Opinion
Case No. 20030737-CA.
Filed August 19, 2004. (Not For Official Publication).
Appeal from the Third District Juvenile, Salt Lake Department, The Honorable Kimberly K. Hornak.
Taniela Fiefia, Salt Lake City, for Appellant.
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.
Martha Pierce and Kristin L. Fadel, Salt Lake City, Guardians Ad Litem.
Before Judges Greenwood, Orme, and Thorne.
AMENDED MEMORANDUM DECISION
This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 20030737-CA issued on June 4, 2004.
L.C. appeals from the juvenile court's order terminating her parental rights to J.C. and M.C. (the Children). The juvenile court terminated L.C.'s parental rights after concluding that her actions satisfied nearly every condition of Utah Code Annotated section 78-3a-407 (2002). We affirm.
L.C. first argues that the evidence presented to the trial court does not support several of the trial court's findings. However, because the unchallenged findings support a conclusion that L.C. abandoned the Children, we do not address her challenges to the findings. Rather, we confine our analysis to determining whether the unchallenged findings support a conclusion that L.C. abandoned the Children. See In re J.D.M., 808 P.2d 1122, 1125 (Utah Ct.App. 1991) (noting that "it is unnecessary to address [alternative grounds]" when findings exist that support just one of the grounds relied upon in the termination order).
The test for abandonment is met when a trial court finds "`conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.'" Id. (citation omitted). Among the findings left unchallenged by L.C. are findings that she left the Children with relatives for several months without indicating when she would return and without contacting either the relatives or the Children during her absence; that L.C. failed to acknowledge, in any way, her oldest child's sixth birthday; and that although she spent two-to-three months out of jail in early 2003, L.C. did not contact, or make any effort to contact, the Children. The trial court further found that L.C. was a long-term drug addict, that her addiction had resulted in other criminal activities that led to her frequent incarceration, and that L.C. was incarcerated during most of the pendency of the child protective proceeding. Finally, the trial court found that the Division of Child and Family Services caseworker assigned to L.C. had repeatedly attempted to meet with L.C., but that L.C. failed, on every occasion, to attend the scheduled meetings. We conclude that the unchallenged findings demonstrate "`conduct on the part of [L.C. that] implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.'" Id. (citation omitted). Because the unchallenged findings support the trial court's termination order, we decline to address L.C.'s evidentiary challenge.
L.C. next argues that her trial counsel provided her with ineffective assistance. L.C. asserts that her counsel was ineffective in three distinct ways: (1) counsel failed to call witnesses that might have corroborated her story; (2) counsel failed to cross-examine case workers called by the State to testify; and (3) counsel failed to object to hearsay statements prejudicial to L.C.'s case. To succeed in a claim of ineffectiveness of trial counsel, L.C. must demonstrate that her counsel's performance was objectively deficient and that the deficient performance prejudiced her case. See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994). In the absence of a demonstration of prejudice, we need not examine counsel's performance. See State v. Arguelles, 921 P.2d 439, 441 (Utah 1996). To demonstrate prejudice, L.C. must "`proffer sufficient evidence to support "a reasonable probability that, but for . . . counsel's unprofessional errors, the result of the proceeding would have been different."'" Id. (citations omitted). However, "proof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality." Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). Finally, because we begin with the presumption that counsel's assistance was effective, "if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel." State v. Kingston, 2002 UT App 103, ¶ 8, 46 P.3d 761 (quotations and citations omitted).
Regarding L.C.'s first two claims, her arguments focus on what certain uncalled witnesses' testimony might have been had counsel either called L.C.'s identified witnesses or cross-examined the case workers. L.C. offers nothing from the trial court record to support her assertions concerning what the witnesses' testimony would have been. Consequently, she asks this court to "assess the probable impact of testimony without placing before us the substance of that testimony." Arguelles, 921 P.2d at 441. Because her argument is nothing more than an "invitation to speculate," id., L.C has failed to show that she was prejudiced by either of these claimed "deficiencies."
Intertwined with L.C.'s argument concerning her counsel's failure to call a witness is an additional assertion that counsel "should have requested a bifurcation of the two children's cases." However, a counsel's failure to attempt futile measures does not amount to ineffective assistance of counsel. See State v. Chacon, 962 P.2d 48, 51 (Utah 1998) (stating "[n]either speculative claims nor counsel's failure to make futile objections establishes ineffective assistance of counsel"). Under the circumstances presented here, the results would not have changed had the termination proceedings been bifurcated. L.C.'s behavior was clearly the source of the trial court's determination that she had abandoned the Children, and her abandonment, coupled with her long-standing, untreated, and deeply entrenched drug habit, established that termination was in the Children's best interests. L.C. has produced nothing that would suggest that she treated the Children any differently or that forcing the court to twice examine the evidence would have changed the outcome in any way. Therefore, her bifurcation-based claim fails on its merits.
Finally, L.C. argues that certain of the trial court's findings resulted solely from hearsay that her counsel failed to exclude. We conclude that this argument is also without merit. Although the State concedes that the statements "were indeed hearsay," see Utah R. Evid. 801(c), "[i]n the absence of an adequate record on appeal, we cannot address the issues raised and presume the correctness" of the proceedings below. State v. Rawlings, 829 P.2d 150, 152 (Utah Ct.App. 1992). Nowhere in the record presented to this court do we find the testimony that L.C. believes to be objectionable. Consequently, it is impossible for this court to assess accurately the testimony, L.C.'s counsel's reaction, or the reasons that might underlie her counsel's reaction. Therefore, we must presume that L.C.'s trial counsel provided her effective counsel during the challenged testimony. Moreover, the findings that L.C. points to as prompted by the hearsay statements are clearly supported by other evidence in the record, including testimony from L.C. herself. Therefore, L.C. has failed to demonstrate that "`"but for . . . counsel's [failure to object to certain hearsay statements], the result of the proceeding would have been different."'" Arguelles, 921 P.2d at 441 (citations omitted).
Many of the findings L.C. challenges deal with DCFS's "reasonable efforts." However, in an instance where parental rights are terminated due to abandonment, no finding of reasonable efforts is required. See Utah Code Ann. § 78-3a-407(3)(a) (2002).
Accordingly, we affirm the trial court's decision to terminate L.C.'s parental rights to the Children.
WE CONCUR: Pamela T. Greenwood, Judge, Gregory K. Orme, Judge.