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Tag: abuse

What Would I Say, if I Were a Judge or Commissioner Hearing a Protective Order Request Case and I Denied the Request for the Protective Order?

I would say this:

By law I cannot grant a request for a protective order unless a preponderance of the evidence supports the request.

If the request lacks the support of a preponderance of the evidence, then the law prohibits me from granting it, even if I desired to grant it in spite of the law. I have no desire to act in spite of the law.

It is tempting to grant a protective order unsupported by a preponderance of evidence on a “better safe than sorry” basis, but that temptation’s ultimate end is, as is true of all temptations, evil. Abusing the law to provide protection from ostensible cohabitant abuse would be rank hypocrisy.

Finding a petitioner has not met the burden of proof does not mean either 1) the petitioner is or is not, in fact, a victim of cohabitant abuse; or 2) the respondent did or did not, in fact, commit cohabitant abuse.

If any protective order petitioner is in fact a victim of cohabitant abuse, then I suggest that the petitioner take all reasonable, necessary, and legally permissible measures available to the petitioner for the petitioner’s protection. A protective order is certainly not the only or the most effective protective measure a cohabitant abuse victim can or should take. A sheet of paper or an image on a screen cannot deflect fists, feet, clubs, knives, or bullets. A protective order is only as effective as it is duly enforced, but unfortunately, “When seconds count, the police are just minutes away.” For your own sake be resourceful. Do not become a victim of your own inaction.

If a protective order respondent is, in fact, innocent of the allegations made against the respondent, then I extend to all such respondents this court’s apologies for the stigma that may, and almost certainly will, attach to and dog the respondent for who knows how long as the result of being falsely accused. Fraudulently sought protective orders are all too common, and everyone in the legal system knows it.

If a protective order respondent is, in fact, a cohabitant abuse perpetrator whom the preponderance of evidence standard unwittingly abetted, then I hope and suggest you seize on this opportunity to sin no more. You may not be so lucky next time.

The first courtroom I set foot in as a lawyer had these two statements written on its walls: “Know thyself. – Socrates” and “Control thyself. – Cicero”. I commend this advice both to the petitioner and to the respondent.

Having reviewed the admissible evidence presented to me on the petitioner’s request for a protective order and having found that the petitioner has not met the preponderance of evidence burden of proof, the request must, therefore, necessarily be and is denied.

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

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What Could Be the Reasons for Someone to Return to an Abusive Partner After Filing for Divorce and Leaving Them Once Before? Why Would They Also Leave Their Children Behind?

Good reasons? Or any and all reasons?

In no particular order:

  • The abuse is not bad enough (or perceived as not bad enough) to justify terminating the relationship. Otherwise stated, the detriments of terminating the relationship outweigh the loss of the benefits of the relationship.
    • Fear of being unable to provide for the physical needs of the children if one has to be the sole breadwinner
      • This is why some abuse victims “abandon” their children when they leave/escape an abusive relationship—because they know or believe they can’t take care of the kids by themselves. Sometimes they truly abandon the kids, meaning that they take an “every man for himself” approach. Sometimes, however, it’s more pragmatic; “He/she only abuses me, not the kids, so I’m leaving my abuser. The kids will be better off with him/her because they aren’t abused and my abuser is actually a good/acceptable parent and can provide the necessities of life for them better than I can.”
  • He/she claims to be abused to seek attention when in fact he/she is not abused.
  • The “He/she is abusive, I know that, but I can’t do any better than him/her” belief.
  • He/she who is abused does not believe (or claims not to believe) he/she is abused.
  • Another reason: religious beliefs, moral beliefs, and/or social norms that it is wrong to terminate a marriage or a relationship that has resulted in children being born to the couple.
  • Threats made by the abuser that “If you try to leave me, I’ll hurt you and/or the kids.”
  • Mentally or emotionally unable to understand that one is not obligated to suffer abuse in a relationship.
  • Too weak and/or stupid to know or do any better.

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

https://motherinlawmysteriesandconflicts.quora.com/What-could-be-the-reasons-for-someone-to-return-to-an-abusive-partner-after-filing-for-divorce-and-leaving-them-once-bef?__nsrc__=4

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2024 UT App 47 – In re K.J. – removal, shelter hearing

2024 UT App 47 – In re K.J.

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.J., M.J., AND K.J.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.F. AND K.J., Appellants, v. STATE OF UTAH, Appellee.

Opinion Nos. 20230102-CA and 20230103-CA Filed April 4, 2024

First District Juvenile Court, Logan Department The Honorable Bryan P. Galloway No. 1218130

Alexandra Mareschal, Kirstin Norman, and Jason B. Richards, Attorneys for Appellant D.F. Emily Adams, Attorney for Appellant K.J. 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 GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 In separate appeals that we consider together in this opinion, K.J. (Father) and D.F. (Mother) (collectively, Parents) challenge the juvenile court’s orders removing their three children (Children) from their home and, later, adjudicating the Children abused and neglected. Parents’ main challenge concerns the court’s adjudication that they abused and neglected the Children.          Parents also assert that, in one respect, they received ineffective assistance of counsel. For the reasons discussed, we find Parents’    arguments on these two topics unpersuasive.

¶2     But Parents also assert that, during the shelter hearing held at the beginning of the case, the juvenile court did not undertake a proper and complete analysis of the factors the governing statute required the court to consider. In this respect, Parents’ arguments have merit, and we remand the case so that the juvenile court can conduct the proper statutory analysis.

BACKGROUND

¶3 Parents are the legal and biological parents of three “medically complex” children: Kevin, Mia, and Kaleb.[1] The family moved to Utah in 2022, after having lived in Nevada and Arizona; at that time, Kevin was five years old, Mia was four, and Kaleb was not quite two. Parents believed that the Children suffered from a long list of various medical maladies; when the family arrived in Utah, all three Children—despite having largely different medical diagnoses—had surgically placed gastric feeding tubes (G-tubes), were developmentally delayed, and used wheelchairs for mobility.

¶4 In July 2022, Kevin was rushed to a local hospital by ambulance after Mother reported that he had suffered a seizure. Mia was hospitalized at the same time due to concerns about weight and dehydration. Kevin and Mia were transferred to Primary Children’s Medical Center (PCMC) in Salt Lake City; Kevin was treated with IV fluids to address “severe hypernatremia” due to dehydration. Kevin and Mia ended up staying at PCMC for nearly two weeks, and Kevin was even admitted to the pediatric intensive care unit. While Kevin and Mia were at PCMC, medical professionals there became concerned that they were being medically neglected. In particular, hospital personnel observed that Kevin and Mia were “severely underweight,” despite the presence of G-tubes, and “were considered a failure to thrive.”

¶5   After Kevin and Mia were discharged from PCMC, all three Children were referred to a pediatric nurse practitioner (Nurse Practitioner) for follow-up primary care. When the Children arrived at her medical clinic, Nurse Practitioner discovered that the Children—partly due to only recently having arrived in Utah—were not yet set up for medical insurance. But after examining the Children, Nurse Practitioner agreed to treat them anyway, despite their lack of insurance, because in her view “it was medically necessary to see them regardless of the insurance difficulties.” As she saw it, “these kids needed medical care whether [she] got paid” or not, because they were facing “significant medical issues” that she considered potentially “life and death” matters. The Children arrived at her clinic in wheelchairs and were developmentally delayed and nonverbal. None were toilet trained. Over the course of her treatment— which lasted several weeks—Nurse Practitioner also observed that the Children had not been “gaining [weight] as they [had been] in the hospital,” which made her wonder whether the Children might at some point need “to be rehospitalized.”

¶6 A few weeks later, a pediatrician (Pediatrician) was assigned to the Children. When he first saw the Children, he observed that they were all “nonverbal,” and while Kevin had some ability to walk on his own, Mia and Kaleb were “nonambulatory.” During the course of his treatment of the Children, he worked with them to improve their motor skills and their ability to walk, and he monitored their weight, which he indicated was the thing he was “following most closely.” Soon after Pediatrician took over primary care of the Children, Kaleb came in for his “two-year well[ness] visit.” During that visit, Mother indicated that Kaleb had spina bifida, which is “a neural defect at the base of the spine” that can often be fixed with surgery. Mother insisted that Kaleb had already had the surgery to correct the spina bifida, and she even pointed to Kaleb’s back where she indicated there was a scar from the surgery. But Pediatrician saw no scar.

¶7 At some point after Kevin and Mia were released from PCMC, a physician at Nurse Practitioner’s clinic contacted the Utah Division of Child and Family Services (DCFS) to notify them about potential issues with the Children. Thereafter, DCFS assigned caseworkers to investigate the matter, and those caseworkers made some ten visits to Parents’ home, prior to removal, to check on the Children and to assess the situation. These visits occurred at different times of day, yet in every visit except for one, the Children were all confined in “Pack ‘n Play” playpens. Parents stated that the Children needed to be in the playpens so that their G-tubes could function properly, but caseworkers observed that Parents had—but were not using— portable devices that would have maintained a “continuous feed” from the feeding tubes without restricting the Children’s movement. On one visit, one of the caseworkers asked Mother to show her the Children’s medications, and in response Mother brought out a large “two feet by three feet” sized tote bag “full of prescription bottles and different ointments.” During this time, Kevin—who was five years old and eligible to begin kindergarten—was not enrolled in school and therefore was not receiving any of the services a school could potentially provide to a medically complex child.

¶8 In addition to receiving primary care from Nurse Practitioner and Pediatrician , the Children were also referred to and treated by the Pediatric Complex Care Clinic at PCMC. They missed their first scheduled appointment with the clinic, which caused the lead physician there (Physician) a great deal of concern, because she knew that “it was critical that [PCMC] follow up with” the Children. Physician notified DCFS of the missed appointment, which was eventually rescheduled for about three weeks later.

¶9       At that rescheduled visit, Mother reported to Physician that the Children were all suffering from “dysphagia,” which is the “inability to swallow food properly.” Physician observed that Kevin and Mia had “continued to lose weight” since their discharge from the hospital. This was troubling, because the Children all had G-tubes, which exist primarily to make sure the Children are receiving enough nutrition; as one member of the PCMC team testified, “a child with a G-tube whose caregiver is fully responsible for that nutrition intake should not be experiencing failure to thrive in the absence of a disease or pathology that could cause failure to thrive.”

¶10 PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that “none of the [C]hildren [had] a pathology consistent with a disease process that could cause failure to thrive.” Indeed, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite their G-tubes, and that the Children’s “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶11 In addition, after her examination of the Children, Physician was concerned “that the [medical] history being provided by” Parents was “not consistent with what” she was “seeing on physical exam.” Given these concerns, the PCMC team then set out to review the Children’s various medical diagnoses, as reported by Parents, with the goal of verifying or eliminating each of them. As reported by Parents, the Children suffered from the following medical maladies, among others:

·         Kevin had suffered a stroke either in utero or shortly after birth, and had Ehlers-Danlos syndrome, Erb’s palsy, a seizure disorder, hearing loss, premature birth, sleep apnea, and an “allerg[y] to the sun.”

·         Mia had DiGeorge syndrome, blindness, hearing loss, premature birth, cerebral palsy, and prediabetes.

·         Kaleb had spina bifida, gastroparesis, premature birth, clubfoot affecting both feet, urinary retention issues that required catheterization, and hydrocephalus.

In an effort to confirm these diagnoses, the PCMC team requested, obtained, and reviewed over 7,000 pages of medical records regarding the Children, including records from Nevada and Arizona. After completing their review, and after examining the Children both before and after removal, the PCMC team was able to confirm some of the diagnoses. For instance, Kaleb does suffer from clubfoot in both feet, and Mia does have a genetic disorder similar to DiGeorge syndrome. But with regard to most of the diagnoses, the PCMC team concluded that Parents’ assertions were simply unsupported by any medical evidence. In particular, they eventually determined that Kevin does not suffer from Ehlers-Danlos syndrome or any seizure disorder, and that he did not have a stroke either in utero or shortly after birth; that Mia was not legally blind; and that Kaleb did not have spina bifida or hydrocephalus and did not need catheterization.

¶12     Based on these conclusions, and on their examination of the Children, the PCMC team determined that Kevin and Kaleb “had been the victim[s] of” “medical child abuse,”[2] and that the team had “serious concerns” in that regard about Mia. They called for “hospital admission” for the Children to “de-escalate elements of [their] care that are unfounded” and to “restart crucial interventions that have been ignored,” with a focus on “nutrition and aiding age-appropriate development.” And they recommended “development of a long-term plan for trauma- informed counseling and adherence to broad therapies, including speech therapy, occupational therapy, and physical therapy.”

¶13 The PCMC team then met with DCFS caseworkers to explain their findings. Based in part on the information its agents learned at that meeting, the State determined to seek removal of the Children from Parents’ home, and the very next day the State sought and obtained a removal warrant.

¶14 After obtaining the warrant, DCFS caseworkers traveled to Parents’ home to remove the Children. When they arrived, the caseworkers again found the Children in their playpens. Parents were cooperative, however, and Mother changed the Children’s clothes in preparation for the drive to PCMC. One caseworker observed that the Children were “a little stinky” and “had an odor to them like they hadn’t bathed in a few days.” The drive to the hospital was uneventful; Kaleb “babbled . . . baby talk,” while Kevin and Mia were “lethargic” and had a “very flat affect.”

¶15 When the Children arrived at PCMC, hospital staff immediately noticed that the Children exhibited “very poor hygiene” and observed that the Children were each double or triple diapered and that the diapers were “sopping through.” After the wet diapers were removed, hospital staff discovered that the Children had “fairly extensive [skin] breakdown in the diaper area” that was severe enough to require the assistance of the hospital’s “wound clinic.” Hospital staff noted that these sorts of wounds do not occur “overnight” and were the result of “there being wetness on the skin without appropriate response for some period of time.” The Children also had “irritability and breakdown” around their G-tube sites; as with the diaper-area wounds, these wounds also required the assistance of the hospital’s wound clinic.

¶16 Medical personnel also observed that the Children were “malnourished and under expected weight for [their] ages.” Kevin was determined to be “severely malnourished,” while Mia and Kaleb were determined to be “moderately malnourished.” And blood tests on Kaleb “revealed abnormalities very concerning for chronic malnutrition.”

¶17 The doctors considered the Children’s malnutrition to be concerning, and they set about to discover why the Children were unable to regularly eat solid food. All three Children were administered “swallow studies” to determine their “ability to eat and drink by mouth.” Kevin had such a severe “oral aversion to food and drink” that hospital personnel were unable to complete the test, and he was referred to a “speech/language pathologist” to help him overcome the aversion. Mia was “found to have a significant oral aversion to liquids,” and was also referred to a “speech/language pathologist.” Kaleb, on the other hand, was determined to have no oral aversion and was “eager to eat and engaged with all thicknesses of feeds.” Doctors concluded that Kevin and Mia’s oral aversion was “likely the result of not being provided with solid food” at home, and that Kaleb’s test results indicated a “serious concern” that he “did not need a feeding tube” at all.

¶18 Following removal, the Children stayed in the hospital for six days “to medically stabilize them and properly diagnose their conditions” through further examination and testing. During this time, the PCMC team was (as noted above) able to confirm the conclusions it had reached based on the earlier records review.

¶19     Upon discharge from PCMC, the Children were placed into foster care. Kevin and Mia were placed in the same homes, a temporary one at first for a few weeks before being moved to a more permanent placement. Kaleb was placed with a different foster family. Once in foster care, the Children showed rapid and measurable improvement. After having Kevin and Mia for only about a month, their foster mother reported that, while Kevin could only “scootch around the house on his hiney” when he arrived, he eventually learned not only to walk but to run, and he could often be seen doing “laps” around the kitchen island. He also began to allow his teeth to be brushed (something he had refused to allow at first), had become “a lot more personable” and affectionate, and began attending kindergarten and “loves school.” Mia had some ability to walk when she arrived but was “[v]ery unstable”; over time, however, she had learned to “run really fast.” The foster mother obtained glasses for Mia, which helped her navigate the world better. In the beginning, Mia refused to bathe, and would start “screaming and rocking and shaking” when asked to do so, but over time had become accustomed to it and “now she loves bath time.” And Kaleb’s foster mother reported that Kaleb could not crawl, walk, or talk when he arrived, but within a few weeks he learned how to not only crawl but walk with the help of furniture, and he was able to say several words.

¶20 The foster parents also reported that they had enrolled the Children in appropriate schooling. Kevin was enrolled in kindergarten, where he began to receive speech and occupational therapy through the school. Mia was enrolled in preschool, where she was given an individualized education plan that included speech therapy. And Kaleb was enrolled in a state-run program known as “Up to Three,” where he was able to obtain physical and speech therapy.

¶21 With regard to nutrition and weight gain, all three Children demonstrated swift and marked improvement in foster care. It wasn’t long before the Children no longer required 24- hour G-tube feeding; soon, the Children were receiving feedings through the tube only at night and just two or three times during the day. All of them were soon eating solid foods; Kevin’s foster mother reported that he had “tried 20 new foods” and he liked “spaghetti and pasta and yogurt and ice cream.” Following an appointment about a month after foster placement, Physician noted that Kevin “looks to be doing great” and stated that, from “a weight perspective, he is gaining weight appropriately.” And she noted that Mia “looked to be in excellent physical health.”

¶22 Soon after the Children were removed from Parents’ care, Pediatrician set up a meeting to inform Parents of the Children’s condition and accurate diagnoses. Parents refused to accept the PCMC team’s conclusion that many of the previous diagnoses were inaccurate; indeed, Pediatrician described Parents’ reaction as one of “scoffing and disbelie[f] and unacceptance.” Pediatrician later stated that, because of Parents’ “blatant disregard of facts from medical tests and expert opinions from specialists,” he “would be very worried” about the Children if they were to be placed back in Parents’ care.

¶23 In the meantime, legal proceedings began in the juvenile court. One week after removal, the court held a shelter hearing, at which it heard testimony from Mother, Father, and one member of the PCMC medical team. At the conclusion of the hearing, the court stated that it was “convinced by a preponderance [of the evidence] that the [C]hildren were being neglected” by Parents. The court noted that daily oversight of the Children had been Parents’ responsibility, and that this “oversight was done in a way that was neglectful.” It specifically mentioned that, upon arrival at the hospital after removal, the Children all had “soiled” diapers and “open sores” in the diaper area as well as around the G-tube sites. The court noted that the Children “needed a great deal more medical oversight” than they had been getting, and that “at the very least” the case presented “medical neglect” with a “strong indication” that there was also “medical abuse.” The court stated that it had been “up to [Parents] to identify [the issues] and care for these [C]hildren,” who “were not thriving.”

¶24 After making its findings of neglect, the court finished its shelter analysis with the following remarks:

The [c]ourt does find that given the current state of the [C]hildren, exigent circumstances existed with regards to the removal. The removal was proper. At this particular time until there is a plan in place, the continued removal is necessary. Okay? At some point in time if a plan is in place and the parents have shown the ability to take into consideration the current medical condition of the [C]hildren and have shown the ability to work with the professionals that are providing that care for the [C]hildren, I don’t see why it cannot at least be considered that the ongoing continued removal would not be necessary. Okay?

At this point, I just don’t have enough with regards to that. The only thing I have is that there was testimony that if placed back in the care of [Parents], this is going to get worse and worse and worse. I don’t think that has to be the case really.

So I do find removal proper, . . . [a]nd I do find that exigent circumstances, emergency circumstances did exist with relation to the removal at the time the [C]hildren were removed which absolved [DCFS] of the need to provide reasonable efforts to keep the [C]hildren in the home.

¶25 Later, the court issued an order memorializing its oral ruling. It found that “[t]he lack of physical care that the [C]hildren received by [Parents] constitutes neglect,” and that the Children were “clearly not thriving.” The court found that “[r]emoval of the [C]hildren from the home was proper and in [their] best interest,” and that it was “contrary to [their] well-being . . . to remain in the home.” And it found that, “because an emergency situation . . . existed at the time of removal, . . . any lack of pre- placement preventative efforts was appropriate and justified.”

¶26 About six weeks later, the juvenile court held an adjudication trial. Over three trial days, the court heard from thirteen witnesses, including the involved DCFS caseworkers, Nurse Practitioner, Pediatrician, the foster parents, and various members of the PCMC medical team. They all testified about the events described above. At one point during the trial, the Children visited the courtroom, an event the court noted for the record, stating that it “was able to” see the Children and “watch them interact with” Parents. At the conclusion of the trial, the court took the matter under advisement.

¶27 Some ten days later, the court issued a lengthy written ruling in which it summarized the evidence presented at trial and then determined that the Children had been abused and neglected by both Parents. With regard to abuse, the court found that the Children had “suffered or been threatened with nonaccidental harm in that unnecessary medical interventions have been performed that have caused physical harm” to the Children. In support of this finding, the court pointed to six different “unnecessary medical interventions”: (1) a CT scan performed on Kaleb in 2022 that was against medical advice; (2) Mother’s “[i]ntermittent catheterization” of Kaleb; (3) various medical tests performed on Kevin that “expos[ed him] to radiation unnecessarily”; (4) various unnecessary blood draws on Mia;

“bronchoscopies and modified Barium swallow studies” performed on all three Children that “may not have been necessary”; and (6) Parents’ actions in “maintaining the [C]hildren on G-tubes” and “constant[ly] plac[ing]” them in playpens, actions the court found had “harmed the [C]hildren to the point that they became unable to eat food orally or develop the ability to walk.”

¶28     With regard to neglect, the court’s conclusion rested on two separate grounds. First, the court pointed to the Children’s condition upon arriving at the hospital, finding that they were “malnourished” without any “medical reason” and “[d]espite placement of feeding tubes and 24/7 feeding,” and that they were “nonverbal and unable to walk” because of parental neglect and not because of “their medical complexity.” Based on their condition at the time of removal, the court concluded that the Children were neglected because Parents had failed “to provide for their basic physical needs on a day-to-day basis.”

¶29 Second, the court pointed to Parents’ belief that the Children had various medical maladies, many of which did not appear to be borne out by medical evidence, noting by way of example that there is no evidence that Kaleb has spina bifida or hydrocephalus. In that same vein, the court found that the Children “have not received appropriate interventions for their developmental needs,” noting specifically that Mia had not received appropriate medical treatment for certain neurological conditions and that none of the Children had been “enrolled in any physical therapy, occupational therapy, feeding therapy, or speech therapy since the family arrived in Utah.” Accordingly, the court concluded that the Children were neglected because Parents had “failed or refused to provide proper and necessary subsistence [and] medical care when required.”

¶30 After finding both abuse and neglect, the court concluded that “continued removal” was “in the best interest” of the Children, and that DCFS had “made reasonable efforts to prevent the removal,” but that those efforts had been “unsuccessful.” The court ordered that the Children “be placed in [DCFS’s] custody and guardianship for appropriate placement.”

ISSUES AND STANDARDS OF REVIEW

¶31 Parents now appeal, and they raise three issues for our review. First, Parents challenge the juvenile court’s determination, made after the adjudication trial, that they had abused and neglected the Children. In this context, “we apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859 (quotation simplified). The factual findings underlying an abuse or neglect adjudication are reviewed deferentially and are reversed only if clearly erroneous. See In re K.K., 2023 UT App 13, ¶ 21, 525 P.3d 519. But the court’s ultimate determination regarding abuse or neglect is reviewed for correctness, because making that determination, which involves applying a given set of facts to statutory criteria, “is primarily a law-like endeavor.” See In re M.S., 2023 UT App 74, ¶ 23 (quotation simplified).

¶32 Second, Parents assert that, in one respect, their attorneys rendered constitutionally ineffective assistance. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the [party] was deprived of the effective assistance of counsel as a matter of law.” State v. Kitzmiller, 2021 UT App 87, ¶ 14, 493 P.3d 1159 (quotation simplified).

¶33 Finally, Parents challenge the juvenile court’s earlier order following the shelter hearing, asserting that the court failed to engage in the proper statutory analysis before issuing its order finding that removal was necessary. In particular, Parents assert that the court did not properly analyze whether DCFS had made reasonable efforts to prevent removal, and that the court did not properly analyze whether there were services available, going forward, that might have prevented removal. At root, Parents’ assertion is that the juvenile court misapplied the shelter statute. “We review [a lower] court’s application of a statute for correctness.” Estate of Higley v. Utah Dep’t of Transp., 2010 UT App 227, ¶ 6, 238 P.3d 1089 (quotation simplified).

ANALYSIS

Adjudication Order

¶34 Parents’ main challenge is to the merits of the juvenile court’s adjudication order, in which the court determined that the  Children were abused and neglected as to both Parents. For the reasons discussed, we affirm the juvenile court’s determination that Parents neglected the Children. In light of that ruling, and given the posture of Parents’ arguments on appeal, we need not consider the merits of the court’s abuse adjudication.

Neglect

¶35 We first consider Parents’ challenge to the juvenile court’s neglect adjudication. In this context, “[n]eglect” includes parental “action or inaction causing” any one of six different results. See Utah Code § 80-1-102(58)(a). Yet not all six results are necessary for a neglect determination; when “the juvenile court [finds] neglect under several subsections, to affirm we need conclude only that neglect was established under one of the bases.” In re G.H., 2023 UT App 132, ¶ 28, 540 P.3d 631.

¶36 In this case, the juvenile court determined that Parents had neglected the Children under two of the six statutory subsections. First, based on the condition of the Children at removal, the court determined that Parents’ action or inaction caused a “lack of proper parental care of a child by reason of the fault or habits of the parent.” See Utah Code § 80-1-102(58)(a)(ii). Second, and alternatively, the court determined, based on the Children’s medical conditions, that Parents had failed or refused “to provide proper or necessary subsistence or medical care, or any other care necessary for the child’s health, safety, morals, or well-being.” Id.

§ 80-1-102(58)(a)(iii). For the reasons discussed, we conclude that the juvenile court’s first ground is supported by the evidence in this case, and we therefore need not reach the second.

¶37 In our view, the Children’s condition at removal alone was sufficient for the juvenile court to determine that the Children were neglected. The Children were all malnourished, one of them “severely” so. They were all underweight and failing to thrive. Moreover, they all had mobility problems; none of them could walk in an age-appropriate manner. And none were toilet-trained. In addition, they arrived at PCMC with open sores in their diaper areas and around their G-tube sites that were severe enough to require consultation with the hospital’s wound clinic.

¶38 Even though the Children are medically complex, the juvenile court found that there was no medical reason for their malnourishment, failure to thrive, or open wounds. That finding was not clearly erroneous. It should go without saying that allowing open wounds to develop or remain untreated is not medically necessary; certainly, Parents make no assertion to the contrary. And with regard to malnourishment and failure to thrive, PCMC doctors investigated whether there could be any medical reason for the Children’s continued malnutrition and failure to gain weight, and eventually concluded that no such medical cause existed here. Absent a medical cause, children with G-tubes should not be malnourished. Following examination and testing, the PCMC team eventually determined that the Children’s “malnourishment and poor growth [were] directly related to insufficient caloric intake,” despite G-tubes, and that their “failure to thrive was not due to their medical conditions but due to [Parents’] neglect . . . in feeding them appropriately.”

¶39   Parents resist the court’s neglect determination by pointing to the neglect statute’s exception for “reasonable and informed” health care decisions. See id. § 80-1-102(58)(b)(ii) (“Neglect does not include . . . a health care decision made for a child by the child’s parent or guardian, unless the state . . . shows . . . that the health care decision is not reasonable and informed.”). They assert, in essence, that their care of the Children has consisted of a series of health care decisions that the State has not shown to be unreasonable or uninformed. And on that basis they argue that the court’s neglect determination was incomplete and improper.

¶40 Parents’ arguments might have more force if the reason the State was asserting neglect had to do with a specific medical decision Parents made for the Children—say, for instance, their decision to place G-tubes in all three Children. But in this case, the juvenile court’s neglect determination was—at least in relevant part—not based on any specific health care decision but, instead, on the Children’s condition at the time of removal. On that score, Parents—unlike the parents in In re M.S., 2023 UT App 74, ¶¶ 41– 48, 533 P.3d 859, who asserted that their baby’s low weight was due to their decision to exclusively use breast milk rather than formula—make no effort to defend the Children’s malnutrition and failure to thrive by pointing to any particular health care decision, whether reasonable and informed or not. Indeed, as noted, PCMC doctors concluded, after examination and testing, that there was no medical justification for the Children’s malnutrition and failure to thrive. Under these circumstances, the statutory exception to “neglect” for “reasonable and informed” health care decisions simply has no application.

¶41 We therefore affirm the juvenile court’s determination that, based on the Children’s condition at removal, Parents—through their own “fault or habits”—had failed to provide “proper parental care” to the Children. See Utah Code § 80-1-102(58)(a)(ii). Because we affirm under subsection (a)(ii), we need not further discuss the court’s alternative neglect determination, made under subsection (a)(iii). See In re G.H., 2023 UT App 132, ¶ 28.

Abuse

¶42 Moreover, because we affirm the juvenile court’s neglect determination, we need not—in this case—consider the merits of the court’s abuse determination. Juvenile court jurisdiction over a child can be based on, among other things, either abuse or neglect. See In re G.B., 2022 UT App 98, ¶ 32, 516 P.3d 781 (“Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination.”). Our decision affirming the juvenile court’s neglect adjudication means that the court has continuing jurisdiction over the Children, regardless of the merits of Parents’ challenge to the court’s abuse adjudication.

¶43 In situations like this one, the propriety of the court’s abuse adjudication ends up being an inconsequential point, unless the affected parent can demonstrate that there will be “collateral consequences associated with an abuse determination that do not follow from a neglect determination.” Id. ¶ 34. In this case, Parents make no effort to articulate any collateral consequences that might follow from an abuse adjudication that are not already present from a neglect adjudication. And when asked during oral argument if we would need to address abuse if we were to affirm on neglect, Parents agreed that, in that situation, we would not need to address abuse. We therefore have no occasion to consider the merits of Parents’ challenge to the court’s abuse adjudication.

Ineffective Assistance of Counsel

¶44 Next, Parents assert that their attorneys provided ineffective assistance during the adjudication proceedings by failing to consult with or call an expert who could have testified about “medical child abuse” and about Parents’ state of mind and intentions regarding their care of the Children. Under the circumstances of this case, we reject Parents’ claim of ineffective assistance of counsel.

¶45 In child welfare cases, we employ the “Strickland test to determine a claim for ineffective assistance of counsel.” See In re E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)), cert. denied, 890 P.2d 1034 (Utah 1994). Under that test, Parents “must show that (1) counsel’s performance was deficient and (2) this deficient performance prejudiced the defense.” In re C.M.R., 2020 UT App 114, ¶ 19, 473 P.3d 184 (quotation simplified). “To demonstrate deficient performance,” Parents “must persuade this court that, considering the record as a whole, [c]ounsel’s performance was objectively unreasonable.” In re R.G., 2023 UT App 114, ¶ 16, 537 P.3d 627. And to show prejudice, Parents “must demonstrate a reasonable probability that the outcome of [their] case would have  been different absent counsel’s error.” In re C.M.R., 2020 UT App 114, ¶ 21 (quotation simplified). “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Id. (quotation simplified). In this case, Parents cannot meet either element of the Strickland test.

¶46 In support of their ineffective assistance claim, Parents have submitted a declaration from a forensic pathologist (Expert) who indicates that he has experience in cases of medical child abuse. Expert offers his view that, in most cases of medical child abuse, the “responsible parent . . . receives some form of secondary benefit, either financial or psychologic, from the inappropriate and unwanted medical care the child receives.” But he states that, in other cases, the unnecessary medical care is the result of “miscommunication between medical providers and patients” and of “the unsophistication and/or limited cognitive resources” of the parents. Expert states that, in order to offer a useful opinion in this case, he would need to undertake “an adequate psychologic and cognitive assessment” of Parents. He has not yet undertaken any such assessment, although he notes that he has reviewed the reports of another examiner who assessed Parents, and he offers his view that these reports “appear to endorse mental functioning deficits” on Parents’ part “that could lead to inaccurate conceptualizations of [the Children’s] medical conditions and treatment needs,” and that nothing he sees in those reports “implies [that Parents] are putting [the Children] at risk for selfish or self-aggrandizing motives.”

¶47 Under the circumstances presented here, a reasonable attorney could have decided not to consult Expert. The opinions Expert offers speak only to medical child abuse, and not to whether Parents neglected the Children by not feeding them enough and not enabling them to grow and thrive despite their medical maladies. As noted above, we affirm the juvenile court’s neglect determination without reaching the merits of any questions about the propriety of the Children’s various medical diagnoses. Because Expert has nothing useful to say about Parents’ manifest neglect of the Children notwithstanding their diagnoses, a reasonable attorney could have determined that consultation with Expert was not necessary or helpful. Accordingly, we conclude that Parents have not demonstrated that their attorneys performed deficiently.

¶48 For much the same reason, Parents have also not shown prejudice. Even if their attorneys had consulted with and retained Expert, his testimony—given that it goes only to abuse and not to Parents’ neglect of the Children as evidenced by the Children’s condition at removal—would not have made a difference to the outcome of this case.

¶49 Thus, we conclude that Parents have not borne their burden of demonstrating that their attorneys rendered constitutionally ineffective assistance.

The Shelter Order

¶50 Finally, we consider Parents’ challenge to the juvenile court’s earlier shelter order. Before considering the merits of that challenge, we address one preliminary issue: whether Parents have properly appealed the shelter order. After concluding that Parents have properly mounted an appeal from the shelter order, we proceed to address the merits of Parents’ arguments.

Appealability

¶51 We do not see very many appeals from shelter orders. We suspect that this is because shelter hearings occur at the very beginning of any child welfare case, and because orders coming out of those hearings are not considered final orders that are immediately appealable as of right. We therefore take this opportunity to discuss the appealability of shelter orders, and we

conclude that Parents have properly appealed from the shelter order here.

¶52 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” In re J.E., 2023 UT App 3, ¶ 17, 524 P.3d 1009 (quotation simplified). And, at least conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” Id. ¶ 18 (quotation simplified). “But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context.” Id. ¶ 19. In juvenile court cases, “the determining factor” as to finality “is whether [the order in question] effects a change in the permanent status of the child.” Id. (quotation simplified). Using this “pragmatic analysis of the order itself,” Utah appellate courts have concluded that, in juvenile court cases, “appeals may be heard from more than one final judgment.” Id. (quotation simplified). In particular, adjudication orders and termination orders are considered final orders that are appealable as of right, while “shelter orders” are “not considered final.” Id. ¶ 20; see also In re S.A.K., 2003 UT App 87, ¶ 13, 67 P.3d 1037 (“An adjudication order is one such judgment that we have found to be final for purposes of appeal.”); In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997) (per curiam) (holding that, because a shelter hearing only creates temporary orders, “a shelter hearing order . . . is not final and appealable as a matter of right”).

¶53 Because shelter orders are not considered to be final orders, they are not immediately appealable as of right.[3] To properly appeal such orders as a matter of right, the party wishing to challenge the shelter order must wait until the court has entered a final appealable order. At that point, the party may take an appeal from the final order, which appeal “may include challenges to interlocutory orders” issued by the court prior to entry of the final order. Jensen v. Jensen, 2013 UT App 143, ¶ 2 n.1, 304 P.3d 878 (per curiam); accord U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 13, 990 P.2d 945.

¶54 In this situation, the adjudication order was the first final and appealable order issued by the juvenile court following entry of the shelter order. Thus, Parents’ opportunity to appeal the shelter order as of right presented itself upon entry of the court’s adjudication order. And Parents seized that opportunity by filing their notices of appeal. In each notice, Parents specified that they were appealing from the court’s adjudication order; they did not specify that they also wanted to appeal from the court’s interim shelter order, but parties are not required to include such specification in the notice of appeal. See Wilson v. Sanders, 2019 UT App 126, ¶ 28, 447 P.3d 1240 (“The language of rule 3(d) [of the Utah Rules of Appellate Procedure] does not require a party appealing from an entire final judgment to specify each interlocutory order of which the appellant seeks review.” (quotation simplified)), cert. denied, 456 P.3d 388 (Utah 2019). Parents then indicated in their appellate petition, filed a few months later, that they were challenging not only the adjudication order but also the interlocutory shelter order.

¶55 Thus, Parents took all the right steps to appeal the juvenile court’s shelter order. Such orders are not immediately appealable as of right, but a challenge to such orders may be included in any appeal from the next subsequently entered final order. Parents properly included their challenge to the shelter order in their appeal from the next final order entered by the juvenile court: the adjudication order.

B. Parents’ Challenge to the Shelter Order

¶56 Having concluded that Parents have properly mounted an appeal from the juvenile court’s shelter order, we proceed to consider the merits of Parents’ appellate challenge. In this case, Parents raise a very specific objection to the shelter order. They assert that the court did not properly address two of the required components of the statutorily mandated removal analysis:

“whether reasonable efforts were made to prevent or eliminate the need for removal,” and (2) “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In considering the merits of Parents’ challenge, we first conclude that the juvenile court did indeed err in its application of the shelter statute. In a separate section, we then discuss the appropriate remedy in this situation.

1

¶57 Utah law requires juvenile courts, before removing a child from a parent’s home, to make several specific findings. At issue here are the requirements of subsection 10(a) of the shelter statute. That subsection states, in relevant part, as follows:

(i) The juvenile court shall make a determination on the record as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from the child’s home and whether there are available services that would prevent the need for continued removal.

(ii) If the juvenile court finds that the child can be safely returned to the custody of the child’s parent or guardian through the provision of the services described in Subsection 10(a)(i), the juvenile court shall place the child with the child’s parent or guardian and order that the services be provided by [DCFS].

Id. § 80-3-301(10)(a).

¶58 Thus, this statutory provision requires juvenile courts to make, “on the record,” two separate but related determinations. See id. § 80-3-301(10)(a)(i). The first one is a backward-looking inquiry that asks whether, prior to removal, DCFS has made “reasonable efforts” to “prevent or eliminate the need for removal.” Id. However, if DCFS’s “first contact with the family occurred during an emergency situation in which the child could not safely remain at home,” the juvenile court need not engage in a traditional reasonable-efforts analysis but, instead, “shall make a finding that any lack of preplacement preventive efforts . . . was appropriate.” Id. § 80-3-301(11).

¶59 The second—and related—determination requires analysis of “whether there are available services that would prevent the need for continued removal.” Id. § 80-3-301(10)(a)(i). As we understand it, this inquiry is different from the reasonable-efforts analysis, in that it looks forward rather than backward. As relevant here, the question is not whether reasonable efforts have been made in the past, but whether services are available, going forward, that could “prevent the need for continued removal.” Id.

¶60 With regard to the first part of this inquiry, the court in its oral ruling offered its view that “emergency circumstances did exist” at the time of removal “which absolved [DCFS] of the need to provide reasonable efforts.” And in its later written order, it found that, “because an emergency situation and aggravated circumstances existed at the time of removal, and the [C]hildren could not safely remain in [Parents’] home, any lack of pre- placement preventative efforts was appropriate and justified.”[4]

¶61 Parents assert that this analysis was erroneous because the “emergency” exception that absolves DCFS from making reasonable pre-removal efforts to prevent removal applies only in cases in which DCFS’s “first contact with the family occurred during an emergency situation,” see id. § 80-3-301(11) (emphasis added), a situation not applicable here. The State advances a broader interpretation of this statutory exception, but in our view Parents’ interpretation is the correct one.

¶62 The State agrees with Parents that, in situations in which DCFS’s first contact with the family is in an emergency situation, the statute requires the court to make a finding that any lack of reasonable efforts was appropriate. See id. But it asserts that this provision does not prevent a court from “mak[ing] a finding of exigency in any case where [DCFS] has already been working with the parents,” and it posits that a juvenile court has the authority to dispense with the pre-removal reasonable-efforts inquiry anytime it believes the situation is emergent. We disagree.

¶63 The previous subsection requires that a pre-removal reasonable-efforts finding be made. See id. § 80-3-301(10)(a)(i). There are no exceptions built into this subsection. To be sure, there is an exception built into the next statutory subsection, but that provision, on its face, applies only to situations in which DCFS’s first encounter with the family occurred in an emergency situation. We decline the State’s invitation to read a broader emergency exception into the statute. See St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 13, 353 P.3d 137 (“[W]e will not read additional limitations into [a rule] that the language cannot bear.”); Greene v. Utah Transit Auth., 2001 UT 109, ¶ 15, 37 P.3d 1156 (“[W]e will not disturb explicit legislative requirements and read into the statute an actual notice exception.”). We conclude that subsections (10) and (11) of the shelter statute, when read together, contemplate an exception to the reasonable-efforts requirement that is applicable only when DCFS’s first encounter with the family occurs during an emergency situation.[5]

¶64   That narrow exception is not applicable here. DCFS was first notified of potential problems with the Children in August 2022, some three months before removal. Between DCFS’s first notification (in August) and removal (in November), DCFS assigned caseworkers to the family, and those caseworkers made at least ten visits to Parents’ home. This is simply not a situation in which DCFS’s “first contact with the family” occurred in an emergency situation, and therefore the “emergency” exception to the reasonable-efforts inquiry does not apply here. The juvenile court therefore erred in applying that exception in this case, and it should have proceeded, at the shelter hearing, to consider whether DCFS had made reasonable pre-removal efforts to avoid taking the Children out of Parents’ home.

¶65   The juvenile court’s error in this regard, however, appears to have been rendered moot by the court’s later finding, made after the adjudication trial, that DCFS had “made reasonable efforts to prevent the removal of the [C]hildren, but those efforts were unsuccessful.” While Parents complain that the court did not undertake this analysis after the shelter hearing, they do not make any effort to challenge the finding that the court eventually made just two months later after the adjudication trial. Under these circumstances, any error the court made by relying on the emergency exception at the shelter hearing, and by failing to make a “reasonable efforts” finding at that time, has been rendered inconsequential by the court’s later unchallenged finding that DCFS had indeed made reasonable efforts to prevent removal.

¶66 We turn now to the second part of the inquiry, the part that requires the court to determine, on a going-forward basis, “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). In this vein, the court stated, in its written order, as follows:

If, at some point, there is a plan in place and [Parents] have shown the ability to take into consideration the current medical condition of the [C]hildren, and have shown the ability to work with the professionals providing that care for the [C]hildren, the [c]ourt would re-consider whether ongoing and continued removal would be necessary.

This comment indicates that the court was of course aware that services do exist—such as physical, speech, and occupational therapy for the Children and medical education and in-home health care assistance for Parents—that are designed to improve situations like the one presented here. And it indicates that the court was making an effort to apply the second part of the statutory analysis.[6] But the court, in its analysis, did not take the next analytical step and assess whether specific services could be provided to the family, in that moment and going forward, that might obviate the need for removal. See id. Simply stating that, at some point in the future, the court might reconsider its removal order is not sufficient; indeed, in most child welfare cases, the initial permanency goal is reunification, and juvenile courts nearly always stand ready to reconsider removal orders in appropriate cases. The shelter statute requires a more exacting analysis prior to removal, and the court’s failure here to ask and answer the correct statutory question was error.

¶67 And unlike the court’s error regarding the backward- looking reasonable-efforts determination, this error was not later remedied by later findings made after the adjudication trial. The State points to no similar finding made after the trial, and we are aware of none.

¶68 We therefore conclude that the juvenile court made two errors in its attempt to comply with the shelter hearing statute. First, it misapplied the “emergency” exception to its obligation to make a backward-looking reasonable-efforts determination at the shelter hearing. Second, it failed to make a specific forward- looking determination about whether services could be provided to the family that would serve to obviate the need for removal. The first error was rendered inconsequential by later findings. But the second one wasn’t, and we must therefore consider what the proper remedy is, in this situation, to address the court’s error.

¶69 Before doing so, we take the opportunity to emphasize the importance of completing the proper statutory analysis at the shelter hearing. While such hearings take place early in the case and are generally not comprehensive trials, they can assume a position of great importance in the arc of a child welfare case. To be sure, removal orders are temporary nonfinal orders that can be—and in many cases are, see, e.g.In re M.S., 2023 UT App 74,

¶¶ 2–21, 533 P.3d 859 (considering a situation where a child was placed back into the parent’s home at a later hearing, after initial removal)—amended or modified, but removal orders nevertheless memorialize a seminal moment in a child welfare case. Such cases often proceed much differently after the shelter hearing depending on whether the child was (or was not) removed. It is therefore vital that courts undertake the analysis required by the shelter statute, and that, before removal, they engage with both the backward-looking reasonable-efforts analysis as well as the forward-looking services analysis.

¶70 The importance of getting shelter hearings right the first time is highlighted by the difficulty of putting the removal genie back in the proverbial bottle. As this case illustrates, by the time appellate review of a shelter order can take place, the family’s situation will often look much different than it did at the shelter hearing. While post-adjudication events are not part of the record submitted to us on appeal, we are nevertheless aware that, while    this appeal has been pending, significant events have taken place that might affect the way the juvenile court analyzes the question of whether services are available that could obviate the need for continued removal. For instance, we are aware that criminal child abuse charges have been filed against Parents. In addition, we are aware that, since the adjudication hearing, Parents have received certain services, and the court has had the opportunity—at a permanency hearing held in January 2024—to assess the efficacy of those services. And there have doubtless been other developments that have occurred in the previous sixteen months of which we are appropriately unaware.

¶71 In this case, by way of remedy, Parents ask us to vacate the initial removal order and remand the case so that the juvenile court can conduct an entirely new shelter hearing. We do not view this as an unreasonable request; indeed, when an error is made at a hearing, a common remedy is to remand the case for the court to conduct a new hearing. But even though we do not view Parents’ request as unreasonable, in this situation the request is not entirely practical. After all, the situation is much different now from what it was in November 2022, and in cases involving children, our usual remand instructions include an admonition to the court to conduct any new hearing, on remand, in present-tense fashion, as of the date of the renewed hearing, taking into account all that has happened in the child’s situation since. See In re   Z.C.W., 2021 UT App 98, ¶ 12, 500 P.3d 94.

¶72 Under the circumstances, we agree with Parents that the juvenile court’s error cannot go entirely unremedied, and that the case should therefore be remanded so that the juvenile court can complete the analysis required by the shelter statute and, in particular, consider “whether there are available services that would prevent the need for continued removal.” See Utah Code § 80-3-301(10)(a)(i). But this inquiry should not be undertaken as of the date of the initial shelter hearing; instead, this inquiry should, on remand, be conducted in present-tense fashion, taking into account all relevant existing developments. See In re Z.C.W., 2021 UT App 98, ¶ 12.[7] Moreover, we offer no specific instruction to the juvenile court as to whether, and to what extent, it must hold an evidentiary hearing on remand; we conclude only that the court must properly complete the required statutory analysis and that it “must—in some manner—consider and appropriately deal with proffered new evidence.” See id. ¶ 15. And we do not, in this opinion, order that the removal order be vacated; the juvenile court may order that relief, if it deems such relief appropriate, only after completing its analysis on remand.

¶73     Finally, we wish to make clear that we harbor no opinion as to how the juvenile court’s renewed analysis should come out; given the realities of chronology, the juvenile court (conducting a present-tense analysis) will have a lot more information than we do now, on this record, about how the Children are doing and how Parents have responded to the situation during the period between the shelter hearing and the permanency hearing. It may well be that the court reaches the same result, after conducting a more complete shelter analysis, that it reached at the permanency hearing in January 2024. On the other hand, it may be that the court, after conducting the proper shelter analysis, finds it appropriate to vacate or amend one or more of its previous orders. But either way, it is important that courts conducting shelter hearings, before they take the rather drastic step of removing children from a parent’s home, follow the requirements of the shelter statute. We remand the matter so that these requirements may be satisfied in this case, albeit belatedly.

CONCLUSION

¶74 We discern no error in the juvenile court’s determination that, based on the condition of the Children upon removal, the Children were neglected by both Parents. And we reject Parents’ assertion that their attorneys rendered ineffective assistance during the adjudication process.

¶75 However, we conclude that the juvenile court did not conduct the proper statutory analysis at the initial shelter hearing. We therefore remand this case to the juvenile court so that it can complete the required analysis and assess, in present-tense fashion, whether there are services available that can prevent the need for continued removal.

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


[1] For readability, we use pseudonyms (rather than initials) to      refer to the Children.

[2] In its reports regarding the Children, the PCMC team stated that “medical child abuse” is “a form of child maltreatment characterized by the fabrication or exaggeration of medical history, symptoms, and even exam findings and/or the induction of symptoms by a caregiver.” Medical child abuse “occurs when a child receives unnecessary and harmful or potentially harmful medical care at the instigation of the caregiver,” and it “results in manipulation of the medical system leading to child maltreatment in the form of unnecessary medical examinations, diagnostic [2]testing . . . , imaging, and invasive procedures.” Medical child abuse, in the past, was called “Münchausen syndrome by proxy.”

[3] Parties can, of course, request permission to appeal any interlocutory order (including shelter orders) under rule 5 of the [3]Utah Rules of Appellate Procedure. But parties are not required to seek review under rule 5, and such review is in any event completely discretionary with the appellate court. See Utah R. App. P. 5(a), (g). In this case, Parents did not seek permission to appeal the shelter order under rule 5, but this fact does not affect their ability to later appeal the shelter order following the eventual entry of a final order. See State v. Troyer, 866 P.2d 528, 530 (Utah 1993) (stating that “the scope of appellate review from a final judgment” is not “in any way affected or limited by the possibility that any one or more of the trial court’s rulings might have formed the basis of a petition for an interlocutory appeal”); see also In re S.F., 2012 UT App 10, ¶ 28, 268 P.3d 831 (stating that the fact that a parent “could have elected to petition for interlocutory appeal” from an earlier nonfinal order “does not eliminate our authority to review” the earlier order “once the neglect and termination proceedings were completed and an appeal timely filed”), cert. denied, 280 P.3d 421 (Utah 2012).

[4] There are other statutory provisions that, in specific cases, may operate to excuse or render irrelevant any lack of pre-removal reasonable efforts. See, e.g., Utah Code § 80-2a-201(6) (stating that, “in cases where sexual abuse, sexual exploitation, abandonment, severe abuse, or severe neglect are involved, the state has no duty to make reasonable efforts or to . . . maintain a child in the child’s home”); id. § 80-2a-302(4) (same); id. § 80-3-301(12) (same). No party asserts that any of these other Utah statutes are applicable here. In a supplemental authority letter submitted to us after oral argument, however, the guardian ad litem (GAL) asserts—for the first time—that the juvenile court’s allusion to “aggravated circumstances” was an implicit effort to resort to a provision of federal law, which provides that “reasonable efforts . . . shall not be required . . . if a court of competent jurisdiction has determined that the parent has subjected the child to aggravated circumstances.” 42 U.S.C. § 671(a)(15)(D)(i). As an initial matter, we note that parties may not raise new legal theories in post- argument supplemental authority letters. Cf. State v. Seat, 2022 UT App 143, ¶ 39 n.4, 523 P.3d 724 (stating that parties are “not permitted to raise a new question for the first time at oral argument” before this court). But more substantively, the GAL’s argument fails on its face; even if we assume, for purposes of the discussion, that the juvenile court’s comment was actually a reference to a federal statutory exception to the reasonable-efforts requirements, resort to the federal statute is unhelpful here because, at the time of the shelter hearing, no “court of competent [4]jurisdiction” had made any determination that Parents had done anything wrong.

[5] We can certainly envision policy concerns that might support a broader exception to the reasonable-efforts requirement that could apply in any emergency situation, regardless of whether DCFS had already been working with the affected family. We note here, as we sometimes do, that our legislature is free to amend the statute if it believes we have misinterpreted legislative intent.

[6] On this basis, we reject the State’s assertion, also advanced by the GAL, that Parents failed to preserve any objection to the court’s application of the shelter statute. Our supreme court has made clear that there is no preservation problem where the trial court “not only had an opportunity to rule on the issue . . . but in [6]fact did rule on it.” See Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13, 379 P.3d 1218 (quotation simplified).

[7] In In re Z.C.W., 2021 UT App 98, 500 P.3d 94, our instruction that the renewed hearing be conducted, on remand, in present- tense fashion was a function of the applicable statute using a present-tense locution. See id. ¶ 13 (interpreting a statute requiring juvenile courts to assess “whether termination is in the best interest of the child” (quotation simplified)). The statute at issue here also uses a present-tense locution. See Utah Code § 80-3- [7]301(10)(a)(i) (requiring assessment of “whether there are available services that would prevent the need for continued removal” (emphasis added)). We therefore conclude that, in this situation, a present-tense perspective is required on remand.

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Do Many Women Lie About DV in Divorce and Child Custody Court Cases?

Yes. Many women (not all, but many more than we’d like to believe unquestionably lie and make outright false or grossly exaggerated domestic violence claims. The temptation to tell such lies is just too great for many women when they see the leverage and advantage it gives them in divorce and child custody cases, the immediate “temporary” custody of the children and associated child and spousal support and possession of the marital home, and the money to be had by being awarded sole or primary child custody and/or alimony in part due to making claims that the husband/father is a spouse and/or child abuser.

Do men do the same? Of course some men do. But rarely are they believed. So, that keeps the liars in check to some extent, at the expense of actual male domestic violence victims.

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

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Have You Heard That Fathers Defeat Mothers’ Claims of DV and Child Abuse by Claiming Parental Alienation?

We all know the aphorism, “If it looks/sounds to good to be true, it probably is [not true].” This also means, however, that if it looks/sounds too 𝙗𝙖𝙙 to be true, it probably is [not true] too.

Can we all agree that the following claim looks, on its face, too bad to be true?:

A George Washington University Law School article shows that mothers are statistically up to 90% more likely to lose custody of their children when they go on record about abuse. Abusive fathers, who claim parental alienation are almost always granted custody.

So, is the claim true?

I found the article: Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, by Joan S. Meier George Washington University Law School.

Here is what that article actually claims (this is not the entire article, of course, and I have my doubts about the methodology and the resulting accuracy of the claims themselves, but I digress):

Spoiler alert: the article does not make any “women lose custody 90% of the time when they report abuse” claim.

Quotations directly from the article itself:

“Focusing on cases where it was determined that mothers started with possession of the children, and alleged some type of abuse by the father, the data show mothers losing custody in 26% (284/1111) of cases.”

*****

It is also notable that when mothers report mixed types of child abuse (sexual and physical) their custody losses skyrocket (from under 30% (39/135) up to 50%)(11/22).

*****

• When Fathers cross-claim alienation, courts are more than twice as likely to disbelieve Mothers’ claims of (any) abuse than if fathers made no alienation claim; and

• When Fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve Mothers’ claims of child abuse than if fathers made no alienation claim.

*****

As the chart indicates, when fathers claim alienation, the rate at which mothers lose custody shoots up from over 25% to over 50%. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody. When courts credit the alienation claim, rates of maternal losses of custody increase more drastically:

Mothers’ Custody Losses When Courts Credit Fathers’ Alienation Claims

Type of Abuse Alleged Mother Lost Custody:

DV (domestic violence): 60% (15/25)
CPA (child physical abuse): 59% (10/17)
CSA (child sexual abuse): 68% (13/19)
DVCh (domestic violence and child physical abuse): 79% (19/24)
CACSA (child physical abuse and child sexual abuse): 100% (6/6)
Any abuse: 73% (60/82)

*****

“AKA” cases: those in which a court viewed a mother as alienating in her behavior but did not use the term “alienation.”

Mothers’ Custody Losses when Found to have Committed AKA

 

Custody Losses by Type of Abuse Alleged

Custody Losses When Abuse was Proven

   
DV  62% (24/39) DV  60% (3/5)
CPA  61% (17/28) CPA  50% (1/2)
CSA  58% (25/43) CSA  –
DVCh  55% (16/29) DVCh  –
CACSA  78% (7/9) CACSA  100% (1/1)
Any  60% (89/148) Any  63% (5/8)

—————————–

The article is definitely food for thought, but clearly does not find that mothers who allege abuse are 90% more likely to lose/not win custody.

Additionally, one of my critiques of the article is this: it does not reveal whether the abuse-alleging mothers who lost/did not win custody was due purely to their alleging abuse or purely because they were found to have engaged in parental alienation or something like it. For example, if these mothers were themselves child abusers or were found to be unfit parents for other reasons (i.e., child neglect, substance abuse, lacking sufficient housing, ability to provide financially, practicing poor hygiene, insufficient bonding, etc.), how many of them would have lost/not won custody anyway? The article does not address this.

But even if the only reason these mothers lost/did not win custody was due to the court finding them to have engaged in parental alienation, would that not be reason enough? Now, I’m not asserting that all cases of actual parental alienation should cause a mother (or father committing alienation) to lose/not win custody (level of severity must be considered), but parental alienation would be, in my professional opinion, sufficient grounds for awarding custody of children to the other parent, assuming the other parent were found, on balance to be 1) sufficiently fit as a parent; and 2) the more fit of the two parents.

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

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I Am Going through a Custody Battle and the Other Parent Is Making False Statements About Me in Court. What Can I Do to Protect Myself and My Child?

If you want just my direct answer to this question, skip to the last paragraph, but I submit that you’ll have a much better understanding of the answer if you read all of this first.

This is and has been a major, serious problem in family law for as long as I can remember. It’s not getting better. It victimizes far too many innocent people who naively trust the legal system to value truth and justice above all.

Guilt by accusation. Accuse your spouse of being an abusive parent, and immediately the accused finds himself or herself in a position of guilty until proven innocent.

Judges (and that includes the domestic relations commissioner) are, with due respect to them, quite often (so often; more often than you’d expect or hope, frankly) suckers for substituting and accepting the seriousness of the allegations over the substance of the evidence. Why?

Many people innately know, but struggle to articulate it, either because it’s subconscious or too shameful to admit: the cowardly, lazy allure of “better safe than sorry” and “abundance of caution”. “Treat all allegations of spousal or child abuse as true,” so the “reasoning” goes, “and that way we prevent abuse, whether real or imagined.” Why go to all the trouble of investigating, factfinding, and truth seeking when abusers might lie and get away with it? No, better to treat pretty much every abuse claim as true. And if innocent parents (mostly men, but a fair and growing number of women too) are the victims of such a policy (ruined reputations, loss of standing in the community, loss of friends, loss of employment, being persecuted), it’s a price worth paying (especially when the judges and commissioners themselves don’t pay that price themselves) “if it saves just one life.” It’s obvious nonsense (no judge who treats people this way would ever want to be treated that way), but that is culture of the modern legal system. I wish I could deny it, but I’d be lying, if I did.

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

― John Adams

When it comes to accusations of abuse (or even danger of being abusive), it’s terrifyingly far too often the opposite of the “Better that a hundred guilty men go free than to convict one innocent man.”

So, if you are being falsely accused, don’t rely on “I can’t prove a negative,” “accuser has the burden of proof,” or “innocent until proven guilty.” If you can prove you’re innocent, do it. Do everything in your power to prove your innocence. Spend the money and the time and the effort to fight for and to prove your innocence. Strive to hold the courts to being competent and impartial because when it comes to allegations of spousal or child abuse, many courts will not exercise the courage to dismiss such claims for a lack of proof.

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

(65) Eric Johnson’s answer to I am going through a custody battle and the other parent is making false statements about me in court. What can I do to protect myself and my child? – Quora

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

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

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

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

So far, so good.

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

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

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

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

*****

(4)

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

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

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

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

59     may report suspected child abuse or neglect.

I have two major concerns about such a provision.

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

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

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

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

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

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

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

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

Highlighted Provisions:

This bill:

▸ defines terms;

▸ in certain proceedings involving child custody:

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

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

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

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

▸ makes technical and conforming changes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

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

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What Should I Do When a Family Court Judge Refuses to Look at My Evidence?

What should I do when a family court judge refuses to look at my evidence of abuse because my ex’s lawyer lied about me bringing it to him when I had a witness with me?

What you can or should do depends upon why the judge would not consider your evidence.

You say that the judge refused to review your evidence because the judge believed a lie that your ex’s lawyer told him (I presume) something along the lines of “Objection, Your Honor, I was never given a copy of these documents/photographs/recordings. I’m not prepared to address them.”

You claim that you can prove that your ex’s lawyer is lying because you had a witness with me when you delivered the evidence to your ex’s lawyer (I presume) well in advance of the hearing.

It appears that either the judge did not believe you, or, if you did not bring the witness with you to court, that the judge ruled that without the witness’s testimony the judge would not believe that you served your ex’s lawyer with the evidence, and thus would not allow you to present that evidence to the judge.

The lesson learned here?: when you deliver or serve documents/photographs/recordings to someone and need proof that you did so, use a method of delivery or service that provides an objective means of proving it. Have the lawyer or someone at his/her office sign for the documents/photographs/recordings when you or someone from the post office deliver(s) them.  Or you could email the documents/photographs/recordings to the lawyer, which would another way of proving that you delivered/served them. Another thing you could do is file a copy with the court which, though it does not objectively prove you delivered/served the documents on the lawyer, the point is that if you went to the trouble of filing them with the court, then it’s more than likely you also delivered/served them on the lawyer too. Another thing you or your lawyer should do is file a certificate of service with the court that you or your lawyer served/delivered them.

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

https://www.quora.com/What-should-I-do-when-a-family-court-judge-refuses-to-look-at-my-evidence-of-abuse-because-my-exs-lawyer-lied-about-me-bringing-it-to-him-when-I-had-a-witness-with-me

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State in Interest of P.J.R., 2023 UT App 27

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF P.J.R., A PERSON UNDER EIGHTEEN YEARS OF AGE.

C.S.,

Appellant,

V.

STATE OF UTAH,

Appellee.

Opinion

No. 20220264-CA

Filed March 23, 2023

Sixth District Juvenile Court, Manti Department

The Honorable Brody L. Keisel

No. 1097003

Emily Adams, Freyja Johnson, and Caleb Proulx,
Attorneys 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 MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HARRIS, Judge:

¶1        C.S. (Mother) appeals an order terminating her parental rights regarding P.J.R. (Child). But Mother does not contest the juvenile court’s findings that there were grounds for termination and that termination was in Child’s best interest. Instead, Mother limits her appellate challenge to the court’s determination that the Division of Child and Family Services (DCFS) made reasonable efforts, during the course of the case, toward reunification of Mother and Child. Specifically, she claims that the court applied an incorrect evidentiary standard in arriving at its reasonable efforts determination and—alternatively—challenges the merits of that ultimate determination. We find Mother’s arguments unpersuasive, and therefore affirm.

BACKGROUND

¶2        In 2019, DCFS filed a petition seeking protective supervision of Mother’s five children, including Child. In the petition, DCFS alleged that Mother had abused and neglected Child, and specifically alleged (among other things) that, during an incident in the waiting room of a family counseling center, Mother “grabbed [Child] by the back-collar area of his shirt in such a manner that it restricted his ability to breathe and caused him to choke,” and then “shoved his face into the corner with force.” Even after Child “told Mother he was having difficulty breathing and that Mother was hurting him,” Mother “did not let up on his shirt or the forcing of his face into the corner.” At an ensuing shelter hearing, the juvenile court placed all five children in the temporary custody of DCFS.

¶3        Mother responded to the petition by admitting some of the State’s allegations and, with respect to the rest, neither admitting nor denying them; this response resulted in the court deeming the State’s allegations true. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”). On the basis of Mother’s responses, the court adjudicated Child as abused and neglected by Mother. Mother appealed that adjudication order, and this court affirmed it but remanded for additional proceedings on issues not material to this appeal. See In re C.M.R., 2020 UT App 114, ¶ 33, 473 P.3d 184.

¶4        Following adjudication, the court issued a disposition order in September 2019, setting the primary permanency goal as reunification and the concurrent permanency goal as adoption. In connection with setting reunification as the primary permanency goal, the court adopted a service plan—prepared with Mother’s input and cooperation—and found, “by clear and convincing evidence,” that fulfillment of the plan’s terms would “constitute reasonable efforts on the part of . . . DCFS to finalize the permanency goals,” including reunification. Among other things, the plan required DCFS to “follow up with [Child]’s therapist to monitor his progress in therapy,” to follow up with Mother’s therapist regarding her treatment, to promptly communicate with Mother, to “assess [Mother]’s increase in parenting skills during supervised parent-time,” and to ensure that Child’s living, academic, and health needs were being addressed.

¶5        As the case progressed, friction arose between Mother and the DCFS caseworker. As Mother showed at trial, the conflict became apparent at one supervised visit between Mother and her daughters; in a “heated interaction,” the caseworker cut the visit short after observing Mother say certain things to her daughters that the caseworker deemed inappropriate. On a later occasion, the caseworker sent a text message to the guardian ad litem lamenting the fact that Mother received visitation with one of her daughters at all, noting that “[t]hese kids have been the victims of severe physical and emotional abuse for years.” Eventually, Mother refused to communicate with the caseworker (other than by text message) without her attorney present. Even the State’s attorney noticed that the caseworker was having a hard time keeping her “emotions out of this case,” and admonished the caseworker to be more circumspect in her communication.

¶6        Mother also came to believe that the caseworker was interfering with family therapy during the course of the case. Under the service plan, family therapy involving Mother and Child was to begin when Mother’s and Child’s therapists both recommended it, and the caseworker was supposed to follow up with both therapists. In December 2019, the caseworker apparently told Mother that Child’s therapist did not recommend face-to-face visits when, in fact, the caseworker had not yet communicated with Child’s therapist. The first documented communication between the caseworker and Child’s therapist about family therapy was in June 2020, about nine months after the service plan was put in place. However, some evidence shows that the caseworker had “reached out to [Child]’s therapist regularly throughout the case,” and that as of May 2020, Child’s therapist did not “recommend family therapy with [Mother] at this time.” But when the caseworker was asked at trial whether she communicated with Child’s therapist prior to June 2020, she stated that she did not recall. When the caseworker did reach out to Child’s therapist inquiring about family therapy, the therapist responded that before family therapy would be recommended, Mother would need to take a parenting course, continue her own therapy, and “take[] accountability for her actions and . . . learn[] . . . to regulate her own emotions.”

¶7        Shortly thereafter, Mother complained that the caseworker might be attempting to influence the therapists away from holding family therapy, and the caseworker then told the therapists that the court had instructed her to tell them that they were to communicate with each other (rather than through the caseworker as an intermediary) about “whether family therapy with [Mother] and [Child] would be in [Child’s] best interest.” By this point, Child’s therapist had come to believe that family therapy was now appropriate, and expressed interest in beginning the process. The caseworker said she would follow up to see whether Mother and Child were making progress from the therapy, but—apparently in response to Mother’s request that DCFS “back off”—she stated that she would “not be a part of the scheduling process.”

¶8      In August 2020, the caseworker learned that criminal charges had been filed against Mother, and informed the therapists of this fact. Mother believes that the caseworker implied that the conduct in question had occurred recently, when it had actually occurred prior to removal of the children from Mother’s care. After the therapists learned of the charges, communication between them seemed to halt, and family therapy between Mother and Child never did take place.

¶9        During the reunification period, the court held periodic review hearings to assess Mother’s progress under the service plan; at some of these hearings, Mother voiced concerns about the fact that family therapy was not occurring, and on other occasions she expressed concerns about certain statements the caseworker was alleged to have made. But for the most part Mother was non­specific about what else DCFS could have done to improve its efforts; indeed, on at least one occasion, the court expressly asked Mother’s attorney if “there’s anything else . . . as far as services go . . . that could be provided by [DCFS],” or if there was “anything else that you think [DCFS] should be providing to help [Mother] complete the service plan,” and counsel responded that he did not “have any specific request of [the court] right now.” The most specific complaint Mother raised was in August 2020 when she filed a “motion to take evidence and make findings regarding reasonable efforts” in which she accused DCFS of “hostility” and “actively work[ing] against the reunification goal.”

¶10      But by the time this motion was filed, the court had already made—on several different occasions during the reunification period—specific findings that DCFS was making reasonable efforts toward accomplishing the stated permanency goals, including reunification. For instance, in November 2019, the court after a hearing found that “DCFS has provided and is providing reasonable efforts to finalize the permanency goals.” Several months later, the court made a similar finding, noting along the way that Mother’s attorney “could not articulate other efforts that DCFS should be making to further the permanency goals.” In August 2020, the court found that “DCFS has and continues to provide reasonable efforts to finalize the child/children’s permanency goals and to comply with its court ordered responsibilities.” And a few weeks after that, the court did so again, noting that “[n]o party suggested efforts/services that could be provided by DCFS which are not already being provided.” There is no record of Mother making any objection to any of these interim findings regarding reasonable efforts.

¶11      In November 2020, after fourteen months of reunification services and with a permanency hearing looming, the parties engaged in settlement negotiations and entered into a stipulation that resolved many of the issues in the case. The parties and counsel then appeared before the court to put the terms of their stipulation on the record. Following the hearing, counsel for the State prepared an order memorializing the events of that hearing, and circulated it to Mother’s counsel for review. Mother’s counsel did not object or otherwise comment on the proposed form of the order, and therefore the State submitted it to the court “as being stipulated to,” and the court entered it as an order of the court. That order recites that the parties stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The order recites that the parties also stipulated that the court would “terminate reunification services” as to Child, and that “termination of those services” was in Child’s best interest. Based on this stipulation, the court changed Child’s primary permanency goal from reunification to adoption. Mother did not object to the terms of this order, either before or after its entry, and did not object to the change in permanency goal.

¶12      Thereafter, the State filed a petition seeking the termination of Mother’s parental rights regarding Child. Some months later, the parties again entered into negotiations and agreed to resolve some of the issues surrounding the State’s termination petition. In particular, Mother stipulated “to the Court finding that it is in Child’s best interests and strictly necessary for the Court to terminate her parental rights should the Court also find legal grounds for terminating her parental rights.” After entry of this stipulation, the court scheduled a two-day termination trial to consider whether grounds for termination existed and whether DCFS had made reasonable efforts toward reunification.

¶13 The trial took place in November 2021. When the parties and their attorneys appeared for the first day of trial, the State informed the court that it did not intend to call any witnesses in its case-in-chief and, instead, asked the court to “take judicial notice of all the filings in the . . . case.” Mother objected to the court taking judicial notice of such a large quantity of material, arguing that she would never be able to respond to everything in the docket and the court would not have time to review so many documents. Eventually, the State narrowed its request to all the “findings and orders specific to [Child],” and Mother did not object. The court then agreed to take judicial notice of all its interim findings and orders regarding Child. The State then asked the court to take judicial notice of the court-ordered child and family plan pertaining to Child, psychological evaluations of Mother and Child, and court reports pertaining to Child; Mother did not object to the court taking judicial notice of the plan, but did object to the court taking judicial notice of the evaluations and court reports. The court initially took the matter under advisement, but later decided to take judicial notice of the service plan as well as the court reports, reasoning that they had been explicitly incorporated into the court’s previous orders and findings. The reports showed efforts the caseworker made, such as visiting all involved parties, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with therapists, gauging Mother’s progress, promptly communicating with Mother, and ensuring Child had proper educational, medical, and mental health care.

¶14 The State then made its opening statement, pointing out that the only two issues for trial were grounds for termination and reasonable efforts, and arguing that grounds had already been established through the juvenile court’s previous adjudication that this court affirmed. Regarding reasonable efforts, the State argued that, throughout the entire proceeding, the juvenile court had periodically and continuously found that DCFS had made reasonable efforts toward reunification. The State also asserted that, at the end of the reunification period, Mother had stipulated—as part of the November 2020 stipulation prior to the permanency hearing—that DCFS had made reasonable efforts. The State asserted that it had sufficiently proven its case regarding grounds and reasonable efforts through the judicially noticed documents, and it rested its case without calling any witnesses.

¶15 After the State rested, Mother made a “motion for judgment as a matter of law,” arguing that the court’s previous orders “cannot as a matter of law be relied upon for a finding of reasonable efforts in the context . . . of a termination of parental rights trial” and that these orders were only “interim orders” and “can be revisited.” Mother also suggested that she never actually stipulated to a finding of reasonable efforts, even though the court’s order—to which she had not objected—stated otherwise. The court took Mother’s motion under advisement, and did not ever make an explicit ruling on it, but implicitly denied it by eventually making a ruling on the merits in the State’s favor.

¶16      Mother then proceeded with her case-in-chief, in which she called the caseworker and her therapist in addition to presenting her own sworn testimony. The caseworker testified about the events described above, outlining the actions she took to facilitate reunification and discussing her disagreements with Mother. Mother’s therapist testified about her sessions with Mother and the progress Mother made through therapy. Mother testified about the events, described above, that caused her to believe that DCFS was not making reasonable efforts toward reunification.

¶17      At the conclusion of trial, the court took the matter under advisement. About three months later, the court issued an oral ruling,[1] concluding that there were grounds to terminate Mother’s parental rights, and that the State had demonstrated that DCFS had indeed made reasonable efforts to facilitate reunification. After announcing its ruling, the court instructed the State to prepare an order reflecting the court’s ruling. The State did so, and circulated the proposed order to Mother; within her time to object, Mother filed an objection taking issue with one small part of the order, but did not make any objection to the order’s treatment of the proper evidentiary standard.

¶18      Eventually, the court signed a version of the written order prepared by the State, finding “by clear and convincing evidence” that grounds for termination existed because “Child was previously adjudicated to be abused and neglected” in an order that had been affirmed on appeal.

¶19 The court also found—based on “the review hearings, court reports, and other evidence”—that DCFS had provided reasonable efforts toward reunification, although the court did not specify which standard of proof (e.g., clear and convincing evidence or preponderance of the evidence) it was applying with regard to this determination. Among other things, the court found that DCFS had taken action to (i) ensure that Child’s medical, dental, and mental health needs were met, (ii) visit Child at placements, (iii) supervise visits, (iv) review education records, (v) transport Child, (vi) communicate with Child’s therapist, (vii) “coordinate[] virtual parent-time,” (viii) communicate with Mother, and (ix) answer questions and arrange visits. The court also noted that it had, throughout the pendency of the case, “consistently found reasonable efforts on the part of DCFS” in its previous orders and findings. However, the court did not treat these orders and findings as dispositive, and went on to examine the rebuttal evidence offered by Mother, directly addressing her two main arguments: “personal friction between the Mother and [the caseworker], and the delay in starting family therapy with all of the children.” Regarding the friction, the court noted that “DCFS cases are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” And in this case, the court determined that “[t]he disagreements here were based on the DCFS caseworker’s frustration/stress at the lack of progress made by [Mother], which in some sense suggests the DCFS caseworker’s desire for [Mother] to progress and move forward toward reunification.” Regarding the delay in family therapy, the court noted that “DCFS regularly reported that they were following up with the therapist and that the strategy taken by the therapist was determined by the therapist, not DCFS,” and concluded that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.”

¶20 Accordingly, the court entered an order terminating Mother’s rights as to Child.

ISSUES AND STANDARDS OF REVIEW

¶21 Mother now appeals from the court’s termination order, but her appeal is narrowly targeted. As noted, Mother did not contest best interest at trial, after stipulating that termination of her parental rights to Child would be in Child’s best interest. And here on appeal, Mother does not contest the court’s determination that grounds for termination existed. She does, however, challenge—in three different ways—the court’s determination that DCFS made reasonable efforts toward reunification.

¶22 Her first challenge concerns the evidentiary standard the juvenile court applied in making its reasonable efforts determination. She contends that the court should have, but did not, apply a “clear and convincing evidence” standard in making its reasonable efforts determination. “The applicable burden of proof for termination proceedings is a question of law we review for correctness.” In re G.D., 2021 UT 19, ¶ 36, 491 P.3d 867.

¶23      Next, she challenges the merits of the court’s reasonable efforts determination, and this challenge has two parts. First, she contends that the court erred in denying her motion, made at the conclusion of the State’s case-in-chief, for “judgment as a matter of law.” In a bench trial, a motion for judgment as a matter of law’s “procedural counterpart,” Grossen v. DeWitt, 1999 UT App 167, ¶ 8, 982 P.2d 581, is a motion for involuntary dismissal, In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913, cert. denied, 420 P.3d 704 (Utah 2018). Such a motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case or when the trial judge is not persuaded by the evidence presented.” Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33 (quotation simplified). “Whether a party has established a prima facie case is a question of law which we review for correctness.” In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998).

¶24      Next, Mother challenges the court’s ultimate finding that DCFS made reasonable efforts toward reunification. “A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). “Because reasonableness determinations are fact-intensive, we afford the juvenile court broad discretion in determining whether reasonable reunification efforts were made.” In re S.T., 2022 UT App 130, ¶ 17, 521 P.3d 887 (quotation simplified). “Absent a demonstration that the [reasonable efforts] determination was clearly in error, we will not disturb the determination.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985 (quotation simplified). “A finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640 (quotation simplified).

ANALYSIS

¶25 We first address Mother’s contention that the juvenile court applied an incorrect evidentiary standard in making its reasonable efforts determination. After that, we address Mother’s challenges to the merits of the court’s determination. For the reasons that follow, we are unpersuaded by Mother’s arguments.

I. Evidentiary Standard

¶26      Mother’s first assertion is that the juvenile court needed to make its reasonable efforts determination by clear and convincing evidence—rather than by the lower preponderance of the evidence standard—and that it did not do so. The first part of Mother’s assertion is correct, but the second part is unsupported by the record in this case.

¶27      With regard to what the proper legal standard is, Mother’s position is correct: the juvenile court needed to apply the clear and convincing evidence standard in making its reasonable efforts determination. Neither the State nor the guardian ad litem takes issue, in this case, with Mother’s position regarding the proper legal standard. And this position is clearly supported by statutory mandate. In all cases in which reunification services are offered, the reasonable efforts determination is a necessary part of the termination inquiry—it is mandated by the statutes governing termination proceedings, see Utah Code § 80-4-301(3)(a) (stating that, “in any case in which the juvenile court has directed the division to provide reunification services to a parent, the juvenile court must find that the division made reasonable efforts to provide those services before” terminating parental rights)—and all facts in termination cases must be established by clear and convincing evidence, see id. § 80-4-103(2)(a) (commanding juvenile courts, in all termination cases, to “require the petitioner to establish the facts by clear and convincing evidence”); see also In re Castillo, 632 P.2d 855, 857 (Utah 1981) (stating that the presumption of parental rights “should be overcome only by clear and convincing evidence”); Utah R. Juv. P. 41(b) (discussing “[t]he burden of proof in matters brought before the juvenile court,” and stating that “cases involving the permanent deprivation of parental rights must be proved by clear and convincing evidence unless otherwise provided by law”).

¶28      But the other half of Mother’s contention—that the juvenile court applied a different standard to its reasonable efforts inquiry—is simply not borne out by the record. As an initial matter, examination of the court’s order indicates that it was generally applying the clear and convincing evidence standard in this termination case. With regard to its determination about grounds for termination, the court specified that it was using the higher evidentiary standard, stating that it “finds that DCFS has proven, by clear and convincing evidence,” that grounds for termination are present. And later in its order, it specified that it was making its legal conclusions regarding termination “by clear and convincing evidence.” Significantly, nowhere in its order did the court reference, even obliquely, any other evidentiary standard. Moreover, earlier in the case, in the court’s September 2019 order approving the service plan, the court had indicated its awareness of the correct evidentiary standard, finding at that point, “by clear and convincing evidence,” that fulfillment of the service plan would “constitute reasonable efforts on the part of [DCFS] to finalize the permanency goals.”

¶29 Mother points out, however, that—while the court, in its final order, specified that its grounds determination and its legal conclusions were being made by clear and convincing evidence— the court did not specifically indicate that it was making its reasonable efforts determination by clear and convincing evidence. As noted, it did not indicate the application of a different evidentiary standard; rather, the reasonable efforts section of the court’s final order was simply silent regarding which evidentiary standard was being applied. As Mother sees it, any uncertainty about which standard the court was applying should be held against the court; in particular, she asks us to infer from this uncertainty that the court was applying an evidentiary standard to that section of its analysis that was different from what it specifically applied to the other sections.

¶30      But this is not the way such inferences work. Uncertainty in the record “is not a basis for reversal.” State v. Hummel, 2017 UT 19, ¶ 82, 393 P.3d 314. Indeed, “[u]ncertainty counts against the appellant, who bears the burden of proof on appeal, and must overcome a presumption of regularity as to the record and decision in the trial court.” Id. “Thus, a lack of certainty in the record does not lead to a reversal and new trial; it leads to an affirmance on the ground that the appellant cannot carry [the] burden of proof.” Id.

¶31      We encountered a similar situation in Gerwe v. Gerwe, 2018

UT App 75, 424 P.3d 1113. In that case, a district court determined, after an evidentiary hearing, that a man had fraudulently induced his ex-wife into signing a postnuptial agreement. Id. ¶ 3. But in so doing, the court was silent regarding which evidentiary standard it was applying; it “did not expressly state that [the ex-wife] presented clear and convincing evidence of fraudulent inducement,” but “it never suggested that a lower standard of proof applied.” Id. ¶ 13. On that record, we rejected the appellant’s assertion of error, stating that a “reviewing court will not presume from a silent record that the court applied an incorrect legal standard but must presume the regularity and validity of the district court’s proceedings, and that it applied the correct legal standard, in the absence of evidence to the contrary.” Id. (quotation simplified). We concluded our analysis by stating that “[b]ecause nothing in the record suggests that the court applied something less than the clear and convincing standard, [the appellant] cannot establish error.” Id. (quotation simplified).

¶32 So too here. Mother offers no evidence—aside from the uncertainty engendered by silence—that the juvenile court applied an evidentiary standard other than clear and convincing to its reasonable efforts determination. And as in Gerwe, this is not enough to satisfy Mother’s appellate burden, especially where the court—in two other places in the order—indicated that it was applying the clear and convincing standard.[2] On this basis, we reject Mother’s contention that the juvenile court applied an incorrect evidentiary standard.

II. Reasonable Efforts

¶33      Next, Mother challenges the merits of the juvenile court’s reasonable efforts determination, and this challenge has two parts. First, Mother asserts that the court erred in failing to grant the motion she made at the conclusion of the State’s case-in-chief. Second, she asserts that the court’s ultimate reasonable efforts determination was against the clear weight of the evidence. We address, and reject, each of these arguments, in turn.

A

¶34      At the end of the State’s witness-less case-in-chief, Mother made an oral motion for “judgment as a matter of law.” The court took the motion under advisement, but never issued an express ruling on it; the court implicitly denied the motion when it ruled in the State’s favor on the merits of the reasonable efforts question. Mother challenges the court’s implicit denial of that motion.

¶35      Although Mother referred to her motion as either a motion for summary judgment or a motion for judgment as a matter of law, in bench trials the proper reference is a motion for involuntary dismissal. See In re Trujillo, 2001 UT 38, ¶ 21 n.13, 24 P.3d 972 (stating that “a motion for a directed verdict contemplates only jury trials,” and “[i]n the context of a bench trial, the directed verdict’s procedural counterpart is a motion for involuntary dismissal”); accord Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33. As already noted, the relevant question raised by such a motion—at least where the nonmovant bears the burden of proof on the issue at hand—is whether the nonmovant has, during its case-in-chief, made at least a prima facie case in support of its claim. See Accesslex Inst., 2023 UT App 21, ¶ 33 (stating that, where “the party making [the motion] is the party that does not bear the burden of proof,” the motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case” (quotation simplified)). “A prima facie case has been made when evidence has been received at trial that, in the absence of contrary evidence, would entitle the party having the burden of proof to judgment as a matter of law.” In re J.A., 2018 UT App 29, ¶ 27, 424 P.3d 913 (quotation simplified), cert. denied, 420 P.3d 704 (Utah 2018). Thus, we must consider whether the State—the nonmovant who bore the burden of proof—made out at least a prima facie case in support of its reasonable efforts claim during its case-in-chief.

¶36      Our supreme court has defined “reasonable efforts” as a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified). Thus, in order to make a prima facie showing with regard to reasonable efforts, the State had to produce evidence that would—at least before consideration of any contrary evidence—show that DCFS had made a fair and serious effort to reunify Mother with Child during the reunification period. As noted, the State called no witnesses in its case-in-chief, choosing instead to rely entirely on documentary evidence that included the juvenile court’s previous interim orders and the court reports incorporated into those orders. But despite this unorthodox approach,[3] in our view the State did enough—on the facts of this particular case—to make at least a prima facie showing in support of its reasonable efforts claim.

¶37      The State’s evidence, such as it was, included the juvenile court’s interim orders, and those orders indicated that the court, in its ongoing supervisory role over the proceedings during the reunification period, had made multiple and repeated findings that DCFS had engaged in reasonable efforts to further the permanency goals, the primary one of which was reunification. The court never made a contrary finding, despite Mother having registered some dissatisfaction on this point at various stages of the case. Moreover, those interim orders incorporated the court reports, which included detailed accounts of the measures DCFS took to fulfill the requirements of the service plan, including visiting Child, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with the therapists, gauging Mother’s progress on the service plan, communicating with Mother, and ensuring Child had proper educational, medical, and mental health care. Finally, at the end of the reunification period in November 2020, with a permanency hearing looming, Mother apparently stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The use of the word “continue” in the stipulation could reasonably be taken to mean that Mother was acknowledging that, throughout the entirety of the reunification period up until the date of the stipulation, DCFS had made reasonable efforts to accomplish the permanency goals, including reunification. Thus, in this particular case, the State’s evidentiary presentation, despite its truncated and unorthodox nature, was sufficient to indicate— at least in the absence of Mother’s contrary evidence, which had yet to be presented—that DCFS had made a fair and serious effort to reunify Mother with Child.

¶38      We recognize that Mother was eventually able to point to at least some contrary evidence. For instance, Mother put on evidence about the ongoing friction between herself and the DCFS caseworker, and about the issues that came up regarding initiation of family therapy. In addition, Mother had some colorable arguments to make about the November 2020 stipulation, asserting that the parties’ actual agreement had not in fact included any stipulation about reasonable efforts and that, if any such stipulation had been reached, its scope was limited. But at the time the court was considering Mother’s motion for involuntary dismissal—at the close of the State’s case-in-chief— none of that evidence had been presented. And in assessing whether the State had made out a prima facie case regarding reasonable efforts, the court was not supposed to consider whatever contrary evidence Mother might eventually produce. The prima facie case inquiry is simply whether the State produced sufficient evidence, standing on its own and without considering any rebuttal, to support its claim. And on the facts of this unique case, we conclude that it did.

¶39 For these reasons, we discern no error in the juvenile court’s implicit denial of Mother’s motion for involuntary dismissal made at the conclusion of the State’s case-in-chief.

B

¶40 Finally, Mother challenges the juvenile court’s ultimate determination, made as factfinder after trial, that DCFS had made reasonable efforts to facilitate reunification. As noted already, we review this determination deferentially, giving “broad discretion” to the juvenile court “in determining whether reasonable reunification efforts were made.” See In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985; see also In re A.C., 2004 UT App 255, ¶ 12, 97 P.3d 706 (stating that a juvenile court “is in the best position to evaluate the credibility and competence of those who testify regarding the services that were provided” and to assess the reasonable efforts question). See generally supra ¶ 24.

¶41      Here, the juvenile court listened to the testimony of Mother, the caseworker, and Mother’s therapist, and examined the dozens of exhibits submitted by the parties. This same court had previously been involved in all of the interim review hearings during the reunification period, during which the court assessed DCFS’s reasonable efforts throughout the case. In issuing its ultimate determination, the court took its previous orders into account, but correctly did not treat them as completely dispositive of the question; instead, it considered those orders as potentially persuasive evidence supporting the State’s position, but evaluated that evidence in the context of the rebuttal evidence Mother offered.[4]

¶42 Indeed, the court directly addressed both of Mother’s specific arguments: that the “personal friction” between Mother and the caseworker indicated that the caseworker did not make reasonable efforts, and that the caseworker caused delay in the start of family therapy. With regard to the friction, the court rather astutely noted that child welfare cases “are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” But the court, after reviewing the friction in the context of the entire case, concluded that the disagreements between Mother and the caseworker, while regrettable, did not rise to the level of indicating that the caseworker had failed to provide reasonable efforts. On this record, we cannot say that such a determination is “against the clear weight of the evidence.” See In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640.

¶43      With regard to the delay in family therapy, the court noted that, under the service plan, family therapy was not to begin until both Mother’s and Child’s therapists recommended it, and the court was aware that responsibility for scheduling the therapy sessions, once both therapists were on board, was to be up to the therapists themselves. The court, after reviewing this issue in context, concluded that most of the blame for any delay in family therapy should not be laid at the feet of the caseworker, observing that “DCFS cannot, nor should they be required to hold the hand of every party involved to ensure that those parties are also making some efforts,” and ultimately determined that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.” On this record, we cannot say that this determination is against the clear weight of the evidence either.

¶44 Accordingly, we discern no abuse of the juvenile court’s discretion in its ultimate determination, made as factfinder after trial, that DCFS provided reasonable efforts toward reunification.

CONCLUSION

¶45 Mother has not carried her appellate burden of demonstrating that the juvenile court applied an incorrect evidentiary standard to its reasonable efforts determination. And we reject Mother’s challenges to the merits of the court’s ultimate determination that DCFS provided reasonable efforts toward reunifying Mother with Child during the reunification period.

¶46 Affirmed.

 

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

[1] A transcript of the court’s oral ruling was not included in the record submitted to us.

[2] Moreover, Mother had an opportunity to bring this issue to the court’s attention prior to entry of the order. Recall that the court issued an oral ruling, which was then memorialized by the State into a written order and circulated to Mother for her input. Mother filed a limited, targeted objection to one point in the draft order, but—notably—did not raise any objection to the court’s discussion of the evidentiary standard it was applying to its determinations. Any lack of clarity about the standard being applied could easily have been remedied at that stage. See Jensen v. Skypark Landowners Ass’n, 2013 UT App 48, ¶ 6 n.4, 299 P.3d 609 (per curiam) (stating that a party who made “no objection to the form of the order” could not complain, for the first time on appeal, that the order was “vague and ambiguous”), cert. denied, 308 P.3d 536 (Utah 2013); cf. In re K.F., 2009 UT 4, ¶ 63, 201 P.3d 985 (stating that “[j]udicial economy would be disserved” by permitting an appellant to bring, “for the first time on appeal,” a challenge regarding the adequacy of the court’s findings, because such errors are “easy for a trial judge to correct” and are “best corrected when the judge’s findings are fresh in the judge’s mind,” and because “the only likely remedy is merely a remand to the trial court for more detailed findings”).

[3] It would not have been difficult for the State to call at least one critical live witness—the DCFS caseworker—in support of its reasonable efforts claim. The caseworker was available that day to testify, and indeed did testify when she was called to do so by Mother. We do not go very far out onto the proverbial limb by stating that, in most cases, it would be preferable (and, indeed, advisable) for the State, in reasonable efforts cases, to do more than simply rely on previous interim court orders, and we hope that our decision to affirm the juvenile court in this case does not encourage the State to present similarly truncated cases-in-chief in future reasonable efforts cases.

[4] Considering such orders, as well as Mother’s failure to formally object to them, as potentially persuasive but nondispositive evidence appears consistent with previous decisions by this court in reasonable efforts cases. See In re A.W., 2018 UT App 217, ¶ 31, 437 P.3d 640 (“Father also ignores the several times in the record in which the juvenile court made an unchallenged periodic finding—before its termination order—that DCFS had made reasonable efforts to provide him with reunification services.”); see also In re S.T., 2022 UT App 130, ¶ 21, 521 P.3d 887 (noting that, “[a]t no point did Mother object to the court’s findings or indicate that she needed additional or different services.”); In re A.C., 2004 UT App 255, ¶ 17, 97 P.3d 706 (“It is the parent’s responsibility to demand services if they are not offered prior to the termination hearing.” (quotation simplified)).

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In Re K.K. – 2023 UT App 14 – Abuse and Neglect Adjudication

In re K.K. – 2023 UT App 14

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220051-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1        This is a companion case to and arises out of the same facts involved in In re K.K., 2023 UT App 13, which also issues today. In short,[1] B.K. (Mother) and D.K. (Father) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a petition for custody and guardianship on the grounds that the Children were neglected and abused by Mother and Father. The underlying facts giving rise to the petition were multiple acts of domestic violence, culminating in a physical and boisterous verbal altercation between the couple that occurred on June 22, 2021, and that took place in front of the Children and other witnesses.

¶2        Following an adjudication trial on the petition, during which the juvenile court heard testimony from Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation, the court issued an order adjudicating the Children neglected and abused as to Mother.

¶3        In the adjudication order, the court found, among other things, that Mother and Father had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including on June 22; that when Mother and Father fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware they are sent downstairs because Mother and Father fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶4        As to Mother, the court found she was not yelling back at Father during the June 22 altercation but that she did yell at him on another occasion during which officers were dispatched to the house on a “domestic” call. In addition, the court found that Mother “is not concerned” that the Children witness her and Father fight and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Mother “has failed to protect the [C]hildren from exposure to domestic violence in the home” and that “[Father] and [Mother’s] domestic violence in their home has harmed the[] [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶5        Mother now appeals the juvenile court’s neglect and abuse adjudications, asserting the court erred in determining that she neglected and abused the Children. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. In re E.R., 2021 UT 36, ¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). And we review the juvenile court’s underlying legal determinations nondeferentially for correctness. See In re A.B., 2022 UT 39, ¶¶ 27–28.

ANALYSIS

¶6        Mother argues the juvenile court erred in determining that the State had proved by clear and convincing evidence that she neglected and abused the Children “by exposing them to domestic violence.” 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.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). “For a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407, ¶ 42, 267 P.3d 930 (quotation simplified).

¶7        Because neglect and abuse are distinct, with different statutory definitions, we address Mother’s challenge to the juvenile court’s adjudications separately. With regard to Mother’s neglect adjudication, we conclude the court did not err in determining that she neglected the Children. As to the court’s abuse adjudication, we conclude that Mother, like Father, cannot show prejudice resulting from the abuse adjudication where the underlying facts giving rise to both adjudications are the same. Accordingly, we decline to address the merits of Mother’s challenge to the abuse adjudication.

I. Neglect

¶8        To prove that Mother neglected the Children, the State needed to present clear and convincing evidence that Mother’s “action[s] or inaction[s]” caused the Children to experience a “lack of proper parental care . . . by reason of the fault or habits of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide proper . . . care necessary for [the Children’s] health, safety, morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii). Mother argues the juvenile court’s conclusion that she neglected the Children by “‘allowing’ them to be exposed to her abuse at Father’s hands” does not satisfy the statutory definition of neglect. She further contends that the court “engaged in unwarranted assumptions that are contrary to the well-settled notions underlying the Battered Woman Syndrome” by concluding that Mother’s “behavior constituted ‘nonaccidental’ conduct or that her behavior was due to her ‘faults or habits.’” We disagree.

¶9        The evidence presented at trial included testimony from six witnesses who detailed Father and Mother’s history of engaging in domestic disputes with each other and specifically described the altercation that occurred on June 22. The testimony indicated that two of the children were present during the June 22 altercation and were observed “clinging” to Mother outside in the front yard while Father argued with her, punched her, and threw objects at her. One of the officers who responded to the June 22 altercation testified that the two children who had witnessed the altercation “seemed calm” and were not “distraught or flustered at all.”[2] The officers acknowledged they had been called to Mother and Father’s house prior to the June 22 altercation on a “domestic” call after neighbors reported Mother and Father were screaming at each other.

¶10 Mother also testified that on many occasions she tried to prevent the Children from observing her and Father fight. To accomplish this, “as soon as any argument started” she would send the Children downstairs with her roommate, where they would wait until the fight was over. Despite making this effort, Mother testified that she believed the Children were aware they were sent downstairs to avoid hearing any fighting. Moreover, the evidence also showed that Mother repeatedly allowed Father to return home after the court issued a criminal no contact/protective order and that she minimized the severity of the domestic violence. Mother was also largely unwilling to testify at trial about the June 22 altercation, claiming that she had “trouble remembering” much of what happened. Based on this evidence, the juvenile court found, “[Mother] is not concerned that the [C]hildren are subjected to the argument[s] between [Mother] and [Father]. [Mother’s] demeanor and testimony is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.”

¶11      As described above, in its adjudication order, the juvenile court made several findings in support of its determination of neglect as to Mother. Those findings address Mother’s ongoing relationship with Father and the violent dynamic of their relationship, Mother’s knowledge that the Children were aware of her fights with Father despite her attempts to shield them from the violence, and Mother’s apparent lack of concern or desire to extricate herself from future interactions with Father. Under Utah law, a parent “ha[s] a statutory duty not to knowingly place [their] child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d 76. By voluntarily returning to the abusive relationship with Father, Mother ignored this duty by “potentially subjecting the [Children] to witness, or be the victim of, further abuse.” See id. Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d 749, a parent’s act of domestic violence can have adverse impacts on a child, even if there is no evidence of violence toward the child and even if the child does not directly witness the violence. Relying on “both common sense and expert opinion,” this court recognized that children who are exposed to domestic violence may suffer “direct physical and psychological injuries,” regardless of whether they are physically harmed. Id. ¶¶ 20–21 (quotation simplified). Among other things, children who observe domestic violence “may be taught that violence is an acceptable way to handle issues with loved ones,” which “breeds a culture of violence in future generations. . . . Abused children are at great risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified). Although it is unfortunate that Mother is a victim of domestic violence, her decision to knowingly return to Father and to protect him rather than to protect the Children despite her knowledge that the Children are aware of the abuse in the home satisfies the statutory definition of neglect.

¶12      We recognize that most, if not all, of the domestic violence at issue in this case was committed by Father against Mother and that Mother was therefore often the victim rather than the perpetrator. But under Utah’s statutory definition of neglect, under certain circumstances, even victims of domestic violence can “neglect” their children if they fail to take sufficient steps to protect them from the domestic violence present in the home or if they choose to prioritize their relationship with the perpetrator of the violence over the need to protect their children. After all, neglect can stem from either “action or inaction” on the part of a parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction” in question causes either “lack of proper parental care of a child by reason of the fault or habits of the parent” or “failure or refusal of a parent . . . to provide . . . care necessary for the child’s health, safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii). Here, the juvenile court found that Mother was “not concerned” about protecting the Children from domestic violence and that Mother had a “desire to protect [Father] rather than address the domestic violence that exists in her home.” These findings were supported by substantial evidence presented at trial. And these facts, as found by the court, constitute “neglect” as our legislature has defined that term. In short, Mother’s “inaction” in failing to protect the Children from exposure to domestic violence and prioritizing her toxic relationship with Father resulted in a failure to provide the “care necessary for [the Children’s] health, safety, morals, or well-being” and caused the Children to experience a “lack of proper parental care.” See id.

¶13      Mother resists this conclusion by contending the juvenile court improperly relied on In re C.C.W. for “the proposition that children are harmed by domestic violence in the home.” She asserts the court’s reliance on In re C.C.W. was unwarranted because that case concerned a proceeding to terminate parental rights whereas this case concerns abuse and neglect adjudications. While Mother is correct that the two proceedings are different, those differences do not bear on whether the court could properly rely on the research and studies cited in In re C.C.W. supporting the general proposition that domestic violence is harmful to children. See 2019 UT App 34, ¶ 20. Termination proceedings and abuse and neglect adjudications are both governed by the Utah Juvenile Code, see Utah Code § 80-4-301 (termination of parental rights); id. § 80-3-201 (abuse or neglect proceedings), and the statutory definitions of “neglect,” “abuse,” “harm,” and “threatened harm” are the same in both proceedings, see id. § 80­1-102(1), (37), (58)(a), (92) (providing definitions applicable to provisions of Title 80, Utah Juvenile Code). Accordingly, it does not follow that the court may properly consider the effect of domestic violence in finding neglect in one proceeding but not the other.

¶14      In addition, Mother asserts that the juvenile court “rel[ied] on the unfounded presumption that Mother’s decision to maintain a relationship with Father constituted a conscious failure to protect the Children from exposure to domestic violence.” In so doing, Mother posits that the juvenile court ignored the directive offered in In re C.C.W. cautioning courts “to avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer, or from a battered spouse’s decision to decline to immediately seek help.” See 2019 UT App 34, ¶ 19 n.4. But that is not what happened here.

¶15      In this case, the juvenile court analyzed the evidence before it in adjudicating Mother for neglect. Thus, the court’s conclusion was not based on an unfounded presumption. As previously discussed, the evidence the court considered included testimony that Father had engaged in multiple acts of domestic violence in the presence of the Children. And based on Father’s multi-year track record of assaulting Mother, even after services were provided to him, the court could reasonably conclude that Father is likely to continue perpetrating acts of domestic violence against Mother in the future and that the Children will continue to be exposed to the violence if Mother fails to take action. In short, the court’s determination that Mother failed to provide the proper care for the Children’s health, safety, morals, or well-being by failing to protect them and prioritizing her relationship with Father was based on the evidence presented at trial and not on an unwarranted presumption.

¶16      Finally, Mother misconstrues the directive offered in In re C.C.W. cautioning courts to “avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer.” See id. Mother contends that by adjudicating her for neglect, the juvenile court made an “automatic determination that both the batterer and victim are responsible as a unit,” which in turn results in the victim being blamed for the domestic violence. While we are sympathetic to Mother and acknowledge that extricating oneself from an abusive relationship can often prove difficult, see In re L.M., 2019 UT App 174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say that a parent’s status as a domestic violence victim excuses the parent’s duty to protect the children or provides the parent with license to elevate the relationship with the abuser over the safety of the children. Indeed, the directive offered in In re C.C.W. merely cautions courts to “avoid unnecessarily drawing negative inferences” about a victim’s decision to stay in an abusive relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the court from considering domestic violence issues in their entirety, nor does it provide absolution for a parent who continues to expose a child to domestic violence. To find otherwise would be contrary to precedent. See, e.g.In re L.M., 2019 UT App 174, ¶ 8 (“A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529 (collecting cases and observing that “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety”).

¶17      Accordingly, we affirm the court’s neglect adjudication.

II. Abuse

¶18      The juvenile court determined that Mother both neglected and abused the Children by failing to protect them from exposure to domestic violence and that Father and Mother’s “domestic violence in their home has harmed the[] [C]hildren.” Mother argues the court’s abuse adjudication was in error because the State failed to produce clear and convincing evidence of abuse as it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B), (37)(a)–(b) (defining abuse as including “nonaccidental harm of a child” and “threatened harm of a child” and defining harm as “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning”). Mother raises a fair point that other than applying the general principles set forth in In re C.C.W. to infer harm, the State did not present specific evidence that the Children had sustained harm, and the court made no specific findings—other than that the Children appeared calm during incidents of domestic violence between their parents—that the Children were developmentally harmed or suffered the sort of emotional damage that constituted serious impairment to their growth, development, behavior, or psychological functioning.[3]

¶19      But even if we were to agree with Mother that the juvenile court erred in adjudicating the Children as abused as to Mother, Mother cannot show she was prejudiced by any such error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). Mother claims that being labeled an abuser “negatively affect[s] her ability—going forward—to perform the primary caretaking responsibilities to [the] Children.” But Mother does not demonstrate how the court’s abuse adjudication will affect her more severely or more negatively as this case proceeds than the neglect adjudication will. See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”). Indeed, post-adjudication dispositions turn on the factual circumstances that bring a family into court rather than on the category of adjudication and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See Utah Code § 80-3-405. Here, as found by the juvenile court, whether her inaction is labeled as abuse or neglect, Mother failed to protect the Children from exposure to domestic violence and prioritized her relationship with Father over the well-being of the Children. The services that will be offered to Mother and the Children to remedy these circumstances are not likely to differ based on whether the adjudication is for neglect or abuse. We agree with the guardian ad litem’s assertion that “any or all three categories of adjudication (abuse, neglect, dependency) trigger the same dispositional provisions.” Accordingly, because Mother has not demonstrated how the court’s abuse adjudication will affect her any differently than the neglect adjudication, she cannot show prejudice.[4] See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based on the same facts as the current case, that Father could not show prejudice stemming from the court’s abuse adjudication because the abuse adjudication was based on the same underlying facts supporting the neglect adjudication).

CONCLUSION

¶20 We are cognizant that Mother is a victim of domestic violence, not a perpetrator. Nevertheless, the primary purpose of the State’s petition alleging neglect was to protect the Children, not to punish Mother. Based on the foregoing, we conclude the evidence presented by the State was sufficient to support the juvenile court’s neglect adjudication as to Mother. And even if the juvenile court erred in its abuse adjudication, Mother has not persuaded us that she was prejudiced by any such error because she has not shown how she will be negatively affected by the abuse adjudication over and above the effect of her neglect adjudication. Accordingly, we affirm.

_____________

HARRIS, Judge (concurring):

¶21      I concur fully in the majority opinion. I write separately to offer a word of caution to juvenile courts when it comes to finding that a parent who is a victim of domestic violence has “abused” or “neglected” his or her children by allowing them to be exposed to domestic violence in the home. In my view, Utah’s statutory definitions of the terms “abuse” and “neglect” are broad enough to make it possible, in certain situations, for courts to determine that a domestic violence victim has committed abuse or neglect. But courts should exercise caution in doing so, and should make these rather striking findings only in appropriate cases.

¶22 With regard to neglect, we hold today that the juvenile court’s determination was appropriate in this case, because Mother’s “inaction” in failing to protect the Children from the domestic violence occurring in the home constituted a lack of proper parental care, as well as a failure to provide care necessary for the Children’s health, safety, or well-being. See supra ¶¶ 8–16; see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis Supp. 2022). In my view, the key to affirming this determination, in this case, was the court’s finding that Mother had prioritized her relationship with her abuser over the safety and well-being of the Children. Evidence presented at trial indicated that Mother repeatedly allowed Father to return to the home despite the existence of protective orders making it unlawful for him to be there, and that she was less than fully cooperative with DCFS and law enforcement officials who were investigating the situation. This sort of evidence, to my way of thinking, is critical to any determination that a domestic violence victim has neglected his or her children. Absent evidence like this, domestic violence victims will likely not have committed actions or inactions significant enough to constitute “neglect” of their children.

¶23      And given the differing statutory definitions, it is even more difficult for domestic violence victims to be considered to have “abused” their children than it is for them to be considered to have “neglected” their children. The statutory definition of “abuse” is (justifiably) narrower than the statutory definition of “neglect.” In order to find that abuse has occurred, a court in most cases (that is, in cases not involving sexual exploitation, sexual abuse, human trafficking, or the child’s death) must find either (a) “nonaccidental harm of a child” or (b) “threatened harm of a child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must find harm.”).

¶24 A finding that a child has sustained nonaccidental harm involves a backward-looking determination, one that must be supported by evidence that the child has already been harmed. And the kind of harm at issue—according to strict statutory definition—must be either “physical or developmental injury or damage” or the sort of “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a), (b). I can envision a court, in many cases, being able to make a finding of physical harm without the necessity of expert testimony, but in my view a finding of already-sustained “developmental injury or damage” or emotional damage severe enough to cause “a serious impairment in the child’s growth, development, behavior, or psychological functioning” will often require expert testimony. I think this will nearly always be the case where the question presented is whether a child has already sustained non-physical “harm” as a result of a victim parent failing to protect the child from violence in the home.

¶25      A finding that a child has sustained “threatened harm” is— by contrast—more of a forward-looking inquiry, under the applicable statutory definition. As our legislature has defined it in this context, “threatened harm means actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1­102(92) (emphasis added). A child can sustain “threatened harm” even if the child has not yet sustained actual “harm.” Pursuant to statutory definition, a child sustains “threatened harm” when, through the “actions” or “inactions” of a parent, the child is placed at “unreasonable risk” of future “developmental injury or damage” or “emotional damage” severe enough to seriously impair the “child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92). In cases involving parents who are victims of domestic violence, a juvenile court could perhaps more easily make a finding of “threatened harm” than already-sustained past harm. Indeed, we have already recognized that “domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749. A parent victim’s failure to adequately protect a child from violence in the home could—if the violence was frequent and severe enough, and likely to continue in the future—lead to a supported finding that the parent, through inaction, has placed the child at an unreasonable risk of future developmental damage. It may even be possible, in appropriate cases, for such a finding to be made without expert testimony.

¶26      But in order to reach “abuse” through “threatened harm” in cases involving victims of domestic violence, a court must make specific and supported findings regarding each of the elements of the statutory definition. First, a court must specify that it is finding “abuse” by way of “threatened harm” (as opposed to through a finding of already-sustained “nonaccidental harm”). Second, the court must make a detailed finding of threatened harm on the facts of the case at hand, including specific identification of the “action or inaction” taken by the parent that leads to the “unreasonable risk” of future harm, as well as a satisfactory explanation of why the risk of future harm is “unreasonable.” Third, the court must specify the type of future harm it believes the child is at risk of sustaining, whether it be developmental injury or severe emotional damage, and should explain—with reference to specific evidence in the record—why the court believes the child is likely to sustain that particular type of harm.

¶27 In short, Utah’s statutory definitions of “neglect” and “abuse” are broad enough to allow courts, in appropriate cases, to find that a parent who is the victim of domestic violence has committed neglect or abuse by failing to protect his or her child from domestic violence in the home. But courts should exercise caution in so doing, and should reserve such findings for those cases in which the domestic violence is severe and sustained and in which the victim parent has taken specific actions or inactions aimed at prioritizing his or her relationship with the abuser over care and protection of the children.

¶28      In this case, I concur in the majority’s view that the court made appropriate findings of neglect with regard to Mother. I also concur in the majority’s decision not to reach the merits of the propriety of the court’s findings regarding abuse as to Mother, but I register serious reservations about the adequacy and sufficiency of those findings, and urge courts to exercise caution in making neglect and abuse determinations in situations like this one.

 

______________

[1] A more fulsome description of the relevant facts and procedural history can be found in In re K.K., 2023 UT App 13, the case in which we adjudicated Father’s appeal. In this case, we adjudicate Mother’s appeal.

[2] The juvenile court did not take this evidence to mean that the Children had not been adversely affected by their parents’ inappropriate behavior. Rather, the inference drawn by the court was that the parental conflict had been so pervasive that the Children had become somewhat numb to it.

[3] We do not intend to suggest the State could never demonstrate that a parent who is the victim of domestic violence has “abused” his or her children, as that term is statutorily defined. We agree with the general sentiments expressed in the concurring opinion that such a path is possible but is more difficult than demonstrating “neglect” and would require specific evidence and findings. See infra ¶¶ 22–27.

[4] In fact, a review of the underlying docket in Mother’s case reveals that Mother and the Children have done so well in their treatment and services that the juvenile court released the Children from DCFS’s protective supervision and terminated the court’s jurisdiction last fall.

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In re K.K. – 2023 UT App 13

In re K.K. – 2023 UT App 13

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220050-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Freyja Johnson, Emily Adams, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        D.K. (Father) and B.K. (Mother) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a child welfare petition for custody and guardianship on the grounds that the Children were neglected and abused by Father and Mother. Following an adjudication hearing on the petition, the juvenile court issued an order adjudicating the Children as neglected and abused.

¶2        Father now appeals the juvenile court’s abuse adjudication, arguing that the State failed to prove by clear and convincing evidence that he abused the Children. We affirm.

BACKGROUND

¶3        In 2019, when the Children were four years old, the State filed a petition seeking protective supervision services based on allegations that Father and Mother had engaged in repeated acts of domestic violence in front of the Children. Thereafter, Father and Mother agreed to engage in services voluntarily, and the State eventually dismissed its petition.

¶4        Two years later, however, Father and Mother again engaged in a series of domestic violence incidents that involved law enforcement. In May 2021, Father called the police and told them that Mother had “beat him up.” When officers arrived on scene and talked to Father, he told them he and Mother were “fighting about money” and that Mother “swung to hit him but never touched him.” On June 10, officers were again dispatched to the family home on a “domestic” call because Father and Mother were “screaming at each other with the [C]hildren in the home.” When officers arrived, they could hear the screaming. Father was uncooperative with the officers, but he eventually left the home. However, Father returned to the home later that same night.

¶5        On June 22, Father and Mother were involved in an altercation that led the State to seek custody and guardianship of the Children. During this altercation, Father and Mother were arguing inside the home. Mother was sitting on the couch, and Father sat on top of her demanding that she give him the keys to the car. Father then “head butted” Mother and told her to get out of the home, which she did. Once Mother was outside, Father followed her and began punching her “with a closed fist on the side of her stomach.” Father proceeded to grab a large rock and chase Mother around the car, “acting like he was going to throw the rock at her.” The Children were outside of the home for the duration of the altercation and witnessed Father chasing Mother and hitting her. Several neighbors also witnessed the altercation and called the police. When officers arrived, Father was arrested and taken to jail.

¶6        After Father’s arrest, Mother completed a lethality assessment, an evaluation given to assess the level of danger an abused person faces, which resulted in a score of high risk. Mother did not seek a protective order for herself or for the Children during the eight days Father was in jail. However, due to the severity of the prior altercation, the district court entered a criminal no contact/protective order on July 1. The order prohibited Father from residing with Mother and the Children.

¶7        On July 8, a caseworker from the Department of Child and Family Services (DCFS) went to the home for an unannounced visit. During the visit, the caseworker found Father outside; Father reported that Mother was inside sleeping. Father allowed the caseworker to interview the Children. During the interview, the Children reported that Father and Mother “fight and yell” and “hurt each other’s bodies.” Father was subsequently arrested for violation of the criminal no contact/protective order. Thereafter, the caseworker attempted to talk to Mother, who had been inside sleeping, but Mother refused to speak with the caseworker.

¶8        Based on the foregoing, the State filed a petition for custody and guardianship of the Children on the grounds that they were neglected and abused based on Father and Mother engaging in domestic violence in the home. Following a shelter hearing, the juvenile court determined the Children should remain in Mother’s custody for the time being but ordered Mother and the Children to have “absolutely no contact” with Father and that Mother “immediately notify law enforcement” if Father appeared at the home.

¶9        Following a series of pretrial hearings, the matter proceeded to an adjudication trial in December 2021. At trial, the State presented the testimony of six witnesses: Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation.

¶10 According to the neighbors, Father and Mother were arguing about car keys. As Father approached Mother, “she put her arms out to stop him . . . and he slapped her hands aside.” Father then began punching Mother “haymaker style” to her side and stomach. The punching continued “for a minute or two,” and Father connected “five to ten” times. After the punching stopped, Father chased Mother around the front yard, “throwing rocks” and “bikes and other toys” in the direction of Mother, although the neighbors did not see any of the objects hit Mother.

¶11      The neighbors testified that during the altercation, two of the Children were in the front yard “standing behind [Mother]” and “clinging” to her. Mother was positioned between Father and the two children, acting as a “buffer” between them. One neighbor opined that he did not “believe any [of Father’s] aggression was towards the children,” and that “at no[] point did [he] think [the two children] were in any sort of danger.” However, the two children were outside the entire time, “seeing everything.”

¶12      In addition, one neighbor testified that she had witnessed Father and Mother “screaming” at each other multiple times in the presence of the Children prior to the June 22 altercation. Moreover, the neighbor had witnessed Father yelling at the Children twice and had observed that the Children “are terrified and trying to do whatever [Father] says to not be in trouble.”

¶13      The responding officers testified next. One officer testified that after arriving at the scene on June 22, he interviewed Mother, who told him that she had been arguing with Father over car keys. During the argument, Father “sat down on her” to keep her from leaving, headbutted her in the forehead, and “punched her in the back of the leg.” After Mother jumped out the window to the front yard, Father followed her and the two continued arguing. Father chased Mother around a vehicle parked in the front yard; once he caught her, he began “punching her in the side underneath her arms with a closed fist.” Mother was able to break away, but Father chased her with a rock in his hands. Mother told the officer the Children were outside with her during the altercation.

¶14      The officer also interviewed Father about the altercation. Father said he was “upset” because Mother hid the car keys from him but that “nothing got physical.” Father told the officer he and Mother had argued and run around the vehicle in the front yard. Father indicated that he had picked up a rock and held it over his head, but he did not throw it, nor did he intend to.

¶15      Lastly, the officer testified regarding his observations of the Children. When the officer arrived at the scene, the Children were inside the house. The officer interviewed Mother while she was standing at the front door. During the interview, the officer saw “at least two” of the Children standing by the front door behind Mother and “one of the kids popped his head outside” and asked for stickers. Officer opined that the Children’s demeanor “seemed calm.” The Children seemed “a little upset that some toys were . . . strewn about the front yard,” but otherwise they did not seem “distraught or flustered” by the altercation.

¶16      Mother testified that the June 22 incident started when she refused to give Father the keys to the car. Mother explained that she could not remember all the details about the altercation because she has “trouble remembering things.” However, she did remember that the altercation began when Father headbutted her in the house. After the headbutt, Father and Mother went outside to the front yard. Although Mother did not remember whether Father hit her in the yard, she recalled that he “didn’t follow [her] around the yard,” that he picked up a basket and “threw it up in the air” but not “at” her, and that he “picked up a rock” but did not chase her while holding it. Mother maintained that the Children had not observed the altercation because they were downstairs inside the house with a roommate where they stayed until the officers arrived.

¶17      Mother also testified that the Children “were never present for full on arguments or yelling.” She explained that “as soon as any argument started,” her roommate would take the Children downstairs so they would not be able to hear the fighting. Although Mother did not believe the Children had been impacted by the fighting, she did believe the Children were aware that they were sent downstairs to avoid hearing any fighting.

¶18 Father testified last. When asked about the June 22 altercation he invoked his Fifth Amendment right not to testify because criminal charges were pending against him regarding that incident. But Father explained that “before” he and Mother would engage in any verbal arguments, the Children would go downstairs.

¶19      After considering all the evidence, the juvenile court issued an adjudication order. In the order the court found, among other things, that Father and Mother had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including the one on June 22; that when Father and Mother fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware that they are sent downstairs because Father and Mother fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶20 As to Father, the court drew a number of adverse inferences based on his decision to invoke his constitutional right to silence when asked specific questions about the June 22 altercation. And as to Mother, the court found that she “is not concerned” about the Children witnessing her and Father fighting and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Father “failed to provide proper care necessary for the health, safety, morals and well-being of the children in that he has engaged in domestic violence with [Mother], and [both Father and Mother] failed to protect the [C]hildren from exposure to domestic violence in the home.” The court also concluded that “[Father] and [Mother’s] domestic violence in their home has harmed [the Children]” and, accordingly, adjudicated the Children as neglected and abused as to Father.

ISSUE AND STANDARD OF REVIEW

¶21 Father now appeals only the juvenile court’s abuse adjudication, arguing that the court’s ruling was in error because the State failed to prove by clear and convincing evidence that he had harmed or threatened harm to the Children. “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. Id. ¶ 15. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). However, the question of whether the juvenile court properly applied the governing law to the facts of the case presents “a law-like mixed question subject to nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.

ANALYSIS

¶22      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.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

¶23      As relevant here, “abuse” is defined as the “nonaccidental harm of a child” or the “threatened harm of a child.” Utah Code § 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law, a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91. “Harm” includes “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened harm” is defined as “actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” Id. § 80-1-102(92).

¶24      As applied to this case, to satisfy the clear and convincing standard, the State “needed to present evidence that would allow the [juvenile] court to conclude that it was very highly probable that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44, ¶ 9 n.3 (quotation simplified). In reaching this conclusion the court may properly “infer harm” based on the evidence presented. Id. ¶ 14. However, the court may not “speculate” about the existence of harm absent clear and convincing evidence demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.

¶25 After considering the evidence presented during the adjudication trial, the juvenile court concluded the Children were abused because “[Father] and [Mother’s] domestic violence in their home has harmed [the Children].” Father argues the court’s conclusion was in error because the State failed to produce clear and convincing evidence that he physically harmed the Children or that the Children were developmentally harmed or emotionally damaged by observing Father assault Mother and Father and Mother argue. But even if we were to agree with Father that the State failed to present sufficient evidence that Father harmed the Children and were to agree that the juvenile court erred in adjudicating Father as abusing the Children, Father has not demonstrated that he was prejudiced by the alleged error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). As noted above, the court adjudicated the Children as both neglected and abused, and Father appeals only the court’s abuse adjudication. Although Father is correct that “[a]buse and neglect are statutorily defined and given ‘distinct statuses’” and that “[u]nder the statutory definitions . . . abuse requires a higher level of improper conduct from a parent than neglect,” that distinction has no bearing in this case—and Father has not shown that it is likely to have any bearing in the future—because the court’s adjudications of neglect and abuse were based on the same underlying incidents of domestic violence.

¶26 When a juvenile court adjudicates a child as either neglected or abused, that determination brings the child within the jurisdiction of the court and allows the court to enter dispositional orders. See Utah Code § 80-3-402. The dispositions available to the court do not hinge on whether the child was adjudicated as neglected or abused. Instead, dispositions are tied to the factual findings about what is going on in the case and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See id. § 80-3-405.

¶27 Here, the juvenile court’s disposition is governed by the need to address Father’s commission of domestic violence in the presence of the Children and the risk such behavior will continue. Services to address this behavior will not differ whether the underlying adjudication is labeled as neglect or abuse because the court’s neglect determination was based on the same underlying facts as the abuse determination: here, Father’s failure to protect and to provide proper care for the Children as a result of his engaging in acts of domestic violence.[1]

¶28      Father cites this court’s decision in In re C.M.R., 2020 UT App 114, 473 P.3d 184, for the proposition that Father was harmed by the court’s abuse adjudication, asserting that the findings of abuse in the adjudication order “will form the basis for whether [Father] is able to comply with the requirements of [any service plan] going forward and whether [Father] can be reunited with the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R., who was potentially prejudiced by entering admissions to allegations regarding a specific additional incident of abuse at the adjudication hearing, Father’s abuse adjudication was based on the exact same underlying set of facts as his neglect adjudication. In this case, Father has not challenged the juvenile court’s neglect adjudication, nor has he challenged the court’s underlying factual findings—which support both the neglect and the abuse adjudications—that he assaulted Mother in the presence of the Children and repeatedly engaged in heated verbal arguments with her. Those underlying actions, which form the foundation for both adjudications, are the reason why he “can only have supervised visitation with [the] Children” and why “[h]e is not allowed in the home,” and not because the court adjudicated the Children as abused in addition to neglected. Because Father has not challenged the neglect adjudication or demonstrated how the ramifications flowing from this unchallenged adjudication would be less severe than those resulting from an abuse adjudication, he has not demonstrated that he has sustained any prejudice as a result of the court’s abuse adjudication.[2] See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”).

 

CONCLUSION

¶29 On appeal, Father does not challenge the juvenile court’s findings that he committed domestic violence in the presence of the Children or that those actions resulted in him neglecting the Children by failing to provide them proper care and to protect them from exposure to domestic violence. Under these circumstances, even if the juvenile court erred in its separate abuse adjudication—a conclusion we stop short of reaching—Father has not demonstrated he was prejudiced by any such error because he has not challenged the court’s neglect adjudication or the facts underlying it, which are the same facts underlying the court’s abuse adjudication, and any court-ordered disposition will be based upon Father’s own acts and not the adjudication of abuse.

¶30 Affirmed.

______________

[1] In his reply brief Father argues he was harmed by the juvenile court’s abuse adjudication because “an abuse adjudication goes into a central abuse registry system managed by DCFS” and “the information in that registry is used for licensing purposes and prevents individuals who have been adjudicated of abuse from holding licenses in certain professions.” But this argument misses the mark. While Father correctly notes that the abuse registry system—called the Management Information System (the MIS)— can be accessed by the State for all future cases involving Father, see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part” of the MIS called the Licensing Information System (the LIS), see id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts relevant to each child welfare case, whereas the LIS is maintained for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an individual on the LIS may be prohibited from, among other things, holding licenses in certain professions, see id. § 80-2-708(2)(a)(v), inclusion on the LIS is not automatic in every child welfare case. Rather, the LIS identifies only individuals found to have committed a “severe type of child abuse or neglect.” See id. § 80-2-708(1). Because the court did not adjudicate Father as severely abusing the Children, inclusion on the LIS does not automatically follow, and Father has not asserted that he has been—or is likely to be—included therein. Accordingly, Father has not demonstrated that, in this case, he has sustained any prejudice as a result of the juvenile court’s abuse determination.

[2] Indeed, in the juvenile court’s dispositional order, entered approximately two months after the adjudication order, Father’s primary responsibility is to “complete a domestic violence/mental health assessment . . . and follow any and all of the recommendations made.”

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From Pro Publica: Barricaded Siblings Turn to TikTok While Defying Court Order to Return to Father They Say Abused Them

There is far more to this story than the headline reveals.

From Pro Publica: Barricaded Siblings Turn to TikTok While Defying Court Order to Return to Father They Say Abused Them

https://www.propublica.org/article/parental-alienation-utah-livestream-siblings#:~:text=Two%20siblings%20in%20Utah%20have,had%20sexually%20abused%20the%20children

Is there any question whether the court would benefit from hearing testimony from these kids? Even if, arguendo, the court were to discover these kids are liars?

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

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In Re A.H. – 2022 UT App 114 – Termination of Parental Rights

2022 UT App 114

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF

A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.

Opinion

Nos. 20210353-CA and

20210354-CA

Filed October 6, 2022

Fourth District Juvenile Court, Provo Department

The Honorable Suchada P. Bazzelle No. 1145453

Alexandra Mareschal, Attorney for Appellant N.J.H.

Kirstin H. Norman, Attorney for Appellant S.H.

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

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYA N M. HARRIS authored this Opinion, in which

JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]

HARRIS, Judge:

¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.

BACKGROUND

¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.

¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.

¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.

¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.

¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.

¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.

¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.

¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.

¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.

¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.

¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.

¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.

¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.

¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.

¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.

¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.

¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.

¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.

¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.

¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.

¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.

¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.

¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “will be what’s best for them.”

¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.

¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.

¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”

¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.

ISSUE AND STANDARD OF REVIEW

¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. 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 E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. 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. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. See In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but 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.[8]

ANALYSIS

¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see also In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).

¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” See id. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.see also Santosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).

¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.

¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. See In re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).

¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:

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. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.

Utah Code Ann. § 80-4-104(8). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” See id. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” See id. § 30-3-10(2)(o) (LexisNexis 2019).[9]

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

¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,

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

In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that order termination of parental rights without appropriately exploring “feasible alternatives to termination” have not properly applied the second part of the two-part termination test. See, e.g.In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).

¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.

¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.

¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g.In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).

¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.

¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see also In re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.

¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.

¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.

¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]

¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.

¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. See In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. See In re B.T.B., 2020 UT 60, ¶¶ 66–67.

¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. See In re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, 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. See In re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.

¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest

Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.

¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.

¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. 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. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.

Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.

¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.

¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.

¶55 Moreover, we 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. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that 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.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” See In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that 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. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.

¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.

¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. See In re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.

CONCLUSION

¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder 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. See In re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October

2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, see id. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.

 

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

[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.

 

[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”

[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.

 

[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.

 

[6] See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (Mar. 13, 2020), https://www.utcourts.gov/alerts/docs/20200311%20-%20Pandem ic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3V3Z].

[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.

[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.

[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.

[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.

[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann. § 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see also id. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).

[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.

[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.

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Is the Johnny Depp divorce trial actually newsworthy?

The divorce trial wasn’t all that newsworthy or memorable (celebrities divorcing is expected), it’s his defamation trial against his ex-wife that is newsworthy. Why? 

Although his defamation case is not as relevant to the country as news that affects us all more directly (like economic news), it is highly relevant in the field of divorce and family law because it has brought nationwide attention to a problem we lawyers have known about forever but that others haven’t: the shabby treatment of men in domestic relations law. 

As recently as one generation ago, the thought of a man being a domestic violence victim was almost unthinkable. That’s not hyperbole. It was literally almost unthinkable. I’m not suggesting that women didn’t have their own legal prejudices to overcome (they clearly did then and to a lesser extent today, they still do), but it was an open secret that, with rare exception, the law ignored male domestic violence victims. 

On second thought, “ignore” is not the most accurate term because that would imply that the law didn’t pay any attention to male domestic violence victims, and that’s not true. It did pay some attention to them, but in the form of arresting, charging, and prosecuting them if they had the guts to speak up. 

What makes Johnny Depp’s defamation action against Amber Heard newsworthy today is because it focused the media’s attention (and thus focused the country’s attention) on a serious problem that needs and deserves to be solved now, not solved eventually. Johnny Depp’s defamation action against Amber Heard reveals: 

– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend; 

– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend, while claiming—and by claiming—to be the victim herself; and 

– the depth and breadth of institutionalized sexual discrimination that pervades domestic violence laws and their enforcement. 

– that it was (and largely still is) that combination of: 

    • 1) believing that men generally/realistically can’t be victims of domestic violence at the hands of women; and 
    • 2) blaming and prosecuting the man when a man complains of domestic violence that leads so many male domestic violence victims to keep silent (under such circumstances, who can blame them?) 

In fact, while men commit more acts of domestic violence that are more severe than those of women, women commit ever so slightly more “intimate partner” (i.e., domestic) physical violence than do men (30.6% women victims, 31% men victims, according to the CDC). 

Johnny Depp’s defamation suit against his ex-wife is helping to dispel the myths: 

  • that women don’t commit domestic violence against men; 
  • that there are male domestic violence victims (some people really do find that idea surprising); and 
  • that presuming a woman who claims to be a domestic violence victim must be a victim (i.e., “believe all women”) is ridiculous. “Start by believing” is equally ridiculous. Start by investigating. Presume nothing. 

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

https://www.quora.com/Is-the-Johnny-Depp-divorce-trial-actually-newsworthy/answer/Eric-Johnson-311 

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How can I make my abusive husband divorce me?

Short of holding the proverbial gun to his head (i.e., forcing him to do so against his will), you can’t.  

While you might contrive to motivate your husband to file for divorce against you by committing marital fault yourself, that might cause the court to disfavor you when making the rulings and judgments in the divorce, so you don’t want to go that route.  

If you want your husband to be the one to file for divorce so that you can claim aggrieved/martyr status, you may have to wait a long time, if he ever does in fact file for divorce.  

The good news is that if you want a divorce in the United States you do not have to wait for your husband to file for divorce to obtain a divorce. You can file for divorce yourself, and you can do so without having to blame him for anything (this is what a “no-fault divorce is; obtaining a divorce without having to allege you or your husband is at fault). 

If you are afraid that you won’t be awarded alimony or child custody or some other thing or benefit in the divorce action if you file for divorce, that’s likely not the case (I can’t speak for divorce law in all jurisdictions, but I am not aware of any U.S. jurisdiction that “punishes” a spouse merely for being the one to file for divorce).  

Besides, if your husband is abusing you—AND YOU CAN PROVE THAT (as opposed to merely asserting it in a “your word against mine” situation)—then you’re not only well within your rights to be the one to file for divorce, you are clearly justified in filing for divorce. No decent court is going to fault you for filing for divorce to escape abuse.  

Go meet with an attorney. Find out more about how the law governing divorce works in your jurisdiction. Determine what your options are, balance the risks against the benefits. Learn what you can and should do to prepare for divorce as fairly and successfully as possible.  

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

https://emotionalabusesurvivor.quora.com/How-to-make-my-abusive-husband-divorce-me?__nsrc__=4  

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How can I help my stepdaughter get away from an abusive mother?

How can I help my 12-year-old step daughter get away from an emotionally abusive mother? 

Tell the child’s father (your husband) about the trouble and have him handle it. It’s not legally your fight. You should certainly share your observations and your suggestions, if sought, and you should offer to help in any reasonable way your husband my want or need you to help. But if Dad’s not on board, then no matter how much you want to help, it’s not your place to go it alone. 

Be supportive of your step-daughter and of your husband, but don’t be the one who initiates anything with the mother or the courts. Again, it’s not legally your fight. If you raise the concern you might do your step-daughter’s cause (and both her credibility as a victim and your credibility as a witness) a disservice by looking like a busybody, a “jealous wife” trying to smear the child’s mother to gain the child’s and your husband’s favor and loyalty.  

https://www.quora.com/How-can-I-help-my-12-year-old-step-daughter-get-away-from-an-emotionally-abusive-mother/answer/Eric-Johnson-311  

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

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