JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 The maternal grandparents of two children filed a petition for guardianship, alleging neglect by both parents and abuse at the hands of the children’s father. The guardianship was contested, and a trial was held. After trial, the juvenile court granted the petition, finding facts consistent with the allegations of the petition and determining that the guardianship was in the best interest of the children. Further, the juvenile court determined that the mother’s parent-time, if any, would take place at the unfettered discretion of the grandparents. The mother appeals, claiming the juvenile court erred in determining neglect, erred in failing to order parent-time, and wrongfully denied a motion to change venue as to one of the children. For the most part, we affirm. However, the juvenile court’s findings regarding the mother’s parent-time rights are inadequate, and we therefore remand this matter for the entry of further findings and conclusions as necessary.
BACKGROUND
¶2 AG (Mother) and JH (Father) are the natural parents of GH and RH (the Children).[1] In April 2022, Mother’s parents, RG and RG (Grandparents), petitioned for guardianship and custody of the Children, alleging that such a placement was in the best interest of the Children due to Father’s abuse and both parents’ neglect. A few days later, Grandparents filed an ex parte motion for temporary custody of the Children, and the juvenile court granted the request.
¶3 At a pre-trial hearing, Mother asked for an expedited evidentiary hearing regarding temporary custody. The court declined that request and instead held a combined adjudication and disposition hearing over two trial days in July and August 2022.
¶4 After that hearing, the court issued an order setting forth findings of fact and conclusions of law regarding adjudication and disposition. Because Mother does not dispute the findings of fact, we recite the facts directly from the juvenile court’s findings.[2]
¶5 The court took judicial notice of a 2019 order in which the same court terminated Mother’s parental rights to an older child, who was adopted by Grandparents shortly thereafter. Mother stated she had “no idea” why her maternal rights for the older child were terminated, but the record shows that it was primarily due to Mother’s neglect.
¶6 Mother moved in with Grandparents in Price, Utah, in July 2019 and lived with them through the first part of January 2022. From June through September 2021, Mother worked evenings (5:00 p.m. to 9:00 p.m.). She had surgery for “a minor thing” in September 2021. Mother was unemployed until she obtained full-time employment in December 2021. At this job, she worked ten-hour shifts (10:00 a.m. to 8:00 p.m.) four days per week.
¶7 While living with Grandparents, Mother “relied on [Grandparents] almost exclusively and for nearly everything for [the Children] . . . . [Grandparents] were the primary caretakers for [the Children’s] day-to-day physical, developmental, medical, and financial needs.”
¶8 With regard to the Children’s physical needs, Mother “did very little to make arrangements for [the Children], provide basic care, or assist with household duties,” even when asked to do so. She did not provide “day-to-day food or meals” for the Children, nor did she help with potty training GH.
¶9 Regarding developmental needs, Grandparents provided for “the vast majority of [the Children’s] indoor and outdoor activities, toys, and one-on-one parent-role interactions.” Mother “did very little to actually parent [the Children] or care for their needs,” and she did not assist with “mothering” the Children. When asked to care for the Children, other than watching the Children for about five hours some weekdays when Grandparents were both working, “Mother would often say she was too tired, too busy, be on her phone or smoking, or on her bed resting or lounging.”
¶10 Mother’s sister (Sister) would often visit Grandparents’ house (about two times each week when Grandparents were not there), and she observed Mother being “verbally abusive or terse with [the Children],” leaving them “unattended or unsupervised, not changing diapers as needed, or not caring for them.” The court also found, based on Sister’s testimony, that Mother would often “come to [Sister’s] house (at times unannounced) without childcare supplies or clothes,” asking for help with the Children because Mother was “tired, needed a break, going out with friends, or going to work (although, at times, she did not go to work, but went back to [Grandparents’] house to sleep or smoke).”
¶11 Financially, Mother sometimes shared her government food assistance card but relied on Grandparents for most of the Children’s financial needs. She also relied on Grandparents to provide birthday or Christmas gifts for the Children. She did, however, reimburse Grandparents a few hundred dollars and paid for some daycare.
¶12 Regarding medical needs, Mother took the Children for immunizations, but she did not take them to other types of medical appointments or help Grandparents when the Children were sick with ear infections, colds, or other maladies.
¶13 In January 2022, Mother moved in with another relative (Step-Grandmother) in Highland, Utah, which was twenty minutes from her newly acquired job. Grandparents continued as GH’s primary caretakers in Price, but RH moved to Step-Grandmother’s house with Mother.
¶14 During this time-period, RH received daily and weekly care in four different cities separated by nearly a hundred miles and by four different caregivers besides Mother, namely Step-Grandmother, Great-Grandmother, Father’s mother, and Grandparents. Essentially, Grandparents and Great-Grandmother would relieve Step-Grandmother when she was not available to watch RH. Sometimes Mother would be the one to take RH to Great-Grandmother’s house. Step-Grandmother, Grandparents, the maternal great-grandmother (Great-Grandmother), or Mother transported RH, and sometimes GH, from house to house on weekends. Mother’s mother handled most of the Children’s care coordination, “unless Mother needed to preplan to accommodate her own work schedule.” RH did not stay in “one consistent place or house” during this time-period; RH was at a “different house almost every day of the week, and each week was different than the last.”
¶15 Watching Mother with the Children “scared” Step-Grandmother, and she never saw Mother being “a mother” to the Children. Mother was “negative verbally” to the Children and “put her own wants and needs before RH’s needs.” Mother would get upset when Step-Grandmother wanted to go out, making it necessary for Mother to watch RH.
¶16 Mother provided very little assistance to Step-Grandmother with household duties, except for washing her and RH’s clothes, and “Mother’s bedroom was always cluttered (with RH’s clothes on the floor) and never cleaned.” Mother put RH to bed half the time, but Step-Grandmother noted that the time was never consistent, as Mother sometimes would come home as late as 10:30 p.m. On some Friday nights, Mother did not come home at all until later that weekend.
¶17 While living with Step-Grandmother, Mother changed RH’s diaper only about once per day; smoked cigarettes “all the time”; was “always on her phone”; did not give baby food or regular feeding; and did not read to, play with, sing to, or bathe RH.
¶18 In mid-March 2022, Mother moved into a rental house in Murray, Utah, with RH. Although Step-Grandmother no longer provided RH daily care after the move, Mother still used Grandparents, Great-Grandmother, and Father’s mother to care for RH. Mother’s work schedule changed to eight hours per day, five days per week (12:00 p.m. to 8:00 p.m. or 2:00 p.m. to 10:00 p.m.). Grandparents primarily watched RH on weekends. GH continued to live with Grandparents.
¶19 On April 5, 2022, Mother picked up Father from prison, and he lived with Mother from then until at least July 2022, when Mother learned—on the first day of trial through Father’s probation officer’s testimony—that Father had used drugs just a week before. Before hearing this testimony, “Mother did not believe he would use drugs.” Mother allowed Father to watch the Children unsupervised, and until trial, she had planned to continue living with him, despite knowing that Father was convicted of assaulting someone in prison two months prior to his release and despite complaining to Grandparents that Father was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her.” Father’s assault conviction “did not cause her any concern” about him being with her or the Children.[3] The court found that Mother’s reintroduction of Father into the Children’s lives “was an emphatic demonstration to the Court of Mother’s poor judgment and her continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”
¶20 Mother made efforts to obtain a full-time job and to perform well at her job to provide for her and the Children.[4] But the court concluded that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs” of the Children. Instead, Grandparents, Step-Grandmother, Great-Grandmother, and others provided “the crucial day-to-day parenting and caretaking that are necessary for [the Children] to thrive developmentally and otherwise.”
¶21 The court also found that the Children “thrived living together with [Grandparents] prior to Mother moving out of [Grandparents’] home in January 2022” and after being reunited in Grandparents’ home in April 2022. The court noted that Grandparents “demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.” The court emphasized that the Children should be living together.
¶22 Based on these factual findings, the court concluded there was clear and convincing evidence that Mother neglected the Children. The court also concluded, based on clear and convincing evidence, that the Children’s best interests would be met by granting Grandparents permanent custody and guardianship. Additionally, the court ordered that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management of [Grandparents].”
¶23 As relevant here, Mother moved the court to dismiss Grandparents’ petition for improper venue or to transfer venue, which the court denied. Mother now appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 Mother argues that the juvenile court erred when it determined that the Children were neglected. Mother clarifies that she is not disputing the court’s findings of fact but the court’s application of these findings to the law; therefore, “we accept these findings as true in our analysis on appeal.” d’Elia v. Rice Dev., Inc., 2006 UT App 416, ¶ 24, 147 P.3d 515. “We view the question presented here as law-like because it concerns whether the facts as constituted meet the legal standard of the statute. . . .
Accordingly, we review the issue presented here giving no deference to the juvenile court.” In re A.B., 2021 UT App 91, ¶ 10, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168.
¶25 Mother also argues that the juvenile court erred in not awarding her parent-time and thus failing to give due consideration to her residual parental rights. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).
¶26 Finally, Mother argues that the juvenile court erred in denying her motion to dismiss or transfer based on venue. Venue “is a question committed to the district court’s discretion, which we review for an abuse of discretion.” Davis County v. Purdue Pharma, LP, 2020 UT 17, ¶ 7, 463 P.3d 619.
ANALYSIS
I. Neglect
¶27 “If, at the adjudication[5] hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Utah Code § 80-3402(1). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Id. § 80-3-402(3). At the dispositional hearing, the juvenile court then “may vest custody of an abused, neglected, or dependent minor in the division or any other appropriate person.” Id. § 80-3-405(2)(a)(i). “If a minor has been placed with an individual or relative as a result of an adjudication . . . , the juvenile court may enter an order of permanent legal custody and guardianship with the individual or relative of the minor.” Id. § 80-3-405(2)(d)(i). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement of a preponderance of the evidence; and something less than proof beyond a reasonable doubt. Put differently, this standard requires the existence of facts that make a conclusion very highly probable.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (cleaned up), cert. denied, 531 P.3d 731 (Utah 2023).
¶28 Neglect is statutorily defined, and can be proved in any one of several ways. See Utah Code § 80-1-102(58)(a)(i)–(vi).[6] While the juvenile court found neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases. See In re E.F., 2013 UT App 13, ¶ 3, 295 P.3d 1165 (per curiam) (upholding juvenile court’s conclusion that mother neglected child under the sole basis of lack of proper parental care by reason of parent’s faults or habits). Among other bases, the juvenile court found neglect under subsection (ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian.” Utah Code § 80-1-102(58)(a)(ii). We agree with the juvenile court that the evidence supported a finding that this basis for neglect had been proved.
¶29 First and foremost, the factual findings demonstrated that Mother did not attend to the Children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick. Mother also did not show any interest in potty training GH.
¶30 Moreover, Mother did not behave in a manner consistent with parenting a child. For example, Mother did not demonstrate a desire to play with the Children, read or sing to them, or buy them birthday and Christmas presents. And Grandparents were the ones to provide the Children’s indoor and outdoor activities and toys rather than Mother.
¶31 Similarly, the findings revealed that Mother lacked interest in being around the Children, and she would refuse to care for them when asked by the family members with whom she was living. Mother would complain that “she was too tired” or “too busy,” or she would prefer to “be on her phone or smoking, or on her bed resting or lounging.” Likewise, Mother would drop off the Children unannounced at Sister’s house—“without child-care supplies or clothes”—because Mother was “tired, needed a break, [or was] going out with friends, or going to work,” although, at times she went back to Grandparents’ house “to sleep or smoke” instead. Mother also would get upset when Step-Grandmother wanted to go out some evenings, thus leaving Mother to care for the Children. In addition, “Mother did not do household duties when asked to do so.”
¶32 Although the court did acknowledge Mother’s commendable efforts with her current job, it still found that Mother “did not progress over the last three years as was necessary and appropriate for her to meet the daily needs of each of [the Children].”
¶33 Furthermore, the findings demonstrate that Mother was not troubled by Father being with her or the Children. Even though Mother knew that Father was convicted of assaulting someone while in prison and said that he was “controlling and threatening her, taking her phone and car, refusing to work, and taking advantage of her,” Mother allowed Father to watch the Children unsupervised and, until learning of his continued drug use at trial, had planned to go on living with him. Additionally, despite Father’s history with drug use, Mother “did not believe he would use drugs.” Mother’s reintroduction of Father into the Children’s lives demonstrated to the court “emphatic[ally]” that Mother showed “poor judgment and [a] continued inability (since having her parental rights terminated to an older child in 2019 and since [the Children] were born) to put [the Children’s] needs and welfare before her own.”
¶34 The court also highlighted that during the time when Mother lived with Step-Grandmother, the Children were cared for by many different caregivers other than Mother. The court found that Grandparents were the main caregivers for GH, and the court emphasized that RH’s daily and weekly care was provided by five different caregivers located in four different cities. Mother argues that a “child is not without proper parental care solely because that care is not always at the hands of a parent” and that it is “not uncommon for parents, especially single working mothers, to place children in daycare or arrange for care with family.” In support of her argument, Mother cites In re A.B., 2021 UT App 91, 498 P.3d 894, aff’d, 2022 UT 39, 523 P.3d 168, where we held that a child is not neglected if the child receives proper parental care, “even if not always at [a mother’s] hand.” Id. ¶ 20.
¶35 We agree with Mother that it can be completely appropriate for parents to arrange for others to help them in caring for their children, and we empathize with single parents whose childcare arrangements may not always seem ideal to others of greater means and opportunity. But Mother’s behavior in this case is distinguishable from that in In re A.B. Here, the juvenile court found, and Mother does not dispute, that Mother did “very little to make arrangements” for the Children, would drop off the Children at Sister’s “at times unannounced,” would not come home when she was expected to, and would not take care of the Children when at home. In contrast, In re A.B. concerned a child who spent summers with “welcoming relatives[,] . . . and on agreement, summer turned into a whole year.” Id. ¶ 1 (emphases added). Moreover, that mother arranged the child’s care with the relatives, id. ¶¶ 2–3, and she never refused to take care of her child when she oversaw the child’s care, id. ¶ 19. Therefore, Mother’s reliance on In re A.B. misses the mark.
¶36 Based on the foregoing, we conclude that the juvenile court’s findings of fact meet the legal standard of neglect. See Utah Code § 80-1-102(58)(a)(ii). Therefore, we affirm its grant of permanent custody and guardianship to Grandparents. See id. § 80-3-405(2)(d)(i).[7]
II. Parent-Time
¶37 Mother next argues that the juvenile court erred by failing “to even consider providing Mother parent-time in the final analysis order.” While we don’t quite agree with Mother’s characterization of the order as a complete failure to consider Mother’s residual rights, we agree that remand on this issue is necessary.
¶38 When the juvenile court vests custody of a child in someone other than the child’s natural parent, the court “shall give primary consideration to the welfare of the minor.” Utah Code § 80-3-405(2)(a)(ii)(A). Here the court did so by awarding custody to Grandparents, whom the court found to “have demonstrated their reliability and consistent efforts to provide for all of [the Children’s] day-to-day physical, mental, emotional, developmental, medical, financial, and educational needs.”
¶39 But the court’s responsibilities when awarding custody do not end there. The court also “shall give due consideration to the rights of the parent or parents concerning the minor.” Id. § 80-3-405(2)(a)(ii)(B). This includes consideration of awarding reasonable parent-time. Specifically, the statute provides that “[a] parent of a minor for whom a guardian is appointed retains residual parental rights and duties.” Id. § 75-5-209(5). These residual parental rights include “the right to reasonable parent-time unless restricted by the court.” Id. § 80-1-102(70)(a)(iv). Thus, our legislature intended for juvenile courts to give careful thought to an award of parent-time when granting custody and guardianship to someone else. And we note that parent-time is significant because it offers “the parent the possibility of maintaining a meaningful relationship with the child despite lack of physical custody.” Moreno v. Board of Educ., 926 P.2d 886, 890 (Utah 1996).
¶40 Yet here, the juvenile court simply stated that Mother’s and Father’s parent-time with the Children “shall be at the discretion and under the control or management” of Grandparents, without making any findings regarding the amount of parent-time that would be reasonable. Instead, the court delegated that determination entirely to Grandparents. And this could lead to Grandparents denying Mother any parent-time[8] without the court making any findings of fact to justify such a denial.[9] Here, we find the court’s findings and conclusions regarding parent-time to be inadequate.
¶41 A juvenile court’s factual findings “must be sufficiently detailed and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” In re S.T., 928 P.2d 393, 398 (Utah Ct. App. 1996); see also In re M.G., 2003 UT App 313U, para. 5 (holding that “a review of the court’s oral findings reveals the subsidiary facts and basis for the juvenile court’s written findings and demonstrates that the written and oral findings, taken together, are sufficiently detailed to permit appellate review”). “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the [juvenile] court’s discretionary determination was rationally based. Indeed, the [juvenile] court’s obligation to render adequate findings facilitates meaningful appellate review and ensures the parties are informed of the [juvenile] court’s reasoning.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (cleaned up). “Unless the record clearly and [incontrovertibly] supports the [juvenile] court’s decision, the absence of adequate findings of fact ordinarily requires remand for more detailed findings by the [juvenile] court.” Woodward v. Fazzio, 823 P.2d 474, 478 (Utah Ct. App. 1991) (cleaned up).
¶42 We are unable to determine the court’s basis for leaving all parent-time decisions in the hands of Grandparents, a situation that potentially denies Mother any parent-time with the Children.
Accordingly, we vacate the juvenile court’s decision regarding parent-time and remand this matter for specific findings demonstrating what conditions of parent-time are reasonable. If the court determines that it is reasonable to award no parent-time to Mother, then the court must make specific findings to justify such a determination.
III. Venue
¶43 Mother brought a motion to dismiss or change venue on the morning of trial, asserting that the case had been brought in the wrong venue.[10] The juvenile court took the motion under advisement and delayed ruling on the motion until it could take evidence and determine facts relative to venue. In its dispositional order, the juvenile court determined that venue was correct in the Seventh District. Now on appeal, Mother challenges that conclusion only as to RH. Mother maintains that on the day the petition for guardianship was filed, RH was living with Mother in Salt Lake County. Even assuming, for purposes of the discussion, that venue was incorrectly determined to be in the Seventh District as to RH, we affirm the decision of the juvenile court because Mother has failed to show any harm.
¶44 The guardian ad litem’s briefing maintained that Mother needs to show harm to obtain reversal based on an erroneous denial of the motion to change venue as it pertains to RH. Mother does not quibble with this legal assertion but claims that she implicitly identified and showed harm in her principal brief. As both parties have proceeded under the assumption that an appellant must show harm, we will do likewise without deciding that discrete issue.[11] The sole harm Mother points to is that the case regarding RH would have been dismissed and that dismissal would have benefitted Mother. Mother is wrong on the first point and utterly fails to meet her burden of persuasion on the second.
¶45 First, as to automatic dismissal, this result was rejected several years ago by this court when In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, explored the consequences of hearing a case in the wrong venue. Initially, we explained that under current precedent, subject-matter jurisdiction is not implicated when a case is filed in the wrong district. Id. ¶¶ 12–24. Then we concluded that the “consequence for filing in the wrong district is not automatic dismissal.” Id. ¶ 25. Instead, “any party, upon proper motion, may request that the case be transferred to the correct district.” Id. So, if the Mother’s motion had been granted, the case would have been transferred, not dismissed. Accordingly, the argument that harm resulted because the case would have been dismissed fails.
¶46 Second, Mother fails to identify any other harm. She merely concludes that “[d]ismissal would have benefitted Mother.” But as just explained, dismissal would not have occurred. And Mother presents no argument that she would have obtained a different result had the case been transferred. Importantly, where Mother does not challenge that the case involving GH would have remained in the Seventh District, we easily foresee that upon transfer, any other juvenile court would have likely transferred the RH case back to the Seventh District under its discretionary powers, and more particularly under rule 42 of the Utah Rules of Civil Procedure.[12] Further, Mother fails to show how the result rendered in a different venue would have been better for her. Thus, Mother fails to meet her burden of persuasion that she was harmed by the denial of her motion to change venue.
¶47 Accordingly, we see no basis to reverse the judgment of the juvenile court on the issue of venue.
CONCLUSION
¶48 We affirm the juvenile court’s determination that Mother neglected the Children and that venue was proper in the Seventh District with regard to RH. We also conclude that the juvenile court made inadequate findings regarding its parent-time award. Therefore, we vacate the court’s award of sole discretion over Mother’s parent-time to Grandparents and remand the matter for further proceedings consistent with this opinion to consider Mother’s residual parental rights when determining a reasonable award of parent-time.
[1] RH has a twin, who has lived with the maternal great-grandmother since April 2021 and is not involved in this case.
[2] Mother disputes the findings of fact only with regard to venue. But as our disposition makes clear, these factual disputes are immaterial.
[3] Although the court found that Father had “an extensive and violent criminal history, including convictions for interfering with arrests, assaults, disorderly conduct, and threats of violence,” it did not make a specific finding regarding Mother’s knowledge of his violent criminal history outside of the event in prison.
[4] When asked about how Mother was performing at work, her supervisor testified, “She is incredibly reliable. She’s one of my go-to staff . . . .”
[5] Adjudication “means a finding by the court . . . that the facts alleged in the petition have been proved.” Utah Code § 80-1102(3)(a).
[6] Utah Code section 80-1-102(58)(a) defines “neglect” as follows:
[An] action or inaction causing: (i) abandonment of a child . . . ; (ii) lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being; (iv) a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; (v) abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or (vi) educational neglect.
[7] After a dispositional hearing, the juvenile court may award permanent custody and guardianship to a relative if it finds by clear and convincing evidence either abuse or neglect by the natural parent. See Utah Code §§ 80-3-402(1), -405. Mother made additional arguments that the court erred in determining that GH was abused by Father and that Mother had standing to appeal any determinations regarding Father that contributed to a finding that Mother neglected the Children. Because we affirm the juvenile court’s determination that Mother neglected the Children, we do not need to address these arguments.
[8] Mother alleges that when she has asked Grandparents for parent-time, they have refused and told her, “You have no rights.” Mother’s allegations are not part of our appellate record, however.
[9] It is possible for a juvenile court, in an appropriate case, to determine that a parent retaining residual rights is not entitled to any parent-time. But any such determination should be rare and should be supported with findings that demonstrate why it is not reasonable, for example, for the parent to have at least short periods of unsupervised or supervised parent-time.
[10] Utah law provides that “a proceeding for a minor’s case in the juvenile court shall be commenced in the court of the district in which . . . the minor is living or found.” Utah Code § 78A-6350(1)(b).
[11] Some courts that have decided this issue have held that harm must be shown. See Lamb v. Javed, 692 S.E.2d 861, 864 (Ga. Ct. App. 2010); Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). But we do not decide this issue and leave it for another day.
[12] Mother asserts that venue rights are so substantial that a denial of a motion to change venue can be grounds for an interlocutory appeal, citing Davis County v. Purdue Pharma, LP, 2020 UT 17, 463 P.3d 619. While this is true, Mother sought no interlocutory appeal here. And other courts have held that failure to immediately appeal a denial of a motion to change venue constitutes a waiver of the venue claim. See, e.g., Patterson v. Alexander & Hamilton, Inc., 844 So. 2d 412, 415 (La. Ct. App. 2003).
STATE OF UTAH, Appellee, v. K.S., Appellant. Opinion No. 20210291-CA Filed November 16, 2023 Third District Juvenile Court, Salt Lake Department The Honorable Mark W. May No. 1108274 Monica Maio, Marina Pena, Sam Pappas, and Hilary Forbush, Attorneys for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.
TENNEY, Judge:
¶1 K.S., a minor, spent several weeks babysitting the infant child of some family members while they were at work. When the infant’s parents returned home one day, the infant was in pronounced distress. The infant was taken to the hospital, but she died a few days later.
¶2 K.S. was charged in juvenile court with having committed child abuse homicide. At the close of trial, the juvenile court found that K.S. had committed the crime and adjudicated K.S. delinquent as a result. K.S. now appeals that adjudication, arguing that there was insufficient evidence to support it. For the reasons set forth below, we affirm.
BACKGROUND
¶3 A.M., a four-month-old infant, died on May 10, 2019. Several medical experts later testified that the cause of death was a brain injury and that the fatal injury was likely inflicted in a non-accidental manner. The question at the heart of this case is who inflicted the fatal injury.
¶4 A.M.’s parents (Mother and Father) both worked and needed someone to watch their two children (A.M. and a two-year-old son) during the day. After an arrangement with a previous babysitter fell through, Mother and Father learned that K.S., the 16-year-old son of Mother’s cousin, was available to babysit. Although K.S. had no prior child-care experience, he began watching the children in April 2019. Because of K.S.’s lack of experience, Father had to teach him the basics of childcare, including how to prepare a bottle, how to change a diaper, and how to calm A.M. down and “hold her correctly.” K.S. frequently stayed overnight to save on gas, sleeping on a couch in the front room.
¶5 On May 2, Mother and Father took A.M. to the emergency room because A.M. had been sick for a few days. On examination, the ER doctor found “nothing worrisome,” and tests indicated that her heart rate, oxygen saturation, and temperature were all “reassuring.” The ER doctor concluded that A.M. “might have a bug” and sent her home. By May 6, A.M. seemed to be “feeling a little better.”
¶6 K.S. slept over at the house on the night of May 6 to 7, and A.M. was “real fussy” that night. According to her parents’ subsequent accounts, though, A.M. was “crying normal[ly]” and even “cheery, smiling, [and] glowing” by the next morning. Mother left for work by 9:30 a.m.[1] Father later testified that he left for work between 8:30 and 8:45 a.m. (though, as will be discussed below, testimony from an officer suggested that Father didn’t actually leave until 10:55 that morning).
¶7 At some point between 11:36 and 11:56 a.m., K.S. sent Mother a video that showed A.M. experiencing troubling symptoms—specifically, A.M. had a limp arm and labored breathing. K.S. texted, “Is this normal?” After viewing the video, Mother asked her sister (Aunt) to stop by on her lunch break to check on A.M.
¶8 Aunt arrived at about 1:20 that afternoon. A.M. seemed “lethargic” to her, and it seemed like “moving her was upsetting her more, almost like it was causing her pain.” Aunt thought that A.M. might have an ear infection, so she gave her some ibuprofen. After returning to work, Aunt told Mother her concern about the ear infection and encouraged Mother to take A.M. to the hospital after Mother’s shift ended. During her own lunch break an hour later, Mother returned home and checked on A.M., who was “fussy and whiney”; when Mother picked A.M. up, she also observed her legs “dangling down.” Mother was concerned enough to schedule an appointment with a pediatrician, but she made lunch and returned to work without taking further action.
¶9 There was no additional contact between K.S. and the parents until around 7:45 that evening, when K.S. called Mother and reported that A.M still didn’t seem to be feeling better. Mother said she was on her way. After picking Father up from his work, Mother arrived home to find A.M. “pale as a light.” Father performed CPR while Mother called 911. Mother told the 911 dispatcher that A.M. had been “fine throughout the day and stuff.”
¶10 A.M. was first taken to the Intermountain Healthcare hospital, then life-flighted to Primary Children’s Medical Center (Primary Children’s). Doctors at Primary Children’s concluded that A.M. had suffered a severe brain injury.
¶11 Police detained Mother and Father for questioning before allowing them to see A.M. While awaiting the arrival of a detective, Father engaged police officers in light-hearted banter, telling them “a story about getting drunk and . . . dancing on the table,” as well as a story about a woman beating up a man in their apartment complex. Mother and Father eventually met with a detective who questioned them about the events of the day. This detective later testified that, during these interviews, Father told him that he had left for work around 10:55 that morning.
¶12 The following day, K.S. sent Father two text messages. The first said: “im so sorry. . . . if it weren’t for my laziness and wanting to relax [A.M.] wouldn’t be like this and if i had never tossed her up in the air to try and cheer her up.” The second said: “im truly sorry plz tell [Mother] im so so so sorry and i would never intentionally hurt your kids out of anger or frustration.”
¶13 A.M. died two days later. Later that week, Dr. Christensen, the medical examiner, performed an autopsy and determined that the “primary cause” of death was “blunt injuries” to A.M.’s head. Dr. Christensen classified the death as a homicide.
¶14 The State subsequently charged K.S. with child abuse homicide in juvenile court. Over the course of eight days of trial, the court heard testimony from, among others, both parents, several medical experts, and the responding officer.
¶15 Mother and Father testified about the events on May 7 and A.M.’s health in the relevant period. Mother testified that A.M. was “pretty fine” and “cheery, smiling, [and] glowing” before she left for work that morning. Father testified that, after a few days of being fussy, A.M. “was feeling a little better” and that there was “nothing out of the ordinary” that morning. Father testified that he remembered leaving home between 8:30 and 8:45 a.m. so that he could catch the bus.
¶16 The court also heard testimony from three medical experts—Dr. Thorn, Dr. Hatch, and Dr. Christensen—about the nature of A.M.’s injuries and the timing of those injuries.
¶17 Dr. Thorn. Dr. Thorn was an ER doctor who had “extensive training and expertise specialization in the management of head injury,” and he was the doctor who treated A.M. on May 7 at the Intermountain Healthcare hospital. Dr. Thorn testified that A.M.’s symptoms likely resulted from “non-accidental trauma,” which “is a nice way of saying a child . . . was physically abused.” Dr. Thorn also testified that A.M.’s injuries would have required the application of “[e]xtremely violent” force, though he opined that it might have been “possible” that a person might not have “recognize[d] the severity” of the injury that he or she had inflicted.
¶18 On a CAT scan, Dr. Thorn observed two layers of blood in A.M.’s brain, which suggested to him that A.M. had sustained “at least two” discrete injuries. He estimated that the earlier of the two injuries occurred “within days” to “maybe a week” before May 7. Dr. Thorn speculated that the symptoms that prompted A.M.’s visit to the hospital on May 2 had come from the first brain injury, but he acknowledged that “[w]e’ll never know.” With respect to the injuries that led to A.M.’s death, Dr. Thorn testified that the “most severe injury leading eventually to the death” happened anywhere from “sometime within hours” to “almost right before” the video that was taken on May 7. He further testified that there was “some event soon before arrival [at the ER] that had caused” A.M.’s “respiratory depression.” Dr. Thorn felt unable to narrow the timeframe any further, and he expressed doubt that any doctor “would be able to comment as to a more definitive timeframe.” Dr. Thorn also testified that A.M. “was very, very sick at the time that that video was taken.”[2]
¶19 Dr. Hatch. Dr. Hatch was a recent medical school graduate who was completing a post-residency fellowship in child abuse pediatrics at the University of Utah, and he was part of the team that treated A.M. at Primary Children’s. Dr. Hatch testified that it would have required a significant amount of force to cause A.M.’s symptoms, such as “shaking by itself” or shaking combined “with some form of impact, or impact by itself.” He added that “we don’t observe these kinds of injuries from falls” or even from “significant” car accidents. In Dr. Hatch’s view, A.M.’s symptoms “suggest[ed]” that A.M. had “experienced significant force to her head.” He also opined that anyone who was present when the injuries were inflicted “would know that the force was excessive and that an injury was likely” to follow.
¶20 Dr. Hatch thought there were two potentially plausible explanations for the two layers of blood in A.M.’s brain: he thought it was possible that the blood represented two different injuries that were separated by time, and he also thought it was possible that the blood represented a single injury where some of the blood had changed colors when it mingled with cerebral spinal fluid. Thus, in Dr. Hatch’s opinion, A.M. was definitely injured on May 7, and it was possible that she had suffered an earlier brain injury as well.
¶21 As to the question of timing of the May 7 injury, Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had. So in this situation where she became unconscious, the injury would immediately precede that.” Continuing, Dr. Hatch testified that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.”
¶22 Dr. Christensen. Dr. Christensen is the chief medical examiner for the Utah Department of Health and, as noted, performed A.M.’s autopsy. Dr. Christensen testified that A.M. had suffered a “traumatic” “axonal injury” to her brain and that the injury was “not consistent with having occurred accidentally.” In his view, the force involved would have been “noticeably violent.”
¶23 Like Dr. Thorn, Dr. Christensen saw signs of both an earlier and a later injury. Dr. Christensen agreed that “some of [A.M.’s] prior symptoms”—including the nausea that led to her May 2 visit to the hospital—could have been “related to a prior head injury.” On questioning from the State, however, Dr. Christensen seemed to agree that the later injury was “the ultimately fatal” one.
¶24 Dr. Christensen testified that in “some cases,” fatal injuries can be inflicted as many as three to ten days before the child actually dies. But Dr. Christensen explained that doctors look to “other aspects of the case as well” when estimating the time at which the injuries were inflicted, such as “what was the child’s behavior at various points along the way.” He said that in this case, he thought the fatal injury “occurred around the time” that A.M. arrived at the hospital. He also testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately. I mean very, very quickly. It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”
¶25 After the conclusion of the trial, the court entered a single-sentence ruling determining that the State had met its burden of proving that K.S. committed child abuse homicide. K.S. timely appealed.
ISSUE AND STANDARD OF REVIEW
¶26 K.S. argues there was insufficient evidence to support his adjudication for child abuse homicide. In cases tried without a jury (which include juvenile court proceedings), factual determinations “must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a)(4); cf. In re Z.D., 2006 UT 54, ¶ 29, 147 P.3d 401 (holding that an “appellate court must launch any review of factual findings from rule 52(a) of the Utah Rules of Civil Procedure and its ‘clearly erroneous’ test”). “The content of Rule 52(a)’s clearly erroneous standard, imported from the federal rule, requires that if the findings (or the trial court’s verdict in a criminal case) are against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made, the findings (or verdict) will be set aside.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (quotation simplified).
¶27 The parties agree that we should apply the above-cited standard of review to this case. We pause here to note, however, that the parties have disputed whether we should apply an additional layer of deferential gloss in this case as well.
¶28 It’s well-settled that when an appellate court reviews a jury’s verdict, the court views the evidence and all reasonable inferences in the light most favorable to the verdict. See, e.g., State v. Green, 2023 UT 10, n.2, 532 P.3d 930; State v. Bonds, 2023 UT 1, n.3, 524 P.3d 581; State v. Winfield, 2006 UT 4, ¶ 2, 128 P.3d 1171. But there’s a divergence in Utah’s caselaw about whether an appellate court does the same when reviewing a verdict from a bench trial. On this, some Utah cases say no. See, e.g., In re Z.D., 2006 UT 54, ¶ 35 (“An appellate court must indulge findings of fact made by a jury that support the verdict. No such indulgence is required of findings made by a judge.”); Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1284 n.2 (Utah 1993) (holding that “an appellate court does not, as a matter of course, resolve all conflicts in the evidence in favor of the appellee” when findings were made by a judge); Walker, 743 P.2d at 193 (noting that “it is not accurate to say that the appellate court takes that view of the evidence that is most favorable to the appellee” when reviewing findings of the court (quotation simplified)). But other Utah cases—including some from our court that reviewed adjudications from juvenile court delinquency proceedings—say yes. See, e.g., State v. Layman, 1999 UT 79, ¶¶ 12–13, 985 P.2d 911 (holding that when “reviewing a conviction, an appellate court should consider the facts in a light most favorable to the verdict,” and then applying that standard to a ruling from “the trial judge, who was the finder of fact” in the bench trial at issue); In re J.R.H., 2020 UT App 155, ¶ 9, 478 P.3d 56 (applying the “light most favorable” standard to a juvenile court adjudication (quotation simplified)); In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (relying on Layman for the proposition that “[w]hen reviewing a juvenile court’s decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination”); see also In re C.C.R., 2011 UT App 228, ¶ 10, 257 P.3d 1106; In re M.B., 2008 UT App 433, ¶ 5, 198 P.3d 1007.
¶29 We need not resolve this conflict here. Again, the parties at least agree that K.S. can only prevail on his sufficiency challenge if he establishes that the verdict was against the clear weight of the evidence, or, instead, if we reach a definite and firm conviction that a mistake has been made. And the parties further agree that we give “due regard” to the juvenile court’s opportunity to “judge the credibility of witnesses.” Utah R. Civ. P. 52(a)(4). For the reasons set forth below, we affirm the juvenile court’s adjudication under these agreed-upon standards alone. We accordingly leave for another day (and, more likely, another court) the question of how to resolve the tension in the cases about whether the additional deferential gloss that applies to jury verdicts should apply to juvenile court decisions as well.
ANALYSIS
¶30 K.S. argues there was “insufficient evidence that [he], as opposed to someone else, caused the injuries that resulted in A.M.’s death.” We disagree.
¶31 The State’s case against K.S. relied on the interplay between three propositions: (i) A.M. died from an injury to her brain that was caused by violent force; (ii) A.M.’s symptoms would have manifested very quickly after the injury was inflicted; and (iii) K.S. was alone with A.M. immediately prior to the symptoms’ initial appearance. There was competent testimony to support each of these propositions.
¶32 Injury. All three medical experts agreed that A.M. died from a brain injury that was caused by violent force. Dr. Thorn testified that A.M.’s injury would have been caused by “[e]xtremely violent” force or a “violent, blunt act,” such as the “shaking back and forth of a child’s brain.” In his view, this was “not an accidentally dropped child.” Dr. Hatch similarly testified that a significant amount of force would have been required, either “shaking by itself,” or shaking combined “with some form of impact,” or “impact by itself.” He added that doctors “don’t observe these kinds of injuries from falls” or even from “significant” car accidents. Dr. Hatch believed anyone “who witnessed an incident like this occur would know that the force was excessive and that an injury was likely” to follow. Finally, Dr. Christensen testified that the injury was “not consistent with having occurred accidentally” and that the force involved would have been “noticeably violent.”
¶33 Timing of symptoms. There was also testimony from medical experts that A.M.’s symptoms would have manifested very quickly after the force that caused the fatal injury. Dr. Hatch testified that “the head injury immediately preceded the development of any symptoms that [A.M.] had” and that the “medical literature would support that in almost all cases with this severe of an injury,” the resulting symptoms would appear “immediately afterward.” Dr. Christensen similarly testified that with “traumatic axonal injury, you would expect [A.M.] to be symptomatic essentially immediately.” He added: “It’s not going to be the kind of thing where she is going to be normal for a few hours . . . . It’s a global insult to the brain that is going to manifest as . . . abnormal behavior very soon after infliction.”[3]
¶34 K.S. was alone with A.M. Finally, there was testimony establishing that K.S. was alone with A.M. immediately before the symptoms’ initial appearance. Mother and Father both testified that A.M. was in good health that morning. Father stated that after a few days of being fussy, A.M. was “feeling a little better” and that there was “nothing out of the ordinary.” Mother also testified that A.M. was “cheery, smiling, [and] glowing” that morning.
¶35 Mother left for work by 9:30 a.m., and at trial, Father testified that he left for work between 8:30 and 8:45 a.m. (though there was some suggestion that he may have left at 10:55 a.m.). At some point between 11:36 and 11:56 that morning, K.S. sent Mother a video showing A.M. with limp limbs and having difficulty breathing.
¶36 The collective import of these propositions is clear. Since K.S. was alone with A.M. for at least a half hour (if not several hours) before A.M.’s symptoms appeared, and since two medical experts testified that A.M.’s symptoms would have appeared very quickly (if not immediately) after the infliction of the injury, it stands to reason that K.S. caused the fatal injury. This would provide a basis to sustain the adjudication.[4]
¶37 K.S. nevertheless argues that there was insufficient evidence to support the adjudication because of various problems with the above evidence and with other aspects of the State’s case. While we certainly agree that there was conflicting evidence on certain points, the problems that K.S. identifies are not so conclusive that we can overturn the adjudication as a result.
¶38 Much of K.S.’s argument is focused on ambiguities in the record about the critical question of timing. K.S. points out that while Dr. Christensen opined that the symptoms likely manifested soon after the injury, Dr. Christensen also acknowledged that “those things”—apparently meaning medical conclusions about the time at which an injury occurred—“are not precise.” K.S. also relies heavily on Dr. Thorn’s testimony that the injury could have occurred anywhere from “almost right before” the symptoms appeared to “hours” earlier. And K.S. further points to Dr. Thorn’s testimony that he didn’t think “you could find anyone else that would be able to comment as to a more definitive timeframe.”
¶39 But when Dr. Thorn opined that he didn’t think that “anyone else” could provide “a more definitive timeframe,” Dr. Thorn was mistaken. As discussed, the State called two medical experts—Dr. Christensen and Dr. Hatch—who each testified under oath that they thought that A.M.’s symptoms would have appeared very quickly (if not immediately) after the fatal injury was inflicted. And to the extent that there was any conflict between the experts’ conclusions on this, the juvenile court was in a better position than we are to determine which version to believe. See, e.g., In re M.M., 2023 UT App 95, ¶ 35 n.9, 536 P.3d 102, petition for cert. filed, October 25, 2023 (No. 20230944) (recognizing that it “is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies” (quotation simplified)); Knowlton v. Knowlton, 2023 UT App 16, ¶ 59 n.13, 525 P.3d 898 (noting that a trial court “is in the superior position to assess the weight of evidence,” including questions about which expert’s testimony to accept), cert. denied, 531 P.3d 730 (Utah 2023); Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (noting that a “fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony, even if that testimony comes from an expert witness” (quotation simplified)).
¶40 K.S. also points to testimony showing that Mother left for work by 9:30 a.m., as well as testimony that Father told a detective that he didn’t leave until 10:55 that morning. Since K.S. maintains that the window in which the injury could have been inflicted was several hours long, K.S. posits that Mother or Father could have inflicted the injury before they left for work. But again, on the question of timing, Dr. Christensen and Dr. Hatch both spoke of symptoms appearing very quickly after the fatal injury was inflicted. This testimony, alone, undermines this theory, and the juvenile court was entitled to credit it.
¶41 And there are other problems with this theory too. After all, K.S.’s suggestion that Mother or Father caused the injury that morning or overnight is at odds with their sworn testimonies. Again, both of them testified under oath that A.M. was healthy when they left the house. And it also seems possible (if not probable) that K.S. would have noticed something if Mother or Father had used violent force against A.M. that morning—after all, he’d spent the night there and was at the house all morning. But K.S. never claimed to have heard or witnessed either parent injuring A.M. earlier that day. Thus, to have accepted this theory, the court would have had to discredit the injury-to-symptoms chronology testimony of two medical experts, disbelieve the testimonies of Mother and Father, and then infer that Mother or Father had used violent force against A.M. without K.S. noticing or deciding to comment on it.
¶42 K.S. also points to evidence suggesting that A.M. had sustained a prior brain injury sometime before May 7, and he then argues that this prior injury might have been responsible for A.M.’s death. But while Dr. Christensen and Dr. Thorn both believed that A.M. had suffered multiple injuries, Dr. Hatch thought it was possible that there weren’t two injuries at all. Regardless, even assuming that the earlier injury did occur, K.S. could have inflicted that injury too given that he’d been babysitting for weeks. And more to the point, Dr. Christensen testified that the earlier injury wasn’t the cause of death. Dr. Christensen explained that both the earlier injury and the later injury had caused “subdural hemorrhage[s]” but that a subdural hemorrhage “didn’t ultimately lead directly to the child’s death.” Instead, Dr. Christensen testified that “diffuse axonal injury” in the brainstem created “respiratory compromise” that led to “brain swelling and ultimately death.” And when the prosecutor asked Dr. Christensen whether the “fatal” or “ultimately fatal” injury occurred close in time to A.M. arriving at the hospital, Dr. Christensen agreed with the State’s timeline. He reiterated that after the infliction of the “traumatic axonal injury,” which he had previously identified as the ultimate cause of death, symptoms would appear “essentially immediately.”[5]
¶43 Finally, K.S. points to various problems with the version of
events offered by Mother and Father, including Mother’s decision not to take the baby to the hospital that afternoon, Father’s seemingly odd storytelling while waiting for detectives that night, and certain discrepancies between the parents’ initial statements to officers and their testimonies at trial. We’ve reviewed the record and acknowledge the potential problems identified by K.S. But these problems all go to the perceived credibility (or lack thereof) of Mother and Father, particularly as it relates to their sworn testimonies that they did not injure their child. Our supreme court, however, has directly cautioned the appellate courts to avoid second-guessing lower courts about credibility issues like these. As the court explained in In re Z.D.:
Appellate courts are removed temporally and geographically from trial courts. They do not see juries impaneled or oaths administered to witnesses. They do not view first-hand witnesses’ “tells” of posture, inflection, or mood that strengthen or erode credibility. It is the lot of appellate judges to take their sustenance from the printed page; to peer into the facts as deeply as the flat plane of paper will permit. By the time the trial transcript reaches the hands of the appellate judge, the universal adjective describing its condition is “cold.”
2006 UT 54, ¶ 24, 147 P.3d 401. It’s of course possible that the court could have chosen to disbelieve the testimonies of Mother and Father. But given its adjudication, it’s clear that the court did accept their accounts (or, at least, those portions that suggested that it was K.S., not Mother or Father, who inflicted the fatal injury on A.M.). Without something more, it’s not our place to second-guess that determination.
¶44 In short, this evidentiary picture could certainly have been clearer, and we do see this as something of a close case. But the fact that it’s a close case is the reason we shouldn’t overturn this adjudication. In In re Z.D., our supreme court stressed that an “appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require the court’s intercession. It must forebear disturbing the ‘close call.’” Id. ¶ 33. And again, under even the standard of review that both parties agree on, K.S. must convince us that the verdict was against “the clear weight of the evidence,” or, instead, we must be left with “a definite and firm conviction that a mistake has been made.” State v. Walker, 743 P.2d 191, 193 (Utah 1987) (emphases added, quotations otherwise simplified).
¶45 On this record, the juvenile court could have sided with K.S. based on certain evidence about the timing of the injuries and who was around A.M. during a potentially relevant window. But the State’s narrower view of the timing window was backed by two medical experts, and its view of who was where and when was backed by sworn testimony as well. And under the State’s evidence, K.S. was the only person who could have caused the fatal injury.
¶46 Unlike members of this court, the juvenile court observed the relevant testimony firsthand. As a result, it was in a better position than we are to evaluate the credibility of that testimony and make determinations about the key facts. While K.S. has highlighted some problems with the State’s case, we don’t see those problems as being so pronounced that the court’s decision was against the clear weight of the evidence, nor are we left with a definite and firm conviction that a mistake has been made. We accordingly see no basis for overturning this adjudication.
CONCLUSION
¶47 There was sufficient evidence to support the juvenile court’s adjudication that K.S. committed child abuse homicide. The adjudication is therefore affirmed.
Appellant, assisted by law student Rebecca Barker[1]
Douglas J. Thompson, Attorney for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
LUTHY, Judge:
¶1 Thomas Fowers’s ex-wife (Ex-Wife) is married to his adopted brother (Brother). A court issued a protective order directing Fowers not to “contact . . . or communicate in any way with [Ex-Wife], either directly or indirectly,” and not to “threaten to commit any form of violence against” her. Early one morning, Fowers called Brother’s phone three times in two minutes from an unrecognized number. The first two times, no one answered. The third time, Ex-Wife answered, and Fowers said, “You and that f***ing whore have it coming.”
¶2 Fowers was charged with violating the protective order. The district court declined to bind Fowers over and dismissed the charge, determining that there was “no evidence in the record to establish that Mr. Fowers . . . intentionally communicat[ed] either directly or indirectly to [Ex-Wife]” since “the statement itself clearly [was] directed at [Brother]” and Fowers did not tell Brother “to direct the comment to [Ex-Wife].” The State appeals, and we reverse.
BACKGROUND
¶3 Ex-Wife obtained a protective order against Fowers in August 2017. The order included a “No Contact Order” stating, “Do not contact, phone, mail, e-mail, or communicate in any way with [Ex-Wife], either directly or indirectly.” It also included a “Personal Conduct Order” stating, “Do not commit, try to commit or threaten to commit any form of violence against [Ex-Wife] . . . . This includes stalking, harassing, threatening, physically hurting, or causing any other form of abuse.”
¶4 One morning in July 2020, Brother’s phone received three calls between 4:57 a.m. and 4:58 a.m. from an unrecognized number. At the time of the first call, Ex-Wife and Brother “were, of course, sleeping.” As they awoke, they thought that maybe someone was calling for help related to a wedding they were to attend that day. When Ex-Wife answered the third call, she recognized Fowers’s voice saying, “You and that f***ing whore have it coming.”
¶5 Ex-Wife reported the calls to authorities, and Fowers was charged with one third-degree felony count of violation of a protective order with a domestic violence enhancement.
¶6 The district court held a preliminary hearing on the charge. The State presented evidence that Fowers had been served with the protective order. In addition to Ex-Wife, who testified about the phone calls, the deputy who received Ex-Wife’s report testified that he had checked the number from which the calls had been made against local records and found that the number was attached to Fowers. The deputy also said that he called the number and that, when he asked to speak to Fowers, the person who answered identified himself as Fowers. Additionally, the court accepted into evidence records of three prior convictions of Fowers’s for violating this protective order and a previous protective order because those convictions were “relevant to establish under evidence [r]ule 404 both knowledge by the defendant and intention.”
¶7 After the State presented its case, the court found “that the [S]tate ha[d] not met its burden.” The court explained:
[A]lthough the direct and circumstantial evidence establishes that Mr. Fowers made the call, the number that he called was his adoptive brother’s number, not the alleged victim’s number. . . .
[And] the statement itself clearly is directed at [Brother], not at [Ex-Wife]. He say[s] “you and that f’ing whore,” meaning that he’s directing his comment toward [Brother] and not [Ex-Wife] . . . . [W]hat is glaringly missing from the record here is any statement by Mr. Fowers to [Brother] to direct the comment to the alleged victim. Therefore, there is no evidence in the record to establish that Mr. Fowers intentionally violated this order by intentionally communicating either directly or indirectly to [Ex-Wife].
Based on those findings, I find that the [S]tate has not—even drawing inferences in the light most favorable to the [S]tate— . . . establish[ed] sufficient evidence[,] and I decline to bind the charge over.
The court dismissed the charge with prejudice, and the State now appeals.
ISSUE AND STANDARD OF REVIEW
¶8 The State contends that it presented evidence establishing probable cause that Fowers violated the protective order and that the district court therefore erred by not binding Fowers over. In essence, the State argues that the court applied the wrong legal standard by not viewing the evidence and all reasonable inferences that can be drawn from it in favor of the prosecution. A district court’s “decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings. As a result, in reviewing a bindover decision, an appellate court should afford the decision limited deference.” In re I.R.C., 2010 UT 41, ¶ 12, 232 P.3d 1040 (cleaned up). “Applying the wrong legal standard . . . will always exceed whatever limited discretion the [court] has in the bindover decision.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444.
ANALYSIS
¶9 Our supreme court has explained that the evidentiary threshold for bindover is a low bar:
Although the guarantee of a preliminary hearing is fundamental, the evidentiary threshold at such hearing is relatively low. As we have emphasized, a showing of “probable cause” entails only the presentation of evidence sufficient to support a reasonable belief that the defendant committed the charged crime. . . . To justify binding a defendant over for trial, the prosecution need not present evidence capable of supporting a finding of guilt beyond a reasonable doubt. Nor is the prosecution required to eliminate alternative inferences that could be drawn from the evidence in favor of the defense. All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.
State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (cleaned up). Here, the State needed to present “evidence sufficient to support a reasonable belief” that Fowers violated the protective order, id. (cleaned up), and the court was required to “view all evidence in the light most favorable to the prosecution and . . . draw all reasonable inferences in favor of the prosecution,” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (cleaned up).
¶10 A person commits the crime of violation of a protective order if the person “(a) is the respondent or defendant subject to a protective order . . . and (b) intentionally or knowingly violates that order after having been properly served” with it. Utah Code § 76-5-108(2). A person acts intentionally “when it is his conscious objective or desire to engage in the conduct.” Id. § 76-2-103(1). And a person acts knowingly “when he is aware of the nature of his conduct or the existing circumstances.” Id. § 76-2-103(2).
¶11 There is no dispute that Fowers was subject to the protective order at issue, and the State showed that Fowers was served with that protective order. Thus, the only issue before us is whether the State offered evidence supporting a reasonable belief that Fowers intentionally or knowingly violated the protective order. On this point, the State first argues that it put on evidence sufficient to establish probable cause that Fowers violated the No Contact Order portion of the protective order by “intentionally or knowingly contact[ing] Ex-Wife at least indirectly” because “[i]t was reasonable to infer that Fowers knew or intended that his contact and [message] . . . would be relayed to Ex-Wife.” The State then argues that Fowers’s statement “You and that f***ing whore have it coming” can also be reasonably interpreted as a threat of violence in violation of the Personal Conduct Order portion of the protective order. We agree with each of the State’s arguments.[2]
¶12 The State put on evidence establishing probable cause that Fowers intentionally or knowingly contacted Ex-Wife at least indirectly. In State v. Fouse, 2014 UT App 29, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014), this court affirmed a conviction for violation of a protective order where the defendant mailed envelopes to the victim’s sisters rather than to the victim, his estranged wife. Id. ¶¶ 4–7, 43. The victim was living with one of the sisters, and the other sister lived in the apartment next door. Id. ¶ 3. While some of the letters in the envelopes were addressed to the victim, others contained statements such as, “Please hold onto this. . . . [E]ven though I can’t send nor talk to my wife or kids[,] . . . writing sure does help.” Id. ¶ 4. Nonetheless, we reasoned that a factfinder “could readily infer that communication directed to or dealing with one’s ex-spouse, and sent to the ex-spouse’s siblings, will routinely and predictably be conveyed by the siblings to their family member.” Id. ¶ 40. And we noted, “Such an inference is particularly sound in this case, given the jury’s awareness that [the victim] and her sisters were close—in both senses of that term.” Id.
¶13 The same reasoning applies here. A factfinder could readily infer that calls Fowers placed to Brother or statements Fowers made to him would “routinely and predictably be conveyed” to Ex-Wife, Brother’s spouse, especially where a factfinder could reasonably infer that Brother and Ex-Wife were “close” “in both senses of that term.” Id. Indeed, a factfinder could infer that Fowers’s decision to call Brother just before 5:00 a.m.— a time when spouses could reasonably be assumed to be together—manifested his intent to catch Brother and Ex-Wife together. Therefore, we have no trouble concluding that the State’s evidence was sufficient to support a reasonable belief that Fowers, by calling Brother’s phone when he did, intentionally or knowingly contacted Ex-Wife directly or indirectly. Fowers did not need to explicitly direct Brother to communicate his message to Ex-Wife, and the court erred in suggesting as much.
¶14 The State also asserts that Fowers’s statement “You and that f***ing whore have it coming” can be reasonably interpreted as a threat of violence. We agree. In State v. Spainhower, 1999 UT App 280, 988 P.2d 452, this court recognized that the admittedly “vague and indirect” statement, “‘I’m going to get you,’ surely may connote a threat of bodily injury” because “among the many dictionary definitions of the verb ‘get’ are: ‘to bring to retribution, take vengeance on, KILL’ and ‘to strike with force, HIT.’” Id. ¶¶ 6– 7 (cleaned up). Likewise, the words at issue here, though perhaps similarly vague and indirect, could carry either a violent or a nonviolent meaning and must be interpreted by the factfinder in light of “the inferences to be drawn from the context in which the words were spoken.” Id. ¶ 7. And again, at the preliminary hearing stage, a court must “view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10 (cleaned up). Accordingly, at this stage, the court should have interpreted Fowers’s words to be capable of conveying, in context, a threat of violence.
CONCLUSION
¶15 The protective order’s No Contact Order forbade Fowers from contacting, phoning, mailing, e-mailing, or communicating in any way with Ex-Wife, either directly or indirectly. Its Personal Conduct Order forbade him from threatening violence against Ex-Wife. Plainly there is “reasonably believable evidence—as opposed to speculation—sufficient to” show that Fowers violated one or both of these provisions. State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. By not viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the State—and instead requiring a statement by Fowers to Brother to direct the comment at issue to Ex-Wife—the district court applied the wrong legal standard and exceeded “whatever limited discretion” it had in the bindover decision. Id. ¶ 7. We therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.
[1]See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).
[2] Fowers asserts that the State did not preserve “the arguments” it now makes on appeal because the prosecutor “did not raise [them] in a way that gave the district court the opportunity . . . to address [them].” “An issue is preserved by presenting it to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Vierig v. Therriault, 2023 UT App 67, ¶ 43, 532 P.3d 568 (cleaned up); see id. ¶ 44 (“Of note, issues must be preserved, not arguments for or against a particular ruling on an issue raised below. By contrast, new arguments, when brought under a properly preserved issue or theory, do not require an exception to preservation.” (cleaned up)).
Fowers is mistaken when he says that the State did not meet this preservation standard here. At the close of the preliminary hearing, the State referenced “paragraph 1 and 2 of the protective order”; identified those paragraphs as the Personal Conduct Order and No Contact Order respectively; and noted that they prohibited Fowers from “threatening [Ex-Wife] in any way” and from “communicating in any way with [Ex-Wife] either directly or indirectly.” The State then highlighted the evidence that Fowers “called the husband of [Ex-Wife] in the early morning hours when they would presumably be together and made a statement against her to [her] then husband,” which is the same evidence that the State emphasizes here. By presenting evidence and arguing below for bindover based on an alleged violation of both the Personal Conduct Order and the No Contact Order, the State gave the district court an opportunity to rule on the same questions we are now asked to rule on. So regardless of whether those questions are characterized as arguments or issues—and we express no opinion as to the proper characterization here— Fowers’s preservation argument fails.
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
HARRIS, Judge:
¶1 G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.
¶2 Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.
¶3 Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.
BACKGROUND[1]
¶4 Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.
¶5 Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.
¶6 Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”
¶7 During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.
¶8 During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”
¶9 Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.
¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.
¶11 In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”
¶12 The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.
¶13 At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.
¶14 Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”
¶15 The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”
¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]
¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”
¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.
¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”
¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.
¶21 After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”
¶22 Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”
¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.
¶24 In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.
¶25 At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.
¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.
¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.
ISSUES AND STANDARDS OF REVIEW
¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).
¶29 Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]
ANALYSIS
I
¶30 Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.
¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 803-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidence. Id. § 80-3-409(7)(c).
¶32 In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”
¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.
¶34 But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.
¶35 Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.
¶36 Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.
II
¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.
A
¶38 Under our law, in any case in which reunification services are ordered, “the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a). And “[i]f the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.” Id. § 80-3-409(2)(b).
¶39 In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]
¶40 In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.
¶41 The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.
¶42 Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.
1
¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).
¶44 Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).
¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return, Merriam-Webster, https://www.merriam-webster.com/dictionary/return [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.
¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.
¶47 Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.
2
¶48 Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).
¶49 Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.
¶50 To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).
¶51 In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).
¶52 “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.
¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”
¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.
¶55 Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.
¶56 We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court’s jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]
¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.
B
¶58 Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.
¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.
¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.
¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.
¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with noncustodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]
CONCLUSION
¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
TENNEY, Judge:
¶1 Mother and Father separated in 2015 and were divorced in 2018. They had two children during their marriage—D.M. and H.M. (collectively, the Children). From 2015 until 2020, Mother repeatedly told state authorities that Father had physically and sexually abused the Children. In several instances, Mother prompted the Children to make allegations against Father too.
Although authorities investigated the reports, none of the investigations resulted in a finding that Father had abused the Children. Also, on two occasions in 2020, Mother absconded with the Children during times in which she did not have custody. Both times, law enforcement was involved in locating and returning the Children to Father’s custody.
¶2 After Mother encouraged one of the Children to file a new report of abuse against Father in January 2022, the Division of Child and Family Services (DCFS) filed a petition to terminate Mother’s parental rights. At the close of a several-day trial, the juvenile court issued an order finding that Mother “cannot stop her destructive behavior” of making “false allegations” against Father. The court then terminated Mother’s parental rights.
¶3 Mother now appeals the termination decision. For the reasons set forth below, we affirm.
BACKGROUND
¶4 Mother and Father had two children during their marriage: D.M., who was born in 2012, and H.M., who was born in late 2014. Mother and Father separated in 2015 when H.M. was approximately three months old, and their divorce was finalized in 2018. Mother subsequently married another man (Stepfather).
Allegations of Abuse from 2015 Through 2020[1]
¶5 The reports of abuse began in February 2015, when DCFS received a referral alleging that during the marriage between Mother and Father, Father would “throw things, but not at [Mother], and punch holes in the doors.” DCFS chose not to accept this referral as a basis for action. In June 2015, DCFS received a referral alleging that Father views pornography “including teenaged girls.” This referral was unaccepted because there were no allegations that the Children were being abused or neglected.
¶6 In May 2016, DCFS received a referral alleging that after D.M. came back from parent-time with Father, he would not sit down because “his bottom hurt” and his anus was “red and inflamed.” The referral was not accepted because D.M. did not make any disclosure that any abuse had occurred. In September 2016, DCFS received a referral alleging that the Children had returned from parent-time with Father with black eyes and that Father commonly yelled at the Children, which allegedly made D.M. fearful to get out of bed to use the bathroom at night. The referral was unaccepted because the Children did not report any injuries from Father or provide specific details about what Father was saying to the Children.
¶7 In early October 2016, DCFS received a referral alleging that the Children were being physically abused by Father and that H.M. had been sexually abused by Father. The referral was accompanied by photographs of a bruise on H.M.’s leg. When a DCFS worker interviewed D.M. about these allegations, D.M. reported that Father had pushed him into a “monkey bag,” but D.M. couldn’t explain what a “monkey bag” was. D.M. made no disclosures of sexual abuse.
¶8 In late October 2016, Mother contacted law enforcement and reported that H.M. had complained of his “bum hurting” after returning from parent-time with Father. Mother also said that she changed H.M.’s diaper and that there was blood present and that she had also observed tearing on his anus. Mother told law enforcement that H.M. had said that Father put his finger “in there.” DCFS interviewed H.M. the following day. During that interview, H.M. said that he had been “hurt” at “daddy’s house,” but he made no other disclosures. Shortly thereafter, H.M. underwent a physical examination at the Children’s Justice Center (the CJC), but no evidence of sexual or physical abuse was discovered during this examination.
¶9 In September 2017, DCFS received a referral alleging that D.M. had been physically abused by his paternal grandfather. When DCFS interviewed D.M., D.M. said that “grandpa pushed him backwards and he fell on the rocks, because he didn’t hear grandpa.” When the grandfather was then interviewed, he acknowledged that he had accidentally knocked D.M. over during a recent visit when moving him away from something.
¶10 In June 2018, DCFS received a referral alleging that during a parent-time exchange, Mother had pulled Father’s beard and kicked him and that Father had ripped out one of Mother’s hair extensions. This case was not accepted.
¶11 In November 2018, DCFS received a referral alleging that Father attempted to hit Mother with his car and that Father had threatened to kill Mother by loosening the screws on her car. While investigating this referral, DCFS interviewed both of the Children. H.M. reported that he gets “hurt” at “all of my parents’ houses,” that his parents get frustrated with each other, and that Father punches Mother. D.M. reported that his parents are “always fighting.”
¶12 In December 2018, March 2019, and April 2019, Father made reports against Mother suggesting that she was using illegal drugs and wasn’t taking proper care of the Children. None of the referrals were accepted.
¶13 In April 2019, DCFS received a referral alleging that the Children had been “sodomized” by both Father and the paternal grandfather during visits with Father and that the paternal grandmother was aware of the abuse but not intervening. The referral also alleged that Father had punched D.M. in the stomach and testicles. As part of an investigation into these allegations, both of the Children were interviewed at the CJC. Though somewhat unclear, the record suggests that D.M. said nothing about abuse in his interview. H.M., however, said that his “old dad” is “going to be in the car when it explodes” “because he was mean to me.” H.M. also said that Father “put his penis in my bum” and “spanks [my] bum.” H.M. said that Father did the same thing to his cousins and that Mother told him this. When the interviewer spoke to Mother about what the Children had said, Mother asked the interviewer to talk to D.M. again, which the interviewer declined to do. During this investigation, Mother was “jittery and unable to finish sentences.”
¶14 In May 2019, Mother sought a protective order against Father. The protective order request was later denied. Around this same time, Mother informed DCFS that H.M. had bloody stools and that H.M. had reported that Father had “punched and kicked him.” Later that month, DCFS received information that H.M. had allegedly said Father “peed in his butt.” Father denied all allegations when interviewed by a detective from the Smithfield City Police Department.
¶15 In June 2019, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father. DCFS visited with the Children and observed no suspicious bruises. DCFS also found the accusations of physical abuse to be without merit. As part of this investigation, a DCFS caseworker and a Smithfield City Police Department detective interviewed Mother. During this interview, Mother alleged that the Children had told her that they “are being raped” and “punched in the crotch” by Father.
¶16 On July 1, 2019, Mother brought the Children to the CJC for an interview. At the outset of H.M.’s interview, and before the DCFS interviewer had even finished explaining the nature of the interview to him, H.M. said, “Well, my dad puts his penis in my bum.” H.M. said that Mother was present when this occurred, and that Father, paternal grandfather, and paternal grandmother “did it.” H.M. further reported that Father punches him with a “real hammer that is metal and black.” H.M. also reported that Father punches him in the penis and “punches me with his butt.” When asked what he saw when Father put his penis in his bottom, H.M. said, “That’s all I needed to tell you. I didn’t see anything.” When asked again what he saw, H.M. responded, “That’s all I have to tell you.” D.M. was also interviewed at the CJC that day. D.M. responded “nothing” and “I don’t know” to the majority of the interviewer’s questions. He also said that “nothing happened” at Father’s house and that “nothing happened to his brother that hurt him.” In addition, D.M. told the interviewer that Mother would talk to H.M. about events that happened at Father’s house. After finishing the interviews with the Children, the interviewer and a Smithfield City Police Department detective interviewed Mother. They encouraged Mother “not to press” the Children “for information and not to question them.”
¶17 Later that month, Mother contacted law enforcement during a parent-time exchange with Father. Mother told law enforcement that the Children wanted to share “their concerns” regarding Father. The Children spoke to law enforcement, and nothing further was reported to DCFS.
¶18 On February 21, 2020, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father. This referral alleged that Father had threatened to kill the Children and Mother if the Children reported the abuse. The referral further alleged that, within the past few days, Father had touched the Children’s genitals and “‘go[ne] inside’ their bums.” The referral also alleged that Father would give D.M. medicine to induce vomiting when D.M. would make a mistake on his homework and that Father would not allow the Children to use the bathroom in the middle of the night.
¶19 While investigating this latest referral, a DCFS investigator met with Father and the Children at Father’s home. Father denied each allegation. The DCFS investigator also observed that the Children interacted with her appropriately, appeared happy and healthy, and had no marks or bruises. During this investigation, DCFS came to believe that the Children were being emotionally abused by Mother.
¶20 On February 25, 2020, DCFS received a report that Father takes the Children to “drinking parties,” that Father stalks Mother and Stepfather, and that Father “rapes” the Children. The Smithfield City Police Department conducted a welfare check but failed to find any support for the allegations or anything out of the ordinary with the Children. At this point, the Smithfield City Police Department informed DCFS that it would no longer conduct welfare checks on the Children “because of the number of reports made and lack of findings of concern.”
¶21 DCFS interviewed the Children again at the CJC on March 2, 2020. H.M. reported that Father and neighbors put cameras outside his house and that the “cameras are made from poisonous stuff that make[s] people go crazy and rip kids’ heads off.” H.M. said that the cameras have speakers to “do bad stuff to [Mother].” H.M. denied having ever been hurt and denied that anyone told him what to say at the interview. In his interview, D.M. reported that he didn’t “remember if anything has happened to him” and that there was “nothing he needs to talk about” happening at either parent’s house. D.M. also stated that no one told him what to say at the interview.
¶22 On March 20, 2020, Mother obtained an ex parte protective order against Father. A few days later, DCFS received a report alleging that Father had been sexually inappropriate in front of the Children, that Father had raped Mother in the presence of the Children, and that Father had been telling the Children that there are cameras at Mother’s house watching them. Father denied these allegations.
¶23 On March 26, 2020, the court held a hearing on the ex parte protective order. Less than an hour before it began, Mother texted a DCFS employee and alleged that the Children wanted to tell her about abuse from Father. Mother then brought a recording of the Children alleging sexual abuse by Father to the court hearing, so the hearing was continued. At a hearing that was held on April 30, the court ordered that despite Mother’s allegations, Father could resume his previously ordered parent-time.
¶24 A few days later, Mother refused to bring the Children to the exchange point, telling law enforcement that she believed the Children were in danger. That same day, the Children were interviewed at a DCFS office. Without prompting, and without waiting for the interviewer to explain what the interview would be about, H.M. said that Father had “choked him, peed in his mouth, and put his penis in his bum and it bled, and that [H.M.’s] neck was broken.” H.M. said that these things all occurred in the middle of church and that “they” were wearing church clothes when it all happened. When asked for more detail, H.M. said, “that’s all I said, that’s all I needed to tell you about,” and he continued to reply “that’s all” and “that’s all he did” to further questions. H.M. then became emotional and visibly upset, and when asked why, H.M. responded, “[B]ecause that’s what I needed to say to you!” When asked if someone had told him what to say, H.M. said that he and Mother had “talked on the iPad about it.”
¶25 When Mother was asked about H.M.’s statements later that day, Mother claimed that H.M. must have been referring to the recorded disclosure he had previously made and which Mother had previously brought to court. Following the interview, Mother asked DCFS if she still needed to send the Children to Father for parent-time the following day. DCFS informed Mother that there was not enough information to support the allegations and that it was not recommending any adjustment to parent-time.
¶26 On May 3, 2020, law enforcement was called to conduct a welfare check at Mother’s home after she reported that she was afraid Father was going to come shoot her and the Children. A week later, DCFS received a report that Father had been unable to retrieve the Children for his parent-time. Law enforcement soon learned from the maternal grandfather that Mother and the Children were staying at a local hotel, but he would not disclose its location. On May 9, 2020, Mother brought the Children to the Bountiful City Police Department to demonstrate to law enforcement that the Children were physically safe.
¶27 On May 11, 2020, Mother called law enforcement in Tooele to report that the Children’s paternal aunt and uncle were sexually and physically abusing the Children. The next day, DCFS received an additional report that Mother had told law enforcement in Layton that the Children had been sexually abused by Father and were being victimized by a sex trafficking ring. Law enforcement stated that Mother was speaking rapidly and that the conversation “went in circles.” Law enforcement was concerned that Mother was under the influence of a substance or was suffering from a mental illness. H.M. also called law enforcement that day and reported that he had been abused.
¶28 On May 14, 2020, Father obtained a writ of assistance, authorizing the help of law enforcement to retrieve the Children from Mother. Mother refused to cooperate with this order, so Father received a second writ of assistance on May 21, 2020, authorizing law enforcement to locate Mother through cell phone tracking. The Children were eventually recovered from a hotel by law enforcement.
Protective Supervision Services Case
¶29 On May 26, 2020, the State filed an expedited verified petition for protective supervision with the juvenile court. The State requested that the Children remain in Father’s custody, with DCFS providing protective supervision services. In June 2020, the juvenile court ordered DCFS to supervise the Children’s visits with Mother moving forward.
¶30 During a supervised visit at a DCFS office on July 2, 2020, Mother, Stepfather, and a step-grandfather took the Children and left the building. H.M. cried, yelled, and became upset when the step-grandfather picked him up and carried him out. Mother and the others left with the Children despite DCFS employees telling Mother that law enforcement would be called. Law enforcement soon located Mother, Stepfather, the step-grandfather, and the Children in a nearby canyon and, pursuant to a warrant, returned the Children to Father.
¶31 On July 13, 2020, the juvenile court found that Mother had neglected the Children by attempting to alienate them from Father and by making repeated reports that Father had abused the Children. The court ordered the Children to remain in Father’s custody, and it further ordered that Mother’s visits must be supervised by a professional visit supervisor and a security guard. The court also ordered Mother and Stepfather to participate in psychological evaluations and receive treatment. Mother and Stepfather subsequently participated in the ordered psychological evaluations and participated in follow-up treatment with a psychologist specializing in high-conflict custody cases. The evaluating psychologist concluded that Mother “is stuck in her narrative about what has transpired with the Children” and that she “lacks insight into her own behaviors.”
¶32 The Children began receiving therapy from a trauma therapist (Therapist). Therapist initially diagnosed both of the Children with an acute stress disorder, though she later modified the diagnoses to post-traumatic stress disorder. Therapist opined that the Children had suffered cumulative and complex trauma because of Mother’s actions, and Therapist noted that their symptoms included intrusive thoughts, negative moods, sleep disturbances, irritable behavior, angry outbursts, and physical aggression. In an August 2020 letter to the court, Therapist said that both Children, and more particularly H.M., had expressed fear of being “stole[n]” by Mother again and of having the police “chase [them] down.” Therapist also described D.M.’s stress related to the May 2020 hotel stay.
¶33 As noted, Mother began having supervised visits with Children in July 2020. DCFS’s progress notes indicate that Mother asked “some inappropriate questions during the visits,” e.g., that she had asked the Children “multiple times if they are ok or if there is anything wrong” and that Mother also questioned the Children about “where they live, who lives with them, and if anyone is telling them not to tell her things.” Although Mother had been told several times not to talk to the Children about the case, Mother asked the Children in September 2020 “if they could tell someone about the things they told her and the things she said were not crazy,” and that if they did, “they could go home with her because ‘they think that I’m lying.’” When the supervising DCFS caseworker (Lead Caseworker) told Mother not to talk about these things with the Children, Mother became defensive and told Lead Caseworker to “back off.”
¶34 Mother’s supervised visits began proceeding without serious incident, though, and in March 2021, the juvenile court removed the requirement that a security guard be present. The court also ruled that the Children could have visits in Mother’s home if Mother provided a minimum of three negative drug tests and was in compliance with all other provisions from a Child and Family Plan. In April 2021, Therapist noted that D.M. had said that he had “mixed up feelings” about the possibility of staying at Mother’s home. D.M. said that he wanted to “stay overnight at [his] mom’s house,” but he was “scared” that she would “ask questions about [him] getting hurt” and felt like he had “to answer those things she asks.” Therapist also noted that D.M. felt pressured by Mother to say that “bad things” had happened at Father’s house. Therapist noted that D.M. feels like he “disappoint[ed]” Mother if he told her that he was safe at Father’s house.
¶35 In May 2021 and again in July 2021, the juvenile court increased the length of Mother’s visits with the Children. In September 2021, the court began allowing unsupervised visits at Mother’s home. In October 2021, however, the Children told DCFS that Mother “was starting to ask questions” about Father’s “house like before and they [didn’t] like it when” she did that. In November 2021, the Children reported to DCFS that “the visits have been going well” and that Mother “hasn’t asked them questions about [Father’s] house anymore.”
¶36 At a December 8, 2021, review hearing, the Guardian Ad Litem (the GAL) recommended closing the protective supervision services case due to the substantial completion of services provided to Mother and Stepfather. At the close of the hearing, Father was awarded primary custody of the Children, and the juvenile court ordered the Children to be released from the protective supervision of DCFS. The case was then closed.
Mother’s Allegations Against Father Resume
¶37 Less than a month after the protective supervision case was closed, a series of events occurred in rapid succession that again involved Mother implicating Father in alleged abuse.
¶38 On January 3, 2022, D.M. reported to a school counselor that Father was hitting him. D.M. was unable to provide any further context or detail about the alleged abuse. On January 4, DCFS received a referral that Mother was acting erratically and had perhaps used methamphetamine. That same day, Mother refused to return the Children to Father following a mid-week visit. On January 5, DCFS received a referral alleging that Father “may have” physically abused D.M. On January 6, Mother attempted to take the Children from their school, even though that day was not hers under the parent-time schedule. Law enforcement was called, and in the presence of both the Children and other school children, Mother accused Father of attempting to kidnap the Children. The Children went home with Father.
¶39 On January 10, D.M. was interviewed at the CJC. During the interview, DCFS received an additional report that Father was physically abusing D.M. and sexually abusing him by putting “his private parts in [D.M.’s] private parts.” When the interviewer asked D.M. about this information, D.M. stated that Father “hits [him], spanks [him], chokes [him], and hurts [him],” but he denied that Father had done anything else to his body. When D.M. was asked why he decided to talk about these things that day, D.M. stated he “wanted to get it out” and was “too scared to talk about it before.” H.M. was also interviewed at the CJC that day, but he said nothing about any abuse.
¶40 That same day, DCFS learned that the Cache County Sheriff’s Office had just received a letter that was written by D.M. in which D.M. alleged that Father had physically and sexually abused D.M. and H.M. When a detective spoke with Mother that day, Mother told him that she had “no idea” that D.M. had written the letter. On January 11, D.M. was interviewed at his school regarding the letter by a detective (Detective). D.M. said that “nobody knows about the letter” and that he had ridden his bike to drop it off in a mailbox. When asked for further details, D.M. responded, “I don’t know” and “I don’t remember.” D.M. also said that he “knew” the address for the sheriff’s office and that he had run a Google search and used YouTube on his tablet to learn how to send a letter.
¶41 Detective obtained a search warrant allowing him to examine the tablets used in Mother and Stepfather’s home. Pursuant to this search, Detective found no evidence of any searches like those described by D.M. But Detective did learn that Mother had searched “when does Sheriff read the mail” on January 10, 2022.
¶42 After obtaining this evidence, Detective interviewed Mother again at the sheriff’s office. Mother now acknowledged that she had taught D.M. how to “write this letter.” She also admitted to having looked up the address of the sheriff’s office and having taken D.M. to the post office to mail the letter. Mother then said that D.M. had told her that Father has “hit, choked, and sodomized” him and that H.M. had said that the first time Father “sodomized him” was when he was three years old. Mother said that H.M. couldn’t sit down because it hurt and that “something came out of his butt when he went to the bathroom.” Mother said she was having his underwear “tested for DNA” “in Florida,” but she refused to give Detective any more information about the alleged DNA testing. Mother said that she “knows this stuff is true” and that the Children were being “put back with” a “pedophile.”
¶43 On January 12, D.M. was again interviewed at school, this time by Lead Caseworker. D.M. began crying and stated that Mother “made me write that letter.” D.M. said that the “choking, the spanking and the hitting” “didn’t really happen” and that Mother had instructed him to write a letter about “something bad about” Father and “all the mean stuff she thinks has happened” to D.M. He said that he did not ride his bike to the post office but that Mother had helped him address the envelope and had then driven him there. Lead Caseworker also interviewed H.M. at school that day. H.M. reported that Mother “forced” D.M. to write a letter to the police because Mother “is trying to get dad arrested” “so they can live with her forever.” At trial, Therapist testified that both Children told her the same things about the events surrounding this letter and that both Children had also told her that as they were mailing the letter, Mother exclaimed, “This is a day we will celebrate every year.”
Termination Proceedings
¶44 DCFS sought protective supervision services for the Children on January 19, 2022. In February 2022, DCFS filed a petition for the termination of Mother’s parental rights.
¶45 The Children soon resumed regular therapy with Therapist. Therapist later testified that “D.M. came in very tearful, very confused. He had been through four to five interviews” in one week and was “wrestling with himself because he had lied during some of them because he felt like that was the right thing to do for” Mother. Therapist testified that D.M. was “having a lot of shame towards himself” and that D.M. told her that he felt like he had “to say that these things have happened in order to make [Mother] happy.” Therapist said that H.M. told her that he was “tired of all the asking stuff with [Mother].”
¶46 From January 2022 through the termination trial in July 2022, Mother was only allowed to have supervised visits with the Children. Therapist later testified that H.M. was initially “very, very vocal about not wanting to do the visits.” H.M. told Therapist that Mother “just—she comes at me and comes at me. I don’t want to go. I don’t want to deal with it.” After a March 2022 visit, H.M. reported to Therapist that he “didn’t like it and it didn’t feel safe.” H.M. said that “it sort of made [his] stomach hurt and like maybe she was going to take [him] again.”
¶47 Lead Caseworker later affirmed Therapist’s view that H.M. was initially hesitant to have visits with Mother after the January 2022 incidents. She subsequently testified that H.M. refused to attend one visit with Mother and that when he had visits with Mother early on, he was “emotionally dysregulated.” But Lead Caseworker also testified that H.M. eventually warmed up to the visits and that by the time of trial, he would sit in Mother’s lap and hug her. Lead Caseworker testified that D.M. was “very good” with Mother and that they “like to play together.”
¶48 The GAL was still concerned, though, and requested that Mother’s supervised visits be suspended. The court held a hearing in May 2022 to consider this request. At the close of the hearing, the juvenile court found that there was “no evidence whatsoever of any harm or trauma being caused to D.M. from the visits with [Mother] that have occurred subsequent” to January 2022 and that “[s]upervised visitation is in the best interest of the Children.” The court emphasized that it intended “for the visits between the Children and [Mother] to occur, regardless of whether the Children want to go or not.” Shortly before trial, D.M. indicated that he wanted visits with Mother to “last longer,” and H.M. indicated that he wanted the visits to be at Mother’s house.
Trial
¶49 In July 2022, the juvenile court held a four-day trial on DCFS’s petition to terminate Mother’s parental rights. The court heard testimony from 17 witnesses, including numerous professionals.
¶50 The State called Mother as a witness on the first day of trial. During her testimony, Mother claimed that she hadn’t personally seen the letter that D.M. wrote to the sheriff in January 2022 and that she was now seeing it in court for “the first time”; Mother also claimed that she didn’t know what its contents were. But the State introduced evidence showing that Mother’s assertions about the letter were not true. For example, the State introduced a video of Mother’s interview at the sheriff’s office, and this video showed Mother reading the letter. The State also introduced an email that Mother had written to her father (the Children’s maternal grandfather) after the incident that showed that she was aware of the letter’s contents.
¶51 As for the long-term allegations of abuse that had been made against Father, Mother testified twice that she didn’t know if Father had actually abused the Children. And with respect to the allegations she’d made against Father, Mother testified that she had “followed the rules” and that she had “made sure” she didn’t talk to the Children about their disclosures to authorities.
¶52 Lead Caseworker testified at trial. She testified that the Children had been traumatized by “the fear of them being taken,” noting that H.M. has “dreams about a commander coming into a hotel room,” which Lead Caseworker linked to the incident in 2020 in which law enforcement retrieved the Children from the hotel. Lead Caseworker also testified that DCFS sought termination of parental rights instead of another round of protective supervised services because DCFS had “exhausted all options.” She said that while Mother “in her own testimony has said that she learned a lot [from the protective supervision services case] and that she . . . knew at the time what to do in that situation,” Lead Caseworker didn’t “know what more we could provide.”
¶53 Therapist testified at trial too. According to Therapist, when she began seeing the Children in January 2022, the Children “expressed a fear” about “what possibly may happen again,” wondered if Mother “would take [them] again,” and asked whether they would “have to go to the hotel again.” When Therapist was asked whether she thought there was “anything less significant than the complete termination of [Mother’s] rights that can adequately protect these Children,” she responded, “if we look at adequate protection coupled with normalcy, the answer to that is no.” Therapist further testified that her recommendation for terminating Mother’s parental rights “was based on the cumulative therapy [she] had done with the [Children] in the last few years” and that she thought that termination was in “their emotional best interest.” Therapist testified that H.M.’s “exact words” to her were, “How would you feel if this were always happening to you? I just want a normal life.” When she was asked how Mother could be stopped from continuing to traumatize the Children, Therapist testified, “We stop the interaction.” She also testified that although DCFS “may have talked about the possibility of supervised visitation,” “that’s not really along the normal, natural developmental means, and so I didn’t feel like that was the best option.”
¶54 In the GAL’s closing argument, she emphasized that “[c]ontact that isn’t highly structured and supervised, holding [Mother] accountable, results in trauma to these Children. They’ve expressed discomfort about the idea of being in [Mother’s] presence without a protective third party present.” The GAL further asserted that Mother “cannot be trusted to follow a court order. She cannot be trusted to act in the best interest of her children. Supervising visits for the rest of these Children’s childhood is not feasible, it’s not in their best interest, it’s not appropriate. Nothing less than termination of this relationship can adequately protect these Children now and into the long term.”
¶55 After the GAL’s closing argument concluded, Mother’s counsel asserted in her own closing argument that “[t]o presume that—first of all, that there’s no other choice but termination in this case, I don’t think it’s a reasonable position.” Mother’s counsel argued that
there were no specific reasons given during trial as to why these other options were not possible. Some of these less—you know, short of termination options would be to reopen the [protective supervision services] case and to implement . . . a reliable source for the kids to contact directly as to eliminate . . . the possibility of them making reports to either parent, to implementing a high-conflict therapist/family counselor . . . . Or start a new [protective supervision services] case . . . . Or permanent legal custody and guardianship with the dad, but which would allow the mom to remain in the kids’ lives and continue playing an active role in that. There are other options that would—that are short of termination that would preserve—that would enable the kids to continue having a relationship with their mother.
Mother’s counsel asserted that Mother had “worked hard and earnestly” to “be a better mom” and “did everything she was asked to do.” Mother’s counsel admitted that after the close of the protected supervision services case, “not all of the recommendations made by the therapist were followed,” but counsel suggested that if there had been “an assigned family therapist in place . . . we wouldn’t be here today.” Counsel concluded her argument by requesting that the court reopen the prior protective supervised services case and “require the parties to comply with the recommendations as given by the service providers.”
Termination Decision
¶56 The juvenile court subsequently issued a written decision terminating Mother’s parental rights to the Children.
¶57 Early in this ruling, the court found the testimony of Therapist to be “both credible and helpful in provid[ing] understanding of the harm done to the Children due to the actions of [Mother].” By contrast, the court found that Mother’s testimony at trial “was not credible and at times was simply untruthful.” Specifically, the court contrasted Mother’s testimony that she had never seen D.M.’s January 2022 letter and that she was unaware of its contents with the video showing her reading the letter at the sheriff’s office. The court also found that Mother had given “different versions of her story of how [D.M.] wrote the letter and how the letter was then mailed to the sheriff’s office.”
¶58 Addressing the January 2022 letter, the court found that D.M. “first lied to the sheriff deputy and stated that he wrote the letter without the help of his mother and rode himself to the post office to mail the letter,” and the court opined that it “cannot find any other reason for [D.M.] to lie about how the letter was written and delivered to the post office other than [Mother] telling him to do so.” The court found that “the allegations stated in the letter were false and were contrived by [Mother] to cause harm to and further alienate [Father] with his Children.”
¶59 The court then found that six grounds for termination had been established: abuse, neglect, unfitness, failure to provide care, token efforts, and “other.” As part of its unfitness analysis, the court found that “[a]fter years of unsubstantiated allegations of abuse against Father,” Mother “still fails to show any real remorse for her actions and their consequences on the Children. She simply testified that she ‘doesn’t know’ whether or not the Children have been or are being abused by” Father. The court found that “[a]fter years of therapy and services by DCFS, [Mother] refuses to take any responsibility for her behavior.” The court concluded that Mother “has shown that she cannot stop her destructive behavior regarding false allegations and refuses to take any responsibility regarding the Children’s statements to DCFS and law enforcement.”
¶60 The court then determined it was in the Children’s best interest to terminate Mother’s rights and that it was also strictly necessary to do so. In its best interest determination, the court found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” The court found that Mother
has not demonstrated the ability to sustain progress in treatment that shows that the Children would be safe in her care. Her actions taken less than a month after the protective supervision services case closed demonstrates that she has not responded to the extensive services provided to her. [Mother] has shown that when she is not subject to the strict oversight of DCFS and this Court, she reverts to allegations of abuse against [Father].
¶61 Under a separate subheading devoted to the strictly necessary determination, the court found it had “considered less-restrictive alternatives than termination of [Mother’s] parental rights” and that a “permanent custody and guardianship arrangement is unworkable and not in the best interest of the Children.” The court found that Mother “has made or caused to be made a multitude of false allegations of physical and sexual abuse against [Father] throughout a period [of] seven years, causing the Children to be interviewed repeatedly and examined and having their lives investigated.” The court further found that “[a]ny contact” that Mother has with the Children “is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment of the Children.” Finally, the court found that even when it “ordered [Mother] to be restricted to supervised visits by DCFS with the children, [Mother] absconded with the children. The Court cannot perceive a less-restrictive alternative which would protect the Children from further trauma without terminating [Mother’s] parental rights.”
ISSUES AND STANDARDS OF REVIEW
¶62 Mother challenges the termination order on two primary grounds. First, she argues that in its best interest analysis, the juvenile court “failed to consider all the facts” and improperly relied on past events rather than engaging in a present-tense inquiry. Second, she argues that the court “did not make findings as to why supervised visitation was not feasible.”
¶63 This court applies “differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “A best interest determination involves neither a pure finding of fact nor an abstract conclusion of law. This is a mixed determination of law and fact—in which the abstract law is applied to a given set of facts.” Id. ¶ 17. “The juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. ¶ 31 (quotation simplified).[2]
ANALYSIS
¶64 The Utah legislature has determined that “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Utah Code § 80-4-104(8). In light of this, a “juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id. “When the [juvenile] court considers a child’s welfare and best interest, the court’s focus should be firmly fixed on finding the outcome that best secures the child’s well-being.” In re B.T.B., 2020 UT 60, ¶ 64, 472 P.3d 827.
¶65 To terminate a parent’s rights, a court must find that (1) a statutory ground for termination exists and (2) termination is in the child’s best interest. See id. ¶¶ 19–20. With one minor exception that we address below in Part III, Mother’s appeal does not challenge the court’s determination that there were grounds to terminate her parental rights. Rather, Mother’s appeal is focused on the best interest portion of the court’s ruling.
¶66 “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). By statute, a court can only find that termination is in the best interest of a child if it also finds that “termination of parental rights, from the child’s point of view, is strictly necessary.” Utah Code § 80-4-301(1); accord In re B.T.B., 2020 UT 60, ¶ 66. The “statutory language uses the verb ‘is,’ indicating that the best-interest inquiry is to be undertaken in a present-tense fashion.” In re Z.C.W., 2021 UT App 98, ¶ 13, 500 P.3d 94. Moreover, Utah law presumes that “Lilt is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). In light of this, a juvenile court “must determine whether a feasible option short of imposing the ultimate remedy of terminating the parent’s rights exists, and if it does, the court must choose it.” In re K.Y., 2022 UT App 149, ¶ 34, 523 P.3d 1159 (quotation simplified).
¶67 As noted, Mother advances two main challenges to the court’s ruling. First, Mother argues that the court did not properly account for the present-tense best interest of the Children, but that it instead improperly relied “on outdated information.” And second, Mother argues that the court erred by not determining on the record whether an order of ongoing supervised visitation was a feasible non-termination option. We reject both challenges.
Present-Tense Best Interest of the Children
¶68 Mother argues that the court’s conclusion that it was in the best interest of the Children to terminate her parental rights was “based on outdated information.” In Mother’s view, the court failed to properly account for the fact “that between January 2022 and July 2022, Mother had supervised visits without incident.” We disagree.
¶69 Again, it’s settled that “the best-interest inquiry is to be undertaken in a present-tense fashion.” In re Z.C.W., 2021 UT App 98, ¶ 13. “Because children inhabit dynamic environments in which their needs and circumstances are constantly evolving,” the best interest inquiry must “be undertaken in a present-tense fashion, as of the date of the trial or hearing held to decide the question.” In re A.H., 2022 UT App 114, ¶ 34, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). “In a best-interest inquiry, the relevant question is almost always this one: what outcome is in the child’s best interest now?” In re Z.C.W., 2021 UT App 98, ¶ 12 (emphasis in original).
¶70 The juvenile court’s order in this case was properly couched in present-tense terms. In its findings on unfitness, for example, the court found that Mother “still fails to show any real remorse for her actions and their consequences on the children.” (Emphasis added.) The court also found that Mother “has shown that she cannot stop her destructive behavior regarding false allegations and refuses to take any responsibility regarding the children’s statements to DCFS and law enforcement.” (Emphases added.) Then, in a subsection that was specifically directed at the best interest determination, the court found that Mother’s “intent and the effect of her actions is to disrupt any semblance of stability the children might enjoy regarding [Father] while in his care,” and it further found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” (Emphases added.) And in another subsection that was specifically devoted to the strictly necessary determination, the court found that “any contact [Mother] has with the children is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment of the children,” that “Mother has not shown that she can stop the false allegations” against Father, and that Mother “fails to even acknowledge that the allegations are false or that she is in any way responsible for them.” (Emphases added.) In these and other instances in the ruling, the court made it clear that it was making a determination about the present-tense best interest of the Children.
¶71 Given this, Mother’s argument is ultimately focused on the alleged lack of evidentiary support for that conclusion. Mother asserts that although the court’s ruling may have been written in the present tense, the information that it relied on was so old or stale that the court had no valid basis for concluding that termination was in the Children’s present-tense best interest. We disagree.
¶72 In virtually any decision that’s made in law or life, questions about the present must in some measure be answered through consideration of relevant events from the past. As famously put by Faulkner, the “past is never dead. It’s not even past.” William Faulkner, Requiem for a Nun 92 (1951).
¶73 Our cases have recognized as much in this very particular legal context. Although it’s true that the best interest determination is made in the present-tense, it’s also true that “considering what a child’s best interest is at the time of trial does not require ignoring historical patterns.” In re A.K., 2022 UT App 148, ¶ 8 n.3, 523 P.3d 1156 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). Rather, “a juvenile court judge conducting a best interests analysis must weigh evidence forecasting future events in order to predict what course of action will best protect and nurture the child.” In re C.L., 2007 UT 51, ¶ 22, 166 P.3d 608 (quotation simplified). Since neither judges nor expert witnesses are soothsayers, the evidence that a court would rely on to “forecast[] future events” would naturally include evidence of things that had happened in the past between the parent and the children. In this sense, a court is tasked with “weigh[ing] a parent’s past conduct with her present abilities” in order to make the statutorily required determination. In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435.
¶74 Mother recognizes this, but she nevertheless argues that there must be some point at which the evidence is too distant to support a determination about a child’s present-tense best interest. In concept, we agree. But in application, we disagree with Mother’s suggestion that the evidence in this case was so remote that it could not be relied on.
¶75 Mother first points out that much of the court’s ruling was based on events that had occurred years before trial. And she’s right—the court did make repeated reference to events that had occurred years earlier. But even so, we think it significant that the court was not focused on an isolated event or two that had occurred in the far distant past. Rather, the court was focused on a pattern of events that had unfolded over the course of several years. As recounted at some length above, Mother began making allegations of sexual and physical abuse against Father in 2015, and she kept making such allegations over the course of the next five years. Mother kept doing so despite the apparent lack of any corroborating evidence. And she repeatedly encouraged her young children to make allegations against Father as well, even though this resulted in the Children being subject to repeated interviews and even physical examinations, and she also did so despite the transparently imaginative nature of some of the allegations.[3] Given that the juvenile court’s inquiry in this case was in some measure predictive, its focus on a pattern of behavior that had extended over several years would of course have probative value.
¶76 Even so, Mother points out that her behavior had improved enough by the later months of 2021 to prompt the juvenile court to close the protective supervision services case in December 2021. But as the juvenile court stressed in its termination order, within just a few weeks of that case being closed, Mother encouraged D.M. to write a letter to law enforcement with yet another allegation of abuse, Mother lied to authorities when questioned about her involvement in that letter, and Mother publicly accused Father of attempting to kidnap the Children during a confrontation at a school (and she did so in front of other children, no less). These events certainly gave the court some basis for reassessing its conclusion from December 2021 that Mother’s pattern of troubling behavior had come to an end.
¶77 This leads to Mother’s final assertion, which is that the January 2022 events could not support the termination order that was entered in July 2022 because no further incidents occurred during the January-to-July interim. As an initial matter, we have some skepticism about Mother’s suggestion that events that occurred five months before trial are indeed so remote that they could not inform the court’s present-tense best interest determination. And our skepticism of this argument is particularly warranted here, where the events that occurred in January 2022 are consistent with a prior pattern of events that had stretched out over the course of several years. After all, even during the 2015 through 2020 period, there were several stretches of several months in which Mother didn’t make any allegations. Yet each time, the period of dormancy was later interrupted by new allegations of abuse.
¶78 But more importantly, we disagree with Mother’s suggestion that nothing of note had occurred in the January-to-July interim. In reviewing the juvenile court’s termination decision, two things stand out.
¶79 First, at the time of the July trial, the court now had access to new information (primarily from Therapist) about the harm that Mother’s long-term behavior had inflicted on the Children. On January 24, 2022, Therapist wrote that D.M. reported “feeling very confused because [Father] never did that stuff” but that D.M. did not want to disappoint Mother. Therapist said D.M. felt “sort of unsafe” because of the events surrounding the January 2022 letter and “all the question asking.” And Therapist also said that H.M. reported feeling “tired of all the asking stuff” with Mother and that H.M. thought that life felt “sad and mad and scary” as a result. In a June 2022 letter, Therapist then informed the court that after a March 2022 visit with Mother, H.M. told her that he “didn’t like it and it didn’t feel safe.” She said that H.M. told her that “it sort of made [his] stomach hurt and like maybe she was going to take [him] again.”
¶80 Therapist’s testimony at trial gave the court even more insight into these harms. Therapist testified that D.M. was tearful in his January 2022 session and that he was “wrestling with himself because he had lied during some of [the interviews] because he felt like that was the right thing to do for [Mother].” Therapist testified that D.M. was “having a lot of shame towards himself” and that D.M. had told her he felt like he had “to say that these things have happened in order to make [Mother] happy.” Therapist also testified that after the January 2022 incidents, H.M. was “very, very vocal about not wanting to do the visits” with Mother. She testified that H.M. told her that “[m]y mom just—she comes at me and comes at me. I don’t want to go. I don’t want to deal with it.” She further testified that H.M.’s “exact words” to her were, “How would you feel if this were always happening to you? I just want a normal life.”
¶81 The court didn’t have this information when it closed the case in December 2021, but it did have this information at trial. And this information could properly inform any decision about what was in the best interest of the Children moving forward.
¶82 Second, the court also had new information about Mother’s mindset. In its order, the court found that Mother’s trial testimony “was not credible and at times was simply untruthful.” For example, the court noted that Mother testified twice that she was seeing D.M.’s January 2022 letter for the first time in the courtroom, even though a video of an earlier interview with law enforcement showed Mother reading that letter then. The court also highlighted Mother’s contrasting stories about how D.M. had written the letter. And the court further determined that Mother’s “statements that she has no opinion on whether she believes” that Father abused the Children were “not credible[,] taking into account the history of her actions in this matter.”
¶83 Based in part on Mother’s July 2022 trial testimony, the court found that Mother “still fails to show any real remorse for her actions and their consequences on the Children.” And the court found that although Mother “believes it improves her standing to now say that she ‘doesn’t know’ or has no opinion on whether or not the Children have been abused,” she “continues to deny responsibility for the continuous harm of false allegations.” Mother’s testimony and the court’s observations of her mindset were, of course, new information. And this new information would have some proper bearing on the court’s assessment of whether it was presently in the Children’s best interest to terminate Mother’s parental rights.
¶84 Pushing back, Mother points to some contrary evidence showing that there had been some improvement in her relationship with the Children. For example, Lead Caseworker testified that while H.M. initially showed some hesitancy at the visits, by the time of trial he would “sit in mom’s lap now where he wouldn’t do that before. You know, he’ll hug her. Things like that.” Lead Caseworker also testified that “D.M. is very good with his mom. I mean, it seems like they like to play together. And they just have fun when he’s there.” And at trial, Lead Caseworker said that she could not remember any time since January 2022 that the Children expressed to her “any concerns or anxiety about contact with their mom.” Also, minutes from a March 2022 hearing indicate that Mother had “been appropriate on her visits.” And in a DCFS Progress Report written a month before trial, D.M. “report[ed] that he wants the visits to last longer and [H.M.] asked to have the visits in [Mother’s] house.”
¶85 But again, a “juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified). Here:
The events that occurred from 2015 through 2020 gave the court ample reason to find that Mother had a long-term and persistent desire to make allegations of abuse against Father, that she was willing to directly involve the Children in those efforts, and that she was willing to ignore court orders (such as those she ignored when absconding with the Children on two occasions in 2020).
The events of January 2022 and Mother’s non-remorseful testimony at trial gave the court reason to believe that Mother’s good behavior in late 2021 had been temporary, rather than permanent, and that Mother still persisted in her beliefs about Father and her willingness to manipulate the Children or court processes to support her views.
And the new evidence that the court received leading up to trial and then at trial gave it additional information about the harm that was being done to the Children by Mother’s behavior.
¶86 In short, the court was tasked with making a present-tense determination, and its decision reflects that it did. In making that determination, the court could properly consider past and present events together. Although the court had concluded in December 2021 that the protective supervision case should be closed, more recent events had given the court reason to reassess its conclusions about Mother’s ongoing danger to the Children. Given the evidence that was before the court at trial, we see no basis for concluding that the court’s decision was improperly based on stale evidence. We therefore reject this argument.
Supervised Visitation
¶87 A court may only terminate a parent’s rights if it finds that termination is in the child’s best interest and that “termination of parental rights, from the child’s point of view, is strictly necessary.” Utah Code § 80-4-301(1). “The strictly necessary language is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” Id. ¶ 66. Moreover, when a juvenile court is presented with a readily apparent non-termination option, the court must “state, on the record, its reasons for rejecting feasible alternatives.” In re K.Y., 2022 UT App 149, ¶ 43 (quotation simplified). This “leaves no room for implicit rejection.” Id. (quotation simplified).
¶88 As noted, the court heard both evidence and argument suggesting that supervised visitation was not a viable solution moving forward. Therapist testified that although DCFS “may have talked about the possibility of supervised visitation,” “that’s not really along the normal, natural developmental means, and so I didn’t feel like that was the best option.” And in closing argument, the GAL argued that “[s]upervising visits for the rest of these children’s childhood is not feasible, it’s not in their best interest, it’s not appropriate.” As also noted, the juvenile court then made a series of findings about why it was strictly necessary to terminate Mother’s parental rights. Despite these findings, Mother argues that the juvenile court “erred as a matter of law when it did not make findings as to why supervised visitation” was not a feasible alternative to termination. We disagree with Mother’s claim that the ruling was lacking in this respect.
¶89 The cases in which we’ve found that a court erred by not addressing a feasible alternative have involved termination orders that were far less clear than the one at issue here. In In re K.Y., for example, the court’s best interest analysis was just two paragraphs long. See 2022 UT App 149, ¶ 28. After the State asserted on appeal that the juvenile court had at least “implicitly” rejected a potential guardianship within those two paragraphs, id. ¶ 42, we rejected that assertion, explaining that it was unclear to us “which conclusion” the court would have even reached about a potential guardianship, id. ¶ 44. The order at issue in In re J.J.W. had similar infirmities. There, “the court’s best-interest analysis consisted of a single paragraph.” 2022 UT App 116, ¶ 16. And while we agreed that the court had “by necessity” implicitly rejected guardianship as an option, id. ¶ 32, we still reversed because we still saw no explanation for why the court thought that guardianship was not a viable option, id. ¶ 35.
¶90 The ruling at issue in this case is decidedly different. The court devoted nearly three pages of analysis to the best interest inquiry alone, and it then devoted an additional page and a half to the strictly necessary determination. In addition, the ruling as a whole spans over 40 pages, and many of the court’s findings and conclusions from the other sections were interconnected and had obvious bearing on the best interest and strictly necessary determinations. Thus, unlike the orders at issue in prior cases where we’ve found this kind of error, the court here issued a detailed order that gave clear insight into its thinking about the relevant questions.
¶91 This leads to the question of whether the court’s ruling left any room for ongoing supervised visits as a non-termination option. Here, the subsection on the strictly necessary determination began with the court’s declaration that it “ha[d] considered less-restrictive alternatives than termination of [Mother’s] parental rights” and its conclusion that a “permanent custody and guardianship arrangement is unworkable and not in the best interest of the Children.” Under the same subheading, the court recounted the incidents in which Mother had previously absconded with the Children. The court specifically highlighted the fact that the second absconding incident had occurred when Mother “abducted the children from a division-supervised visit at the Division’s offices in July 2020.” The court then stressed that “[e]ven when the Court ordered the mother to be restricted to supervised visits by DCFS with the children, mother absconded with the children.” With this as something of a springboard, the very next sentence read, “The Court cannot perceive a less-restrictive alternative which would protect the children from further trauma without terminating mother’s parental rights.” The court’s focus was thus explicit and clear: the court had concluded that the only way to protect the Children from Mother inflicting “further trauma” on them by absconding with them again was to terminate her parental rights.
¶92 Mother nevertheless stresses that she had not absconded with the Children recently, and in light of this, she suggests that it’s unclear why, or perhaps even whether, the court was ruling out supervised visits as a viable option moving forward. But in cases such as In re K.Y. or In re J.J.W., we were left guessing at the court’s ruling or rationale. Here, however, it requires no guesswork to see that the court had indeed rejected ongoing visitation as an option, nor is there any question about why the court had done so. Again, in the subsection of its ruling that addressed the best interest determination, the court found that Mother “is unable to accept any court order that does not grant her primary care and custody of the children and will distort facts and perceptions until it makes sense to her that she should have custody.” And in the subsection that more particularly addressed the strictly necessary inquiry, the court found that “Mother has not shown that she can stop the false allegations against” Father and that “[a]ny contact the mother has with the children is likely to result in an additional false allegation, necessitating additional investigation, interviews, etc., all to the serious detriment to the children.”
¶93 This ruling thus foreclosed the possibility of ongoing supervised visits as a viable alternative to termination. Taking the court at its word, the court’s express finding that “any contact” carried the risk of causing potential harm to the Children by definition ruled out ongoing supervised visits. And the court’s focus on the prior absconding events, coupled with its findings about Mother’s current lack of remorse, collectively explained why the court thought that even supervised visits would still present an unacceptable risk—whether it be of Mother absconding with the Children again or of using any visits (even supervised ones) to raise new allegations of abuse against Father. All of this is drawn directly from the court’s ruling.
¶94 In short, the juvenile court was sufficiently clear about its finding that termination was in the best interest of the Children and that termination was also strictly necessary, and the rationales given by the court directly foreclosed ongoing supervision as a feasible option. We see no basis for reversing the decision.
III. Mother’s Additional Arguments
¶95 Mother briefly raises three additional issues on appeal. But none of them warrant reversal.
Adoption
¶96 At the back end of the best interest section of its ruling, the juvenile court found, “It is in the children’s best interests to terminate the parental rights of [Mother] so they may be free from abuse and neglect, so they may receive the proper safety, parenting, bonding, love, affection and stability they need, and so they may be adopted where they are safe, secure and stable.” Mother now argues that the court should not have relied on adoption in its best interest analysis because “adoption by a stepparent is wholly unnecessary” since “Father has sole custody.”
¶97 Our best interest cases have suggested that a court should not terminate a parent’s rights based on the “categorical concern” that adoption provides more stability to children than some other non-termination option. See, e.g., In re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606. But we disagree with Mother’s suggestion that the ruling here was categorical in nature. The court’s ruling was not only extensive, but it was focused on particular findings of the harm inflicted on the Children by Mother. We see no basis for overturning the decision based on the court’s stray reference to adoption in a single portion of the ruling.
“Piling On”
¶98 Mother also argues that the court “piled on its grounds rulings by basing all six of its grounds-related findings on the same ‘emotional abuse.’” Mother argues that this practice violated “the spirit of the ‘grounds’ statutes, if not the letter,” because “[p]iling on multiple grounds based on the same subset of facts simply renders the additional ‘grounds’ superfluous.”
¶99 But Mother concedes that this practice “do[es] not provide independent grounds for relief on appeal.” And while Mother points to some caselaw from the attorney discipline context that might suggest that it’s problematic to “pile on” multiple overlapping charges, Mother provides no authority that supports her view that a juvenile court cannot base a termination decision on multiple grounds if the statutorily defined elements of those multiple grounds have some or even substantial overlap. We’re aware of no such authority either, and we therefore see no basis for overturning this ruling as a result of this alleged problem.
Mandatory Reporting
¶100 Finally, Mother argues that “the court’s findings of emotional abuse are not supported by Utah law, where parents have both a right and a responsibility to report perceived abuse to authorities.” In Mother’s view, the “court’s decision sets up a scenario that fails to protect” children from “physical abuse and instead deems them ‘emotionally abused’ if one parent reports repeated, suspected abuse by the other.” Mother thus argues that the “court’s decision faults” her “for protecting [the] Children as she thought best.”
¶101 But the juvenile court’s extensive findings in this case leave no room for the conclusion that Mother’s rights have been terminated for anything like a good faith effort to protect the Children. The juvenile court found, with ample support, that Mother has engaged in a years-long campaign of filing unsupported or false reports of abuse against Father, that Mother has co-opted her children into being participants in this campaign (despite the fact that doing so caused them to be subjected to multiple police interviews and even physical examinations), that Mother has defied court orders and absconded with her children on two occasions, and that Mother lied to law enforcement and the court during the course of official interviews and proceedings.
¶102 We thus emphasize that a parent’s rights should not be terminated for making a good faith report of suspected abuse. But we likewise emphasize that nothing like that happened here. Rather, under the terms of the court’s order, Mother’s rights were terminated because of her years-long pattern of abusive behavior toward her children, not because of a good faith attempt to protect them.
CONCLUSION
¶103 The juvenile court did not err in relying on past events to support its present-tense best interest analysis, nor did it fail to account for the possibility of ordering ongoing supervised visits in its strictly necessary determination. Its decision to terminate Mother’s parental rights is accordingly affirmed.
[1] It’s appropriate at the outset to explain some of the word choices and information gaps in our recitation of the history of this case. As indicated in the introductory paragraphs of this opinion, this case centers on a years-long history of reports of abuse that were made against Father. The reports themselves are not in the record, so the record is limited to descriptions of those reports that came from others (most commonly the juvenile court in its various rulings).
In many instances, the passive voice was used when describing who had made an individual report—i.e., the record would say something like, “a referral was made.” To be faithful to the record, we’ve proceeded similarly. Also, the record sometimes says that a report was made but doesn’t then say what DCFS or law enforcement did with that report. And in some instances, the record makes passing reference to a reason a report was unaccepted without then providing much (or even any) explanatory detail. Our silence reflects those omissions too.
While acknowledging these caveats upfront, we note that the clear implications of the record generally and of the juvenile court’s termination decision more particularly are that (1) with the exception of the reports that were made by the Children themselves, it was Mother who was making most (if not all) of the reports of abuse against Father and (2) none of the reports of physical or sexual abuse that were made against Father were corroborated or accepted by DCFS or law enforcement.
[2] Mother also advances a few additional arguments relating to the grounds for termination and the broader scope of the allegations against her. These arguments are subject to this same standard of review, and we address them together in Part III.
[3] 3. As noted, the allegations included such things as an exploding car, Father allegedly punching a child in the bottom with a hammer, and Father somehow assaulting and even breaking a child’s neck in the middle of a church service.
Third District Juvenile Court, Salt Lake Department
The Honorable Annette Jan
No. 1198250
Sheleigh A. Harding, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and
John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.
HARRIS, Judge:
¶1 After a trial, the juvenile court terminated S.S.’s (Father) parental rights regarding his two children, D.S. and K.S. (collectively, the Children), concluding that it was in the best interest of the Children for them to be adopted by their paternal grandmother (Grandmother). Father appeals the court’s termination order, asserting that—under the precise circumstances presented here, where the Children are being placed with Father’s own mother and where permanent guardianship remains a viable option—termination of his rights was not strictly necessary to promote the best interest of the Children. We agree with Father, and reverse the juvenile court’s termination order.
BACKGROUND
¶2 Father is the biological father of K.S., a boy born in 2010, and D.S., a girl born in 2016. Father resided with the Children and their mother (Mother) from the time the Children were born until approximately 2018. In 2014, the Division of Child and Family Services (DCFS) received a report that Father had committed “Domestic Violence related child abuse” against K.S. and some of the Children’s other siblings; most notably, the report alleged that Father had “cut [a sibling’s] hand with a knife.” DCFS found the allegations “supported,” but it did not take action to remove K.S. at that time, and no criminal charges were ever filed.
¶3 Around 2017, after D.S. was born, a protective order was entered against Father, for reasons unclear from this record, that restricted his ability to contact Mother. Even after entry of the protective order, though, Father continued to reside with Mother for about another year, in apparent violation of that order. Eventually, in 2018, Father and Mother went through “a messy break up” and separated; the Children remained in Mother’s custody. In the year following the separation, Father spent time with the Children on a regular basis through “weekend visits” that Grandmother initiated and staged at her house.
¶4 During this time period, Father was arrested for “possession of a dangerous weapon”—“a pocketknife in [his] pocket”—in connection with various “protective order violations.” In late 2019, he was sentenced to prison, and ordered to serve a term of zero to five years. When Father first got to prison, he was unable to visit with the Children—even virtually— due to the continued existence of the protective order, but in March 2020, after obtaining a modification to that order, he began visiting with the Children through weekly “video visits” or “phone visits.” In the beginning, it was Grandmother who “was really insistent” that these virtual visits take place between Father and the Children. And since 2020, such visits have occurred on more or less a weekly basis.
¶5 In early 2021, while Father was still incarcerated, the Children were removed from Mother’s custody after an incident in which Mother abandoned them. The Children were later adjudicated neglected as to Mother and dependent as to Father, and the juvenile court placed them with Grandmother. In later proceedings, Mother’s parental rights were terminated, a determination Mother has not appealed. And due to Father’s ongoing incarceration, reunification services were never offered to him; the juvenile court set a permanency goal of adoption.
¶6 In January 2022, the State filed a petition seeking to terminate Father’s parental rights regarding the Children. Prior to trial on that petition, Father stipulated that—largely due to his incarceration—the State could show at least one statutory ground for termination of his parental rights. But the case proceeded to trial on the other element of the termination test: whether termination was strictly necessary to promote the best interest of the Children. On that point, Father took the position that termination of his rights was not strictly necessary, given that—at least in his view—he had a good relationship with the Children, they were in the care of his own mother (Grandmother), and he would undoubtedly be a part of their lives going forward, at least in some sense, simply due to that reality. He asserted that a permanent custody and guardianship arrangement would suit this situation better than adoption would.
¶7 In August 2022, the juvenile court held a relatively brief trial to consider that issue; during that trial, the court heard argument from counsel and testimony from three witnesses: the DCFS caseworker (Caseworker), Grandmother, and Father.[1] Caseworker testified that the Children were doing well in Grandmother’s care. She was aware that the Children have regular virtual visits with Father, but she noted that the Children “don’t talk [with her] much about” those visits and, when they do, they often just say “they don’t remember what they talked [with Father] about.” Caseworker stated that she knows that the Children “love [Father],” and did not recall either of them ever saying that they found Father “scary.” But she offered her view that adoption by Grandmother was in the Children’s best interest, opining that “adoption is necessary to allow them permanency and . . . a long-lasting, stable environment.” She also stated that she had talked to the Children “about adoption” and that the Children “would like to be adopted by [Grandmother],” but did not elaborate or offer any context for this conversation.
¶8 Grandmother testified that the Children were doing well
in school and thriving in her care. She acknowledged that, as a general matter, “fathers are important” in the lives of children, and she stated that she had been “a big advocate for” Father throughout the entire saga, even pushing to set up virtual visits from the prison after Father was first incarcerated. But she testified that, over time, she had become more of “an advocate for the [Children],” and offered her view that, due to some of the “choice[s]” Father had made, the relationship between Father and the Children had not “functioned properly for a very long time.” She discussed, at some length, the regular virtual visits that the Children have with Father, and she acknowledged that Father is a good listener during the visits. But she stated that the Children have lost interest in the visits over time, and that the visits are “hard for” the Children and make them “uncomfortable” because “they don’t know what to do” during the visits. To cope with the discomfort, Grandmother has added some “structure[]” to the visits “so that [the Children] would have things to talk about”; for instance, K.S. often plays the piano for Father during the visits, while D.S. often “plays kitchen” and pretends to cook things for Father. Grandmother offered her perception that the Children do not wish to have regular virtual visits anymore, and that Father does not understand that the visits are hard for the Children. She noted that sometimes the Children need to “spend some time kind of snuggling” with her after the visits. Grandmother also testified that, on at least one occasion, K.S. said that Father is “scary.”
¶9 Grandmother testified that she is ready, willing, and able to continue caring for the Children. But she voiced a strong preference for adopting them rather than acting as their permanent guardian. When asked why, she offered her view that adoption would be “less confusing” for the Children and that she could be “a consistent parent” for them given her “resources.” She opined that a guardianship arrangement “may suit [Father],” but she didn’t think it was “in the [C]hildren’s best interests.” She also stated that she was worried about what would happen to the Children—and, specifically, whether they would return to Father’s custody—if something were to happen to her. She acknowledged, however, that she would be willing to care for the Children in either form of custody (adoption or guardianship). And she also acknowledged that, even if Father’s parental rights were terminated and she were allowed to adopt the Children, she would nevertheless be open to the possibility that Father could still have a role in the Children’s lives, and in that situation she would “ask for some guidance from people that know more than [she does] about that,” such as the Children’s therapist. She testified that she had discussed the possibility of adoption with the Children, and that D.S. had compared it to those “commercials on TV about adopting a dog.” Referring to that comment, Grandmother acknowledged that the Children “have some misconceptions about” what adoption would mean and stated that she had “tried to fix” those misconceptions, but she offered no specifics about how she had attempted to do that.
¶10 Father was the trial’s final witness. In his testimony, he first described the involvement he has had in the Children’s lives since their birth, stating that when the family was living together he saw the Children every day, “took them to school, [and] everything.” Father acknowledged that the situation had changed due to his incarceration, and he recognized that the virtual visits from prison are “not ideal” because there are often other inmates in the background on video calls and because the technology sometimes has issues, but overall, he offered his view that the visits had been going well and that he did not think the visits were uncomfortable for the Children. As he perceived it, the Children “seem[ed] excited to see” him and “always tell [him] they love” him. He credited the virtual visits for allowing him to “maintain a relationship with” the Children despite his incarceration. He stated that he had “a really good bond” with K.S., with whom he shares a connection to music. He also spoke positively of his visits with D.S., although he acknowledged that D.S. sometimes “gets upset because [Father] can’t be there with her” in person.
¶11 Father testified that he was scheduled to be released from prison in December 2022, and he articulated a desire to “have a stronger relationship with” the Children than he was able to enjoy during incarceration. Father acknowledged that, immediately upon his release from prison, he would be in no position to assume custody of the Children, because he would “have a lot of stuff to deal with,” like “getting a job,” addressing his housing situation, and sorting out outstanding “immigration” issues.[2] But he was vocal about wanting to continue and improve his relationship with the Children after his release from prison.
¶12 After the presentation of evidence, the attorneys made closing arguments. The juvenile court did not make any ruling on the record at the close of the trial; instead, it asked the parties to submit additional briefing on “the issue of strictly necessary.” A few weeks later, the parties submitted those supplemental briefs, and thereafter the court issued a written ruling terminating Father’s parental rights.
¶13 Because Father had conceded the existence of statutory grounds for termination, the only issue the court needed to address was whether termination of Father’s rights was in the best interest of the Children and, as part of that inquiry, whether termination was strictly necessary to promote the Children’s best interest. And on that score, the court concluded that termination was indeed strictly necessary. The court acknowledged that both Father and Grandmother love the Children. The court also acknowledged that “there were no allegations of abuse and neglect regarding [Father] at the time the [C]hildren were ordered into” the custody of DCFS.[3] But the court found that Father’s “ability to offer love, affection, [and] guidance, and to continue with the [C]hildren’s education is very limited both due to his incarceration and [the Children’s] resistance to engaging with” Father. The court noted that the Children “have had stability” with Grandmother and were doing well in her care. The court also referenced its belief that the Children “desire to remain with and be adopted” by Grandmother, but it made no determination that the Children were of sufficient capacity to be able to meaningfully express their desires in this context.
¶14 In addition, the court opined that adoption was “necessary and essential to [the Children’s] well-being as it will protect them from [Father’s] desire to have ongoing and frequent visitation.” The court chided Father for failing “to recognize that the [C]hildren . . . do not want to visit with him,” and concluded that this failure “raises questions as to whether [Father] could act in the [C]hildren’s best interest.” In the court’s view, the fact that Father “believes [the Children] enjoy the visits” and that he “would, ideally, exercise more visitation [after release from prison] is exactly why a permanent custody and guardianship neither protects nor benefits the [C]hildren.” The court stated that a guardianship arrangement would “fail to ensure adequate protections against [Father’s] commitment for increased and continued visitation,” and would leave the Children “vulnerable to [Father’s] residual parental rights.” Indeed, the court observed that, “under a permanent custody and guardianship order,” the Children’s “emotional and physical needs” would be “subsumed by [Father’s] residual rights.” The court offered its view that adoption would serve the Children’s needs better than guardianship would, because it “affords them the protection of ensuring that any future assessment of contact with [Father] will [be] considered solely from their respective points of view.” The court stated that, “[i]f the legal assessment for best interest and strictly necessary was from the parental perspective, permanent custody and guardianship with [Grandmother] would likely [be] the best solution.” But it observed that “the legal assessment of best interest and strictly necessary is focused solely upon the [C]hildren and their needs” and, viewing the situation from that perspective, the court concluded that termination of Father’s rights was strictly necessary to promote their best interest.
ISSUE AND STANDARD OF REVIEW
¶15 Father appeals the juvenile court’s termination order, and challenges the court’s conclusion that termination of his parental rights was strictly necessary to further the Children’s best interest. “We review a lower court’s best interest determination deferentially, and we will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re A.H., 2022 UT App 114, ¶ 30, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). But “we do not afford a high degree of deference to such determinations; rather, we simply apply the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” Id. (quotation simplified). Moreover, because the “evidentiary standard applicable in termination of parental rights cases” is “the clear and convincing evidence standard,” we will “assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified); see also In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (“Whether the juvenile court correctly concluded there was no feasible alternative to terminating . . . [the father’s] parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)).
ANALYSIS
¶16 “The right of parents to raise their children is one of the most important rights any person enjoys.” In re A.H., 2022 UT App 114, ¶ 31. Perhaps for this reason, our legislature has provided specific requirements that must be met before a parent’s rights may be terminated. First, at least one of the enumerated statutory grounds for termination must be present. See Utah Code § 80-4301. Second, termination of parental rights must be in the best interest of the affected children. In re A.H., 2022 UT App 114, ¶ 32. “The party seeking termination of a parent’s rights bears the
burden of proof on both parts of this test,” and “that party must make this required showing by clear and convincing evidence.” Id. (quotation simplified).
¶17 At trial, Father did not contest the State’s assertion that at least one of the statutory grounds for termination of his parental rights was present. He did, however, contest the State’s assertion that termination was in the Children’s best interest. And his appellate challenge to the juvenile court’s termination order is similarly limited to the best-interest portion of the two-part test.
¶18 “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). Our legislature has provided important guidance regarding the best-interest question. First, statutes emphasize the importance of maintaining familial relationships where possible. As a general rule, it is “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). This is because “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Id. Therefore, “the juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id.; see also In re A.H., 2022 UT App 114, ¶ 31 (stating that a parent’s “fundamental liberty interest in the care, custody, and management of the parent’s child . . . does not cease to exist simply because . . . a parent may fail to be a model parent” (quoting Utah Code § 80-4-104(1), (4)(a)(i))).
¶19 Next, our legislature requires that termination of parental rights be “strictly necessary.” Utah Code § 80-4-301(1). “Our supreme court has interpreted this statutory requirement to mean that ‘termination must be strictly necessary to promote the child’s best interest.’” In re A.H., 2022 UT App 114, ¶ 36 (quoting In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827). And as the juvenile court here correctly noted, this inquiry is to be conducted “from the child’s point of view,” and not from either the parent’s or the prospective adoptive family’s. See Utah Code §§ 80-4104(12)(b), -301(1); see also In re B.T.B., 2020 UT 60, ¶¶ 25 n.5, 64 (stating that the “best interest analysis should be undertaken from the child’s point of view”). “[W]hen two placement options would equally benefit a child, the strictly-necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75, 491 P.3d 867; see also In re J.J.W., 2022 UT App 116, ¶ 29 (“Courts must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved, and if the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” (quotation simplified)). Thus, the best-interest inquiry—informed by the “strictly necessary” requirement—“requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). In particular, “courts should consider whether other less-permanent arrangements might serve the child’s needs just as well” as termination of the parent’s rights would. Id. (quotation simplified).
¶20 With these considerations in mind, we turn to the issue at hand: whether the State presented clear and convincing evidence that termination of Father’s rights was strictly necessary to promote the Children’s best interest. The juvenile court determined that the State had cleared this hurdle, and it based its best-interest determination largely on two subsidiary conclusions: (1) that the Children needed stability, which the court believed could be better provided through adoption than through a permanent guardianship arrangement, and (2) that the Children needed to be “protect[ed] against [Father’s] commitment for increased and continued visitation,” including protection against Father’s “residual rights,” which protection the court believed could be better provided through adoption than through a permanent guardianship arrangement. Father asserts that, on this record, these reasons constitute an insufficient basis to terminate his parental rights, and he maintains that the juvenile court’s determination was therefore against the weight of the evidence. We agree with Father.
¶21 The court’s first conclusion—that adoption affords a somewhat higher degree of stability than permanent guardianship does—is not, at a general level, a sufficient reason for terminating a parent’s rights. As our supreme court recently clarified, “categorical concerns” about stability are insufficient to warrant termination of parental rights so that an adoption may occur. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. “If these categorical concerns were enough, termination and adoption would be strictly necessary across the board” because a “permanent guardianship by definition does not offer the same degree of permanency as an adoption” and “there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent.” Id.; see also In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (“Categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” (quotation simplified)).
¶22 In this vein, we note again that permanent guardianship arrangements are themselves quite stable. See In re A.H., 2022 UT App 114, ¶ 55; see also In re J.J.W., 2022 UT App 116, ¶ 31 (noting that permanent guardianships “have certain hallmarks of permanency”). “A parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A-6-357(3)(d). “Only the guardian has that right.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A6-357(3)(d). And a parent, in this situation, is entitled only to “reasonable parent-time” with the child. See Utah Code § 80-1-102(70)(a)(iv). A guardian who does not think that a parent’s parent-time request is “reasonable” may resist that request, and any disputes between the guardian and the parent about the scope of “reasonable” visitation will be resolved “by the court,” with the best interest of the child in mind. See id. It is simply not the case—as the State implies—that a parent in this situation may demand, and obtain, as much parent-time as the parent desires. There are, of course, meaningful marginal differences in permanence and control between adoption and guardianship, and in some cases, these differences might matter. But after In re J.A.L., courts focused on the virtues of stability and permanence may no longer rely on the categorical differences between the two arrangements, but must instead discuss case-specific reasons why the “added layer of permanency that adoptions offer” matters in the case at hand. See In re A.H., 2022 UT App 114, ¶ 53.
¶23 In this case, the juvenile court offered a case-specific reason for its focus on stability: it was concerned about Father’s “residual rights,” and specifically about Father’s “commitment for increased and continued visitation,” and it worried that, after Father’s release from prison, he might continue to have some “involvement in [the Children’s] lives.” We acknowledge that, in some cases, fear of a parent’s residual rights might reasonably counsel in favor of terminating that parent’s rights so that an adoption can take place. But this case is not one of those cases.
¶24 For starters, there is no indication that Father’s continuing relationship with the Children is harmful to them, rather than merely perhaps inconvenient. See In re L.L.B., 2023 UT App 66, ¶ 24 (reversing a court’s termination of parental rights in part because “there was no finding . . . that [the] [f]ather’s presence in [the child’s] life has affirmatively harmed” the child, and “there was no finding detailing how [the child’s] life was negatively affected or disrupted by [the] [f]ather’s attempts to exercise his parental rights”).[4] Indeed, the juvenile court accurately noted that “there were no allegations of abuse or neglect regarding [Father] at the time the [C]hildren were ordered into [DCFS] custody,” and the Children were found only “dependent”—not abused or neglected—as to him. And the court found that Father “was involved in” K.S.’s life “until he was about eight years old” and in D.S.’s life until she “was three”; that he “love[s] these [C]hildren”; and that he “expresses genuine love and affection for” them.
¶25 To be sure, Father’s incarceration has placed a great degree
of stress on the parent-child relationship. Because of his incarceration, Father was unable to care for the Children in their time of need when Mother abandoned them, and he was—as of the time of trial—still unable to assume custody of them. Father has, however, made a credible and determined effort to remain involved in the Children’s lives despite his incarceration. With Grandmother’s initial encouragement and assistance, virtual visits were arranged on a regular basis, and the juvenile court found that, “[a]t first, the [C]hildren were eager” to participate in those visits. Over time, however, the Children have lost their enthusiasm for the visits. But no party pins this loss of enthusiasm on Father’s behavior regarding those visits; he remains excited about the visits, and there is no evidence that Father has ever turned down (or not shown up for) an opportunity for visits, or that he has ever acted inappropriately during any visit. Indeed, the juvenile court specifically found that Father was “a good listener” during the visits, and Grandmother testified that Father was “very good at playing kitchen” with D.S.
¶26 The most anyone can say regarding any downside to these visits is that the Children find them boring or “uncomfortable” because they sometimes see other inmates in the background and because they do “not know what to do” during the visits. Grandmother has had to add some structure to the visits so that the Children have some things to talk about with Father; K.S. has turned to music, and D.S. to “playing kitchen.” On some occasions, the Children find the visits “difficult” and need comfort from Grandmother after the visits conclude, but there is no indication from the record that this difficulty arises from anything Father does or says during the visits; indeed, it seems that the difficulty arises simply from the fact that Father is in prison, a fact that makes communicating and bonding comparatively difficult and often awkward.
¶27 Given Father’s genuine efforts to maintain a meaningful relationship with the Children, as well as the absence of a “harmfulness” component to that relationship, we see no basis for the juvenile court’s view that the Children need “protections against [Father’s] commitment for increased and continued visitation.” As a general matter, we want parents to exhibit a commitment toward a positive and continued relationship with their children. See In re A.H., 2022 UT App 114, ¶ 55 (“Family life should be strengthened and preserved wherever possible, and . . . it is usually in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” (quotation simplified)); see also In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206 (“In many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them . . . .”), aff’d, 2020 UT 60, 472 P.3d 827. All else being equal, there is inherent value and benefit—not only to the parent but to the children—in maintaining familial relationships, a fact that the juvenile court failed to discuss or account for. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting the “benefit of preserving the familial relationships, as our legislature has commanded courts to do ‘wherever possible’” (quoting Utah Code § 80-4104(12))). And a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of, and not against, a determination that it is in the child’s best interest to keep the relationship intact. See In re A.H., 2022 UT App 114, ¶ 55. As we read this record, Father should be commended—rather than chided—for maintaining love and affection for, and a desire to continue a meaningful relationship with, the Children despite his incarceration. And Father’s wish to have “visitation” with the Children after his release from prison should likewise have been viewed positively—or at least neutrally—rather than negatively in the context of the best-interest inquiry. See id. (“[W]e question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it.”).
¶28 All of this is especially true in this case, where the prospective adoptive parent is Father’s own mother. As Grandmother herself acknowledged, no matter the outcome of the case—whether adoption or guardianship—there will very likely be some sort of ongoing relationship between Father and the Children. That is, not even Grandmother believes that Father will (or necessarily should) be completely cut out of the Children’s lives; instead, she testified that, in the event she is allowed to adopt the Children, she would consult with “therapist[s]” and other “people that know more than” she does about appropriate visitation, and come to a decision about the level of Father’s involvement that she believes would be best for the Children. In another similar case, we defined the relevant question as follows: “[B]efore it may terminate [a parent’s] rights, the [juvenile] court must adequately explain why it is better for [the Children] to have [the parent] cut out of [their lives] forever than to have [the parent] remain involved in [their lives], perhaps with limited parent-time, pursuant to a guardianship arrangement.” In re J.J.W., 2022 UT App 116, ¶ 36. In cases like this one, where—given the identity of the prospective adoptive parent—nobody thinks Father really is going to be completely cut out of the Children’s lives as a practical matter, it becomes more difficult to establish that it is best for the Children for Father’s rights to be terminated.
¶29 Finally, we put almost no stock in the juvenile court’s finding that the Children “expressed a desire to be adopted by” Grandmother. In this context—termination cases in which the children are not in the physical custody of the parent in question—our law allows the court to consider “the child’s desires regarding the termination,” but only if the court “determines [that] the child is of sufficient capacity to express the child’s desires.” Utah Code § 80-4-303(1)(a). The issue of the capacity of the Children to express their desires was never discussed at trial, and the juvenile court made no determination that either one of the Children had sufficient capacity. At the time of trial, K.S. was eleven years old and D.S. was six years old. While the governing statute puts no absolute age threshold on when a child’s desires may be considered,[5] it is far from obvious that either of the Children—especially the six-year-old—were “of sufficient capacity” to express a meaningful opinion about the ultimate question in this case: whether Father’s rights ought to be terminated to facilitate an adoption or whether Father should retain certain rights through a guardianship arrangement. In parental termination cases, a court wishing to take a child’s desires into account should make a determination regarding the child’s capacity to express those desires; absent such a determination, the requirements of the statute are not met.
¶30 Moreover, even if the Children could be considered capable of offering meaningful testimony about their desires, there are evidentiary problems with the juvenile court’s finding on the subject: the trial testimony did not support any finding on this issue more specific than that the Children—quite understandably—wanted to remain in Grandmother’s care. Caseworker testified that the Children “would like to be adopted by” Grandmother, but she offered no additional details about her conversation with the Children. And Grandmother stated that she had discussed adoption with the Children, but she testified that D.S. responded, “That’s like the commercials on TV about adopting a dog.” And she acknowledged that the Children “have some misconceptions about” what adoption would mean, and that she had “tried to fix” those misconceptions. But no witness offered any testimony that could support a finding that either of the Children actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption. In particular, no witness offered any testimony that either of the Children understood that, if an adoption were to occur, Father would lose all of his parental rights, and—relatedly—no witness offered any testimony that the Children actually wanted Father to lose all of his parental rights.[6]
¶31 In the end, the facts of this case simply don’t add up to strict necessity. Even though we review the juvenile court’s decision deferentially, we still must reverse when “the evidence presented at trial [does] not constitute clear and convincing evidence that termination of [the parent’s] rights . . . would be in the best interest of those children.” In re A.H., 2022 UT App 114, ¶ 38; see also In re L.L.B., 2023 UT App 66, ¶ 34 (reversing the district court’s decision where the “court’s conclusion that termination of [a father’s] parental rights was in [a child’s] best interest goes against the clear weight of the evidence”). With the appropriate “clear and convincing” evidentiary standard in mind, we conclude that the juvenile court’s decision in this case was against the clear weight of the evidence, and that the reasons upon which the court’s analysis relied were insufficient to support termination of Father’s rights.
¶32 We emphasize, however, that our decision is dependent upon the particular circumstances of this case. Those notable circumstances include the following: the juvenile court made no finding that Father’s relationship with the Children was abusive or harmful; the prospective adoptive parent is Father’s own mother; and Father will—in any event—likely have a relationship of some kind with the Children in the future. Moreover, there is no evidence that Father and Grandmother have the sort of relationship where he would be likely to exercise undue control over custody and care decisions in a guardianship arrangement. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting that guardianship might be a viable option because, among other things, there was “no evidence in the record that would lead us to believe that [the guardians] would be particularly susceptible to undue influence from [the parent] as concerns seeking a change or dissolution of the guardianship”); see also In re A.H., 2022 UT App 114, ¶ 55. If the facts of the case were different, termination of Father’s parental rights might well have been justified. For instance, if Father’s relationship with the Children were abusive or detrimental, the situation would certainly be different. And we have previously noted that, where the prospective adoptive placement consists of non-relatives with no pre-existing relationship with the parent whose rights are at issue, a guardianship arrangement may be a poor fit. See In re J.P., 2021 UT App 134, ¶ 11, 502 P.3d 1247 (discussing with approval a lower court’s reasoning that permanent guardianship arrangements work best in situations where the parent and the guardian know each other and are “willing to work together to preserve [the] parent-child relationship” and “where the child has a healthy relationship with both the guardian and the parent,” and that such arrangements may not work as well in non-relative, foster-family placement situations). But on the facts presented at the termination trial in this case, a permanent guardianship arrangement serves the Children’s interest at least as well as adoption does, and therefore termination of Father’s parental rights is not strictly necessary to promote the Children’s best interest. See In re A.H., 2022 UT App 114, ¶ 49 (“If the two placements can each equally protect and benefit the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights.” (quotation simplified)).
CONCLUSION
¶33 We reverse the juvenile court’s order terminating Father’s parental rights and remand the case for further proceedings consistent with this opinion. We note, as we have in similar cases, that “best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter.” Id. ¶ 58. Our holding today is that, based on the evidence presented at trial in August 2022, termination of Father’s rights was not strictly necessary to promote the Children’s best interest. But the situation may well have changed since August 2022. In particular, we are aware that Father was scheduled to be released from prison in December 2022; the record submitted to us contains no information about whether that occurred as scheduled or, if so, what has happened since his release. If nothing has materially changed since the August 2022 trial, then we expect the court to enter an order establishing a permanent custody and guardianship arrangement, with the Children in Grandmother’s care, and to make appropriate rulings, as necessary, regarding the scope of Father’s reasonable visitation. But if there is evidence that matters have materially changed since the trial, the court may need to consider that evidence in some fashion, see In re Z.C.W., 2021 UT App 98, ¶ 15, 500 P.3d 94, and re-assess best interest, with its strictly necessary component, based on the situation at the time of the remand proceedings.
[1] The trial transcript is composed of just fifty-two pages. And the three witnesses’ testimony, in total, took just over an hour.
[2] The record submitted to us does not indicate whether Father was in fact released from prison on the anticipated date or, if so, whether Father has taken any steps to resolve his employment, housing, or immigration issues.
[3] At no point in its written ruling, or at any other time during the trial, did the court reference the 2014 “supported” allegations of abuse regarding the Children’s sibling. No witness testified about those allegations at trial. And while the protective order violations were mentioned in passing, no witness offered any testimony about the basis upon which the protective order was granted.
[4] As noted already, see supra note 3, no witness at trial mentioned the 2014 “supported” incident of abuse, and the protective order violations were discussed only in passing. Most importantly for present purposes, the juvenile court did not base any of its findings or conclusions on either of these incidents; in particular, it made no finding that either one was of such a nature as to render Father’s relationship with the Children harmful to them.
[5] Utah’s adoption statutes, by contrast, establish a specific age limit regarding when a child’s consent to adoption must be procured. See Utah Code § 78B-6-120(1)(a) (“[C]onsent to adoption of a child . . . is required from . . . the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not have the mental capacity to consent.”).
[6] In this vein, we note a general concern with evidence about a child’s desires regarding termination coming in through the testimony of a prospective adoptive parent. A much better practice is for such evidence to come in through either a proffer from a guardian ad litem—the attorney specifically hired to represent the interests of the child—or through the testimony of professional witnesses (e.g., mental health counselors) who presumably have training in discussing such topics with minors in a neutral way. By noting the absence of specific foundational evidence about the Children’s desires, we are in no way faulting Grandmother for apparently not asking additional follow-up questions of the Children regarding termination; indeed, this opinion should not be viewed as encouraging prospective adoptive parents to engage in conversations with children about termination of their natural parents’ rights.
Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
LUTHY, Judge:
¶1 In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.
¶2 Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.
BACKGROUND
¶3 Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”
¶4 Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]
¶5 The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.
¶6 Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”
¶7 On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”
¶8 Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.
¶9 On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.
¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.
¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”
¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.
¶13 Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.
¶14 Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.
¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”
¶16 Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:
[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]
¶17 Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”
¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.
¶19 Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”
¶20 Counsel then, again, stated his interpretation of the process the court was explaining:
[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?
¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”
¶22 Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”
¶23 Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.
¶24 The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.
ISSUES AND STANDARDS OF REVIEW
¶25 On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).
ANALYSIS
Adequacy of the District Court’s Findings in Support of
Supervised Parent-Time
¶26 Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:
When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5114, from the noncustodial parent if left unsupervised with the noncustodial parent.
Utah Code § 30-3-34.5(1).
¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.
¶28 That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.
¶29 Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).
¶30 However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”
¶31 Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.
¶32 Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]
¶3 Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]
The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time
¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.
¶35 Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.
¶36 After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.
¶37 Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time a comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.
¶38 “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).
¶39 Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.
¶40 Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”
¶41 Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).
¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).
CONCLUSION
¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.
Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellant
Julie J. Nelson, Attorney for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.
OLIVER, Judge:
¶1 Richard Lee Clark appeals from the district court’s decision following a two-day divorce trial. Clark challenges several aspects of the court’s ruling, including a discovery sanction for his failure to timely disclose his trial exhibits under rule 26 of the Utah Rules of Civil Procedure; findings relating to his claim that his ex-wife, Susan Jeanne Clark, dissipated the marital estate; and the court’s division of the marital property. We affirm the district court’s ruling with the exception of one aspect of the district court’s marital property determination, which we vacate and remand for additional findings.
BACKGROUND
¶2 Richard and Susan[1] married in 2002, when Richard was in his sixties and Susan was in her fifties. Richard was retired from military service and from employment as an attorney with the Department of Justice. Susan owned a wallpaper business when she met Richard but quit working shortly after they married. For the next six years, Richard and Susan lived off Richard’s retirement income from both the Army and the Department of Justice.
¶3 In 2008, Richard came out of retirement to work for a government contractor in Afghanistan, where he lived for thirty-eight months. During that time, Richard’s retirement and employment income of $814,627 was deposited into a joint account that Susan controlled. Richard returned home to find “probably about $100,000 . . . had been saved” in the joint bank account—much less than he expected—yet he said nothing to Susan at that time.
¶4 Three years after his return, Richard moved into the basement of the marital home. The following year, in 2016, Susan transferred approximately $78,000 from their joint account into her personal account, prompting Richard to confront her about what he viewed as missing money from his time in Afghanistan. Two years later, in 2018, Susan filed for divorce. Shortly afterward, Richard purchased a Harley-Davidson motorcycle with financing, which he paid off in 2020.
¶5 At the time of their divorce, Richard and Susan owned two real properties—a condo in Norfolk, Virginia (Mooring Drive), and a home in Kamas, Utah (Ross Creek). Richard had purchased Mooring Drive before the marriage for approximately $205,000. In 2003, Richard added Susan to the title of Mooring Drive, which allowed her to vote at the condominium association’s meetings and to join the board. The following year, Richard and Susan used equity loans on Mooring Drive to finance the purchase and construction of Ross Creek. From 2009—when Susan moved to Utah and Richard was in Afghanistan—until June 2019, Richard rented Mooring Drive out to others and the revenues were deposited into his separate account that was designated to pay for the property’s expenses.
¶6 During their marriage, the parties took out an equity loan on Ross Creek that matured, along with one of the equity loans from Mooring Drive, in 2019. With the divorce still pending, Susan agreed to refinance Ross Creek’s mortgage to pay off the two equity loans that were due, but only if Richard would stipulate that Mooring Drive and Ross Creek were marital property and were subject to equitable division in their pending divorce. Richard agreed, and the parties stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.”
¶7 In April 2019, the Mooring Drive tenants’ lease expired. Richard decided he could only offer the tenants a month-to-month lease until his divorce was over. When the tenants declined to renew and moved out in June, Richard withdrew $30,000 from the joint bank account, claiming that he needed the funds to cover Mooring Drive’s expenses. After a hearing, the court entered temporary orders in December 2019, permitting Richard to access equity in Ross Creek to pay off debt on Mooring Drive but denying his “request for financial relief based on the loss of rental income because [Richard] ha[d] not made any attempt to secure new renters.”
¶8 Trial was originally scheduled for June 2020, but when the COVID-19 pandemic hit and courts were required to hold bench trials virtually, Richard declined to proceed with a virtual trial, and it was continued without a date. In February 2021, the court held a pretrial scheduling conference and rescheduled the trial for May 2021. The court’s pretrial order stated the parties must produce pretrial disclosures on or before April 26, 2021, pursuant to rule 26(a)(5)(B) of the Utah Rules of Civil Procedure.
¶9 Richard missed the deadline. A week after it passed, he requested a continuance to hire trial counsel. Richard had been representing himself as a pro se litigant despite being eighty-four years old and not having practiced law since 1988. According to Richard, health issues arose that made him “no longer physically and mentally capable of representing” himself. The court granted the motion, rescheduling the trial for June. The new deadline for pretrial disclosures became May 24, but Richard did not submit his pretrial disclosures until June 10—eleven days before trial.
¶10 The two-day trial began with Susan’s objection to Richard’s untimely pretrial disclosures. Susan contended that Richard had “ample opportunity” to produce his pretrial disclosures given the multiple continuances of the trial. In response, Richard claimed his failure to meet the disclosure deadline was harmless because he had previously produced as discovery responses the 339 pages of financial documents—including check registers, paystubs from 2008 to 2009, and bank account information from 2011 to 2012— that he sought to admit as exhibits 2 through 8. Yet Richard did not file certificates of service for those responses, and neither party’s counsel could confirm whether Richard had previously sent the documents in exhibits 2 through 8 to Susan, leaving the district court with only Richard’s testimony to support the claim that he had previously disclosed the exhibits. The district court sustained Susan’s objection as to exhibits 2 through 8, excluding them from trial.
¶11 Both Susan and Richard testified at trial. Susan testified Richard had transferred $30,000 from their joint account to his personal account in June 2019 and contended she was entitled to half of that amount. Susan also testified about her exhibits that provided recent balances in her bank and retirement accounts.
¶12 On cross-examination, Susan admitted she had not looked for work and was unemployed despite the court’s urging in 2020 for her to seek employment. Richard then peppered Susan about numerous expenditures during his time in Afghanistan, to which Susan replied that it “was a number of years ago” and she “ha[d] no recollection at all” of the transactions. Susan did state, however, that when Richard left for Afghanistan, she recalled they “had very large credit card balances” that Richard instructed her “to start paying off” while he was away.
¶13 First testifying as Susan’s witness, Richard answered questions about some of the marital property. He testified about a recent appraisal of Mooring Drive that valued it at $390,000, his three life insurance policies that all list Susan as the beneficiary, and his purchase of the Harley-Davidson in May 2019. Susan then introduced a pleading Richard had filed with the court in November 2019 that stated, in relevant part, he had “owned three motorcycles, selling the last one when [he] moved to Norfolk,” but he has “never ridden a Harley-Davidson.” Richard replied that he had “misstated the fact,” both in that pleading and at a hearing the same month when he told the court he did not own a Harley-Davidson. Richard testified he should receive three-fourths of the equity in Mooring Drive because he purchased it before the marriage. Unable to provide a figure for what the property was worth when he married Susan, Richard claimed that “the[] prices have gone up and gone down a great deal” since their marriage, but his best guess was that Mooring Drive appreciated from $205,000 to $350,000 between 2000 and 2002. Richard continued to do some impromptu math on the stand to clarify how much equity he felt he was owed, asserting that since Mooring Drive was recently appraised at $390,000 and had been worth $350,000 in 2002—by his best guess—there is $40,000 of equity for them to divide, but then he admitted such valuation “is something I’m just not knowledgeable about.”
¶14 As his own witness, Richard testified about Susan’s alleged dissipation during his time in Afghanistan. Richard’s excluded exhibits went to the issue of dissipation, so without the financial documents from that period, Richard sought to prove Susan “dissipated money while [he] was in Afghanistan” through his testimony about his earnings and typical expenses during that time frame. Using the excluded exhibits to refresh his recollection, Richard estimated their monthly expenses before he left were approximately $10,000 to $11,000. Richard also challenged Susan’s testimony about credit card balances, claiming that “there weren’t any large credit card balances before [he] left.”
¶15 At the conclusion of trial, the district court asked both parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments. After issuing an oral ruling, the district court memorialized its decision in written findings of fact and conclusions of law. The court found that Richard’s “testimony was insufficient to establish his [dissipation] claim” and that Richard had “failed to meet his burden of demonstrating dissipation.” The court also found “problems with the credibility of both parties,” specifically finding that Susan’s “credibility was lacking with regards to the dissipation issue” and Richard’s “credibility was lacking with regards to his motorcycle purchase.” Susan was awarded Ross Creek’s equity, and Richard was awarded Mooring Drive’s. The court awarded Susan $2,500 per month in alimony and an offset of $43,474 (from Richard’s purchase of the Harley-Davidson and his $30,000 withdrawal from the joint account) “to achieve an equitable division of the estate.” The court found Richard “withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account,” but it made no findings as to how Richard spent the $30,000.
ISSUES AND STANDARDS OF REVIEW
¶16 Richard raises three main issues for our review. First, Richard challenges the district court’s exclusion of his exhibits for his failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. A district court “has broad discretion regarding the imposition of discovery sanctions,” and when we apply “the abuse of discretion standard to the district court’s imposition of a particular sanction, we give the district court a great deal of latitude.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (cleaned up).
¶17 Second, Richard contends the district court erred in its application of the burden of proof on Richard’s dissipation claim. A district court’s “allocation of the burden of proof is . . . a question of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 20, 435 P.3d 179.
¶18 Finally, Richard challenges the district court’s division of the property, including the court’s finding that the marital estate included Mooring Drive and the Harley-Davidson, and its decision to deduct from the marital estate the $30,000 Richard withdrew from the parties’ joint account. A district court “has considerable discretion considering property division in a divorce proceeding, thus its actions enjoy a presumption of validity,” and “we will disturb the district court’s division only if there is a misunderstanding or misapplication of the law indicating an abuse of discretion.” Beckham v. Beckham, 2022 UT App 65, ¶ 6, 511 P.3d 1253 (cleaned up).
ANALYSIS
I. Pretrial Disclosures
¶19 Richard asserts the district court abused its discretion in excluding his exhibits 2 through 8 for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure because he “produced the documents that comprised the exhibits” during discovery and any “technical non-compliance with that rule” was “harmless.” We disagree.
¶20 Rule 26 governs “disclosure and discovery” in civil matters and requires parties to provide “a copy of each exhibit, including charts, summaries, and demonstrative exhibits, unless solely for impeachment, separately identifying those which the party will offer and those which the party may offer . . . . at least 28 days before trial.” Utah R. Civ. P. 26(a)(5). A party who fails to timely disclose exhibits “may not use the undisclosed witness, document, or material at . . . trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). A district court “has broad discretion in selecting and imposing sanctions for discovery violations under rule 26,” and “appellate courts may not interfere with such discretion unless there is either an erroneous conclusion of law or no evidentiary basis for the district court’s ruling.” Wallace v. Niels Fugal Sons Co., 2022 UT App 111, ¶ 26, 518 P.3d 184 (cleaned up), cert. denied, 525 P.3d 1267 (Utah 2023).
¶21 Richard does not dispute that he failed to timely disclose exhibits 2 through 8. Instead, Richard argues he produced the documents in those exhibits to Susan in earlier discovery responses, so his failure to timely file pretrial disclosures was harmless, and he further argues that it was Susan’s burden to prove she had not received them. In response, Susan asserts it was Richard’s burden, not hers, to prove that he produced the documents earlier in discovery, and the failure to file his pretrial disclosures pursuant to rule 26(a)(5) was not harmless. We agree with Susan on both fronts.
¶22 First, “the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements.” Dierl v. Birkin, 2023 UT App 6, ¶ 32, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023). Second, Richard failed to carry his burden of demonstrating harmlessness. Although Richard “assured [his counsel] that he [had] produced records related to this 2008-to-2012 timeframe,” he did not file the required certificates of service. See Utah R. Civ. P. 26(f) (requiring a party to file “the certificate of service stating that the disclosure, request for discovery, or response has been served on the other parties and the date of service”). Thus, Richard failed to prove that the documents had previously been produced.
¶23 But even if he had proved prior production, excusing pretrial disclosures if the documents were produced earlier in discovery would “eviscerate[] the rule that explicitly requires parties to” serve a copy of the documents they intend to use “in their case-in-chief at trial.” Johansen v. Johansen, 2021 UT App 130, ¶¶ 19, 26, 504 P.3d 152 (rejecting argument to follow the spirit of rule 26 rather than “the plain language of rule 26” regarding pretrial disclosures); see also Utah R. Civ. P. 26(a)(5)(A)(iv) (requiring pretrial disclosure of “each exhibit” the party will or may offer at trial). And expecting a party to sort through hundreds, if not thousands, of pages of documents that were produced earlier by the other side during discovery and then expecting the party to predict which ones the opposing party might seek to admit at trial would be harmful and would violate the intent of rule 26.
¶24 Ultimately, “a court’s determination with respect to harmlessness . . . . is a discretionary call,” and our review of it “is necessarily deferential.” Johansen, 2021 UT App 130, ¶ 11 (cleaned up). Thus, the district court was well within its “broad discretion” to exclude Richard’s exhibits 2 through 8 under these circumstances. See Wallace, 2022 UT App 111, ¶ 26 (cleaned up).
II. Dissipation
¶25 Richard claims the district court erred in finding that he failed to meet the burden of proof on his dissipation claim. We disagree.
¶26 “The marital estate is generally valued at the time of the divorce decree or trial.” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (cleaned up). “But where one party has dissipated an asset,” the “trial court may, in the exercise of its equitable powers,” “hold one party accountable to the other for the dissipation.” Id. (cleaned up). A court’s inquiry into a dissipation claim may consider “a number of factors,” such as “(1) how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses; (2) the parties’ historical practices; (3) the magnitude of any depletion; (4) the timing of the challenged actions in relation to the separation and divorce; and (5) any obstructive efforts that hinder the valuation of the assets.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022).
¶27 The burden of proof for dissipation initially falls on the party alleging it. See Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565 (stating that a party seeking to assert dissipation must make an “initial showing of apparent dissipation”). The district court correctly concluded that Richard bore the “burden of demonstrating dissipation.” To meet the “initial showing of apparent dissipation,” the party alleging dissipation must first show evidence of dissipation. Id. ¶¶ 13, 15. Only after “present[ing] the trial court with evidence tending to show that [Susan] had dissipated marital assets” does the burden shift to Susan “to show that the funds were not dissipated, but were used for some legitimate marital purpose.” Id. ¶ 13.
¶28 Richard’s documentary evidence on this issue had been excluded by the court, so the only evidence he presented was his testimony in 2021 that his income while in Afghanistan from 2008 to 2012 exceeded the estimated historical marital expenses from before 2008, some thirteen years earlier. Richard asserts that his testimony alone should suffice for an initial showing of dissipation. In Parker v. Parker, 2000 UT App 30, ¶ 15, 996 P.2d 565, the husband “presented the trial court with evidence” that detailed how the wife had dissipated marital assets—exact beginning and ending balances for eight bank accounts, the marital expenses during the time in question, and specific checks the wife wrote to herself—thus shifting the burden to the wife. Id. ¶ 13. But Richard, like the wife in Parker, only “testified in conclusory and cryptic terms,” and thus “wholly failed to meet [his] burden.” Id. ¶ 14.
¶29 Therefore, the district court was well within its discretion to decide that Richard’s uncorroborated testimony about Susan’s spending that occurred many years before either party contemplated divorce[2] was insufficient evidence to meet his initial burden of proving dissipation. Accordingly, the district court did not err in its finding that Richard failed to meet his burden of proof on the dissipation claim.
III. Marital Property
¶30 Richard presents three challenges to the district court’s division of the marital property. First, Richard asserts he is entitled to his premarital contribution to Mooring Drive. Second, he alleges the Harley-Davidson he purchased during the pendency of the divorce is his separate property. Third, Richard claims the court should not have deducted from the marital estate the $30,000 that he withdrew from the joint account in June 2019.
We affirm the district court’s decision on Richard’s first two challenges and vacate the decision on the third, remanding the matter for additional findings.
A. Mooring Drive
¶31 Although the district court awarded Richard the equity in Mooring Drive when it divided the marital estate, it did not also award Richard any premarital equity in the property for three reasons. First, it found that Richard “formally stipulated that Ross Creek and Mooring Drive were marital property subject to division in this divorce action.” Second, it found that “through a series of refinances, [Richard] transferred equity from Ross Creek to Mooring Drive, and paid expenses associated with both properties with marital funds.” Third, it found that Richard “formally conveyed the property to himself and [Susan] in 2003” when he added Susan’s name to the title. Because we affirm the district court’s decision not to award Richard any premarital equity on the basis of the parties’ stipulation, we do not address the other two reasons the district court relied upon.
¶32 Richard and Susan stipulated that “the Ross Creek and Mooring Drive properties shall remain marital property and shall be subject to equitable division in the parties’ divorce, notwithstanding that the Ross Creek home and Mooring Drive property will no longer be jointly titled.” Richard now claims that despite the language of the stipulation, he “never agreed that he should not be compensated for his premarital and separate contributions to Mooring Drive before the property became marital.” Furthermore, Richard argues, “nowhere in the stipulation did he agree that he was waiving his premarital equity in that property.”
¶33 Richard’s argument is flawed. “Parties to a divorce are bound by the terms of their stipulated agreement.” McQuarrie v. McQuarrie, 2021 UT 22, ¶ 18, 496 P.3d 44. And according to the “ordinary contract principles” that govern “contracts between spouses,” see Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246 (cleaned up), “if the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language,” Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (cleaned up). See also Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (holding that “the best indication of the parties’ intent is the ordinary meaning of the contract’s terms”); Ocean 18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from the Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 22, 474 P.3d 481 (holding that where the “contract is facially unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . without resort to parol evidence” (cleaned up)).
¶34 Richard essentially argues that the district court erred when it refused to go beyond the stipulation’s language and infer his intention from what he omitted. But the district court was correct when it interpreted the parties’ intentions by what the plain language of the stipulation does say and not by what it does not. Therefore, the district court did not abuse its discretion when it abided by the parties’ stipulation and included Mooring Drive as marital property, “subject to equitable division.”
B. The Harley-Davidson
¶35 “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 456 P.3d 276. Thus, the presumption is that property acquired during the pendency of a divorce is marital, not separate. Richard failed to rebut this presumption regarding the Harley-Davidson motorcycle he purchased because he failed to present evidence that he used separate funds.
¶36 Richard argued that he purchased the Harley-Davidson from separate, rather than marital, funds in his proposed findings of fact and conclusions of law.[3] To be clear, Richard does not assert that the Harley-Davidson is separate property because he purchased it after the parties separated or after Susan filed for divorce. Instead, he argues the only funds available to him to purchase the motorcycle came from his “separate premarital retirement income.” Richard’s argument fails for two reasons. First, Richard did not present evidence to support his argument that the funds he used to purchase the motorcycle came from separate, not marital, funds. Instead, Richard essentially places his burden on the district court by asserting, on appeal, that “[t]here was no marital account identified by the district court from which [Richard] could have made that purchase.” But Richard, not the court, bears the burden of identifying where the funds came from that he used to purchase the motorcycle.
¶37 Second, the district court found credibility problems with Richard’s testimony about the Harley-Davidson, concluding that Richard’s “credibility was lacking with regards to his motorcycle purchase.”[4] A district court “is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” or “disregard such testimony if it finds the evidence self-serving and not credible.” Ouk v. Ouk, 2015 UT App 104, ¶ 14, 348 P.3d 751 (cleaned up).
¶38 In sum, as “property acquired during [the] marriage,” the Harley-Davidson is presumptively “marital property subject to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. Richard bore the burden of proof to rebut the presumption that the funds he used to purchase the Harley-Davidson were not marital, and he presented no credible evidence to the district court to support that position. Thus, the district court did not abuse its discretion by including the motorcycle in the marital estate.
C. $30,000 Offset
¶39 Finally, Richard challenges the district court’s decision to include in the marital estate the $30,000 he withdrew from the joint account. The district court agreed with Susan that because Richard had made a unilateral withdrawal from the joint account during the pendency of the divorce, he should be held accountable for that withdrawal. Richard, on the other hand, claims he used the money for marital expenses, paying costs associated with Mooring Drive. Susan argues the money could also have been spent on personal items including travel and motorcycle payments and accessories. “How the money was spent, including whether [the] funds were used to pay legitimate marital expenses or individual expenses,” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 69, 507 P.3d 385 (cleaned up), cert. denied, 525 P.3d 1259 (Utah 2022), is a critical question that needs to be resolved.
¶40 Divorce cases often require district courts to make numerous findings of fact. And generally speaking, “for findings of fact to be adequate, they must show that the court’s judgment or decree follows logically from, and is supported by, the evidence” and such findings “should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned up). Moreover, when it comes to the “unequal division of marital property,” a district court must “memorialize[] in . . . detailed findings the exceptional circumstances supporting the distribution.” Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (cleaned up). “Without adequate findings detailing why [one spouse] should be entitled to such an unequal split of the marital estate, we cannot affirm the court’s award.” Fischer v. Fischer, 2021 UT App 145, ¶ 29, 505 P.3d 56; see, e.g., Rothwell v. Rothwell, 2023 UT App 50, ¶ 57, 531 P.3d 225 (concluding that “we simply do not have enough information” to rule on whether the funds were marital or separate, “let alone to conclude that the district court
. . . erred”).
¶41 We face the same dilemma here. The district court made no findings as to how Richard spent the $30,000. The written ruling merely states, “In June 2019, [Richard] withdrew $30,000 from the joint account without [Susan’s] knowledge or consent and deposited it into his own personal account.” “We will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993). Without “adequate findings” on whether Richard used the funds for marital expenses or not, “we cannot affirm,” nor properly review, the court’s decision to offset the $30,000 against Richard in its division of the marital estate. See Fischer, 2021 UT App 145, ¶ 29. Therefore, we vacate this portion of the decision and remand the matter to the district court for it to enter findings on how the funds were spent.
CONCLUSION
¶42 The district court did not abuse its discretion when it excluded Richard’s exhibits for failure to comply with rule 26(a)(5) of the Utah Rules of Civil Procedure. The district court also did not err in its conclusion that Richard failed to meet the burden of proof for his dissipation claim nor did it abuse its discretion in how it divided the marital estate with respect to Mooring Drive and the Harley-Davidson. We vacate the district court’s decision to offset the $30,000 against Richard when it divided the marital estate and remand the matter for the district court to enter additional findings and to alter its conclusion as may be necessary.
[1] Because the parties share the same surname, we refer to them by their first names, with no disrespect intended by the apparent informality.
[2] Susan invites us to join some other states in drawing a bright-line rule concerning the timing of a dissipation claim and limit pre-separation dissipation claims to those occurring (1) in contemplation of divorce or separation or (2) when the marriage is in serious jeopardy or undergoing an irretrievable breakdown. Under our caselaw, the district court is empowered to consider the “timing of the challenged actions in relation to the separation and divorce” as one of several factors when determining “whether a party should be held accountable for the dissipation of marital assets.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (cleaned up). We see no need to alter this approach. Assessing timing as one factor among many provides the greatest flexibility to the district court to consider all the circumstances in a particular case, and we believe the district court is in the best position to evaluate the importance of such evidence on a case-by-case basis.
[3] Because the district court directed the parties to submit proposed findings of fact and conclusions of law in lieu of closing arguments, Richard’s argument was preserved for our review.
[4] Indeed, in its oral ruling, the court stated that Richard “lied to the Court about the purchase of the motorcycle.”
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 M.M. (Mother) appeals the juvenile court’s order terminating her parental rights to R.G. (Child). Mother argues she received ineffective assistance of counsel because the court would not allow her lawyer (Counsel) to withdraw from representing her at trial despite the fact that Mother did not appear at trial. Mother has not persuaded us that the court was wrong to deny Counsel’s motion to withdraw or that Counsel was ineffective as a result, and we affirm the court’s termination order.
BACKGROUND
¶2 Child was born on January 12, 2020. The following day, the Division of Child and Family Services (DCFS) received a referral indicating that Mother tested positive for illegal substances both at the time of Child’s birth and during her pregnancy. The referral also reported that Child was Mother’s sixth biological child and that Mother had lost custody of her other five children. Thereafter, a DCFS caseworker put a safety plan in place and Child was allowed to leave the hospital and return home with Mother and Child’s biological father, G.G. (Father).[1] Approximately one month later, the juvenile court found that Mother had abused Child by using illegal substances during her pregnancy and that Child was a sibling at risk of abuse or neglect. Child was removed from Mother’s custody and placed in the custody of DCFS.
¶3 The juvenile court ordered reunification services for Mother. After a year working with her, the court terminated reunification services, finding that Mother had failed to comply with the court’s orders and the service plan and to consistently engage in services. The matter proceeded to a termination trial that took place in November 2021.
¶4 Despite having proper notice, Mother failed to appear at the termination trial. Counsel moved to be released due to this failure, and the juvenile court granted Counsel’s motion. The trial then proceeded by proffer. At the close of trial, the court entered an order terminating Mother’s parental rights, which Mother subsequently appealed. Thereafter, the State, the guardian ad litem (GAL), Mother, and Father filed a stipulated motion for summary reversal, wherein all parties agreed that this first termination trial “failed to comport with due process.” This court granted the motion and accordingly vacated the termination order and remanded for a new trial.
¶5 The second termination trial occurred over the course of three days in April 2022. Approximately three weeks before trial, the juvenile court issued an order informing the parties that the trial would be held in person.[2] In the order, the court noted that Mother had made a “request to appear virtually.” The court granted the request, stating that Mother “may be allowed to attend virtually if she joins the hearing by video and her video remains on camera throughout the hearing.”
¶6 Mother did not appear—virtually or in person—during any part of the three-day termination trial. On the first day of trial, Counsel asked the court for a continuance, arguing that Mother had “a health concern.” But Counsel did not provide any additional information or documentation to support this claim, and the court denied the request, finding that Counsel could not establish that a continuance was warranted under rule 54 of the Utah Rules of Juvenile Procedure.
¶7 The trial then proceeded with Father as the first witness. In the middle of Father’s testimony, Counsel interrupted and asked the court to be “released.” Counsel explained that she was in a “tricky situation . . . attempting to defend a termination petition with no client.” The State and the GAL objected to Counsel’s request to withdraw. Both parties acknowledged that the withdrawal of counsel in the first termination trial had been problematic and that it had likely been a contributing factor in the decision to retry the case.[3] However, the GAL opined that if Counsel complied with the withdrawal process set forth in rule 53 of the Utah Rules of Juvenile Procedure, he would not oppose Counsel’s request to withdraw. But when the court questioned Counsel about whether she had complied with the rule 53 requirements, and specifically whether she had informed Mother that she would be withdrawing, she acknowledged that she had not.
¶8 After considering the parties’ arguments, the court denied Counsel’s motion to withdraw. The court explained that while it understood its decision put Counsel “in a precarious situation,” Counsel had not met the criteria to withdraw pursuant to rule 53. The court asked Counsel to “do the best you can,” and informed her that the court would “readdress [the request] if there’s more information that comes through.”
¶9 Counsel appeared without Mother on the remaining two days of trial. At the close of trial, the juvenile court entered a comprehensive order terminating Mother’s parental rights to Child.
ISSUE AND STANDARDS OF REVIEW
¶10 Mother now appeals the juvenile court’s termination order, asserting that Counsel rendered constitutionally ineffective assistance because Counsel had a “legal conflict” with Mother. Although Mother frames the issue as an ineffective assistance of counsel claim, her argument mostly implicates the propriety of the juvenile court’s decision to deny Counsel’s motion to withdraw. “Whether to allow an indigent [party’s] attorney to withdraw . . . is a matter committed to the [juvenile] court’s sound discretion and will be reversed only for an abuse of discretion.” State v. Scales, 946 P.2d 377, 381 (Utah Ct. App. 1997). “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re S.S., 2015 UT App 230, ¶ 20, 360 P.3d 16 (quotation simplified).
ANALYSIS
¶11 Mother argues the juvenile court’s refusal to allow Counsel to withdraw after Mother failed to appear for trial gave rise to a conflict of interest between Mother and Counsel that resulted in Mother receiving ineffective assistance of counsel. According to Mother, the court’s “erroneous ruling” created a conflict by placing Counsel in a position that required Counsel “to present damaging evidence just to placate [Mother] and demonstrate to the Court [that Counsel] was ‘doing her best.’” In essence, Mother’s argument raises two questions: (1) whether the juvenile court erred in denying Counsel’s motion to withdraw and (2) whether Mother received ineffective assistance of counsel as a result of the court’s ruling. Because we conclude the court did not abuse its discretion in denying Counsel’s motion to withdraw, we likewise determine that Mother did not receive ineffective assistance because of that decision.
¶12 Motions for appointed counsel to withdraw are governed by rule 53 of the Utah Rules of Juvenile Procedure. That rule provides that “[c]ourt-appointed counsel may not withdraw as counsel of record except upon motion and order of the court.” Utah R. Juv. P. 53(b)(2). A motion to withdraw must be made “either in writing or orally before the court at a hearing” and must include
(i) A certification from counsel that the represented party has been informed of the motion to withdraw and their right to counsel; and
(ii)A certification from counsel that the represented party has been informed of their rights to appeal, and the availability of post judgment motions and motion to stay pending appeal; or
( ) The efforts counsel has made to inform the represented party of subsections (c)(1)(i) and (c)(1)(ii).
Id. R. 53(c)(1).
¶13 Here, Counsel moved to withdraw shortly after the termination trial began. After listening to the State’s and the GAL’s opposition to her motion, Counsel admitted to the juvenile court that she could not meet the certification requirements under rule 53(c). Counsel explained that prior to trial, she received a memo indicating that the “main” reason the case had been remanded for a new trial “was the release of counsel” in the first trial. In light of this, Counsel stated, “[I] mention[ed] to [Mother] that it was possible that I would be trying to defend a case, a termination petition without her, without a client. So I have not notified her that the Court would release me.” After considering the parties’ arguments, the court denied Counsel’s motion to withdraw, explaining that Counsel had not made the certifications required under rule 53(c). In addition, the court noted that release under rule 53(b) is discretionary.
¶14 In light of the foregoing, we cannot say the juvenile court abused its discretion in denying Counsel’s motion to withdraw. The court explained on the record the reasons for denying the motion. Importantly, the court found that Counsel had not made the required rule 53(c) certifications supporting the motion, inasmuch as Counsel had admitted that Mother had not been informed that Counsel would be moving to withdraw. Moreover, the court found that even if the proper certifications had been made, the ultimate decision to approve the motion was discretionary with the court. Here, even assuming Counsel could certify that she spoke to Mother about her right to representation and appeal rights, we cannot say that it would have been an abuse of the court’s discretion to deny the motion. Among other reasons the court might have exercised its discretion to deny the motion include that the motion was not made until after the start of trial, despite ample notice of the proceedings; that the release of counsel in the first trial was an issue that had likely been a contributing factor in the need for a remand; and that it was Mother’s conduct in failing to appear at trial, rather than Counsel’s actions, which prompted Counsel to make the motion.[4]
¶15 Notwithstanding the correctness of the juvenile court’s denial of Counsel’s motion to withdraw, Mother contends the representation Counsel provided to Mother in her absence did not amount to effective assistance. “To establish her ineffective assistance of counsel claim, Mother must show that Counsel’s performance was objectively deficient and that Counsel’s deficient performance prejudiced the case.” See In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). Because failure to establish either deficient performance or prejudice is fatal to an ineffective assistance claim, we are free to address Mother’s claim under either prong. See State v. Rosen, 2021 UT App 32, ¶ 8, 484 P.3d 1225, cert. denied, 496 P.3d 714 (Utah 2021). Accordingly, we address only the deficient-performance prong here.
¶16 To demonstrate deficient performance, Mother must persuade this court that, considering the record as a whole, Counsel’s performance was objectively unreasonable. See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. But Mother cannot do so here, where Counsel’s continued participation at trial comported with the juvenile court’s proper denial of Counsel’s motion to withdraw and Mother’s claim that Counsel’s continued representation in her absence harmed her.
¶17 First, Mother was not required to appear at the termination trial. As this court has explained, “there is no absolute statutory or constitutional right to attend the trial in child welfare matters, including termination proceedings.” In re Z.Z., 2013 UT App 215, ¶ 20, 310 P.3d 772 (quotation simplified), cert. denied, 324 P.3d 640 (Utah 2014). “Notice of the proceedings is alone sufficient to allow a [parent] to exercise the right to be present by appearing, or to waive that right through voluntary absence.” Id. (quotation simplified). Here, Mother had actual notice of the proceeding. As Mother’s appellate counsel concedes, “[t]he [termination] trial commenced with an expectation that [Mother] would sign on as a virtual participant to the hearing.” That Mother chose not to appear may have put her at a disadvantage, but it does not follow that Counsel was ineffective as a result.
¶18 Second, despite Mother’s failure to appear at trial, she was still entitled to representation. A parent’s right to counsel at a termination trial is statutorily based. See In re A.E., 2001 UT App 202, ¶ 10, 29 P.3d 31; see also Utah Code § 78B-22-201(1)(b). To safeguard this right, appointed counsel may be properly waived only if “the record as a whole reflects the parent’s reasonable understanding of the proceedings and awareness of the right to counsel.” In re A.B., 2017 UT App 99, ¶ 5, 400 P.3d 1107 (per curiam) (quotation simplified); see also In re A.E., 2001 UT App 202, ¶¶ 12–13. Here, Mother did not discuss with the juvenile court any desire to waive her right to counsel, nor did the court engage in a colloquy regarding a potential waiver. On these facts, it would have been inappropriate for the court to conclude that Mother had waived her right to counsel. By requiring Mother to be represented absent a valid waiver, the juvenile court helped to protect Mother’s interests in a fair trial. Indeed, even without Mother present, Counsel was present to lodge objections, draw attention to any deficiencies in the State’s case, and ensure that Mother’s procedural rights were protected.
¶19 Third, and perhaps most notably, this court has already rejected the notion that a party can assert a claim of ineffective assistance where that party “failed to communicate with counsel between the time of the pretrial hearing and the termination trial and failed to appear at the trial.” In re M.L.M., No. 20070465-CA, 2007 WL 2446497, at *2 (Utah Ct. App. Aug. 30, 2007) (per curiam). Without client participation, counsel is substantially limited in presenting an effective defense. But this fault lies with the client, not with counsel. And this distinction matters. Indeed, a deficient defense caused by counsel’s actions may be grounds for reversal, whereas a mere inability to present the strongest defense— particularly when owing to the client’s failure to appear or to assist—does not warrant reversal. And specifically in this instance, where Mother claims that in order to appease the court rather than protect her client, Counsel allowed negative testimony from Father and called unhelpful and damaging witnesses, Counsel’s inability to present the strongest defense was not the fault of Counsel. Even if we were to agree that Counsel’s performance at trial was somehow deficient—which we do not— it was Mother’s own failure to appear that created the situation.
¶20 In sum, because the juvenile court complied with rule 53 of the Utah Rules of Juvenile Procedure when denying Counsel’s motion to withdraw, the court did not abuse its discretion in denying the motion. Further, the court’s action in properly denying the motion did not result in Mother receiving ineffective assistance of counsel because it was not objectively unreasonable for Counsel to continue to represent Mother at trial after the juvenile court denied the motion to withdraw and Mother failed to appear for trial.
CONCLUSION
¶21 The juvenile court did not abuse its discretion when it denied Counsel’s motion to withdraw, thereby requiring Counsel to represent Mother at trial despite Mother’s absence. In denying the motion, the juvenile court adhered to rule 53 of the Utah Rules of Juvenile Procedure, and the decision was therefore not an abuse of the court’s discretion. And because Mother has not demonstrated how Counsel’s representation was ineffective, nor has she alleged that the juvenile court’s termination analysis was flawed in any other respect, we affirm the court’s order terminating Mother’s parental rights.
[1] Father’s parental rights to Child were terminated at the same time as Mother’s. Because this appeal does not concern Father, we recount the facts that relate specifically to Mother.
[2] Prior to the entry of this order, the trial was scheduled to be conducted remotely, in accordance with the Administrative Order for Court Operations During Pandemic. See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (June 26, 2020), https://legacy.utcourts.gov/alerts/docs/202 00626%20-%20Amended%20Pandemic%20Administrative%20Or der.pdf [https://perma.cc/9KE8-9U7R].
[3] As explained above, the first termination order was vacated based on the parties’ stipulated motion for summary reversal. Consequently, the merits of the first termination order were not briefed, and this court’s order reversing and remanding did not resolve the merits of the issues raised on appeal. Therefore, while all parties acknowledge that the absence of counsel in the first trial was an issue, there is no appellate decision affirmatively stating that this was the basis for reversal.
[4] Mother resists this conclusion, asserting that while rule 53(c) requires “certification” by counsel about certain advisements to the client, this court “must weigh the purpose, practicality and advisability of strict compliance [with rule 53(c)] against the institutional harm of ‘setting appointed counsel up’ to be forced into the untenable position [Counsel] was placed in this case.” But Mother’s position ignores that “it is our duty and practice to adhere to the plain language of a rule.” Cougar Canyon Loan, LLC v. Cypress Fund, LLC, 2020 UT 28, ¶ 13, 466 P.3d 171 (quotation simplified). Because of this, “where an appellant presents compelling reasons for a policy shift that is not currently supported by the plain language of our rules of procedure, we do not rewrite the rule on the fly. Rather, we refer the issue to the appropriate rules committee for additional study, and, if appropriate, we amend the language of the relevant rule through our normal rule-making process.” Id. ¶ 15 (quotation simplified).
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Following a multi-day bench trial, the juvenile court entered an order terminating A.M.’s (Mother) parental rights to her child, M.M. (Child). Mother contends the court erred in denying her reunification services and in concluding termination of her parental rights was strictly necessary. Because Mother has not persuaded us that the court committed reversible error, we affirm its order terminating Mother’s parental rights.
¶2 Mother is the biological parent of three children: Child, born in 2015; A.M. (Sister), born in 2018; and B.B. (Brother), born in 2019. All three children have different biological fathers. This appeal concerns only Child. Nevertheless, a complete understanding of the events giving rise to this case necessitates a recounting of the background as it relates to all three children.
¶3 In December 2016, prior to the birth of Sister and Brother, Child’s maternal grandmother (Grandmother) and maternal step-grandfather (Grandfather) noticed “large bruises on [Child’s] hips and thighs when they put him into the bath.” The following day, a caseworker from the Division of Child and Family Services (DCFS) met with Grandmother and Grandfather and examined Child. The caseworker observed the same bruising on Child that had been seen the day before, as well as a “small bruise in [Child’s] hairline above his forehead.” Child was transported to the hospital where a doctor observed the bruising and opined that “the bruising is concerning for abuse because of its location, linear component, the large size, and the lack of history explaining them.”
¶4 A few months later, in February 2017, Child was brought to the hospital for a breathing treatment for his asthma. While at the hospital, a doctor again observed “linear bruising on [Child’s] buttocks,” which she described as a “classic bruise found with spanking or inflicted trauma.” She explained the bruising was consistent with “excessive,” “repeated high-force spanking.”
¶5 During the time of these injuries, Child had been residing with Mother, Mother’s husband (Stepfather),[2] Grandmother, and Grandfather, and he had also attended daycare. Ultimately, no one was able to provide an explanation for the bruising. As a result, the juvenile court concluded that Child “has been abused by an unknown perpetrator” and adjudicated him dependent as to Mother. The court allowed Child to remain with Mother, contingent on her compliance with a safety plan and completion of court-ordered services. In December 2017, after Mother had received a year of services, the court terminated its jurisdiction and returned permanent custody and guardianship of Child to Mother.
¶6 The following month, Sister was born. Brother was born a year and a half later.
¶7 In August 2019, Brother suffered a series of abusive episodes. First, Mother said she “fell going down some stairs” while holding Brother. Thereafter, Brother’s father picked Brother up from a babysitter and became concerned that Brother was vomiting and appeared dehydrated. Brother was taken to the doctor for examination but was sent home with his father because the cause of the vomiting was “undetermined.” A few weeks later, Brother’s father again observed that Brother had been vomiting and appeared dehydrated. Brother was taken to the hospital for examination.
¶8 Upon examination, Brother’s head appeared “swollen.” A subsequent CT scan revealed a “large” brain bleed and a skeletal survey revealed “multiple healing rib fractures.” A doctor evaluated Brother the following day and expressed that Brother’s initial vomiting was “consistent with the brain injury” and a “sign” that the brain injury had occurred. She noted that although Brother’s head circumference had not been measured during his initial visit to the doctor, by the time of his second visit—which occurred approximately two weeks later—Brother “had a massive head.” She also opined that Brother’s injuries were caused by one of his caregivers and were “consistent with inflicted trauma and child abuse.” When questioned, both parents denied any involvement or knowledge of injuries to Brother. However, based on her conversation with both parents, the doctor had “much more concern” that Mother had caused Brother’s injuries.
¶9 Based on Brother’s injuries, the State filed a verified petition for custody and guardianship on behalf of all three children in August 2019. In the petition, the State asked the juvenile court to find that “[Brother] is severely abused by [Mother]” and that Child and Sister were “siblings at risk” and “neglected” as to Mother.
¶10 Over the next several months, the juvenile court transferred temporary custody of Sister and Brother to their respective fathers. Although the State requested that Child be removed from Mother’s custody, the court allowed Child to remain home with Mother on the condition that she comply with a safety plan. The safety plan required “line of sight supervision” by Grandmother and Grandfather for “any contact” between Mother and Child. But Mother did not abide by the safety plan, and in January 2020, after a DCFS caseworker observed a series of three events of non-compliance, the court transferred Child to DCFS’s custody, finding that Mother had “substantially endangered” Child’s welfare. Child was then placed in a foster care home.
¶11 In July 2020, Mother appeared before the juvenile court for adjudication of the State’s verified petition for custody.[3] After negotiations with Mother, the State agreed to amend the petition by removing the allegation that Mother had severely abused Brother, replacing it with an allegation that Brother suffered “severe physical abuse while in the care of [Mother].” Following this amendment, Mother proceeded with adjudication and entered a plea pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by which she neither admitted nor denied the allegations but they were deemed admitted as a matter of law.
¶12 At the close of the hearing, the court found by clear and convincing evidence that Brother had suffered “severe physical abuse while in the care of [Mother].” Accordingly, the court found that “[Sister] and [Child] are siblings at risk” and were “neglected” as to Mother. In addition to adjudicating the children’s statuses, the court also substantiated the DCFS supported finding of severe physical abuse of Brother while in Mother’s care. The court ordered that Brother and Sister continue in the temporary custody of their respective fathers and that Child continue in the custody of DCFS.
¶13 Shortly thereafter, the juvenile court held a disposition hearing during which it resolved the custody petition as to Brother and Sister by granting custody and guardianship to their respective fathers and terminating jurisdiction. The court requested briefing on the issue of whether Mother should be provided reunification services for Child. Citing the allegations that Mother physically abused her children, even after receiving court-ordered services, as well as Child’s success in his current foster placement, the State and the guardian ad litem (GAL) argued that reunification services were not in Child’s best interest and accordingly requested that services not be provided. In September 2020, the court entered an order denying reunification services to Mother.[4] In April 2021, the court set Child’s primary permanency goal as adoption with his current foster parents.
¶14 The next month, the State filed a petition to terminate Mother’s parental rights to Child. The matter proceeded to an eight-day bench trial that took place in March and April 2022.
¶15 At trial, several therapists who had provided mental health services to Mother testified. All agreed that Mother suffered from trauma and that treatment was needed to address it. These therapists further testified that while Mother had attended some therapy sessions, Mother had either canceled, rescheduled, or failed to attend many of the sessions, and that although Mother had made some progress in therapy, she still had a long way to go to process her trauma.
¶16 Child’s therapist and foster parents testified regarding Child’s communications with them, as well as Child’s improvements since his removal from Mother’s custody. Child’s therapist explained that Child suffered from “separation anxiety disorder and unspecified trauma and stressor-related disorder” but that these conditions had greatly improved while Child was living with his foster parents. Likewise, Child’s foster mother testified that Child had grown emotionally while in her care. She detailed Child’s emotional bonds with the members of his foster family and recounted how it was “an easy decision” to pursue adopting Child. Moreover, Child’s therapist and foster mother both testified that Child had reported witnessing Mother “hit his sibling on the head” and that Child had also reported that Mother had hit him.
¶17 Following trial, the juvenile court issued an order terminating Mother’s parental rights to Child. The court found the testimony and evidence presented to be true, and therefore concluded that the State had proved by clear and convincing evidence three statutory grounds for termination. The court also found that it was in Child’s best interest and strictly necessary to terminate Mother’s parental rights. In reaching this conclusion, the court noted it had “considered the specific circumstances” of the case, including Child’s “wishes to remain in his current foster home” and the feasibility of an alternative to termination, such as a permanent guardianship.
ISSUES AND STANDARDS OF REVIEW
¶18 Mother now appeals the juvenile court’s order terminating her parental rights to Child, raising two issues for our review. First, Mother argues the court erred when it refused to order reunification services to her. We review the juvenile court’s interpretation of the law for correctness; however, “[t]he ultimate decision whether to provide or deny reunification services is a determination that we review for abuse of discretion.” In re Z.G., 2016 UT App 98, ¶ 4, 376 P.3d 1077.
¶19 Second, Mother argues the juvenile court erred when it concluded that termination of her parental rights was strictly necessary. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified).
ANALYSIS
I. Reunification Services
¶20 Mother first argues the juvenile court erred when it denied reunification services to her. Specifically, she contends the court misinterpreted the law and abused its discretion when it (1) failed to provide the “necessary findings for the presumption against reunification services to apply” and (2) improperly weighed the statutory factors a court must use when determining whether to order reunification services.
¶21 After a juvenile court adjudicates a child as abused, neglected, or dependent, the court must conduct a dispositional hearing. See Utah Code § 78A-6-311(1) (2020). At that hearing, if the court orders that the child continue in the custody of DCFS, the court shall (1) “establish a primary permanency plan” and (2) “determine whether, in view of the primary permanency plan, reunification services are appropriate.” Id. § 78A-6-312(2).
¶22 The decision to order reunification services is therefore discretionary with the juvenile court, and “parents have no constitutional right to receive these services.” In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d 1153 (quotation simplified); see also In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998); Utah Code § 78A6-312(20)(a) (2020). Accordingly, we will overturn the court’s decision only if it “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
¶23 In determining whether to order reunification services, the child’s “health, safety, and welfare shall be the court’s paramount concern.” Utah Code § 78A-6-312(5) (2020). And in making this determination, the juvenile court must consider a non-exclusive list of statutory factors, including the following:
· “failure of the parent to respond to previous services or comply with a previous child and family plan;”
· “the fact that the minor was abused while the parent was under the influence of drugs or alcohol;”
· “any history of violent behavior directed at the child or an immediate family member;”
· “whether a parent continues to live with an individual who abused the minor;”
· “any patterns of the parent’s behavior that have exposed the minor to repeated abuse;”
· “testimony by a competent professional that the parent’s behavior is unlikely to be successful; and”
· “whether the parent has expressed an interest in reunification with the minor.”
Id. § 78A-6-312(23). However, in cases involving “obvious sexual abuse, sexual exploitation, abandonment, severe abuse, or severeneglect,” the court has no duty to provide services. Id. § 78A-6-312(4). And several circumstances—if found by clear and convincing evidence—create “a presumption that reunification services should not be provided to a parent.” Id. § 78A-6-312(21).
¶24 Before the juvenile court, the State and the GAL argued that reunification services should not be offered to Mother. While only the State argued that the presumption against providing services should apply, both parties argued that the statutory factors weighed in favor of denying reunification services. Ultimately, the court denied services, finding they were not “appropriate” “given the fact that [Mother] had services before.”
¶25 Mother takes issue with the juvenile court’s determination on two grounds. As an initial matter, she asserts the court made “no findings in its reunification order, much less findings by clear and convincing evidence,” that would allow the court to apply the presumption against providing reunification services. But even if Mother’s assertion is correct and a presumption against reunification services does not apply in this case, Mother ignores that the court may still properly deny services regardless of whether a presumption exists.[5] And on the facts of this case, the court did not abuse its discretion in concluding that denying reunification services to Mother was appropriate.
¶26 Next, Mother asserts the juvenile court improperly weighed the statutory factors a court must consider when determining whether to provide reunification services. According to Mother, “four[6] of the seven factors weigh in favor of granting Mother reunification services” and “the remaining three factors do not tip the balance towards not offering reunification services.” We disagree.
¶27 First, Mother contends the juvenile court improperly determined she had failed to respond to reunification services in the past. See Utah Code § 78A-6-312(23)(a) (2020) (requiring courts to consider the “failure of the parent to respond to previous services or comply with a previous child and family plan” when determining whether to order reunification services). She claims that the dismissal of the first protective services case in December 2017 and the full restoration of custody of Child shows she responded to services and complied with her previous family plan. But in concluding that this factor weighed against Mother, the court considered Mother’s compliance in the first protective services case as well as her actions after that case was closed. The court explained,
I see that you’ve had services before on [Child]. We had a [protective supervision services] case. . . . You engage in services. We think things are good. We close the case.
Then not much longer . . . we have a severe abuse to [Child]’s younger sibling . . . . We’ve already done reunification services or services by DCFS for you on [Child] and here we are again with a severely abused child.
¶28 This explanation is sufficient to show that the court adequately considered whether Mother had failed to respond to previous reunification services. The court weighed Mother’s prior compliance against her actions following the completion of the original services. Because the court’s decision is not “against the clear weight of the evidence,” a “measure of deference is owing” to the court’s decision. In re E.R., 2021 UT 36, ¶ 32 (quotation simplified). Accordingly, we will not perform an “independent ‘reweighing’ of the evidence” but will instead “respect[]” the court’s decision. Id.
¶29 Second, Mother contends the juvenile court improperly weighed against her the factors concerning “any history of violent behavior directed at the child or an immediate family member” and “any patterns of the parent’s behavior that have exposed the minor to repeated abuse.” See Utah Code § 78A-6-312(23)(c), (e) (2020). Specifically, Mother asserts these factors do not weigh against her because she “was not adjudicated as abusing [Child] in 2017,” there are “no other allegations” that Child or Sister have been otherwise injured, and it has “never been established that Mother harmed [Brother].”
¶30 But Mother’s arguments on this point ignore substantial record evidence indicating that Mother did have a history of violent behavior directed at Child or Child’s immediate family members and that Mother’s behavior exposed Child to repeated abuse. While Mother is correct that she was not adjudicated as abusing Child in 2017, Child’s statements to his foster mother and therapist provide substantial evidence of Mother’s history of violent behavior toward Child and other immediate family members. Notably, the juvenile court found that during a therapy session, Child credibly reported to his therapist that he had witnessed Mother “hit his sibling on the head.” And at trial, Child’s foster mother testified that on multiple occasions, Child told her that Mother had hit him. Further, as the juvenile court found, Child, Brother, and Sister were all exposed to repeated abuse while in Mother’s care. Indeed, Child and Sister were found to be “siblings at risk” and “neglected” based on Mother’s rule 34(e) plea to the allegation that Brother suffered “severe physical abuse while in the care of [Mother].” This exposure occurred subsequent to the court’s 2017 determination that Child had been “abused by an unknown perpetrator” during a time when Mother “was the primary caregiver.”
¶31 The juvenile court did not abuse its discretion by deciding not to order reunification services for Mother. In reaching this decision, the court evaluated the evidence before it, and Mother has not demonstrated that the court’s decision was against the clear weight of the evidence.[7]
II. Strictly Necessary
¶32 Next, Mother argues the juvenile court erred in determining it was strictly necessary to terminate her parental rights to Child. In particular, Mother contends the court’s strictly necessary analysis was “improperly brief and conclusory.”
¶33 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[8] In re S.T., 2022 UT App 130, ¶ 25, 521 P.3d 887 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶ 63, 472 P.3d 827 (quotation simplified).
¶34 When evaluating whether termination is strictly necessary,
the juvenile court must address whether “the child can be equally protected and benefited by an option other than termination.” Id. ¶ 66. This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency. In re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606. Instead, the court must analyze the “particularized circumstances of the case” and “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re S.T., 2022 UT App 130, ¶ 26 (quotation simplified). If another option exists where “the child can be equally protected and benefited,” then “termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” In re B.T.B., 2020 UT 60, ¶ 66.
¶35 In determining that it was strictly necessary to terminate Mother’s parental rights, the juvenile court explicitly stated that it “considered whether a placement with Permanent Guardianship would equally protect and benefit [Child].” Ultimately, the court decided against such an arrangement, finding it was not in Child’s best interest “as it does not provide the permanency that he seeks and wishes for.” Citing In re J.A.L., 2022 UT 12, 506 P.3d 606, Mother contends this conclusion was error because it is based on the categorical concern that a permanent guardianship is not as permanent as an adoption.[9] Mother’s argument is unavailing, however, because it selectively focuses on the court’s conclusion without considering it in the fuller context.
¶36 Here, the juvenile court was not presented with any feasible alternative option for a permanent guardianship placement, nor has Mother proposed one on appeal. At the time of trial, the only individuals that had previously been involved in the case were not feasible placement options. Indeed, Grandfather had failed to comply with the safety plan by allowing Mother to interact with Child outside his “line of sight,” which ultimately led to Child’s removal; Grandmother and Mother were estranged; and the State had initiated termination proceedings for Father.[10] Consequently, there was “no other option, short of termination and adoption, that would have otherwise been apparent to the juvenile court.” See In re D.G., 2022 UT App 128, ¶ 8 n.2, 522 P.3d 39, cert. denied, 527 P.3d 1106 (Utah 2023). And “where only one feasible custody option exists, the categorical concern that adoption is more stable than a permanent guardianship is not implicated.” In re S.T., 2022 UT App 130, ¶ 32 n.6 (quotation simplified).
¶37 In sum, given Child’s “strong emotional ties with [his] foster parents,” see id., and the lack of “any remotely feasible alternatives to termination and adoption,” see In re D.G., 2022 UT App 128, ¶ 8 n.2, it was entirely proper for the juvenile court to find that it was strictly necessary to terminate Mother’s parental rights.[11]
CONCLUSION
¶38 The juvenile court did not err in terminating Mother’s parental rights to Child. The court’s decision to deny Mother reunification services was not an abuse of discretion because the court’s decision is well supported by evidence in the record. And the court did not err when it found that termination of Mother’s parental rights was strictly necessary because there were no feasible alternative placement options other than termination and adoption. Affirmed.
[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).
[2] Stepfather and Mother married one day after DCFS made the initial home visit to observe Child. Prior to the marriage, Stepfather spent “multiple nights in a row” in the home with Mother and Child.
[3] Although the juvenile court adjudicated Child’s status as to Mother in July 2020, the written order was not entered until August 2021—approximately one year after the adjudication hearing. Mother appealed the written adjudication order, arguing that she was deprived of due process by the court’s delay in entering the order, but this court affirmed.
[4] At the time reunification services for Mother were denied, an Interstate Compact on the Placement of Children (ICPC) request form had been sent to Child’s biological father (Father), who resides in South Carolina. Following denial of services for Mother, the juvenile court changed Child’s primary permanency goal from reunification with Mother to reunification with Father with a concurrent goal of adoption. During a subsequent permanency hearing, the court terminated reunification services to Father due to his failure to comply with any of the three ICPC requests initiated by DCFS and changed Child’s primary permanency goal to adoption with his current foster parents. Father’s parental rights to Child were then terminated in June 2022.
[5] Moreover, Mother’s position on this point seems to ignore the juvenile court’s own explanation of its reasoning to deny reunification services. At the disposition hearing, the court explicitly agreed with Mother’s counsel that Child did not qualify as a “severely abused child,” which would create a presumption against providing services. As a result, the court stated, “I don’t really attach the presumption that [Mother] should not receive reunification services. I’m kind of looking towards the presumption that she should . . . .”
[6] These factors are (1) “the fact that the minor was abused while the parent was under the influence of drugs or alcohol,” (2) “whether a parent continues to live with an individual who abused the minor,” (3) “testimony by a competent professional that the parent’s behavior is unlikely to be successful,” and (4) “whether the parent has expressed an interest in reunification with the minor.” See Utah Code § 78A-6-312(23)(b), (d), (f), (g) (2020).
[7] Mother challenges the adequacy of the juvenile court’s findings in support of its decision not to order reunification services by asserting that “the juvenile court made no findings in its reunification order.” But Mother’s assertion is overbroad; the juvenile court did make explicit factual findings regarding a number of the facts we have noted as supportive of its determination not to order services. And, while we acknowledge that the court did not explicitly disclose all the analytic steps it took in deciding not to provide services, this is a case where the court’s “unstated findings can be implied” because “it is reasonable to assume that the [juvenile] court actually considered the controverted evidence and necessarily made . . . finding[s] to resolve the controversy, but simply failed to record the factual determination[s] made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). It is not a case “where there is a matrix of possible factual findings and we cannot ascertain the [juvenile] court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified). The evidence and arguments presented below, coupled with the juvenile court’s decision not to order services, necessarily imply that the juvenile court found the factors in Utah Code subsections 78A-6312(23)(c) and (e) weigh against the provision of services based on the findings and evidence we have outlined above. Although on this record the unstated steps of the juvenile court’s analysis can be implied, we caution courts to ensure that the analytic steps taken in support of such fact-sensitive decisions are fully articulated in an oral or written ruling, order, or judgment. Detailed findings aid appellate review and reduce the likelihood of reversal.
[8] “To terminate a parent’s rights, Utah law requires that both elements of a two-part test are satisfied. First, the court must find that one or more of the statutory grounds for termination are present. Second, the court must find that termination of the parent’s rights is in the best interest[] of the child.” In re S.T., 2022 UT App 130, ¶ 25 n.5, 521 P.3d 887 (quotation simplified). Here, Mother acknowledges the juvenile court properly found at least one ground to terminate her parental rights. Accordingly, our focus is limited to only the court’s best interest determination.
[9] In a related vein, Mother also asserts the juvenile court’s decision was conclusory because the court focused only on negative testimony and overlooked the positive testimony of several of Mother’s therapists. But this position ignores that “Lilt is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies.” In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996) (per curiam). As such, we decline to reweigh the evidence.
[10] The lack of alternative options was reiterated through the trial testimony of Child’s great-uncle (Uncle). Uncle testified that Mother and Grandfather were estranged, largely due to Grandfather’s role in having Child removed from Mother’s custody, and that Mother and Grandmother were estranged because Grandmother is “a very toxic individual” and “abusive toward” Mother. Uncle also explained that although he wanted to be “involved” with Child, he was not in a position for Child to be placed with him. Lastly, Uncle noted that his brother had applied for Child to be placed with him, but his application was not approved.
[11] We again caution juvenile courts to “adequately disclose[]”— either in an oral or written ruling—all the “analytic steps” they take when they conduct a best interest analysis. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782 (describing a challenge to the adequacy of findings as raising the issue of whether “the findings as a whole adequately disclosed the analytic steps taken by the trial court”). Here, however, even assuming that the court’s articulation of its strictly necessary analysis could have or even should have been more robust, without any feasible alternatives to termination and adoption, Mother cannot show that the court’s finding on this point was against the clear weight of the evidence. See generally In re J.J.W., 2022 UT App 116, ¶ 19, 520 P.3d 38 (“[I]n some instances (e.g., where the existence of a particular option would not be readily apparent to the court), a parent may need to expressly ask a [juvenile] court to consider a specific non-termination option in order to properly preserve the right to argue, on appeal, that the court did not adequately consider that option.”). But in cases where a feasible alternative placement option does exist, a court assessing strict necessity must explain, “on the record,” why adoption and termination of the parent’s rights would better further the child’s best interest than the alternative option. See In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827.
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
HARRIS, Judge:
¶1 This case arises from a protracted and multi-faceted dispute among siblings and stepsiblings regarding the use and distribution of the assets in a trust created by Dean Harding. After four years of litigation and a six-day bench trial, the trial court determined that Rickie Taylor, acting as trustee of his deceased stepfather’s trust, engaged in numerous acts of self-dealing and other breaches of fiduciary duties resulting in more than $5 million in damages. After trial, the court also determined—sua sponte—that Margene Harding (Taylor’s mother and the lifetime beneficiary of the trust) had been vicariously liable for Taylor’s actions, and therefore held Margene’s estate (the Estate) jointly and severally responsible for the damages Taylor caused. The court then entered judgment against Taylor and the Estate jointly and severally, and in favor of petitioner Robert Harding, in amounts approximating $5 million. Taylor and the Estate now each separately appeal.
¶2 In his appeal, Taylor raises several challenges. First, he takes issue with the court’s order denying his motion to amend his answer to add certain additional affirmative defenses. Second, he challenges the court’s summary judgment order in which the court determined, as a matter of law, that Taylor made unlawful distributions from the trust. Next, Taylor appeals the court’s orders excluding his expert witnesses. Finally, Taylor makes several complaints about the court’s judgment against him, including the amount of damages ordered. As discussed below, we reject most of Taylor’s complaints, although we find merit in one aspect of his challenge to the court’s damages award.
¶3 In its appeal, the Estate also raises several issues for our consideration. First, it challenges the court’s sua sponte determination that it should be jointly and severally liable for the damages caused by Taylor’s wrongdoing. Second, the Estate appeals the court’s decision regarding the appropriate interest rate to be applied to a debt two of Dean’s children owed the trust. Third, it raises several issues with the form of the judgment. Finally, it takes issue with the court’s decision not to award it attorney fees. We find merit in many of the issues the Estate raises.
¶4 For the reasons discussed herein, we affirm some of the court’s rulings, but detect error in others, and therefore vacate the court’s judgment and remand for further proceedings.
BACKGROUND
The Trust and Dean’s Death
¶5 During his lifetime, Dean Harding was a successful businessman who owned and operated a commercial heating, ventilation, and air conditioning company. With his first wife, Dean[1] had three children: Robert G. Harding, Jill H. Kendall, and Jeana Vuksinick. In the mid-1980s, after Dean’s first wife had passed away, Dean married Margene Harding. Margene had several children from previous marriages, including Taylor. After Dean married Margene, Taylor became Dean’s stepson and the stepsibling of Robert, Jill, and Jeana.
¶6 In 1994, in an effort to manage his assets and plan his estate, Dean created the A. Dean Harding Marital and Family Trust (Trust). The beneficiaries of the Trust were Dean’s “surviving spouse”—Margene—and Dean’s three children. Under the terms of the Trust, upon Dean’s death, and if Dean’s “spouse survives” him, “all property subject to [the Trust] shall be divided into two parts known as the marital share and the family share.” Dean’s surviving spouse was to have the use of certain Trust assets during her lifetime, and then after her death the Trust assets were to be distributed to Dean’s three children “in equal shares.” Margene’s own children—including Taylor—were not direct beneficiaries of the Trust.
¶7 Any income earned by any part of the Trust was to be paid to Dean’s spouse, and any excess “undistributed” income from the marital share was, upon the spouse’s death, to pass to the “spouse’s estate.” But aside from such income, “all other properties of” the Trust, including all unused principal, were to pass to Dean’s three children upon the spouse’s death.
¶8 With regard to Trust principal, the Trust documents did not authorize any distribution of principal out of the marital share; those documents state that only the surviving spouse was empowered to receive—but not empowered “to appoint”—“any part of” the marital share’s property, but that even she was empowered to receive “income only.” With regard to the principal assets of the family share, however, the situation was different: to the extent that the Trust’s income was not sufficient to meet the surviving spouse’s ongoing “support and maintenance” needs, as viewed through the lens of “her accustomed manner of living,” the trustee was authorized, in his “discretion,” to use the family share’s principal to meet those needs. In making the determination about whether to dip into family share principal to meet the spouse’s needs, the trustee was to consider any “income or other resources” that the spouse had at her disposal, and was to “be mindful of the fact that [Dean’s] primary concern in establishing the [T]rust is [Dean’s] spouse’s welfare and that the interests of others in the [T]rust are to be subordinate to [Dean’s] spouse.”
¶9 The Trust also allowed for “the primary residence owned by” Dean at the time of his death to be “allocated to” the marital share. In that event, Dean’s surviving spouse would be allowed to “reside personally upon the said premises” during her lifetime but would be responsible for paying property taxes, maintaining “adequate insurance,” and “perform[ing] such repairs and maintenance as may be required to maintain the property in the condition it was maintained prior to [Dean’s] death.”
¶10 Dean’s will—created contemporaneously with the Trust— contained a “spendthrift clause” that all parties now agree was incorporated into the Trust. This provision mandated, in relevant part, that no “interest of any beneficiary” in the Trust “be liable . . . for the debts, contracts, liabilities, engagements, obligations or torts of such beneficiary.”
¶11 Dean passed away in January 2004. When he created the Trust, Dean had named himself as trustee, and had named an accountant (Accountant) as successor trustee. Upon Dean’s death, Accountant became the trustee of the Trust, and he estimated that the Trust contained a total of about $5.8 million in assets. Accountant further allocated some $1.5 million to the family share and about $4.3 million to the marital share. Accountant also allowed Margene to continue to reside in Dean’s residence.
¶12 When Dean died, he was the owner of individual retirement accounts (IRAs) that were valued at approximately $1.5 million. These IRAs were among the assets that Accountant allocated to the marital share of the Trust. Shortly after Dean’s death, Accountant signed certain forms clarifying that the Trust was the primary beneficiary of the IRAs. No such forms executed before Dean’s death are part of the record in this case. But even before Dean’s death, the account statements from the IRAs clearly referenced the Trust as the primary beneficiary.
The Settlement Agreement and the Note
¶13 Soon after Dean’s death, various disputes arose involving the Trust’s beneficiaries, and in June 2004, due to “growing contention,” Accountant resigned as trustee. Margene then appointed her son—Taylor—as the new trustee of the Trust. Later, Margene also gave Taylor power of attorney over her own personal finances, which power Taylor utilized to, among other things, write checks (or otherwise authorize withdrawals) from her personal bank accounts.
¶14 Robert, Jill, and Jeana questioned Taylor’s status as successor trustee, and Taylor took issue with an undocumented $1 million loan (the Loan) that two companies controlled by Robert and Jill had taken from the Trust prior to Dean’s death. Both sides filed competing petitions in court raising these and other disputes, and eventually agreed to resolve their differences in a settlement agreement (the Settlement Agreement). Among other things, the Settlement Agreement provided that Taylor would be allowed to continue as trustee of the Trust, but he would be required to “provide a full accounting . . . of the Trust assets and affairs at least annually,” provide “quarterly trust brokerage statements,” and “communicate with” Robert, Jill, and Jeana through their designated liaison—Jeana—“at least twice per month.” Ultimately, in the ensuing years, Jeana met with Taylor about four times per year to obtain information about the Trust, and neither Jeana nor her siblings, prior to 2015, ever asked for additional information from Taylor.
¶15 With regard to the Loan, Robert—both personally and on behalf of the companies—and Jill agreed to “execute a promissory note memorializing the undocumented Loan,” and agreed to pay “[a]ccrued interest” at a “variable” rate equivalent to “the margin loan rate assessed by S[a]lomon Smith Barney on Brokerage Account No. 298-02528-13 303 . . . as may fluctuate from time to time until paid in full.” The promissory note they later signed (the Note) also stated that interest payments were to be made quarterly, and that if the Note were to be in “default” that “interest shall accrue at one percent (1%) above” the variable rate specified. Interest paid on the Note was to be considered income from the marital share of the Trust and—under the terms of the Trust—paid to Margene or, if undistributed at her death, to the Estate. Robert and Jill signed the Note as personal guarantors, but each did so “only for one-half (1/2) of the remaining balance plus interest, and only to the extent of [their] inheritance.”
¶16 The Settlement Agreement also had an attorney fees clause, which provided that if any party to the agreement were “required to retain counsel to enforce any of the provisions of this Agreement,” the party “determined to be in substantial default in any subsequent action shall pay the prevailing [party] its costs and reasonable attorney fees.” The Note had such a clause too, pursuant to which Robert and Jill “promise[d] to pay all reasonable costs and expenses of collection of any amount due under this Note including reasonable attorney’s fees.”
A Decade of Taylor’s Trust Administration
¶17 Following execution of the Settlement Agreement, Taylor served as trustee of the Trust for the next thirteen years (until he was removed by court order in January 2018). During that time, he took numerous actions that were later questioned by one or more of Dean’s children.
¶18 Upon assuming the role of trustee, Taylor made little effort to familiarize himself with much of what his duties entailed.[2] An attorney hired by the Trust provided Taylor with a document setting forth some of his duties as trustee, but he read only the pages the attorney said were important, and he was later unable to recollect any of the content of the document. Taylor also later stated that he was unaware of what fiduciary duties are. At one point, when asked whether he had read the Trust documents before beginning to authorize distributions of Trust assets, Taylor stated that he “left that . . . to the attorneys and the accountants.”
¶19 Throughout his tenure as trustee, Taylor was largely unaware whether the distributions he authorized came from the marital or family share of the Trust. He later testified that he was unaware of any written guidelines indicating when it was appropriate to distribute money from the family share. As noted above, the Trust allowed Taylor to distribute family share principal only when the trust income and Margene’s other assets were insufficient to meet Margene’s accustomed needs, but Taylor never analyzed Margene’s needs to determine whether principal distributions were appropriate. Throughout the thirteen years he served as trustee, Taylor never tracked the distributions of principal. In addition, with regard to some of the distributions Taylor made from the Trust—including several five-figure payments—Taylor was later unable to explain the destination or purpose of the payments.
¶20 Taylor was also unaware of whether the required minimum distributions (RMDs) he made from the IRAs were considered income and therefore payable to Margene, or were considered principal and therefore subject to the Trust’s restrictions on distributions of principal. During his time as trustee, Taylor simply paid 100% of the RMDs from the IRAs to Margene, as if they were entirely composed of income. He later learned, however, that pursuant to the provisions of Utah’s Uniform Principal and Income Act (UPIA), only a small portion of the RMDs could properly be classified as income. See Utah Code § 22-3-409.[3]
¶21 During his years as trustee, Taylor used his power of attorney over Margene’s personal finances to make transfers of money from Margene’s accounts (which were largely funded by Trust assets) to accounts controlled by Taylor, and Taylor was unable to explain the reason for many of these transfers. Examples of these transactions include payment for third-row Utah Jazz season tickets in the amount of $74,945; a $123,470.59 payment to a business Taylor owned; purchase of an Arabian horse; a $93,600 payment to Taylor’s sister; and $62,700 in “[f]unds directed to Taylor personally.” Some of these transfers he characterized as “gifts” from Margene to him or his siblings.
¶22 Taylor also failed to properly maintain vehicles owned by the Trust. A motorhome owned by the Trust was used by Taylor’s siblings until, while being used by Taylor’s nephew, it was stolen. A truck and “another car,” also owned by the Trust, were gifted by Margene to Taylor’s sister. And another Trust vehicle was totaled by Taylor’s son.
¶23 While Taylor was acting as trustee, Robert’s ex-wife served a writ of garnishment on the Trust regarding money Robert allegedly owed her in their divorce case. Robert claims to have first become aware of his ex-wife’s actions when a Trust attorney informed him that his ex-wife had served the writ on the Trust. After receiving notice, Robert claims that he hired an expert “to analyze the propriety of the amount of [her] claim” and that he obtained legal counsel to potentially dispute or negotiate the money owed. However, under the threat of the writ of garnishment, Taylor authorized payment from the Trust of some $250,000 to Robert’s ex-wife. Moreover, Robert’s ex-wife had previously obtained approximately $35,000 from the proceeds of a short sale of Robert’s home. Robert took issue with Taylor’s authorization of the payment out of the Trust to his ex-wife, believing that the payment resulted in his ex-wife receiving at least $35,000 more than she was entitled to and that it “undercut any negotiation he had with [her] regarding the [total] amount owed.” However, Robert’s ex-wife did not make any further claims against Robert for the money owed, and Robert later testified that the Trust’s “distributions of funds to [his ex-wife] did extinguish his debt to her.”
¶24 In the years after the Loan was memorialized in the Note as part of the Settlement Agreement, Robert and Jill (and their companies) made only two payments on the $1 million Note. Those payments totaled about $58,000 and appeared to include interest calculated at a 2% rate. But no other payments were made, and the two companies involved eventually went out of business. No party gave the Trust any notice of the companies’ dissolution, so the Trust, perhaps understandably, never made a claim on any of the companies’ assets. A Trust attorney did send a notice of default in 2006. But the Trust never took any other steps to collect on the Note from the companies (prior to dissolution) or from Robert and Jill (as guarantors), and the Note (both principal and interest) remained unpaid until after Margene’s death.
Margene’s Death and the Ensuing Distributions
¶25 Margene passed away in February 2015, and Taylor was appointed personal representative of her estate. The terms of the Settlement Agreement required Taylor to make final distributions of Trust assets within sixty days of Margene’s death, but he did not do so within that time period. About six months after Margene’s death, Taylor made a partial distribution of $775,000 (before deductions) to each of the three beneficiaries. Robert didn’t actually receive any money, though, because Taylor deducted $524,279.25 from both Robert’s and Jill’s distributions to account for the unpaid principal (but not the unpaid interest) on the Loan, and deducted an additional $250,720.75 from Robert’s tally because of the payment made by the Trust, on Robert’s behalf, to Robert’s ex-wife. Jill received a payment of $250,720.75, and Jeana received the full $775,000. Later, in 2016, Taylor was ordered to transfer nearly all the remaining Trust assets to Dean’s three children, and he did so by making a distribution to each of them in the approximate amount of $608,000.
The Lawsuit and the Two Competing Petitions
¶26 In September 2015, Robert filed a petition seeking “full distribution” from the Trust, a “full accounting” of Trust expenditures, and “damages resulting from breach of trust.” The petition named the Trust, Taylor, the Estate, Jill, Jeana, and Robert’s ex-wife as respondents. As to Taylor, Robert alleged that Taylor had unlawfully distributed principal from the Trust, and that at least some of these unlawful distributions had been made “on Margene’s behalf.” As to his ex-wife, Robert alleged that the payment made to her from the Trust violated the spendthrift provision and “interfered with and frustrated [his] settlement negotiations with” her.[4] And as to the Estate, Robert’s only allegation concerned the marital home; he alleged that “Margene failed to repair and maintain the [home] in the condition it was maintained prior to Dean’s death.” He made no other substantive allegations against the Estate, and did not assert that Margene or the Estate was or should be liable for Taylor’s actions.
¶27 In his prayer for relief at the end of his petition, Robert requested a full accounting, and asked that the court order Taylor to make distributions to him and his two siblings as required by that accounting. He also asked the court to order Taylor to “take immediate action to recover the funds distributed to” Robert’s ex-wife. He requested damages against “the Trust and/or Trustee” resulting from any unlawful distributions Taylor had made from the Trust. Against the Estate, he sought only damages “for the loss in value of” the marital home, as well as “a return of principal wrongfully distributed from the Trust.” Although Jill and Jeana were listed as respondents, the petition did not set forth any claims against or requests for relief from them; indeed, as noted, the petition asked the court to order distributions to all three of Dean’s children.
¶28 The Estate filed a counter-petition against the Trust, Robert, and Jill. The petition sought an order compelling Robert and Jill to pay the interest owed on the Loan to the Estate, pointing out that interest is classified as income from the marital share of the Trust and is, under the terms of the Trust, payable to the Estate (whose heirs include Taylor) upon Margene’s death. The Estate’s petition suggested that the total amount of interest owed, at the time the petition was filed, was more than $630,000. With regard to the Trust, the Estate simply asked that “any amounts still owing” to the Estate from the Trust be paid. And in this filing, the Estate included an “objection to” Robert’s petition, arguing that Robert’s prayer for relief addressing the Estate should be stricken “when no such allegations are made in the petition itself.”
¶29 Taylor filed an “objection and response” to Robert’s petition, in which he admitted certain of Robert’s allegations and denied the rest. He set forth no affirmative defenses of his own, although he did “join[]” in the defenses set forth in the response filed by Robert’s ex-wife. In her response, Robert’s ex-wife set forth nine separate affirmative defenses, including the allegation that Robert’s “claims are barred by the statute of limitations for objecting to and/or opposing the” writ of garnishment, “and by the doctrine of laches.”
Pretrial Motions
¶30 Following the filing of the two competing petitions and the responses, the litigation entered the discovery phase. The trial court issued scheduling orders setting certain deadlines, and the parties exchanged written discovery, took several depositions, and attempted mediation.
¶31 About nine weeks prior to the end of the fact discovery period, Taylor filed a motion asking for leave to amend his response to add several specific affirmative defenses, including a claim that he “had a good faith basis for his actions” and a claim that Robert’s petition was “barred by applicable statutes of limitation, including, but not limited to” Utah Code sections 78B2-305 and -307. In the memoranda supporting his motion, Taylor never asserted that probate petitions aren’t pleadings subject to the usual rules of amendment. Robert opposed Taylor’s motion, arguing that Taylor provided no justification for the delay, that waiting to amend was a “dilatory move” made at least in part to “evade [Robert’s] discovery requests,” and that Robert would be prejudiced because of the little time left in the fact discovery period. After full briefing, the court held a hearing to consider Taylor’s motion, and at the conclusion of the arguments denied the motion from the bench. The court’s minute entry recites that the motion was denied “[f]or reasons as stated” on the record. But the record submitted to us does not include a transcript of this hearing. After the hearing, the court signed an order memorializing the ruling, therein briefly stating that it had denied Taylor’s motion because “adequate justification has not been provided” and because it considered Taylor’s delay “unreasonable.” Taylor had attempted to justify the amendment, at least in part, by asserting that he had intended his incorporation of Robert’s ex-wife’s affirmative defenses to include “all applicable statutes of limitations and laches defenses.” The court rejected this justification as “faulty,” determining that Robert’s ex-wife’s defense was “limited in scope to one specific issue,”
namely, the writ of garnishment, and that Taylor’s incorporation of that defense did not serve to indicate to Robert that Taylor was asserting any different time-based defense.
¶32 Later, Robert moved for partial summary judgment on the narrow question of whether Taylor had violated the “terms of the Trust . . . by invading the principal of the” Trust’s marital share, and had thereby breached his fiduciary duties. In particular, Robert asserted that Taylor had made more than $2.2 million worth of “improper distributions” of principal out of the Trust’s marital share—some $1 million of which involved distributions from the IRAs, and some $1.2 million of which involved distributions from other sources—all of which were contrary to the Trust documents’ command that no such distributions were authorized, and that these actions constituted breach of fiduciary duty. Robert included specific details of the alleged distributions and supported his allegations with bank statements.
¶33 In response, Taylor did not deny making distributions of principal from the marital share, and he in fact admitted to making “over distributions” of principal that “may have been improper,” but argued that the distributions were nevertheless “valid” for various reasons. For instance, he argued that the distributions were valid, at least to some extent, because he was authorized to distribute principal from the family share at his discretion. And with regard to the IRA distributions, Taylor asserted that he relied on the advice of legal and accounting professionals, and that his actions were therefore reasonable, and he asserted that it was unclear whether the Trust was even the proper owner of the IRAs. Taylor also disputed the amount of the distributions he had made from principal. In reply, Robert pointed out, among other things, that Taylor had not included an “advice-of-counsel” affirmative defense in his responsive pleading, and that the court had already rejected his attempt to add additional affirmative defenses, including specifically a defense that he “had a good faith basis for his actions.” Robert thus asserted that Taylor had waived his opportunity to plead an advice-of-counsel defense.
¶34 After full briefing on the motion, the court held oral argument, and in an oral ruling at the conclusion of the hearing granted Robert’s motion, at least in part. The record submitted to us does not include a transcript of this hearing, so the details and scope of the oral ruling are unknown to us. In an order entered about a month later that was intended to memorialize the oral ruling, the court first noted that the Trust authorized Margene to receive “income only” from the marital share, and then concluded that, “[b]ased on . . . Taylor’s admissions and the evidence before the court, . . . Taylor made unlawful distributions of principal from the [marital share] to Margene.” But that was as far as the court went; it recognized that genuine issues of material fact remained regarding, among other things, the amount and calculation of the unlawful distributions, as well as whether Robert and Jill owed money to the Trust or to the Estate related to the Note. The court reserved all of those issues for trial. And at least in its written ruling, the court made no mention of Taylor’s claimed advice-of-counsel defense.
¶35 The court’s order also implicitly rejected Taylor’s argument that the Trust was not the owner of the IRAs, stating that the marital share of the Trust “included several [IRAs]” and that “[t]he required minimum distributions of the IRAs were paid to” the marital share and transferred to Margene. The court shed additional light on this matter in another order issued the same day resolving a separate motion that Robert had filed; in that other order, the court determined that the Estate “is not the owner or beneficiary of the IRAs.” This decision was driven by the court’s determination that the Estate had “fail[ed] to provide any admissible evidence to create a genuine issue of fact” with regard to Robert’s assertion—amply supported by the record—“that the IRAs were properly transferred to and owned by the . . . Trust after Dean’s death.”
¶36 Around the same time, Robert also moved for summary judgment regarding the payment Taylor had authorized to Robert’s ex-wife. After briefing and argument, the court held that the payment violated the spendthrift provision as a matter of law, but that “[t]here are disputed facts regarding,” among other things, “the amount of damages, if any,” and concluded that those issues were reserved for trial. The court, however, noted that “equity prevents” giving Robert a “windfall of $250,000,” and that factual questions remained regarding whether Robert “suffered any interest losses that he . . . may have been entitled to if . . . the money had been kept longer or there had been a [lower amount that his ex-wife] would’ve accepted.”
¶37 There were also pretrial skirmishes regarding expert witnesses. When the time came for Taylor to designate experts, he designated three: a legal expert and two accounting experts. Robert elected to receive written reports from the accounting experts, but opted to take the deposition of Taylor’s proffered legal expert. Taylor did not ever submit expert reports from his two proffered accounting experts. On Robert’s motion, and because Taylor failed to submit reports as required, the court later excluded Taylor’s accounting experts from testifying in Taylor’s case-in-chief, although the court did allow one of them to testify at trial as a rebuttal witness.
¶38 Robert also asked the court to exclude the proffered testimony of Taylor’s legal expert, arguing that the court “should not allow a local attorney to tell [it] how to interpret” the Trust documents. The court granted this motion in an oral ruling made at a hearing; it later memorialized that ruling in a brief written order stating simply that, “[a]fter argument by counsel and review of the briefings filed by the parties, the Court grants [Robert’s] Motion in Limine excluding all legal expert testimony at trial.” The record submitted to us does not contain a transcript of the hearing at which the court rendered its oral ruling, nor does it contain any additional elucidation of the court’s reasoning in granting Robert’s motion to exclude Taylor’s legal expert.
¶39 While Jill and Jeana each hired counsel and participated in the litigation, neither Jill nor Jeana filed their own petitions or made any claims of their own against Taylor; indeed, as noted, they were included as respondents in Robert’s initial petition. But as the litigation went on, Jill and Jeana began to align themselves more and more with Robert; in its post-trial findings, the court observed that, by the time of trial, Jill’s and Jeana’s “interests were eventually aligned with Robert’s.” About two years into the litigation, and recognizing some uncertainty about whether Jill and Jeana were stating claims, Taylor filed a motion attempting to clarify matters and limit Robert’s damages “to his one-third beneficial interest or share of the Trust.” Robert, Jill, and Jeana all separately opposed this motion. In his opposition, Robert stated that, even though he was the only one of Dean’s children who had filed a petition, he was seeking damages “for the benefit of all beneficiaries—[Robert], Jill and Jeana.” After full briefing, the court held argument to consider Taylor’s motion, and denied it in an oral ruling at the conclusion of the hearing. The record submitted to us does not include a transcript of this hearing. A few weeks later, the court memorialized its oral ruling in a written order, concluding that Robert “has standing to assert claims on behalf of all of the Trust beneficiaries” and that “[a]ny damages that are ultimately found against Taylor are not limited to [Robert’s] one-third beneficial interest.”
¶40 As the time for trial grew near, Robert filed a motion to bifurcate, asking the court to separate the trial of the Estate’s claims—chiefly, for interest on the Loan—from the trial of Robert’s claims for damages relating to improper distributions of Trust principal. In this motion, Robert suggested that the claims stated in his petition against the Estate—regarding the marital home—were “likely resolved” in light of a recent ruling the court had apparently made regarding the costs to repair the home.[5] Thus, Robert argued, “the only issue remaining” with regard to his petition “is the amount of damages to be awarded against Taylor as the Trustee of the Trust,” and therefore in Robert’s view the Estate “should not be involved in” the trial of the claims set forth in his petition. The court denied the motion, noting that the case was scheduled to be tried to the bench and stating that “the court is capable of keeping separate the testimony of the various witnesses” regarding the Estate’s petition and Robert’s petition.
¶41 Also prior to trial, on Robert’s motion, the court issued an order removing Taylor as trustee of the Trust. In that same order, the court replaced Taylor with two co-trustees: Robert and Jill.
The Trial
¶42 The issues remaining in the case were tried to the bench in March and April 2019. During the course of the trial, the court heard fact testimony from Robert, Jill, Jeana, and Robert’s current wife, as well as from Taylor. The court also heard testimony from financial experts, one retained by Robert and one by the Estate, as well as rebuttal testimony from one retained by Taylor. In addition, the court heard testimony from an accountant and an attorney who had provided advice to the Trust during Taylor’s tenure as trustee. After the completion of the parties’ four-day evidentiary presentation, the court scheduled time for the parties to present extensive closing arguments, which took place over another two days the following week. At one point during closing arguments, Jeana’s attorney made an oral motion “to conform the pleadings to the evidence that [Jeana] is a one-third beneficiary of the [T]rust, who essentially has been acting as a Petitioner in this case.” Over the Estate’s objection, the court ruled that Jeana “is a Petitioner,” even though the court was not allowing her to “assert any affirmative claims,” and that Jeana had “a third interest, as a beneficiary,” in the case. After closing arguments, the court then took the matter under advisement, and asked the parties to submit proposed findings of fact and conclusions of law that were stipulated “on as many points as possible.”
Post-Trial Developments
¶43 Perhaps predictably, the parties were unable to reach agreement on any matter in the findings and conclusions, and by mid-May they had each submitted individual proposed findings instead. In Robert’s set of suggested findings, he did not propose any finding or conclusion that the Estate was (or should be) vicariously liable for Taylor’s actions, although Robert did propose that the court “impose[] a constructive trust on the assets of the Estate” and order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.” The court reviewed the parties’ respective findings and began work on its own written ruling.
¶44 For the next six months, the court held periodic status hearings approximately every sixty days—in July, September, and November—sometimes asking for “clarification” or additional information on issues, and on one occasion stating simply that it had called the hearing to let the parties know that it “need[ed] a little additional time to finish” the ruling and offering its view that “this hearing will technically give [the court] another 60 days.” In the November 2019 status hearing, the court indicated that it was nearly finished with its written ruling, and actually announced portions of that ruling during the hearing. In the course of making those announcements, the court declared— sua sponte—that it would be “finding that the [E]state is liable,” along with Taylor, for Taylor’s actions; the court explained that Taylor “controlled the expenditures of Margene” and “had power of attorney” and “represented both” the Estate and the Trust, and that the Estate “benefited from [Taylor’s] misuse of” Trust funds.
The court indicated that it was “struggling a little bit on what the proper law is to divide up the liability between” the Estate and Taylor, and it asked the parties for supplemental briefing on that question and certain other issues.
The Court’s Initial Written Ruling
¶45 A couple of weeks later, while the supplemental briefing was still in process, the court issued a lengthy written ruling containing both findings of fact and conclusions of law. In that ruling, the court found, among other things, that Taylor did not trouble himself to “read the Trust document prior to making distributions,” that he “was ignorant and at times willfully blind of the duties he assumed as a fiduciary under Utah law,” “that he did not make reasonable efforts to inform himself of those duties,” and that he had, in various ways, breached those duties as trustee of the Trust. In particular, the court determined that Taylor had breached several different fiduciary duties, including his duty to administer the Trust in good faith and as a prudent person would, his duty of loyalty, and his duty to enforce and defend claims against the Trust. The court also found that Taylor had breached a duty to maintain the marital home, explaining that, even though the Trust documents placed that duty on Margene and not on the trustee, “Taylor as trustee can be imputed a duty to maintain the marital home for the welfare of Margene.” And the court offered its view that, at least in some respects, Taylor’s “testimony lacked any indicia of credibility.”
¶46 With regard to Taylor’s trust administration, the court found that Taylor’s conduct not only “fell short of the required standard” but “crossed over into ‘reckless indifference’ towards Trust assets, or to acts of bad faith.” In the court’s view, Taylor “acted as trustee in a dilatory, haphazard, uncaring and slipshod fashion,” at times “making use of the Trust as if it were his own personal piggy-bank.” The court found that Taylor “showed a blatant lack of care about tracking monies coming out of the Trust,” and that “Taylor frequently invaded Trust corpus principal . . . with no consideration of the limiting terms of the [T]rust agreement.” The court found “that Taylor did not make an analysis of his mother’s needs when expending trust funds,” specifically noting that “Margene had significant assets of her own . . . that [Taylor] should have . . . considered as sources to provide for her care and maintenance prior to expenditure of Trust corpus principal,” including two other properties and some $2 million in “Zions stock.”
¶47 With regard to Taylor’s duty of loyalty, the court found that Taylor had engaged in frequent acts of self-dealing, for himself, his wife, and his siblings, and that he “used his position as trustee to engage in acts of extensive, repeated, and prolonged self-dealing” by “repeatedly authoriz[ing] transactions that directly benefited himself.” The court specifically listed the Jazz tickets, the Arabian horse, and direct payments to Taylor’s family members as examples of Taylor’s self-dealing. The court also mentioned Taylor’s “fail[ure] to control [the] vehicles titled in the name of the Trust,” stating that it appeared to the court as though Taylor was unaware that the Trust even owned any vehicles. The court found that “Taylor’s treatment of the vehicles . . . is typical of his reckless treatment of other Trust assets and his ignorance of his fiduciary duties as Trustee.”
¶48 On the question of damages caused by Taylor’s mismanagement of the Trust, the court adopted the calculations offered by Robert’s damages expert, explaining that her “methods provide a reasonably certain calculation of damages” that “accounts for both excess distributions and losses incurred due to present value of money.” Based on the methods used by Robert’s expert, the court calculated that the Trust had sustained damages, as the result of Taylor’s actions, in the amount of $5,229,095.
¶49 The court also made findings about the marital home, determining that it “was in excellent repair and condition” at the time of Dean’s death, but that Margene did not continue to properly maintain the property afterwards. As noted, however, the court held Taylor responsible for this conduct, imputing Margene’s duty onto Taylor. The court determined that the total damages regarding the home were $33,500, and that this amount was “owed to Jeana,” because Jeana had purchased the home for full value and then made the repairs to the home herself.[6] The court took the $33,500 amount from estimates provided by Jeana, even though, during a separate legal proceeding, Jeana had claimed she was owed only $29,439 for the repairs.
¶50 The court also determined that Taylor “violated his duty to enforce and defend claims against the Trust” when he authorized the $250,000 payment to Robert’s ex-wife. The court found that Taylor “failed to adequately communicate with Robert . . . regarding any merits or defenses to [Robert’s ex-wife]’s writ of garnishment . . . , or even to ascertain whether the amounts claimed were proper.” The court ruled that Taylor was “liable for the consequences of” this breach, but in its initial post-trial ruling the court made no effort to quantify that amount or identify who the damaged party was. During closing argument and his post-trial proposed findings, Robert had asked the court to award $35,000 plus interest on this issue. Nevertheless, the court later determined, after additional post-trial briefing, that Taylor was liable for the entire payment of $250,720.25.
¶51 In its initial written ruling, the court also made findings regarding the Estate’s petition. As noted, the Estate’s main issue concerned the unpaid interest on the Loan the Trust had made to Robert and Jill and their companies and, specifically, what the appropriate interest rate was. While the Note memorializing the Loan called for an interest rate tied to a particular brokerage account at Salomon Smith Barney, there were several lengthy “gap period[s],” ranging from several months to several years, during which “an interest rate was not published on the account.” The Estate’s expert used the published rate for the months it was available, but for the gap periods he employed two different methods (more fully explained below, in Part II.B) to estimate what the brokerage account interest rate would have been. Using these methods, the expert calculated the unpaid interest on the Note as $922,219.77.
¶52 The court, despite finding that the Estate’s expert’s averaging “method to cover short gap periods [was] reasonable,” declined to apply the expert’s interest rates for any of the gap periods. Instead, the court chose to apply a statutory default interest rate—one that turned out to be much lower than the rates suggested by the expert—to all the gap periods. See Utah Code § 70A-3-112 (“If an instrument provides for interest, but the amount of interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues.”). In its initial post-trial ruling, the court asked the parties to provide supplemental calculations of the amount of interest owing, using the methods laid out in the ruling. After supplemental briefing, the court later determined that the total amount of unpaid interest owing on the Note was $565,314.97.
¶53 Finally, the court briefly considered the question of attorney fees, which had been requested by the Estate, Robert, and Taylor. The court determined that Taylor was “not entitled to any attorneys’ fees he incurred,” but that Robert was entitled to both (a) reimbursement of $187,595.71 from the Trust for fees incurred in defending the administration of the Trust, and (b) additional attorney fees from Taylor, pursuant to Utah’s bad faith statute, as the “prevailing party” in the litigation. See id. § 78B-5-825. The court specifically found that “Taylor’s defenses against the claims raised” in Robert’s petition “were brought in bad faith,” and asked Robert to submit an affidavit of fees and costs.
Joint and Several Liability of the Estate
¶54 After receiving the court’s lengthy written ruling, the parties continued working on their supplemental briefing, not only about the interest calculation but also about the joint-and-several-liability issue raised by the court, sua sponte, in the November 2019 hearing. After full briefing, the court heard argument on that issue, and at the conclusion of the hearing took the matter under advisement. A few weeks later, the court issued a written ruling, making two significant determinations. First, the court determined that the issue of Margene’s (and therefore, by extension, the Estate’s) vicarious liability for Taylor’s actions— despite not having been raised in the pleadings—had been tried by the consent of the parties. Second, the court officially found the Estate jointly and severally liable for Taylor’s actions. It specifically did not employ a constructive trust theory to render the Estate’s assets available for collection; instead, it noted that “Taylor had power of attorney over his mother’s financial affairs while exercising authority and powers as the trustee of” the Trust, and concluded that Taylor had the “intent to unlawfully pilfer the . . . Trust and preserve his mother’s estate for his own benefit and the benefit of his siblings.” The court offered its view that it “need not retreat to any equitable theory”—such as constructive trust— where there was “an express contract covering the subject matter of the litigation,” which contract was, in the court’s view, the Trust document. The court later clarified that it had not rejected Robert’s constructive trust theory, stating that the fact that it “didn’t rule on that theory . . . doesn’t mean that [the court] didn’t accept it,” and explaining that it had simply made a ruling “on an alternative ground.” Indeed, the court went so far as to say that, if a constructive trust theory was “what the parties believe is a more proper finding,” the court may be willing to “find that I’m ordering a constructive trust.”
Attorney Fees
¶55 After the trial, the court also made additional rulings regarding attorney fees. The court had already determined, in its lengthy written ruling, that Robert was entitled to recover reasonable attorney fees from Taylor. Later, Robert submitted an affidavit claiming $441,546.50 of attorney fees and $137,148.38 in costs, which the court determined were reasonable.
¶56 The Estate also requested attorney fees from Robert on the Loan/Note issue, invoking the Note’s attorney fees provision and asserting that it had been the prevailing party on the question of unpaid interest on the Loan. The Estate submitted detailed declarations—from two different attorneys—setting forth the fees incurred in that endeavor. In the motion accompanying the declarations, the Estate was careful to point out that “the fee declarations allocate between time spent on issues pertaining to the claim for interest on the Note and time spent on other matters,” directing the court’s attention to line items in the declarations that had been excluded from the request. The Estate asserted that the items remaining in its request were either directly related to its claim for unpaid interest or, alternatively, were inextricably intertwined with that claim such that they could not meaningfully be separated.
¶57 However, the court denied the Estate’s fee request in its entirety, concluding that the Estate had “fail[ed] to properly allocate claimed fees for claims upon which it prevailed.” The court acknowledged that the Estate had “made some effort to adhere to the Court’s admonition” to properly allocate attorney fees, but ultimately concluded that the Estate’s attempts in that regard were inadequate because, in the court’s view, the Estate’s fee request included fees for “legal work that sought to advance theories and arguments which the Court did not adopt and upon which the [E]state did not prevail.”[7]
The Form of the Judgment
¶58 During this same post-trial time period, the court also addressed questions regarding the form of the judgment, including who should be ordered to pay whom and how much. Robert submitted a proposed form of judgment, listing himself as the only judgment creditor, and indicating that Taylor owed him some $5.8 million and that the Estate, through joint and several liability and after an offset for unpaid interest, owed him some $5.2 million. This proposed judgment drew initial objections from the Estate and Taylor. In response to these initial objections, the court clarified that Taylor was solely liable for the payment to Robert’s ex-wife, but that the Estate was jointly and severally liable for the marital home damages and fee payments. And it ruled that Robert and Jill were each liable for “one half of the unpaid interest,” but it did not add Jill as a judgment debtor, reasoning that “[t]he amount of interest is to mitigate damages owed by the Estate” and should be accounted for as “an offset against amounts owed.”
¶59 Just days after the court’s ruling on the initial objections to the form of the judgment, the Estate lodged another objection, pointing out that—even though the court had previously held that Robert was not limited to pursuing damages only for his one-third share, had noted that Robert has standing to bring a claim on behalf of his siblings, and had even stated in its written ruling that the damages to the marital home were “owed to Jeana”—the only judgment creditor listed in the judgment was “Robert G. Harding,” apparently in his personal capacity. The Estate argued that the proper judgment creditors should be Robert and Jill “as trustees” of the Trust, because the claims presented at trial were largely “related to claims by the Trust, not claims by Robert G. Harding personally.” Robert opposed this objection, asserting that the language of the proposed judgment “is consistent with the procedural history” of the case and with the court’s written rulings. The court made no express ruling on this final objection and instead went ahead and signed its judgment without further comment, thus implicitly overruling the objection.
¶60 The signed judgment lists “Robert G. Harding” as the only judgment creditor, and Taylor and the Estate as the only judgment debtors. The document recites that Robert is “awarded Judgment against” Taylor in the amount of $5,815,599.71, and that Robert is “awarded Judgment against” the Estate in the amount of $4,999,564.49.[8] The difference between the two figures—the amount owed by Taylor as compared to the amount owed by the Estate—is $816,035.22, which is the sum of the offset for the unpaid interest on the Note ($565,314.97) and the amount paid to Robert’s ex-wife ($250,720.25).
¶61 Following entry of the judgment, the Estate filed a motion to amend the court’s rulings, findings, and judgment. In this motion, the Estate argued, among other things,[9] that the court had erred by accounting for the Estate’s recovery against Robert and Jill for unpaid interest through a setoff mechanism, instead of entering a separate judgment in favor of the Estate and against Robert and Jill. The Estate pointed out that this was especially problematic with regard to Jill, who was not a judgment creditor and therefore had no positive judgment against which her interest obligation could be set off. After full briefing and argument, the court denied the Estate’s motion.
ISSUES AND STANDARDS OF REVIEW
¶62 Taylor and the Estate each separately appeal. In his appeal, Taylor raises four issues for our review. First, he contends that the court erred in denying his motion to amend to add additional affirmative defenses. When reviewing a trial court’s decision on a motion to amend, “we give considerable deference to the [trial] court, as it is best positioned to evaluate the motion to amend in the context of the scope and duration of the lawsuit” and we “defer to the trial court’s determination.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 60, 221 P.3d 256 (quotation simplified). Thus, “[w]e overturn a trial court’s denial of a motion to amend . . . only when we find an abuse of discretion.” Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 14, 87 P.3d 734.
¶63 Second, Taylor argues that the court erred in determining, on summary judgment, that he had breached his fiduciary duties by making distributions from marital share principal. Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). “We review the summary judgment decision de novo.” Salo v. Tyler, 2018 UT 7, ¶ 19, 417 P.3d 581 (quotation simplified).
¶64 Third, Taylor takes issue with the court’s exclusion of his three disclosed expert witnesses. There are “[t]wo different standards of review [that] apply to claims regarding the admissibility of evidence.” Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729. “The first standard of review, correctness, applies to the legal questions underlying the admissibility of evidence.” Id. (quotation simplified). “The second standard of review, abuse of discretion, applies to the [trial] court’s decision to admit or exclude evidence and to determinations regarding the admissibility of expert testimony.” Id. (quotation simplified).
¶65 Fourth, Taylor challenges the court’s ultimate determination of damages. “A trial court’s findings of fact will not be set aside unless clearly erroneous.” Traco Steel Erectors, Inc. v. Comtrol, Inc., 2009 UT 81, ¶ 17, 222 P.3d 1164 (quotation simplified). “The award of damages is a factual determination that we review for clear error.” Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428.
¶66 In connection with its appeal, the Estate raises four issues for our consideration. First, the Estate challenges the court’s determination to hold it jointly and severally liable for Taylor’s actions, and its challenge takes two forms. As an initial matter, the Estate takes issue with the court’s conclusion that the vicarious liability issues—which were not present in Robert’s pleadings— were tried by the consent of the parties, and that Robert’s pleadings could therefore be amended post-trial pursuant to rule 15(b) of the Utah Rules of Civil Procedure. “We review the [trial] court’s application of rule 15(b) for correctness. However, because the trial court’s determination of whether the issues were tried with all parties’ implied consent is highly fact intensive, we grant the trial court a fairly broad measure of discretion in making that determination under a given set of facts.” Hill v. Estate of Allred, 2009 UT 28, ¶ 44, 216 P.3d 929 (quotation simplified). And more substantively, the Estate challenges the merits of the court’s conclusion that it is vicariously liable for Taylor’s actions. In some contexts, a vicarious liability ruling involves issues of fact. See, e.g., Newman v. White Water Whirlpool, 2008 UT 79, ¶ 10, 197 P.3d 654 (stating that “[w]hether an employee is in the course and scope of his employment” for purposes of vicarious liability “presents a question of fact for the fact-finder”). In other contexts, though, such a ruling is inherently legal. See, e.g., Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009 (stating that “[w]hether a principal is vicariously liable for an agent’s acts” presents a “legal question[]”). While—as discussed below—the precise legal basis for the trial court’s ruling is somewhat unclear, Robert defends the ruling by pointing to principles of agency law. We agree that, under the circumstances, the trial court’s vicarious liability ruling was a legal one, not a factual one, and we therefore review it for correctness.
¶67 Second, the Estate argues that the court erred in determining the rate for the unpaid interest due on the Note. Both sides agree that, at least under the circumstances of this case, we should review this issue for correctness. See USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 32, 372 P.3d 629 (stating that ascertaining “the appropriate interest rate” is “a question of law that we review for correctness”).
¶68 Third, the Estate raises several issues with the form of the court’s judgment. In particular, it wonders who the proper judgment creditors are, and contends that the court erred in setting off the Estate’s award of interest against the amounts the court determined it owed to Robert and Jill for vicarious liability. Challenges to offset determinations often involve mixed questions of fact and law and are “reviewed under a clearly erroneous standard for questions of fact and a correctness standard for questions of law.” Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 11, 288 P.3d 1046 (quotation simplified), cert. denied, 298 P.3d 69 (Utah 2013). The issue we address here regarding offset—namely, whether offset was appropriate when one of the parties did not receive a judgment—presents a legal question reviewed for correctness. See Fisher v. Fisher, 2009 UT App 305, ¶ 7, 221 P.3d 845 (noting that whether “an offset is allowed under [a] cause of action” is a question “of law, which we review for correctness”), cert. denied, 230 P.3d 127 (Utah 2010). And in addition, the Estate challenges the court’s award of damages for repairs to the marital home. “The award of damages is a factual determination that we review for clear error.” Saleh, 2006 UT 20, ¶ 29. However, “[w]e review the court’s legal conclusions for correction of error.” Hale, 2012 UT App 283, ¶ 13.
¶69 Finally, the Estate takes issue with the court’s rejection of its claim for attorney fees incurred in furtherance of its successful claim for unpaid interest on the Note. “The award of attorney fees is a matter of law, which we review for correctness. However, a trial court has broad discretion in determining what constitutes a reasonable fee, and we will consider that determination against an abuse-of-discretion standard.” Jensen v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325 (quotation simplified).
ANALYSIS
I. Taylor’s Appeal
¶70 As noted, Taylor asks us to consider four issues in connection with his appeal. First, he challenges the court’s denial of his motion to amend to add additional affirmative defenses. Second, he takes issue with the trial court’s ruling, made on summary judgment, that Taylor had breached his fiduciary duties by making unlawful distributions from the Trust’s marital share principal. Third, he challenges the trial court’s decision to exclude his expert witnesses. Finally, he raises certain challenges to the court’s damages determinations. We address each of Taylor’s arguments in turn.
A. Taylor’s Motion to Amend
¶71 First, Taylor asks us to examine the court’s ruling denying his motion to amend his responsive pleading to add several additional affirmative defenses, including a more specific statute of limitations defense and a defense that he “had a good faith basis for his actions.” The court denied Taylor’s request on the basis that Taylor had engaged in “unreasonable delay” and had “failed to provide adequate justification [as to] why he did not [seek to] amend his pleading earlier.” We discern no abuse of discretion in the trial court’s decision.
¶72 In deciding a motion to amend, courts are instructed to consider several factors, including whether the movant “was aware of the facts underlying the proposed amendment long before its filing, the timeliness of the motion, the justification for the delay, and any resulting prejudice to the responding party.” Jones v. Salt Lake City Corp., 2003 UT App 355, ¶ 16, 78 P.3d 988 (quotation simplified) (affirming the denial of a motion to amend where it was filed about a year after the deadline for amending pleadings and where the movant provided no justification for the delay), cert. denied, 90 P.3d 1041 (Utah 2004). In this case, the court denied Taylor’s motion in an oral ruling from the bench, and the record submitted to us does not include a transcript of that oral ruling. But in a subsequent written order memorializing its ruling, the court focused on two of these factors: timeliness and justification. The court was of the view that Taylor had waited too long to seek amendment of his responsive pleading, despite apparent awareness of the relevant issues, and that his delay was not justified by any good reason. The court rejected as “faulty” Taylor’s excuse that he had been under the impression that his original answer—which incorporated by reference the statute of limitations defense pleaded by Robert’s ex-wife—included “all statute of limitations” defenses. The court’s written ruling made no specific mention of Taylor’s desired “good faith” defense.
¶73 In his appellate brief, Taylor does not engage with the trial court’s reasoning, and provides no specific response to the court’s conclusion that his motion was untimely and his delay was unjustified. Instead, he makes two arguments in support of his appellate challenge. First, he asserts that his unpleaded statute of limitations defense was meritorious. But this is beside the point here; if the trial court was within its discretion to deny Taylor’s motion to amend on delay and justification grounds, then the merits of Taylor’s unpleaded defenses are not directly relevant.
¶74 Second, Taylor suggests that, because this case was a probate action initiated by a “petition” rather than a “complaint,” the rules of civil procedure regarding timeliness of pleadings do not apply. But this argument is unpreserved; Taylor did not make it at the trial court level—at least not in his written filings; as noted, the record includes no transcript of the hearing—and thus did not give the trial court an opportunity to rule on it. See Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (stating that, “to preserve an argument for appellate review, the appellant must first present the argument to the [trial] court in such a way that the court has an opportunity to rule on it,” and observing that “we generally do not address unpreserved arguments raised for the first time on appeal” (quotation simplified)), cert. denied, 364 P.3d 48 (Utah 2015). Therefore, we decline to consider this argument for the first time on appeal.
¶75 Under these circumstances—where Taylor does not provide us with a transcript of the trial court’s oral ruling, does not directly engage with the court’s reasoning, and offers an argument that is apparently unpreserved—Taylor has not carried his burden, on appeal, of demonstrating that the court abused its discretion by denying his motion to amend his responsive pleading to add additional affirmative defenses. We therefore affirm the court’s denial of that motion.
B. The Summary Judgment Ruling
¶76 Next, Taylor challenges the trial court’s determination, made on summary judgment, that he made unlawful distributions from the Trust’s marital share principal and thereby breached his fiduciary duties. In particular, he asserts that this ruling was inappropriate because genuine issues of material fact remained to be decided in connection with these issues. But Taylor has not borne his burden, here on appeal, of demonstrating error in the court’s summary judgment ruling.
¶77 As a threshold matter, it is important to recognize that the ruling in question was brief and quite narrow. In that ruling, the court noted that, under the terms of the Trust, Taylor was not allowed to distribute principal from the marital share, and it noted that Taylor had admitted to making distributions of principal from the marital share. The court therefore determined, as a matter of law and under the plain terms of the Trust documents, that these distributions were “unlawful.” It reserved all other issues for trial, including “the amount of damages that resulted from” any such unlawful distributions.
¶78 Taylor does not challenge the court’s determination that, under the terms of the Trust documents, he was forbidden from distributing principal out of the marital share. And he does not take issue with the court’s observation that, in discovery, Taylor admitted that he had indeed made distributions of principal out of, among other sources, the IRAs that Accountant had placed in the marital share. Thus, his challenge to the court’s summary judgment ruling is limited: he takes issue only with the court’s conclusion that those admitted distributions were unlawful as a matter of law. In this regard, Taylor makes three arguments, which we consider in turn.
1
¶79 First, Taylor asserts that his actions were not unlawful—at least not as a matter of law—because he had merely been following advice given to him by professionals (namely accountants and attorneys) retained to advise him in his role as trustee, and that questions of fact therefore remained regarding the reasonableness of his conduct. But on the record before us, this argument cannot carry the day for Taylor.
¶80 Under Utah law, a trustee who violates a duty owed to a beneficiary has breached fiduciary duties. See Utah Code § 75-71001 (“A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.”); see also id. § 75-7-801 (stating that trustees must “administer the trust expeditiously and in good faith, in accordance with its terms and purposes”). And it does not matter that the trustee’s actions were merely negligent (rather than knowing or intentional). See Restatement (Third) of Trusts § 93 cmt. b (Am. L. Inst. 2012) (“A breach of trust occurs if the trustee, intentionally or negligently, fails to do what the fiduciary duties of the particular trusteeship require or does what those duties forbid . . . . [A] trustee may commit a breach of trust by conduct (action or inaction) that results from a mistake . . . , typically [one] regarding the nature or extent of a trustee’s duties or powers.”).
¶81 In this case, the plain language of the Trust documents clearly forbade Taylor from making any distributions from the principal assets of the Trust’s marital share. He therefore had a clear obligation not to authorize distributions of principal from the marital share. He violated that obligation by repeatedly authorizing such distributions, and this is true even if one assumes, for purposes of the argument, that Taylor made the distributions negligently rather than intentionally or knowingly. Unless otherwise excused, that action constitutes a breach of the fiduciary duties that Taylor, in his capacity as trustee, owed the beneficiaries of the Trust.
¶82 However, under the Restatement’s approach, in certain circumstances, a court has the authority, where equity demands it, to excuse a trustee from having to pay a liability resulting from a breach of duty. See id. § 95 cmt. d (stating that, where a court concludes that “it would be unfair or unduly harsh to require the trustee to pay . . . the liability that would normally result from a breach of trust, the court has equitable authority to excuse the trustee . . . from having to pay that liability”); see also Restatement (Second) of Trusts § 205 cmt. g (Am. L. Inst. 1959) (“In the absence of a statute it would seem that a court of equity may have power to excuse the trustee in whole or in part from liability where he has acted honestly and reasonably and ought fairly to be excused.”). For instance, where case law upon which a trustee relied is later overruled, courts might conclude that a trustee should be equitably relieved from the consequences of a breach of duty. See Restatement (Third) of Trusts § 95 cmt. d (Am. L. Inst. 2012). And as relevant here, courts may reach a similar conclusion where “a trustee has selected an adviser prudently and in good faith, has provided the adviser with relevant information, and has relied on plausible advice on a matter within the adviser’s competence.” See id. § 93 cmt. c.
¶83 In the trial court, Taylor opposed Robert’s summary judgment motion by arguing, among other things, that his actions were reasonable because he relied on professional advice; in so doing, however, Taylor did not cite the Restatement or ask the trial court to apply its approach. Robert replied by asserting that “advice of counsel” was an affirmative defense that Taylor had waived by not pleading it and by failing to obtain leave to add that defense in an amended pleading. We do not know if Taylor’s advice-of-counsel defense (or Robert’s waiver argument made in response to it) was discussed during the oral argument on Robert’s summary judgment motion, because the record submitted to us does not include a transcript of that hearing. And the court’s rather brief written order memorializing its summary judgment ruling makes no mention of the issue.
¶84 There are several plausible ways the trial court could have handled Taylor’s advice-of-counsel defense at the summary judgment stage. First, the court could have determined that Utah law does not allow an advice-of-counsel defense under the circumstances presented here. We are unaware of any Utah authority adopting the Restatement’s approach, so it is unclear whether that approach is consonant with Utah law; certainly, Taylor makes no effort to so persuade us in his appellate brief.[10] Second, the court may have adopted Robert’s argument that Taylor waived this defense by failing to plead it in his answer and by failing to persuade the court to allow amendment of that answer. As already noted, several months before the summary judgment hearing the trial court did deny Taylor leave to amend his responsive pleading to add a “good faith” defense, ruling that any such amendment was too late and unjustified. On appeal, Taylor does not refute Robert’s assertion that he waived the defense, and he makes no effort to show that advice of counsel is not the sort of affirmative defense that must, upon penalty of waiver, be pleaded in an answer.[11] Third, the court may have determined that resolution of Taylor’s advice-of-counsel defense was not necessary at the summary judgment stage. In fact, the written summary judgment ruling is not necessarily at odds with that defense: even if the distributions from the marital share are considered unlawful, the court could, during the damages phase of the proceedings, potentially equitably relieve Taylor from the consequences of those unlawful distributions. And here on appeal, Taylor makes no argument that he was prevented, at trial, from presenting evidence relating to his advice-of-counsel defense. Fourth, the court could have determined, at the summary judgment hearing, that the undisputed evidence regarding Taylor’s advice-of-counsel defense was insufficient to present a genuine dispute of material fact that would prevent summary judgment. Or fifth, the court could have completely ignored the issue, and simply made no ruling on it at all.
¶85 We do not know what the court did with Taylor’s advice-of-counsel argument at the summary judgment phase, because its written ruling is silent on the matter and its oral ruling is not included in the appellate record. It is certainly not obvious, from the record before us, that the trial court erred in the way it handled Taylor’s asserted advice-of-counsel defense in connection with Robert’s summary judgment motion. It is an appellant’s responsibility “to include in the record a transcript of all evidence relevant to a finding or conclusion that is being challenged on appeal.” Gines v. Edwards, 2017 UT App 47, ¶ 21, 397 P.3d 612 (quotation simplified), cert. denied, 398 P.3d 52 (Utah 2017). “When an appellant fails to provide an adequate record on appeal, we presume the regularity of the proceedings below,” and “when crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (quotation simplified); see also Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196 (stating that an appellant’s brief must “contain the contentions and reasons of the appellant with respect to the issues presented . . . with citations to the authorities, statutes, and parts of the record relied on” (quotation simplified)).
¶86 In situations like this one, where “crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court.” Pritchett, 2003 UT 24, ¶ 13 (quotation simplified). While it is perhaps not always necessary for an appellant challenging an adverse summary judgment ruling to include in the appellate record a transcript of the oral argument on the summary judgment motion, cf. Gines, 2017 UT App 47, ¶ 21 (noting that “an appellant is not required to provide the transcript from every proceeding that occurred in the case”), in our view this is necessary in cases where the court issued an oral ruling at the conclusion of the hearing and where the court’s eventual written order is silent with regard to the matter being challenged. In such cases, a transcript of the hearing is necessary for us to effectively review the challenged issue. Without the transcript, we do not know what evidence or argument the court relied on in rendering any decision. Indeed, in this case we do not know if the court even made a decision on the point Taylor challenges. Under these circumstances, Taylor “has not provided this court with the tools necessary to determine whether the [trial] court” erred, and therefore his “claim of error,” in this regard, “is merely an unsupported, unilateral allegation which we cannot resolve.” R4 Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 12, 480 P.3d 1075 (holding that the appellant did not show an abuse of discretion where he failed to include a necessary transcript in the appellate record). Accordingly, Taylor has not carried his burden of persuasion on appeal, and the trial court’s summary judgment ruling is not now assailable on the basis that questions of fact remained to be decided regarding whether Taylor reasonably followed professional advice.
2
¶87 Second, Taylor asserts that the IRAs from which many of the allegedly unlawful distributions of principal were made were not part of the Trust at all, and therefore the distributions could not have been unlawful. But the trial court did not err in determining that no genuine issue of material fact existed on this point. As noted above, the court issued a separate ruling, signed on the same day and arising out of the same summary judgment hearing, determining that Robert had conclusively demonstrated that “the IRAs were properly transferred to and owned by the [Trust] after Dean’s death.” And in the summary judgment ruling at issue here, signed by the court just minutes later, the court simply noted that the marital share of the Trust “included” the IRAs. Taylor asserts that there existed questions of fact about the ownership of the IRAs, because the parties were never able to locate a “signed beneficiary designation” executed prior to Dean’s death. But Robert submitted quite a bit of evidence, including account statements from the IRAs dated prior to Dean’s death, indicating that the IRAs were in fact part of the Trust.[12] And Accountant—the first successor trustee of the Trust—certainly saw it that way. Taylor did not meaningfully rebut this evidence; the mere absence of a signed beneficiary designation is not, under these circumstances, enough to create a genuine issue of material fact regarding ownership of the IRAs.
3
¶88 Finally, Taylor asserts that his distributions of principal from the marital share, including distributions from the IRAs, can be considered lawful if they are offset against distributions of principal he could have hypothetically lawfully made from the family share. As noted above, Taylor had conceptual authority to make distributions of principal from the family share for Margene’s “support and maintenance” if the Trust income and Margene’s other assets were not sufficient to address her needs. In other words, Taylor asserts that the beneficiaries would not be entitled to any damages resulting from his otherwise unlawful distributions of marital share principal if Taylor can show that those distributions could, in his discretion, have been made from the family share instead. But even if this is true, this argument serves only to reduce the damages sustained by the beneficiaries as the result of Taylor’s breaches of duty; this argument does not somehow transform Taylor’s unlawful distributions into lawful ones. As noted, the court reserved for trial, among other things, all questions regarding “[t]he total amount of damages that resulted from Taylor’s unlawful distributions of principal from the” marital share. And in addition, there is no evidence that Taylor actually engaged in the analysis required prior to making lawful distributions from the family share principal—assessing whether Margene’s reasonable needs could be met from her own assets and the income from the Trust.
¶89 In the end, we perceive no error, on this record, in the trial
court’s narrow ruling, made on summary judgment, that Taylor had made unlawful distributions of principal from the Trust’s marital share, and that he had thereby breached the fiduciary duties he owed to the beneficiaries.
C. Taylor’s Expert Witnesses
¶90 Taylor next challenges the court’s orders prohibiting his disclosed expert witnesses from testifying in his case-in-chief at trial. The court excluded two of these experts—Taylor’s financial experts—because Taylor failed to serve the required report from the experts.[13] And the court excluded the third expert—Taylor’s legal expert—for reasons we cannot, on this record, ascertain. Under the circumstances presented here, Taylor has not persuaded us that the court’s orders regarding his expert witnesses are subject to reversal.
¶91 The court had good reason to exclude Taylor’s two financial experts. Following Taylor’s disclosure of these two experts, Robert opted to require the experts to produce a written report. See Utah R. Civ. P. 26(a)(4)(C)(i), (ii) (stating that “the party opposing the expert may serve notice electing either a deposition of the expert . . . or a written report” from the expert). Taylor failed to timely provide those reports. The court’s order excluding those experts on that basis is therefore sound. See id. R. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”); see also Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC, 2016 UT App 121, ¶¶ 15–16, 378 P.3d 109 (upholding a trial court’s exclusion of an expert witness when the party did not timely provide a written report by the deadline or provide “good cause” for failing to do so). And on appeal, Taylor does not attempt to argue that his failure to provide reports was harmless or spurred by good cause. Instead, Taylor merely informs us of what the witnesses would have testified about and asserts that the witnesses’ testimony “would have been of great benefit to the court.” This is insufficient to establish that the court abused its discretion. See R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (“We have held that the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that the violation of rule 26 . . . was either justified or harmless.” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014).
¶92 Taylor’s third witness, the legal expert, was dismissed after a hearing. In his motion asking the court to exclude Taylor’s legal expert, Robert argued that the court “should not allow a local attorney to tell [it] how to interpret” the Trust documents. The court granted this motion in an oral ruling made at the conclusion of the hearing; the court’s minute entry contains very little information about the basis for the ruling. A few weeks after the hearing, the court signed a written order, prepared by counsel, that was intended to memorialize the oral ruling; that order stated simply that, “[a]fter argument by counsel and review of the briefings filed by the parties, the Court grants [Robert’s] Motion in Limine excluding all legal expert testimony at trial.” And as noted, the record submitted to us does not contain a transcript of the hearing at which the court rendered its oral ruling, nor does it contain any additional elucidation of the court’s reasoning in granting Robert’s motion to exclude Taylor’s legal expert.
¶93 Under circumstances like these, an appellant fails to carry its burden of persuasion on appeal. As already noted, it is an appellant’s responsibility “to include in the record a transcript of all evidence relevant to a finding or conclusion that is being challenged on appeal.” Gines, 2017 UT App 47, ¶ 21 (quotation simplified) (affirming a trial court’s decision on a motion in limine because the appellant did not provide a transcript of the hearing); see also Pritchett, 2003 UT 24, ¶ 13 (stating that, in the absence of an adequate record, “we presume the regularity of the proceedings below,” and that “when crucial matters are not included in the record, the missing portions are presumed to support the action of the trial court” (quotation simplified)).
¶94 In this non-legal-malpractice case, we can easily envision good reason for the court to have excluded Taylor’s proffered legal expert. See Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993) (“Even though experts can testify as to ultimate issues, their testimony must still assist the trier of fact under rule 702. Opinion testimony is not helpful to the fact finder when it is couched as a legal conclusion.” (quotation simplified)). And where, as here, material gaps in the appellate record exist, we must presume the regularity of the proceedings, and presume that the court had good reason to take the action it took. Under these circumstances, Taylor has simply not persuaded us that the court abused its discretion in excluding his legal expert witness.
¶95 Accordingly, we reject Taylor’s assertions that the trial court abused its discretion in ordering the exclusion of all three of Taylor’s disclosed expert witnesses.
D. The Court’s Damages Award
¶96 Finally, Taylor raises two challenges to the court’s damages determinations. He first makes a general challenge to the court’s damages award, asserting that the court should not have used the damages calculation offered by Robert’s damages expert because that expert “made too many mistakes and relied on assumptions that are too speculative.” He next asserts that Robert did not suffer $250,000 in damages from the distribution to Robert’s ex-wife because Robert “received full credit against the judgment for the money distributed.” We reject Taylor’s first challenge, but find merit, at least to some extent, in the second.
¶97 Taylor’s general attack on Robert’s damages expert—and, by extension, on the court’s damages computation—is not well-taken. As examples of the “faulty assumptions” Robert’s expert made, Taylor points to the expert’s assumptions—held at least prior to trial, if not afterward—that three specific transactions (or sets of transactions) constituted “distributions” of Trust assets: (1) a $200,000 transfer between Trust accounts, (2) several five-figure checks of unknown purpose, and (3) a separate sale of an investment in the Trust portfolio. But as Robert points out, the expert herself—after receiving additional information at trial— backed away from the first assumption, and ended up not including the $200,000 transfer in her ultimate recommendation to the court. And most importantly, it does not appear that the trial court actually included any of the identified transactions in its damages award—at least, Robert asserts that it didn’t, and Taylor does not take issue with that assertion. So, to the extent that these identified transactions constitute “mistakes” on the part of Robert’s expert, the court appears to have accounted for those mistakes in its damages award.
¶98 As noted above, we review the court’s damages calculations for clear error. See Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428 (“The award of damages is a factual determination that we review for clear error.”). And we perceive no clear error in the court’s general adoption—with apparent adjustments—of Robert’s expert’s damages calculation. In its post-trial ruling, the court described Robert’s expert as “an experienced professional in the field of accounting and a licensed financial analyst,” and found that her methodologies “provide[d] a reasonably certain calculation of damages” that “account[ed] for both excess distributions and losses incurred due to [the] present value of money.” And as noted, the court in making its award apparently made adjustments, based on the evidence presented, to the expert’s computations. Under these circumstances, Taylor simply hasn’t carried his burden of demonstrating any clear error in the court’s general adoption of Robert’s expert’s damages methodologies, as adjusted.[14] See id.
¶99 However, we do see clear error in the court’s award of $250,000 in damages to Robert for Taylor’s payment of Trust assets to Robert’s ex-wife. The court found that this payment was made in violation of the Trust’s spendthrift provision and was therefore unlawful. But the court also found that the payment “did extinguish [Robert]’s debt to [his ex-wife],” which debt was a non-zero amount. The court, in a previous order, correctly noted that Robert’s damages on this point should be limited to “any interest losses that he . . . may have been entitled to” and money he would have saved if he could prove that his ex-wife would have accepted a lower amount. And of course, his damages calculation would need to account for any excess amounts paid to his ex-wife from other sources, such as his allegation that she received an extra $35,000 from the sale of one of his properties; it is notable that Robert, in his proposed post-trial findings, asked the court to award him only $35,000 plus interest on this point. But the court did not engage in a comprehensive analysis here, nor did it make specific findings on these recoverable damages; instead, it simply awarded Robert the entire $250,000 amount.
¶100 The court erred by awarding Robert damages for the full $250,000, at least without making specific findings as to why that amount was appropriate. As the court itself was aware, the $250,000 distribution to Robert’s ex-wife had at least some value to Robert—the extinguishing of his debt to his ex-wife—that should have been valued and offset against the $250,000 amount. And the court should have explained why it chose to award Robert the full $250,000 instead of the $35,000 (plus interest) that he asked for in his proposed findings.
¶101 Therefore, while we reject Taylor’s general complaint about the court’s adoption of Robert’s expert’s methodologies, we find merit in Taylor’s specific complaint about the court’s calculation of Robert’s damages related to the payment to Robert’s ex-wife. We therefore vacate—and remand for reassessment—that specific portion of the damages award.[15]
¶102 In sum, then, we reject all of Taylor’s claims on appeal, except for the second of his two damages-related assertions.[16]
II. The Estate’s Appeal
¶103 We now turn to the Estate’s appeal. As noted, the Estate asks us to consider four issues. First, the Estate asks us to reverse the court’s determination to hold it vicariously liable for the actions Taylor took as trustee. Second, the Estate challenges the court’s conclusion regarding the appropriate rate to be applied in calculating the interest that Robert and Jill owe on the Note. Third, the Estate raises various issues with the form of the judgment. And finally, the Estate asks us to review the court’s rejection of its claim for attorney fees incurred in furtherance of its successful claim for interest on the Note. We address each of these arguments in turn.
A. Vicarious Liability
¶104 The Estate’s main challenge on appeal—the one on which it spends the bulk of its energies—concerns the court’s ruling that the Estate should be held vicariously liable for the unlawful actions Taylor took as trustee. The Estate criticizes this ruling on two specific grounds, one procedural and one substantive. The procedural challenge has to do with whether the issue was properly before the court for decision in the first place. And the substantive challenge has to do with whether the court’s decision was correct. We find merit in both of the Estate’s challenges to the court’s vicarious liability ruling.
1
¶105 The Estate begins its argument by pointing out, correctly, that Robert did not plead or seek vicarious liability in his petition or in any other place in his voluminous pretrial filings in this case. In his petition, Robert sought specific relief against the Estate for damages related to the marital home. Aside from that particular request, the petition sought only one other thing from the Estate: “a return of principal wrongfully distributed from the Trust.” In the petition, Robert never asked the court to hold Margene or the Estate vicariously liable for Taylor’s conduct.
¶106 Not only did Robert fail to plead a claim for vicarious liability, but as the litigation proceeded, he implicitly disavowed making any such claim. Prior to trial, Robert filed a motion to bifurcate, asking the court to separate the trial of the Estate’s claims—most notably, for interest on the Loan—from the trial of Robert’s claims relating to Taylor’s alleged breaches of fiduciary duty. In this motion, Robert suggested that the claims stated in his petition against the Estate—chiefly, regarding the marital home— had already been “likely resolved” in a recent ruling. In particular, Robert asserted that “the only issue remaining” with regard to his petition “is the amount of damages to be awarded against Taylor,” and he argued that the Estate “should not be involved in” the trial of his claims against Taylor. Had Robert been seeking a vicarious liability ruling against the Estate, he would never have taken that position.
¶107 To its credit, the trial court recognized these realities and, in announcing its ruling that the Estate should be held vicariously liable, did not attempt to assert that the issue had ever been raised prior to trial. Instead, the court held that the issue of the Estate’s vicarious liability had been tried by consent during the multi-day bench trial. See Utah R. Civ. P. 15(b)(1) (“When an issue not raised in the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.”). Here on appeal, the Estate asserts that the trial court incorrectly concluded that this issue was tried by consent. We agree.
¶108 Under rule 15(b) of the Utah Rules of Civil Procedure, “implied consent to try an [unpleaded] issue may be found where one party raises an issue material to the other party’s case or where evidence is introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (quotation simplified). In such instances, the pleadings are deemed amended after the fact, in order “to conform them to the evidence” presented at trial. See Utah R. Civ. P. 15(b)(1). “The test for determining whether pleadings should be deemed amended under Utah R. Civ. P. 15(b) is whether the opposing party had a fair opportunity to defend and whether it could offer additional evidence if the case were retried on a different theory.” Hill, 2009 UT 28, ¶ 48 (quotation simplified). “When evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” Id. (quotation simplified); see also Archuleta v. Hughes, 969 P.2d 409, 412 (Utah 1998) (“Implied consent of the parties must be evident from the record.” (quotation simplified)).
¶109 Robert asserts that “the Estate showed awareness of its potential liability” several times during the lawsuit. For instance, it lodged an objection to the portion of the prayer for relief in Robert’s petition that requested the return of wrongfully distributed principal from the Estate, and it informed the court, at trial and in certain post-trial hearings, that one of the Estate’s goals in the litigation “was to assure that liability for Taylor’s wrongful acts did not ‘slop over’ to the Estate.” But awareness of an unpleaded issue does not necessarily constitute consent that the issue be tried, especially here where the Estate demonstrated its awareness of the issue by objecting (rather than consenting) to the issue’s presence in the case. More is required. There must be some indication that the Estate expressly or impliedly consented to the litigation of the merits of the unpleaded issue at trial. See Archuleta, 969 P.2d at 412 (“There must, of course, be either express or implied consent of the parties for the trial of issues not raised in the pleadings.”). And here, the record does not support the proposition that the Estate expressly or impliedly consented to try the issue of its vicarious liability for Taylor’s conduct.
¶110 Certainly, there is no indication that the Estate ever expressly consented to amendment of Robert’s pleadings to add the issue of its vicarious liability. Neither Robert nor the trial court directs our attention to any such evidence.
¶111 And in our view, the record cannot support the conclusion that the Estate ever impliedly consented to trial of that specific unpleaded issue. As noted, awareness of the issue is not enough. Neither Robert nor the trial court points us to evidence “introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill, 2009 UT 28, ¶ 48 (quotation simplified). In the court’s ruling on this point, it recited evidence that Taylor had conflicts of interest, was acting in several different capacities, and used his authority in those capacities to benefit his mother; the court concluded therefrom that “[t]hese circumstances are sufficient grounds to find that the issue of liability as to the Estate was tried by consent.” This is incorrect. All of this evidence—regarding Taylor’s conflicts of interest, breaches of duty, and actions taken to benefit Margene—is relevant to Robert’s overarching claims against Taylor. Its presence in the case would not have signaled to the Estate that the unpleaded issue of its vicarious liability for all those actions was somehow being litigated.[17] See id. (“When evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” (quotation simplified)). We are aware of no evidence presented at trial that clearly and exclusively went to the issue of whether the Estate should be held vicariously liable for Taylor’s actions.
¶112 But perhaps the most telling sign that the vicarious liability issue was not tried by implied consent of the parties is that even Robert didn’t appear to believe, after the trial, that the issue had been tried. In the set of proposed findings and conclusions he submitted about a month after the trial ended, Robert included no findings or conclusions regarding the Estate’s vicarious liability, and he did not ask the court to so rule. The closest he came to the issue was asking for a finding that imposed “a constructive trust on the assets of the Estate” and an order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.”
¶113 Thus, the issue of the Estate’s vicarious liability was never pleaded or sought by Robert and was never tried by consent of the parties. The trial court came up with the theory all on its own, many months after the trial had concluded. This was procedurally inappropriate. We therefore reverse the court’s ruling that this unpleaded issue was tried by the consent of the parties.
2
¶114 Because the issue of the Estate’s vicarious liability was neither pleaded nor tried by the consent of the parties, the trial court’s ruling holding the Estate vicariously liable for Taylor’s actions is infirm and subject to reversal for that reason alone. But the court’s vicarious liability ruling was also wrong on its merits, and we opt to explain why, in order to provide certain guidance that may be useful on remand.
¶115 There appear to be three different theories, floated by the parties (or the court) at various times in the case, as to how Robert and his siblings might access the assets of the Estate to compensate them for the unlawful acts Taylor took as trustee of the Trust.[18] First, there is the court’s own vicarious liability theory, which we refer to as the “conflict of interest” theory. As the court explained it, Taylor wore several somewhat-conflicting hats at various times throughout the case: he was trustee of the Trust, he had power of attorney over Margene’s personal finances, he was (after Margene’s death) personal representative of the Estate, and he (along with Margene’s other children) is one of the beneficiaries of the Estate. In the court’s view, Taylor was motivated to benefit himself and the Estate where he could, and he used his authority in these various roles—most notably as trustee of the Trust—to do just that. Essentially, the court ruled that, because many of the unlawful actions Taylor took as trustee of the Trust benefited Margene and the Estate, the Estate should be vicariously liable for Taylor’s actions, and should therefore answer to Robert (and his siblings) for Taylor’s conduct.
¶116 Second, there is the agency law theory upon which Robert largely relies here on appeal: that Taylor was an “agent” of Margene (and, by extension, the Estate) in carrying out his unlawful acts, and that the Estate—as principal—should be vicariously liable for its agent’s activities.
¶117 Finally, there is a constructive trust theory—expressly sought in Robert’s proposed post-trial findings—under which the Estate is not necessarily vicariously liable for Taylor’s actions as a general matter but, instead, the assets of the Estate may be used to satisfy Robert’s judgment against Taylor, at least to the extent that those assets stem from the Estate’s receipt of unlawful distributions from the Trust. Specifically, Robert’s proposed post-trial findings asked for the imposition of “a constructive trust on the assets of the Estate” and an order that “all remaining [Estate] assets payable or distributable to Taylor be used to pay the outstanding judgments in this case.”
¶118 The first two of these theories do not work. Even accepting the court’s central proposition—that Taylor had conflicting responsibilities—we cannot see how that fact leads to a legal conclusion that the Estate is generally liable for unlawful actions Taylor took in his capacity as trustee of the Trust. Under the Trust documents, only Taylor (as trustee) had any authority to make distributions. Margene (as “surviving spouse”) had no such authority, with the Trust documents stating that “[t]he surviving spouse shall have no power to appoint” Trust property to any other person. Taylor’s unlawful distributions were undertaken in his capacity as trustee of the Trust, and Margene had no authority to make any distributions of Trust assets; because she had no such authority, she couldn’t have delegated any of it to Taylor, via the power of attorney or otherwise. In other words, Taylor’s authority to take actions as trustee didn’t come from Margene, it came directly from the Trust documents themselves. We acknowledge that it certainly appears that the Estate may have benefited from Taylor’s unlawful actions. But we are aware of no authority— neither Robert nor the trial court cited any—indicating that an entity that benefits from someone else’s bad acts is thereby vicariously liable for those bad acts.
¶119 And the second theory—that Taylor was acting as Margene’s (or the Estate’s) agent when he committed the unlawful acts—fails for similar reasons. As an initial matter, there is no evidence that Taylor was acting as Margene’s agent at all when, acting as trustee of the Trust, he made distributions from the Trust to Margene. That is, there is no evidence that Margene instructed him to make any distributions, or that he was acting on Margene’s behalf when he did so. The mere fact that Margene benefited from Taylor’s actions does not mean that Taylor was acting as Margene’s agent; this is especially true where, as here, the alleged principal (Margene) possessed no authority to make the distributions in question.
¶120 But more substantively, even if we assume that Taylor was acting as Margene’s agent, a principal is liable for an agent’s actions only under certain circumstances. See Stein Eriksen Lodge Owners Ass’n Inc. v. MX Techs. Inc., 2022 UT App 30, ¶ 25, 508 P.3d 138 (“Under agency law, an agent cannot make its principal responsible for the agent’s actions unless the agent is acting pursuant to either actual or apparent authority.” (quotation simplified)). “Actual authority may either be express or implied.” Hussein v. UBS Bank USA, 2019 UT App 100, ¶ 32, 446 P.3d 96, cert. denied, 455 P.3d 1062 (Utah 2019). “Express [actual] authority exists whenever the principal directly states that its agent has the authority to perform a particular act on the principal’s behalf.” Drew v. Pacific Life Ins. Co., 2021 UT 55, ¶ 54, 496 P.3d 201 (quotation simplified). “Implied [actual] authority includes acts which are incidental to, or are necessary, usual, and proper to accomplish or perform, the main authority expressly delegated to the agent.” Id. (quotation simplified). And apparent authority exists “when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Id. ¶ 55 (quotation simplified). Robert makes no effort to persuade us that Taylor was acting pursuant to either actual or apparent authority from Margene when he committed the unlawful acts.
¶121 Robert does observe—correctly—that Margene gave Taylor power of attorney over her personal finances. But he does not explain how this narrow grant of authority led to the unlawful acts Taylor committed as trustee, or constituted the type of authority by which the Estate can be held vicariously liable for Taylor’s malfeasance. The scope of this grant of authority extended only to Margene’s own personal finances; Margene had no authority to disburse Trust funds, and therefore could not have granted, by her power of attorney, any such authority to Taylor, either expressly or impliedly. And as a practical matter, nothing Taylor did with Margene’s personal finances could have, by itself, impacted the Trust; after all, by the time Taylor took actions pursuant to his power of attorney—e.g., moving money from Margene’s personal accounts to, say, his own—he would by definition have already committed the unlawful acts in question— distributing Trust principal into Margene’s accounts in the first place. That is, the specific bad acts at issue here weren’t undertaken pursuant to any authority Margene gave Taylor; they were committed pursuant to authority Taylor already possessed, as trustee, under the Trust documents. Under these circumstances, Robert has not borne his burden of persuading us that vicarious liability exists here under principles of agency law.
¶122 Moreover, as noted, the trial court did not rely on this theory; if we were to rely on it here, we would be affirming on a different ground, something we may do only if that ground is “apparent on the record.” See Croft v. Morgan County, 2021 UT 46, ¶ 43, 496 P.3d 83 (quotation simplified). It is certainly not apparent from this record that Taylor had authority from Margene to act on her behalf in making unlawful distributions of Trust principal.
¶123 Thus, on the record before us, we see no basis in law for the Estate to be held vicariously liable, as a general matter, for acts Taylor committed as trustee of the Trust. We therefore reverse the trial court’s ruling to that effect.
¶124 Before concluding our analysis, however, we discuss the third theory by which assets of the Estate might conceivably be used to satisfy a judgment entered against Taylor in connection with his malfeasance as trustee: Robert’s apparent request that the court impose a constructive trust on the assets of the Estate, at least to the extent that those assets are derived from unlawfully distributed Trust assets. As noted, this theory is more limited than a vicarious liability theory—imposition of a constructive trust would not connote that Margene or the Estate did anything wrong and would not result in the Estate being generally liable for Taylor’s unlawful actions. But imposition of a constructive trust would enable Robert (and his siblings) to reach at least certain assets of the Estate to compensate them for Taylor’s malfeasance. See Lodges at Bear Hollow Condo. Homeowners Ass’n, Inc. v. Bear Hollow Restoration, LLC, 2015 UT App 6, ¶ 31, 344 P.3d 145 (“Constructive trusts are usually imposed where injustice would result if a party were able to keep money or property that rightfully belonged to another.” (quotation simplified)).
¶125 It is unclear to us whether Robert properly pleaded and pursued this theory or, if not, whether it was tried by consent of the parties. Robert certainly asked for this relief in his proposed post-trial findings, at least regarding Taylor’s share of the Estate’s assets. But the trial court specifically eschewed this theory during post-trial proceedings, offering its view that it “need not retreat to any equitable theory”—for instance, constructive trust—to support its determination regarding vicarious liability. However, the court expressly stopped short of rejecting a constructive trust theory, stating in a later ruling that it had not ruled on the theory, but instead had merely “ruled on an alternative ground,” and further clarifying that the fact that it “didn’t rule on that theory . . . doesn’t mean that [the court] didn’t accept it.” Indeed, the court went so far as to say that, if a constructive trust theory was “what the parties believe is a more proper finding,” the court may be willing to impose such a trust.
¶126 On remand, the court should consider whether Robert properly pleaded a claim for constructive trust and, if not, whether that claim was tried by consent of the parties. If the court determines that the claim is properly before the court, it should then consider the merits of the claim, and evaluate whether and to what extent a constructive trust should be imposed on the assets of the Estate in favor of Robert and his siblings. The merits of these questions have not been briefed in connection with this appeal, and we express no opinion on them, nor do we express any opinion regarding whether, on remand, these questions can or should be decided on the existing evidentiary record or whether additional proceedings would be appropriate.
B. Interest Rate
¶127 Second, the Estate asks us to examine the trial court’s ruling regarding the rate to be applied in calculating the amount of interest that Robert and Jill owe on the Note associated with the Loan. Despite the fact that the only expert—the Estate’s expert— to offer an interest calculation at trial calculated that interest to be $922,219.77, the court concluded that the total amount of unpaid interest owing on the Note was $565,314.97.
¶128 Under the terms of the Note, Robert and Jill agreed to pay “variable interest . . . at the margin loan rate assessed by S[a]lomon Smith Barney on Brokerage Account No. 298-02528-13 303 . . . as may fluctuate from time to time until paid in full.” But the calculation is not as straightforward as it may sound, because Robert and Jill failed to repay the Note for eleven years, and there were “some months” during that time span “where an interest rate was not published on the account” referenced in the Note.
¶129 For the months in which an interest rate on the specific account was published, the Estate’s expert used the published rate, which varied by month and ranged from 4.125% to 11%. For most of the “gap periods”—those months for which no interest rate was published on the account—the expert looked at the rate published for the month before the gap and the rate published for the month after the gap, averaged the two rates, and applied that average rate for each month during the gap period. Some of these gap periods were short, involving a gap of just a month or two, but other gap periods were quite long, involving periods up to three years without a published interest rate. But for the last gap period—a long one stretching from September 2011 through February 2015—the expert did not use an “average rate” methodology, because he could find no rate for the end month. Instead, he “made some calls and talked to a Smith Barney representative” who gave him “a range of rates”—from 4.75% to 5.5%—used “during that period of time” on various brokerage accounts. The expert then attempted to “corroborate that” range by comparing those rates to “rates published in the Wall Street Journal” and by discussing the issue “with [his] colleagues,” and eventually determined that a “reasonable rate” to use for the last gap period was 4.75%, a rate the expert considered to be “a very conservative rate . . . on the low end of the range.” The expert noted that this choice was only “an increase of 1.5% over the prime rate,” which he considered to be another sign that his chosen rate was “conservative and reasonable.” Applying this methodology, the expert calculated the total amount of interest owing, over the entire eleven-year period, as $922,219.77.
¶130 The trial court found the expert’s methodology to be “reasonable,” at least for “short gap periods,” but nevertheless did not accept the Estate’s expert’s methodology. It determined that the “Note’s repayment of interest term was ambiguous” with regard to the gap periods because the Note did not specify “what should occur if” no monthly interest rate was published for the account in question. It also found that “the intent of the parties” with regard to this ambiguity was “ascertainable sufficient to enforce it.” But even though it professed to be considering “extrinsic evidence to clarify the intent of the parties,” the court did not actually utilize any such evidence. Instead, it observed that the Note was a “negotiable instrument,” and it turned to a statute, located in Utah’s Uniform Commercial Code (UCC), for guidance. See Utah Code § 70A-3-112. That statute states, in relevant part, that if a negotiable “instrument provides for interest, but the amount of interest payable cannot be ascertained from the description, interest is payable at the judgment rate in effect at the place of payment of the instrument and at the time interest first accrues.” Id. § 70A-3-112(2). The court concluded that this statute “provides an adequate remedy at law to execute the intent of the parties as represented in the Note.” And it decided to apply this statutory default rate—which turned out to be 3.28%—to all gap periods, regardless of their length, noting that the statutory rate “provides a reliable method at law that relieves the Court from adopting” the expert’s methodologies for the gap periods. Notably, the court did not ever find that the Estate’s expert’s methodology was unreasonable; as noted, it found the methodology reasonable as to short gap periods and, even with regard to the longer gap periods, the court stated that it “appreciate[d]” the expert’s “efforts to determine reasonableness of his proposed rates by comparing them with the contemporaneous prime rate.” Later, using the published rate for the months in which one existed and the UCC rate for all other months, the court calculated the unpaid interest as $565,314.97.
¶131 The Estate ascribes error to the court’s approach, asserting that, after making its ambiguity determination, the court should not have jumped directly to the UCC rate but, instead, should have “determine[d] the parties’ intent from extrinsic evidence,” including the expert’s testimony. The Estate points out that the Note is far from silent on the interest-rate question, and indicates the parties’ intent to apply a rate equivalent to the brokerage rate for a particular account. And they assert that the UCC rate “applies only where the instrument is silent on how to calculate interest,” and not where the parties’ instructions in that regard are simply ambiguous. We find merit in the Estate’s argument.
¶132 As an initial matter, we note that the Estate’s argument is in line with general principles of contractual interpretation, including the bedrock proposition that, when “a contract term is ambiguous, [trial] courts should consider extrinsic evidence to resolve the ambiguity.” See Brady v. Park, 2019 UT 16, ¶ 29, 445 P.3d 395. Neither side takes issue with the court’s determination that, at least for the gap periods, the Note was ambiguous with regard to interest rate.[19] But the Estate persuasively argues that, even for gap periods, the Note does give some indication of the parties’ intent: they wanted to apply a rate equivalent to the Salomon Smith Barney brokerage rate. And the Estate points out that its expert came up with a methodology, in keeping with the parties’ expressed desire to use brokerage rates rather than presumably lower statutory rates, for estimating the brokerage rates for the gap periods, and points out that the trial court even found that methodology to be “reasonable,” at least as applied to the shorter gap periods.
¶133 Moreover, courts that have construed the UCC interest rate statute have concluded that it should not be applied in situations where “an ascertainable interest rate is provided but the sum certain requirement fails for lack of evidence concerning a reasonable rate of interest.” See Commercial Services of Perry, Inc. v.Wooldridge, 968 S.W.2d 560, 565 (Tex. App. 1998). In particular, at least where competent extrinsic evidence exists that can be utilized to estimate a reasonable rate commensurate with the parties’ intentions, courts have declined to apply statutory default rates where the parties agreed, in their instrument, to an interest rate tied to a specific bank’s prime rate and where that bank goes out of business. See, e.g., Ginsberg 1985 Real Estate P’ship v. Cadle Co., 39 F.3d 528, 533 (5th Cir. 1994) (applying “an analogous prime rate,” rather than a default statutory rate, to calculate interest after a bank failure, where the contract called for interest at that bank’s prime rate plus 1%); FDIC v. Blanton, 918 F.2d 524, 532–33 (5th Cir. 1990) (determining that a default statutory rate was “inapplicable” where the parties had agreed upon an interest rate equivalent to a specific bank’s rate plus 1% and where the bank had failed, holding that “[t]he trial judge could have applied an analogous prime rate as consistent with the intent of the parties”). We consider the failed-bank situation helpfully analogous to this one, and find the analysis applied by the courts in those cases persuasive and useful in this situation.
¶134 In those cases, courts examine extrinsic evidence to make a finding regarding a rate that would be reasonable and most in line with the parties’ intent. See Central Bank v. Colonial Romanelli Assocs., 662 A.2d 157, 158 (Conn. App. Ct. 1995) (“When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff.”); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (“Because the rate of interest is a term which is essential to a determination of the rights and duties of the parties and because the parties to this action understandably failed to specify the interest rate to be applied upon the failure of [an institution], it is left to the Court to determine a reasonable rate of interest.”). Importantly, “in determining reasonableness” in situations involving a failed bank, “the court need not determine the exact methodology used by the failed bank in calculating its internal interest rate; such a determination would be impossible in many circumstances. Rather, the court must determine whether the substitute rate was reasonable based on all the circumstances of the particular case.” Ninth RMA Partners, L.P. v. Krass, 746 A.2d 826, 831 (Conn. App. Ct. 2000) (quotation simplified).
¶135 In this case, the trial court did not undertake this type of analysis. Instead, without fully evaluating the reasonableness of the Estate’s proffered extrinsic evidence (chiefly, the expert’s methodology), the court jumped straight to the UCC default rate, stating that “the UCC provides an adequate remedy at law to execute the intent of the parties” and “relieves the Court from adopting” the expert’s methodology. And the court did so without making any finding that the expert’s unrebutted testimony was unreasonable or unreliable; to the contrary, the court expressly found the expert’s methodology “reasonable,” at least for use over shorter gap periods. And it made little effort to explain why it found the expert’s methodology reasonable for shorter gap periods but not necessarily for longer ones; it stated only that the expert’s gap period rates were “hypothetical and speculative,” a criticism that would seem to apply to all gap periods regardless of their length, and that will apply, at least to some extent, any time an effort is made to estimate an interest rate for a bank that, for instance, has gone out of business. Instead of explaining why it rejected the expert’s conclusions, the court simply stated that it “does not adopt” the expert’s “method as a proper means to ascertain interest,” and instead elected to apply the UCC rate. Contrary to the court’s statement, the statute did not “relieve” the court of its obligation to apply an interest rate commensurate with the intentions of the parties, nor of its obligation to grapple with, and make specific findings regarding, the credibility and reasonableness of the extrinsic evidence offered by the Estate and its expert.
¶136 Certainly, if the court had made specific and supported findings that the expert’s methodology was unconvincing and unreasonable across the board, and that therefore the Estate’s extrinsic evidence was not credible, it may have been possible for the court to default to the UCC rate. In that scenario—where the other side (Robert and Jill) did not offer any extrinsic evidence of their own and where the Estate’s evidence was deemed not credible—there would exist no competent extrinsic evidence to assist the court in ascertaining a rate reasonably equivalent to the one the parties intended, and therefore defaulting to a statutory rate may be appropriate. But absent such findings, the court should make a determination, based on the extrinsic evidence offered, as to the interest rate most reasonably equivalent to the intent of the parties as expressed in the Note.
¶137 We therefore vacate the court’s interest-rate determination, and remand the case to the trial court for reassessment of a reasonable rate of interest that best approximates the intentions of the parties. In so doing, the court should specifically assess the reasonableness of the Estate’s expert’s methodology. To the extent the court finds the expert’s methodology reasonable—as it already has with respect to short gap periods—it should apply that methodology, given the absence of other extrinsic evidence. The court should resort to the UCC statutory rate only to the extent it finds the expert’s methodology unreasonable, and not merely because the expert’s effort to estimate a rate that, by definition, does not exist is somewhat hypothetical. We imagine that this reassessment might be done by resort to the existing evidentiary record, but it will certainly be within the court’s discretion to hold additional proceedings if necessary.
C. The Form of the Judgment
¶138 Next, the Estate raises several issues with the form of the judgment the court entered in this case. First, the Estate challenges the court’s award of damages against it related to repairs to the marital home. Second, the Estate wonders who the proper judgment creditors are. Finally, and relatedly, the Estate raises setoff-related issues arising from the fact that it obtained an award against both Robert and Jill; it asks us to instruct the trial court to enter a separate judgment in favor of Robert and Jill, or to otherwise resolve the issues related to the court’s decision to set off the money owed to the Estate against the money the Estate owes to Robert. We find merit, at least to some extent, in all of the Estate’s complaints related to the form of the judgment, and we therefore vacate the court’s judgment and remand these issues to the trial court for clarification.
1
¶139 First, the Estate complains about the court’s award of damages to Robert, and against the Estate, for damages to the marital home. Its main complaint in this regard is that Robert did not point to any evidence that he—as opposed to Jeana—had actually been damaged.[20] This challenge is well-taken.
¶140 The trial court found, in determinations not challenged on appeal, that the marital home “was in excellent repair and condition” at the time of Dean’s death, but that Margene did not continue to properly maintain the property afterward. After Margene’s death, Jeana purchased the home, and made significant repairs that were necessitated by Margene’s failure to properly maintain the home. The court found that Jeana purchased the home for full value—without the benefit of any discount for the condition of the home—and then made the repairs to the home out of her own pocket. In view of these apparently undisputed facts, the court determined, in its main post-trial ruling, that the damages related to the home repairs were “owed to Jeana.”
¶141 Despite determining that any damages in this regard were owed to Jeana, the court’s judgment—entered some months after its main post-trial ruling—reflected that these damages were to be paid to Robert. Robert offers no good explanation for this, asserting simply that he and Jeana, “as beneficiaries” of the Trust, “have standing and are entitled to damages” related to the repairs to the marital home. But standing is one thing; evidence of damages is another. We agree with the Estate that Robert— personally, as distinct from Jeana—offered no evidence that he sustained damages related to the repairs to the home, and that the judgment in this case should be modified to remove any obligation by the Estate to pay Robert for those damages.
2
¶142 The Robert-or-Jeana issue related to repairs to the marital home is just one confusing result of the court’s decision to list Robert—and only Robert—as judgment creditor. By this point in the opinion, it should be apparent that—for the most part, and with certain exceptions such as perhaps the payment to Robert’s ex-wife—the damages Taylor caused were visited upon the Trust, and all its beneficiaries, and not just upon Robert. Yet the trial court—over objection—determined to list Robert as the sole judgment creditor, even though it awarded the full amount of the Trust’s damages. This was error and requires us to vacate the judgment and remand the issue for clarification.
¶143 The court can remedy this overarching error in one of two ways. First, it could elect to enter judgment in favor of not just Robert but, instead, either (a) the Trust (or, alternatively, the trustees of the Trust in their official capacity) or (b) all three beneficiaries, each to the extent of their damage. Second, it could elect to have Robert remain as the sole judgment creditor but, in this event, it would need to reduce the damages award to reflect the fact that Robert is entitled to receive only one-third of any damages sustained by the Trust.
¶144 We offer no opinion as to which option the court should choose on remand. Each has potential procedural pitfalls; from our review of the record, the party status of Jill and Jeana is somewhat unclear. But one thing the court may not do is enter judgment in favor of Robert, personally, in the full amount of the Trust’s damages.
3
¶145 Next, the Estate raises the related issue of how to memorialize the judgment in its favor, and against Robert and Jill, for unpaid interest on the Note. The court’s judgment resolved this issue by way of setoff, awarding damages to Robert and against the Estate associated with the Estate’s determined vicarious liability for Taylor’s actions as trustee, and then setting off against that amount the interest Robert owed to the Estate. The Estate complains about the way the court handled this, pointing out that—even if the court correctly applied setoff principles with regard to Robert—the court awarded no money in Jill’s favor and therefore could not have applied setoff principles with regard to Jill’s obligation to pay interest to the Estate. In other words, the Estate complains that the court held that it was entitled to recover several hundred thousand dollars from Jill but gave the Estate no way to actually go about collecting on this award. Again, the Estate’s complaint is well-taken; the court erred in the way it applied setoff principles under these circumstances.
¶146 This issue may, however, be rendered moot by this court’s determination that the Estate is not vicariously liable for Taylor’s actions as trustee, see supra Part II.A, and by its determination that the Estate is not liable to Robert (as opposed to, potentially, Jeana) for the repairs to the marital home, see supra Part II.C.1. Unless the court, after reconsidering Robert’s potential claim for constructive trust, actually imposes such a trust, no judgment will be entered against the Estate in favor of Robert or Jill. In any event, and even if the court ends up entering a judgment for constructive trust against the Estate and in favor of the Trust’s beneficiaries, the court in clarifying judgment-related issues should make sure that the judgments properly account for the Estate’s award against both Robert and Jill for unpaid interest.
D. Attorney Fees
¶147 Finally, the Estate appeals the denial of its request for attorney fees incurred in support of its claim for unpaid interest on the Note. Its claim is rooted in the language of the Settlement Agreement and related Note, which both have attorney fee provisions; the one contained in the Note requires Robert and Jill “to pay all reasonable costs and expenses of collection of any amount due under this Note including reasonable attorney’s fees.” Neither Robert nor Jill contests the Estate’s claim that, at least conceptually, the Estate would be entitled to recover attorney fees incurred in obtaining its judgment for unpaid interest on the Note. After all, the Estate prevailed on that specific claim. Indeed, in its attorney fees ruling, the trial court acknowledged that Robert and Jill “as guarantors of the [N]ote would owe fees [to the Estate] pursuant to a strictly construed reading of” the Note’s attorney fees provision.
¶148 But the trial court nevertheless denied the Estate’s claim for attorney fees, for several reasons. First, and chiefly, the court denied the Estate’s claim because, in the court’s view, the Estate had failed to sufficiently allocate its incurred fees between its successful and unsuccessful claims. Under our law, a party requesting attorney fees has an obligation to allocate its fees between claims on which it is entitled to fees and claims “for which there is no entitlement to attorney fees,” and should limit its fee request to only those specific fees incurred in aid of claims on which it is entitled to fees. See Zion Village Resort LLC v. Pro Curb USA LLC, 2020 UT App 167, ¶ 62, 480 P.3d 1055 (quotation simplified). A requesting party who fails to do so “makes it difficult, if not impossible, for the trial court to award . . . fees because there is insufficient evidence to support the award.” See Jensen v. Sawyers, 2005 UT 81, ¶ 132, 130 P.3d 325. Indeed, if a requesting party makes no effort to allocate its fees, a court “may, in its discretion,” elect to “not award wholesale all attorney fees” or may “deny fees altogether for failure to allocate.” Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 59, 345 P.3d 531 (quotation simplified). But a court’s discretion in this regard is not unlimited, and “is not an invitation to forego a reasoned analysis.” Id. ¶ 60. Indeed, in Burdick, our supreme court determined that a trial court had abused its discretion by denying a request for attorney fees, in its entirety, for failure to allocate, noting that the movant’s “affidavit clearly identifie[d] 282 hours attributable only to” the successful claim. Id. The court remanded the matter to the trial court to “conduct a reasonableness analysis and attempt to discern what fees may be divided between the” successful claims and the unsuccessful claims. Id. ¶ 61.
¶149 In this case, some of our rulings described herein (see supra Parts II.A, II.B, and II.C) have changed the landscape with regard to allocation enough to require a remand, so that the Estate can resubmit its fee request in light of our rulings and so that the trial court can, in light of those rulings, reassess the quality of the Estate’s effort to allocate its requested fees. Most notably here, the fees the Estate incurred in advocating for its expert’s methodology for calculating the rate of interest may—depending on how proceedings on remand turn out—need to be included in the award. But in any event, we have some concerns with the trial court’s original analysis, and we express those concerns here in an effort to provide guidance on remand.
¶150 First, we are not convinced that the Estate’s allocation efforts—even the first time around—were so poor as to necessitate a complete denial of its attorney fees claim. In its ruling, the trial court acknowledged that “the [E]state made some effort to” allocate fees, “as it removed or modified fees claimed for work advancing arguments or upon which it did not prevail.” The record bears this out. The Estate eliminated (wholly or partially) from its fee request some forty-eight line items totaling nearly $30,000 of fees. To be sure, the Estate requested over $174,000 in fees, even after the allocation, and one could conceivably argue, depending on the circumstances, that reducing only $30,000 from fees totaling more than $200,000 does not constitute sufficiently deep cuts. But the Estate’s allocation effort does, to our eye, appear to be detailed, targeted, and undertaken in good faith. The Estate’s main claim—and the primary reason for its presence in the litigation—was the one for unpaid interest on the Note; it does not seem to us implausible that the majority of its fees would have been incurred in aid of litigating that claim. In situations like this, where a party has taken a good-faith and detailed run at allocation, the better approach—if a trial court remains of the view that the cuts are not quite deep enough—is to make a reduced award rather than to deny the request in its entirety. Wholesale denial of a fee request on allocation grounds should be reserved for situations where a party either makes no effort to allocate at all, see Burdick, 2015 UT 8, ¶ 59 (stating that a court may “deny fees altogether for failure to allocate” (emphasis added)), or where a party makes only token or wholly inadequate attempts to allocate.
¶151 Next, the court mentioned several other factors that influenced its decision to deny the Estate’s fee request that were, in our view, not a proper basis for denial. For instance, the court noted that, for many years, “no significant steps were taken to timely collect on the [N]ote,” and appeared to hold this against the Estate in assessing its claim for fees. But it was the Trust’s responsibility for pursuing repayment of the Note, at least until Margene’s death (at which point unpaid interest became payable to the Estate); any delays in pursuing collection from 2004 through 2015 cannot be laid at the feet of the Estate and are, in any event, beside the point. After Margene’s death, and after the principal amount of the Note was effectively paid off in connection with the first distribution to the Trust beneficiaries, the Estate soon pursued this action to recover the unpaid interest. There is no basis to hold delays in enforcement against the Estate in connection with assessing its claim for fees.
¶152 Next, the court speculated that the provision of the Settlement Agreement directing that unpaid interest on the Note was to be paid to the Estate, rather than to the Trust and its three beneficiaries, “was contrary to the intent and past practice of” Dean, and the court stated that it was “troubled” by that provision. The court noted that this sentiment was “not central to its decision,” but it should go without saying that the court should not have taken this into account at all in connection with assessing the Estate’s fee request.[21]
¶153 In short, we vacate the court’s order denying, in its entirety, the Estate’s claim for attorney fees; we do so largely because, in our view, the rulings set forth elsewhere in this opinion have changed the landscape enough to necessitate a reassessment of that claim. And we remand the matter to the trial court for reassessment of that claim consistent with this opinion.
CONCLUSION
¶154 We reject all but one of Taylor’s arguments on appeal. The trial court did not abuse its discretion in denying Taylor’s motion to amend. Taylor has not carried his burden, on appeal, of showing error in the court’s partial summary judgment ruling, or of demonstrating abuse of discretion in its decision to exclude Taylor’s experts. We also affirm much of the court’s damages award against Taylor, but vacate the court’s award of damages against Taylor related to the payment to Robert’s ex-wife.
¶155 We find merit in most of the Estate’s arguments on appeal. The court erred in holding the Estate vicariously liable for the actions Taylor took as trustee. The court also erred in its approach to calculating the interest owed to the Estate on the Note, as well as in various aspects of its judgment. In addition, we remand the question of the Estate’s entitlement to attorney fees.
¶156 Accordingly, we vacate the judgment entered by the trial court, and remand this case for further proceedings consistent with this opinion; those proceedings should, among other things, involve evaluation of Robert’s potential claim for constructive trust against the Estate, reassessment of the amount of interest the Estate is owed, clarification of the judgment, and reassessment of the Estate’s claim for attorney fees incurred in connection with its successful claim for unpaid interest.
[1] Because several of the individuals involved in this case are members of the same family, we often refer to them by their first names, with no disrespect intended by the apparent informality.
[2] This fact, along with the others in this factual recitation, is presented “in a light most favorable to the trial court’s findings,” as is required of us in an “appeal from a bench trial.” See Huck v. Ken’s House LLC, 2022 UT App 64, n.1, 511 P.3d 1220 (quotation simplified), cert. denied, 525 P.3d 1260 (Utah 2022).
[3] In 2020, our legislature amended and renamed this statute, titling it the “Uniform Fiduciary Income and Principal Act.” Utah Code § 22-3-101. No party suggests that the recent amendments are relevant to this case. In this opinion, we refer to this statute as the UPIA, the title it had during the events giving rise to this case.
[4] Robert’s ex-wife was eventually dismissed from the lawsuit prior to trial, and is not a party to this appeal.
[5] This ruling was later amended to remove all reference to any such costs.
[6] The record is somewhat unclear as to the identity of the person(s) or entity from whom Jeana purchased the home—that is, whether she purchased the home from the Trust or bought out her siblings’ interest in the home directly after it had been conveyed to them as tenants in common. Ultimately, this issue is immaterial to our analysis.
[7] Jill and Jeana also requested an award of attorney fees, but the court denied those claims for various reasons. The propriety of those rulings is not at issue in this appeal.
[8] The judgment also recites that the court “will award attorneys’ fees to” Robert, but it makes no effort to quantify those fees. As noted, the court did later quantify those fees in a ruling issued about four months after it signed the judgment, awarding Robert $441,546.50 in fees and $137,148.38 in costs. But the record submitted to us does not include any amended or supplemental judgment including those fees.
[9] In addition to the issue it raised regarding the form of the judgment, the Estate also raised objections relating to the court’s ruling that it was jointly and severally liable for Taylor’s actions.
[10] At one point in his appellate brief, Taylor mentions in passing that the trial court “made no finding under Utah Code § 75-7814(2) regarding whether or not a lay trustee may rely on professional counsel and accounting advice, and whether such reliance demonstrates reasonable care.” That statute provides that trustees may delegate “investment and management functions” to a professional as long as the trustee engages in certain oversight, and if trustees do so, they are “not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.” Utah Code § 75-7-814(2). But Taylor did not invoke this statute in opposing Robert’s summary judgment motion, and any argument that the trial court erred by not considering the statute is therefore unpreserved. And in any event, Taylor does not argue that he delegated any specific task or function to any professional pursuant to this statute.
[11] Whether advice of counsel is the sort of affirmative defense that is considered waived if not pleaded in a responsive pleading is an interesting question. We are aware of Utah law stating that, at least in certain contexts, “reasonable reliance on the advice of counsel is an affirmative defense.” See Hodges v. Gibson Products Co., 811 P.2d 151, 159–60 (Utah 1991). But other courts have held that, at least in some circumstances, advice of counsel does not need to be pleaded in an answer. See, e.g., LG Philips LCD Co. v. Tatung Co., 243 F.R.D. 133, 139 (D. Del. 2007). Because the parties have not briefed this issue, and because it is only tangentially related to the question at hand, we offer no opinion on whether advice of counsel is the sort of affirmative defense that is waived if not included in a responsive pleading.
[12] Taylor argues that the court should not have considered much of this evidence because it was attached to Robert’s reply brief submitted in support of his summary judgment motion. He argues that Robert’s “obligation was to present all claimed relevant facts with his initial motion” and that “[n]ew materials cannot be raised in a reply memorandum.” But Robert did not raise any new issue in his reply; he merely responded to Taylor’s claims—included in his memorandum opposing Robert’s motion—regarding IRA ownership. The court did not err in considering the materials Robert submitted in connection with his reply brief in support of his motion.
[13] The court did, however, allow one of Taylor’s financial experts to offer rebuttal testimony at trial.
[14] In this same vein, Taylor makes a cursory and unsupported allegation in his brief that Robert cannot recover for “hypothetical growth in value” of Trust assets because his expert “[r]elied on [s]peculative [a]ssumptions.” But he does not suggest what these speculative assumptions were. Thus, this allegation, like some of his other damages assertions, is inadequately briefed.
[15] Taylor does not appeal the question of whether he—as opposed to Margene or the Estate—should be liable for the repairs to the marital home. Per the Trust, it was Margene—and not the trustee—who was responsible for “perform[ing] such repairs and maintenance as may be required to maintain the property in the condition it was maintained prior to [Dean’s] death.” Because this issue was not appealed, we do not address its merits.
[16] We are also aware of Taylor’s motion, filed with this court on June 30, 2023, asking us, “pending [our] imminent ruling,” to stay enforcement of the judgment. However, now that we have decided the case, the motion to stay has been rendered moot. See M.N.V. Holdings LC v. 200 South LLC, 2021 UT App 76, ¶ 17 n.10, 494 P.3d 402 (determining that a motion to stay had been mooted by the issuance of the opinion); Koyle v. Davis, 2011 UT App 196, ¶ 7, 261 P.3d 100 (per curiam) (recognizing that our resolution of a case on appeal “renders the motion to stay moot”), cert. denied, 263 P.3d 390 (Utah 2011).
[17] Similarly, the Estate’s failure to object to evidence that could conceivably have supported a constructive trust claim does not constitute implied consent to trial of an unpleaded vicarious liability claim. See Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929. As discussed below, Robert may or may not have properly pleaded a claim that a constructive trust be imposed on Estate assets, at least to the extent that those assets consist of wrongfully distributed Trust principal; we offer no opinion on that question. But even assuming, for purposes of this discussion, that he did properly plead a claim for constructive trust, such a claim is a far cry from a claim for complete vicarious liability for all actions, and the Estate’s perceived acquiescence in admission of evidence supporting a constructive trust claim does not necessarily signal consent to trial of a vicarious liability claim.
[18] At oral argument before this court, Robert’s attorney hinted at a fourth theory, and suggested that the court, in ruling that the Estate was vicariously liable for Taylor’s actions as trustee, might have been applying a contract-based construct. But the court’s written rulings on this topic do not appear to rely on any such theory. In addition, we are aware of no specific contractual obligation that might be utilized for this purpose. The only obligation Margene had under the Trust documents was the duty to keep the home in good condition. She was never the trustee, never had any authority to distribute Trust assets, never signed the Trust, and did not receive Trust assets upon any condition, and therefore never had any contractual obligation regarding those assets. See, e.g., Bloom Master Inc. v. Bloom Master LLC, 2019 UT App 63, ¶ 13, 442 P.3d 1178 (“To form an enforceable contract, the parties must have a meeting of the minds on the essential terms of the contract.” (quotation simplified)). We therefore reject any contract-based argument for vicarious liability.
[19] And neither Robert nor Jill makes any argument that the UCC rate should apply whenever contractual ambiguity exists with regard to the interest rate. In general, “a court’s legal determination that ambiguity exists within a text leads to the conclusion that” a factfinder will need to consider extrinsic evidence. See Jessup v. Five Star Franchising LLC, 2022 UT App 86, ¶ 42, 515 P.3d 466. This general principle appears to apply here. At least, neither Robert nor Jill makes any assertion that, given the language of the UCC, this constitutes one of those “other specific areas of the law . . . where clarity between parties is itself at issue” and in which “the presence of ambiguity . . . suggests that a party may be entitled to a judgment as a matter of law.” Id. (describing some of those exceptional situations). That is, Robert and Jill do not assert that the UCC rate should apply whenever ambiguity in the words used in the instrument prevents a court from easily ascertaining the agreed-upon interest rate. See Utah Code § 70A3-112(2). Because Robert and Jill do not make this argument, we offer no opinion as to its merits.
[20] The Estate also complains about the amount of this damages award, asserting that it should be for $29,439 instead of $33,500. There was evidence supporting both damages figures, and the trial court was within its discretion to select the slightly higher one. We therefore reject the Estate’s challenge to the amount of this portion of the damages award.
[21] The Estate also asserts that the trial court more heavily scrutinized its fee request than it did Robert’s, asserting that—like the Estate—Robert also failed to prevail on all of his claims and motions, and therefore should also have been required to allocate his requested fees between successful and unsuccessful endeavors. The propriety of the court’s fee award to Robert is not at issue in this appeal, and we therefore decline to comment on the court’s handling of Robert’s fee request, other than to state that courts should, of course, evaluate fee requests from the various parties in the case by the same standards.
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.
BACKGROUND
¶2 Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.
¶3 After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.
¶4 Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.
¶5 Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.
¶6 In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.
¶7 After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.
¶8 The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”
¶9 Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”
¶10 Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”
ISSUES AND STANDARDS OF REVIEW
¶11 Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]
¶12 Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.
ANALYSIS
I. Custody
¶13 Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.
¶14 As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.
¶15 The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,
Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.
Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.
Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physicalcustody encompasses the ability to make day-to-day decisions in a child’s life.
¶16 Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).
¶17 Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.
¶18 Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 303-10(8).
¶19 “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.
¶20 In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.
II. Child Support
¶21 Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.
¶22 The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including
prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.
Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).
¶23 The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.
¶24 First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.
¶25 Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12203(8)(b).
¶26 As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.
¶27 Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.
¶28 Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.
CONCLUSION
¶29 The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.
[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.
[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.
[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.
[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.
MORTENSEN, Judge:
¶1 Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court[1] stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State’s “best offer” and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel[2]) provided ineffective assistance for not objecting to the court’s allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.
BACKGROUND
¶2 After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah “threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye.” As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:
Counsel: Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I’ve discussed a plea with Mr. Hararah and it looks like we’re probably going to be setting it for a preliminary hearing.
District Court: Well, let’s go ahead and . . . take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.
Hararah: Yes, Your Honor.
District Court: Okay. Well, you think long and hard on that and I’ll talk to you on the 28th. Thank you.
¶3 The minutes for the next hearing, held in August 2020, indicate that “[t]he defendant request[ed] a Preliminary Hearing” and that “the [c]ourt set[] this matter for Preliminary Hearing.”
¶4 In court on the date set for the preliminary hearing, in September 2020, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Then the following exchange took place:
District Court: So you talked to [Counsel] about what a preliminary hearing is[,] right?
Hararah: Yes.
District Court: Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?
Hararah: Yes.
District Court: Very good. I will go ahead and allow the waiver[;] I’ll bind the matter over. How long do you think you need to have discussions, [Counsel]?
Counsel: Your Honor, I think that the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.
Later in the hearing, the district court added,
District Court:
[W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation.
¶5 The case eventually went to trial, and during opening statements, Counsel said to the jury, “You will not hear any testimony about [Hararah] punching [the alleged victim] . . . . [Y]ou’ll hear . . . that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out . . . .”
¶6 But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when “[a] verbal argument turned into a physical [one].” She said, “I had tried knocking over his drink. I knew the conversation wasn’t ending anywhere. He ended up on top of me hitting me.” She described how she tried to leave the room but “was hit in the face” with “a pillow and his fist.” She clarified that “he was punching [her] and hitting [her] through the pillow.”
¶7 Later in the trial and outside the presence of the jury, Counsel objected to “the uncharged misconduct that we’ve now heard about for the first time today, which is this witness . . . now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant.” Counsel asserted, “That is nowhere in the State’s discovery. It is not in the officer’s report, it isn’t anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can . . . believe that the bruising on her face comes from those punches rather than from the plant.” Counsel explained why this was problematic: “We don’t have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or . . . from a plant?’ So, I maintain that [this] is prejudicial.” The trial court responded, “I’ve previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day . . . in question [and] I would allow testimony from . . . the witness about the arguing and the conduct that happened during that date in question.”
¶8 The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that “[t]he only assault [he] was aware of was the plant being thrown,” and he agreed that if the victim had “mentioned being punched in the face, [he] would have put that in [his] report.” In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.
¶9 Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred “when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing.” He argues that this error “violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution; Utah Rules of Criminal Procedure 7(e) and 11(i); and our adversarial system of justice.” Hararah admits that this “issue was not preserved,” but he claims that “either the exceptional circumstances exception or the plain error exception applies here.”
¶11 Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by “fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing” and (2) by telling the jury “during opening statements that the jury would not hear any testimony about the alleged victim being punched.” “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
Preliminary Hearing Waiver
¶12 Hararah argues that the district court “violated [his] rights . . . when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing.” Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.
Plain Error
¶13 To show plain error, “a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).
¶14 We first address Hararah’s argument that the district court erred by “coercing” or “forcing” him to waive his right to the preliminary hearing. Hararah takes issue with the district court’s statement made at the July 2020 hearing: “Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.” The advisability of this comment[3] is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court’s statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.
¶15 At the outset of the September 2020 hearing, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Critically, Counsel also said during that hearing that “the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get [the case set] for a trial as soon as possible in front of a jury.”
¶16 We make much of the fact that Hararah waived his preliminary hearing in the same hearing in which he expressed his rejection of the State’s “best” plea offer. This shows that Hararah’s waiver was not based on the possibility of future bargaining or a fear that he would not be able to accept a plea deal if he had a preliminary hearing. Counsel did not indicate that Hararah anticipated any plea bargain better than the one the State had offered—as the plea bargain offered was already the “best offer” possible; instead, Counsel represented that Hararah had considered the offer and had decided to proceed to trial rather than accept the offered bargain. And Counsel did not mention the idea that the preliminary hearing was being waived to keep open the prospect of a future plea deal.
¶17 Hararah fails to provide us with any evidence supporting a belief that his independent desire to proceed to trial—after rejecting the State’s “best offer”—was not what drove his decision to waive his right to a preliminary hearing. If Hararah had represented in any way that he was forgoing the preliminary hearing because he was planning to accept a plea deal or wanted to keep his options open, the case before us would be quite different. But instead, the record demonstrates that Hararah was forgoing the preliminary hearing after having fully considered and rejected the State’s best offer and with the goal of going to trial as soon as possible. Accordingly, Hararah has not shown that any error took place, because there is no indication that the district court’s comment had any effect on Hararah’s actions.
¶18 Similarly, the district court’s post-waiver statement that “seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation” had no bearing on Hararah’s decision to waive his right to a preliminary hearing. At that point, Hararah had already made his decision to forgo the preliminary hearing, and he had also already rejected the State’s best plea offer.
¶19 Furthermore, even if we assume that the district court’s comments alone—rather than Hararah’s counterfactual claimed reliance on them—constituted error, Hararah has not met his burden on plain error review to show prejudice. The record shows that Hararah would have taken the same course of action whether or not the district court made the comments at issue. The same facts discussed above indicate that even if the statements had never been uttered, Hararah would have been presented with and rejected the State’s “best offer” and would have wanted to move as quickly as possible toward trial, including waiving his preliminary hearing. Accordingly, Hararah’s claim on this point fails.[4]
¶20 Moreover, even if “an error exist[ed]” that “should have been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13 (cleaned up), any such error was cured by Hararah’s conviction by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d 12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant “contend[ed] that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing.” Id. ¶ 13. This court determined that because the “sole purpose” of a preliminary hearing is “determining whether probable cause exists,” “an error at the preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15 (cleaned up). And “[t]his is so even when the error consists of a complete deprivation of a preliminary hearing.” Id. ¶ 16.[5] “Because conviction beyond a reasonable doubt cures any flaw in a preliminary hearing—including the complete deprivation of a preliminary hearing—it necessarily cures any error the [district] court may have made in accepting a defendant’s waiver of the right to a preliminary hearing.” Id. ¶ 18.[6] “Accordingly, [Hararah’s] conviction of all charges beyond a reasonable doubt cured any possible error attending his waiver of a preliminary hearing.” See id.
¶21 Ultimately, Hararah’s argument of plain error fails.
Exceptional Circumstances Doctrine
¶22 We apply the exceptional circumstances doctrine “to reach an unpreserved issue where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443 (cleaned up). Hararah argues that “[b]ecause it is procedurally uncommon in Utah to have a district court force a criminal defendant to waive his constitutional right to a preliminary hearing, a rare procedural anomaly occurred.”
¶23 But the claimed procedural anomaly did not actually occur. Hararah’s argument points to the presumed effect of the district court’s statements (namely, “forc[ing]” Hararah “to waive his constitutional right to a preliminary hearing”) rather than the mere occurrence of the statements as the “rare procedural anomaly.” But as we have explained, Hararah was not forced into waiving his right to a preliminary hearing, because he chose to waive that right for reasons independent from the district court’s comments. The absence of an actual “rare procedural anomaly” alone defeats Hararah’s argument as to the applicability of the exceptional circumstances doctrine, but this is not all.
¶24 Even if we assume that the district court’s statements constituted a “rare procedural anomaly,” Hararah would need to show that they “either prevented [him] from preserving an issue or excuse[d] a failure to do so.” See id. Hararah does not attempt to explain what prevented him from objecting to the district court’s statements and thereby preserving the issue. In reality, there was nothing preventing him from doing so. Hararah could have objected when the district court made the first statement at the July 2020 hearing. But this is not a case where a defendant had only one opportunity to object to an alleged error. Hararah could have taken time to review the issue and objected during the August 2020 hearing. Or he could have objected after the district court’s follow-up comment at the September 2020 hearing. Furthermore, before trial, Hararah could have filed a motion to withdraw his waiver. On this record, Hararah had time and multiple opportunities to object or preserve this issue, and he did not do so.
¶25 Moreover, we are not convinced that Hararah’s failure to preserve the issue is excusable. While we recognize the fundamental nature of the preliminary hearing and we protect defendants’ constitutional rights to preliminary hearings, we also recognize that a defendant has the constitutionally guaranteed right to waive the preliminary hearing. See Utah Const. art. I, § 13 (protecting the right to a preliminary hearing “unless the examination be waived by the accused with the consent of the State”); see also, e.g., Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249 P.3d 1006 (per curiam) (“[The defendant] filed his petition asserting that he was deprived of his preliminary hearing. . . . The petition was inconsistent with and [superseded] by [the defendant’s] waiver. [The defendant] was not deprived of any right to a preliminary hearing.” (cleaned up)). Waiving a preliminary hearing may have negative implications, but this reality does not invalidate a qualifying waiver. See State v. Bragg, 2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his right to a preliminary hearing, [forgoing] one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed.”). While Hararah may, in retrospect, have benefitted from taking the opportunity to develop the victim’s testimony at the preliminary hearing, this does not invalidate his waiver. And his regrets do not excuse his failure to preserve this issue. Therefore, the exceptional circumstances doctrine does not apply.
Ineffective Assistance
¶26 Hararah also asserts that Counsel provided ineffective assistance by failing to object to the district court’s comments discussed above and by informing the jury in opening statements that it would not hear that Hararah had punched the victim.
¶27 “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [the defendant’s] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
¶28 The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶29 We can easily dismiss Hararah’s first assertion of ineffective assistance. As discussed above, Hararah did not provide any evidence that he intended to accept a plea deal and that he based his waiver of the right to a preliminary hearing on such a plan.[7] Counsel was aware of Hararah’s feelings toward the choice between pleading or going to trial and stated repeatedly that Hararah was not interested in pleading guilty or accepting a plea bargain. Accordingly, Hararah has not persuaded us that any comments from the district court related to plea negotiations would have affected his plans at all, so Counsel acted reasonably in choosing not to object to such comments. In other words, the district court’s comments bore no impact on Hararah’s actions, so there was no tactical reason for Counsel to act as Hararah retroactively desires. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s clear desire to proceed toward trial.
¶30 Additionally, for the same reasons described above, we are convinced that Hararah was not prejudiced by this alleged deficiency in performance. Hararah asserts that “[t]here is a reasonable likelihood that if [he] had been allowed to exercise his right to a preliminary hearing,” his case would have ended differently. But Hararah was able to exercise his right to a preliminary hearing. We have already explained why the district court’s alleged carrot—permitting Hararah the possibility of accepting a plea deal—was no carrot at all based on his express refusal of the State’s “best offer” and his desire to proceed to trial. Hararah’s claim might have some foundation if he had proceeded with a preliminary hearing and the court had, in fact, restricted his ability to negotiate a plea deal or even if he had accepted a plea bargain after waiving the preliminary hearing. But given that he clearly and consistently conveyed his desire to go to trial, that he was offered the “best” plea deal and refused it, and that his conviction by a jury at trial was in no way influenced by the district court’s earlier comments on waiving the preliminary hearing, we are not persuaded that the outcome would have been any different if Counsel had objected. See Strickland, 466 U.S. at 695. Therefore, Hararah cannot show ineffective assistance on this point.
¶31 Hararah’s second allegation of ineffective assistance is also unavailing. Hararah asserts that Counsel performed deficiently by saying in opening statements that the jury would “not hear any testimony about [Hararah] punching [the alleged victim],” when the victim went on to testify that Hararah had, in fact, hit her through a pillow. Hararah argues that Counsel should not have made such a promise without first “lock[ing] in” the victim’s testimony during a preliminary hearing. But, as discussed above, Hararah waived the preliminary hearing of his own free will. And it is clear that neither side was aware the victim would testify that Hararah hit her, because the deputy testified that he did not know of any assault other than Hararah throwing the plant. Accordingly, we do not fault Counsel for making a statement in line with all the known facts, and we conclude that Counsel’s actions are not nearly “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.
¶32 Furthermore, Hararah was not prejudiced by this allegedly deficient performance. Counsel was able to paint the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony. And Counsel elicited testimony from the State’s own witness that there were no allegations of punching prior to trial. Accordingly, Hararah was in a strong position to counter the State’s case, and the jury still found him guilty of assault. From this, we see no support for “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.
CONCLUSION
¶33 Hararah’s claim that the district court coerced him into waiving his preliminary hearing is not supported by the record, so the exceptional circumstances doctrine does not apply and the court also did not plainly err. Additionally, Hararah’s assertion of ineffective assistance of counsel fails. Therefore, we affirm Hararah’s conviction.
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
TENNEY, Judge:
¶1 After Cody Murray pleaded guilty to violating a protective order, the district court ordered him to pay the victim’s moving expenses and 12 weeks of lost wages as restitution. Murray now appeals that restitution order, arguing that his criminal conduct did not proximately cause either of those losses. On the moving expenses, we agree with Murray and reverse that portion of the order. On the lost wages, however, we conclude that there was sufficient evidence to link Murray’s criminal conduct to the claimed loss. We accordingly affirm that portion of the order.
BACKGROUND
¶2 Murray married C.M. in March 2018, and they lived together throughout their short marriage. On January 2 or 3, 2019, C.M. filed a report with law enforcement alleging that Murray had engaged in sexual intercourse with her without her consent while she was medicated and sleeping. On the same day that she filed this report, C.M. obtained a temporary protective order against Murray based on this same allegation.
¶3 On January 3, 2019, law enforcement served Murray with the protective order at the residence he shared with C.M., and Murray complied with the order by packing his belongings and leaving the residence. Within an hour of leaving, however, Murray asked a friend to contact C.M. on his behalf. As subsequently alleged in a probable cause affidavit, C.M. soon received “phone calls and text messages” from the friend’s phone in which the friend relayed messages that Murray “loved her” and “missed her.” As also alleged, while the friend was on the phone speaking to C.M., Murray “passed a paper note” to the friend asking him “to let C.M. know that [Murray] was scared.” C.M. reported these communications to law enforcement as a violation of the protective order.
¶4 The State later filed two cases against Murray. The two cases were filed separately and were not consolidated. In the first case, the State charged Murray with one count of rape. That charge was based on C.M.’s allegation that Murray had sexual intercourse with her without her consent while she was sleeping. That case was later dismissed.
¶5 In the second case, which is the case at issue in this appeal, the State charged Murray with one count of violating a protective order. See Utah Code § 76-5-108 (2018). This charge was based on Murray’s indirect communications with C.M. on January 3, 2019. In March 2020, Murray pleaded guilty to the charged offense. As a result of a plea deal, the charge was reduced from a class A misdemeanor to a class B misdemeanor. In his affidavit in support of the plea, Murray admitted that “[o]n or about January 3, 2019,” he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Murray also agreed that he “may be ordered to make restitution to any victims of [his] crimes.”
¶6 Murray agreed to be sentenced at that same hearing. During the sentencing portion of the hearing, C.M.’s attorney asked the court to leave open C.M.’s restitution claim for the “one year statutory time limit,” informing the court that she would “submit any restitution” after receiving further documentation. The court left C.M.’s restitution claim open as requested.
¶7 In July 2020, the Utah Office of Victims of Crime (UOVC) filed a motion for restitution, asserting that it had paid C.M. a total of $6,264.47.[1] Of that amount, $5,520.28 was designated as reimbursement for “[l]oss of wages” and $744.19 was designated as reimbursement for “[r]elocation.”
¶8 Murray objected to UOVC’s motion for restitution and requested a hearing. At that hearing, UOVC’s attorney called two witnesses: (1) a representative from UOVC (Representative) and (2) C.M.
¶9 Representative testified that UOVC received C.M.’s application for restitution in November 2019. Representative testified that C.M. listed both the protective order violation and the alleged rape as the bases for her restitution claim. Representative further noted that in reviewing C.M.’s restitution claim, “the reparations officer indicated that the claim was approved based on both incidents”—the alleged rape and the protective order violation—because “they were so close together” that “the reparations officer couldn’t separate them into two separate claims.”
¶10 Representative testified that UOVC ultimately approved and paid C.M.’s expenses for “loss of wages” in the amount of $5,520.28, as well as “relocation” or moving expenses in the amount of $744.19, thus totaling $6,264.47. With respect to the lost wages claim, Representative testified that UOVC received a document from C.M.’s employer that explained “how much [C.M.] made at the time and how long she was out of work.” Representative said that UOVC also received a “health provider statement” that corroborated that C.M. missed work. Representative further said that from these documents and other verification efforts with C.M.’s employer, UOVC determined that C.M. missed “over 68 days” of work, and that it had then paid “12 weeks of lost wages” for the work C.M. missed from “January 3rd of 2019 through March 15th of 2020” at “[s]ixty-six percent of the full-time salary,” which in C.M.’s case amounted to $5,520.28.
¶11 With respect to the moving expenses, Representative testified that UOVC paid C.M. $744.19 to cover “reimbursement for movers.” Representative said that C.M. told UOVC that she had moved because “she didn’t feel comfortable in having [Murray] know where she lived.”
¶12 UOVC’s attorney then called C.M., who testified that she obtained the protective order against Murray because of the “actions he was making to [her] in [her] sleep.” C.M. also provided and referred to a note from a doctor indicating that C.M. had been seen because “[f]or the duration of her marriage her husband was sexually assaulting her in her sleep,” “[s]he was experiencing UTIs on many occasions from the sexual abuse,” and she had “[m]ajor depressive disorder” and “post-traumatic stress disorder.”
¶13 During C.M.’s testimony, UOVC’s attorney asked, “[A]s a result of the violation of the protective order, can you tell us what effect the violation of the protective order, the conduct that the defendant caused—what happened to you as a result?” C.M. responded that she suffered “severe panic attacks” and flashbacks, “live[d] in fear nearly every day,” felt a “[l]oss of trust of people in general,” and had “a hard time concentrating or focusing.” She said she had “severe depression” and was simply not “able to function like [she had] always been able to.”
¶14 UOVC’s attorney then asked if Murray’s conduct “in December or January of 2018, ’19 . . . interfere[d] with [her] ability to interact with people,” to which C.M. responded, “Definitely.” C.M. testified that because these issues “interfere[d] with [her] ability to work,” there were times where she had to take leave from work. She testified that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” and that she was out of work periodically after that, thus agreeing with the suggestion from the attorney that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” UOVC’s attorney asked if C.M.’s requests to take leave from work starting in “December of 2018” were “related to [Murray’s] conduct . . . that was occurring at that time,” and C.M. responded, “It was.”
¶15 With respect to the moving expenses, C.M. testified that she moved from the home she’d shared with Murray because the divorce decree ordered her to sell it. C.M. said that she moved in May 2020—17 months after Murray violated the protective order—and that her restitution request was based on the movers she had hired to assist with that move.
¶16 Murray didn’t call any witnesses at the restitution hearing. Instead, after UOVC’s attorney rested, each side presented closing arguments. UOVC’s attorney asked the court to order restitution for lost wages because C.M. had to take leave from work “[a]s a result of [Murray’s] conduct . . . because she wasn’t able to fully perform the job.” UOVC’s attorney asked for restitution for moving expenses because “it was [Murray’s] conduct which caused” C.M. to move and she “had reason to hide her whereabouts from” Murray out of fear.
¶17 Murray, however, argued that under the restitution statute, “restitution has to be tied directly” to the offense for which he’d been convicted—which, here, was a class B misdemeanor violation of a protective order. In Murray’s view, restitution for the lost wages was not appropriate because C.M. “missing all of [that] work . . . [could not] be tied” to his violation of the protective order (as opposed to the underlying rape allegation that the protective order was based on). Murray also argued that the moving expenses could not be tied to this conviction because C.M.’s decision to move was based on an order from the divorce decree requiring C.M. and Murray to sell the house.
¶18 At the close of arguments, the court ordered restitution in the amount of $6,264.47 to cover lost wages and moving expenses. In its oral ruling, the court noted that Murray was “alleged to have committed sexual offenses against [C.M.] in her sleep” in the latter part of 2018. The court said that it would “take the testimony of the witness at face value with regard to what she felt was a violation that caused the fear,” and the court then found that Murray’s “past history” of “sexual[ly] assaulting” C.M. “in her sleep” caused her “fear” and “anxiety.” With respect to C.M.’s missed work, the court found that “whatever happened, certainly enhanced or contributed to [C.M.’s] anxiety, depression, [and] fear,” and that “after the circumstances giving rise to whatever happened in December, there was a definite downturn with regard to [C.M.’s] ability . . . to work.” And with respect to the moving expenses, the court found that the “moving expenses [were] also reasonable and arising out of the crime that occurred.”
¶19 Murray objected to the court’s ruling. Murray argued that the court could “only tie restitution to what [Murray] was convicted of or pled guilty to, which would be the violation of the protective order,” and he further argued that the court should not “consider any of the alleged sexual misconduct” in its determination of restitution. In response, the court referred to the document submitted by C.M. in her restitution application, noting that “for the duration of the marriage, [Murray] was sexually assaulting [C.M.] in her sleep” and that she “was experiencing UTIs on many occasions from the sexual abuse.” The court observed that C.M. suffered from depression and post-traumatic stress as a result. Of note, the court then wondered whether these conditions were “exacerbated . . . or caused by a violation of a protective order,” “especially the loss of work after his commission of the violation of the protective order.” (Emphasis added.)
¶20 In a subsequent written restitution order, the court ordered Murray to pay UOVC a total of $6,264.47 for lost wages and moving expenses. In its Findings of Fact, the court found that C.M. “suffered emotional trauma as a result of [Murray’s] conduct in this case” and that her “fear, anxiety, and depression . . . rendered [her] unable to perform her duties and required her to miss work.” The court found that the trauma C.M. suffered “also caused her to relocate because she feared [Murray] and didn’t want him to know where she lived.” Murray filed a timely notice of appeal from that judgment.[2]
ISSUE AND STANDARDS OF REVIEW
¶21 Murray argues that the district court improperly ordered restitution for C.M.’s lost wages and moving expenses. “We will not disturb a district court’s restitution determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v. Calata, 2022 UT App 127, ¶ 12, 521 P.3d 920 (quotation simplified), cert. denied, 525 P.3d 1268 (Utah 2023). “To the extent that the district court made legal determinations in connection with its restitution analysis, we review those legal determinations for correctness.” State v. Oliver, 2018 UT App 101, ¶ 15, 427 P.3d 495 (quotation simplified). But when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
ANALYSIS
¶22 The Crime Victims Restitution Act (the CVRA) requires the district court “to determine restitution for any pecuniary damages proximately caused by the defendant’s criminal conduct.” State v. Blake, 2022 UT App 104, ¶ 9, 517 P.3d 414. Here, Murray challenges the court’s decision ordering him to pay C.M.’s moving expenses and her lost wages. In Murray’s view, his criminal conduct did not proximately cause either loss.
¶23 We first quickly dispense with the moving expenses issue. Murray argues that “[n]o evidence tied C.M.’s move from the marital home” to his criminal conduct, but that “the evidence on the record was that C.M. had to move because of the divorce decree.” Based on this, Murray argues that there was no basis for requiring him to pay these expenses as part of restitution. In its responsive brief, the State concedes this point. Having reviewed the record, we conclude that Murray’s argument and the State’s concession are well taken. We accordingly reverse that portion of the restitution order.
¶24 The remaining and principal issue on appeal, then, is whether the court also erred in ordering Murray to pay C.M.’s lost wages. On this, Murray argues that the court erred in two key respects: (I) by taking into account the alleged rape and (II) by then determining that Murray’s criminal conduct proximately caused C.M. to miss work. We address each argument in turn.
I. Alleged Rape
¶25 Murray argues that the district court improperly based the restitution order for lost wages on C.M.’s rape allegation, rather than limiting itself to considering the sole offense to which he had pleaded guilty: violating a protective order. We see no legal error in the court’s decision.
¶26 As a general rule, we “apply the law in effect at the time of the occurrence regulated by that law.” State v. Wilkerson, 2020 UT App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version of the restitution statute in effect at the time of Murray’s sentencing provided that
[w]hen a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, . . . the court shall order that the defendant make restitution to victims of crime as provided in this chapter, or for conduct for which the defendant has agreed to make restitution as part of a plea disposition.
Utah Code § 77-38a-302(1) (2019); see also id. § 77-38a-302(5)(a) (2019) (“For the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.”).[3] Under these statutes, Murray therefore could not “be ordered to pay restitution for criminal activities for which he did not admit responsibility, was not convicted, or did not agree to pay restitution.” State v. Randall, 2019 UT App 120, ¶ 13, 447 P.3d 1232 (quotation simplified)
¶27 It’s true that Murray was not convicted of raping C.M. As noted, the separate criminal case that was based on the rape allegation was dismissed. It’s also true that Murray did not admit to raping C.M. in this case either. But contrary to Murray’s arguments, this doesn’t mean that his alleged sexual misconduct against C.M. could play no role in the court’s restitution analysis.
¶28 Again, Murray pleaded guilty to violating a protective order, and the elements of that offense were that Murray was “subject to a protective order” and “intentionally or knowingly violate[d] that order after having been properly served or having been present . . . when the order was issued.” Utah Code § 76-5108(1) (2018). In his plea agreement, Murray acknowledged these elements and agreed that he had “committed the crime.” In the factual basis portion of the plea agreement, Murray further agreed that he had “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Pulling this together, the criminal activity for which Murray was convicted (by way of plea) included these key pieces:
· Murray was subject to a protective order;
· Murray intentionally or knowingly violated the protective order; and
· Murray did so by knowingly and intentionally communicating with C.M. through a mutual friend through phone calls and text messages.
¶29 Once Murray was convicted of this offense, the district court could then order restitution for any damages that were “proximately caused” by that offense. State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132.[4] Our supreme court has explained that restitution is intended “to compensate the victim for pecuniary damages,” as well as “to rehabilitate and deter the defendant, and others, from future illegal behavior.” State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. Because the question before a restitution court is what damages were proximately caused by the offense, the court isn’t confined to just the narrow elements of the offense of conviction. Rather, while the “restitution statute requires that responsibility for the criminal conduct be firmly established, much like a guilty plea, before the court can order restitution,” “it is only the initial crime for which liability must be legally certain.” State v. Hight, 2008 UT App 118, ¶¶ 3, 5, 182 P.3d 922 (quotation simplified). Once guilt for the offense has been firmly established, the court then has “broad discretion, after reviewing the evidence presented at the restitution hearing,” to “order restitution for any pecuniary damages clearly resulting from” that offense. Id. ¶ 5 (quotation simplified). In other words, once the defendant is convicted of “criminal conduct,” the defendant can “be held responsible for all damages proximately caused by that conduct.” State v. Huffman, 2021 UT App 125, ¶ 9, 501 P.3d 564 (emphasis in original), cert. denied, 509 P.3d 198 (Utah 2022).
¶30 Our decision in Huffman is illustrative. There, the defendant pleaded guilty to possessing drugs. Id. ¶ 7. Although the offense of drug possession doesn’t include, as an element, the destruction of property, we held that it was appropriate for the court to order restitution for damage that was done to the victim’s motorhome. This was so because evidence before the court established that the defendant’s possession of drugs inside the motorhome proximately caused those damages. Id. ¶¶ 12–14.
¶31 A similar dynamic is in play here. Again, Murray pleaded guilty to violating a protective order. In doing so, he acknowledged both the existence of the protective order and that he had violated its terms. Once these things were firmly established through the guilty plea, the court then had broad discretion to order restitution for any damage that was proximately caused by Murray’s criminal conduct.
¶32 When making that proximate cause determination, the court had at least some latitude to consider the conduct that had led to the protective order, and this is largely so because of the nature of the offense. After all, Murray wasn’t convicted of a crime because he contacted a stranger with whom he had no prior history. Rather, Murray was convicted of intentionally or knowingly contacting a person who had obtained a protective order against him. In this key sense, it was the protective order that made Murray’s communications criminal.
¶33 A protective order acts as a “mechanism” for giving victims a measure of “protection against their abusers.” State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645; see also State v. Baize, 2019 UT App 202, ¶ 20 n.5, 456 P.3d 770. One of the principal ways that a protective order does this is by creating a legal barrier between the victim and the abuser. If a person who is subject to a protective order subsequently breaches that barrier, a court couldn’t realistically be expected to decide whether the victim was traumatized by the violative act by considering that act as if it had occurred in a vacuum. Given that the victim had previously obtained judicial protection from the person, the nature of the alleged prior conduct would very likely have some bearing on the interconnected questions of whether and why the illegal contact had proximately caused any trauma or harm to the victim (not to mention how much damage the victim had actually suffered).
¶34 In short, because Murray pleaded guilty to violating a protective order, the district court could consider the fact that C.M. had obtained a protective order against him as part of its restitution analysis. And from there, it then had discretion to consider the conduct that led to the issuance of the protective order, at least to the extent that such conduct could inform its decision about whether Murray’s actions proximately caused any harm to C.M.
II. Proximate Cause
¶35 Murray next argues that the evidence before the district court was insufficient to show that his criminal conduct proximately caused C.M. to miss 12 weeks of work. We disagree.
¶36 The “proximate cause standard requires a showing that the crime, in a natural and continuous sequence, unbroken by any new cause, produced the injury and that the injury would not have occurred absent the crime.” Blake, 2022 UT App 104, ¶ 9 (quotation simplified). The “burden is on the State to prove proximate cause,” State v. Morrison, 2019 UT App 51, ¶ 13, 440 P.3d 942, and this “requires proof of two elements: (1) but-for causation and (2) foreseeable harm,” State v. Watson, 2021 UT App 37, ¶ 15, 485 P.3d 946.
¶37 Proximate cause is generally a “fact question[] to be resolved by the fact finder.” State v. Barzee, 2007 UT 95, ¶ 81, 177 P.3d 48; see also Mackay v. 7-Eleven Sales Corp., 2000 UT 15, ¶ 7, 995 P.2d 1233 (noting that proximate cause is a fact question). Because of this, we review a district court’s finding of proximate cause for clear error. State v. Grant, 2021 UT App 104, ¶¶ 24, 35, 499 P.3d 176, cert. denied, 505 P.3d 56 (Utah 2022). Thus, when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
¶38 Here, we see no clear error in the court’s finding that Murray’s violation of the protective order proximately caused C.M. to miss 12 weeks of work.
¶39 At the restitution hearing, C.M. testified that she obtained the protective order because of “actions [Murray] was making to [her] in [her] sleep” that began “at the end of December of 2018.” She further agreed that this “conduct” was “the reason for the ongoing protective order.” Of note, C.M. then testified that, “as a result of the violation of the protective order,” she has “severe panic attacks,” “severe depression,” and flashbacks; that she “live[s] in fear nearly every day”; that she has a “[l]oss of trust in people” generally; that she has a “hard time concentrating or focusing”; and that she was unable “to function like [she has] always been able to.” (Emphasis added.) When C.M. was then asked whether “the problems” that she was having “interfere[d] with [her] ability to work,” she responded, “Definitely.” While she said that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” (which would have predated Murray’s violation of the protective order), C.M. also agreed that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” The district court determined that C.M.’s testimony was credible, and on appeal, we give deference to that credibility determination. See State v. Miles, 2020 UT App 120, ¶ 34, 472 P.3d 978 (noting that “because of the district court’s advantaged position in observing the witnesses firsthand, we defer to its credibility findings” (quotation simplified)); State v. Taylor, 2017 UT App 89, ¶ 10, 402 P.3d 790 (noting that “we accord deference to the trial court’s ability and opportunity to evaluate credibility and demeanor” (quotation simplified)).
¶40 As also noted, UOVC introduced evidence showing that C.M. missed “over 68 days” of work, and UOVC’s Representative testified that UOVC paid for 12 weeks of work that she missed “span[ning] from January 3rd of 2019 through March 15th of 2020” because that missed work was “related to the incident in this particular case, which is the violation of a protective order.” When coupled with C.M.’s testimony about the effects of the protective order violation itself on her psyche and her ability to function, this provided an evidentiary basis for the court to find that Murray’s criminal conduct proximately caused C.M. to miss this work.
¶41 Murray nevertheless pushes back on several fronts, none of which are availing.
¶42 First, Murray points to testimony showing that C.M. was traumatized by the alleged rape (as opposed to the protective order violation), as well as testimony establishing that C.M. began missing work even before the unlawful communication. Both things are, on this record, unquestionably true. But even if the alleged rape caused psychological trauma to C.M. on its own, and even if that trauma caused her to miss work (either before or even after January 3, 2019), this doesn’t mean that Murray’s violation of the protective order couldn’t proximately cause her to miss work too.
¶43 Again, if there was sufficient evidence to establish that C.M.’s losses were proximately caused by the communication, then those losses were compensable. The fact that the losses may have been linked to some other causal source does not change this. In civil cases, it has long been recognized that there can be multiple causes for an injury or a trauma. See, e.g., McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (confirming “there can be more than one proximate cause” of “an injury”); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991) (“There can be more than one proximate cause of an injury so long as each is a concurrent contributing factor in causing the injury.” (quotation simplified)). And this is true in a criminal case too. See, e.g., State v. Gonzales, 2002 UT App 256, ¶ 21, 56 P.3d 969 (“A defendant’s acts may be found to be the proximate cause of the victim’s death even if the victim actually died as a result of the combination of the defendant’s acts plus some other contributing factor.” (quotation simplified)).[5]
¶44 Here, we agree with Murray that C.M.’s trauma and associated anxiety from the violation of the protective order was likely linked in some measure to the alleged rape. As discussed above, however, the alleged rape was the very reason that C.M. had previously obtained a protective order against Murray. And as also discussed, C.M.’s testimony at the restitution hearing supported the conclusion that when Murray contacted her in violation of that order, this both exacerbated her prior trauma and caused additional trauma too, thereby further interfering with her ability to work. Given this sworn and court-credited testimony, we cannot conclude that it was against the clear weight of the evidence for the court to conclude that, even accounting for the trauma associated with the alleged rape, the violation of the protective order itself proximately caused C.M. to miss work.
¶45 Second, Murray argues that it could not have been “reasonably foreseeable that C.M. would miss 12 weeks of work” because he sent her “a single indirect text message.” As an initial matter, it’s unclear from the record if this case really does involve just a single text message. For “the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.” Utah Code § 77-38a-302(5)(a) (2019). Here, the probable cause affidavit alleged that C.M. had “received phone calls and text messages” from Murray through their mutual friend. And in his plea affidavit, Murray agreed under oath that he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” On this record, the court could therefore assess the restitution question in light of Murray’s admission that there had been multiple communications.
¶46 In any event, whether viewed as multiple communications or even just a single communication, this argument still fails because the effect of the communication(s) can’t meaningfully be divorced from the surrounding context. Again, Murray wasn’t convicted of sending a message to a stranger with whom he had no prior history. Rather, Murray was convicted because he knowingly or intentionally communicated with C.M. in violation of a protective order. By communicating with C.M. despite the existence of an order from a judge that prohibited him from contacting her, Murray undermined the sense of distance and security that the protective order was intended to give her. Because of this context and history, we disagree with Murray’s assertion that it could not have been reasonably foreseeable that C.M. would be traumatized and miss work as a result.
¶47 Finally, Murray argues that the restitution order was at odds with our decision in State v. Bickley, 2002 UT App 342, 60 P.3d 582. We disagree. In Bickley, the defendant was charged with criminal nonsupport, and the “Amended Information listed the nonpayment period from February 1, 1997 to January 10, 2000.” Id. ¶ 3. After the defendant pleaded guilty to this offense, however, the district court awarded restitution for arrears that occurred prior to 1997. Id. ¶¶ 3–4. We reversed that decision on appeal, concluding that the court could not impose restitution for pre-1997 arrears “without making inferences.” Id. ¶ 12 (quotation simplified). Because of this, we held that it was not “firmly established” that the defendant was in fact responsible for the pre-1997 arrears. Id.
¶48 Bickley is readily distinguishable. The arrears at issue in Bickley plainly fell outside the conviction (which, again, was specifically limited to arrears that occurred from February 1997 on). As discussed above, however, the offense at issue here was the violation of a protective order, and that protective order was by definition linked to some prior conduct. Thus, unlike Bickley, it’s not at all clear that this restitution order was based on damages that fell outside of the offense at issue. In addition, there’s no suggestion that the district court in Bickley based its restitution award for the pre-1997 arrears on any evidence or testimony. Id. ¶¶ 2–4, 12. This is why we faulted the court for “making inferences” and imposing restitution for arrears that were not “firmly established.” Id. ¶ 12 (quotation simplified). But again, this was not the case here, where the restitution order was based on sworn testimony from the hearing itself.
¶49 In short, we can overturn the court’s proximate cause determination only if Murray has established “that the clear weight of the evidence contradicts the court’s ruling.” Chadwick, 2021 UT App 40, ¶ 6 (quotation simplified). Having reviewed the record, we conclude that C.M.’s testimony about the effects of the protective order violation on her psyche and her ability to function, coupled with the evidence presented by UOVC about the days that she missed at work, was sufficient to support the court’s finding that Murray’s criminal conduct proximately caused C.M. to miss this work, thereby causing these damages. Because the court’s ruling was not against the clear weight of the evidence before it, we affirm that determination.
CONCLUSION
¶50 The district court erred when it required Murray to pay $744.19 in restitution for moving expenses. We accordingly vacate that portion of the court’s order. But the court did not err when it ordered restitution in the amount of $5,520.28 for lost wages. We accordingly affirm the restitution award of $5,520.28 for lost wages.
[1] UOVC was represented by an attorney from the Utah Attorney General’s office who serves as “agency counsel” for UOVC.
[2] In between the court’s oral and written rulings, Murray filed a motion to reconsider. But after the written ruling was entered, Murray filed a timely notice of appeal. Despite the fact that this notice of appeal had been filed, and over an objection from UOVC, the district court subsequently held oral argument on Murray’s motion to reconsider, after which it denied the motion.
On appeal, both parties now agree that Murray’s notice of appeal divested the district court of jurisdiction to rule on the motion to reconsider. We agree with the parties. Because the motion to reconsider was filed before the written ruling, it was a prejudgment motion to reconsider the oral ruling. While the court was “free to consider” what was essentially a request for “reargument” at “any time before entering the final judgment,” Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861, the court did not do so. Instead, it issued the written final judgment. When Murray then filed his notice of appeal after that final judgment had been entered, his notice of appeal “divest[ed] the district court of jurisdiction.” Garver v. Rosenberg, 2014 UT 42, ¶ 11, 347 P.3d 380. Of note, our supreme court has held that a prejudgment motion to reconsider does “not toll the time for appeal once a final judgment [is] entered.” Gillett, 2006 UT 24, ¶ 7 n.2. We likewise see no basis for holding that a prejudgment motion to reconsider would somehow undermine the finality of a written final judgment or allow the court to retain jurisdiction after a notice of appeal has been filed. As a result, we agree with the parties that the only ruling properly before us is the original restitution order.
[3] The legislature recently amended the CVRA. The most recent version of the statute provides that the “court shall order a defendant, as part of the sentence imposed,” to “pay restitution to all victims: (i) in accordance with the terms of any plea agreement in the case; or (ii) for the entire amount of pecuniary damages that are proximately caused to each victim by the criminal conduct of the defendant.” Utah Code § 77-38b-205(1)(a) (2023).
[4] The version of the statute that governed at the time of Murray’s sentencing did not expressly state that restitution could be awarded for damages “proximately caused” by the offense, see Utah Code § 77-38a-302(1) (2019), but our supreme court had interpreted that statute as containing such an allowance, seeState v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132. The statute has since been amended to expressly incorporate the proximate cause standard. See Utah Code § 77-38b-205(1)(a)(ii) (2023).
[5] Something somewhat similar can be true outside the proximate cause context too. In State v. O’Bannon, 2012 UT App 71, ¶ 38, 274 P.3d 992, for example, we recognized “a basis under Utah law for holding a defendant culpable for causing death even when other factors contributed to the victim’s death.”
Unless a court were to order that a parent was barred from traveling out of state or out of the country with the children on vacation, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country on vacation, even if the other parent objects. Of course, if a parent wanted to travel somewhere that is clearly dangerous for anyone or clearly dangerous or deleterious to the children given their age or other relevant factors, a parent could object to traveling there with the children on that basis, but you’ll notice that the basis of the objection wouldn’t be “I don’t want the children traveling there with you” but an objection based upon placing the children in harm’s way. Otherwise stated, if the other parent simply doesn’t like the idea of you traveling out of state or out of the country with the children, that alone would not be a sufficient basis to prevent the children from traveling there.
Now at the beginning of this post I stated that unless a court were to order that a parent was barred from traveling out of state or out of the country with the children, a joint legal and custodial parent has an unfettered right to travel with the children out of state or out of the country, even if the other parent objects. Such an order would be very hard to come by.
Parents have a constitutional right to travel freely, and thus a constitutional right to travel freely with their children if they have sole or joint custody of those children. For a court’s order barring or restricting travel to survive and appeal and be legally enforceable, the court would have to have very good reasons for restricting a parent’s right to travel with the children, such as a parent having abducted or attempted to abduct the children in the past, that parent’s effort to abscond with and conceal the children from the other parent, whether the parent is a flight risk, the parent’s history of interfering with parent-time or visitation, and failure to provide required notices in advance of travel with the children.
Third District Juvenile Court, Salt Lake Department
The Honorable Monica Diaz
No. 1207437
Kelton Reed and Lisa Lokken
Attorneys for Appellant
Sean D. Reyes, John M. Peterson, and Carol L.C.
Verdoia, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and AMY J. OLIVER.
PER CURIAM:
¶1 R.S. (Mother) appeals the juvenile court’s order terminating her parental rights with respect to K.R. (Brother) and R.B. (Sister) (collectively, the children). Mother alleges the juvenile court exceeded its discretion in determining that it was strictly necessary to terminate her rights rather than awarding permanent custody and guardianship to the children’s maternal grandmother (Grandmother). We affirm.
¶2 In January 2022, the Department of Child and Family Services (DCFS) received a report that Mother was using drugs and neglecting Sister, who was an infant at the time. Four-year-old Brother was already living with Grandmother, and DCFS soon placed Sister with Grandmother as well.
¶3 Following a disposition hearing, the Court set a primary goal of reunification and set up a child and family plan. Mother received an initial substance abuse and mental health assessment but made no progress toward receiving treatment. She took only five of ninety-six required drug tests and tested positive on all five.
¶4 Nevertheless, Mother continued to demonstrate an attachment to the children. She participated in visits with the children on a bi-weekly basis, although she did miss some visits and had not seen the children for several weeks prior to the termination trial. The visits were supervised by a DCFS caseworker (Caseworker), and the children had to travel six-and-a-half hours round trip to attend. On some occasions, Mother cancelled visits without notifying Grandmother, leading the children to make the trip unnecessarily. Brother became upset when Mother missed visits with him.
¶5 Early on, Caseworker observed Mother having “inappropriate conversations” with Brother regarding Grandmother, such as telling him that Grandmother was not properly caring for him. Caseworker would redirect Mother to more appropriate topics, and “with reminders, this behavior . . . stopped.” Mother engaged with the children during visits and planned activities for them to do together.
¶6 Grandmother and Mother used to have a good relationship, but it had deteriorated due to Mother’s drug use and the DCFS case. According to Grandmother, Brother’s behavior would “deregulate[] for a couple days” after visits with Mother and he would become belligerent toward Grandmother. Mother would send Grandmother insulting text messages, and she had trouble respecting boundaries Grandmother set. Both women indicated they would not be comfortable “co-parenting” with one another.
¶7 Following the termination trial, the juvenile court found several grounds for termination, which Mother does not challenge on appeal. The court then turned to the best interest analysis, including the question of whether termination of parental rights was strictly necessary.
¶8 The court considered whether awarding permanent guardianship to Grandmother was an alternative to termination that could “equally protect and benefit the children.” However, the court ultimately determined that termination was strictly necessary for the following reasons:
· Mother and Grandmother “do not have a relationship” and are “unable to communicate regarding the children’s needs and wellbeing.” And while Grandmother attempts to set reasonable boundaries, Mother does not respect them. Mother herself acknowledged that “having her and [Grandmother] co-parent would not be healthy for the children.”
· Mother had a history of making inappropriate comments regarding Grandmother to Brother during parent time. These comments led Brother to become belligerent toward Grandmother following visits. Although Mother had stopped making such comments at the direction of Caseworker, the court was concerned that she would “revert to making these comments, without the oversight of the Division.” The court found that pitting the children against their caregiver in this way was “unhealthy” for their “emotional development and wellbeing.”
· Visits with Mother “are emotionally hard on the children.” Brother experiences behavioral problems after visits with Mother.
· The children have to travel six-and-a-half hours round trip to visit Mother. Because Mother does not communicate with Grandmother, she does not let her know when she is unable to attend visits. This has led the children to “endure the travel time needlessly.” Additionally, it is emotionally hard on Brother when Mother misses visits. The long travel time, emotional harm due to missed visits, and Mother’s inability to communicate with Grandmother combine to undermine the children’s stability. “They need to know that their relationships are stable and that they can count on the adults in their lives. . . . [Mother] missing visits undermines and disregards the children’s psychological and emotional security.”
· The children are happy and thriving in Grandmother’s care. She addresses their physical, mental, developmental, and emotional needs. The children are bonded to their extended family, which consists of Grandmother’s husband and other children living in Grandmother’s home. The children “need a permanent home,” and “[f]rom the children’s point of view, that home is [Grandmother’s] home.”
Based on these factors, the court found that termination of Mother’s parental rights was “strictly necessary from the children’s point of view.”
¶9 Mother challenges the juvenile court’s determination that termination of her rights was strictly necessary. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.W., 2022 UT App 131, ¶ 45, 521 P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah 2023). “We will overturn a termination decision only if the juvenile court either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified).
¶10 Mother asserts (1) that the court did not appropriately weigh certain evidence and (2) that the court inappropriately focused on the needs of the adults rather than the children by basing its decision on Mother and Grandmother’s inability to “coparent” the children.
¶11 Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. And this analysis must be undertaken from the child’s point of view. See Utah Code § 80-4-301(1); In re B.T.B., 2020 UT 60, ¶ 64. “Termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re J.P., 2021 UT App 134, ¶ 15, 502 P.3d 1247 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. (quotation simplified).
¶12 The strictly necessary analysis “is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “[I]f a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference.” In re B.W., 2022 UT App 131, ¶ 69. Thus, a parent’s mere dissatisfaction “with the manner in which the juvenile court weighed the evidence . . . has no traction on appeal.” In re J.P., 2021 UT App 134, ¶ 23.
¶13 Mother argues that the court’s finding that Brother was upset when she missed visits should weigh against a finding that termination was strictly necessary. She also asserts that the court should have given more weight to her recent history of stopping her inappropriate comments to Brother rather than inferring that she was likely to resume such comments in the future. These arguments ultimately take issue with “the manner in which the juvenile court weighed the evidence” rather than its compliance with its statutory mandate. See id. The court’s findings are entitled to deference, and we will not disturb them on appeal. See In re B.W., 2022 UT App 131, ¶ 69.
¶14 Mother next asserts that the court’s focus on her and Grandmother’s inability to “co-parent” the children was inappropriate and led it to consider the strictly necessary analysis from the adults’ perspective rather than the children’s perspective. See Utah Code § 80-4-301(1) (dictating that the strictly necessary analysis must be undertaken from the child’s point of view). Mother argues that a permanent custody and guardianship order does not result in “co-parenting” but rather involves “the Guardian call[ing] the shots” while “the parent has a handful of residual rights.” We take Mother’s point that co-parenting may not have been quite the right term to use in describing the relationship between a parent and a permanent guardian.[1] However, we are more concerned with the substance of the court’s analysis than the term it used. And that analysis indicates that the court’s true concern was whether it was in the children’s best interests to be pitted between a parent and guardian who could neither cooperate nor communicate with one another.
¶15 “[L]ong-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent.” In re J.P., 2021 UT App 134, ¶ 22 (quotation simplified). Thus, when a parent and guardian have “little to no relationship,” the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. See id. That is what the juvenile court found here, and such a finding was not an abuse of its discretion under the circumstances.
¶16 Furthermore, we are not convinced that the juvenile court inappropriately conducted the strictly necessary analysis from the adults’ point of view rather than that of the children. The court explicitly discussed the effect Mother and Grandmother’s inability to cooperate had on the children, finding that being put in the middle of the conflict was “unhealthy” for the children’s “emotional development and wellbeing” and undermined their stability, that the children suffered when Mother did not communicate with Grandmother about missing visits, and that Mother herself acknowledged that the conflict was “unhealthy” for the children. These findings indicate that the court considered the conflict between Mother and Grandmother from the children’s point of view in determining that the conflict made termination of Mother’s rights strictly necessary.
¶17 The juvenile court here carefully considered whether the children could be equally benefited and protected by a permanent custody and guardianship arrangement as opposed to termination of Mother’s parental rights. It also made detailed findings in support of its determination that termination was strictly necessary from the children’s point of view. Accordingly, the juvenile court’s decision to terminate Mother’s parental rights is affirmed.
[1] Nevertheless, as the guardian ad litem observes, it is not apparent from the record that Mother was “up to the tasks involved with residual parental rights,” given that she has not paid child support, has not respected the boundaries Grandmother has put in place, has not progressed past supervised visitation, and has disappointed the children by failing to communicate about missed visits.
Sean D. Reyes, Christopher D. Ballard, and William
M. Hains, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 William John Arnold’s ex-wife, Tabitha,[2] reported to police that one evening Arnold broke into her home and spent the night with her while threatening her with a gun. The undisputed details of the night include Arnold choking Tabitha and punching her in the face, firing the gun into a mirror behind her, driving her around to various locations, trying to convince her to shoot him or else threatening to do “suicide by cop,” and leaving the next morning with the gun. The two also had sexual intercourse, which Tabitha testified was not consensual. After a trial, a jury convicted Arnold on nine charges related to these events. Arnold now claims his defense attorney (Counsel) provided ineffective assistance and appeals his convictions on seven of the nine charges: aggravated burglary, aggravated robbery, aggravated kidnapping, aggravated sexual assault, theft, criminal mischief, and felony discharge of a firearm with injury. He asserts that Counsel performed deficiently for failing to (1) object to erroneous jury instructions for the charges of aggravated sexual assault, aggravated kidnapping, and theft; (2) move for a directed verdict on or object to the jury instructions concerning the criminal mischief charge; (3) move for a directed verdict on the charge of discharge of a firearm with injury; and (4) object to Tabitha’s testimony that she believed Arnold to be a felon. Arnold argues that he was prejudiced by each of these alleged deficiencies. We ultimately conclude that—for each claimed instance of ineffective assistance—either Counsel did not perform deficiently or Arnold was not prejudiced. As a result, we affirm all of Arnold’s convictions.
¶2 Arnold and Tabitha shared a “tumultuous, on-again-off-again relationship” for about a decade. The two were divorced just over a year after their marriage, yet they continued their romantic relationship after the divorce despite their recurring fighting. However, by December 2019, Tabitha had evicted Arnold from her home. When he returned later that month, Tabitha called the police, and officers came and informed Arnold that he was no longer allowed to come to the house. Arnold was supposed to return all the keys he had to Tabitha’s home, but he failed to do so.
Arnold Arrives and Assaults Tabitha
¶3 One night in February 2020 at approximately 9:30 p.m., Tabitha was sitting in her home office at her computer and was “startled . . . and scared” to look up and see Arnold standing in the doorway. He had been watching her home from a distance through binoculars for a couple of hours and later admitted that he knew he was not allowed to be there. But he came into the home and told Tabitha he was there to retrieve the title to a pickup truck the two had discussed in the past. Tabitha told Arnold that he had already taken the title and it wasn’t there, but he began ransacking her office and then her bedroom looking for it. Arnold was “very, very agitated.” Tabitha testified that when she said the truck was technically hers, Arnold grabbed her by the neck and lifted her off the ground. She said she couldn’t breathe and feared passing out or dying, so she scratched Arnold’s face to try to get loose. Arnold admitted to choking her but claimed her feet remained on the ground and that she scratched him after he let her go. Arnold responded by punching her in the eye with a closed fist. He said he “know[s] she’s frail” and “[s]he bruises and breaks easy because all the medication she’s on” but that he “barely hit her.” Tabitha, on the other hand, said the hit was so hard that she “saw stars” or “a bright light.” A later CT scan revealed multiple broken bones around Tabitha’s left eye. After Arnold’s punch, Tabitha felt dizzy and like she “had a black eye” that was “starting to swell” and “was going to swell so bad it would swell shut.” Shortly thereafter she could no longer see out of that eye.
Arnold Obtains and Shoots a Gun
¶4 As Arnold continued ransacking Tabitha’s bedroom in search of the title, he found a loaded .22-caliber pistol she had hidden under her bed. When Counsel later cross-examined Tabitha about the gun, he asked, “He didn’t bring his own .22-caliber pistol to your house to kill you, as far as you know, did he?” Tabitha responded, “I believe he is a felon. He’s not allowed to own a weapon.” On appeal, Arnold claims that Counsel should have objected to this statement. Instead, Counsel said, “Well, that’s not my question. He didn’t bring a gun to your house, did he?” Tabitha responded, “No, he didn’t.”
¶5 Arnold admitted that he removed the gun from under Tabitha’s bed and that she didn’t give it to him, but he said, “I don’t think I took it either, but—I mean, 17 years in the oil field giving her my paycheck, I seem to think half of everything is mine.” He agreed, though, that no property distribution between the parties had been adjudicated. He relayed that the gun had belonged to Tabitha’s ex-husband and had been in pawn when the two “got together” and that Arnold had paid to release it from pawn because she had no money at the time. When the prosecutor asked on cross-examination, “And you didn’t have permission to take that gun, did you?” Arnold responded, “Other than the fact that I paid for it.” But he agreed that the gun had been in Tabitha’s possession when the evening began and that he took it with him when he eventually left Tabitha’s home the next morning.
¶6 Tabitha testified that when Arnold picked up the gun he commented, “Somebody’s going to die tonight, and I’m going to do suicide by cop.” At the time, Tabitha was standing across the bed from Arnold. He chambered a round and, according to Tabitha’s testimony, threatened to kill her while he pointed the gun at her head, with her “looking right down the barrel.” Arnold fired the gun, and Tabitha testified that the bullet went “[r]ight past [her] head into [her] mirror on [her] dresser” and “through the mirror, into the wall.” Arnold testified that he actually pointed the gun at his own head. He claimed, “I wanted to kill myself, and I told her she’s going to watch. And I couldn’t do it. And then I shot my reflection [in the mirror] . . . .”
¶7 After Arnold shot the gun, Tabitha’s ears were ringing from the sound of the shot, and for some time she couldn’t hear. Arnold said something to her, but she was unable to hear what he was saying. “[E]ventually,” she regained her ability to hear.
¶8 Tabitha told Arnold she wanted a cigarette. Arnold testified, “She said if she’s going to die, [she] wants it to be her last one. I told her, ‘You’re not going to die.’ I go, ‘I want to die.’ And she was just under the impression—she was scared, I guess, after I choked her.” Tabitha testified that she had only one cigarette left and Arnold also wanted one, so she suggested that they go to town to get more. She also testified that she was afraid Arnold would kill her and she thought she could get some help in town.
¶9 Arnold eventually agreed to go to town, but before leaving he asked where Tabitha’s cell phone was. Tabitha told him it was in her office, and he told her to bring it to him. She did so, and he “beat it violently against [her] bedpost to the point he cracked [her] bedpost [and] completely destroyed [the] cell phone.” At trial, the prosecutor asked about damage to the bedpost, to which Tabitha responded that it was cracked and had a “chunk that [was] ready to fall out of it.” The prosecutor also asked about the value of the bedpost or the cost of the damage, and Tabitha answered, “That bedpost actually will screw off, and to really fix it you’d have to have another one made. The cost of it, I have no idea.” The prosecutor inquired about the value of the cell phone that was destroyed, and Tabitha said, “I think I paid $600 for it. It’s got no value now.”
Arnold Drives Tabitha to Various Locations
¶10 At approximately 2 or 3 a.m., Arnold and Tabitha left the house to go to town, with Arnold driving Tabitha’s car. Tabitha testified that Arnold did not have a driver license because it was revoked after a DUI. Still, Arnold drove and brought the gun, which Tabitha testified was in his lap but Arnold testified was under the seat. Arnold said he didn’t kidnap Tabitha but that, instead, he told her she could leave at any time and she could have done so.
¶11 They drove first to one gas station, but it was closed, so they drove around and eventually went to another. Tabitha said Arnold went into the store and took the keys with him. But Arnold said that he asked her if she wanted him to leave the car running and she said she didn’t care, so he turned it off like they usually did and left the keys in the ignition. When asked what Arnold did with the gun when he went into the gas station, Tabitha testified, “I don’t remember. I think he took it with him.” When the prosecutor asked, “Do you remember seeing it in the vehicle when he left?” she responded, “No.” Arnold stated that he left the gun under the seat while he went in the store, but he admitted he didn’t “know if she knew where it was at or not.”
¶12 Tabitha did not get out of the car. She testified that she stayed in the car because Arnold told her “if [she] ran [she’d] be hunted down and killed.” She also said, “I’m old.[4] There is no run left in me. And looking around, it was cold out there and there was nowhere to go for help.” Arnold testified that he never said he would hunt Tabitha down nor threatened to kill her. Tabitha testified that while Arnold was in the store, another vehicle pulled up, but she didn’t attempt to ask the driver for help because “[i]t was a young man in that truck, and he wasn’t a big man.” She said, “I thought, I don’t want to be responsible for someone else getting hurt over this.” She also felt unsure as to whether the man would help her.
¶13 Arnold returned to the car and drove toward the residence of an acquaintance, saying he hated the man and wanted to kill him. But then Arnold stopped the car and handed the gun to Tabitha, instructing her to kill Arnold. Tabitha responded that she couldn’t do that. She set the gun on the floor and “was kind of scooting it back under the seat,” but Arnold soon asked for the gun back, and Tabitha gave it back to him. She testified that she did so because she “didn’t want to fight” and she “didn’t want to be hurt anymore.” Arnold testified that he gave Tabitha the gun four times—twice at the house and twice in the car—to get her to kill him but that “[s]he told [him] she couldn’t.” He said, “I wanted to get her mad so she would.” While they drove, Arnold talked about “all the horrible things that [Tabitha had] done to make his life miserable.” Tabitha said she lost track of time and felt like the whole thing was a nightmare. She also testified that she never tried to leave because she “didn’t know” and “didn’t want to find out” exactly what would happen to her if she tried it; but she said, “I knew he’d come after me.”
¶14 Eventually, the pair returned to Tabitha’s house, but only to retrieve the binoculars Arnold had earlier been using to watch Tabitha’s house. Arnold then drove Tabitha to his residence. Tabitha testified that she still did not feel like she could leave while they drove around because Arnold “would come after” her. She said she still stayed with him because she didn’t want to be hurt or have her stuff destroyed, and she “just want[ed] to get through [the] night.” They arrived at Arnold’s place, and when a police car drove by, Arnold made Tabitha duck down so she couldn’t be seen.
¶15 Arnold next took Tabitha to a site where the disputed truck was parked, told Tabitha to get out and drive the truck, and started driving away in Tabitha’s car. The truck windows were covered in ice, so Tabitha rolled down the window and stuck her head out to drive, but she hit something as she exited the site, taking the passenger side mirror off. At trial, Arnold postulated that the fractures around Tabitha’s eye came from hitting her eye on the truck door during this incident, rather than from his punch. Tabitha testified that she thought about driving to get help but didn’t do so because it was very cold, she couldn’t see where she was driving, she had already learned from driving around town that there was no one out to provide help, and she didn’t know if Arnold would come after her. So instead of driving for help, she used Arnold’s taillights as a guide and followed him back to her house.
The Pair Return and Have a Sexual Encounter
¶16 After returning home, Tabitha sat in front of the fireplace because she was “freezing cold.” Arnold sat in her living room recliner with the gun in his lap. Tabitha testified that she didn’t attempt to call anyone because Arnold would hear her and she “would be hurt or killed” and “wouldn’t get any help until it was too late.” But Tabitha sent two messages for help while Arnold was in her home—one early in the night (around 9:45 p.m.) to her sister telling her to call 911, and the other through the computer at approximately 4 a.m. to an acquaintance who is a police officer. Tabitha recounted that the later message said “something along the lines of, ‘911. [Arnold’s] here.’” Tabitha did not receive replies at the time.
¶17 At some point, Arnold told Tabitha, “I would like to . . . lay down and hold you in my arms one last time.” Tabitha reported that she said, “‘Okay,’ hoping that maybe he’d fall asleep.” Tabitha testified that she was agreeing “[t]o laying down and having [a] snuggle together and hopefully he’d go to sleep” and that she was not wanting or agreeing to anything more than that. Tabitha removed her shoes and pants and lay down with Arnold in the bed. She testified that she took her pants off “[b]ecause they were dirty and [she] didn’t want [her] sheets to be all nasty dirty.” Tabitha then lay with her back to Arnold’s front. She testified that Arnold kept the gun with him and told her, “If I fall asleep, don’t you touch that gun.”
¶18 Tabitha testified that she felt Arnold getting an erection, and he began pulling on her underwear. She testified, “I can just remember thinking, I have this huge black, swollen eye and everything we’ve gone through this night, and you want to have sex? . . . Are you nuts?” She testified she was “bawling and saying, ‘No. Please, no. No. I don’t want to. No.’” She said she “couldn’t believe . . . [that] anyone [could] do that to someone and then want to have sex.” But Arnold persisted and performed oral sex on Tabitha and then penetrated her vaginally. Throughout this encounter, Tabitha did not physically resist because “she didn’t want to be hurt anymore” and she “just wanted to get through that night.” Tabitha testified that Arnold kept the gun on his side of the bed during the sexual encounter. She also said he stated, “Boy, I’m a sick fuck,” which Tabitha thought referred “to beat[ing] someone and treat[ing] someone that way and then want[ing] to have sex with them.” After intercourse, the pair got cleaned up, and Arnold went to sleep. But Tabitha took pain medication and stayed awake.
¶19 Arnold’s testimony regarding the sexual encounter was different. He testified that after Tabitha removed her pants, she got in bed and “crawled . . . literally right up to [him] and start[ed] rubbing on [him] real tight.” He admitted that he was warm and Tabitha may have been trying to warm up. He also admitted that Tabitha would sometimes get into bed without pants on and they wouldn’t always have sex on such occasions. But he testified that this time, while they had sex, Tabitha didn’t resist or pull away. He said, “Actually, when I was going down on her, she was rubbing her fingers through my hair just like she always does. And when I got done and lifted my head up, she—I didn’t push her legs up; she pushed her legs up herself, lifted them.” He also said, “[W]e’ve had fights before where we’ve made up like that.” He further claimed, “There’s been times where I didn’t have sex with her and she told me, you know, ‘I got a very high sex drive. If you would have just pushed me a little further, I would have.’ And she tells everyone she has a high sex drive.” He again stated later, “She said no before and then changed her mind and told me the next day, ‘Well, I really wanted to. Why [weren’t] you just a little more persistent? You know I got a high sex drive.’”
¶20 Arnold also indicated that, in the past, the two had had sex after Tabitha had been violent toward him. He recounted a time when the pair had gotten into an argument and were throwing each other’s clothes out the front door and she got a gun. He stated,
I went out on the porch and I told her, “If you’re going to shoot me, shoot me, then, bitch.” And I started grabbing my clothes and bringing them back in, and she goes, “You ain’t bringing your clothes back in and you ain’t stepping back in.” And she cocked it back and pointed it at my head, and I grabbed it and pushed it down.
I should have pushed it up, but I wasn’tthinking; and I pushed it down and it shot through my leg.
Arnold testified that the pair had sex a week later, and he said he was fully recovered by then. He said that they would “always fight and have sex afterwards,” including after occasions when she scratched and hit him. He declared that he believed her feelings on the night in question were like those other, previous times when she said no but the next day “got mad at [him] because [he] wasn’t persistent.” However, Arnold acknowledged that he did, in fact, hear Tabitha say no two times during the sexual encounter. As to the location of the gun during the encounter, Arnold testified that Tabitha was the one to set the gun on the bed after the last time he told her to shoot him and that it was down by their feet while they had sex.
Arnold Leaves and Tabitha Prompts an Investigation
¶21 Tabitha said that when Arnold woke up, he asked Tabitha for money while holding the gun, and she gave him the money she had in her coat pocket—between ten and fifteen dollars—to get him to leave. Arnold agreed that he asked for money and Tabitha gave it to him before he left. Counsel asked Arnold, after Tabitha initially told him she wanted him to leave the evening before, “Was it your impression or was it not your impression that you were okay to stay there?” Arnold responded, “I knew I probably wasn’t okay to stay there.”
¶22 After he left, Tabitha said she waited for about fifteen minutes in case he was watching, then crawled from the living room to the landline telephone in her office and called the police. She said she did this because she thought, “He’s gone but he could be watching me. If he sees me get that phone, he’s going to come back and get me and I’m going to have to live through more of this.”
¶23 Tabitha met with officers that morning and described the events of the night, but she did not initially tell officers that she had been raped. She later explained that she was ashamed and was reluctant to disclose the rape to the officers because “there [were] a bunch of men hanging around” and because of the “huge stigma” associated with rape. But after meeting with the officers, she went to the hospital for an examination, and there she informed medical personnel, who were women, that she had been raped.
¶24 The sexual assault nurse examiner (Nurse) who examined Tabitha at the hospital testified at trial that she remembered Tabitha’s exam “far more” than she remembered most exams “[b]ecause of the number of injuries that [Tabitha] had.” She testified that she identified various injuries on Tabitha: a black eye that was “quite bruised, quite swollen,” bruising on her neck consistent with strangulation, “swelling on the right side of her head,” bruising on both elbows, and bruising above both biceps “consistent with having been grabbed.” Regarding injuries in Tabitha’s vaginal area, Nurse reported “extensive bruising at the posterior of the vaginal wall,” bruising of the perihymenal tissue, bruising on the cervix, bruising on the tissue below the vaginal wall, and a laceration on “the outermost part of the inferior vaginal wall.” Nurse opined that these injuries were “more consistent” with Tabitha having been sexually assaulted than having had consensual sex. She also testified that, during the exam, Tabitha “expressed fear that she would be killed” and “frequently was tearful and asked, ‘Why did this happen[?]’” On cross-examination, Counsel asked Nurse to read a line from her written summary of the account Tabitha gave during the examination, which stated that while driving, Tabitha had “hit something and hit her eye on the door.”
¶25 Based on its investigation, the State charged Arnold with (1) attempted aggravated murder; (2) aggravated burglary; (3) aggravated robbery; (4) aggravated kidnapping; (5) aggravated sexual assault; (6) theft; (7) aggravated assault; (8) purchase, transfer, possession or use of a firearm by a restricted person; (9) violation of a protective order; (10) retaliation against a witness, victim, or informant;(11) criminal mischief; and (12) felony discharge of a firearm with injury.
Additional Relevant Testimony Is Given at Trial
¶26 At trial, in addition to the testimonies detailed above, the emergency room doctor testified that a possible side effect of Tabitha’s medications was easy bruising, though Nurse indicated that none of Tabitha’s listed medications were blood thinners.
¶27 Three deputies (Deputy 1, Deputy 2, and Deputy 3) who responded to Tabitha’s 911 call also testified. Deputy 1 testified that when he arrived, he found that Tabitha “had a large . . . swelling to her left eye that was rather significant that caused pretty great alarm,” so he requested a medical response to the scene. Deputy 2 testified that Tabitha appeared “[h]ighly emotional” and that “[h]er voice was trembling [and] she was shaking.” He also testified, “One of the first things she said to me was that, ‘You have to find him, you have to find him. He’s going to kill somebody.’” Deputy 3 likewise indicated that Tabitha’s eye “was completely swollen shut and blood-filled and couldn’t have any visual,” that Tabitha was “[v]ery distraught, very emotional,” and that “[i]t was very hard for her to complete and construct her sentences and her thoughts.” Additionally, Deputy 1 and Deputy 3 testified that Tabitha said she was taking blood thinners.
¶28 Deputy 3 testified about an outstanding protective order against Arnold that Tabitha had obtained in 2012 (before the parties had been married). Deputy 3 testified that the protective order was still active and it prohibited Arnold from going to Tabitha’s home and from contacting her via phone, email, or other methods. On this point, Arnold testified that Tabitha had told him that protective orders go away after two years. And Tabitha testified that she thought the protective order worked both ways and prevented both parties from interacting with each other.
¶29 Deputy 1 and Deputy 3 testified about the bullet hole through the mirror, and Deputy 3 also testified that there were multiple holes in the wall, likely from “fragments of the dresser and . . . the lead [from the bullet] going through that wall.” Deputy 3 also testified that he believed the location of a bullet casing he found to be consistent with Tabitha’s description of the shooting.
¶30 Deputy 2 testified that he and other officers arrested Arnold at his residence that morning, where they also found the gun. Deputy 3 testified that Arnold had a scratch on his face consistent with Tabitha’s account of the events. And he testified that Arnold, upon arrest, had twelve dollars in his pants, also consistent with Tabitha’s account.
¶31 Deputy 3 testified that four days later he interviewed Tabitha again and found her “a lot more rational, calm, collected” and able to provide “more detail” into the events, which change, he testified, was normal and expected for victims of these types of crimes. He also testified that a vaginal swab, which had been collected as part of Tabitha’s rape examination and subsequently sent to the state lab for testing, matched a sample of Arnold’s DNA, which had also been sent to the state lab. On cross-examination, Deputy 3 confirmed that Tabitha had told him that while driving Arnold handed her the gun twice but took it back when she wouldn’t shoot him.
The Jury Convicts on Nine Charges
¶32 After all the witnesses testified, the State withdrew the attempted murder charge before submitting the case to the jury. On the charge of possession or use of a firearm by a restricted person, the jury instructions indicated that the parties stipulated that Arnold “was a Category II restricted person at the time of the alleged offense.” The jury deliberated and acquitted Arnold of the charges of violating a protective order and retaliating against a witness, victim, or informant but convicted him of all nine remaining charges. Of these, Arnold now appeals his convictions on seven charges: aggravated burglary, aggravated robbery, aggravated kidnapping, aggravated sexual assault, theft, criminal mischief, and felony discharge of a firearm with injury.
ISSUES AND STANDARD OF REVIEW
¶33 Arnold claims that Counsel provided ineffective assistance and that, accordingly, seven of his convictions should be reversed. Arnold presents several issues, asserting that Counsel was ineffective for (1) not objecting to erroneous jury instructions for the aggravated sexual assault, aggravated kidnapping, and theft charges; (2) not moving for a directed verdict on or objecting to the jury instructions for the criminal mischief charge; (3) not moving for a directed verdict on the discharge of a firearm charge; and (4) not objecting to Tabitha’s testimony that she believed Arnold to be a felon.
¶34 “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).
ANALYSIS
¶35 “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [defense] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶36 The first prong “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he proper standard for attorney performance is that of reasonably effective assistance.” Id. In other words, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up).
¶37 The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. We address each of Arnold’s assertions of ineffective assistance in turn.
I. Counsel’s Failure to Object to Jury Instructions
¶38 Arnold claims, “The jury was not properly instructed on three offenses . . . . Specifically, the jury was not instructed on two elements of aggravated sexual assault (the mens rea for consent and the requirement that a dangerous weapon be used ‘in the course’ of the crime), key statutory language for aggravated kidnapping, and affirmative defenses to theft.” He asserts that “[C]ounsel’s failure to object to the erroneous instructions or propose correct instructions constituted ineffective assistance . . . .” “Absent some tactical explanation, defense counsel’s failure to object to a jury instruction that does not alert the jury to every element of the crime with which [the defendant] was charged constitutes deficient performance.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up).
¶39 Even if we assume without deciding that Counsel’s performance was deficient in this respect, Utah and United States caselaw indicate:
A proper analysis also needs to focus on the evidence before the jury and whether the jury could reasonably have found that . . . a failure to instruct the jury properly undermines confidence in the verdict. . . . A court must consider the totality of the evidence before the judge or jury and then ask if the defendant has met the burden of showing that . . . there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Ultimately, a reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (cleaned up) (discussing Strickland v. Washington, 466 U.S. 668, 694–96 (1984)). After considering the totality of the evidence presented to the jury, we conclude that Arnold was not prejudiced by any of the erroneous jury instructions. We address each of the relevant jury instructions in turn.
A. Aggravated Sexual Assault
¶40 Arnold first alleges ineffective assistance because Counsel did not object to the jury instruction on sexual assault based on two errors. The instruction in question read,
You cannot convict him of this offense unless you find beyond a reasonable doubt based on the evidence each of the following . . . elements: that [Arnold] did knowingly, intentionally, or recklessly have sexual intercourse with [Tabitha] without her consent and used or threatened her with the use of a dangerous weapon.
Arnold asserts that this instruction failed to properly instruct the jury on the mens rea requirement for this charge and failed to provide the statutory language that the use or threat of use of the dangerous weapon must have occurred “in the course of” the sexual assault. See Utah Code § 76-5-405(2)(a).
1. The Mens Rea Requirement
¶41 Our supreme court has explained that “the crime of rape requires proof not only that a defendant ‘knowingly, intentionally, or recklessly had sexual intercourse,’ but also that [the defendant] had the requisite mens rea as to the victim’s nonconsent.” State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d 676. This means a jury should be instructed that a defendant accused of rape must have acted knowingly, intentionally, or recklessly as to the victim’s nonconsent.[5]
¶42 “A person engages in conduct . . . [r]ecklessly with respect
to circumstances surrounding [the actor’s] conduct or the result of [the actor’s] conduct when [the actor] is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Utah Code § 76-2-103(3).
¶43 In State v. Barela, 2015 UT 22, 349 P.3d 676, a massage therapist and client presented different accounts of a sexual encounter, with the therapist testifying that the client initiated and engaged in sex and the client testifying that the therapist— without encouragement or consent—inappropriately rubbed her inner thigh during the massage and then penetrated her vaginally, id. ¶¶ 5–7. In evaluating a jury instruction very similar to the one at issue here, id. ¶ 25, our supreme court concluded that “reasonable trial counsel should have objected to it,” id. ¶ 27. And the court ultimately determined that the faulty jury instruction was prejudicial to the defendant. Id. ¶ 32. Later, discussing Barela in another case, the court explained,
This court found that the evidence was such that a jury could have “thought that the truth fell somewhere in between the two accounts.” While the victim in that case said the defendant had suddenly instigated and perpetrated the intercourse without her consent, she testified that she “froze,” “neither actively participating in sex nor speaking any words,” and otherwise expressed no reaction. This court concluded that a jury could have believed that although the victim did not consent, the defendant may have mistakenly thought she did. Accordingly, we held that it was “reasonably likely” that a proper jury instruction regarding the requisite mental state as to the victim’s nonconsent could have affected the outcome of the trial.
State v. Norton, 2021 UT 2, ¶¶ 48–49, 481 P.3d 445 (cleaned up).
¶44 On the other hand, in State v. Newton, 2020 UT 24, 466 P.3d 135, our supreme court found that a defendant was not prejudiced as a result of similarly deficient jury instructions, id. ¶¶ 19, 30. The defendant faced rape charges based on the victim’s account that, after a party, the defendant attacked her in his car and violently forced her to have sex despite her screaming, crying, and fighting back and that he also choked her and pointed a gun at her. Id. ¶ 4. The defendant told a different story, claiming that the victim initiated and participated willingly in sex. Id. ¶ 6. The court determined that the defendant was not prejudiced because neither version presented the possibility that the victim didn’t consent but the defendant reasonably believed she did. Id. ¶ 34. The court explained that because “the evidence shows only that she either fought back or initiated the sex[,] . . . the jury could not easily have thought that the truth fell somewhere in between the two accounts.” Id. (cleaned up). “So in convicting [the defendant], the jury must have found that [the victim] did not consent and, by extension, must have concluded that [the defendant] intentionally, knowingly, or recklessly had nonconsensual sexual intercourse with [the victim].” Id. (cleaned up). The court noted that the victim’s version of the events was also corroborated by extensive injuries identified during her medical examination, including genital injuries that would have been painful enough for her to stop consensual intercourse, evidence of strangulation, and bruising on her arms and legs. Id. ¶ 35. Accordingly, the court concluded that the evidence supported a jury determination that the defendant was at least reckless as to the victim’s consent. See id. ¶¶ 35–36. Because its confidence in the outcome was not undermined, the court found no prejudice. See id.
¶45 Likewise, in State v. Norton, 2021 UT 2, 481 P.3d 445, our supreme court held that similar instructions were not prejudicial, id. ¶¶ 38–39, 49–51. There, a woman accused her estranged husband—against whom she had a protective order—of breaking into her parents’ home, assaulting her and tying her up with duct tape, abducting her, and forcibly penetrating her vaginally while holding her down. Id. ¶¶ 1, 5–9. She testified that she said “no” repeatedly and also physically resisted. Id. ¶¶ 8–9. The estranged husband, on the other hand, described how the wife willingly left with him and initiated physical affection that resulted in consensual sex. Id. ¶¶ 14–16. He testified that the pair later argued and “rastled,” including him backhanding her and grabbing her hands. Id. ¶ 17. The jury convicted the husband of aggravated sexual assault and other charges, and he argued on appeal that the jury instructions were prejudicial because they did not identify the mens rea regarding consent. Id. ¶¶ 20, 33. Our supreme court disagreed, concluding that “a reasonable jury could not have found that [the husband] mistook [the wife’s] conduct for consent based on the totality of the evidence.” Id. ¶ 42. This was because the husband’s “testimony did not describe ambiguous behavior that he could have believed was consent,” the wife’s “testimony similarly left no room for a finding that [the husband] mistook her conduct for consent,” and “[o]ther evidence corroborated her version of events”—including the use of duct tape and injuries on the wife’s back, face, inner thighs, and labia. Id. ¶¶ 43–45.
¶46 The State argues that “[t]he facts here contain none of the subtlety that drove the result in Barela. Rather, as in Newton and Norton, the only issue was whose version of consent to believe.” We disagree. Unlike in Newton and Norton, Arnold’s and Tabitha’s accounts are not so very different that the jury must have chosen to believe one at the complete exclusion of the other. Both testified that Tabitha took off her pants, climbed in the bed, and lay with Arnold and that sex subsequently ensued. To be sure, the parties’ descriptions contained other contradictory facts. But we first acknowledge that this case is unlike Newton and Norton, where neither party testified to behavior that could have been construed to be ambiguous. See Norton, 2021 UT 2, ¶ 43; Newton, 2020 UT 24, ¶ 34. Indeed, Tabitha admitted that she did not physically resist Arnold because she “didn’t want to be hurt more,” and Arnold testified that Tabitha ran her hands through his hair as she normally would during oral sex and lifted her legs up on her own. In this respect, the present case is more like Barela, where there was behavior that was potentially ambiguous. See 2015 UT 22, ¶ 29.
¶47 However, unlike in Barela, both Arnold and Tabitha testified that Tabitha said “no,” with Tabitha stating that she did so repeatedly while sobbing and Arnold admitting that he heard her say “no” twice. We consider it critical to accept that “[n]o means no.” State v. Cady, 2018 UT App 8, ¶ 1, 414 P.3d 974, cert. denied, 421 P.3d 439 (Utah 2018). By admitting that Tabitha said no twice, Arnold would have to convince us that some exceptional circumstances applied to make it reasonable for him to believe that no—stated twice—actually meant yes. As explained below, he fails to accomplish this feat. While we agree with Arnold that this case is less straightforward than Newton and Norton and disagree with the State’s contention that “as in Newton and Norton, the only issue was whose version of consent to believe,” on the record before us, our agreement with Arnold on this point does not carry the day for him. Ultimately, we are not convinced that, on these facts, a reasonable jury could have looked “at the totality of the trial evidence here and [found] that, under either version of events, [Arnold] may have mistaken [Tabitha’s] conduct for consent.” See Norton, 2021 UT 2, ¶ 49.
¶48 Arnold asserts that the parties’ history made it reasonable for him to believe that Tabitha was consenting when she said “no.” He testified: “There’s been times where I didn’t have sex with her and she told me, you know, ‘I got a very high sex drive. If you would have just pushed me a little further, I would have.’” He also claimed that “[s]he said no before and then changed her mind and told me the next day, ‘Well, I really wanted to. Why [weren’t] you just a little more persistent? You know I got a high sex drive.’” But Arnold’s own testimony does not support a conclusion that he could have reasonably supposed that this was a time when Tabitha just wanted him to be more persistent.
¶49 First, we note that nothing in Arnold’s description of the parties’ past sexual history indicates that Arnold ever successfully changed Tabitha’s mind during the course of a sexual encounter. Her alleged statements on days after the couple did not have sex do not establish a history where Tabitha first said “no” but changed her mind during the course of sex—and her feelings on consent the day after not having sex do not reliably establish her feelings on consent at the time. But the more important question is whether Arnold could have reasonably believed Tabitha’s noes to be yeses here.
¶50 Arnold testified that the couple “had fights before where [they] made up like that,” meaning having sex, including after she “scratched and hit” him, as well as a week after she shot him in the leg, when he had fully recovered. Even if true, this testimony does not provide evidence of a single instance when Tabitha consented to having sex contemporaneously with Arnold physically assaulting her (rather than after she injured him), and it does not raise a reasonable inference or basis to conclude that she would have consented so soon after Arnold punched her in the face, breaking her facial bones, when her eye was still so swollen that she couldn’t open it.
¶51 But Arnold’s own testimony is even more damning. When speaking of Tabitha’s feelings that she was going to die that night, Arnold said, “And she was just under the impression—she was scared, I guess, after I choked her.” This shows his awareness that Tabitha was afraid for her life, which is not consistent with him reasonably believing that—despite saying no—she was willing to have sex with him. Certainly, some hours had passed between Arnold’s punch and the sexual encounter, but we are not convinced that Arnold could have reasonably believed that Tabitha’s fear turned into consent for sexual activity.
¶52 Furthermore, Arnold’s testimony was clear that he knew he was not welcome at Tabitha’s home both before he arrived and throughout the time he stayed. Arnold agreed when the prosecutor asked if he knew he wasn’t “supposed to be at her house” but “still went over anyways.” And the prosecutor confirmed, “So you came in the house uninvited, knew you weren’t supposed to be there; is that correct?” Arnold responded, “Yes.” The prosecutor then asked, “She told you to leave, but you didn’t leave?” and again Arnold replied, “Yes.” Separately, when Counsel was questioning Arnold about the circumstances around him leaving Tabitha’s home in the morning, he asked Arnold, “Was it your impression or was it not your impression that you were okay to stay there?” Arnold responded, “I knew I probably wasn’t okay to stay there.” It is beyond the limits of reasonability to believe that Arnold knew throughout the whole night that Tabitha was not okay with him staying in her home but that he thought she wanted to have sex with him in that very home. Therefore, Arnold’s testimony does not support a conclusion that he reasonably believed Tabitha was consenting to sex despite twice telling him no, and a correction to the jury instruction would not likely have made any difference on this point.
¶53 Beyond Arnold’s testimony, other evidence supports a conclusion that “a reasonable jury could not have found that [Arnold] mistook [Tabitha’s] conduct for consent based on the totality of the evidence.” Norton, 2021 UT 2, ¶ 42. First, it is clear that the jury believed more of Tabitha’s version of the events than Arnold’s. Because the chief dispute on this point at trial was whether the sexual encounter was consensual, the jury’s guilty verdict for aggravated sexual assault indicates that the jury accepted Tabitha’s facts, or at least more of Tabitha’s facts than Arnold’s.[6] Tabitha testified that she “just kept bawling and saying, ‘No. Please, no. No. I don’t want to. No.’” She stated that Arnold said, “Boy, I’m a sick fuck,” presumably referring—in Tabitha’s estimation—“to beat[ing] someone and treat[ing] someone that way and then want[ing] to have sex with them.” Tabitha’s sobbing would certainly have informed Arnold that she was not consenting to sex. And Arnold’s statement indicates that he understood (1) that his desire to have sex with Tabitha was extremely perverse—even given their history—after his previous actions and (2) that she would view his desire as just as shocking as she, in reality, did.
¶54 Additionally, Nurse testified that Tabitha had extensive injuries that were “more consistent” with Tabitha having been sexually assaulted than having had consensual sex. Even if the jury accepted Arnold’s theory that blood thinners could have caused the extensive bruising during consensual sex, they would not have caused a laceration on the “outermost part of the inferior vaginal wall.” This is similar to the injuries the court highlighted in both Newton and Norton as weighing against a finding of prejudice. See id. ¶ 45; Newton, 2020 UT 24, ¶ 35. And this is particularly similar to the injuries in Newton that the court reasoned would likely have caused the victim to stop the intercourse if it had been consensual. See Newton, 2020 UT 24, ¶ 35. Arnold provides no explanation that would support Tabitha’s desire to engage in such a painful encounter, including no testimony that the couple’s history involved sex that was painful for Tabitha. Nurse also testified that Tabitha “expressed fear that she would be killed” and “frequently was tearful and asked, ‘Why did this happen[?]’” These facts are consistent with Tabitha’s account of her feelings about the experience and do not support a finding that Arnold was anything but reckless—or worse—as to Tabitha’s nonconsent.
¶55 Finally, we find it worth noting that the jury’s attention was drawn to Arnold’s state of mind before it convicted him on this count. In its closing argument, the State said, describing the sexual encounter, that Arnold claimed to be thinking, “Well, this is how we’ve had sex in the past . . . so that’s what we should do. That’s what’s going on.” But the State drew the jury’s attention to facts that would make Arnold’s alleged perception unreasonable, saying he claimed to have thought that “[e]ven though she was telling him no, was crying because he had punched her in the face, had choked her and shot at her, driven her all over town, that— well, she still wanted to have sex.” Then the State asked, “That doesn’t make sense, does it? When you look at this evidence you should look at things. Is it reasonable? Does that make sense?” Given this, it is very likely that the jury did consider Arnold’s state of mind as to Tabitha’s consent when it convicted him on this charge. The State specifically drew the jury’s attention to the unreasonable nature of Arnold’s purported beliefs about Tabitha’s consent, and the jury returned a verdict that Arnold was guilty on this count.
¶56 It is clear that Arnold acted recklessly—at the very least— as to Tabitha’s consent when he was “aware of but consciously disregard[ed] a substantial and unjustifiable risk” that she was not consenting to have sex. See Utah Code § 76-2-103(3). Disregarding this risk in light of Tabitha verbally stating she was not willing to have sex and in light of the very painful injuries she had sustained was “a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from [Arnold’s] standpoint.” See id. In light of the totality of the circumstances, including Arnold’s own testimony, it is unlikely that the outcome would have been different if the jury had heard an instruction on Arnold’s mens rea related to Tabitha’s consent. Therefore, the erroneous jury instructions on this point did not prejudice Arnold.
2. The “in the course of” Language
¶57 Arnold next argues that Counsel was ineffective for not objecting to the jury instruction for aggravated sexual assault when it failed to indicate that the use or threat of use of the dangerous weapon must have occurred “in the course of” the sexual assault. See id. § 76-5-405(2)(a)(i). Even if we assume without deciding that this omission constituted deficient performance, we conclude that Arnold was not prejudiced by it. The totality of the evidence presented to the jury indicates that Arnold’s use of the gun presented a continuous threat and that this threat extended through the course of the sexual assault.
¶58 As discussed above, the supreme court in Norton found no prejudice deriving from a faulty jury instruction on aggravated sexual assault. 2021 UT 2, ¶ 51. Though the “in the course of” language was not omitted in the jury instruction at issue there, the circumstances of the use of the gun are relevant to this case. After the victim’s estranged husband broke into her house, punched her in the face, and drove her to another location with a gun in his lap, id. ¶¶ 5–6—circumstances very similar to what happened here—
[the husband] led [the victim] into an office and told her to take off her pants. She . . . said “no,” and he again pointed the gun at her, forcing her to comply. While she did so, [he] undressed, removed the magazine from the gun, and put the magazine and gun in a filing cabinet. Then, he told [her] that they were going to have sex. She said “no,” but [he] responded that “yes” they were. “So you’re going to rape me?” she asked. [He] replied, “You can’t rape somebody that you’re married to.”
Id. ¶ 8. Notably, the gun was stored in a filing cabinet during the rape—less accessible than was the gun here, as it stayed within arm’s reach on the bed. Although Norton made his victim undress at gunpoint, while here Tabitha removed her pants voluntarily, the removal of clothing was not the act constituting sexual assault. Norton’s conviction on the charge of sexual assault based on rape supports an understanding that the “in the course of” language can be satisfied through an ongoing threat present during the rape.
¶59 This understanding comports with the plain meaning of the statute and with Utah caselaw—both as to threat of use of a weapon and as to use of a weapon. See generally Bevan v. State, 2021 UT App 107, ¶ 11, 499 P.3d 191 (“For all questions of statutory interpretation, we begin by looking at the plain language. In doing so, we assume that the legislature used each term advisedly according to its ordinary and usually accepted meaning. . . . Should we conclude the language is unambiguous and provides a workable result, our analysis is complete.” (cleaned up)). First, while the plain meaning of “threatens” includes “utter[ing] threats against” someone, see Threaten, Merriam-Webster, https://www.merriam-webster.com/dictionary/threaten [https:// perma.cc/QDE8-JD58], it also includes “caus[ing] to feel insecure or anxious,” see id. Where the actor has already issued verbal threats related to the dangerous weapon or has taken physical action threatening use of the gun—such as pointing it at the victim or firing it, see State v. Hodson, 907 P.2d 1155, 1157 (Utah 1995) (“We conclude . . . that the only possible inference to be made when someone holds a loaded gun to the head of another and issues an order is that failure to comply will result in use of the gun. Implicit threats are as real as express verbal threats . . . .”)— a threat may continue while the weapon continues to be accessible to the actor. The language of the statute does not state differently, and we have no reason to read into “threatens” a temporal restriction it does not contain. See Utah Code § 76-5-405(2)(a)(i). So to satisfy this element, Arnold need not have pointed a loaded gun toward Tabitha during the actual sexual encounter and threatened to shoot her if she did not comply. Rather, it was sufficient for him to have earlier established the threat of use of the gun through words or actions and for that threat to continue during the course of the sexual assault.[7]
¶60 Furthermore, Utah law is clear that the phrase “use of,” see id., does not require an actor to take affirmative action besides presenting the weapon, see In re R.G.B., 597 P.2d 1333, 1335 (Utah 1979) (“Defendant . . . argues that there was no evidence of . . . the use of a deadly weapon . . . since the robber did not handle the gun or point it at the victim . . . . [I]t is not necessary that the State prove that the robber actually pointed a gun at the victim . . . . If merely exhibiting the gun creates fear in the victim, it constitutes ‘use of a firearm’ for that purpose.”); State v. Weisberg, 2002 UT App 434, ¶¶ 15–17, 62 P.3d 457 (“[The defendant] objected to the portion of the instruction that equated ‘use’ to ‘exhibiting a weapon in such a manner that it creates fear in a reasonable person.’ [The defendant] argues that this portion of the instruction incorrectly stated the law, because it did not require an active employment of the weapon . . . . We are unpersuaded . . . . A weapon is used even if it is never actually pointed at a victim, so long as exhibiting the weapon creates fear in the victim.” (cleaned up)).
¶61 Like in Norton, the evidence of what occurred before the sexual assault established a backdrop of physical violence and an ongoing threat of harm with the gun. Both Tabitha and Arnold testified that Arnold choked Tabitha and hit her, so the jury would have no questions about whether Tabitha knew that Arnold was willing to hurt her. Both parties also testified that Arnold shot the gun very close to Tabitha, so the jury would have no doubts as to Tabitha’s understanding that Arnold was willing to do this—or worse—with the gun later. Tabitha testified that Arnold shot at her and threatened to kill her with the gun, and while Arnold testified that he shot at his own reflection and never threatened to kill Tabitha, he did admit that Tabitha spoke as if he was going to kill her and that “she was just under the impression—she was scared, I guess, after I choked her.” Accordingly, he was aware that she feared him killing her and believed it was a real possibility.
¶62 Additionally, both parties agreed that Arnold was in control of the gun when the pair began driving. And while Tabitha and Arnold disagreed about how many times Arnold handed the gun to Tabitha throughout the night, both testified that he did so, that he instructed her to kill him, and that he got the gun back after she refused to do so. Arnold suggests that his actions of repeatedly handing the gun to Tabitha indicate that he was not threatening her with the weapon. The State argues, instead, that “acts of giving Tabitha the gun and asking her to shoot him could be reasonably viewed as acts of manipulation and intimidation, not opportunities for her to escape.” We are persuaded that the jury accepted this interpretation because it found Arnold guilty of kidnapping even though he testified that Tabitha was free to leave anytime and because Arnold testified that, despite Tabitha telling Arnold she couldn’t kill him, he said he “wanted to get her mad so she would.” Other than during these incidents—after which Arnold admittedly took back the gun—and the time that Arnold was in the store (when he testified that he left the gun under the seat but didn’t “know if she knew where it was at or not” and she testified that she didn’t know where it was), Arnold controlled the gun until the time of the sexual assault. In other words, we do not view the testimony about the events prior to the sexual assault—including testimony that Arnold handed the gun to Tabitha multiple times—as evidence supporting any conclusion other than that there existed a continuous threat of harm by Arnold against Tabitha.
¶63 Moreover, the evidence related to the sexual assault itself does not support a conclusion that had the jury instruction included the “in the course of” language, the jury would likely have acquitted Arnold on this count. Both Arnold and Tabitha testified that the gun remained on the bed—easily accessible to Arnold—during the sexual assault. While Arnold testified that Tabitha was the one to place it there, the testimony from both individuals described above does not support an inference that Tabitha felt like she was free to do what she wanted with the gun or that she stopped feeling threatened by the gun during the sexual assault. Tabitha testified that Arnold kept the gun on his side of the bed during the sexual encounter. This testimony was consistent with Arnold’s own narrative about regaining control of the gun each time he gave it to Tabitha. Additionally, the jury heard both Arnold and Tabitha testify that Tabitha repeatedly said no during the sexual encounter, yet Arnold proceeded to engage in sexual intercourse. It also heard Tabitha testify that she did not physically resist because she “didn’t want to be hurt anymore” and she “just wanted to get through that night.” It is likely that the jury interpreted these statements as meaning that during the sexual encounter, Tabitha felt threatened by Arnold’s continued control over the gun, so she did not resist for the sake of her life and her safety. Based on the totality of the circumstances, it is unlikely that the jury would have acquitted Arnold on this charge even if it had been instructed as Arnold now claims it should have been. Accordingly, we are satisfied that Arnold was not prejudiced by the omission of the “in the course of” language in the jury instruction.
B. Aggravated Kidnapping
¶64 Arnold next argues that Counsel was ineffective for not objecting when the same language—“in the course of”—was left out of the jury instruction for the aggravated kidnapping charge. Under the relevant statute, a defendant must commit an enumerated act—as relevant here, using or threatening to use a dangerous weapon, acting with the intent to inflict bodily injury or terrorize, or acting with the intent to commit a sexual assault— “in the course of” a kidnapping or unlawful detention. See Utah Code § 76-5-302(2). The jury did not specify which enumerated act it based its determination of guilt on for this charge, but—even if we assume without deciding that Counsel performed deficiently—we have no difficulty concluding that the “in the course of” language was satisfied and that the jury would not have reached a different outcome had the instruction been different.
¶65 Many of Arnold’s actions satisfied the elements of this charge, including the “in the course of” language. Importantly, the jury instruction clearly indicated to jurors that kidnapping occurred if Arnold “detain[ed] or restrain[ed] [Tabitha] for any substantial period of time” or “under circumstances exposing her to risk of bodily injury.” Accordingly, the jury would have understood that the kidnapping could have taken place before, after, or during the driving. While we do not know which moment or stretch of time the jury found Tabitha to have been detained or restrained (including potentially the whole night), we are comfortable in concluding that the jury believed Arnold to have simultaneously committed one of the enumerated acts. If the jury believed that Tabitha was detained or restrained while Arnold ransacked her house and choked and punched her, Arnold was acting at that time with the intent to inflict bodily injury or terrorize Tabitha. If the jury found that Tabitha was detained while Arnold took her loaded gun and shot it very close to her, he acted simultaneously to—at least—use a dangerous weapon. If the kidnapping occurred during the drive, Arnold’s testimony establishes that he only gave the gun to Tabitha briefly several times then took it back, and we have already explained why we are not persuaded that such actions removed the threat of the gun. And if the jury found that Arnold detained Tabitha during what it classified as a sexual assault, then he also used the gun and detained her intentionally to commit that sexual assault. Simply put, we are convinced that, at any time the jury may have identified for the time of the kidnapping, it would have determined that Arnold simultaneously committed one or more enumerated acts. Thus, Arnold was not prejudiced by this alleged error.
C. Theft
1. Affirmative Defenses
¶66 Arnold next argues that Counsel was ineffective for not ensuring that the jury instruction on theft included reference to affirmative defenses that may have applied to Arnold. The theft count was based on Arnold’s alleged theft of the gun, and there are two affirmative defenses that Arnold argues should have been presented to the jury: that Arnold “acted under an honest claim of right” to the gun or that he “acted in the honest belief that [he] had the right to obtain or exercise control over” the gun. See Utah Code § 76-6-402(3)(a)–(b). Arnold points to where he testified, “I don’t think I took it either, but—I mean, 17 years in the oil field giving her my paycheck, I seem to think half of everything is mine.” And when the prosecutor asked, “[Y]ou didn’t have permission to take that gun, did you?” Arnold responded, “Other than the fact that I paid for it.” He did not testify that he purchased the gun but that he had paid to release the gun, which had belonged to Tabitha’s ex-husband, from pawn.
¶67 The State responds that Counsel did not perform deficiently by not requesting these instructions because they were foreclosed by the facts. The State points to the statutory language that “[i]t is not a defense . . . that the actor . . . has an interest in the property or service stolen if another person also has an interest that the actor is not entitled to infringe.” See id. § 76-6-402(2). We agree with the State. Arnold admitted that the gun was previously at Tabitha’s house and in her possession, that his ownership rights to it were never adjudicated, that Tabitha did not give him the gun, and that he took the gun to his home when he eventually left Tabitha’s house. So even if Arnold thought he had some sort of property interest in the gun, he acknowledged that Tabitha did as well. And he did not provide any convincing argument as to why he was entitled to infringe on Tabitha’s property interest. See State v. Murphy, 617 P.2d 399, 406 n.9 (Utah 1980) (Hall, J., dissenting) (“Note that even a person with an interest in the property can ‘steal’ it from another with an interest.”); State v. Larsen, 834 P.2d 586, 590–91 (Utah Ct. App. 1992) (“One may be prosecuted for theft if he takes the property of another, although the actor had an interest in it. . . . [This] comprehensive definition of property is intended to abrogate whatever still survives of the artificial common-law restrictions on the scope of larceny and the other theft offenses.” (cleaned up)), cert denied, 843 P.2d 1042 (Utah 1992). Therefore, the affirmative defenses were not available to Arnold, and it was neither deficient performance nor prejudicial for Counsel not to request instructions on them.[8]
2. Implications for Aggravated Burglary
¶68 In line with his argument on the theft instruction, Arnold asserts that instructing the jury about the affirmative defenses would also raise a reasonable doubt as to Arnold’s intent to steal the gun, thereby impacting the aggravated burglary charge.[9] Because we are not convinced by Arnold’s argument on the theft instruction, we conclude that there would have been no likely impact on the aggravated burglary conviction if Counsel had sought instructions on the affirmative defenses to theft.
II. The Criminal Mischief Charge
¶69 Arnold next argues that Counsel performed deficiently in several ways related to the criminal mischief charge. Arnold asserts that Counsel’s errors prejudiced him because he was charged with class A misdemeanor criminal mischief rather than class B misdemeanor criminal mischief. Class A misdemeanor criminal mischief applies when “the actor’s conduct cause[d] or [was] intended to cause pecuniary loss equal to or in excess of $500 but . . . less than $1,500 in value.” Utah Code § 76-6-106(3)(d)(iii). But a loss with a value of less than $500 is a class B misdemeanor. Id. § 76-6-106(3)(d)(iv). Arnold asserts that the jury was not instructed on the statutory criteria for valuing property for this chapter of the code, which defines value as “(i) the market value of the property, if totally destroyed, at the time and place of the offense, or where cost of replacement exceeds the market value; or (ii) where the market value cannot be ascertained, the cost of repairing or replacing the property within a reasonable time following the offense.” Id. § 76-6-101(1)(f). The statute further specifies that “[i]f the property damaged has a value that cannot be ascertained by [this] criteria . . . , the property shall be considered to have a value less than $500.” Id. § 76-6-101(3).
¶70 However, the State argues that a different definition applies to value here. The criminal mischief statute indicates that “[i]n determining the value of damages under this section, . . . the value of any item . . . includes the measurable value of the loss of use of the items and the measurable cost to replace or restore the items.” Id. § 76-6-106(4). Because we, as a rule, apply the more specific definition where there is conflict, see, e.g., Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 31, 70 P.3d 1 (“When two statutory provisions appear to conflict, the more specific provision will govern over the more general provision.” (cleaned up)), and because this latter definition explicitly applies to this section while the other applies to the chapter, compare Utah Code § 76-6-104(4), with id. § 76-6-101(1)(f), (3), it applies insofar as the definitions conflict.
¶71 Arnold does not dispute that he destroyed Tabitha’s cell phone, but he argues that Counsel should have taken action after the State provided insufficient evidence of its value. On the question of the cell phone’s value, the only testimony was Tabitha’s when she, in response to being asked, “And what’s the value of your cell phone? What does it cost?” stated, “I think I paid $600 for it. It’s got no value now.” Based on this, Arnold argues that “the State failed to produce competent evidence that Tabitha’s phone had a market value of at least $500 at the time it broke; nor did it put on evidence of a repair or replacement cost.” Accordingly, Arnold argues that Counsel performed deficiently by failing to move for a directed verdict on this point or ask that the charge be reduced to a class B misdemeanor, as well as for failing to request a jury instruction on calculating value.
¶72 We agree with the State, however, that Counsel did not perform deficiently by not taking any of these steps. In reviewing Counsel’s actions, we apply “a strong presumption that Counsel’s representation was within the wide range of reasonable professional assistance,” see Harrington v. Richter, 562 U.S. 86, 104 (2011) (cleaned up), and that Counsel’s decisions were “sound trial strategy,” Strickland v. Washington, 466 U.S. 668, 689 (1984) (cleaned up). Here, we conclude that Counsel’s decisions were sound because, “[u]nlike a later reviewing court, [Counsel] observed the relevant proceedings, knew of materials outside the record, and interacted with the client [and] with opposing counsel.” See Harrington, 562 U.S. at 105.
¶73 The State argues that Counsel could have reasonably expected that either of the indicated actions would have been futile.[10] We agree that Counsel could reasonably have believed that, had he done as Arnold now desires, the court would have allowed the State to present evidence on the value of the cell phone and any other damaged property.[11]See Utah R. Crim. P. 17(f)(5) (indicating that after the parties present their cases-in-chief, “the parties may offer only rebutting evidence unless the court, for good cause, otherwise permits”); see also Utah R. Evid. 611(a)(1) (“The court should exercise reasonable control over the mode and order of . . . presenting evidence so as to make those procedures effective for determining the truth . . . .”). Because there is no record evidence that the cell phone’s value was actually less than $500 and that Counsel knew of its lower value, we cannot conclude that Counsel acted deficiently in this respect. Arnold bears the burden of proof, so “it should go without saying that the absence of evidence cannot overcome the strong presumption that Counsel’s conduct fell within the wide range of reasonable professional assistance.” See Burt v. Titlow, 571 U.S. 12, 17 (2013) (cleaned up). Given our strong presumption that Counsel acted reasonably and strategically according to his knowledge of facts outside the record—which here may have included the make, model, age, condition, and replacement cost of the phone—we conclude that Counsel acted objectively reasonably and that his performance was not deficient on this point.[12]
III. Counsel’s Failure to Request a Directed Verdict on the
Discharge of Firearm with Injury Count
¶74 Arnold next argues that Counsel was ineffective for failing to move for a directed verdict on the second-degree felony discharge of a firearm with injury count. This charge requires proof that a defendant’s discharge of a firearm “cause[d] bodily injury to any individual.” Utah Code § 76-10-508.1(2). The statute defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” Id. § 76-1-101.5(4). Arnold argues that reasonable counsel would have realized that Tabitha’s testimony did not satisfy this element and would have moved for a directed verdict on this charge.
¶75 Tabitha testified that after Arnold shot the gun, she “couldn’t hear” and her ears “were ringing.” She knew that Arnold was saying something to her, but for a time she couldn’t hear or understand what he was saying. She was “eventually” able to hear again.
¶76 Arnold argues that this testimony does not establish “impairment.” See id. The State disagrees, emphasizing that the statute includes “any impairment,” see id. (emphasis added), and pointing out that “substantial bodily injury”—a higher tier of injury in the criminal context, see State v. Lyden, 2020 UT App 66, ¶ 24, 464 P.3d 1155—includes “temporary loss or impairment of the function of any bodily member or organ,” see Utah Code § 76-1101.5(18) (emphasis added). We agree with the State. The plain meaning of “impairment” is “diminishment or loss of function or ability.” See Impairment, Merriam-Webster, https://www.merriam –webster.com/dictionary/impairment [https://perma.cc/3B2E-M2 EY]. Tabitha testified that—for a time—her function of hearing was diminished or entirely lost; this satisfies the plain meaning of impairment.[13] Arnold does not argue that permanent hearing loss would fail to qualify under the statute, nor does he provide any authority supporting a position that a condition that would qualify as impairment if it were permanent fails to qualify if it is temporary. Indeed, a higher tier of bodily injury includes temporary impairment, see Utah Code § 76-1-101.5(18), so we see no reason to read the broad language of this definition as excluding temporary conditions, see State v. Robinson, 2018 UT App 227, ¶ 33, 438 P.3d 35 (describing the definition as “broad”), cert. denied, 440 P.3d 694 (Utah 2019). Accordingly, we conclude that Arnold was not prejudiced when Counsel chose not to move for a directed verdict on this charge.
IV. Counsel’s Failure to Object to Tabitha’s Testimony that She Believed Arnold Was a Felon
¶77 Finally, Arnold argues that Counsel was ineffective for not objecting or requesting a corrective instruction when Tabitha testified that she believed Arnold was a felon. Counsel asked Tabitha, “He didn’t bring his own .22-caliber pistol to your house to kill you, as far as you know, did he?” Tabitha responded, “I believe he is a felon. He’s not allowed to own a weapon.” Arnold argues that this statement was inadmissible and that Counsel performed deficiently by not taking corrective action when he knew that the testimony was harmful. Presumably, Arnold stipulated to his status as a Category II restricted person to avoid drawing unnecessary attention to his criminal history. Arnold cites State v. Larrabee, 2013 UT 70, 321 P.3d 1136, for the proposition that “although a defense attorney can reasonably choose to not object so to not highlight harmful testimony, that failure to object is unreasonable when the inadmissible evidence is inflammatory,” id. ¶¶ 26–28, 32. Arnold asserts that “evidence of [his] felon status was inflammatory, and it was harmful to [him], especially in a case that depended heavily on [his] credibility.”
¶78 The State counters, “[T]he testimony did not tell the jury that [Arnold] was, in fact, a felon. Rather, Tabitha said only that she ‘believe[d]’ [Arnold] was.” Further, it states that “even if Tabitha had testified that [Arnold] was a convicted felon, competent counsel could . . . reasonably conclude that objecting risked further emphasizing the testimony, especially where [C]ounsel would have to ask the court to instruct the jury to disregard what it had already heard.”
¶79 We agree with the State. “Utah courts have long recognized that [defense] counsel’s decision not to request an available curative instruction may be construed as sound trial strategy.” State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). “Indeed, a curative instruction may actually serve to draw the jury’s attention toward the subject matter of the instruction and further emphasize the issue the instruction is attempting to cure.” Id. Counsel could have reasonably determined that he would be “ill-advised to call undue attention to the testimony,” “particularly when [it was] unanticipated and brief,” see State v. Squires, 2019 UT App 113, ¶ 43, 446 P.3d 581 (cleaned up), and particularly when the jury was already aware that Arnold was a Category II restricted person and was, accordingly, not permitted to use or possess a firearm.[14] Tabitha’s comment was made in passing and was made as to her belief rather than as to any certainty of Arnold’s felony status. Accordingly, we conclude that Counsel did not perform deficiently by deciding not to draw further attention to the issue of Arnold’s criminal history.
CONCLUSION
¶80 Arnold ultimately does not demonstrate that he received ineffective assistance of counsel. We conclude that—on each of Arnold’s claims—he fails to show deficient performance, prejudice, or both. Therefore, we affirm his various convictions.
[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah)
[2] A pseudonym.
[3] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Thomas, 2019 UT App 177, n.1, 474 P.3d 470 (cleaned up), cert. denied, 462 P.3d 804 (Utah 2020).
[4] Tabitha was fifty-eight years old at the time.
[5] We echo our supreme court’s declaration that “going forward, . . . district courts should ensure that jury instructions for rape clearly require a finding that a defendant had the requisite mens rea as to the victim’s nonconsent.” State v. Newton, 2020 UT 24, ¶ 29, 466 P.3d 135 (cleaned up). Recent decisions clearly indicate that the district court ought to ensure the correctness of these instructions. See State v. Barela, 2015 UT 22, ¶¶ 25–27, 30, 349 P.3d 676; State v. Norton, 2021 UT 2, ¶ 51, 481 P.3d 445. Our supreme court endorsed the use of Model Utah Jury Instruction 1605:
(DEFENDANT’S NAME) is charged [in Count__] with committing Rape [on or about DATE]. You cannot convict [him][her] of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
(DEFENDANT’S NAME);
Intentionally, knowingly, or recklessly had sexual intercourse with (VICTIM’S NAME);
Without (VICTIM’S NAME)’s consent; and
(DEFENDANT’S NAME) acted with intent, knowledge or recklessness that (VICTIM’S NAME) did not consent.
[6] While the jury did acquit Arnold on two charges, neither charge was related to the sexual encounter, and we have no other indication that the jury disbelieved Tabitha’s testimony on this point.
[7] In several cases, we have determined that the “in the course of” language is satisfied if the defendant threatens to use a gun but the victim never sees it, even if the gun is fictitious. See State v. Bryant, 965 P.2d 539, 541, 545–46 (Utah Ct. App. 1998) (concluding that a threat of use of an unseen—and possibly fictitious—gun occurred “in the course of” a sexual assault where the defendant threatened to kill the victim if she failed to give him her money (cleaned up)); see also State v. Meza, 2011 UT App 260, ¶¶ 2, 11, 263 P.3d 424 (determining that the State provided sufficient evidence that the defendant threatened use of a gun “in the course of” an aggravated robbery where he gestured as if he had a gun in his pocket and stated, “This is a stickup.” (cleaned up)). It makes little sense to recognize this as a qualifying threat but to take the narrow view that a real and present gun’s use does not occur “in the course of” a sexual assault if a defendant threatens use of the weapon or uses it before the sexual assault but does not again verbally state the threat or wield the gun while actually engaging in sexual activity.
[8] We are also unconvinced that the jury would have believed that Arnold had an “honest claim of right to” or an “honest belief that [he] had the right to obtain or exercise control over” the gun, see Utah Code § 76-6-402(3)(a)–(b), given that Arnold stipulated to the fact that he was a Category II restricted person. While the jury did not know the details of why Arnold fell into this category, it is common knowledge that restricted persons are not legally able to possess, use, or control firearms in this state. See id. § 76-10503(2)(a), (3)(a). We think it practically certain that at least one juror would have raised this point with respect to the affirmative defenses. Counsel’s decision not to draw attention to this point and to avoid inviting additional focus on Arnold’s status—as well as speculation as to its cause—was not unreasonable.
[9] This charge could also rely on Arnold’s intent to assault Tabitha. See id. §§ 76-6-202(2)(c), -203(2). Arnold argues that, under the applicable statute, the State was required to prove that he formed the necessary intent when he entered her house. He is wrong. “[T]he plain language of the statute requires that the actor’s intent be formed at the time of entry or at any time while the actor remains unlawfully in the building or dwelling.” State v. Garcia, 2010 UT App 196, ¶ 13, 236 P.3d 853 (emphasis added), cert. denied, 247 P.3d 774 (Utah 2011). “Moreover, in interpreting this statute, the Utah Supreme Court has concluded that ‘a person is guilty of burglary under Utah Code section 76-6-202(1) if [that person] forms the intent to commit a felony, theft, or assault at the time [the person] unlawfully enters a building or at any time thereafter while [the person] continues to remain there unlawfully.’” Id. (cleaned up) (quoting State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998)).
[10] Under Utah law, owners are “presumed to be familiar with the value of [their] possessions” and are “competent to testify on the present market value of [their] property.” State v. Purcell, 711 P.2d 243, 245 (Utah 1985). On an assertion of insufficient evidence, a “trial court is not obligated to select a value figure specifically tied to any particular testimony. Rather, evidence will be deemed to support the value set by the fact finder if it is within the range testified to.” State v. Anderson, 2004 UT App 131U, para. 7. While we are not evaluating the sufficiency of the evidence here, given this backdrop it was objectively reasonable for Counsel to believe that the court would have denied a motion for directed verdict based on Tabitha’s testimony.
[11] The cell phone was not the only property of Tabitha’s that Arnold damaged. He also ruined her bedpost by violently smashing the cell phone against it, and Tabitha testified that repair would require a new post. Additionally, he shot through Tabitha’s mirror, leaving a hole and “a shatter mark.” This action also made holes in the wall behind the mirror. Given all this, it was further reasonable for Counsel to believe that he would ultimately be unsuccessful in taking the actions Arnold desires.
[12] We are also convinced that Counsel was objectively reasonable in determining that requesting a jury instruction on valuation risked alienating the jury. Arnold was facing many charges, nine of which were felonies and involved actions much more egregious than damaging property. Counsel could have wisely decided that bickering over the value of the phone and the other property— which Arnold did not dispute destroying and which highlights his violence on the evening in question—would not be helpful. Doing so would challenge Tabitha’s testimony as to value without impacting her credibility (Arnold does not assert that her testimony on this point was erroneous), and it was objectively reasonable for Counsel to focus his efforts combatting Tabitha’s testimony on weightier issues, like whether Arnold detained her and raped her.
[13] While the legislature may not have intended this language to have such broad effect as to include a temporary reduction in hearing ability or an impairment that is so temporary as to last for mere minutes, we are bound to apply the plain language of the statute. See, e.g., Bevan v. State, 2021 UT App 107, ¶ 11, 499 P.3d 191. Moreover, the statute does not place any temporal qualification on “physical pain,” see Utah Code § 76-1-101.5(4), which may often be quite temporary. But if the legislature intended the language to be narrower than we suggest on this or any other point, it has the power to modify this language.
[14] This point also makes it unlikely that Tabitha’s testimony prejudiced Arnold. Tabitha’s testimony did not include details of any alleged crimes that would likely impact the jury’s determination of Arnold’s credibility beyond what its knowledge of his status as a restricted person would.
STATE OF UTAH, IN THE INTEREST OF M.S., A PERSON UNDER EIGHTEEN YEARS OF AGE.
R.S. AND J.S.,
Appellants,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210657-CA
Filed July 6, 2023
Fourth District Juvenile Court, Spanish Fork Department
The Honorable F. Richards Smith
No. 1186449
Emily Adams, Sara Pfrommer, Freyja Johnson, and
Hannah Leavitt-Howell, Attorneys for Appellants
Sean D. Reyes, Carol L.C. Verdoia, and
John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 R.S. (Mother) and J.S. (Father) (collectively, Parents) appeal the juvenile court’s award of temporary custody of their infant son, M.S. (Child), to the Department of Child and Family Services (DCFS) following a shelter hearing and the court’s later finding that Child was neglected. We hold that Parents’ first argument is moot but conclude that their second argument satisfies the collateral consequences exception to mootness. And because the juvenile court did not make the necessary findings of fact and conduct the required analysis of whether Parents’ medical decisions for Child were “reasonable and informed,” we reverse the court’s neglect adjudication.
BACKGROUND[1]
¶2 Child was born on March 6, 2020, weighing 9.63 pounds. During her pregnancy, Mother had gestational diabetes—a condition which has been linked to increased birth weights. Therefore, while not off the charts, Child’s somewhat larger birth weight was likely caused by Mother’s gestational diabetes. Child was also born with elevated bilirubin levels and was prescribed photo light therapy for jaundice, which Parents administered for the next ten days. Hospital staff informed Mother that Child needed to be seen by a pediatrician three days following discharge from the hospital. Mother complied with the instruction and made an appointment to see a pediatrician (First Pediatrician) at a nearby clinic on March 9.
¶3 By the time of the appointment, Child had lost 12.5% of his birth weight, weighing in at 8.42 pounds. First Pediatrician found Child “to be in good health” overall, but he was concerned about Child’s elevated bilirubin levels and weight loss. Although weight loss is typically expected immediately after birth for infants whose mothers had gestational diabetes, First Pediatrician noted Child’s weight “to be more down than we usually would expect at that time.” First Pediatrician recommended a follow-up appointment “in the next day or two” to check on Child’s bilirubin levels and weight. No such follow-up appointment took place.
¶4 First Pediatrician saw Child again about two-and-a-half weeks later, on March 26. Father took Child to this appointment because Mother did not appreciate First Pediatrician’s “bedside manner” and she did not feel that he had been “very willing to listen to [her] concerns.” At this appointment, Child weighed in at 7.96 pounds, which according to First Pediatrician was a total weight loss of approximately 18% of Child’s original birth weight. First Pediatrician told Father that because Child had lost even more weight, he was concerned that Child was not getting sufficient nutrients from Mother’s breast milk—which was Child’s sole source of nourishment. First Pediatrician became even more concerned when he learned that Child had not had a bowel movement in three days. First Pediatrician explained that while exclusively breast-fed babies can sometimes “go a few days” without producing stool, this information combined with the weight loss caused him to further worry that Child’s nutritional needs were not being met.
¶5 First Pediatrician recommended that Mother pump so that they could quantify the amount of milk she was producing and that Child be given formula every few hours and be weighed each day so it could be determined whether “there was appropriate weight gain with a known specified amount of volume he was taking in.” Father expressed doubt whether this was something Mother would “go for” because they preferred to exclusively breast-feed Child, but he said he would discuss the recommendations with her. First Pediatrician wrote down his recommendations on a note for Father to give to Mother and said for her to contact him if she had any questions. He also tried to contact Mother both during and after the appointment but was unsuccessful.
¶6 First Pediatrician also emphasized the importance of a follow-up appointment the next day to check Child’s electrolyte levels and weight, which instruction he also included in his written note to Mother. At this point, First Pediatrician was “[v]ery concerned” about Child’s health and safety and noted in Child’s file, “If labs are not obtained and no visits happen, I will report to DCFS.”
¶7 Neither parent brought Child in for the labs and weight-check the following day. When First Pediatrician learned this, he called Mother to express his concerns. Mother stated that she was not aware of the missed appointment, that she was out of town, and that she would not be able to come in with Child that day. Mother informed First Pediatrician that she was feeding Child more often, but she was not giving him formula. She repeatedly thanked First Pediatrician for his recommendations and told him she would “take them under consideration.” At the end of the conversation, they both agreed that Mother should find another pediatrician for Child. Mother subsequently scheduled an appointment with another pediatrician for April 2 but did not relay this information to First Pediatrician. She also increased the frequency of Child’s breast-feedings to every two hours, and she immediately filled and began administering a medication for diaper rash First Pediatrician had prescribed during the March 26 appointment.
¶8 Following the phone conversation, First Pediatrician contacted DCFS and reported Parents’ apparent medical neglect and physical neglect of Child and Child’s failure to thrive. First Pediatrician later testified that even if he had known that Child had an appointment with another pediatrician set for April 2, his concerns would not have been eased. He explained that he had ordered labs on Child’s electrolyte levels because his “biggest concern” was that if Child became dehydrated, he would develop “elevated sodium levels in the blood . . . that could potentially cause a lot of health problems” such as lethargy, seizures, and neurological damage. First Pediatrician stated that “the problem with the elevated sodium is more of an urgent or emergent problem that could have been developing, and so it couldn’t have waited” until the April 2 appointment.
¶9 On March 30, a DCFS caseworker (Caseworker) followed up with First Pediatrician, who expressed his concern that Child was at risk of dehydration, which could lead to further health complications. Following the conversation, Caseworker had a difficult time locating and communicating with Parents. When Caseworker called one of the phone numbers provided to her, a man Caseworker believed to be Father answered. He was skeptical that Caseworker worked for DCFS, and the conversation proved unfruitful. After visiting multiple addresses on file for the family to no avail, Caseworker contacted law enforcement officers, who were able to locate Mother, Father, and Child in a motel by “pinging” their cellphone.
¶10 Caseworker arrived at the motel around 1:00 a.m. on April 1. Law enforcement was already at the motel and officers informed Caseworker that paramedics had already examined Child and had determined that Child was alert, breathing normally, had a strong heartbeat, and exhibited no obvious signs of dehydration. Because the examination revealed no concerns, the paramedics did not consider Child in need of further medical attention and returned him to Mother. The paramedics had left by the time Caseworker arrived, so she did not have an opportunity to speak with them.
¶11 The officers warned Caseworker that Father was very upset about her being there and that Father even instructed an officer to stand between him and Caseworker. During the hour-long conversation that ensued, Father refused to allow Caseworker to see Child and instead insisted that Child was “fine.” At one point, Father told Caseworker that he would allow her to see Child if she returned at 8:00 a.m. Caseworker was reluctant to do so because she was aware of a prior case in which Father had fled across state lines with two of his other children, and she worried that Child “would be gone” by 8:00 a.m. if she left. She also found it odd that she had located the family at a motel that was approximately 20 miles from their home.
¶12 Caseworker then requested a warrant for removal of Child. A judge approved the warrant, and Child was taken into DCFS custody in the wee hours of the morning. Caseworker then took Child to an emergency room. There, Child appeared to have gained a little weight, weighing in at 8.05 pounds, although Caseworker suggested the slight weight gain could have also been attributed to a wet diaper. According to the pediatrician (Second Pediatrician) who examined Child later that afternoon when he was brought in by the foster parents with whom Child had been placed, Child “was within the 11th percentile for weight, but his weight to length ratio was in the 3rd percentile,” which was troubling, especially given Child’s higher birth weight. Second Pediatrician stated that although Child was “generally well appearing,” he nonetheless “did appear dehydrated” and underweight. Child’s lab results revealed “abnormalities that were consistent with dehydration and possibly poor feeding,” including abnormal bilirubin levels and elevated liver enzymes (transaminases). Child’s initial lab results also “show[ed] evidence of hemolysis,” which is when the body destroys red blood cells quicker than it can produce them, so the hospital had the labs redone. The second round of labs revealed “normal potassium, but the transaminases still remained mildly elevated.” The lab report also included the following note: “I spoke with [the] pediatric hospitalist, and confirmed that these current findings are not worrisome in this current setting, and they recommended that the patient follow-up with [a] pediatrician in about a week for recheck.”
¶13 Second Pediatrician noted that Child needed to be closely monitored for kernicterus, which he explained “is when bilirubin levels get to a high enough point in the blood that they deposit into the brain, and can cause some brain damage, to use layman’s terms.” Second Pediatrician instructed Child’s foster parents to feed Child formula every “three to four hours” and to return in a couple of days.
¶14 At the follow-up appointment two days later, on April 3, Child had gained approximately 13 ounces,[2] weighing in at 8.88 pounds. At a second follow-up appointment three days later, on April 6, Child weighed 9.44 pounds, meaning he had gained approximately 9 more ounces. A week later, on April 13, Child weighed 10.08 pounds. Child continued to show weight gain in other subsequent exams. Based on this, Second Pediatrician testified that it was his “clinical impression” that Child had not been “receiving appropriate nutrition, and upon receiving appropriate nutrition [Child] returned to an expected weight.” He further explained that “inadequate nutrition can have devastating effects on someone so young” because “dehydration can lead to renal failure, and poor growth can affect development in all areas, physical and mental development.”
¶15 On April 1, the State petitioned for legal custody and guardianship of Child, alleging, in relevant part, neglect by Parents “in that [Child] lacks proper parental care by reason of the fault or habits of the parents.” See Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022).[3] The petition alleged, among other things, the following:
Child “had lost 18% body weight since birth and was at significant risk for seizures and brain damage,” but Parents refused to follow medical advice and supplement Mother’s breast milk with formula.
Parents had provided First Pediatrician’s office with an incorrect address, but with assistance from law enforcement, DCFS eventually located them and Child in a motel approximately 20 miles from their home.
Paramedics examined Child and determined that he “was not in distress,” but because the paramedics left prior to Caseworker’s arrival at the motel, DCFS “was not able to get additional information regarding the failure to thrive medical concerns, particularly a weight measurement.”
Father refused to allow Caseworker to see Child, and he was “hostile” toward her, even going so far as instructing a police officer to stand between them “so that [he] did not harm” her.
Father had several aliases and had “a history of parental kidnapping.”[4]
At the emergency room, it was noted that Child had gained a little weight but also that he had a significant diaper rash.
¶16 The juvenile court held a shelter hearing on April 3, which at Parents’ request was then continued until April 8. Following the continued hearing, the court “found that, based upon the medical records relating to [Child], removal was appropriate.” Specifically, the court found that “[t]he medical records indicate that [Child] was underweight,” that Child’s “lab values continued to show that transaminases still remained mildly elevated, and that the bilirubin is also mildly elevated.” The court was also “concerned about the medical evidence of malnutrition presented by the State.”
¶17 A few weeks later, on April 30, Parents filed an Emergency Motion to Return Custody and Dismiss Petition, in which they argued, among other things, that it was common for infants born from mothers with gestational diabetes to lose more than 10% of their birth weight in their first week. They also emphasized the benefits of breast-feeding and asserted that Child had repeatedly been examined following removal and had been found to be healthy. They also submitted a letter from their latest pediatrician (Third Pediatrician), who had originally been scheduled to see Child on April 2. Although Third Pediatrician had not examined Child, he reviewed Child’s medical records and concluded that “while the concerns of [First Pediatrician] were valid, he failed to convey this concern properly to the parents and their wishes were not taken into consideration” and that the April 1 lab results did not reveal “signs of nutritional deficiency or compromise.”
¶18 Some three weeks later, Parents filed an Order to Show Cause and Motion for Order seeking sanctions against DCFS for violating their right to seek a second medical opinion prior to removal. At a subsequent hearing, the State explained that it never opposed a second medical opinion but that Parents had never properly requested one under the Utah Rules of Juvenile Procedure or the Utah Rules of Civil Procedure. Parents withdrew their motion for sanctions and Order to Show Cause and moved for Third Pediatrician to examine Child. At a subsequent hearing, Mother reported that Third Pediatrician had examined Child and concluded “there are no safety concerns in this case.” And in September 2020, the juvenile court placed Child in a trial home placement with Parents.
¶19 Following a multi-day trial in January 2021, the juvenile court found the State had proved the allegations in its petition by clear and convincing evidence and adjudicated Child neglected on the ground that Child lacked “proper parental care by reason of the fault or habits of” Parents. The court did not find that Parents abused Child. The court found First Pediatrician’s and Second Pediatrician’s testimonies to be persuasive and stated “that the cursory physical examination by paramedics could not have identified” the “very real and very serious” medical issues that were later identified at the hospital.
¶20 The court next determined that Child’s removal from Parents’ home following the shelter hearing “was appropriate and necessary and in [Child’s] best interest.” But the court also found that the circumstances giving rise to Child’s removal, i.e., Child’s failure to thrive, were “largely resolved” and that Child’s trial home placement with Parents that had begun some six months earlier had “not revealed any child safety concerns.” Accordingly, the court terminated its jurisdiction in the case and returned custody of Child to Parents.
¶21 Parents appeal. Obviously, they do not appeal the decision that Child be returned to them. But they challenge prior rulings of the court.
ISSUES AND STANDARDS OF REVIEW
¶22 Parents raise two issues on appeal. First, they argue that “the juvenile court erred as a matter of law by awarding custody of Child to the State at the shelter hearing without giving [them] a reasonable time to obtain a second medical opinion.” But because this issue is moot, as explained in Part I.A. below, we lack judicial power to address it. See Transportation All. Bank v.International Confections Co., 2017 UT 55, ¶ 14, 423 P.3d 1171 (“The mootness doctrine is not a simple matter of judicial convenience or an ascetic act of discretion. It is a constitutional principle limiting our exercise of judicial power under article VIII of the Utah Constitution.”) (quotation simplified); Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 12, 289 P.3d 582 (“[B]ecause it is moot, we lack the power to address the underlying merits or issue what would amount to an advisory opinion.”).
¶23 Second, Parents argue that the “court improperly adjudicated Child as neglected.” Specifically, they assert that (a) the court “did not consider the full statutory definition of neglect,” (b) the court’s findings “did not support its ultimate decision that Child was neglected,” and (c) “the neglect adjudication was against the clear weight of the evidence.” “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. “We afford the [juvenile court] no deference on questions of law, reviewing issues de novo, and the most deference on questions of fact, reviewing only for clear error.” In re A.B., 2022 UT 39, ¶ 23, 523 P.3d 168. The level of deference afforded to mixed questions of law and fact, however, depends on whether they are more “law-like” or “fact-like,” with the former being subject to de novo review while the latter are subject to deferential review. See In re E.R., 2021 UT 36, ¶ 18. A juvenile court’s neglect adjudication falls within the former category because, “[o]nce the facts have been established, the juvenile court is limited to determining whether the statutory criteria for neglect have been met,” which “is primarily a law-like endeavor.” In re A.B., 2022 UT 39, ¶ 28. Accordingly, we review the court’s ultimate adjudication of neglect for correctness.
ANALYSIS
Mootness
¶24 Before we proceed to address the merits of Parents’ arguments, we must first address the contention of the guardian ad litem (the GAL) that this appeal is moot. See Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 22, 472 P.3d 910 (stating that “mootness is a threshold determination” that appellate courts must make before reaching the merits of an appeal). “The defining feature of a moot controversy is the lack of capacity for the court to order a remedy that will have a meaningful impact on the practical positions of the parties.” Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582. “When a case is moot in this sense, the parties’ interest in its resolution is purely academic.” Id. See Transportation All. Bank v. International Confections Co., 2017 UT 55, ¶ 15, 423 P.3d 1171 (“A case may be mooted on appeal if the relief requested is rendered impossible or of no legal effect.”) (quotation simplified).
¶25 The GAL argues that both issues Parents raise on appeal are moot. We agree that Parents’ argument related to Child’s removal following the shelter hearing is moot and does not satisfy a mootness exception, and we therefore do not reach the merits of that argument. But because we conclude Parents’ arguments related to the juvenile court’s adjudication that Child was neglected satisfies the collateral consequences exception to mootness, we address the merits of those arguments in Part II.
Child’s Removal
¶26 The GAL argues that Parents’ challenge to Child’s removal from their care following the shelter hearing is moot because “they now enjoy full custody of Child.” Although Parents concede that “appellate review would not affect the rights of the parties because the shelter hearing ruling was an interim ruling that is no longer operative,” thereby rendering the issue technically moot, they nonetheless assert that “the issue qualifies under the exception to the mootness doctrine.”
¶27 Under the mootness exception, “we will decide a moot issue when a litigant can demonstrate that the issue will (1) affect the public interest, (2) be likely to recur, and (3) because of the brief time that any one litigant is affected, be likely to evade review.” Widdison v. State, 2021 UT 12, ¶ 14, 489 P.3d 158 (quotation simplified). Even assuming, without deciding, that the first and third elements are met, Parents have not carried their burden of persuasion on the second element. Accordingly, this issue does not satisfy the mootness exception.
¶28 Under the second element, “[a] party must convince us that the issue will arise again.” Id. ¶ 17. “Under settled case law, a mere physical or theoretical possibility of recurrence is insufficient” to satisfy this element. Id. (quotation simplified). Rather, “there must be a reasonable expectation or a demonstrated probability that the same controversy will recur.” Utah Transit Auth., 2012 UT 75, ¶ 36 (quotation simplified).
¶29 Parents’ argument on this element is limited to the assertion that at shelter hearings, “whenever the basis for removal is an allegation of medical neglect, the issue will again arise as to whether the juvenile court can remove the child without permitting the parents reasonable time to seek a second medical opinion.” But Parents’ argument is more intricate than the mere question of whether they were entitled to seek a second medical opinion prior to Child’s removal from their care. Indeed, Utah law is clear that parents facing removal of their child for medical neglect are generally entitled to a reasonable time to obtain such an opinion. See Utah Code Ann. § 80-3-304(1) (LexisNexis Supp. 2022) (“In cases of alleged medical neglect where [DCFS] seeks protective custody, temporary custody, or custody of the child based on the report or testimony of a physician, a parent or guardian shall have a reasonable amount of time, as determined by the juvenile court, to obtain a second medical opinion from another physician of the parent’s or guardian’s choosing who has expertise in the applicable field.”). See also id. § 80-3-304(3) (“If the second medical opinion results in a different diagnosis or treatment recommendation from that of the opinion of the physician [DCFS] used, the juvenile court shall give deference to the second medical opinion as long as that opinion is reasonable and informed and is consistent with treatment that is regularly prescribed by medical experts in the applicable field.”). What Parents’ argument on this issue boils down to, however, is whether, under the facts of this case, Child was facing “an imminent risk of death or a deteriorating condition of [his] health,” see id. § 80-3-304(2),[5] or “an immediate threat of death or serious and irreparable harm,” see id. § 80-3-304(4),[6] thereby depriving Parents of what would otherwise be their statutory right to seek a second medical opinion prior to Child’s removal, see id. § 80-3-304(1)–(2).
¶30 Because Parents’ argument on the “likely to recur” element of the mootness exception does not directly address the intricacies of the issue they raise on appeal, they have not carried their burden of persuasion on this element. See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903. Accordingly, this issue is not exempted from the mootness doctrine, and we lack judicial power to address it further.
Neglect Adjudication
¶31 The GAL next asserts that because the juvenile court terminated its jurisdiction and returned Child to Parents’ custody, Child no longer has the status of “neglected” and Parents’ challenge to the juvenile court’s neglect adjudication is therefore moot. Parents and the State oppose this suggestion of mootness. Specifically, although the State agrees that “this appeal may be technically moot because the child has been returned to the Parents and court jurisdiction terminated,” it concedes that the issue satisfies the collateral consequences exception to mootness. This argument is likewise adopted by Parents in their reply brief.[7]
¶32 “Generally, once mootness has been demonstrated, the party seeking to survive dismissal bears the burden of demonstrating that collateral legal consequences will flow from the challenged issue.” In re J.S., 2017 UT App 5, ¶ 11, 391 P.3d 358 (quotation simplified). Our approach to applying the collateral consequences exception differs depending on whether the collateral consequences are presumed or not. “When collateral legal consequences are presumed, the case isn’t moot unless it can be shown that no adverse collateral consequences will result.” State v. Legg, 2018 UT 12, ¶ 14, 417 P.3d 592 (quotation simplified). Conversely, “[w]hen collateral legal consequences aren’t presumed, a case is moot unless the party opposing mootness can establish actual collateral legal consequences.” Id. We conclude that Parents’ argument satisfies the former of these two approaches.
¶33 While “we presume collateral legal consequences follow criminal convictions,” id. ¶ 17, the presumption may arise in other contexts when the collateral consequences are “sufficient to mandate the same undeniable conclusion as criminal convictions, i.e., the existence of a collateral legal consequence is virtuallyinescapable,”[8] id. ¶ 18. See id. (“We will only presume collateral legal consequences when the challenged action carries extensive collateral consequences imposed by law.”); id. ¶ 24 (“Presumed collateral legal consequences aren’t inherently limited to the realm of criminal convictions.”). This presumption “does not come lightly.” Id. ¶ 18. Indeed, the presumption in the criminal conviction context exists only because “the law mandates numerous legal consequences follow a criminal conviction to such an extent that the existence of at least one collateral legal consequence for an individual defendant is effectively inevitable.”[9] Id. ¶ 17. Thus, in the non-conviction context, the presumption likewise requires a demonstration of “numerous consequences imposed by law that would command the conclusion that some collateral legal consequence is inevitable for every” similarly situated party. Id. ¶ 32. Such consequences must be “statutorily mandated and cannot be avoided by conforming with the law.” Id. ¶ 31. See id. ¶¶ 29–30.
¶34 Parents and the State both argue that the juvenile court’s“finding of neglect remains significant and important notwithstanding the fact that the juvenile court has nowterminated jurisdiction over this family.” Specifically, they assert that “a finding of neglect does provide a statutory basis for termination of parental rights were Parents to again find themselves before the juvenile court.” See Utah Code Ann. § 80-4-301(1)(b) (LexisNexis Supp. 2022) (listing “that the parent has neglected or abused the child” as a legal ground for which a parent’s rights may be terminated); In re J.M., 2020 UT App 52, ¶¶ 28–30 & n.3, 463 P.3d 66 (stating that a prior adjudication of abuse or neglect, regardless of whether the “parent has improved herself since,” satisfies the statutory ground for parental termination, leaving the juvenile court to decide only whether termination is in the best interest of the child). The State additionally asserts that the neglect adjudication “precludes Parents from challenging their substantiated finding of neglect on the DCFS Management Information System child abuse database,” see Utah Code Ann. § 80-2-707(7)(a) (LexisNexis Supp. 2022) (“[A]n alleged perpetrator may not make a request . . . to challenge a supported finding if a court of competent jurisdiction entered a finding, in a proceeding in which the alleged perpetrator was a party, that the alleged perpetrator is substantially responsible for the abuse, neglect, or dependency that is the subject of the supported finding.”), which will have “implications for any future investigations of child abuse/neglect regarding the Parents, as well as affect[] things such as the Parents’ ability to serve as foster parents in the future.” We agree and conclude that this satisfies the presumed collateral consequences approach.
¶35 In State v. Legg, 2018 UT 12, 417 P.3d 592, our Supreme Court held that revocation of probation did not warrant presumed collateral consequences (or amount to actual collateral consequences, for that matter). See id. ¶¶ 25, 32, 38. The appellant in that case argued that probation revocation could be used as a “prior history in future contact with the legal system,” could be used “as an aggravating factor in the sentencing recommendation matrix,” could be a basis for the State to refuse “plea offers or offers of probation,” and would render him ineligible “for a reduction of the degree of his or her first offense under Utah Code section 76-3-402.” Id. ¶ 28 (quotation simplified). The Court rejected these arguments, holding that the first three arguments simply amounted to the allegation that “certain non-statutory consequences may occur,” and that “these types of discretionary decisions are not governed by the mere presence or absence of a recorded violation of probation.” Id. ¶ 29 (quotation simplified). Additionally, the Court stated that “the first three potential collateral legal consequences are contingent upon [the appellant] again violating state law,” and that he is “able—and indeed required by law—to prevent such a possibility from occurring.” Id. ¶ 30 (quotation simplified). And concerning the fourth argument regarding “the potential of a 402 reduction,” the Court stated that because it was discretionary, the reduction was “at most, highly speculative and nothing more than a mere possibility.” Id. ¶ 31.
¶36 Our Supreme Court also distinguished its prior opinion in In re Giles, 657 P.2d 285 (Utah 1982), in which it “concluded that an appeal of a civil commitment was not moot because there were ‘collateral consequences that may be imposed upon appellant that might arise were he to face future confrontations with the legal system,’” Legg, 2018 UT 12, ¶ 29 n.4 (quoting In re Giles, 657 P.2d at 287) (quotation otherwise simplified). The Court stated that individuals subject to civil commitments “face similar deprivations of liberty as criminals” and that “unlike the use of previous commitment in future commitment hearings, a defendant is able to completely avoid the use of a probation revocation in a future sentencing decision by not committing a future violation of law.”[10] Id. (quotation simplified). Adjudications of neglect by a juvenile court are on much the same footing.
¶37 As an initial matter, “[a] parent’s right to raise his or her child is one of the most precious rights any person enjoys, and is among the fundamental rights clearly protected by our federal and state constitutions.” In re B.T.B., 2018 UT App 157, ¶ 9, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. See Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022) (“Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child. For this reason, the termination of family ties by the state may only be done for compelling reasons.”). Accordingly, although taking a different form than that in the criminal-conviction context, parents nonetheless face “deprivations of liberty” as a result of neglect adjudications, which include collateral consequences in possible “future confrontations with the legal system.” See Legg, 2018 UT 12, ¶ 29 n.4 (quotation simplified).
¶38 Unlike the arguments made by the appellant in Legg, the consequences that Parents would be subject to as a result of the neglect adjudication are imposed by law and are not discretionary. Under Utah law, the prior adjudication of neglect is a sufficient ground for termination of parental rights. See Utah Code Ann. § 80-4-301(1)(b); In re J.M., 2020 UT App 52, ¶¶ 28–30. Although it would satisfy only one of the two elements required for termination of parental rights,[11] see Utah Code Ann. § 80-4-301, that first element plays a critical role in the protection of parental rights, see In re B.T.B., 2018 UT App 157, ¶ 14 (“Termination of parental rights solely on the basis of the child’s best interest and without any finding of parental unfitness, abandonment, or substantial neglect, violates the parent’s constitutional liberty rights.”) (quotation simplified). Additionally, a finding of neglect carries various consequences because the adjudication remains on the DCFS Management Information System child abuse database. See Utah Code Ann. § 80-2-707(7)(a). As the State explains, this will at the very least preclude Parents from acting as foster parents and will affect any possible future investigations conducted by DCFS.
¶39 Finally, unlike in Legg where the appellant’s arguments were contingent on the appellant again violating the law, see 2018 UT 12, ¶ 30, such is not the case here. Under the parental rights termination test, based on the prior adjudication of neglect, a parent’s rights could conceivably be terminated without the parent subsequently satisfying a statutory ground for termination, so long as termination is in the child’s best interest. See In re J.M., 2020 UT App 52, ¶¶ 28–30 & n.3.
¶40 For these reasons, we hold that Parents’ challenge to the juvenile court’s neglect adjudication satisfies the collateral consequences exception to the mootness doctrine. We accordingly proceed to address the merits of their argument, even though the issue is technically moot.
Merits of the Neglect Adjudication
¶41 In challenging the juvenile court’s adjudication of Child as neglected, Parents argue that the court committed a threshold legal error when it “failed to conduct the requisite legal analysis into whether Parents’ conduct involved a reasonable and informed health care decision.” We agree with Parents in this regard.
¶42 The juvenile court adjudicated Child neglected on the ground that Child lacked “proper parental care by reason of the fault or habits of” Parents. See Utah Code Ann. § 80-1-102(58)(a)(ii) (LexisNexis Supp. 2022). But the Utah Code specifically exempts from its definition of neglect “a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed.” Id. § 80-1-102(58)(b)(ii).[12]
¶43 In determining whether a parent acted reasonably regarding a child’s healthcare, “the pivotal question is what action by the parent was proper under the circumstances.” In re N.K.C., 1999 UT App 345, ¶ 15, 995 P.2d 1.[13] This standard “is flexible and depends on the actual circumstances involved,” id. ¶ 17, “includes a full range of conduct on the part of parents and guardians,” and “does not require extraordinary caution or exceptional skill,” id. ¶ 19 (quotation simplified). See id. ¶ 18 (“[P]erfection is not required[.]”). Rather, “similar to a reasonableness standard in torts,” “reasonable care is what an ordinary, prudent parent uses in similar situations.” Id. ¶ 19 (quotation simplified). Additionally, although this “standard may accommodate the cautious and the hesitant, . . . it cannot accommodate inaction in the face of an obvious cause for immediate concern.” Id. ¶ 21. See id. ¶ 16 (“[W]aiting even an hour when a child is suffering from an obvious and serious injury is ordinarily not reasonable and could support a determination of medical neglect.”).
¶44 In addition to being reasonable, the parent’s health care decisions must be “informed.” Utah Code Ann. § 80-1-102(58)(b) (ii). “Informed” is defined as “having information” or “based on possession of information.” Informed, Merriam-Webster Dictionary, https://www.merriam-webster.com /dictionary/infor med [https://perma.cc/S8NV-S8X7]. See Informed, Dictionary.com, https://www.dictionary.com/browse/informed [https://perma.cc/ TN64-KHLB] (defining “informed” as “having or [being] prepared with information or knowledge; apprised”). Thus, parents must take the time to apprise themselves of the necessary information to allow them to make a considered health care decision for their child. Indeed, in cases of alleged medical neglect, absent “an immediate threat of death or serious and irreparable harm” to the child, if a parent obtains a second medical opinion that “results in a different diagnosis or treatment recommendation from that of the opinion of the physician [that DCFS] used,” that opinion is entitled to deference “as long as that opinion is reasonable and informed and is consistent with treatment that is regularly prescribed by medical experts in the applicable field.” Utah Code Ann. § 80-3-304(3)–(4) (LexisNexis Supp. 2022).
¶45 Here, at the adjudication hearing, the State argued that Parents’ actions “were not reasonable and informed under the circumstance” because they failed to appear for follow-up appointments to check Child’s weight and conduct additional lab tests. Parents countered, asserting that they “have a strong conviction against formula” and that based on the American Academy of Pediatrics’ recommendation, they believed that exclusively breast-feeding “is the healthiest way to provide for your child.” Indeed, the materials First Pediatrician gave Parents following the March 26, 2020 appointment state, “Breast milk is the best food for your baby.” Parents further asserted that they did follow medical advice by “treating the bilirubin levels with the light therapy,” treating Child’s diaper rash by administering prescribed medication, and treating Child’s weight loss by increasing the frequency of feedings and by making an appointment to see Third Pediatrician on April 2. Parents pointed to the fact that increased feedings (albeit with formula) were what Second Pediatrician instructed Child’s foster parents to do following his examination of Child. Accordingly, they asserted that although they “disagreed with” First Pediatrician concerning the use of formula, they “did not disregard” his medical recommendation to increase the frequency of Child’s feedings.
¶46 In finding Child was neglected by Parents, the juvenile court did not discuss whether the State had proven, by clear and convincing evidence, that Parents’ medical decisions for Child were not “reasonable and informed.” Instead, the court found that the State had proven the following facts by clear and convincing evidence:
By March 30, 2020, Child “had lost 18% body weight since birth and was at significant risk for seizures and brain damage.”
Paramedics who examined Child at the motel concluded that Child “was not in distress,” but this “cursory physical examination . . . could not have identified” the “very real and very serious” medical issues that were later identified at the hospital.
First Pediatrician “was very concerned about dehydration of” Child.
Parents “were advised by [First Pediatrician] of the very serious medical danger to [Child] and advised [Parents] to supplement the baby’s intake with formula.”
Parents “refused to follow the medical advice and bring the baby in for weight checks, lab draws, and treatment recommendations regarding [Mother’s] breastmilk supply, or follow the other medical advice given to” them.
When taken to the emergency room by DCFS, Child’s “weight had increased from the last time he was seen by” First Pediatrician.
The court also made findings regarding the difficulty Caseworker experienced in locating Child, Father’s aggressive and belligerent attitude toward Caseworker, Father’s use of aliases and “history of parental interference,” and Father’s “very strong, passionate feelings about Government interference or involvement in the lives of private citizens.”[14]
¶47 But despite the GAL’s assertions to the contrary, these facts, without more, are insufficient to establish that Parents’ medical decisions for Child were unreasonable, i.e., that Parents did not “exhibit appropriate concern for the infant’s needs given the observable evidence,” In re N.K.C., 1999 UT App 345, ¶ 20 (quotation simplified), and whether their decisions were informed. Specifically, the court’s findings do not go to the reasonableness of Parents’ decision to increase feeding frequency without supplementing with formula in response to Child’s more-than-expected weight loss, whether Parents’ decision to forgo feeding Child formula under the circumstances was informed, or the reasonableness of Parents’ decision to wait until April 2 to have Child re-examined following the March 26 appointment with First Pediatrician in lieu of the follow-up appointment scheduled for the following day.
¶48 More importantly, even if the juvenile court did make the relevant findings, it did not undertake the necessary analysis of whether Parents’ medical decisions were reasonable, which is an ultimate determination that is left to the juvenile court—not an appellate court. Reasonableness determinations involve the application of law to facts, some of which, depending on the context, are entitled to deferential review and others of which are subject to de novo review. See Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 20, 345 P.3d 1253 (“[S]ome determinations of reasonableness should be reviewed de novo and others should not.”). The reasonable parent standard is “similar to a reasonableness standard in torts,” In re N.K.C., 1999 UT App 345, ¶ 19, which “is determined by the fact-finder and subject only to deferential review,” Sawyer, 2015 UT 33, ¶ 21. This is because “the particular facts and circumstances of the [parent’s] conduct are likely to be so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out.” In re adoption of Baby B., 2012 UT 35, ¶ 43, 308 P.3d 382 (quotation simplified). Additionally, a juvenile court’s determination under the reasonable parent standard “would often be affected by [the court’s] observation of a competing witness’s appearance and demeanor on matters that cannot be adequately reflected in the record available to the appellate courts.” Id. (quotation simplified). Accordingly, absent the court’s analysis of whether Parents’ medical decisions satisfied the reasonable parent standard, the juvenile court’s adjudication of neglect in this case is unsustainable, and this court cannot undertake the analysis in the juvenile court’s stead even if it had made the requisite factual findings.
¶49 The State argues that Parents’ conduct was objectively unreasonable and the fact that Child did not suffer permanent harm is not determinative. We certainly agree with the latter portion of this argument, that is, “[a] parent should not benefit from the happenstance that her child’s condition did not worsen” as a result of her unreasonable medical decision. In re N.K.C., 1999 UT App 345, ¶ 14. But for a healthcare decision to be objectively unreasonable, as was the case in In re N.K.C.,[15] the court needed to find that Child’s condition presented “an obvious cause for immediate concern.” Id. ¶ 21 (emphasis added). Although the juvenile court did find that Child’s examination at the hospital revealed “very real and very serious” medical issues, the court did not make a finding regarding whether they were issues that should have been obvious to Parents. To the contrary, the court acknowledged that the examination completed by responding paramedics earlier that night at the motel revealed that Child “was not in distress.” See id. ¶ 20 (stating that a parent is not expected “to make a diagnosis, only to exhibit appropriate concern for the infant’s needs given the observable evidence”) (emphasis added) (quotation otherwise simplified). Thus, Parents’ conduct at the time could not have been objectively unreasonable.
¶50 In sum, because the underlying conduct that should have been the focus of the juvenile court’s neglect adjudication was Parents’ medical decisions regarding Child, the court could not find neglect unless the State had met its burden of proving that those decisions were not “reasonable and informed.” See Utah Code Ann. § 80-1-102(58)(b)(ii) (LexisNexis Supp. 2022). Because the court did not conduct the requisite analysis, its ruling contained legal errors, and we therefore reverse.
CONCLUSION
¶51 Because Parents’ argument regarding Child’s removal from their care following the shelter hearing is moot and not subject to a recognized exception to the mootness doctrine, we lack judicial power to address it. But we have power to address Parents’ challenge to the juvenile court’s neglect adjudication because that argument, while technically moot, satisfies the collateral consequences exception to mootness. And because the juvenile court did not make findings or conduct an analysis related to whether Parents’ medical decisions for Child were “reasonable and informed,” the court’s ruling contained critical legal errors, and we therefore reverse the court’s neglect adjudication.
[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re J.M., 2020 UT App 52, n.1, 463 P.3d 66 (quotation simplified).
[2] Second Pediatrician testified that Child had gained around 6 ounces by the April 3 appointment, but medical records show that Child’s weight increased from 3.65 kg to 4.03 kg in the two-day interval, for a total weight gain of 0.38 kg, which is 13.40 ounces.
[3] At the time, the relevant provision appeared in section 78A-6-105 of the Utah Code. The provision has since, without any substantial change, been moved to section 80-1-102. Compare Utah Code Ann. § 78A-6-105(36)(a)(ii) (LexisNexis Supp. 2018), with id. § 80-1-102(58)(a)(ii) (Supp. 2022). We cite the current version of the annotated code for convenience.
[4] Specifically, the petition alleged that he took his then two- and four-year-old children out of state during his weekend parent-time and disappeared for eight months. Father and the children were finally located in Pennsylvania where they were observed outside in the winter cold, without coats. The petition further alleged that Father first refused to give responding police officers his name and eventually gave an alias. Once his true identity was discovered, Father was arrested, and the children were returned to their mother in Utah.
[5] The subsection, in its entirety, states,
Unless there is an imminent risk of death or a deteriorating condition of the child’s health, the child shall remain in the custody of the parent or guardian while the parent or guardian obtains a second medical opinion.
Utah Code Ann. § 80-3-304(2) (LexisNexis Supp. 2022).
[6] The subsection, in its entirety, states,
Subsections (1) through (3) do not apply to emergency treatment or care when the child faces an immediate threat of death or serious and irreparable harm and when there is insufficient time to safely allow the parent or guardian to provide alternative necessary care and treatment of the parent’s or guardian’s choosing.
Id. § 80-3-304(4).
[7] But unlike the State, Parents do not concede that the current appeal is technically moot. Rather, they argue that the appeal is not moot because the juvenile court’s neglect adjudication affects their parental rights. They support their assertion by adopting the State’s collateral consequences argument. That is, Parents do not assert that our resolution of this issue in their favor would have any current or practicable effect on their parental rights. Instead, they base their argument on a potential future event, asserting that their rights are affected because, as discussed in greater detail later in this opinion, “a neglect adjudication remains a statutory basis for terminating Parents’ rights going forward.” See In re J.M., 2020 UT App 52, ¶¶ 28–30, 463 P.3d 66 (“Once neglect has occurred, a juvenile court is entirely justified in making a finding that a parent ‘has neglected’ a child, even if that parent has improved herself since.”). But we are unpersuaded that even if Parents’ argument proves meritorious, any remedy we could order would “have a meaningful impact on the practical positions of the parties.” Utah Transit Auth. v. Local 382 of Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289 P.3d 582. See State v. Legg, 2018 UT 12, ¶ 26, 417 P.3d 592 (“The question of mootness doesn’t turn on which collateral legal consequences the defendant will suffer, but on whether the requested judicial relief can affect the rights of the litigants.”) (quotation simplified).
[8] An example of a non-criminal context in which the collateral consequences presumption applies is that of civil commitments because “patients of mental hospitals face similar deprivations of liberty as criminals.” State v. Legg, 2018 UT 12, ¶ 29 n.4, 417 P.3d 592 (quotation simplified). See In re Giles, 657 P.2d 285, 286–87 (Utah 1982).
[9]Our Supreme Court has “recognized several collateral legal consequences that may result from a criminal conviction, such as the use of the conviction to impeach the petitioner’s character or as a factor in determining a sentence in a future trial, as well as the petitioner’s inability to vote, engage in certain businesses, or serve on a jury.” State v. Legg, 2018 UT 12, ¶ 22, 417 P.3d 592 (quotation simplified).
[10] Our Supreme Court also noted that, at the time, “being labeled ‘mentally incompetent’ carried collateral legal consequences comparable to criminal convictions,” such as restrictions on voting rights and the ability to serve on a jury, obtain a driver license, or obtain a firearm license. See Legg, 2018 UT 12, ¶ 29 n.4.
[11] Parental rights may be terminated only if the following two elements are met: (1) “a trial court must find that one or more of the statutory grounds for termination are present” and (2) “a trial court must find that termination of the parent’s rights is in the best interests of the child.” In re B.T.B., 2018 UT App 157, ¶ 13, 436 P.3d 206 (quotation simplified), aff’d, 2020 UT 60, 472 P.3d 827.
[12] The Utah Code further exempts from its definition of neglect a parent’s exercise of his or her right to seek a second medical opinion when DCFS seeks to remove the child from the parent’s custody on allegations of medical neglect. See Utah Code Ann. § 80-1-102(58)(b)(iii) (LexisNexis Supp. 2022). See also id. § 80-3-304 (stating that, with certain limitations, parents have a right to seek a second medical opinion in cases of alleged medical neglect). Parents also argue that the juvenile court erred in failing to consider this provision as part of its adjudication ruling. Because we reverse on the ground that the court did not consider whether Parents’ medical decisions were “reasonable and informed,” we do not reach this question.
[13] In re N.K.C., 1999 UT App 345, 995 P.2d 1, addressed the reasonable parent standard under the medical neglect statute then in effect, which required this court to determine whether a parent provided a child with “proper or necessary” medical care. See id. ¶ 8. The statute has since been rephrased and renumbered, without any substantive change that is relevant to the current appeal. Compare Utah Code Ann. § 80-1-102(58)(a)(iii) (LexisNexis Supp. 2022) (defining “neglect” as “failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being”), with id. § 78-3a-103(1)(r)(i)(C) (Supp. 1999) (defining “neglected child” as “a minor . . . whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, or medical care, including surgery or psychiatric services when required, or any other care necessary for health, safety, morals, or well-being”). Although the juvenile court in the case before us did not adjudicate Child neglected under the medical neglect statute, it nevertheless was barred from finding neglect if the underlying conduct constituted a “reasonable and informed” healthcare decision. See id. § 80-1-102(58)(b)(ii) (Supp. 2022) (“‘Neglect’ does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed[.]”). Additionally, we see no reason why the reasonable parent standard that is applied to a determination of whether a parent provided “proper or necessary” medical care under the medical neglect statute should differ from the standard applied in determining whether a parent made a “reasonable” healthcare decision under the statute at issue in this case.
[14] The GAL makes much of Father’s contentious behavior, his history of parental interference, and the difficulty Caseworker experienced in locating Parents and Child. There is no question that these behaviors were not constructive and were not helpful to Parents’ cause. But these findings of fact do not go to the reasonableness of Parents’ medical decisions and are therefore largely irrelevant to the determination of whether their medical decisions were reasonable and informed.
[15] In In re N.K.C., 1999 UT App 345, 995 P.2d 1, the father “vigorously shook” his one-month-old child. Id. ¶ 2. The child’s mother, who had been absent during the abuse, later “observed that the child was limp and lethargic” and that his “pupils were fixed.” Id. Instead of seeking immediate medical attention, the mother put the child to bed. Id. Later that night, after the child’s condition had not improved, the mother contacted the child’s pediatrician, who directed her to immediately take the child to the emergency room. Id. ¶ 3. The mother arrived with the child at the emergency room almost five hours after she initially discovered the child’s serious condition. Id. The juvenile court determined that the mother “neglected the child by failing to obtain timely medical care.” Id. ¶ 6 (quotation simplified). We affirmed, stating that under the reasonable-parent standard, the mother’s conduct, in light of the severe symptoms the child was exhibiting, was “well outside that which can reasonably be expected of a parent in that situation,” and therefore “the mother’s failure to summon immediate medical attention amounted to a failure to exercise the minimum degree of care expected of a reasonably prudent parent.” Id. ¶ 21.
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.
OLIVER, Judge:
¶1 C.B. (Mother) and H.B. (Stepfather) filed a petition seeking termination of J.B.’s (Father) parental rights to L.L.B. (Child) and adoption by Stepfather. After a one-day bench trial, the district court found four statutory grounds for termination. The court also concluded it was in Child’s best interest to terminate Father’s parental rights and that doing so was strictly necessary so Child could be adopted by Stepfather. Father appeals the district court’s conclusion that termination of his parental rights was in Child’s best interest, arguing it was not supported by clear and convincing evidence. We agree with Father that the evidence was insufficient and, therefore, reverse the district court’s ruling terminating Father’s parental rights.
BACKGROUND
¶2 Child was born in September 2009. Less than a week after her birth, Father relapsed on controlled substances and left Child and Mother. Shortly thereafter, Child and Mother moved from the Salt Lake City area to Vernal, Utah. In the months after Mother and Child moved to Vernal, Father saw Child twice—in December 2009 and in April 2010.
¶3 In April 2010, Mother and Father entered into a stipulated agreement of paternity. The decree awarded primary physical custody and sole legal custody to Mother with Father awarded parent-time. It also permitted Mother to request that Father submit to random urinalysis drug testing up to eighteen times a year.
¶4 For several years Father consistently exercised his rights to parent-time. Because Mother lived in Vernal with Stepfather, whom she married in 2013, and Father lived in Salt Lake City, the parties met in Fruitland, Utah to exchange Child. In July 2015, however, Mother and Father got into an argument during an exchange and Child immediately returned to Vernal with Mother and Stepfather. Mother testified that the same month as the confrontation in Fruitland, Child and Father were involved in a four-wheeler accident. For the next several weeks, Mother refused to permit Child to spend parent-time with Father because she was concerned Father had been drinking at the time of the accident. Parent-time resumed after Father sought an order to show cause in the paternity matter.[1] Beginning in April 2016, the parent-time was supervised by Father’s mother because Mother was concerned that Father was using drugs and alcohol around Child.
¶5 In August 2016, Mother and Father discussed the possibility of Father voluntarily relinquishing his parental rights. Mother testified Father was “on the fence” about the idea, and Father admitted he considered it for approximately two months. However, the parties were unable to reach a voluntary agreement. In 2018, Mother and Stepfather filed a Petition for Adoption/Termination of Parental Rights in district court. The petition listed the following grounds supporting the termination of Father’s parental rights: (1) Father abandoned Child, (2) Father neglected Child, (3) Father was an unfit parent, and (4) Father made only token efforts to be a fit parent. Father filed a handwritten response opposing the petition and later filed a counseled answer.
¶6 The district court held a one-day bench trial on November 5, 2021. Mother, Father’s ex-girlfriend (Ex-Girlfriend), Father’s mother, Father’s brother, and Father testified. A guardian ad litem (the GAL) appointed by the district court represented Child.
¶7 Mother’s testimony centered on Father’s lengthy absences from Child’s life, his history of failing to provide financial support for Child, and his past substance abuse. She testified that in February 2017, she asked Father to take a drug test, but he refused. In the months after that refusal, Father attempted to contact Child only twice—once in May 2017 and once more in December 2017. Nearly a year passed until Mother heard from Father again. As to Father’s history of supporting Child, evidence was presented that he made court-ordered child-support payments from 2010 through 2016, but the payments were not for the full amounts ordered. From 2017 forward, Father’s child-support payments totaled seventy-two dollars, and as of September 1, 2021, he was $51,011.25 in arrears. Mother testified that Father had never followed through with his many promises to pay child support, refrain from using drugs and alcohol, and re-establish a relationship with Child. She also testified he had never been involved in Child’s education. Mother admitted, however, that since the termination petition was filed, she had not responded to Father’s requests to see Child and had not told Child about the requests.
¶8 Ex-Girlfriend testified that she and Father dated from 2009 until 2016. She described his alcohol consumption during that period as progressing from weekends to daily. Ex-Girlfriend also testified that Father told her either in 2015 or 2016 that he was using crack cocaine and she found illegal substances in their home and car in 2016. She also confirmed Father was drinking the day he and Child were involved in the four-wheeler accident in July 2015. Ex-Girlfriend testified she now communicates with Father only to discuss matters concerning their daughter, Child’s half-sister (Half-Sister). According to Ex-Girlfriend, Father spends parent-time with Half-Sister and has “a strong relationship” with her. She also testified that Child and Half-Sister have a good relationship that is facilitated and encouraged by her and Mother.
¶9 Father’s mother testified about Father’s relationship with Half-Sister, describing it as a “great relationship” and calling him “a wonderful father.” She testified that she tries to stay in contact with Child, but recently has had difficulty getting responses from Mother. According to Father’s mother, Father’s family last saw Child at a family reunion in the summer of 2020. She stated that Father had substance abuse issues “off and on” from 2009 through 2019 but she was not aware of any substance abuse since 2019.
¶10 Father’s brother testified that “since [Father] put his life back together,” Father has been an “incredible father” and an “incredible uncle.” He also testified about the family reunion, stating Child attended the reunion and he saw her interact with Father. He stated they “spent a lot of time together and had a lot of fun.”
¶11 Father testified he saw Child “a lot” during the first five years of her life and had a good relationship with her. Thereafter, he saw Child off-and-on until August 2016, after which time he did not see her again until 2020 at the family reunion. He admitted their interactions at the reunion were “a little awkward at first” but testified they “ended up having a blast.” He testified he admitted to Child during the reunion that he had not been the best parent and apologized. According to Father, Child responded well to his apology and gave him a hug. Father testified he had not seen Child since the reunion, although he had written letters to Mother, sent a gift, and emailed Child.
¶12 Father admitted he had relapsed on controlled substances three or four times between 2009 and 2019, but testified he has been clean and sober since he went to jail in January 2019. Father testified he participated in drug court after a term of incarceration, calling it “awesome” and “one of the best things” he ever did. As part of drug court, he participated in outpatient treatment, community service, and drug testing. He testified he now works with at-risk children as a boxing coach and was now paying child support.
¶13 The GAL stated Child does not have a relationship with Father because he “wasted that relationship and allowed it to shrivel by his absence and his lack of effort to nourish it.” The GAL described Stepfather as “an excellent father” to Child and stated the two have “a great bond” and “a very close relationship.”
¶14 The district court entered detailed Findings of Fact and Conclusions of Law on December 3, 2021. The court concluded four statutory grounds for termination existed and the bulk of its ruling addressed those grounds. The court found Father abandoned Child by failing to maintain contact with her, neglected Child by not paying child support, and made only token efforts to support Child or communicate with her. Although the court found that Father was “a fit and proper parent” at the time of the hearing, it nevertheless concluded Father was unfit or incompetent for purposes of the statutory grounds for termination because he was unfit and incompetent for much of Child’s life.
¶15 The district court’s best-interest analysis was considerably shorter than its analysis of the statutory grounds for termination. The court identified and examined three factors: (1) whether another person was available to step into the parental role, (2) whether there was evidence Child had been harmed by her relationship with Father, and (3) whether Father’s extended family was a positive influence in Child’s life. Based on that analysis, the court ruled as follows: “The Child desires and deserves to have [a] healthy, stable family relationship with the person that has been and acts as her father figure. The Child’s interest will best be served if the adoption is allowed to move forward. . . . Because the adoption cannot occur without the termination of Father’s parental rights, the Court finds by clear and convincing evidence that it is ‘strictly necessary’ that Father’s rights be terminated.”
ISSUE AND STANDARD OF REVIEW
¶16 Father challenges the district court’s conclusion that termination of his parental rights was in Child’s best interest. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. A lower court’s best-interest ruling is reviewed deferentially but “we will not only consider whether any relevant facts have been left out but assess whether the . . . court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867 (cleaned up).
ANALYSIS
¶17 A court must make two findings before terminating a parent-child relationship:
First, a trial court must find that one or more of the statutory grounds for termination are present. . . . Second, a trial court must find that termination of the parent’s rights is in the best interests of the child. . . . The trial court must make both of these findings not merely by a preponderance of the evidence, but by clear and convincing evidence and the burden of proof rests with the petitioner.
In re B.T.B. (BTB I), 2018 UT App 157, ¶ 13, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827 (cleaned up). “A court may . . . terminate parental rights only when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B. (BTB II), 2020 UT 60, ¶ 66, 472 P.3d 827.
¶18 Mother and Stepfather argue that a district court is not required to undertake the strictly necessary part of the analysis when a petition is filed under the Adoption Act rather than the Termination of Parental Rights Act. Compare Utah Code § 78B-6-112(5)(e) (“The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.”), with Utah Code § 80-4-301(1) (“[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent . . . .”) (formerly codified at § 78A-06-507(1)). But we need not address Mother and Stepfather’s argument, because even without considering the strictly necessary part of the best-interest analysis dictated by the Termination of Parental Rights Act, we conclude, below, that there is not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest.
¶19 Father first argues the court erred in finding he was an unfit or incompetent parent as a ground for termination because, in his view, the statute requires a finding based on current ability rather than past conduct, and the court found him to be a fit parent at the time of the trial. But Father concedes that three other statutory grounds for termination exist. Because the finding of just one statutory ground for termination is sufficient, it is unnecessary to address Father’s argument as to the fitness ground. See id. § 80-4-301(1); In re S.M., 2017 UT App 108, ¶ 4, 400 P.3d 1201 (per curiam) (“[T]he finding of a single ground will support termination of parental rights.”).
¶20 Father next argues that Mother and Stepfather—the parties seeking termination of his parental rights—failed to present clear and convincing evidence that termination of his parental rights was in Child’s best interest. See BTB II, 2020 UT 60, ¶ 52. He does not challenge any of the district court’s findings as clearly erroneous, but asserts that those findings and the evidence underpinning them do not support the court’s ruling. In Father’s view, the only support for the district court’s ruling was Mother’s testimony that Stepfather and Child love and care for each other and the report of the GAL stating that Child (1) was not comfortable around Father, (2) had a close relationship with Stepfather, and (3) wanted to be adopted by Stepfather.
¶21 The best-interest inquiry “is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 29 (cleaned up). The lower court must consider the “physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” BTB I, 2018 UT App 157, ¶ 47 (cleaned up). The analysis is undertaken from the child’s point of view. BTB II, 2020 UT 60, ¶ 64. In making the best-interest determination in this matter, the district court analyzed whether there was (1) another person available to step into the parental role, (2) evidence Child had been harmed by the relationship with Father, and (3) a positive role that Father’s extended family played in Child’s life. After considering these three factors,[2] the district court concluded that termination of Father’s parental rights and adoption by Stepfather was in Child’s best interest because she “desires and deserves to have a healthy, stable family relationship with the person that has been and acts as her father figure.” But the record does not contain clear and convincing evidence supporting this conclusion that termination of Father’s parental rights was in Child’s best interest.
¶22 As to whether another person was available to step into the parent role, the district court detailed evidence showing Child loves Stepfather and Stepfather has been a positive presence in Child’s life for many years. It was undisputed that Child has lived with Mother and Stepfather since 2013. The GAL told the district court that Child “is consistent in her desire to be adopted” by Stepfather, has a close relationship with him, and does not view Father as a father figure. The court found Child wants to be adopted by Stepfather and the two have an excellent relationship. But there was no evidence that this relationship will not continue if Father’s rights are not terminated and the adoption does not occur.
¶23 Mother and Stepfather suggest that “failing to terminate Father’s parental rights so that Stepfather can adopt inherently leaves the Child’s relationship with Stepfather, and possibly the Child’s siblings and extended family, vulnerable to termination at any time by . . . Mother’s death.” But such a concern is present in many termination cases, and it does not necessarily lead to the conclusion that termination of a parent’s rights is in the child’s best interest. As our supreme court has explained, “categorical concerns” about the lack of permanence of an option other than adoption are not enough, otherwise “termination and adoption would be strictly necessary across the board.” In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606.
¶24 When considering whether Child had been harmed by the relationship with Father, the court found that Child does not have a relationship with Father and noted Child has expressed some concern for her safety when she is with him. There was no finding, however, that Father’s presence in her life has affirmatively harmed Child. The GAL told the court that Child does not have a comfortable relationship with Father and “there’s a certain level of fear.” But the GAL did not explain or expound on the root of this fear. Further, there was no finding detailing how Child’s life was negatively affected or disrupted by Father’s attempts to exercise his parental rights. There is evidence Father has emailed Child a handful of times since the termination petition was filed, but there was no testimony or other evidence that these emails had any negative effect on Child’s general welfare or happiness.[3] Father also sent communications to Mother asking for an opportunity to meet with Child, but Mother testified she did not respond and did not put Father in contact with Child because Child would not be receptive. Mother’s testimony, however, did not discuss the effects Father’s past attempts at reconciliation had on Child or provide an explanation of why she believed Child would not want to see Father. In short, there is no evidence showing Father’s presence in Child’s life has a negative effect on her happiness and well-being.
¶25 Regarding Child’s relationship with Father’s extended family, the court found that Child has had a relationship with Father’s mother for all her life and the relationship is important to Child. There was also evidence that Child has a strong bond with Half-Sister. Several witnesses testified about Child’s attendance at Father’s family reunion in the summer of 2020. Mother testified that Child called her and was “begging to stay with her cousins.” Father’s brother testified there was some initial awkwardness between Child and Father at the reunion “but they spent a lot of time together and had a lot of fun.” The district court described the weekend as a “huge success” and “enjoyable and successful.” Based on this evidence, the district court found that Child currently has positive and beneficial relationships with Father’s extended family, including Half-Sister and Father’s mother.
¶26 The district court found that Child’s relationships with Father’s extended family would be adversely affected to some extent if Father’s parental rights were terminated and Child was adopted by Stepfather, and then it purported to compare those effects to the benefits Child would glean from a relationship with Stepfather and his family. But there was no evidence presented identifying those benefits or explaining how Child’s ability to maintain relationships with Stepfather and his family would be negatively affected if she was not adopted.
¶27 Despite the district court’s statement that termination was in Child’s best interest because she deserves to have a healthy and stable family relationship, the court made no finding that Child’s current living situation was not healthy and stable. Nor did the court make any finding that her living situation will change in any way if she is not adopted. See BTB I, 2018 UT App 157, ¶ 56. (“[T]he absence of any proposed change in the child’s custody or living situation is a factor that may weigh against termination in some cases . . . .”).
¶28 In sum, the evidence on which the district court relied does not clearly and convincingly demonstrate that termination of Father’s parental rights was in Child’s best interest.
¶29 Other evidence before the district court further undermines, rather than supports, the district court’s ruling that termination of Father’s parental rights was in Child’s best interest. Most obvious and significant is the court’s finding that “Father is presently fit and capable as a parent.” This finding was based on evidence that Father was clean and sober at the time of the termination trial and had been for more than two years. See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (“In termination cases, the . . . court must weigh a parent’s past conduct with her present abilities.”). Father testified he has made many attempts to communicate with Child since his release from incarceration in 2019 and many of those communications were introduced at trial.
¶30 As we have explained, “in making its best-interest determination, . . . especially in cases (like this one) initiated by private petition, it is important for courts to carefully assess a parent’s efforts to improve and, if the court remains unpersuaded that the parent’s situation has sufficiently changed for the better, to specifically set forth reasons why it remains unpersuaded.” In re J.J.W., 2022 UT App 116, ¶ 30, 520 P.3d 38 (cleaned up). But the district court wasn’t unpersuaded that Father had improved his situation for the better. To the contrary, it was persuaded that Father had successfully addressed his problems with controlled substances and found that “Father is presently fit and capable as a parent.”
¶31 The Utah legislature “has made clear that, as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” BTB II, 2020 UT 60, ¶ 65 (cleaned up). The district court’s order contains no analysis of why it was in the best interest of Child to terminate the parental rights of a fit and capable Father in order to be adopted by Stepfather.
¶32 The record also indicates Father currently considers Child’s needs when he makes decisions on her behalf. For example, the district court’s order contains details surrounding Child’s desire to participate in a religious ceremony with Mother, Stepfather, and their other children. The court found that Father was at first reluctant to consent to Child’s participation but relented when he learned Child strongly desired to participate.
¶33 Nearly all the evidence presented at trial was offered in support of the statutory grounds for termination—not the best-interest inquiry. Although the district court was free to consider the evidence supporting the statutory grounds for termination when conducting the best-interest analysis, almost none of that evidence focused on Child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness” as required under the holistic approach. BTB I, 2018 UT App 157, ¶ 47 (cleaned up). And, as explained above, the evidence that did address Child’s best interest largely countered, rather than supported, the conclusion that termination of Father’s parental rights was in her best interest.
¶34 Thus, we are convinced the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence.
CONCLUSION
¶35 Because the district court’s ruling that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence, we reverse and remand with instruction to vacate the order terminating Father’s parental rights.
[1] Mother testified she permitted Child to spend time with Father after he sought court intervention because she was afraid she “would get put in jail for not allowing the visitations.”
[2] It is unclear why the district court focused exclusively on these three particular factors. Under the required holistic approach, there is no exhaustive list of relevant factors and no one factor deemed relevant by a court is determinative on the question of a child’s best interest. See In re J.P., 2021 UT App 134, ¶ 14, 502 P.3d 1247 (“While courts have identified factors relevant to the best-interest determination, the list is non-exhaustive.”); In re G.J.C., 2016 UT App 147, ¶ 24, 379 P.3d 58 (setting out a non-exhaustive list of factors a court may consider), abrogated on other grounds by In re B.T.B., 2018 UT App 157, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827.
[3] Child responded to only one of Father’s emails. On September 2, 2020, she sent an email simply stating, “Love you.”
Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant
Blair T. Wardle, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.
BACKGROUND
¶2 One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:
Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?
Meyer: Yes, she’s fine.
Father: How did she get those marks?
Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?
Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.
Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.
¶3 After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.
¶4 Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.
¶5 Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”
¶6 Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.
¶7 The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.
¶8 The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.
¶9 Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.
¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.
¶11 In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.
¶12 The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.
¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”
¶14 When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”
¶15 The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.
¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”
¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”
¶18 Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”
¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.
¶20 In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”
¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.
¶22 Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.
ISSUE AND STANDARD OF REVIEW
¶23 Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,
Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.
the result would have been more favorable to the defendant.” Id. (cleaned up).
ANALYSIS
Similar Motive and Opportunity
¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.
¶25 In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.
¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).
¶28 Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.
¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).
¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.
¶31 Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g., id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.
Prejudice
¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).
¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.
¶34 Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.
¶35 In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.
¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).
¶37 We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.
¶38 The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”
¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.
CONCLUSION
¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.
[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.