly sixteen months had passed since the trial court’s initial deadline and the discovery requests were still outstanding. The trial court afforded Defendants two opportunities to be heard before striking their Answer and entering default. Ultimately… the court found that [Plaintiff’s] motion for entry of judgment was “based on good cause and should be granted” due to “[D]efendants’ continued failures to comply with timely discovery, their failure to comply with the Court’s previously entered Order to Compel, and their failure to comply with the Case Management Orders.” Under these circumstances, we are not convinced that it was an abuse of the trial court’s discretion to strike the Answer and enter default judgment. See Morton, 938 P.2d at 275–76… .

At ¶¶ 10-11.

ANALYSIS—Sufficiency of the Complaint

Next, Defendants argue that even if striking their Answer was appropriate, the facts alleged in the Complaint do not support recovery under the legal theories pleaded . . . . As discussed, rule 37 provides that “the court in which the action is pending may impose appropriate sanctions for the failure to follow its orders, including . . . render judgment by default on all or part of the action.” See Utah R. Civ. P. 37(e)(2)(D) (emphasis added); see also Knouff v. United States, 74 F.R.D. 555, 557… . Nevertheless, as Defendants point out, that power is tempered by the requirement that the entry of judgment be supported by the well‐pleaded allegations of the complaint. As the Utah Supreme Court has explained,

[A d]efendant’s failure to answer and ensuing default . . . require the court to accept the factual allegations as true, but the court [should] enter judgment as requested only if it determined those facts established an actionable claim. Were the rule otherwise, a court could be obligated to enter a money judgment on a complaint as frivolous as a refusal to share recipes with a neighbor. Thus, the court must determine whether an actionable claim exists.

American Towers Owners Ass’n, Inc. v. CCI Mech., Inc., 930 P.2d 1182,

1194 (Utah 1996)…, abrogated on other grounds by Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65, 221 P.3d 234.

Accordingly, “[a] trial court asked to render a judgment by default must first conclude that the uncontroverted allegations of an applicant’s petition are, on their face, legally sufficient to establish a valid claim against the defaulting party.” Stevens v. Collard, 837 P.2d 593, 595 (Utah Ct. App. 1992); see also id. at 598… . Defendants contend that the same requirements must be met before judgment can be entered as a discovery sanction. See, e.g., Microsoft Corp. v. Computer Care Ctr., Inc., 2008 WL 4179653, at *6 (E.D.N.Y. Sept. 10, 2008)… . [Plaintiff] argues that we should not evaluate the sufficiency of the Complaint on appeal because Defendants did not raise this issue in the trial court. The defense of “failure to state a claim can[not] be raised for the first time on appeal.” Smith v. Vuicich, 699 P.2d 763, 765 (Utah 1985) (per curiam)… . Nevertheless, Defendants insist that when a trial court strikes a party’s pleading and enters a default judgment, the party may challenge the sufficiency of the complaint to support the judgment for the first time on appeal. Defendants’ position is not supported by our jurisprudence.

At ¶ 12-14.

Despite our precedent directly addressing the preservation rule in the context of a default judgment, Defendants point us to the supreme court’s statement in Skanchy v. Calcados Ortope SA, 952 P.2d 1071 (Utah 1998), that “[o]n appeal from a default judgment, a defendant may contest ‘the sufficiency of the complaint and its allegations to support the judgment.’” Id. at 1076… . Taken out of context, this statement appears to suggest an exception to the preservation rule.

At ¶ 16

The Court analyzes Skanchy and the case on which it relies, Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5^th Cir. 1975).

At ¶ 17.

[T]he Skanchy opinion does not refer to the preservation rule at all and does not seem to view the challenge to the sufficiency of the complaint as being raised for the first time on appeal. [Skanchy, 952 P.2d] at 1076–77. We are unwilling to take the Skanchy court’s isolated statement…as a definitive ruling carving out an exception to the preservation requirement, especially in light of our undisturbed precedent in Sixteen Thousand explicitly requiring preservation. See Sixteen Thousand, 914 P.2d at 1178–79.

At ¶ 18.

[E]ven if a defense of failure to state a claim could be raised for the first time on appeal in the context of a default judgment entered for failure to appear, it is not reasonable for such a rule to extend to an appeal of a default judgment entered pursuant to rule 37. […] [A] defendant who has a default judgment entered against him as a discovery sanction will have had every opportunity to raise a defense for failure to state a claim before the trial court. Accordingly, any rationale that might exist for permitting a defendant to bypass the trial court and raise such a challenge for the first time on appeal in the context of a default judgment entered for failure to appear does not support such a rule with respect to a default judgment entered as a discovery sanction. […] Because trial courts should generally be afforded “an opportunity to correct error and to end controversies before an appeal becomes necessary,”6 id. at 1179, we decline to take upon ourselves the burden of weighing the sufficiency of the pleadings on appeal without the benefit of the trial court’s analysis where Defendants had every opportunity to raise the issue in the trial court.

At ¶ 19

ANALYSIS—Attorney Fees on Appeal

The Court briefly discussed liability for Attorney Fees on Appeal.

.At ¶ 20.

CONCLUSION

The trial court did not abuse its discretion by striking Defendants’ Answer and entering default judgment against Defendants as a discovery sanction. Furthermore, because Defendants have failed to preserve their claim that the facts alleged in the Complaint do not support recovery under the stated legal theories, we do not address that issue on appeal. Accordingly, we affirm the trial court’s Order and Judgment. We also award Fu attorney fees and costs reasonably incurred on appeal, to be calculated by the trial court on remand.

At ¶ 21

Concurring in part, dissenting in part

Judge McHugh,

I concur with part I of the majority’s decision, but I respectfully dissent from part II regarding whether a party may challenge the sufficiency of the complaint to support a default judgment for the first time on appeal. Accordingly, I would consider whether [Plaintiff’s] Complaint states a claim upon which relief can be granted against each of the Defendants. Upon review of the Complaint, I would conclude that it does so as to Rhodes but fails to state a claim against Naso and Evans. As a result, I would affirm the default judgment against Rhodes but reverse as to Naso and Evans.

At ¶ 22-56.

Johnson v. Weber County, 2013 UT App 121, No.20120368-CA (May 16, 2013)

ISSUE: Definition of a “School” of Zoning Purposes

Judge Davis,

Susan D. Johnson, Chris L. Johnson, Christina Granath, and Lonnie Cassidy Verhaal (the Residents) appeal the grant of summary judgment in favor of Weber County (the County). We affirm.

At ¶ 1

This is an appeal from the district court’s affirmance of the Weber County Board of Adjustment’s (the BOA) decision approving that Planning Commission’s determination that a proposed “specialty school” was a “school” under the Weber County Zoning Ordinance (the Ordinance) and is therefore a permitted use within the proposed AV-3 Zone.

At ¶ 2–5

The Residents contend that the BOA’s decision was arbitrary, capricious, illegal, and not supported by substantial evidence, thereby rendering summary judgment in favor of Green Valley inappropriate. “A final decision of a land use authority or an  appeal  authority  is  valid  if  the  decision  is  supported  by substantial evidence in the record and is not arbitrary, capricious, or illegal.” Utah Code Ann. §17-27a-801(3)(c) (LexisNexis 2009). “A determination of illegality requires a determination that the decision, ordinance, or regulation violates a law, statute, or ordinance in effect at the time the decision was made or the ordinance or regulation adopted.” Id. § 17-27a-801(3)(d).

At 7

The Residents contend that the BOA’s decision was illegal and arbitrary and capricious because it was made in violation of the Ordinance and was not supported by substantial evidence. Though the Residents “concede that the instruction and education” aspect of Green Valley “would, in fact, qualify as a school . . . under Weber County’s Ordinance and under the Crist [v. Bishop, 520-P.2d 196 (Utah 1974)] decision,” they argue that Green Valley nonetheless fails to qualify as a school because its “residential component . . . [is] otherwise not” permitted in the AV-3 Zone. The Residents assert that Green Valley’s main use is as a residence for troubled youth and that by calling it a school, Green Valley attempts to make “an end run around the [O]rdinance.” In other words, the Residents argue that the school is not enough of a school. We disagree.

At ¶ 8

The Ordinance defines a school as follows:

A public elementary or secondary school, charter, seminary, parochial school, or private educational institution having a curriculum similar to that ordinarily given in grades one through twelve in the public school system. The term “education institution” for the purpose of this Ordinance does not include post high school educational facilities.

Weber County, Utah, Zoning Ordinance, § 1-6, available at http://www.co.weber.ut.us/mediawiki/index.php/General_Provi sions_%26_Definitions (last visited May 13, 2013). The term “schools” was also defined in Crist, in which the supreme court was asked to construe a zoning ordinance that did not define that term. See Crist, 520 P.2d at 197. The Crist court noted “that it is not the name used that determines the character of an institution[;] . . . this is to be ascertained from what it actually consists of and its method of operation.” Id. The court interpreted “schools” to mean, “institutions for education and training[,  t]he requisites of [which] . . . are: some physical facility, teachers, a curriculum for study or

At ¶ 9

However, as stated above, because schools are a type of permitted use in the AV-3 Zone and Green Valley meets the definition of “school” provided in the Ordinance, the fact that GreenValley also includes amenities and programs not specifically identified in the Ordinance does not, under the facts and circumstances of this case, mean it no longer qualifies as a school. As observed in Crist, despite variations in teaching style, discipline, or amenities available for students, certain requisites are “present in greater or lesser degree in practically all schools; and they may vary greatly without preventing one from being properly so characterized.” Crist v. Bishop, 520 P.2d 196, 199 (Utah 1974).Thus, while the Ordinance does contain the limitation that “uses not listed are not allowed,” we do not interpret that to mean that every type of school that is actually permitted by the Ordinance must be enumerated, rather than evaluated on a case-by-case basis in accordance with the definition provided in the Ordinance. Additionally, the Residents’ assertion that boarding schools are permitted in other zones is incorrect; no part of the Ordinance specifically provides for boarding schools, though boarding houses are permitted in different zones. Likewise, the multi-unit residential facilities permitted in the AV-3 Zone are not all limited to eight residents; convalescent or rest homes are a conditional use allowed in the zone, and the Ordinance does not explicitly cap the number of people such facilities can house. In other words, it is not clear how large the Green Valley housing facility would have to be for the district court to necessarily conclude that it is not in keeping with the purpose of the AV-3 Zone.

At ¶ 14

In re M.J. and T.J., 2013 UT App 122, Case No. 20120560-CA (May 16, 2013)

ISSUE: Termination of parental rights

Judge McHugh,

J.J. (Mother) appeals the juvenile court’s order terminating her parental rights in M.J. and T.J. (collectively, the Children), claiming that there was insufficient evidence to demonstrate that termination was in the Children’s best interests. We affirm.

At ¶1

The Court reviews the facts of the case.

At ¶ 2–19

Mother first argues that the juvenile court’s decision not to place the Children with the Adoptive Parents denied her “due process regarding her residual parental rights.” However, she failed to preserve this issue for appeal.

At  ¶ 22–23

In determining whether termination of a parent’s rights is in the best interest of a child, the juvenile court must, at a minimum, consider “the physical, mental, or emotional condition and needs of the child . . . ,” as well as “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return him to his home after a reasonable length of time.”

In re D.R.A., 2011 UT App 397, ¶ 10, 266 P.3d 844 (quoting Utah Code Ann. § 78A-6-509(1) (2008) (current version at id. (LexisNexis 2012))). Although Utah Code section 78A-6-509 sets forth certain factors that the juvenile court must consider, it “is not limited to” those factors in determining whether the parental rights of a parent who is not in physical custody of a child should be terminated. See Utah Code Ann. § 78A-6-509(1). Furthermore, while “evidence of unfitness may be probative of both factors of the termination analysis,” “the best interest analysis includes consideration of the impact of termination on the child, rather than simply on evaluating whether the statutory grounds for termination have been met.” In re J.D., 2011 UT App 184, ¶ 12, 257 P.3d 1062.

At ¶ 26

The Court reviews the Juvenile Court’s findings regarding the best interest of the chld and determines that they were supported by substantial evidence.

At ¶ 28.

Mother argues that the best interests determination is erroneous because DCFS and the juvenile court failed to investigate placing the Children with their older siblings as required by Utah Code section 78A-6-312(19). See Utah Code Ann. § 78A-6-312(19) (LexisNexis 2012) (“When a court conducts a permanency hearing for a minor . . . , the court shall attempt to keep the minor’s sibling group together if keeping the sibling group together is: (a) practicable; and (b) in accordance with the best interest of the minor.”) Mother also contends that the best interests analysis is erroneous because the juvenile court failed to apply the permanency considerations of section 78A-6-312(19) when it considered the bond between the Children and the Foster Parents for purposes of the 78A-6-510 factors. See id. § 78A-6-510 (describing specific factors the juvenile court should consider during a termination proceeding where a child has been placed in a foster home). Mother claims that the two statutes must be read harmoniously and that the preferences must first be determined at permanency hearings prior to a consideration of best interests at termination.

At ¶ 29

To the extent the sibling placement issue has any relevance to these proceedings, it is limited to the weight the juvenile court should give the strength of the bond between Foster Parents and the Children. . . . We are convinced that the juvenile court did not exceed its discretion in considering the Children’s bond with Foster Parents in its best interests determination.

At ¶ 30.

We also reject Mother’s assertion that the juvenile court should not have considered the bond between the Children and the Foster Parents because sibling placement in section 78A-6-312(19) requires the Children to be placed with their older siblings. See id. § 78A‐6‐312(19). . . . Although the Utah Code does not define what constitutes a “sibling group,” the use of the term “group,” rather than just “sibling,” suggests an affiliation based on more than genetics.

Furthermore, section 78A-6-312(19) permits a placement by its plain terms that separates a “sibling group” when it is not “practicable” or it is not “in accordance with the best interest of the minor.” See Utah Code Ann. § 78A-6-312(19).

At ¶¶ 33- 34

The Court reviews that facts and determines that “the juvenile court could properly

conclude that it was in the Children’s best interests to place them with the Foster Parents rather than with the Adoptive Parents and the older children.”

At ¶ 34.

Clawson v. Labor Commission, 2013 UT App 123, Case No. 20120560-CA (May 16, 2013)

ISSUE: Permanent Disability

Judge Roth,

Petitioner Randy James Clawson petitions for review of a Utah Labor Commission Appeals Board (the Board) decision to deny his claim for permanent total disability compensation. See generally Utah Code Ann. § 34A‐2‐413(1) (LexisNexis 2011). We set aside the Board’s decision and direct the Board to reconsider Clawson’s claim.

At ¶ 1

The court reviews the facts and the procedural posture of the case.

At ¶ 2–6

Under the Workers’ Compensation Act, “[t]o establish entitlement to permanent total disability compensation, the employee shall prove by a preponderance of the evidence that (i) the employee sustained a significant impairment . . . as a result of the . . . occupational disease that gives rise to the permanent total disability entitlement; (ii) the employee has a permanent, total disability; and (iii) the . . . occupational disease is the direct cause of the employee’s permanent total disability.” Utah Code Ann. § 34A‐2‐413(1)(b) (LexisNexis 2011). “To establish that an employee has a permanent, total disability,” the act requires that the employee “prove by a preponderance of the evidence that” the employee is unable to work. Id. § 34A‐2‐413(1)(c)(i)–(iv).

At ¶ 7

The Court reviews the Board’s procedure.

At ¶ 8–12

The Court instructs the Board to reconsider the issue because it finds that Clawson’s occupational disease may constitute a significant impairment and that Clawson’s silicosis may be the direct cause of a permanent total disability that renders him unable to work.

At ¶¶ 13–24

Roper v. Shovan, 2013 UT App 124, No. 20130134-CA (May 16, 2013)

ISSUE: Civil Stalking Injunction

Per Curiam,

Appellant Jacob Michael Shovan appeals the district court’s issuance of a civil stalking injunction. Accordingly, the issues before this court are limited to a determination whether the district court erred in issuing the civil stalking injunction. . . . This case is before the court on a sua sponte motion for summary disposition.

At ¶ 1

“In order to enter a civil stalking injunction, the district court must conclude that ‘an offense of stalking has occurred’ that meets the criteria for the ‘crime of stalking as defined by [Utah Code] section 76-5-106.5(2)’—the criminal stalking statute.” Coombs v. Dietrich, 2011 UT App 136, ¶ 2, 253 P.3d 1121 (quoting Utah Code Ann. § 77-3a-101(1), (5) (2008)).

A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person or . . . to suffer other emotional distress.

Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012). “Course of conduct” includes “two or more acts directed at or toward a specific person, including . . . acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to . . . a person . . . directly” or “approaches or confronts a person.” Id. § 76-5-106.5(1)(b)(i),(ii).

At ¶ 2

The Court reviews the facts of the case.

At ¶¶ 3–4

Shovan contends that the district court in the civil stalking case incorrectly considered how Roper “felt” in ruling on the civil stalking injunction. “A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person” to fear for her safety or the safety of a third person or “to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2). “‘Reasonable person’ means a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(e). Roper alleged two incidents in which Shovan confronted her at the children’s school or in her neighborhood and acted in a confrontational or harassing manner toward her. Under the civil stalking statute, the district court appropriately considered Roper’s reaction to Shovan’s behavior as a reasonable person under the victim’s circumstances. The district court’s findings are not clearly erroneous and support the civil stalking injunction.

At ¶ 5

The court discusses Shovan’s claim that the district court prevented him from presenting all relevant evidence regarding the two alleged incidents of stalking. The court finds that Shovan had multiple opportunities to present all evidence to the court.

At ¶ 6–7

Shovan also claims that the district court exhibited bias or prejudice towards him. A claim of judicial bias or prejudice must be raised in a timely manner by a motion filed in the district court under rule 63 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 63(b). Shovan did not file such a motion. Accordingly, we also do not consider that claim because it is raised for the first time on appeal.

At ¶ 8

Finally, Shovan claims that Roper was generally untruthful in her testimony and therefore this court should disregard it on appeal. However, we defer to the advantaged position of the district court to make credibility determinations and will not substitute our judgment for that of the district court. Salt Lake City v. Hughes, 2011 UT App 128, ¶ 5, 253 P.3d 1118 (“It is the province of the trier of fact to assess the credibility of witnesses, and we will not second-guess the trial court where there is a reasonable basis to support its findings.”).

At  ¶ 9

State v. Nacey, 2013 UT App 125, No. 20110622-CA (May 16, 2013, 2013)

ISSUE: Preservation of Issue for Appeal

Per Curiam,

Patrick Robert Nacey appeals his conviction of attempted rape. He argues that there was insufficient evidence to support the conviction. We affirm.

At ¶ 1

Nacey argues that he preserved his sufficiency of the evidence claim through motions for a directed verdict, which he made both at the close of the State’s case-in-chief and before the case was submitted to the jury. However, the record demonstrates that Nacey’s motions for a directed verdict only raised the issue concerning whether there was sufficient evidence to support the rape charge, i.e., whether there was evidence of penetration. Nacey’s argument on appeal is that there was insufficient evidence to support the conviction of attempted rape because the victim’s testimony was too unreliable to establish attempted rape beyond a reasonable doubt. Nacey’s motions to the district court were insufficient to preserve the issue he now raises on appeal.

At ¶ 2

The court explains that Nacey must show that the district court committed plain error when it submitted the case to the jury. However, the court found that Nacey could not provide sufficient evidence to show that the district court committed plain error when it submitted the case to the jury. Affirmed.

At ¶ 3–6

In re K.K. and K.K., 2013 UT App 126, No. 20120868-CA (May 16, 2013)

ISSUE: Appeal for Order Terminating Parental Rights

Per Curiam,

R.W.K. (Father) appeals the September 27, 2012 order terminating his parental rights. We affirm.

At ¶ 1

Father asserts that there was insufficient evidence to support the juvenile court’s determination that there were adequate grounds to terminate his parental rights under Utah Code section 78-6-507 given his recent efforts to cure the issues which caused K.K. and K.K. (children) to be in an out of home placement. In order to overturn the juvenile court’s decision as to the sufficiency of the evidence, “[t]he result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.

At ¶ 2

The court found that the record supports the juvenile court’s determination that Father neglected his children, thereby justifying the termination of his parental rights.

At ¶ 3–4

Father next asserts that rules 55 and 58 of the Utah Rules of Appellate Procedure unconstitutionally deny his right to a meaningful appeal by permitting appellate review absent full briefing. The Utah Supreme Court has resolved this issue and determined that an appellate court may constitutionally render a decision on the merits with only a presentation of the issues along with an appellate court’s independent examination of the record. See In re B.A.P., 2006 UT 68, ¶ 20, 148 P.3d 934.

At ¶ 5

In re R. D. (B. H. v. State), 2013 UT App 127, No. 20130270-CA (May 16, 2013, 2013)

ISSUE: Appeal for Order Terminating Parental Rights

Per Curiam,

B. H. appeals the juvenile court’s order terminating her parental rights in R.D. She first asserts that the court committed plain error when it permitted the father’s counsel to represent him when counsel had a conflict of interest. To demonstrate plain error, a party must show that an error exists, that the error should have been obvious to the court, and that there is a reasonable likelihood that the error affected the outcome of the case. In this case, there is nothing in the record to indicate that the court was aware of a conflict of interest. Therefore, B. H. cannot establish plain error. Next, B. H. asserts that there was insufficient evidence to terminate her parental rights. The Court finds that there was sufficient evidence, and affirmed the termination B. H.’s parental rights.