Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant
Blair T. Wardle, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.
BACKGROUND
¶2 One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:
Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?
Meyer: Yes, she’s fine.
Father: How did she get those marks?
Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?
Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.
Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.
¶3 After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.
¶4 Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.
¶5 Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”
¶6 Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.
¶7 The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.
¶8 The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.
¶9 Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.
¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.
¶11 In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.
¶12 The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.
¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”
¶14 When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”
¶15 The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.
¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”
¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”
¶18 Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”
¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.
¶20 In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”
¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.
¶22 Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.
ISSUE AND STANDARD OF REVIEW
¶23 Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,
Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.
the result would have been more favorable to the defendant.” Id. (cleaned up).
ANALYSIS
Similar Motive and Opportunity
¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.
¶25 In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.
¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).
¶28 Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.
¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).
¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.
¶31 Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g., id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.
Prejudice
¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).
¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.
¶34 Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.
¶35 In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.
¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).
¶37 We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.
¶38 The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”
¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.
CONCLUSION
¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.
[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.
Thank you for your question, and forgive me for approaching this question in a way that may not answer your question as directly as it could be; I hope you will find my answer enlightening just the same.
If my purely selfish desires regarding particular controversies that I’d like to handle as a lawyer wouldn’t affect real people’s lives, then I’d love, as a divorce and family law attorney, to represent one of the parents in a case where 1) neither parent wants sole custody of the children and 2) each parent wants to foist custody of the children on the other.
Why?
Because it would shine a light on the moral and intellectual bankruptcy of the belief that it is somehow wrong to award joint equal physical custody of children to two equally fit and loving parents who both desire to be as involved in their children’s lives as possible.[1]
How?
Because the court would find itself in the unusual position of dealing with parents fighting to get as little time with the children as possible and thus find itself having to formulate and make arguments forboth parents exercising custody of their children as much as possible (instead of trying to justify an unequal custody award where equal custody could clearly work or at least merit a try).
The cognitive dissonance would be glorious—absolutely glorious—to behold. The infirmity of the “arguments” for denying two fit, loving parents equal custody would be laid bare for all to see.
Not every parent is fit to exercise joint or sole physical custody of his/her child, but parents who are 1) fit and loving; 2) desirous of ensuring their children are reared as much as possible by both of their parents; and 3) live in close enough proximity to each other to make joint equal physical custody not merely feasible but beneficial to the minor children: A) should have their parental rights upheld to the fullest extent possible by awarding joint equal physical custody because B) the “best parent” for the children is both parents.
The idea that we presumptively divide marital assets equally in divorce because that is presumptively fair is the same reason we should presumptively award joint equal physical child custody. If the presumption of dividing marital assets equally is rebutted by showing, for example, that a spouse materially dissipated marital assets or wrongfully diminished their value, then clearly an equal division of the assets would not be fair. Likewise, if the presumption of awarding equal custody is rebutted by showing that it would be deleterious to the children in some material way, then an equal custody award would not be fair to the children.
Yet the laws of most states in the U.S.A. do not adopt a presumption of joint equal physical custody (but I should note that currently the legislative trend is toward adopting presumption of equal custody), and even among those states that do, many judges in those states disfavor equal physical custody awards.
For all the good sense equal physical custody makes, it is surprisingly (scandalously) difficult to obtain an equal physical custody award.
———-
[1] To quote the Core Principles of the National Parents Organization (sharedparenting.org):
Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce;
Equality between genders has been extended to every corner of American society, with one huge exception: Family Courts and the related agencies; and
The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
STATE OF UTAH, IN THE INTEREST OF G.B. AND A.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
T.R.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210396-CA
Filed August 4, 2022
Fifth District Juvenile Court, Cedar City Department
The Honorable Troy A. Little
No. 1195807
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L. C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA
HAGEN concurred.[1]
TENNEY, Judge:
¶1 The Division of Child and Family Services (DCFS) removed G.B. and his maternal half-brother, A.C., from their home in connection with their mother’s arrest on drug-related charges and reports of domestic violence at the home. The juvenile court later adjudicated the two children as “abused and neglected,” and as part of this determination, it made a subsidiary finding that G.B.’s father, T.R.B. (Father), “has issues related to the use of illegal substances.” Based on this finding, the court ordered Father to complete a substance abuse evaluation and submit to random drug testing.
¶2 Father now challenges the juvenile court’s abuse determination as well as its disposition order. For the reasons set forth below, we affirm.
BACKGROUND
Petition for Protective Custody
¶3 In February 2021, two-year-old G.B. and six-year-old A.C. were living with Father and their biological mother (Mother). Father is G.B.’s biological father, but he’s not A.C.’s. That month, DCFS filed a verified petition seeking protective custody of the children on the basis that they were “abused, neglected, or dependent.” The petition set forth several sets of facts in support of the “abuse, neglect, or dependency” allegations.
¶4 First, the petition alleged that Mother and Father “had recently engaged in Domestic Violence” and that the children had been “exposed” to that domestic violence. It alleged that when police responded to a recent domestic disturbance at the home, Mother told officers that Father had “pushed [her] into the tub [and] rammed her head into the wall, before throwing her into the wall.” It also noted that A.C. reported that Mother and Father “say mean words to each other,” that A.C. “has had to go upstairs so that he would not have to hear the fighting,” and that Father “broke his door when upset on one occasion.”
¶5 Second, the petition alleged that DCFS had recently received “information” indicating that Father “had hit a child on the back hard enough to leave bruising.”
¶6 Third, the petition made a number of allegations about the living conditions at the family home. Of note, it alleged that the home was “observed to have broken pieces of glass outside” and “a nail . . . in close proximity to the children’s toys.” It also alleged that the “children were observed between February 8, 2021 and February 12, 2021 to be dirty, [with] hair so messy that knots had to be cut out” and “feet which were black.”
¶7 Finally (and most significantly for purposes of this appeal), the petition included several allegations about illegal drug use by both Mother and Father.
¶8 With respect to Mother, the petition asserted that she had recently been arrested for driving while intoxicated and that the arresting officer had discovered illegal drugs and drug paraphernalia in her backpack. The petition also detailed other instances in which illegal drugs or drug paraphernalia had been found near Mother, including an instance in which drugs and paraphernalia were found in a place that “would have been accessible by the children.”
¶9 The petition further alleged that Father “has issues related to the use of illegal substances.” According to the petition, “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.” The petition also alleged that when police responded to the domestic disturbance described above, Mother told them “that she and [Father] got into an argument after she discovered [Father] and another individual getting ready to use substances.” According to the petition, responding officers had searched a “camp trailer” on the property and found “several pipes, tinfoil with heroin residue, a burned spoon, and syringes.”[2]
¶10 The petition did note, however, that Father “denied any use of illegal substances or that he was aware the Mother used illegal substances.” And it further noted that Father had “claimed [that] any paraphernalia” found in the trailer “belonged [to his friend].” But the petition also alleged that about two months after the paraphernalia was found in the trailer, Father refused to let a DCFS caseworker inside that trailer and declined to take a drug test. And it alleged that Father then “admitted” to the caseworker that he and Mother smoked cigarettes in the trailer where the drug paraphernalia was found.
Pretrial Proceedings and Adjudication Hearing
¶11 The juvenile court held a shelter hearing after the petition was filed. At the close of the hearing, the court approved the removal of the children and placed them in DCFS’s temporary custody.
¶12 On March 23, 2021, the court held a pretrial hearing. At that hearing, Mother responded to the allegations in the petition pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that while she neither admitted nor denied the allegations, she agreed that the court would treat the allegations as 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.”). Father continued to deny the allegations pertaining to his substance abuse, however, so the court scheduled an adjudication hearing to address the allegations against him. The court also found the children to be neglected and abused by Mother and ordered DCFS to develop a child and family service plan for the family and each child, to set a primary permanency goal of reunification, and to provide reunification services to Mother. That plan required Mother to, among other things, “participate and engage in a parenting program to increase parenting knowledge and behavior.” See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis Supp. 2021) (“[C]hild and family plans shall address problems that . . . keep a child in placement . . . .”).
¶13 At his adjudication hearing, Father entered a rule 34(e) plea of his own regarding most of the allegations in the petition, but he still denied the allegation that he “has issues related to the use of illegal substances.” The hearing was accordingly limited to determining whether Father had “issues related to the use of illegal substances.” As a further point of specificity, Father did not dispute that drug paraphernalia was “found on the property”; instead, Father only disputed that the paraphernalia “pertain[ed] to him.”
¶14 The State presented three witnesses: an officer (Officer) who was present when police found the drug paraphernalia in the camp trailer, Mother, and the DCFS investigator (Investigator) assigned to the case.
¶15 Officer testified that when he responded to the domestic disturbance, Mother told him that she and Father started fighting because Father “was out with his girlfriend in the camp trailer using drugs.” According to Officer, Mother told him she “had seen [Father] using out [in the trailer] many times.” Officer also testified that another officer found drug paraphernalia in the trailer that day, including “several used syringes,” “used tinfoil with burn marks on it consistent with smoking illegal substances,” “a pipe or two,” and “a spoon with burnt residue in it.” Officer further testified that he spoke with Father on the phone a week later and that Father admitted during that conversation that his friend “used drugs . . . out in the trailer.” Finally, Officer testified that Father offered to “submit to a drug test” but that Officer never actually had him complete one.
¶16 In her testimony, Mother confirmed that she had told police that Father “had been using illegal substances in the trailer on the property.” She also confirmed that she had reported that Father “was using one gram of heroin daily.” But Mother also claimed that she had only “made an assumption that he was using heroin” because she “had picked it up for him” and that she “had never actually seen him doing it.” Mother also testified that she and Father “smoke[d] cigarettes” in the trailer. On cross-examination, Mother stated that she was “satisfied that [Father] was not using drugs” after seeing the results of a drug test that he had taken for work in March 2021.
¶17 Finally, Investigator testified that he spoke with Father in February 2021 and that Father’s “pupils were very pinpoint” at that time. Investigator said that when he asked Father about Mother’s drug use, Father “claimed that he didn’t know anything that was going on with her.” Investigator further testified that when he asked to see the trailer where police had found drug paraphernalia, Father “den[ied him] access.” Investigator said that Father also initially “claimed it wasn’t his trailer . . . and that just no one goes in it.” But when Investigator pressed, Father “admitted that he goes inside to smoke cigarettes.” Investigator said that he asked Father to take a drug test but that Father “declined.” Finally, Investigator testified that he spoke with Mother in February 2021 and that Mother told him that she and Father “had used together, that she was using more than him, specifically heroin, but that they were using together daily.”
¶18 After the State rested, Father testified. He claimed that he had not “used any illegal substances” “in the last five years” and that he takes “random drug tests and at least one drug test a year” for his work as a truck driver. Father also claimed that he had passed drug tests administered by DCFS somewhere between 18 and 24 months earlier.
¶19 When asked about the trailer, Father said that it belonged to his friend and that he was “just allowing her to put her trailer on [his] property.” Father testified that he was “aware [his friend] ha[d] used illegal substances in the past,” but he denied that the drug paraphernalia was his. On cross-examination, Father admitted that he sometimes used the trailer “as a storage unit.” He also admitted that during the winter of 2020, he went into it to smoke cigarettes.
Adjudication Ruling
¶20 After closing arguments, the court found “by clear and convincing evidence” that:
· “On or about December 28, 2020, Law Enforcement discovered drug paraphernalia including several pipes, tinfoil with heroin residue, a burned spoon, and syringes in a camper on the property where the family lived.”
· “On or about February 5, 2021, [DCFS] contacted [Father]. [Father] refused to allow the caseworker to see inside the trailer but admitted that they (the Mother and [Father]) do smoke (cigarettes) inside of it. [Father] was asked to drug test for [DCFS], and he has declined to do so.”
· “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.”
· Mother testified “that she gets heroin for [Father], and she gives it to him.”
· “Father has denied any drug use or any knowledge of drug use by the Mother.”
¶21 Drawing on these findings, the court found by “clear and convincing evidence” that Father “has issues related to the use of illegal substances.” Elaborating on this, the court referenced the fact that there was “paraphernalia and some residue found in a location where both [Mother] and [Father] say they’ve been and they frequent often,” meaning the trailer. And referring again to Father’s admitted habit of smoking cigarettes in that trailer, the court opined that Father was just “way too close” to illegal drugs and that this was “concerning to the Court.”
¶22 The court accordingly adjudicated the children as “abused and neglected” as to Father. The court determined that this was “true by clear and convincing evidence,” and it based this determination on both Father’s partial rule 34(e) response and its finding that Father “has issues related to the use of illegal substances.”
Disposition Hearing
¶23 The court later held a disposition hearing. There, the State directed the court’s attention to the child and family plan that DCFS had submitted. That plan listed several proposed responsibilities for Father, including the requirement that he complete a substance abuse evaluation and submit to random drug testing. The State asked the court to impose those requirements on Father.
¶24 After hearing from Father’s counsel, the court entered its disposition order. In that ruling, the court determined that “all” the parental responsibilities proposed in the child and family plan were warranted, including the requirement that Father complete a substance abuse evaluation and submit to random drug testing. The court also ordered Father to “remain drug and alcohol free” until the court “hear[d] otherwise from [Father’s] substance abuse evaluation.”
¶25 Father timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶26 Father first challenges the juvenile court’s determination that the children were abused. It’s somewhat unclear from his brief whether Father’s challenge rests on factual or legal grounds. As explained below, however, we need not decide which challenge Father is making (or, by extension, which standard of review would apply) because, even without the abuse determination, the juvenile court still had jurisdiction to enter disposition orders based on its unchallenged neglect determination.
¶27 Father also challenges the juvenile court’s disposition order, and he does so on two fronts. First, he argues that the disposition order was improper because it was based on an unsupported finding that he “has issues related to the use of illegal substances.” This court “review[s] the juvenile court’s findings of fact for clear error.” In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (quotation simplified). And 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 B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam). Second, Father argues that the court “erred in making a disposition order [that] includ[ed] drug testing, evaluation, and treatment.” “The juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
ANALYSIS
I. Abuse Determination
¶28 Father first challenges the juvenile court’s determination that the children were abused.
¶29 As an initial matter we note that although DCFS’s petition alleged that the children were abused—including an allegation that Father “had hit a child on the back hard enough to leave bruising”—Father’s partial rule 34(e) response only denied the allegation that he “has issues related to the use of illegal substances.” From this alone, we could conclude that Father’s challenge is meritless. But in any event, we need not decide this challenge on its merits because Father has not challenged the court’s separate and independent determination that the children were neglected.
¶30 “Utah’s juvenile courts are creatures of statute, and thus are courts of limited jurisdiction.” In re B.B., 2002 UT App 82, ¶ 12, 45 P.3d 527. “Because they are courts of limited jurisdiction, juvenile courts are allowed to do only what the legislature has expressly authorized.” Id.
¶31 Utah Code section 78A-6-103 defines the juvenile court’s jurisdiction. Relevant to this appeal, that section states that a juvenile court “has original jurisdiction over any proceeding concerning . . . a child who is an abused child, neglected child, or dependent child.” Utah Code Ann. § 78A-6-103(2)(a) (LexisNexis Supp. 2021). Once jurisdiction is established under that section, “the court may order reasonable conditions to be complied with by a minor’s parents or guardian, a minor’s custodian, or any other person who has been made a party to the proceedings.” Id. § 78A-6-117(2)(q)(i).[3]
¶32 As noted, the juvenile court adjudicated the children as “abused and neglected,” thereby conferring jurisdiction under section 78A-6-103(2)(a). Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination. See id. § 78A-6-103(2); see also In re S.F., 2012 UT App 10, ¶ 33, 268 P.3d 831 (“Importantly, once a child has been adjudicated as neglected, the juvenile court has continuing jurisdiction over the child . . . .”); cf. In re B.T., 2009 UT App 182, ¶ 10, 214 P.3d 881 (holding that the facts were inadequate “to support a determination of neglect” but remanding “for a finding of dependency”).
¶33 While Father has challenged the abuse determination on appeal, he has not challenged the separate determination that the children were neglected. Because of this, we have no need to decide his challenge to the abuse determination. After all, even if we accepted Father’s arguments about the abuse determination, the unchallenged neglect determination would still provide the juvenile court with jurisdiction, thereby giving the juvenile court authority to “order” Father to comply with “reasonable conditions” following a disposition hearing. Utah Code Ann. § 78A-6-117(2)(q)(i). Indeed, Father appears to agree. In his brief, he specifically “clarifie[d] that he is not arguing that he should not be adjudicated and found to be within the jurisdiction of the Court.”
¶34 In light of this concession, it is not clear what Father hopes to gain by challenging the abuse determination. There are perhaps some collateral consequences associated with an abuse determination that do not follow from a neglect determination. But other than a vague (and unsupported) reference to “presumptions that reunification services should not be offered” in cases of abuse, Father has not briefed any such difference. Moreover, Father is not challenging the imposition of any such collateral consequences in this case. Instead, the only relief that Father seeks in this appeal is a reversal of the conditions that were imposed on him in the disposition hearing. Because the unchallenged neglect determination provided the court with jurisdiction to order those conditions, we decline to address Father’s challenge to the court’s abuse determination. See M.F. v. J.F., 2013 UT App 247, ¶ 11, 312 P.3d 946 (recognizing that “[o]nce the juvenile court has adjudicated the child as falling under its jurisdiction, it has ongoing jurisdiction over that child and may make dispositions by court order” (quotation simplified)).
II. Disposition Order
¶35 As noted, the juvenile court’s neglect determination provided it with jurisdiction to “order reasonable conditions to be complied with by [the children’s] parents or guardian, [the children’s] custodian, or any other person who has been made a party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i). Here, after a disposition hearing, the juvenile court ordered Father to complete a substance abuse evaluation and submit to random drug testing.
¶36 Father now challenges that order on two fronts. First, he notes that these requirements were predicated on the court’s finding that he “has issues related to the use of illegal substances.” According to Father, that finding was an “abuse of discretion.” And second, Father argues that the order itself was unwarranted because it was not supported by the court’s findings.
A. Finding Related to Illegal Substances
¶37 Father first challenges the court’s finding “related to drugs and paraphernalia.” Though Father’s brief is somewhat unclear on this point, we understand him to be challenging the court’s finding that he “has issues related to the use of illegal substances.”
¶38 As an initial matter, Father suggests that we should review this for an abuse of discretion. This suggestion is misplaced, however, because the ruling in question was a factual determination. See generally In re K.D.N., 2013 UT App 298, ¶ 8, 318 P.3d 768 (“Juvenile courts are required to make comprehensive and detailed factual findings in support of their ultimate conclusions.”). Because it was a factual determination, Father must show that the finding was clearly erroneous. See In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867. And under our accepted standards, 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 B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam).
¶39 Properly framed, Father’s argument is that this finding was clearly erroneous because there were “no indications or medical assessments of drug ingestion” by Father. But as noted, the juvenile court didn’t directly find that Father used drugs. Rather, it found that Father “has issues related to the use of illegal substances.” And in support of that finding, the court entered a series of subsidiary findings, all of which Father has either conceded or at least failed to successfully challenge on appeal. For example:
· The court found that police “discovered drug paraphernalia including several pipes, tinfoil with heroin residue, a burned spoon, and syringes in a camper on the property where the family lived.” And relatedly, the court also found that Father frequented that trailer to smoke cigarettes. In his brief, Father admits that drug “[p]araphernalia was found in a trailer he had been in and used for smoking.”
· The court found that in February 2021, Father “refused to allow [a DCFS] caseworker to see inside the trailer.” Father does not challenge this finding on appeal.
· The court found that in February 2021, a DCFS investigator asked Father to take a drug test, but that Father declined to take the test. Father has not challenged this finding on appeal, instead simply arguing that this refusal shouldn’t matter because he had previously offered to take a drug test and had allegedly “tested clean” when he took a “test for his employer” on a different occasion.
· The court found that “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.” Father does not challenge the court’s finding that Mother said this. Instead, he simply notes that Mother later retracted this claim. But the court acknowledged that Mother had retracted the claim. And even so, the court still found (and thought it significant) that Mother had said that Father used drugs.
· Relatedly, the court found it “concerning” and “disturbing” that Mother had testified “that she gets heroin for [Father], and she gives it to him.” While Father emphasizes Mother’s “lack of credibility,” “we do not disturb [the juvenile court’s] determinations of the witnesses’ credibility because it “is in an advantaged position with respect to the parties and the witnesses.”[4] In re G.D.B., 2019 UT App 29, ¶ 20, 440 P.3d 706 (quotation simplified).
· Finally, the court found that Mother had drug problems of her own. In his brief, Father admits that “there is overwhelming evidence of the mother’s drug use,” including admissions by Mother “that she has a significant drug problem.”
¶40 Again, the finding at issue was that Father “has issues related to the use of illegal substances.” And as the court later explained, this finding was essentially that Father was “way too close” to illegal drugs. The subsidiary findings described above both individually and collectively support this because they show that Father voluntarily placed himself in close proximity to both people who used drugs and to illegal drugs themselves. Father therefore has not shown that this finding was “against the clear weight of the evidence.” In re B.C., 2018 UT App 125, ¶ 2.
B. Drug Testing Requirement
¶41 At the disposition hearing, the court ordered Father to submit to “drug testing, evaluation, and treatment.” Father argues that this order was unwarranted.
¶42 As explained, when a juvenile court has adjudicated a minor child as abused, neglected, or dependent, “the court may order reasonable conditions to be complied with by a minor’s parents or guardian, a minor’s custodian, or any other person who has been made a party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i). Whether a condition is “reasonable” depends on the circumstances of each case. See In re S.A., 2016 UT App 191, ¶ 7, 382 P.3d 642 (per curiam). Helpful considerations include whether the condition is “reasonably related to the juvenile court’s factual finding[s],” “proportionate to the concern raised by” those findings, and “reasonably calculated to serve the best interest of the child.” Id. ¶ 7. Furthermore, we can overturn the juvenile court’s decision only “if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
¶43 Our decision in In re S.A. is illustrative. There, the “juvenile court found that the facts did not establish abuse or neglect but entered an adjudication order stating that the child was dependent as to [the father].” In re S.A., 2016 UT App 191, ¶ 2. In a subsequent disposition order, the court then ordered that the father “complete a domestic violence assessment.” Id. ¶ 5. The father challenged that order on appeal, claiming that he could not be required to complete the assessment “because there was no neglect adjudication” and because “the juvenile court found no fault by” him. Id. We upheld the order on appeal, however,
concluding that it was “reasonably related to the juvenile court’s factual finding that the parents have hit each other on occasion in the presence of the child.” Id. ¶ 7 (quotation simplified). We also concluded that the condition was “proportionate to the concern raised by that finding” and was “reasonably calculated to serve the best interest of the child.” Id.
¶44 Here, Father claims that the court could not require him to submit to drug testing and treatment without first finding that he actually “used drugs” himself. Father argues that such a finding was required by Utah Code section 62A-4a-205, under which “a child and family plan may only include requirements that . . . address findings made by the court.” Utah Code Ann. § 62A-4a-205(8)(h).
¶45 But while the court didn’t find that there was clear and convincing evidence that Father uses drugs, it did find that “Father is connected to too many people and locations which raises concerns for the Court that he may be abusing substances.” (Emphases added.) And there was ample support for this concern. In addition to its proximity-based findings, the court found that Mother had told both Officer and Investigator that Father used drugs, and it further found that Father had been resistant on at least one occasion to DCFS’s request that he take a drug test.
¶46 As also discussed, the court’s findings showed that Father frequently chose to be around illegal drugs and people who use them. Again, Father commonly associated with both Mother and his friend, both of whom had drug problems; he frequented a trailer on his property in which drug paraphernalia was found; and he was resistant to DCFS’s efforts to look inside that trailer. As noted, this trailer was located on the property where Father lived with the children. And finally, the children’s other caretaker (Mother) has admitted that she has drug problems of her own, and all of this arises against the backdrop of the court’s unchallenged determination that the children were neglected.
¶47 There are obvious dangers associated with advertently or
even inadvertently exposing children to illegal drugs. There are also obvious dangers associated with leaving children in the care of a parent or custodian who is under the influence of illegal drugs. Here, given the reports of Father’s illegal drug use, his ongoing proximity to people who use illegal drugs, his habit of frequenting a place in which drug paraphernalia was later found, and the fact that the children’s other parent had an ongoing drug problem, we have no trouble concluding that the court’s decision to require Father to submit to drug evaluation and testing was “proportionate to the concern raised by” the findings and was “reasonably calculated to serve the best interest” of the neglected and thus vulnerable minor children who were sometimes in Father’s care. In re S.A., 2016 UT App 191, ¶ 7.
¶48 Again, we cannot overturn the juvenile court’s decision unless “it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31 (quotation simplified). Because the juvenile court considered all the facts and its decision was not “against the clear weight of the evidence,” id. (quotation simplified), we affirm the court’s disposition order.[5]
CONCLUSION
¶49 We have no need to address Father’s challenge to the juvenile court’s abuse determination because, even if Father is correct, the neglect determination independently provided the juvenile court with jurisdiction and the ability to enter disposition orders in the best interest of the children. Moreover, we conclude that the juvenile court’s finding that Father “has issues related to the use of illegal substances” was not clearly erroneous. We further conclude that the juvenile court’s requirement that Father submit to “drug testing, evaluation, and treatment” was reasonable.
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.
Erring on the side of caution is not merely cowardly, not merely corrupt, it is evil.
We are to look upon it as more beneficial, that many guilty persons should escape unpunished, than one innocent person should suffer. The reason is, because it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not.
But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.
— John Adams
(emphasis added)
Erring on the side of caution when it comes to allegations of spousal and/or child abuse is a blatant violation of the preponderance of evidence standard. When courts err on the side of caution, when they take a better safe than sorry approach to allegations of spousal or child abuse, they aren’t doing anything virtuous, but the polar opposite. The guilty until proven innocent approach is a violation of the other spouse’s/parent’s civil rights. Any judge who issues a restraining order or protective order or supervised parent time order on the basis of erring on the side of caution has committed misconduct. Such is clear error and grounds for appeal from “correctness” (the appellate court decides the matter for itself and does not defer in any degree to the trial judge’s determination of law [1]) to “abuse of discretion” (when a serious inequity has resulted [2], when a judge acts outside the law [3], when a ruling is beyond the limits of reasonability [4], is inherently unfair [5], fails to consider all the legally relevant factors [6]) and all the way up to “clearly erroneous” (findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court’s determination [7] and findings are clearly erroneous if they are against the clear weight of the evidence or if the appellate court reaches a definite and firm conviction that a mistake has been made. [8]). [9]
Utah Family Law, LC | divorceutah.com | 801-466-9277
Does having the judge interview the children traumatize the children?
This post is the second in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.
The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.
Does having the judge interview the children traumatize the children? You may have heard the argument along the lines of, “Having a judge interview children is tantamount to child abuse.” If you haven’t heard it yet, all you have to do to make that happen is propose that the judge interview your children. The same people who claim judges interviewing kids harms kids will, with a straight face, claim that having a child interviewed by a guardian ad litem or custody evaluator is in some way functionally and/or effectively different from and better than being interviewed by a judge. Really?
I submit to you that virtually no child knows or cares about the difference between a judge or a guardian ad litem or psychologist interviewing a child. And while I will be among the first to admit that a mental health professional like an LCSW or psychologist may generally be a bit more skilled than the average judge at interviewing children about child custody issues, I submit that the difference is not so great as to justify spending $3,000 to $10,000 or more on a custody evaluation with an LCSW or psychologist, especially when the custody evaluation interview, like the interviews with the GAL, are not on the record, which means there’s no way of knowing how well the interviews were conducted or what said or not said by the child, if in fact the interviews ever took place at all.
Contrastingly, an interview conducted by the judge, as authorized by the Utah legislature/Utah Code § 30-3-10(5), is free of charge to the parents, takes far less time than an interview with a custody evaluator, would take about as much time as an interview would with a GAL, is directly from the child witness’s mouth to the judge’s ear (that way there are no hearsay or other second hand information concerns), and is on the record to ensure that there is no question as to how well the interview was conducted, what the child was and was not asked, and what the child did and did not say in response.
I know a friend on TikTok who has a lot of severe PTSD and trauma due to several incidents, and he also has abusive parents. How can I report him to child support and get help for him?
Do you know this only from what you have witnessed through your friend’s TikTok videos? If so, you may want to approach what your TikTok friend claims with a healthy dose of skepticism. Many people seeking large followings on social media tell sensational stories to attract attention (clickbait).
The reason I suggest you proceed with caution is because once a parent is reported to the Division of Child and Family Services (DCFS) and/or Child Protective Services (CPS) and/or the police, even if a parent or parents is/are later determined to be innocent of the accusations made against him/her/them, a stigma attaches that in many cases dogs the parent(s) for the rest of their lives. Friends and neighbors shun them, they may lose their positions as coaches and youth Sunday school teachers, they may even lose their jobs—all simply because a vindictive or bored or attention-seeking child reckless made unfounded allegations against his/her parent(s).
If you know for a fact that a child is being abused (or you have very, very good evidence that it is more likely than not that the child is being abused or in danger of being abused), then you can (and likely should) report your observations or reasonable suspicions to DCFS, CPS, and/or the police.
Here are some links to help you understand the child abuse and neglect reporting process in the jurisdiction where I practice family law (Utah):
Here is what Utah’s Child Protective Services website states:
If you suspect child abuse or neglect is occurring please call our 24/7 hotline at 1-855-323-3237 or contact your local law enforcement agency.
Utah law requires any person who has reason to believe that a child has been subjected to abuse, neglect, or dependency to immediately notify the nearest office of Child and Family Services, a peace officer, or a law enforcement agency. Abuse, neglect, or dependency of a child can be physical, emotional, or sexual.
What are the dirty tricks your spouse and his/her lawyer can do to attack you during a divorce?
Understand that while the tone of this answer to your question is a little—a little—tongue in cheek, it’s still true.
Dirty tricks that often work whether you are a man or woman:
falsely accuse your spouse of substance abuse (drugs, alcohol)
falsely accuse your spouse of being mentally ill
falsely accuse your spouse of having an extramarital affair
falsely accuse your spouse of child abuse (both physical and sexual)
this works best for women, but it’s starting to gain ground with men too
Dirty tricks that work mostly for women:
falsely accuse your spouse of spouse abuse, both physical and sexual (virtually nobody will ever believe a wife abuses a husband unless a busload of nuns with time and date-stamping video cameras witness it too and testify to it)
falsely accuse your husband of “pornography addiction”
falsely accuse your spouse of never being home, being an absentee parent, never caring for wife and children, you get the idea
falsely accuse your spouse of being “controlling” (whatever that means, but it works, so who cares what it means, eh?)
falsely accuse your spouse of 1) failing to provide you and your children of adequate financial support and 2) never giving you access to spending money and 3) wasting, dissipating, and diminishing marital assets
Dirty tricks that work mostly for men:
falsely accuse your spouse of parental alienation (this rarely works, but when it does, it works better for men than for women; falsely accusing a father of parental alienation doesn’t get much traction)
Utah Family Law, LC | divorceutah.com | 801-466-9277
BOUNTIFUL CITY,
Appellee,
v. NATHAN DAVID BAIZE,
Appellant.
Opinion
No. 20170155-CA
Filed February 14, 2019
Second District Court, Bountiful Department
The Honorable Glen R. Dawson
No. 161800370
Scott L. Wiggins, Attorney for Appellant Jacob L. Fordham, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 Utah’s criminal law recognizes that a parent may discipline a child. Criminal sanctions may attach, however, when parental discipline exceeds the bounds of reasonableness or where serious physical injury results. After a bench trial, during which the court heard evidence that Nathan David Baize spanked his four-year-old son with enough force to leave a bruise in the shape of a handprint, the court found Baize guilty beyond a reasonable doubt of misdemeanor level child abuse. Baize appeals, claiming the court misconstrued the facts and misapplied the law. We affirm.
¶2 In late June 2016, Baize had his four-year-old son (Victim) for weekend parent-time. Baize and Victim’s mother (Mother), are divorced and have joint custody of Victim. Victim spends every other weekend with Baize.
¶3 On the weekend in question, Victim had been acting up, and Baize and Mother exchanged emails about this behavior. Mother recalled that the emails described Victim as “yelling and screaming, washing out. He was saying terrible things, he was going to hurt people. He was mad. He wanted to go home. He was upset. Completely distraught.”
¶4 Victim was “throwing temper tantrums, using foul language, [and] saying that he wanted [Baize] dead” on the day of the abuse. The bad behavior escalated during a car ride to a grocery store. Victim began kicking and punching his grandmother, who was with Baize and Victim. It took about an hour to calm down Victim enough to get him strapped in his car seat. Even then, Victim continued to jump up and down, “slamming his rear end on the bottom of the car seat.”
¶5 Once they got home, Victim continued to fight with Baize. After trying various disciplinary interventions, Baize determined that his last resort was to spank Victim. Baize put Victim over his knee and warned him that he was going to be spanked unless he calmed down. When Victim continued to swear and tell Baize that he hated him, Baize spanked him one time. Baize gave Victim additional warnings, and then spanked him a second and third time.
¶6 Eventually, Baize called Mother and asked that she pick up Victim several hours earlier than the planned exchange. While changing Victim’s clothes that evening, Mother noticed bruising on his bottom. When she asked Victim what had happened, he responded, “Don’t talk to me about this,” and requested that everyone leave his room. A few minutes later, Victim disclosed to Mother what had happened. Mother immediately called the Division of Child and Family Services (DCFS).
¶7 The next morning, Mother took photographs of the bruising on Victim’s bottom, one of which was introduced as evidence. Mother testified that the photograph accurately depicted the injuries she saw on Victim: “I see fingerprints. I see, that are bruised, bruising, fingerprints. There are lines on his bottom, bruising. There [are] little spots on his bottom that are bruised.” Mother stated that she “was pretty sick to [her] stomach” when she saw Victim’s injuries.
¶8 An investigator from DCFS came by the day after the spanking and advised Mother to call the police about the incident. A detective (Detective) from the Bountiful City Police Department was assigned to the case. Detective arranged an interview for Victim at the Children’s Justice Center (CJC Interview). After viewing the photographs and hearing Victim’s CJC Interview, Detective determined that he needed to interview Baize.
¶9 Detective testified that the photograph introduced at trial depicted signs of redness consistent with diaper rash on Victim’s bottom, but he also observed that it showed a yellowish bruise in the shape of “a finger or a handprint.” Detective noted that there were no reports indicating that Victim needed medical attention for injuries related to the abuse. Detective also testified that Baize appeared to be in control of what he was doing when he spanked Victim.
¶10 Bountiful City (the City) charged Baize with child abuse in violation of Utah Code section 76-5-109(3)(c). Baize pled not guilty and requested a bench trial.
The Proceedings
¶11 The City argued that it is not “illegal or wrong” to discipline a child by spanking, but “when you spank a child to the point where there is physical injury is where you come to a Class C misdemeanor child abuse.” The City said that Baize “should be aware that there may be bruising, that [he] may injure a child. [He is] putting [his] hands on a child. It’s obvious to all of us that there’s a risk that [he] may injure the child if [he] spank[s] the child too hard.” The City further noted that it was not arguing that Baize “committed child abuse by spanking [Victim], once[,] twice[,] or three times. That’s . . . within his realm as a parent to do. However, it’s clear that he left an injury on the child. A handprint on the child’s behind, buttocks is clearly caused only by spanking.” The City concluded, “We are not here to stand up and tell the defendant how to parent his child or whether spanking is right or wrong. None of that is in play. It comes down to the fact that while disciplining his child [he] left a handprint on him, bruised him . . . . That’s it.”
¶12 Baize’s trial counsel argued that spanking Victim “was not a gross deviation from the standard of care based on facts [and] specific evidence that [was introduced]. . . . [T]his spanking was not done out of anger. It was in a controlled manner. And it was as a result of trying to help the child calm down and get under control.” Rather than admitting he struck Victim too hard, Baize’s counsel argued that “[Baize] did not take an unjustifiable risk to cause bruising.” Rather, “as a parent, the only way that he had left [to discipline] in his repertoire . . . [was] telling [Victim] what he was going to do and then stopping after he had done it to the point where he thought that was enough. That is not a gross deviation from the standard of care.”
¶13 After hearing the evidence, including testimony from Mother and Detective, and after hearing the arguments, the court concluded:
The statute involved as we all understand is [Utah Code section] 76-5-109. Any person who inflicts upon a child physical injury—I’m just reading the pertinent part—is guilty of an offense as follows. Part C, if done with criminal negligence the offense is a Class C misdemeanor. And, again, I previously read the definition of criminal negligence. I won’t read that again. It is the lowest of the four mens rea standards that are recognized in Utah State law.
I further note that physical injury is defined under [section] 76-5-109. And I’ll just read a small part of that. “Physical injury means an injury to or a condition of the child which impairs the physical condition of the child, including, 1, a bruise or other contusion of the skin.” There are other— there is a further definition of physical injury, but I’m just going to stop there for purposes of this case.
The court continued:
[C]ertainly, a parent should be allowed to discipline his children in an appropriate way. But the level of contusion, the bruising on the buttocks of the child causes me to come to the conclusion that discipline was a gross deviation from the standard of care that an ordinary person would exercise. It was just too hard. It was too hard. And in light of that, I will enter a judgment for a conviction for the Class C misdemeanor, inflicting physical injury on a child with criminal negligence, finding proof beyond a reasonable doubt based on the testimony of the two witnesses.
¶14 The judgment on the verdict was entered, and Baize was sentenced. Baize now appeals.
ISSUES AND STANDARDS OF REVIEW
¶15 Baize raises two issues on appeal. First, Baize claims that the district court misinterpreted and misapplied Utah Code section 76-5-109 by concluding that he committed child abuse. “The correct interpretation of a statute is a question of law and is reviewed for correctness.” State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993). Because it was not preserved at trial, Baize raises this issue pursuant to plain error. To establish the existence of plain error, Baize must show “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
¶16 Second, Baize claims that his trial counsel deprived him of effective assistance by failing to raise a defense of justification as provided in Utah Code section 76-2-401. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).[2]
ANALYSIS
Interpretation and Application of Utah Code Section 76-5-109
The Statute’s Plain Language
¶17 On appeal, Baize argues that the district court erred in interpreting and applying Utah Code section 76-5-109. Specifically, Baize asserts that “the court failed to read subsections (3) and (8) together as required by the language of the statute.” Had the court properly considered the two subsections, Baize contends, it would have concluded his actions were justified and did not constitute child abuse.
¶18 “When interpreting statutes, we determine the statute’s meaning by first looking to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.” State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (cleaned up). In addition, “the plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” Id. (cleaned up). Contrary to Baize’s assertions, we conclude that the district court engaged in just such an integrated analysis in reaching its decision that Baize committed child abuse.
¶19 The portion of the statute Baize violated states that “[a]ny person who inflicts upon a child physical injury or, having the care or custody of such child, causes or permits another to inflict physical injury upon a child is guilty of an offense . . . if [the injury is] done with criminal negligence.” Utah Code Ann. § 76-5-109(3)(c) (LexisNexis 2017).[3] “‘Physical injury’ means an injury to or condition of a child which impairs the physical condition of the child, including . . . a bruise or other contusion of the skin . . . .” Id. § 76-5-109(1)(e)(i).
¶20 Baize correctly asserts that Utah Code section 76-5-109(3) must be read in harmony with section 76-5-109(8), which states that “[a] person is not guilty of an offense under this section for conduct that constitutes: (a) reasonable discipline or management of a child, including withholding privileges; [or] (b) conduct described in Section 76-2-401.” Id. § 76-5-109(8)(a)−(b). Utah Code section 76-2-401 states that a “defense of justification” for alleged child abuse may be claimed when “the actor’s conduct is reasonable discipline of minors by parents, guardians, teachers, or other persons in loco parentis,” unless such conduct results in serious bodily injury, serious physical injury, or the death of the minor. Id. § 76-2-401(1)(c); see also id. § 76-2-401(2). Thus, the statutes create a structure where a parent-defendant may be convicted of child abuse when he causes physical injury to a child, including bruising, unless the conduct in question constituted reasonable discipline.[4]
¶21 Baize argues on appeal that the district court failed to undertake the “reasonable discipline” analysis required by Utah Code section 76-5-109(8)(a). Specifically Baize states, “There is nothing in the record demonstrating that the court read subsection (3) of section 76-5-109 together with subsection (8) as required by the plain language of the statute.”
¶22 We acknowledge that the court did not explicitly invoke the numbers of the two subsections in interpreting and applying the statute. But it is nevertheless clear from the record that the court conducted such an analysis in applying the statute to Baize’s conduct. The court stated:
[A] parent should be allowed to discipline his children in an appropriate way. But the level of contusion, the bruising on the buttocks of the child causes me to come to the conclusion that discipline was a gross deviation from the standard of care that an ordinary person would exercise. It was just too hard. It was too hard.
(Emphasis added.) Accordingly, the court focused on the fact that Baize was Victim’s parent, a status which is relevant under Utah Code section 76-5-109(8).
¶23 While the court never explicitly said Baize’s spanking of Victim was “reasonable” or “unreasonable,” it did say his conduct was “a gross deviation from the standard of care that an ordinary person would exercise.” This is simply a variation in nomenclature describing the concept of reasonableness. If anything, the court’s finding is more specific than simply saying the word “unreasonable.” We therefore consider Baize’s argument that the district court failed to read the two subsections together to be overly simplistic. Baize ignores that the district court did undertake such an analysis, albeit using different but equivalent language than that promoted by Baize. And because the district court analyzed Baize’s conduct and determined that it was a “gross deviation” from the ordinary “standard of care,” we conclude that the court considered the “reasonable discipline” analysis required by Utah Code section 76-5-109(8).
Reasonable Discipline of a Child
¶24 Alternatively, Baize argues that “the court’s determination that the spanking of [Victim] was unreasonable is contrary to common law principles that dictate punishment and chastisement are to be considered in light of the age, condition and disposition of the child, and other surrounding circumstances.” Baize would have us understand that “discipline by a parent—under circumstances such as that in the instant case—is reasonable so long as the discipline is administered in a good faith manner that does not inflict serious physical injury on the child.” In essence, Baize argues that parental discipline is reasonable provided that it (1) is done in good faith and (2) does not cause serious bodily injury.
¶25 We reject Baize’s attempt to define reasonable parental discipline. First, nowhere do the statutes in question use the language, “administered in a good faith manner,” as a standard for reasonableness. Baize has attempted to add a “good faith” prong to the reasonableness standard without directing us to supporting case law or other legal authority. Second, Utah Code section 76-5-109 explicitly states that any person who inflicts “physical injury” on a child is guilty of an offense. Utah Code Ann. § 76-5-109(3) (LexisNexis 2017). In no way do any of the statutes in question suggest that parental discipline resulting in mere physical injury to a child is by definition reasonable, while only discipline resulting in serious physical injury is unreasonable. Rather, the statutes simply establish that the defense of justification is unavailable to a parent who causes serious physical injury in disciplining a child—not that inflicting something less than serious physical injury is always reasonable. See id. § 76-2-401(1)–(2). Thus, we decline to follow Baize’s logic to the inevitable conclusion that a parent who physically injures his child while inflicting discipline in good faith must be acting reasonably.
¶26 Thus, we conclude that the district court did not plainly err in its interpretation and application of the relevant statutes.
Ineffective Assistance of Counsel
¶27 Baize argues that his trial counsel deprived him of his right to effective assistance of counsel by failing to bring the justification defense identified in Utah Code section 76-2-401 to the district court’s attention. The United States Supreme Court established a two prong test to determine if counsel’s performance is deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The test, as expressed by our supreme court, requires a defendant to “show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel’s performance prejudiced the defendant.” Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). But “[i]t is not necessary to address both parts of the test when the defendant makes an insufficient showing on one.” State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Because we conclude that Baize has failed to show his counsel performed deficiently, we limit our analysis to the first prong.
¶28 Baize asserts that his counsel’s ineffective assistance is demonstrated by the district court’s failure “to read and analyze subsection (3) of section 76-5-109 together with subsection (8).” Baize argues that his counsel “failed to recognize the requirement of reading these provisions together.” Yet Baize admits that his counsel’s “arguments at closing . . . . were essentially consistent with the defense of justification.”
¶29 Baize’s ineffective assistance argument is without merit precisely because his trial counsel—as Baize admits—argued for a justification defense and the district court considered justification as provided for in Utah Code section 76-5-109(8). See supra ¶ 23. Trial counsel stated that Baize did not “take an unjustifiable risk to cause bruising . . . . [T]he only way that he had left [to discipline] in his repertoire . . . [was] telling [Victim] what he was going to do and then stopping after he had done it to the point where he thought that was enough. That is not a gross deviation from the standard of care.” As with the analysis of the district court, trial counsel was under no obligation to refer to specific sections of the Utah Code in making the justification defense argument. It is evident from the record that Baize’s trial counsel effectively communicated the existence of the justification defense without making explicit reference to the subsections of the statute. Thus, we conclude that Baize has failed to show ineffective assistance merely because his trial counsel did not explicitly and simultaneously invoke specific defenses available under Utah Code section 76-5-109(8).
CONCLUSION
¶30 Baize’s argument that the district court misconstrued the facts and misapplied the law fails. On the record here we see no error in the district court’s analysis, and we further conclude that Baize has failed to show deficient performance by his attorney.
¶31 Affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
———————-
[1] On appeal, we construe the facts in the light most favorable to the verdict. See State v. Miller, 2017 UT App 171, ¶ 2 n.1, 405 P.3d 860.
[2] In a separate rule 23B motion filed simultaneously with his brief, Baize seeks remand to the district court to make findings and conclusions that his trial counsel was ineffective in failing to investigate and research the CJC Interview. “A remand under rule 23B will only be granted upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” State v. Lee, 2014 UT App 4, ¶ 5, 318 P.3d 1164 (cleaned up). And to “prevail on grounds of ineffective assistance, a defendant must demonstrate, first, that counsel’s performance was deficient, in that it fell below an objective standard of reasonable professional judgment, and second, that counsel’s deficient performance was prejudicial—i.e., that it affected the outcome of the case.” State v. Hand, 2016 UT App 26, ¶ 2, 367 P.3d 1052 (cleaned up). Nowhere in Baize’s motion does he demonstrate nonspeculative facts that would support a determination that trial counsel was ineffective or any resulting prejudice. The motion and accompanying affidavit make conclusory allegations that the CJC Interview contained critical evidence, but nowhere does Baize identify that evidence. Thus, we decline to grant remand on Baize’s separate rule 23B motion.
[3] Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.
[4] As the statute makes clear, the defense is available if the conduct is (1) reasonable and (2) results in only physical injury. Utah Code Ann. § 76-2-401 (LexisNexis 2017); see also id. § 76-5-109(1)(e) (defining physical injury). The defense is unavailable for reasonable discipline that results in serious bodily injury, serious physical injury, or the death of a minor. See id. § 76-2-401(2); see also id. § 76-1-601(11) (defining serious bodily injury); id. § 76-5-109(1)(f) (defining serious physical injury).
There’s little room for error. If you live in a place where the police and social services are decent people with horse sense, you’re lucky, but if you don’t, take care.
It can happen to anyone.
Doctor, lawyer, accountant. Not just the trailer trash crowd.
The younger the child making the allegations, the more seriously they are taken, BUT DON’T LET THAT lull you . . .
. . . into believing you can’t be a 5′2″ mom who weighs 98 pounds soaking wet and not be credibly accused of physically abusing your 6-foot, 17-year-old son.
Take the threats seriously, no matter how ludicrous they are in fact.
Why? Two main reasons. 1) Because our culture is currently programmed to “#startwithbelieving” and “believe survivors” and other similar nonsense, such that the presumption of innocence effectively does not apply to accusations of child abuse. More often than not, it’s guilty until proven innocent. Proving innocence is much harder than you believe. Much, much, much harder. The system actually works against efforts to prove innocence. Ignore this truth at your peril. 2) You’ve been taught since grade school that our legal system is “the best in the world,” but that doesn’t mean it’s not going to victimize you. “Best in the world” in this case simply means there are legal systems that are worse than ours.
Preempting false abuse allegations and/or defending oneself against false abuse allegations is tricky.
It’s tricky because there is no single way to do it “right”. How to respond to a child in my family falsely accusing me and/or my spouse of abuse depends in some part on how old the child is. If the child were a teenager who threatened to report abuse as a way of getting his/her way, I would do this:
Lawyer up now.
Right now. Getting a lawyer DOES NOT make you look guilty. And even if you fear that hiring a lawyer might make you look guilty, just try successfully defending your innocence without hiring one. Only a fool—a damn fool—would try to defend himself or herself against child abuse claims without a good lawyer.
Literally start researching good lawyers and start calling now (you have no time to waste).
And not just for the reasons you think I’m going to give.
Yes, of course you want to lawyer up for your protection. But how does a lawyer—a good lawyer, not just any lawyer—protect you? Not merely by defending you in court.
Defending you in court is crucial, but lawyering up early on may keep you out of court and out of jail too. Lawyering up early may prevent this mess from ruining your reputation in the community. How? A good lawyer gives you the advice you need, so that you don’t make stupid mistakes early on. So often its the stupid mistakes made early on that bury you.
And what kind of stupid mistakes might those be? If you believe 1) you can figure out how to navigate the system successfully on your own; 2) that “because I am innocent, all I have to do is tell the truth, and so the more truth I tell the better off I’ll be”; and 3) the system gets to the truth well, that is proof positive that you need to lawyer up now because all three beliefs are dead wrong.
The system works against you.
Years ago I made an informal study of my own (not a rigorous scientific study) of how often child protective services “supported” or “substantiated” reports of child abuse. It was an alarmingly high percentage of the time. I conclude that there is a bias for finding abuse. This makes sense when you analyze the situation. Think of it this way: what’s easier to do and what’s easier to defend? A) a thorough investigation that finds no solid proof or evidence of abuse, followed by a report that no solid proof or evidence of abuse was found?; or B) claiming a thorough investigation was conducted that found “credible evidence” or “reason for concern,” followed by a “better safe than sorry” kind of recommendation? It’s no contest. The mob will approve of finding abuse. “Another pervert taken off the streets, so he/she cannot hurt my kids!” So abuse is far too often found as a means of everyone in the child welfare field a) avoiding criticism; b) being lauded as heroes; c) doing less work and/or easier work; and d) keeping their jobs.
So you need inside expertise to protect you. In addition to finding a good lawyer, find experts in the fields of child abuse law enforcement, social work, and psychology to advise and support you.
Do not talk to the police or social services—do not talk to ANYONE—about the allegations or about your children or about yourself or your family without first consulting your (good) lawyer and without your (good) lawyer’s approval.
Here is why (ignore this at your peril):
If the police tell you they “just have a few questions” and that “you’re not a suspect,” DON’T YOU BELIEVE IT! Police can lie to you. It’s perfectly legal for them to do so. Anything you discuss with the police or your friends or family can be subpoenaed and used against you in the course of the investigation and/or trial. Keep your mouth shut, unless your good attorney advises you to speak.
Utah Family Law, LC | divorceutah.com | 801-466-9277