Opinion
Case No. 20020567-CA.
Filed October 17, 2003. (Not For Official Publication)
Appeal from the Third District Juvenile, Salt Lake Department, The Honorable Olof A. Johansson.
Jeffrey J. Noland, Salt Lake City, for Appellant.
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Before Judges Billings, Bench, and Thorne.
D.T. appeals from an order terminating his parental rights in L.B., and the trial court's subsequent denial of his motion for relief from that judgment. We affirm the trial court on both counts.
D.T. first argues that the trial court erred in denying his motion to continue made the morning of the termination trial. "`[T]rial courts have substantial discretion in deciding whether to grant continuances,' and their decision[s] will not be overturned unless that discretion has been clearly abused." Brown v. Glover, 2000 UT 89, ¶ 43, 16 P.3d 540 (citation omitted). "[A]n abuse of discretion may be found if a party has `made timely objections, [has] given necessary notice, and has made a reasonable effort to have the trial date changed for good cause.'" Id. (second alteration in original) (citation omitted). In the instant case, on the morning of the trial, which had previously been rescheduled at D.T.'s request, D.T.'s attorney presented the trial court with a letter from D.T. The court interpreted the letter as a motion to continue, which the court denied.
After reviewing the record, we conclude that the trial court acted well within the permitted range of its discretion. Not only was the motion presented in an untimely fashion, D.T. failed to provide notice of his motion to both the guardian ad litem and the State's attorney. Moreover, during the two months between the original trial date and the date of the rescheduled hearing, D.T. made no effort to have the hearing date moved, regardless of the cause, until the day set for trial had actually arrived. From these facts, we conclude that the trial court did not exceed its permitted range of discretion in denying D.T. a second, and last minute, continuance.
D.T. next argues that his trial counsel was ineffective. A parent who is subject to the termination of their parental rights has the right to be effectively represented by counsel throughout the proceedings. In re E.H., 880 P.2d 11, 13 (Utah Ct.App. 1994). When, on appeal, the quality of that representation is challenged, we must examine counsel's performance under the factors set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2069 (1984). See id. However, "`ineffective 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.
To the extent that D.T.'s argument is that trial counsel was ineffective per se, we note that "only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial."United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct. 2039, 2048 (1984). D.T.'s argument centers solely on one specific claim and not counsel's action throughout the proceedings as a whole, thus, we cannot conclude that trial counsel's performance was ineffective per se.
Generally, when the sufficiency of service of process is uncertain, it is incumbent upon counsel to raise this claim to ensure the effective representation of his or her client. However, for reasons that are clearly presented in this decision, we cannot conclude that trial counsel performed ineffectively in this case.
Here, although D.T. submitted the entire documentary record collected by the juvenile court during the proceedings concerning L.B., he submitted only four pages of the trial transcript to support his ineffectiveness claim. From these pages, D.T. urges this court to conclude that his trial counsel was deficient because he failed to raise the issue of inadequacy of the service of process. However, our mandate is clear in proceedings alleging ineffective assistance of counsel, in the absence of a sufficient transcript we will construe any ambiguities or deficiencies "in favor of a finding that counsel performed effectively." Id. Because D.T. failed to submit anything more than four pages of the trial record, we must presume that somewhere in the missing pages trial counsel raised the issue, see id., and in doing so, we presume that counsel performed effectively.
Moreover, "[i]f a rational basis for counsel's performance can be articulated, we will assume counsel acted competently. Indeed, authority from this court supports the notion that an ineffective assistance claim succeeds only when no conceivable legitimate tactic or strategy can be surmised from counsel's actions." State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.App. 1993). Here, D.T. argues that counsel erred in failing to raise the insufficiency of the service of process. However, while there is little question that D.T. was never properly served, it is conceivable that counsel believed his case to be strong enough to overcome the petition and that a challenge to the service of process would merely delay D.T.'s vindication and subsequent reunion with L.B. Thus, counsel may have made the tactical decision to forego challenging the service of process. Accordingly, we must presume trial counsel was not ineffective.
Our speculation concerning counsel's motivation is fueled, in part, by the lack of a trial record. Without an adequate record, we have nothing that would counter such a theory, and "[w]here 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." State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 93.
Finally, D.T. argues that the trial court erred in denying his rule 60(b) motion. See Utah R.Civ.P. 60(b)(4) (applicable when the trial court finds "the judgment is void"). A trial court's decision to grant or deny a rule 60(b) motion in this situation presents a mixed question of law and fact. See Cooke v. Cooke, 2001 UT App 110, ¶ 7, 22 P.3d 1249. Whether a defendant was properly served with process is a question of fact, reviewed under the clearly erroneous standard. See id. If the trial court finds that the defendant was not served, absent a subsequent finding that defendant waived any objection to the sufficiency of service, the court must grant the motion.
Underlying this rule is the fact that, in the absence of proper service, the court was never vested with personal jurisdiction over the defendant and the judgment is void as a matter of law. See generally Classic Cabinets, Inc. v. All Am. Life Ins. Co., 1999 UT App 88, ¶ 9, 978 P.2d 465. Under rule 12(h) of the Utah Rules of Civil Procedure, "[a] party waives all defenses and objections not presented either by motion or by answer or reply." However, under rule 12(b), "[i]f a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at trial any defense in law or fact to that claim for relief." Utah R.Civ.P. 12(b). Nonetheless, if the defendant waits to raise the defense until after the conclusion of the trial, the defense is waived. See Fowler v. Seiter, 838 P.2d 675, 678 (Utah Ct.App. 1992) (concluding that the defense of insufficiency of service of process was waived after defendant "answered the complaint, moved to dismiss several causes of action, and proceeded through a jury trial and verdict, raising the issue for the first time only after" the verdict was returned); see also Utah R. Juv. P. 18(a)(4) (stating "[n]o summons shall be necessary as to any party who appears voluntarily").
In the instant case, the trial court found that D.T. had not been properly served. The record supports this finding, thus we do not disturb it on appeal. The court also found that D.T. waived any objection to the service of process and subjected himself to the court's jurisdiction. The record also supports this finding. Specifically, on the morning of trial, D.T. asked his trial counsel to deliver a letter to the trial court. That letter, which was given to the trial court, states, in relevant part:
Dear Judge Johannson,
I am taking care of a legal matter today and would like a continuance so that I can pursue my rights with my daughter. She is my first child and I love her.
I would have been in court today but I have a fine I need to make arrangements for and the judge has been out of town till today. Please grant me a continuance and let me have a "Fair" trial unlike [L.B.]. If this is not possible [L.B.] and I want our daughter to be placed with her paternal grandmother in Iowa.
I have a warrant for a fine and because of [the State's attorney]'s inappropriate behavior towards [L.B.] I want to take care of this first then pursue my rights for my daughter.
From the plain language of this letter, we conclude that D.T. submitted himself to the jurisdiction of the juvenile court and waived any objection to the sufficiency of process. Moreover, in failing to appear before the trial court, when he clearly was aware that the trial court intended to determine his parental right's to L.B. on that day, D.T. eliminated any possible opportunity he may have had to contest the court's jurisdiction, as permitted under rule 12(b). Instead, he waived his objection to the sufficiency of process by submitting his request. Therefore, the trial court's decision to deny D.T.'s 60(b) motion was not an abuse of its discretion.
Accordingly, we affirm the trial court's order, terminating D.T.'s parental rights in L.B., and the trial court's denial of D.T.'s rule 60(b) motion.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge.