author: ORME, Judge:

text:
    2003 UT App 429
    STATE of Utah, in the interest of M.C. and S.C. aka M.H., persons under eighteen years of age. R.C., Appellant, v. State of Utah, Appellee.
    No. 20021058-CA.
    Court of Appeals of Utah.
    Dec. 11, 2003.

      Justin Gary Jensen, Draper, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and John M. Peterson, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.
   OPINION

ORME, Judge:

11 A father appeals the juvenile court's order terminating his parental rights to his daughters, M.C. and S.C. The father seeks reversal of the termination order, arguing, inter alia, that the juvenile court failed to find that DCFS made "reasonable efforts to provide [reunification] services" pursuant to Utah Code Ann. § 78-Sa-407(8)(a) (2002). We hold that the father's arguments are without merit and affirm.

BACKGROUND

12 M.C. was born on April 10, 2000. Shortly thereafter, M.C.'s half-sister was adjudicated a neglected child, and permanent custody of the half-sister was granted to these girls' maternal grandmother. The juvenile court retained jurisdiction over M.C. and her mother.

T3 When M.C. was three months old, her mother fled with her to Missouri to live with M.C.'s father, appellant R.C. (Father). The juvenile court issued a bench warrant for M.C.'s mother and a "pick-up" order for M.C. On April 8, 2001, S.C. was born. Two months later, the mother returned to Utah with S.C. and M.C. (the children) and turned herself in. The court found that the mother was in violation of a "no contact" order in reference to Father, which was issued due to "a history of [the twol having committed domestic violence in the presence of the children." The mother was subsequently incarcerated on the outstanding warrant, and temporary custody of the children was awarded to their maternal grandmother.

1 4 On November 1, 2001, the State filed a petition with the juvenile court, asking it to find that the children were neglected within the meaning of Utah Code Ann. $ 78-8a-108(1)(s)G)(C), (E) (2002). At a dispositional hearing held the same day, the court found that despite "reasonable and persistent efforts" by the Division of Child and Family Services (DCFS) "to prevent out of home placement," allowing the children to continue to live in the home "would be contrary to their] welfare." The children were placed in the custody of DCFS, and the court ordered that Father should have no contact with the children, their mother, or the children's maternal grandparents.

15 On November 27, 2001, the juvenile court held a pretrial hearing on the State's neglect petition. Because Father's appeal turns on the procedural history of this case, we review that history in detail.

{6 The children's mother admitted the allegations contained in the petition, and the children were adjudicated neglected as to the mother. Father denied the neglect allegations in part, so the court ordered that adjudication on the petition as to Father would take place at a future date. The court also ordered, inter alia, the following:

1. Previous order of temporary custody and guardianship of said children with [DCFS] is hereby continued.
2. [Father] shall have no contact with the mother or the [children's maternal grandparents.]
3. The mother shall have unsupervised visitation with the children.
4. [Father] shall have supervised visita tion [with the children] as deemed appropriate by DCFS, contingent upon clean urinalysis tests.
5. The Court hereby orders that an expedited ICPC occur on the father's home in Missouri.
6. The State is to develop and provide a service plan within 15 days which will be adopted as part of today's order unless objected to by counsel within 5 days of receipt. Copies of the service plan are to be distributed to all counsel.
7. The Court directs that the State provide Reunification Services for the mother.

T7 Adjudication on the neglect petition as to Father was scheduled for January 4, 2002. Father failed to attend the January 4 hearing, however, so the court entered a default judgment against him, finding the neglect allegations against Father "to be true and correct by clear and convincing evidence." The court also ordered, among other things, that "[tlemporary custody and guardianship of the children shall continue with [the children's maternal grandparents]," and that "DCFS shall prepare a service plan for father within 15 days from the date of this hearing."

T8 DCFS implemented a service plan on January 15, 2002, which stated, among other things, that "in order for [Father] to be considered for reunification with his children he needs to be able to demonstrate that he is able to provide for his children's basic needs." Thus, the service plan required Father to "provide clean [urinalysis tests], ensure a stable income and demonstrate appropriate parenting skills for a period of at least three months."

19 On April 4, 2002, the juvenile court granted a trial home placement of the children with the mother. The court also ordered DCFS to "provide Family Preservation services to the family of said children" and ordered that "Peer Parenting" and "Protective Supervision Services" should be included in the service plan. The record indicates Father did not attend the April 4, 2002, hearing. At or around that time, however, Father, who had been living in Missouri, returned to Utah.

110 In a sworn affidavit, Ms. Mostert, a DCFS caseworker, testified that she "received several reports from the [children's] maternal grandparents that [the mother] was having contact with [Father] while she was exercising visitation with her children." Ms. Mostert further testified that, "[tlo ensure the safety of the children, I conducted a walk-through of [the mother's) home and specifically instructed her not to have contact with [Father] as that would be a violation of the Court's Order and would place the children at risk. [The mother] assured me that [Father] would not be present during visitation."

111 However, on April 23, 2002, during a telephone conversation between Ms. Mostert and the mother, Father "took the phone from [the mother] and reported to [Ms. Mostert] that he and [the mother] hald] been spending a lot of time together in violation of the no contact order." Father continued this unsolicited confession by admitting that he had been "hiding under the bed" at the time of Ms. Mostert's visit to the mother's home.

12 During the spring of 2002, numerous incidents of domestic violence occurred between the mother and Father, many of which required intervention by law enforcement. In her affidavit, Ms. Mostert testified regarding one such incident as follows:

On May 18, 2002, [the mother] contacted the Salt Lake City Police Department and reported that [Father] had violated a protective order and assaulted her.... When the police responded, [the mother] and [Father] reported that they had been living together for approximately one week. The police observed that [the mother] had a cut lip, an abrasion on her cheek, a scratch across her chest and her face was swollen. [Father] had seratches on his neck and arms.... [The mother] reported that ... she and [Father] got into an altercation in which [Father] jumped on her and grabbed her face, scratched her, spat in her face, pulled her hair out, punched her in the mouth and swung a baseball bat at her, grazing her cheek and lip.... [Father] denied [the mother's] accusations and reported that [the mother] had hit him with the baseball bat.... [Father] was arrested for assault and violation of a protective order.

13 A review hearing was held on June 4, 2002, at which time the court reviewed a report from Ms. Mostert. At the hearing, the State "expressed concerns" and "moved the Court to terminate reunification services." The guardian ad litem also "expressed concerns" and "concurred with the [State's] recommendation to terminate reunification services." The State then submitted a "Verified Petition for Termination of Parental Rights." After accepting comments from all parties present at the hearing, including Father, the court "terminate[d] reunification services as to both parents, ... suspend[ed] all visitation temporarily between the Parents and the Children," and ordered that "the Parents are to have NO CONTACT or communication [with the children], incidental or otherwise, unless in a therapeutic setting."

T14 The parties were again in court on June 21, 2002, in response to the State's order to show cause for Father's violation of the court's protective order and for a pretrial hearing on the State's petition to terminate parental rights. Father admitted violating the "no contact" provisions of the protective order and was found in contempt of court. The guardian ad litem also advised the court that, although visitation with his children was contingent upon the successful completion of at least two consecutive negative urinalysis tests, Father "hald] yet to submit a clean drug screen." The court continued its previous order of "No Contact, incidental or otherwise, by and between the Father and said children" and set a trial date on the State's petition to terminate parental rights.

115 The termination petition was tried before the juvenile court on October 28-29, 2002. Father was present and represented by counsel. All parties were given an opportunity to present evidence and be heard, and the court took the matter under advisement. On November 27, 2002, the court entered an order permanently terminating the parental rights of both parents Father timely appealed the termination order to this court.

ISSUES AND STANDARDS OF REVIEW

116 Father seeks reversal of the juvenile court's termination order, arguing, first, that the court failed to find that DCFS "made reasonable efforts to provide [reunification] services" pursuant to Utah Code Ann. § 78-3a-407(8)(a) (2002), and second, that the court failed to conduct a permanency hearing in violation of Father's due process rights. Both issues involve "[alpplication of statutory law to the facts" and thus "present[ ] mixed question{s] of fact and law." In re G.B., 2002 UT App 270, ¶ 11, 53 P.3d 963. See generally State v. Pena, 869 P.2d 982 (Utah 1994). Thus, "[wle review the juvenile court's [factual] findings for clear error and its conclusions of law for correctness, affording the court 'some discretion in applying the law to the facts." " In re C.B., 2002 UT App 270 at ¶ 11, 53 P.3d 963 (quoting In re G.B., 1999 UT App 293, ¶ 15, 989 P.2d 76). Father's due process claim is reviewed for correctness. See In re K.M., 965 P.2d 576, 578 (Utah Ct.App.1998).

ANALYSIS

I. Reunification Services

117 Utah Code Ann. § 78-3a-407(8)(a) (2002) provides: "In any case in which the court has directed the division to provide reunification services to a parent, the court must find that the division made reasonable efforts to provide those services before the court may terminate the parent's rights[.]" Father argues that the juvenile court failed to make the finding required by subsection (8)(a).

I 18 We begin our analysis by noting that it is unclear whether subsection (8)(a) even applies to the facts of this appeal. While reunification services were unequivocally ordered for the mother, the record is ambiguous as to whether such services were also ordered for Father. At the November 27, 2001, hearing on the State's neglect petition, the court ordered "that the State provide Reunification Services for the mother," but made no such order as to And although at the same hearing the court ordered the State "to develop and provide a service plan within 15 days," the court's subsequent written order indicates this service plan was intended to apply only to the mother. At the hearing on June 4, 2002, the court did refer to "terminat[ing] reunification services as to both parents," but the service plan prepared by DCFS for Father following the January 4, 2002, hearing indicated that Father would not receive reunification services until, among other things, he provided clean urinalysis tests.

{19 The apparent exclusion of Father from some of the court's orders at the November 27, 2001, hearing may well be explained by the fact that adjudication on the neglect petition as to Father did not take place until January 4, 2002. At the January 4, 2002, hearing, the court ordered that "DCFS shall prepare a service plan for [F lather within 15 days from the date of this hearing." This service plan, dated January 15, 2002, and entitled "Protective Services Supervision Family Service Plan," contains goals and objectives for both parents. In regard to the mother, the stated goal of the service plan is that "[the mother] will have and maintain a working relationship with DCFS to work towards reunification with her children." The service plan then identified the various changes the mother must make in her behavior and lifestyle before reunification could be accomplished.

120 In regard to Father, the plan recognizes, with our emphasis, that "[Father] has expressed interest in being considered for reunification with his daughters, [M.C.] and [S.C.]." The plan then states that, "[dlue to present concerns{,] in order for [Father] to be considered for reunification with his children he needs to be able to demonstrate that he is able to provide for his children's basic needs." According to the plan, such a demonstration includes the following:

[Father] needs to be able to provide clean [urinalysis tests], ensure a stable income and demonstrate appropriate parenting skills for a period of at least three months before DCFS will initiate the ICPC process.... [Father] is responsible for contacting DCFS with his progress and providing all of the necessary documentation to DCFS in order to demonstrate that he is making progress on this objective.... In turn, DCFS will be responsible for filing the information received from [Father] and providing an accurate account of the progress of [Father] to the court.

121 The above language indicates that reunification services were not among the services initially extended to Father. Rather, the plan appears to contemplate that Father must demonstrate his commitment by taking the steps detailed above before he would be considered for actual reunification services.

T 22 The court's written findings in connection with the termination order cast further doubt on whether reunification services, per se, were ever ordered for Father. The court's order catalogues in detail the various reunification services provided for the mother, and in an equally thorough manner explains the ways in which "the mother failed to comply with a reunification service plan designed to unite her with her children." The court's careful attention to the "reasonable efforts" finding required by section 78-3a2-407(8)(a) in regard to the mother further suggests that subsection (3)(a) did not apply to Father because actual reunification services had not been ordered for him. The unlikely alternative is that the court keenly focused on subsection (8)(a) as concerns the mother, but inexplicably neglected to deal with Father's status under that subsection.

1283 Notwithstanding the analysis above, we acknowledge the possibility that reunification services should be deemed to have been extended to Father. It is possible, for example, that by ordering a "service plan" for Father at the January 4, 2002, hearing, the court intended reunification services to be part of that plan, or that by ordering "Family Preservation services" at the April 4, 2002, hearing, the court intended to include Father as a recipient of such services We note that neither the State nor the guardian ad litem categorically deny on appeal that such services were ordered for Father as well as the mother. Out of an abundance of caution, therefore, we address the merits of Father's argument regarding the sufficiency of findings under subsection (8)(a). As discussed below, however, even if reunification services were ordered for Father, it does not change the result, because the juvenile court's findings in regard to Father sufficiently comply with the "reasonable efforts" requirement of section 78-8a-407(8)(a).

24 The court's findings in regard to Father include the following:

[Father] has failed to involve himself in any efforts to reunite with his children, or to rectify the turbulent and tumultuous conduct or behavior in which he has engaged. ... [Father] has a known history of drug abuse, and has had several positive urinalysis tests for marihuana, but he has failed to successfully complete any drug treatment.... [Father] maintains a home in Missouri, and testified he considers it as his home; indeed, he often would be gone from Utah for months at a time, and not see his children for extended periods of time; he never remained in one place long enough to establish a nurturing relationship with his children ... and he made little, or no effort[ ] to remain available and accessible to participate in any service plan(s); from November of 2001 to May of 2002, [Father] had no contact with, and made no inquiries regarding the children.... [He] has not provided any monetary support for the children, and has failed to make himself physically and emotionally available for them; for several months, the caseworker was unable to make any contact with him; from December of 2001 until April of 2002, he made only one (1) contact with the [DCFS] caseworker regarding his children.

125 The court's findings make clear that Father was unresponsive to all efforts DCFS made to provide him services. For example, despite DCFS's efforts to provide Father with supervised visitation with his children contingent upon clean urinalysis tests, Father was unable or unwilling to comply with even that limited portion of the service plan. The record reveals that Father submitted to at least three urinalysis tests between November 2001 and October 2002. All of Father's urinalysis tests returned a positive result for marijuana use except the October 2002 test, which was taken six days before trial began on the State's petition to terminate Father's parental rights and well after the court had terminated reunification services.

126 The court's findings also emphasize the evident nonchalance with which Father viewed his parental obligations and responsibilities-even when faced with the potential loss of his parental rights. Despite the service plan's clear statement that "[Father] is responsible for contacting DCFS with his progress and providing all of the necessary documentation to DCFS in order to demonstrate that he is making progress on this objective," Father remained out of state, provided none of the required information to DCFS, and generally made it difficult or impossible for DCFS to contact him.

[ 27 In reality, Father's role in the juvenile court proceedings that culminated in the termination of his parental rights was passive and disinterested at best, and obstinate at worst. In this case, where Father has consistently violated court orders and done little or nothing to comply with even the limited provisions of the initial service plan, the court's findings are more than adequate to establish that DCFS made "reasonable efforts," under the circumstances, to provide reunification services to Father. Utah Code Ann. § 78-3a-407(8)(a) (2002).

II. Permanency Hearing

128 Father next argues that the juvenile court erred by not holding a permanency hearing. Father failed to preserve this issue before the juvenile court but nevertheless urges us to address his argument under the "plain error" doctrine.

[Tlo establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, [Father] must show the following: () An error exists; (i) the error should have been obvious to the [Juvenile] court; and (i) the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for [Father.]

State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

T29 Utah Code Ann. § 78-8a-811(2)(b)(iii) (2002) states: "If, at anytime, the court determines that reunification is no longer a child's primary permanency goal, the court shall conduct a permanency hearing in accordance with Section 78-8a-812 within the earlier of 80 days of the court's determination or 12 months from the original removal of the child." Relying on this language, Father argues that he was entitled to a permanency hearing no later than July 4, 2002, which was _ thirty days after the court terminated reunification services. Of course, section 78-8a-311(2)(b)(iii) applies only if reunification services were ordered for Father, which, as we have discussed, is far from clear. For purposes of resolving Father's "plain error" argument, however, we assume that reunification services were ordered for him. Thus, under section 78-8a-811(2)(b)(ii1), Father was entitled to a permanency hearing within thirty days of June 4, 2002, the date reunification services were terminated, and, indeed, the record indicates the court did not hold a permanency hearing within that time frame. We readily conclude, however, that Father has not established plain error because he has not shown that he was prejudiced by the juvenile court's error. See Dunn, 850 P.2d at 1209 ("If any one of the [three] requirements is not met, plain error is not established.").

11 30 Father argues that he was deprived of due process because he was not "on notice that issues involving the permanency of the Children would be considered" at the proceedings leading up to and including the trial terminating his parental rights. Father further asserts that, "[hlad [he] been afforded the opportunity to prepare a case and present evidence and argument on the issue of the permanency of the Children, the outcome of the case could have varied substantially" because "[Father] would have presented evidence and argued that DCFS had not provided reasonable reunification services at that point in the ease." Father's position is untenable.

131 Because of the history of domestic violence in the home, the juvenile court ordered Father to have no contact with the children or their mother after the children's removal. However, the court granted supervised visitation privileges to Father on the condition that he provide clean drug sereens according to the service plan. The service plan was to be expanded once Father had demonstrated his commitment to the initial portions of that plan. Because Father did not produce even one clean drug screen during the time reunification services were available, however, the no contact order between Father and his children remained in place the entire time, and actual reunification services were never extended. Under the cireumstances, Father could not have successfully argued that DCFS failed to make "reasonable efforts" to provide services to him. Thus, Father has not shown-as it is his burden to do-that had the court held a permanency hearing, it would have made a different decision regarding the termination of Father's parental rights. See State v. Vargas, 2001 UT 5, ¶ 39, 20 P.3d 271 ("[Appellant] has the burden of showing ... [that] 'absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.' ") (quoting Dunn, 850 P.2d at 1208-09); State v. Litherland, 2000 UT 76,- ¶ 8, 12 P.3d 92 ("[Appellant] bears the burden of establishing that the trial court committed plain error.").

CONCLUSION

182 It is unclear that reunification services, per se, were ever contemplated for Father. Even if they were, the court's findings are more than adequate to show that DCFS made "reasonable efforts," under the cireumstances, to provide such services to Father in accordance with section 78-32-407(8)(a). Furthermore, Father has failed to establish that he was prejudiced by the court's failure to hold a permanency hearing. We therefore affirm the juvenile court's order terminating Father's parental rights to M.C. and S.C.

33 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, PAMELA T. GREENWOOD, Judge.

      . Appellant R.C. is not the father of M.C.'s half-sister, and her status is not at issue in this appeal.

      . The mother of the children voluntarily dismissed her appeal from the juvenile court's termination order.

      . Under those provisions, a " '[nleglected child' means a minor: ... (C) who lacks proper parental care by reason of the fault or habits of the parent, guardian, or custodian; ... [and/or] (B) who is at risk of being a neglected or abused child as defined in this chapter because another minor in the same home is a neglected or abused child as defined in this chapter." Utah Code Ann. § 78-3a-103(1)(s)(i)(C), (E) (2002).

      . The acronym "ICPC" refers to the Interstate Compact on the Placement of Children. A study conducted pursuant thereto is focused on ensuring that "[elach child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide necessary and desirable care." Utah Code Ann. § 62A-4a-701 art. I(1) (2000). Under the ICPC, "[the proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made." Id. § 62A-4a-701 art. I(4).

      . The court found that, "[blased on evaluations of the children by professionals over a two (2) year period of time, [along with] the day to day observations by [the] foster parents," "the children were suffering from, and exhibiting, significant emotional behavior and trauma," which was "attribuled to being victims of, and exposure to, domestic violence and neglect in their home environment." For example, M.C. was found to "exhibitl ] an extraordinary amount of aggression for a child her age, by hitting and telling a play-doll (in therapeutic setting) to 'shut up.' " In addition, M.C. "had sleep difficulties (awakening up to six (6) times during the night); temper tantrums; self-abuse by hitting herself; speech and verbal communication delay; [and] extreme fear at the presence of men." As to S.C., "she would abnormally arch her back, and cry, which was an indication of fear of, or unusual sensitivity to noises; sleep difficulty, and sensitivity to confusion, which [was attributed to] exposure to loud noises, uncommon to a child." The court found that, "[slince their removal from their parents' home and placement in foster care, their emotional and psychological status has improved significantly," and that ""it is imperative that their current placement not be disturbed."

      . The court did order that an ICPC study be done on Father, see supra note 4, and also ordered that "[FJather ... shall have supervised visitation as deemed appropriate by DCFS, contingent upon clean urinalysis tests."

      . The written order states: "The provisions of thie] service plan are court ordered subject to any objection from defense counsel within five days thereafter from the date the service plan is received by the mother." (Exmaphasis added.)

      . We reiterate, however, that Father, who presumably still lived in Missouri at the time, did not attend the April 4, 2002 hearing, at which time the mother was given a trial home placement with the children.

      . On this point, the court detailed the "numerous incidents of domestic violence between the parents ... [which often] required intervention by law enforcement," and involved, inter alia, "use of [weapons,] ... scratching and hitting each other, ... pulling out hair[,] ... belittling and berating each other with profanity, and[ ] several threats to kill each other." The court noted that "[olften, these violent episodes were played out in front of ... the children," and found that "Inleither parent has addressed domestic violence in counseling to reduce or resolve the abuse of each other[, but instead] have maintained their relationship in open and obvious contempt for the Court's order to sever it."

      . These are not the only findings addressing the reasonableness of DCFS's efforts to provide services to Father. The State's petition to terminate Father's parental rights alleged that "the agency has made a diligent effort to provide appropriate services to the parents and they have substantially neglected, willfully refused, or been unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement," and that DCFS made "reasonable efforts ... to return said children" to the parents. The court found that "the State has established [the petition] by clear and convincing evidence."

      . Father makes much of his claim that DCFS failed to conduct an expedited ICPC as ordered by the court following the November 27, 2001 hearing. However, although the evidence presented at trial was somewhat conflicting on this issue, Ms. Mostert testified that she did instigate an ICPC study, and the fact that the ICPC report may have listed the paternal grandmother's address is of little consequence, since Father was living with his mother at the time.
      In addition, even if DCFS made initiation of the ICPC procedure contingent upon Father's "provid{ing] clean [urinalysis tests], ensur[ing] a stable income and demonstrat[ing] appropriate parenting skills for a period of at least three months," as indicated in the service plan, it does not necessarily follow that DCFS's efforts were unreasonable in this respect. It is axiomatic that an ICPC study could not be accomplished without at least some cooperation from Father, and, in this instance, the record supports the juvenile court's conclusion that Father provided little or no cooperation to DCFS.

      . Regarding the prejudice prong of the "plain error" test, the Utah Supreme Court has stated that "with respect to certain federal constitutional errors, ... the Siate [bears] the burden of proving that the error was harmless beyond a reasonable doubt." State v. Verde, 770 P.2d 116, 121 n. 8 (Utah 1989). Although Father alleges that failure to hold a permanency hearing violated his due process rights, he cites only the "plain error" test as enunciated in State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993), and does not otherwise argue that the reasonable doubt standard applies to his due process argument. Therefore, consistent with Father's position as set forth in his brief, we apply the usual plain error test as set forth in Dunn. See id.


source: Caselaw Access Project

author: GREENWOOD, Judge:

license: Public Domain

text:
    2003 UT App 432
    STATE of Utah, Plaintiff and Appellee, v. Jose Orlando VALDOVINOS, Defendant and Appellant.
    No. 20020410-CA.
    Court of Appeals of Utah.
    Dec. 11, 2003.

      Kent R. Hart, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and J. Frederic Voros Jr., Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE, Jr.
   OPINION

GREENWOOD, Judge:

T1 Defendant, Jose Valdovinos, appeals from the trial court's denial of his request for probation and its imposition of three consecutive sentences arising out of three separate charges of aggravated robbery in violation of Utah Code Annotated section 76-6-302 (1999). Defendant argues that the trial court abused its discretion when it failed to consider all legally relevant factors in making its sentencing determination. The State argues that this court has jurisdiction to review only one of Defendant's sentences because Defendant's notice of appeal listed only one of the three case numbers under which he was sentenced. The State further argues that the trial court properly considered all legally relevant factors in denying Defendant's request for probation and ordering his sentences to run consecutively. We affirm.

BACKGROUND

12 During April and May of 2001, Defendant, along with three adult males, participated in three home robberies in Salt Lake City, Utah. At the time of these robberies, Defendant was seventeen years of age, although he turned eighteen just eight days after commission of the last robbery. During each of the robberies, Defendant and his accomplices forced their way into the homes with guns, and subdued the occupants.

T3 In the first robbery, the assailants forced the adult males to lie on the floor, and tied their hands behind their backs with speaker wire. Defendant then took the women and children downstairs to the basement at gunpoint. The robbers left the home with a camcorder, a cell phone, and approximately $5,500 in cash.

4 4 During the second robbery, the intruders forced one of the occupants to lie face down while a gun was pointed at his head, and placed another occupant on a couch, ordering him to look down at the floor. When the third occupant appeared, the assailants tied him up with the cord of an fron. One of the assailants then proceeded to stab one of the victims with a steak knife causing him to sustain a minor cut in his back. The robbers took a video cassette recorder, a video game system, approximately $420 in cash, and approximately $1,000 worth of jewelry. Apparently, Defendant's role in this robbery was to stand guard over the home's occupants.

T5 In the third robbery, the intruders used speaker wire to tie up a husband and wife, while their children, ages eleven and fourteen, watched. When the wife began to experience an asthma attack, her daughter was allowed to retrieve her inhaler. The robbers left the house with credit cards, video games, jewelry, compact discs, a cameorder, a video cassette recorder, and approximately $200 in cash. Defendant's precise role in this robbery is unclear.

T 6 Shortly after the third robbery, Defendant was apprehended by police when one of the victims identified him from a photo spread. Although Defendant initially denied any involvement in the robberies, he eventually admitted that he had participated in all three of them. However, he refused to reveal the identity of his accomplices.

T7 On May 31, 2001, the State filed an information in juvenile court, alleging, inter alia, that Defendant had committed aggravated robbery on May 14, 2001. By July 2, 2001, the State had filed forty-five charges against Defendant in connection with all three of the home robberies. All of the charges were listed under one case number.

{8 On September 4, 2001, Defendant waived his right to a preliminary hearing and the juvenile court bound him over to district court to stand trial as an adult. Shortly thereafter, Defendant pleaded guilty to three counts of aggravated robbery-one count for each home robbery-with weapons and gang enhancements. In return, the State agreed to dismiss the remaining forty-two charges.

T9 After Defendant pleaded guilty, the trial court scheduled a consolidated sentencing hearing for all three cases. The trial court also ordered Defendant to undergo a sixty-day presentence evaluation.

[ 10 Based on the trial court's order, Adult Probation and Parole (AP & P) prepared a Presentence Investigation Report and the Department of Corrections prepared a Diagnostic Evaluation Report. In addition, Defendant underwent both individual and group psychological evaluations. In its twenty-one page Presentence Investigation Report, AP & P discussed at length each of the offenses Defendant committed, including Defendant's age at the time of the offenses. In addition, the Presentence Investigation Report detailed Defendant's eriminal history, family background and living situation, education and employment history, gang affiliations and substance abuse history, mental and physical health, and attitude and orientation. Based on this information, AP & P concluded that probation was not appropriate. Instead, AP & P recommended that Defendant be "sentenced to the indeterminate term as pre-seribed by law to the Utah State Prison, with the sentences to run consecutively." The individual and group psychological evaluation reports, and the Diagnostic Evaluation Report, each of which also considered Defendant's history and amenability for rehabilitation, similarly recommended that Defendant be incarcerated.

11 On April 1, 2002, the trial court conducted Defendant's sentencing hearing. At the hearing, Defendant's attorney drew the court's attention to Defendant's youth, his low IQ, and his limited criminal history, and asked the court to place Defendant on probation. The trial court responded by noting that it had "reviewed all of the [presentence] information," and that "[this [was] a serious home invasion series.... And [it] need[ed] to take the very, very egregious, violent nature of these offenses into ... consideration at sentencing." The trial court also made reference to Defendant's "low IQ," his "supportive, law-abiding family," and acknowledged that "there may be some mitigation that [Defendant] went and got medication for someone because [he was] being merciful to them." However, based on its review of the presentence information, the trial court concluded that Defendant continued to be "a very real danger to the community," and that consequently he "was not a candidate for probation." The trial court then sentenced Defendant to prison on each of the three counts for five years to life and ordered the prison terms to run consecutively. Shortly thereafter, the trial court entered a single judgment and commitment order for all three sentences.

{12 On April 30, 2002, Defendant timely filed a notice of appeal "from the judgment and commitment entered against him." However, his notice of appeal referenced only one of the case numbers under which he was sentenced.

ISSUES AND STANDARDS OF REVIEW

{ 13 The State argues that because Defendant's notice of appeal referenced only one of the case numbers under which he was sentenced, this court does not have jurisdiction to review the other two sentences. "We determine whether [a] Notice of Appeal is adequate to grant this court jurisdiction as a matter of law." In re B.B., 2002 UT App 82, ¶ 4, 45 P.3d 527, cert. granted, 53 P.3d 1 (Utah 2002).

114 On appeal, Defendant challenges the trial court's denial of his request for probation and its imposition of consecutive sentences, on the basis that the court failed to consider relevant mitigating cireum-stances. The sentencing decision of a trial court is reviewed for abuse of discretion. See State v. Houk, 906 P.2d 907, 909 (Utah Ct.App.1995) (per curiam). This includes the decision to grant or deny probation, see State v. Chapoose, 1999 UT 83,¶ 6, 985 P.2d 915, and the decision to impose consecutive sentences. See State v. Helms, 2002 UT 12, ¶ 8, 40 P.3d 626; State v. Schweitzer, 948 P.2d 649, 651 (Utah Ct.App.1997). "An abuse of discretion results when the judge 'fails to consider all legally relevant factors' or if the sentence imposed is 'clearly excessive! " State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (citations omitted). "An appellate court may only find abuse 'if it can be said that no reasonable [person] would take the view adopted by the trial court." " Houk, 906 P.2d at 909 (alteration in original) (quoting State v. Wright, 893 P.2d 1113, 1120 (Utah Ct.App.1995)).

ANALYSIS

I. Jurisdiction

115 The State argues that when Defendant filed his notice of appeal on April 30, 2002, he appealed only the sentence imposed in case number 011918948, and therefore, this court does not have jurisdiction to review the consecutive sentences imposed in case numbers 011913950 and 011918951. In response, Defendant claims that the State, the juvenile court, and the trial court treated the three cases as one consolidated prosecution. Therefore, according to Defendant, appealing the sentence imposed in case 011918948 was sufficient to notify the State and the courts that he was also appealing the sentences imposed in case numbers 011913950 and 011913951.

{16 An appeal is properly raised if a notice of appeal " 'designate[s] the judgment or order, or part thereof, appealed from. " In re B.B., 2002 UT App 82, ¶ 9, 45 P.8d 527 (quoting Utah R.App. P. 3(d)), cert. granted, 53 P.3d 1 (Utah 2002). "[TJhis requirement is jurisdictional because ' "the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case." ' " Id. (quoting Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (other citations omitted)).

{17 Despite the apparent rigidity of rule 3(d) of the Utah Rules of Appellate Procedure, "[njlotices of appeal are to be liberally construed." In re B.B., 2002 UT App 82 at ¶ 9, 45 P.3d 527 (alteration in original) (quotations and citations omitted). In In re B.B., we considered whether we had jurisdiction to review an appeal from an order granting attorney fees when the notice of appeal failed to specifically identify the attorney fee order. See id. at I 4. This issue arose after the trial court denied the appellants' motion entitled, "Motion to Quash the Order to Show Cause," and entered two separate orders: (1) Findings of Fact, Conclusions of Law and Order; and (2) Order of Attorney Fees and Judgment. Id. at 18. In their notice of appeal, the appellants stated that they were appealing "the ruling of the court on the Motion to Quash and Objection to Setting Hearings without re-opening the file," but did not refer to the second order. Id. at 110. We concluded that although the notice provided was "not ideal," it sufficiently notified the opposing parties that both of the trial court's orders were being appealed, "particularly where the orders b[ore] the same date." Id. (footnote omitted); see also Scudder v. Kennecott Copper Corp., 886 P.2d 48, 49-50 (Utah 1994) (holding notice of appeal which failed to designate that appeal was being taken from summary judgment as well as from final judgment was adequate because " [there [wals no requirement that the notice designate intermediate orders which [were] to be raised as issues on appeal' " (first alteration in original) (citation omitted); U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶¶ 26-27, 990 P.2d 945 (holding appeal from final order denying motion entitled "Motion to Revise Order and Judgment Dismissing Plaintiffs Complaint" encompassed appeal from summary judgment although appellant did not identify summary judgment in notice of appeal).

{18 Although the aforementioned cases support the general proposition that a notice of appeal may be adequate even if it does not strictly adhere to the requirements of rule 8(d), no Utah case has specifically addressed the jurisdictional issue raised in this case. For guidance in resolving that issue, we turn to United States v. Grant, 256 F.3d 1146 (11th Cir.2001).

19 In Grant, the Eleventh Cireuit considered whether a notice of appeal sufficiently complied with rule 3(c) of the Federal Rules of Appellate Procedure to vest the court with jurisdiction to review two judgments on appeal. See id. at 1151. The defendant had been convicted of conspiracy and firearms charges and for failure to appear. See id. at 1149-50. After a consolidated sentencing hearing, the trial court entered a single judgment on the conspiracy and firearms charges, and a separate judgment on the failure to appear charge. See id. When the defendant filed his notice of appeal, he only listed the case number for the failure to appear charge. See id. at 1150. Despite the defendant's omission, the court held that his notice of appeal indicated an intent to appeal both cases because "a consolidated sentencing hearing on both cases was held in district court, and there was only one judgment and commitment order entered for both cases." Id. at 1151.

120 In this case, like the defendant in Grant, Defendant was sentenced in one consolidated hearing and there was only one judgment and commitment order entered against him Moreover, all three of Defendant's sentences were imposed on the same date, a fact which this court placed particular emphasis on in In re B.B., when we held that the appellants had provided adequate notice of their appeal to the opposing parties. See In re B.B., 2002 UT App 82 at ¶ 10, 45 P.3d 527. Finally, the State did not argue, nor is there any evidence in the record, that it was prejudiced by Defendant's failure to identify all three sentences in his notice of appeal. See Jensen v. Intermountain Power Agency, 1999 UT 10, ¶8, 977 P.2d 474 (noting that notice of appeal was inadequate because failure to identify final judgment prejudiced opposing party). Therefore, we hold that Defendant's notice of appeal, though "not ideal," In re B.B., 2002 UT App 82 at ¶ 10, 45 P.3d 527, adequately notified the State and the courts that he intended to appeal all three of his sentences, and thereby complied with the requirements of rule 3(d) of the Utah Rules of Appellate Accordingly, this court has jurisdiction to review all three of Defendant's sentences.

II. Sentencing

1121 Defendant argues that the trial court abused its discretion by denying Defendant's request for probation and by imposing consecutive sentences because the court failed to consider relevant mitigating cireumstances.

A. Probation

122 Defendant argues that the trial court's denial of his request for probation was an abuse of its discretion because the court failed to adequately weigh mitigating evidence supporting probation. According to Defendant, the trial court did not properly consider mitigating factors such as his extreme youth, his supportive family, his lesser role in the crimes he committed, and his below average intelligence. We disagree.

{23 A "defendant is not entitled to probation, but rather the [trial] court is empowered to place the defendant on probation if it thinks that will best serve the ends of justice and is compatible with the public interest." State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct.App.1991). " 'The granting or withholding of probation involves considering intangibles of character, personality and attitude, of which the cold record gives little inkling! " Id. at 1049 (citation omitted). Therefore, "the problem of probation must of necessity rest within the discretion of the judge who hears the case." Id. (quotations and citation omitted). Only if it is " 'clear that the actions of the judge were so inherently unfair as to constitute an abuse of discretion, " will a reviewing court overturn a trial court's sentence. Id. at 1051 (citation omitted).

1 24 Despite Defendant's assertions to the contrary, there is substantial evidence in the record to support the trial court's denial of Defendant's request for probation. Defendant pleaded guilty to three home invasion robberies which were particularly heinous in nature. The victims were threatened at gunpoint, and many of them were forced to lie face down on the floor with their hands tied behind their backs. During the second robbery, a co-defendant stabbed one of the vice-tims in the back, and during the third robbery, a husband and wife were tied up, while their children, ages eleven and fourteen, watched. In each case, Defendant and his accomplices left the home with a significant amount of cash and other valuable property.

125 In denying Defendant probation, the record reveals that the trial court not only took the nature of Defendant's crimes into account, but also relied heavily on his presen-tence diagnostics and evaluations. Although each of the presentence reports contained a recommendation that Defendant be incarcerated, these recommendations were made only after a discussion of factors such as Defendant's age at the time he committed the offenses, his supportive family, his limited criminal history, the exact extent of his role in each of the offenses, and his low IQ.

126 Based on the extreme nature of Defendant's crimes, and the recommendation in each of Defendant's presentence reports that he be incarcerated, we cannot say that the trial court's decision not to grant Defendant probation was "inherently unfair." Rhodes, 818 P.2d at 1051 (quotations and citation omitted). Therefore, we hold that the trial court did not abuse its discretion in denying Defendant's request for probation.

B. Consecutive Sentences

127 Defendant also argues that the trial court abused its discretion by imposing consecutive sentences without taking into account all legally relevant factors. Specifically, Defendant argues that while the trial court considered the seriousness of the offenses Defendant committed when it made its sentencing decision, it failed to adequately weigh Defendant's background and rehabilitative needs.

128 A trial court abuses its discretion in sentencing when it " 'fails to consider all legally relevant factors' or if the sentence imposed is 'clearly excessive" " State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (citations omitted). When deciding whether to impose consecutive sentences, "[al court shall consider the gravity and cireumstances of the offenses and the history, character, and rehabilitative needs of the defendant. ..." Utah Code Ann. § 76-3-401(4) (1999) However, "the burden is on [the defendant] to show that the trial court did not properly consider all the factors in seetion 76-3-401(4)." State v. Helms, 2002 UT 12, ¶ 16, 40 P.3d 626.

29 Defendant does not dispute that when the trial court imposed consecutive sentences, it took into account "the gravity and circumstances of the offenses." Utah Code Ann. § 76-8-401(4). Rather, Defendant's central argument is that when the trial court made its sentencing decision, it failed to sufficiently consider "all legally relevant factors." McCovey, 808 P.2d at 1285 (citation omitted) In particular, Defendant claims that the court did not consider his background including his youth, his minimal criminal history, his supportive family, and his low IQ- or his rehabilitative needs.

30 Although the trial court did not explicitly address the enumerated factors in seetion 76-3-401(4), there is ample evidence in the record that the court considered these factors at the time of Defendant's sentencing. For example, at the sentencing hearing, the trial court referenced Defendant's "supportive, law-abiding family," and mentioned that it had considered Defendant's "low IQ," and the fact that he retrieved medication for a victim during one of the robberies. Moreover, mitigating evidence including Defendant's extreme youth, his supportive family, and his limited criminal history was presented to the trial court, through Defendant's attorney, prior to the imposition of Defendant's sentences.

T31 Finally, as noted previously, Defendant's background, character, personal history, and likelihood of being rehabilitated were described in detail for the trial court in Defendant's presentence reports. The trial court made it very clear that it had carefully reviewed these reports prior to sentencing Defendant, and although the court did not specifically reference details of these reports, the Utah Supreme Court has noted that a similar review of presentence information by a trial court was sufficient to demonstrate that a defendant's history, character, and rehabilitative needs had been considered at the time of sentencing. See Helms, 2002 UT 12 at ¶ 13, 40 P.3d 626.

132 To bolster his argument, Defendant cites State v. Strunk, 846 P.2d 1297 (Utah 1993), in which a sixteen-year-old received three consecutive sentences. See id. at 1298. One of the sentences was a life sentence and the other two sentences were mandatory minimum terms, totaling twenty-four years. See id. The court held that in imposing consecutive rather than concurrent sentences, the trial court had "abused its discretion in failing to sufficiently consider defendant's rehabilitative needs in light of his extreme youth and the absence of prior violent crimes." Id. at 1302.

1 83 However, Strunk is inapposite to this case. There, the court was concerned that "the twenty-four-year term rob[bed] the Board of Pardons of any flexibility to parole Strunk sooner," because the defendant would have had to "spend a minimum of twenty-four years in prison before being eligible for parole." Id. at 1801. Unlike the defendant in Strunk, Defendant does not face two additional mandatory minimum sentences on top of a life sentence. Rather, Defendant received three consecutive sentences of five years to life, with no mandatory minimum term. Therefore, the Board of Pardons would not be deprived of its flexibility to parole Defendant earlier.

34 Based on the foregoing, we conclude that Defendant has failed to meet his burden of demonstrating that the trial court did not consider all the factors enumerated in Utah Code Annotated section 76-8-401(4). See Helms, 2002 UT 12 at ¶ 16, 40 P.3d 626. Therefore, we hold that the trial court did not abuse its discretion when it sentenced Defendant to three consecutive prison terms.

CONCLUSION

(35 Although Defendant failed to list all three case numbers in his notice of appeal, we hold that he sufficiently complied with the specificity requirement of rule 3(d) of the Utah Rules of Appellate Procedure, thereby allowing this court to review all three sentences that the trial court imposed. We base our holding on the fact that Defendant's three sentences were imposed during one consolidated sentencing hearing, after which, only one judgment and commitment order was entered, and the State neither claims nor is there any evidence it was prejudiced.

«[ 36 With respect to the trial court's denial of Defendant's request for probation and its imposition of three consecutive sentences, we hold that the trial court did not abuse its discretion. Defendant pleaded guilty to three egregious home robberies, one of which resulted in a victim being stabbed and another where children watched while the assailants

tied up their parents. Moreover, all of the presentence reports submitted to the court recommended that Defendant be incarcerated. Although the trial court did not explicitly refer to Defendant's history, character, and rehabilitative needs at the time of Defendant's sentencing, we find that there is ample evidence in the record that the trial court adequately considered these factors. We therefore affirm.

T37 WE CONCUR: JAMES Z. DAVIS, Judge and WILLIAM A. THORNE JR., Judge.

      . After the case was transferred to district court, the charges stemming from the three robberies were assigned three different case numbers: 011913948, 011913950, and 011913951.

      . The State subsequently dropped the weapons and gang enhancements.

      . Rule 3(c) of the Federal Rules of Appellate Procedure reads in relevant part as follows:
      Contents of the Notice of Appeal.
      (1) The notice of appeal must: (A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice ...;
      (B) designate the judgment, order, or part thereof being appealed; and
      (C) name the court to which the appeal is taken.

      . Although by no means dispositive, we also note that Defendant was not represented by counsel at the time he filed his notice of appeal. Consequently, "because of his lack of technical knowledge of law and procedure," Defendant "should be accorded every consideration that may reasonably be indulged." Lundahl v. Quinn, 2003 UT 11, ¶ 3, 67 P.3d 1000 (quotations and citations omitted).

      . Despite our holding today, we strongly encourage appellants to reference all judgments appealed from in their notices of appeal.

      . Because this court has jurisdiction to review all three sentences, we do not address Defendant's argument that this matter should be remanded for sentencing nunc pro tunc.

      . Defendant has cited State v. Galli, 967 P.2d 930 (Utah 1998), to support his argument that the trial court should have placed him on probation. However, Defendant's reliance on Galli is misplaced. There, the court held that the trial court had abused its discretion in imposing consecutive sentences because of its refusal to give weight to certain mitigating evidence such as the defendant's use of a pellet gun rather than a real gun, the defendant's voluntary confession to the offenses he committed, and his likelihood of rehabilitation. See id. at 938. No such mitigating evidence exists in this case.

      . Utah Code Annotated section 76-3-401 was amended effective July 1, 2002. However, we cite to the 1999 version of the statute because it was in effect at the time of Defendant's sentencing.

      . However, as the State correctly notes, it is not clear from the Presentence Investigation Report whether, when one of the victims suffered an asthmatic attack, it was Defendant who allowed the victim's daughter to retrieve the victim's medication.


author: HILL, Chief Justice.

text:
    2004 WY 2
    CLC, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 03-87.
    Supreme Court of Wyoming.
    Jan. 21, 2004.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument presented by Ms. Kerin.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; and Robin Sessions Cooley, Deputy Attorney General. Argument presented by Ms. Cooley.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Appellant, CLC, seeks review of an order of the district court that denied an application for conditional discharge from the Wyoming State Hospital (WSH). By order entered on September 14, 1998, CLC was found not guilty by reason of mental illness of the crime of interference with a police officer. Initially, CLC was placed in outpatient supervision in the community, but when he failed to abide by his prescribed treatment regimen, he was sent to WSH for confinement and treatment. On July 15, 2002, WSH filed an application for conditional discharge in the district court. However, WSH subsequently amended its application, asking the district court to continue CLC's hospitalization in order to augment his treatment. The district court denied the application for conditional discharge, and CLC appeals from that order.

[T2] After careful review of the record, we conclude that the district court's order denying the application for conditional discharge is not contrary to the evidence brought to the district court's attention, nor is it otherwise an abuse of discretion. There is no other action of the district court that can constitute a basis for this appeal, as the earlier orders of the district court were not timely appealed. Thus, the appeal will be affirmed in part, dismissed in part, and the matter remanded to the district court to consider such other proceedings as may be initiated by it of its own motion, by the prosecutor, by WSH, or by CLC.

ISSUES

[18] CLC raises these issues:

I. Whether the order denying application for conditional discharge is invalid when [CLC] is unlawfully confined, without due process of law, at the Wyoming State Hospital?
IIL Whether [CLC] received ineffective assistance of counsel?
III. Whether the trial court erred in refusing [CLC's] conditional discharge from the Wyoming State Hospital?

The State rephrases those issues:

I. Whether [CLC] is lawfully confined in the Wyoming State Hospital?
II. Whether [CLC] received effective assistance of counsel?
III. Whether the district court properly denied [CLC's] application for discharge from the Wyoming State Hospital?

FACTS AND PROCEEDINGS

[T4] In an information filed in the county court (now circuit court) on January 26, 1998, CLC was charged with the crime of interference with a police officer in violation of Wyo. Stat. Ann. § 6-5-204(a) (LexisNexis 2008), a misdemeanor. By order entered on January 28, 1998, the circuit court suspended the proceedings in this case and sent CLC to WSH for a mental evaluation. The record is not entirely clear as to what transpired over the next several months, but on June 12, 1998, the district attorney filed a demand for a preliminary hearing for CLC. In that demand, this summary of events was provided to the district court: CLC was sent to WSH on January 28, 1998; on March 8, 1998, the State received a report from WSH indicating that CLC had medical conditions that required treatment and that WSH could not make a determination regarding sanity or fitness to proceed unless and until those conditions were treated; CLC was then involuntarily committed to WSH; on May 28, 1998, the State received a report from WSH indicating that CLC's behavior was "appropriate" and his thinking "clear."

[15] On July 13, 1998, CLC entered a plea of not guilty by reason of mental illness or deficiency. By order entered on July 20, 1998, CLC was ordered to go to WSH for an evaluation. See Wyo. Stat. Ann. § 7-11-303(b) (LexisNexis 2008). By order entered on September 14, 1998, CLC was found not guilty by reason of mental illness and placed on supervision. In that order the district court placed CLC under the supervision of the Department of Probation and Parole, to ensure that CLC "take all medications that are appropriate and pursue any and all mental health care counseling and treatment as deemed necessary and appropriate by his supervising agent." In this regard, Wyo. Stat. Aun. § 7-11-806(c) (LexisNexis 2008) provides:

(c) If the court finds that the person is affected by mental illness or deficiency and presents a substantial risk of danger to himself or others, but can be controlled adequately and given proper care, supervision and treatment if released on supervision, the court shall order him released subject to the supervisory orders of the court as are appropriate in the interests of justice and the welfare of the defendant. The court may appoint any person or state, county or local agency which the court considers capable of supervising the person upon release. Upon receipt of an order issued under this subsection, the person or agency appointed shall assume the supervision of the person pursuant to the direction of the court. Conditions of release in the order of the court may be modified from time to time and supervision may be terminated by order of the court. If upon a hearing the state shows by a preponderance of the evidence that the person released on supervision under this subsection can no longer be controlled adequately by supervision, the court may order the person committed to the Wyoming state hospital or other designated facility for custody, care and treatment. [Emphasis added.]

[T6] CLC was placed under the supervision of the Department of Probation and Parole, and on April 11, 2000, a pleading styled "Petition for Revocation of Probation" was filed in the district court. CLC was arrested on April 15, 2000, and confined in the Laramie County Detention Center. The basis for the revocation was CLC's failure to follow prescribed treatment while under supervision in the community. In an order entered on May 30, 2000, CLC was committed to WSH for confinement and treatment. In that order the district court commissioner acknowledged that CLC violated the terms of his community "supervision" and that he presented a danger to himself and others. The order did not revoke an imposition of a term of probation.

[17] CLC reraained at WSH in the interim, and on July 15, 2002, WSH filed an application in the district court for an order of conditional discharge for CLC. That application was supported by a report prepared by WSH that indicated CLC was "probably safe" for discharge but recommended that he be closely followed in community supervision. The district court scheduled a hearing for October 31, 2002, to consider the application for discharge. In a letter dated October 80, 2002, WSH modified its recommendation, opining that it would be best if CLC remained at WSH for further treatment for a period of at least 90 days. At the hearing, counsel, who was located in Cheyenne, represented CLC and CLC participated by telephone from WSH and was not present in Cheyenne. CLC was able to visit privately with his attorney during the proceedings. By order entered on December 6, 2002, the district court denied the application for conditional discharge and CLC remained at WSH. In this regard, Wyo. Stat. Ann. § T-11-806(g) provides:

(g) If the court, after a hearing upon any application for discharge, or application for modification or termination of release on supervision, under subsections (c) through (f) of this section, finds that the person is no longer affected by mental illness or deficiency, or that he no longer presents a substantial risk of danger to himself or others, the court shall order him discharged from custody or from supervision. If the court finds that the person is still affected by a mental illness or deficiency and presents a substantial risk of danger to himself or others, but can be controlled adequately if he is released on supervision, the court shall order him released on supervision as provided in subsection (c) of this section. If the court finds that the person has not recovered from his mental illness or deficiency and presents a substantial risk of danger to himself or others and cannot adequately be controlled if he is released on supervision, the court shall order him remanded for continued care and treatment. [Emphasis added.]

[T8] On December 12, 2002, CLC filed a pro se notice of appeal seeking review of that order in this Court. By order entered on March 27, 2008, this Court appointed the Public Defender to represent CLC in this appeal. In a letter dated April 16, 2008, WSH reported to the district court that CLC could not be recommended for discharge "conditionally or otherwise" as he refused offered treatment and medication and could not safely be released into the community and that "his risk of dangerous relapse in the community is high." (Emphasis in original.) WSH also noted a potential need for CLC to have a surrogate decision-maker appointed because his mental illnesses were a significant factor in his refusal to take the medication that would likely be of benefit to him and, perhaps, hasten his ability to safely function in a community setting. No more current information is available to this Court as to CLC's condition.

DISCUSSION

Was CLC Committed to WSH Without Due Process of Law

[T9] As our point of embarkation, we note that the determination that CLC was not guilty by reason of mental illness appears to have been reached in a manner consistent with Wyo. Stat. Ann. §§ 7-11-801 through - 307 (LexisNexis 2008). Those statutes provided a full range of due process protections to CLC. See generally, ABA Criminal Justice Mental Health Standards, Part VII (1984); and 2 Paul H. Robinson, Criminal Law Defenses, § 173(g) (1984 and 2001-2002 Pocket Part). Of central importance here, however, CLC did not appeal from the order that revoked the district court's initial determination that CLC could remain in the community under supervision. Although styled a revocation of probation, we view that as an issue of form rather than substance, and it is clear the district court acted in a manner consistent with the statutes that govern in these cireumstances. In any event, because CLC did not timely file an appeal from that order, we are without jurisdiction to consider the issue framed by this portion of his brief. W.R.A.P. 1.08.

Did CLC Receive Effective Assistance of Counsel

[110] To the extent CLC contends that his counsel was ineffective in the proceedings prior to the filing of the application for conditional discharge, we cannot consider that issue because a timely appeal was not taken from the district court's earlier order. WRAP. 1.08.

To the extent CLC contends that his counsel was ineffective leading up to and during the hearing on WSH's application for conditional discharge, we employ the following standard of review:

In reviewing claims of ineffective assistance of counsel, our paramount consideration is whether, in light of all the cireum-stances, trial counsels' acts or omissions were outside the wide range of professionally competent assistance. Gleason v. State, 2002 WY 161, ¶ 44, 57 P.3d 332, ¶ 44 (Wyo.2002). An appellant claiming ineffective assistance of counsel must demonstrate on the record that counsel's performance was deficient Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ordinarily, he must also demonstrate that prejudice resulted. Under this test, the inquiry is whether or not counsel rendered the assistance a reasonably competent attorney would have offered and, if not, whether his failure to do so prejudiced the defense of the case. Id. This two-part test, the Strickland test, is the test we normally apply in reviewing ineffectiveness claims, and it is this test that applies to Mr. Sincock's first claim of ineffectiveness.
We examine the conduct of defense counsel in light of all the cireumstances in determining whether the identified acts or omissions fall outside the ambit of professionally competent assistance, bearing in mind the function of counsel is to make the adversarial testing process work in every case. Dickeson v. State, 843 P.2d 606, 609 (Wyo.1992). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. (Gleason, 2002 WY 161, 57 P.3d 332. We do not evaluate the efforts of counsel from a perspective of hindsight but endeavor to reconstruct the circumstances surrounding the challenged conduct and evaluate the professional efforts from the perspective of counsel at the time. Dickeson, 843 P.2d at 609. We invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment. Id. The burden is on the defendant to overcome this presumption that, in light of the cireumstances, the challenged action or failure of the attorney might be considered sound trial strategy. Id.

Sincock v. State, 2008 WY 115, ¶¶ 34-35, 76 P.3d 323, ¶¶ 34-85 (Wyo.2003).

[112] We have carefully reviewed the record on appeal, and we conclude CLC's counsel was not ineffective.

Did the District Court Err in Denying the Application for Conditional Discharge

[113] It is apparent that WSH decided to withdraw, or at least modify, its application for conditional discharge. Its papers make clear that it still considered CLC to be a danger to himself or others. CLC presented no evidence to the contrary. For these reasons we are compelled to conclude that the district court's order denying the motion for conditional discharge was not contrary to the evidence presented to it and was not otherwise an abuse of discretion.

CONCLUSION

[T14] For the reasons set out above, the order of the district court denying the application for conditional discharge is affirmed. CLC's counsel was not ineffective in those proceedings. The appeal is dismissed with respect to the other issues raised by CLC. This matter is remanded to the district court, and the parties are returned to the positions they were in prior to the district court's December 6, 2002 order denying the application for conditional discharge. Furthermore, this matter is remanded to the district court for such further proceedings as may be initiated by the district court of its own motion, or by the State acting through the prosecutor or WSH, or by CLC.

      . An amended information was filed on March 3, 1998, charging CLC with interference with a police officer in violation of Wyo. Stat. Ann. § 6-5-204(b), a felony.

      . See Wyo. Stat. Ann. §§ 25-10-110, -112, - 116, -118, and -123 (LexisNexis 2003).


text:
    2004 WY 3
    In the Matter of the Petition for REINSTATEMENT of Frank J. JONES, Petitioner.
    No. D-94-9.
    Supreme Court of Wyoming.
    Jan. 28, 2004.
   ORDER OF REINSTATEMENT

[11] Following a hearing before the Wyoming State Board of Professional Responsibility on December 1 and 2, 2003, on the petition for reinstatement to the bar of the State of Wyoming filed by Frank J. Jones, that Board recommended that this Court grant the petition. The matter is now before this Court as required by the provisions of Rule XXII(e) of the Disciplinary Code for the Wyoming State Bar (effective January 8, 1990). This Court grants the petition.

[12] This Court disbarred Frank J. Jones by its order entered May 80, 1995. On February 19, 1999, pursuant to Mr. Jones' guilty plea, this Court entered its judgment and sentence finding Mr. Jones guilty of eight counts of the unauthorized practice of law in the State of Wyoming and contempt of this Court, which unauthorized practice of law and contempt occurred after this Court's disbarment of Mr. Jones.

[13] On May 22, 2002, Mr. Jones filed with the Wyoming State Board of Professional Responsibility a petition for reinstatement to the bar of the State of Wyoming. Upon receipt of that petition, the Board caused the matter to be investigated. Following that investigation, the Board scheduled a reinstatement hearing as required by the provisions of Rule XXII(e) of the Disciplinary Code for the Wyoming State Bar (effective January 8, 1990). The board conducted that hearing on December 1 and 2, 2003, at the offices of the Wyoming State Bar, 500 Randall Avenue, Cheyenne, Wyoming. The Board consisted of Craig Newman, a member of the bar and chairman of the Board who presided; M. Greg Carlson, a member of the bar; Wendy Press Sweeney, a member of the bar; Joe M. Teig, a member of the bar; William H. Twichell, a member of the bar; Linda Lindsey, a non-lawyer; and Duane Toro, a non-lawyer. Frank J. Jones represented himself. Raymond W. Martin, a member of the bar, represented the Wyoming State Bar. The following witnesses testified on behalf of Mr. Jones: James A. Eddington, a member of the bar; William H. Vines, a member of the bar; Bruce A. Hellbaum, a member of the bar; Susan Grant Jusehka; Charles B. Shellhart; Robert Shepard; Robert Mills Grant; Connie Good Lewis; Judy D. Williams; Stephen L. Simonton, a member of the bar; Kathleen Sue Willier; Laurell Marker; the Honorable Peter J. MceNiff, a member of the bar and judge of the United States Bankruptcy Court; Dr. Christopher B. Reyburn, psychiatrist and medical director of the Behavioral Health Services, Ivinson Memorial Hospital, Laramie, Wyoming. Mr. Jones testified on his own behalf and submitted a memorandum in support of his petition for reinstatement. Professor John Burman, a member of the bar and a faculty member of the University of Wyoming College of Law, Laramie, Wyoming, testified on behalf of the Wyoming State Bar. The Board admitted into evidence the following documents: report of findings of fact, conclusions of law, recommendation of sanction and assessment of costs and judgment of disbarment that issued from the disbarment proceeding; this Court's order to show cause and judgment and sentence pertaining to Mr. Jones' unauthorized practice of law conviction and contempt order; the three-volume transcript of the hearing proceedings held on Mr. Jones' first petition for reinstatement in 2001; the Board's report of findings of fact, conclusions of law, and ree-ommendations from the hearing on Mr. Jones' first reinstatement petition in 2001; this Court's order denying Mr. Jones' first petition for reinstatement in 2001; Mr. Jones' letter dated February 8, 2002, to Chief Justice Larry L. Lehman of this Court; Chief Justice Larry L. Lehman's letter dated February 21, 2002, to Mr. Jones; all exhibits admitted in the disciplinary record pertaining to Mr. Jones from the disbarment proceeding to present date; Dr. Christopher B. Reyburn's letter dated September 19, 2008, pertaining to Mr. Jones' evaluation on September 9, 2003; and Dr. Christopher B. Rey-burn's letter dated November 16, 2008, pertaining to his evaluation of Mr. Jones.

[14] The Board considered the testimony and credibility of the witnesses and the doeu-ments admitted into evidence and made the following findings of fact, conclusions and recommendations, which are contained in the Board's report dated December 17, 2008;

Findings of Fact
1. Frank J. Jones was disbarred by Order of the Wyoming Supreme Court entered May 30, 1995.
2. On February 19, 1999, the Wyoming Supreme Court entered its Judgment and Sentence, pursuant to Mr. Jones's guilty plea, finding him guilty of the unauthorized practice of law in the State of Wyoming and contempt of the Wyoming Supreme Court.
3. Mr. Jones filed his first Petition for Reinstatement pursuant to Rule XXII of the Disciplinary Code of the Wyoming State Bar ("Rule XXII") on June 1, 2000, while still on probation for his guilty plea to the unauthorized practice of law.
4. The Board entered its Report of Findings and Recommendations, recommending that the first Petition for Reinstatement be denied, on March 27, 2001 and the Wyoming Supreme Court, on May 1, 2001, entered its Order Denying Petition for Reinstatement to the Wyoming State Bar, approving and confirming, with several additional bases, the Board's March 27, 2001 Report of Findings and Recommendations.
5. Mr. Jones filed a second Petition for Reinstatement on September 18, 2001, which petition was denied without further hearing by the Board by Order dated December 13, 2001; and the Wyoming Supreme Court approved and confirmed the Board's denial of the second petition.
6. Mr. Jones filed his third Petition for Reinstatement, the petition on which the Board conducted its hearing on December 1 and 2, 2003, on May 22, 2002.
7. At the hearing on the captioned matter, the only witness who testified that Mr. Jones should not be reinstated was Professor John Burman. Professor Burman testified that Mr. Jones should not be reinstated "at this time." Professor Burman based that testimony, in part, upon his opinion and belief that Mr. Jones was not "rehabilitated." However, using Professor Burman's own definition of rehabilitation, elicited from Professor Burman on cross examination, Mr. Jones has been rehabilitated.
8. For purposes of his opinion on whether Mr. Jones should be reinstated as a result of the third Petition for Reinstatement, Professor Burman was most concerned, as were many members of the Board, over Mr. Jones' conduct resulting in his guilty plea to the unauthorized practice of law and Judgment and Sentence by the Wyoming Supreme Court. The last conduct giving rise to that Judgment and Sentence occurred in the 1995 to 1997 time frame. While the Board is as concerned as Professor Burman about the nature of that conduct and its implications, Mr. Jones expressed, to some greater or lesser degree, contrition for such conduct; and the Board is not persuaded that delaying a reinstatement of Mr. Jones, awaiting the passage of more time, will serve any useful purpose.
Conclusions of Law
1. The parties agreed, and the Board concluded, that Rule XXII and the version of the Disciplinary Code of the Wyoming State Bar in effect prior to the November 1, 2008 effective date of the new Disciplinary Code of the Wyoming State Bar is and was applicable to the third Petition for Reinstatement of Mr. Jones and the hearing which are the subject of this Report of Findings, Conclusions and Recommendations.
2. Rule XXII provides that a disbarred attorney seeking reinstatement must demonstrate by clear and convincing evidence that:
a. he has been rehabilitated;
b. he has complied with all requirements imposed by the court;
c. he has the moral qualifications, competency and learning in law required for admission to practice law in Wyoming; and
d. the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administrations of justice nor subversive to the public interest.

8. In general, the Board concludes that Mr. Jones satisfied his burden of persuasion as to the required elements of Rule XXIL

4. In attempting to make a determination as to whether the petitioner in this case has been rehabilitated, the Board was persuaded that a useful definition of "rehabilitation" is found in Avila v. The People of the State of Colorado, 53[sic] P.3d 230, 232 (Colo. PDJ 2002)[] quoted by petitioner in his Memorandum in Support of Petition for Reinstatement:

Rehabilitation for purposes of attorney reinstatement and readmission to the bar has been defined as 'the reestablishment of the reputation of a person by his or her restoration to a useful and constructive place in society.' [citation omitted]

Based upon this definition and the evidence before it, the Board concludes that Mr. Jones demonstrated his rehabilitation.

5. The Board also concludes that it is not required to find or conclude that there is, or must be demonstrated by petitioner, an absolute certainty or guarantee that the petitioner will never again engage in the kind of misconduct which led to his disbarment. It is impossible for the Board to reach such a conclusion. Further, such a burden places the bar too high and would doom every petition for reinstatement. For these propositions, the Board relies on The Matter of McKeon, 201 Mont. 515, 656 P.2d 179 (1982) also cited and quoted in petitioner's Memorandum in Support of Petition for Reinstatement. Rather, the Board concludes that it must attempt to discern, from the evidence presented, whether the petitioner demonstrates current moral and ethical behavior and fitness to reenter the practice of law.

6. The Board concludes that Mr. Jones has demonstrated he is eligible for reinstatement.

Recommendation

The Board of Professional Responsibility therefore RECOMMENDS:

A. That Frank J. Jones' Petition for Reinstatement, filed May 22, 2002, be GRANTED; and
B. That Frank J. Jones should pay the costs incurred by the Wyoming State Bar for the lodging, travel and meals for the Board of Professional Responsibility to conduct the hearing, including the fees of the court reporter engaged by the Wyoming State Bar to report the hearing, and further that Mr. Jones should pay for all the time devoted to this case by Special Bar Counsel, Raymond W. Martin, at Mr. Martin's prevailing hourly rate.

Dated this 17th day of December, 2008.

[15] We do not need to detail the evidence offered on Mr. Jones's behalf which the Board relied upon in support of its findings, conclusions, and recommendation. This Court's own review of the record satisfies it that clear and convincing evidence was presented that Mr. Jones has been rehabilitated; has the moral qualifications, competency and learning in law required for admission to practice law in this state; and that Mr. Jones's resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive to the public interest. In particular, this Court notes Mr. Jones's own words before the Board: "I am not bitter. I have no fight with the Wyoming State Bar or any of its members;" "What I did was totally wrong. I've accepted that;" "[TJhere was a period in my life when I was not an honest individual, I was not ethical, and I feel that I have overcome that time period and I have done everything possible to overcome that;" "I have made a promise to myself, to perhaps the religious aspect of my life, God, I've made it to my family, I'll make it to this Board, you will never see conduct from me as was exhibited during that time period. It just won't happen;" "I will never, ever bring shame upon myself, my family, the legal profession, any member of this Board if you should see fit to reinstate me. I will hopefully go out and make not only myself, my family, but perhaps any of you that should follow the course of my conduct somewhat happy, maybe not proud, but satisfied that, yes, we gave him a chance and he took it and he did what he promised."

[16] No absolute guarantee exists that Mr. Jones will never engage in professional misconduct again. But if such a guarantee were required for reinstatement under the rules of the Wyoming State Bar and this Court, none could qualify. All that this Court can require is clear and convincing evidence of the factors enumerated in those rules. In accepting the Board's recommendation and in deciding to restore Mr. Jones to the practice of law in the State of Wyoming, we are placing upon him the burden to match his promises with his conduct. He must now demonstrate to the public, to the members of the state bar, to those witnesses who testified on his behalf, to the members of the Board, and to the judiciary of this state that his reform is fundamental and genuine, and that our collective trust is not misplaced.

[T7] As part of the Board's recommendation to this Court, the Board recommended that Mr. Jones "pay the costs incurred by the Wyoming State Bar for the lodging, travel and meals for the Board ... to conduct the hearing, including the fees of the court reporter ... to report the hearing, and ... pay for all the time devoted to this case by Special Bar Counsel, Raymond W. Martin, at Mr. Martin's prevailing hourly rate." This Court accepts that recommendation, as well.

[T 8] -It is therefore ORDERED that:

1. The Petition of Frank J. Jones for Reinstatement to the bar of the State of Wyoming be, and it is hereby, granted subject to this Court's receipt from the Board of a statement that Mr. Jones has paid the Wyoming State Bar's costs and court reporter fees for the hearing and Special Bar Counsel's fees in this matter.

2. The Clerk of the Supreme Court notify the courts of this state, the Wyoming State Bar, who shall notify the members of the Wyoming State Bar, and all other necessary entities that Mr. Jones has been reinstated to the practice of law in this state.

3. This decision be published in the Wyoming Reporter and the Pacific Reporter.

[19] Dated this 23rd day of January, 2004.

Chief Justice WILLIAM U. HILL recused.

      . 52 P.3d 230, 232 (Colo. PDJ 2002).