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Category: Protective Orders

Wilson v. Wilson, 2024 UT App 87 – civil stalking injunction, appeals

Wilson v. Wilson – 2024 UT App 87

THE UTAH COURT OF APPEALS

TKS CO-PACK MANUFACTURING, LLC AND TROY WILSON, Appellants and Cross-appellees, v. DOUG WILSON, Appellee and Cross-appellant.

Opinion No. 20210855-CA Filed June 6, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund

The Honorable James R. Taylor

No. 200401547

Michael D. Stanger, Scarlet R. Smith, and R. Jesse Davis, Attorneys for Appellants and Cross-appellees Brady Brammer and Brenton Ranck, Attorneys for Appellee and Cross-appellant, assisted by law student Annie Carmack[1]

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred, with the exception of Part II.B.2.b. JUDGE HARRIS authored a separate opinion regarding Part II.B.2.b, which JUDGE ORME joined.

LUTHY, Judge:

¶1        This opinion addresses a number of issues related to civil stalking injunctions. It also addresses the requirements for judgments as set forth in rule 58A of the Utah Rules of Civil Procedure and the range of discretion given to district courts when deciding whether voluntary dismissal under rule 41(a) of the Utah Rules of Civil Procedure should be granted with or without prejudice.

¶2        Troy Wilson is the president and co-owner of TKS Co-Pack Manufacturing, LLC (TKS). He hired his brother Doug Wilson to work at TKS. After a time, Doug[2] left TKS. Subsequently, Troy and TKS (collectively, the TKS parties) filed a complaint against Doug, which contained several tort claims as well as a request for a civil stalking injunction. With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. The district court granted a temporary stalking injunction, and Doug then filed an answer and counterclaims. Doug later asked that his counterclaims be dismissed, and they were dismissed without prejudice.

¶3        After an evidentiary hearing, the district court issued a permanent civil stalking injunction (the Stalking Injunction) against Doug and in favor of Troy. The Stalking Injunction also protected “[a]ny customer of TKS” and “[a]ny employees of TKS.” Subsequently, Doug posted on Facebook about the Stalking Injunction and communicated with a prior TKS customer (Prior Customer). The TKS parties then filed a motion requesting that Doug be held in contempt for violating the Stalking Injunction. The district court held another evidentiary hearing, applied the standard for criminal contempt, found that Troy had not established the alleged violations beyond a reasonable doubt, and denied Troy’s motion.

¶4        In the meantime, the TKS parties had also moved to dismiss their tort claims without prejudice. Doug opposed the motion and moved for dismissal of the claims with prejudice. The court dismissed the tort claims without prejudice.

¶5        The TKS parties appeal the district court’s decision not to hold Doug in contempt. Doug also appeals, asserting that the Stalking Injunction was not properly granted in the first place and that the district court erred by dismissing the TKS parties’ tort claims without prejudice.[3]

¶6        As to Doug’s appeal, we conclude that the district court did not err in issuing the Stalking Injunction and that the court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s separate opinion, which is joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and related comments violated the Stalking Injunction.

BACKGROUND
Pre-litigation History

¶7        Troy offered Doug, who was then living in California, a job at TKS, a business in which Troy held a 50% interest. Doug moved to Utah and began working at TKS as a production manager. After about a year and a half, Doug left TKS in mid-2020. Following Doug’s departure, Troy received reports from TKS employees that Doug had allegedly behaved inappropriately toward multiple employees while he worked there.

¶8        Doug then began working for TKS’s landlord (Landlord), a company that had its office in the same building as TKS. In his new role, Doug continued to have interactions with TKS employees that the TKS parties believed were harassment. Thus, Troy emailed Landlord to request that it appoint another of its employees as a point of contact for TKS. TKS also terminated the employment of several of its employees who it believed were attempting to sabotage TKS at Doug’s request.

The TKS Parties’ Complaint

¶9        In October 2020, the TKS parties filed a complaint against Doug, requesting a civil stalking injunction and asserting seven tort claims: tortious interference with employment relationships, tortious interference with customer relationships, tortious interference with government relationships, tortious interference with the landlord-tenant relationship, defamation, tortious infliction of emotional distress, and trespass. The TKS parties alleged, among other things, that after Doug left TKS, he had

·        driven a forklift “into TKS’s roll up door”;

·         convinced several TKS employees to help him fabricate safety violations by TKS by doing such things as staging pictures to make it look like TKS was violating workplace safety regulations;

·         convinced several TKS employees to sabotage TKS by doing such things as putting “grease on a brand new filter that was being used in production”;

·         attempted to falsely “blow the whistle” on TKS by reporting that TKS was transporting CBD without a permit when TKS had such a permit;

·         persuaded Landlord that TKS “was dumping paint and other toxic items into the sewer,” resulting in Landlord terminating TKS’s lease and then reinstating it after another company was identified as the source of the dumping; and

·         continued to harass TKS employees by confronting them for speeding and using a roundabout improperly, “overzealously monitor[ing]” them, “sexually harass[ing] female employees, both on site . . . and via text and phone,” and telling “an employee of TKS that he now knows ‘why Cain killed Abel.’”

The TKS parties asserted that “[t]hese actions by Doug [had] caused Troy and other employees of TKS to fear for their safety and alter their commuting patterns in an attempt to avoid a confrontation with Doug.”

Temporary Civil Stalking Injunction

¶10 With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. In that motion, the TKS parties alleged many of the details recounted above and requested that the district court “issue a stalking injunction against Doug and issue an injunction in the form of a Temporary Restraining Order and preliminary injunction enjoining Doug from having any contact with any TKS employee (including Troy) or customer, and to stay away from Troy’s home, and to stay out of TKS’s facilities.” The district court issued an ex parte civil stalking injunction on October 27, 2020.

Doug’s Suicide Attempt

¶11 Three days later, Doug attempted suicide, prompting the TKS parties to move to modify the temporary stalking injunction in light of Doug’s alleged actions during that episode. Specifically, the TKS parties alleged that Doug had come with a shotgun in his car to the building that housed TKS and Landlord, that he had gone into the building and left a suicide note, and that he had “then [gone] to the mountains with the intent of taking his own life.” The TKS parties further alleged that Doug had “eventually [been] talked out of killing himself, . . . placed in police custody, and then transferred to a hospital.” They continued, “After being released from the hospital, Doug has returned to work. This is problematic as Doug and Troy both work in the same building and the [temporary stalking injunction] specifically orders Doug to ‘stay away’ from Troy’s work.” The TKS parties explained that law enforcement had “declined” to remove Doug from his workplace because the temporary injunction identified as protected premises “the suite . . . of the building instead of the building itself.” Accordingly, the TKS parties sought an amendment that would clarify that the term “‘stay away’ includes but is not limited to staying away from the building and the parking lot.” They also requested “language specifically stating that Doug is prohibited from possessing a firearm.”

Doug’s Answer and Counterclaims

¶12      In November 2020, Doug filed both an answer to the TKS parties’ complaint and several counterclaims. He asserted that the allegations against him were based on “speculation and rumors” and that he “was distraught over being accused of sexual misconduct.” He also recited the severe impact the allegations were having on his health, job, and marriage. Doug’s complaint then recounted Doug’s attempt to end his life:

On October 30, 2020[,] Doug Wilson left a suicide note at his . . . desk [in Landlord’s office]. The note read:

“To my family I love you all with everything I have. I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight. I have come to the end of the line. Forgive me. I want no funeral and no burial. Cremate me and take my ashes anywhere. Kids I love you so much. Everything I own I give to my wife, the house, the belongings, everything.” —Douglas Wilson.

He did not have any shotgun at the time he left the note. He left [Landlord’s office], obtained a shotgun and went to the mountains with intent to take his own life.

Doug’s complaint relayed how he encountered hunters in the mountains, he voluntarily surrendered the gun to them, and they called the police to help him. It further stated that the police had noted, “Douglas believes [his family] would be better off without him because his brother Troy is going to make him lose his job so he can’t support them.” (Alteration in original.) Doug’s complaint then asserted counterclaims of intentional infliction of emotional distress, defamation/libel/slander, interference with economic and employment relations, and wrongful use of civil proceedings. Doug later voluntarily dismissed his counterclaims, purportedly at the behest of his mother. His counterclaims were dismissed without prejudice.

Permanent Civil Stalking Injunction

¶13 In December 2020, the district court held an evidentiary hearing on the motion for a civil stalking injunction. After hearing evidence and arguments, the court first identified incidents that it felt did not provide grounds for making the stalking injunction permanent. Specifically, it said that the allegation that Doug left the suicide note with the intent to harm Troy was “extreme” and “unlikely” and that “[t]he placement of the note at [Doug’s] work” did not evidence “an intent to direct that note or the activity that was . . . intended toward either . . . [TKS] or [Troy].” The court also said that it did not interpret Doug’s reference to Cain and Abel “as a threat to commit bodily harm.” And it reasoned that Doug’s efforts to “enforce parking restrictions” were not “necessarily retaliatory toward . . . the company . . . or Troy . . . or directly committed in a way that intended . . . either physical harm or emotional distress to Troy.”

¶14      The district court then identified evidence that it felt did support a permanent stalking injunction. It first pointed to conversations that Doug had engaged in with his and Troy’s sister (Sister). The court characterized those conversations as Doug communicating, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” The court said, “That’s personal, that’s harmful; and that evinces an intent to . . . cause emotional distress to a specific person, which is what’s required by the statute.” The court then pointed to a text message Doug sent to a person (Vendor) who works for another company owned by Troy and is frequently on site for TKS. After Vendor had a conversation with a TKS employee while at the TKS plant, Doug texted Vendor asking what the pair had been talking about. The court observed, “[Doug] create[d] the impression that he’s all-knowing, that . . . he sees. He create[d] a sense of unease and discomfort. And that is fearful, and that is emotionally frightening. And that can upset the workings of a company and . . . create a cloud of suspicion and distrust for the company.” Finally, the court pointed to a conversation between Doug and Vendor during which Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled,” which the court said “undermine[d] the wellbeing of the company.” The court concluded by saying that these incidents showed that “Doug engaged in this conduct in order to bring . . . [Troy] down” and “in order to cause distress and ruin the company.” Based on these incidents, the court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].”

¶15      The district court further explained that because it did not consider the suicide-related incident to be part of the “course of conduct” required by the stalking statute, see generally Utah Code § 76-5-106.5(2)(a),[4] it was denying the TKS parties’ request that the injunction include “the firearms prescription.” The court also denied the TKS parties’ request that Doug be restricted from the building housing TKS and Landlord’s offices. Instead, it clarified that the permanent stalking injunction would restrict Doug from being involved in any direct interactions between Landlord and TKS, from entering TKS’s premises within the building, and from acting inappropriately on the surrounding premises, such as repeatedly driving around in circles, hovering, or acting with the intent to intimidate.

¶16      The district court thereafter issued the Stalking Injunction, which did not detail the facts giving rise to its issuance but stated, “For the reasons stated on the record, the Court finds that there is reason to believe that Doug Wilson has stalked Troy Wilson.” The Stalking Injunction contained both a “Personal Conduct Order” and a “No Contact Order.” The Personal Conduct Order read:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The No Contact Order read:

Doug must not contact, phone, text, mail, email, or communicate with, either directly or indirectly in any way with Troy and any other person listed below.

The Stalking Injunction was issued in favor of Troy (not TKS) and listed as additional protected persons Troy’s spouse and children, Vendor, three named TKS employees, “[a]ny customer of TKS,” and “[a]ny employee of TKS.”

Motion for Contempt Sanctions

¶17      In March 2021, the TKS parties filed a motion to hold Doug in contempt for violating the Stalking Injunction. The judge who received and adjudicated the contempt motion was not the one who had presided over the proceedings related to the issuance of the temporary stalking injunction and the Stalking Injunction. In their contempt motion, the TKS parties alleged that Doug had violated the Stalking Injunction by making a Facebook post along with subsequent comments related to the post and by communicating with Prior Customer.

¶18      As to the Facebook post, the TKS parties identified a post by “John Dough” that read verbatim:

I have kept my mouth shut for far to long. I have listened to some of my family member bear false witness against me all in a attempt to cover up wrong doing. Had family members try to hurt me to the point to drive me to take my life. They hoped for it. Being sued because I stood up and talked out. For the first time I am appalled to be part of this family. To have family members turn their backs on me. So Christ like to take one side of a story and make it true. All that evil needs to prevale in this world is that good people do nothing. I am so glad you act like Christians.

In response to comments on this post, “John Dough” also posted two comments:

There was a law suite filed against me. I have the document. The stalking injunction was filed against me as well in court. [Sister] mislead and lied in court about what was going on and about what was said. This is why I sent out the post in the first place. You have only one side of a truth which is based in lies.

and

I am just so glad my family has both sides of the story. Oh wait they don’t. Thanks for getting my side of the story so you you have all the information.

Doug admitted that he “uses the name John Dough on Facebook.”

¶19 As to Doug’s communication with Prior Customer, the TKS parties alleged that Doug had informed Prior Customer, “[B]ecause you are a customer of Troy, I am not allowed to talk to you.” The motion ended with the TKS parties’ request that the court “impose a fine and/or incarceration.”

Dismissal of the TKS Parties’ Tort Claims

¶20      By June 2021 and before a hearing on the contempt motion, the parties had engaged in little to no discovery on the TKS parties’ tort claims, and the TKS parties moved to voluntarily dismiss those claims, stating, “Having prevailed on their 8th Cause of Action (Civil Stalking), and having been granted [the] Stalking Injunction against Doug . . . , the TKS [p]arties have obtained the primary relief sought and needed to protect Troy, his family and TKS’[s] employees and customers from Doug.”

¶21      Doug opposed granting a dismissal of the TKS parties’ tort claims without prejudice, and he moved for dismissal of the claims with prejudice. He contended that the TKS parties never “offered any initial disclosures or proof of the . . . devastating smears on Doug’s moral character,” that they did not participate in discovery though the fact discovery period would end in “less than twenty days,” and that they “should not be allowed to raise these serious allegations, idle away their time before the court, and then withdraw their claims with the intent of bringing them again some other time.”

¶22      The court held a hearing on this matter in July 2021. At the conclusion of the hearing, the court stated,

I would have found excusable delay on such a short time frame. I find that the [TKS parties] were involved with other stuff in the case even if they weren’t doing that disclosure. Had they sought additional time from me, I would have granted it. I am loath to dismiss cases. I routinely grant more time . . . for the public policy reasons [the TKS parties’ counsel] outlined about cases being resolved on the merits. So if Doug intends to re-pursue his claims, then I think that it is going to open up the necessity to hear a lot of the evidence that Troy alleges in his claims.

On September 14, 2021, the court issued a written “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss,” in which it dismissed the TKS parties’ tort claims without prejudice.

Hearing and Decision on the Motion for Contempt Sanctions

¶23 The following week, the court held a hearing on the contempt matter, with the judge who had not conducted the original stalking injunction proceedings presiding. The court informed the parties that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. Thus, the court limited the witnesses to giving “testimony in regards to the allegations in the contempt proceeding.” The TKS parties contended that “the question of . . . whether [Troy] suffered emotional distress [from the alleged violations of the Stalking Injunction] is context specific” and that evidence of events that occurred before the contempt action was necessary to establish “what a reasonable person in Troy’s shoes looks like.” The court indicated that it would “take judicial notice of the fact that there were prior proceedings” and “of the order that was issued by [the previous judge] and the findings that [the previous judge] made in relation to” the initial proceedings. The TKS parties noted their concern that “there was testimony underlying those orders” and “some of the facts that . . . came out [were not] necessarily memorialized in [the Stalking Injunction] itself, or in [the prior] ruling.” Doug also stated his contrary concern that Troy not be allowed to testify about matters the previous judge “found irrelevant or unpersuasive for purposes of [the Stalking Injunction].” The court then reiterated its view that “the scope of [the contempt] proceeding” was the “limited allegations of the order [to show cause].”

¶24      During the hearing, Doug did not dispute that he authored the Facebook post and related comments that the TKS parties contended violated the Stalking Injunction, nor did he dispute their contents. Also during the hearing, the court received evidence of an email Doug sent to Prior Customer in March 2021 asking Prior Customer to tell him the last date he did any business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. Prior Customer also testified that when he had initiated contact with Doug in the past, Doug had said, “[I]f you’re a TKS customer, I can’t talk to you . . . .”

¶25 The court issued an order on the contempt motion on October 13, 2021. Therein the court first explained that it was applying the standard for criminal contempt:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

¶26 The court then addressed Doug’s Facebook post and comments by turning to the language of the Stalking Injunction’s Personal Conduct Order and noting that it “contain[ed] a citation” to Utah Code section 76-5-106.5 “for the legal definition of stalking” and that “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party.” But the court also noted that the Stalking Injunction did “not contain that language, and no evidence exist[ed] in the record that Doug Wilson ever consulted the statute.” The court then determined that “because no evidence exist[ed] [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exist[ed] as to whether Doug intended the message to violate[] the order.” The court highlighted that “[n]either Troy Wilson nor any other protected party were friends on the Facebook platform with Doug Wilson at the time of his . . . posting, and Doug deleted the post and his account shortly thereafter.” “Moreover,” the court continued, “the post does not reference Troy Wilson by name, such that acquaintances unfamiliar with the details of the lawsuit would not associate Troy with the content of the post.” And the court observed that “[i]n the subsequent comments to the original post, Doug Wilson asserted that his reference to ‘my family member’ who bore ‘false witness against me’ related to [Sister]” and Sister was not “among the protected parties” of the Stalking Injunction. The court concluded that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exist[ed] as to whether Doug intended the message to reach Troy and cause Troy emotional distress.”

¶27      The court also considered “the circumstances surrounding the case at bar,” which involved “great turmoil in the extended Wilson family” as “Doug and Troy are the youngest of 11 siblings, and the controversy was causing division and divided loyalties in the family.” Given this, the court concluded that “a reasonable doubt exist[ed] as to whether the [Facebook] post was designed to harass or annoy Troy, rather than Doug’s stated intention of determining who in the family supported him.” Also of note, the court found “that all of the witnesses from [the] Wilson family possess[ed] such significant biases that the court [could not] credit any of their testimony beyond a reasonable doubt.”

¶28 The court further determined that “a reasonable doubt exist[ed] as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post, even if the post would cause some lesser degree of annoyance.” On this front, the court stated that “[t]he only persons who commented on Doug’s Facebook post were immediate Wilson family members, and the only persons who spoke to Troy about the post were family members and a small number of employees and old family friends.” The court indicated that the evidence suggested that “all of the family members and acquaintances who viewed or learned about the post [held] Troy in high esteem and the post did not influence their perception of him.”

¶29 As to Doug’s communication with Prior Customer, the court stated that “the content” of Doug’s messages to Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶30 Ultimately, as to both the Facebook post and Doug’s communication with Prior Customer, the court ruled that the TKS parties “failed to meet the heavy burden of establishing the alleged violations beyond a reasonable doubt” and thus denied the motion to find Doug in contempt.

The Appeals

¶31 In November 2021, the TKS parties appealed the district court’s decision declining to hold Doug in contempt. Later that same month, Doug appealed the Stalking Injunction and the district court’s decision to dismiss the TKS parties’ other claims without prejudice.

ISSUES AND STANDARDS OF REVIEW
Doug’s Appeal

¶32 As an initial matter, the TKS parties assert that this court lacks jurisdiction over Doug’s appeal. “Whether this court has jurisdiction over [an] appeal is a question of law that we review for correctness.” Ashton v. Learnframe, Inc., 2008 UT App 172, ¶ 7, 185 P.3d 1135, cert. denied, 199 P.3d 970 (Utah 2008).

¶33      Besides jurisdiction, Doug’s appeal raises three issues. First, Doug asserts that the district court erred by employing a legally incorrect interpretation and application of the stalking statute when it ruled that Doug’s actions “aimed at [TKS]” could form the basis of the Stalking Injunction in favor of Troy. “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (cleaned up); see also Ragsdale v. Fishler, 2021 UT 29, ¶¶ 15, 20, 491 P.3d 835 (reviewing “for correctness” the district court’s determination of whether particular actions by the respondent legally qualified as a course of conduct “directed at” the petitioner (cleaned up)).

¶34      Second, Doug challenges the district court’s finding that he knew or should have known that his actions constituting a “course of conduct” under the stalking statute would cause a reasonable person in Troy’s position to experience emotional distress. “On review of both criminal and civil proceedings, we accept the trial court’s findings of fact unless they are clearly erroneous.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (cleaned up), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991); see also Baird, 2014 UT 08, ¶ 16 (“When reviewing factual determinations, [appellate] court[s] will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” (cleaned up)).

¶35 Finally, Doug argues that the district court erred by dismissing the TKS parties’ tort claims without prejudice. “A trial court has discretion to determine whether to grant a motion for voluntary dismissal,” and it is “entitle[d] . . . to grant or dismiss the motion upon such terms and conditions as the court deems proper.” H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 4, 323 P.3d 1025 (cleaned up). Accordingly, “we review a trial court’s decision” as to granting a voluntary dismissal with or without prejudice “for an abuse of discretion.” Id. (cleaned up).

The TKS Parties’ Appeal

¶36      In their appeal, the TKS parties assert that the district court erred when it applied “the criminal standard” for contempt. They further contest the court’s determination not to hold Doug in contempt. When, as here, the alleged “contempt is not committed in the immediate view and presence of the court or judge, we review a district court’s findings of fact for clear error and apply a correction of error standard to our review of the district court’s legal determinations.” Valerios Corp. v. Macias, 2015 UT App 4, ¶ 10, 342 P.3d 1127 (cleaned up). Once a court finds the existence of facts necessary to support a contempt sanction, “the decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up). “That discretion includes not just the power to decide whether a party should be held in contempt, but the power to determine whether the purpose of a particular contempt order is civil or criminal.” Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 3, 302 P.3d 833 (cleaned up), cert. denied, 312 P.3d 619 (Utah 2013).

¶37      The TKS parties also challenge the district court’s decision to exclude from the contempt proceedings evidence of the full circumstances surrounding the incidents that gave rise to the Stalking Injunction. We review the district court’s “determinations regarding the admissibility of evidence under an abuse of discretion standard.” Anderson, 2008 UT App 3, ¶ 25.

ANALYSIS

I. Doug’s Appeal

¶38 We first address Doug’s appeal. Doug challenges the district court’s decision to issue the Stalking Injunction in the first instance. He also challenges the district court’s decision to dismiss the TKS parties’ tort claims without prejudice. For their part, the TKS parties contend that “this court lacks jurisdiction to consider [Doug’s] appeal because it was not made timely.” We begin by addressing the threshold issue of jurisdiction. We then address, in turn, Doug’s challenges to the district court’s orders.

A.        Whether This Court Has Jurisdiction

¶39 The TKS parties contend that Doug did not file a timely notice of appeal and, therefore, that this court lacks jurisdiction over his appeal. According to the TKS parties, the court’s order dismissing the TKS parties’ claims without prejudice on September 14, 2021, was a final judgment that triggered the thirty-day deadline for Doug to file a notice of appeal. Thus, the TKS parties assert, “Doug’s appeal of the principal action was due October 14, 2021—more than a month before Doug filed a notice of appeal.” We hold that the September 14 order was not a final judgment and, therefore, that it did not trigger the thirty-day deadline for Doug to file a notice of appeal. Instead, the thirty-day deadline for Doug to file a notice of appeal was triggered 150 days after the court entered the September 14 order.[5]

¶40      Rule 4 of the Utah Rules of Appellate Procedure provides that, with a few exceptions not applicable here, “in a case in which an appeal is permitted as a matter of right from the trial court to the appellate court, the notice of appeal . . . must be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Utah R. App. P. 4(a). Rule 58A of the Utah Rules of Civil Procedure requires that, again with some exceptions that are not applicable here, “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a)—(b). Rule 58A also provides that when “a separate document is required, a judgment is complete and is entered at the earlier of” (A) when “the judgment is set out in a separate document signed by the judge and recorded in the docket” or (B) when “150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” Id. R. 58A(e)(2).

¶41      In Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, our supreme court analyzed an “Order of Dismissal with Prejudice” entered by the trial court in that case to determine whether it met the requirements of rule 58A(a) and was thus a “judgment” under that rule. Id. ¶¶ 23–28. The order had been prepared in response to a directive from the trial court to the defendant’s counsel to “draft[] a proposed order confirming the court’s oral ruling” on the defendant’s motion to dismiss. Id. ¶ 23. The supreme court held that the order did not qualify as a “judgment” under rule 58A(a). Id. ¶ 28.

¶42 The supreme court first explained that “the goal of Utah rule 58A(a) is to impose a clear line of demarcation between a judgment and an opinion or memorandum” and that “to distinguish a judgment from an order or ruling, it should be identified accordingly.” Id. ¶ 22 (cleaned up). The court then observed that the order at issue “was not titled ‘Judgment,’ but was instead named ‘Order of Dismissal with Prejudice’” and that this was “not a mere technical deviation” from the rule. Id. ¶ 23. Rather, the title “accurately described” the document’s purpose, which was to confirm the trial court’s oral ruling, not to be “a separate judgment documenting the resolution of all claims in the district court.” Id.

¶43      The supreme court next emphasized the rule’s requirement that a “judgment be set out in a ‘separate document.’” Id. ¶ 24 (cleaned up). It noted that “separate means individual; distinct; particular; disconnected” and declared that “a separate judgment, by definition, must be self-contained and independent from any other document in the case, including the decision that gave rise to it.” Id. (cleaned up). Even if a particular decision “disposes of all claims in the action” and the trial court “directs a party to prepare an order confirming [that] decision,” the court explained, “a separate judgment is required” in order to comply with rule 58A(a). Id. ¶ 26 (cleaned up). Although the order at issue in Griffin was “separate from the [trial] court’s oral ruling and accompanying minute entry, that [was] beside the point.” Id. To be a “judgment,” it needed to be wholly separate from the decision giving rise to the judgment. See id.

¶44 Finally, and “[m]ost importantly,” the Griffin court observed that the order in that case “serve[d] a different function than a 58A(a) judgment.” Id. ¶ 27. The purpose of “a separate 58A(a) judgment” is not to “operate at the decision level” but, rather, to “operate[] at the case level to signal that all claims involving all parties have been resolved.” Id. The fact that the order at issue in Griffin “contain[ed] procedural history, legal reasoning, and factual content” indicated that it operated at the decision level, not the case level. Id. ¶ 28.

¶45 In sum, because the document in Griffin was not “clearly identified as a judgment,” was not “separate from the court’s decision on the relevant motion,” and was not “limited to only that information relevant to a judgment,” it was “not a separate 58A(a) judgment.” Id.

¶46 The reasoning of Griffin applies here, compelling the conclusion that the September 14 order is not a separate rule 58A(a) judgment either. Like the order in Griffin, the September 14 order is not titled “Judgment” but, instead, is titled “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss.” Also like the order in Griffin, the September 14 order does not amount to a self-contained judgment that is independent from the decision that gave rise to it. Finally, the September 14 order operates primarily at the decision level, not at the case level. It states, in full:

This case came on for hearing on July 13, 2021[,] on: (1) the Motion to Dismiss filed by [the TKS parties], which sought voluntary dismissal of Causes of Action 1–7 contained in the Verified Complaint & Petition for Civil Stalking Injunction (“the Complaint”), without prejudice; and (2) [Doug’s] Motion to Dismiss, which sought dismissal of the same claims with prejudice. . . . The [c]ourt, having considered the motions and corresponding memoranda, and the oral argument of counsel, for the reasons stated on the record, HEREBY ORDERS THAT:

1. [The TKS parties’] Motion to Dismiss is GRANTED;

2. [Doug’s] Motion to Dismiss is DENIED;

3. Claims 1–7 in the Complaint are dismissed without prejudice; [and]

4. With Claim 8 having resulted in the issuance of a civil stalking injunction, and [Doug] having previously dismissed his counterclaim, all claims in this case have now been resolved.

While the order does not wax long on “procedural history, legal reasoning, and factual content,” id., it does address the procedural posture of the motions, recount details of the hearing, and incorporate the reasoning the court stated at the hearing—all decision-level information. Admittedly, the last sentence of the order says that “all claims in this case have now been resolved,” which is a case-level statement. But because the order predominantly operates at the decision level, it does not qualify as a judgment under rule 58A(a). Cf. In re Cendant Corp., 454 F.3d 235, 241 (3d Cir. 2006) (explaining that to qualify as a judgment under federal rule 58(a), an order “must omit (or at least substantially omit) the [d]istrict [c]ourt’s reasons for disposing of the parties’ claims”).[6]

¶47      The TKS parties ask us to conclude that the September 14 order qualifies as a judgment because “the parties exchanged emails about and edited the document to clarify that the case was over with nothing left to be litigated.” After the TKS parties’ counsel emailed the proposed order to Doug’s counsel for approval, Doug’s counsel responded with an email saying, “What is your position as to [cause of action] #8 (injunction)[?] We probably need to make it clear as to whether the case is over or not through this. It seems that this ends the case, but I am not sure if you are of the same opinion.” Counsel for the TKS parties wrote back, “We are of that opinion. Each of the claims in the Verified Complaint has been resolved, and with this dismissal and Doug’s earlier dismissal of his counterclaim, there is nothing left to be litigated in this case. For clarity, I’ve added a sentence in the attached.” From this exchange, it does appear that the parties intended for the September 14 order to serve as a judgment under rule 58A(a). But because this court’s jurisdiction is tied to a timing determination that depends on when a final judgment is entered, the question of whether a document complies with rule 58A(a) cannot turn on the parties’ subjective intent. Cf. Duke Cap. LLC v. Proctor, 2023 UT App 59, ¶ 25, 531 P.3d 745 (recognizing that “parties cannot create, by contract, jurisdiction that would not otherwise exist” (cleaned up)). Instead, rule 58A(a) compliance is determined by whether the document at issue objectively satisfies the requirements of the rule.

¶48 The September 14 order objectively does not satisfy the requirements of rule 58A(a), and it therefore did not trigger a thirty-day deadline to appeal. Instead, that deadline was triggered 150 days after the clerk recorded the September 14 order. See Utah R. Civ. P. 58A(e)(2)(B). Thus, Doug’s appeal, which was filed before those 150 days had run, was timely. See Utah R. App. P. 4(c) (“A notice of appeal filed after the announcement of a decision, judgment, or order but before entry of the judgment or order will be treated as filed after such entry and on the day thereof.”). We therefore have jurisdiction to consider it.

B.        Whether the Stalking Injunction Was Proper

¶49      Having determined that we have jurisdiction to consider Doug’s appeal, we now address his first contention, which is that the district court should not have granted the Stalking Injunction in the first instance. “Under Utah’s civil stalking [injunction] statute, a person who believes that he or she is the victim of stalking may obtain an injunction against an alleged stalker” by “prov[ing] by a preponderance of the evidence that an offense of stalking has occurred.” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 78B-7-701. At the time of Doug’s alleged stalking, to prove that an offense of stalking had occurred, a person was required to show that (1) the alleged stalker “intentionally or knowingly engage[d] in a course of conduct directed at [the] person” and (2) the alleged stalker knew or should have known “that the course of conduct would cause a reasonable person to fear for the person’s own safety or suffer other emotional distress.” Ragsdale2021 UT 29, ¶ 25 (cleaned up); see also Utah Code § 76-5-106.5(2) (2020). Doug asserts that (1) the district court committed legal error when it ruled that Doug had engaged in a course of conduct and (2) even if Doug had engaged in a course of conduct, the evidence does not support a finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress. We disagree with each of Doug’s assertions.

1.         Course of Conduct

¶50      Doug asserts that the court committed legal error when it ruled that he had engaged in a course of conduct. The stalking statute’s definition of a “[c]ourse of conduct” is broad. See Utah Code § 76-5-106.5(1)(a)(i). It defines a course of conduct as “two or more acts directed at or toward a specific individual,” id., and it says that those acts may include “acts in which the actor . . . communicates to or about an individual, or interferes with an individual’s property . . . directly, indirectly, or through any third party,” id. § 76-5-106.5(1)(a)(i)(A). It also says that the acts may include instances when the actor “appears at the individual’s workplace or contacts the individual’s . . . coworker”; “enters property owned, leased, or occupied by an individual”; or “sends material . . . for the purpose of . . . disseminating information about . . . the individual to a . . . coworker, friend, or associate of the individual.” Id. § 76-5-106.5(1)(a)(i)(B)(II)–(IV). Any of the foregoing types of conduct qualifies to be part of a course of conduct even if the actor “uses a computer, the Internet, text messaging, or any other electronic means to commit [the] act.” Id. § 76-5-106.5(1)(a)(i)(B)(VI).

¶51      In this case, Doug agrees that the district court identified three instances of stalking behavior that the court said amounted to a course of conduct. First, the court identified the conversations during which Doug essentially told Sister, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” Second, the court identified the text message Doug sent to Vendor asking what he had been talking about with a TKS employee, even though Doug had not been visibly present during the conversation and the participants would not, therefore, have had reason to know that Doug was aware the conversation had occurred. Third, the court identified a conversation between Doug and Vendor wherein Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled.”

¶52      After identifying these instances of stalking behavior, the district court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].” Based on this statement, Doug contends that the court’s finding of a course of conduct was “mistaken as a matter of law” because “[n]owhere in the stalking statute does it suggest that a harm can be directed at a company” and qualify as part of a course of conduct but, rather, “harms to companies, as opposed to specific individuals, are simply not contemplated by the statute.” Restated, we understand Doug’s argument to be that conduct that the court acknowledges was “aimed at [TKS]” cannot at the same time legally qualify as conduct “directed at” Troy for purposes of finding a course of conduct under the stalking statute.[7]

¶53 Our supreme court considered a related question in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, the director of “an inpatient treatment facility for young women recovering from severe depression and anxiety” sought a civil stalking injunction protecting her from a neighbor living on the same street as the facility. Id. ¶¶ 1, 6–7. The neighbor “feared [the facility] would increase noise and traffic in the neighborhood,” and he “began protesting the facility directly” by placing “signs in his yard” that disparaged the facility. Id. ¶¶ 6–7. “He also began flipping off and swearing at employees, clients, and anyone else involved with [the facility].” Id. ¶ 7. Eventually, after the neighbor routinely flipped off the director and began “coming out of his garage to say things” to her directly, the director sought a stalking injunction against the neighbor. Id. ¶¶ 7–9. The district court issued an ex parte temporary injunction, but following an evidentiary hearing, it declined to issue a permanent stalking injunction, reasoning that the neighbor had “not direct[ed] his conduct at [the director] but toward [the facility] as a business.” Id. ¶¶ 9, 12.

¶54      On appeal, the supreme court ruled that the district court had “erred in concluding that because [the neighbor] claimed to subjectively target only [the facility], he did not direct his conduct at [the director].” Id. ¶ 24. The supreme court observed that “nothing in the statute defines the term ‘directed at’” or “expressly indicate[s] that [a stalking] petitioner must be the ‘ultimate target’ of a respondent’s course of conduct.” Id. ¶ 31. Instead, the court explained, “regardless of whether a petitioner is a respondent’s ultimate target, the fact that the respondent engaged in any act proscribed by the statute two or more times makes his or her conduct ‘directed at’ the petitioner.” Id. ¶ 32. Thus, the Ragsdale court concluded, “the person toward whom a respondent’s behavior is ‘directed at’ . . . is determined by an objective assessment of whether the respondent engaged in conduct prohibited by the stalking statute.” Id. ¶ 37. “And this is true even where a respondent directs his or her conduct at a petitioner indirectly or through a third party.” Id. (cleaned up). Accordingly, “[t]he fact that [the facility] was allegedly [the neighbor’s] ultimate target [did] not shield him” from a finding that his actions constituted a course of conduct toward the director. Id. ¶¶ 39, 42. “It simply mean[t] [that the facility] could potentially obtain an injunction against [the neighbor] as well.” Id. ¶ 39; see also supra note 7. Based on this holding, the supreme court remanded the Ragsdale case to the district court for a course-of-conduct determination under a proper understanding of the statute. 2021 UT 29, ¶ 43.

¶55 Another case merits mention in this context as well. In Carson v. Barnes, 2016 UT App 214, 385 P.3d 744, a petitioner sought a stalking injunction based on an alleged course of conduct that included an incident where the respondent had taken “a handgun from his vehicle and confronted” two business associates of the petitioner when the petitioner was not present. Id. ¶¶ 3, 9, 16. The respondent contended that reliance on this incident was “problematic because [the petitioner] was not present, and therefore [the respondent’s] actions on that day were not ‘directed at’ [the petitioner] as the statute requires.” Id. ¶ 16. We disagreed and held that “the statute does not require the victim to be physically present for an act to be considered in the course of conduct” because “the plain language of the statute . . . includes situations in which the actor comes to the person’s workplace or contacts the person’s . . . coworkers, without requiring the presence of the victim.” Id. ¶¶ 16–17 (cleaned up).

¶56 The Ragsdale and Carson holdings apply to this case. Specifically, under the Ragsdale holding, the district court’s acknowledgment that Doug’s conduct “was aimed at [TKS]” is not legally at odds with a determination that Doug had engaged in a course of action directed at Troy. That is because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the statute. Doug’s conversations with Sister wherein he said, among other things, that he would ruin Troy amounted to acts in which Doug “communicate[d] . . . about [Troy] . . . directly, indirectly, or through any third party.” Utah Code § 76-5-106.5(1)(a)(i)(A)(I). And Doug’s text message to Vendor about a conversation Doug had not been visibly present for as well as Doug’s conversation with Vendor wherein he suggested that he was going to tell a TKS customer how their product was being handled each amounted to Doug “contact[ing] [Troy’s] . . . coworker,” id. § 76-5-106.5(1)(a)(i)(B)(II), and perhaps also to Doug “send[ing] material . . . to a . . . coworker” of Troy “for the purpose of . . . communicating with [Troy],” id. § 76-5-106.5(1)(a)(i)(B)(IV). Additionally, under the Carson holding, none of these actions by Doug are disqualified from contributing to a course of conduct directed at Troy by virtue of the fact that Troy was not present for or the direct recipient of the conduct. Because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the stalking statute as against Troy, the court committed no legal error by ruling that these three instances constituted a course of conduct directed at Troy, even if the same instances might also have been aimed at TKS.

2.         Emotional Distress

¶57      Doug also asserts that, even if he engaged in a course of conduct directed at Troy, the evidence does not support the district court’s implicit finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress.[8] At the time of Doug’s alleged conduct, a determination that stalking had occurred required a finding that the actor “[knew] or should [have known] that the course of conduct would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2) (2020).[9] The statute defines “[e]motional distress” to mean “significant mental or psychological suffering.” Id. § 76-5-106.5(1)(a)(ii)(A) (2024). And it defines “[r]easonable person” to mean “a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(a)(v). “By including ‘in the victim’s circumstances’ as part of the reasonable person definition, the statute provides for an individualized objective standard, meaning that a court must consider the entire context surrounding the defendant’s conduct.” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up). “Courts applying this individualized objective standard have considered such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, and the cumulative effect of the defendant’s repetitive conduct.” Id. (cleaned up). “Another consideration could be whether the behavior might cause damage to one’s reputation, relationships, or livelihood.” Id. (cleaned up).

¶58 With regard to the consideration of whether a course of conduct might cause damage to one’s reputation, relationship, or livelihood, the stalking case of Richins v. Weldon, 2023 UT App 147, 541 P.3d 274, is instructive. There, this court emphasized that the respondent “was saying very negative things” about the petitioner, a vice president of a company, to the petitioner’s “fellow employees and boss, including telling [the boss] that he should fire” the petitioner. Id. ¶¶ 2, 69. Because the respondent’s “behavior could have damaged [the petitioner’s] work relationships and reputation as well as his livelihood,” we determined that “ample evidence existed for the district court to conclude that a reasonable person in [the petitioner’s] circumstances would feel emotional distress.” Id. ¶ 69.

¶59      Here, Doug was a former production manager of TKS who was familiar with TKS’s operations and employees. After leaving TKS, he was employed by Landlord and continued to work in the same building that housed TKS. Thus, Doug was well positioned to harm Troy by harming TKS. And that’s exactly what he told Sister he intended to do. Doug asserts that “[e]xpressing an intent to sue is not emotionally distressing” and that “[w]anting to ‘ruin’ someone is more so an expression of frustration or anger rather than a phrase intended to cause significant stress or suffering.” We agree that a threat of civil litigation by itself would not satisfy the emotional distress component of stalking. But Doug did not simply threaten to file a lawsuit, and we do not agree that, under the circumstances, the court was required to interpret Doug’s express desire to “ruin” Troy and cause both TKS and Troy to “lose everything” to be a mere expression of frustration. Actions undermining TKS could certainly undermine Troy’s livelihood where Troy held a 50% interest in TKS. And if TKS employees felt targeted by Doug in his effort to get at Troy, that could certainly interfere with Troy’s work relationships. Indeed, the district court specifically found that the sum of Doug’s communications to Sister “evince[d] an intent to . . . cause emotional distress to a specific person,” namely Troy; that the text from Doug to Vendor “create[d] the impression” that Doug was “all-knowing” and “create[d] a sense of unease and discomfort” that could “upset the workings of a company and . . . create a cloud of suspicion and distrust for the company”; and that the conversation wherein Doug “suggested that he was going to go to . . . [a] customer and tell them how their . . . product [was] being handled” “undermine[d] the wellbeing of the company.” All of these findings were reasonable under the circumstances, and they amply support the overarching finding that Doug knew or should have known that his course of conduct would cause emotional distress to a reasonable person in Troy’s position.

¶60 Accordingly, Doug has failed to demonstrate that the district court erred in issuing the Stalking Injunction.[10]

C.        Whether the TKS Parties’ Tort Claims Were Properly Dismissed Without Prejudice

¶61    Apart from challenging the Stalking Injunction, Doug also argues that the district court abused its discretion when it dismissed the TKS parties’ tort claims without prejudice, as opposed to with prejudice. Rule 41 of the Utah Rules of Civil Procedure indicates that “[u]nless the order states otherwise, a [voluntary] dismissal [by court order] is without prejudice.” Utah R. Civ. P. 41(a)(2). This provision confirms that the default for voluntary dismissals is dismissal without prejudice. The rule also directs a court to grant a motion for voluntary dismissal “only on terms the court considers proper.” Id. In Rohan v. Boseman, 2002 UT App 109, 46 P.3d 753, cert. denied, 59 P.3d 603 (Utah 2002), we adopted the Tenth Circuit’s analysis in Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997), which includes a list of “relevant factors the trial court should consider” when determining “proper” terms of dismissal under rule 41(a)(2). Rohan, 2002 UT App 109, ¶¶ 20–22 (cleaned up). The Ohlander factors include “the opposing party’s effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation.” Id. ¶ 21 (cleaned up). These factors have since been employed in analyzing a district court’s decision to grant or deny a motion for voluntary dismissal, see, e.g.Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶¶ 25‒26, 445 P.3d 434, and in analyzing a district court’s decision to grant a motion for voluntary dismissal with or without prejudice, see H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 5, 323 P.3d 1025. These factors “are by no means exclusive[,] and any other relevant factors should also be considered.” Id. (cleaned up).

¶62      Doug frames his argument in terms of the factors set forth in Westinghouse Electric Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876 (Utah 1975), which are used when determining whether a dismissal with prejudice for failure to prosecute should be granted: “the length of time since the suit was filed,” “the conduct of both parties,” “the opportunity [the parties have] had to move the case forward and what they have done about it,” “what difficulty or prejudice may have been caused to the other side,” and “whether injustice may result from the dismissal.” Id. at 879. These factors are similar to the Ohlander factors, and we agree that some of them are also relevant here.

¶63      Under the Ohlander and Westinghouse factors that we deem to be relevant here, we conclude that the district court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. First, as to whether injustice resulted from a dismissal without prejudice, we note that Doug’s claims—which he raised as counterclaims to the TKS parties’ complaint—were also voluntarily dismissed without prejudice, leaving Doug able to bring his claims again in the future if he so desires. On this score, the court’s dismissal of the TKS parties’ claims without prejudice preserved parity between the parties regarding possible future litigation, an outcome that appears just on its face. Cf. Clear Creek Dev., LLC v. Peterson Pipeline Ass’n, 2024 UT App 22, ¶ 24, 545 P.3d 306 (stating, in the context of determining when a counterclaim is compulsory under rule 13(a) of the Utah Rules of Civil Procedure, that an outcome “allowing both parties the option to bring their claims anew in a subsequent action . . . is certainly the more just outcome”).

¶64      Doug argues that the district court abused its discretion by dismissing the TKS parties’ claims without (as opposed to with) prejudice because “[t]he case had been on the court’s docket for almost eight months,” “fact discovery was set to end [in] less than three weeks,” and “the TKS parties had done nothing to litigate any of their [tort] claims.” These facts implicate the Ohlander factor regarding excessive delay and lack of diligence on the part of the movant. But we believe that these factors ultimately weigh neutrally or in the TKS parties’ favor here. During the eight months that their tort claims were pending, the TKS parties did not exhibit a lack of diligence generally; they were actively litigating their request for a stalking injunction as well as their motion for contempt sanctions. Additionally, we credit the district court’s indication that, in its view, the eight-month delay in discovery was a relatively “short time frame” under the circumstances and that an allowance of “additional time” for discovery would have been merited if the TKS parties had sought it.

¶65      As to the factor regarding the opposing party’s expense in preparing for trial, we do not have reason to doubt Doug’s claim that his litigation expenses “amounted to over a third of his yearly salary.” Yet those expenses were nevertheless limited by the TKS parties’ decision not to initiate depositions and other costly discovery related to their tort claims while they litigated the Stalking Injunction. Thus, we believe that this factor weighs out neutrally when it comes to evaluating the propriety of dismissing the TKS parties’ claims without prejudice.

¶66 Finally, Doug argues that dismissal with prejudice was required because the TKS parties’ “unsubstantiated claims have cost [him] his personal relationships and led him to try and commit suicide.” While we are not unsympathetic to the emotional and relationship costs that are often incurred through litigation, Doug provides no support for the proposition that this type of prejudice is properly within the scope of our inquiry. Without such authority, we are unconvinced that emotional and relationship costs constitute the type of “legal prejudice” that the Ohlander factors are designed to prevent. See 114 F.3d at 1537 (explaining that “[t]he parameters of what constitutes ‘legal prejudice’ are not entirely clear” but providing factors to guide this inquiry, which speak in terms of “effort,” “delay,” “expense,” and “diligence”). Indeed, although to this point the TKS parties’ tort claims have not been substantiated, there has been no contention that they are frivolous, and our system does not condition the ability to maintain potentially meritorious litigation on a showing that the process will not cause stress to the opposing party.

¶67 In sum, in light of the factors that are relevant here, we determine that the district court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

II. The TKS Parties’ Appeal

¶68 We now turn to the TKS parties’ appeal. The TKS parties first challenge the district court’s decision to treat their motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt. The TKS parties also challenge, for several reasons, the court’s decision not to hold Doug in criminal contempt. We address the TKS parties’ various arguments in turn.

A.        Whether the District Court Applied the Correct Standard for Contempt

¶69 The TKS parties assert that the district court erred by “applying the criminal standard” for contempt. We disagree.

¶70      Whether a contemplated contempt order is civil or criminal determines the standard of proof a court must apply to find that the elements of contempt have been met: for civil contempt, the standard is clear and convincing evidence; for criminal contempt, it is proof beyond a reasonable doubt. Koehler v. Allen, 2020 UT App 73, ¶ 14 & n.3, 466 P.3d 738. “The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.” Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). “A criminal contempt order is punitive in nature, whereas a civil contempt order has a remedial purpose.” Koehler, 2020 UT App 73, ¶ 14 n.3. “A remedial purpose is indicated when the contemner is allowed to purge him- or herself of the contempt by complying with the court’s orders.” Von Hake, 759 P.2d at 1168. Accordingly, “a contempt order is criminal if the fine or sentence imposed is fixed and unconditional, but [it] is civil if the fine or imprisonment is conditional such that the contemner can obtain relief from the contempt order merely by doing some act as ordered by the court.” Id. at 1168 n.5. For example, in the stalking injunction context, this court has found a contempt order civil when its sanctions included “a jail term of 10 days and a fine of $300” because “these sanctions were stayed to allow [the contemner] an opportunity to purge his contempt . . . by having no further contact . . . with [the protected party] for a period of two years.” Koehler, 2020 UT App 73, ¶ 14 n.3 (cleaned up).

¶71 The district court determined that the contemplated contempt order in this case was criminal, explaining:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

This determination was not an abuse of discretion.

¶72 First, the TKS parties did not indicate in their motion for contempt that they were seeking a civil contempt adjudication. Their motion asked the court to “impose a fine and/or incarceration,” without any mention of giving Doug an opportunity to purge his contempt. That the relief the TKS parties requested was not conditional suggests that the contempt they sought was not civil. See id. (“Because this order was conditional such that [the contemner] could obtain relief by staying away from [the protected party], the contempt order is not criminal but civil.”).

¶73 Moreover, regardless of what the TKS parties requested, the court gave sound reasons for its application of the criminal standard. Its finding that Doug had “substantially complied” with the terms of the Stalking Injunction—a finding that the TKS parties do not challenge on appeal—supports the court’s determination that the chief reason for it to hold Doug in contempt “would be to vindicate the court’s authority, rather than to compel future compliance.” This finding supports the court’s determination that a contempt sanction in this case would be “punitive in nature.” The court employed the correct standard in approaching this issue, and it provided sound reasoning for its determination that the proceeding was criminal in nature. Thus, the court did not abuse its discretion related to this issue.

B.        Whether the District Court Erred in Not Holding Doug in Contempt

¶74      The TKS parties next challenge the district court’s decision, even under the criminal standard, not to hold Doug in contempt. Relatedly, the TKS parties also assert that the court abused its discretion by excluding certain evidence during the contempt hearing. The TKS parties’ motion for contempt sanctions was based on two sets of alleged violations of the Stalking Injunction: Doug’s communications with Prior Customer and Doug’s Facebook post and related comments. We first review the court’s determination that Doug’s communications with Prior Customer did not satisfy the elements of contempt. We then review the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt. We address the evidentiary issue as part of our review of the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt.

1.         Doug’s Communications with Prior Customer

¶75 The TKS parties identified Doug’s communications with Prior Customer as violative of the Stalking Injunction’s No Contact Order. “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court found that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally failed to comply with the Stalking Injunction. The TKS parties challenge that finding. We determine that this finding is not clearly erroneous and, therefore, that Doug’s communications with Prior Customer cannot be a basis for holding Doug in contempt.

¶76 The Stalking Injunction’s No Contact Order stated that “Doug must not contact, phone, text, mail, email, or communicate . . . either directly or indirectly in any way with . . . [a]ny customer of TKS.” While there was evidence that Doug spoke with and emailed Prior Customer, who had at some point been a customer of TKS, the district court was also presented with evidence that Prior Customer had been the one to initiate contact with Doug and that when he had initiated contact, Doug told him, “[I]f you’re a TKS customer, I can’t talk to you . . . .” The court also received evidence that Doug subsequently sent Prior Customer an email asking for the last date on which he had done business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. The court found that “the content” of Doug’s communications with Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶77      The TKS parties acknowledge that if Prior Customer was the one who initiated contact with Doug, “it is unclear how Doug could have handled [the situation] differently” and that when Doug subsequently emailed Prior Customer, Doug “was apparently trying to determine whether [he] was a ‘current’ customer or a prospective customer.” Yet the TKS parties appear to argue that because Doug’s email asking Prior Customer “how long he had been working with TKS” was sent three days after Doug was served with the motion for contempt sanctions, the email must have amounted to an intentional failure by Doug to comply with the Stalking Injunction. Specifically, they apparently contend that because “Doug knew Troy considered his communications with [Prior Customer] to be a violation of the Stalking Injunction” yet “reached out to him anyway,” it was clear error for the court not to find that Doug intentionally violated the No Contact Order when he emailed Prior Customer. We are not convinced.

¶78      Nothing in the record suggests that Doug trusted Troy or the assertions of Troy’s counsel. Accordingly, the fact that Doug learned that Troy and Troy’s counsel considered communications with Prior Customer to be a violation of the Stalking Injunction does not definitively establish that Doug intentionally violated the Stalking Injunction by inquiring of Prior Customer himself whether he was a current customer of TKS, especially where he told Doug that he was not a current customer. Given the evidence that Doug repeatedly told Prior Customer that Doug could not speak with him if he was a TKS customer and the evidence that Doug’s email to Prior Customer was merely to confirm whether he was a current customer, we see no clear error in the district court’s finding that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally violated the Stalking Injunction. That alleged violation of the Stalking Injunction cannot serve as a basis for holding Doug in contempt.

2.         Doug’s Facebook Post and Related Comments

¶79      We now consider the TKS parties’ challenge to the court’s determination that Doug’s Facebook post and related comments did not satisfy the elements of contempt. While the Stalking Injunction was in place, Doug made a series of communications on Facebook. The full text of those communications is quoted above. See infra ¶ 18. We address, in turn, the district court’s determination that these communications did not violate the No Contact Order and its determination that they did not violate the Personal Conduct Order.

a.         Whether Doug’s Facebook Post and Comments Violated the No Contact Order

¶80      The Stalking Injunction’s No Contact Order forbade Doug from communicating with Troy, even indirectly. For the district court to impose contempt sanctions based on the allegation that the Facebook communications violated the No Contact Order, the TKS parties had to prove beyond a reasonable doubt that, among other things, Doug intended the Facebook post and comments to be a direct or indirect communication with Troy or that he knew they were a direct or indirect communication with Troy. See Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court determined that it could not find beyond a reasonable doubt that the Facebook post was an intentional or knowing violation of the No Contact Order, and we see no clear error in that finding.

¶81      On this point, the court reasoned that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exists as to whether Doug intended the message to reach Troy.” Indeed, there was evidence that Troy was not a Facebook friend with Doug, which does support a finding that the post was not a knowing or intentional attempt by Doug to communicate with Troy directly. And there is no evidence that any of Doug’s Facebook friends routinely shared Doug’s posts with Troy, which supports a finding that the post and related comments did not amount to a knowing or intentional attempt to communicate with Troy indirectly.

¶82 Admittedly, we have held in the context of a no-contact order that “a factfinder could readily infer that calls [an ex-husband] placed to [his ex-wife’s new husband] . . . would routinely and predictably be conveyed to [the ex-wife]” and, therefore, that by making those calls, the ex-husband “intentionally or knowingly” contacted his ex-wife at least indirectly. State v. Fowers, 2023 UT App 128, ¶ 13, 538 P.3d 1274 (cleaned up). Similarly, we have held that a factfinder could infer that an estranged husband intended to communicate with or contact his wife, who had obtained a protective order against him, by sending letters with language directed to his wife to the address of the wife’s “sister who lived next door.” State v. Fouse, 2014 UT App 29, ¶¶ 3, 41, 43, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014). But in neither of those cases did we say that the evidence required a finding that the defendant knowingly or intentionally communicated indirectly with the protected person. See Fowers, 2023 UT App 128, ¶ 13; Fouse, 2014 UT App 29, ¶ 43. And we are unwilling here to hold that a person who is subject to an order not to contact his or her sibling indirectly necessarily violates that order any time he or she communicates about the sibling with any other family member or friend of the sibling.

¶83 In short, we affirm the district court’s determination that Doug’s Facebook post and related comments did not violate the No Contact Order.

b.         Whether Doug’s Facebook Post and Comments Violated the Personal Conduct Order

¶84 The TKS parties allege that Doug’s Facebook communications violated the Stalking Injunction’s Personal Conduct Order because he was thereby communicating “about” Troy. On this issue, Judge Harris’s opinion, joined in by Judge Orme, is the majority opinion; my views in this Part II.B.2.b constitute a dissenting opinion on this issue.

¶85 As to the allegation that Doug’s Facebook post and comments violated the Stalking Injunction’s Personal Conduct Order, I address each of the elements of contempt in turn. Again, those elements include that Doug “knew what was required [of him by the Personal Conduct Order], had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991).

(i) Whether Doug Knew What Was Required

¶86      The Personal Conduct Order said:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The district court found that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order.” In making this finding, the court reasoned that while the Personal Conduct Order “contains a citation” to Utah Code section 76-5­106.5 “for the legal definition of stalking” and while “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party,” the Stalking Injunction “does not contain that language, and no evidence exists in the record that Doug Wilson ever consulted the statute.” I believe this approach was erroneous.

¶87 The Personal Conduct Order prohibited Doug from stalking Troy. The supplied list of actions that constitute stalking was not exhaustive, as evidenced by the order’s use of “such as.” See State v. Green, 2023 UT 10, ¶ 70, 532 P.3d 930 (explaining that a rule’s “use of ‘such as’ indicates that the list” following that phrase is “illustrative and not exclusive” (cleaned up)); State v. Verde, 2012 UT 60, ¶¶ 14–15, 296 P.3d 673 (discussing a list following “such as” as “illustrative and not exclusive”), abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Thus, the fact that communicating about Troy was not among the listed examples of stalking is not dispositive.

¶88      Furthermore, the Personal Conduct Order unambiguously stated that the legal definition of stalking could be found in Utah Code section 76-5-106.5. I have some doubt as to whether Doug could successfully claim ignorance on the meaning of stalking even if the stalking statute had not been explicitly cited in the Personal Conduct Order, because “citizens are generally presumed to know what the law is.” Laker v. Caras, 2023 UT App 125, ¶ 21, 538 P.3d 926. At any rate, however, Doug’s argument that he only knew of the listed examples of stalking and not the full definition of stalking is unavailing given that he was plainly forbidden from stalking and told where to find the definition of that term. Cf. State v. Barlow, 153 P.2d 647, 653 (Utah 1944) (“Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law.”). I reject the district court’s position that a person subject to a court order not to engage in certain conduct does not know what is required if the person elects not to read a statute that defines the forbidden conduct that is expressly identified in the order. Accordingly, I would vacate the district court’s finding that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order],” remand the case, and instruct that the court make a new finding on this issue.

(ii) Whether Doug Was Able to Comply

¶89      As the TKS parties point out, the district court did not make a finding regarding Doug’s ability to comply with the Personal Conduct Order’s restriction against communicating about Troy. However, while it is true that a “district court must make explicit findings, whether written or transcribed, on the three elements of contempt,” Koehler v. Allen, 2020 UT App 73, ¶ 14, 466 P.3d 738 (cleaned up), I would find the lack of an explicit finding on this element to be harmless, see generally Green, 2023 UT 10, ¶ 101 (“[W]hen an error is harmless, we do not disturb the district court’s decision.”). Because there is simply no evidence to suggest that Doug would have been unable to refrain from posting about Troy on Facebook, the only supportable finding on this point is that Doug could have complied with the Personal Conduct Order.

(iii) Whether Doug Intended Noncompliance

¶90 On the element of whether Doug knowingly or intentionally violated the Personal Conduct Order, the district court found that “because no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exists as to whether Doug intended the [Facebook post and related comments] to violate[] the order.” I have already expressed my view that the court’s finding of no evidence that Doug knew communicating about Troy would violate the Personal Conduct Order was the product of legal error. See supra ¶¶ 86‒88. Because I would have thus vacated this basis for the court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments, I would vacate the court’s finding on this point as well.

¶91 Doug contends that there is evidence apart from his professed ignorance of the restrictions imposed by the Personal Conduct Order that supports a finding that he did not knowingly or intentionally violate that order with his Facebook communications. Specifically, he asserts that the post and comments were not knowingly or intentionally “about” Troy but, instead, “only about” Sister. I am skeptical on this point. While the Facebook post and comments may have been, in part, about Sister, that does not necessarily mean they were not also about Troy. They refer to the lawsuit and the request for the Stalking Injunction, neither of which was filed by Sister. Additionally, the Facebook post declares, “I have . . . [h]ad family members try to hurt me to the point to drive me to take my life.” And Doug’s suicide note stated: “I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight.” Doug explicitly blamed Troy for his suicidal thoughts, so I am doubtful that his Facebook reference to the “family members” who prompted such thoughts was not intended to be about Troy. For these reasons, I do not believe that we can say that the evidence supported only the district court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments. I would instruct the court to make a new finding on this issue on remand as well.

¶92      In the context of stalking, this third element of contempt—that the stalker intentionally failed or refused to comply with the court’s order, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991)—required the TKS parties to also prove that, to the extent the Facebook post and comments were about Troy, the communications would have caused “emotional distress to a reasonable person in [Troy’s] circumstances,”[11] Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728; see also Utah Code § 76-5­106.5(2). The district court found that “a reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than an inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” I would conclude that the court’s approach that led to this finding suffered from a legal error and that the court exceeded its discretion when it excluded certain evidence related to this finding.

¶93 A determination of whether Doug’s Facebook post and comments would have caused emotional distress involves an “objective inquiry into whether [Doug’s] conduct would have caused a reasonable person in [Troy’s] circumstances emotional distress.” Baird, 2014 UT 08, ¶ 21. This objective inquiry is “an individualized objective” inquiry, “meaning that a court must consider the entire context surrounding the [alleged stalker’s] conduct,” Anderson v. Deem, 2023 UT App 48, ¶ 29, 530 P.3d 945 (cleaned up), including, as we have already noted, “such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, . . . the cumulative effect of the defendant’s repetitive conduct[, and] whether the behavior might cause damage to one’s reputation, relationships, or livelihood,” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up); see also State v. Miller, 2023 UT 3, ¶¶ 84, 86, 527 P.3d 1087; Ragsdale v. Fishler, 2021 UT 29, ¶ 45, 491 P.3d 835; Baird, 2014 UT 08, ¶ 27. “In this context, acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). Moreover, courts “must consider the conduct cumulatively.” Id. (cleaned up).

¶94 At the outset of the contempt hearing, the district court expressly stated its view that “the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. As the majority opinion on this issue points out, the court thereafter did say that it would “take judicial notice of the [Stalking Injunction] and the findings that [the previous judge] made in relation to . . . issuing” it, and the court admittedly had before it evidence of many of the circumstances surrounding the controversy in general. However, after the court expressed its willingness to take judicial notice of the Stalking Injunction and the findings that the previous judge had made in relation to it, the court again affirmed its view that “the scope of [the contempt] proceeding” allowed it to consider only the “limited allegations of the order [to show cause],” not the circumstances surrounding the issuance of the Stalking Injunction in the first place. If we take the district court at its word—and I do—even if it took judicial notice of the findings that the previous judge made in relation to the Stalking Injunction, it did not consider those facts when ruling on the contempt motion.

¶95 A conclusion that the district court did not properly consider the entire context surrounding Doug’s conduct is further supported by an evidentiary ruling the court made at the contempt hearing. Specifically, the court limited testimony at the hearing to “testimony in regards to the allegations in the contempt proceeding.” While a judge who presides over both a stalking injunction hearing and a subsequent contempt hearing may not need to rehear evidence of the events leading to the stalking injunction to be able to fulfill its charge to consider the entire context surrounding the stalker’s conduct when deciding the contempt issue, in this case the same judge did not preside over both hearings. And because the first judge’s findings fell far short of telling the whole story of the parties’ history, the second judge’s willingness to take judicial notice of those findings was insufficient to demonstrate that it met its charge. For example, the TKS parties alleged various misdeeds by Doug that the first judge did not discuss when determining whether there was a course of conduct justifying issuance of the Stalking Injunction. See supra ¶¶ 9, 13–16. Accordingly, I believe the court abused its discretion by excluding from the contempt hearing evidence of the events surrounding the issuance of the Stalking Injunction on the basis that it was irrelevant to the contempt proceeding. And that abuse of discretion further confirms that the district court did not properly consider the entire context surrounding Doug’s conduct when it ruled on the contempt issue.

¶96 The majority opinion on this issue begins by correctly reciting “a few background concepts,” including the standard of review related to a district court’s factual findings and the burden of proof related to criminal contempt. Infra ¶¶ 103‒05. But as the majority opinion on this issue recognizes, those concepts come into play only if “a district court applies the correct legal standard.” Infra ¶ 103. And the correct legal standard was whether, considering the entire context, Doug’s Facebook post and comments would have caused a reasonable person in Troy’s position emotional distress. And, as explained, it is the district court’s repeatedly expressed intention not to consider the entire context that undergirds my opinion on this issue.

¶97      The majority opinion on this issue also states, alternatively, that, even assuming the district court did not consider the entire context surrounding Doug’s Facebook post and comments, no reasonable factfinder who had considered the entire factual context could conclude beyond a reasonable doubt that Doug’s Facebook post and comments were more than a “blip on the radar screen” and were capable of causing a person in Troy’s position emotional distress. Infra ¶¶ 107, 113. I disagree. As already noted, even the “seem[ingly] . . . innocent” or “well intentioned” “sending [of] . . . a dozen roses” might, in some circumstances, constitute a violation of a stalking injunction “when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). In light of that, and given the established context of “division,” “escalated” tensions, and “great turmoil” into which the Facebook post and comments were placed, I am not prepared to hold as a matter of law that no reasonable factfinder considering the entire context could determine that the post and comments would cause an ordinary person in Troy’s position emotional distress.

¶98 For the foregoing reasons, I would vacate the court’s finding as to whether Doug’s Facebook post and comments would cause a reasonable person in Troy’s position emotional distress and direct that the court make a new finding on this issue as well.[12]

CONCLUSION

¶99      We have jurisdiction over Doug’s appeal. As to his appeal, the district court did not interpret or apply the stalking statute erroneously when it found a course of conduct directed at Troy. The court’s finding that Doug knew or should have known that his course of conduct would cause a reasonable person in Troy’s position emotional distress was not clearly erroneous. And the court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

¶100 As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s opinion, joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and comments violated the No Contact Order.

HARRIS, Judge (concurring in part and authoring the Opinion of the Court as to Part II.B.2.b, in which ORME, J., joined):

¶101 Judge Orme and I join the first 83 paragraphs of the lead opinion without reservation. That is, we agree that this court has jurisdiction over Doug’s appeal—as a direct appeal and not as a cross-appeal—and that, on the merits of that appeal, the district court did not err in issuing the Stalking Injunction, nor did it abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. We also agree that, with regard to the TKS parties’ appeal, the district court correctly treated the motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt, and we further agree that the court did not commit reversible error either (a) in finding that Doug’s communication with Prior Customer was not contemptuous or (b) in determining that Doug’s Facebook communications did not violate the No Contact Order. To that extent, we concur fully in the lead opinion.[13]

¶102 We disagree, however, with the lead opinion’s conclusion that the district court committed reversible error in determining that the TKS parties had not proved, beyond a reasonable doubt, that Doug’s Facebook communications violated the Personal Conduct Order. In particular, we take issue with the lead opinion’s assessment regarding the emotional distress component of the analysis. On that score, we agree wholeheartedly with the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” On that basis, we affirm the judgments of the district court in their entirety, a result that will bring this case to a well-deserved conclusion and present no need for further proceedings on remand.

¶103 Let us begin with a few background concepts, starting with the applicable standard of review. Assuming that a district court applies the correct legal standard—an “individualized objective standard,” see Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728—its determination regarding whether a claimant suffered the sort of emotional distress the stalking statute contemplates is a factual finding that we review only for clear error. See Richins v. Weldon, 2023 UT App 147, ¶ 42, 541 P.3d 274 (reviewing an emotional distress finding, in this context, “for clear error” (cleaned up)). In this case, the district court applied the correct standard, expressly asking whether “a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person,” suffered emotional distress. Accordingly, the court’s ultimate finding regarding emotional distress is, in this case, a determination we review only for clear error.

¶104 Moreover, the overarching standard of review generally applicable in contempt cases is quite deferential. Indeed, the lead opinion, supra ¶ 36, acknowledges that—regardless of whether the case involves civil or criminal contempt—a district court’s “decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up).

¶105 We also note that the TKS parties were seeking criminal contempt, not civil contempt, and therefore they were required to prove Doug’s contempt beyond any reasonable doubt. See supra ¶¶ 69–73. This is the most stringent burden of proof found in the law, and the district court recognized this concept in its ruling.

¶106 Furthermore, the type of emotional distress at issue here is something far greater than mere annoyance. Utah’s stalking statute—incorporated into the Personal Conduct Order—defines “[e]motional distress” to mean “significant mental or psychological suffering.” Utah Code § 76-5-106.5(1)(a)(ii)(A) (2021). This court has previously noted that this definition requires claimants to demonstrate that they have suffered more than just “some emotional distress.” See Noel v. James, 2022 UT App 33, ¶ 20, 507 P.3d 832; see also Meyer v. Aposhian, 2016 UT App 47, ¶ 16, 369 P.3d 1284 (affirming a district court’s determination that the incidents in question, while “upsetting, intimidating, and annoying,” were not sufficient to cause the sort of emotional distress contemplated by the stalking statute).

¶107 With these foundational principles in mind, we see no error at all—let alone a clear one—in the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” In the grand scheme of this family’s lengthy dispute, this Facebook post was merely a blip on the radar screen, and the district court was well within its contempt-case discretion to determine that the TKS parties hadn’t proved, beyond a reasonable doubt, that—of all things in this case’s history—it was these rather innocuous Facebook communications that tipped Troy over the emotional edge into “significant mental or psychological suffering.”

¶108 The lead opinion’s inclination to reverse and remand on this point appears largely driven by the district court’s (perhaps somewhat ill-considered) remarks that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. In our view, one reasonable reading of the court’s remarks is simply that it did not want to unduly elongate the evidentiary hearing by having witnesses come in and rehash the same testimony they’d given under oath some nine months earlier. Indeed, at one point the court referred to its request—made previous to the contempt hearing—that “the parties . . . provide declarations of any witnesses,” and it stated that it had made that request in an attempt “to avoid going back to other proceedings and trying to listen to the” audio recording of the previous hearing. Nevertheless, the lead opinion has decided to “take the district court at its word” and assume that, because of these remarks, the court “did not properly consider the entire context surrounding” Doug’s Facebook communications. See supra ¶¶ 94–95.

¶109 Our reading of the record is different from the lead opinion’s. As we see it, the district court actually did consider the entire context of the case in making its contempt ruling, even if it refused to allow additional testimony and evidence to be re­presented at the hearing. At the contempt hearing, during the debate over the scope of the witnesses’ testimony, the court noted that “there is a record with regard to” what had happened at the previous hearing that could be reviewed and consulted. The court then expressly took “judicial notice of the fact that there were prior proceedings” and “judicial notice of the [Stalking Injunction] and the findings” the prior judge made in entering it. Our reading of this exchange is that the court was not just taking judicial notice of the Stalking Injunction and related findings made by the previous judge, but of the “record with regard to” the previous hearing. Indeed, in its contempt order, the district court expressly stated that it had considered “the circumstances surrounding the case at bar” that had “created great turmoil in the extended Wilson family.”

¶110 Moreover, during that same debate, Troy’s counsel noted that Troy had submitted a lengthy declaration in advance of the contempt hearing, with the intent of informing the court about “what [Troy] had experienced prior to” the entry of the Stalking Injunction. That declaration was just one of many exhibits submitted by the parties with their briefing in advance of the contempt hearing; that briefing, including the exhibits, contained a whole lot of context and descriptions of past underlying events. Unless this court is aware of some indication to the contrary, it should presume that lower courts read the relevant briefing, including the submitted exhibits, before rendering a decision. See, e.g.Merrick Young Inc. v. Wal-Mart Real Estate Bus. Trust, 2011 UT App 164, ¶ 29, 257 P.3d 1031 (noting the lower court’s statement that it had “fully reviewed this matter” before making its ruling, and “presum[ing]” therefrom that the court “closely examined all of the documents filed in support of the parties’” positions). Here, the district court stated, at the hearing, that it had “received and reviewed all the declarations” submitted by the TKS parties, and it indicated in its final written ruling that it “took evidence and received briefing from the parties” and that it was “fully advised in the premises” before making its ruling. We therefore presume that the district court read all the material Troy submitted in support of his motion.

¶111 In addition, at the contempt hearing, the court heard live testimony not only from Troy but also from several other witnesses, including at least four other members of the family. Two of those witnesses—Troy and his sister—offered testimony about Troy’s reaction to Doug’s Facebook communications.

¶112 In our view, it is nigh on impossible to read the file in this case well enough to be able to rule on a contempt motion and not be fully aware of the circumstances surrounding the controversy in general and the Facebook communications in particular. Here, the district court not only read the file but then presided over an evidentiary hearing at which live testimony was presented and these matters were further discussed. We therefore reach a different conclusion than the lead opinion; as we see it, the district court considered all the relevant contextual circumstances before concluding that the TKS parties had not met their burden of proving that Troy had suffered emotional distress.

¶113 But be all of that as it may, even if we were to assume for purposes of the discussion that the district court truly did not consider the entire context surrounding Doug’s Facebook communications, the parties have—in this appeal—provided this court with all of that context, through briefing and citations to the record, and we have certainly considered that contextual evidence. After undertaking that consideration, we are of the view that—to the extent the district court actually failed to consider the underlying circumstances—any error on the part of the court here was harmless. In our view, no reasonable factfinder, after considering the contextual evidence to which the TKS parties now point, could conclude beyond a reasonable doubt that Doug’s “John Dough” Facebook posts caused a reasonable person in Troy’s position to suffer the sort of significant emotional distress contemplated by the stalking statute.

¶114 Accordingly, for all these reasons, we part ways with the lead opinion’s analysis in paragraphs 90 through 98. On this record, reasonable doubt exists as to whether a reasonable person in Troy’s shoes would have sustained significant mental or psychological suffering from Doug’s Facebook posts. The district court’s contempt ruling was sound, and we therefore affirm it. Because we agree with the lead opinion’s analysis affirming the court in all other respects, the court’s rulings are affirmed across the board.

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


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

[2] Because the parties share a surname, we use their given names, with no disrespect intended by the apparent informality.

[3] As explained in more detail below, although Doug’s appeal has been designated as a cross-appeal for ease of reference, the two appeals in this matter are separate and distinct appeals. See infra note 5.

[4] The stalking statute was amended after the events relevant to this appeal. Compare Utah Code § 76-5-106.5 (2020), with id. (2024). Because the changes to the relevant text are mostly minor and do not affect our analysis, we cite the current version of the statute except where the text has materially changed. See infra note 9.

[5] We are not unaware of rule 4(d) of the Utah Rules of Appellate Procedure, which states that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” If rule 4(d) applied here, Doug would have had fourteen days from the date the TKS parties filed their notice of appeal to file his notice of appeal, and Doug in fact did file his notice of appeal within fourteen days of when the TKS parties filed theirs. But rule 4(d) does not apply here. This matter involves both the TKS parties’ original lawsuit and a subsequent criminal contempt proceeding, see infra ¶¶ 69‒73 (concluding that the district court did not abuse its discretion in classifying the contempt proceeding as criminal), and a criminal contempt proceeding is an action “separate and apart from the [principal] action,” Robinson v. City Court, 185 P.2d 256, 258 (Utah 1947). Because the original lawsuit and the contempt proceeding are separate actions, the appeal deadlines for those separate actions operate independently. See Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982) (per curiam) (holding that a notice of appeal that was untimely to perfect an appeal from the original action was timely and conferred appellate jurisdiction to review a related criminal contempt proceeding). Thus, notwithstanding that they have been designated cross-appeals for ease of reference and share a common appellate case number, the two appeals in this matter are separate, and the deadline for Doug to perfect his appeal from the TKS parties’ original lawsuit was thirty days after entry of the final judgment in that lawsuit, see Utah R. App. P. 4(a).

[6] Our supreme court has said that In re Cendant Corp., 454 F.3d 235 (3d Cir. 2006), “provides a helpful description of what a proper separate judgment should look like.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶ 21, 467 P.3d 833.

[7] We understand this to be Doug’s argument because the Stalking Injunction was entered in favor of Troy and not in favor of TKS. Because the Stalking Injunction was not entered in favor of TKS, this case cannot implicate or resolve the issue of whether a stalking injunction may be issued in favor of a company. With our supreme court, “we note that at least one court has found its state’s civil stalking statute to ‘protect[] institutions as well as people.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 39 n.29, 491 P.3d 835 (quoting Board of Regents-UW System v. Decker, 2014 WI 68, ¶ 26, 850 N.W.2d 112 (alteration in original)). But again, this case does not raise that issue, and we, like the supreme court before us, do not address it. See id.

[8] We see in the record no explicit finding that Doug knew or should have known that his course of conduct would cause a reasonable person to suffer emotional distress. Generally, however, “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App 41, ¶ 23, 179 P.3d 808 (cleaned up). And here, the necessary finding regarding emotional distress is implicit in the court’s statement that “although [the course of conduct] was aimed at the company, [it] was aimed at the company in a particularly harmful way and . . . satisfies the requirements of the stalking [statute].” At a minimum, Doug makes no argument to the contrary.

[9] In contrast, the current version of the code requires a finding that the actor “[knew] or [wasreckless as to whether the course of conduct would cause a reasonable person . . . to fear for the individual’s own safety or the safety of a third individual” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2)(a) (emphasis added).

[10] While we have concluded that the district court correctly interpreted the stalking statute and that its findings here are supported by the evidence, courts should remain cautious about allowing civil stalking injunctions to be used as tools in commercial litigation.

[11] The TKS parties do not argue that the Facebook post and comments would have caused a reasonable person in Troy’s position to fear for his or her safety or the safety of a third person.

[12] The TKS parties also contend that “[t]he district court erred in categorically finding that ‘all of the witnesses from [the] Wilson family possess such significant biases that the court cannot credit any of their testimony beyond a reasonable doubt.’” However, “the factfinder serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Jok, 2021 UT 35, ¶ 28, 493 P.3d 665 (cleaned up). This includes when the trial court is the factfinder. See In re J.R.H., 2020 UT App 155, ¶ 17, 478 P.3d 56 (“Trial courts . . . have wide latitude to make credibility determinations, and we defer to such determinations . . . .”). Hence, I believe the TKS parties have not demonstrated error on this point.

[13] Moreover, we take no issue with the lead opinion’s analysis in paragraphs 86 through 88, in which the lead opinion expresses a desire to “vacate the district court’s finding that ‘no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order].’” But our affirmance of the court’s emotional distress determination is, by itself, sufficient to conclude our analysis on the overarching question of whether Doug’s Facebook communications violated the Personal Conduct Order; thus, Judge Orme and I do not need to specifically assess the other elements contained in Part II.B.2.b of the lead opinion.

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2024 UT App 52 – In re A.S. – child neglect, photographing genitals

2024 UT App 52 – In re A.S.

 

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S. AND J.S.,

PERSONS UNDER EIGHTEEN YEARS OF AGE. V.S., Appellant, v. STATE OF UTAH, Appellee.

Opinion No. 20230338-CA Filed April 11, 2024 Third District Juvenile Court, Summit Department

The Honorable Elizabeth M. Knight No. 1214949

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1        On the basis of a set of stipulated facts, the juvenile court adjudicated A.S. and J.S. as being neglected as to V.S. (Mother). Mother now challenges that adjudication on appeal, arguing that the stipulated facts did not support the neglect adjudication. For the reasons set forth below, we affirm.

BACKGROUND
Initial Proceedings

¶2        This is a child welfare case concerning two children: A.S., who was 16 years old at the time of this appeal, and J.S., who was 9 years old. A.S. and J.S. (collectively, the Children) are the biological children of Mother and J.S. (Father).[1] Mother and Father divorced in March 2018, and they’ve had an “ongoing” and “contentious” custody dispute in district court ever since.

¶3        In August 2022, the Department of Child and Family Services (DCFS) filed a petition for protective supervision services, alleging that the Children were “abused, neglected, or dependent children” pursuant to Utah Code section 80-1-102. The petition alleged a range of conduct to support this—most of it by Mother, though with one allegation relating to Father. This appeal is brought by Mother, so we’ll focus on the allegations, proceedings, and rulings relating to her.[2]

¶4        On March 10, 2023, DCFS filed an amended petition relating to Mother, and the amended petition realleged some (but not all) of the allegations from the original petition. Based on the amended set of allegations, DCFS again alleged that the Children were abused, neglected, or dependent. That same day, the juvenile court held a “merged pretrial and adjudication hearing” relating to Mother, and Mother was represented by counsel at that hearing. Mother acknowledged under oath that she understood that she had a right to a trial, that DCFS bore the burden of proving the allegations against her by clear and convincing evidence, and that she had the right to present evidence in her defense. Mother then waived her right to a trial, affirmatively admitted to a specified list of the allegations from the amended petition, and, pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, “neither admitted nor denied” certain other specified allegations from the amended petition.

¶5        On the basis of Mother’s affirmative admissions and the allegations deemed to be true by virtue of her rule 34(e) response, the juvenile court later issued a ruling that found a list of facts to be “true by clear and convincing evidence.” We now recount those facts here, with any quotations being drawn directly from the court’s precise verbiage.[3]

The Stipulated Facts

¶6        Since filing for divorce, Mother has sought four protective orders against Father: one in 2016, one in 2020, and two in 2022. Also, Child Protective Services (CPS) has received twelve reports accusing Father of neglect, physical abuse, sexual abuse, domestic violence-related child abuse, and other miscellaneous complaints which were not child welfare related. “All but one of these reports were either unaccepted because they did not meet CPS minimum requirements for investigation or unsupported because there was inadequate evidence to support the allegation after the matter was investigated.” Only two of the twelve reports affirmatively identified Mother as the person who made the report, and though a touch unclear, a third suggested that she was likely the reporter.

¶7        Sometime in 2020, certain pictures were taken of J.S. at Wasatch Pediatrics. These pictures showed “mild inflammation” of J.S.’s “inner labia,” “mild peri-anal erythema,” and a “superficial linear abrasion in the crease of [her] right thigh and perineum.” In August 2020 and again in April 2022, Mother shared medical records with DCFS that included those photographs, and she did so in both instances “as part of an abuse investigation.” In April 2022, Mother “forwarded all communications with DCFS to the Ombudsmen’s office at [its] request,” again including these photographs.

¶8        In June 2022, Mother also “began documenting pictures of [J.S.’s] stool under the medical advice of” a gastroenterology specialist (Specialist) who was treating J.S. “for a chronic gastrointestinal issue.”

¶9        On June 28, 2022, Mother took photographs of “bruises on [J.S.’s] knee, leg, and abdomen.” One of these photographs was “taken in the bathtub when [J.S.] was naked,” but J.S.’s “genitalia were not visible in the picture,” and the other photographs taken on this occasion “were taken when [J.S.] was clothed.”

¶10      Based on Mother’s concerns about these bruises and about “additional vaginal redness,” Mother took J.S. to the Redstone Clinic on June 30, 2022. A medical professional at the clinic “took pictures of the bruises and vaginal and anal redness” and then instructed Mother to take J.S. to the Emergency Department at Primary Children’s Hospital. In an effort to avoid a further genital exam, a doctor at the hospital accessed and viewed the photographs that had been taken at the Redstone Clinic. While at the hospital, Mother also spoke to the Safe and Healthy Families Clinic over the phone. Mother was advised to call the clinic back during normal clinic hours.

¶11 The next day, a doctor (Doctor) at the Safe and Healthy Families Clinic “indicated that the pattern of bruising [was] unusual and that in the absence of a history of accidental injury, inflicted injury, or physical abuse, the bruises would be a reasonable concern,” but Doctor further opined “that sexual abuse of a child is most often recognized when a child makes a disclosure.” Doctor also said that “constipation . . . is a common manifestation of childhood stress and only rarely associated with sexual abuse.” As to the vaginal redness in question, Doctor said that it was “not an indicator of sexual contact,” “particularly with swimming and warm weather.” Doctor saw “no reason to have specific concern for sexual abuse in this case,” and Doctor did not believe that J.S.’s symptoms met “the threshold for suspected abuse or neglect.” Doctor therefore “did not make a report to either DCFS or law enforcement,” and she saw “no need for follow up in the Safe and Healthy Families Clinic based on” the information that had been provided to her.

¶12 That same day, Mother spoke with an officer from the Summit County Sheriff’s Office, again “reporting the bruises and vaginal and anal redness.” When the officer offered to come to the home and take “pictures of the bruising,” Mother declined. Instead, she sent him the pictures that she had taken of the bruising on J.S.’s knee, leg, and abdomen.

¶13 Sometime later that day, Mother called the Safe and Healthy Families Clinic. A nurse (Nurse) received a page regarding the call. Before calling Mother back, Nurse contacted DCFS and was informed “that there had been several calls over the last few years, but all of them were closed unsupported.” DCFS also informed Nurse that Mother had texted photos to DCFS and a detective. After receiving this information, Nurse called Mother. During that conversation, Mother “requested that Safe and Healthy Families conduct a forensic examination and take photographs of [J.S.’s] genitals due to a request from law enforcement.” The juvenile court’s subsequent finding recounts the following about what happened next:

According to [Nurse], the mother told her that she had taken photographs of [J.S.’s] genitals before and after she went to see her father on the advice of a pelvic floor physical therapist. [Nurse] asked the mother three times for the name of the physician that advised her to take photographs and the mother refused to provide it. [Nurse] states that the mother eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with her father. The mother indicates that she felt pressured and interrogated and was unable to provide the name of [Specialist] to [Nurse]. Mother states that she had trouble communicating with [Nurse] and was unable to explain everything.

The court’s findings also note that “[n]o one has received” the “before and after” photographs described in the conversation Mother had with Nurse.

¶14      Doctor later shared her professional opinion that “she would have substantial concerns about repeated photography” of a child’s genitals. In Doctor’s view, children are “told repeatedly that these are private parts of our body,” but because children would understand that photographs are “usually show[n] to all sorts of people,” repeated photographing of genitals would undermine this messaging. Doctor also expressed her view that subjecting a child to “multiple forensic exams” would improperly “normalize[] certain amounts of touching and manipulation of the genital region.”

¶15 With respect to Mother, “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand.” It is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome) which causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.”[4]

The Neglect Adjudication

¶16      Based on the stipulated facts, the juvenile court found that the Children “are neglected as to [Mother], as it is lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” The juvenile court then ordered that “[c]ustody and guardianship shall continue with the parents with protective supervision services with DCFS,” and Mother was also ordered to “comply with the requirements of the DCFS service plan.” Mother now appeals that ruling.

ISSUES AND STANDARDS OF REVIEW

¶17 The juvenile court ruled that Mother neglected the Children by (i) taking “before and after” photographs of J.S.’s genitals, as well as (ii) “sending other photographs” to various agencies. As explained below, we need consider only the court’s conclusions relating to the “before and after” photographs. With respect to those, Mother raises two challenges: first, Mother challenges the finding that she actually took the photographs; and second, Mother argues that even if she did, this did not constitute neglect. Although Mother’s first challenge is to a factual finding, that finding was based on stipulated facts. When “the facts are stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re K.T., 2023 UT App 5, ¶ 7, 524 P.3d 1003 (quotation simplified), cert. denied, 528 P.3d 327 (Utah 2023). We also review the court’s interpretation of the neglect statute for correctness. See In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (holding that the determination of “whether the statutory criteria for neglect have been met” is “primarily a law-like endeavor” that is accordingly reviewed for correctness) (quotation simplified).

ANALYSIS

¶18      The juvenile court concluded the Children are neglected as to Mother because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father], as well as sending other photographs to various agencies.” Because we determine that the “before and after” photographs alone are enough to support the neglect adjudication, we need not consider whether Mother also neglected the Children by sending the photographs to “various agencies.”[5]

¶19      Mother makes two arguments relating to the “before and after” photographs: first, she argues that there was not clear and convincing evidence that she actually took them; and second, she argues that even if she did take the photographs, this did not constitute neglect.

I. There Was Sufficient Evidence to Support the Court’s
Conclusion that Mother Took These Photographs.

¶20 Mother first argues that there was not “clear and convincing evidence that Mother took photos of [J.S.’s] genitals before and after visits with Father.” We disagree.[6]

¶21 At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). “Clear and convincing evidence is an intermediate standard of proof that implies something more than the usual requirement” of a preponderance of the evidence and “something less than proof beyond a reasonable doubt.” In re K.K., 2023 UT App 13, ¶ 22, 525 P.3d 519 (quotation simplified), cert. denied, 531 P.3d 731 (Utah 2023). As noted, because the juvenile court made this finding on the basis of stipulated facts, we afford no deference to its conclusion that DCFS had satisfied the clear and convincing evidence standard. But even so, we conclude that this standard was satisfied.

¶22      The clearest indication that Mother took these photographs is the stipulated finding that Mother told Nurse that she took these photographs. The law has of course long recognized that admissions from a party can carry substantial evidentiary weight. As a result, once Mother told Nurse that she took these photographs, the court had a solid evidentiary basis for concluding that she had indeed taken them.

¶23      In a footnote of her brief, Mother nevertheless argues that the court should not have credited this admission. As an initial matter, Mother points out that “[n]o one has received” these particular photographs. And this seems to be true. But again, Mother told Nurse that she had taken them. From this, even without the actual photographs, the juvenile court could take Mother at her word and find that she had taken them.

¶24 More significantly, Mother suggests that her seeming admission was actually the product of a misunderstanding. As noted, the stipulated facts include that “Mother state[d] that she had trouble communicating with [Nurse] and was unable to explain everything.” They also include that “[m]ultiple police reports and DCFS records indicate that [Mother] may be difficult to understand,” and that it is “documented” that Mother has “POTS (post orthostatic tachycardia syndrome),” a condition that “causes forgetfulness and trouble focusing (brain fog) making it difficult for [Mother] to think and speak clearly under stress.” But even accounting for these facts, the juvenile court could still take Mother’s admissions to Nurse at face value. This is so for several reasons.

¶25      The first is the specificity of Nurse’s account. Nurse didn’t say that Mother had made a passing or unclear comment to this effect. Rather, Nurse recalled Mother telling her that “she had taken photographs of [J.S.’s] genitals before and after she went to see [Father] on the advice of a pelvic floor physical therapist.” On its own, the specificity of Nurse’s account belies the suggestion that Nurse had simply misunderstood Mother.

¶26 Second, Mother seems to have reiterated her initial admission as the conversation with Nurse continued. According to Nurse, after Mother made her initial comment about taking these photographs, Nurse “asked [Mother] three times for the name of the physician” who had recommended taking them, but Mother “refused to provide it.” If Mother had not meant to say that she was taking “before and after” photographs of J.S.’s genitals (or, instead, if she hadn’t said it at all and Nurse had misheard her), Nurse’s repeated questioning about which doctor had asked for the photographs would have given Mother the opportunity to clarify that she had misspoken (or that she had been misunderstood) and that she hadn’t actually taken these photographs. But this wasn’t Mother’s response.

¶27      Instead, Nurse claimed that as the conversation continued, Mother “eventually reported that she was documenting what [J.S.’s] genitals looked like before and after parent-time with [Father].” Nurse’s statement that Mother “eventually” told Nurse that she was “documenting” the condition of her daughter’s genitals indicates that Mother reiterated that she had indeed taken them. And the fact that Mother then added the detail that she was “documenting” the “before and after” look of her daughter’s genitals functioned as her explanation for why she thought this was appropriate to do.

¶28      Finally, there’s no place in either the court’s ruling or even in the record as a whole where Mother has ever denied taking these photographs. Even when confronted with a specific allegation from DCFS about an instance in which a witness said that Mother admitted to taking them, Mother chose to respond with a non-admission/non-denial pursuant to rule 34(e).

¶29 Thus, the evidence before the juvenile court was that Mother had told Nurse that she had taken these photographs, that even with the benefits of further conversation and even subsequent litigation, Mother never retracted that admission, and that Mother had instead chosen to justify taking them. In light of all this, we see no basis for overturning the court’s implicit finding that Mother personally took these photographs.

II. The “Before and After” Photographs Were Enough to Establish Neglect.

¶30      “Neglect is statutorily defined,” and it “can be proved in any one of several ways.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631; see also Utah Code § 80-1-102(58)(a). The juvenile court here concluded that Mother’s actions constituted neglect because “it is a lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” This was an apparent reference to Utah Code section 80-1-102(58)(a)(ii), which defines neglect as “action or inaction causing . . . lack of proper parental care of a child by reason of the fault or habits of the parent.”

¶31      In her brief, Mother points out that the legislature has not further defined the phrase “lack of proper parental care.” Drawing on various textual, structural, and even constitutional sources, Mother now asks us to take the opportunity to fill in the gap and provide further definition of what this phrase means. While we need not create a definitive one-size-fits all definition, we do agree with Mother on a few broad points that inform our analysis below.

¶32      First, the word “proper” is commonly understood to refer to something that is “marked by suitability, rightness, or appropriateness.”[7] Second and similarly, we think the phrase “proper parental care” would naturally incorporate notions of reasonableness. (After all, conduct that’s appropriate would likely be reasonable, and the converse would also be true.) In this vein, we note that Black’s Law Dictionary links the term “proper care” to notions of “reasonable care” that are commonly used in negligence cases, and Black’s defines “reasonable care” as “the degree of care that a prudent and competent person engaged in the same line of business or endeavor would exercise under similar circumstances.” Care, Black’s Law Dictionary (11th ed. 2019). Third, because the statutory phrase at issue turns on notions of “proper parental care,” the relevant inquiry is appropriately focused on what would be proper (with all that the word entails) “under similar circumstances”—meaning, in the particular parenting circumstance at issue. And finally, we agree with Mother that, in light of the fundamental and constitutional rights that are associated with parenting, the neglect standard should not be applied to conduct that falls within an ordinary range of permissible parenting.

¶33      With those principles in mind, we think the contours of this phrase can then capably be fleshed out in the same way that most other phrases from constitutions or statutes are fleshed out— through the ordinary process of common law development. And while there doesn’t appear to be a Utah case that has comprehensively defined this phrase, the parameters of what constitutes neglect have been explored and applied in a number of cases. Among others, we note the following:

·         In In re G.H., we held that the neglect standard was satisfied where the mother “did not attend to the children’s basic health and welfare needs, such as feeding and bathing them, changing their diapers regularly, and obtaining medical care for them when they were sick,” where the mother “did not behave in a manner consistent with parenting a child,” and where the mother “would refuse to care for them when asked by the family members with whom she was living.” 2023 UT App 132, ¶¶ 29–31, 540 P.3d 631 (quotation simplified).

·         In In re K.K., we held that the neglect standard was satisfied based on the mother’s “inaction in failing to protect the children from exposure to domestic violence and prioritizing her toxic relationship” with the father. 2023 UT App 14, ¶ 12, 525 P.3d 526 (quotation simplified).

·         In In re K.D.N., we upheld a neglect determination that was based on “the lack of food,” the “profound lack of parenting skills,” and the presence of “violence” and “chaos” within the home. 2013 UT App 298, ¶ 11, 318 P.3d 768 (quotation simplified).

·         In In re D.T., we held that the neglect standard was satisfied based on the mother’s “admitted relapse” on illegal drugs, “her frequent absences, inconsistent housing, lack of stability, and other behaviors.” 2013 UT App 169, ¶ 5, 309 P.3d 248 (quotation simplified).

·         And in In re N.M., we held that “sufficient evidence support[ed] the juvenile court’s determination that the father “neglected [his child] by engaging in domestic violence.” 2013 UT App 151, ¶ 3, 305 P.3d 194.

In these and other cases, we held that the neglect standard was satisfied, not because of a failure of best-practices parenting, but instead because the behavior in question fell outside acceptable norms of proper parenting. To again use the phrase that we recently used in In re G.H., such cases involve a parent who simply “did not behave in a manner consistent with parenting a child.” 2023 UT App 132, ¶ 30.

¶34      So viewed, we agree with the juvenile court’s conclusion here that Mother’s behavior likewise reflected a “lack of proper parental care.” Utah Code § 80-1-102(58)(a)(ii). Again, while DCFS alleged that Mother had neglected the Children based on a number of things (including her excessive reporting of abuse, as well as her decision to submit the photographs taken by doctors to law enforcement and medical professionals), the conduct at issue in the court’s ruling was Mother taking photographs of a minor’s genitals “before and after parent-time” with Father, as well as Mother’s explanation that she was doing so to “document[] what” J.S.’s “genitals looked like before and after parent-time with” him.

¶35      The juvenile court had before it a statement from Doctor that she had “substantial concerns” about the “repeated photography” of a child’s genitals. Doctor opined that such behavior can be damaging to a child, in part, because it can undermine the messaging that children receive about the privacy relating to their genitals. Doctor’s concerns seem well-founded.

¶36 Moreover, we also note that the photographs in question here were taken by a parent who was in the midst of an “ongoing” and “contentious” custody dispute. By taking photographs of her young child’s genitals “before and after” that child’s visits with her father, Mother wasn’t just potentially desensitizing her daughter to photography of her genitals, but Mother was also communicating to her daughter that she should be concerned that Father was sexually abusing her or at least was likely to do so. This, too, carries obvious potential for harm, both to the child and to her relationship with Father.

¶37      We recognize, of course, that contextual questions such as the ones presented here can and often do turn on even small factual differences. And to be very clear, we don’t mean to suggest that a parent (even one who is involved in a contentious custody dispute) must sit idly by if the parent has a good-faith basis for suspecting that a child is being abused. As illustrated by our survey of the relevant cases above, children should always be protected, and on that front, their parents are indeed the first line of defense.

¶38 If a parent has suspicions that a child is being sexually abused, the parent should of course do something to protect the child, and as indicated, a failure to do anything may well constitute neglect in its own right. Among other things, a parent might respond by reaching out to medical, law enforcement, or other trained professionals, and such professionals may well be involved in documenting any observed abuse. But unlike some of the other photographs at issue in this case, the particular photographs in question here weren’t taken by professionals or in response to their recommendation, nor were they taken by Mother to document visible genital trauma.[8] Rather, according to the explanation that Mother “eventually” gave to Nurse during their conversation, Mother was trying to “document[] what [J.S.’s] genitals looked like before and after parent-time with her father.” It was on this basis that the juvenile court concluded that the neglect standard had been satisfied.

¶39      We have no need to determine whether it would ever be within the bounds of “proper parental care” for a parent to take photographs of a young child’s genitals without first involving trained professionals. And we note here too that, in addition to the suspected abuse scenario, there may be situations where such photography is in response to something more benign (such as diaper rash on an infant), and such contextual differences would likely place such photographs on different analytical footing. For purposes of this appeal, however, we simply conclude that it falls outside the realm of “proper parental care” for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. On this basis, we affirm the juvenile court’s conclusion that Mother neglected the Children.[9]

CONCLUSION

¶40      We agree with the juvenile court’s conclusion that, without something more, it constitutes a “lack of proper parental care,” Utah Code § 80-1-102(58)(a)(ii), for a parent to take photographs of a child’s genitals “before and after” visits with the other parent for “documentation” purposes. We affirm the adjudication of the juvenile court on that basis.

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


[1] Mother and Father also have another child who was not a minor during the proceedings in question.

[2] For background purposes only, we note that the juvenile court held a “merged pretrial, adjudication, and partial disposition hearing” relating to the one allegation made against Father. At the close of that hearing, the court concluded that the Children were “dependent children . . . in that they were without proper care through no fault of [Father].” Father was ordered to comply with protective supervision services through DCFS as a result. Father has not appealed that ruling.

[3] The parties in this case have all referred to these facts as “stipulated facts.” As indicated, however, Mother affirmatively admitted to certain facts, but for others, she invoked rule 34(e) of the Utah Rules of Juvenile Procedure and neither admitted nor denied them. Under that rule, when a party “declin[es] to admit or deny the allegations,” the “[a]llegations not specifically denied . . . shall be deemed true.” Id. Thus, in a technical sense, the facts the court relied on pursuant to rule 34(e) might not actually be “stipulated” (because Mother didn’t affirmatively agree to all of them), but by force of law, they might as well be. For ease of reference, we’ll follow the lead of the parties and refer to the court’s findings collectively as “stipulated facts.”

[4] Though the findings at issue don’t specifically draw the link, DCFS’s original petition in this case alleged that Mother has a “traumatic brain injury because a car hit her in December 2020,” and the juvenile court also included this finding in an order that it entered with respect to Father elsewhere in this litigation.

[5] The court found that Mother took photographs of J.S.’s genitals, but there’s no finding that she took similar photographs of A.S.’s genitals. Even so, the court found that both the Children are neglected. On appeal, Mother has not argued that this potential distinction provides a basis for reversing the adjudication as to A.S., and we therefore do not consider whether this is so.

[6] The juvenile court did not explicitly find that Mother personally took these photographs. Rather, in this portion of the ruling, the court stated that it is a “lack of proper parental care to subject a child to having her genitals photographed before and after visits with [Father].” “Unstated findings can be implied,” however, “if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). Here, we conclude that the juvenile court did make an unstated finding that Mother took these photographs. As discussed in more detail below, Nurse claimed that Mother admitted to taking them. And of note, no one has claimed that anyone else took these particular photographs. Thus, when the court ruled that Mother had “subject[ed] a child to having her genitals photographed before and after visits with [Father],” the clear (and, indeed, only) implication that can be reasonably drawn from this record and the court’s ruling is that the court implicitly found that Mother took these photographs.

[7] Proper, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/proper [https://perma.cc/YGY2-MJXP].

[8] In contrast, the juvenile court noted that the photographs taken in 2020 showed “inflammation” of the labia and a small “abrasion” near the groin, while the 2022 photographs showed “vaginal and anal redness.”

[9] Mother also makes some allusion to the stipulated facts relating to certain photographs that she was taking on the advice of Specialist. It’s unclear from the briefing whether Mother means to assert this as something of an “advice of doctor” defense to this neglect allegation. See Utah Code § 80-1-102(58)(b)(ii) (stating that neglect “does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state or other party to a proceeding shows, by clear and convincing evidence, that the health care decision is not reasonable and informed”). In any event, those stipulated findings reflect that Specialist worked at a gastroenterology clinic, that Specialist was treating J.S. for “a chronic gastrointestinal issue,” and that Mother had been “documenting pictures of [J.S.’s] stool” in conjunction with that treatment. Mother has not specifically asserted that, in conjunction with this gastroenterology treatment, Specialist also told her to take photographs of her daughter’s genitals, much less that Specialist instructed her to “document[] what [J.S.’s] genitals looked like before and after parent-time with [Father].” We accordingly see no basis from this record to overturn the neglect finding on this potential ground.

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House Bill 193 (HB0198 (utah.gov))

Another bill under consideration during the 2024 Utah legislative session is House Bill 193 (HB0198 (utah.gov)).

This bill would, if passed into law, 1) make clear that a “totality of circumstances” analysis applies when  a juvenile court determines whether to terminate parental rights; 2) provide that the existence of a placement option that does not require the termination of parental rights does not preclude a finding, based on the totality of the circumstances, that termination of parental rights is strictly necessary to promote the child’s best interest; and 3) as applicable, require the juvenile court to include the considerations described in Utah Code Sections 80-4-303 and 80-4-304 when determining the best interest of the child.

While Utah caselaw already made clear that a “totality of circumstances” analysis applies when a juvenile court determines whether to terminate parental rights. And the Utah Code already requires a juvenile court to include in its determinations in Sections 80-4-303 and 80-4-304 when determining the best interest of the child, it does not appear to me that making this clear in the statute itself is a bad thing.

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House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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Family Law Legislation for the 2024 Utah State Legislative Session

Here is a list of the current proposed family law legislation for the 2024 Utah State Legislative session, along with a (very) brief description of the proposed legislation. If you want to read the complete bill, I have provided the links each of them.

Next month, I will provide my comments and those of others who have expressed their opinions on whether and why these bills should or should not be passed into law.

House Bills

House Bill 20

Title:  Parental Rights Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0020.pdf

Purpose: This bill: clarifies the requirements and procedure for an individual to consent to the termination of parental rights or voluntarily relinquish parental rights.

House Bill 81

Title: Domestic Violence Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0081.pdf

Purpose: This bill adds the crime of propelling a bodily substance or material to the list of crimes that qualify as a domestic violence offense in certain circumstances; and makes technical and conforming changes.

House Bill 110

Title:  Sex and Kidnap Offender Registry Amendments

https://le.utah.gov/~2024/bills/static/HB0110.html

Purpose: This bill changes references from the Department of Corrections to the Department of Public Safety; clarifies the purpose of the Department of Public Safety keeping certain information for individuals on the Sex and Kidnap Offender Registry; and clarifies the requirements the Bureau of Criminal Identification and the Department of Corrections must check for when an individual petitions to be removed from the registry.

House Bill  129

Title:  Child Support Requirements

Purpose: This bill provides that a parent or other obligated individual is not responsible for child support for a child who is in the custody of the Division of Child and Family Services; and makes technical and conforming changes.

House Bill  131

Title:  Clergy Child Abuse Reporting Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0131.pdf

Purpose:  This bill clarifies that a member of the clergy may report suspected child abuse or neglect in certain circumstances; and makes technical corrections.

House Bill  134

Title:  Marriage Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0134.pdf

Purpose: This bill addresses the validation and recognition of a marriage regardless of the race, ethnicity, or national original of the parties to the marriage; repeals a provision on interracial marriage; and makes technical and conforming changes

House Bill  140

Title:  Parental Notification Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0140.pdf

Purpose: This bill amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual access to the parent’s child, and the individual has been convicted of certain crimes; amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and makes technical and conforming changes.

House Bill  157

Title:  Child Custody Factors Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0157.pdf

Purpose: This bill provides that a parent’s approval or disapproval, in itself, of a child’s gender identity, is not a factor to be considered: in a Division of Child and Family Services determination regarding removal of a child from parental custody; and when determining child custody as part of a divorce or other family law proceeding.

House Bill  194

Title:  Child Placement Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0194.pdf

Purpose: This bill amends the definition of “relative” for purposes of child placement, including adoption; and addresses when a court holds a hearing concerning a contested adoption.

House Bill  198

Title:  Child Welfare Placement Review Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0198.pdf

Purpose: This bill addresses the analysis a juvenile court undertakes when evaluating whether to terminate parental rights; and makes technical and conforming changes.

House Bill  199

Title: Child Welfare Revisions

https://le.utah.gov/~2024/bills/hbillint/HB0199.pdf

Purpose: This bill amends definitions related to child welfare in the Utah Juvenile Code

House Bill  200

Title:  Order for Life Sustaining Treatment

https://le.utah.gov/~2024/bills/hbillint/HB0200.pdf

Purpose: This bill modifies professional conduct standards for physicians, advance practice registered nurses, and physician assistants to include obtaining a parent or guardian signature when completing an order for life sustaining treatment for a minor; and makes technical and conforming changes.

House Bill  219

Title:  Divorce Imputed Income Requirements

https://le.utah.gov/~2024/bills/hbillint/HB0219.pdf

Purpose: This bill provides standards for imputing income to a spouse who will be receiving alimony payments from another spouse; provides potential limitations on imputation of income for alimony purposes in some circumstances where the recipient spouse has no recent full-time work history or has been diagnosed with a disability; excludes situations where the recipient spouse has been determined to be at fault; and makes technical and conforming changes.

House Bill  220

Title:  Divorce Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0220.pdf

Purpose: This bill adds factors to be considered when determining the standard of living that existed during a marriage; requires a specific look-back period for information provided to demonstrate the financial conditions and needs of a spouse seeking to be awarded alimony; places restrictions on when a court can reduce a showing of need related to alimony; provides alternative means for demonstrating income and the standard of living during a marriage; and  modifies provisions related to when a court may elect to equalize income between parties by means of an alimony award.

House Bill  234

Title:  Birth Certificate Modifications

https://le.utah.gov/~2024/bills/hbillint/HB0234.pdf

Purpose: This bill requires an individual when petitioning the court for a name or sex designation change on the birth certificate to indicate on the petition whether the individual is registered with the Sex and Kidnap Offender Registry; and authorizes the court to obtain additional information from an individual that is registered with the Sex and Kidnap Offender Registry to determine whether to grant a name or sex designation change petition.

House Bill  272

Title:  Child Custody Proceedings Amendments

https://le.utah.gov/~2024/bills/hbillint/HB0272.pdf

Purpose: 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.

SENATE BILLS

Senate Bill 70

Title:  Judiciary Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0070.pdf

Purpose: This bill increases the number of district court judges in the Third Judicial District, Fourth Judicial District, and Fifth Judicial District; increases the number of juvenile court judges in the Third Judicial District and the 15 Fourth Judicial District; and makes technical and conforming changes.

Senate Bill 88

Title:  Juvenile Justice Amendments

https://le.utah.gov/~2024/bills/sbillint/SB0088.pdf

Purpose: This bill defines terms; clarifies requirements regarding the collection of a DNA specimen from a minor adjudicated by the juvenile court; provides that a minor may not be placed in a correctional facility as an alternative to detention; provides a time period in which an agency is required to send an affidavit to an individual who is the subject of an expungement order by the juvenile court; and makes technical and conforming changes.

Senate Bill 95

Title:  Domestic Relations Recodification

https://le.utah.gov/~2024/bills/sbillint/SB0095.pdf

Purpose: This bill recodifies Title 30, Husband and Wife, to Title 81, Utah Domestic Relations Code; recodifies Title 78B, Chapter 12, Utah Child Support Act, to Title 81, Chapter 6, Child Support; defines terms; clarifies provisions related to a claim of a creditor when the joint debtors divorce or are living separately under an order of separate maintenance; clarifies the validation of a marriage to an individual subject to chronic epileptic fits who had not been sterilized; clarifies the validation of an interracial marriage; clarifies the validation of a marriage to an individual with acquired immune deficiency syndrome or other sexually transmitted disease; clarifies provisions regarding the rights and obligations during a marriage; clarifies provisions regarding the dissolution of a marriage, including: an order for separate maintenance; an annulment; and a divorce; clarifies provisions regarding child support, including: the requirements for a child support order; the general requirements for calculating child support; and the requirements for calculating child support for a sole physical custody case, a joint physical custody case, and a split physical custody case; clarifies provisions regarding custody, parent-time, and visitation; repeals statutes related to domestic relations, including a statute on the appointment of counsel for a child; and makes technical and conforming changes.

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

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How do I enforce my husband’s promise to hire an attorney for me in our divorce?

If by this question you mean to state that your husband told you he would pay for your attorney in the divorce action between the two of you, that could turn out various ways.

If you claim that your husband told you he would pay for your attorney in the divorce action, have nothing recorded (nothing in writing, no audio recording), and your husband denies it, then it’s a matter of your word against his, and you would likely not get the court to order your husband to pay your attorney’s fees on those grounds (and even if you did have it in writing or audio recorded, the court might still rule that the mere promise to pay isn’t enforceable). You might still have other grounds for getting the court to order your husband to pay your attorney’s fees, however.

In Utah, for example, where I practice divorce and family law, we have this provision of the Utah Code:

30-3-3. Award of costs, attorney and witness fees — Temporary alimony.

(1) In any action filed under Title 30, Chapter 3, Divorce, Chapter 4, Separate Maintenance, or Title 78B, Chapter 7, Part 6, Cohabitant Abuse Protective Orders, and in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case, the court may order a party to pay the costs, attorney fees, and witness fees, including expert witness fees, of the other party to enable the other party to prosecute or defend the action. The order may include provision for costs of the action.

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

https://www.quora.com/How-do-I-enforce-my-husband-to-hire-me-an-attorney-in-our-divorce/answer/Eric-Johnson-311?prompt_topic_bio=1

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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 A.S.G.-R. – 2023 UT App 126 – permanent custody and guardianship

In re A.S.G.-R. – 2023 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF A.S.G.-R.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

G.R.,

Appellant,

v.

STATE OF UTAH AND E.G.,

Appellees.

Opinion No. 20220645-CA

Filed October 19, 2023

Fourth District Juvenile Court, Provo Department

The Honorable D. Scott Davis

No. 1196726

Alexandra Mareschal and Julie J. Nelson,

Attorneys for Appellant

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

Peterson, Attorneys for Appellee State of Utah

Neil D. Skousen, Attorney for Appellee E.G.

Martha Pierce, Guardian ad Litem

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY

concurred.

HARRIS, Judge:

¶1        G.R. (Mother) became convinced that E.G. (Father) was sexually abusing their daughter, A.S.G.-R. (Child). Over a nearly two-year period, Mother made or sparked some thirty reports of sexual abuse to Utah’s Division of Child and Family Services (DCFS). After investigation, however, DCFS was unable to discover any credible evidence supporting Mother’s allegations, and therefore did not substantiate any of them. And given the number and repeated nature of the reports, DCFS became concerned that Child was being harmed by the allegations and ensuing investigations, some of which had included invasive physical examinations of Child.

¶2        Eventually, the State filed a petition for protective supervision and obtained an order removing Child from Mother’s custody and placing her with Father. After affording Mother fifteen months of reunification services, including a psychological evaluation and therapy, the juvenile court determined that the services had not resulted in sufficient change to the situation and that Child would be placed at substantial risk if she were returned to Mother, and therefore terminated reunification services. And after a four-day permanency hearing, the court entered a permanent custody and guardianship order in favor of Father.

¶3        Mother now appeals, arguing that the court erred in its decisions to not extend reunification services and to award permanent custody and guardianship to Father. We discern no reversible error in those decisions, and therefore affirm.

BACKGROUND[1]

¶4        Child was born in January 2017. Mother and Father separated shortly before Child’s birth, and about two years later they finalized their divorce. In the decree of divorce, Mother and Father were awarded joint legal custody of Child, but Mother was awarded primary physical custody with Father having statutory parent-time.

¶5        Child welfare officials first became involved with this family in November 2018, when DCFS made a supported finding of domestic violence with Father as the perpetrator and Child as the victim. At some point during this same time frame, Mother obtained a protective order against Father, based on allegations that he committed domestic violence against her also.

¶6        Beginning in May 2019, Mother began to make accusations that Father was sexually abusing Child. Over the course of the next two years, Mother made at least eight direct reports to DCFS of alleged sexual abuse. In addition, Mother reported her allegations to various medical and mental health professionals, some of whom also made reports to DCFS based on Mother’s representations. In total, between May 2019 and February 2021, some thirty separate reports were made to DCFS that Father was sexually abusing Child. DCFS investigated these reports and could not substantiate any of them. In connection with some of these reports, Mother took Child to the hospital. During two of these visits, Child—approximately three years old at the time— was subjected to invasive physical examinations, including one “code-R” rape examination.[2] The examinations yielded no evidence of abuse, and in January 2020 DCFS representatives spoke with Mother about the potential harm that could result to Child from repeated unfounded allegations and needless forensic medical examinations. In addition, in April 2020 the “medical director of Utah’s [Center for] Safe and Healthy Families” program advised Mother that subjecting Child to “any further sexual assault examinations could result in an allegation of abuse for [Mother] due to the harm that unnecessary examinations can cause a child.”

¶7        During this time frame, and in an effort to expand Mother’s understanding of the relevant issues, DCFS opened a “voluntary services case” to provide Mother the opportunity to take advantage of certain services, and Mother agreed to work with DCFS to try to improve the situation.

¶8        During the pendency of the voluntary services case, however, Mother hired a private investigator to investigate the possibility of sexual abuse by Father, and she did not tell DCFS that she had done so. This investigator interviewed Child, using techniques the juvenile court later found to “violate[] nearly every guideline for child forensic interviewing,” including “ask[ing] leading questions, [making] promises to [Child] that could not be kept, and offer[ing Child] ice cream if she would tell the interviewer what ‘daddy’s secret’ is.”

¶9        Despite DCFS’s efforts to assist Mother, the voluntary services case did not have its desired effect. Mother proved unable or unwilling to follow the plan DCFS outlined, and she stopped communicating with the DCFS caseworker.[3] Eventually, DCFS closed the voluntary services case.

¶10 Sometime after that case was closed, Mother—in a continuing effort to present evidence that Father was sexually abusing Child—took a video recording of Child in an incident the juvenile court described as follows: Mother “videotaped [Child], naked on a bed, having her point to where [Father] touches her. On the video, [Mother] touches [Child’s] genitals and has her spread her legs and moves the camera angle close-up to [Child’s] genitals.” Mother provided a copy of this recording to DCFS, but caseworkers declined to view it “based on concerns that it may potentially contain child pornography.” Mother then provided the video recording to law enforcement.

¶11      In January 2021, Mother again brought Child to a hospital, alleging that Child “disclosed that [Father] had put his mouth on [Child’s] vagina just hours prior.” Another invasive physical examination was performed on Child, yet “no male DNA was found on [Child’s] genitals.” DCFS was informed about this incident, presumably from hospital personnel, and investigated it; the investigation included interviewing Child at the Children’s Justice Center. After completing its investigation, DCFS found “no corroborating evidence” and concluded that Child’s “disclosure was coached” and “not credible.”

¶12      The present case was initiated in March 2021 when Mother sought a protective order barring Father from having contact with Child, and the State responded by not only intervening in the protective order case but also by filing this action: a petition for protective supervision services in which the State asked the court to “discontinue” the protective order, conclude that Child was “abused, dependent, and/or neglected,” award DCFS protective supervision of Child, and allow DCFS to place Child in Father’s custody during the pendency of the case.

¶13      At a shelter hearing held about a week later, the juvenile court ordered Child removed from Mother’s custody and placed in the temporary custody of DCFS, which then placed Child, on a preliminary basis, with Father. Child has remained in Father’s care ever since.

¶14      Later, at a subsequent hearing, the court found, based on stipulation, that Child was dependent as to Father. With regard to Father, the court indicated that the primary permanency goal was “Reunification/REMAIN HOME,” and that the concurrent goal was “Remain Home with non-custodial parent.”

¶15      The court held an adjudication hearing as to Mother; at that hearing, Father and the guardian ad litem (the GAL) asserted that Mother’s conduct—making repeated false claims of sexual abuse, thereby subjecting Child to interviews, investigations, and physical examinations—constituted abuse, but the State argued only for a finding of neglect. After the hearing, the court found “no specific evidence” of harm to Child that could support a finding of abuse, but instead determined that Child “is neglected” as to Mother because Child “lacks proper care by reason of the fault or habits of [Mother].” For Mother, the court set a primary permanency goal of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary goal was “reunification, with the concurrent goal of guardianship with [a] relative.”

¶16 In connection with setting these permanency goals, the court adopted a Child and Family Plan (the Plan). Under the terms of the Plan, Mother was required to, among other things, “complete a psychological evaluation and follow through with all recommendations”; “participate in individual therapy”; participate in a “parenting class”; and “maintain stable and appropriate housing” for herself and Child. The Plan also required Mother to be “open and honest” in connection with the psychological evaluation, as well as with therapists and other mental health professionals. The Plan provided that its objectives would “be achieved when [Child] is living at [Mother’s] home” and when Mother “is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with” Father. No party lodged any objection to the terms of the Plan or to the permanency goals the court set.[4]

¶17 Thereafter, Mother completed a parenting class as well as—after some delay that may or may not have been attributable to her—the required psychological evaluation. The psychologist who conducted the evaluation (Evaluator) diagnosed Mother with “unspecified personality disorder” characterized by “symptoms indicative of borderline, histrionic, and narcissistic personality disorders as well as paranoid-like features.” In particular, Evaluator noted that Mother has “a belief that she can only be understood by a few people,” a “sense of entitlement,” a “lack of empathy,” and a “pervasive distrust and suspiciousness of others” that leads her to sometimes “suspect[], without sufficient basis, that others are harming and deceiving her.” Evaluator offered his view that, “unless [Mother] overcomes her psychopathological features,” she “cannot act in [Child’s] best interest.” He noted that the “obvious recommendation” for Mother would be for her to “pursue an effective treatment program,” but he was doubtful that such a program would succeed in Mother’s case, because Mother “is convinced that she is not the problem” and because, “given her personality disorder features, . . . it would be hard for [Mother] to develop an effective psychotherapeutic alliance with her psychotherapist.”

¶18 Thereafter, DCFS sent Mother a list of recommended therapists, and Mother attended therapy sessions with at least three different mental health professionals. DCFS expressed concern that Mother “was seeking out multiple providers,” some of whom reported that Mother was attempting to “get a second opinion on the psychological evaluation,” and DCFS was worried that Mother was “continu[ing] to report” to these therapists “that [Child] was being sexually abused.” Because of this, DCFS harbored a “concern that there is no clear progress in therapy, due to minimal communication from providers, multiple providers involved and regular changes in therapy.” Mother maintains, however, that she “engaged in all recommended therapy,” an assertion no party apparently contests, although the record is far from clear about what the specific recommendations were and exactly how Mother complied with them.

¶19 After the psychological evaluation was completed, the parties appeared for a review hearing before the court. At that hearing, the results of the evaluation were discussed, and the court commented that, “if the case were closed today and things returned to how they were before the case, [Child] would be at risk of harm by” Mother. The court ordered that Child remain in DCFS custody and placed with Father, with whom the court stated it had “no safety concerns.”

¶20 As the twelve-month permanency hearing approached, Mother moved for an extension of reunification services for “at least 90 days.” Mother argued that she had complied with the Plan, in that she had completed the parenting class and the psychological evaluation and had engaged in therapy. In this motion, Mother also argued that the juvenile court could not enter an order of permanent custody and guardianship with Father, because the district court had already entered a custody order, in connection with the parties’ divorce case, and in Mother’s view the district court should be the court to enter and modify custody orders between the parents. Father opposed Mother’s motion for extended services, but the State did not register opposition. The court scheduled an evidentiary hearing to consider the matter. But due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in Mother’s motion for an extension of services being de facto granted: services were then extended for another ninety days, and the postponed evidentiary hearing was turned into a permanency hearing.

¶21      After these delays, the permanency hearing was held, over four nonconsecutive trial days, in April and June 2022. Child’s DCFS caseworker testified that she believed that Mother had been “coaching [Child] into telling people certain things.” And Child’s psychologist testified that she “did not observe significant behaviors or concerns, [or] emotions concerning expressions that would signal to [her] that [Child] has experienced sexual abuse.”

¶22      Evaluator testified at length during the trial, and discussed the specifics of his evaluation of Mother. He discussed his diagnosis that Mother had an “unspecified personality disorder.” He testified that the evaluation took longer than anticipated because Mother “did not involve herself in the evaluation in a forthright manner,” “withheld relevant information that was requested of her,” and “intentionally distorted information.” In his view, Mother did not think that she was the problem or that she had done anything wrong. Evaluator reiterated his view that unless Mother “overcomes her psychopathological features, [she] cannot act in [Child’s] best interest.”

¶23 During her own testimony, Mother continued to cling to her viewpoint that Father had been sexually abusing Child. She testified that “she does not agree with a doctor’s opinion that there was no evidence of sexual abuse.” When asked whether she “still believe[d]” that Father had sexually abused Child, she answered that she did not know, but that some “part of [her]” still believed that abuse took place, and that she still had “a suspicion” in that regard. She did not recognize any impropriety in her multiple reports of sexual abuse to DCFS and other authorities, testifying that she did not “think [she] was doing anything incorrectly” regarding the parenting of Child. And she did not agree that her behavior constituted neglect of Child.

¶24      In this same vein, Mother also called her ongoing therapist to testify at the trial. The therapist testified that he had spent some thirty hours of therapy with Mother and that she had been cooperative. The therapist opined, to the extent he was able to as a fact witness, that Evaluator’s diagnosis of an “unspecified personality disorder” was incorrect, that Mother had not neglected Child by reporting sexual abuse to the authorities, and that Father had indeed sexually abused Child.

¶25      At the conclusion of the trial, the juvenile court took the matter under advisement. A few weeks later, the court issued a written decision containing several different rulings. First, the court declined Mother’s invitation to further extend reunification services, and it terminated those services. Important to the court’s decision in this regard were its findings that—although Mother had taken certain steps, including completing parenting classes, engaging in therapy, and completing the psychological evaluation—Mother had not fully complied with the terms of the Plan, because even after all of these services, Mother “accepted virtually no responsibility for [Child] being in DCFS custody for more than one year,” “demonstrated virtually no insight regarding the harm she has caused” to Child, and offered “varied and conflicted” testimony “regarding whether she still believed” that Father had sexually abused Child, “despite there being no credible evidence that he has.” The court also determined that reunification between Mother and Child was not “probable or likely within the next 90 days” and that the extension of services was not in Child’s best interest.

¶26 Second, the court awarded “permanent custody and guardianship” of Child to Father. Important to the court’s decision in this regard were its findings that “return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being,” that there is “no credible evidence” that Father has ever sexually abused Child, and that Child “seems to be thriving and well-adjusted [and] well cared for” in Father’s care.

¶27 Finally, after denying Mother’s request for additional reunification services and granting permanent custody and guardianship in favor of Father, the court terminated its jurisdiction in the case.

ISSUES AND STANDARDS OF REVIEW

¶28 Mother now appeals, and she raises two issues for our consideration. First, she challenges the juvenile court’s decision to terminate reunification services. The juvenile court is “in the best position to evaluate the credibility of witnesses, the parent’s level of participation in reunification services, and whether services were appropriately tailored to remedy the problems that led to the child’s removal.” In re D.R., 2022 UT App 124, ¶ 9, 521 P.3d 545 (quotation simplified), cert. denied, 525 P.3d 1264 (Utah 2023). Accordingly, “absent a demonstration that the determination was clearly in error, we will not disturb the determination” to terminate reunification services. See id. (quotation simplified).

¶29      Second, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father, her fellow parent. As part of this challenge, she takes issue with the court setting slightly different permanency goals for each parent, and with the court accomplishing two separate objectives—namely, choosing among those goals and awarding permanent custody to Father—all in connection with the same hearing. In the main, Mother’s challenges in this regard involve questions of statutory interpretation, which “are questions of law that we review for correctness.” In re S.Y.T., 2011 UT App 407, ¶ 9, 267 P.3d 930 (quotation simplified). But to the extent that Mother here challenges the court’s underlying factual findings, we adopt a more deferential standard of review. See In re L.M., 2013 UT App 191, ¶ 6, 308 P.3d 553 (“We review the juvenile court’s factual findings for clear error . . . .” (quotation simplified)), cert. denied, 320 P.3d 676 (Utah 2014).[5]

ANALYSIS

I

¶30      Mother first challenges the juvenile court’s decision to terminate reunification services. For the reasons discussed, we discern no clear error in the court’s decision.

¶31 When a juvenile court removes a child from a parent’s custody, it may afford the parent the opportunity to take advantage of certain services—e.g., mental health counseling or parenting classes—designed to address the problems that led to removal and aimed at facilitating reunification between parent and child. See Utah Code § 80-3-406. However, due to the need for swift permanence in child welfare cases, the duration of reunification services may not ordinarily “exceed 12 months” from the date of removal. See id. § 80-3-406(13)(a); see also id. § 80­3-409(6). A juvenile court may, however, extend reunification services by an additional “90 days”—for a total of fifteen months—if the court finds, by a preponderance of the evidence, “that (i) there has been substantial compliance with the child and family plan; (ii) reunification is probable within that 90-day period; and (iii) the extension is in the best interest of the minor.” Id. § 80-3­409(7)(a). And in exceptional cases, the court may extend services for a second ninety-day period—for a total of eighteen months— but only if the court can make those same three findings by clear and convincing evidenceId. § 80-3-409(7)(c).

¶32      In this case, Child was removed from Mother’s custody at a shelter hearing in March 2021. Thus, reunification services were to presumptively end in March 2022, unless the court made findings sufficient to support an extension. In early April 2022, the court commenced an evidentiary hearing for the purpose of determining whether reunification services should be terminated or extended but, due to problems with witness subpoenas, the evidentiary hearing needed to be postponed, which resulted in a de facto extension of reunification services for another three months, into June 2022. Finally, at the conclusion of the four-day hearing that same month, the court ordered that reunification services be terminated. In its order, the court—presumably out of an abundance of caution given the timing of the hearing—stated that it was “not able to find by a preponderance of the evidence, and certainly not by clear and convincing evidence, that [Mother] is in substantial compliance with [the Plan], that reunification . . . is probable or likely within the next 90 days, or that extension of services for [Mother] is in [Child’s] best interest.”

¶33 Mother challenges this decision, asserting that it goes against the clear weight of the evidence because, she asserts, she at least substantially complied with the Plan. We acknowledge that Mother did take certain actions that the Plan required, such as completing the psychological evaluation and participating in parenting classes and individual therapy, and we therefore agree with Mother’s assertion that she complied with many—if not necessarily all[6]—of the Plan’s individual requirements.

¶34      But even taking Mother’s assertion—that she completed all of the Plan’s individual subsidiary tasks—at face value, that does not necessarily compel the conclusion that Mother substantially complied with the Plan, because in this case Mother’s efforts did not bear fruit. That is, at the end of fifteen months of reunification services, Mother had not rectified the problem that led to the removal of Child from her custody. The Plan explicitly stated that its goals would be “achieved when [Child] is living at [Mother’s] home [and] where Mother is providing a healthy, stable, and age-appropriate environment . . . that supports a strong co-parenting relationship with [Father].” Child was removed from Mother’s custody because Child lacked “proper care by reason of the fault or habits of [Mother]” due to Mother’s continued unsupported reports to authorities that Father was sexually abusing Child. After fifteen months of services, the court—based at least in part on Mother’s own testimony at the evidentiary hearing— determined that the original problem still existed, and that Child could not therefore safely be returned to Mother’s custody. It is far from clear error for a juvenile court to determine that a parent who has completed many of a child and family plan’s individual requirements, but who has still not meaningfully addressed the underlying problem the plan was designed to solve, has not substantially complied with the plan.

¶35      Moreover, even if we were to assume, for the purposes of the discussion, that Mother’s actions constituted substantial compliance with the Plan, Mother must also grapple with the juvenile court’s findings that reunification was not probable within the next ninety days, and that another extension of reunification services was not in Child’s best interest. See Utah Code § 80-3-409(7)(a)(ii), (iii); see also In re H.C., 2022 UT App 146, ¶ 54, 523 P.3d 736 (“Although [the mother] subsequently complied with the child and family plan, the court nonetheless determined that [the child] could not safely be returned to her care because it found that the return posed a substantial risk of detriment to [the child’s] physical or emotional well-being.”), cert. denied, 527 P.3d 1106 (Utah 2023). While Mother spends many pages in her brief contesting the court’s “substantial compliance” finding, she does not directly engage with the court’s findings that, given her lack of progress on solving the underlying problem, she had not shown—by either evidentiary standard— that reunification was probable in the next ninety days or that reunification was in Child’s best interest. And based on our review of the record, we discern no clear error in these findings.

¶36      Accordingly, we discern no error, let alone reversible error, in the juvenile court’s decision to terminate reunification services.

II

¶37 Next, Mother challenges the juvenile court’s decision to award permanent custody and guardianship to Father. Her challenge in this regard is multi-faceted. First, she challenges the substance of the court’s decision, and asserts that the court—by considering its options limited to those set forth in section 80-3­409(4)(b) of the Utah Code—erred in its interpretation of the governing statute. And in connection with this argument, Mother asks us to overrule one of our recent opinions. Second, Mother challenges the procedure the court used in reaching its decision. For the reasons discussed, we reject Mother’s arguments.

A

¶38      Under our law, in any case in which reunification services are ordered, “the juvenile court shall, at the permanency hearing, determine . . . whether the minor may safely be returned to the custody of the minor’s parent.” See Utah Code § 80-3-409(2)(a). And “[i]f the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.” Id. § 80-3-409(2)(b).

¶39      In this case, as already discussed, the juvenile court ordered reunification services for Mother, and therefore needed to confront, at the permanency hearing, the question of whether Child faced “substantial risk of detriment to her physical and emotional well-being if returned to [Mother’s] care.” In its findings and conclusions entered following that hearing, the court specifically found, by “both a preponderance of the evidence” and by “clear and convincing evidence, that return of [Child] to [Mother’s] care would create a substantial risk of detriment to [Child’s] physical or emotional well-being.” Mother does not directly challenge that finding on appeal.[7]

¶40      In situations where a juvenile court makes a finding of risk and therefore determines that a child cannot be returned to the parent’s custody, our law then requires the court to do certain things: “(a) order termination of reunification services to the parent; (b) make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor . . . ; and (c) . . . establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.” Id. § 80-3-409(4). As discussed above, the court terminated reunification services, and did not err by so doing.

¶41      The court then considered the three options presented by the second part of the governing statute: termination of parental rights, adoption, or permanent custody and guardianship.[8] See id. § 80-3-409(4)(b). The court determined that permanent custody and guardianship with Father was the most appropriate of those three options.

¶42      Mother challenges the substance of this determination, and she makes two specific arguments. First, she asserts that the statutory subsection the court believed governed the situation— section 80-3-409(4) of the Utah Code—doesn’t actually govern, because in Mother’s view Child was “returned to” a parent (Father) after the permanency hearing. Second, and relatedly, Mother acknowledges that one of our recent decisions—In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023)—interpreted the governing statute in a manner unfavorable to her, and she asks us to overrule that recent case. We find neither of Mother’s arguments persuasive.

1

¶43 Mother’s first argument challenges the juvenile court’s interpretation of statutory text. In particular, she notes that a threshold requirement of the governing statute is that the minor not be “returned to the minor’s parent or guardian at the permanency hearing.” See Utah Code § 80-3-409(4). Only if a child is not “returned to the minor’s parent” at the permanency hearing does a court need to choose from one of the three options set forth in subsection (4)(b): termination, adoption, or permanent custody and guardianship. See id. If a child is “returned to the minor’s parent,” then a court presumably could select some other option not listed in subsection (4)(b). As Mother sees it, the statutory reference to “the minor’s parent” includes not only the parent from whom the child was removed and with regard to whom the “substantial risk” determination is being made, but also the child’s other parent. And she asserts that, because Child was placed in the custody of Father—Child’s other parent—after the permanency hearing, the court erred by considering itself limited to the three options set out in subsection (4)(b).

¶44      Our “overarching goal” in interpreting a statute is “to implement the intent of the legislature.” See State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to ascertain that intent, we start with “the language and structure of the statute.” Id. “Often, statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Id. (quotation simplified). “The reverse is equally true: words or phrases may appear unambiguous when read in isolation, but become ambiguous when read in context.” Id. For this reason, “we read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word in the statute.” Id. (quotation simplified).

¶45 In our view, the phrase “the minor’s parent,” as used in section 80-3-409(4), refers only to the parent from whom the child was removed, who was offered reunification services, and to whom return of the child “would create a substantial risk of detriment” to the child. It does not refer to another parent with whom the child is currently placed, who has not been ordered to complete any reunification services, and with regard to whom the court has not made any “substantial risk” determination. Indeed, the thrust of this entire statutory section has to do with whether a child will be reunited with a parent from whom the child has been removed and who has received reunification services. See Utah Code § 80-3-409. As already noted, subsection (2) requires a court to make a threshold determination about whether the “minor may safely be returned to the custody of the minor’s parent,” something that may not occur if “return of the minor to the minor’s parent would create a substantial risk of detriment” to the minor. Id. § 80-3-409(2)(a), (b). The verb “returned” is meaningful here: one does not “return” to a situation in which one has never been in the first place. See Return,    Merriam-Webster, https://www.merriam-webster.com/dictionary/return            [https://perma.cc/Y4YF-3ENP]
(defining “return” as “to go back or come back again”). In the subsection (2) context, the phrase “the minor’s parent” clearly refers to the parent from whom the minor was removed, who received reunification services, and with regard to whom the “substantial risk” determination is being made; indeed, the statute instructs juvenile courts that are making the subsection (2) threshold determination to consider, among other things, whether the parent in question has demonstrated “progress” and whether the parent has “cooperated and used the services provided.” See Utah Code § 80-3-409(3)(a)(iv), (v). In our view, it would be nonsensical to apply this phrase to the minor’s other parent in a situation where the child was already in the custody of that parent at the time of the permanency hearing, where that parent did not receive reunification services, and where the court made no “substantial risk” determination concerning that parent at that hearing. Indeed, at oral argument before this court, Mother conceded that the phrase “the minor’s parent,” as used in subsection (2), must refer solely to the parent who received reunification services and with regard to whom the “substantial risk” determination is being made.

¶46 That same phrase—“the minor’s parent”—used two subsections later means the same thing. As noted, we read statutes as a whole, including all of their subsections, and “interpret [their] provisions in harmony with other statutes in the same chapter and related chapters.” See Rushton, 2017 UT 21, ¶ 11 (quotation simplified). Under “the canon of consistent meaning,” there is a “presumption that the established meaning of a word in a given body of law carries over to other uses of the same term used elsewhere within that same law.” In re Childers-Gray, 2021 UT 13, ¶ 142, 487 P.3d 96 (Lee, J., dissenting). And the “canon of consistent meaning is at its strongest when it is applied to a term used in neighboring subparts of the same statutory provision.” Irving Place Assocs. v. 628 Park Ave, LLC, 2015 UT 91, ¶ 21, 362 P.3d 1241; see also Barneck v. Utah Dep’t of Transp., 2015 UT 50, ¶ 31, 353 P.3d 140 (determining that a term “cannot properly mean one thing as applied to two of the objects in a series . . . but something else as applied to the other object in the same series”). Thus, when assessing the meaning of the phrase “the minor’s parent” in subsection (4), it is highly relevant how that phrase is used in subsection (2). And we conclude that, interpreted in its proper context, the phrase—as used in subsection (4) as well as subsection (2)—refers only to the parent from whom the child was removed, who received reunification services, and with regard to whom the court is making the “substantial risk” determination, and not to another parent who does not fit those criteria.

¶47      Accordingly, we reject Mother’s argument that subsection 409(4) has no application to her situation. By the plain terms of that statutory section, the juvenile court—as soon as it determined that Child could not safely be returned to Mother—was obligated to apply that statutory subsection according to its text.

2

¶48      Under the text of that statutory subsection, a court that has made a “substantial risk” determination must terminate reunification services. See Utah Code § 80-3-409(4)(a). At that point, the statute requires the court to “make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor.” Id. § 80-3-409(4)(b). The language of this statutory subsection therefore speaks of only three options, and requires the court in this situation to choose one of them. And we have recently interpreted this language according to its text, even as applied to disputes between parents. See In re H.C., 2022 UT App 146, 523 P.3d 736, cert. denied, 527 P.3d 1106 (Utah 2023).

¶49      Yet here, Mother nevertheless asserts that, at least in cases involving disputes between two parents, juvenile courts ought to be allowed to choose a different option: entry of a simple custody order that is controlled by the usual standards governing entry and modification of custody orders in divorce court. Mother asserts that awarding a parent the status of “guardian” makes no sense, given that a parent already has all the rights that a guardian has. And she asserts that entering orders of permanent guardianship as between parents has the effect—one she posits was unintended—of preventing one parent from being able to seek modification of the custody order.

¶50      To her credit, Mother recognizes that our recent holding in In re H.C. forecloses her argument for a fourth option. In that case, the parents of a child were divorced, with a parenting plan that gave primary custody to the mother. Id. ¶ 2. But later, the juvenile court determined that the child had been neglected by the mother, and the child was placed in the care of the father. Id. ¶¶ 4, 8. After the permanency hearing, the juvenile court determined that the child would be at substantial risk if returned to the mother’s custody, and the court placed the child with the father under an order of permanent custody and guardianship. Id. ¶¶ 28, 38. On appeal, we affirmed the juvenile court’s decision, and we interpreted subsection 409(4)(b) as limiting the juvenile court to the three options set forth therein. Id. ¶ 58. We held that subsection 409(4)(b) “leaves a juvenile court judge with no discretion” to do anything else, and we specifically stated that the statute “does not vest the juvenile court with the authority to defer to the district court” with regard to custody of the adjudicated child. Id. (quotation simplified).

¶51      In an effort to get around this roadblock, Mother asks us to overrule In re H.C. We do possess the authority to overrule our own precedent in appropriate cases. See State v. Legg, 2018 UT 12, ¶ 11, 417 P.3d 592 (stating that one panel of this court “retains the right to overrule another panel’s decision if the appropriate standard is met”). “But we do not do so lightly,” given our respect for the principle of stare decisis, which ordinarily requires us to defer to “the first decision by a court on a particular question.” See State v. Garcia-Lorenzo, 2022 UT App 101, ¶¶ 42, 44, 517 P.3d 424 (quotation simplified), cert. granted, 525 P.3d 1263 (Utah 2022).

¶52      “Before we may overrule one of our precedents, we must engage in the two-part exercise required by our supreme court in such situations.” Id. ¶ 45. “First, we must assess the correctness of the precedent, and specifically examine the persuasiveness of the authority and reasoning on which the precedent was originally based.” Id. (quotation simplified). “Second, we must assess the practical effect of the precedent, including considerations such as the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people’s reliance on the precedent would create injustice or hardship if it were overturned.” Id. (quotation simplified). Both parts of the test must be satisfied before we may overrule a precedent. See id. In this case, we need not discuss the second part because, in our view, the first one is not satisfied.

¶53 With regard to the first part—the correctness of the precedent—Mother asserts that our decision in In re H.C. “upends the district court’s jurisdiction over custody matters and imposes an unnecessarily restrictive scheme on custody between two parents.” She points out that, when a child is placed with the other parent after a permanency hearing, “the child isn’t in ‘legal limbo’” and “all that is left to determine is what [the] custody [arrangement] between the parents will look like.” And she maintains that, if subsection 409(4)(b) is interpreted to require courts to order permanent custody and guardianship in favor of one of the parents, that result would serve to “override[] district court custody orders” and would create a “super sole custody” arrangement in which “the non-guardian parent can never modify the terms of the guardianship.” She asserts that this is an “absurd result” that “cannot be what the legislature intended.”

¶54 But in our view, the panel’s reasoning in In re H.C. was sound. There, the court analyzed the text of subsection 409(4)(b) and concluded that the language used by the legislature limited juvenile courts in this situation to the three options set forth in the text of the statute. See In re H.C., 2022 UT App 146, ¶¶ 58–59. Our analysis of that same text leads us to the same conclusion.

¶55      Moreover, Mother overlooks the fact that the panel in In re H.C. considered many of the same arguments that Mother is advancing here. In that case, the appellant asserted that “juvenile courts should not be deciding custody between two fit parents.” Id. ¶ 52 (quotation simplified). And the appellant complained that an order of permanent custody and guardianship in favor of the other parent may prevent her “from petitioning for custodial change in the future.” Id. ¶ 53. We rejected these arguments, in part, by noting that, given the court’s adjudication rulings, “this was not merely a custody proceeding ‘between two fit parents.’” Id. ¶ 54. And we acknowledged the remainder of these arguments in a footnote, editorializing that “it seems odd that, in a situation such as this with two parents vying for custody of a minor child, the statute authorizes the award of permanent guardianship to one parent over the other, where both enjoy parental rights in the minor child.” Id. ¶ 59 n.13. But we found these arguments nevertheless unpersuasive in light of the text of the “statutory regimen that we [were] called upon to interpret and apply.” Id.

¶56      We share the sentiment of the panel in In re H.C. that the text of the governing statute compels the interpretation described there. The text selected and enacted by our legislature limits juvenile courts to just three options in this situation. See id. ¶¶ 58– 59 & n.13 (stating that “permanent custody and guardianship is one of only three options available by the terms of the controlling statute when parental neglect has triggered the juvenile court’s jurisdiction and the case progresses to a permanency hearing at which parental neglect is found and reunification services are terminated”). If our legislature intended a different result, it can always amend the statute to provide for additional options—for instance, entry of a simple custody order awarding primary physical custody to the other parent, and allowing the district court to manage things from there—that a juvenile court might be able to apply in cases involving disputes between two parents. But for now, the text of the governing statute speaks of only three options, applicable in all cases, and we must apply the statute as written, Mother’s policy arguments notwithstanding.[9]

¶57 For all of these reasons, we decline Mother’s invitation to overrule In re H.C. That case—and the statutory text interpreted therein—compels the conclusion that the juvenile court, in this case, had only three options after concluding that it could not return Child to Mother’s custody: it had to either (a) terminate Mother’s parental rights, (b) work toward adoption, or (c) enter an order of permanent custody and guardianship with someone other than the parent at issue. See Utah Code § 80-3-409(4)(b); see also In re H.C., 2022 UT App 146, ¶¶ 58–59. The juvenile court, by selecting permanent custody and guardianship in favor of Father, chose one of the available options.[10] In so doing, the court properly followed the governing statute, and did not misinterpret it. We therefore reject Mother’s second substantive argument.

B

¶58      Finally, Mother makes two challenges to the procedure the juvenile court employed in arriving at its conclusion to award permanent custody and guardianship to Father. We reject both challenges.

¶59 First, Mother claims that the court acted inappropriately when it took the following two actions in the same ruling and after the same hearing: (a) it changed Child’s final permanency goal to permanent custody and guardianship and (b) it entered an order effectuating the permanent custody and guardianship. As Mother sees it, the court was required “to first change the permanency goals . . . and then hold a review hearing (possibly another evidentiary hearing) to determine whether the final permanency goal is established.” Mother notes that “nothing in section 409 permits a juvenile court to” accomplish both things in the same ruling and after the same hearing. But Mother cites no statute or appellate opinion forbidding the court from doing so and, in this situation, we see no reason why the court could not have proceeded as it did.

¶60 Had the court chosen “adoption” as the primary permanency goal following the permanency hearing, then perhaps Mother would have a point: as a practical matter, setting adoption as the goal entails a fair bit of extra work. To facilitate an adoption, the parent’s rights would need to be terminated, and to make that happen, the State (or another petitioner) would need to file a petition for termination of parental rights, which would need to be litigated. And the juvenile court would also need to concern itself, in the event the parent’s rights were terminated, with finding an appropriate adoptive placement for the child.

¶61 But where the court selects permanent custody and guardianship as the primary permanency goal, and the child is already placed with the person to whom custody and guardianship is to be given, there are not necessarily any additional steps that the court needs to take before making that goal a reality. Certainly, in this case Mother doesn’t identify any additional work that needed to be done in the interim. And as noted, Mother points to no statute or governing case forbidding the juvenile court, in cases like this one, from proceeding efficiently and entering the order of guardianship in the same order as it selects the primary permanency goal. Mother has therefore not carried her burden of demonstrating error.

¶62 Second, Mother takes issue with the juvenile court’s decision, earlier in the case, to set different permanency goals for each parent. As noted above, after adjudicating Child dependent as to Father, the court initially set the primary permanency goal, as to Father, as “Reunification/REMAIN HOME,” and the concurrent permanency goal as “Remain Home with non­custodial parent.” Later, after adjudicating Child neglected as to Mother, the court set a primary permanency goal, as to Mother, of “RETURN HOME” and a concurrent permanency goal of “Permanent Custody and Guardianship with a Relative.” The court explained that it was setting “different permanency goals for each parent,” and that for Father, “the primary goal will be” for Child to “remain[] home with him,” with “the concurrent goal of reunification if she is removed from his care.” For Mother, the primary permanency goal was “reunification, with the concurrent goal of guardianship with [a] relative.” Mother challenges this procedure as improper, asserting that this choice made “it additionally difficult for any parent to determine what the effect of abandoning one of the primary plans would be.” But Mother cites no statute or governing case forbidding the court from engaging in this procedure, and she overlooks the fact that she did not object to these goals when they were set. In addition, Mother does not articulate how the court’s decision to set slightly different permanency goals vis-à-vis each parent resulted in any harm to her at the end of the case. Accordingly, Mother has not carried her burden of demonstrating reversible error.[11]

CONCLUSION

¶63 We discern no clear error in the juvenile court’s decision to terminate reunification services. And we reject Mother’s challenges—both substantive and procedural—to the court’s award of permanent custody and guardianship to Father.

¶64 Affirmed.

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

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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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THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. CODY BLAIR MURRAY, Appellant. Opinion

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CODY BLAIR MURRAY,

Appellant.

Opinion

No. 20200890-CA

Filed May 18, 2023

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 191902454

Emily Adams, Freyja Johnson, and Cherise Bacalski,

Attorneys for Appellant

Sean D. Reyes and William M. Hains,

Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred.

TENNEY, Judge:

¶1        After Cody Murray pleaded guilty to violating a protective order, the district court ordered him to pay the victim’s moving expenses and 12 weeks of lost wages as restitution. Murray now appeals that restitution order, arguing that his criminal conduct did not proximately cause either of those losses. On the moving expenses, we agree with Murray and reverse that portion of the order. On the lost wages, however, we conclude that there was sufficient evidence to link Murray’s criminal conduct to the claimed loss. We accordingly affirm that portion of the order.

BACKGROUND

¶2        Murray married C.M. in March 2018, and they lived together throughout their short marriage. On January 2 or 3, 2019, C.M. filed a report with law enforcement alleging that Murray had engaged in sexual intercourse with her without her consent while she was medicated and sleeping. On the same day that she filed this report, C.M. obtained a temporary protective order against Murray based on this same allegation.

¶3        On January 3, 2019, law enforcement served Murray with the protective order at the residence he shared with C.M., and Murray complied with the order by packing his belongings and leaving the residence. Within an hour of leaving, however, Murray asked a friend to contact C.M. on his behalf. As subsequently alleged in a probable cause affidavit, C.M. soon received “phone calls and text messages” from the friend’s phone in which the friend relayed messages that Murray “loved her” and “missed her.” As also alleged, while the friend was on the phone speaking to C.M., Murray “passed a paper note” to the friend asking him “to let C.M. know that [Murray] was scared.” C.M. reported these communications to law enforcement as a violation of the protective order.

¶4        The State later filed two cases against Murray. The two cases were filed separately and were not consolidated. In the first case, the State charged Murray with one count of rape. That charge was based on C.M.’s allegation that Murray had sexual intercourse with her without her consent while she was sleeping. That case was later dismissed.

¶5        In the second case, which is the case at issue in this appeal, the State charged Murray with one count of violating a protective order. See Utah Code § 76-5-108 (2018). This charge was based on Murray’s indirect communications with C.M. on January 3, 2019. In March 2020, Murray pleaded guilty to the charged offense. As a result of a plea deal, the charge was reduced from a class A misdemeanor to a class B misdemeanor. In his affidavit in support of the plea, Murray admitted that “[o]n or about January 3, 2019,” he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Murray also agreed that he “may be ordered to make restitution to any victims of [his] crimes.”

¶6        Murray agreed to be sentenced at that same hearing. During the sentencing portion of the hearing, C.M.’s attorney asked the court to leave open C.M.’s restitution claim for the “one year statutory time limit,” informing the court that she would “submit any restitution” after receiving further documentation. The court left C.M.’s restitution claim open as requested.

¶7        In July 2020, the Utah Office of Victims of Crime (UOVC) filed a motion for restitution, asserting that it had paid C.M. a total of $6,264.47.[1] Of that amount, $5,520.28 was designated as reimbursement for “[l]oss of wages” and $744.19 was designated as reimbursement for “[r]elocation.”

¶8        Murray objected to UOVC’s motion for restitution and requested a hearing. At that hearing, UOVC’s attorney called two witnesses: (1) a representative from UOVC (Representative) and (2) C.M.

¶9        Representative testified that UOVC received C.M.’s application for restitution in November 2019. Representative testified that C.M. listed both the protective order violation and the alleged rape as the bases for her restitution claim. Representative further noted that in reviewing C.M.’s restitution claim, “the reparations officer indicated that the claim was approved based on both incidents”—the alleged rape and the protective order violation—because “they were so close together” that “the reparations officer couldn’t separate them into two separate claims.”

¶10      Representative testified that UOVC ultimately approved and paid C.M.’s expenses for “loss of wages” in the amount of $5,520.28, as well as “relocation” or moving expenses in the amount of $744.19, thus totaling $6,264.47. With respect to the lost wages claim, Representative testified that UOVC received a document from C.M.’s employer that explained “how much [C.M.] made at the time and how long she was out of work.” Representative said that UOVC also received a “health provider statement” that corroborated that C.M. missed work. Representative further said that from these documents and other verification efforts with C.M.’s employer, UOVC determined that C.M. missed “over 68 days” of work, and that it had then paid “12 weeks of lost wages” for the work C.M. missed from “January 3rd of 2019 through March 15th of 2020” at “[s]ixty-six percent of the full-time salary,” which in C.M.’s case amounted to $5,520.28.

¶11      With respect to the moving expenses, Representative testified that UOVC paid C.M. $744.19 to cover “reimbursement for movers.” Representative said that C.M. told UOVC that she had moved because “she didn’t feel comfortable in having [Murray] know where she lived.”

¶12      UOVC’s attorney then called C.M., who testified that she obtained the protective order against Murray because of the “actions he was making to [her] in [her] sleep.” C.M. also provided and referred to a note from a doctor indicating that C.M. had been seen because “[f]or the duration of her marriage her husband was sexually assaulting her in her sleep,” “[s]he was experiencing UTIs on many occasions from the sexual abuse,” and she had “[m]ajor depressive disorder” and “post-traumatic stress disorder.”

¶13      During C.M.’s testimony, UOVC’s attorney asked, “[A]s a result of the violation of the protective order, can you tell us what effect the violation of the protective order, the conduct that the defendant caused—what happened to you as a result?” C.M. responded that she suffered “severe panic attacks” and flashbacks, “live[d] in fear nearly every day,” felt a “[l]oss of trust of people in general,” and had “a hard time concentrating or focusing.” She said she had “severe depression” and was simply not “able to function like [she had] always been able to.”

¶14      UOVC’s attorney then asked if Murray’s conduct “in December or January of 2018, ’19 . . . interfere[d] with [her] ability to interact with people,” to which C.M. responded, “Definitely.” C.M. testified that because these issues “interfere[d] with [her] ability to work,” there were times where she had to take leave from work. She testified that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” and that she was out of work periodically after that, thus agreeing with the suggestion from the attorney that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” UOVC’s attorney asked if C.M.’s requests to take leave from work starting in “December of 2018” were “related to [Murray’s] conduct . . . that was occurring at that time,” and C.M. responded, “It was.”

¶15      With respect to the moving expenses, C.M. testified that she moved from the home she’d shared with Murray because the divorce decree ordered her to sell it. C.M. said that she moved in May 2020—17 months after Murray violated the protective order—and that her restitution request was based on the movers she had hired to assist with that move.

¶16      Murray didn’t call any witnesses at the restitution hearing. Instead, after UOVC’s attorney rested, each side presented closing arguments. UOVC’s attorney asked the court to order restitution for lost wages because C.M. had to take leave from work “[a]s a result of [Murray’s] conduct . . . because she wasn’t able to fully perform the job.” UOVC’s attorney asked for restitution for moving expenses because “it was [Murray’s] conduct which caused” C.M. to move and she “had reason to hide her whereabouts from” Murray out of fear.

¶17     Murray, however, argued that under the restitution statute, “restitution has to be tied directly” to the offense for which he’d been convicted—which, here, was a class B misdemeanor violation of a protective order. In Murray’s view, restitution for the lost wages was not appropriate because C.M. “missing all of [that] work . . . [could not] be tied” to his violation of the protective order (as opposed to the underlying rape allegation that the protective order was based on). Murray also argued that the moving expenses could not be tied to this conviction because C.M.’s decision to move was based on an order from the divorce decree requiring C.M. and Murray to sell the house.

¶18      At the close of arguments, the court ordered restitution in the amount of $6,264.47 to cover lost wages and moving expenses. In its oral ruling, the court noted that Murray was “alleged to have committed sexual offenses against [C.M.] in her sleep” in the latter part of 2018. The court said that it would “take the testimony of the witness at face value with regard to what she felt was a violation that caused the fear,” and the court then found that Murray’s “past history” of “sexual[ly] assaulting” C.M. “in her sleep” caused her “fear” and “anxiety.” With respect to C.M.’s missed work, the court found that “whatever happened, certainly enhanced or contributed to [C.M.’s] anxiety, depression, [and] fear,” and that “after the circumstances giving rise to whatever happened in December, there was a definite downturn with regard to [C.M.’s] ability . . . to work.” And with respect to the moving expenses, the court found that the “moving expenses [were] also reasonable and arising out of the crime that occurred.”

¶19      Murray objected to the court’s ruling. Murray argued that the court could “only tie restitution to what [Murray] was convicted of or pled guilty to, which would be the violation of the protective order,” and he further argued that the court should not “consider any of the alleged sexual misconduct” in its determination of restitution. In response, the court referred to the document submitted by C.M. in her restitution application, noting that “for the duration of the marriage, [Murray] was sexually assaulting [C.M.] in her sleep” and that she “was experiencing UTIs on many occasions from the sexual abuse.” The court observed that C.M. suffered from depression and post-traumatic stress as a result. Of note, the court then wondered whether these conditions were “exacerbated . . . or caused by a violation of a protective order,” “especially the loss of work after his commission of the violation of the protective order.” (Emphasis added.)

¶20      In a subsequent written restitution order, the court ordered Murray to pay UOVC a total of $6,264.47 for lost wages and moving expenses. In its Findings of Fact, the court found that C.M. “suffered emotional trauma as a result of [Murray’s] conduct in this case” and that her “fear, anxiety, and depression . . . rendered [her] unable to perform her duties and required her to miss work.” The court found that the trauma C.M. suffered “also caused her to relocate because she feared [Murray] and didn’t want him to know where she lived.” Murray filed a timely notice of appeal from that judgment.[2]

ISSUE AND STANDARDS OF REVIEW

¶21      Murray argues that the district court improperly ordered restitution for C.M.’s lost wages and moving expenses. “We will not disturb a district court’s restitution determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v. Calata, 2022 UT App 127, ¶ 12, 521 P.3d 920 (quotation simplified), cert. denied, 525 P.3d 1268 (Utah 2023). “To the extent that the district court made legal determinations in connection with its restitution analysis, we review those legal determinations for correctness.” State v. Oliver, 2018 UT App 101, ¶ 15, 427 P.3d 495 (quotation simplified). But when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).

ANALYSIS

¶22      The Crime Victims Restitution Act (the CVRA) requires the district court “to determine restitution for any pecuniary damages proximately caused by the defendant’s criminal conduct.” State v. Blake, 2022 UT App 104, ¶ 9, 517 P.3d 414. Here, Murray challenges the court’s decision ordering him to pay C.M.’s moving expenses and her lost wages. In Murray’s view, his criminal conduct did not proximately cause either loss.

¶23      We first quickly dispense with the moving expenses issue. Murray argues that “[n]o evidence tied C.M.’s move from the marital home” to his criminal conduct, but that “the evidence on the record was that C.M. had to move because of the divorce decree.” Based on this, Murray argues that there was no basis for requiring him to pay these expenses as part of restitution. In its responsive brief, the State concedes this point. Having reviewed the record, we conclude that Murray’s argument and the State’s concession are well taken. We accordingly reverse that portion of the restitution order.

¶24      The remaining and principal issue on appeal, then, is whether the court also erred in ordering Murray to pay C.M.’s lost wages. On this, Murray argues that the court erred in two key respects: (I) by taking into account the alleged rape and (II) by then determining that Murray’s criminal conduct proximately caused C.M. to miss work. We address each argument in turn.

I. Alleged Rape

¶25      Murray argues that the district court improperly based the restitution order for lost wages on C.M.’s rape allegation, rather than limiting itself to considering the sole offense to which he had pleaded guilty: violating a protective order. We see no legal error in the court’s decision.

¶26      As a general rule, we “apply the law in effect at the time of the occurrence regulated by that law.” State v. Wilkerson, 2020 UT App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version of the restitution statute in effect at the time of Murray’s sentencing provided that

[w]hen a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, . . . the court shall order that the defendant make restitution to victims of crime as provided in this chapter, or for conduct for which the defendant has agreed to make restitution as part of a plea disposition.

Utah Code § 77-38a-302(1) (2019); see also id. § 77-38a-302(5)(a) (2019) (“For the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.”).[3] Under these statutes, Murray therefore could not “be ordered to pay restitution for criminal activities for which he did not admit responsibility, was not convicted, or did not agree to pay restitution.” State v. Randall, 2019 UT App 120, ¶ 13, 447 P.3d 1232 (quotation simplified)

¶27      It’s true that Murray was not convicted of raping C.M. As noted, the separate criminal case that was based on the rape allegation was dismissed. It’s also true that Murray did not admit to raping C.M. in this case either. But contrary to Murray’s arguments, this doesn’t mean that his alleged sexual misconduct against C.M. could play no role in the court’s restitution analysis.

¶28      Again, Murray pleaded guilty to violating a protective order, and the elements of that offense were that Murray was “subject to a protective order” and “intentionally or knowingly violate[d] that order after having been properly served or having been present . . . when the order was issued.” Utah Code § 76-5­108(1) (2018). In his plea agreement, Murray acknowledged these elements and agreed that he had “committed the crime.” In the factual basis portion of the plea agreement, Murray further agreed that he had “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Pulling this together, the criminal activity for which Murray was convicted (by way of plea) included these key pieces:

·        Murray was subject to a protective order;

·         Murray intentionally or knowingly violated the protective order; and

·         Murray did so by knowingly and intentionally communicating with C.M. through a mutual friend through phone calls and text messages.

¶29      Once Murray was convicted of this offense, the district court could then order restitution for any damages that were “proximately caused” by that offense. State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132.[4] Our supreme court has explained that restitution is intended “to compensate the victim for pecuniary damages,” as well as “to rehabilitate and deter the defendant, and others, from future illegal behavior.” State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. Because the question before a restitution court is what damages were proximately caused by the offense, the court isn’t confined to just the narrow elements of the offense of conviction. Rather, while the “restitution statute requires that responsibility for the criminal conduct be firmly established, much like a guilty plea, before the court can order restitution,” “it is only the initial crime for which liability must be legally certain.” State v. Hight, 2008 UT App 118, ¶¶ 3, 5, 182 P.3d 922 (quotation simplified). Once guilt for the offense has been firmly established, the court then has “broad discretion, after reviewing the evidence presented at the restitution hearing,” to “order restitution for any pecuniary damages clearly resulting from” that offense. Id. ¶ 5 (quotation simplified). In other words, once the defendant is convicted of “criminal conduct,” the defendant can “be held responsible for all damages proximately caused by that conduct.” State v. Huffman, 2021 UT App 125, ¶ 9, 501 P.3d 564 (emphasis in original), cert. denied, 509 P.3d 198 (Utah 2022).

¶30      Our decision in Huffman is illustrative. Therethe defendant pleaded guilty to possessing drugs. Id. ¶ 7. Although the offense of drug possession doesn’t include, as an element, the destruction of property, we held that it was appropriate for the court to order restitution for damage that was done to the victim’s motorhome. This was so because evidence before the court established that the defendant’s possession of drugs inside the motorhome proximately caused those damages. Id. ¶¶ 12–14.

¶31      A similar dynamic is in play here. Again, Murray pleaded guilty to violating a protective order. In doing so, he acknowledged both the existence of the protective order and that he had violated its terms. Once these things were firmly established through the guilty plea, the court then had broad discretion to order restitution for any damage that was proximately caused by Murray’s criminal conduct.

¶32      When making that proximate cause determination, the court had at least some latitude to consider the conduct that had led to the protective order, and this is largely so because of the nature of the offense. After all, Murray wasn’t convicted of a crime because he contacted a stranger with whom he had no prior history. Rather, Murray was convicted of intentionally or knowingly contacting a person who had obtained a protective order against him. In this key sense, it was the protective order that made Murray’s communications criminal.

¶33      A protective order acts as a “mechanism” for giving victims a measure of “protection against their abusers.” State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645; see also State v. Baize, 2019 UT App 202, ¶ 20 n.5, 456 P.3d 770. One of the principal ways that a protective order does this is by creating a legal barrier between the victim and the abuser. If a person who is subject to a protective order subsequently breaches that barrier, a court couldn’t realistically be expected to decide whether the victim was traumatized by the violative act by considering that act as if it had occurred in a vacuum. Given that the victim had previously obtained judicial protection from the person, the nature of the alleged prior conduct would very likely have some bearing on the interconnected questions of whether and why the illegal contact had proximately caused any trauma or harm to the victim (not to mention how much damage the victim had actually suffered).

¶34      In short, because Murray pleaded guilty to violating a protective order, the district court could consider the fact that C.M. had obtained a protective order against him as part of its restitution analysis. And from there, it then had discretion to consider the conduct that led to the issuance of the protective order, at least to the extent that such conduct could inform its decision about whether Murray’s actions proximately caused any harm to C.M.

II. Proximate Cause

¶35      Murray next argues that the evidence before the district court was insufficient to show that his criminal conduct proximately caused C.M. to miss 12 weeks of work. We disagree.

¶36      The “proximate cause standard requires a showing that the crime, in a natural and continuous sequence, unbroken by any new cause, produced the injury and that the injury would not have occurred absent the crime.” Blake, 2022 UT App 104, ¶ 9 (quotation simplified). The “burden is on the State to prove proximate cause,” State v. Morrison, 2019 UT App 51, ¶ 13, 440 P.3d 942, and this “requires proof of two elements: (1) but-for causation and (2) foreseeable harm,” State v. Watson, 2021 UT App 37, ¶ 15, 485 P.3d 946.

¶37      Proximate cause is generally a “fact question[] to be resolved by the fact finder.” State v. Barzee, 2007 UT 95, ¶ 81, 177 P.3d 48; see also Mackay v. 7-Eleven Sales Corp., 2000 UT 15, ¶ 7, 995 P.2d 1233 (noting that proximate cause is a fact question). Because of this, we review a district court’s finding of proximate cause for clear error. State v. Grant, 2021 UT App 104, ¶¶ 24, 35, 499 P.3d 176, cert. denied, 505 P.3d 56 (Utah 2022). Thus, when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).

¶38      Here, we see no clear error in the court’s finding that Murray’s violation of the protective order proximately caused C.M. to miss 12 weeks of work.

¶39      At the restitution hearing, C.M. testified that she obtained the protective order because of “actions [Murray] was making to [her] in [her] sleep” that began “at the end of December of 2018.” She further agreed that this “conduct” was “the reason for the ongoing protective order.” Of note, C.M. then testified that, “as a result of the violation of the protective order,” she has “severe panic attacks,” “severe depression,” and flashbacks; that she “live[s] in fear nearly every day”; that she has a “[l]oss of trust in people” generally; that she has a “hard time concentrating or focusing”; and that she was unable “to function like [she has] always been able to.” (Emphasis added.) When C.M. was then asked whether “the problems” that she was having “interfere[d] with [her] ability to work,” she responded, “Definitely.” While she said that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” (which would have predated Murray’s violation of the protective order), C.M. also agreed that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” The district court determined that C.M.’s testimony was credible, and on appeal, we give deference to that credibility determination. See State v. Miles, 2020 UT App 120, ¶ 34, 472 P.3d 978 (noting that “because of the district court’s advantaged position in observing the witnesses firsthand, we defer to its credibility findings” (quotation simplified)); State v. Taylor, 2017 UT App 89, ¶ 10, 402 P.3d 790 (noting that “we accord deference to the trial court’s ability and opportunity to evaluate credibility and demeanor” (quotation simplified)).

¶40      As also noted, UOVC introduced evidence showing that C.M. missed “over 68 days” of work, and UOVC’s Representative testified that UOVC paid for 12 weeks of work that she missed “span[ning] from January 3rd of 2019 through March 15th of 2020” because that missed work was “related to the incident in this particular case, which is the violation of a protective order.” When coupled with C.M.’s testimony about the effects of the protective order violation itself on her psyche and her ability to function, this provided an evidentiary basis for the court to find that Murray’s criminal conduct proximately caused C.M. to miss this work.

¶41      Murray nevertheless pushes back on several fronts, none of which are availing.

¶42      First, Murray points to testimony showing that C.M. was traumatized by the alleged rape (as opposed to the protective order violation), as well as testimony establishing that C.M. began missing work even before the unlawful communication. Both things are, on this record, unquestionably true. But even if the alleged rape caused psychological trauma to C.M. on its own, and even if that trauma caused her to miss work (either before or even after January 3, 2019), this doesn’t mean that Murray’s violation of the protective order couldn’t proximately cause her to miss work too.

¶43      Again, if there was sufficient evidence to establish that C.M.’s losses were proximately caused by the communication, then those losses were compensable. The fact that the losses may have been linked to some other causal source does not change this. In civil cases, it has long been recognized that there can be multiple causes for an injury or a trauma. See, e.g.McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (confirming “there can be more than one proximate cause” of “an injury”); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991) (“There can be more than one proximate cause of an injury so long as each is a concurrent contributing factor in causing the injury.” (quotation simplified)). And this is true in a criminal case too. See, e.g.State v. Gonzales, 2002 UT App 256, ¶ 21, 56 P.3d 969 (“A defendant’s acts may be found to be the proximate cause of the victim’s death even if the victim actually died as a result of the combination of the defendant’s acts plus some other contributing factor.” (quotation simplified)).[5]

¶44      Here, we agree with Murray that C.M.’s trauma and associated anxiety from the violation of the protective order was likely linked in some measure to the alleged rape. As discussed above, however, the alleged rape was the very reason that C.M. had previously obtained a protective order against Murray. And as also discussed, C.M.’s testimony at the restitution hearing supported the conclusion that when Murray contacted her in violation of that order, this both exacerbated her prior trauma and caused additional trauma too, thereby further interfering with her ability to work. Given this sworn and court-credited testimony, we cannot conclude that it was against the clear weight of the evidence for the court to conclude that, even accounting for the trauma associated with the alleged rape, the violation of the protective order itself proximately caused C.M. to miss work.

¶45      Second, Murray argues that it could not have been “reasonably foreseeable that C.M. would miss 12 weeks of work” because he sent her “a single indirect text message.” As an initial matter, it’s unclear from the record if this case really does involve just a single text message. For “the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.” Utah Code § 77-38a-302(5)(a) (2019). Here, the probable cause affidavit alleged that C.M. had “received phone calls and text messages” from Murray through their mutual friend. And in his plea affidavit, Murray agreed under oath that he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” On this record, the court could therefore assess the restitution question in light of Murray’s admission that there had been multiple communications.

¶46      In any event, whether viewed as multiple communications or even just a single communication, this argument still fails because the effect of the communication(s) can’t meaningfully be divorced from the surrounding context. Again, Murray wasn’t convicted of sending a message to a stranger with whom he had no prior history. Rather, Murray was convicted because he knowingly or intentionally communicated with C.M. in violation of a protective order. By communicating with C.M. despite the existence of an order from a judge that prohibited him from contacting her, Murray undermined the sense of distance and security that the protective order was intended to give her. Because of this context and history, we disagree with Murray’s assertion that it could not have been reasonably foreseeable that C.M. would be traumatized and miss work as a result.

¶47      Finally, Murray argues that the restitution order was at odds with our decision in State v. Bickley, 2002 UT App 342, 60 P.3d 582. We disagree. In Bickley, the defendant was charged with criminal nonsupport, and the “Amended Information listed the nonpayment period from February 1, 1997 to January 10, 2000.” Id. ¶ 3. After the defendant pleaded guilty to this offense, however, the district court awarded restitution for arrears that occurred prior to 1997. Id. ¶¶ 3–4. We reversed that decision on appeal, concluding that the court could not impose restitution for pre-1997 arrears “without making inferences.” Id. ¶ 12 (quotation simplified). Because of this, we held that it was not “firmly established” that the defendant was in fact responsible for the pre-1997 arrears. Id.

¶48      Bickley is readily distinguishable. The arrears at issue in Bickley plainly fell outside the conviction (which, again, was specifically limited to arrears that occurred from February 1997 on). As discussed above, however, the offense at issue here was the violation of a protective order, and that protective order was by definition linked to some prior conduct. Thus, unlike Bickley, it’s not at all clear that this restitution order was based on damages that fell outside of the offense at issue. In addition, there’s no suggestion that the district court in Bickley based its restitution award for the pre-1997 arrears on any evidence or testimony. Id. ¶¶ 2–4, 12. This is why we faulted the court for “making inferences” and imposing restitution for arrears that were not “firmly established.” Id. ¶ 12 (quotation simplified). But again, this was not the case here, where the restitution order was based on sworn testimony from the hearing itself.

¶49      In short, we can overturn the court’s proximate cause determination only if Murray has established “that the clear weight of the evidence contradicts the court’s ruling.” Chadwick, 2021 UT App 40, ¶ 6 (quotation simplified). Having reviewed the record, we conclude that C.M.’s testimony about the effects of the protective order violation on her psyche and her ability to function, coupled with the evidence presented by UOVC about the days that she missed at work, was sufficient to support the court’s finding that Murray’s criminal conduct proximately caused C.M. to miss this work, thereby causing these damages. Because the court’s ruling was not against the clear weight of the evidence before it, we affirm that determination.

CONCLUSION

¶50      The district court erred when it required Murray to pay $744.19 in restitution for moving expenses. We accordingly vacate that portion of the court’s order. But the court did not err when it ordered restitution in the amount of $5,520.28 for lost wages. We accordingly affirm the restitution award of $5,520.28 for lost wages.

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

Click to access State%20v.%20Murray20230518_20200890_52.pdf

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[1] UOVC was represented by an attorney from the Utah Attorney General’s office who serves as “agency counsel” for UOVC.

[2] In between the court’s oral and written rulings, Murray filed a motion to reconsider. But after the written ruling was entered, Murray filed a timely notice of appeal. Despite the fact that this notice of appeal had been filed, and over an objection from UOVC, the district court subsequently held oral argument on Murray’s motion to reconsider, after which it denied the motion.

On appeal, both parties now agree that Murray’s notice of appeal divested the district court of jurisdiction to rule on the motion to reconsider. We agree with the parties. Because the motion to reconsider was filed before the written ruling, it was a prejudgment motion to reconsider the oral ruling. While the court was “free to consider” what was essentially a request for “reargument” at “any time before entering the final judgment,” Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861, the court did not do so. Instead, it issued the written final judgment. When Murray then filed his notice of appeal after that final judgment had been entered, his notice of appeal “divest[ed] the district court of jurisdiction.” Garver v. Rosenberg, 2014 UT 42, ¶ 11, 347 P.3d 380. Of note, our supreme court has held that a prejudgment motion to reconsider does “not toll the time for appeal once a final judgment [is] entered.” Gillett, 2006 UT 24, ¶ 7 n.2. We likewise see no basis for holding that a prejudgment motion to reconsider would somehow undermine the finality of a written final judgment or allow the court to retain jurisdiction after a notice of appeal has been filed. As a result, we agree with the parties that the only ruling properly before us is the original restitution order.

 

[3] The legislature recently amended the CVRA. The most recent version of the statute provides that the “court shall order a defendant, as part of the sentence imposed,” to “pay restitution to all victims: (i) in accordance with the terms of any plea agreement in the case; or (ii) for the entire amount of pecuniary damages that are proximately caused to each victim by the criminal conduct of the defendant.” Utah Code § 77-38b-205(1)(a) (2023).

[4] The version of the statute that governed at the time of Murray’s sentencing did not expressly state that restitution could be awarded for damages “proximately caused” by the offense, see Utah Code § 77-38a-302(1) (2019), but our supreme court had interpreted that statute as containing such an allowance, see State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132. The statute has since been amended to expressly incorporate the proximate cause standard. See Utah Code § 77-38b-205(1)(a)(ii) (2023).

[5] Something somewhat similar can be true outside the proximate cause context too. In State v. O’Bannon, 2012 UT App 71, ¶ 38, 274 P.3d 992, for example, we recognized “a basis under Utah law for holding a defendant culpable for causing death even when other factors contributed to the victim’s death.”

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2023 UT App 57 – State v. Schroeder

2023 UT App 57 – State v. Schroeder

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MICHAEL SCHROEDER,

Appellant.

Opinion

No. 20190339-CA[1]

Filed May 25, 2023

Fifth District Court, Cedar City Department

The Honorable Troy A. Little

No. 191500104

Trevor J. Lee, Attorney for Appellant

Shane Klenk, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGE MICHELE M. CHRISTIANSEN FORSTER and

SENIOR JUDGE KATE APPLEBY concurred.[2]

ORME, Judge:

¶1        Following a consolidated bench trial, the court found Michael Schroeder guilty on three charges of protective order violations and one charge of criminal stalking, all class A misdemeanors. Schroeder now appeals, primarily contending that there was insufficient evidence to establish his guilt beyond a reasonable doubt on the convictions still at issue in this appeal.[3]

¶2        We conclude that Schroeder’s convictions for violations of a protective order are supported by sufficient evidence and affirm those convictions. But we conclude that Schroeder’s conviction for stalking is against the clear weight of the evidence developed at trial in support of that charge and therefore reverse that conviction.

BACKGROUND[4]

¶3        After Michael Schroeder and Samantha[5] ended their romantic relationship in 2018, Samantha sought a protective order against Schroeder. On August 13, 2018, Utah’s Fifth District Court held a protective order hearing. Because Schroeder was present and because he did not object to the protective order becoming permanent, the court signed and served the Protective Order, which required Schroeder to refrain from contacting Samantha, to stay at least 1,000 feet from her, and to stay away from her home.

September 23 Protective Order Charge

¶4        During the bench trial, Samantha, her friend, a police officer, and Schroeder each testified about an event that took place on September 23, 2018. Schroeder testified that on that day, he drove his truck through the city where he and Samantha lived and inadvertently turned onto Samantha’s street. After turning onto the street, he suddenly recognized where he was and further realized that if he maintained his course, he would ultimately pass Samantha’s home. He also recognized that driving past her home may violate the Protective Order, but he was not certain. Although he contemplated turning around to avoid passing Samantha’s home, he testified that he chose to continue driving down her street.

¶5        When Schroeder approached Samantha’s home, Samantha was sitting outside with a friend. She and her friend testified that they saw the truck approaching and recognized the truck as belonging to Schroeder. Samantha testified that she saw the truck slow down to almost a stop in front of her home. She was able to identify Schroeder as the driver of the truck through the truck’s open window. Samantha further testified that Schroeder stared at her and made “complete eye contact” with her before driving off. Samantha estimated that she was “maybe 20 feet” from where Schroeder drove past. Her friend testified that he too had been able to identify Schroeder through the truck’s open window. The friend further corroborated Samantha’s testimony that when Schroeder passed Samantha’s home, he was “maybe 20” or “25 feet” from their position and that Schroeder had slowed down to a stop and stared at them for “a few seconds” before driving off.

¶6        Samantha called the police and reported what had happened. An officer arrived and spoke with Samantha and her friend, then contacted Schroeder and met with him at his residence. Schroeder explained that he had made a wrong turn onto Samantha’s street, thought about turning around, made the decision not to, and then proceeded to drive past Samantha’s home. Schroeder also told the officer that he did not know the conditions of the Protective Order.

¶7        Soon after this event, the State filed an Information and Affidavit of Probable Cause against Schroeder, charging him with a protective order violation for coming within 1,000 feet of Samantha.

January 7 Protective Order Violation Charge and Stalking Charge

¶8        During the bench trial, Samantha and Schroeder also testified regarding an event that took place on the morning of January 7, 2019. Samantha testified that she was with her dog in front of her home when she heard a diesel truck approaching the cross street at the end of the block, three houses away. The distinctive sound of a diesel engine caused her to look up, and she saw Schroeder’s truck slowly driving by on the cross street. Samantha recounted that she made eye contact with Schroeder and shook her head at him before he drove off. When she went back inside her home, she again called the police and reported what happened. Samantha stated that she is “really . . . not good” with estimating distances, but she estimated she was “maybe 35 feet” from where she saw Schroeder. Schroeder denied having any knowledge of this incident and suggested that Samantha might have seen “some other gray truck” and confused it with his truck.

¶9        Following this incident, the State filed an Information and Probable Cause Statement against Schroeder, charging him with a violation of the Protective Order’s prohibition on coming within 1,000 feet of Samantha and also charging him with criminal stalking. The State predicated the stalking charge on events specified in the charging documents, discussed in more detail below.

Consolidated Trial

¶10      All cases and charges addressed in this appeal came before the trial court in a consolidated bench trial on April 4, 2019. In its case addressing the September 23 protective order violation, the State called Samantha, her friend, and the officer as witnesses. They testified as outlined above, and Schroeder testified in his defense but did not call other witnesses or present any other evidence. Following the trial, the court expressly found all the State’s witnesses to be credible. The court found that Schroeder had been properly served the Protective Order because he was present when the Protective Order was issued and did not object to its issuance. The court further found that because Schroeder recognized that he was driving down Samantha’s street and chose not to alter his course, he intentionally violated the Protective Order. Based on those findings, the trial court found Schroeder guilty of the protective order violation that occurred on September 23, 2018.

¶11      With respect to the January 7 protective order violation, the court found that the State presented sufficient evidence that Schroeder drove by on the adjacent street—which it found to be less than 1,000 feet away from Samantha—and that, while passing, Schroeder slowed down enough to stare at Samantha and for Samantha to identify him and shake her head at him. The court acknowledged that if Schroeder had just driven down the adjacent street and neither slowed down nor stared at Samantha, this likely would have been insufficient to support a protective order violation. But because he was driving down a street close to where he knew Samantha’s home to be and had slowed and stared at her while he passed, his actions were sufficient to amount to a violation of the Protective Order.

¶12 Regarding the stalking charge, the State specified the following three events in the Probable Cause Statement as the basis for the charge: (1) an alleged incident on January 6, 2019, at a local smoke shop; (2) the January 7 protective order violation; and (3) an alleged drive-by incident that occurred a few hours after the January 7 protective order violation. At trial, while the State presented evidence of the January 7 protective order violation, the State did not present any evidence of the other two events specified in the charging documents.

¶13      After both parties rested and presented closing arguments, the court determined that the September 23 and January 7 acts “were clearly course of conduct acts” that could and did cause Samantha “emotional distress and fear.” Thus, contrary to the State’s theory set out in the charging documents and not developed at trial, the court combined the September 23 and January 7 episodes to establish the proscribed course of conduct under the stalking statute.

¶14 Schroeder was convicted on all counts. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶15 Schroeder argues that there was insufficient evidence to prove his guilt beyond a reasonable doubt. “Unlike challenges to a jury verdict, a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). “[W]e review a claim of insufficient evidence at a bench trial for clear error,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755, meaning we “must sustain the district court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made,” Holland, 2018 UT App 203, ¶ 9 (quotation simplified)In other words, “before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the factfinder may base its conclusion of guilt beyond a reasonable doubt.” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (emphasis added) (quotation otherwise simplified).

ANALYSIS

  1. Protective Order Violations

¶16      Schroeder asks us to conclude that the trial court erred in finding him guilty of the September 23, 2018 and the January 7, 2019 protective order violations. He contends that there was insufficient evidence from which the court could find him guilty beyond a reasonable doubt. See generally State v. Austin, 2007 UT 55, ¶ 6, 165 P.3d 1191. We address each of the court’s rulings in turn.

  1. September 23 Protective Order Violation

¶17 Schroeder contends that the State did not produce sufficient evidence regarding Schroeder’s mental state when he drove past Samantha and her friend in front of Samantha’s home. As outlined by our Supreme Court, “when reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made.” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (quotation simplified). “An example of an obvious and fundamental insufficiency is the case in which the State presents no evidence to support an essential element of a criminal charge.” State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (quotation simplified).

¶18      It is a violation of a protective order and “a class A misdemeanor,” Utah Code Ann. § 76-5-108(3) (LexisNexis Supp. 2022), when a defendant “intentionally or knowingly violates [an] order after having been properly served or having been present, in person or through court video conferencing, when the order was issued,” id. § 76-5-108(2)(b). Schroeder concedes that he was properly served with the Protective Order on August 13, 2018, and was aware of its existence. Therefore, what remains for us to decide is whether the State adduced sufficient evidence that Schroeder was aware of the Protective Order and that he “intentionally or knowingly” violated it. See id. In reviewing the sufficiency of the evidence, we are mindful that “credibility is an issue for the trier of fact.” Zappe v. Bullock, 2014 UT App 250, ¶ 8, 338 P.3d 242 (quotation simplified).

¶19      At trial, Schroeder conceded that he intentionally drove his truck past Samantha’s home after deciding not to turn around so as to avoid doing so. He recounted, “As soon as I turned on the road and realized what was going on, like I was going to flip around and then just kept on going through.” He also acknowledged that he came within 1,000 feet of Samantha’s home. Accordingly, we conclude that there was sufficient evidence to support the conviction. We further conclude that the trial court’s findings were not against the clear weight of the evidence and affirm Schroeder’s conviction regarding the September 23 protective order violation.

  1. January 7 Protective Order Violation

¶20 Schroeder next contends that the State did not provide sufficient evidence on which the trial court could determine, beyond a reasonable doubt, that he slowed down and stared at Samantha as he drove by on the cross street three houses away from her home.

¶21      At trial, the court appropriately recognized that simply driving down a cross street near Samantha’s home would “not necessarily be a violation” of the Protective Order. But the court found that Schroeder did not simply drive down the cross street, minding his own business. Instead, based on Samantha’s testimony, which the court found to be credible, the court found that Schroeder slowed and stared at Samantha as he drove past. Samantha’s testimony included her estimation, apparently found reasonable by the trial court, that she was less than 1,000 feet from the cross street when Schroeder slowed and stared at her.

¶22 Therefore, there was sufficient evidence to support the conviction, and the trial court’s findings were not against the clear weight of the evidence. Accordingly, we also affirm Schroeder’s conviction regarding the January 7 protective order violation.

  1. Stalking Conviction

¶23 Schroeder contends that the evidence supporting his stalking conviction was insufficient to establish the necessary course of conduct as charged by the State and that his conviction was therefore against the clear weight of the evidence.[6] We agree.

¶24      “Article I, section 12 of the Utah Constitution provides that every criminal defendant has a right to know ‘the nature and cause of the accusation.’” State v. Burnett, 712 P.2d 260, 262 (Utah 1985) (quoting Utah Const. art. I, § 12). “This entitles the accused to be charged with a specific crime, so that he can know the particulars of the alleged wrongful conduct and can adequately prepare his defense.” Id. Additionally, rule 4 of the Utah Rules of Criminal Procedure provides that “[a] prosecution may be commenced by filing an information,” Utah R. Crim. P. 4(a), which must contain “the name given to the offense by statute or ordinance, or stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge,” id. R. 4(b)(2). And an information charging a felony or a class A misdemeanor must include “a statement of facts sufficient to support probable cause for the charged offense or offenses.” Id. R. 4(c)(1). Our Supreme Court has stated that “in a criminal proceeding . . . [the accused] is entitled to be charged with a specific crime so that he may know the nature and cause of the accusation against him” and that “the State must prove substantially as charged the offense it relies upon for conviction.” State v. Taylor, 378 P.2d 352, 353 (Utah 1963) (quotation simplified). This did not happen here with respect to the stalking charge.

¶25      The charging documents concerning the stalking charge alleged, in contemplation of section 76-5-106.5(2) of the Utah Code, as follows:

[Schroeder], on or about January 07, 2019, in Iron County, State of Utah, did (a) intentionally or knowingly engage in a course of conduct directed at [Samantha] and knew or should have known that the course of conduct would cause a reasonable person: (i) to fear for the person’s own safety or the safety of a third person; or (ii) to suffer other emotional distress[.]

¶26 Under section 76-5-106.5(2), an actor commits the offense of stalking when the actor “intentionally or knowingly . . . engages in a course of conduct” that “would cause a reasonable person . . . to fear for the individual’s safety” or “to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2022). The statute also explains that a course of conduct comprises “two or more acts directed at or toward a specific individual,” id. § 76-5-106.5(1)(a)(i), and further defines emotional distress as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required,” id. § 76-5-106.5(1)(a)(ii)(A).

¶27 The Probable Cause Statement indicated that the stalking charge in this case was based on a course of conduct consisting of an event occurring “[oin or about January 6, 2019,” an event occurring the “following morning on January 7, 2019, between 8:00 a.m. and 9:00 a.m.,” and an event occurring “[liater that morning” on January 7, 2019. The charging documents concerning the stalking offense made no mention of the September 23 incident.

¶28      At trial, the State presented evidence only of the January 7 event. The State did not present any evidence addressing either of the other two events specified in the charging documents as establishing the requisite course of conduct for stalking. Accordingly, Schroeder had no reason to introduce controverting evidence when presenting his defense.

¶29      Following closing arguments, the trial court made findings of fact and entered its ruling. The court found Schroeder guilty of stalking based on its finding that the January 7 protective order violation and the September 23 protective order violation “were clearly course of conduct acts.”

¶30 Schroeder does not challenge the court’s finding that the January 7 protective order violation, included in the charging documents, could be a qualifying act to partially establish a stalking course of conduct. And the State presented sufficient evidence of its occurrence at trial. See supra Part I.B. But the State did not produce evidence concerning the other two incidents referred to in the Probable Cause Statement, and it never argued that the September 23 incident was relevant to the stalking charge, nor did it seek to amend the charging documents to incorporate that theory. Thus, by the end of trial, the State had established only one of the two or more incidents required to prove the stalking offense it charged. Because evidence is necessarily insufficient when the State fails to establish “an essential element of a criminal charge,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (quotation simplified), we reverse Schroeder’s conviction for stalking.[7]

CONCLUSION

¶31      The trial court’s judgments were not against the clear weight of the evidence regarding Schroeder’s two convictions for the protective order violations. Therefore, we affirm Schroeder’s convictions regarding the September 23 protective order violation and the January 7 protective order violation. But because the State did not present evidence of any act specified in the relevant charging documents as constituting stalking, apart from the January 7 protective order violation, and because stalking is predicated on a course of conduct comprising two or more acts, the evidence was necessarily insufficient. Therefore, Schroeder’s stalking conviction was against the clear weight of the evidence, and we reverse that conviction.

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

 

[1] This case is the consolidated appeal of cases 20190339-CA, 20190507-CA, and 20190508-CA.

[2] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[3] During the pendency of this appeal, Schroeder filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure on a claim of ineffective assistance of counsel he asserted in connection with his conviction for a protective order violation that was alleged to have occurred on January 26, 2019. We granted that motion. In March 2022, following a hearing on Schroeder’s rule 23B motion, the trial court granted the parties’ Stipulated Motion to Dismiss Charge with Prejudice. By so doing, the court dismissed the case concerning Schroeder’s January 26 protective order violation. For that reason, we do not discuss the events surrounding that charge, which is no longer at issue in this appeal.

[4] Following a bench trial, “we recite the facts from the record in the light most favorable to the findings of the trial court and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2, 405 P.3d 885 (quotation simplified).

[5] A pseudonym.

[6] As previously noted, “a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised on appeal regardless of whether the party raising the question has made an objection to such findings via a motion or otherwise. See State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d 665 (noting that “a sufficiency of the evidence claim is effectively preserved by the nature of a bench trial and does not require making a specific motion”).

[7] Schroeder additionally argues that the trial court’s sua sponte reconstruction of the stalking charge, following trial, in which it embraced a theory of stalking not charged, was at odds with the variance doctrine. The variance doctrine prevents the State from introducing evidence at trial that varies from the charging documents where the variance would prejudice a defendant’s case. See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). While we premise our affirmance on the more straightforward rationale that there was insufficient evidence to establish the stalking offense as charged by the State, we recognize that our reversal of that conviction also advances the salutary purposes served by the variance doctrine.

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Can I File for an Order of Protection Against My Daughter’s Father for Myself, Even if She Is Living With Him?

If he poses a danger to you, then yes. The fact that a child you share lives with him will not prevent you from obtaining a protective order against him for your protection. If you are wondering whether a protective order against him might prevent you and him from interacting for the purpose of conducting child custody and parent-time/visitation exchanges, the court can structure the protective order to permit contact between you and him for that limited purpose.

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

https://www.quora.com/Can-I-file-for-an-order-of-protection-against-my-daughter-s-father-for-myself-even-if-she-is-living-with-him

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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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What is a court order and its types?

Here’s the definition from Black’s Law Dictionary (11th ed. 2019): 

ordern. (16c) 1. A command, direction, or instruction. See MANDATE (1). 2. A written direction or command delivered by a government official, esp. a court or judge. • The word generally embraces final decrees as well as interlocutory directions or commands. — Also termed court order; judicial order. See MANDAMUS. 

“An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings.” 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902). 

“While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] of the word ‘order.’” 1 A.C. Freeman, A Treatise of the Law of Judgments § 19, at 28 (Edward W. Tuttle ed., 5th ed. 1925). 

What kinds of orders are common in a Utah divorce action? Again, I defer to Black’s Law Dictionary: 

- enforcement order. A court’s order issued to compel a person or entity to comply with a statute, regulation, contract provision, previous court order, or other binding authority. 

- ex parte order (eks pahr-tee) (18c) An order made by the court upon the application of one party to an action without notice to the other. 

- final order. (16c) An order that is dispositive of the entire case. See final judgment under JUDGMENT (2). 

- final judgment. (18c) A court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney’s fees) and enforcement of the judgment. — Also termed final appealable judgment; final decision; final decree; definitive judgment; determinative judgment; final appealable order. 

– income-withholding order (1986) A court order providing for the withholding of a person’s income by an employer, usu. to enforce a child-support order. — Abbr. IWO. — Also termed wage-withholding order; wage-assignment order; wage assignment. Cf. attachment of wages under ATTACHMENT (1). 

- interim order. (18c) 1. A temporary court decree that remains in effect for a specified time or until a specified event occurs. 2. See interlocutory order. 

- interlocutory order (in-tər-lok-yə-tor-ee) (17c) An order that relates to some intermediate matter in the case; any order other than a final order. • Most interlocutory orders are not appealable until the case is fully resolved. But by rule or statute, most jurisdictions allow some types of interlocutory orders (such as preliminary injunctions and class-certification orders) to be immediately appealed. — Also termed interlocutory decision; interim order; intermediate order. See appealable decision under DECISION (1); COLLATERAL-ORDER DOCTRINE. 

- maintenance order. See SUPPORT ORDER. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- minute order. (1918) 1. An order recorded in the minutes of the court rather than directly on a case docket. • Although practice varies, traditionally when a trial judge is sitting officially, with or without a court reporter, a clerk or deputy clerk keeps minutes. When the judge makes an oral order, the only record of that order may be in the minutes. It is therefore referred to as a minute order. — Also termed minute entry. 2. A court order not directly relating to a case, such as an order adopting a local rule of court. • In this sense, the court is not a single judge acting in an adjudicatory capacity, but a chief judge, or a group of two or more judges, acting for a court in an administrative or some other nonadjudicatory capacity. 

- modification order (1936) Family law. A post-divorce order that changes the terms of child support, custody, visitation, or alimony. • A modification order may be agreed to by the parties or may be ordered by the court. The party wishing to modify an existing order must show a material change in circumstances from the time when the order sought to be modified was entered. See CHANGE IN CIRCUMSTANCES. 

- pretrial order (1939) A court order setting out the claims and defenses to be tried, the stipulations of the parties, and the case’s procedural rules, as agreed to by the parties or mandated by the court at a pretrial conference.  

- emergency protective order. (1976) A temporary protective order granted on an expedited basis, usu. after an ex parte hearing (without notice to the other side), most commonly to provide injunctive relief from an abuser in a domestic-violence case; esp., a short-term restraining order that is issued at the request of a law-enforcement officer in response to a domestic-violence complaint from a victim who is in immediate danger. • A victim of domestic violence can obtain an EPO only through a law-enforcement officer. There is no notice requirement, but the abuser must be served with the order. The duration of an EPO varies from three to seven days, depending on state law. — Abbr. EPO. Cf. TEMPORARY RESTRAINING ORDER. 

- permanent protective order. (1981) A protective order of indefinite duration granted after a hearing with notice to both sides; esp., a court order that prohibits an abuser from contacting or approaching the protected person for a long period, usu. years. Despite the name, permanent orders often have expiration dates set by state law. An order may also require the abuser to perform certain acts such as attending counseling or providing financial support for the protected person. — Abbr. PPO. 

– qualified domestic-relations order (1984) A state-court order or judgment that relates to alimony, child support, or some other state domestic-relations matter and that (1) recognizes or provides for an alternate payee’s right to receive all or part of any benefits due a participant under a pension, profit-sharing, or other retirement benefit plan, (2) otherwise satisfies § 414 of the Internal Revenue Code, and (3) is exempt from the ERISA rule prohibiting the assignment of plan benefits. • Among other things, the QDRO must set out certain facts, including the name and last-known mailing address of the plan participant and alternate payee, the amount or percentage of benefits going to the alternate payee, and the number of payments to which the plan applies. The benefits provided under a QDRO are treated as income to the actual recipient. IRC (26 USCA) § 414(p)(1)(A); 29 USCA § 1056(d)(3)(D)(i). — Abbr. QDRO. 

– restraining order (1876) 1. A court order prohibiting family violence; esp., an order restricting a person from harassing, threatening, and sometimes merely contacting or approaching another specified person. • This type of order is issued most commonly in cases of domestic violence. A court may grant an ex parte restraining order in a family-violence case if it is necessary to (1) achieve the government’s interest in protecting victims of family violence from further abuse, (2) ensure prompt action where there is an immediate threat of danger, and (3) provide governmental control by ensuring that judges grant such orders only where there is an immediate danger of such abuse. — Also termed protective order; order of protection; stay-away order. See ex parte motion under MOTION (1). 2. TEMPORARY RESTRAINING ORDER. 3. A court order entered to prevent the dissipation or loss of property. 

- scheduling order. (1959) A court’s order that sets the time deadlines for different procedural actions in a case, such as amending pleadings, filing motions, and completing discovery. 

- separation order. (1882) A court order granting a married person’s request for a legal separation. See SEPARATION AGREEMENT (1). 

- show-cause order. (1925) An order directing a party to appear in court and explain why the party took (or failed to take) some action or why the court should or should not impose some sanction or grant some relief. — Abbr. SCO. — Also termed order to show cause (OSC; OTSC); rule to show cause; show-cause rule. 

- supervision order. (1938) Family law. A court’s order placing a child or young person under the supervision of a child-welfare agency or a probation officer in a case of neglect, abuse, or delinquency. 

– support order (1948) A court decree requiring a party (esp. one in a divorce or paternity proceeding) to make payments to maintain a child or spouse, including medical, dental, and educational expenses. — Also termed maintenance order. 

- foreign support order. (1948) An out-of-state support order. 

- temporary order. (1808) A court order issued during the pendency of a suit, before the final order or judgment has been entered. 

– temporary restraining order (1861) 1. A court order preserving the status quo until a litigant’s application for a preliminary or permanent injunction can be heard. • A temporary restraining order may sometimes be granted without notifying the opposing party in advance. Cf. emergency protective order under PROTECTIVE ORDER. 2. See ex parte injunction under INJUNCTION. — Abbr. TRO. — Often shortened to restraining order.  

- visitation order (1944) Family law.1. An order establishing the visiting times for a noncustodial parent with his or her child. 2. An order establishing the visiting times for a child and a person with a significant relationship to the child. • Such an order may allow for visitation between (1) a grandparent and a grandchild, (2) a child and another relative, (3) a child and a stepparent, or (4) occasionally, a child and the child’s psychological parent. — Also termed access order. 

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

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How can I get an emergency hearing for custody and child support?

I will answer this question based upon the law of the jurisdiction where I practice family law (Utah).

So the question is: How can I get an emergency hearing for custody and child support?

The answer: Have a good reason.

A very good reason. A reason that would justify asking the court to address the issue on an emergency basis.

Do such reasons exist? Yes. Are such good reasons easy to establish? Generally, no, unless one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Is it easy to lie about having good reasons for an emergency child custody order and obtain an emergency child custody order under false pretenses? Yes, especially if one tries to obtain emergency child custody through a protective order proceeding (more on why below).

Here are some ways to obtain an order of child custody (and possibly for child support too) in not particular order (with links to the statutes that govern them):

1. By protective order.

Cohabitant Abuse Act protective order

Child protective order (see also Utah Rules of Juvenile Procedure Rule 37)

2. Divorce or parentage action

motion for TRO (ex parte motion for child custody (and child support))

3. Guardianship action

4. “Custody and Visitation for Individuals Other than Parents Act” action

5. “Utah Uniform Child Custody Jurisdiction and Enforcement Act” action

6. Termination of parental rights action

7. “Abuse, Neglect, and Dependency Proceedings” action

 

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

 

https://www.quora.com/How-can-I-get-an-emergency-hearing-for-custody-and-child-support/answer/Eric-Johnson-311?prompt_topic_bio=1

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Can I get a stalking injunction against someone in a different state who stalks via social media?

How would you go about getting an order of protection against someone in a different state for harassment and stalking via social media?

I will answer your question based upon the law of the state of Utah, where I practice divorce and family law. And the answer is yes, you obtain a stalking injunction or a protective order against someone in a different state for harassment and stalking via social media.

We’ll start with what factors must be satisfied to obtain a criminal stalking injunction or a civil stalking injunction.

First:

§76-1-201. Jurisdiction of offenses.

(1) A person is subject to prosecution in this state for an offense which he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if:

(a) the offense is committed either wholly or partly within the state[.]

So it is possible to commit the crime of stalking in Utah even if the victim does not reside in Utah.

Second:

§78B-7-701. Ex parte civil stalking injunction — Civil stalking injunction.

(1)(a) Except as provided in Subsection (1)(b), an individual who believes that the individual is the victim of stalking may file a verified written petition for a civil stalking injunction against the alleged stalker with the district court in the district in which the individual or respondent resides or in which any of the events occurred. A minor with the minor’s parent or guardian may file a petition on the minor’s own behalf, or a parent, guardian, or custodian may file a petition on the minor’s behalf.

So a civil stalking victim may seek a civil stalking injunction against the stalker in the state of Utah, if the stalker resides in Utah or if the act of stalking was committed in Utah.

Third:

78B-7-102. Definitions.

(21) “Stalking” means the same as that term is defined in Section 76-5-106.5.

§76-5-106.5. Stalking — Definitions — Injunction — Penalties — Duties of law enforcement officer.

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(2) A person is guilty of stalking who intentionally or knowingly engages in a course of conduct directed at a specific person and knows or should know that the course of conduct would cause a reasonable person:

(a) to fear for the person’s own safety or the safety of a third person; or

(b) to suffer other emotional distress.

(3) A person is guilty of stalking who intentionally or knowingly violates:

(a) a stalking injunction issued under Title 78B, Chapter 7, Part 7, Civil Stalking Injunctions; or

(b) a permanent criminal stalking injunction issued under Title 78B, Chapter 7, Part 9, Criminal Stalking Injunctions.

Fourth:

§76-5-106.5. Stalking — Definitions — Injunction — Penalties — Duties of law enforcement officer.

(1) As used in this section:

(a) “Course of conduct” means two or more acts directed at or toward a specific person, including:

(i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens, or communicates to or about a person, or interferes with a person’s property:

(A) directly, indirectly, or through any third party; and

(B) by any action, method, device, or means; or

(ii) when the actor engages in any of the following acts or causes someone else to engage in any of these acts:

(A) approaches or confronts a person;

(B) appears at the person’s workplace or contacts the person’s employer or coworkers;

(C) appears at a person’s residence or contacts a person’s neighbors, or enters property owned, leased, or occupied by a person;

(D) sends material by any means to the person or for the purpose of obtaining or

disseminating information about or communicating with the person to a member of the person’s family or household, employer, coworker, friend, or associate of the person;

(E) places an object on or delivers an object to property owned, leased, or occupied by a person, or to the person’s place of employment with the intent that the object be delivered to the person; or

(F) uses a computer, the Internet, text messaging, or any other electronic means to commit an act that is a part of the course of conduct.

Fifth:

If the nature of the activity on social media satisfies the factors necessary to obtain a protective order (as opposed to a stalking injunction), then it is possible to obtain a protective order in response to online harassment and stalking.

Utah has a variety of possible protective orders available, depending upon the victim type:

Title 78B Judicial Code

Chapter 7 Protective Orders and Stalking Injunctions

Part 2 Child Protective Orders

78B-7-202. Abuse or danger of abuse — Child protective orders — Ex parte child protective orders — Guardian ad litem — Referral to division.

(1)

(a) Any interested person may file a petition for a protective order:

(i) on behalf of a child who is being abused or is in imminent danger of being abused by any individual; or

(ii) on behalf of a child who has been abused by an individual who is not the child’s parent, stepparent, guardian, or custodian.

Part 4 Dating Violence Protective Orders

§ 78B-7-403. Abuse or danger of abuse — Dating violence protective orders.

(1) An individual may seek a protective order if the individual is subjected to, or there is a substantial likelihood the individual will be subjected to:

(a) abuse by a dating partner of the individual; or

(b) dating violence by a dating partner of the individual.

Part 5 Sexual Violence Protective Orders

§78B-7-503. Sexual violence — Sexual violence protective orders.

(1)

(a) An individual may seek a protective order under this part if the individual has been subjected to sexual violence and is neither a cohabitant nor a dating partner of the respondent.

§ 78B-7-502. Definitions.

As used in this part:

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(3) “Sexual violence” means the commission or the attempt to commit:

(a) any sexual offense described in Title 76, Chapter 5, Part 4, Sexual Offenses, or Title 76, Chapter 5b, Part 2, Sexual Exploitation;

(b) human trafficking for sexual exploitation under Section 76-5-308; or

(c) aggravated human trafficking for forced sexual exploitation under Section 76-5-310.

Part 6 Cohabitant Abuse Protective Orders

§ 78B-7-602. Abuse or danger of abuse — Cohabitant abuse protective orders.

(1) Any cohabitant who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of abuse or domestic violence, may seek a protective order in accordance with this part, whether or not the cohabitant has left the residence or the premises in an effort to avoid further abuse.

§ 78B-7-102. Definitions.

As used in this chapter:

(1) “Abuse” means, except as provided in Section 78B-7-201, intentionally or knowingly causing or attempting to cause another individual physical harm or intentionally or knowingly placing another individual in reasonable fear of imminent physical harm.

If the nature of the social media usage rises to the level of “intentionally or knowingly placing another individual in reasonable fear of imminent physical harm,” then it possibly could qualify the victim for a protective order.

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Why do I have to give the court my Social Security Number?

Why do I have to give the court my Social Security Number in my divorce, child custody, paternity, protective order, or other family law or family law-related case?
Here is why:
§ 30-3-10.17. Social security number in court records
The social security number of any individual who is subject to a divorce decree, support order, or paternity determination or acknowledgment shall be placed in the records relating to the matter.

§ 62A-11-304.1. Expedited procedures for establishing paternity or establishing, modifying, or enforcing a support order

(1) The office may, without the necessity of initiating an adjudicative proceeding or obtaining an order from any other judicial or administrative tribunal, take the following actions related to the establishment of paternity or the establishment, modification, or enforcement of a support order, and to recognize and enforce the authority of state agencies of other states to take the following actions:

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(c) require a public or private employer to promptly disclose information to the office on the name, address, date of birth, social security number, employment status, compensation, and benefits, including health insurance, of any person employed as an employee or contractor by the employer;

§ 78B-7-603. Cohabitant abuse protective orders–Ex parte cohabitant abuse protective orders–Modification of orders–Service of process–Duties of the court

(5) Following the cohabitant abuse protective order hearing, the court shall:

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(e) if the individual is a respondent or defendant subject to a court order that meets the qualifications outlined in 18 U.S.C. Sec. 922(g)(8), transmit within 48 hours, excluding Saturdays, Sundays, and legal holidays, a record of the order to the Bureau of Criminal Identification that includes:

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(iv) if available, the individual’s social security number, government issued driver license or identification number, alien registration number, government passport number, state identification number, or FBI number.

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

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I suspect my husband fathered a child with someone else. Can I challenge our divorce ruling?

If I suspect my ex-husband fathered a child with someone else while we were married, can I challenge our divorce ruling?

If, by this question, you mean that

  1. you are the wife; and
  2. you discovered, after you divorced, that your husband had fathered a child during the marriage, but this fact was not known or adjudicated during the divorce proceedings,

it is unlikely that raising the discovery of the bastard/illegitimate (whatever term you want to use to describe the innocent) child would benefit you as the wife, if you tried to assert the discovery of this child as the basis for “challenging” or modifying the terms of the decree of divorce. Why? Because unless you could show that the discovery of this child has led to the discovery that the terms of your decree of divorce are unfair to you and would have been different had the court been aware of and taken the child’s existence into consideration when entering the orders that comprise your decree of divorce, discovery of the child may be irrelevant.

However, it may be worth your while to raise the discovery of this child with the divorce court, if for no other reason than to protect yourself from being deemed the child’s mother, given that the child was born, or at least conceived, during your marriage because it is possible for your husband to claim that the child is now your legal responsibility.

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

https://www.quora.com/If-I-suspect-my-ex-husband-fathered-a-child-with-someone-else-while-we-were-married-can-I-challenge-our-divorce-ruling?__nsrc__=4

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Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Are there laws that protect one parent from being a victim of the other parent’s continuous reporting, through the other parent’s attorney, about violations of a restraining order that are all lies?

Practically speaking (and in my experience), yes and no.

I’ll start with the “no” part of my answer because it’s short. I say “no” because although there are rules against frivolous, bad-faith litigation (such as litigation based on lies), these rules are shamefully under-enforced. So even if you can make a clear case for an opposing party engaging in frivolous, bad-faith litigation, in my experience courts rarely punish such behavior. It’s one of the main reasons people lose faith in the legal system when they find themselves subject to the system.

The best way to protect yourself from having a court believe the opposing party’s lies is to prove them false by objective, independently verifiable evidence that cannot be denied. So, document your words and deeds six ways from Sunday. If it’s not a close call, the opposing side’s efforts to cheat won’t make any difference.

And here’s my “yes” part of the answer: Most jurisdictions, including the jurisdiction in which I practice law (Utah), have a rule or rules that is intended to prevent frivolous litigation. One such rule in Utah is the Utah Rules of Civil Procedure rule 11 (which is almost identical to the Federal Rules of Civil Procedure rule 11). Utah’s rule 11 provides:

(b) Representations to court. By presenting a pleading, written motion, or other paper to the court (whether by signing, filing, submitting, or advocating), an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(b)(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(b)(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(b)(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(b)(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that paragraph (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated paragraph (b) or are responsible for the violation.

There are also laws against making frivolous and bad-faith claims. Utah’s law is:

78B-5-825. Attorney fees — Award where action or defense in bad faith — Exceptions.

(1) In civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith, except under Subsection (2).

(2) The court, in its discretion, may award no fees or limited fees against a party under Subsection (1), but only if the court:

(a) finds the party has filed an affidavit of impecuniosity in the action before the court; or

(b) the court enters in the record the reason for not awarding fees under the provisions of Subsection (1).

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

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