2013 UT App 222

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, IN THE INTEREST OF E.S. AND N.S., PERSONS UNDER

EIGHTEEN YEARS OF AGE

.

A.S. AND J.S.,

Appellants,

v.

S TATE OF U TAH AND R.S.,

Appellees.

Per Curiam Decision

No. 20130461

‐ CA

Filed September 6, 2013

Fourth District Juvenile, American Fork Department

The Honorable Suchada P. Bazzelle

No. 1047900

Matthew Hilton, Attorney for Appellants

John E. Swallow and John M. Peterson, Attorneys

for Appellee State of Utah

Ronald D. Wilkinson and Nathan S. Shill,

Attorneys for Appellee R.S.

Martha Pierce, Guardian ad Litem

Before J UDGES D AVIS

, T HORNE

, and V OROS

.

PER CURIAM:

¶1 A.S. (Father) and J.S. (Stepmother) appeal the juvenile

court’s order denying their petition to terminate the parental rights

of R.S. (Mother) and granting Mother custody of E.S. and N.S. We

affirm in part and reverse and remand in part.

¶2 Father and Stepmother assert that the juvenile court

inappropriately appointed a therapist for the children. TheIn re E.S...

1. Under rule 63, a motion to disqualify a judge may be made no

later than twenty days after the “date on which the moving party

learns

. . . of the grounds upon which the motion is based.” Utah R.

Civ. P. 63(b)(1)(B)(iii). A motion to disqualify must be supported by

an affidavit identifying facts to show “bias, prejudice, or conflict of

interest.” Id. R. 63(b)(1)(A). The Utah Rules of Civil Procedure

apply to juvenile proceedings except where inconsistent with the

Utah Rules of Juvenile Procedure. Utah R. Juv. P. 2(a).

20130461

‐ CA 2013 UT App 222 2 therapist was appointed in November 2011. In May 2012, Father

and Stepmother moved the juvenile court to remove that therapist

from the case and appoint a different therapist. Their motion to

change therapists was granted by the juvenile court in June 2012.

Accordingly, this issue is moot because the relief sought was

received earlier in the proceedings.

¶3 Father and Stepmother also argue that the juvenile court

improperly acted in dual roles when the court ordered the removal

of the children and then remained as the judge for the rest of the

proceedings. They assert that after the removal, the juvenile court

judge could no longer assure a “fair trial in front of a fair tribunal.”

The gist of the argument is that the juvenile court judge was either

biased or took on conflicting roles in the process. However, Father

and Stepmother did not file a motion to disqualify the judge under

rule 63 of the Utah Rules of Civil Procedure. 1 Because they did not

raise this issue in the juvenile court, it is not properly before this

court on appeal. See 438 Main St. v. Easy Heat, Inc.

, 2004 UT 72, ¶ 51,

99 P.3d 801.

¶4 Father and Stepmother assert that there was insufficient

evidence for the juvenile court to find that they were actively

alienating the children from Mother and had engaged in emotional

maltreatment of the children. A juvenile court’s findings of fact will

not be overturned unless they are clearly erroneous. In re E.R.

, 2001

UT App 66, ¶ 11, 21 P.3d 680. A finding of fact is clearly erroneous

only when, in light of the evidence supporting the finding, it is

against the clear weight of the evidence. Id. “When a foundation forIn re E.S...

2. The transcripts provided on appeal are transcripts of hearings

and oral rulings and include nothing from the testimony at trial.

3. It appears that the contempt sanctions against Father and

Stepmother are criminal in nature. Contempt is “considered

criminal when the sentence is fixed,” indicating a punitive intent.

Gardiner v. York

, 2010 UT App 108, ¶ 32, 233 P.3d 500.

20130461

‐ CA 2013 UT App 222 3 the [juvenile] court’s decision exists in the evidence, an appellate

court may not engage in a reweighing of the evidence.” In re B.R.

,

2007 UT 82, ¶ 12, 171 P.3d 435.

¶5 Father and Stepmother essentially ask this court to reweigh

the evidence more in their favor, which this court cannot do. See id.

Furthermore, to challenge the sufficiency of evidence supporting

a finding or conclusion, an appellant must include in the record on

appeal a transcript of all evidence relevant to the challenged

finding or conclusion. Utah R. App. P. 54(b). Father and

Stepmother have not provided transcripts of the testimony

presented at trial. 2 Absent an adequate record for review, this court

cannot reach the issue of sufficiency of the evidence and must

presume the regularity of the proceedings below. See State v.

Blubaugh

, 904 P.2d 688, 699 (Utah Ct. App. 1995).

¶6 Father and Stepmother also argue that the juvenile court

erred in finding them in contempt without giving them notice or

holding a separate hearing. The juvenile court’s findings on

contempt refer to admissions, stipulations, pleadings, and

discussions in open court that establish Father’s and Stepmother’s

failure to comply with certain court orders. 3 However, it appears

that no hearing to address the allegations of contempt was held,

thereby depriving Father and Stepmother of the opportunity to

respond to the charges. We agree that this was error.

¶7 Under Utah law, a court may summarily punish contempt

when it “is committed in the immediate view and presence of the

court.” Utah Code Ann. § 78B

‐ 6

‐ 302(1) (LexisNexis 2012). However,

the ability of a court to summarily punish contempt is furtherIn re E.S...

4. The petition on appeal also includes a claim regarding violations

of canons of judicial conduct, which we find to be without merit.

We decline to address it further. See State v. Carter

, 776 P.2d 886,

888 (Utah 1989).

20130461

‐ CA 2013 UT App 222 4 limited by due process requirements even if committed in the

court’s presence. Gardiner v. York

, 2010 UT App 108, ¶¶ 39–40, 233

P.3d 500. A court may punish contempt without a hearing only

when the “contemptuous conduct occurs in open court or the

presence of the judge, disturbs the court’s business, and

necessitates immediate punishment.” Id. ¶ 40. Accordingly,

summary punishment may be warranted where the contemptuous

conduct disrupts the operation of the court and requires immediate

action to restore order to the proceedings. Id.

¶8 However, “[w]here conviction and punishment for

contemptuous behavior committed during trial is delayed until

after trial, there is no need for speed and criminal contempt

sanctions may not be imposed summarily.” Id. In this case, the

juvenile court found Father and Stepmother in contempt for their

conduct during trial and assessed sanctions summarily as part of

its final ruling and order on the trial. Clearly, under these

circumstances, there was no need for immediate action to restore

order, and the juvenile court erred in imposing the sanctions

without a hearing. Therefore, we vacate the findings of contempt

and the sanctions imposed, and remand for a hearing on the

allegations of contempt.

¶9 The juvenile court’s order is affirmed in all respects except

for the determination of contempt, the findings of contempt are

vacated, and the matter is remanded to the juvenile court for a

hearing on the contempt allegations. 4