State in Interest of WBJ

OPINION

BENCH, Judge:

W.B.J., a minor, appeals from a Fourth District Juvenile Court judgment finding him guilty of possession of marijuana and possession of drug paraphernalia. W.B.J. argues *296that he is entitled to a new trial because the court erred in failing to appoint counsel to represent him at trial. We affirm.

BACKGROUND

In July 1996, a petition was filed in Third District Juvenile Court alleging that W.B.J. had committed theft by deception and vehicle burglary. A second petition, filed in August 1996, alleged that W.B.J. had unlawfully possessed or consumed alcohol, unlawfully possessed marijuana, and unlawfully possessed drug paraphernalia. The court consolidated the two petitions.

At the arraignment in the third district, the court advised W.B.J. of his right to counsel. W.B.J. requested court-appointed counsel before proceeding further. Because W.B.J. is a minor living with his parents, his father completed a form disclosing the family’s income so the court could evaluate the claim of indigence. After reviewing the form, the court appointed counsel for the pretrial hearing but required an additional order of the court for any further appointment. At the pretrial hearing, W.B.J. admitted the vehicle burglary allegation and the court dismissed the theft by deception allegation. Because the other three allegations related to events that occurred in Utah County, the court transferred the case to the Fourth District Juvenile Court.

At a pretrial hearing in the fourth district, W.B.J.⅛ mother completed a form disclosing the family’s financial situation. After reviewing the form, the court found that W.B.J. did not qualify for court-appointed counsel. The case then proceeded to trial, with W.B.J. representing himself. The court found W.B.J. guilty of possession of marijuana and possession of drag paraphernalia.1 The court then transferred the case back to the Third District Juvenile Court for disposition. The disposition did not include incarceration. W.B.J. now appeals the Fourth District Juvenile Court’s delinquency judgment, focusing exclusively on the denial of court-appointed counsel.

ISSUE

The trial court determined that W.B.Jl’s family could afford counsel. W.B.J. has not challenged that determination, nor has he challenged the adequacy of the indigence form. Thus, the only issue on appeal is whether the trial court must determine W.B.J.’s indigence by focusing exclusively on his separate resources.

STANDARD OF REVIEW

The Utah Supreme Court has determined “that the underlying empirical facts regarding the claim of indigency are reviewable for clear error; the conclusion as to whether those facts qualify the defendant as indigent is reviewable for correctness.” State v. Vincent, 883 P.2d 278, 282 (Utah 1994). Also, the “degree of discretion the legal standard for ‘indigency’ bestows on trial courts ... [is] a rather broad pasture for trial judges applying the law of indigency to the facts before them.” Id.; State v. Pena, 869 P.2d 932, 937-38 (Utah 1994).

The denial of the constitutional right to counsel requires reversal. See State v. Sampson, 808 P.2d 1100, 1111 (Utah Ct.App.1990), cert. denied, 817 P.2d 327 (Utah 1991), and cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992). Reversal is not warranted, however, for the denial of a merely statutory right to counsel unless the appellant demonstrates the likelihood of a different result. See State v. Young, 853 P.2d 327, 361 (Utah 1993).

ANALYSIS

In the landmark case In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the United States Supreme Court held that in

proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.

*297Id. at 41, 87 S.Ct. at 1451 (emphasis added), W.B.J. argues, however, that Utah law requires the juvenile court to determine indigence by focusing exclusively on the juvenile’s separate resources. We disagree.

The United States Constitution requires appointed counsel only where the indigent is subject to incarceration. See id. The United States Supreme Court later unequivocally adopted “actual imprisonment as the line defining the constitutional right to appointment of counsel.” Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). “Thus, Scott establishes an after-the-fact test that requires a reviewing court to find an uncounselled misdemeanor conviction constitutional when the defendant was not [incarcerated].” Layton City v. Longcrier, 943 P.2d 655, 658 (Utah Ct.App.), cert. denied, 953 P.2d 449 (Utah 1997), and cert. denied, — U.S. —, 118 S. Ct 1811, 140 L.Ed.2d 949 (1998). Given that W.B.J. was not incarcerated, no constitutional right to counsel is implicated in this case.

In Utah, however, our legislature has vested a juvenile with a statutory right to counsel beyond what the Constitution requires. Regardless of whether the juvenile faces confinement,

[t]he parents, guardian, custodian, and the minor, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings. They have the right to employ counsel of their own choice and if any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court.

Utah Code Ann. § 78-3a-913(l)(a) (Supp. 1998).2 The statute does not require that the juvenile personally invoke the right to counsel. Rather, it allows parents, guardian, custodian, or the minor, “any of them,” to request appointed counsel to represent the interests of an indigent juvenile. Id.

To determine whether a juvenile is indigent, the court considers the following factors:

“employment status and earning capacity; financial aid from family or friends; financial assistance from state and federal programs; [the defendant’s] necessary living expenses and liabilities; [the defendant’s] unencumbered assets, or any disposition thereof, and borrowing capacity; and, the relative amount of court costs to be waived.”

Vincent, 883 P.2d at 283-84 (quoting Kelsey v. Hanson, 818 P.2d 590, 591-92 (Utah Ct.App.1991) (per curiam)) (alteration in original) (footnotes omitted) (emphasis added). The Utah Supreme Court has noted “that if the facts establish that two people are living together as a domestic unit, without regard to whether they are legally married, then both persons’ incomes may properly be considered in determining whether either of them is indigent.” Id. at 283 n. 6. Similarly, an unemancipated juvenile living in the family home is part of a domestic unit.3 The trial court must therefore consider the resources of the juvenile’s parents, as well as any separate resources of the juvenile, before determining an unemancipated juvenile’s indigence.

An unemaneipated juvenile must include the financial resources of his or her parents in any application for appointment of counsel. Similarly, the juvenile’s parents *298must include the juvenile’s personal resources when requesting court-appointed counsel for the juvenile. Thus, the trial court may not focus exclusively on an un-emancipated juvenile’s separate resources in determining the juvenile’s indigence. Given the undisputed fact that W.B.J.’s family could afford an attorney, we conclude that the trial court ruled correctly in not appointing counsel to represent W.B.J.

Even if we were to hold that the court erred in not appointing counsel, the result would be the same. Any error in not appointing counsel could not be a denial of a constitutional right to counsel because W.B.J. was not incarcerated. See Scott, 440 U.S. at 373, 99 S.Ct. at 1162; Gault, 387 U.S. at 41, 87 S.Ct. at 1451. If W.B.J.’s statutory right to counsel was in any way violated, reversal would likewise not be warranted because counsel on appeal has failed to demonstrate the likelihood of a different result. See Young, 853 P.2d at 361 (holding “ ‘the standard for dealing with non-constitutional error is that [the court] will not reverse a conviction unless the error is substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a more favorable result for the defendant’ ”) (quoting State v. Johnson, 771 P.2d 1071, 1073 (Utah 1989)).

The judgment of the juvenile court is affirmed.

ORME, J., concurs.

. The court dismissed the alleged alcohol viola-lion at the pretrial hearing.

. We note that the statute is found in the "Miscellaneous Provisions” section of the Juvenile Court Act. As such, the statute also applies to abuse, neglect, and dependency proceedings. See Utah Code Ann. § 78-3a-306(2)(e) (Supp. 1998). It also applies to termination of parental rights proceedings. See id. § 78~3a-406(2) (1996); L.C. v. State, 348 Utah Adv. Rep. 26, 27, 963 P.2d 761, 763 (Utah Ct.App.1998). Depending on the type of proceeding, all of the persons specified — "parents, guardian, custodian, and the minor” — have statutory rights to appointed counsel.

. The dissent challenges our conclusion that W.B.J. is an unemancipated juvenile. However, W.B.J. has never asserted he is emancipated. See In re R.R. v. C.R., 797 P.2d 459, 464 (Utah Ct.App.1990) (stating appellants must “establish[ ] that their sons were actually emancipated, and that appellants’ obligations to support were thereby terminated”). We also note that an un-emancipated juvenile’s claim to family financial resources is on a strong legal footing. See Utah Code Ann. § 78-45-3(1) (1996) ("Every father shall support his child....”); Id. § 78-45-4(1) (1996) ("Every woman shall support her child....").