Confer with an attorney in the jurisdiction where you and/or the other parent now reside who has knowledge and experience with registering foreign divorce and child custody orders in the jurisdiction where you and/or the other parent now reside.
That’s a good question. One that I’ve wondered about myself, but I don’t know of any such studies. That doesn’t mean they don’t exist, it’s just that I don’t know whether they do.
Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.
The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.
In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.
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).
I think I know why you think it’s weird. Why have the children live with one parent instead both parents on an equal custody basis? In other words, “I’ll bear the financial costs of taking care of the children when they are with me, and you bear the financial costs of taking care of the children when they are with you.” That makes, sense. But there is more than one way to view this situation. Most jurisdictions in the U.S.A. see it this way:
If the children spend more time in the care and custody of one parent than the other, then that parent will bear greater financial burden in the form of having to pay for at least the food the children eat, the laundry detergent they use in the washing of their clothes, the extra utilities expenses they represent (using more water and electricity than if the parent lived alone) and the soap, shampoo, and toilet paper the children use.
In Utah (where I practice divorce and family law), child support is intended to cover not only these expenses of the children, but their clothing and bedding, school fees, and extracurricular activities too.
This is why most jurisdictions order the parent who exercises less care and custody than the other parent (the noncustodial parent) to pay what is called “child support” to the custodial parent.
But what if the parents share equal physical custody of the children? Does that mean that neither parent will pay child support to the other? Not necessarily.
In Utah, even if the parents were awarded equal custody of the children, one parent can end up still paying child support to the other, if one parent has a higher income than the other. The reason for this is the idea that the children’s lifestyle should be the same regardless of which parent they are residing with at the time. To ensure the parent whose income is lower can afford to provide the same lifestyle for the children as their other parent, many courts (including Utah’s) will still order the richer parent to pay child support to the poorer parent for this purpose.
If I understand your question correctly, you’re wondering if the court will fault for your ex-spouse’s claims that you are failing to act responsibly when it comes to making and keeping doctor appointments for the child, and perhaps also criticizing your judgment when it comes to matters of the child’s health care.
Many judges are suckers generally for claims of child abuse and neglect. What do I mean? None of them want to be blamed for failing to notice and failing to protect. And so when faced with allegations of child abuse or neglect or parental misconduct toward a child, many of them are on the side of caution, claiming that they are simply looking out for the best interest of the child, when in far too many cases they’re simply looking out for their own best interests (that’s usually what erring on the side of caution does and means in family law—abusing a parent’s reputation and parental rights, so that a court doesn’t have to risk making “the wrong choice” when deciding on allegations of child abuse and neglect).
If instead, your ex is accusing you of misconduct by scheduling doctor appointments for your children without conferring and agreeing with the co-parent before the doctor appointments are scheduled and attended, then if your question is whether your ex will prevail, then if the law and/or court order requires you and your ex/co-parent to confer with each other before you can exercise your “final say” authority to schedule the appointments over your ex’s/co-parent’s objection, then you are likely in the wrong and likely to be found to be in the wrong.
Your question is too vague to understand and answer. You need to consult with an attorney in your jurisdiction to get the correct answers to your questions (both the questions you have asked and the questions you should be asking).
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.
It does not matter whether or how the legal system could support or better support parents who lose child custody cases because it is not the purpose of the legal system to provide support to parents (custodial or noncustodial). The legal system hears and decides legal disputes. The legal system does not implement its decisions (its orders). It is up to those who obtain the orders to take the steps necessary to enforce them (and to enforce them lawfully).
While parents who lose child custody battles often suffer and need or could benefit from help, it is not the role of the legal system to provide help. In other words, you’re asking the wrong question. The right questions are, “What kind of help do parents who lose child custody disputes need?,” and “How can those who want to help these parents help them (and help them best)?”
Another good question is, “Are parents who lose a child custody dispute entitled to help?” We have all been—and will be in the future—unable to meet all our needs independently and have needed help from others. We are all morally obligated to help our fellow human beings. There is a difference, however, between moral obligations to help others and others’ claims to entitlement to other people’s help. Parents who are grieving or suffering from the loss of a child custody dispute are justified in asking for help from others, but not justified in demanding it from anyone.
You might be able to verify whether your lawyer is telling the truth about his/her winning record if the lawyer is willing to give you the information about the case number, the parties, and the opposing lawyer, so that you could—with that information in hand—inquire with the opposing party and the opposing lawyer to see whether they can verify what your lawyer claims is true.
There are so many things wrong with this question. But thank you for asking it because it can be the start of a beneficial conversation and lead to a better understanding of divorce and family law, child custody, and support.
First, the question implies that only women receive child support from men, and thus only men pay child support to women. Wrong. Child support is paid to a parent (man or woman) who can demonstrate that he/she needs payment from the other parent to help the child maintain the lifestyle that his/her parents’ respective lifestyles can and ought to support. Many times, the child support payee (recipient) is the mother. This could be because the mother has the child in her care and custody for a greater portion of the year than does the father. It could also be because the mother earns less money than the father.
But if the father were awarded physical custody of a child for more time during the year than the mother and/or made less money than the mother, then the father could be awarded child support. Many fathers (not as many fathers as mothers, but some fathers) find themselves in this exact situation, which is why many fathers receive child support from mothers.
Just being a mother will not guarantee that a woman will receive child support. Whether a parent committed abuse rarely has anything to do with whether that parent will pay child support (see above), although it may have an indirect effect on child support if, due to a parent’s abuse, the other parent is awarded more custodial time with the child.
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.
Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” This analysis must be undertaken from the child’s point of view. Utah lawprovides that 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. If the child can be equally protected and benefited by an option other than termination (such as permanent custody and guardianship awarded to someone other than the parent or parents), termination is thus not strictly necessary. 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. If a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference by an appellate court. Long-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. Thus, when a parent and potential 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. This post is a summary of the law as stated in the recent Utah Court of Appeals opinion in the case of In re K.R. – 2023 UT App 75 (filed July 13, 2023).
I will answer this question in the context of Utah law because I am licensed as an attorney and practice divorce and family law in the state of Utah.
For the typical child in your situation, i.e., one who wants to obtain a modified order from the court changes the award of child custody from one parent to another, there is precious little that the child can do to affect this kind of change.
In fairness, there are some good policy reasons for why this situation arises. For example:
Young children often have poor judgment and may not know whether residing primarily with the parent the children wants to reside is in the child’s best interest.
– A 9-year-old child may say he/she wants to live with a particular parent not because that parent is a fit parent but just the opposite, i.e., doesn’t ensure the child completes homework, chores, doesn’t ensure the child practices good hygiene, feeds the child junk for meals, imposes no discipline, etc.
– A tween-age or teen-age child may say he/she wants to live with a particular parent not because that parent is a fit parent but because that parent lets the child run wild, skip school, drink, smoke, take drugs, be sexually active, etc.
Many young children can be too easily manipulated and/or intimidated into saying that they want what they don’t really want by way of the custody and parent-time schedule.
Some feel that seeking the input of children on the subject of the child custody and parent-time awards “traumatizes” (this word is grossly overused in family law) children by placing them in a position where they must favor or choose one parent over another.
These are clearly factors worth carefully considering if and when a child objects to residing with a particular parent or objects to a particular custody or parent-time schedule. But too often courts invoke these factors as a reason to utterly silence and to completely ignore anything a child has to say on. Why?
Is it because all minor children are clearly unable to be taken seriously because of their status as minor children? Obviously not. While some children may be too young or too immature to have sound bases for, or to make sound arguments for, their custodial preferences, plenty of children are more than sufficiently intelligent and mature and responsible to be credible witnesses on their own behalf. And we’ll never know whether a child is a credible or an incredible witness if we don’t inquire with the child first. Courts reject the testimony of lying and incompetent witnesses all the time (as well they should), yet many courts reject a child’s testimony without giving the child a chance to speak on the grounds that they might lie, that they might be coached, and/or that they might be too stupid or naïve to be taken seriously. That’s no different than convicting a defendant without a fair trial because he “might be” guilty.
Is it because asking a child to express his/her opinions is inherently and irreparably harmful to all children, or even to most children? Obviously not. If a child tells his/her parents and the court, “Don’t ask me to talk about this,” then it may be that honoring that child’s wishes is best. By the same token, however, if a child tells his/her parents and the court something to the effect of:
“I have a greater stake in the child custody and parent-time awards than anyone else involved in this case.”
“I have experiences, observations, opinions, and desires that deserve to be considered before the court makes these decisions that will affect my life for years to come as a youth and throughout my life as an adult.”
So why do some (most, though not all) courts refuse to hear from children about their custodial preferences and the reasons for those preferences? Why do some courts muzzle the children from the outset? Why do they refuse to weigh the credibility and evidentiary value of what the children who want to be heard have to say? In my opinion, it’s laziness disguised as “prudence” and “compassion”.
So, what does a child who wants and deserves a change of custody do? This may sound radical, but it’s really not: get your own attorney to help you. That’s the legal way to do it. And it’s easier said than done. You’ll be excoriated and mocked for trying. You may even be threatened. Be prepared for all this. There are all kinds of extralegal “self-help” methods that are easier and cheap or free by comparison, but that has never been an excuse to break the rules (unless the rules are inherently unfair or administered unfairly). I encourage children in your situation to work through the system even when it’s organized and administered to work against you.
First, does a parent have the unilateral power simply to “give up” his or her parental rights (and accompanying obligations)? No. The only way to terminate a parent’s parental rights and obligations is by court order after a petition to terminate that parent’s parental rights has been filed and granted.
Can a parent have his/her parental rights terminated? Yes. By court order after a petition to terminate that parent’s parental rights has been filed (either by that parent himself or herself) and granted by the court.
Does the termination of parental rights (not to be confused with merely the desire or intent to have one’s parental rights terminated) also terminate a parent’s obligations to support that child? Yes.
It could mean many things when a parent avoids a legal fight in court for child custody. To identify a few things, it could mean:
that the parent does not want custody of the child or doesn’t care to litigate the matter.
that the parent believes there is no hope that he/she can prevail in the case because of various factors, such as
being unable to afford a competent lawyer
the judge’s, guardian ad litem’s, custody evaluator’s, DCFS’s, and/or law enforcement’s, etc. insurmountable bias against and animus for that party
the opposing party taking a scorched-earth approach to the litigation that includes doing and saying anything to win without regard for truth, decency, and/or the child’s best interest.
that the parent agrees with the other parent’s position on what the child custody award should be.
that the parent is not aware that there is pending child custody litigation involving that parent.
There could be other reason, but these are the most common, in my experience.
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.
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.
There are two kinds of child custody, not just one. Those two different kinds are legal custody and physical custody.
Legal custody is the power of a parent to make decisions for a minor child regarding the child’s health and health care, education, moral and religious upbringing, and other matters pertaining to the child’s general welfare.
Physical custody of a child Is defined as that parent’s right to have the child reside physically with that parent.
You hear about the terms “sole custody” and “joint custody”. Parents can be awarded sole legal or joint legal custody of their children. They can be awarded sole physical or joint physical custody of their children. There is also what is known as a “split custody” award.
Another term that is often used for sole custody is primary custody. That is something of a misnomer.
Sole custody in the context of legal custody would mean that one parent and one parent alone has the power to make decisions for the child. Joint legal custody would mean that both parents share the right to make choices pertaining to the child. That stated, however, courts can and often do award parents the ostensible joint legal custody of their children, and yet give one parent the sole and exclusive right to decide in the event the parents cannot reach agreement. If you ask me, that can’t, in intellectual honesty, be joint legal custody, but I digress.
Sometimes Utah courts will divide legal custody between the parents such that one parent may have the right to make all decisions in a particular area. For example, the court could award the mother the right to make all healthcare decisions and award the father the right to make all education decisions for the children. That sort of arrangement would be known as a “split” legal custody award because neither parent has the sole and exclusive power to make all decisions regarding the child, the parents are not awarded joint legal custody such that they must make decisions jointly, but each parent has some soul and exclusive power to make some decisions, though not all decisions, pertaining to the child’s upbringing.