Opinion
Case No. 20020569-CA.
Filed October 17, 2003. (Not For Official Publication)
Appeal from the Third District Juvenile, Sandy Department, The Honorable Olof A. Johansson.
Gary L. Bell, South Jordan, for Appellant.
Mark L. Shurtleff, Carol L. Verdoia, and John M. Peterson, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges Billings, Bench, and Thorne.
Appellant E.B. appeals from the juvenile court order terminating her parental rights to J.B. and L.B. We affirm.
E.B. asserts that the juvenile court committed plain error in failing to sua sponte order a mistrial. Specifically, E.B. argues that her trial counsel erred in failing to move for a mistrial upon his appointment as substitute counsel in the midst of her termination trial and that, upon receiving no motion for mistrial, the trial court erred when it failed to sua sponte order a mistrial.
"`[I]neffective assistance of counsel [may] be raised on appeal [only] if [1] the trial record is adequate to permit decision of the issue and [2] the defendant is represented by counsel other than trial counsel.'"State v. Litherland, 2000 UT 76, ¶ 9, 12 P.3d 92. "[W]here, on direct appeal, [appellant] raises a claim that trial counsel was ineffective (and assuming [appellant] is represented by different counsel than at trial), defendant bears the burden of assuring the record is adequate." Id. at ¶ 16. "The necessary consequence of this burden is that an appellate court will presume that any argument of ineffectiveness presented to it is supported by all the relevant evidence of which [appellant] is aware."Id. at ¶ 17. "Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively." Id.
Here, E.B.'s argument is best described as a request for this court to declare trial counsel's performance ineffective per se. We are not willing to do so in this case. First, E.B.'s argument is foreclosed by the fact that her trial counsel of record is also counsel on appeal. See Litherland, 2000 UT 76 at ¶ 9. Second, E.B. affirmatively declined to submit a transcript of the proceedings below. Thus, even if E.B. were represented by different counsel, we would have no choice but to determine that counsel represented E.B.'s interests effectively in this case. See id.; see also Taylor v. Warden, 905 P.2d 277, 287 (Utah 1995) ("A bad outcome alone does not permit an inference of deficient performance.").
E.B. also argues, separately, that the trial court erred in failing to declare a mistrial following the appointment of substitute counsel in the midst of the termination trial. Because this issue was not preserved below, E.B. must demonstrate that the trial court committed plain error. To succeed, E.B. must show that (1) an error exists, (2) "the error should have been obvious to the [j]uvenile court; and [(3)] the error is harmful." In re T.M., 2003 UT App 191, ¶ 26, 73 P.3d 959 (quotations and citations omitted) (first alteration in original). Here, E.B.'s claim of error is predicated on her previous ineffectiveness argument. Because we presume E.B.'s trial counsel was effective, we conclude that E.B.'s claim is without merit.
Moreover, to the extent that E.B. argues that the juvenile court had a duty to begin the proceedings anew upon the appointment of substitute counsel, E.B. is incorrect. "For purposes of determining whether a mistrial should have been granted, our overriding concern is that [E.B.] received a fair trial." State v. Harmon, 956 P.2d 262, 276 (Utah 1998). Moreover, when considering whether to order a mistrial, the trial court "must determine whether an incident may have or probably influenced the [fact finder] to the prejudice of the defendant." Id. at 271.
In the instant case, the State's termination petition was tried before the bench, not a jury, and E.B. has proffered nothing that would lead this court to believe that the trial court was negatively influenced by the change of counsel. Moreover, without a record, we have no choice but to assume that E.B. received a fair trial. See Litherland, 2000 UT 76 at ¶ 11 ("On appeal, it is the [appellant's] obligation to provide supporting arguments by citation to the record. '"If an appellant fails to provide an adequate record on appeal, this Court must assume the regularity of the proceedings below."'" (citations omitted)).
Accordingly, we affirm the order of the juvenile court, terminating E.B.'s parental rights to J.B. and L.B.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge.