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 State of Utah v. Paul Johnson

 JANELLE P. EURICK USB #8801
MAUI S. DRABNER
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103
Telephone (801) 521-9862

IN THE THIRD DISTRICT JUVENILE COURT
FOR SALT LAKE COUNTY, STATE OF UTAH

MEMORANDUM IN SUPPORT OF MOTION FOR APPOINTED COUNSEL UNDER U. C. A. §78-3a-913 (1) (a)

Case No. 163609
Judge J.W. Anderson

STATE OF UTAH, DEPARTMENT OF HUMAN SERVICES, DIVISION OF CHILD AND FAMILY SERVICES, Plaintiff,

vs.

PAUL C. JOHNSON, Defendant

On behalf of Mr. Johnson, Janelle P. Eurick and Maui S. Drabner respectfully submit this Memorandum in support of Mr. Johnson’s Motion for appointed counsel in this matter.

INTRODUCTION AND SUMMARY OF ARGUMENT:
(Cite as: 372 U.S. 335, *345, 83 S.Ct. 792, **797)

The right to appointed counsel is a hallmark of our democratic society. As the Supreme Court of the United States so eloquently described:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he [may] have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Gideon v. Wainright , 372 U.S. 335, 345 (1963) citing Powell v. Alabama, 287 U.S. at 68-69.

In this case, Mr. Johnson finds himself tangled in a web of recently enacted procedures allowing the Division of Child and Family Services ("DCFS") to substantiate alleged child abuse in a judicial setting. Mr. Johnson is accused of committing an act of domestic violence in the presence of his children as defined in U.C.A. § 62-4a-116.1(2). This conduct is classified as a class B misdemeanor under U.C.A. § 76-5-109.1, and is punishable by up to six months imprisonment. U.C.A. § 76-3-204. Mr. Johnson has been accused and investigated by DCFS, who then petitioned the court to substantiate the findings of their investigation in a formal judicial hearing. The purpose of the hearing is to provide DCFS the opportunity to offer evidence against Mr. Johnson in order to gain a judicial finding on a preponderance of the evidence that the accusations against him are substantiated.

As a threshold matter, this court must decide whether U.C.A. §78-3a-913 (1) (a) providing for counsel to be appointed to indigent parents, guardian, custodian, and the minor, if competent, at every stage of the proceedings, is applicable to substantiation proceedings under U.C.A. §78-3a-104 (8). As a matter of simple statutory construction the plain meaning of the statutory terms control, and the right to counsel must be interpreted to apply to substantiation proceedings before this court.

The right to counsel under U.C.A. §78-3A-913 (1) (a) is broad in scope and has been interpreted to provide even greater protection than the Sixth Amendment of the United States Constitution. Indigent parties that find themselves in Utah’s Juvenile Court System have a statutory right to counsel even though they do not face the actual threat of incarceration. Further, U.C.A. §78-3a-913 (1) (a) is not limited in any way and has never been interpreted to apply to a narrowly defined set of proceedings before the court. In fact, the statute has been interpreted to apply in numerous situations. It applies in abuse proceedings, including those proceedings against parents; In re: W.B.J., 353 Utah Adv. Rep. 11, 966 P.2d 295, 297 (Ct. App. Ut. 1998); and in termination proceedings instituted by private, as well as public parties. In re J.D.M., 810 P.2d 494 (Ct. App. Ut. 1991). It also applies to parents in State petitions to the court where the parents are not parties. Interest of S.A. v. Utah, 432 Utah Adv. Rep. 21, 37 P.3d 1166 (Ct. App. Ut. 2001). Although Salt Lake County may want to narrow the scope of U.C.A. §78-3a-913 (1) (a), neither the plain language of the statute nor various court interpretations allow them to do so.

STATEMENT OF FACTS:

1. Mr. Johnson and Ms. Nielsen are the biological parents of three children.

2. The Division of Child and Family Services ("DCFS") initiated and completed an investigation alleging that Mr. Johnson has emotionally maltreated his children by subjecting them to domestic violence, as defined by DCFS policy and applicable Utah law. Motion for Substantiation of DCFs’ Supported, p.2. Specifically DCFS alleges that Mr. Johnson assaulted Ms. Nielsen in his home, knowing that his children were present in the home, on three separate occasions during February, March and April of this year.

3. Persons convicted of committing an act of domestic violence in the presence of a child are guilty of a class B misdemeanor (U.C.A. § 76-5-109.1), and may be sentenced to imprisonment for a term not exceeding six months. U.C.A. § 76-3-204.

4. Upon a supported finding of their own investigation, DCFS filed a Motion for Substantiation with the Third District Juvenile Court.

5. Mr. Johnson filed a Motion to Deny Substantiation, claiming the allegations were unfounded and untrue. Motion to Deny, p. 2.

6. During a Pre-Trial of the Verified Petition and Motion for Substantiation, Mr. Johnson requested that an attorney represent him in the matter before the court. Minutes and Order, August 9, 2002.

7. The court informed Mr. Johnson that a hearing would be held to determine if representation could be appointed in Substantiation Cases. Id. The Hearing was set for September 9, 2002.

8. At the September 9th hearing the court directed that it would continue to seek Pro Bono representation for Mr. Johnson with the Utah State Bar for representation only to determine his right to representation under 78-3a-913. Minutes September 9, 2002.

9. The Court will also direct the attorney appointed for Mr. Johnson to file a motion in support of Mr. Johnson’s request for representation under 78-3a-913. Id.

10. The Court stated that the parties will have two weeks to respond to the motion filed and a hearing date will be set when all pleadings have been filed. Id.

11. Janelle Eurick and Maui Drabner filed a Notice of Appearance with the Third District Court October 15, 2002, on behalf of Mr. Johnson.

ARGUMENT
A. The Plain Meaning of U.C.A. §78-3a-913 (1) (a) Controls

Statutory construction begins and, if possible, ends with the statute’s plain language. State v. Burns, 398 Utah Adv. Rep. 32, 2000 UT 56, 4 P.3d 795 (Utah 2002); State v. Redd, 385 Utah Adv. Rep. 23, 1999 UT 108, 992 P.2d 986, 990 (Utah 1999); see also Zoll & Branch P.C. v. Asay, 310 Utah Adv. Rep. 9, 932 P.2d 592, 594 (Utah 1997) ("The fundamental rule of statutory construction is that statutes are generally to be construed according to their plain language. Unambiguous language in the statute may not be interpreted to contradict its plain meaning."). A corollary of this rule is that "a statutory term should be interpreted and applied according to its usually accepted meaning, where the ordinary meaning of the term results in an application that is neither unreasonably confused, inoperable, nor in blatant contradiction of the express purpose of the statute." State v. Bohne, 412 Utah Adv. Rep. 23, 2001 UT App 11, 18 P.3d 514, 516 (Utah 2001). It is presumed the Legislature intends to achieve a consistent body of law. IAC. Sands, Sutherland Statutory Construction §23.09, at 332 (4th ed. 1985). Thus, statutes relating to the same subject matter "should be construed with reference to each other and harmonized, if possible," so that effect is given to every provision of the statutory scheme. T.R.F. v. Felan, 760 P.2d 906, 909 (Ct. App. Ut. 1988), citing Murray City v. Hall, 663 P.2d 1314, 1318 (Utah 1983).

In order to give effect to the provisions in U.C.A. §78-3a-913 (1) (a) and harmonize them with U.C.A. § 78-3a-305 allowing DCFS to petition the court for a judicial determination in a substantiation hearing, the provisions must be read with deference to the intent of the legislature and the plain meaning of unambiguous terms must control. The intent of the legislature in enacting the statutes governing the Juvenile Courts is found at U.C.A. §78-3a-102 (5).[1] In pertinent part, the broad purposes of the statutes governing the juvenile courts are to "consistent with the ends of justice, strive to act in the best interests of the minor’s in all cases and attempt to preserve and strengthen family ties where possible." U.C.A. §78-3a-102 (5) (g).

With those purposes in mind, U.C.A. §78-3a-913 (1) (a) states in part: "The parents, guardian, custodian, and the minor, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings. They have the right to employ counsel of their own choice and if any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court as provided in Subsection (3)." The word "proceedings" is not defined in the statute. However, in the absence of statutory definitions, Utah courts rely on common dictionary definitions to determine plain meaning. See State v. Redd, 385 Utah Adv. Rep. 23, 992 P.2d at 990; Zoll & Branch, 932 P.2d at 594.

The word "proceeding" is commonly defined as "the course of procedure in a judicial action or in a suit in litigation," "legal action," "a particular action at law or case in litigation." Webster’s Third New International Dictionary 1807 (1961), See also In re J.D.M. 810 P.2d 494, 497 (Ct. App. Ut. 1991).

The substantiation hearing at issue can only be described as a proceeding. When child abuse is reported to DCFS, the Division undertakes an investigation. An allegation of abuse must be supported before DCFS will proceed. A supported finding by DCFS requires a reasonable basis to conclude that abuse occurred according to evidence available at the completion of the investigation. U.C.A. § 62A-4a-101 (31). If a supported finding is determined by DCFS, they may petition the court under U.C.A. § 78-3a-305, to substantiate their findings. The purpose of petition for a substantiation hearing is to gain a judicial finding based on a preponderance of the evidence that abuse occurred. U.C.A. §62A-4a-101 (29). The petition for a judicial finding is the beginning of a particular legal proceeding against the accused. To interpret this action as anything else would be in direct conflict with the plain meaning of the statute.

Further, "proceeding," as interpreted by Utah Courts, pertains to a variety of matters before the Juvenile court. The Utah Court of Appeals broadly interpreted the statute finding that "our legislature has vested a juvenile with a statutory right to counsel beyond what the Constitution requires" and "regardless of whether the juvenile faces confinement." In re W.B.J., 353 Utah Adv. Rep. 11,966 P.2d 295, 297 (Ct. App. Ut. 1998). The Court footnoted this statement as follows: "We note that the statute is found in the "Miscellaneous Provisions" section of the Juvenile Court Act. As such, the statute also applies to abuse, neglect, and dependency proceedings. See U.C.A. § 78-3a406(2)(e) (Supp. 1998). It also applies to termination of parental rights proceedings. See id. § 78-3a-406(2) (1996); L.C. v. State, 348 Utah Adv. Rep. 26, 963 P.2d 761, 763 (Utah Ct.App.1998). Depending on the type of proceeding, all of the persons specified - "parents, guardian, custodian, and the minor" - have statutory rights to appointed counsel. Id.

In In re J.D.M.,[2] the Utah Court of Appeals found that the right to counsel also applied to termination proceedings instigated by a private party. 810 P.2d 494, 496 (Ut. Ct. App. 1991). The court found that the term "proceeding" is "ordinarily and commonly understood as a broad term which encompasses public as well as private actions." Id. The court concluded, "Such an interpretation is consistent with the ordinary and usually accepted meaning of the term "proceedings." Moreover, it gives effect to the legislature’s expressed purpose of protecting the child’s best interests by ensuring that all parties involved in a juvenile proceeding...have counsel." Id. The same can be said in this situation. Not only is the petition for a substantiation hearing a formal "legal action" against the accused, it is imperative that the accused be represented by counsel in order to give effect to the intent of the legislature by safeguarding interests of the children involved here, ensuring their father receives a just hearing.[3]

Finally, in the Interest of S.A. v. Utah, 432 Utah Adv. Rep. 21, 37 P.3d 1166 (Ct. App. Ut. 2001), the court found that the parents involved in a State filed petition to determine if the named child was a sibling had the right to counsel under §78-3a-913 (a) (1). The court found that because S.A. was the subject of the State’s petition, the plain language of the statute controlled and both parents were entitled to representation by appointed counsel and had the right to present evidence. This case is compelling. If the statutory right to counsel exists in a State petition concerning a child where the parents are interested, but not actual parties, it must be interpreted to apply to a State petition where the parent is the party in the matter - in order to harmonize and provide clarity to Utah’s statutory scheme.

C. Other Similar State Statutes

At least two states have interpreted statutes that are similar to U.C.A. 78-3a-913 (1) (a) and have found that the statutory right to counsel in a "proceeding" before the juvenile court applies to proceedings where charges of abuse and neglect are brought against a parent. In re KR.K. and KE. K, the Appellate Court of Illinois found that in a proceeding similar to the one at issue here, the accused father had a statutory right to counsel. 258 Ill.App. 3d 270, 631 N.E.2d 449 (App. Ct. Ill. 1994). The father was brought before the court to make a finding of whether sexual abuse and neglect had occurred. The court interpreted the Illinois statute, "The Rights of Parties to Proceedings" to include the father’s right to counsel.[4] The court stated several reasons for extending the right to counsel to the father. Initially, the court found that the effect of an abuse and neglect adjudication may be a separation of the parent from the child and that Illinois abuse and neglect cases often serve as the predecessors for proceedings to terminate parental rights. Id. at 455. Additionally, the evidence presented in an abuse and neglect determination may be used against the parent in a parental rights termination. Id. The same factors should be used to guide the court in this case. In Utah, a substantiated finding of abuse or neglect can be used in many detrimental ways against the parent including those reasons stated above and in other ways including having your name placed on a list of substantiated child abusers and the evidence can be used to bring criminal charges against the parent.

Ohio has also interpreted their juvenile right to counsel statute to include a parents’ right to counsel in an adjudicatory and dispositional hearing to determine if abuse and neglect have occurred. In the Matter of Jessica Atkins, 2001 WL 275193 (Ohio App. 7 Dist. 2001)(decision is unreported but cited for compelling similarities with this case). The Ohio statute states that "every party shall have the right to be represented by counsel...These rights shall arise when a person becomes a party to a juvenile court proceeding." R.C. §2151.352. Juve.R. 4. The court did not attempt to find that an abuse or neglect hearing is somehow not covered by the act and accordingly ruled that the parent has the right to counsel in this type of proceeding.

CONCLUSION

For the foregoing reasons, counsel for Mr. Johnson respectfully ask this court to find that Mr. Johnson has a statutory right to counsel under §78-3a-913 (1) (a).

Dated this 28th day of October, 2002

Janelle P. Eurick
Maui S. Drabner
American Civil Liberties Union of Utah Foundation Inc.

FOOTNOTES

1. (5) The purpose of the court under this chapter is to:
(a) promote public safety and individual accountability by the imposition of appropriate sanctions on persons who have committed acts in violation of law;
(b) order appropriate measures to promote guidance and control, preferably in the minor’s own home, as an aid in the prevention of future unlawful conduct and the development of responsible citizenship;
(c) where appropriate, order rehabilitation, reeducation, and treatment for persons who have committed acts bringing them within the court’s jurisdiction;
(d) adjudicate matters that relate to minors who are beyond parental or adult control and to establish appropriate authority over these minors by means of placement and control orders;
(e) adjudicate matters that relate to abused, neglected, and dependent minors and to provide care and protection for these minors by placement, protection, and custody orders;
(f) remove a minor from parental custody only where the minor’s safety or welfare, or the public safety, may not otherwise be adequately safeguarded; and
(g) consistent with the ends of justice, strive to act in the best interests of the minor’s in all cases and attempt to preserve and strengthen family ties where possible.

2. The Utah Court of Appeal also found that the Cache County was liable for the cost of counsel regardless of whether or not the costs were anticipated in their representation agreement. Id. at 498. The Court interpreted §78-3a-913 (b) to require the cost of appointed counsel for an indigent minor or other indigent party, including the cost of counsel and expense of appeal, to be paid by the county in which the hearing is held, regardless of any prior existing agreement.

3. In the recent Supreme Court of the United States decision, the Court clarified the right to counsel for all citizens where imprisonment is a possible punishment. Alabama v. Shelton, 122 U.S. 1764 (2002). In Shelton the Court held that even misdemeanors that merely threaten the punishment of a 30-day imprisonment are worthy of the right to assistance of counsel. 122 U.S. 1764 (2002). Mr. Johnson is accused of a Class B misdemeanor, which carries a possible punishment of up to six months imprisonment. Under Shelton, Mr. Johnson may be entitled to the representation of appointed counsel on Sixth Amendment grounds if the substantiation hearing can be interpreted as a hearing that may threaten imprisonment in the future.

4. The statute in pertinent part states "the minor who is subject to the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present.... and although the proceedings under this Act are not intended to be adversary in character, the right to be represented by counsel." Il. ST. CH. 37 801-5.

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