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Category: Domestic Violence

2024 UT App 43 – domestic violence appeal

State v. Arce – 2024 UT App 43

THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee, v. JOSE FELIPE ARCE, Appellant.

Opinion No. 20220006-CA Filed March 28, 2024

First District Court, Logan Department The Honorable Brandon J. MaynardNo. 191100762

Freyja Johnson, Emily Adams, and Hannah Leavitt-Howell, Attorneys for Appellant, assisted by law student Ryder Seamons[1]

Sean D. Reyes and Marian Decker, Attorneys for Appellee, assisted by law student Rebecca Barker

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        A domestic dispute ensued on an emotional evening after Jose Felipe Arce had returned home from attending the birth of a child he believed he fathered as a result of an affair. Arce does not dispute that an argument occurred. He denies, however, that he hit or choked his spouse (Wife). This appeal centers on Wife’s statements near the time of the event and her complete recantation at trial. Arce claims numerous errors, including that the trial court should not have allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury, a deputy should not have been allowed to vouch for a particular version of Wife’s testimony, the State and a witness should not have used the word “victim” 29 times, and these errors cumulatively prejudiced him. Although we do not endorse the approach taken by the trial court or the parties, we affirm the convictions.

BACKGROUND

¶2           The State charged Arce with, and the jury convicted him on, one count of aggravated assault (domestic violence) and five counts of domestic violence in the presence of a child. At the center of this appeal are the different versions of events as related by Wife. We recite the facts in a light most favorable to the jury’s verdict. See State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

Alleged Assault and Wife’s Statements in the Subsequent Hours and

Days

¶3           In July 2019, Arce visited the hospital for the birth of a child whom both Arce and Wife believed he may have fathered with another woman. Wife described the day as an emotional one filled with tears. When Arce returned from the hospital, the couple decided to take their kids swimming at a hot springs resort. The couple talked about the difficult situation on the drive there, with more crying from Wife. On the drive home, their conversation escalated into an argument while the children slept in the back seat. After Arce asked for forgiveness, Wife said she had forgiven him for “many things” but “this was just too much.” Arce pulled the car over, and Wife said that the two “couldn’t be together anymore.” Wife later told police and neighbors that after pulling over, Arce hit and choked her.

¶4          Arce then drove the family home, and he told the children to go inside. Wife later told police and neighbors that, as they continued arguing, Arce hit her, threw her to the ground, kicked her, pulled her hair, tried to choke her, and threatened to hit her with a beer bottle.

¶5          At this point, Wife ran to her neighbor’s (Neighbor) home. Neighbor could hear Arce yelling as she opened the door to find Wife out of breath, shaking, and crying. Wife was in a t-shirt with no pants. Neighbor and her husband (Neighbor’s Husband) believed Wife was seeking safety. Wife told them Arce was trying to hurt her. She also told the couple she wanted Arce out of the house. She then recounted the earlier fight that had happened during the drive home, including that after arriving home Arce had hit and kicked her and tried to choke her. Neighbor did not see any injuries on Wife. Neighbor’s Husband said that he saw “a red mark kind of on her collarbone on her left side.”

¶6          Neighbor’s Husband, a deputy sheriff, called police, who arrived fewer than ten minutes later. The responding officer (Deputy) interviewed Wife at Neighbor’s home that evening. Deputy testified that Wife appeared “extremely distraught,” “frantic,” and “emotionally distressed” and that she continuously wiped her eyes and nose from crying. During the interview, Wife told Deputy that Arce both struck and choked her. She also recounted that after returning home, Arce dragged her out of the car by her hair, threatened to hit her with a beer bottle, choked her, and slapped her. Deputy observed that the area under Wife’s right eye was “somewhat swollen” and that she had “some sort of reddish mark” on her collarbone that looked like it was beginning to bruise.

¶7          By that time, Arce had left the scene. Wife signed a request for a no-contact order and, with her children, went to emergency housing that the Deputy arranged. Wife also completed a lethality assessment. In the assessment, Wife indicated that she thought Arce might try to kill her. In an additional comment section, Wife noted that “having [Arce] at the home was a concern of safety for her.”

¶8          The following day, a police officer (Detective) interviewed Wife at her work. Wife again recounted the events, including Arce choking her, slapping her, grabbing her hair, throwing her to the ground, and threatening to hit her with a bottle. Wife also filled out a written statement during the interview with Detective recounting these same allegations. The top of the statement gave the following warning, “You are notified that the statements you are about to make may be presented to a magistrate or a judge in lieu of your sworn testimony at a preliminary examination. Any false statements you make and that you do not believe to be true may subject you to criminal punishment as a Class A Misdemeanor.” Wife signed the statement.

¶9          That same night, Deputy interviewed Arce by phone. Arce explained that he and Wife had taken the children to the resort “to have a good day” but Wife kept bringing up the infidelity and birth of the baby, so the two argued. Arce said that during the argument, he went through Wife’s phone, saw messages from another man, and asked, “[W]ho the f*** is this person?” When asked if he hit or choked Wife, Arce responded that he did not recall. Arce did, however, say that there was a miscommunication between them and that there was “some pushing and shoving.”

Wife’s Recantation and Testimony at Trial

¶10 The same day that Detective interviewed Wife, Deputy listened to a voicemail from Wife asking that all charges be dropped. When Wife later spoke with Deputy on the phone, she again asked that the charges be dropped. Wife explained that Arce “had a good job and that she needed help with the five children.”

¶11 At trial, Wife testified consistently with the prior statements she had made to law enforcement and her neighbors, however, she insisted that she made up the allegations of domestic violence against Arce. From the stand, Wife said, “This is why I wanted to just come up here because I hear all the charges and it’s really very selfish of me, you know. So this is why I’m sitting up here and I’m saying what really happened.” Wife testified that all the events occurred as she explained to law enforcement and the neighbors but that Arce never hit or choked her. Wife testified that after telling Arce they could not be together anymore, she told him to take her home, and he did. Wife testified that she opened the car door and sat on the edge of her seat while they continued arguing and yelling at one another but no physical altercation occurred.

¶12 When the State began asking her questions about police arriving the night of the incident and what she told them, the court stopped the questioning and excused the jury. The court explained to Wife that she had a right not to incriminate herself and that doing so would open her up to prosecution. The State asserted several times, “We won’t charge her.” The State also served Wife with a written notice of use immunity for purposes of the trial.[2] And the court provided her with the opportunity to speak with an attorney. Subsequently, Wife was appointed counsel.

¶13 Following a recess, the State asked that Wife be declared a hostile witness, allowing it to ask her leading questions, which the court granted. After speaking with his client, Wife’s counsel advised the court that Wife would be exercising her Fifth Amendment right moving forward. The State argued that the immunity it had offered Wife would protect her and that it was not the State’s intent “to ask the Court to hold [Wife] in this case in contempt” for refusing to testify. Wife’s counsel argued that the notice of use immunity was inadequate to protect her because it expressly did not grant immunity against a future perjury prosecution. The State again asked the court to treat Wife as a hostile witness. Arce’s counsel objected, arguing that the State knew weeks in advance that Wife might invoke her Fifth Amendment right. The State argued that knowing what Wife would do for weeks in advance was “a little bit of a stretch” and that its grant of use immunity was sufficient.

¶14        During further argument over whether to allow the State to treat Wife as a hostile witness, the State again said it would not seek to have the court hold her in contempt. The court ultimately granted the State’s request and received affirmation again from the State that it would not ask the court to hold Wife in contempt if she refused to testify.

¶15        The next day, the State retracted its written immunity offer and explained that it planned to ask Wife questions to which she could “choose to invoke the Fifth or to respond.” Wife’s counsel objected, arguing, “[T]he State’s going to try to . . . present their case by asking those questions and hearing the Fifth . . . . [T]hat’s just them trying to testify to the jury by the questions they’re asking.” The court disagreed, explaining that anything the State said was not evidence and that Wife could not make a “blanket” invocation of her Fifth Amendment right.

¶16 When Wife took the stand again, she invoked the Fifth Amendment 47 times in response to the State’s questions.[3] The State’s questions included asking Wife about the same things she had addressed the day before, prior to invoking her constitutional right to silence. Arce’s counsel did not object to or seek to limit the State’s leading questions or Wife’s invocations; neither did he request a mistrial.

Other Testimony at Trial

¶17 During the trial, the State called Neighbor, Neighbor’s Husband, Deputy, and Detective to the stand; each recounted the events and gave consistent testimony of the statements Wife made to them concerning the events during the evening in question— including the physical abuse she allegedly experienced at the hands of Arce.

¶18 During Deputy’s examination, the State asked, “And so ultimately what did your investigation lead you to believe happened that night?” Defense counsel made no objection. Deputy responded, “Based off all my observations and interview, I believe that the victim had been struck and choked and that there was a domestic violence assault that occurred.” The State then asked, “And I just want to emphasize, why is it that you believed that this truly happened?” Defense counsel again made no objection. Deputy answered,

I believe it truly happened given a number of things. Mainly, when I spoke to [Wife], she appeared to be honest and genuine in the emotion that she was describing things with was clearly emotional distress, upset that I’ve seen. And not every case is the same. I’ve seen other people who have been victims of assault act similar, so that’s why I believed it. She appeared to be honest and genuine.

¶19 During Detective’s testimony, the State moved to admit into evidence Wife’s written statement that was given under penalty of perjury, which the court allowed.

¶20 The State also called two expert witnesses. A clinical psychologist testified about patterns of domestic violence and that individuals experiencing abuse frequently stay in the relationship and/or recant their previous stories. And a pediatric nurse practitioner testified about strangulation, including that in over 50% of strangulation cases there are no visible injuries.

¶21 Throughout the trial, the State, Deputy, and Detective referred to Wife as “the victim” 29 times. And the State and its witnesses—primarily the clinical psychologist—used the term “victim” or “victims” generally an additional 45 times. The State also referred to Wife as the “alleged victim,” primarily during jury selection but also sporadically throughout the trial.

Closing Arguments and Verdict

¶22        In closing arguments, the State argued that the jury should believe Wife’s original statements to her neighbors and police as those were made instinctually to keep her family safe from a threat rather than out of “selfish[ness] or insincer[ity].” The defense argued that Wife had every reason to hate Arce but she wanted to set the record straight about her lies concerning the events of that night and that the State’s case fell apart without her lies.

¶23        During deliberation, the jury asked for access to the State’s “questions on day 2 to [Wife] when she pled the fifth.” The court did not grant the request.

¶24        The jury convicted Arce on all charges. Arce now appeals.

ISSUES AND STANDARDS OF REVIEW

¶25 Arce raises three issues on appeal. First, Arce argues that the trial court incorrectly allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury. We give trial courts “broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb [a trial court’s] ruling only for abuse of discretion.” State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 624 (cleaned up). But the trial court must correctly interpret and apply the law. Id. ¶ 30. We review “the legal questions underlying the admissibility of evidence” for correctness. Dierl v. Birkin, 2023 UT App 6, ¶ 15, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023).

¶26 Second, Arce argues that he received constitutionally ineffective assistance of counsel when his counsel (1) did not seek to limit or remediate the continued questioning of Wife by objecting, moving to strike both the questions and invocations, or asking for a curative instruction; (2) failed to object to Deputy improperly opining on and vouching for the credibility of Wife’s report the night of the incident; and (3) failed to object to the State and witnesses referring to Wife as “the victim” 29 times during the trial. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

¶27 Finally, Arce argues that under the cumulative error doctrine, the evidentiary error and ineffective assistance of counsel Arce received should undermine our confidence in the outcome of the trial. “We will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Lopez, 2019 UT App 11, ¶ 22, 438 P.3d 950 (cleaned up).

ANALYSIS

  1. Evidentiary Ruling

¶28 Arce argues that the trial court improperly overruled Wife’s counsel’s objection to the State questioning Wife despite knowing that she would invoke her Fifth Amendment right. Here, the trial court did not expressly say why it allowed the State, knowing Wife would invoke her constitutional privilege, to continually examine Wife. After Wife met with counsel and determined that she would invoke her Fifth Amendment right moving forward, the State asked the court to declare Wife a hostile witness and allow the State to continue examining her with leading questions. Wife’s counsel objected to declaring her hostile, arguing that the State already knew she would invoke her right for each question, which would allow the State, in Wife’s counsel’s words, to “present their case by asking those questions and hearing the Fifth” and to offer testimony “to the jury by the questions they’re asking.” The court responded that “anything [the State] says isn’t evidence, so it doesn’t matter.” And Wife’s counsel responded that the court should not allow it precisely because the State’s questions would not be evidence. The court disagreed and determined that the State could ask questions and that Wife could invoke her right to every question if she wanted to but she had to testify “if it [had] nothing to do [with a topic] that would incriminate her.” The court further determined that Wife’s invocation of her Fifth Amendment right could not be invoked in a blanket fashion and that she would have to invoke it for each question, as there may be some she could answer.

¶29 The State argues that regardless of the court’s reasoning, the court did not err because Wife waived her privilege by testifying earlier and recanting her story.[4] We note that the State did not make this argument during trial. Alternatively, the State argues that Wife never had the privilege to begin with because the State provided her with immunity.[5]

¶30 Notwithstanding each parties’ arguments, our review of the record indicates that Arce did not preserve this issue. It is “well within our prerogative to raise a preservation issue on our own initiative when it provides an alternative basis for affirmance, even if the State failed to brief the preservation argument.” State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983), our supreme court confronted “[w]hether an objection by one party properly preserves an objection on appeal as to another party.” Id. at 1164. The supreme court followed what “[v]irtually every other jurisdiction that has considered the question has concluded,” which is that “an objection . . . by one or more parties at trial does not inure to the benefit of other parties who do not join in the objection.” Id. at 1164–65. In State v. Calliham, 2002 UT 86, 55 P.3d 573, two brothers charged with murder were tried together. Id. ¶¶ 1–3. Following their convictions, one brother (Brother 1) appealed. Id. ¶¶ 18–19. As part of his appeal, Brother 1 argued that the trial court’s decision to admit specific evidence was an error that violated his constitutional rights. Id. ¶ 32. However, our supreme court held that this issue was not preserved for appeal, as it was the other brother (Brother 2) who had objected—an objection which Brother 1 did not join at trial. Id. ¶ 33. “[Brother 1] did not join in [Brother 2’s] objections on the record or make any objection of his own,” thus preventing him from claiming on appeal that it prejudiced him or undermined his constitutional rights. Id.

¶31 Similarly, in the case before us, Arce was not the one who objected to Wife taking the stand, knowing she would invoke her Fifth Amendment right for every question—it was Wife’s counsel who made the objection. Arce did not join that objection.[6]

Therefore, as in Calliham, Arce has not preserved the right to now claim on appeal that the court erred in its decision to allow Wife to testify, which in turn allowed the jury to hear her invocations 47 times.[7]

¶32        And the issue needed to be “preserved in order to give the trial court an opportunity to address the claimed error, and if appropriate, correct it.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (cleaned up). Here, the trial court had no such opportunity. It is readily evident from our review of the record that the trial court was not focused on the impact these Fifth Amendment issues would have on Arce. Instead, the trial court ruled on this issue through the lens of its impact on Wife. Had Arce objected, the trial court may have fully engaged in an analysis of whether Wife’s Fifth Amendment right was waived or abandoned as the State suggests. But Arce made no such objection, and therefore the court engaged in no such analysis.

¶33        “As a general rule, claims not raised before the trial court may not be raised on appeal,” and it is “well-established” that this “preservation requirement applies to every claim, including constitutional questions.” Conner v. Department of Com., 2019 UT App 91, ¶ 48, 443 P.3d 1250 (cleaned up). Despite Arce’s arguments that he preserved this issue, the record does not support his assertions, as “a party must raise [the issue] before the [trial] court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it.” Id. (cleaned up). As discussed, the record does not reflect an objection from Arce on the issue but instead from Wife, which did not allow the court to review the issue as it pertains to Arce. Therefore, the issue is not properly preserved, and we do not consider the merits of his claim.

  1. Ineffective Assistance of Counsel

¶34        “To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong Strickland test: (1) counsel’s performance was objectively deficient and (2) the deficient performance resulted in prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466 US 668, 687–88 (1984)), cert. denied, 462 P.3d 803 (Utah 2020). “[D]eficient performance is not determined in a vacuum; rather, it involves asking whether the strategy [counsel] employed was that of a reasonable, competent lawyer in the real-time context” of a trial. State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142, cert. denied, 485 P.3d 944 (Utah 2021). “However, even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. And a defendant establishes prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d 1205 (cleaned up). “That is, the defendant’s showing must undermine our confidence in the outcome.” Id. (cleaned up). The impact of such alleged errors must “be a demonstrable reality.” Id. (cleaned up).

¶35        “Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” Fleming, 2019 UT App 181, ¶ 9 (cleaned up). “And if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.” Gonzalez, 2021 UT App 135, ¶ 7 (cleaned up). Given the likelihood that similar events to those of this case can and will arise before the trial courts of this state, we address counsel’s alleged deficient performance, although we ultimately determine that Arce’s claims fail for lack of prejudice.

  1. Deficient Performance
  2. Invoking the Fifth Amendment

¶36 In addition to Arce’s arguments already discussed above regarding Wife’s invocation of her Fifth Amendment right, Arce argues that his counsel acted deficiently by not seeking to limit or remediate the State’s continued leading questions and Wife’s invocations by objecting, moving to strike both the questions and invocations, or asking for a curative instruction. Based on the reasoning in Mitchell v. United States, 526 U.S. 314 (1999), and In re Flint Water Cases, 53 F.4th 176 (6th Cir. 2022), competent counsel could reasonably choose not to take any of these actions, as Wife had waived her Fifth Amendment privilege by having voluntarily testified about the matter in question. A “witness . . . may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321. “When the witness testifies, the privilege is waived for the matters to which the witness testifies.” In re Flint Water Cases, 53 F.4th at 193 (cleaned up). Thus, Arce’s counsel, and correspondingly the trial court, could have concluded that Wife did not have the right to invoke the privilege. Therefore, we determine that Arce fails to show deficient performance.[8]

¶37 Arce claims his counsel should have objected and pointed the court to rule 403 (excluding evidence which is substantially more prejudicial than probative), rule 510(c) (disallowing comment by a judge or counsel about, or a factfinder making an inference from, the invocation of a privilege), or rule 611(a) (allowing a court to control the examination of witnesses so as to avoid wasting time or the harassment or embarrassment of a witness) of the Utah Rules of Evidence. Arce makes no effort, however, to provide us with the context of Wife’s 47 invocations or the depth of her earlier testimony.[9] While Arce discusses Wife’s trial testimony prior to the court’s interruption to allow her to consult her counsel, he provides the court no comparison of that testimony with the subject matter of the questions asked on cross-examination when she began invoking the Fifth Amendment. As a result, the briefing leaves us with no understanding about whether all 47 invocations were directly addressing matters about which Wife had already testified—particularly her recantation. Assuming the questions were simply cross-examination of statements made earlier in trial, Arce’s counsel would have no basis for an objection because the privilege would be waived. Furthermore, without an understanding of the depth of Wife’s earlier testimony, we cannot gauge whether 47 invocations corresponded in an impermissible or potentially prejudicial way to Wife’s prior trial testimony. Within the confines of the briefing provided to us, we cannot fault Arce’s counsel for failing to object or make other efforts to limit the testimony.

¶38        Given that there is an obvious basis to believe that Wife no longer possessed a Fifth Amendment privilege and where the briefing does not delineate any context for the questions for which the privilege was invoked, Arce has not overcome the presumption that his counsel acted reasonably, and we cannot conclude that Arce’s counsel was objectively deficient in his representation. State v. Hart, 2020 UT App 25, ¶ 20, 460 P.3d 604 (stating that to prove deficient performance a defendant must overcome a “strong presumption that his trial counsel rendered adequate assistance” (cleaned up)), cert. denied, 462 P.3d 805 (Utah 2020). We acknowledge that there certainly could be circumstances where compelling a witness to invoke a privilege 47 times would be troubling, but we can reach no conclusion about counsel’s failure to object to these questions here.

  1. Witness Opining and Vouching

¶39        Arce further argues that his counsel performed deficiently by failing to object to Deputy opining on and vouching for the credibility of Wife’s statement the night of the incident. Rule 608(a) of the Utah Rules of Evidence “permits testimony concerning a witness’s general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984 (cleaned up); see also State v. Adams, 2000 UT 42, ¶ 19, 5 P.3d 642 (detective testifying “he did not believe [the victim] was coached” was inadmissible vouching); State v. Jones, 2020 UT App 161, ¶ 14, 478 P.3d 1055 (per curiam) (“[A]dmission of testimony that bolsters the credibility of another witness’s testimony on a particular occasion is improper.”); id. ¶ 18 (officer testifying regarding interview techniques for domestic violence victims did not violate rule 608 because he did not opine on the victim’s truthfulness on a particular occasion); State v. Lewis, 2020 UT App 132, ¶ 26, 475 P.3d 956 (police sergeant describing variations he sees in victims’ statements when multiple accounts are given was not bolstering, as “he did not directly opine on [the victim’s] credibility”); State v. Cegars, 2019 UT App 54, ¶¶ 23–24, 440 P.3d 924 (school counselor testifying that she did not believe the victim would fabricate allegations was inadmissible bolstering); State v. Vail, 2002 UT App 176, ¶¶ 15, 17, 51 P.3d 1285 (detective testifying that two victims of child sexual abuse “exhibited the indicators that she equated with trustworthiness” was inadmissible bolstering); State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App. 1995) (social worker testifying that a victim of abuse “seemed to be quite candid” in an interview was inadmissible vouching (cleaned up)). For example, an officer cannot comment on whether a witness appeared “to be genuine” during an interview, as it is a direct comment on the witness’s truthfulness and clearly violates rule 608. State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (cleaned up). We emphasize again today that the State’s use of a law enforcement officer’s testimony for bolstering and vouching in this manner is inappropriate. We perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

¶40 But even so, Arce can prevail only if he establishes both deficient performance and prejudice. And for the reasons set forth in Part II.B, we conclude that he was not prejudiced by this deficient performance.

  1. Referring to Wife as “the Victim”

¶41        Finally, Arce argues that his counsel performed deficiently by failing to object to the State and witnesses referring to Wife as “the victim” 29 times in front of the jury. Our supreme court “recognize[s] the gravity of referring to witnesses as victims during a trial.” State v. Vallejo, 2019 UT 38, ¶ 102, 449 P.3d 39. In cases, such as the one before us, “where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony—the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. Though in this case we do not exclusively rely on such testimony because there was a “sort of reddish mark” on Wife’s collarbone and Arce told Deputy there was “some pushing and shoving,” we still restate today that the action of referring to the complaining witness as “the victim” by anyone in front of the jury is inappropriate. Again, we perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

  1. Prejudice

¶42        Ultimately, Arce has not shown that any of these alleged errors prejudiced him. There is not a reasonable probability that but for Arce’s counsel failing to object further to the State’s questioning of Wife, moving to strike, or asking for a curative instruction, the result of Arce’s trial would be different. As mentioned, the jury heard testimony from four witnesses, each of whom told the same story, namely, that Wife said Arce hit and choked her that night. The testimony of these four witnesses matched Wife’s own words in the statement she gave to Detective. Furthermore, the reason Wife provided to Deputy for dismissing the charges was not that she had lied but that she needed Arce to keep his job as well as his help with their children. As we point out above, even Arce in his statement to Deputy admitted there was “some pushing and shoving,” which is inconsistent with Wife’s recantation. And Arce did not explicitly deny that he hit, kicked, or choked Wife, instead stating only that he could not recall doing so. Most reasonable jurors would think that physical assault is something that one would remember having committed. Furthermore, and perhaps most convincingly, Wife’s own statement to Detective was entered into evidence for the jury to read. In short, finding that none of these alleged errors undermines our confidence in the outcome of this case, each of Arce’s claims of ineffective assistance of counsel fails for lack of prejudice. Moreover, because none of these alleged errors were sufficiently prejudicial alone, we, for the same reason, conclude that the errors do not cumulatively undermine our confidence in the outcome of the trial.[10]

CONCLUSION

¶43 Arce’s claim that the court erred by allowing the State to repeatedly compel Wife to invoke her Fifth Amendment privilege in front of the jury fails because the issue was not preserved. Furthermore, Arce’s claims of ineffective assistance of counsel fail because his counsel’s failure to object to Wife’s invocations, Deputy’s vouching for Wife’s credibility, and repeated references to Wife as “the victim” do not present a reasonable probability that but for Arce’s counsel’s failure the result of the proceeding would have been different. We therefore affirm Arce’s convictions.

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[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] A “grant of use immunity [prohibits] any prosecutorial use of [a witness’s] testimony or evidence gained from it” against the witness. State v. Morris, 2017 UT App 112, ¶ 17, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017).

[3] The State argues that she invoked the Fifth Amendment 45 times, but the discrepancy of two invocations is not dispositive in this case, so we will use Arce’s number moving forward.

[4] Though we make our decision on preservation grounds, it appears the State is correct that a witness cannot testify about a subject and later invoke a Fifth Amendment privilege in order to avoid cross-examination on that same topic. See Mitchell v. United States, 526 U.S. 314, 321 (1999); In re Flint Water Cases, 53 F.4th 176, 193 (6th Cir. 2022). This issue is addressed further below. See infra ¶ 36.

[5] The State argues that a valid claim of privilege “turns in part on the likelihood of future prosecution.” A witness may not “employ the privilege to avoid giving testimony that he simply would prefer not to give,” Roberts v. United States, 445 U.S. 552, 560 n.7 (1980); instead, the witness must face real—not remote or speculative—dangers, Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972). Therefore, a grant of immunity nullifies the witness’s privilege as it forecloses the possibility of subsequent prosecution. State v. Morris, 2017 UT App 112, ¶ 18, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017). Here, the State argues that while it did withdraw the written immunity offer, the offer was “irrelevant” as the State put on the record several times that it would not seek to have the court hold Wife in contempt for refusing to testify. We do not agree and fail to understand how a promise not to seek to have a trial court hold Wife in contempt is sufficient to rise to the level of granting her “effective blanket immunity,” as the State argues. Wife still faced the very real danger of prosecution for perjury, for which the State offered her no protection. Thus, the State did not provide Wife with immunity—either written or through promises not to charge her with contempt—and Wife’s Fifth Amendment privilege remained intact. However, the State is likely correct that the right had been waived for subjects about which she freely had already testified. And, as discussed, this issue was not preserved, so there is no need for further consideration of whether allowing the State to continue questioning Wife was an error and, if so, whether there was a reasonable likelihood of a more favorable outcome for Arce absent the questioning.

[6] Arce acknowledges that it was Wife’s counsel rather than his own who made the objection to Wife taking the stand knowing she would invoke her Fifth Amendment right. Despite this, Arce argues that the issue is preserved by primarily relying on Kell v. State, 2012 UT 25, 285 P.3d 1133. But Kell is distinguishable from the present case. In Kell, the question was whether an issue was preserved when the State opposed a criminal defendant’s rule 60(b) motion and the criminal defendant did not respond to the State’s arguments yet later sought to appeal the decision. Id. ¶¶ 9– 10. The State and a criminal defendant are not in an analogous adversarial position to the criminal defendant and nonparty witness, Wife, present here. Kell is simply inapposite.

[7] Arce does not claim the application of any exception to preservation.

[8] Arce points to State v. Bond, 2015 UT 88, 361 P.2d 104, for us to consider. But Bond is not particularly helpful here. The witness in Bond did not attempt to invoke his Fifth Amendment privilege to avoid answering a question regarding a subject about which he had testified previously. Id. ¶ 10Also, the analysis in Bond must be viewed in context. In Bond, the Utah Supreme Court was reviewing the denial of a motion for a mistrial—a trial court decision reviewed under an abuse of discretion standard—and an allegation of prosecutorial misconduct. Id. ¶¶ 13, 22. Thus, unlike the case before us, Bond does not address these issues as evidentiary rulings.

[9] We acknowledge that Arce has appended a transcript containing the invocations to his brief. But beyond the appendix, Arce’s brief makes no attempt to address the context of the invocations—referring to them only as a whole rather than providing any information as to the subject matter of the questioning that provoked them. Arce does not attempt to explain, for example, if one, two, or three questions might be permissible. Neither does he explain at which point the line would have been crossed to render his counsel’s inaction objectively unreasonable.

[10] “The cumulative-error doctrine requires us to reverse if (1) we determine, or assume without deciding, that two or more errors occurred and (2) we determine that the cumulative effect of those errors undermines our confidence that a fair trial was had.” ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 30, 397 P.3d 772.

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Mother Made False Accusations Against a Father to Win Custody and Had a Restraining Order Put in Place With No Evidence to Back Her Reason, Can This Be Overturned?

Can it be overturned? It is possible.

Will it be overturned? The odds don’t favor Dad. While some fathers who are falsely accused do obtain vindication, the odds are against them. Why?

There is an undeniable bias in favor of mothers who claim to be victims of abuse or who claim that their husbands/children’s father is abusive. Courts err on the side of caution, take a “better safe than sorry” approach. There are many reasons for this, including but not necessarily limited to: beliefs that women don’t lie about abuse, belief that children are generally better off in the sole or primary custody of their mothers, and cynically calculating that it’s better for the judge’s career to issue protective orders against men who are either innocent or there is a question of their innocence than it is to “take the chance” on innocent until proven guilty. When court’s engage in such behavior, it’s lazy, it’s cowardly, it’s judicial malfeasance.

How can/does a falsely accused parent (father or mother, for that matter) clear his/her good name? Short of the kinds of things one cannot control (i.e., suddenly getting a new, sympathetic judge because the old judge retired or got sick, etc.), the most effective way is: presenting the court with evidence so overwhelming that the court cannot deny it, cannot disregard it without looking biased and/or incompetent. Easier said than done, and not always possible, but it’s really the only moral option.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Mother-made-false-accusations-against-a-father-to-win-custody-and-had-a-restraining-order-put-in-place-with-no-evidence-to-back-her-reason-can-this-be-overturned/answer/Eric-Johnson-311

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In re H.H. – 2024 UT App 25 – termination of parental rights

In re H.H. – 2024 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF H.H. AND N.H.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

T.H. AND D.H., Appellants, v.  STATE OF UTAH,  Appellee.

Opinion

Nos. 20220803-CA and

20220820-CA

Filed February 29, 2024

Second District Juvenile Court, Farmington Department

The Honorable Jeffrey J. Noland

Nos. 1163279 and 1163280

Scott L. Wiggins, Attorney for Appellant T.H.

Emily Adams, Sara Pfrommer,

Hannah Leavitt-Howell, Marjorie Christensen, and

Melissa Jo Townsend, Attorneys for Appellant D.H.

Sean D. Reyes, Carol L.C. Verdoia, and

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After a lengthy bench trial, the juvenile court found grounds to terminate the parental rights of D.H. (Father) and T.H. (Mother) (collectively, Parents) regarding their two youngest children, H.H. (Hannah) and N.H. (Noah).[1] The court found that Father was an unfit parent because he had subjected four of his children, including Hannah and Noah, to “serious emotional abuse,” inflicted through a strict and intimidating parenting style, that “resulted in two of the children considering suicide as an option to end the maltreatment.” As to Mother, the court found that her continued support of Father rendered her incapable of “exercising proper parental care.”

¶2        In its initial post-trial ruling, the court determined that it was in Hannah’s and Noah’s best interest for Father’s parental rights to be terminated, but that it was not in their best interest for Mother’s rights to be terminated. Instead, the court imposed a permanent guardianship arrangement in favor of an adult sibling (Oldest Sister). Later, however, after the guardian ad litem (the GAL) filed a motion for reconsideration, the court amended its initial ruling and ordered Mother’s rights terminated as well.

¶3        In separate appeals that we consider together in this opinion, Parents challenge the termination of their parental rights on several grounds, asserting chiefly that the “juvenile court process” that led to termination violated their constitutional rights and that the court erred in concluding that termination of their parental rights was strictly necessary. For the reasons that follow, we reject all of Parents’ arguments and affirm the court’s termination order.

BACKGROUND[2]

The Family Situation and the Initial Removal

¶4        Parents are the natural parents of six children: four daughters and two sons. By the time this case was initiated in 2018, the two oldest children (Oldest Sister and Older Brother) had reached adulthood and were living on their own. Some years earlier, when she turned eighteen but while she was still in high school, Oldest Sister moved out of Parents’ home because, in her view, Parents had created “a very horrible living situation” that left her “scared to go home.” In 2013, when Older Brother was seventeen and a junior in high school, he also elected, for apparently similar reasons, to move out of the family home; at that point, he moved in with Oldest Sister—who is some nine years older than Older Brother—and her husband (Brother-in-Law). The four younger children—Chloe, Felicity,[3] Hannah, and Noah—all still lived with Parents.

¶5        In May 2018, Utah’s Division of Child and Family Services (DCFS) received a report that Chloe—who was fifteen at the time—had confided to a teacher that her home life was so unbearable that she was considering suicide, on a “constant basis,” as a means of escape. As Chloe described it, Parents were constantly screaming and fighting and taking their anger out on the children. Physical violence, both real and threatened, and verbal abuse were tools that Parents—especially Father— frequently used against the children. Father also forced the children to do seemingly endless chores, and he required them to pay him for basic amenities like fresh food (as opposed to “expired” food storage), computer usage, and rides to school. Chloe told a DCFS caseworker that she was suicidal because “she couldn’t handle being home alone with [Father] all summer.”

¶6        Spurred by the report it received about Chloe’s suicidal ideations, DCFS conducted an investigation during the summer of 2018. Among other things, it administered a “suicide severity” test to Chloe and concluded that Chloe scored “very high.” When DCFS reported this score to Parents, they “both scoffed” and responded that Chloe was a “drama queen” who was “just trying to get attention.” At the end of the investigation, DCFS made a supported finding of “emotional maltreatment” against Parents and offered them “voluntary services” to assist them in improving the situation. DCFS also spoke with Oldest Sister, who was familiar with the family dynamics and the living situation at Parents’ home. Oldest Sister committed to keeping an eye on her siblings and promised to notify DCFS “if the situation escalated.”

¶7        DCFS then notified Parents, by letter, of its “emotional maltreatment” finding. When Parents received this letter, they became “enraged” and responded by “blam[ing] the children” and acting “very vindictive” toward them. In particular, Parents warned the children that, “if they were to speak with authority figures,” including “church leaders” or anyone at DCFS, about events occurring in the home, they would be “severely punished.”

¶8        Notwithstanding this warning, in August 2018 the three younger daughters—Chloe, Felicity (then fourteen), and Hannah (then twelve)—sought guidance from one of their church “young women” leaders (YW Leader). The family—including Parents as well as all six of their children—are practicing members of The Church of Jesus Christ of Latter-day Saints, a church that has relatively structured youth programs with local lay leaders

assigned to provide supervision and guidance. Both YW Leader and the president of the family’s local church unit (Branch President) had counseled the girls—without Parents’ knowledge—to “contact one of [them] if things got too bad at home and they needed an escape or someone to talk to.” When the girls sought YW Leader’s advice, she brought them in to meet with Branch President in his office at the local church.

¶9        As the meeting between the girls and Branch President was nearing its end, Father—having gotten wind of the meeting— appeared at the church; Branch President observed that Father was very upset and “quite agitated,” and Father demanded “to know what [the girls] were doing at the church.” Father “backed [the] girls into a corner” of Branch President’s office and “started angrily interrogating them” and “berating them in a loud, almost yelling tone” before then “turn[ing] on” YW Leader when she tried to intervene. The girls began “sobbing and begging him to stop.” Branch President, perceiving that the girls “were terrified,” also asked Father to stop, telling him that his behavior was “inappropriate.” Father then “angrily” “turned on” Branch President, put a “finger in [his] face,” and accused Branch President of “trying to divide his family.” He also “unloaded on” Chloe, “telling her that she was nothing but a drama queen and that if she hadn’t been threatening suicide just to get attention” the family “wouldn’t be in this mess.” His verbal assault was so fierce that Chloe “threw up her arms in front of her face” in an effort to protect herself. YW Leader was “shocked and quite upset” and “couldn’t believe what she was seeing.” Eventually, Father left the building, and after the incident, Branch President decided to take a step he’d never before taken in his years as a religious leader: he wrote a four-page single-spaced letter to DCFS describing the situation generally, and the incident at the church specifically, offering his view that the “terror and anguish the girls are experiencing” are “real” and that the situation requires attention. He requested that DCFS reopen the family’s case and that, “at a minimum,” the girls “be given a chance to be evaluated by professional counselors.”

¶10      Over the next few days, the situation in the family home continued to deteriorate. During this time, Chloe continued to talk about suicide, and she did so even more seriously; Brother-in-Law reported that Chloe was now saying that she had “a plan” for committing suicide. And Brother-in-Law reported that Felicity, for the first time, was also talking about suicide, even going so far as saying “it was the only way to escape this life as she could no longer deal with it.” On at least one occasion during this time frame, Felicity contacted DCFS to provide additional information.

¶11      Also during this time period, Parents often “cornered” the girls at home, separated them into “different rooms,” and “interrogat[ed]” them for “several hours” about whether they were “sharing information with” DCFS and, if so, what they had shared. During these interrogations, Parents would scream and yell, would threaten to send the children “to juvey,” and would tell them that they would be responsible if the “family was destroyed” and that, in that event, the children would end up in “foster care” where they would likely “be beat[en] and raped.”

¶12 On August 29, 2018, the day after an especially long evening interrogation, Felicity and Hannah went to school— which had just begun for the year—but were so distraught when classes ended that they were afraid to return home, so they contacted Brother-in-Law and asked him to pick them up. When Brother-in-Law arrived at the school, he found the girls “cowering” in the front office and “shaking uncontrollably,” behavior Brother-in-Law considered uncharacteristic; they also would not “let go of each other’s hands.” Brother-in-Law later reported that Felicity was “panicked out of her mind to have to return home to the situation” there. Brother-in-Law took the girls to his house, and he contacted DCFS; he told the caseworker that he “didn’t feel comfortable letting them go home because” he was concerned they might “hurt themselves.”

¶13 The DCFS caseworker assigned to the case traveled to Oldest Sister’s house and spoke with the girls, and she determined that “the family situation had risen to a dangerous level.” At that point, DCFS “sought and received a warrant for the removal” of all four minor children “from the custody and guardianship” of Parents. Later that evening, Parents arrived at Oldest Sister’s house and were served with the removal warrant. DCFS officials, accompanied by law enforcement, informed Parents that the children had been removed from their home. The children were eventually officially placed with Oldest Sister and Brother-in-Law; Hannah and Noah have remained in that placement ever since, and Chloe and Felicity remained in that placement until they reached adulthood.

The State’s Petition and the Shelter Hearing

¶14      The next day, the State filed a petition asking the court to award custody and guardianship of the children to DCFS. In its petition, the State discussed the situation in the home and asserted that both Chloe and Felicity had been having “suicidal thoughts and ideations” as a result. The petition included allegations of the constant chores Father required the children to perform, as well as Father’s requirement that the children pay him for basic necessities. It also included detailed allegations of verbal abuse by Parents, asserting that they were “swearing and spitting” in the children’s faces, calling them “little shits” and “worthless,” and telling the girls in particular that they were “ugly” and that Parents “wishe[d]” they hadn’t been born. The State alleged that Father used physical force as part of his dominion over the children, often “push[ing]” them and “pull[ing] the back of their hair.” Mother would sometimes “threaten[] to kill herself” and then disappear, causing the children distress and creating “panic”as they wondered whether Mother might have followed through with her threats. The State requested that the children be placed “in the custody and guardianship” of DCFS and that any visitation between Parents and the children be at the direction of DCFS and in consultation with a guardian ad litem.

¶15 At a shelter hearing held a few days later, the court considered evidence by proffer from several witnesses, including Parents, the four minor children, Oldest Sister, Brother-in-Law, the DCFS caseworkers, and Branch President.[4] At the conclusion of the hearing, the court found that the children were “suffering emotional harm” and there was “nothing and no services” that could be “placed into the home to ameliorate the harm.” Accordingly, the court concluded that the children could “not be safely returned” to Parents and awarded temporary custody of the children to DCFS, with Parents to have supervised visitation. The court also appointed the GAL to represent the interests of the children, and it later appointed attorneys to represent Mother and Father, separately.

The Failure of Group Therapy

¶16 During the fall of 2018, the court held hearings in the case on nearly a weekly basis, as disputes arose over even rather basic things. For instance, the State wanted all four children to have a mental health assessment, but Parents objected; the court held a hearing and ordered that the evaluations take place and that Parents were not allowed to attend them. The evaluations eventually occurred, and the children began therapy—both individual and group therapy—with a counselor in October 2018. Some of the group therapy was designed to include Parents; indeed, the court ordered that, for Chloe and Felicity, all visitation “shall be therapeutic until further order of the court.”

¶17 At first, the children were reticent to even see Parents, much less participate in group therapy with them. The therapist facilitating the group therapy (Therapist) asked the children— prior to the appointments with Parents—if there were “things that [Therapist] could put into place” that would help them “feel comfortable” with the arrangement, and the children—“together as a collaborative process”—came up with a set of guidelines they thought would help. Among other things, the children asked that there be “no hugs” between them and Parents, “no talking about money,” and “no talking about religion” or “church stuff.” Therapist communicated these child-created guidelines to Parents on October 24, 2018, just prior to the first group therapy session.

¶18      Parents objected to these guidelines, especially the “no talking about religion” rule, and at a hearing held just over a month later, the court removed the “no talking about religion” rule but overruled Parents’ objections to the other rules. During the short time the “no talking about religion” rule was in place, however, Parents—and Father in particular—pointedly refused to abide by it; indeed, Therapist later testified that Father brought up religion in “nearly every visit.”

¶19 For instance, during one session between Father, Felicity, and Chloe, Therapist had to ask Father “seven times” to stop talking about religion. In previous sessions, Therapist had asked Father to focus on “listening” to the girls, because he “spoke so much” during the sessions that the girls typically did not “have the opportunity to share” their feelings. But in this session, and despite Therapist’s attempts to intervene, Father continued his behavior of dominating the discussion and refusing to listen to the girls’ concerns, explaining that “he had the power from God, that he had the power of the priesthood” and they did not, which gave him the right to direct all decisions for the family generally and for the girls specifically. At times physically standing up and towering over the girls, he told them that Brother-in-Law had no right to take decision-making power away from Father and that “God gave [Father] the right” to make decisions for the children as he saw fit. The girls reacted by “hiding” and “cover[ing]” themselves with pillows, and “scoot[ing] closer together” in solidarity. They appeared “very defeated” and “stopped talking”; Therapist observed that they “completely withdrew and shut down and were done having any interaction at that point.”

¶20      As time went on, and recognizing that no progress could be made as long as Father dominated the discussion during therapy, Therapist attempted to make future sessions more “child-focused.” During one session, Chloe and Felicity “started to express” how they often felt bullied by Father, and he responded by stating “that people who get bullied . . . are victims because they allow themselves to be.” He told the girls that it was “their fault” that they were being bullied and that he had done “nothing” wrong. In an effort to get through to Father, Therapist then attempted a “role reversal” technique whereby Felicity would portray Father and Father would portray Felicity; the purpose of this exercise was to give Father an “understanding of how his children felt when he lectured them.” Once Felicity (pretending to be Father) began her lecture, Father “started fighting back instantly.” Therapist informed Father that he was not “doing the role reversal the right way” because, as Father had already explained, “he expects complete compliance” from the children when he lectures. To fully engage with the role-reversal exercise, Therapist instructed Father “to sit there” and “listen” just as he expected his children to do for him. This instruction angered Father, who turned on Therapist, declaring that she should not be “allowing his children to bully him” and that she was “undermin[ing] his parenting skills.” He also accused Therapist of “taking away his religious rights” by engaging in this role reversal, offering his view that Therapist was attempting to indoctrinate the children with her “secular views.”

¶21      In another session, Therapist instructed the children to write down the details of some of the different traumas they had experienced. The plan was to then have each child share their thoughts and have Father “meet the child[ren] emotionally” and “validate” their feelings, and then have an opportunity to explain the intention behind his actions. As the children began to explain what they had written, Father interrupted and began to argue and “discredit” what the children were saying. Father, who was now on his feet, tried to take control of the session, reaching out to grab the papers from the children so he could read them and address them in the manner he saw fit. At this point, Felicity asked “for a two-minute break,” which Therapist agreed would be a good idea. Watching the children defer to Therapist for permission to leave the room further agitated Father. He began telling Therapist that he was the one “who gets to decide what his children do” and that Therapist does not “get to undermine him and his parental authority.” Therapist tried to explain that it was okay to take a brief break, given that things were “getting rough,” and she stated that if Felicity needed a break, she should be allowed to have one. Father disagreed, situating himself in the doorway and blocking the exit. Therapist tried to maneuver Felicity around Father while gathering the children’s papers, at which point Father began “lunging” at Therapist and trying to snatch the papers out of her hands. Therapist was forced to hold the papers behind her back, telling Father the documents belonged to the children and he was not permitted to take them. Father started yelling that these were “his kids” and he was therefore “entitled” to see whatever they wrote on the papers. He then turned his anger on the children, telling them “it was time for them to be punished and that they need[ed] to have their consequence.” At this point, Therapist determined that the session was over, and she began escorting the children to the reception area. Father was following close behind, continuing his tirade and informing Therapist “what [he was] going to do to [Therapist], what [he was] going to do to the caseworkers, [and] what he’s going to do to the kids.”[5]

¶22 After that point, the therapists who had been working with the family came to the collective conclusion that group therapy sessions were doing more harm than good. For one thing, the sessions were “unproductive”; Father had “made it very clear, from the beginning, that he didn’t think [therapy] was necessary” and that he did not need to be there because “nothing needed to change” and he “wasn’t going to make changes.” In addition, and perhaps more significantly, the therapists “no longer felt that it was safe to continue having family therapy sessions that included [Father].” In particular, Therapist wrote in a report that, “[t]herapeutically speaking,” it would “be detrimental to the children to continue family therapy” because it would only further “damag[e] their relationship[s].” She believed, however, that it was critical that individual therapy still continue.

¶23 Given the tenor of the group therapy sessions, the GAL filed a motion to suspend all visitation—even in a therapeutic setting—between Father and the children. Father objected to this request, and he took the opportunity to advance his own view of the group therapy sessions. In a filing he made with the court, Father opined that the children were “being coached and groomed in an attempt to avoid reunification with” Parents. Father believed he—as religious leader of the family—had a right to review all recordings of the children’s individual therapy sessions, and he took issue with Therapist’s refusal to provide him any such recordings. Father concluded his filing with a request that a new therapist be appointed, one that would not engage in the “foisting of secular values” upon his family.[6] At a hearing in January 2019, the court ordered that therapeutic visitation with Chloe and Felicity be “discontinued until the issues are adjudicated.” But the court also indicated that the children “may visit” with Parents “if approved” by the DCFS caseworker and the GAL and “with input from the children’s therapists.” The court did not order that any change of therapists take place.

Mother’s Adjudication

¶24 Mother did not contest the allegations in the State’s petition, admitting to some of them and, with regard to the rest, electing to proceed pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure.[7] Based on the uncontested allegations in the petition, the juvenile court found that all four children were neglected as to Mother. The court determined that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for [the] health, safety, morals or well being of the children.” The court determined that Noah was neglected because he was “at risk of being neglected or abused because another child in the same home [was] neglected or abused.”

¶25      At a dispositional hearing that took place a few weeks later, the juvenile court set reunification as the primary permanency goal, and it ordered that Mother receive reunification services and comply with a child and family plan (Mother’s Plan). In particular, the court ordered Mother to “complete a domestic violence assessment,” complete an “in home peer parenting” program, undergo a “neuro-psychological evaluation,” and “complete individual therapy.”

Father’s Adjudication

¶26      Father, on the other hand, elected to contest the allegations in the State’s petition, and the matter proceeded toward an adjudication trial, which was held over five trial days in March and April 2019. During the first day of trial, Father was represented by counsel, but he then requested that the court “replace his second appointed attorney”—Father had already switched appointed counsel once—which request the court denied. Father then elected to represent himself for the remainder of the trial, although the court determined that Father’s second appointed attorney should “continue as standby counsel.” During the trial, the court heard testimony from the four minor children, Branch President, several DCFS caseworkers, Oldest Sister, Brother-in-Law, and Father.

¶27 Following the trial, the court took the matter under advisement, and it issued a written decision in June 2019. In its conclusion, the court determined that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment has emotionally damaged the children.” The court’s findings, made in support of this determination, are remarkable and are worth describing in some detail.

¶28      The court found, by clear and convincing evidence, that the allegations contained in the State’s petition were generally correct. It found that, in May 2018, Chloe wrote an “alarming letter” to her teacher describing “her home environment” and expressing “her desire to kill herself on a constant basis.” The home environment in question was one dominated and directed by Father, who—in an ostensible attempt to “promot[e] the necessity and value of work and chores”—was “unhealthily” using these principles “to control and subjugate the children.” He assigned “continuous chores” to the children and demanded that each task be performed timely—often using the mantra “housework before homework”—and perfectly, assigning additional chores and requiring the children to stay home from school if chores were not performed to his satisfaction. And he required the children to pay him for even basic household privileges, like eating “fresh food” (as opposed to “expired food stores”), using the computer, and getting rides to school.

¶29      The court found that Father often used physical force—or the threat of it—to control Mother and the children. On one occasion, Father roughly “grabbed the car keys” from Mother’s hand, “which resulted in a cut on [Mother’s] hand.” On another occasion, Father “threw the family dog out the back door because the children would not kneel down for family prayer.” Once when Noah apparently did not kneel down fast enough for family prayer, Father threw “a headlamp” at him. Other times, Father “grabbed” the children “by the wrists to make them do something.” Father once “brought [Noah] to his feet by . . . grabbing the back of his hair,” and another time he “slapped [Hannah] on the mouth.”

¶30 The court found that Chloe was not the only one of the children experiencing suicidal ideations: it found that, “as a result of the continuing emotional trauma, [Felicity] felt trapped and became suicidal; she thought about dying as a way to escape the home.” Parents were not receptive or attentive to Chloe and Felicity in this regard; although Mother did take Chloe to one appointment for a mental health assessment, there was no follow-up or any actual treatment rendered and her “suicidal thoughts were not properly addressed.” Indeed, the children were told not to speak to anyone—including church leaders and DCFS officials—about the conditions in the home, and they were threatened with punishment if they did. Felicity was even told, by one of the Parents, that “if [Chloe] were to commit suicide, it would be her fault.”

¶31 The court also found credible Branch President’s account of his meeting with the girls in August 2018, and found that the meeting occurred as set forth in Branch President’s letter to DCFS (as described above). And it found that DCFS had acted appropriately by seeking a warrant for removal in August 2018.

¶32 The court then examined the statutory definition of “emotional abuse,” as well as Utah case law interpreting that definition. The court specifically noted that a finding of “abuse” requires a finding of “harm,” which—as applied to emotional abuse—requires a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” With this standard in mind, the court concluded that all four children had been “emotionally abused by” Father and that, in addition, Chloe was also “a neglected child due to the lack of proper parental care” from Father. The court found that the threats Father constantly made to the children had “caused emotional upheaval” in their lives “and negatively impacted [their] development.” And the court found “a continuing pattern of emotional maltreatment of the children which [had] resulted in two of the children considering suicide as an option to end the maltreatment,” and it found that “these suicidal ideations and thoughts demonstrate a serious impairment to” the affected children’s “psychological functioning.” In particular, the court found that Father,

[t]hrough the use of chores, yelling, physical control, the use of access to food, the harm to a family pet, insulting comments, blaming and payment for basic things, and the daily arguing and sometime[s] physically aggressive behavior between . . . [P]arents that the children witness, . . . has created a hostile environment, which is manifested in the children feeling unsafe and being terrified of being at home with [P]arents.

The court concluded by noting that “this ongoing abusive environment has emotionally damaged the children.” While the court did not find “physical abuse as defined” by Utah law, it did conclude that “the children’s testimony was credible about the use of physical force to submit to the requests of [Father].” The court concluded that these “physical actions” on Father’s part “were part of” the “emotionally abusive parenting style” that he “used to intimidate and control the children.”

¶33 Father appealed the court’s adjudication order, but he raised only one argument—a procedural one—in his appellate petition. Specifically, he asserted that “the juvenile court lacked jurisdiction to enter the [adjudication] order because the adjudication trial was not held within sixty days after the shelter hearing,” which Father asserted was required by Utah law. Father mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished order, we rejected Father’s procedural argument and affirmed the adjudication order, concluding that Father had not preserved his procedural argument in the juvenile court and that Father could not demonstrate plain error.

¶34      Soon after the juvenile court issued its adjudication ruling, it held a dispositional hearing regarding Father. At the conclusion of that hearing, the court set a primary permanency goal of reunification and ordered that Father receive reunification services. The court also ordered that Father “comply with all of the provisions of” a child and family plan (Father’s Plan). Among other things, Father’s Plan required Father to obtain a mental health evaluation, follow any and all recommendations made by the evaluator, and participate in therapy.

The Permanency Hearing

¶35 A few months after entering its adjudication order regarding Father, the court held a permanency hearing, which took place over three trial days in September and October 2019. Again, the court heard testimony from members of the family as well as from therapists, DCFS caseworkers, and others. At the conclusion of the hearing, the court found, as to both Parents, that DCFS had made “reasonable efforts” to facilitate Parents’ compliance with their plans and to facilitate reunification.

¶36      With regard to Mother, the court found that she had made some positive efforts to comply with Mother’s Plan. In particular, Mother had “participated in visits with the children,” “obtained a psychological evaluation and engaged in therapy,” and completed an “assessment for domestic violence.” But the court also noted that Mother “continues to not give any credence to the children’s testimony about the conditions and treatment within the home” and, because of this belief, “no progress has been accomplished in family therapy.” As part of Mother’s Plan, Mother had also been instructed “to provide a safe and stable home.” The court found that Mother was not “capable or willing to do this given the continued denial of any concerns of emotional abuse of the children with her or [Father].” Thus, even though Mother had made some progress “on a number of the services ordered,” the court concluded that she had made insufficient progress “in the most essential areas of family therapy and personal insight to have the children safely returned home at this time or in the next 90 days.” For those reasons, the court terminated reunification services for Mother.

¶37      With regard to Father, the juvenile court found that he had “not substantially complied with” Father’s Plan. First of all, Father had refused “to obtain a mental health evaluation,” despite the fact that DCFS caseworkers had set up appointments for Father to receive the evaluation and had “encourage[d] him to complete” it “prior to the permanency hearing as it would show his efforts in the reunification process.” In addition, the court found that Father had failed to “participate in meaningful family therapy.” And most significantly, it found that Father had failed in his overarching task of providing “an emotionally safe or stable home to which the children may be returned.” The court specifically noted that Father, through his testimony at the hearing, had shown that there had “been no change in his perception of the facts which facilitated the [S]tate’s involvement.” Accordingly, the court terminated reunification services for Father and set adoption as the new “primary permanency goal” for the children, with a secondary goal of permanent custody and guardianship with Oldest Sister.

The Termination Trial

¶38 In October 2019, soon after the permanency hearing, the State filed a petition to terminate Parents’ parental rights regarding all four minor children. But due to a series of delays— caused by numerous factors, including motions to disqualify the judge, attempts to appeal certain orders, requests by both Parents for new counsel, disputes over discovery and subpoenas, and (most significantly) the emergence of the COVID-19 pandemic— the termination trial did not begin until July 2021. And the trial, once it began, was quite lengthy, spanning parts of nineteen trial days and involving the testimony of more than twenty different witnesses. Due to scheduling and pandemic-related concerns, the juvenile court was unable to hold the trial in one large block of time; instead, the trial occurred on scattered dates over the course of eleven months. In the meantime, both Chloe and Felicity turned eighteen and became adults, and they each chose to be adopted— as adults and in separate district court proceedings—by Oldest Sister and Brother-in-Law. By the time the termination trial ended, only Hannah and Noah were still minors and still within the jurisdiction of the juvenile court.

¶39      First to testify at trial were three DCFS caseworkers, who told the court that it had been difficult working with Parents, especially Father. One testified that whenever difficult subjects arose, Father would become “visibly upset,” raise his voice, and stand very close to her and wave his finger. Mother was less confrontational, but the caseworkers reported that the children felt that they could not be entirely honest with Mother “because they felt that she was just collecting information to use against them” and “that she was taking notes to provide to [Father].” At one point, one of the caseworkers had advised Mother that it would be “unlikely” that her reunification with the children would be successful “if [Mother] and [Father] were still together” and if Father continued to refuse to engage in services.

¶40 The court also heard about an incident in October 2019 when Father and a caseworker had gone with Chloe to visit a child psychiatrist (Psychiatrist) to discuss Chloe’s suicidal ideations. Psychiatrist testified that Father made it clear from the beginning that he was against the appointment because he believed there was “nothing wrong” with Chloe and that she “did not need medication.” Father became “confrontational” with Psychiatrist, in terms of both his “voice tone” and his “physical posturing,” and demanded to see a copy of Psychiatrist’s credentials. Father acted similarly toward Psychiatrist’s office staff. Psychiatrist found Father’s behavior so remarkably inappropriate that he wrote a letter to the court—the first time Psychiatrist had done so in decades of practice—asking that Father be kept away from his office and prohibited from contacting his employees regarding Chloe’s medical care.

¶41      Mother’s therapist testified that Mother felt that DCFS became involved only because the children had made up “a bunch of lies” just so they could have “an easier life.” Mother also had a habit, similar to Father’s, of raising her voice and shaking her finger at the therapist and would accuse her “of being involved” in “the efforts” to keep the children “away from [Mother].” The therapist met with Mother seventeen times, but she indicated that, “at the point of discharge,” Mother had made “little progress.”

¶42      The court also heard testimony—from DCFS caseworkers as well as from the psychologist tasked to perform the assessment—that Father refused to undergo a mental health evaluation, as ordered by the court pursuant to Father’s Plan. Father’s stated concern was that he did not want DCFS to have a copy of the psychologist’s eventual report, apparently because he believed that DCFS was “kind of out to get him”; the psychologist explained to Father that he had been retained by DCFS and therefore DCFS was going to get a copy of the report. The psychologist testified that he had completed more than 4,000 assessments for DCFS over several decades and that this was the first time anyone had refused to participate on the ground that they did not want DCFS to receive a copy of the report.

¶43 Mother, on the other hand, did participate in a mental health evaluation; the psychologist who performed her evaluation testified that Mother had dependent personality disorder, obsessive-compulsive personality disorder, and dementia. The psychologist went on to note that she could not rule out aphasia as another possible diagnosis but, to be certain, Mother would need to undergo an evaluation with someone more qualified in speech and language. According to this psychologist, someone in Mother’s position would likely struggle with daily life and would need “a lot of assistance and accommodations.”

¶44      Oldest Sister testified, and she offered her perspective on what it had been like to live with Parents; in addition, she told the court about one incident that took place after she had moved out. She recounted how she would sometimes return to Parents’ house to visit her siblings, and on one such occasion, Father struck Oldest Sister. The incident began with Father demanding that, while Oldest Sister was visiting, she “clean the house” for Parents. Oldest Sister decided to stand up to Father and tell him that she was happy to help around the house while she was visiting but that she was not there to be Father’s “maid.” At this, Father “backhanded” Oldest Sister, knocking her to the floor. While on the floor, Oldest Sister threatened to call the police, at which point Mother “jumped on top” of her, warning her not to call law enforcement and that if she did, it would “ruin” the family.

¶45      Oldest Sister also offered her account of the circumstances that caused DCFS to become involved in this case, and she described that she has a strong bond of love and affection for her siblings and that they are thriving in her care. She noted that she and Brother-in-Law have three children of their own, and she stated that her four siblings have integrated well with her three children. She also testified that her siblings “know that we love them no matter what” and that they are no longer “afraid.” She told the court that she was ready and willing to adopt all four of her siblings—she had not yet adopted Chloe and Felicity—even if it meant that her own relationship with Parents would suffer.

¶46 The court also heard testimony from all four minor children, which testimony we describe here in some detail.

¶47 Chloe’s Testimony: Chloe testified over two trial days in July and August 2021, just before she turned nineteen and was about to leave on a religious mission. Chloe described herself as a religious person, and she noted her appreciation to Parents for teaching her religious principles. But she expressed disagreement with the manner in which Father often exercised his authority within the family, offering her view that Father would “force” religion “down [the children’s] throats” and “use it against” them, which Chloe believed “was tearing [the family] apart.” She stated that it had been the children’s idea to prohibit Father from talking about religion during group therapy sessions. At home, Chloe had never felt like she could express herself or “say anything,” because Father always had to be “in control” and it was always “his way or the highway.” She described how the children were “scared” of Father and would sometimes hide in a closet, “all huddled up together,” because they were “terrified.” Chloe described instances where she had witnessed Father physically hurting members of the family. On one occasion, shortly before Older Brother had moved out, she saw Older Brother arguing with Father when Father “grabbed” Older Brother and “put him in a choke hold.” When Older Brother broke free of Father’s grasp, Chloe witnessed Father “push[ing] him down the stairs.” She confirmed that she had been “suicidal when [she] was in [Parents’] house.” When she told Father about it, his response was, “If you commit suicide, you’re going to go to hell.” She also confirmed that Father had interfered with a medical appointment in which she was attempting to see Psychiatrist to discuss medication and treatment. And she described how Father would make the children eat expired food, even sometimes when it had “mold on it” or when “the expiration date [was] . . . more than two or three or sometimes even five years past.”

¶48 In addition, Chloe offered her view that Father had not “done the things the [c]ourt asked him to do” in order to reunify with his children, and she stated that she did not think she could have meaningful contact with Father going forward. She viewed Father’s unwillingness to engage with reunification services as a sign that he “didn’t want us,” because if Father had wanted them, he “would have gone through the process” that the court set out instead of “fighting so hard to be like ‘I’m right and you’re not going to tell me what I can and cannot do’” regarding the children.

¶49      Chloe was more equivocal about Mother, stating that she believed she could potentially have a good relationship with Mother if Mother were no longer with Father, and that she and Felicity had expressed that sentiment to Mother at one point. In Chloe’s view, Mother acted merely as Father’s “puppet” and did not feel free to offer “her true feelings.” Mother reacted negatively to the girls’ suggestion that she should leave Father, telling Chloe, “[D]on’t you dare ever make me choose.”

¶50      Chloe acknowledged that, as an adult, she had chosen to be adopted by Oldest Sister and Brother-in-Law, and she stated that she had wanted that outcome all along, even when she had been a minor, and that she had chosen adoption because she wanted “a loving and supportive” place “to call home” and didn’t feel like she ever had that with Parents. She noted that there had been challenges, initially, transitioning from “sister to daughter overnight” in relation to Oldest Sister, but she described her life with Oldest Sister and Brother-in-Law as, on balance, “pretty freaking amazing.”

¶51      Felicity’s Testimony: Felicity testified in November 2021, about a month before she turned eighteen. She stated that her home with Parents was “really scary” and not “safe.” Parents “yelled all the time,” fed the children “expired” food unless they paid Father for fresh food, and made the children do endless chores that somehow could never be “done good enough.” She recalled one occasion in which Father kept her up until 2:00 a.m. on a school night because he thought she hadn’t cleaned the kitchen counters well enough; Felicity finally went to bed, but Father came into her room “and poured water over [her] head” to wake her up and made her “go finish” cleaning the counters. And she recalled another occasion in which Father threw her dog outside because she “didn’t kneel down for prayers fast enough.”

¶52 Felicity confirmed that, while she lived with Parents, she struggled with “anxiety and depression” and “thought about killing [her]self.” She perceived Parents as being unsupportive of her during this time; Mother in particular was resistant to helping Felicity obtain medication for her depression, telling her instead to just “read the scriptures.”

¶53      Since being placed with Oldest Sister and Brother-in-Law, Felicity has had visits with Parents, but she testified that she doesn’t like the visits. During the visits, Parents would “act like . . . everything’s fine” and would refuse to engage with the problems in the home. She stated that the visits with Father, in particular, didn’t go well. On one occasion, she asked to take a break while Father was talking to her, and Father became angry, telling her she was not allowed to leave the room while he was addressing her. After that visit, she and the caseworkers came up with a kind of “safe word” for her to use if she needed a break during a visit: she was to say that she needed to use the restroom.

¶54 She confirmed that group therapy with Parents had not been productive because Parents “would just deny” everything and would “refuse to say that they did something wrong.” She offered her perception that Parents, during the reunification period, “haven’t done anything to change.”

¶55      Finally, Felicity testified that she liked living with Oldest Sister and Brother-in-Law because “they’re kind and they care about” her and she feels like she is “actually loved.” She testified that she does not “want to have a relationship with” either one of her Parents and that she wanted to be adopted by Oldest Sister and Brother-in-Law. Indeed, in March 2022—before the trial ended but after she testified and after she turned eighteen—she elected to be adopted by Oldest Sister and Brother-in-Law.

¶56      Hannah’s Testimony: Hannah testified in September 2021, when she was fifteen. She confirmed that she and her siblings had been removed from Parents’ home because “it wasn’t really safe” there. She testified that there was “a lot of contention” in the home and that there was “so much screaming and yelling” that she and Noah would sometimes “go hide in a closet” because they were “really scared.” She discussed several incidents in which Father used physical force, once on Mother—when he forcibly “grabbed the keys” out of her hand—and sometimes on the children: she described Father throwing a “headlamp” at Noah and once “slapp[ing] her across the face.” Often, the yelling was about the children’s chores and involved Parents indicating that they were dissatisfied with the manner in which the children had performed their tasks. She said that “every time” Parents started yelling, she “was afraid they were going to hit” her, which caused her “anxiety” and was “really scary.” She testified that, in those situations, she “couldn’t talk back” because, if she did, she would “get in more trouble.”

¶57      She testified that the post-removal visits were “pretty scary at first” because she worried that Parents “were going to take all of their anger” about the removal “out on” the children. Hannah did not believe that the visits were productive, and she testified that she felt “released” and “happy” when visits with Father were “canceled.” She believed that the group therapy sessions, in particular, were unhelpful, largely because Parents refused to ever acknowledge that they might have done anything wrong.

¶58      And she testified that living with Oldest Sister and Brother-in-Law was “pretty awesome” because she feels “loved there” and feels “like someone cares for” her and that she wasn’t “scared anymore.” She told the court that she wanted to be adopted by Oldest Sister and Brother-in-Law, and that she would “run away” if she were forced to return to Parents’ home.

¶59 Noah’s Testimony: Noah testified in September 2021, a few weeks before his thirteenth birthday. He also testified that Parents’ home “wasn’t a safe environment” due to the constant “yelling and contention,” offering his view that “there was almost never . . . peace and happiness.” He recalled Parents waking him up by spraying him “with a water bottle,” and he recalled the headlamp incident.

¶60 His view of the post-removal visits was that he “didn’t really want to have them” because he didn’t “want to have a relationship with [Parents] anymore.” He found the visits “odd at first” but then, after a while, he just found them “boring” and “a waste of time” because Parents would just ask “the same questions.” He also believed that Parents “wouldn’t try and improve” themselves through the visits and group therapy.

¶61      And Noah testified that he “really like[s]” living with Oldest Sister and Brother-in-Law and that he wants to “live permanently” with them. He testified that Oldest Sister’s home is “a loving environment” where they “help each other . . . try to get better and improve.” He stated that he doesn’t “want [Parents] to be [his] parents,” and that he would not “feel safe” if he was returned to Parents’ custody. He expressed a desire “to have [Oldest Sister and Brother-in-Law] be [his] parents.”

¶62      Finally, the court heard extensive testimony from Parents. Father testified over three trial days and was the only witness to testify on two of those days. Mother also testified over three trial days. For the most part, in the interest of brevity, we present their testimony through our description of the juvenile court’s ruling, set forth immediately below. But in general, Parents refused to acknowledge that they had acted in any way inappropriately, and they defended their behavior as a means of instilling discipline and religious-based values in their children.

The Court’s Post-Trial Ruling

¶63 Following the presentation of evidence, the attorneys presented their closing arguments over parts of two days. After that, the juvenile court took the matter under advisement and, a few weeks later, issued a fifty-three-page written decision. In that decision, the court summarized the testimony that had been presented; in particular, the court spent some twelve pages summarizing Parents’ lengthy testimony.

¶64 The court noted that Father described Oldest Sister as “spoiled” and described Chloe’s expression of suicidal ideations as “play[ing] the suicide card.” Father acknowledged that he had awakened the children with water, thrown a headlamp at Noah, and “raised his voice” during the meeting with Branch President. But he justified these behaviors as merely strict religious-based parenting. The court noted Father’s stated belief that “the [State] had invaded his family” and was “taking over his stewardship,” as well as Father’s contention that the assigned therapists “had replaced his religious beliefs” by instituting rules for the therapy sessions with which he disagreed. And the court noted Father’s testimony that Branch President was “highly judgmental and lacking in integrity,” as well as Father’s stated belief that DCFS, Branch President, and Oldest Sister “got together with malice to engage in child kidnapping and child trafficking” so that Oldest Sister could “enslave[]” the children to “serve [her] family.”

¶65      With regard to Mother, the court noted that she had been married to Father for thirty-five years and “intends to stay married to him.” Mother testified that, at one point, the GAL and DCFS caseworkers told her that “she had to choose between [Father] and the children,” and that she “told them no, that they are not going to break up the family.” The court noted Mother’s belief that she had attempted to comply with Mother’s Plan, and that Mother “wants to have a special relationship with all of her children and would like the family to be together.”

¶66 After summarizing the voluminous testimony presented at trial, the court made certain findings and conclusions. It found that Father “uses religious, familial, and authoritative vocabulary to intimidate the children,” and that he “has used his physical presence” in that manner as well “by standing up, making his body larger, [and] power posing [to] the children.” The court found that Father “has not engaged in purposeful family therapy with the children to address the issues” in the case and that Father “has never acknowledged that he” might bear some responsibility for the situation. The court noted that the “family never moved from square one in talking about the real issues that led [Chloe] to be suicidal and had [Noah] and [Hannah] hiding in the closet.” The court declared that, “[w]ithout addressing and correcting the problems in the home as to parenting style and the environment, the children and [Father] will never have a healthy relationship.” The court found that “there does not exist a bond of love and affection between the children and [Father].” And it observed that Father certainly “has the constitutional right to parent his children” but that the “children also have the right to be free from emotional abuse.” In summary, the court found that Father “is an unfit parent” and that Hannah and Noah could not “safely be returned to [Parents’] home to reside with [Father] since he has made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.”

¶67    As to Mother, the court found that she “supported [Father] in his harmful treatment of the children as he tried to control their lives,” and that she “minimized the emotional maltreatment that was occurring in the home and the extent of the emotional trauma” the children experienced. It found that Mother “continues to deny . . . any emotional . . . maltreatment of the children,” that she “laughs when questioned about these things and continues to blame the children and [Oldest Sister] for [DCFS’s] intervention,” and that she “has never considered for a moment that she or [Father] have done anything untoward or harmful to the children.” The court found that Mother’s “continued association with [Father] puts the children at risk should they be returned to her custody and care.” The court found grounds sufficient to justify termination of her parental rights, concluding that Mother was “unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement” and that she had made only “token efforts to eliminate the risk of serious harm to the children.”

¶68      Having found grounds sufficient to justify termination of Parents’ rights, the court then turned to the best-interest question. The court determined “that it is in the children’s best interest and strictly necessary to terminate” Father’s parental rights. The court considered whether to impose a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law, but it did “not find this alternative to be in the children’s best interest.” The court noted that both Branch President and Psychiatrist had considered Father so aberrant that—in an effort to keep Father away from the children—they had each taken action they had never taken before. And the court noted that, “if permanent custody and guardianship were granted” to Oldest Sister, Father “would still be in the orbit of the two remaining [minor] children” and would be able to “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.” For these reasons, the court concluded that the State had demonstrated, by clear and convincing evidence, that termination of Father’s rights was strictly necessary to advance the children’s best interest. The court therefore ordered that Father’s rights be terminated.

¶69 As to Mother, however, the court reached a different conclusion. The court first noted “the legislatively mandated position that wherever possible family life should be strengthened and preserved,” and it observed that the children were in the custody of a relative—Oldest Sister—and were not “in a home unrelated to” Parents. The court noted that the children’s visits with Mother had gone better than their visits with Father, and that their relationship with Mother—unlike their relationship with Father—does not cause “the children emotional or mental harm.” Accordingly, the court concluded that, with regard to Mother, “the children can be equally protected and benefited by an option other than termination.” The court therefore declined to terminate Mother’s rights, and it placed the children in a permanent custody and guardianship arrangement with Oldest Sister and Brother-in-Law.

The GAL’s Rule 59 Motion

¶70      Shortly after the issuance of the court’s initial post-trial ruling, the GAL filed a motion—grounded in rule 59 of the Utah Rules of Civil Procedure—requesting that the court reconsider its decision not to terminate Mother’s parental rights. The GAL asserted that, in making its decision not to terminate Mother’s rights, the court had viewed matters too much from Mother’s point of view and not enough from the children’s point of view. Mother opposed the motion.

¶71      During a hearing on the motion, the GAL began to discuss events that had occurred since the conclusion of the termination trial, and Mother’s counsel objected. The court determined that it would permit counsel to “put in a memorandum or affidavit” the “additional information supporting” its argument, and it would then allow all other parties “to file an affidavit or other response.” Following the hearing, the GAL filed with the court an affidavit from Brother-in-Law in which he described, among other things, the effects that post-trial visits with Mother had been having on Hannah and Noah.

¶72 A few weeks later, the juvenile court issued a written ruling granting the GAL’s motion. In the introductory paragraph of that ruling, the court noted that, in preparing to make its decision, it had reviewed “the filings and arguments of the parties, the oral argument on the [m]otion and the prior testimony from the termination trial and the original findings and order.” But the court made no specific mention, anywhere in its ruling, of the post-trial events described in Brother-in-Law’s latest affidavit. Instead, the court stated that it was reconsidering its prior ruling and, this time, it was ordering termination of Mother’s parental rights; it explained that, in its initial ruling, it had “failed to give the proper weight to the children’s expressed wishes to be adopted” by Oldest Sister and Brother-in-Law. The court noted that the “children have been direct in seeking to be adopted.” And it noted that it was statutorily commanded to “give the minor’s wishes added weight” if the minor in question was fourteen years old or older, a stipulation that, in the court’s view, applied to all of the children (Noah having recently turned fourteen). After reconsidering its prior decision in light of the added weight given to the children’s stated wishes, the court determined that termination of Mother’s rights was in the children’s best interest, and it therefore ordered that her rights be terminated.

ISSUES AND STANDARDS OF REVIEW

¶73      Parents now appeal, and they raise several issues for our review. First, they contend that the juvenile court violated their constitutional rights. “Constitutional issues, including questions regarding due process, are questions of law,” and the conclusions of the juvenile court on such issues are reviewed “for correctness.” In re adoption of K.T.B., 2020 UT 51, ¶ 15, 472 P.3d 843 (quotation simplified). Along with this argument, Parents also assert that the constitutional issues they raise indicate that the court erred in concluding that DCFS made reasonable efforts to facilitate reunification. To the extent that Parents’ constitutional arguments raise “reasonable efforts” questions, we review the court’s ruling more deferentially. See In re P.J.R., 2023 UT App 27, ¶ 24, 527 P.3d 1114 (“A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)), cert. denied, 534 P.3d 750 (Utah 2023).

¶74      Second, Parents assert that their respective attorneys provided ineffective assistance of counsel at various points throughout the litigation. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re D.G., 2022 UT App 128, ¶ 6, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023).

¶75 Third, Father argues that some of the juvenile court’s factual findings were against the clear weight of the evidence. “In order to overturn the juvenile court’s decision the result must be against the clear weight of the evidence or leave [this] court with a firm and definite conviction that a mistake has been made.” In re G.D., 2021 UT 19, ¶ 70, 491 P.3d 867 (quotation simplified).

¶76      Finally, while Parents do not take issue with the juvenile court’s ruling that statutory grounds for termination existed, Parents do challenge the court’s ruling that termination was strictly necessary to promote the children’s best interest. We review a trial court’s “best interest determination deferentially, and we will overturn it only if [the 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.” In re D.S., 2023 UT App 98, ¶ 15, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). But “because the evidentiary standard applicable in termination of parental rights cases is the clear and convincing evidence standard, we will assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified).

¶77 Along with her best-interest argument, Mother raises an additional issue: she asserts that the juvenile court erred by allowing the GAL to submit new evidence of post-trial matters in support of the rule 59 motion. “We generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 12, 428 P.3d 89 (quotation simplified). And we will not reverse that decision if the only errors in it were harmless. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”); Proctor v. Costco Wholesale Corp., 2013 UT App 226, ¶ 9, 311 P.3d 564 (“[A] harmless error does not require reversal.”), cert. denied, 320 P.3d 676 (Utah 2014).

ANALYSIS

  1. Constitutional Claims

¶78      We first address Parents’ assertion that the “juvenile court process” that resulted in the termination of their parental rights violated their constitutional rights. We describe Parents’ specific claims in more detail below, but before we discuss the particulars of those claims, we pause to emphasize two critical background points, one legal and one factual, that help frame our analysis.

¶79      The legal background point is straightforward and should go without saying: a parent has no general right, whether statutory or constitutional, to abuse or neglect a child for religious reasons.

¶80 Utah’s child welfare statutes regarding abuse of a child have no exceptions allowing abuse to occur on religious grounds. In the child welfare context, “[a]buse” means (among other things) “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code § 80-1-102(1)(a). The governing statute specifies that “reasonable discipline” of a child does not constitute “[a]buse,” nor does “reasonable and necessary physical restraint or force” applied in defense from or protection of the child or others. Id. § 80-1-102(1)(b). But there is no statutory exception excusing abuse simply because it might be religiously motivated.

¶81      Similarly, in the child welfare context, “[n]eglect” includes “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent,” and includes “action or inaction causing . . . failure or refusal of a parent . . . to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well­being.” Id. § 80-1-102(58)(a)(ii), (iii). The statutory definition of neglect does include one religious-based exception: a parent who is “legitimately practicing religious beliefs and who, for that reason, does not provide specified medical treatment for a child” has not neglected that child. Id. § 80-1-102(58)(b)(i).[8] But other than this narrow exception, Utah’s statutes offer no room for a parent, on religious grounds, to take actions that would otherwise constitute neglect of a child.

¶82      Nor is there any constitutional right to abuse or neglect a child in the name of religion. To be sure, parents have a right to teach their children religious principles and to encourage them to comply with the tenets of a chosen religion. Kingston v. Kingston, 2022 UT 43, ¶ 24, 532 P.3d 958 (stating that “parents have a fundamental right” under the United States Constitution “to encourage their children in the practice of religion”). But such rights peter out where a parent’s religious practices result in mistreatment of a child. See Zummo v. Zummo, 574 A.2d 1130, 1154–55 (Pa. Super. Ct. 1990) (noting that parents are “free to provide religious exposure and instruction” to their child as they see fit, “unless the challenged beliefs or conduct of the parent are demonstrated to present a substantial threat of present or future, physical or emotional harm to the child” (quoted in Kingston, 2022 UT 43, ¶ 67)); see also Prince v. Massachusetts321 U.S. 158, 166–67 (1944) (stating that “the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare,” including in “matters of conscience and religious conviction,” and noting that the state’s “authority” in this regard “is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience”); Koch v. Koch, 207 So. 3d 914, 915 (Fla. Dist. Ct. App. 2016) (noting courts’ ability to restrict a parent’s rights where there is “a clear, affirmative showing that the [parent’s] religious activities . . . will be harmful to the child” (quotation simplified)); In re Edward C., 178 Cal. Rptr. 694, 699 (Cal. Ct. App. 1981) (“Mistreatment of a child . . . is not privileged because it is imposed in the guise of freedom of religious expression.”); Amos N. Guiora, Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 J.L. & Fam. Stud. 391, 405 (2010) (“Religious belief and conduct cannot be used as justification for placing children at risk; government, law enforcement and the general public cannot allow religion to hide behind a cloak of ‘religious immunity.’”).

¶83 Next, the factual background point is simply this: as discussed above, Parents have already been adjudicated to have abused or neglected the children, and those adjudications were not substantively challenged on appeal.

¶84 With regard to Father, the juvenile court found—after a five-day adjudication hearing—that Father had “emotionally abused” all four children. The court specifically discussed the rather stringent statutory definition of “emotional abuse” and recognized that it required a finding that a child has suffered “a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See Utah Code § 80-1-102(37)(b). But the court comfortably made such findings with regard to Father, concluding that Father had engaged in “a continuing pattern of emotional maltreatment of the children which has resulted in two of the children considering suicide as an option to end the maltreatment.” The court also found that Father had “created a hostile environment” for the children that caused them to suffer “emotional damage[],” and it found that Father’s “use of physical force” was part of the “abusive parenting style” that he “used to intimidate and control the children.”

¶85 With regard to Mother, the court determined—based on Mother’s own rule 34(e) admissions—that all four children were neglected. In particular, the court concluded that Chloe, Felicity, and Hannah were neglected because Mother subjected them “to mistreatment or abuse and/or” because they “lack[ed] proper parental care by reason of the fault or habits of [Mother], and/or” because Mother had “failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for health, safety, morals or well being of the children.” And the court found that Noah was neglected as to Mother since he was “at risk of being neglected or abused because another child in the same home is neglected or abused.”

¶86 Mother did not appeal the court’s adjudication order. Father did, but he raised only one argument—a procedural one— in his appellate petition; he mounted no appellate challenge to the substance of the court’s adjudication order. In an unpublished decision, we rejected Father’s procedural argument and affirmed his adjudication order.

¶87 Thus, Parents have been adjudicated to have abused or neglected the children, and those adjudications were either not appealed or were affirmed on appeal. In light of these facts, Father’s attorney agreed, at oral argument before this court, that the adjudication order is now part of the case and that we, for purposes of this appeal, must therefore take it “as it is.” As we understand it, this concession is in keeping with Utah law. An adjudication order is “final for purposes of appeal,” see In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037, and “where a final ruling or order of the trial court goes unchallenged by appeal, such becomes the law of the case, and is not thereafter subject to later challenge,” see SRB Inv. Co. v. Spencer, 2023 UT App 120, ¶ 29, 538 P.3d 231 (quotation simplified). We have, on several occasions, refused to allow parents to re-litigate adjudication orders in the context of appeals from later orders. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768 (stating that “matters relating to the adjudication hearing are barred” from consideration on appeal from a termination order where the parent “did not appeal the adjudication order”); see also In re E.T., 2014 UT App 206, ¶ 2, 335 P.3d 394 (per curiam) (stating that where a parent “failed to timely appeal [an] adjudication order, we lack jurisdiction to consider an appeal of that order” in an appeal from a later order).

¶88 Given these background principles and facts, Parents cannot—and here make no serious attempt to[9]—argue that the adjudication findings should be reversed, or that their underlying abuse and neglect should be excused on religious grounds. Instead, they make narrower constitutional arguments.

¶89      They begin by asserting, in general terms, that the “juvenile court process” that led to the termination of their parental rights violated their constitutional rights to parent their children and, in particular, their right to encourage their children in the practice of religion. They then point out—citing Kingston, 2022 UT 43, ¶ 29— that “any state interference with parents’ right to encourage their children in the practice of religion . . . is subject to strict scrutiny.” And they conclude by arguing that their right to encourage their children regarding religion was infringed during the case, specifically asserting that DCFS “cannot have made reasonable efforts to provide reunification services if it does not employ the least restrictive means available.”

¶90 As examples of what they claim to have been “state interference” with their right to encourage the children in the practice of religion, Parents point to two things: (1) the rule Therapist put in place, at the behest of the children, that Parents not discuss religion with the children during family therapy sessions; and (2) the court’s refusal to grant Father’s request that Therapist be removed from the case and replaced with “a therapist more understanding of his religious beliefs.”[10] We find Parents’ arguments unpersuasive.

¶91 We first discuss Parents’ arguments regarding the rule forbidding them from discussing religion during family therapy. In this case, we need not decide whether Parents’ constitutional right to encourage their children in the practice of religion requires the State to allow Parents to offer such encouragement during therapy sessions provided by the State as part of reunification services. Nor do we need to decide—even assuming there is such a requirement—whether the rule imposed here satisfied strict scrutiny review by being “narrowly tailored to protect a compelling government interest.” Id. ¶ 61 (quotation simplified). Given the record before us, we may avoid these questions because even assuming, for purposes of the discussion only, that there was a constitutional violation in this regard, any such violation was clearly harmless here. See In re A.R., 2017 UT App 153, ¶¶ 11−13, 402 P.3d 206 (affirming the termination of a parent’s rights in the face of an asserted constitutional violation because, even if the court committed constitutional error, the error was harmless); see also In re I.M.L., 2002 UT 110, ¶ 9 n.3, 61 P.3d 1038 (“Generally, we avoid reaching constitutional issues if a case can be decided on other grounds.”). The evidence presented at the termination trial showed that Father paid no heed to the rule in any event and simply went ahead—against the children’s request, communicated through Therapist—and discussed religion with the children during the family therapy sessions.[11] Given Father’s refusal to follow it, Parents do not explain how the rule’s short-lived existence made any difference here; in particular, they make no effort to demonstrate how the therapy sessions would have been different or more productive had the rule not been in place. Moreover, and perhaps most significantly, the rule was only in effect for about five weeks, because the juvenile court ordered it removed at the first opportunity. As soon as Parents asked that the rule be removed, the court granted that request; Parents do not explain what the juvenile court could have done better or more speedily with regard to this rule. In short, we see no reasonable likelihood that the temporary imposition of a rule disallowing Parents to discuss religion during therapy sessions affected the outcome of the proceedings.[12]

¶92 Next, with regard to Parents’ second example of asserted “state interference”—their claim that they had a constitutional right to a therapist whose religious beliefs matched their own— we likewise reject Parents’ argument without entirely reaching its merits. Even if we assume—without deciding, and for purposes of the argument only—that Parents had a constitutional right to a therapist whose religious beliefs matched their own, Parents’ argument on this point nevertheless fails because Parents have not explained exactly how—or even whether—Therapist’s religious beliefs or practices differed from their own. The record is silent as to what Therapist’s religion was—we therefore do not know whether she was a member of Parents’ religion or not. And Father conceded, during his testimony, that his objection to Therapist was not based on whether she shared his religion or not, explaining that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.” But in his briefing, Father makes no effort to identify what those “values or principles” are, whether they derive from his religion or from some other source, or how they might have differed from Therapist’s religious beliefs and practices.

¶93 Indeed, the GAL argues, with some force, that Father’s objectionable behavior was not grounded in the tenets of any religion but, instead, simply amounted to Father’s personal belief that, as head of the household, he had the right to bully and intimidate his children and to say whatever he wanted whenever he wanted during family therapy sessions. After all, even Father’s own religious leader considered Father’s similar behavior during the meeting at the church to be inappropriate and by no means compelled by tenets of their shared religion. And it is noteworthy that all four children—even after removal and despite the abuse and neglect they experienced—have remained steadfast adherents of the religion they share with Parents. Thus, one might reasonably conclude that Father’s conflict with Therapist had nothing whatsoever to do with specific religious tenets and everything to do with Father’s personality. At a minimum, Parents have not carried their appellate burden of persuading us that the situation is otherwise. And we note that courts have rejected similar claims in analogous cases on the basis that the parent had not “establish[ed] a clear relationship between” his or her “religious faith” and the specific “discipline” imposed on the children. See, e.g.Jakab v. Jakab, 664 A.2d 261, 265 (Vt. 1995); see also In re H.M., 144 N.E.3d 1124, 1148 (Ohio Ct. App. 2019) (noting that the “record is scant on defining the parents’ actual religious beliefs” and whether they motivated the behavior in question).

¶94      For these reasons, we see no constitutional infirmity in the juvenile court’s refusal to grant Father’s request for a different family therapist in this case.

¶95      We note again that Parents’ overarching argument is that

“the State could not have made reasonable efforts if its actions do not pass strict scrutiny.”[13] Yet as to the two ways Parents allege that the State’s actions do not pass muster, Parents have in one instance failed to show any actual infringement of a constitutional right, and in the other they have failed to persuade us that reunification services would have been more successful in the absence of the alleged constitutional violation. Thus, we perceive no error in the juvenile court’s reasonable efforts determination, and we reject Parents’ claims that, during the “juvenile court process,” their constitutional rights were violated.

  1. Ineffective Assistance of Counsel

¶96 Next, Parents assert that they received ineffective assistance of counsel during the termination proceedings. “To establish [an] ineffective assistance of counsel claim, [a party] must show that counsel’s performance was objectively deficient and that counsel’s deficient performance prejudiced the case.” In re D.G., 2022 UT App 128, ¶ 9, 522 P.3d 39 (quotation simplified), cert. denied, 527 P.3d 1106 (Utah 2023). “Failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim,” and therefore we are “free to address [Parents’] claims under either prong.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified).

¶97 Parents each make one argument in this regard. We first address Father’s contention that his attorney was ineffective for not objecting to “improper bolstering evidence” presented during the termination trial. Second, we address Mother’s argument that her attorney rendered ineffective assistance “by failing to object to” the terms of Mother’s Plan. For the reasons set forth below, we conclude that neither Father nor Mother has borne their burden of establishing that their attorneys rendered ineffective assistance.

  1. Father’s Claim

¶98      Father asserts that his attorney rendered constitutionally ineffective assistance by failing to object to certain testimony, offered by the State’s witnesses during the termination trial, that Father characterizes as “improper bolstering evidence.” Father points to three statements that he believes amounted to improper bolstering of the children’s accounts of things that happened in the family home. First, he points to Therapist’s statements that Chloe was “not exaggerating her symptoms or faking how she was feeling” when reporting suicidal ideations and seeking medication and that she was being “pretty honest” in her descriptions, as well as to Therapist’s similar statement that the threats of suicide that Chloe and Felicity had made were not “fabricated” and were not “attention getters.” Second, he complains about a different therapist’s testimony that “there was never anything that [Noah] or [Hannah] told [her] relating to their experiences” at home “that would lead [her] to believe they were being dishonest.” Finally, Father identifies Branch President’s testimony that, during his communication with Chloe, Felicity, and Hannah in the August 2018 meeting, he had no concerns that “the girls were making these things up.”

¶99      Father asserts that these statements were inadmissible and that a reasonable attorney would have objected to these statements in an effort to keep them out. He further asserts that, given the importance of the children’s credibility to the issues before the court, the admission of these statements was ultimately prejudicial to him and led the court to believe the children’s accounts over his own.

¶100 We have our doubts about whether a reasonable attorney would have objected to these statements, given the importance of many of them to therapeutic diagnosis and treatment. But even assuming, for the purposes of argument, that Father’s attorney performed deficiently by not objecting to these statements, the admission of these statements did not prejudice Father on the specific facts of this case. To establish prejudice, Father must do more than “show that the errors had some conceivable effect on the outcome of the proceeding.” State v. Samora, 2023 UT 5, ¶ 22, 529 P.3d 330 (quotation simplified). He bears the burden of demonstrating “that the decision reached would reasonably likely have been different absent trial counsel’s alleged errors.” Id. (quotation simplified). Father cannot meet that burden here.

¶101 By the time the termination trial rolled around, the court had already conducted numerous hearings in this case; most notably, it had held a five-day adjudication trial in which it had heard from the children and from various therapists and caseworkers, and it had already entered extensive findings and conclusions. In particular, as noted above, the court had already engaged in the process of determining whether Chloe and Felicity had felt genuine suicidal ideations, and concluded that they had; likewise, the court had already engaged in the process of determining whether Father had emotionally abused the children and concluded that he had. Given that the court had already made these findings, which were not substantively appealed, we cannot conclude that there is any reasonable likelihood that—absent the challenged statements—the court would, at the termination trial, have changed its entire outlook on the events in the home and made antipodally different findings than the ones it had already made at the adjudication trial.

¶102 Under these circumstances, Father cannot demonstrate that he was prejudiced by any deficient performance on the part of his attorney. Accordingly, his ineffective assistance of counsel claim necessarily fails.

  1. Mother’s Claim

¶103 Mother asserts that her attorney rendered constitutionally ineffective assistance by failing to object to the terms of Mother’s Plan and to “the State’s failure to provide the recommended services,” and by not requesting a “modified service plan” better tailored to Mother’s needs. According to Mother, “[r]easonable counsel would have understood the importance of the service plan and the services recommended by it,” and she maintains that, if she had received the benefit of a modified plan, there is a “reasonable likelihood that the court would not have determined that Mother had failed to complete the services.”

¶104 During the termination trial, the psychologist who evaluated Mother testified that Mother has dependent personality disorder, obsessive-compulsive personality disorder, and dementia, and that Mother might also suffer from aphasia but would need additional testing for that diagnosis to be confirmed. The psychologist opined that someone with Mother’s conditions would likely experience some struggles in daily life and may need “assistance and accommodations.” At the time, Mother’s attorney did not object to Mother’s Plan or assert that it should include any additional services to accommodate these diagnoses.

¶105 Now, however, Mother asserts that her attorney should have objected and should have requested that Mother’s Plan include additional services intended to assist Mother with these diagnoses and conditions. But here on appeal, Mother does not identify—let alone meaningfully discuss—any specific services she now wishes counsel would have requested, and she has therefore failed to demonstrate that she was prejudiced by counsel’s failure to make a request. Without identifying any specific services she would have liked to have received, it is impossible for her to show that such services would have been reasonably likely to have made a difference here, especially in the face of the established facts: that Mother was steadfast in her loyalty to Father, that she at all times refused to acknowledge any responsibility for the situation, and that she failed to undertake efforts to remedy the circumstances that caused the children to be in an out-of-home placement.

¶106 Like Father, Mother has not borne her burden of demonstrating that she was prejudiced by any deficient performance on the part of her attorney. Accordingly, her ineffective assistance of counsel claim likewise fails.

III. Challenges to the Juvenile Court’s Factual Findings

¶107 Next, we address Father’s assertion that a handful of the juvenile court’s factual findings were clearly erroneous and unsupported by the evidence presented at the termination trial. Father identifies four such findings; we discuss each of them, in turn, and conclude that none of them are problematic.

¶108 First, Father challenges the court’s finding that Chloe “spoke about suicidal thoughts while she lived at home.” This finding is amply supported by the evidence presented at the termination trial. Chloe testified, on direct, that she had told Father that she was “suicidal,” and that he responded by telling her that if she killed herself she would “go to hell.” On cross-examination, she explained that she had told Father that, when he treats her “like crap,” it makes her “feel like [she] just want[s] to commit suicide.” She did acknowledge that she made the comment in a kind of in-passing way, and that “it wasn’t like [she] sat [Father] down and said, ‘Dad this is a serious thing. I’m seriously considering [suicide].’” But this testimony is more than enough to support a finding that Chloe “spoke about suicidal thoughts while she lived at home.”

¶109 Moreover, the court had already found, in the adjudication trial, that Chloe’s suicidal ideations were genuine. In these earlier proceedings, the court had already learned that Parents had been informed of Chloe’s feelings well before the children were removed from the home and that they had downplayed any concerns, calling Chloe a “drama queen” and indicating that they did not believe her. Under these circumstances, ample evidence supported the court’s finding that Chloe spoke about her suicidal ideations while still living in Parents’ home.

¶110 Second, Father challenges the court’s characterization that Brother-in-Law testified that the children attended post-removal visits with Father “because it [was] what they [were] supposed to do and [they] [didn’t] engage very well.” Father asserts that the court’s characterization of Brother-in-Law’s testimony is inaccurate, and he points to a different statement Brother-in-Law made indicating that the children did not like the visits because “it interrupt[ed] their schedule.” While it’s true that Brother-in-Law said that the visits interrupted the children’s schedule, the record also shows that he testified that the children were “not very engaged” during visits but “[t]hey underst[ood] that’s what they [were] supposed to do, and so they [attended], begrudgingly sometimes, but they [were] there.” We fail to see how the juvenile court’s omission of Brother-in-Law’s additional statement that the visits interrupted the children’s schedule somehow renders the court’s finding erroneous.

¶111 Third, Father challenges the court’s statement that Noah testified that he would not feel “safe” at home. Father argues that this statement is erroneous because, as he sees it, Noah later “retracted that statement” and testified that he “didn’t mean to say safe.” Father then directs us to the portion of Noah’s testimony he believes supports his position. At this point in his testimony, Noah was being asked about the circumstances surrounding Oldest Sister’s departure from Parents’ home. He was specifically asked what he meant by his statement that she left because it “wasn’t safe.” Noah then clarified that he “probably didn’t mean to say safe” and that what he meant to convey was that Oldest Sister had gone through similar experiences to his own in living with Parents and that was the reason she left. But Noah’s statement that he did not mean to say that Oldest Sister left because it was not safe is not a retraction of his earlier statement that it was his personal belief that Parents’ house “wasn’t a safe environment.” Father mischaracterizes the record on this point and has fallen far short of persuading us that the court’s finding on this issue was clearly erroneous.

¶112 Finally, Father challenges the court’s finding that Brother-in-Law testified that the children “stopped hoarding food in their bedrooms.” Father argues that the actual testimony was about “hiding” food—not “hoarding” food—and asserts that there was no evidence that the children were malnourished or underfed while in Father’s care. We do not see a significant difference, in this context, between “hiding” food and “hoarding” food—however characterized, there is no question that the children secreted food in their bedrooms; Brother-in-Law explained that the children were “afraid to ask for more food” so they would take extra snacks to their bedrooms and “store” the food for later. Under these circumstances, we do not consider the court’s characterization of the evidence to have been clearly erroneous.

¶113 Accordingly, we reject each of Father’s challenges to the juvenile court’s factual findings.

  1. Best Interest/Strictly Necessary

¶114 Finally, we address Parents’ various challenges to the court’s conclusions that termination of their rights was strictly necessary to promote the best interest of Hannah and Noah. Both Parents raise a direct challenge to the substance of the court’s decision. In addition, Mother raises additional issues regarding the court’s handling of the GAL’s rule 59 motion. We first discuss Father’s substantive challenge, and then separately discuss Mother’s two arguments.

  1. Father’s Claim

¶115 Before the rights of any parent are terminated, the party seeking termination must establish (1) that “at least one of the enumerated statutory grounds for termination [is] present” and (2) that the “termination of parental rights [is] in the best interest of the affected children.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (quotation simplified), cert. granted, Jan. 25, 2024 (No. 20230877). Parents do not challenge the juvenile court’s determination that sufficient statutory grounds for termination are present, but they do challenge the court’s conclusion that termination of their rights is in the children’s best interest.

¶116 The best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of the circumstances” of a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified); see also In re H.F., 2019 UT App 204, ¶ 14, 455 P.3d 1098 (“The best-interest test is broad, and is intended as a holistic examination of all the relevant circumstances that might affect a child’s situation.” (quotation simplified)).

¶117 Our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Utah Code § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the best-interest inquiry that comprises the second part of the termination test. See id. ¶ 76 (“[A]s part of [the best-interest] inquiry, a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest.”). And our supreme court has noted that

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less-permanent arrangements might serve the child’s needs just as well.

Id. ¶ 67 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. ¶ 66.

¶118 In this case, the court seriously considered one non-termination option: imposing a permanent custody and guardianship arrangement in favor of Oldest Sister and Brother-in-Law. However, for various reasons, the court concluded that this option was not in the children’s best interest, and therefore it ordered termination of Parents’ rights. Parents each challenge the court’s conclusion in this regard.

¶119 With regard to Father, the court stated that it did “not find this alternative [of permanent custody and guardianship] to be in the children’s best interest,” and it offered “[a] couple of examples” to “illustrate the basis for this decision.” First, the court pointed to both Psychiatrist and Branch President, and noted that they had each found Father’s behavior to be so aberrant that they had taken action they’d never before taken: they sent letters to DCFS or to the court indicating their belief that Father was a danger to the children. Second, the court raised a concern about Father retaining residual parental rights, noting that, under a permanent custody and guardianship arrangement, Father “would still be in the orbit of” Hannah and Noah and could “assert[] his will as to basic medical and otherwise personal decisions in the care of the children.”

¶120 Father challenges the court’s best-interest determination, and he makes two arguments, one categorical and one fact-specific. First, Father asserts that parental rights can never be terminated where children are in a kinship placement, as these children are here with Oldest Sister. We reject this position. No Utah statute mandates this position, and we have never so held. See In re A.H., 2022 UT App 114, ¶ 49, 518 P.3d 993 (“We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights.”), cert. granted, 525 P.3d 1279 (Utah 2023). To be sure, “[i]f there exists a completely appropriate kinship placement through which the family can remain intact, the ‘strictly necessary’ showing becomes significantly harder to make.” Id. But such a showing is not impossible; indeed, staking out the categorical position Father advocates makes no sense in this context. It does not take much imagination to think of situations in which a parent’s relationship with a child is so harmful and abusive that it is strictly necessary, if the child’s best interest is to be promoted, to permanently sever that relationship, regardless of whether the child is placed with a relative. We therefore reject Father’s assertion that a parent’s rights can never be terminated if the children are placed with a relative.

¶121 Second, Father takes issue with the court’s residual rights concern. Here, Father points out that, in a permanent custody and guardianship situation, he would retain only four residual rights and duties: “(i) the responsibility for support; (ii) the right to consent to adoption; (iii) the right to determine the child’s religious affiliation; and (iv) the right to reasonable parent-time unless restricted by the court.” See Utah Code § 80-1-102(70)(a). Because the first of these is a duty and the last of these can be restricted by the court, Father asserts that we need be concerned only with the second and the third: Father’s right to consent to adoption and his right to determine the children’s religious affiliation. Father asserts that his residual rights would therefore not allow him to “assert his will” with regard to “basic medical and otherwise personal decisions,” as the juvenile court stated.

¶122 We acknowledge Father’s point, and we note our own recently expressed concern that juvenile courts may, in many cases, be overly concerned about parents retaining residual rights where permanent custody and guardianship arrangements are imposed. See, e.g.In re A.H., 2022 UT App 114, ¶ 55 (questioning “whether—in many cases . . . —a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it”); In re D.S., 2023 UT App 98, ¶¶ 23–24 (explaining why that case was “not one of those cases” in which “fear of a parent’s residual rights might reasonably counsel in favor of terminating” a parent’s rights).

¶123 But we also note, again, that we review best-interest determinations “deferentially,” and we overturn them only if the 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.” In re D.S., 2023 UT App 98, ¶ 15 (quotation simplified). On a couple of recent occasions, we have reversed juvenile courts’ best-interest/strictly-necessary decisions, even applying this deferential standard, because in our view “the evidence presented at trial did not constitute clear and convincing evidence that termination of [the parents’ rights] would be in the best interest” of the affected children. See In re A.H., 2022 UT App 114, ¶ 38; see also In re D.S., 2023 UT App 98, ¶ 31 (stating that, “[i]n the end, the facts of this case simply don’t add up to strict necessity”). But in other situations—like this one, for the reasons we discuss—the facts as presented at trial lend themselves to more than one possible conclusion. In such cases, our somewhat deferential standard of review will lead us to affirm, because either result will be supported by the facts of the case and will be within the discretion of the court.

¶124 In this vein, we draw an illustrative contrast between the facts of this case and the facts of In re D.S. In that case, the father was incarcerated, and he conceded that he was unable to care for his children and that therefore statutory grounds existed for termination of his parental rights. See 2023 UT App 98, ¶ 13. But he nevertheless resisted termination, asserting that it was not in the children’s best interest for that to occur. Id. ¶ 15. He had maintained regular virtual visits with the children throughout his incarceration—visits that had gone fairly well, although the children sometimes were bored during the visits— and he expressed a desire to “have a stronger relationship with” his children upon his release. Id. ¶ 11. The children were placed with the father’s own mother, who wanted to adopt them. Id. ¶¶ 9, 14. The juvenile court ordered the father’s rights terminated because it viewed adoption by the paternal grandmother as offering “stability,” and because it believed that adoption was necessary to “protect” the children “from [the father’s] desire to have ongoing and frequent visitation” after his release. Id. ¶¶ 13– 14.

¶125 We reversed the termination order. We noted that “there is no indication that [the father’s] continuing relationship with [the children] is harmful to them, rather than merely perhaps inconvenient.” Id. ¶ 24. In particular, we noted that there were no allegations of abuse or neglect regarding the father, and that the children had been “found only dependent—not abused or neglected—as to him.” Id. And we observed that, given “the absence of a ‘harmfulness’ component” to the father’s relationship with the children, there was “no basis for the juvenile court’s view that [the children] need ‘protections against [the father’s] commitment for increased and continued visitation.’” Id. ¶ 27. Relatedly, we noted the absence of any evidence that the father and the grandmother had “the sort of relationship where [the father] would be likely to exercise undue control over custody and care decisions in a guardianship arrangement.” Id. ¶ 32.

¶126 Finally, we placed “almost no stock in” the juvenile court’s reference to the desires of the children, for two reasons. Id. ¶ 29. First, the children were quite young—eleven and six—and the court had made no determination that they were old enough to offer a meaningful opinion as to the differences between adoption and guardianship. Id. Second, and more substantively, “the trial testimony did not support any finding on this issue more specific than that [the children]—quite understandably— wanted to remain in [their grandmother’s] care.” Id. ¶ 30. In particular, “no witness offered any testimony that could support a finding that either of [the children] actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption.” Id.

¶127 In this case, by contrast, the operative facts are quite different. First, and most importantly, there is a significant “harm” component to this case that was entirely absent in In re D.S. Here, the juvenile court found—after a lengthy adjudication trial—that all four minor children had “been emotionally abused” in a “continuing pattern of emotional maltreatment” by Father and that this “ongoing abusive environment [had] emotionally damaged the children.” Father mounted no substantive appeal from these adjudicated facts, and he agrees that we must take those facts as they are. Moreover, Father failed to take advantage of any of the services provided to him to address his abusive behavior; indeed, the court found—in findings not appealed here—that Father had “made no efforts,” or “only token efforts,” to address and eliminate “the issues of emotional abuse which exist in the home.” At the conclusion of the termination trial, the juvenile court therefore had every reason to believe that Father— if allowed a continuing relationship with the children—would continue his abusive behavior just as he had in the past. Under the particular circumstances of this case, the juvenile court’s concern about residual rights was entirely justified.

¶128 Second, given the emotional abuse issues present here, there is also good reason to believe that Father—if allowed to retain residual rights—would leverage the fact that he still had parental rights to attempt to exercise undue control over custody and care decisions, and would not just limit his role to consenting to adoption and any change in religious affiliation. In the past, Father had attempted to exercise his domineering ways over Oldest Sister, even once “backhand[ing]” her when, as an adult, she declined his demand to clean his house during a visit. And the incident involving Father’s attempt to interfere with Chloe’s medical appointment—even after removal—is well-documented and has already been discussed. We therefore view the court’s finding regarding Father’s propensity to interfere in custody and care decisions as entirely supported by the record here.

¶129 Finally, the court in this case had strong evidence of what the children’s individual desires were. Unlike in In re D.S., all four of the children here, by the conclusion of the trial, were at least fourteen years old, and all of them were able to articulate clear opinions about what their desired outcome was. And all of them told the court, in no uncertain terms, that they wanted to be adopted by Oldest Sister and that they did not want to have any relationship with Father.[14] As noted below, the juvenile court was to give the children’s desires in this regard “added weight.” See Utah Code § 80-3-409(15).

¶130 For all of these reasons, then, we see no reversible error in the juvenile court’s conclusion that, in this case, it was in the children’s best interest for Father’s parental rights to be terminated. Such a decision was within the discretion of the juvenile court and was supported by the record.

  1. Mother’s Arguments

¶131 With regard to Mother, the court initially declined to terminate her rights, instead imposing a permanent custody and guardianship arrangement in favor of Oldest Sister. After consideration of the GAL’s rule 59 motion, however, the court changed course and terminated Mother’s rights along with Father’s, concluding that it had failed to give the proper weight to the children’s stated wishes for adoption.

¶132 Mother challenges the court’s termination order on two grounds. First, she asserts that the court erred by allowing the GAL to submit evidence, in connection with the rule 59 motion, of certain post-trial events. Second, she mounts a substantive challenge, similar to Father’s, to the court’s conclusion that termination of her parental rights was strictly necessary to promote the children’s best interest. We discuss these two arguments in turn.

1

¶133 After oral argument on the GAL’s rule 59 motion, the court allowed the GAL to submit a “Report and Recommendation” that included an affidavit from Brother-in-Law describing events that had occurred after the termination trial. Mother believes that the court erred by considering this “new evidence” in reaching its decision to terminate Mother’s parental rights. We take Mother’s point that evidence of post-trial proceedings should ordinarily play no role in considering whether to grant a new trial. See In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (“A motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial . . . .” (quotation simplified)). But even assuming, for the purposes of the argument, that the court erred by allowing the GAL to submit this evidence, any such error was harmless here because there is no indication that Brother-in-Law’s affidavit played any role in the court’s decision.

¶134 In its ruling granting the GAL’s motion, the court included an introductory paragraph informing the parties that, before making its decision, it had “review[e]d” rule 59, “the filings and arguments of the parties,” the “prior testimony from the termination trial,” and its “original findings and order.” The court made no specific mention of Brother-in-Law’s post-argument affidavit. And later in its order, when setting forth the actual basis for its decision, it explained that it was amending its initial order because “the children’s wishes or voice were not given proper weight” as mandated by governing statute. It noted again that it had reviewed its own “previous findings and conclusions” as well as “the trial testimony and exhibits,” especially the children’s testimony in which they were “direct in seeking to be adopted” by Oldest Sister. In explaining the substance of its decision, the court made no mention at all of any post-trial events or of Brother-in-Law’s affidavit, and it explained that the basis for its decision rested on entirely different grounds.

¶135 Under these circumstances, any error on the part of the court in allowing the submission of evidence of post-trial events did not affect the court’s grant of the GAL’s rule 59 motion. We therefore see no basis for reversal of the court’s rule 59 decision in the arguably improper submission of Brother-in-Law’s affidavit. See State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237 (“We do not reverse a trial court for committing harmless error.”).

2

¶136 Next, Mother challenges the substance of the court’s decision to terminate her parental rights. Here, we reach the same conclusion we reached in considering Father’s similar challenge: while the juvenile court could potentially have imposed a permanent custody and guardianship arrangement on these facts, we perceive no reversible error in its conclusion that termination of Mother’s rights was strictly necessary to promote the children’s best interest.

¶137 As an initial matter, the court correctly interpreted the statutes governing a child’s stated desires. Under Utah law, “if the minor desires an opportunity to address the juvenile court or testify,” the court “shall . . . allow the minor” to do so. Utah Code § 80-3-108(4)(a)(ii). Moreover, when “determining whether termination is in the best interest of the child,” the court should consider the relevant factors “from the child’s point of view.” Id. § 80-4-104(12)(b). The juvenile court heard from Hannah and Noah, and thereafter correctly noted that they “were straightforward in stating that they wished to be adopted by” Oldest Sister and Brother-in-Law. The court also noted that, when a minor is fourteen years old or older, “the juvenile court shall give the minor’s wishes added weight” and, if the court’s decision “differs from a minor’s express wishes,” then the court must “make findings explaining” its decision. Id. § 80-3-409(15). At the time the court issued its ruling, Hannah was seventeen and Noah was fourteen; the statute thus required the court to give their wishes “added weight.” And that is exactly what the court did. After further analyzing “the testimony and evidence from the trial on the termination petition, with emphasis on the children’s testimony, and with further review” of the relevant statutes, the court was persuaded that its previous order should be amended and that Mother’s parental rights should be terminated. We perceive no error in the court’s procedure in this regard.

¶138 Mother further challenges the court’s substantive decision, and we acknowledge that, with regard to her, certain factors weigh perhaps more in her favor—or, at least, not as strongly against her—than they do with regard to Father. Her relationship with the children was less actively harmful than Father’s, and there is little if any evidence that she tended to attempt to manipulate her relationship with Oldest Sister. We therefore understand, at some level, the juvenile court’s initial inclination to keep her relationship with the children intact, even while terminating Father’s.

¶139 But ultimately, we agree with the State and the GAL that sufficient evidence exists in this record to support the juvenile court’s reconsidered determination to terminate Mother’s rights as well. There was evidence supporting the conclusion that Mother’s relationship with the children was harmful, even if to a lesser extent than Father’s. And Mother adamantly elected to remain in a relationship with Father, an adjudicated emotional abuser who refused to take steps to remedy the situation. We have previously noted that juvenile courts “have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” See In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529; see also In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (upholding a juvenile court’s finding that termination of a mother’s parental rights was in the children’s best interest where the mother continued to foster a relationship with the children’s abusive father, “had no intention of separating from” him, and “continue[d] to deny that any abuse occurred”), cert. denied, 63 P.3d 104 (Utah 2002).

¶140 And the children were adamant that they wanted to be adopted and that they wanted no continuing relationship with Parents, a consideration to which the court was statutorily obligated to give “added weight.” See Utah Code § 80-3-409(15). Mother appears to recognize that the juvenile court’s decision came down to a “weighing of factors,” asserting in her appellate brief that the court “performed an inappropriate weighing of factors.” While a different judge might have weighed the factors differently and opted to keep Mother’s relationship with the children intact, we cannot say that the juvenile court, on this record, committed reversible error by exercising its discretion in the opposite direction.

CONCLUSION

¶141 In sum, Parents have not carried their burden of demonstrating any violation of their constitutional rights. Parents have also not established that either of their trial attorneys provided ineffective assistance. Additionally, we perceive no clear error in any of the challenged factual findings. The juvenile court’s determination that termination of Parents’ parental rights was strictly necessary to advance the children’s best interest was supported by the record, and we perceive no reversible error in the court’s grant of the GAL’s rule 59 motion.

¶142 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Hannah and Noah are pseudonyms, which we elect to employ here to avoid continued and potentially confusing repetition of similar-sounding initials.

[2] In cases like this one, where parties are appealing the determination made following a termination trial, “we recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).

[3] Chloe and Felicity are also pseudonyms.

[4] All four children waived the clergy testimonial privilege to allow Branch President to testify at this and other proceedings throughout this matter.

[5] A second therapist also recalled this incident, later testifying that Father became “aggressive” and was yelling at Therapist about DCFS “framing his family” and how there was a “large conspiracy . . . brought on through DCFS” and “the State of Utah.”

[6] During later testimony, Father testified about the group therapy sessions and, specifically, about the issues he had with Therapist, and he attempted to explain his perception that Therapist did not have “the same values” as Father. When specifically asked whether he wanted a therapist who was a member of The Church of Jesus Christ of Latter-day Saints (LDS), Father stated that he doesn’t “just look at a person on an LDS basis.” He explained, instead, that he wanted the children to have a therapist who agreed with him on the “eternal values or principles” that he “believe[d] govern the universe.”

[7] Mother later asked the court to “set aside” her rule 34(e) plea and requested “that a new trial be ordered to address the allegations” in the State’s petition. See Utah R. Juv. P. 34(e). The basis for this request was that Mother claimed “she was not certain of what a [r]ule 34(e) proceeding involved and the resulting consequences.” The court denied Mother’s request, stating that Mother had “affirmatively waived her right to a trial” and that the court had “confirmed that she understood she was waiving her right to trial.” The court had even gone a step further and “had a colloquy specifically with [Mother] and her counsel wherein she indicated she understood” the implications of proceeding under rule 34(e) “and the resulting findings that would be made as a result of that course of action.”

[8] At the adjudication stage, Mother—the parent who was found to have neglected (as opposed to abused) the children—did not attempt to invoke this religious-based statutory exception. Nor does she invoke it here on appeal. Accordingly, as far as we are aware, this exception is not at issue in this case.

[9] 9. As noted, Parents do not challenge the determination that statutory grounds for termination of their parental rights were present in this case. But Parents do assert, in their briefs, that the State interfered with their “right to make value-based decisions regarding the upbringing” of the children. This argument is not independently developed, and—especially in light of Father’s attorney’s concession at oral argument—we do not interpret it as a frontal attack on the juvenile court’s adjudication findings. However, to the extent it is intended as such, we reject that challenge not only because it is inadequately briefed but also because any challenge to the adjudication findings needed to have been made in an appeal from the adjudication order. See In re D.G., 2014 UT App 22, ¶ 5, 319 P.3d 768.

[10] In addition to these two arguments, Mother complains—in passing, during the “constitutional” section of her brief—that the court improperly “utiliz[ed]” her “continued association with Father as evidence that she had failed to make adequate effort to adjust her conduct to substantially correct the circumstances that led to” the children’s removal. But Mother does not develop this argument; in particular, she makes no attempt to explain how this argument might have constitutional dimension. As noted, infra ¶ 139, it is not improper for a juvenile court to take into account, in making a termination decision, the fact that a parent insists on continuing a relationship with an abusive person.

[11] The rule also seemingly had little to no impact on Mother’s therapy sessions with the children. Mother testified that she only remembered being told about the children’s rules during the first two therapy sessions and, from her recollection, the children “brought all those things up” anyway.

[12] We also wonder whether there was any state action involved here at all, given that the rule in question was envisioned and requested by the children themselves. See In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215 (stating that the constitution protects “against state action,” not against “the actions of private parties”). But this issue was not briefed by the parties, and we therefore offer no opinion on the subject.

[13] While Parents couch their claim, at times, in the language of “reasonable efforts,” we note that their claim is not a traditional challenge to a juvenile court’s reasonable efforts determination. In particular, Parents do not directly argue that either of the two things they challenge—the requirement that they participate in family therapy with Therapist or the no-talking-about-religion rule—were not part of a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified).

[14] In this case, Parents make no argument that any of the children were too young, or were for any other reason incompetent, to offer trial testimony about their desires regarding placement, adoption, and their ongoing relationship with Parents.

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House Bill 131 (HB0131 (utah.gov)), entitled “Clergy Child Abuse Reporting Requirements”

Today’s blog post reviews House Bill 131 (HB0131 (utah.gov)), entitled “Clergy Child Abuse Reporting Requirements”. It proposes changes to Utah Code § 80-2-602, the law governing when members of the clergy are and are not required to report child abuse.

Currently, Utah Code § 80-2-602(1) provides, in pertinent part regarding clergy and child abuse reporting:

“[I]f a person . . . has reason to believe that a child is, or has been, the subject of abuse or neglect, or observes a child being subjected to conditions or circumstances that would reasonably result in abuse or neglect, the person shall immediately report the suspected abuse or neglect to the division or to the nearest peace officer or law enforcement agency.” (§ 80-2-602(1)

So far, so good.

(3) Subject to Subsection (4), the reporting requirement described in Subsection (1) does not apply to:

(a) a member of the clergy, with regard to any confession made to the member of the clergy while functioning in the ministerial capacity of the member of the clergy and without the consent of the individual making the confession, if:

(i) the perpetrator made the confession directly to the member of the clergy; and

(ii) the member of the clergy is, under canon law or church doctrine or practice, bound to maintain the confidentiality of the confession[.]

*****

(4)

(a) When a member of the clergy receives information about abuse or neglect from any source other than confession of the perpetrator, the member of the clergy is required to report the information even if the member of the clergy also received information about the abuse or neglect from the confession of the perpetrator.

(b) Exemption of the reporting requirement for an individual described in Subsection (3) does not exempt the individual from any other efforts required by law to prevent further abuse or neglect by the perpetrator.

H.B. 129 would, if passed into law, include this new provision (please note that the numbers out to the side are the line numbers in H.B. 131):

58          (4) (a) Notwithstanding the exemption in Subsection (3)(a), a member of the clergy

59     may report suspected child abuse or neglect.

I have two major concerns about such a provision.

1. Confession, as they say, is good for the soul. It is. Why? Knowing that confession to clergy—and knowing that confession is and shall remain strictly confidential (private)—is often the only thing that summons a sinner’s courage to confront and admit his/her sins. The freedom to confess (to clergy) without fear of arrest or incarceration helps some who are tormented by their sins confront them. Through confession, clergy serve to help the sinner (whose sins are also often crimes) take the first step toward repentance. Take that absolute confidentiality away, and the value of confession is destroyed. Many who would have otherwise confessed will—knowing confession is no longer strictly confidential—not confess and thus not work their way to being publicly accountable. No one benefits from that.

Some well-meaning clergy might believe that taking (or even eliciting) a confession and then reporting the sinner to law enforcement is “for the sinner’s own good,” but that kind of betrayal of trust would then lead to distrusting clergy and then to avoiding and rejecting the very spiritual care we so desperately need both individually and as a society.

2. I’ve been a lawyer for a long time now (27 years, to be exact, as of the date I write this post), and while I don’t claim to know everything, I have experienced “mays” becoming “shalls”; judges and juries go from “I acknowledge that you didn’t have to report” to “I can’t believe you didn’t report!” or “Just because you weren’t required to report does not mean in this instance that you shouldn’t have; have you no decency!” I can easily foresee situations in which a clergy member keeps a confession confidential (as is his/her religious and moral duty) and then be publicly humiliated for it, sued civilly for it, and yes, even somehow convicted criminally for it (where there’s a will, there’s a way). It’s hard enough to be a clergy member as it is. It’s hard enough to encourage and inspire people to repent and better themselves. Eliminate the strictly confidential status of the confession and the essential nature of confession itself is eliminated. When it comes to reporting abuse “clergy may” turns into “clergy shall”. That would be disastrous. If clergy must rat out the sinners in their congregations, then those whom clergy could help the most will avoid and reject the clergy (see above).

To those who will say, “Have you no concern for the abuse victims?,” the answer is clear (hard to accept, perhaps, but no less clear): there is a greater interest than that of the individual victims at stake here. Confidential confession to clergy helps clergy to persuade sinners to recognize and do what is right. We are all sinners to some degree. Diluting the confidentiality of the confession will cause potential penitents to remain in the shadows.

Priest-penitent privilege: Removing it doesn’t help children | Opinion – Deseret News

Utah Family Law, LC | divorceutah.com | 801-466-9277

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House Bill 81 ” Domestic Violence Modifications”

Today’s blog post treats another proposed law that is up for consideration during the 2024 Utah legislative session: House Bill 81 (HB0081 (utah.gov)), entitled “Domestic Violence Modifications”.

It would add the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances. ‘Not sure how often bodily substances get propelled between spouses and cohabitants, not sure this was a gaping hole in our domestic violence law, and knowingly propelling bodily substances at others is already a separate crime (a class B misdemeanor, see Utah Code § 76-5-102.9), so I see no pressing need for this legislation. Do you?

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Allegations of Child Abuse vs. Allegations of Parental Alienation

Here’s a very, very short news report on the subject of when allegations of child abuse are countered with allegations of parental alienation:

 https://www.youtube.com/watch?v=44hJ8zWRrik

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I welcome sincere and rational comments on this very important subject.

There are no easy answers to this question, but there is one idea that will help: interview the child (when the child is a competent witness). Even if the interview raises more questions than provides answers, inquiring with the child does more than simply make sense; to me, it’s judicial malfeasance not to inquire with the child, as the child has a greater stake in the child custody and parent-time awards than anyone else. I have yet to have the child interview (in the shamefully rare cases when a child is either interviewed by the judge or in a deposition) do the child more harm than good, and when the child is articulate and credible, the child’s testimony is usually the most (by an order of magnitude) compelling and persuasive evidence.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Encourage Your Legislators to Vote Against H.B. (House Bill) 272 (2024 Utah General Legislative Session)

According to the “General Description” of H.B. 272, what’s not to like?:

Highlighted Provisions:

This bill:

▸ defines terms;

▸ in certain proceedings involving child custody:

  • specifies requirements for the admission of expert evidence; and
  • requires a court to consider evidence relating to domestic violence or abuse by a parent;

▸ imposes certain requirements and limitations regarding orders to improve the relationship between a parent and a child;

▸ requires the state court administrator to make recommendations regarding the education and training of court personnel involving child custody and related proceedings;

▸ requires that certain protective order proceedings comply with specific standards; and

▸ makes technical and conforming changes.

H.B. 272’s intentions are laudable, but the implementation, if H.B. 272 was made law, would be disastrous (and I choose my words carefully).

We don’t need more laws to prevent domestic violence and child abuse, reason being that more laws never have prevented and never will prevent (because they cannot prevent) domestic violence and child abuse.

Can you identify a single domestic violence victim who wouldn’t have been victimized but for a lack of legislation? Laws in the abstract don’t protect anyone. It’s the fair, effective, creation and enforcement of (needed) laws that protects. Passing more laws cannot guarantee anyone’s safety; laws and court orders don’t stop fists and bullets.

There are real DV and child abuse cases in the courts, but there are far too many fake ones in the courts (more than you likely imagine), and everyone knows why courts are afraid to acknowledge and condemn it: because they’re afraid they’ll be branded as “insensitive” and “uncaring” about DV and child abuse. So judges and commissioners who don’t want to “get it wrong,” overcompensate by “finding” DV and abuse that isn’t there. That way, nobody can claim the courts don’t care, and if innocent people go to prison and become pariahs as a result, “well, better him/her than me.” That’s not justice. That’s not rule of law.

Regarding the proposal in H.B. 272 for amending Section 30-3-10, determining credibility is the sole province of the court. Thus, the problem with “a credible allegation of child abuse” is that few courts can resist the temptation to err on the side of caution by treating virtually any allegation of child abuse as “credible”. To err on the side of caution is still error. Worse, it’s error knowingly committed for the sake of protecting the commissioner or judge from being criticized (or worse) for “getting it wrong.” See the article: Erring on the Side of Hidden Harm.

When judges are told “you need to do a better job identifying protecting DV and child abuse victims,” you’re telling judges to do a job that is not theirs. Overwhelmed judges will (unfortunately) respond to such unfair burdens simply by “finding” more DV and child abuse victims, and then say to the legislature, “Satisfied now?” That benefits no one. It erodes public trust in the courts.

There is a tremendous volume of false DV and child abuse claims. Indeed, I deal with more false claims than real claims at the district court level as a divorce and family law attorney. If you feel judges must “get more training” in the field of DV and child abuse, then requiring them to learn how better to identify real DV and child abuse inherently requires requiring them to learn how better to identify fake DV and child abuse claims.

It is unfair to demand of judges that they compensate for what the litigants might fail to do, i.e., gather and present the evidence necessary to prevail.

“More DV and abuse detection training for judges” sounds good but isn’t. If the state can’t afford more and better judges (and we need to accept that, if it can’t), “more DV and abuse training” is a counterproductive half-measure. If the legislature wants to spend more money on judge training, then spend that money helping judges learn and develop better command of the law, of evidence, and of sound adjudication.

The idea that state district court judges “need more training” in every particular dispute they hear is a problem generally. Our judges cannot become experts on every area of law, nor are they expected to be. All that a judge needs to do competently (and can be expected to do competently) is weigh the evidence presented to him/her correctly and apply the facts to the law that governs the case correctly.

We could “protect kids” from abuse by locking up every parent–that way they can’t abuse their kids. Of course, that way they can’t love and take care of their kids either. We will never solve DV and child abuse with more laws, but we will victimize the innocent if we howl for more witch hunt lawmaking.

Draconian creation and/or enforcement of laws like those proposed by H.B. 272 “protects” some by violating the rights of others. As does legislating and adjudicating on a “better safe than sorry” basis (regardless of whether it’s sincere), instead of on the facts (including the lack thereof). Experts can be helpful, but most cause more confusion than they dispel. Child custody cases today don’t suffer from a lack of expert input, rarely from a lack of needed or even warranted expert input, competent expert input, or justice-promoting expert input. “Expertise” on abuse (whatever this ever-expanding definition of “abuse” is coming to mean) is too subjective and pseudoscientific. This is why HB 272 would ultimately do more harm than good.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why do attorneys tell people not to talk to the police? What if I’m innocent or just want to help them?

Let’s discuss this principle in the context of DUIs, but the principle applies in any situation in which you could be questioned in regard to any crime.

What is hard for many people to believe is that quite often (more often than decent people want to believe) the police aren’t in fact trying to catch drunk drivers (‘nothing wrong with catching drunk drivers—more power to them for it) but trying to make bogus arrests for DUI, so that the city can collect the fines and so that officers can advance their careers (‘nothing right about that).

You need to know that while all decent and law-abiding people want to help decent and law abiding law enforcement officers do their jobs well, not all officers are decent and law abiding. Unfortunately, 1) it’s impossible to distinguish a good officer from a corrupt one when you’re being questioned, until it’s too late; and 2) corrupt officers exploit innocent people by getting them to talk. This is why the innocent don’t talk to the police (about anything, not just at traffic stops): the more the innocent talk (and the more guilty talk, but that’s not the point here), the more rope they give corrupt law enforcement officers to twist and to hang them with.

Professor James Duane puts it even better here (these are excellent videos, very engaging, and the advice could literally protect you and your loved ones from being abused by corrupt police officers and prosecutors):

https://youtu.be/d-7o9xYp7eE?si=V5baCl5dMTsxgKZ9

https://youtu.be/-FENubmZGj8?si=4Wgg71H5XbNIBsEZ

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What Good Parents Need to Know About Child Custody Disputes with an Evil Parent

You hear and read on attorney websites stuff like, “Navigating child custody arrangements during divorce can be challenging.” That’s not the half of it. Child custody disputes with an evil parent are nastier and harder (and orders of magnitude more expensive) than most parents expect or can even imagine. I’m not exaggerating. I am really not exaggerating. Really, I am not exaggerating. Here are some crucial tips to consider for a smoother process.

  • If there is no valid child custody order issued by a court, the police cannot help you “enforce” your “child custody rights”. This is because you have no right to control what the other parent does with the children when it comes to exercising custody. The other parent can deny your requests to spend time with the children. He/she can even deny your requests to call the children on the phone or chat with them over video.

 

o   Even if there is a court order that clearly identifies the child custody and parent-time orders, it’s only as good as the will of the courts and the police to enforce it. Many police departments will either outright refuse to assist you in enforcing the order or will act as if “I can’t understand what the order means, so I can’t help you.”

  • Defend your reputation, your good name, and your parental fitness with everything you have.

o   Courts are afraid of making a mistake when they issue child custody and parent-time orders. Evil parents exploit this fear by accusing innocent, loving parents of terrible traits and acts, so that the court will “protect” the children from them by awarding custody to the other parent and/or restricting parent-time. Mere accusations—if they’re scary enough and skillfully spun—can be enough to force a court’s hand.

o   What kinds of accusations? Abuse! Abuse! Abuse! Physical abuse, sexual abuse, emotional abuse, and substance abuse are the most “successful”.

o   If you are accused wrongfully, defend yourself with everything you have. Point out the dearth of support for the allegations. If you can, get overwhelming amounts of proof in your favor. Live as perfect life as you possibly can. Be as perfect a parent as you can. Sure, it’s unfair unrealistic, but don’t expect the court to be sympathetic with you (especially if you’re a father). Don’t give the court any way to take the path of least resistance, to act “out of an abundance of caution,” or to indulge “better safe than sorry” thinking.

  • Document everything pertaining to the child custody and parent-time awards. Gather as much proof as you possibly can in support of your parental fitness, of your efforts to be there for your children, to spend time with them, to take care of them (feed them, bathe and clothe them, help with homework, play with them, exemplify good morals and values, etc.), so that the court cannot deny your requests without looking biased, ignorant, and/or incompetent.

o   Know what factors the court must consider when making the child custody and parent-time awards, then ensure you satisfy every single one of them beautifully (and if you cannot satisfy them all, explain why, and why that should not disqualify you from being awarded as much custody and parent-time as is in the best interest of the children

  • Here are the factors considered in Utah:
  • In a nutshell: the child’s needs and the parent’s ability to meet them
  • In total:

Utah Code § 30-3-10

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent;

–          the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s:

–          physical needs;

–          emotional needs;

–          educational needs;

–          medical needs; and

–          any special needs;

–          the parent’s capacity and willingness to function as a parent, including:

–          parenting skills;

–          co-parenting skills, including:

(A) ability to appropriately communicate with the other parent;

(B) ability to encourage the sharing of love and affection; and

(C) willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          ability to provide personal care rather than surrogate care;

–          in accordance with Subsection (10), the past conduct and demonstrated moral character of the parent;

–          the emotional stability of the parent;

–          the parent’s inability to function as a parent because of drug abuse, excessive drinking, or other causes;

–          whether the parent has intentionally exposed the child to pornography or material harmful to minors, as “material” and “harmful to minors” are defined in Section 76-10-1201;

–          the parent’s reasons for having relinquished custody or parent-time in the past;

–          duration and depth of desire for custody or parent-time;

–          the parent’s religious compatibility with the child;

–          the parent’s financial responsibility;

–          the child’s interaction and relationship with step-parents, extended family members of other individuals who may significantly affect the child’s best interests;

–          who has been the primary caretaker of the child;

–          previous parenting arrangements in which the child has been happy and well-adjusted in the home, school, and community;

–          the relative benefit of keeping siblings together;

–          the stated wishes and concerns of the child, taking into consideration the child’s cognitive ability and emotional maturity;

–          the relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child; and

–          any other factor the court finds relevant.

Utah Code § 30-3-10.2 (when seeking a joint custody award, and “joint custody” does not necessarily mean “equal time”; in Utah means that a parent exercises no less than 111 overnights with the children annually)

–          whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal custody or joint physical custody or both;

–          the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

–          co-parenting skills, including:

–          ability to appropriately communicate with the other parent;

–          ability to encourage the sharing of love and affection; and

–          willingness to allow frequent and continuous contact between the child and the other parent, except that, if the court determines that the parent is acting to protect the child from domestic violence, neglect, or abuse, the parent’s protective actions may be taken into consideration; and

–          whether both parents participated in raising the child before the divorce;

–          the geographical proximity of the homes of the parents;

–          the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal custody or joint physical custody or both;

–          the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;

–          the past and present ability of the parents to cooperate with each other and make decisions jointly; and

–          any other factor the court finds relevant.

 

Utah Code Section 30-3-34 (this is for determining parent-time, but the factors are equally relevant to the child custody award)

–          whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;

–          evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, a parent, or a household member of the parent;

–          the distance between the residency of the child and the noncustodial parent;

–          a credible allegation of child abuse has been made;

–          the lack of demonstrated parenting skills without safeguards to ensure the child’s well-being during parent-time;

–          the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;

–          the preference of the child if the court determines the child is of sufficient maturity;

–          the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;

–          shared interests between the child and the noncustodial parent;

–          the involvement or lack of involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;

–          the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;

–          a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;

–          the minimal duration of and lack of significant bonding in the parents’ relationship before the conception of the child;

–          the parent-time schedule of siblings;

–          the lack of reasonable alternatives to the needs of a nursing child; and

–          any other criteria the court determines relevant to the best interests of the child.

Utah Code Section 30-3-35.2 (when seeking an award of equal physical custody)

–          A court may order the equal parent-time schedule described in this section if the court determines that:

–          the equal parent-time schedule is in the child’s best interest;

–          each parent has been actively involved in the child’s life; and

–          each parent can effectively facilitate the equal parent-time schedule.

–          To determine whether each parent has been actively involved in the child’s life, the court shall consider:

–          each parent’s demonstrated responsibility in caring for the child;

–          each parent’s involvement in child care;

–          each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;

–          each parent’s assistance with the child’s homework;

–          each parent’s involvement in preparation of meals, bath time, and bedtime for the child;

–          each parent’s bond with the child; and

–          any other factor the court considers relevant.

–          To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:

–          the geographic distance between the residence of each parent and the distance between each residence and the child’s school;

–          each parent’s ability to assist with the child’s after school care;

–          the health of the child and each parent, consistent with Subsection 30-3-10(6);

–          the flexibility of each parent’s employment or other schedule;

–          each parent’s ability to provide appropriate playtime with the child;

–          each parent’s history and ability to implement a flexible schedule for the child;

–          physical facilities of each parent’s residence; and

–          any other factor the court considers relevant.

o   Be a class act at all times in your dealings with the other parent, no matter how much mud is slung and no matter how uncooperative antagonistic the other parent is. All the goodwill you’ve built up over a lifetime can be discounted and dismissed in an instant with just one angry outburst (no matter how much the other parent had it coming)

o   You do not build yourself up as a parent by tearing or trying to tear the other parent down. Be as honestly complimentary of the other parent as you can. No, don’t deny serious defects and faults, but unless the other parent is truly a monster, don’t try to paint the other parent as one—it’s not only evil, but it can backfire.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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State v. Fowers – 2023 UT App 128 – violation of protective order

State v. Fowers – 2023 UT App 128

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellant,

v.

THOMAS FOWERS,

Appellee.

Opinion

No. 20220073-CA

Filed October 26, 2023

Fourth District Court, Provo Department

The Honorable Robert A. Lund

No. 201402484

Sean D. Reyes and Jeffrey D. Mann, Attorneys for

Appellant, assisted by law student Rebecca Barker[1]

Douglas J. Thompson, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1        Thomas Fowers’s ex-wife (Ex-Wife) is married to his adopted brother (Brother). A court issued a protective order directing Fowers not to “contact . . . or communicate in any way with [Ex-Wife], either directly or indirectly,” and not to “threaten to commit any form of violence against” her. Early one morning, Fowers called Brother’s phone three times in two minutes from an unrecognized number. The first two times, no one answered. The third time, Ex-Wife answered, and Fowers said, “You and that f***ing whore have it coming.”

¶2        Fowers was charged with violating the protective order. The district court declined to bind Fowers over and dismissed the charge, determining that there was “no evidence in the record to establish that Mr. Fowers . . . intentionally communicat[ed] either directly or indirectly to [Ex-Wife]” since “the statement itself clearly [was] directed at [Brother]” and Fowers did not tell Brother “to direct the comment to [Ex-Wife].” The State appeals, and we reverse.

BACKGROUND

¶3        Ex-Wife obtained a protective order against Fowers in August 2017. The order included a “No Contact Order” stating, “Do not contact, phone, mail, e-mail, or communicate in any way with [Ex-Wife], either directly or indirectly.” It also included a “Personal Conduct Order” stating, “Do not commit, try to commit or threaten to commit any form of violence against [Ex-Wife] . . . . This includes stalking, harassing, threatening, physically hurting, or causing any other form of abuse.”

¶4        One morning in July 2020, Brother’s phone received three calls between 4:57 a.m. and 4:58 a.m. from an unrecognized number. At the time of the first call, Ex-Wife and Brother “were, of course, sleeping.” As they awoke, they thought that maybe someone was calling for help related to a wedding they were to attend that day. When Ex-Wife answered the third call, she recognized Fowers’s voice saying, “You and that f***ing whore have it coming.”

¶5        Ex-Wife reported the calls to authorities, and Fowers was charged with one third-degree felony count of violation of a protective order with a domestic violence enhancement.

¶6        The district court held a preliminary hearing on the charge. The State presented evidence that Fowers had been served with the protective order. In addition to Ex-Wife, who testified about the phone calls, the deputy who received Ex-Wife’s report testified that he had checked the number from which the calls had been made against local records and found that the number was attached to Fowers. The deputy also said that he called the number and that, when he asked to speak to Fowers, the person who answered identified himself as Fowers. Additionally, the court accepted into evidence records of three prior convictions of Fowers’s for violating this protective order and a previous protective order because those convictions were “relevant to establish under evidence [r]ule 404 both knowledge by the defendant and intention.”

¶7        After the State presented its case, the court found “that the [S]tate ha[d] not met its burden.” The court explained:

[A]lthough the direct and circumstantial evidence establishes that Mr. Fowers made the call, the number that he called was his adoptive brother’s number, not the alleged victim’s number. . . .

[And] the statement itself clearly is directed at [Brother], not at [Ex-Wife]. He say[s] “you and that f’ing whore,” meaning that he’s directing his comment toward [Brother] and not [Ex-Wife] . . . . [W]hat is glaringly missing from the record here is any statement by Mr. Fowers to [Brother] to direct the comment to the alleged victim. Therefore, there is no evidence in the record to establish that Mr. Fowers intentionally violated this order by intentionally communicating either directly or indirectly to [Ex-Wife].

Based on those findings, I find that the [S]tate has not—even drawing inferences in the light most favorable to the [S]tate— . . . establish[ed] sufficient evidence[,] and I decline to bind the charge over.

The court dismissed the charge with prejudice, and the State now appeals.

ISSUE AND STANDARD OF REVIEW

¶8        The State contends that it presented evidence establishing probable cause that Fowers violated the protective order and that the district court therefore erred by not binding Fowers over. In essence, the State argues that the court applied the wrong legal standard by not viewing the evidence and all reasonable inferences that can be drawn from it in favor of the prosecution. A district court’s “decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings. As a result, in reviewing a bindover decision, an appellate court should afford the decision limited deference.” In re I.R.C., 2010 UT 41, ¶ 12, 232 P.3d 1040 (cleaned up). “Applying the wrong legal standard . . . will always exceed whatever limited discretion the [court] has in the bindover decision.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444.

ANALYSIS

¶9        Our supreme court has explained that the evidentiary threshold for bindover is a low bar:

Although the guarantee of a preliminary hearing is fundamental, the evidentiary threshold at such hearing is relatively low. As we have emphasized, a showing of “probable cause” entails only the presentation of evidence sufficient to support a reasonable belief that the defendant committed the charged crime. . . . To justify binding a defendant over for trial, the prosecution need not present evidence capable of supporting a finding of guilt beyond a reasonable doubt. Nor is the prosecution required to eliminate alternative inferences that could be drawn from the evidence in favor of the defense. All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.

State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (cleaned up). Here, the State needed to present “evidence sufficient to support a reasonable belief” that Fowers violated the protective order, id. (cleaned up), and the court was required to “view all evidence in the light most favorable to the prosecution and . . . draw all reasonable inferences in favor of the prosecution,” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (cleaned up).

¶10 A person commits the crime of violation of a protective order if the person “(a) is the respondent or defendant subject to a protective order . . . and (b) intentionally or knowingly violates that order after having been properly served” with it. Utah Code § 76-5-108(2). A person acts intentionally “when it is his conscious objective or desire to engage in the conduct.” Id. § 76-2-103(1). And a person acts knowingly “when he is aware of the nature of his conduct or the existing circumstances.” Id. § 76-2-103(2).

¶11 There is no dispute that Fowers was subject to the protective order at issue, and the State showed that Fowers was served with that protective order. Thus, the only issue before us is whether the State offered evidence supporting a reasonable belief that Fowers intentionally or knowingly violated the protective order. On this point, the State first argues that it put on evidence sufficient to establish probable cause that Fowers violated the No Contact Order portion of the protective order by “intentionally or knowingly contact[ing] Ex-Wife at least indirectly” because “[i]t was reasonable to infer that Fowers knew or intended that his contact and [message] . . . would be relayed to Ex-Wife.” The State then argues that Fowers’s statement “You and that f***ing whore have it coming” can also be reasonably interpreted as a threat of violence in violation of the Personal Conduct Order portion of the protective order. We agree with each of the State’s arguments.[2]

¶12      The State put on evidence establishing probable cause that Fowers intentionally or knowingly contacted Ex-Wife at least indirectly. In State v. Fouse, 2014 UT App 29, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014), this court affirmed a conviction for violation of a protective order where the defendant mailed envelopes to the victim’s sisters rather than to the victim, his estranged wife. Id. ¶¶ 4–7, 43. The victim was living with one of the sisters, and the other sister lived in the apartment next door. Id. ¶ 3. While some of the letters in the envelopes were addressed to the victim, others contained statements such as, “Please hold onto this. . . . [E]ven though I can’t send nor talk to my wife or kids[,] . . . writing sure does help.” Id. ¶ 4. Nonetheless, we reasoned that a factfinder “could readily infer that communication directed to or dealing with one’s ex-spouse, and sent to the ex-spouse’s siblings, will routinely and predictably be conveyed by the siblings to their family member.” Id. ¶ 40. And we noted, “Such an inference is particularly sound in this case, given the jury’s awareness that [the victim] and her sisters were close—in both senses of that term.” Id.

¶13 The same reasoning applies here. A factfinder could readily infer that calls Fowers placed to Brother or statements Fowers made to him would “routinely and predictably be conveyed” to Ex-Wife, Brother’s spouse, especially where a factfinder could reasonably infer that Brother and Ex-Wife were “close” “in both senses of that term.” Id. Indeed, a factfinder could infer that Fowers’s decision to call Brother just before 5:00 a.m.— a time when spouses could reasonably be assumed to be together—manifested his intent to catch Brother and Ex-Wife together. Therefore, we have no trouble concluding that the State’s evidence was sufficient to support a reasonable belief that Fowers, by calling Brother’s phone when he did, intentionally or knowingly contacted Ex-Wife directly or indirectly. Fowers did not need to explicitly direct Brother to communicate his message to Ex-Wife, and the court erred in suggesting as much.

¶14 The State also asserts that Fowers’s statement “You and that f***ing whore have it coming” can be reasonably interpreted as a threat of violence. We agree. In State v. Spainhower, 1999 UT App 280, 988 P.2d 452, this court recognized that the admittedly “vague and indirect” statement, “‘I’m going to get you,’ surely may connote a threat of bodily injury” because “among the many dictionary definitions of the verb ‘get’ are: ‘to bring to retribution, take vengeance on, KILL’ and ‘to strike with force, HIT.’” Id. ¶¶ 6– 7 (cleaned up). Likewise, the words at issue here, though perhaps similarly vague and indirect, could carry either a violent or a nonviolent meaning and must be interpreted by the factfinder in light of “the inferences to be drawn from the context in which the words were spoken.” Id. ¶ 7. And again, at the preliminary hearing stage, a court must “view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10 (cleaned up). Accordingly, at this stage, the court should have interpreted Fowers’s words to be capable of conveying, in context, a threat of violence.

CONCLUSION

¶15 The protective order’s No Contact Order forbade Fowers from contacting, phoning, mailing, e-mailing, or communicating in any way with Ex-Wife, either directly or indirectly. Its Personal Conduct Order forbade him from threatening violence against Ex-Wife. Plainly there is “reasonably believable evidence—as opposed to speculation—sufficient to” show that Fowers violated one or both of these provisions. State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. By not viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the State—and instead requiring a statement by Fowers to Brother to direct the comment at issue to Ex-Wife—the district court applied the wrong legal standard and exceeded “whatever limited discretion” it had in the bindover decision. Id. ¶ 7. We therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.


[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Fowers asserts that the State did not preserve “the arguments” it now makes on appeal because the prosecutor “did not raise [them] in a way that gave the district court the opportunity . . . to address [them].” “An issue is preserved by presenting it to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Vierig v. Therriault, 2023 UT App 67, ¶ 43, 532 P.3d 568 (cleaned up); see id. ¶ 44 (“Of note, issues must be preserved, not arguments for or against a particular ruling on an issue raised below. By contrast, new arguments, when brought under a properly preserved issue or theory, do not require an exception to preservation.” (cleaned up)).

Fowers is mistaken when he says that the State did not meet this preservation standard here. At the close of the preliminary hearing, the State referenced “paragraph 1 and 2 of the protective order”; identified those paragraphs as the Personal Conduct Order and No Contact Order respectively; and noted that they prohibited Fowers from “threatening [Ex-Wife] in any way” and from “communicating in any way with [Ex-Wife] either directly or indirectly.” The State then highlighted the evidence that Fowers “called the husband of [Ex-Wife] in the early morning hours when they would presumably be together and made a statement against her to [her] then husband,” which is the same evidence that the State emphasizes here. By presenting evidence and arguing below for bindover based on an alleged violation of both the Personal Conduct Order and the No Contact Order, the State gave the district court an opportunity to rule on the same questions we are now asked to rule on. So regardless of whether those questions are characterized as arguments or issues—and we express no opinion as to the proper characterization here— Fowers’s preservation argument fails.

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In re D.S. – 2023 UT App 98 – reversal of termination of parental rights

In re D.S. – 2023 UT App 98

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF D.S. AND K.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220956-CA

Filed August 31, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan

No. 1198250

Sheleigh A. Harding, Attorney for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and

John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 After a trial, the juvenile court terminated S.S.’s (Father) parental rights regarding his two children, D.S. and K.S. (collectively, the Children), concluding that it was in the best interest of the Children for them to be adopted by their paternal grandmother (Grandmother). Father appeals the court’s termination order, asserting that—under the precise circumstances presented here, where the Children are being placed with Father’s own mother and where permanent guardianship remains a viable option—termination of his rights was not strictly necessary to promote the best interest of the Children. We agree with Father, and reverse the juvenile court’s termination order.

BACKGROUND

¶2        Father is the biological father of K.S., a boy born in 2010, and D.S., a girl born in 2016. Father resided with the Children and their mother (Mother) from the time the Children were born until approximately 2018. In 2014, the Division of Child and Family Services (DCFS) received a report that Father had committed “Domestic Violence related child abuse” against K.S. and some of the Children’s other siblings; most notably, the report alleged that Father had “cut [a sibling’s] hand with a knife.” DCFS found the allegations “supported,” but it did not take action to remove K.S. at that time, and no criminal charges were ever filed.

¶3        Around 2017, after D.S. was born, a protective order was entered against Father, for reasons unclear from this record, that restricted his ability to contact Mother. Even after entry of the protective order, though, Father continued to reside with Mother for about another year, in apparent violation of that order. Eventually, in 2018, Father and Mother went through “a messy break up” and separated; the Children remained in Mother’s custody. In the year following the separation, Father spent time with the Children on a regular basis through “weekend visits” that Grandmother initiated and staged at her house.

¶4        During this time period, Father was arrested for “possession of a dangerous weapon”—“a pocketknife in [his] pocket”—in connection with various “protective order violations.” In late 2019, he was sentenced to prison, and ordered to serve a term of zero to five years. When Father first got to prison, he was unable to visit with the Children—even virtually— due to the continued existence of the protective order, but in March 2020, after obtaining a modification to that order, he began visiting with the Children through weekly “video visits” or “phone visits.” In the beginning, it was Grandmother who “was really insistent” that these virtual visits take place between Father and the Children. And since 2020, such visits have occurred on more or less a weekly basis.

¶5        In early 2021, while Father was still incarcerated, the Children were removed from Mother’s custody after an incident in which Mother abandoned them. The Children were later adjudicated neglected as to Mother and dependent as to Father, and the juvenile court placed them with Grandmother. In later proceedings, Mother’s parental rights were terminated, a determination Mother has not appealed. And due to Father’s ongoing incarceration, reunification services were never offered to him; the juvenile court set a permanency goal of adoption.

¶6        In January 2022, the State filed a petition seeking to terminate Father’s parental rights regarding the Children. Prior to trial on that petition, Father stipulated that—largely due to his incarceration—the State could show at least one statutory ground for termination of his parental rights. But the case proceeded to trial on the other element of the termination test: whether termination was strictly necessary to promote the best interest of the Children. On that point, Father took the position that termination of his rights was not strictly necessary, given that—at least in his view—he had a good relationship with the Children, they were in the care of his own mother (Grandmother), and he would undoubtedly be a part of their lives going forward, at least in some sense, simply due to that reality. He asserted that a permanent custody and guardianship arrangement would suit this situation better than adoption would.

¶7        In August 2022, the juvenile court held a relatively brief trial to consider that issue; during that trial, the court heard argument from counsel and testimony from three witnesses: the DCFS caseworker (Caseworker), Grandmother, and Father.[1] Caseworker testified that the Children were doing well in Grandmother’s care. She was aware that the Children have regular virtual visits with Father, but she noted that the Children “don’t talk [with her] much about” those visits and, when they do, they often just say “they don’t remember what they talked [with Father] about.” Caseworker stated that she knows that the Children “love [Father],” and did not recall either of them ever saying that they found Father “scary.” But she offered her view that adoption by Grandmother was in the Children’s best interest, opining that “adoption is necessary to allow them permanency and . . . a long-lasting, stable environment.” She also stated that she had talked to the Children “about adoption” and that the Children “would like to be adopted by [Grandmother],” but did not elaborate or offer any context for this conversation.

¶8                      Grandmother testified that the Children were doing well

in school and thriving in her care. She acknowledged that, as a general matter, “fathers are important” in the lives of children, and she stated that she had been “a big advocate for” Father throughout the entire saga, even pushing to set up virtual visits from the prison after Father was first incarcerated. But she testified that, over time, she had become more of “an advocate for the [Children],” and offered her view that, due to some of the “choice[s]” Father had made, the relationship between Father and the Children had not “functioned properly for a very long time.” She discussed, at some length, the regular virtual visits that the Children have with Father, and she acknowledged that Father is a good listener during the visits. But she stated that the Children have lost interest in the visits over time, and that the visits are “hard for” the Children and make them “uncomfortable” because “they don’t know what to do” during the visits. To cope with the discomfort, Grandmother has added some “structure[]” to the visits “so that [the Children] would have things to talk about”; for instance, K.S. often plays the piano for Father during the visits, while D.S. often “plays kitchen” and pretends to cook things for Father. Grandmother offered her perception that the Children do not wish to have regular virtual visits anymore, and that Father does not understand that the visits are hard for the Children. She noted that sometimes the Children need to “spend some time kind of snuggling” with her after the visits. Grandmother also testified that, on at least one occasion, K.S. said that Father is “scary.”

¶9        Grandmother testified that she is ready, willing, and able to continue caring for the Children. But she voiced a strong preference for adopting them rather than acting as their permanent guardian. When asked why, she offered her view that adoption would be “less confusing” for the Children and that she could be “a consistent parent” for them given her “resources.” She opined that a guardianship arrangement “may suit [Father],” but she didn’t think it was “in the [C]hildren’s best interests.” She also stated that she was worried about what would happen to the Children—and, specifically, whether they would return to Father’s custody—if something were to happen to her. She acknowledged, however, that she would be willing to care for the Children in either form of custody (adoption or guardianship). And she also acknowledged that, even if Father’s parental rights were terminated and she were allowed to adopt the Children, she would nevertheless be open to the possibility that Father could still have a role in the Children’s lives, and in that situation she would “ask for some guidance from people that know more than [she does] about that,” such as the Children’s therapist. She testified that she had discussed the possibility of adoption with the Children, and that D.S. had compared it to those “commercials on TV about adopting a dog.” Referring to that comment, Grandmother acknowledged that the Children “have some misconceptions about” what adoption would mean and stated that she had “tried to fix” those misconceptions, but she offered no specifics about how she had attempted to do that.

¶10      Father was the trial’s final witness. In his testimony, he first described the involvement he has had in the Children’s lives since their birth, stating that when the family was living together he saw the Children every day, “took them to school, [and] everything.” Father acknowledged that the situation had changed due to his incarceration, and he recognized that the virtual visits from prison are “not ideal” because there are often other inmates in the background on video calls and because the technology sometimes has issues, but overall, he offered his view that the visits had been going well and that he did not think the visits were uncomfortable for the Children. As he perceived it, the Children “seem[ed] excited to see” him and “always tell [him] they love” him. He credited the virtual visits for allowing him to “maintain a relationship with” the Children despite his incarceration. He stated that he had “a really good bond” with K.S., with whom he shares a connection to music. He also spoke positively of his visits with D.S., although he acknowledged that D.S. sometimes “gets upset because [Father] can’t be there with her” in person.

¶11      Father testified that he was scheduled to be released from prison in December 2022, and he articulated a desire to “have a stronger relationship with” the Children than he was able to enjoy during incarceration. Father acknowledged that, immediately upon his release from prison, he would be in no position to assume custody of the Children, because he would “have a lot of stuff to deal with,” like “getting a job,” addressing his housing situation, and sorting out outstanding “immigration” issues.[2] But he was vocal about wanting to continue and improve his relationship with the Children after his release from prison.

¶12 After the presentation of evidence, the attorneys made closing arguments. The juvenile court did not make any ruling on the record at the close of the trial; instead, it asked the parties to submit additional briefing on “the issue of strictly necessary.” A few weeks later, the parties submitted those supplemental briefs, and thereafter the court issued a written ruling terminating Father’s parental rights.

¶13 Because Father had conceded the existence of statutory grounds for termination, the only issue the court needed to address was whether termination of Father’s rights was in the best interest of the Children and, as part of that inquiry, whether termination was strictly necessary to promote the Children’s best interest. And on that score, the court concluded that termination was indeed strictly necessary. The court acknowledged that both Father and Grandmother love the Children. The court also acknowledged that “there were no allegations of abuse and neglect regarding [Father] at the time the [C]hildren were ordered into” the custody of DCFS.[3] But the court found that Father’s “ability to offer love, affection, [and] guidance, and to continue with the [C]hildren’s education is very limited both due to his incarceration and [the Children’s] resistance to engaging with” Father. The court noted that the Children “have had stability” with Grandmother and were doing well in her care. The court also referenced its belief that the Children “desire to remain with and be adopted” by Grandmother, but it made no determination that the Children were of sufficient capacity to be able to meaningfully express their desires in this context.

¶14      In addition, the court opined that adoption was “necessary and essential to [the Children’s] well-being as it will protect them from [Father’s] desire to have ongoing and frequent visitation.” The court chided Father for failing “to recognize that the [C]hildren . . . do not want to visit with him,” and concluded that this failure “raises questions as to whether [Father] could act in the [C]hildren’s best interest.” In the court’s view, the fact that Father “believes [the Children] enjoy the visits” and that he “would, ideally, exercise more visitation [after release from prison] is exactly why a permanent custody and guardianship neither protects nor benefits the [C]hildren.” The court stated that a guardianship arrangement would “fail to ensure adequate protections against [Father’s] commitment for increased and continued visitation,” and would leave the Children “vulnerable to [Father’s] residual parental rights.” Indeed, the court observed that, “under a permanent custody and guardianship order,” the Children’s “emotional and physical needs” would be “subsumed by [Father’s] residual rights.” The court offered its view that adoption would serve the Children’s needs better than guardianship would, because it “affords them the protection of ensuring that any future assessment of contact with [Father] will [be] considered solely from their respective points of view.” The court stated that, “[i]f the legal assessment for best interest and strictly necessary was from the parental perspective, permanent custody and guardianship with [Grandmother] would likely [be] the best solution.” But it observed that “the legal assessment of best interest and strictly necessary is focused solely upon the [C]hildren and their needs” and, viewing the situation from that perspective, the court concluded that termination of Father’s rights was strictly necessary to promote their best interest.

ISSUE AND STANDARD OF REVIEW

¶15      Father appeals the juvenile court’s termination order, and challenges the court’s conclusion that termination of his parental rights was strictly necessary to further the Children’s best interest. “We review a lower court’s best interest determination deferentially, and we will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re A.H., 2022 UT App 114, ¶ 30, 518 P.3d 993 (quotation simplified), cert. granted, 525 P.3d 1279 (Utah 2023). But “we do not afford a high degree of deference to such determinations; rather, we simply apply the same level of deference given to all lower court findings of fact and fact-like determinations of mixed questions.” Id. (quotation simplified). Moreover, because the “evidentiary standard applicable in termination of parental rights cases” is “the clear and convincing evidence standard,” we will “assess whether the juvenile court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” Id. (quotation simplified); see also In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (“Whether the juvenile court correctly concluded there was no feasible alternative to terminating . . . [the father’s] parental rights is a mixed question of fact and law,” and “we review the juvenile court’s findings of fact for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” (quotation simplified)).

ANALYSIS

¶16      “The right of parents to raise their children is one of the most important rights any person enjoys.” In re A.H., 2022 UT App 114, ¶ 31. Perhaps for this reason, our legislature has provided specific requirements that must be met before a parent’s rights may be terminated. First, at least one of the enumerated statutory grounds for termination must be present. See Utah Code § 80-4­301. Second, termination of parental rights must be in the best interest of the affected children. In re A.H., 2022 UT App 114, ¶ 32. “The party seeking termination of a parent’s rights bears the

burden of proof on both parts of this test,” and “that party must make this required showing by clear and convincing evidence.” Id. (quotation simplified).

¶17      At trial, Father did not contest the State’s assertion that at least one of the statutory grounds for termination of his parental rights was present. He did, however, contest the State’s assertion that termination was in the Children’s best interest. And his appellate challenge to the juvenile court’s termination order is similarly limited to the best-interest portion of the two-part test.

¶18      “The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation, including the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” In re J.J.W., 2022 UT App 116, ¶ 26, 520 P.3d 38 (quotation simplified). Our legislature has provided important guidance regarding the best-interest question. First, statutes emphasize the importance of maintaining familial relationships where possible. As a general rule, it is “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” Utah Code § 80-4-104(8). This is because “[a] child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.” Id. Therefore, “the juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so.” Id.see also In re A.H., 2022 UT App 114, ¶ 31 (stating that a parent’s “fundamental liberty interest in the care, custody, and management of the parent’s child . . . does not cease to exist simply because . . . a parent may fail to be a model parent” (quoting Utah Code § 80-4-104(1), (4)(a)(i))).

¶19      Next, our legislature requires that termination of parental rights be “strictly necessary.” Utah Code § 80-4-301(1). “Our supreme court has interpreted this statutory requirement to mean that ‘termination must be strictly necessary to promote the child’s best interest.’” In re A.H., 2022 UT App 114, ¶ 36 (quoting In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827). And as the juvenile court here correctly noted, this inquiry is to be conducted “from the child’s point of view,” and not from either the parent’s or the prospective adoptive family’s. See Utah Code §§ 80-4­104(12)(b), -301(1); see also In re B.T.B., 2020 UT 60, ¶¶ 25 n.5, 64 (stating that the “best interest analysis should be undertaken from the child’s point of view”). “[W]hen two placement options would equally benefit a child, the strictly-necessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.” In re G.D., 2021 UT 19, ¶ 75, 491 P.3d 867; see also In re J.J.W., 2022 UT App 116, ¶ 29 (“Courts must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved, and if the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” (quotation simplified)). Thus, the best-interest inquiry—informed by the “strictly necessary” requirement—“requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). In particular, “courts should consider whether other less-permanent arrangements might serve the child’s needs just as well” as termination of the parent’s rights would. Id. (quotation simplified).

¶20    With these considerations in mind, we turn to the issue at hand: whether the State presented clear and convincing evidence that termination of Father’s rights was strictly necessary to promote the Children’s best interest. The juvenile court determined that the State had cleared this hurdle, and it based its best-interest determination largely on two subsidiary conclusions: (1) that the Children needed stability, which the court believed could be better provided through adoption than through a permanent guardianship arrangement, and (2) that the Children needed to be “protect[ed] against [Father’s] commitment for increased and continued visitation,” including protection against Father’s “residual rights,” which protection the court believed could be better provided through adoption than through a permanent guardianship arrangement. Father asserts that, on this record, these reasons constitute an insufficient basis to terminate his parental rights, and he maintains that the juvenile court’s determination was therefore against the weight of the evidence. We agree with Father.

¶21 The court’s first conclusion—that adoption affords a somewhat higher degree of stability than permanent guardianship does—is not, at a general level, a sufficient reason for terminating a parent’s rights. As our supreme court recently clarified, “categorical concerns” about stability are insufficient to warrant termination of parental rights so that an adoption may occur. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. “If these categorical concerns were enough, termination and adoption would be strictly necessary across the board” because a “permanent guardianship by definition does not offer the same degree of permanency as an adoption” and “there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent.” Id.see also In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (“Categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” (quotation simplified)).

¶22 In this vein, we note again that permanent guardianship arrangements are themselves quite stable. See In re A.H., 2022 UT App 114, ¶ 55; see also In re J.J.W., 2022 UT App 116, ¶ 31 (noting that permanent guardianships “have certain hallmarks of permanency”). “A parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A-6-357(3)(d). “Only the guardian has that right.” In re A.H., 2022 UT App 114, ¶ 55; see also Utah Code § 78A­6-357(3)(d). And a parent, in this situation, is entitled only to “reasonable parent-time” with the child. See Utah Code § 80-1-102(70)(a)(iv). A guardian who does not think that a parent’s parent-time request is “reasonable” may resist that request, and any disputes between the guardian and the parent about the scope of “reasonable” visitation will be resolved “by the court,” with the best interest of the child in mind. See id. It is simply not the case—as the State implies—that a parent in this situation may demand, and obtain, as much parent-time as the parent desires. There are, of course, meaningful marginal differences in permanence and control between adoption and guardianship, and in some cases, these differences might matter. But after In re J.A.L., courts focused on the virtues of stability and permanence may no longer rely on the categorical differences between the two arrangements, but must instead discuss case-specific reasons why the “added layer of permanency that adoptions offer” matters in the case at hand. See In re A.H., 2022 UT App 114, ¶ 53.

¶23      In this case, the juvenile court offered a case-specific reason for its focus on stability: it was concerned about Father’s “residual rights,” and specifically about Father’s “commitment for increased and continued visitation,” and it worried that, after Father’s release from prison, he might continue to have some “involvement in [the Children’s] lives.” We acknowledge that, in some cases, fear of a parent’s residual rights might reasonably counsel in favor of terminating that parent’s rights so that an adoption can take place. But this case is not one of those cases.

¶24      For starters, there is no indication that Father’s continuing relationship with the Children is harmful to them, rather than merely perhaps inconvenient. See In re L.L.B., 2023 UT App 66, ¶ 24 (reversing a court’s termination of parental rights in part because “there was no finding . . . that [the] [f]ather’s presence in [the child’s] life has affirmatively harmed” the child, and “there was no finding detailing how [the child’s] life was negatively affected or disrupted by [the] [f]ather’s attempts to exercise his parental rights”).[4] Indeed, the juvenile court accurately noted that “there were no allegations of abuse or neglect regarding [Father] at the time the [C]hildren were ordered into [DCFS] custody,” and the Children were found only “dependent”—not abused or neglected—as to him. And the court found that Father “was involved in” K.S.’s life “until he was about eight years old” and in D.S.’s life until she “was three”; that he “love[s] these [C]hildren”; and that he “expresses genuine love and affection for” them.

¶25                To be sure, Father’s incarceration has placed a great degree

of stress on the parent-child relationship. Because of his incarceration, Father was unable to care for the Children in their time of need when Mother abandoned them, and he was—as of the time of trial—still unable to assume custody of them. Father has, however, made a credible and determined effort to remain involved in the Children’s lives despite his incarceration. With Grandmother’s initial encouragement and assistance, virtual visits were arranged on a regular basis, and the juvenile court found that, “[a]t first, the [C]hildren were eager” to participate in those visits. Over time, however, the Children have lost their enthusiasm for the visits. But no party pins this loss of enthusiasm on Father’s behavior regarding those visits; he remains excited about the visits, and there is no evidence that Father has ever turned down (or not shown up for) an opportunity for visits, or that he has ever acted inappropriately during any visit. Indeed, the juvenile court specifically found that Father was “a good listener” during the visits, and Grandmother testified that Father was “very good at playing kitchen” with D.S.

¶26      The most anyone can say regarding any downside to these visits is that the Children find them boring or “uncomfortable” because they sometimes see other inmates in the background and because they do “not know what to do” during the visits. Grandmother has had to add some structure to the visits so that the Children have some things to talk about with Father; K.S. has turned to music, and D.S. to “playing kitchen.” On some occasions, the Children find the visits “difficult” and need comfort from Grandmother after the visits conclude, but there is no indication from the record that this difficulty arises from anything Father does or says during the visits; indeed, it seems that the difficulty arises simply from the fact that Father is in prison, a fact that makes communicating and bonding comparatively difficult and often awkward.

¶27 Given Father’s genuine efforts to maintain a meaningful relationship with the Children, as well as the absence of a “harmfulness” component to that relationship, we see no basis for the juvenile court’s view that the Children need “protections against [Father’s] commitment for increased and continued visitation.” As a general matter, we want parents to exhibit a commitment toward a positive and continued relationship with their children. See In re A.H., 2022 UT App 114, ¶ 55 (“Family life should be strengthened and preserved wherever possible, and . . . it is usually in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” (quotation simplified)); see also In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206 (“In many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them . . . .”), aff’d, 2020 UT 60, 472 P.3d 827. All else being equal, there is inherent value and benefit—not only to the parent but to the children—in maintaining familial relationships, a fact that the juvenile court failed to discuss or account for. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting the “benefit of preserving the familial relationships, as our legislature has commanded courts to do ‘wherever possible’” (quoting Utah Code § 80-4­104(12))). And a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of, and not against, a determination that it is in the child’s best interest to keep the relationship intact. See In re A.H., 2022 UT App 114, ¶ 55. As we read this record, Father should be commended—rather than chided—for maintaining love and affection for, and a desire to continue a meaningful relationship with, the Children despite his incarceration. And Father’s wish to have “visitation” with the Children after his release from prison should likewise have been viewed positively—or at least neutrally—rather than negatively in the context of the best-interest inquiry. See id. (“[W]e question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it.”).

¶28      All of this is especially true in this case, where the prospective adoptive parent is Father’s own mother. As Grandmother herself acknowledged, no matter the outcome of the case—whether adoption or guardianship—there will very likely be some sort of ongoing relationship between Father and the Children. That is, not even Grandmother believes that Father will (or necessarily should) be completely cut out of the Children’s lives; instead, she testified that, in the event she is allowed to adopt the Children, she would consult with “therapist[s]” and other “people that know more than” she does about appropriate visitation, and come to a decision about the level of Father’s involvement that she believes would be best for the Children. In another similar case, we defined the relevant question as follows: “[B]efore it may terminate [a parent’s] rights, the [juvenile] court must adequately explain why it is better for [the Children] to have [the parent] cut out of [their lives] forever than to have [the parent] remain involved in [their lives], perhaps with limited parent-time, pursuant to a guardianship arrangement.” In re J.J.W., 2022 UT App 116, ¶ 36. In cases like this one, where—given the identity of the prospective adoptive parent—nobody thinks Father really is going to be completely cut out of the Children’s lives as a practical matter, it becomes more difficult to establish that it is best for the Children for Father’s rights to be terminated.

¶29 Finally, we put almost no stock in the juvenile court’s finding that the Children “expressed a desire to be adopted by” Grandmother. In this context—termination cases in which the children are not in the physical custody of the parent in question—our law allows the court to consider “the child’s desires regarding the termination,” but only if the court “determines [that] the child is of sufficient capacity to express the child’s desires.” Utah Code § 80-4-303(1)(a). The issue of the capacity of the Children to express their desires was never discussed at trial, and the juvenile court made no determination that either one of the Children had sufficient capacity. At the time of trial, K.S. was eleven years old and D.S. was six years old. While the governing statute puts no absolute age threshold on when a child’s desires may be considered,[5] it is far from obvious that either of the Children—especially the six-year-old—were “of sufficient capacity” to express a meaningful opinion about the ultimate question in this case: whether Father’s rights ought to be terminated to facilitate an adoption or whether Father should retain certain rights through a guardianship arrangement. In parental termination cases, a court wishing to take a child’s desires into account should make a determination regarding the child’s capacity to express those desires; absent such a determination, the requirements of the statute are not met.

¶30 Moreover, even if the Children could be considered capable of offering meaningful testimony about their desires, there are evidentiary problems with the juvenile court’s finding on the subject: the trial testimony did not support any finding on this issue more specific than that the Children—quite understandably—wanted to remain in Grandmother’s care. Caseworker testified that the Children “would like to be adopted by” Grandmother, but she offered no additional details about her conversation with the Children. And Grandmother stated that she had discussed adoption with the Children, but she testified that D.S. responded, “That’s like the commercials on TV about adopting a dog.” And she acknowledged that the Children “have some misconceptions about” what adoption would mean, and that she had “tried to fix” those misconceptions. But no witness offered any testimony that could support a finding that either of the Children actually understood and appreciated the distinction between adoption and guardianship, and that, based on that understanding, they preferred adoption. In particular, no witness offered any testimony that either of the Children understood that, if an adoption were to occur, Father would lose all of his parental rights, and—relatedly—no witness offered any testimony that the Children actually wanted Father to lose all of his parental rights.[6]

¶31      In the end, the facts of this case simply don’t add up to strict necessity. Even though we review the juvenile court’s decision deferentially, we still must reverse when “the evidence presented at trial [does] not constitute clear and convincing evidence that termination of [the parent’s] rights . . . would be in the best interest of those children.” In re A.H., 2022 UT App 114, ¶ 38; see also In re L.L.B., 2023 UT App 66, ¶ 34 (reversing the district court’s decision where the “court’s conclusion that termination of [a father’s] parental rights was in [a child’s] best interest goes against the clear weight of the evidence”). With the appropriate “clear and convincing” evidentiary standard in mind, we conclude that the juvenile court’s decision in this case was against the clear weight of the evidence, and that the reasons upon which the court’s analysis relied were insufficient to support termination of Father’s rights.

¶32 We emphasize, however, that our decision is dependent upon the particular circumstances of this case. Those notable circumstances include the following: the juvenile court made no finding that Father’s relationship with the Children was abusive or harmful; the prospective adoptive parent is Father’s own mother; and Father will—in any event—likely have a relationship of some kind with the Children in the future. Moreover, there is no evidence that Father and Grandmother have the sort of relationship where he would be likely to exercise undue control over custody and care decisions in a guardianship arrangement. See In re J.J.W., 2022 UT App 116, ¶ 31 (noting that guardianship might be a viable option because, among other things, there was “no evidence in the record that would lead us to believe that [the guardians] would be particularly susceptible to undue influence from [the parent] as concerns seeking a change or dissolution of the guardianship”); see also In re A.H., 2022 UT App 114, ¶ 55. If the facts of the case were different, termination of Father’s parental rights might well have been justified. For instance, if Father’s relationship with the Children were abusive or detrimental, the situation would certainly be different. And we have previously noted that, where the prospective adoptive placement consists of non-relatives with no pre-existing relationship with the parent whose rights are at issue, a guardianship arrangement may be a poor fit. See In re J.P., 2021 UT App 134, ¶ 11, 502 P.3d 1247 (discussing with approval a lower court’s reasoning that permanent guardianship arrangements work best in situations where the parent and the guardian know each other and are “willing to work together to preserve [the] parent-child relationship” and “where the child has a healthy relationship with both the guardian and the parent,” and that such arrangements may not work as well in non-relative, foster-family placement situations). But on the facts presented at the termination trial in this case, a permanent guardianship arrangement serves the Children’s interest at least as well as adoption does, and therefore termination of Father’s parental rights is not strictly necessary to promote the Children’s best interest. See In re A.H., 2022 UT App 114, ¶ 49 (“If the two placements can each equally protect and benefit the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights.” (quotation simplified)).

CONCLUSION

¶33      We reverse the juvenile court’s order terminating Father’s parental rights and remand the case for further proceedings consistent with this opinion. We note, as we have in similar cases, that “best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter.” Id. ¶ 58. Our holding today is that, based on the evidence presented at trial in August 2022, termination of Father’s rights was not strictly necessary to promote the Children’s best interest. But the situation may well have changed since August 2022. In particular, we are aware that Father was scheduled to be released from prison in December 2022; the record submitted to us contains no information about whether that occurred as scheduled or, if so, what has happened since his release. If nothing has materially changed since the August 2022 trial, then we expect the court to enter an order establishing a permanent custody and guardianship arrangement, with the Children in Grandmother’s care, and to make appropriate rulings, as necessary, regarding the scope of Father’s reasonable visitation. But if there is evidence that matters have materially changed since the trial, the court may need to consider that evidence in some fashion, see In re Z.C.W., 2021 UT App 98, ¶ 15, 500 P.3d 94, and re-assess best interest, with its strictly necessary component, based on the situation at the time of the remand proceedings.


[1] The trial transcript is composed of just fifty-two pages. And the three witnesses’ testimony, in total, took just over an hour.

[2] The record submitted to us does not indicate whether Father was in fact released from prison on the anticipated date or, if so, whether Father has taken any steps to resolve his employment, housing, or immigration issues.

[3] At no point in its written ruling, or at any other time during the trial, did the court reference the 2014 “supported” allegations of abuse regarding the Children’s sibling. No witness testified about those allegations at trial. And while the protective order violations were mentioned in passing, no witness offered any testimony about the basis upon which the protective order was granted.

[4] As noted already, see supra note 3, no witness at trial mentioned the 2014 “supported” incident of abuse, and the protective order violations were discussed only in passing. Most importantly for present purposes, the juvenile court did not base any of its findings or conclusions on either of these incidents; in particular, it made no finding that either one was of such a nature as to render Father’s relationship with the Children harmful to them.

[5] Utah’s adoption statutes, by contrast, establish a specific age limit regarding when a child’s consent to adoption must be procured. See Utah Code § 78B-6-120(1)(a) (“[C]onsent to adoption of a child . . . is required from . . . the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not have the mental capacity to consent.”).

[6] In this vein, we note a general concern with evidence about a child’s desires regarding termination coming in through the testimony of a prospective adoptive parent. A much better practice is for such evidence to come in through either a proffer from a guardian ad litem—the attorney specifically hired to represent the interests of the child—or through the testimony of professional witnesses (e.g., mental health counselors) who presumably have training in discussing such topics with minors in a neutral way. By noting the absence of specific foundational evidence about the Children’s desires, we are in no way faulting Grandmother for apparently not asking additional follow-up questions of the Children regarding termination; indeed, this opinion should not be viewed as encouraging prospective adoptive parents to engage in conversations with children about termination of their natural parents’ rights.

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Mandatory Lethality Assessments on Domestic Violence Calls. In Other Words: Pandora’s Box

The Utah State Legislature passed this into law an amendment to Utah Code § 77-36-2.1, which was effective May 3, 2023. The newly amended code section now requires police officers to conduct “lethality assessments” in response to domestic violence calls under certain circumstances.

My immediate reaction to this news was: Oh, no, but I didn’t share that on my blog because I wanted to ensure I didn’t come to any hasty, erroneous conclusions. Now that I’ve had time to reflect on the subject, my reaction is: Oh, no.

While I have no doubt that the intention behind lethality assessments is sincere, I worry about whether lethality assessments will be conducted to protect domestic violence victims or conducted to protect the police.

If you’re a law enforcement officer who doesn’t want to be blamed for failing to protect a victim or potential victim, then what reason would you have not to “err on the side of caution” when you conduct lethality assessments? Essentially, the thinking goes: “I don’t want to be blamed for failing to protect someone from domestic violence. I don’t want to be accused of being insensitive to the vulnerable. So, if the mere allegation of domestic violence arises, I will punish the accused and I 1) won’t look like I’m soft on domestic violence and 2) will appear to be preventing crime (even if there is no crime).”

I’m concerned that lethality assessments can be abused by those who report domestic violence and those who respond to reports of domestic violence, that lethality assessments, which are intended to be a shield to the vulnerable, would be abused as a weapon against innocent people who aren’t violent and/or who don’t pose a threat of violence.

As a divorce lawyer, I am particularly concerned about the potential for lethality assessments to be abused by spouses and parents who are plotting a divorce or child custody action and who make false allegations of domestic violence to gain an advantage over the other spouse or parent in the divorce and or child custody action. Then, not only do we have to worry about police officers who might err on the side of caution when conducting lethality assessments, but we also have to worry about judges who would do the same (“I have my doubts about the credibility of that lethality assessment in the record. But if I say I don’t believe it, then I might appear indifferent to domestic violence. Or if it turns out that the accused is violent, then I’ll be blamed for ‘ignoring’ the lethality assessment. Better for me to err on the side of caution.”).

I am also worried that, following the mandate to conduct lethality assessments, the domestic violence hustlers will “discover” a raft of domestic violence “risk” or “danger” that had heretofore gone “undetected” based upon the lethality assessments data, and that it will be offered as proof that lethality assessments “work”. I’m worried that people will claim that the self-proclaimed domestic violence victims are proof that they are domestic violence victims because of the lethality assessment, which is nothing other than a record of one’s subjective claims of being a victim.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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State v. Hararah – 2023 UT App 77 – domestic violence prosecution

State v. Hararah – 2023 UT App 77

2023 UT App 77

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

HOUSTON RAEFAT HARARAH,

Appellant.

Opinion

No. 20220276-CA

Filed July 20, 2023

Eighth District Court, Vernal Department

The Honorable Edwin T. Peterson

The Honorable Gregory M. Lamb

No. 201800299

Nicolas C. Wilde and Trevor J. Lee,

Attorneys for Appellant

Tegan M. Troutner and Rachelle Shumway,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court[1] stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State’s “best offer” and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel[2]) provided ineffective assistance for not objecting to the court’s allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.

BACKGROUND

¶2        After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah “threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye.” As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:

Counsel:  Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I’ve discussed a plea with Mr. Hararah and it looks like we’re probably going to be setting it for a preliminary hearing.

District Court:  Well, let’s go ahead and . . . take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.

Hararah:  Yes, Your Honor.

District Court:  Okay. Well, you think long and hard on that and I’ll talk to you on the 28th. Thank you.

¶3        The minutes for the next hearing, held in August 2020, indicate that “[t]he defendant request[ed] a Preliminary Hearing” and that “the [c]ourt set[] this matter for Preliminary Hearing.”

¶4        In court on the date set for the preliminary hearing, in September 2020, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Then the following exchange took place:

District Court:  So you talked to [Counsel] about what a preliminary hearing is[,] right?

Hararah:  Yes.

District Court:  Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?

Hararah:  Yes.

District Court:  Very good. I will go ahead and allow the waiver[;] I’ll bind the matter over. How long do you think you need to have discussions, [Counsel]?

Counsel:  Your Honor, I think that the best offer has been made and Mr. Hararah  has had a chance to discuss it, and I think we’re just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.

Later in the hearing, the district court added,

District Court: [W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation.

¶5        The case eventually went to trial, and during opening statements, Counsel said to the jury, “You will not hear any testimony about [Hararah] punching [the alleged victim] . . . . [Y]ou’ll hear . . . that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out . . . .”

¶6        But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when “[a] verbal argument turned into a physical [one].” She said, “I had tried knocking over his drink. I knew the conversation wasn’t ending anywhere. He ended up on top of me hitting me.” She described how she tried to leave the room but “was hit in the face” with “a pillow and his fist.” She clarified that “he was punching [her] and hitting [her] through the pillow.”

¶7        Later in the trial and outside the presence of the jury, Counsel objected to “the uncharged misconduct that we’ve now heard about for the first time today, which is this witness . . . now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant.” Counsel asserted, “That is nowhere in the State’s discovery. It is not in the officer’s report, it isn’t anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can . . . believe that the bruising on her face comes from those punches rather than from the plant.” Counsel explained why this was problematic: “We don’t have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or . . . from a plant?’ So, I maintain that [this] is prejudicial.” The trial court responded, “I’ve previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day . . . in question [and] I would allow testimony from . . . the witness about the arguing and the conduct that happened during that date in question.”

¶8        The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that “[t]he only assault [he] was aware of was the plant being thrown,” and he agreed that if the victim had “mentioned being punched in the face, [he] would have put that in [his] report.” In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.

¶9        Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred “when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing.” He argues that this error “violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution; Utah Rules of Criminal Procedure 7(e) and 11(i); and our adversarial system of justice.” Hararah admits that this “issue was not preserved,” but he claims that “either the exceptional circumstances exception or the plain error exception applies here.”

¶11      Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by “fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing” and (2) by telling the jury “during opening statements that the jury would not hear any testimony about the alleged victim being punched.” “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

ANALYSIS

  1. Preliminary Hearing Waiver

¶12      Hararah argues that the district court “violated [his] rights . . . when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing.” Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.

  1. Plain Error

¶13      To show plain error, “a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).

¶14      We first address Hararah’s argument that the district court erred by “coercing” or “forcing” him to waive his right to the preliminary hearing. Hararah takes issue with the district court’s statement made at the July 2020 hearing: “Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.” The advisability of this comment[3] is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court’s statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.

¶15      At the outset of the September 2020 hearing, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Critically, Counsel also said during that hearing that “the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get [the case set] for a trial as soon as possible in front of a jury.”

¶16 We make much of the fact that Hararah waived his preliminary hearing in the same hearing in which he expressed his rejection of the State’s “best” plea offer. This shows that Hararah’s waiver was not based on the possibility of future bargaining or a fear that he would not be able to accept a plea deal if he had a preliminary hearing. Counsel did not indicate that Hararah anticipated any plea bargain better than the one the State had offered—as the plea bargain offered was already the “best offer” possible; instead, Counsel represented that Hararah had considered the offer and had decided to proceed to trial rather than accept the offered bargain. And Counsel did not mention the idea that the preliminary hearing was being waived to keep open the prospect of a future plea deal.

¶17      Hararah fails to provide us with any evidence supporting a belief that his independent desire to proceed to trial—after rejecting the State’s “best offer”—was not what drove his decision to waive his right to a preliminary hearing. If Hararah had represented in any way that he was forgoing the preliminary hearing because he was planning to accept a plea deal or wanted to keep his options open, the case before us would be quite different. But instead, the record demonstrates that Hararah was forgoing the preliminary hearing after having fully considered and rejected the State’s best offer and with the goal of going to trial as soon as possible. Accordingly, Hararah has not shown that any error took place, because there is no indication that the district court’s comment had any effect on Hararah’s actions.

¶18      Similarly, the district court’s post-waiver statement that “seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation” had no bearing on Hararah’s decision to waive his right to a preliminary hearing. At that point, Hararah had already made his decision to forgo the preliminary hearing, and he had also already rejected the State’s best plea offer.

¶19      Furthermore, even if we assume that the district court’s comments alone—rather than Hararah’s counterfactual claimed reliance on them—constituted error, Hararah has not met his burden on plain error review to show prejudice. The record shows that Hararah would have taken the same course of action whether or not the district court made the comments at issue. The same facts discussed above indicate that even if the statements had never been uttered, Hararah would have been presented with and rejected the State’s “best offer” and would have wanted to move as quickly as possible toward trial, including waiving his preliminary hearing. Accordingly, Hararah’s claim on this point fails.[4]

¶20      Moreover, even if “an error exist[ed]” that “should have been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13 (cleaned up), any such error was cured by Hararah’s conviction by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d 12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant “contend[ed] that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing.” Id. ¶ 13. This court determined that because the “sole purpose” of a preliminary hearing is “determining whether probable cause exists,” “an error at the preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15 (cleaned up). And “[t]his is so even when the error consists of a complete deprivation of a preliminary hearing.” Id. ¶ 16.[5] “Because conviction beyond a reasonable doubt cures any flaw in a preliminary hearing—including the complete deprivation of a preliminary hearing—it necessarily cures any error the [district] court may have made in accepting a defendant’s waiver of the right to a preliminary hearing.” Id. ¶ 18.[6] “Accordingly, [Hararah’s] conviction of all charges beyond a reasonable doubt cured any possible error attending his waiver of a preliminary hearing.” See id.

¶21      Ultimately, Hararah’s argument of plain error fails.

  1. Exceptional Circumstances Doctrine

¶22      We apply the exceptional circumstances doctrine “to reach an unpreserved issue where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443 (cleaned up). Hararah argues that “[b]ecause it is procedurally uncommon in Utah to have a district court force a criminal defendant to waive his constitutional right to a preliminary hearing, a rare procedural anomaly occurred.”

¶23      But the claimed procedural anomaly did not actually occur. Hararah’s argument points to the presumed effect of the district court’s statements (namely, “forc[ing]” Hararah “to waive his constitutional right to a preliminary hearing”) rather than the mere occurrence of the statements as the “rare procedural anomaly.” But as we have explained, Hararah was not forced into waiving his right to a preliminary hearing, because he chose to waive that right for reasons independent from the district court’s comments. The absence of an actual “rare procedural anomaly” alone defeats Hararah’s argument as to the applicability of the exceptional circumstances doctrine, but this is not all.

¶24     Even if we assume that the district court’s statements constituted a “rare procedural anomaly,” Hararah would need to show that they “either prevented [him] from preserving an issue or excuse[d] a failure to do so.” See id. Hararah does not attempt to explain what prevented him from objecting to the district court’s statements and thereby preserving the issue. In reality, there was nothing preventing him from doing so. Hararah could have objected when the district court made the first statement at the July 2020 hearing. But this is not a case where a defendant had only one opportunity to object to an alleged error. Hararah could have taken time to review the issue and objected during the August 2020 hearing. Or he could have objected after the district court’s follow-up comment at the September 2020 hearing. Furthermore, before trial, Hararah could have filed a motion to withdraw his waiver. On this record, Hararah had time and multiple opportunities to object or preserve this issue, and he did not do so.

¶25      Moreover, we are not convinced that Hararah’s failure to preserve the issue is excusable. While we recognize the fundamental nature of the preliminary hearing and we protect defendants’ constitutional rights to preliminary hearings, we also recognize that a defendant has the constitutionally guaranteed right to waive the preliminary hearing. See Utah Const. art. I, § 13 (protecting the right to a preliminary hearing “unless the examination be waived by the accused with the consent of the State”); see also, e.g.Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249 P.3d 1006 (per curiam) (“[The defendant] filed his petition asserting that he was deprived of his preliminary hearing. . . . The petition was inconsistent with and [superseded] by [the defendant’s] waiver. [The defendant] was not deprived of any right to a preliminary hearing.” (cleaned up)). Waiving a preliminary hearing may have negative implications, but this reality does not invalidate a qualifying waiver. See State v. Bragg, 2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his right to a preliminary hearing, [forgoing] one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed.”). While Hararah may, in retrospect, have benefitted from taking the opportunity to develop the victim’s testimony at the preliminary hearing, this does not invalidate his waiver. And his regrets do not excuse his failure to preserve this issue. Therefore, the exceptional circumstances doctrine does not apply.

  1. Ineffective Assistance

¶26 Hararah also asserts that Counsel provided ineffective assistance by failing to object to the district court’s comments discussed above and by informing the jury in opening statements that it would not hear that Hararah had punched the victim.

¶27      “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [the defendant’s] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.

¶28      The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.

¶29      We can easily dismiss Hararah’s first assertion of ineffective assistance. As discussed above, Hararah did not provide any evidence that he intended to accept a plea deal and that he based his waiver of the right to a preliminary hearing on such a plan.[7] Counsel was aware of Hararah’s feelings toward the choice between pleading or going to trial and stated repeatedly that Hararah was not interested in pleading guilty or accepting a plea bargain. Accordingly, Hararah has not persuaded us that any comments from the district court related to plea negotiations would have affected his plans at all, so Counsel acted reasonably in choosing not to object to such comments. In other words, the district court’s comments bore no impact on Hararah’s actions, so there was no tactical reason for Counsel to act as Hararah retroactively desires. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s clear desire to proceed toward trial.

¶30      Additionally, for the same reasons described above, we are convinced that Hararah was not prejudiced by this alleged deficiency in performance. Hararah asserts that “[t]here is a reasonable likelihood that if [he] had been allowed to exercise his right to a preliminary hearing,” his case would have ended differently. But Hararah was able to exercise his right to a preliminary hearing. We have already explained why the district court’s alleged carrot—permitting Hararah the possibility of accepting a plea deal—was no carrot at all based on his express refusal of the State’s “best offer” and his desire to proceed to trial. Hararah’s claim might have some foundation if he had proceeded with a preliminary hearing and the court had, in fact, restricted his ability to negotiate a plea deal or even if he had accepted a plea bargain after waiving the preliminary hearing. But given that he clearly and consistently conveyed his desire to go to trial, that he was offered the “best” plea deal and refused it, and that his conviction by a jury at trial was in no way influenced by the district court’s earlier comments on waiving the preliminary hearing, we are not persuaded that the outcome would have been any different if Counsel had objected. See Strickland, 466 U.S. at 695. Therefore, Hararah cannot show ineffective assistance on this point.

¶31      Hararah’s second allegation of ineffective assistance is also unavailing. Hararah asserts that Counsel performed deficiently by saying in opening statements that the jury would “not hear any testimony about [Hararah] punching [the alleged victim],” when the victim went on to testify that Hararah had, in fact, hit her through a pillow. Hararah argues that Counsel should not have made such a promise without first “lock[ing] in” the victim’s testimony during a preliminary hearing. But, as discussed above, Hararah waived the preliminary hearing of his own free will. And it is clear that neither side was aware the victim would testify that Hararah hit her, because the deputy testified that he did not know of any assault other than Hararah throwing the plant. Accordingly, we do not fault Counsel for making a statement in line with all the known facts, and we conclude that Counsel’s actions are not nearly “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

¶32      Furthermore, Hararah was not prejudiced by this allegedly deficient performance. Counsel was able to paint the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony. And Counsel elicited testimony from the State’s own witness that there were no allegations of punching prior to trial. Accordingly, Hararah was in a strong position to counter the State’s case, and the jury still found him guilty of assault. From this, we see no support for “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

CONCLUSION

¶33       Hararah’s claim that the district court coerced him into waiving his preliminary hearing is not supported by the record, so the exceptional circumstances doctrine does not apply and the court also did not plainly err. Additionally, Hararah’s assertion of ineffective assistance of counsel fails. Therefore, we affirm Hararah’s conviction.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Utah Wife Charged With Fatally Poisoning Her Husband.

Judge orders lawyers in Kouri Richins cases to limit what they say to press

Prosecutors had initially requested a more substantial gag order, citing “overwhelming media interest.”

by Jordan Miller, June 2, 2023

https://www.sltrib.com/news/2023/06/02/judge-orders-lawyers-kouri-richins/

jordanm@sltrib.com

Follow @jordanrmillerr

See also Kamas widow charged with killing husband with fentanyl overdose | KSL.com

Are you with me? by Kouri D Richins | Waterstones

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Can I Lose Custody of My Son if I Was a Victim in a Strangulation Case of Domestic Abuse?

It is possible, but not a given.

Why?

If the court determines that the circumstances under which you were a crime victim were created or exacerbated by you in whole or in part constitute circumstances that are also so dangerous to the child that they warrant removing the child from your custody (or warrant removing the child from your custody if you don’t remedy the situation fully and timely), it is possible that you could lose custody under those circumstances.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-lose-custody-of-my-son-if-I-was-a-victim-in-a-strangulation-case-of-domestic-abuse

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Twitchell v. Twitchell – 2022 UT App 49 – child custody and support

Twitchell v. Twitchell – 2022 UT App 49

THE UTAH COURT OF APPEALS

JAZMIN S. TWITCHELL,

Appellee,

V.

JOSEPH N. TWITCHELL,

Appellant.

Opinion

No. 20200546-CA

Filed April 14, 2022

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 184100383

Ryan L. Holdaway and Diane Pitcher, Attorneys

for Appellant

Robert L. Neeley, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Joseph N. Twitchell appeals from a divorce decree and appurtenant findings of fact and conclusions of law, arguing that the district court failed to consider relevant statutory factors when forming its custody determination, awarded him less parent-time than the statutory minimum, and erroneously calculated his child support obligation based on an inaccurate accounting of the income of his ex-wife, Jazmin S. Twitchell. We find Joseph’s arguments persuasive on each of these issues, and accordingly, we remand for further proceedings.

BACKGROUND

¶2 Joseph and Jazmin[1] were married in 2016 and share one child (Child), who was born in May 2017. The parties “separated about a year after she was born.” Shortly thereafter, in June 2018, Jazmin filed for divorce, citing “irreconcilable differences.”

¶3 The court issued temporary orders in December 2018, awarding the parties joint legal custody of Child and designating Jazmin as the primary physical custodian, “subject to [Joseph’s] right to parent-time.” As to the parent-time schedule, the court directed the parties to follow the minimum schedule set out in section 30-3-35 of the Utah Code, with Joseph generally “designated as the non-custodial parent,” meaning that he could exercise parent-time on alternating weekends. In addition, the temporary orders granted Joseph an additional overnight with Child “every Thursday night,” with Joseph keeping Child for the weekend when it was one of his parent-time weekends and returning Child to Jazmin’s care by noon on Friday when it was not.

¶4 As the case proceeded to trial, Jazmin filed her financial disclosures, dated November 7, 2019. In her disclosures, Jazmin reported her gross monthly income as $2,111. In this document, under an entry entitled “Employment Status,” Jazmin listed the name of a child care center where she worked at some point. Under an entry for “Name of Employer,” she listed a local private school. Jazmin also filed a supplemental disclosure, dated September 23, 2019, informing the court that she had been serving as a “houseparent” at the private school since September 1, 2019, for which she received no monetary compensation but was provided room and board. Jazmin included a letter from a representative of the school who estimated that the value of the housing and utilities provided to Jazmin was $980 per month.

¶5 A two-day trial was held in December 2019, at which multiple witnesses testified. During Joseph’s testimony, he described instances of physical and verbal altercations beginning a few months into the parties’ marriage. He averred that the first time things became physical between the two was in November 2016, when stress regarding the upcoming holiday season resulted in an argument and Jazmin eventually “going after [him] with a knife,” cutting his hand. Joseph also described a time in Spring 2017 when he and Jazmin were in another argument, and he “went to go give her a hug and apologize . . . and she bit [his] right arm.” He then described one more instance where Jazmin told Joseph “she hated [him], over and over and over again,” which prompted him to threaten leaving with Child. In response, Jazmin “slapped or hit [him] with something across the face.” Joseph also presented photographs of injuries he sustained from each of these incidents, which were admitted into evidence without objection.

¶6 Several witnesses also testified as to their observations of Child’s condition once she went from Jazmin’s to Joseph’s care. One witness testified that on multiple occasions when Joseph received Child from Jazmin, Child had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, to the point that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Joseph also produced evidence documenting incidents of what he characterizes as “assaults” from other children at a daycare while Child was in Jazmin’s care.

¶7 Jazmin testified about her employment history since the parties’ separation. During the marriage, Jazmin had been “a stay-at-home mom,” but she started a job “within two weeks of leaving” to help provide for Child. She testified to working at a child care center from approximately July 2018 until March 2019, when she left to accept an offer to work for higher pay at another daycare center. She worked at that second center full-time until October 2019. Jazmin began serving as a houseparent at the private school in September 2019, a role she was still working in at the time of trial.

¶8 In addition to her financial disclosure in which she reported the aforementioned $2,111 figure, Jazmin also offered her 2018 tax return into evidence. That return listed only the first child care center as her employer and an annual gross income of $7,044.75—which would translate to approximately $587 per month. Jazmin nevertheless confirmed at trial that her gross monthly income was $2,100. When asked if that amount included the $980 value of her housing and utilities, she stated, “No. That . . . doesn’t have anything to do with that.” When asked about her current employment, she testified that she had just started working as a substitute teacher earning $75 per day, which she “guesstimate[d]” she did two to three days per week. Based on that “guesstimate,” Jazmin testified that she earned approximately $813 per month from substitute teaching as opposed to the $2,100 in her financial declaration. Jazmin also confirmed that, at the time of trial, she had no sources of income other than her “service as a houseparent, [and her] income from substitute teaching.”

¶9 Later, on cross-examination, when asked about the $2,111 reported as her gross monthly income in her disclosure, Jazmin admitted that there was actually “no documentation being provided with that [disclosure] that would substantiate that number.” While Jazmin was being cross-examined, the court interjected and expressed its confusion as to whether the $980 value of her housing expenses had been included in her reported monthly income; although Jazmin never answered the court directly, her attorney asserted that it was included within that amount (contradicting Jazmin’s earlier testimony in which she had stated the opposite). Jazmin also stated that at the time of trial, she had actually worked as a substitute teacher on only one occasion up to that point.

¶10 Testimony was also given by a representative of the private school, whom Jazmin had contacted to secure documentation of the value of her housing and utilities. A final draft of a letter from the representative was attached to Jazmin’s supplemental disclosure. But at trial, Joseph offered evidence of an earlier draft of the letter in which the representative had originally stated that the value of what Jazmin received was estimated at $1,800 per month for rent and $1,000 per month for utilities, whereas the amount given in the final letter was $980 for both rent and utilities. The representative testified that she had sent the initial draft to Jazmin’s grandmother asking if it was “acceptable,” and either Jazmin or her grandmother had then asked additional questions about the square footage and what portion of the house Jazmin was actually living in, and whether that was reflected in the amount the representative gave. This prompted the representative to change the amount to $980 in the final letter, based on a “pro-rated amount” that seemed more consistent with the part of the house where Jazmin was living.

¶11 The court issued findings of fact and conclusions of law in April 2020.[2] While it awarded the parties joint legal custody of Child, it also found that it was in Child’s “best interest” that Jazmin be awarded primary physical custody. In support, the court cited the following findings: Jazmin had primary physical custody of Child since the parties separated, and the parties had been “following” the parent-time schedule imposed by the court in its temporary orders, consisting of “alternating weekends, with [Joseph] being awarded overnight every Thursday”; Child was “happy and well[-]adjusted and [was] progressing well developmentally”; Child was “closely bonded to [Jazmin] as she ha[d] been the primary custodial parent since birth, while [Joseph] was the primary bread winner in the family”; it was in Child’s “best interest . . . to maintain a close relationship with her half sister,” of whom Jazmin has primary physical custody; Jazmin had “exhibited good parenting skills” and was “of good moral character, and emotionally stable”; Jazmin had “exhibited a depth and desire for custody of [Child] since . . . birth”; Jazmin had “a flexible work and school schedule and she ha[d] the ability to provide personal care rather than surrogate care”; Jazmin had experience in early childhood education; and Jazmin “exhibited sound financial responsibility” whereas the court was “concerned about [Joseph’s] lack of financial responsibility” based on his debt accumulations. In the findings, the court also expressed its “concern[] about the alleged physical abuse between the parties during the marriage” and therefore found it “appropriate” for the exchanges of Child to occur at a police department safe zone located roughly halfway between the parties’ homes.

¶12 The court additionally noted its consideration of the factors outlined in section 30-3-10.2 of the Utah Code, finding in particular that Child’s “physical, psychological, emotional and development needs will benefit from the parties sharing joint legal custody.” But the court listed several reasons under these factors why joint physical custody would not be appropriate, finding that the “parties do not effectively communicate with each other”; they lived “approximately 60 miles” apart; Joseph “participated in raising [Child] but not to the extent that [Jazmin] did”; “[t]o date there ha[d] not been . . . opportunities for either parent to protect [Child] from any conflict that may arise between the parties, due to [Child’s] age”; and “the parties’ relationship ha[d] stabilized and once these divorce proceedings have concluded it is anticipated the parties will be able to cooperate with each other and make appropriate joint decisions regarding [Child].”

¶13 As to parent-time, the court concluded that Joseph’s parent-time “shall be, until [Child] starts Kindergarten, every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.” And on weeks that ended with Jazmin’s designated weekend, Joseph “shall return [Child] to [Jazmin] by Friday at noon, after his Thursday overnight visit.” The court also concluded that “[t]he parties shall follow the holiday parent time pursuant to Utah Code Ann. § 30-3-35” but that Joseph “shall be awarded six[ ]weeks of extended summer vacation instead of four[ ]weeks, consistent with Utah Code Ann. § 30-3-35 and by stipulation of [Jazmin] at closing arguments.”

¶14 Regarding child support, the court found that Jazmin “earn[ed] $980 per month gross wage from her house parent job” and “approximately $780 per month” from substitute teaching. It therefore calculated her gross monthly income at $1,760 for child support purposes. The court then found that Joseph’s average gross income is $5,011 per month, and therefore his “child support obligation is $582 per month.”

¶15 The court entered a decree of divorce in June 2020, in which it largely echoed the parent-time findings, ordering that Joseph’s parent-time “shall be every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m. On [Jazmin’s] weekend with the parties’ child, [Joseph] shall return [Child] to [Jazmin] by Friday at noon following his Thursday overnight parent time.” And once Child “commences Kindergarten [Joseph’s] parent time shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” The decree did not mention a schedule for holidays or extended/vacation parent-time. The decree also reiterated what the court found to be the parties’ respective incomes, and accordingly it memorialized its decision ordering Joseph to pay $582 per month in child support.

¶16 Joseph promptly appealed the findings of fact and conclusions of law, as well as the divorce decree.

ISSUES AND STANDARDS OF REVIEW

¶17 On appeal, Joseph presents two main issues for our consideration. First, he attacks the district court’s custody determination on two bases, arguing that the court’s custody conclusion and the underlying factual findings are deficient because it failed to consider certain relevant factors and that the court erred in awarding him less than the minimum time provided by statute without explaining a reason to depart from the statutory minimum. “[W]e review the district court’s custody and parent-time determination for abuse of discretion.” T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified).

¶18 Second, Joseph challenges the district court’s child support determination, asserting that it made errors in calculating Jazmin’s income, resulting in an inaccurate child support obligation.[3] “In reviewing child support proceedings, we accord substantial deference to the [district] court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Hibbens v. Hibbens, 2015 UT App 278, ¶ 17, 363 P.3d 524 (quotation simplified).

ANALYSIS

I. Custody and Parent-Time

A. Consideration of the Relevant Factors

¶19 Joseph first asserts that the district court erred by failing to adequately consider certain statutory factors in formulating its custody determination. Specifically, he asserts that two factors did not receive the attention he feels they deserved by the district court, namely, any “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent.” See Utah Code Ann. § 30-3-10(2)(a), (d) (LexisNexis 2019). We agree with Joseph that it is not clear from the district court’s findings that it considered evidence regarding abusive behavior by Jazmin, neglect and injuries to Child, or Jazmin’s moral character. Accordingly, we remand for the court to fully evaluate that evidence through supplemented or additional findings.

¶20 “In all custody determinations, the district court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Furthermore, when “determining any form of custody and parent-time” arrangement, the district court “shall consider the best interest of the child and may consider [any] factors the court finds relevant” to that end, including certain factors that are specifically articulated in the Utah Code. See Utah Code Ann. § 30-3-10(2). Importantly, not all these factors are “on equal footing”; instead, the district court generally has “discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” T.W. v. S.A., 2021 UT App 132, ¶ 16, 504 P.3d 163 (quotation simplified).

¶21 Determining which factors the court must address in a given case, and to what degree, presents a tricky task. Inevitably, some factors will loom larger in a given case than other factors, and “[t]here is no definitive checklist of factors to be used for determining custody.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). Consequently, “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. On the other hand, a “court’s factual findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate. See Barnes v. Barnes, 857 P.2d 257, 261 (Utah Ct. App. 1993) (“The record is replete with highly disputed evidence relevant to the custody issue which is not dealt with at all in the findings. The findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children.”); Sukin, 842 P.2d at 925 (“Whenever custody is contested and evidence presents several possible interpretations, a bare conclusory recitation of factors and statutory terms will not suffice. We must have the necessary supporting factual findings linking those factors to the children’s best interests and each parent’s abilities to meet the children’s needs.” (quotation simplified)).

¶22 Joseph asserts that the district court failed to consider evidence presented at trial of domestic violence Jazmin had perpetrated against him as well as neglectful behavior Jazmin had purportedly inflicted on Child. Specifically, Joseph points to his own testimony at trial that Jazmin had slapped him in the face hard enough to leave red marks, had attempted to stab him with a pocket knife, and had bitten him. Joseph also presented photographic exhibits purporting to show his injuries from these incidents. Joseph also points to testimony at trial and an exhibit he introduced into evidence tending to show injuries that Child sustained while she was in Jazmin’s care. One witness testified that when Joseph received Child from Jazmin, Child often had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, such that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Finally, Joseph asserts that the court did “not analyze or even mention . . . multiple incidents” in which Jazmin supposedly “engaged in deceitful tactics” during the litigation. Specifically, Joseph asserts that Jazmin instructed a witness on what to testify regarding Jazmin’s income from her houseparent job, that Jazmin and another witness mischaracterized the events that precipitated an incident when the police were called around the time of the parties’ separation, that Jazmin claimed that the parties were married on a date different from that indicated on their marriage certificate, and that Jazmin supposedly attempted to manipulate the testimony of her ex-husband in the case.

¶23 With respect to “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent,” see Utah Code Ann. § 30-3-10(2)(a), (d), the court made only the following finding: “[Jazmin] has exhibited good parenting skills, is of good moral character, and emotionally stable.” It then proceeded to emphasize the facts it believed supported Jazmin’s bid for custody: that Jazmin had been Child’s primary caretaker; that Child had a bond with Jazmin’s other child, her half-sister; that Jazmin had made sure Joseph received his parent-time in accordance with the temporary orders; that Jazmin had “a depth and desire for custody”; that Jazmin had a flexible schedule that would allow her to provide personal care for Child; that Jazmin had taken Child to her medical appointments; and that Jazmin was financially responsible, “industrious,” and “goal oriented.” The court made no findings regarding Joseph’s parenting abilities, past conduct, bond with Child, etc., except to express concern that he was in debt.[4] Finally, the court stated that it was “concerned about the alleged physical abuse between the parties” and concluded it was therefore appropriate for them to exchange Child at a police department safe zone.

¶24 “To ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Sukin, 842 P.2d at 924 (quotation simplified). The court’s finding that Jazmin “has exhibited good parenting skills, is of good moral character, and emotionally stable” is inadequate for us to determine whether the court exceeded its discretion in assessing the abuse/neglect and moral character factors or how those factors impacted Child’s best interests. Likewise, the court’s expression of “concern[] about the alleged physical abuse between the parties during the marriage” tells us nothing about how or even if the court weighed the abuse allegations in its custody evaluation. Indeed, it is not clear to us that the court considered this factor at all in assessing which parent should be awarded custody, as it mentioned the factor only in the context of concluding that it would be “appropriate” for the exchanges of Child to occur at a police department safe zone. Without at least some discussion of the evidence the court relied on in assessing the factors and how the court related the factors to Child’s best interests, the court’s findings regarding the custody factors are inadequate. See, e.g.K.P.S. v. E.J.P., 2018 UT App 5, ¶¶ 30–42, 414 P.3d 933 (determining that the court’s factual findings were inadequate where it made factual conclusions but did not discuss the evidence underlying those conclusions and rejected the guardian ad litem’s recommendation without explanation); Bartlett v. Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296 (rejecting the court’s conclusory finding that the mother was “better able and equipped to support and sustain a positive relationship between the children and their father” where the “court identified no subsidiary facts supporting this finding” and had, in fact, “admonished Mother for denying Father court-ordered access to the children” (quotation simplified)); Barnes, 857 P.2d at 261 (rejecting as inadequate the court’s finding that “[t]he Plaintiff’s level of commitment to her children during the course of this separation has exceeded that of the Defendant and that’s been established by their actions during the course of their separation” because “[t]he findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children”); Roberts v. Roberts, 835 P.2d 193, 196–97 (Utah Ct. App. 1992) (deeming inadequate findings that “Husband has physically abused Wife during the marriage” and that “both parties have participated in acts that bear on their moral character,” accompanied by a recitation of examples of each party’s bad behavior because the recitation did not give any “guidance regarding how those acts bear on the parties’ parenting abilities or affect the children’s best interests” (quotation simplified)); Cummings v. Cummings, 821 P.2d 472, 478–79 (Utah Ct. App. 1991) (reversing the district court’s custody determination based on its failure to make findings regarding evidence relating to important custody factors); Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah Ct. App. 1989) (holding that it was an abuse of discretion for the court’s findings to “omit any reference” to a custody evaluation and evidence relating to the bond between father and son, the father’s status as primary caretaker pending trial, the fact that the child thrived while in the father’s care, and the son’s preference for living with his father).

¶25 Thus, we conclude that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against Jazmin, her alleged neglect of Child, and her moral character, as well as the effect that evidence had on its best-interest analysis. Accordingly, we vacate the district court’s custody and parent-time order and remand for the court to revisit that evidence and enter additional or supplemented findings, as necessary.

B. Deviation from Statutory Minimum Parent-Time Schedule

¶26 Joseph next argues that the district court committed reversible error by awarding him less than the minimum parent-time he is guaranteed by statute. Because we agree that the court’s custody award indeed creates a situation in which Joseph is guaranteed less than the statutory minimum, without explaining its reasoning in adequate factual findings, we conclude that this is an additional reason to vacate the court’s parent-time order.

¶27 In the event that the parents of a minor child litigating that child’s custody are unable to agree to a parent-time schedule, our legislature has codified a “minimum parent-time [schedule] to which the noncustodial parent and the child shall be entitled.” See Utah Code Ann. §§ 30-3-35(2), 30-3-35.5(3) (LexisNexis 2019 & Supp. 2021). In fashioning its parent-time order, the court may either “incorporate[] a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or . . . provide[] more or less parent-time” than outlined in those sections, but in either case “[t]he court shall enter the reasons underlying the court’s order for parent-time.” Id. § 30-3-34(4) (Supp. 2021). The court’s reasoning must be outlined in adequate factual findings, which must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). Thus, the statutory minimum “provides [the court with] a presumptive minimum, but the district court still retains discretion to award more [or less] time” to the noncustodial parent, so long as it identifies “the reasons underlying its order” in sufficiently detailed factual findings. See T.W. v. S.A., 2021 UT App 132, ¶ 30, 504 P.3d 163 (quotation simplified).

¶28 There is a separate section dealing with the minimum schedule for children who are under five years of age, see Utah Code Ann. § 30-3-35.5 (2019), and those who are between five and eighteen years of age, see id. § 30-3-35 (Supp. 2021). As Child was born in May 2017, she is still currently younger than five, so section 30-3-35.5 applies. Under that section, Joseph is entitled to “one weekday evening between 5:30 p.m. and 8:30 p.m.,” “alternative weekends . . . from 6 p.m. on Friday until 7 p.m. on Sunday,” certain holidays, and “two two-week periods, separated by at least four weeks, at the option of the noncustodial parent.” See id. § 30-3-35.5(3)(f) (2019).

¶29      Under the court’s findings and the divorce decree, Joseph receives parent-time “every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.,” and when it is Jazmin’s weekend, he returns Child to Jazmin “by Friday at noon following his Thursday overnight parent time.” Although Joseph correctly points out that the parent-time order requires him to return Child one hour earlier on Sundays than provided for in the statutory minimum schedule, Joseph ultimately receives more than the minimum parent-time required by statute while Child is under five, because he receives an additional weekday overnight, whereas the statute requires only a weekday evening visit. See id. Thus, for the time being, Joseph receives more than the statutory minimum.

¶30 But the situation changes when Child starts school. The district court ordered that once Child “commences Kindergarten,” Joseph’s parent-time “shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” This schedule deviates from the statutory minimum, under which Joseph is entitled to “[a]lternating weekends . . . from 6 p.m. on Friday until Sunday at 7 p.m.,” and one weekday evening from either “5:30 p.m. until 8:30 p.m.” or, “at the election of the noncustodial parent, one weekday from the time the child’s school is regularly dismissed until 8:30 p.m.” Id. § 30-3-35(2)(a)(i), (2)(b)(i)(A) (Supp. 2021) (emphases added). Thus, under the court’s parent-time order, once Child begins kindergarten Joseph is required to return her to Jazmin one hour early on his weekends and one-and-a-half hours early during his weekday evenings.

¶31 As Joseph convincingly points out, while these discrepancies “may seem minor” to a casual observer, for “the non-custodial parent on a minimum visitation schedule, hours matter.” And, more importantly, the court did not explain—or even acknowledge—that it was departing from the statutory minimum. While section 30-3-35 is referenced in the findings of fact with respect to Joseph’s parent-time for holidays and summer vacation, the court made no other mention of the statutory minimum schedule.[5] As noted, when making its custody decision the court must give the “reasons underlying” its decision. See id. § 30-3-34(4); T.W., 2021 UT App 132, ¶ 30. The court did depart from the statutory minimum in this case, and it gave no reason for doing so in its findings.

¶32 As a result, we are prevented from conducting meaningful “appellate review to ensure that the district court’s discretionary determination was rationally based.” See Lay, 2018 UT App 137, ¶ 19 (quotation simplified). Accordingly, the findings in support of the district court’s parent-time order are insufficient, leaving us with no choice but to remand the matter for the court to adopt the statutory minimum schedule or otherwise explain its reasoning for departing from the minimum through adequate factual findings. See id.

II. Child Support

¶33 Joseph next challenges the district court’s child support determination, arguing that its determination of Jazmin’s income was entirely unsupported by the evidence and insufficiently explained. Because we agree that the court did not sufficiently explain how it reached the number it did in calculating Jazmin’s monthly income, we remand for entry of additional findings.

¶34 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994. Each parent’s “gross income” for purposes of child support “includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, . . . [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis 2018). “Income from earned income sources is limited to the equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2). “[C]hild support is appropriately calculated based on earnings at the time of trial,” but district courts also “have broad discretion to select an appropriate method” of calculating each parent’s income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998).

¶35      In this case, there were a number of potential bases for the court to assess Jazmin’s income. First, it could have accepted the declared full-time income in her financial declaration of $2,100, which she initially reaffirmed at trial. Second, it could have used her part-time substitute teaching income of approximately $813 per month combined with her in-kind income of $980 per month to reach a monthly income of $1,793. Third, it could have imputed her full-time income based on her substitute teaching salary of $75 per day for a total of $1,625 per month. There may, perhaps, have been other methods the court could have employed as well, had it adequately explained its reasoning.

¶36 Generally, “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified). And had the court taken one of the approaches outlined above, or another approach for which its reasoning was apparent, we would be inclined to affirm the court’s decision.[6] However, here the district court’s finding that Jazmin earned “approximately $780 per month” from substitute teaching does not align with any evidence submitted at trial, nor, so far as we can tell, can it be extrapolated from that evidence.[7] As Joseph observes, this number “do[es] not appear to come from the documentary or testimonial evidence at all.” Jazmin testified that she earned $75 per day working as a substitute teacher but that she worked only two to three days a week. Using these numbers, she reached a “guesstimate” of her monthly income of $813 per month ($75 per day x 2.5 days per week x 52 weeks per year / 12 months). While Jazmin was admittedly unsure about the amount she would be able to earn, the $780 figure adopted by the court appears to not be supported by the evidence presented at trial. While we are reluctant to reverse a district court’s child support order on this basis considering the small discrepancy between the $813 and $780 figures, the fact remains that we are unable to identify the “steps by which the ultimate conclusion on [this] factual issue was reached.” See id. (quotation simplified).

¶37 In such situations, “without the benefit of the reasoning and additional findings by the [district] court,” we must remand the child support decision to the district court to detail its full reasoning, through adequate findings, for why it chose the income amount for Jazmin that it did. See Bell v. Bell, 2013 UT App 248, ¶ 19, 312 P.3d 951.

CONCLUSION

¶38 This appeal compels us to remand the case because the district court’s findings and conclusions were infirm in several respects. First, the court failed to address disputed evidence that was highly relevant to the court’s custody determination. Second, the court’s order awards Joseph less than the statutory minimum parent-time once Child starts kindergarten, without explaining why or recognizing that it did so. And third, the court’s findings regarding Jazmin’s income contain insufficient detail for us to adequately review its reasoning.


[1] Because the parties share the same surname, we follow our oft-used practice of referring to them by their first names, with no disrespect intended by the apparent informality.

[2] Other than mentioning that “both parent[s] can step up and be good parents and both parents in large part have been good parents,” the court did not announce a ruling from the bench at the conclusion of the trial. Instead, it asked both parties to prepare proposed findings of fact and conclusions of law and heard closing arguments at a subsequent hearing. Ultimately, with only a few minor alterations, the court adopted Jazmin’s findings of fact and conclusions of law in their entirety.

While we would not go so far as to say that it is inappropriate for the court to fully adopt one party’s proposed findings, before signing off the court should confirm that those findings conform to the evidence presented at trial and that the findings sufficiently explain the court’s reasoning for the decision. In this case, it appears that the court adopted Jazmin’s version of the evidence without confirmation of that evidence and without disclosing the steps by which the ultimate conclusion on each factual issue was reached.

[3] As part of his broader challenge to the district court’s child support determination, Joseph purports to include another argument: that the court erred in dividing the parties’ debts. However, Jazmin points out that while Joseph included this argument in his articulation of the issues on appeal, he “did not [substantively] address the debt issue in his brief.” Indeed, we find a dearth of any argument regarding the debt distribution in Joseph’s brief; accordingly, Joseph has failed to properly raise such an argument for our consideration.

[4] We are troubled by the manner in which the district court’s findings focused exclusively on Jazmin rather than comparing hers and Joseph’s relative character, skills, and abilities. See Woodward v. LaFranca, 2013 UT App 147, ¶¶ 22, 26–28, 305 P.3d 181 (explaining that a court’s findings must “compare the parenting skills, character, and abilities of both parents” and reversing a finding that the emotional stability factor weighed in favor of mother because it was based solely on the determination that mother was emotionally stable without any findings regarding father’s emotional stability; “the question for the court was not whether Mother was emotionally stable, but whether Mother was more emotionally stable than Father” (quotation simplified)), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. We urge the court on remand to make the appropriate comparisons in revising its findings.

[5] Furthermore, section 30-3-35.5 is not referenced at all, which would have been the operative section from the time the decree was entered until Child turns five.

[6] While a finding that aligned with the various numbers presented at trial would have met the bare minimum threshold for sufficiency, we note that this case would substantially benefit from further analysis. First, the court did not address the inconsistencies in Jazmin’s trial testimony regarding her income. Jazmin first agreed that the $2,111 monthly income in her financial declaration was accurate but then went on to testify that she made only $75 per day substitute teaching and worked only two to three days per week. But the court did not address or explain the reasoning behind its resolution of this inconsistency. Second, Joseph presented evidence that Jazmin’s housing and utilities had been undervalued. The court’s decision included no discussion of the conflicting evidence regarding the value of Jazmin’s in-kind earnings or its assessment of that conflicting evidence. On remand, the court’s findings could benefit from a more thorough discussion of the evidence and explanation for its resolution of these conflicts.

[7] In Jazmin’s post-trial brief, she stated, without any supporting evidence, that she earned $72 per day, for a total of $780 per month. This appears to be the source of the court’s number. As assertions in the post-trial brief are not evidence, the court could not rely on this number to calculate child support.

Utah Family Law, LC | divorceutah.com | 801-466-9277 

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How effective are AMBER Alerts in child custody cases?

It depends upon what criteria define “effective”. 

More child abductions have been prevented with the Amber Alert system in place than without it, yet it’s impossible to say how many abducted children would have been found in the absence of an Amber Alert message being broadcasted. According to the website Protection1, “In nearly 7 in every 10 AMBER Alert cases, children are successfully reunited with their parents. And in just over 17 percent of cases, the recovery is a direct result of the AMBER Alert. Just under 6 percent of cases end up being unfounded, while just over 5 percent are hoaxes.” (emphasis added) 

A 17% success rate isn’t great (and we don’t know if that 17% figure is inflated). 

Compared to how effective it was designed to be, as opposed to how effective it is in practice, it could be deemed ineffective. Amber Alerts were intended to help find missing children within three hours of abduction because approximately 70% of kidnapped children who are murdered are killed within 3 hours of abduction. Research into how often an Amber Alert was issued within 3 hours showed that occurred less than 37% of the time. 

A 2004 article in FCW (Federal Computer Week) (Amber Alerts crossing state lines), stated that federal DOT officials allocated $400,000 to each state for Amber Alert programs. The February 12, 2003 Federal Register (https://amberalert.ojp.gov/sites/g/files/xyckuh201/files/media/document/05_amber_report.pdf) reported that the DOT would provide up to seven million dollars to facilitate the inclusion of the Intelligent Transportation Systems into the Amber Plan program. I cannot find how much the Amber Alert system costs currently. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-effective-are-AMBER-Alerts-in-child-custody-cases/answer/Eric-Johnson-311  

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These Moving Companies Move Domestic Abuse Victims for Free

Today’s blog post is a guest post from Hire A Helper. This is not a paid placement. We hope you find it useful, if you or a loved one need this kind of help.

Domestic abuse happens more than you might think, and for a lot of reasons, it’s a complex issue to address.

According to “DoSomething”, a wide-reaching non-profit organization in the United States, about a quarter of women around the world will experience domestic abuse in their lifetime, and in fact, 85% of domestic abuse victims are women. It’s been estimated that half of all homeless women and children in the U.S. are fleeing domestic violence. 

Victims are often left with nowhere to go due to emotional, social, and economic barriers for leaving an abusive relationship. For these reasons and more, it’s common for victims to stay in an abusive relationship when facing the alternative of living in a shelter or on the street.

Yet despite all this, some have discovered that oftentimes cyclical abuse can be stopped by simply solving for the economics of being able to afford a move.

The Movers Who Rescue Victims

Aaron and Evan Steed are co-founders of Meathead Movers, a brick-and-mortar chain that offers professional moving services. If you’re moving soon and you reside in California, they offer a variety of moving and storage services at the rate of 18,000 moves a year, which they claim makes them the largest independently owned moving company in the state.

But perhaps more impressive is that for domestic abuse victims, they offer these services for free.

Meathead Movers is one of a growing number of moving companies committed to helping victims of domestic violence move out of their abusive households at no cost.

After the California-based company was founded in 1997, frantic phone calls would come in from victims without financial means who were seeking to flee dangerous domestic violence situations, according to Dawn Ventura, Director of Marketing and Communications for Meathead Movers. They were pleas they couldn’t turn away, explained Ventura. “The brothers knew it was the right decision to get them out of there.”

The choice to provide moving services to victims for free was decided right away. It has remained their business policy for over 25 years.

Risks on the Job

victim moversMeathead Movers quickly found out there are more than financial risks when taking on this type of endeavor.

During one of their earliest rescue moves, the situation turned volatile when the alleged abuser of the victim came home in the middle of the move, Ventura told HireAHelper. “It was very scary for the (founders of Meathead),” she said. “Luckily, they were able to call law enforcement, who came to the scene and removed the abuser so that the move could be completed.”

After this experience, Meathead Movers decided to partner with a local shelter to make sure the victims and moving crew were safe and supported throughout the rescue process. In 2000, the company began its first official affiliation with a shelter called SLO Women’s Shelter.

“For the safety of our team and the victim, we only complete moves that the shelter partner has first had a chance to vet,” Ventura explained. The shelter determines the greatest need and works with the movers accordingly. “There is also always a shelter representative onsite throughout the move, and sometimes law enforcement, as needed,” she added. The company has since partnered with an additional seven shelters across California to help facilitate moves.

Though dangerous, this too remains far from the only challenge the company has faced over the years.

Back in 2008, during The Great Recession, Meathead Movers encountered what they described as “enormous” financial struggles. Ventura said that at one point, they thought they’d be closing their doors due to financial hardship. Even still, the company continued to offer free services to abuse victims. “We knew that it was our purpose and mission,” Ventura explained.

Today, Meathead Movers remains in operation after two decades of gradual growth and expansion, despite challenges. They have continued the policy of free rescues all throughout, and feel their success is proof altruism can exist within a successful moving business model.

As of 2022, they’ve helped relocate “hundreds” of domestic violence victims in the Southern Californian area for free.

A Moving Trend

Unfortunately, rescue services continue to be needed. No matter how many free moves Meathead Movers offers, as a localized chain, their reach covers only a small portion of victims of abuse. “In light of the growing cases of domestic violence, and on the heels of the national attention this free moving program has garnered, Meathead Movers is now encouraging businesses across the nation to step up and make an impact in their local communities as well,” Ventura said.

The good news is that many businesses have stepped up, including other moving companies.

Meathead Movers teammembers

In 2016, Meathead Movers launched the #MoveToEndDV campaign, challenging businesses to donate services for victims of domestic violence in their respective communities. Searching this hashtag still helps people find resources through social media. This trend has garnered the commitment of an increasing list of moving companies, as well as businesses in other sectors.

College HUNKS Hauling Junk and Moving — another store-run chain that offers professional moving services in dozens of cities across the U.S. — began offering its services for free during the month of October 2020 (which is Domestic Violence Awareness Month) in response to news reports of increasing domestic violence during pandemic lockdowns. Within the past year, College HUNKS has helped move more than 400 victims of domestic violence across the U.S., all at no cost to the victims.

How to Move Out Safely From a Domestic Violence Situation

There are multiple things to consider before you can safely remove yourself from an abusive situation.

Finding a moving company that can assist you in leaving an abusive household is incredibly helpful. But domestic abuse can be greatly helped just by beginning to plan. Here are what experts say are important steps along a successful path to freedom.

Call or email a professional helper for free. 

First, know that you are not alone in your struggle. Every single day there is someone waiting for you to reach out.

Before you do anything, it’s useful to speak with a professional who can help you assess the situation and point you toward local resources. “Always, always, always contact your local shelter,” Ventura urged. “The resources that they offer are remarkable. And if there’s any way to call a domestic violence hotline, they are sure to help.”

You can contact the National Domestic Violence Hotline by calling 1-800-799-SAFE (7233) or texting “START” to 88788. Its website also has a live chat option. Though if you are in immediate danger, please call 911.

Physically look at a calendar, imagine by which day you could realistically remove yourself, essential items, and potential children from your location.

Some situations may require getting out of your home as soon as possible; but if you can help it, visualize the exit ahead of time.

Start by literally glancing at a calendar. Figure out the best times to pack up and leave, and where you already know you could stay once you’re out — even if it’s just temporary. Google nearby shelters and moving companies that may be able to help, even if you don’t plan on using them. Always explain your situation in private, and have a contingency plan in case your abuser shows up on move day.

Squirrel away some cash, if possible.

Though shelters and some moving companies provide their services for free, it’s still very helpful to have cash on hand when you move out. If possible, try to set up your own checking or savings account online or over the phone at a separate bank from your abuser so they can’t restrict access to the money.

Gather up your important documents and items into one portable place. 

Start making copies of documents such as birth certificates, Social Security cards, insurance cards, health records, and anything else you’ll need as you transition to a new home. If you have extra car keys, medications, clothes, or evidence of domestic abuse (e.g., photos, police records), be sure to set those aside too. Store these items in a private place until you need them.

Prearrange school release permissions for any children you have.

If you have kids you can’t personally pick up from school, change the release privileges to a trusted friend or family member, so your abuser can’t pick them up.

Keep your activity private, as you may be being spied on. 

It’s not unusual for abusers to monitor activity or even spy on their victims, so you should be very careful about leaving behind any evidence of your planning.

Avoid using your home computer for research and visit the public library or a friend’s house instead. If you can, get your own, private cell phone, since there are many apps that allow partners to surveil your phone activity and accounts. Always turn off your Bluetooth and location services inside apps like Snapchat or Messenger, and close all tabs and clear all browsing history after searching for resources. Also, get rid of or “lose” any compromised cell phone if you fear it may be monitored, or do a factory reset. But make sure you have a handheld device ready to call for help if things become dangerous.

On move day, act quickly and confidently.

If you know of any weapons in the home, lock them away ahead of time if possible, just in case. Change the login settings and security questions to your online accounts and turn off the GPS in your car. Though it is not always easy, attempt to follow through with your plan with confidence.

These Movers Offer Free Services to Domestic Violence Victims 

Encouragingly, Meathead Movers and College HUNKS are only just the beginning.

Below is a non-exhaustive directory as a resource to help you or anyone you may know who is a victim. If you don’t see a company near where you live, search for movers in your area, or call a local company and ask if they have any connections or knowledge of a similar service.

Always Professional in Moving, Inc. (Gilbert, AZ)

Contact: 480-633-5555, apiminc1@gmail.com

Always Professional in Moving, Inc. is a family-owned and operated moving company in the Maricopa County of Arizona. They pledge to provide free moves to distressed victims in need of moving services in order to get away from domestic violence. Its owner, Bernadette Lavigne, is a victim of domestic violence and has made addressing the issue an important foundation of her company.

Aussie Moving (Santa Barbara, CA)

Contact: 805-273-8756, info@aussiemoving.net

Aussie Moving provides full-service residential moving, as well as commercial moving and storage. The company pledges to provide free moving services to victims of domestic violence in coordination with a local shelter in Santa Barbara County.

Brown Box Movers (Denton, TX)

Contact: 972-953-MOVE (6683)

Located in the Dallas-Fort Worth metro area, Brown Box Movers offers a variety of services, from residential moving, to move in/move out cleaning, to junk removal. The company pledged these services to help those experiencing domestic violence in the area.

Einstein Moving Company, LLC (Austin, TX)

Contact: Choose a location and send a message

Einstein moving company has locations throughout Texas, including Austin, Dallas, Houston, San Antonio and more, and is able to complete statewide moves. The company pledges up to $2,000 per month worth of moving services to Safe Place in Austin.

Elite Moving Services (Newton, IA)

Contact: 641-275-9412, elitemovingservices641@gmail.com

Elite Moving Services serves the entire state of Iowa. They pledged to offer three moves every month to domestic violence victims at no charge. Their free service includes the trailer, labor, and all moving equipment needed to move within 75 miles of the victim’s location.

Gentle Giant Moving Company (Somerville, MA)

Contact: (800) 442-6863

Gentle Giant is involved with several charities, including a strong alliance with charities involved with housing assistance and homeless prevention. Gentle Giant pledges to offer a free move to those in need of help getting out of a domestic violence situation.

Helping Hands Moving and Maids (Salt Lake City, UT)

Contact: (801) 562-0093 (Sandy), (801) 809-7800 (SLC), (801) 735-4144 (Provo) or send a message

You may recognize Helping Hands Moving and Maids from the show Extreme Makeover, or from its extensive charity work in Utah, as well as overseas. The company pledges its services to domestic violence victims in need.

Moving at Ease (Scottsdale, AZ)

Contact: 602-357-7459 or send a message

Moving at Ease is a family business that tailors its moving services to senior citizens and their families. It can accommodate local and long-distance moves. The company pledges to volunteer its time and resources to help those in need in the Phoenix metro area.

Parks Moving & Storage (Bellefonte, PA)

Contact: (866) 790-1560 or send a message

Parks Moving & Storage is a fourth-generation, family-owned business with locations in Pittsburgh, Harrisburg and State College, PA. It is a women-owned business, and the owner is also a victim of domestic violence. The company pledges to offer packing and moving services to victims and their affected family members who need them.

Veterans Moving America (Fort Worth, TX)

Contact: (817) 989-6362, booking@VMAFamily.com

VMA employs a 100% veteran workforce and self-identifies as a “values-based company”. It is partnered with SafeHaven to provide free services to victims of domestic violence.


Illustrations by Tara Jacoby
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2022 UT App 15 – Miller v. DaSilva – protective order objections

2022 UT App 15 – Miller v. DaSilva

http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Miller v. Dasilva20220203_20200719_15.pdf

THE UTAH COURT OF APPEALS

LISA M. MILLER,
Appellant,
v.
AMY ELIZABETH DASILVA,
Appellee.

Opinion

No. 20200719-CA

Filed February 3, 2022

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 204904364

Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant

Amy Elizabeth Dasilva, Appellee Pro Se

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HAGEN, Judge:

¶1        A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner’s recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court. In this case, once the commissioner recommended that the protective order be denied and the case dismissed, a final order was immediately entered and the petitioner’s timely objection was subsequently denied without a hearing. Because a final judgment was entered before the time for filing an objection had passed and without holding a hearing on the objection, we vacate the final judgment and remand to the district court to hold the required hearing.

BACKGROUND

¶2        Lisa Miller petitioned the district court for a cohabitant abuse protective order against her former friend and tenant, Amy Dasilva. A temporary protective order was issued, and a hearing was scheduled before a commissioner. At the conclusion of the hearing, the commissioner made the following findings:

I cannot find that there is sufficient evidence to support a finding that Ms. Da[s]ilva has been stalking Ms. Miller. And I cannot find a fear of ongoing physical harm.[1] And, therefore, I am going to respectfully dismiss the protective order.

A minute entry reflected that the “Commissioner recommends” that the petition “be DENIED and this case be dismissed” because “[t]he evidence does not support the entry of a protective order.”

¶3        That same day, at the direction of a district court judge, the court clerk entered a final order that stated: “This case is dismissed. Any protective orders issued are no longer valid.”

¶4        Miller filed a timely objection to the commissioner’s recommendation, requesting an evidentiary hearing before the district court pursuant to rule 108 of the Utah Rules of Civil Procedure. The next day, the district court denied that objection on the grounds that “dismissal of a protective order . . . is not a matter that is heard by the District Court Judges under Rule 108 as it is not a recommendation of the Commissioner, but rather a final decision.”

¶5        Miller filed a timely notice of appeal.

ISSUE AND STANDARD OF REVIEW

¶6        The dispositive issue before us is whether, under Utah Code section 78B-7-604(1)(f), the district court was permitted to immediately dismiss the case based on the commissioner’s recommendation and thereafter deny Miller’s objection and request for a hearing. “The proper interpretation and application of a statute is a question of law, and we afford no deference to the trial court in reviewing its interpretation.” Patole v. Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).

ANALYSIS

¶7        Under the Cohabitant Abuse Act, the court may issue a protective order without notice to the other party (an ex parte protective order) if it appears from the petition “that domestic abuse has occurred” or is substantially likely to occur. Utah Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court issues an ex parte protective order, it must schedule a hearing and provide notice to the respondent. Id. § 78B-7-604(1)(a). After notice and a hearing, the court may issue a cohabitant abuse protective order, which is effective until further order of the court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex parte protective order expires unless extended by the court. Id. § 78B-7-604(1)(b).

¶8 A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes place before a commissioner, “either the petitioner or respondent may file an objection within 10 days after the day on which the recommended order [is issued by the commissioner] and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed.”[2] Utah Code Ann. § 78B-7­604(1)(f).

¶9        Here, the district court denied Miller’s objection to the commissioner’s recommendation without holding a hearing. Miller argues this was a “violation of the mandate in Utah Code Ann. § 78B-7-604(1)(f).” We agree.

¶10 In denying Miller’s objection, the court ruled that “dismissal of a protective order” is not a matter that can be heard by the district court under rule 108 because “it is not a recommendation of the commissioner, but rather a final decision.” Because commissioners are prohibited from making “final adjudications,” Utah R. Jud. Admin. 6-401(4)(A), we assume that the district court was referring not to the commissioner’s recommendation, but to the order dismissing the case entered at the direction of a district court judge immediately after the hearing before the commissioner. Even so, the rule expressly provides that “[a] judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely objection to the commissioner’s recommendation and a request for hearing, the district court was statutorily required to hold a hearing within twenty days. See Utah Code Ann. § 78B-7­-604(1)(f). The district court erred by denying the objection without holding such a hearing.

CONCLUSION

¶11 The district court did not have authority to enter a final order dismissing this case before the time for filing an objection to the commissioner’s recommendation had expired. Because Miller filed a timely objection and request for hearing, she was entitled to a hearing before the district court. Accordingly, we vacate the final judgment, reverse the district court’s order denying the objection, and remand for the district court to hold the hearing required by statute.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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State v. Redden – 2022 UT App 14 – protective orders – enhanced penalties

2022 UT App 14

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellant,
v.
JOEL CHANCE REDDEN,
Appellee.

Opinion

No. 20200700-CA

Filed January 27, 2022

Fifth District Court, Cedar City Department

The Honorable Keith C. Barnes

No. 191500842

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellant

Gary W. Pendleton, Attorney for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

POHLMAN, Judge:

¶1       Joel Chance Redden committed two domestic violence offenses in October 2019, and the district court entered judgment on those convictions in January 2020. In the present case, Redden was charged with violating a protective order in October 2019 when he allegedly called his former girlfriend ten times. Later, the State sought to amend the information to add new charges for violating the protective order, enhanced from class A misdemeanors to third degree felonies based on the domestic violence enhancement statute. Redden opposed the enhancement, arguing that the new crimes had to be committed after his January 2020 convictions. The magistrate agreed with Redden and bound him over for trial on the new charges as class A misdemeanors. The State now appeals, arguing that it could enhance the charges so long as Redden is actually convicted of the new crimes within ten years after his January 2020 convictions. We agree with the State and therefore reverse.

BACKGROUND[1]

¶2       Redden was subject to a protective order that prohibited him from contacting or communicating in any way with Michelle,[2] his former girlfriend. Notwithstanding this directive, Redden contacted Michelle on October 4, 2019, and threatened her. This conduct led the State to prosecute Redden in Weber County, and he pleaded guilty to stalking and violating a protective order, both third degree felonies. Redden entered his plea on December 4, 2019, and the judgment was entered on January 22, 2020 (the January 2020 convictions).

¶3       The present case arises out of Redden’s conduct on October 9, 2019. At that time, Redden was jailed in Texas on unrelated charges, and Michelle was visiting Cedar City, Utah. Beginning at 8:34 a.m., Redden allegedly telephoned Michelle ten times over the next three hours. According to Michelle, she answered the second call, which was a collect call from Redden from the Texas jail. Michelle accepted the call and spoke to Redden briefly. She told him, “Just don’t ever call me again,” and hung up. She also answered one of Redden’s later calls and recorded it, but she did not accept it to speak with him.

¶4       After Michelle reported these phone calls to law enforcement, the State filed an information against Redden in Iron County on December 30, 2019. It charged Redden with two counts of violation of a protective order for his October 9 conduct. It pursued both counts as third degree felonies enhanced from class A misdemeanors based on Redden’s conduct underlying his January 2020 convictions. Yet the State did not present evidence of the January 2020 convictions at a May 2020 preliminary hearing, and consequently, Redden moved to reduce both counts to class A misdemeanors. Although the State moved to continue the hearing, the magistrate denied that request. The magistrate then agreed with Redden and found the State had not met its burden on enhancing the misdemeanors to felony charges, and the magistrate instead bound Redden over on the two counts as class A misdemeanors.[3]

¶5       The State next moved for leave to amend the information. While it would still pursue the two misdemeanor counts (Counts 9 and 10) that had already been bound over for trial, the State sought to include eight additional counts of violation of a protective order, which would be enhanced to third degree felonies based on Redden’s prior convictions. Over Redden’s objection, the magistrate allowed the State to amend the information.

¶6       At the preliminary hearing on the eight additional charges, the State presented evidence to support those eight counts. And unlike in the first preliminary hearing, the State included evidence of the January 2020 convictions. Still, Redden argued that the eight counts could be bound over only as misdemeanors because the January 2020 convictions did not qualify as “prior conviction[s]” to the eight alleged offenses

committed on October 9, 2019. Relying on Utah Code section 77-36-1.1(2)(c)(ii)(B), which applies when “the individual is convicted of the domestic violence offense . . . within 10 years after the individual is convicted of a qualifying domestic violence offense,” Utah Code Ann. § 77-36-1.1(2)(c)(ii)(B) (LexisNexis Supp. 2019), Redden asserted that to be enhanced to third degree felonies, the new offenses had to be committed within ten years after his January 2020 convictions. The State responded that even though “the prior conviction was for facts arising from October 4,” the enhancement provision in Utah Code section 77-36-1.1(2)(c)(ii)(B) required only that Redden be convicted of the new crimes within ten years after his January 2020 convictions.

¶7       The magistrate agreed with Redden that the eight counts could not be enhanced to third degree felonies under the statute. He then determined that the State had presented sufficient evidence to establish probable cause “that the offenses of violation of [a] protective order were committed in eight instances.” Accordingly, the magistrate bound Redden over for trial on all ten counts as class A misdemeanors.

¶8       In light of the magistrate’s decision finding no probable cause that Redden had committed the eight third-degree felonies as charged in the amended information, the State “decline[d] to file a second amended information bringing the charges in line with the Court’s findings.” Instead, it moved to dismiss all charges in lieu of amending the information.

¶9       The magistrate granted the State’s request and dismissed all charges against Redden. The two original misdemeanor charges were dismissed pursuant to rule 25(a) of the Utah Rules of Criminal Procedure, and the eight additional charges were dismissed pursuant to rule 7B(c).[4] The State now appeals the order of dismissal. See Utah Code Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may, as a matter of right, appeal from . . . (a) a final judgment of dismissal, including a dismissal of a felony information following a refusal to bind the defendant over for trial . . . .”); id. § 78A-4-103(2)(e) (2018) (providing that the Utah Court of Appeals has jurisdiction over appeals from criminal cases not involving first degree felonies).

ISSUES AND STANDARDS OF REVIEW

¶10     The State contends that the magistrate misinterpreted the

enhancement statute when he refused to bind Redden over on the eight counts as third degree felonies. The decision to bind over a criminal defendant for trial typically presents a mixed question of law and fact to which we grant some deference to the magistrate. See State v. Prisbrey, 2020 UT App 172, ¶ 18, 479 P.3d 1126. But because the bindover decision here turned on a question of statutory interpretation, we review it for correctness. See State v. Thompson, 2020 UT App 148, ¶ 13, 476 P.3d 1017.

¶11 Rather than defending the magistrate’s decision on its merits, Redden contends that this court lacks jurisdiction over the State’s appeal, asserting that the State was not entitled to appeal from a dismissal order entered at its own request. “Whether appellate jurisdiction exists is a question of law which we decide in the first instance.” State v. Arghittu, 2015 UT App 22, ¶ 12, 343 P.3d 709 (cleaned up).

ANALYSIS

  1. The State’s Argument on Appeal

¶12     The State argues that the magistrate erred in determining that the domestic violence enhancement statute did not apply to the eight additional counts that it raised in the amended information. According to the State, it could enhance those charges from class A misdemeanors to third degree felonies so long as Redden is ultimately convicted on the charges within ten years after his January 2020 convictions. Thus, the State argues, “until and unless the State fails to convict Redden of the new domestic violence charges before January 22, 2030, the [statute] allows the State to prosecute the new charges as third-degree felonies.” We agree.

¶13 When we interpret a statute, “we look first to the best evidence of a statute’s meaning, the plain language of the act, and we do not look beyond a statute’s plain language unless it is ambiguous.” State v. Thompson, 2020 UT App 148, ¶ 33, 476 P.3d 1017 (cleaned up). “Wherever possible, we give effect to every word of a statute, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous.” State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515 (cleaned up).

¶14 The crime that Redden is alleged to have committed— violating a protective order—is a class A misdemeanor but is subject to increased penalties in accordance with the domestic violence enhancement statute. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2019). That enhancement statute states, in relevant part,

(2) An individual who is convicted of a domestic violence offense is: . . .

(c) guilty of a felony of the third degree if:

(i) the domestic violence offense described in this Subsection (2) is designated by law as a class A misdemeanor; and

(ii)(A) the domestic violence offense described in this Subsection (2) is committed within 10 years after the individual is convicted of a qualifying domestic violence offense that is not a criminal mischief offense; or

(B) the individual is convicted of the domestic violence offense described in this Subsection (2) within 10 years after the individual is convicted of a qualifying domestic violence offense that is not a criminal mischief offense.

Id. § 77-36-1.1 (emphases added). As we read this plain language, section 77-36-1.1(2)(c) allows the State to enhance a class A misdemeanor charge to a third degree felony when a defendant either “commit[s]” or “is convicted of” the current crime “within 10 years after” the defendant “is convicted of a qualifying domestic violence offense.” Id. Thus, we agree with the State’s reading of the statute. Redden, tellingly, has not offered an alternative interpretation.

¶15 Further, we agree with the State’s application of the statute to this case. The parties do not dispute that Redden’s January 2020 convictions constitute “a qualifying domestic violence offense” under the statute.[5] Because it is still possible that Redden could be “convicted of” the eight current charges “within 10 years” after he was convicted of qualifying domestic offenses in January 2020, section 77-36-1.1(2)(c)(ii)(B) permits the State to enhance the eight counts to third degree felonies. The magistrate erred in concluding otherwise. The magistrate appears to have reasoned that subsection 77-36-1.1(2)(c)(ii)(B) applies only if the defendant’s current charges stem from conduct that occurred after the defendant was convicted of the qualifying domestic offense. But this interpretation would render subsection 77-36-1.1(2)(c)(ii)(A) superfluous because that subsection expressly addresses such circumstances—when the current offense “is committed” after the conviction on the qualifying domestic offense. We will not read the statute in a way that would conflate both subsections and make one subsection inoperative. See Stewart, 2018 UT 24, ¶ 12.

¶16 In sum, we conclude that for the enhancement under subsection 77-36-1.1(2)(c)(ii)(B) to apply, the State has until January 22, 2030, to obtain a conviction against Redden for the eight counts. We therefore reverse the magistrate’s decision binding Redden over on these counts as class A misdemeanors and direct that Redden be bound over on them as third degree felonies.

  1. Redden’s Procedural Arguments

¶17 While Redden concedes that the State’s reading of the enhancement statute is appropriate, he nevertheless argues that the State’s appeal is improper, given that the State itself moved for the order of dismissal. In Redden’s view, the State could have petitioned for interlocutory review of the magistrate’s second bindover decision, but it was not allowed to “circumvent the appellate court’s discretion to grant or deny petitions for review by requesting a dismissal and then relying on the statutory provision granting [the] prosecution an appeal of right from a final judgment of dismissal.”[6] Redden thus asserts that this court does not have jurisdiction over this appeal.

¶18     Redden’s argument is foreclosed by precedent. In State v. Gomez, 722 P.2d 747 (Utah 1986), the trial court agreed with the defendant that the charges should be reduced to a lesser offense. Id. at 748. In response, the State refused to amend the information to conform to the court’s ruling and instead urged the court to dismiss the information. Id. The court then dismissed the information and the State appealed that dismissal. Id. at 748–49. On appeal, the Utah Supreme Court addressed the defendant’s threshold argument that the State could not use the order of dismissal, which the State itself requested, as a means of obtaining review of “a decision that would not otherwise be appealable as a matter of right.” Id. at 749. The supreme court explained that “the trial court’s determination that the charges should be reduced to an offense carrying a lesser penalty not charged in the original information prevented the State from proceeding on the original charges.” Id. Importantly, “[t]he effect of the trial court’s ruling was to block prosecution and, in effect, to dismiss the original charges.” Id. The supreme court concluded that, under these circumstances, “the State properly suggested that the trial court formally dismiss the information and then appealed from a final judgment of dismissal.” Id. (cleaned up). This court reached the same conclusion on similar facts in State v. Arghittu, 2015 UT App 22, 343 P.3d 709. Id. ¶¶ 15– 17 & n.4 (allowing the State to appeal after it had voluntarily moved for dismissal after the magistrate bound the defendant over on only a lesser and uncharged offense).[7]

¶19 Like Gomez, the magistrate’s decision binding Redden over on eight new misdemeanors rather than the charged eight third-degree felonies had the “effect of . . . block[ing] prosecution and . . . dismiss[ing] the [eight] original charges.” See Gomez, 722 P.2d at 479. The State therefore acted properly in moving to dismiss the information and then appealing from “a final judgment of dismissal.” See Utah Code Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may, as a matter of right, appeal from . . . (a) a final judgment of dismissal, including a dismissal of a felony information following a refusal to bind the defendant over for trial . . . .”); see also Gomez, 722 P.2d at 479; Arghittu, 2015 UT App 22, ¶¶ 15–17. Thus, Redden’s challenge to appellate jurisdiction is unavailing.

¶20     Lastly, in two ways, Redden challenges the fairness of the State’s actions. He first suggests that the State’s filing of the eight new charges against him violated the principles set forth in State v. Brickey, 714 P.2d 644 (Utah 1986). In Brickey, the Utah Supreme Court held that a prosecutor is prohibited from “refiling criminal charges earlier dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling.” Id. at 647 (emphasis added). Redden’s reliance on Brickey is misplaced, however, because no charges have been refiled against him. Rather, the State amended the information to add eight new charges that had not been addressed at the first preliminary hearing. The rules of criminal procedure allow such amendments “at any time before trial has commenced so long as the substantial rights of the defendant are not prejudiced.” Utah R. Crim. P. 4(d). The court also held a second preliminary hearing to address the eight additional charges. See id. (“If an additional or different offense is charged, the defendant has the right to a preliminary hearing on that offense . . . .”). Moreover, as the United States Supreme Court has recognized, a prosecutor’s initial charging decision “should not freeze future conduct” and “does not necessarily define the extent of the legitimate interest in prosecution.” United States v. Goodwin, 457 U.S. 368, 380, 382 (1982); accord State v. Finlayson, 2014 UT App 282, ¶ 23 n.11, 362 P.3d 926.

¶21 Second, Redden generically complains that he pleaded guilty to the charges in Weber County as “a global resolution of the charges” related to Michelle and that he did not realize the resulting convictions “would later be asserted as a basis for enhancing additional charges” filed in Iron County. Although he suggests that his due process rights have therefore been violated, he has not established his lack of understanding as a factual matter. Nor has he established that he was not actually afforded all the process to which he was entitled under the law.

¶22 For the foregoing reasons, Redden’s counterarguments are unpersuasive.

CONCLUSION

¶23 Having rejected Redden’s contention that we lack jurisdiction over this appeal, we conclude that the State’s appeal is well taken and that the magistrate erred in binding Redden over on the eight new counts as class A misdemeanors. Accordingly, we reverse the magistrate’s bindover and dismissal orders and remand for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] “At a preliminary hearing, the magistrate should view the evidence in a light most favorable to the prosecution and resolve all inferences in favor of the prosecution.” State v. Arghittu, 2015 UT App 22, ¶ 2 n.2, 343 P.3d 709 (cleaned up). Because this appeal arises from a preliminary hearing, we recite the background facts with that standard in mind.

[2] A pseudonym.

[3] The State does not contest this bindover ruling on appeal.

[4] Rule 25(a) states, “In its discretion, for substantial cause and in furtherance of justice, the court may, either on its own initiative or upon application of either party, order an information or indictment dismissed.” Utah R. Crim. P. 25(a). Rule 7B(c) provides, “If the magistrate does not find probable cause to believe the crime charged has been committed or the defendant committed it, the magistrate must dismiss the information and discharge the defendant. The magistrate may enter findings of fact, conclusions of law, and an order of dismissal. The dismissal and discharge do not preclude the state from instituting a subsequent prosecution for the same offense.” Id. R. 7B(c).

[5] As used in the statute, the term “domestic violence offense” includes “commission or attempt to commit” stalking and violating a protective order when committed “by one cohabitant against another.” Utah Code Ann. § 77-36-1(4)(j), (l) (LexisNexis Supp. 2019). The term “cohabitant” includes, among other things, individuals who “reside[] or [have] resided in the same residence” or who are or were “in a consensual sexual relationship.” Id. § 77-36-1(1); id. § 78B-7-102(2)(f), (g) (2018).

[6] Rule 5 of the Utah Rules of Appellate Procedure sets forth the procedure regarding discretionary appeals from interlocutory orders. The Utah Code allows the prosecution an appeal, as a matter of right, from a final judgment of dismissal. Utah Code Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may, as a matter of right, appeal from . . . (a) a final judgment of dismissal, including a dismissal of a felony information following a refusal to bind the defendant over for trial . . . .”).

[7] Redden relies on State v. Waddoups, 712 P.2d 223 (Utah 1985), to support his position. In that case, the trial court granted a defense motion to suppress certain evidence, and the State chose to dismiss the information and attempted to appeal the dismissal in order to challenge the suppression ruling. Id. at 223. The supreme court concluded that the State’s appeal was improper under those facts. Id. at 224. The case at hand, however, is much more like Gomez than Waddoups, and Redden overlooks that the supreme court in Gomez specifically decided that the facts of Waddoups were “quite different” given that Waddoups did not involve the trial court reducing the original charges. See State v. Gomez, 722 P.2d 747, 749 (Utah 1986).

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