Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
TENNEY, Judge:
¶1 After Cody Murray pleaded guilty to violating a protective order, the district court ordered him to pay the victim’s moving expenses and 12 weeks of lost wages as restitution. Murray now appeals that restitution order, arguing that his criminal conduct did not proximately cause either of those losses. On the moving expenses, we agree with Murray and reverse that portion of the order. On the lost wages, however, we conclude that there was sufficient evidence to link Murray’s criminal conduct to the claimed loss. We accordingly affirm that portion of the order.
BACKGROUND
¶2 Murray married C.M. in March 2018, and they lived together throughout their short marriage. On January 2 or 3, 2019, C.M. filed a report with law enforcement alleging that Murray had engaged in sexual intercourse with her without her consent while she was medicated and sleeping. On the same day that she filed this report, C.M. obtained a temporary protective order against Murray based on this same allegation.
¶3 On January 3, 2019, law enforcement served Murray with the protective order at the residence he shared with C.M., and Murray complied with the order by packing his belongings and leaving the residence. Within an hour of leaving, however, Murray asked a friend to contact C.M. on his behalf. As subsequently alleged in a probable cause affidavit, C.M. soon received “phone calls and text messages” from the friend’s phone in which the friend relayed messages that Murray “loved her” and “missed her.” As also alleged, while the friend was on the phone speaking to C.M., Murray “passed a paper note” to the friend asking him “to let C.M. know that [Murray] was scared.” C.M. reported these communications to law enforcement as a violation of the protective order.
¶4 The State later filed two cases against Murray. The two cases were filed separately and were not consolidated. In the first case, the State charged Murray with one count of rape. That charge was based on C.M.’s allegation that Murray had sexual intercourse with her without her consent while she was sleeping. That case was later dismissed.
¶5 In the second case, which is the case at issue in this appeal, the State charged Murray with one count of violating a protective order. See Utah Code § 76-5-108 (2018). This charge was based on Murray’s indirect communications with C.M. on January 3, 2019. In March 2020, Murray pleaded guilty to the charged offense. As a result of a plea deal, the charge was reduced from a class A misdemeanor to a class B misdemeanor. In his affidavit in support of the plea, Murray admitted that “[o]n or about January 3, 2019,” he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Murray also agreed that he “may be ordered to make restitution to any victims of [his] crimes.”
¶6 Murray agreed to be sentenced at that same hearing. During the sentencing portion of the hearing, C.M.’s attorney asked the court to leave open C.M.’s restitution claim for the “one year statutory time limit,” informing the court that she would “submit any restitution” after receiving further documentation. The court left C.M.’s restitution claim open as requested.
¶7 In July 2020, the Utah Office of Victims of Crime (UOVC) filed a motion for restitution, asserting that it had paid C.M. a total of $6,264.47.[1] Of that amount, $5,520.28 was designated as reimbursement for “[l]oss of wages” and $744.19 was designated as reimbursement for “[r]elocation.”
¶8 Murray objected to UOVC’s motion for restitution and requested a hearing. At that hearing, UOVC’s attorney called two witnesses: (1) a representative from UOVC (Representative) and (2) C.M.
¶9 Representative testified that UOVC received C.M.’s application for restitution in November 2019. Representative testified that C.M. listed both the protective order violation and the alleged rape as the bases for her restitution claim. Representative further noted that in reviewing C.M.’s restitution claim, “the reparations officer indicated that the claim was approved based on both incidents”—the alleged rape and the protective order violation—because “they were so close together” that “the reparations officer couldn’t separate them into two separate claims.”
¶10 Representative testified that UOVC ultimately approved and paid C.M.’s expenses for “loss of wages” in the amount of $5,520.28, as well as “relocation” or moving expenses in the amount of $744.19, thus totaling $6,264.47. With respect to the lost wages claim, Representative testified that UOVC received a document from C.M.’s employer that explained “how much [C.M.] made at the time and how long she was out of work.” Representative said that UOVC also received a “health provider statement” that corroborated that C.M. missed work. Representative further said that from these documents and other verification efforts with C.M.’s employer, UOVC determined that C.M. missed “over 68 days” of work, and that it had then paid “12 weeks of lost wages” for the work C.M. missed from “January 3rd of 2019 through March 15th of 2020” at “[s]ixty-six percent of the full-time salary,” which in C.M.’s case amounted to $5,520.28.
¶11 With respect to the moving expenses, Representative testified that UOVC paid C.M. $744.19 to cover “reimbursement for movers.” Representative said that C.M. told UOVC that she had moved because “she didn’t feel comfortable in having [Murray] know where she lived.”
¶12 UOVC’s attorney then called C.M., who testified that she obtained the protective order against Murray because of the “actions he was making to [her] in [her] sleep.” C.M. also provided and referred to a note from a doctor indicating that C.M. had been seen because “[f]or the duration of her marriage her husband was sexually assaulting her in her sleep,” “[s]he was experiencing UTIs on many occasions from the sexual abuse,” and she had “[m]ajor depressive disorder” and “post-traumatic stress disorder.”
¶13 During C.M.’s testimony, UOVC’s attorney asked, “[A]s a result of the violation of the protective order, can you tell us what effect the violation of the protective order, the conduct that the defendant caused—what happened to you as a result?” C.M. responded that she suffered “severe panic attacks” and flashbacks, “live[d] in fear nearly every day,” felt a “[l]oss of trust of people in general,” and had “a hard time concentrating or focusing.” She said she had “severe depression” and was simply not “able to function like [she had] always been able to.”
¶14 UOVC’s attorney then asked if Murray’s conduct “in December or January of 2018, ’19 . . . interfere[d] with [her] ability to interact with people,” to which C.M. responded, “Definitely.” C.M. testified that because these issues “interfere[d] with [her] ability to work,” there were times where she had to take leave from work. She testified that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” and that she was out of work periodically after that, thus agreeing with the suggestion from the attorney that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” UOVC’s attorney asked if C.M.’s requests to take leave from work starting in “December of 2018” were “related to [Murray’s] conduct . . . that was occurring at that time,” and C.M. responded, “It was.”
¶15 With respect to the moving expenses, C.M. testified that she moved from the home she’d shared with Murray because the divorce decree ordered her to sell it. C.M. said that she moved in May 2020—17 months after Murray violated the protective order—and that her restitution request was based on the movers she had hired to assist with that move.
¶16 Murray didn’t call any witnesses at the restitution hearing. Instead, after UOVC’s attorney rested, each side presented closing arguments. UOVC’s attorney asked the court to order restitution for lost wages because C.M. had to take leave from work “[a]s a result of [Murray’s] conduct . . . because she wasn’t able to fully perform the job.” UOVC’s attorney asked for restitution for moving expenses because “it was [Murray’s] conduct which caused” C.M. to move and she “had reason to hide her whereabouts from” Murray out of fear.
¶17 Murray, however, argued that under the restitution statute, “restitution has to be tied directly” to the offense for which he’d been convicted—which, here, was a class B misdemeanor violation of a protective order. In Murray’s view, restitution for the lost wages was not appropriate because C.M. “missing all of [that] work . . . [could not] be tied” to his violation of the protective order (as opposed to the underlying rape allegation that the protective order was based on). Murray also argued that the moving expenses could not be tied to this conviction because C.M.’s decision to move was based on an order from the divorce decree requiring C.M. and Murray to sell the house.
¶18 At the close of arguments, the court ordered restitution in the amount of $6,264.47 to cover lost wages and moving expenses. In its oral ruling, the court noted that Murray was “alleged to have committed sexual offenses against [C.M.] in her sleep” in the latter part of 2018. The court said that it would “take the testimony of the witness at face value with regard to what she felt was a violation that caused the fear,” and the court then found that Murray’s “past history” of “sexual[ly] assaulting” C.M. “in her sleep” caused her “fear” and “anxiety.” With respect to C.M.’s missed work, the court found that “whatever happened, certainly enhanced or contributed to [C.M.’s] anxiety, depression, [and] fear,” and that “after the circumstances giving rise to whatever happened in December, there was a definite downturn with regard to [C.M.’s] ability . . . to work.” And with respect to the moving expenses, the court found that the “moving expenses [were] also reasonable and arising out of the crime that occurred.”
¶19 Murray objected to the court’s ruling. Murray argued that the court could “only tie restitution to what [Murray] was convicted of or pled guilty to, which would be the violation of the protective order,” and he further argued that the court should not “consider any of the alleged sexual misconduct” in its determination of restitution. In response, the court referred to the document submitted by C.M. in her restitution application, noting that “for the duration of the marriage, [Murray] was sexually assaulting [C.M.] in her sleep” and that she “was experiencing UTIs on many occasions from the sexual abuse.” The court observed that C.M. suffered from depression and post-traumatic stress as a result. Of note, the court then wondered whether these conditions were “exacerbated . . . or caused by a violation of a protective order,” “especially the loss of work after his commission of the violation of the protective order.” (Emphasis added.)
¶20 In a subsequent written restitution order, the court ordered Murray to pay UOVC a total of $6,264.47 for lost wages and moving expenses. In its Findings of Fact, the court found that C.M. “suffered emotional trauma as a result of [Murray’s] conduct in this case” and that her “fear, anxiety, and depression . . . rendered [her] unable to perform her duties and required her to miss work.” The court found that the trauma C.M. suffered “also caused her to relocate because she feared [Murray] and didn’t want him to know where she lived.” Murray filed a timely notice of appeal from that judgment.[2]
ISSUE AND STANDARDS OF REVIEW
¶21 Murray argues that the district court improperly ordered restitution for C.M.’s lost wages and moving expenses. “We will not disturb a district court’s restitution determination unless the court exceeds the authority prescribed by law or abuses its discretion.” State v. Calata, 2022 UT App 127, ¶ 12, 521 P.3d 920 (quotation simplified), cert. denied, 525 P.3d 1268 (Utah 2023). “To the extent that the district court made legal determinations in connection with its restitution analysis, we review those legal determinations for correctness.” State v. Oliver, 2018 UT App 101, ¶ 15, 427 P.3d 495 (quotation simplified). But when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
ANALYSIS
¶22 The Crime Victims Restitution Act (the CVRA) requires the district court “to determine restitution for any pecuniary damages proximately caused by the defendant’s criminal conduct.” State v. Blake, 2022 UT App 104, ¶ 9, 517 P.3d 414. Here, Murray challenges the court’s decision ordering him to pay C.M.’s moving expenses and her lost wages. In Murray’s view, his criminal conduct did not proximately cause either loss.
¶23 We first quickly dispense with the moving expenses issue. Murray argues that “[n]o evidence tied C.M.’s move from the marital home” to his criminal conduct, but that “the evidence on the record was that C.M. had to move because of the divorce decree.” Based on this, Murray argues that there was no basis for requiring him to pay these expenses as part of restitution. In its responsive brief, the State concedes this point. Having reviewed the record, we conclude that Murray’s argument and the State’s concession are well taken. We accordingly reverse that portion of the restitution order.
¶24 The remaining and principal issue on appeal, then, is whether the court also erred in ordering Murray to pay C.M.’s lost wages. On this, Murray argues that the court erred in two key respects: (I) by taking into account the alleged rape and (II) by then determining that Murray’s criminal conduct proximately caused C.M. to miss work. We address each argument in turn.
I. Alleged Rape
¶25 Murray argues that the district court improperly based the restitution order for lost wages on C.M.’s rape allegation, rather than limiting itself to considering the sole offense to which he had pleaded guilty: violating a protective order. We see no legal error in the court’s decision.
¶26 As a general rule, we “apply the law in effect at the time of the occurrence regulated by that law.” State v. Wilkerson, 2020 UT App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version of the restitution statute in effect at the time of Murray’s sentencing provided that
[w]hen a defendant enters into a plea disposition or is convicted of criminal activity that has resulted in pecuniary damages, . . . the court shall order that the defendant make restitution to victims of crime as provided in this chapter, or for conduct for which the defendant has agreed to make restitution as part of a plea disposition.
Utah Code § 77-38a-302(1) (2019); see also id. § 77-38a-302(5)(a) (2019) (“For the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.”).[3] Under these statutes, Murray therefore could not “be ordered to pay restitution for criminal activities for which he did not admit responsibility, was not convicted, or did not agree to pay restitution.” State v. Randall, 2019 UT App 120, ¶ 13, 447 P.3d 1232 (quotation simplified)
¶27 It’s true that Murray was not convicted of raping C.M. As noted, the separate criminal case that was based on the rape allegation was dismissed. It’s also true that Murray did not admit to raping C.M. in this case either. But contrary to Murray’s arguments, this doesn’t mean that his alleged sexual misconduct against C.M. could play no role in the court’s restitution analysis.
¶28 Again, Murray pleaded guilty to violating a protective order, and the elements of that offense were that Murray was “subject to a protective order” and “intentionally or knowingly violate[d] that order after having been properly served or having been present . . . when the order was issued.” Utah Code § 76-5108(1) (2018). In his plea agreement, Murray acknowledged these elements and agreed that he had “committed the crime.” In the factual basis portion of the plea agreement, Murray further agreed that he had “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” Pulling this together, the criminal activity for which Murray was convicted (by way of plea) included these key pieces:
· Murray was subject to a protective order;
· Murray intentionally or knowingly violated the protective order; and
· Murray did so by knowingly and intentionally communicating with C.M. through a mutual friend through phone calls and text messages.
¶29 Once Murray was convicted of this offense, the district court could then order restitution for any damages that were “proximately caused” by that offense. State v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132.[4] Our supreme court has explained that restitution is intended “to compensate the victim for pecuniary damages,” as well as “to rehabilitate and deter the defendant, and others, from future illegal behavior.” State v. Laycock, 2009 UT 53, ¶ 18, 214 P.3d 104. Because the question before a restitution court is what damages were proximately caused by the offense, the court isn’t confined to just the narrow elements of the offense of conviction. Rather, while the “restitution statute requires that responsibility for the criminal conduct be firmly established, much like a guilty plea, before the court can order restitution,” “it is only the initial crime for which liability must be legally certain.” State v. Hight, 2008 UT App 118, ¶¶ 3, 5, 182 P.3d 922 (quotation simplified). Once guilt for the offense has been firmly established, the court then has “broad discretion, after reviewing the evidence presented at the restitution hearing,” to “order restitution for any pecuniary damages clearly resulting from” that offense. Id. ¶ 5 (quotation simplified). In other words, once the defendant is convicted of “criminal conduct,” the defendant can “be held responsible for all damages proximately caused by that conduct.” State v. Huffman, 2021 UT App 125, ¶ 9, 501 P.3d 564 (emphasis in original), cert. denied, 509 P.3d 198 (Utah 2022).
¶30 Our decision in Huffman is illustrative. There, the defendant pleaded guilty to possessing drugs. Id. ¶ 7. Although the offense of drug possession doesn’t include, as an element, the destruction of property, we held that it was appropriate for the court to order restitution for damage that was done to the victim’s motorhome. This was so because evidence before the court established that the defendant’s possession of drugs inside the motorhome proximately caused those damages. Id. ¶¶ 12–14.
¶31 A similar dynamic is in play here. Again, Murray pleaded guilty to violating a protective order. In doing so, he acknowledged both the existence of the protective order and that he had violated its terms. Once these things were firmly established through the guilty plea, the court then had broad discretion to order restitution for any damage that was proximately caused by Murray’s criminal conduct.
¶32 When making that proximate cause determination, the court had at least some latitude to consider the conduct that had led to the protective order, and this is largely so because of the nature of the offense. After all, Murray wasn’t convicted of a crime because he contacted a stranger with whom he had no prior history. Rather, Murray was convicted of intentionally or knowingly contacting a person who had obtained a protective order against him. In this key sense, it was the protective order that made Murray’s communications criminal.
¶33 A protective order acts as a “mechanism” for giving victims a measure of “protection against their abusers.” State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645; see also State v. Baize, 2019 UT App 202, ¶ 20 n.5, 456 P.3d 770. One of the principal ways that a protective order does this is by creating a legal barrier between the victim and the abuser. If a person who is subject to a protective order subsequently breaches that barrier, a court couldn’t realistically be expected to decide whether the victim was traumatized by the violative act by considering that act as if it had occurred in a vacuum. Given that the victim had previously obtained judicial protection from the person, the nature of the alleged prior conduct would very likely have some bearing on the interconnected questions of whether and why the illegal contact had proximately caused any trauma or harm to the victim (not to mention how much damage the victim had actually suffered).
¶34 In short, because Murray pleaded guilty to violating a protective order, the district court could consider the fact that C.M. had obtained a protective order against him as part of its restitution analysis. And from there, it then had discretion to consider the conduct that led to the issuance of the protective order, at least to the extent that such conduct could inform its decision about whether Murray’s actions proximately caused any harm to C.M.
II. Proximate Cause
¶35 Murray next argues that the evidence before the district court was insufficient to show that his criminal conduct proximately caused C.M. to miss 12 weeks of work. We disagree.
¶36 The “proximate cause standard requires a showing that the crime, in a natural and continuous sequence, unbroken by any new cause, produced the injury and that the injury would not have occurred absent the crime.” Blake, 2022 UT App 104, ¶ 9 (quotation simplified). The “burden is on the State to prove proximate cause,” State v. Morrison, 2019 UT App 51, ¶ 13, 440 P.3d 942, and this “requires proof of two elements: (1) but-for causation and (2) foreseeable harm,” State v. Watson, 2021 UT App 37, ¶ 15, 485 P.3d 946.
¶37 Proximate cause is generally a “fact question[] to be resolved by the fact finder.” State v. Barzee, 2007 UT 95, ¶ 81, 177 P.3d 48; see also Mackay v. 7-Eleven Sales Corp., 2000 UT 15, ¶ 7, 995 P.2d 1233 (noting that proximate cause is a fact question). Because of this, we review a district court’s finding of proximate cause for clear error. State v. Grant, 2021 UT App 104, ¶¶ 24, 35, 499 P.3d 176, cert. denied, 505 P.3d 56 (Utah 2022). Thus, when “a defendant argues that the evidence was insufficient to support a restitution order, the defendant must demonstrate that the clear weight of the evidence contradicts the court’s ruling.” State v. Chadwick, 2021 UT App 40, ¶ 6, 486 P.3d 90 (quotation simplified).
¶38 Here, we see no clear error in the court’s finding that Murray’s violation of the protective order proximately caused C.M. to miss 12 weeks of work.
¶39 At the restitution hearing, C.M. testified that she obtained the protective order because of “actions [Murray] was making to [her] in [her] sleep” that began “at the end of December of 2018.” She further agreed that this “conduct” was “the reason for the ongoing protective order.” Of note, C.M. then testified that, “as a result of the violation of the protective order,” she has “severe panic attacks,” “severe depression,” and flashbacks; that she “live[s] in fear nearly every day”; that she has a “[l]oss of trust in people” generally; that she has a “hard time concentrating or focusing”; and that she was unable “to function like [she has] always been able to.” (Emphasis added.) When C.M. was then asked whether “the problems” that she was having “interfere[d] with [her] ability to work,” she responded, “Definitely.” While she said that the “very first time” she “took leave was for a doctor’s appointment . . . back in December of 2018” (which would have predated Murray’s violation of the protective order), C.M. also agreed that she missed work “every few days, a couple hours here, a few hours there, a full day here, a few days there” until March 2020, when she was “out of work altogether and couldn’t work at all.” The district court determined that C.M.’s testimony was credible, and on appeal, we give deference to that credibility determination. See State v. Miles, 2020 UT App 120, ¶ 34, 472 P.3d 978 (noting that “because of the district court’s advantaged position in observing the witnesses firsthand, we defer to its credibility findings” (quotation simplified)); State v. Taylor, 2017 UT App 89, ¶ 10, 402 P.3d 790 (noting that “we accord deference to the trial court’s ability and opportunity to evaluate credibility and demeanor” (quotation simplified)).
¶40 As also noted, UOVC introduced evidence showing that C.M. missed “over 68 days” of work, and UOVC’s Representative testified that UOVC paid for 12 weeks of work that she missed “span[ning] from January 3rd of 2019 through March 15th of 2020” because that missed work was “related to the incident in this particular case, which is the violation of a protective order.” When coupled with C.M.’s testimony about the effects of the protective order violation itself on her psyche and her ability to function, this provided an evidentiary basis for the court to find that Murray’s criminal conduct proximately caused C.M. to miss this work.
¶41 Murray nevertheless pushes back on several fronts, none of which are availing.
¶42 First, Murray points to testimony showing that C.M. was traumatized by the alleged rape (as opposed to the protective order violation), as well as testimony establishing that C.M. began missing work even before the unlawful communication. Both things are, on this record, unquestionably true. But even if the alleged rape caused psychological trauma to C.M. on its own, and even if that trauma caused her to miss work (either before or even after January 3, 2019), this doesn’t mean that Murray’s violation of the protective order couldn’t proximately cause her to miss work too.
¶43 Again, if there was sufficient evidence to establish that C.M.’s losses were proximately caused by the communication, then those losses were compensable. The fact that the losses may have been linked to some other causal source does not change this. In civil cases, it has long been recognized that there can be multiple causes for an injury or a trauma. See, e.g., McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993) (confirming “there can be more than one proximate cause” of “an injury”); Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah Ct. App. 1991) (“There can be more than one proximate cause of an injury so long as each is a concurrent contributing factor in causing the injury.” (quotation simplified)). And this is true in a criminal case too. See, e.g., State v. Gonzales, 2002 UT App 256, ¶ 21, 56 P.3d 969 (“A defendant’s acts may be found to be the proximate cause of the victim’s death even if the victim actually died as a result of the combination of the defendant’s acts plus some other contributing factor.” (quotation simplified)).[5]
¶44 Here, we agree with Murray that C.M.’s trauma and associated anxiety from the violation of the protective order was likely linked in some measure to the alleged rape. As discussed above, however, the alleged rape was the very reason that C.M. had previously obtained a protective order against Murray. And as also discussed, C.M.’s testimony at the restitution hearing supported the conclusion that when Murray contacted her in violation of that order, this both exacerbated her prior trauma and caused additional trauma too, thereby further interfering with her ability to work. Given this sworn and court-credited testimony, we cannot conclude that it was against the clear weight of the evidence for the court to conclude that, even accounting for the trauma associated with the alleged rape, the violation of the protective order itself proximately caused C.M. to miss work.
¶45 Second, Murray argues that it could not have been “reasonably foreseeable that C.M. would miss 12 weeks of work” because he sent her “a single indirect text message.” As an initial matter, it’s unclear from the record if this case really does involve just a single text message. For “the purpose of determining restitution for an offense, the offense shall include any criminal conduct admitted by the defendant to the sentencing court or for which the defendant agrees to pay restitution.” Utah Code § 77-38a-302(5)(a) (2019). Here, the probable cause affidavit alleged that C.M. had “received phone calls and text messages” from Murray through their mutual friend. And in his plea affidavit, Murray agreed under oath that he “knowingly and intentionally communicate[d] with C.M. through a mutual friend . . . through phone calls and text messages.” On this record, the court could therefore assess the restitution question in light of Murray’s admission that there had been multiple communications.
¶46 In any event, whether viewed as multiple communications or even just a single communication, this argument still fails because the effect of the communication(s) can’t meaningfully be divorced from the surrounding context. Again, Murray wasn’t convicted of sending a message to a stranger with whom he had no prior history. Rather, Murray was convicted because he knowingly or intentionally communicated with C.M. in violation of a protective order. By communicating with C.M. despite the existence of an order from a judge that prohibited him from contacting her, Murray undermined the sense of distance and security that the protective order was intended to give her. Because of this context and history, we disagree with Murray’s assertion that it could not have been reasonably foreseeable that C.M. would be traumatized and miss work as a result.
¶47 Finally, Murray argues that the restitution order was at odds with our decision in State v. Bickley, 2002 UT App 342, 60 P.3d 582. We disagree. In Bickley, the defendant was charged with criminal nonsupport, and the “Amended Information listed the nonpayment period from February 1, 1997 to January 10, 2000.” Id. ¶ 3. After the defendant pleaded guilty to this offense, however, the district court awarded restitution for arrears that occurred prior to 1997. Id. ¶¶ 3–4. We reversed that decision on appeal, concluding that the court could not impose restitution for pre-1997 arrears “without making inferences.” Id. ¶ 12 (quotation simplified). Because of this, we held that it was not “firmly established” that the defendant was in fact responsible for the pre-1997 arrears. Id.
¶48 Bickley is readily distinguishable. The arrears at issue in Bickley plainly fell outside the conviction (which, again, was specifically limited to arrears that occurred from February 1997 on). As discussed above, however, the offense at issue here was the violation of a protective order, and that protective order was by definition linked to some prior conduct. Thus, unlike Bickley, it’s not at all clear that this restitution order was based on damages that fell outside of the offense at issue. In addition, there’s no suggestion that the district court in Bickley based its restitution award for the pre-1997 arrears on any evidence or testimony. Id. ¶¶ 2–4, 12. This is why we faulted the court for “making inferences” and imposing restitution for arrears that were not “firmly established.” Id. ¶ 12 (quotation simplified). But again, this was not the case here, where the restitution order was based on sworn testimony from the hearing itself.
¶49 In short, we can overturn the court’s proximate cause determination only if Murray has established “that the clear weight of the evidence contradicts the court’s ruling.” Chadwick, 2021 UT App 40, ¶ 6 (quotation simplified). Having reviewed the record, we conclude that C.M.’s testimony about the effects of the protective order violation on her psyche and her ability to function, coupled with the evidence presented by UOVC about the days that she missed at work, was sufficient to support the court’s finding that Murray’s criminal conduct proximately caused C.M. to miss this work, thereby causing these damages. Because the court’s ruling was not against the clear weight of the evidence before it, we affirm that determination.
CONCLUSION
¶50 The district court erred when it required Murray to pay $744.19 in restitution for moving expenses. We accordingly vacate that portion of the court’s order. But the court did not err when it ordered restitution in the amount of $5,520.28 for lost wages. We accordingly affirm the restitution award of $5,520.28 for lost wages.
[1] UOVC was represented by an attorney from the Utah Attorney General’s office who serves as “agency counsel” for UOVC.
[2] In between the court’s oral and written rulings, Murray filed a motion to reconsider. But after the written ruling was entered, Murray filed a timely notice of appeal. Despite the fact that this notice of appeal had been filed, and over an objection from UOVC, the district court subsequently held oral argument on Murray’s motion to reconsider, after which it denied the motion.
On appeal, both parties now agree that Murray’s notice of appeal divested the district court of jurisdiction to rule on the motion to reconsider. We agree with the parties. Because the motion to reconsider was filed before the written ruling, it was a prejudgment motion to reconsider the oral ruling. While the court was “free to consider” what was essentially a request for “reargument” at “any time before entering the final judgment,” Gillett v. Price, 2006 UT 24, ¶ 7 n.2, 135 P.3d 861, the court did not do so. Instead, it issued the written final judgment. When Murray then filed his notice of appeal after that final judgment had been entered, his notice of appeal “divest[ed] the district court of jurisdiction.” Garver v. Rosenberg, 2014 UT 42, ¶ 11, 347 P.3d 380. Of note, our supreme court has held that a prejudgment motion to reconsider does “not toll the time for appeal once a final judgment [is] entered.” Gillett, 2006 UT 24, ¶ 7 n.2. We likewise see no basis for holding that a prejudgment motion to reconsider would somehow undermine the finality of a written final judgment or allow the court to retain jurisdiction after a notice of appeal has been filed. As a result, we agree with the parties that the only ruling properly before us is the original restitution order.
[3] The legislature recently amended the CVRA. The most recent version of the statute provides that the “court shall order a defendant, as part of the sentence imposed,” to “pay restitution to all victims: (i) in accordance with the terms of any plea agreement in the case; or (ii) for the entire amount of pecuniary damages that are proximately caused to each victim by the criminal conduct of the defendant.” Utah Code § 77-38b-205(1)(a) (2023).
[4] The version of the statute that governed at the time of Murray’s sentencing did not expressly state that restitution could be awarded for damages “proximately caused” by the offense, see Utah Code § 77-38a-302(1) (2019), but our supreme court had interpreted that statute as containing such an allowance, seeState v. Ogden, 2018 UT 8, ¶¶ 31–48, 416 P.3d 1132. The statute has since been amended to expressly incorporate the proximate cause standard. See Utah Code § 77-38b-205(1)(a)(ii) (2023).
[5] Something somewhat similar can be true outside the proximate cause context too. In State v. O’Bannon, 2012 UT App 71, ¶ 38, 274 P.3d 992, for example, we recognized “a basis under Utah law for holding a defendant culpable for causing death even when other factors contributed to the victim’s death.”
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Joseph N. Twitchell appeals from a divorce decree and appurtenant findings of fact and conclusions of law, arguing that the district court failed to consider relevant statutory factors when forming its custody determination, awarded him less parent-time than the statutory minimum, and erroneously calculated his child support obligation based on an inaccurate accounting of the income of his ex-wife, Jazmin S. Twitchell. We find Joseph’s arguments persuasive on each of these issues, and accordingly, we remand for further proceedings.
BACKGROUND
¶2 Joseph and Jazmin[1] were married in 2016 and share one child (Child), who was born in May 2017. The parties “separated about a year after she was born.” Shortly thereafter, in June 2018, Jazmin filed for divorce, citing “irreconcilable differences.”
¶3 The court issued temporary orders in December 2018, awarding the parties joint legal custody of Child and designating Jazmin as the primary physical custodian, “subject to [Joseph’s] right to parent-time.” As to the parent-time schedule, the court directed the parties to follow the minimum schedule set out in section 30-3-35 of the Utah Code, with Joseph generally “designated as the non-custodial parent,” meaning that he could exercise parent-time on alternating weekends. In addition, the temporary orders granted Joseph an additional overnight with Child “every Thursday night,” with Joseph keeping Child for the weekend when it was one of his parent-time weekends and returning Child to Jazmin’s care by noon on Friday when it was not.
¶4 As the case proceeded to trial, Jazmin filed her financial disclosures, dated November 7, 2019. In her disclosures, Jazmin reported her gross monthly income as $2,111. In this document, under an entry entitled “Employment Status,” Jazmin listed the name of a child care center where she worked at some point. Under an entry for “Name of Employer,” she listed a local private school. Jazmin also filed a supplemental disclosure, dated September 23, 2019, informing the court that she had been serving as a “houseparent” at the private school since September 1, 2019, for which she received no monetary compensation but was provided room and board. Jazmin included a letter from a representative of the school who estimated that the value of the housing and utilities provided to Jazmin was $980 per month.
¶5 A two-day trial was held in December 2019, at which multiple witnesses testified. During Joseph’s testimony, he described instances of physical and verbal altercations beginning a few months into the parties’ marriage. He averred that the first time things became physical between the two was in November 2016, when stress regarding the upcoming holiday season resulted in an argument and Jazmin eventually “going after [him] with a knife,” cutting his hand. Joseph also described a time in Spring 2017 when he and Jazmin were in another argument, and he “went to go give her a hug and apologize . . . and she bit [his] right arm.” He then described one more instance where Jazmin told Joseph “she hated [him], over and over and over again,” which prompted him to threaten leaving with Child. In response, Jazmin “slapped or hit [him] with something across the face.” Joseph also presented photographs of injuries he sustained from each of these incidents, which were admitted into evidence without objection.
¶6 Several witnesses also testified as to their observations of Child’s condition once she went from Jazmin’s to Joseph’s care. One witness testified that on multiple occasions when Joseph received Child from Jazmin, Child had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, to the point that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Joseph also produced evidence documenting incidents of what he characterizes as “assaults” from other children at a daycare while Child was in Jazmin’s care.
¶7 Jazmin testified about her employment history since the parties’ separation. During the marriage, Jazmin had been “a stay-at-home mom,” but she started a job “within two weeks of leaving” to help provide for Child. She testified to working at a child care center from approximately July 2018 until March 2019, when she left to accept an offer to work for higher pay at another daycare center. She worked at that second center full-time until October 2019. Jazmin began serving as a houseparent at the private school in September 2019, a role she was still working in at the time of trial.
¶8 In addition to her financial disclosure in which she reported the aforementioned $2,111 figure, Jazmin also offered her 2018 tax return into evidence. That return listed only the first child care center as her employer and an annual gross income of $7,044.75—which would translate to approximately $587 per month. Jazmin nevertheless confirmed at trial that her gross monthly income was $2,100. When asked if that amount included the $980 value of her housing and utilities, she stated, “No. That . . . doesn’t have anything to do with that.” When asked about her current employment, she testified that she had just started working as a substitute teacher earning $75 per day, which she “guesstimate[d]” she did two to three days per week. Based on that “guesstimate,” Jazmin testified that she earned approximately $813 per month from substitute teaching as opposed to the $2,100 in her financial declaration. Jazmin also confirmed that, at the time of trial, she had no sources of income other than her “service as a houseparent, [and her] income from substitute teaching.”
¶9 Later, on cross-examination, when asked about the $2,111 reported as her gross monthly income in her disclosure, Jazmin admitted that there was actually “no documentation being provided with that [disclosure] that would substantiate that number.” While Jazmin was being cross-examined, the court interjected and expressed its confusion as to whether the $980 value of her housing expenses had been included in her reported monthly income; although Jazmin never answered the court directly, her attorney asserted that it was included within that amount (contradicting Jazmin’s earlier testimony in which she had stated the opposite). Jazmin also stated that at the time of trial, she had actually worked as a substitute teacher on only one occasion up to that point.
¶10 Testimony was also given by a representative of the private school, whom Jazmin had contacted to secure documentation of the value of her housing and utilities. A final draft of a letter from the representative was attached to Jazmin’s supplemental disclosure. But at trial, Joseph offered evidence of an earlier draft of the letter in which the representative had originally stated that the value of what Jazmin received was estimated at $1,800 per month for rent and $1,000 per month for utilities, whereas the amount given in the final letter was $980 for both rent and utilities. The representative testified that she had sent the initial draft to Jazmin’s grandmother asking if it was “acceptable,” and either Jazmin or her grandmother had then asked additional questions about the square footage and what portion of the house Jazmin was actually living in, and whether that was reflected in the amount the representative gave. This prompted the representative to change the amount to $980 in the final letter, based on a “pro-rated amount” that seemed more consistent with the part of the house where Jazmin was living.
¶11 The court issued findings of fact and conclusions of law in April 2020.[2] While it awarded the parties joint legal custody of Child, it also found that it was in Child’s “best interest” that Jazmin be awarded primary physical custody. In support, the court cited the following findings: Jazmin had primary physical custody of Child since the parties separated, and the parties had been “following” the parent-time schedule imposed by the court in its temporary orders, consisting of “alternating weekends, with [Joseph] being awarded overnight every Thursday”; Child was “happy and well[-]adjusted and [was] progressing well developmentally”; Child was “closely bonded to [Jazmin] as she ha[d] been the primary custodial parent since birth, while [Joseph] was the primary bread winner in the family”; it was in Child’s “best interest . . . to maintain a close relationship with her half sister,” of whom Jazmin has primary physical custody; Jazmin had “exhibited good parenting skills” and was “of good moral character, and emotionally stable”; Jazmin had “exhibited a depth and desire for custody of [Child] since . . . birth”; Jazmin had “a flexible work and school schedule and she ha[d] the ability to provide personal care rather than surrogate care”; Jazmin had experience in early childhood education; and Jazmin “exhibited sound financial responsibility” whereas the court was “concerned about [Joseph’s] lack of financial responsibility” based on his debt accumulations. In the findings, the court also expressed its “concern[] about the alleged physical abuse between the parties during the marriage” and therefore found it “appropriate” for the exchanges of Child to occur at a police department safe zone located roughly halfway between the parties’ homes.
¶12 The court additionally noted its consideration of the factors outlined in section 30-3-10.2 of the Utah Code, finding in particular that Child’s “physical, psychological, emotional and development needs will benefit from the parties sharing joint legal custody.” But the court listed several reasons under these factors why joint physical custody would not be appropriate, finding that the “parties do not effectively communicate with each other”; they lived “approximately 60 miles” apart; Joseph “participated in raising [Child] but not to the extent that [Jazmin] did”; “[t]o date there ha[d] not been . . . opportunities for either parent to protect [Child] from any conflict that may arise between the parties, due to [Child’s] age”; and “the parties’ relationship ha[d] stabilized and once these divorce proceedings have concluded it is anticipated the parties will be able to cooperate with each other and make appropriate joint decisions regarding [Child].”
¶13 As to parent-time, the court concluded that Joseph’s parent-time “shall be, until [Child] starts Kindergarten, every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.” And on weeks that ended with Jazmin’s designated weekend, Joseph “shall return [Child] to [Jazmin] by Friday at noon, after his Thursday overnight visit.” The court also concluded that “[t]he parties shall follow the holiday parent time pursuant to Utah Code Ann. § 30-3-35” but that Joseph “shall be awarded six[ ]weeks of extended summer vacation instead of four[ ]weeks, consistent with Utah Code Ann. § 30-3-35 and by stipulation of [Jazmin] at closing arguments.”
¶14 Regarding child support, the court found that Jazmin “earn[ed] $980 per month gross wage from her house parent job” and “approximately $780 per month” from substitute teaching. It therefore calculated her gross monthly income at $1,760 for child support purposes. The court then found that Joseph’s average gross income is $5,011 per month, and therefore his “child support obligation is $582 per month.”
¶15 The court entered a decree of divorce in June 2020, in which it largely echoed the parent-time findings, ordering that Joseph’s parent-time “shall be every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m. On [Jazmin’s] weekend with the parties’ child, [Joseph] shall return [Child] to [Jazmin] by Friday at noon following his Thursday overnight parent time.” And once Child “commences Kindergarten [Joseph’s] parent time shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” The decree did not mention a schedule for holidays or extended/vacation parent-time. The decree also reiterated what the court found to be the parties’ respective incomes, and accordingly it memorialized its decision ordering Joseph to pay $582 per month in child support.
¶16 Joseph promptly appealed the findings of fact and conclusions of law, as well as the divorce decree.
ISSUES AND STANDARDS OF REVIEW
¶17 On appeal, Joseph presents two main issues for our consideration. First, he attacks the district court’s custody determination on two bases, arguing that the court’s custody conclusion and the underlying factual findings are deficient because it failed to consider certain relevant factors and that the court erred in awarding him less than the minimum time provided by statute without explaining a reason to depart from the statutory minimum. “[W]e review the district court’s custody and parent-time determination for abuse of discretion.” T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified).
¶18 Second, Joseph challenges the district court’s child support determination, asserting that it made errors in calculating Jazmin’s income, resulting in an inaccurate child support obligation.[3] “In reviewing child support proceedings, we accord substantial deference to the [district] court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Hibbens v. Hibbens, 2015 UT App 278, ¶ 17, 363 P.3d 524 (quotation simplified).
ANALYSIS
I. Custody and Parent-Time
A. Consideration of the Relevant Factors
¶19 Joseph first asserts that the district court erred by failing to adequately consider certain statutory factors in formulating its custody determination. Specifically, he asserts that two factors did not receive the attention he feels they deserved by the district court, namely, any “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent.” See Utah Code Ann. § 30-3-10(2)(a), (d) (LexisNexis 2019). We agree with Joseph that it is not clear from the district court’s findings that it considered evidence regarding abusive behavior by Jazmin, neglect and injuries to Child, or Jazmin’s moral character. Accordingly, we remand for the court to fully evaluate that evidence through supplemented or additional findings.
¶20 “In all custody determinations, the district court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Furthermore, when “determining any form of custody and parent-time” arrangement, the district court “shall consider the best interest of the child and may consider [any] factors the court finds relevant” to that end, including certain factors that are specifically articulated in the Utah Code. See Utah Code Ann. § 30-3-10(2). Importantly, not all these factors are “on equal footing”; instead, the district court generally has “discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” T.W. v. S.A., 2021 UT App 132, ¶ 16, 504 P.3d 163 (quotation simplified).
¶21 Determining which factors the court must address in a given case, and to what degree, presents a tricky task. Inevitably, some factors will loom larger in a given case than other factors, and “[t]here is no definitive checklist of factors to be used for determining custody.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). Consequently, “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. On the other hand, a “court’s factual findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate. See Barnes v. Barnes, 857 P.2d 257, 261 (Utah Ct. App. 1993) (“The record is replete with highly disputed evidence relevant to the custody issue which is not dealt with at all in the findings. The findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children.”); Sukin, 842 P.2d at 925 (“Whenever custody is contested and evidence presents several possible interpretations, a bare conclusory recitation of factors and statutory terms will not suffice. We must have the necessary supporting factual findings linking those factors to the children’s best interests and each parent’s abilities to meet the children’s needs.” (quotation simplified)).
¶22 Joseph asserts that the district court failed to consider evidence presented at trial of domestic violence Jazmin had perpetrated against him as well as neglectful behavior Jazmin had purportedly inflicted on Child. Specifically, Joseph points to his own testimony at trial that Jazmin had slapped him in the face hard enough to leave red marks, had attempted to stab him with a pocket knife, and had bitten him. Joseph also presented photographic exhibits purporting to show his injuries from these incidents. Joseph also points to testimony at trial and an exhibit he introduced into evidence tending to show injuries that Child sustained while she was in Jazmin’s care. One witness testified that when Joseph received Child from Jazmin, Child often had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, such that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Finally, Joseph asserts that the court did “not analyze or even mention . . . multiple incidents” in which Jazmin supposedly “engaged in deceitful tactics” during the litigation. Specifically, Joseph asserts that Jazmin instructed a witness on what to testify regarding Jazmin’s income from her houseparent job, that Jazmin and another witness mischaracterized the events that precipitated an incident when the police were called around the time of the parties’ separation, that Jazmin claimed that the parties were married on a date different from that indicated on their marriage certificate, and that Jazmin supposedly attempted to manipulate the testimony of her ex-husband in the case.
¶23 With respect to “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent,” see Utah Code Ann. § 30-3-10(2)(a), (d), the court made only the following finding: “[Jazmin] has exhibited good parenting skills, is of good moral character, and emotionally stable.” It then proceeded to emphasize the facts it believed supported Jazmin’s bid for custody: that Jazmin had been Child’s primary caretaker; that Child had a bond with Jazmin’s other child, her half-sister; that Jazmin had made sure Joseph received his parent-time in accordance with the temporary orders; that Jazmin had “a depth and desire for custody”; that Jazmin had a flexible schedule that would allow her to provide personal care for Child; that Jazmin had taken Child to her medical appointments; and that Jazmin was financially responsible, “industrious,” and “goal oriented.” The court made no findings regarding Joseph’s parenting abilities, past conduct, bond with Child, etc., except to express concern that he was in debt.[4] Finally, the court stated that it was “concerned about the alleged physical abuse between the parties” and concluded it was therefore appropriate for them to exchange Child at a police department safe zone.
¶24 “To ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Sukin, 842 P.2d at 924 (quotation simplified). The court’s finding that Jazmin “has exhibited good parenting skills, is of good moral character, and emotionally stable” is inadequate for us to determine whether the court exceeded its discretion in assessing the abuse/neglect and moral character factors or how those factors impacted Child’s best interests. Likewise, the court’s expression of “concern[] about the alleged physical abuse between the parties during the marriage” tells us nothing about how or even if the court weighed the abuse allegations in its custody evaluation. Indeed, it is not clear to us that the court considered this factor at all in assessing which parent should be awarded custody, as it mentioned the factor only in the context of concluding that it would be “appropriate” for the exchanges of Child to occur at a police department safe zone. Without at least some discussion of the evidence the court relied on in assessing the factors and how the court related the factors to Child’s best interests, the court’s findings regarding the custody factors are inadequate. See, e.g., K.P.S. v. E.J.P., 2018 UT App 5, ¶¶ 30–42, 414 P.3d 933 (determining that the court’s factual findings were inadequate where it made factual conclusions but did not discuss the evidence underlying those conclusions and rejected the guardian ad litem’s recommendation without explanation); Bartlett v. Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296 (rejecting the court’s conclusory finding that the mother was “better able and equipped to support and sustain a positive relationship between the children and their father” where the “court identified no subsidiary facts supporting this finding” and had, in fact, “admonished Mother for denying Father court-ordered access to the children” (quotation simplified)); Barnes, 857 P.2d at 261 (rejecting as inadequate the court’s finding that “[t]he Plaintiff’s level of commitment to her children during the course of this separation has exceeded that of the Defendant and that’s been established by their actions during the course of their separation” because “[t]he findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children”); Roberts v. Roberts, 835 P.2d 193, 196–97 (Utah Ct. App. 1992) (deeming inadequate findings that “Husband has physically abused Wife during the marriage” and that “both parties have participated in acts that bear on their moral character,” accompanied by a recitation of examples of each party’s bad behavior because the recitation did not give any “guidance regarding how those acts bear on the parties’ parenting abilities or affect the children’s best interests” (quotation simplified)); Cummings v. Cummings, 821 P.2d 472, 478–79 (Utah Ct. App. 1991) (reversing the district court’s custody determination based on its failure to make findings regarding evidence relating to important custody factors); Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah Ct. App. 1989) (holding that it was an abuse of discretion for the court’s findings to “omit any reference” to a custody evaluation and evidence relating to the bond between father and son, the father’s status as primary caretaker pending trial, the fact that the child thrived while in the father’s care, and the son’s preference for living with his father).
¶25 Thus, we conclude that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against Jazmin, her alleged neglect of Child, and her moral character, as well as the effect that evidence had on its best-interest analysis. Accordingly, we vacate the district court’s custody and parent-time order and remand for the court to revisit that evidence and enter additional or supplemented findings, as necessary.
B. Deviation from Statutory Minimum Parent-Time Schedule
¶26 Joseph next argues that the district court committed reversible error by awarding him less than the minimum parent-time he is guaranteed by statute. Because we agree that the court’s custody award indeed creates a situation in which Joseph is guaranteed less than the statutory minimum, without explaining its reasoning in adequate factual findings, we conclude that this is an additional reason to vacate the court’s parent-time order.
¶27 In the event that the parents of a minor child litigating that child’s custody are unable to agree to a parent-time schedule, our legislature has codified a “minimum parent-time [schedule] to which the noncustodial parent and the child shall be entitled.” See Utah Code Ann. §§ 30-3-35(2), 30-3-35.5(3) (LexisNexis 2019 & Supp. 2021). In fashioning its parent-time order, the court may either “incorporate[] a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or . . . provide[] more or less parent-time” than outlined in those sections, but in either case “[t]he court shall enter the reasons underlying the court’s order for parent-time.” Id. § 30-3-34(4) (Supp. 2021). The court’s reasoning must be outlined in adequate factual findings, which must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). Thus, the statutory minimum “provides [the court with] a presumptive minimum, but the district court still retains discretion to award more [or less] time” to the noncustodial parent, so long as it identifies “the reasons underlying its order” in sufficiently detailed factual findings. See T.W. v. S.A., 2021 UT App 132, ¶ 30, 504 P.3d 163 (quotation simplified).
¶28 There is a separate section dealing with the minimum schedule for children who are under five years of age, see Utah Code Ann. § 30-3-35.5 (2019), and those who are between five and eighteen years of age, see id. § 30-3-35 (Supp. 2021). As Child was born in May 2017, she is still currently younger than five, so section 30-3-35.5 applies. Under that section, Joseph is entitled to “one weekday evening between 5:30 p.m. and 8:30 p.m.,” “alternative weekends . . . from 6 p.m. on Friday until 7 p.m. on Sunday,” certain holidays, and “two two-week periods, separated by at least four weeks, at the option of the noncustodial parent.” See id. § 30-3-35.5(3)(f) (2019).
¶29 Under the court’s findings and the divorce decree, Joseph receives parent-time “every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.,” and when it is Jazmin’s weekend, he returns Child to Jazmin “by Friday at noon following his Thursday overnight parent time.” Although Joseph correctly points out that the parent-time order requires him to return Child one hour earlier on Sundays than provided for in the statutory minimum schedule, Joseph ultimately receives more than the minimum parent-time required by statute while Child is under five, because he receives an additional weekday overnight, whereas the statute requires only a weekday evening visit. See id. Thus, for the time being, Joseph receives more than the statutory minimum.
¶30 But the situation changes when Child starts school. The district court ordered that once Child “commences Kindergarten,” Joseph’s parent-time “shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” This schedule deviates from the statutory minimum, under which Joseph is entitled to “[a]lternating weekends . . . from 6 p.m. on Friday until Sunday at 7 p.m.,” and one weekday evening from either “5:30 p.m. until 8:30 p.m.” or, “at the election of the noncustodial parent, one weekday from the time the child’s school is regularly dismissed until 8:30 p.m.” Id. § 30-3-35(2)(a)(i), (2)(b)(i)(A) (Supp. 2021) (emphases added). Thus, under the court’s parent-time order, once Child begins kindergarten Joseph is required to return her to Jazmin one hour early on his weekends and one-and-a-half hours early during his weekday evenings.
¶31 As Joseph convincingly points out, while these discrepancies “may seem minor” to a casual observer, for “the non-custodial parent on a minimum visitation schedule, hours matter.” And, more importantly, the court did not explain—or even acknowledge—that it was departing from the statutory minimum. While section 30-3-35 is referenced in the findings of fact with respect to Joseph’s parent-time for holidays and summer vacation, the court made no other mention of the statutory minimum schedule.[5] As noted, when making its custody decision the court must give the “reasons underlying” its decision. See id. § 30-3-34(4); T.W., 2021 UT App 132, ¶ 30. The court did depart from the statutory minimum in this case, and it gave no reason for doing so in its findings.
¶32 As a result, we are prevented from conducting meaningful “appellate review to ensure that the district court’s discretionary determination was rationally based.” See Lay, 2018 UT App 137, ¶ 19 (quotation simplified). Accordingly, the findings in support of the district court’s parent-time order are insufficient, leaving us with no choice but to remand the matter for the court to adopt the statutory minimum schedule or otherwise explain its reasoning for departing from the minimum through adequate factual findings. See id.
II. Child Support
¶33 Joseph next challenges the district court’s child support determination, arguing that its determination of Jazmin’s income was entirely unsupported by the evidence and insufficiently explained. Because we agree that the court did not sufficiently explain how it reached the number it did in calculating Jazmin’s monthly income, we remand for entry of additional findings.
¶34 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994. Each parent’s “gross income” for purposes of child support “includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, . . . [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis 2018). “Income from earned income sources is limited to the equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2). “[C]hild support is appropriately calculated based on earnings at the time of trial,” but district courts also “have broad discretion to select an appropriate method” of calculating each parent’s income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998).
¶35 In this case, there were a number of potential bases for the court to assess Jazmin’s income. First, it could have accepted the declared full-time income in her financial declaration of $2,100, which she initially reaffirmed at trial. Second, it could have used her part-time substitute teaching income of approximately $813 per month combined with her in-kind income of $980 per month to reach a monthly income of $1,793. Third, it could have imputed her full-time income based on her substitute teaching salary of $75 per day for a total of $1,625 per month. There may, perhaps, have been other methods the court could have employed as well, had it adequately explained its reasoning.
¶36 Generally, “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified). And had the court taken one of the approaches outlined above, or another approach for which its reasoning was apparent, we would be inclined to affirm the court’s decision.[6] However, here the district court’s finding that Jazmin earned “approximately $780 per month” from substitute teaching does not align with any evidence submitted at trial, nor, so far as we can tell, can it be extrapolated from that evidence.[7] As Joseph observes, this number “do[es] not appear to come from the documentary or testimonial evidence at all.” Jazmin testified that she earned $75 per day working as a substitute teacher but that she worked only two to three days a week. Using these numbers, she reached a “guesstimate” of her monthly income of $813 per month ($75 per day x 2.5 days per week x 52 weeks per year / 12 months). While Jazmin was admittedly unsure about the amount she would be able to earn, the $780 figure adopted by the court appears to not be supported by the evidence presented at trial. While we are reluctant to reverse a district court’s child support order on this basis considering the small discrepancy between the $813 and $780 figures, the fact remains that we are unable to identify the “steps by which the ultimate conclusion on [this] factual issue was reached.” See id. (quotation simplified).
¶37 In such situations, “without the benefit of the reasoning and additional findings by the [district] court,” we must remand the child support decision to the district court to detail its full reasoning, through adequate findings, for why it chose the income amount for Jazmin that it did. See Bell v. Bell, 2013 UT App 248, ¶ 19, 312 P.3d 951.
CONCLUSION
¶38 This appeal compels us to remand the case because the district court’s findings and conclusions were infirm in several respects. First, the court failed to address disputed evidence that was highly relevant to the court’s custody determination. Second, the court’s order awards Joseph less than the statutory minimum parent-time once Child starts kindergarten, without explaining why or recognizing that it did so. And third, the court’s findings regarding Jazmin’s income contain insufficient detail for us to adequately review its reasoning.
[1] Because the parties share the same surname, we follow our oft-used practice of referring to them by their first names, with no disrespect intended by the apparent informality.
[2] Other than mentioning that “both parent[s] can step up and be good parents and both parents in large part have been good parents,” the court did not announce a ruling from the bench at the conclusion of the trial. Instead, it asked both parties to prepare proposed findings of fact and conclusions of law and heard closing arguments at a subsequent hearing. Ultimately, with only a few minor alterations, the court adopted Jazmin’s findings of fact and conclusions of law in their entirety.
While we would not go so far as to say that it is inappropriate for the court to fully adopt one party’s proposed findings, before signing off the court should confirm that those findings conform to the evidence presented at trial and that the findings sufficiently explain the court’s reasoning for the decision. In this case, it appears that the court adopted Jazmin’s version of the evidence without confirmation of that evidence and without disclosing the steps by which the ultimate conclusion on each factual issue was reached.
[3] As part of his broader challenge to the district court’s child support determination, Joseph purports to include another argument: that the court erred in dividing the parties’ debts. However, Jazmin points out that while Joseph included this argument in his articulation of the issues on appeal, he “did not [substantively] address the debt issue in his brief.” Indeed, we find a dearth of any argument regarding the debt distribution in Joseph’s brief; accordingly, Joseph has failed to properly raise such an argument for our consideration.
[4] We are troubled by the manner in which the district court’s findings focused exclusively on Jazmin rather than comparing hers and Joseph’s relative character, skills, and abilities. See Woodward v. LaFranca, 2013 UT App 147, ¶¶ 22, 26–28, 305 P.3d 181 (explaining that a court’s findings must “compare the parenting skills, character, and abilities of both parents” and reversing a finding that the emotional stability factor weighed in favor of mother because it was based solely on the determination that mother was emotionally stable without any findings regarding father’s emotional stability; “the question for the court was not whether Mother was emotionally stable, but whether Mother was more emotionally stable than Father” (quotation simplified)), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. We urge the court on remand to make the appropriate comparisons in revising its findings.
[5] Furthermore, section 30-3-35.5 is not referenced at all, which would have been the operative section from the time the decree was entered until Child turns five.
[6] While a finding that aligned with the various numbers presented at trial would have met the bare minimum threshold for sufficiency, we note that this case would substantially benefit from further analysis. First, the court did not address the inconsistencies in Jazmin’s trial testimony regarding her income. Jazmin first agreed that the $2,111 monthly income in her financial declaration was accurate but then went on to testify that she made only $75 per day substitute teaching and worked only two to three days per week. But the court did not address or explain the reasoning behind its resolution of this inconsistency. Second, Joseph presented evidence that Jazmin’s housing and utilities had been undervalued. The court’s decision included no discussion of the conflicting evidence regarding the value of Jazmin’s in-kind earnings or its assessment of that conflicting evidence. On remand, the court’s findings could benefit from a more thorough discussion of the evidence and explanation for its resolution of these conflicts.
[7] In Jazmin’s post-trial brief, she stated, without any supporting evidence, that she earned $72 per day, for a total of $780 per month. This appears to be the source of the court’s number. As assertions in the post-trial brief are not evidence, the court could not rely on this number to calculate child support.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Today’s blog post is a guest post from Hire A Helper. This is not a paid placement. We hope you find it useful, if you or a loved one need this kind of help.
Domestic abuse happens more than you might think, and for a lot of reasons, it’s a complex issue to address.
According to “DoSomething”, a wide-reaching non-profit organization in the United States, about a quarter of women around the world will experience domestic abuse in their lifetime, and in fact, 85% of domestic abuse victims are women. It’s been estimated that half of all homeless women and children in the U.S. are fleeing domestic violence.
Victims are often left with nowhere to go due to emotional, social, and economic barriers for leaving an abusive relationship. For these reasons and more, it’s common for victims to stay in an abusive relationship when facing the alternative of living in a shelter or on the street.
Yet despite all this, some have discovered that oftentimes cyclical abuse can be stopped by simply solving for the economics of being able to afford a move.
The Movers Who Rescue Victims
Aaron and Evan Steed are co-founders of Meathead Movers, a brick-and-mortar chain that offers professional moving services. If you’re moving soon and you reside in California, they offer a variety of moving and storage services at the rate of 18,000 moves a year, which they claim makes them the largest independently owned moving company in the state.
But perhaps more impressive is that for domestic abuse victims, they offer these services for free.
Meathead Movers is one of a growing number of moving companies committed to helping victims of domestic violence move out of their abusive households at no cost.
After the California-based company was founded in 1997, frantic phone calls would come in from victims without financial means who were seeking to flee dangerous domestic violence situations, according to Dawn Ventura, Director of Marketing and Communications for Meathead Movers. They were pleas they couldn’t turn away, explained Ventura. “The brothers knew it was the right decision to get them out of there.”
The choice to provide moving services to victims for free was decided right away. It has remained their business policy for over 25 years.
Risks on the Job
Meathead Movers quickly found out there are more than financial risks when taking on this type of endeavor.
During one of their earliest rescue moves, the situation turned volatile when the alleged abuser of the victim came home in the middle of the move, Ventura told HireAHelper. “It was very scary for the (founders of Meathead),” she said. “Luckily, they were able to call law enforcement, who came to the scene and removed the abuser so that the move could be completed.”
After this experience, Meathead Movers decided to partner with a local shelter to make sure the victims and moving crew were safe and supported throughout the rescue process. In 2000, the company began its first official affiliation with a shelter called SLO Women’s Shelter.
“For the safety of our team and the victim, we only complete moves that the shelter partner has first had a chance to vet,” Ventura explained. The shelter determines the greatest need and works with the movers accordingly. “There is also always a shelter representative onsite throughout the move, and sometimes law enforcement, as needed,” she added. The company has since partnered with an additional seven shelters across California to help facilitate moves.
Though dangerous, this too remains far from the only challenge the company has faced over the years.
Back in 2008, during The Great Recession, Meathead Movers encountered what they described as “enormous” financial struggles. Ventura said that at one point, they thought they’d be closing their doors due to financial hardship. Even still, the company continued to offer free services to abuse victims. “We knew that it was our purpose and mission,” Ventura explained.
Today, Meathead Movers remains in operation after two decades of gradual growth and expansion, despite challenges. They have continued the policy of free rescues all throughout, and feel their success is proof altruism can exist within a successful moving business model.
As of 2022, they’ve helped relocate “hundreds” of domestic violence victims in the Southern Californian area for free.
A Moving Trend
Unfortunately, rescue services continue to be needed. No matter how many free moves Meathead Movers offers, as a localized chain, their reach covers only a small portion of victims of abuse. “In light of the growing cases of domestic violence, and on the heels of the national attention this free moving program has garnered, Meathead Movers is now encouraging businesses across the nation to step up and make an impact in their local communities as well,” Ventura said.
The good news is that many businesses have stepped up, including other moving companies.
Meathead Movers teammembers
In 2016, Meathead Movers launched the #MoveToEndDV campaign, challenging businesses to donate services for victims of domestic violence in their respective communities. Searching this hashtag still helps people find resources through social media. This trend has garnered the commitment of an increasing list of moving companies, as well as businesses in other sectors.
College HUNKS Hauling Junk and Moving — another store-run chain that offers professional moving services in dozens of cities across the U.S. — began offering its services for free during the month of October 2020 (which is Domestic Violence Awareness Month) in response to news reports of increasing domestic violence during pandemic lockdowns. Within the past year, College HUNKS has helped move more than 400 victims of domestic violence across the U.S., all at no cost to the victims.
How to Move Out Safely From a Domestic Violence Situation
There are multiple things to consider before you can safely remove yourself from an abusive situation.
Finding a moving company that can assist you in leaving an abusive household is incredibly helpful. But domestic abuse can be greatly helped just by beginning to plan. Here are what experts say are important steps along a successful path to freedom.
Call or email a professional helper for free.
First, know that you are not alone in your struggle. Every single day there is someone waiting for you to reach out.
Before you do anything, it’s useful to speak with a professional who can help you assess the situation and point you toward local resources. “Always, always, always contact your local shelter,” Ventura urged. “The resources that they offer are remarkable. And if there’s any way to call a domestic violence hotline, they are sure to help.”
You can contact the National Domestic Violence Hotline by calling 1-800-799-SAFE (7233) or texting “START” to 88788. Its website also has a live chat option. Though if you are in immediate danger, please call 911.
Physically look at a calendar, imagine by which day you could realistically remove yourself, essential items, and potential children from your location.
Some situations may require getting out of your home as soon as possible; but if you can help it, visualize the exit ahead of time.
Start by literally glancing at a calendar. Figure out the best times to pack up and leave, and where you already know you could stay once you’re out — even if it’s just temporary. Google nearby shelters and moving companies that may be able to help, even if you don’t plan on using them. Always explain your situation in private, and have a contingency plan in case your abuser shows up on move day.
Squirrel away some cash, if possible.
Though shelters and some moving companies provide their services for free, it’s still very helpful to have cash on hand when you move out. If possible, try to set up your own checking or savings account online or over the phone at a separate bank from your abuser so they can’t restrict access to the money.
Gather up your important documents and items into one portable place.
Start making copies of documents such as birth certificates, Social Security cards, insurance cards, health records, and anything else you’ll need as you transition to a new home. If you have extra car keys, medications, clothes, or evidence of domestic abuse (e.g., photos, police records), be sure to set those aside too. Store these items in a private place until you need them.
Prearrange school release permissions for any children you have.
If you have kids you can’t personally pick up from school, change the release privileges to a trusted friend or family member, so your abuser can’t pick them up.
Keep your activity private, as you may be being spied on.
It’s not unusual for abusers to monitor activity or even spy on their victims, so you should be very careful about leaving behind any evidence of your planning.
Avoid using your home computer for research and visit the public library or a friend’s house instead. If you can, get your own, private cell phone, since there are many apps that allow partners to surveil your phone activity and accounts. Always turn off your Bluetooth and location services inside apps like Snapchat or Messenger, and close all tabs and clear all browsing history after searching for resources. Also, get rid of or “lose” any compromised cell phone if you fear it may be monitored, or do a factory reset. But make sure you have a handheld device ready to call for help if things become dangerous.
On move day, act quickly and confidently.
If you know of any weapons in the home, lock them away ahead of time if possible, just in case. Change the login settings and security questions to your online accounts and turn off the GPS in your car. Though it is not always easy, attempt to follow through with your plan with confidence.
These Movers Offer Free Services to Domestic Violence Victims
Encouragingly, Meathead Movers and College HUNKS are only just the beginning.
Below is a non-exhaustive directory as a resource to help you or anyone you may know who is a victim. If you don’t see a company near where you live, search for movers in your area, or call a local company and ask if they have any connections or knowledge of a similar service.
Always Professional in Moving, Inc. is a family-owned and operated moving company in the Maricopa County of Arizona. They pledge to provide free moves to distressed victims in need of moving services in order to get away from domestic violence. Its owner, Bernadette Lavigne, is a victim of domestic violence and has made addressing the issue an important foundation of her company.
Aussie Moving provides full-service residential moving, as well as commercial moving and storage. The company pledges to provide free moving services to victims of domestic violence in coordination with a local shelter in Santa Barbara County.
Located in the Dallas-Fort Worth metro area, Brown Box Movers offers a variety of services, from residential moving, to move in/move out cleaning, to junk removal. The company pledged these services to help those experiencing domestic violence in the area.
Einstein moving company has locations throughout Texas, including Austin, Dallas, Houston, San Antonio and more, and is able to complete statewide moves. The company pledges up to $2,000 per month worth of moving services to Safe Place in Austin.
Elite Moving Services serves the entire state of Iowa. They pledged to offer three moves every month to domestic violence victims at no charge. Their free service includes the trailer, labor, and all moving equipment needed to move within 75 miles of the victim’s location.
Gentle Giant is involved with several charities, including a strong alliance with charities involved with housing assistance and homeless prevention. Gentle Giant pledges to offer a free move to those in need of help getting out of a domestic violence situation.
Contact: (801) 562-0093 (Sandy), (801) 809-7800 (SLC), (801) 735-4144 (Provo) or send a message
You may recognize Helping Hands Moving and Maids from the show Extreme Makeover, or from its extensive charity work in Utah, as well as overseas. The company pledges its services to domestic violence victims in need.
Moving at Ease is a family business that tailors its moving services to senior citizens and their families. It can accommodate local and long-distance moves. The company pledges to volunteer its time and resources to help those in need in the Phoenix metro area.
Parks Moving & Storage is a fourth-generation, family-owned business with locations in Pittsburgh, Harrisburg and State College, PA. It is a women-owned business, and the owner is also a victim of domestic violence. The company pledges to offer packing and moving services to victims and their affected family members who need them.
VMA employs a 100% veteran workforce and self-identifies as a “values-based company”. It is partnered with SafeHaven to provide free services to victims of domestic violence.
STATE OF UTAH,
Appellant,
v. JOEL CHANCE REDDEN,
Appellee.
Opinion
No. 20200700-CA
Filed January 27, 2022
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 191500842
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellant
Gary W. Pendleton, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
POHLMAN, Judge:
¶1 Joel Chance Redden committed two domestic violence offenses in October 2019, and the district court entered judgment on those convictions in January 2020. In the present case, Redden was charged with violating a protective order in October 2019 when he allegedly called his former girlfriend ten times. Later, the State sought to amend the information to add new charges for violating the protective order, enhanced from class A misdemeanors to third degree felonies based on the domestic violence enhancement statute. Redden opposed the enhancement, arguing that the new crimes had to be committed after his January 2020 convictions. The magistrate agreed with Redden and bound him over for trial on the new charges as class A misdemeanors. The State now appeals, arguing that it could enhance the charges so long as Redden is actually convicted of the new crimes within ten years after his January 2020 convictions. We agree with the State and therefore reverse.
¶2 Redden was subject to a protective order that prohibited him from contacting or communicating in any way with Michelle,[2] his former girlfriend. Notwithstanding this directive, Redden contacted Michelle on October 4, 2019, and threatened her. This conduct led the State to prosecute Redden in Weber County, and he pleaded guilty to stalking and violating a protective order, both third degree felonies. Redden entered his plea on December 4, 2019, and the judgment was entered on January 22, 2020 (the January 2020 convictions).
¶3 The present case arises out of Redden’s conduct on October 9, 2019. At that time, Redden was jailed in Texas on unrelated charges, and Michelle was visiting Cedar City, Utah. Beginning at 8:34 a.m., Redden allegedly telephoned Michelle ten times over the next three hours. According to Michelle, she answered the second call, which was a collect call from Redden from the Texas jail. Michelle accepted the call and spoke to Redden briefly. She told him, “Just don’t ever call me again,” and hung up. She also answered one of Redden’s later calls and recorded it, but she did not accept it to speak with him.
¶4 After Michelle reported these phone calls to law enforcement, the State filed an information against Redden in Iron County on December 30, 2019. It charged Redden with two counts of violation of a protective order for his October 9 conduct. It pursued both counts as third degree felonies enhanced from class A misdemeanors based on Redden’s conduct underlying his January 2020 convictions. Yet the State did not present evidence of the January 2020 convictions at a May 2020 preliminary hearing, and consequently, Redden moved to reduce both counts to class A misdemeanors. Although the State moved to continue the hearing, the magistrate denied that request. The magistrate then agreed with Redden and found the State had not met its burden on enhancing the misdemeanors to felony charges, and the magistrate instead bound Redden over on the two counts as class A misdemeanors.[3]
¶5 The State next moved for leave to amend the information. While it would still pursue the two misdemeanor counts (Counts 9 and 10) that had already been bound over for trial, the State sought to include eight additional counts of violation of a protective order, which would be enhanced to third degree felonies based on Redden’s prior convictions. Over Redden’s objection, the magistrate allowed the State to amend the information.
¶6 At the preliminary hearing on the eight additional charges, the State presented evidence to support those eight counts. And unlike in the first preliminary hearing, the State included evidence of the January 2020 convictions. Still, Redden argued that the eight counts could be bound over only as misdemeanors because the January 2020 convictions did not qualify as “prior conviction[s]” to the eight alleged offenses
committed on October 9, 2019. Relying on Utah Code section 77-36-1.1(2)(c)(ii)(B), which applies when “the individual is convicted of the domestic violence offense . . . within 10 years after the individual is convicted of a qualifying domestic violence offense,” Utah Code Ann. § 77-36-1.1(2)(c)(ii)(B) (LexisNexis Supp. 2019), Redden asserted that to be enhanced to third degree felonies, the new offenses had to be committed within ten years after his January 2020 convictions. The State responded that even though “the prior conviction was for facts arising from October 4,” the enhancement provision in Utah Code section 77-36-1.1(2)(c)(ii)(B) required only that Redden be convicted of the new crimes within ten years after his January 2020 convictions.
¶7 The magistrate agreed with Redden that the eight counts could not be enhanced to third degree felonies under the statute. He then determined that the State had presented sufficient evidence to establish probable cause “that the offenses of violation of [a] protective order were committed in eight instances.” Accordingly, the magistrate bound Redden over for trial on all ten counts as class A misdemeanors.
¶8 In light of the magistrate’s decision finding no probable cause that Redden had committed the eight third-degree felonies as charged in the amended information, the State “decline[d] to file a second amended information bringing the charges in line with the Court’s findings.” Instead, it moved to dismiss all charges in lieu of amending the information.
¶9 The magistrate granted the State’s request and dismissed all charges against Redden. The two original misdemeanor charges were dismissed pursuant to rule 25(a) of the Utah Rules of Criminal Procedure, and the eight additional charges were dismissed pursuant to rule 7B(c).[4] The State now appeals the order of dismissal. See Utah Code Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may, as a matter of right, appeal from . . . (a) a final judgment of dismissal, including a dismissal of a felony information following a refusal to bind the defendant over for trial . . . .”); id. § 78A-4-103(2)(e) (2018) (providing that the Utah Court of Appeals has jurisdiction over appeals from criminal cases not involving first degree felonies).
ISSUES AND STANDARDS OF REVIEW
¶10 The State contends that the magistrate misinterpreted the
enhancement statute when he refused to bind Redden over on the eight counts as third degree felonies. The decision to bind over a criminal defendant for trial typically presents a mixed question of law and fact to which we grant some deference to the magistrate. See State v. Prisbrey, 2020 UT App 172, ¶ 18, 479 P.3d 1126. But because the bindover decision here turned on a question of statutory interpretation, we review it for correctness. See State v. Thompson, 2020 UT App 148, ¶ 13, 476 P.3d 1017.
¶11 Rather than defending the magistrate’s decision on its merits, Redden contends that this court lacks jurisdiction over the State’s appeal, asserting that the State was not entitled to appeal from a dismissal order entered at its own request. “Whether appellate jurisdiction exists is a question of law which we decide in the first instance.” State v. Arghittu, 2015 UT App 22, ¶ 12, 343 P.3d 709 (cleaned up).
ANALYSIS
The State’s Argument on Appeal
¶12 The State argues that the magistrate erred in determining that the domestic violence enhancement statute did not apply to the eight additional counts that it raised in the amended information. According to the State, it could enhance those charges from class A misdemeanors to third degree felonies so long as Redden is ultimately convicted on the charges within ten years after his January 2020 convictions. Thus, the State argues, “until and unless the State fails to convict Redden of the new domestic violence charges before January 22, 2030, the [statute] allows the State to prosecute the new charges as third-degree felonies.” We agree.
¶13 When we interpret a statute, “we look first to the best evidence of a statute’s meaning, the plain language of the act, and we do not look beyond a statute’s plain language unless it is ambiguous.” State v. Thompson, 2020 UT App 148, ¶ 33, 476 P.3d 1017 (cleaned up). “Wherever possible, we give effect to every word of a statute, avoiding any interpretation which renders parts or words in a statute inoperative or superfluous.” State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515 (cleaned up).
¶14 The crime that Redden is alleged to have committed— violating a protective order—is a class A misdemeanor but is subject to increased penalties in accordance with the domestic violence enhancement statute. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2019). That enhancement statute states, in relevant part,
(2) An individual who is convicted of a domestic violence offense is: . . .
(c) guilty of a felony of the third degree if:
(i) the domestic violence offense described in this Subsection (2) is designated by law as a class A misdemeanor; and
(ii)(A) the domestic violence offense described in this Subsection (2) is committed within 10 years after the individual is convicted of a qualifying domestic violence offense that is not a criminal mischief offense; or
(B) the individual is convicted of the domestic violence offense described in this Subsection (2) within 10 years after the individual is convicted of a qualifying domestic violence offense that is not a criminal mischief offense.
Id. § 77-36-1.1 (emphases added). As we read this plain language, section 77-36-1.1(2)(c) allows the State to enhance a class A misdemeanor charge to a third degree felony when a defendant either “commit[s]” or “is convicted of” the current crime “within 10 years after” the defendant “is convicted of a qualifying domestic violence offense.” Id. Thus, we agree with the State’s reading of the statute. Redden, tellingly, has not offered an alternative interpretation.
¶15 Further, we agree with the State’s application of the statute to this case. The parties do not dispute that Redden’s January 2020 convictions constitute “a qualifying domestic violence offense” under the statute.[5] Because it is still possible that Redden could be “convicted of” the eight current charges “within 10 years” after he was convicted of qualifying domestic offenses in January 2020, section 77-36-1.1(2)(c)(ii)(B) permits the State to enhance the eight counts to third degree felonies. The magistrate erred in concluding otherwise. The magistrate appears to have reasoned that subsection 77-36-1.1(2)(c)(ii)(B) applies only if the defendant’s current charges stem from conduct that occurred after the defendant was convicted of the qualifying domestic offense. But this interpretation would render subsection 77-36-1.1(2)(c)(ii)(A) superfluous because that subsection expressly addresses such circumstances—when the current offense “is committed” after the conviction on the qualifying domestic offense. We will not read the statute in a way that would conflate both subsections and make one subsection inoperative. See Stewart, 2018 UT 24, ¶ 12.
¶16 In sum, we conclude that for the enhancement under subsection 77-36-1.1(2)(c)(ii)(B) to apply, the State has until January 22, 2030, to obtain a conviction against Redden for the eight counts. We therefore reverse the magistrate’s decision binding Redden over on these counts as class A misdemeanors and direct that Redden be bound over on them as third degree felonies.
Redden’s Procedural Arguments
¶17 While Redden concedes that the State’s reading of the enhancement statute is appropriate, he nevertheless argues that the State’s appeal is improper, given that the State itself moved for the order of dismissal. In Redden’s view, the State could have petitioned for interlocutory review of the magistrate’s second bindover decision, but it was not allowed to “circumvent the appellate court’s discretion to grant or deny petitions for review by requesting a dismissal and then relying on the statutory provision granting [the] prosecution an appeal of right from a final judgment of dismissal.”[6] Redden thus asserts that this court does not have jurisdiction over this appeal.
¶18 Redden’s argument is foreclosed by precedent. In State v. Gomez, 722 P.2d 747 (Utah 1986), the trial court agreed with the defendant that the charges should be reduced to a lesser offense. Id. at 748. In response, the State refused to amend the information to conform to the court’s ruling and instead urged the court to dismiss the information. Id. The court then dismissed the information and the State appealed that dismissal. Id. at 748–49. On appeal, the Utah Supreme Court addressed the defendant’s threshold argument that the State could not use the order of dismissal, which the State itself requested, as a means of obtaining review of “a decision that would not otherwise be appealable as a matter of right.” Id. at 749. The supreme court explained that “the trial court’s determination that the charges should be reduced to an offense carrying a lesser penalty not charged in the original information prevented the State from proceeding on the original charges.” Id. Importantly, “[t]he effect of the trial court’s ruling was to block prosecution and, in effect, to dismiss the original charges.” Id. The supreme court concluded that, under these circumstances, “the State properly suggested that the trial court formally dismiss the information and then appealed from a final judgment of dismissal.” Id. (cleaned up). This court reached the same conclusion on similar facts in State v. Arghittu, 2015 UT App 22, 343 P.3d 709. Id. ¶¶ 15– 17 & n.4 (allowing the State to appeal after it had voluntarily moved for dismissal after the magistrate bound the defendant over on only a lesser and uncharged offense).[7]
¶19 Like Gomez, the magistrate’s decision binding Redden over on eight new misdemeanors rather than the charged eight third-degree felonies had the “effect of . . . block[ing] prosecution and . . . dismiss[ing] the [eight] original charges.” See Gomez, 722 P.2d at 479. The State therefore acted properly in moving to dismiss the information and then appealing from “a final judgment of dismissal.” See Utah Code Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may, as a matter of right, appeal from . . . (a) a final judgment of dismissal, including a dismissal of a felony information following a refusal to bind the defendant over for trial . . . .”); see also Gomez, 722 P.2d at 479; Arghittu, 2015 UT App 22, ¶¶ 15–17. Thus, Redden’s challenge to appellate jurisdiction is unavailing.
¶20 Lastly, in two ways, Redden challenges the fairness of the State’s actions. He first suggests that the State’s filing of the eight new charges against him violated the principles set forth in State v. Brickey, 714 P.2d 644 (Utah 1986). In Brickey, the Utah Supreme Court held that a prosecutor is prohibited from “refiling criminal charges earlier dismissed for insufficient evidence unless the prosecutor can show that new or previously unavailable evidence has surfaced or that other good cause justifies refiling.” Id. at 647 (emphasis added). Redden’s reliance on Brickey is misplaced, however, because no charges have been refiled against him. Rather, the State amended the information to add eight new charges that had not been addressed at the first preliminary hearing. The rules of criminal procedure allow such amendments “at any time before trial has commenced so long as the substantial rights of the defendant are not prejudiced.” Utah R. Crim. P. 4(d). The court also held a second preliminary hearing to address the eight additional charges. See id. (“If an additional or different offense is charged, the defendant has the right to a preliminary hearing on that offense . . . .”). Moreover, as the United States Supreme Court has recognized, a prosecutor’s initial charging decision “should not freeze future conduct” and “does not necessarily define the extent of the legitimate interest in prosecution.” United States v. Goodwin, 457 U.S. 368, 380, 382 (1982); accord State v. Finlayson, 2014 UT App 282, ¶ 23 n.11, 362 P.3d 926.
¶21 Second, Redden generically complains that he pleaded guilty to the charges in Weber County as “a global resolution of the charges” related to Michelle and that he did not realize the resulting convictions “would later be asserted as a basis for enhancing additional charges” filed in Iron County. Although he suggests that his due process rights have therefore been violated, he has not established his lack of understanding as a factual matter. Nor has he established that he was not actually afforded all the process to which he was entitled under the law.
¶22 For the foregoing reasons, Redden’s counterarguments are unpersuasive.
CONCLUSION
¶23 Having rejected Redden’s contention that we lack jurisdiction over this appeal, we conclude that the State’s appeal is well taken and that the magistrate erred in binding Redden over on the eight new counts as class A misdemeanors. Accordingly, we reverse the magistrate’s bindover and dismissal orders and remand for further proceedings consistent with this opinion.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] “At a preliminary hearing, the magistrate should view the evidence in a light most favorable to the prosecution and resolve all inferences in favor of the prosecution.” State v. Arghittu, 2015 UT App 22, ¶ 2 n.2, 343 P.3d 709 (cleaned up). Because this appeal arises from a preliminary hearing, we recite the background facts with that standard in mind.
[3] The State does not contest this bindover ruling on appeal.
[4] Rule 25(a) states, “In its discretion, for substantial cause and in furtherance of justice, the court may, either on its own initiative or upon application of either party, order an information or indictment dismissed.” Utah R. Crim. P. 25(a). Rule 7B(c) provides, “If the magistrate does not find probable cause to believe the crime charged has been committed or the defendant committed it, the magistrate must dismiss the information and discharge the defendant. The magistrate may enter findings of fact, conclusions of law, and an order of dismissal. The dismissal and discharge do not preclude the state from instituting a subsequent prosecution for the same offense.” Id. R. 7B(c).
[5] As used in the statute, the term “domestic violence offense” includes “commission or attempt to commit” stalking and violating a protective order when committed “by one cohabitant against another.” Utah Code Ann. § 77-36-1(4)(j), (l) (LexisNexis Supp. 2019). The term “cohabitant” includes, among other things, individuals who “reside[] or [have] resided in the same residence” or who are or were “in a consensual sexual relationship.” Id. § 77-36-1(1); id. § 78B-7-102(2)(f), (g) (2018).
[6] Rule 5 of the Utah Rules of Appellate Procedure sets forth the procedure regarding discretionary appeals from interlocutory orders. The Utah Code allows the prosecution an appeal, as a matter of right, from a final judgment of dismissal. Utah Code Ann. § 77-18a-1(3)(a) (LexisNexis 2017) (“The prosecution may, as a matter of right, appeal from . . . (a) a final judgment of dismissal, including a dismissal of a felony information following a refusal to bind the defendant over for trial . . . .”).
[7] Redden relies on State v. Waddoups, 712 P.2d 223 (Utah 1985), to support his position. In that case, the trial court granted a defense motion to suppress certain evidence, and the State chose to dismiss the information and attempted to appeal the dismissal in order to challenge the suppression ruling. Id. at 223. The supreme court concluded that the State’s appeal was improper under those facts. Id. at 224. The case at hand, however, is much more like Gomez than Waddoups, and Redden overlooks that the supreme court in Gomez specifically decided that the facts of Waddoups were “quite different” given that Waddoups did not involve the trial court reducing the original charges. See State v. Gomez, 722 P.2d 747, 749 (Utah 1986).
STATE OF UTAH, IN THE INTEREST OF Z.C.W. AND C.C.W., PERSONS UNDER EIGHTEEN YEARS OF AGE.
R.D., Appellant, v. C.L.W., Appellee.
Opinion
No. 20200039-CA
Filed September 23, 2021
Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1135445
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Lisa Lokken and Kirstin H. Norman, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGENconcurred.
HARRIS, Judge:
¶1This termination-of-parental-rights case—in which R.D. (Mother) seeks to terminate the parental rights of her ex-husband, C.L.W. (Father), regarding their two children, C.C.W. and Z.C.W. (collectively, Children)—comes to us for a second time. In our previous opinion, we reversed the juvenile court’s order dismissing Mother’s petition and remanded the case with instructions for the court to redo its “best-interest” analysis, this time taking into account evidence that it had previously discounted regarding Father’s history of domestic violence toward Mother and another woman. See In re C.C.W., 2019 UT App 34, ¶¶ 19–25, 440 P.3d 749. On remand, the juvenile court reconsidered best interest and this time took into account Father’s history of domestic violence, but it conducted its analysis as of early 2017—the time of the previous trial—and not as of late 2019, when the post-remand proceedings took place. The court denied Mother’s motion to amend her termination petition to include new facts and circumstances that she asserted had occurred after the earlier trial, and the court refused to consider any evidence regarding best interest that had not been placed into the record at the previous trial. After reevaluating best interest as of 2017, this time not compartmentalizing Father’s history of domestic violence, the court again concluded that termination of Father’s parental rights was not in Children’s best interest, and again dismissed Mother’s petition.
¶2Mother appeals the dismissal of her petition, but does not raise a substantive challenge to the juvenile court’s new findings and conclusions—that is, Mother does not claim that the findings are unsupported by the evidence presented at the 2017 trial. Instead, Mother’s challenge is procedural: she asserts that the court erred by conducting its post-remand best-interest analysis in light of the evidence available in 2017, and by refusing to consider facts and circumstances arising after 2017 that might have affected its analysis. We agree with Mother, and hold that when we remand a case for a court to reconsider the best-interest question, we generally intend for that renewed inquiry to be conducted in the present tense, and for the effective date of that analysis to be the date of the post-remand proceeding. Accordingly, we vacate the juvenile court’s order of dismissal, and remand for a new best-interest analysis that should be conducted based on the facts and circumstances in existence as of the date the inquiry is made.
BACKGROUND
¶3Many of the salient facts that inform the legal issues in this case are set forth in detail in our previous opinion, see id. ¶¶ 2–12, and we see no need to repeat them here. For present purposes, we include only a brief summary of the pre-remand facts.
¶4Mother filed a private petition seeking termination of Father’s parental rights regarding Children and alleged, among other things, that Father had a history of domestic violence toward her and another woman and had been incarcerated twice for such offenses. Id. ¶¶ 2–5. After a trial in early 2017, the juvenile court found that Father had abandoned Children, and that there were therefore statutory grounds for termination, id. ¶ 7, but concluded that it was not in Children’s best interest for Father’s parental rights to be terminated, id. ¶¶ 9–12. The court made factual findings that Father had indeed brutally attacked Mother and had a history of domestic violence, id. ¶ 8 & n.1, but nevertheless concluded that those facts had little bearing on the termination inquiry, because Father had never been violent toward Children, id. ¶ 8. After determining that Mother had not carried her burden on the best-interest inquiry, the juvenile court dismissed Mother’s petition, and Mother appealed. Id. ¶¶ 12–13.
¶5On appeal, we concluded that the juvenile court’s best-interest “analysis was materially flawed” because, rather than evaluating the impact Father’s acts of domestic violence could have on Children, the court “completely separate[d] or compartmentalize[d]” Father’s “history of domestic violence toward other adults from the best-interest inquiry.” Id. ¶¶ 15, 19, 22. Accordingly, we vacated the order dismissing Mother’s petition and remanded for the juvenile court to “reconsider[]” its best-interest inquiry. Id. ¶ 25. We directed the court, in conducting its renewed inquiry, to “adequately consider[] all of the proper factors,” including “what effect, if any, Father’s history of domestic violence might have on his efforts to reestablish a relationship with the Children.” Id.
¶6Soon after remand, Mother filed a motion seeking leave to amend her petition to include additional relevant information. Mother asserted that “significant events, developments and incidents” bearing on Children’s best interest had occurred in the two years since the 2017 trial. Among other things, Mother alleged that, since the trial, Father had committed violent acts against another woman, and that Father’s parole had been revoked due to drug and alcohol use. In addition, Mother asserted that her own situation had changed, alleging that she had remarried and her new spouse now wanted to adopt Children. The guardian ad litem (GAL) assigned to represent Children endorsed Mother’s position. Nevertheless, the juvenile court denied Mother’s motion to amend, explaining that it interpreted our opinion as requiring only a “reconsideration” of its previous ruling. The court declined to consider the new material alleged by Mother in connection with its renewed best-interest analysis, stating that it would “listen to the testimony” presented at the 2017 trial and would “read and consider the various literature cited” in our opinion, after which it would issue a written ruling without further hearing.
¶7A few weeks later, the juvenile court issued a written decision setting forth its renewed best-interest analysis. This time, the court did consider Father’s history of domestic violence. The court again noted that there was no evidence that Father had ever “physically abused his biological or stepchildren,” and found that “Mother did not fear Father’s interaction with the Children.” The court also observed that, under the district court order then in effect governing the parties’ divorce proceedings, Father was entitled only to supervised parent-time with Children. The juvenile court concluded that Father was at low risk to commit domestic violence in the presence of Children, and gave several reasons for its conclusion: Father had little contact with Mother; Father had “engaged in mental health services and medication management” and had “developed coping skills”; Father was “remorseful” and “desire[d] to correct his past actions”; and Father “was married with a support system in place.” In the court’s view, this evidence demonstrated that Father had taken “meaningful steps to change his life in order to be reintroduced” to Children. The court also noted that Father was Children’s only “African American father figure,” and that by keeping Father’s parental rights intact, Children could “maintain their legal relationship” with Father’s extended family, including their older half-sister. For these reasons, the court concluded—based on reconsideration of the evidence presented at the 2017 trial— that Mother had not carried her burden of demonstrating, by clear and convincing evidence, that it would be in Children’s best interest for Father’s parental rights to be terminated. On that basis, the court again dismissed Mother’s petition, doing so without considering any evidence regarding events that allegedly occurred between the 2017 trial and the date of the court’s order.
¶8Soon after issuance of the juvenile court’s post-remand ruling, Mother and the GAL each asked the court for a “new trial,” contending that the court should “re-open the evidence” because it was “impossible for the court” to properly consider best interest “without considering evidence of events that have occurred in the two and a half years since the trial.” In the documentation supporting her motion, Mother provided additional detail regarding some of the new evidence, asserting that Children’s half-sister had reached adulthood, no longer lived with Father, and had her own independent relationship with Children; that Father had reduced his financial support of Children and let their insurance coverage lapse; and that C.C.W. had recently been diagnosed with attention deficit hyperactivity disorder, allegedly heightening the need for stability in his life.1The court denied these motions, offering its view that it had complied with this court’s instructions by “considering all of the evidence presented” at the 2017 trial, and that Mother’s remedy was either to appeal or to file a new petition for termination of Father’s parental rights.
ISSUE AND STANDARD OF REVIEW
¶9Mother appeals from the juvenile court’s second dismissal of her termination petition, and raises one issue for our review: whether the juvenile court erred when it conducted its post-remand best-interest inquiry in past-tense fashion, as of 2017, and refused to consider facts and circumstances that allegedly occurred after 2017.2 Both Mother and Father contend that we should review this issue for abuse of discretion. We disagree. The narrow question of whether a post-remand best-interest inquiry should be conducted in past-tense or present-tense fashion presents a procedural legal issue, not a factual issue, and one that we review for correctness.3 See Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905 (“We review procedural issues for correctness and afford no deference to the lower court’s ruling.”); see also State v. Kragh, 2011 UT App 108, ¶ 9, 255 P.3d 685 (“Procedural issues present questions of law, which we review for correctness.”). The question also involves interpretation of the remand instructions contained in our previous opinion, and no other court is better positioned on that score than we are. See State v. Lopes, 2001 UT 85, ¶¶ 11, 17–19, 34 P.3d 762 (stating that “the issues before us involve legal determinations” that are reviewed “for correctness,” including the “crucial question” of “what we meant when we remanded the case for a new trial” (quotation simplified)). Accordingly, we review the juvenile court’s post-remand procedural decisions for correctness.
ANALYSIS
¶10 “[T]he Utah Constitution recognizes and protects the inherent and retained right of a parent to maintain parental ties to his or her child.” In re J.P., 648 P.2d 1364, 1377 (Utah 1982). Indeed, our legislature has “declared that ‘a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.’” In re B.T.B., 2020 UT 60, ¶ 24, 472 P.3d 827 (quoting Utah Code Ann. § 78A-6-503(1) (LexisNexis 2017), now recodified at id. § 80-4-104(1) (Supp. 2021)). Before severing this important parent-child bond, a court must ensure that the party seeking to terminate a parent’s rights has made a two-part showing by clear and convincing evidence. See In re F.B., 2012 UT App 36, ¶ 2, 271 P.3d 824 (per curiam); see also In re B.T.B., 2020 UT 60, ¶¶ 44–54. First, the court must find grounds for termination under applicable statutory law. See In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-301 (LexisNexis Supp. 2021).4 Second, the court “must find that termination of the parent’s rights is in the best interest[] of the child.” In re F.B., 2012 UT App 36, ¶ 2; see also Utah Code Ann. § 80-4-104(12)(a) (stating that the “best interest of the child” is “of paramount importance in determining whether termination of parental rights shall be ordered”).
¶11We have explained that the best-interest inquiry “requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation.” In re C.C.W., 2019 UT App 34, ¶ 18, 440 P.3d 749 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶¶ 63, 64 (quotation simplified). A child’s best interest can be determined only by considering “the physical, mental, or emotional condition and needs of the child.” In re T.E., 2011 UT 51, ¶ 41, 266 P.3d 739 (quoting Utah Code Ann. § 78A-6-509 (LexisNexis Supp. 2011), now recodified at id. § 80-4-303 (Supp. 2021)). “[A]ny evidence that is probative of what is in the child’s best interest” may be considered. Id. In sum, the best-interest inquiry is “wide-ranging” and “asks a court to weigh the entirety of circumstances . . . to determine what is in the best interest of the child under all of the circumstances,” In re J.M., 2020 UT App 52, ¶ 35, 463 P.3d 66, with the court’s focus being “firmly fixed on finding the outcome that best secures the child’s well-being,” In re B.T.B., 2020 UT 60, ¶ 64. A court may not, simply due to concerns about judicial economy, limit the scope of the best-interest inquiry. See In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when considering “the best interest[] of a child, a court must be free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy”).
¶12 In the context of evaluating the termination of a parent’s rights, we have stressed that “[c]onsiderations regarding a child’s welfare are rarely, if ever, static,” and that often “the child’s environment is constantly evolving.” Id. at 163; see also In re H.J., 1999 UT App 238, ¶ 45, 986 P.2d 115 (stating that a child’s “needs and circumstances can, and do, change rapidly,” and in many cases “the passage of time itself can result in substantially different circumstances” for a child). For these reasons, the best-interest inquiry is generally to be conducted in present-tense fashion, with the effective date of the inquiry being the date of the hearing, trial, or other judicial determination. In a best-interest inquiry, the relevant question is almost always this one: what outcome is in the child’s best interest now?
¶13This conclusion is bolstered by the language of the current governing statute. Although this particular language was not in effect at the time the juvenile court entered its post-remand findings, our legislature in 2020 added the following language— as immaterially amended in 2021—to the relevant statute:
In determining whether termination is in the best interest of the child, and in finding that termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court shall consider [certain factors, including reunification efforts and kinship placement possibilities].
Utah Code Ann. § 80-4-104(12)(b) (emphasis added). This statutory language uses the verb “is,” indicating that the best-interest inquiry is to be undertaken in a present-tense fashion. See Scott v. Scott, 2017 UT 66, ¶ 24, 423 P.3d 1275 (“Typically, we understand ‘is’ as a present tense . . . verb . . . . Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” (quotation simplified)); see also W.N. v. S.M., 424 P.3d 483, 490 (Haw. 2018) (concluding that a lower court erred, post-remand, by conducting its custody analysis in past-tense fashion as of the date of the previous trial, and emphasizing that the governing statute’s present-tense locution “requires the court to consider if the person ‘is fit and proper’ to care for the minor child at the time of the contemplated custody award”).
¶14 In situations where we have remanded a case for a trial court to redo its best-interest analysis, we have sometimes given explicit instructions for courts to do so in present-tense fashion. See, e.g., In re H.F., 2019 UT App 204, ¶ 18 n.6, 455 P.3d 1098 (remanding for a new best-interest analysis, and stating that “any number of circumstances may have changed since trial, and the court should take such changes into account in reconsidering its decision”); Ross v. Ross, 2019 UT App 104, ¶ 20, 447 P.3d 104 (remanding for renewed consideration of a parent’s relocation, including whether such relocation was in the child’s best interest, and stating that, in reconsidering the relocation question, the court “should consider the present circumstances of the parties and the Children and not simply re-litigate the issues as they were at the time of the now-vacated custody order”). In this case, unfortunately, our remand instructions were not quite as explicit. We concluded that “the juvenile court’s best-interest determination was materially flawed,” vacated the court’s order on that basis, and remanded “for proceedings consistent with this opinion,” stating that the court should “reconsider[]” the best-interest question. See In re C.C.W., 2019 UT App 34, ¶ 25. We did not directly instruct the court to undertake that “reconsideration” in a present-tense fashion. In hindsight, we wish we had been more explicit. But our intent was that the court would redo its entire best-interest analysis, this time taking into account the domestic violence evidence, and that it should undertake that analysis in present-tense fashion, evaluating best interest as of the time of the post-remand proceedings. We take this opportunity to clarify that, unless we direct otherwise in a particular case, courts should assume that we intend for post-remand best-interest analyses to be undertaken in a present-tense manner.
¶15 Post-remand application of a present-tense analysis will not, however, always require a new evidentiary hearing. It may be that, in certain cases, the situation will not have changed at all, and the parties will not have any new evidence to present; in such a situation, given the absence of any new evidence, a present-tense and past-tense analysis will not differ. In other situations, a court may examine the proffered new evidence and conclude that, even assuming the veracity of the new allegations, the court’s analysis would remain unchanged; such analysis is, in its own way, a present-tense analysis, even though no new hearing will be necessary. Cf. In re G.D., 2021 UT 19, ¶¶ 80–82, 491 P.3d 867 (concluding that a lower court appropriately dealt with proffered new evidence in a termination case when it concluded that “none of the [new] evidence would have altered the court’s [previous] decision” (quotation simplified)). In still other situations, the parties may agree that the new allegations, even if material, are not disputed; in those cases, a court would be within its discretion to undertake its present-tense analysis, including consideration of the new undisputed evidence, without holding a new evidentiary hearing. And in many other situations, one or both of the parties may wish to offer new material disputed evidence; in those cases, a court conducting a post-remand best-interest analysis will likely need to hold an evidentiary hearing and make findings regarding the veracity and the materiality of the new allegations, and will need to consider whether additional discovery or other pre-hearing proceedings would be appropriate. See, e.g., W.N., 424 P.3d at 491 (determining that a lower court erred, post-remand, when it failed to hold an evidentiary hearing to consider new disputed factual allegations that “would have directly pertained” to the issue at hand). But regardless of the posture of the particular case, a court conducting a proper post-remand best-interest analysis must—in some manner—consider and appropriately deal with proffered new evidence.
¶16 With these principles in mind, we now examine the juvenile court’s handling of Mother’s proffered new evidence in this case. As noted above, the court refused to allow Mother to amend her petition to include new allegations, and after issuing its post-remand ruling it denied Mother’s motion for “new trial” in which Mother again asked the court to consider the new allegations.5 The court espoused a narrow interpretation of the remand instructions in our previous opinion, and opted to conduct a “reconsideration” of the evidence that had been presented at the 2017 trial, without any consideration of the new evidence Mother proffered. And the court instructed Mother that the proper avenue to facilitate adjudication of the new allegations was to file an entirely new petition for termination of Father’s parental rights.
¶17 The juvenile court erred by undertaking its best-interest analysis as of 2017, the date of the previous trial. As discussed above, the court should have undertaken its best-interest analysis in present-tense fashion, as of 2019, the date of the post-remand proceeding. And the court erred by refusing to consider, in some form, the new evidence proffered by Mother. The court made no determination that the proffered evidence was immaterial or inadmissible;6 we offer our own observation that at least some of the proffered evidence—in particular, the allegation that Father has committed additional acts of domestic violence against additional women—if true, appears to be at least potentially material and at odds with some of the court’s post-remand findings. And the court made no effort to ascertain the extent to which the new evidence was disputed. The court needed to consider the new evidence in some fashion, rather than simply relying on previously submitted evidence.
¶18 Mother could, of course, alternatively file a new termination petition. In such a proceeding, Mother could air all of the new allegations, and would not be barred by res judicata from incorporating into her presentation facts found by the court during the previous proceedings. See In re A.C.M., 2009 UT 30, ¶ 18, 221 P.3d 185 (“We . . . adopt the rule . . . that in child welfare proceedings res judicata does not bar courts from considering both newly discovered facts, whether or not they were knowable at the time of the earlier proceeding, and facts determined in previous termination proceedings when considering a later termination petition.”); see also Hardy v. Hardy, 776 P.2d 917, 922–23 (Utah Ct. App. 1989) (stating that res judicata does not preclude reconsideration of previously admitted evidence because res judicata, in this context, is “subservient to the child’s best interest[]”). But filing a new termination petition would entail some inefficiencies; as Mother pointed out at oral argument before this court, if a new petition were filed the juvenile court would be required to start from scratch, and re-adjudicate the entire case, including the “statutory grounds” portion that is no longer in dispute here. Moreover, the mere fact that Mother has the option of filing another action does not mean that her preferred option is thereby foreclosed. When two valid procedural litigation options exist, it is up to the litigant to choose which one to utilize. See, e.g., Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 36, 439 P.3d 593 (“[A] core component of our adversary system [is] the notion that the plaintiff is the master of the complaint. We leave it to the parties to plead claims and defenses in the time and manner designated by our rules.”). A court may not close one door simply because another one exists, even if the court considers the litigant’s preferred option inefficient. See In re J.J.T., 877 P.2d 161, 164 (Utah Ct. App. 1994) (stating that, when considering “the best interest[] of a child, a court must be free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy”); cf. AFA Distrib. Co. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir. 1973) (stating that federal courts asked to exercise diversity jurisdiction “cannot close the door to the federal courts merely because [a diversity] case involves a difficult question of state law”).
CONCLUSION
¶19 The juvenile court erred by conducting a past-tense—rather than a present-tense—analysis while reconsidering best interest during its post-remand proceedings. The best-interest inquiry is, in most cases, not to be based on a snapshot from the past. Rather, a proper best-interest inquiry requires evaluating all relevant past and present circumstances bearing on a child’s welfare as of the date of the proceeding. Where an appellate court remands a case for a trial court to redo its best-interest analysis, that analysis should generally be conducted as of the date of the post-remand proceedings, and the court must consider, in some fashion, any new evidence proffered by the parties.
¶20 Accordingly, we vacate the juvenile court’s order dismissing Mother’s petition, and we again remand for the juvenile court to redo its best-interest analysis, this time doing so in a present-tense fashion, and not as of 2017 or as of 2019. We once again express no opinion on the substance of the best-interest question, and emphasize that our opinion should not be construed as urging one outcome or another on remand.
Utah Family Law, LC | divorceutah.com | 801-466-9277
2021 UT App 28 – THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF C.Z., A PERSON UNDER EIGHTEEN YEARS OF AGE.
M.Z., Appellant,
v.
STATE OF UTAH, Appellee.
Opinion
No. 20200227-CA
Filed March 12, 2021
Third District Court, Salt Lake Department
The Honorable Mark W. May
No. 1156353
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 DIANA HAGEN authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY concurred.[1]
HAGEN, Judge:
¶1 M.Z. (the father) appeals the juvenile court’s termination of his parental rights to his son, C.Z. (the child). We conclude that the State proved by clear and convincing evidence that the father had not remedied the circumstances that led to the child’s removal and affirm the juvenile court’s termination of the father’s parental rights.
BACKGROUND
¶2 The child was born in May 2017.[2] In December 2017, C.Z.’s mother (the mother) was charged with aggravated assault and domestic violence in the presence of a child for stabbing the father in the chest in front of the child. At the time, the mother was already under juvenile court jurisdiction for criminal trespass and habitual truancy. The juvenile court issued a no-contact order between the mother and the father and ordered that the child be assessed as “at risk of removal” from the mother’s care.
¶3 Throughout January and February 2018, the Division of Child and Family Services (DCFS) “worked with the family in devising a safety plan for the child to remain” in the home with the mother. DCFS reported that the mother had several “thinking errors,” including her beliefs that she did not need to abide by the no-contact order, did not need therapy, and that there was no harm in smoking marijuana while breastfeeding the child. DCFS also reported that the father and mother had smoked marijuana in the presence of the child on multiple occasions, including one instance where the father was caught smoking in the mother’s family’s house, resulting in the family’s eviction. At the end of February, the mother was ordered “to be held in the Salt Lake Valley Detention Center” for a brief period.
¶4 In March 2018, DCFS again attempted to meet with the mother to establish a safety plan so the child could remain in her custody. The mother missed the meeting, and DCFS received a report that she had been smoking marijuana and had violated the no-contact order by spending the weekend with the father. As a result, the State filed a motion for the child’s expedited placement in temporary custody. At the shelter hearing, the juvenile court granted the motion, placing the child in the temporary custody of DCFS. At a follow-up hearing later that month, the court made official findings. In relation to the mother, the court found the child was “neglected” under Utah Code subsection 78A-6-105(41). In relation to the father, the court found the child was “[d]ependent” under Utah Code subsection 78A-6-105(14), meaning that the child was deemed “homeless or without proper care through no fault of the child’s parent, guardian, or custodian.”
¶5 Two months later, in May of 2018, the court held a disposition hearing to establish permanency goals for the child pursuant to Utah Code section 78A-6-312. The court determined that the child’s primary permanency goal would be “first and foremost reunification” with the parents and “the concurrent plan” would be “adoption.” The court ordered DCFS to “provide reunification services to the parents consistent with the services identified in the service plan.” The court ordered all parties to follow the service plan, which included a requirement that the parents complete domestic violence assessments. After father’s counsel raised concerns that the father would “get assessed as a perpetrator rather than a victim,” the court ordered that the plan be “amended to have the father participate in a [domestic violence] class as a victim.”
¶6 At the first child welfare review hearing in July 2018, the court authorized unsupervised visits for the father, but not for the mother, whose parent-time continued to be supervised. The caseworker noted that the parents still seemed to be spending time together and suggested couples therapy if they hoped to co-parent someday. The court lifted the no-contact order but warned the parents that it was for the purpose of domestic violence therapy only and “that doesn’t mean you drop by any time you want.” At the next child welfare review hearing, in September 2018, the court found that both parents were “doing really well” and “marching toward reunification.”
¶7 The steady progress did not continue, however. At the third child welfare review in December 2018, the court found that the mother was smoking marijuana again, the father was not following through with his therapy and, most alarming, there had been another domestic violence incident in the presence of the child on Thanksgiving Day. The parents, apparently living together again, fought about the child’s nap, and the mother hit the father in the face. He responded by pushing her away by the throat. She grabbed him by the hair and tried to prevent him from leaving. Once he got away, the father ran to a nearby school, where the responding police officer found him with a bloody nose and no shoes. The officer cited the mother as “the predominant aggressor” but allowed the father to remain in the home because, the officer later testified, the father “basically wanted to go back because he said his child was a ward of the State, that this was the only time they got to spend time with him.” The juvenile court warned both parents this was “a step back” and warned the father in particular about the domestic violence, saying, “You have to go to therapy. . . . [Y]ou’ve got to do all these things” and there is “not a lot of time left.” The court informed both parents that, if it was not safe for the child to return home by the time of the final permanency hearing, the court would have no choice but to “terminate services” toward reunification and instead move toward adoption, and “[n]obody wants to go down that road.”
¶8 The final child welfare review hearing was sixty days later, in February 2019. Report of the parents’ progress was still mixed. The State expressed ongoing concerns about the father’s ability to “hold boundaries with Mom and keep kiddo safe.” The DCFS caseworker also reported that the father’s attendance at therapy had not been consistent, although father’s counsel complained that the father still had not received enough of the type of specialized domestic violence therapy he needed as a victim. The court informed the parents that if the permanency hearing were that day, it could not return the child to them. The court warned the father, in particular, that if reunification of the child with the mother was not going to be possible, the father had better start giving “full effort” and decide, “Is this what you want?”
¶9 At the permanency hearing on March 19, 2019, the court found that “return to the home would be contrary to the welfare of the child at [that] time.” But, the court did find, by a preponderance of the evidence that there had been substantial compliance, reunification was probable within ninety days, and an extension would be in the best interest of the child. The court warned the parents that the report in ninety days had “better be a great report.”
¶10 At the continued permanency hearing on May 30, 2019, the DCFS caseworker reported that the father “had been fully engaged” and wanted reunification to continue, but the mother had “reached the point that she believe[d] that she’s not in the child’s best interest” and was ready to relinquish her parental rights voluntarily. The caseworker also expressed concern that the parents were apparently living together even though the father reported moving out of the mother’s residence several months earlier. The guardian ad litem reported that she did not feel it was safe to return the child to either parent that day. She had particular concern about the father’s “relationship with the mother.” The court gave the father one more extension, but with the following warning:
[T]here’s continued domestic violence . . . . [E]ven if [the father] is the victim, he was stabbed the first time and he went back into that relationship with his child, and then there’s been another domestic violence incident, and they’re still together . . . . He is supposed to be in treatment, and he hasn’t gone .
. . .
. . . .
Dad, you have to get in treatment. I mean that’s the bottom line. I don’t need any more excuses. You have to be in treatment. You keep going back to a toxic relationship, and if you’re going to do that, then whatever her baggage is is your baggage. That’s the way the law works.
¶11 At that final permanency hearing in August 2019, the court found that returning the child to the father would create a substantial risk of detriment to the child’s physical or emotional well-being. The court explained, “[T]he law is pretty firm and . . . at this point I can’t give another extension, and it’s not safe today to send the child home. So under the law, . . . I have to terminate reunification services, I have to change the goal to adoption.”
¶12 The State filed a petition for termination of parental rights, and the court set the matter for trial. In the interim, the mother voluntarily relinquished her parental rights.
¶13 At trial in January 2020, the State presented evidence of the father’s continued unhealthy relationship with the mother. The father’s therapist, provided by DCFS, testified that the father had “symptoms of post-traumatic stress disorder” as a result of “having been attacked by” the mother. Nevertheless, the father testified that the mother had accompanied him on the last few visits with the child, after she voluntarily relinquished her parental rights. The foster parent, who dropped off the child for visits with the father, testified that the mother was with the father at every visit in December and January. When the State asked the father why the mother went along, he answered twice that the mother “wanted to see” the child and the father had never gotten a clear answer from the case worker as to whether that was allowed. The child’s guardian ad litem asked the court to expressly order that the mother was not allowed to attend visits with the child.
¶14 In February 2020, the juvenile court entered an order terminating the father’s parental rights. Applying a clear-and-convincing-evidence standard, the court made extensive factual findings and concluded that those findings supported four statutory grounds for termination: (1) that the father had been “an unfit or incompetent parent of his child”; (2) that the child had “been cared for in an out-of-home placement under the supervision” of DCFS, the father had “substantially neglected, willfully refused, or ha[d] been unable or unwilling to remedy the circumstances that cause[d] the child to be in an out-of-home placement,” and “there [was] a substantial likelihood that the parent [would] not be capable of exercising proper and effective parental care in the near future”; (3) that there had been a failure of parental adjustment; and (4) that the father had made “only token efforts to provide support” for the child. See Utah Code Ann. § 78A-6-507(1)(c)–(f) (LexisNexis Supp. 2020). The court concluded that, “based on the totality of the evidence, it [was] in [the child’s] best interest to be adopted by the foster parents” and that it was “strictly necessary to terminate the father’s parental rights to permit that adoption.”
ISSUE AND STANDARD OF REVIEW
¶15 The father contends that the juvenile court erred in terminating his parental rights. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “The ultimate conclusion that a parent is unfit or that other grounds for termination have been established is a legal question.” In re L.M., 2019 UT App 174, ¶ 5, 453 P.3d 651 (per curiam) (cleaned up). But because “such decisions rely heavily on the juvenile court’s assessment and weighing of the facts in any given case,” that “decision should be afforded a high degree of deference.” Id. (cleaned up). Thus, we will overturn the juvenile court’s decision only when that decision is “against the clear weight of the evidence.” Id. (cleaned up). A decision is against the clear weight of the evidence when the court “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” See In re B.R., 2007 UT 82, ¶ 12. Indeed, “an appellate court must be capable of discriminating between discomfort over a trial court’s findings of fact—which it must tolerate—and those that require a court’s intercession. It must forebear disturbing the ‘close call.’” In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401 (cleaned up).
ANALYSIS
¶16 Utah law recognizes that “the right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest . . . and is a fundamental public policy of this state.” In re Adoption of K.A.S., 2016 UT 55, ¶ 25, 390 P.3d 278 (cleaned up); see also Utah Code Ann. § 62A-4a-201(1)(c) (LexisNexis Supp. 2020).[3] Indeed, there is a “strong . . . presumption that it is in a child’s best interests to be in the custody of his or her natural parent.” In re J.M.V., 958 P.2d 943, 947 (Utah Ct. App. 1998). But, “parental rights are not absolute. A parent’s rights must be balanced against the state’s important interest in protecting children from harm.” In re J.A., 2018 UT App 29, ¶ 44, 424 P.3d 913 (cleaned up).
¶17 In this case, the child was adjudicated dependent as to the father in March 2018, shortly after the initial shelter hearing that placed the child in DCFS custody. Utah Code Ann. § 78A-6105(14) (LexisNexis Supp. 2020). A determination of dependency rebuts “the presumption that the child is best served by being in the parent’s custody.” In re J.M.V., 958 P.2d at 948. But even though the parental presumption does not apply, the petitioner—in this case, the State—always has the burden to “establish the facts” justifying termination by “clear and convincing evidence.” See Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018).
¶18 “To terminate parental rights, a juvenile court must make two separate findings.” In re C.T., 2018 UT App 233, ¶ 12, 438 P.3d 100 (cleaned up). First, the “court must find by clear and convincing evidence that there is at least one statutory ground for termination.” Id. (cleaned up). Second, “the court must assess what is in the child’s best interest” and determine “whether termination is strictly necessary to promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827.
¶19 The father’s arguments on appeal are limited to challenging the first step in the juvenile court’s analysis— whether a statutory ground for termination was established by clear and convincing evidence. Where the juvenile court finds multiple grounds for termination, “we will affirm when we are able to sustain one of the grounds and need not consider the other grounds relied on by the court.” In re D.M., 2020 UT App 59, ¶ 10, 462 P.3d 1278; see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2020) (stating that “the court may terminate all parental rights with respect to the parent if the court finds any one” statutory ground).
¶20 We focus our analysis on the juvenile court’s conclusion that termination of parental rights was justified because the father failed to remedy the circumstances causing the child’s removal under Utah Code subsection 78A-6-507(1)(d) (Supp. 2020).[4] To terminate parental rights on this ground, the court must find,
(i) that the child is being cared for in an out-of-home placement under the supervision of the court or the division;
(ii) that the parent has substantially neglected, willfully refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in an out-of-home placement; and
(iii) that there is a substantial likelihood that the parent will not be capable of exercising proper and effective parental care in the near future.
Utah Code Ann. § 78A-6-507(1)(d).
¶21 In this case, the child was in an out-of-home placement under the supervision of the court and DCFS. The “circumstances” that had caused the child to be placed in foster care included the child’s dependency status and the child’s exposure to domestic violence. The evidence supports the juvenile court’s finding that the father failed to remedy either of those circumstances.[5]
¶22 First, the father was unable to remedy the circumstances that led to the removal of the child based on the dependency adjudication. To remedy those circumstances, the father needed to ensure that he could provide a home and proper care for the child. See id. §§ 78A-6-105(14), -507(1)(d).
¶23 Although the father made progress at maintaining employment and ending his drug use, he bounced back and forth between living with the mother and staying at his father’s house where the conditions were unsuitable for a child. Even if the father assumed until late in the child welfare proceedings that the mother would provide the primary home for the child, the court warned him to be prepared to step up when it appeared doubtful that the child would be reunited with the mother. The court found that the father, having gone through the two previous permanency hearings, was aware that by the final permanency hearing “changes in his life had to be in place” so “that it was safe for [the child] to return to him that day.”
¶24 Despite having eighteen months to achieve such stability, the father did not have appropriate housing or a plan for childcare until three days before the final permanency hearing. Given the father’s track record, the juvenile court was skeptical about the stability of these last-minute living and childcare arrangements. “The weight which a juvenile court must give any present ability evidence is necessarily dependent on the amount of time during which the parent displayed an unwillingness or inability to improve his or her conduct.” In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (cleaned up). Therefore, “if a parent has demonstrated some improvement in parenting ability but not a strong likelihood that the parent can provide a proper home for the child in the very near future,” we cannot “overturn a court’s order terminating parental rights.” Id. (cleaned up). After eighteen months of services, the father had not progressed to even a single overnight visit with the child and had exhausted all possible extensions of time. The court reasonably concluded that the father’s efforts were “far too little far too late.”
¶25 Perhaps more importantly, the father failed to protect the child from exposure to domestic violence by the mother. The mother’s serious assault on the father in the presence of the child was one of the circumstances that led to the child’s removal. Despite a no-contact order, the father continued spending time with the mother, and there was another incident of domestic violence in the presence of the child on Thanksgiving Day. Even after the juvenile court terminated the mother’s parental rights, the father continued bringing her to visits with the child, placing the child in an unsafe environment.
¶26 That evidence supported the court’s finding that the father “and the mother still have an ongoing relationship” and that the father “would likely allow the mother to parent” the child. The court found that “the mother is an unfit parent” and that allowing her to parent was “of serious concern because: (a) the mother stopped participating in services; (b) the mother was the aggressor in the domestic violence incidents; (c) she had positive drug tests on the rare occasions when she chose to test; and (d) the mother voluntarily relinquished her parental rights.” The father’s choice to remain involved with the mother— whether romantically or as a co-parent—placed the child at continued risk.
¶27 The father points to evidence that he received mixed messages from the caseworker about his relationship with the mother and whether she was permitted to join him for visits with the child. But the juvenile court was “in the best position to weigh [this] conflicting testimony, to assess credibility, and from such determinations, render findings of fact.” See In re J.H., 2012 UT App 195, ¶ 2, 283 P.3d 971 (per curiam). We will not overturn the juvenile court’s determinations unless they are against the clear weight of the evidence. See In re Z.D., 2006 UT 54, ¶ 33, 147 P.3d 401. The existence of the no-contact order, as well as the court’s admonitions to the father, support the conclusion that the father had “chosen to remain with the mother” despite the danger posed to the child.
¶28 The father also argues that the juvenile court “abused its discretion in not properly evaluating [him] as a domestic violence survivor.” Specifically, the father suggests that the court employed something of a double standard and analyzed his “reactions to domestic violence perpetrated upon him differently than a female victim.” We disagree. The juvenile court ordered that the father be provided treatment as a victim and faulted the mother for the domestic violence.
¶29 We recognize that “extricating oneself from an abusive relationship can pose an extremely difficult hurdle for victims of domestic abuse,” regardless of gender. See In re L.M., 2019 UT App 174, ¶ 8, 453 P.3d 651 (per curiam). Nevertheless, we have consistently held that a juvenile court faced with a victim parent who does not leave the abusive relationship “may find that the parent has failed to remedy the circumstances that led to a child’s removal.” Id. For example, in In re T.M., we affirmed the termination of a father’s parental rights in part because he had “effectively prioritized his relationship with” his abusive spouse over the protection of his children. 2006 UT App 435, ¶ 9, 147 P.3d 529. In that case, the juvenile court found that “although [the father] completed most of the treatment plan—albeit a significant portion only in the eleventh hour, . . . he [had] been unable to quit his self-described ‘addiction’ to [the mother], and his unwillingness to give up his ongoing relationship with [the mother] . . . endanger[ed] the [c]hildren.” Id. ¶ 9. We agreed, stressing that the father’s “present and ongoing failure to detach himself from this relationship and protect the [c]hildren from exposure to [the mother was] especially significant to the court’s finding of unfitness.” Id. ¶ 19. This court has reached the same conclusion in numerous cases where the mother was the victim of domestic violence. See, e.g., In re L.M., 2019 UT App 174, ¶¶ 3, 6–7, 11 (holding that “the evidence was sufficient to support the juvenile court’s determination that [the mother] had failed to remedy the circumstances leading to [the child’s] removal” where mother did not show up to domestic violence victim therapy appointments, “had not internalized the lessons from the domestic violence therapy,” and brought [the father] to visits after his parental rights had been terminated); In re F.M., 2002 UT App 340, ¶¶ 3, 7–8, 57 P.3d 1130 (affirming termination of mother’s parental rights where evidence showed she had codependent relationship with abusive father, had talked about leaving father long enough to regain custody of the children and then going back to him, and then had contact with him just two weeks before the termination trial); In re G.B., 2002 UT App 270, ¶ 17, 53 P.3d 963 (affirming termination of mother’s parental rights where mother claimed she had complied with the service plan, but juvenile court found that she continued to reside in a home with the abusive father, and had no intention of separating from him); In re G.D., 894 P.2d 1278, 1280 (Utah Ct. App. 1995) (affirming termination of mother’s parental rights in part because she “failed to sever all relationships with the father within a reasonable time” and failed to “eliminate the risk of continued abuse”).
¶30 In these cases, juvenile courts are not “unnecessarily drawing negative inferences from a [victim’s] decision to maintain a relationship with the batterer.” In re C.C.W., 2019 UT App 34, ¶ 19 n.4, 440 P.3d 749. Rather, they are focusing on the well-being of the child, whose safety is of primary importance, by assessing whether the parent’s ongoing refusal to sever the relationship poses a continuing threat to the child. Domestic violence has a negative effect on a child even if the child is not the direct recipient of or witness to the violence. See id. ¶ 20, (recognizing that children in these situations learn lessons such as “that the violence toward a loved one is acceptable” and that “coercive power and violence” are “a way to influence loved ones[,]” and noting that such children “fail to grasp the full range of negative consequences for the violent behavior” (cleaned up)). “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety.” In re T.M., 2006 UT App 435, ¶ 20. Here, the juvenile court’s conclusion that the father had not remedied the circumstances that led to removal was supported by clear and convincing evidence that he was unable or unwilling to extricate himself from a relationship with the mother that was toxic and that posed an ongoing threat to the child.
¶31 In concluding that the father failed to remedy the circumstances that led to the child’s removal and would not be capable of exercising proper and effective parental care in the near future, the juvenile court noted that it “truly struggled with this decision.” It “extended reunification services twice, admittedly based on sympathy for [the father’s] circumstances as opposed to strict compliance with the statutes governing extension of services.” But permanency adjudication occurs on a strict timeline because the passage of time seriously affects the child waiting in “legal limbo.” See In re S.L., 1999 UT App 390, ¶ 42, 995 P.2d 17 (explaining that the “overarching purpose” of our child welfare laws “is to provide stability and permanency for abused and neglected children, and to end the ‘legal limbo’ of state custody as quickly as possible” (cleaned up)). And, as the juvenile court found, “[t]he length of time that [the child] has been out of the home relative to his age and the length of time that it took [the father] to . . . become stable had a significant destructive effect on their parent/child relationship.” Viewing the record as a whole, the juvenile court’s finding that the father had not remedied the circumstances that had created the out-of-home placement was not against the clear weight of the evidence.
CONCLUSION
¶32 We conclude that there was sufficient evidence to support the juvenile court’s finding under Utah Code subsection 78A-6507(1)(d) that the father had failed to remedy the circumstances that caused the child’s out-of-home placement. This is true as to both the child’s dependency status and the risk of exposure to domestic violence. Accordingly, we affirm the juvenile court’s termination of the father’s parental rights.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
[2] The mother and the father were not married at the time of the birth, but the father’s paternity was undisputed and officially established prior to the dependency adjudication in March 2018.
[3] Where, as here, amendments to a statute do not affect the issues in this case, we refer to the current version of the statute.
[4] Because we do not address unfitness as an alternative ground for termination, we have no need to reach the father’s argument that the juvenile court “improperly deferred to the caseworker
regarding the ultimate issue of unfitness.”
[5] In applying this provision, the juvenile court did not improperly shift the burden to the father to demonstrate his fitness as a parent. Although the parent has a responsibility to remedy the circumstances that led to removal, Utah Code Ann. § 78A-6-507(1)(d), the State has the burden of proving by clear and convincing evidence that the parent failed to do so, id. § 78A-6-506(3). The court properly applied that burden in this case.
How do I know if my relationship is abusive? How abusive does it have to be to get sole custody of my children?
How do I know if my relationship is abusive? How abusive does it have to be to get sole custody of my children?For some people who read your question they might think, “That’s kind of a stupid question; it’s obvious if you’re being abused.” I was one of those people who thought that way in the past. While some forms of abuse are obvious or easily identified, other forms of abuse are not, such as things like Stockholm Syndrome, gaslighting, and other abusive behaviors that make abuse hard for the victim of abuse to recognize.
Before I state anything further, I must make one thing clear: among those of us who are fortunate to live in First World countries are some who are emotionally immature and/or wimpy; people with nothing better to do than feel like victims simply because someone says something critical of them or does not do for them or give to them whatever they want. These are not the kind of people who qualify as abused and they do not suffer the kind of treatment that constitutes abuse.
But there are situations that arise where the abuse is real, but subtle, unnoticeable at first, and builds gradually in severity until the abuse victim cannot remember what life was like before the abuse and becomes unsure of whether he/she is being abused.
Stockholm Syndrome. This is a good brief description of Stockholm Syndrome from GoodTherapy.com:
Stockholm syndrome is a psychological condition that occurs when a victim of abuse identifies and attaches, or bonds, positively with their abuser. This syndrome was originally observed when hostages who were kidnapped not only bonded with their kidnappers, but also fell in love with them.
Professionals have expanded the definition of Stockholm syndrome to include any relationship in which victims of abuse develop a strong, loyal attachment to the perpetrators of abuse. Some of the populations affected with this condition include concentration camp prisoners, prisoners of war, abused children, incest survivors, victims of domestic violence, cult members, and people in toxic work or church environments.
Battered partners or spouses are a prime example of Stockholm syndrome. Oftentimes, they are reluctant to press charges or initiate a restraining order, and some have attempted to stop police from arresting their abusers even after a violent assault. After the relationship has ended, victims of domestic violence may often make statements such as, “I still love him,” even after being brutally beaten.
Gaslighting. “Gaslighting” is a trendy term these days, and as is the case with all trends, they become overexposed and diluted. Some people like feeling like victims (they’re emotional hypochondriacs), and those who do will see the gaslighting bogeyman (or claim to see it) behind every tree. Other people will accuse those with whom they disagree of gaslighting.
But real gaslighting can and does cause series emotional and psychological harm. GoodTherapy.com described gaslighting as follows (I have taken the liberty of correcting the grammar in this excerpt):
WHAT IS GASLIGHTING?
Gaslighting is an abusive tactic aimed to make a person doubt his/her own thoughts and feelings. The abuse is often subtle at first. For example, if a person is telling a story, the abuser may challenge a small detail. The person may admit his/her was wrong on a detail, then move on. The next time, the abuser may use that past “victory” to discredit the person further, perhaps by questioning the person’s memory.
The person may argue back at first. He/she may intuit something is wrong in the relationship or marriage. But because each gaslighting incident is so minor, his/her can’t pinpoint any specific cause for their unease. Over time, the person may second-guess his/her own emotions and memories. He/she may rely on their abuser to tell them if their memory is correct or if his/her emotions are “reasonable.” Abusers use this trust to gain control over their targets.
Popular culture often depicts gaslighting as a man abusing his wife. Yet people of any gender can gaslight others or be gaslighted themselves. Gaslighting can also occur in platonic contexts such as a workplace. Anyone can be a target.
Gaslighting can take many forms. Sometimes it can involve manipulating a person’s environment behind his/her back. Other times, the abuse is entirely verbal and emotional.
Common techniques include:
Withholding: Refusing to listen to any concerns or pretending not to understand them. Example: “I don’t have time to listen to this nonsense. You’re not making any sense.”
Countering: Questioning the target’s memory. An abuser may deny the events occurred in the way the target (accurately) remembers. Abusers may also invent details of the event that did not occur. Example: “I heard you say it! You never remember our conversations right.”
Forgetting/Denial: Pretending to forget events that have happened to further discredit the victim’s memory. An abuser may deny making promises to avoid responsibility. Example: “What are you talking about? I never promised you that.”
Blocking/Diversion: Changing the subject to divert the target’s attention from a topic. An abuser may twist a conversation into an argument about the person’s credibility. Example: “Have you been talking to your sister again? She’s always putting stupid ideas in your head.”
Trivializing: Asserting that a person is overreacting to hurtful behavior. This technique can condition a person into believing his/her emotions are invalid or excessive. Example: “You’re so sensitive! Everyone else thought my joke was funny.”
A gaslighter often uses the target’s “mistakes” and “overreactions” to cast the abuser as the victim. For example, an abuser may scream accusations at a person until the other party must raise his/her voice to be heard. The abuser may then cut the conversation short, claiming the other person is “out of control” and “too aggressive.” In some cases, the abuser may accuse the other person of being the true gaslighter.
I also found a post breakthesilencedv.org on what the author calls “reactive abuse” to be useful.
The unique challenges men and women face in divorce and child custody cases
What follows is my opinion, but my honest and sincere opinion born of experience over the past 23 years in the practice of divorce and family law. It is an educated opinion that nevertheless may, and likely will, lead to my being disparaged and to me making some enemies, but if we don’t exercise the precious right of free speech by letting the heckler’s veto silence any of us, we have no one to blame but ourselves. And we all lose.
Men and Women, women and men can encounter—and more often than not do encounter—unique challenges in divorce and child custody cases. Some lawyers and judges and others in the legal system deny that there are cultural biases or prejudices ever affecting treatment of men and women, but that is just not true.
Mothers are awarded sole or primary custody of children in the overwhelming majority of cases, no matter how hard a father has worked and striven to prove he can make joint custody work.
Mothers are awarded sole or primary custody of children in the overwhelming majority of cases, even when the mother is less fit (I am not saying unfit, just less fit) than the father.
This is an undeniable bias against men, seeing and treating them, falsely and unfairly, as second-class parents.
Interestingly, it does not matter whether your judge is a man or a woman, the bias is cultural and institutional.
I will note that this bias is weaker now that it was in the past, and it is getting weaker, yet it is still surprisingly strong against men.
Another bias: modern women have a lot to say about being just as qualified as men are to do the same work and thus be paid the same amount of money, so the cognitive dissonance is unavoidable in a divorce case when the subject of alimony arises. These same strong independent women are the most helpless creatures in the world when it comes to claiming a desperate need for alimony, and quite often the courts buy it. Do not misunderstand me. There are clearly many women and even some men who are, through no fault of their own, financially dependent upon their spouses and who are clearly deserving of alimony and spousal support post-divorce. But men get the short end of the stick when it comes to alimony far more often than do women. While this bias is waning, it is still present and still undeniable.
Interestingly, it does not matter whether your judge is a man or a woman, the bias is cultural and institutional.
I will note that this bias is weaker now that it was in the past, and it is getting weaker, yet it is still surprisingly strong against men.
Another bias against men is revealed in the realm of domestic violence and the way the law treats it. If a man seeks police help or protection from a violent wife or girlfriend, he is often laughed at or humiliated for failing to man up and defend himself. If such a man is fool enough to take that kind of advice, he will find himself the one arrested for committing domestic violence. I have witnessed personally situations where the man is bloodied and bruised, and the wife complains that he pushed her down while she was beating him, and the police will arrest the man for “assaulting” the woman.
Courts are far more willing to believe claims of domestic violence made by wives and mothers against the men in their lives. This is not a matter of opinion; this is a matter of fact. Anyone can confirm this to be true by simply attending the protective order and restraining order and civil stalking injunction court hearings that are open to the public. While I will be the first to acknowledge that there are clearly genuine incidents of domestic violence that are reported and for which protective orders are issued, you can witness for yourself protective and restraining orders issued on literally nothing but one’s word over another’s. No objectively verifiable evidence to support the claims at all. And yet the protective orders and restraining orders get issued, nonetheless. And who gets these orders at least 9 out of 10 times? It is women. That does not square with that the statistics kept by law enforcement, which shows that wives and girlfriends are more violent towards men than 10% of the time.
I will note that this bias is weaker now that it was in the past, and it is getting weaker, yet it is still surprisingly strong against men.
What does this mean? It means that men often have to win the child custody, alimony, and domestic violence disputes six ways from Sunday. They generally need far, far more and far better evidence than the women to get the same things women get with less and lower-quality evidence.
So, guys, if your marriage is crumbling, and you happen to be married to a woman who is vindictive and or crazy, keep the foregoing in mind. And take the necessary steps to protect yourself. One of the ways that crazy vindictive women take advantage of men in divorce and child custody cases is accusing them of domestic violence as a cheap and incredibly rapid way to remove the man from the house and to keep him out. As I alluded to earlier, one of the most common ways this is done is by the woman calling the police claiming that the man has assaulted her, attempted to assault her, or threatened to assault her. Sometimes all they have to do is make no claims of assault, attempted assault, or threatened assault and merely claim that they “don’t feel safe around” the man they live with, without even providing any plausible basis for such an ostensible “fear”. To protect yourself from being arrested and forcibly removed from your house, from false allegations of domestic violence, and fraudulently sought protective orders, and character assassination, you may find the following the difference between defeat and victory:
First, unless your safety or life is truly in jeopardy by remaining in the same house with your vindictive and/or crazy wife or girlfriend, do not move out of the house. If you do, your vindictive and/or crazy wife or girlfriend will claim that you abandoned her and the children, as well as the house itself, meaning that you should be forever barred from living there, even though it’s your house, even if you can show the court that you have nowhere else you can go. After all, so the thinking goes, you abandoned the family and you abandoned the house, so you should be forever barred. Do not move out if you don’t have to.
Second, if your house is the kind that has a distinct upstairs and downstairs, move downstairs. Then put it in writing to your spouse and get it on audio and video too, if you can, showing that your vindictive and/or crazy wife or girlfriend is clearly on notice that you are trying to stay away from her for the purpose of maintaining the peace and protecting yourself. That way if she tries to claim that she does not understand why you have done what you have done, you have clear proof as to why and proof that she knew why.
Notify your crazy and/or vindictive wife or girlfriend that you will be placing locks on closets in the downstairs to protect your property from theft or vandalism by her. Do not lock her out of the basement itself, but do point out that you will have the downstairs wired for sound and video, so that if she ever goes down there with the purpose of robbing you or vandalizing your living quarters or property, she will be undeniably caught.
In your written and video recorded notices to your crazy and/or vindictive wife or girlfriend also inform her that you are placing cameras and microphones everywhere throughout the basement in every room and every space to ensure that your movements and hers in the basement are tracked. Tell her she has no expectation of privacy anywhere in the basement. Post it in writing on the basement door and on the wall on the stairs leading downstairs. Post it on the bathroom door. Inform her that you have taken both photographic and video footage of the cameras and microphones and the written notices, so that if she tries to claim you violated her privacy downstairs, or if she tries to remove or damage them, there will be no way she can remove them at least one camera and microphone capturing her misconduct and making a record of it. You may even want to go so far as to buy one of those wearable cameras and microphone combinations on your person at all times when you are in the house with your crazy and/or vindictive wife or girlfriend, so that they don’t get any ideas about trying to pick fights and frame you for a fraudulent claim of domestic violence.
Again, this may seem extreme and over-the-top, but I have seen what happens to men who fail to protect themselves adequately. I’ve also seen men avoid being so much as charged with a crime, let alone convicted, because they — as soon as they got an inkling that their wives or girlfriends might be up to no good — took steps to document and secure and protect themselves.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I would add that if you reasonably believe you have some time to prepare:
save up some money to help you get on your feet in your new location and life
avoid communicating in writing and with your personal phone with those who are helping you, so that your abuser will have a harder time discovering your fears and plans
have a P.I. (private investigator)
sweep your vehicle and phone for tracking devices and teach you how to sweep your vehicle and phone for tracking devices
teach you how to avoid attention, tracking, and surveillance by your abuser
teach you how and/or help you to disappear without leaving a trace and without your abuser being able to victimize you after you disappear by ruining your credit or things like that.
If it’s emotional abuse:
try to get your abuser to realize what he/she is doing is abusive and that you want it to change
urge your abuser to make an earnest good faith commitment to some couple’s therapy or counseling
look at yourself and ask whether you need to change, regardless of being a victim of emotional abuse
If reasonable—reasonable—efforts (made over a reasonable time) to get your abuser to change fail, break off the relationship. Easier said than done, but you can’t expect things to get better if your abuser won’t even try to change.
Utah Family Law, LC | divorceutah.com | 801-466-9277
There will always be some sick, twisted people in every profession, but it has not been my experience that the majority of prosecutors enjoy seeing people go to jail, even if they have doubts as to the defendants’ guilt.
That stated, I can tell you from personal experience that there are prosecutors who, while they may not enjoy seeing people of questionable guilt convicted, don’t particularly care whether innocent people are convicted. I believe that such prosecutors behave and act this way either
because some prosecutors have ambitions to advance in the office or to become judges or politicians, and high conviction rates lead to such advancement; or
as a defense mechanism against letting the pressures and the stakes of the job destroy them emotionally and psychologically. Prosecutors are confronted with the worst of humanity on a daily basis, so it’s easy for people in such a job to see their professional detachment deteriorate as some prosecutors become jaded, numb, and uncaring. That does not make prosecutorial indifference and apathy acceptable, but it is understandable.
Utah Family Law, LC | divorceutah.com | 801-466-9277
UPDATE on new Utah Rules of Civil Procedure Rule 109:
Utah Court Notices notices@utcourts.gov via usblists.utahbar.org 8:57 AM to utahstatebarnews
Subject: [UtahStateBarNews] Notice of new effective date for Rule 109 of the Utah Rules of Civil Procedure
The Utah Supreme Court has adopted a new effective date of January 1, 2020 for the following rule. The rule was formerly effective November 1, 2019. The January date will accommodate programming changes necessary to effectuate the rule’s purposes.
URCP109. Injunction in certain domestic relations cases. New. Provides that in certain domestic relations cases, an injunction will enter upon the filing of the case. Its provisions address areas such as disposing of property, disturbing the peace of the other party, committing domestic violence, using the other party’s identification to obtain credit, interfering with telephone or utility service, modifying insurance, and behavior around the minor children. The injunction is binding on the petitioner upon filing the initial petition and on the respondent after the filing of the initial petition and upon receipt of a signed copy of the injunction as entered by the court.
To see approved rule amendments, click on the rule number above, or click on this link: http://www.utcourts.gov/resources/rules/approved/. Then click on the rule number.
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The Utah Rules of Civil Procedure have been amended with a new rule, Rule 109, entitled “Injunction in Certain Domestic Relations Cases”. The rule does not go into effect until November 1, 2019, but when it does, it will affect every Utah divorce case and other kinds of family law cases. Here is the text of the rule with the highlights in red text.
Utah Rules of Civil Procedure Rule 109. Injunction in Certain Domestic Relations Cases
(effective November 1, 2019)
(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.
(b) General provisions.
(b)(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.
(b)(2) Neither party may, through electronic or other means, disturb the peace of, harass, or intimidate the other party.
(b)(3) Neither party may commit domestic violence or abuse against the other party or a child.
(b)(4) Neither party may use the other party’s name, likeness, image, or identification to obtain credit, open an account for service, or obtain a service.
(b)(5) Neither party may cancel or interfere with telephone, utility, or other services used by the other party.
(b)(6) Neither party may cancel, modify, terminate, change the beneficiary, or allow to lapse for voluntary nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, automobile insurance, or life insurance without the written consent of the other party or pursuant to further order of the court.
(c) Provisions regarding a minor child. The following provisions apply when a minor child is a subject of the petition.
(c)(1) Neither party may engage in non-routine travel with the child without the written consent of the other party or an order of the court unless the following information has been provided to the other party:
(c)(1)(A) an itinerary of travel dates and destinations;
(c)(1)(B) how to contact the child or traveling party; and
(c)(1)(C) the name and telephone number of an available third person who will know the child’s location.
(c)(2) Neither party may do the following in the presence or hearing of the child:
(c)(2)(A) demean or disparage the other party;
(c)(2)(B) attempt to influence a child’s preference regarding custody or parent time; or
(c)(2)(C) say or do anything that would tend to diminish the love and affection of the child for the other party, or involve the child in the issues of the petition.
(c)(3) Neither party may make parent time arrangements through the child.
(c)(4) When the child is under the party’s care, the party has a duty to use best efforts to prevent third parties from doing what the parties are prohibited from doing under this order or the party must remove the child from those third parties.
(d) When the injunction is binding. The injunction is binding
(d)(1) on the petitioner upon filing the initial petition; and
(d)(2) on the respondent after filing of the initial petition and upon receipt of a copy of the injunction as entered by the court.
(e) When the injunction terminates. The injunction remains in effect until the final decree is entered, the petition is dismissed, the parties otherwise agree in a writing signed by all parties, or further order of the court.
(f) Modifying or dissolving the injunction. A party may move to modify or dissolve the injunction.
(f)(1) Prior to a responsive pleading being filed, the court shall determine a motion to modify or dissolve the injunction as expeditiously as possible. The moving party must serve the nonmoving party at least 48 hours before a hearing.
(f)(2) After a responsive pleading is filed, a motion to modify or to dissolve the injunction is governed by Rule 7 or Rule 101, as applicable.
(g) Separate conflicting order. Any separate order governing the parties or their minor children will control over conflicting provisions of this injunction.
(h) Applicability. This rule applies to all parties other than the Office of Recovery Services.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I have not been the victim of domestic violence or abuse, but I have had some clients who are. If you have a good, honest, and responsive police force in your jurisdiction, coupled with the court that is willing to issue protective orders AND enforce them, then police and courts can help.
Regardless of whether the police and courts in your jurisdiction do or not take domestic violence and abuse seriously, you should never rely upon law enforcement or the court’s to protect your life and physical safety. You and you and you alone are best equipped to protect your physical safety and life.
You can complain all you want about your rights, but that won’t stop a bullet or a fist. Learn how to own and carry and use a gun for self-defense. learn how to secure your home with locks and surveillance cameras and alarm systems.
If you are the victim of domestic violence and/or abuse, report it as quickly as you can after it occurs. If you are threatened with domestic violence, report that too. and if you have any written or recorded evidence of those threats, make sure you share that with law enforcement and with the court. Not only can you report violence or threats of violence, you can take action to protect yourself from future violence by requesting a protective order or civil stalking injunction.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Welcome back to our feature on new laws from the 2019 Utah Legislative Session. There were a lot of changes in family law in 2019, and one amendment was made by Senate Bill 45, which adds aggravated cruelty to an animal to the list of offenses that may qualify as a domestic violence offense. Specifically, “domestic violence” or a “domestic violence offense” now includes “aggravated cruelty to an animal, as described in Subsection 76-9-301(4), with the intent to harass or threaten the other cohabitant.”
Aggravated cruelty to an animal means torturing an animal; administering, or causing to be administered, poison or a poisonous substance to an animal; or killing an animal or causes an animal to be killed without having a legal privilege to do so.
So now you can commit domestic violence against somebody without laying a hand on’em, without even attempting to hurt them or threatening to hurt them. You can commit domestic violence against someone else by committing aggravated cruelty against any old animal at all. Not even the person’s own dog or cat. Buy a goldfish (or just borrow someone else’s) and stomp it to death, with “intent to harass or threaten” a cohabitant, and you committed domestic violence. I guess the intent to harass or threaten isn’t enough. You gotta kill the goldfish too. Or just poison it or torture it. Too.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Welcome back to our feature on new laws from the 2019 Utah Legislative Session. There were a lot of changes in family law in 2019, and one amendment was made by Senate Bill 75, which modified provisions relating to dismissal and expiration of a domestic violence protective order.
It used to be that a protective order that had been in effect for at least two years could be dismissed if the court determined the petitioner no longer has a reasonable fear of future harm or abuse. Now that list includes a reasonable fear of future harm, abuse, or domestic violence.
It used to be that a protective order couldn’t be dismissed after two years at the respondent had been convicted of a protective order violation, but now the law has been amended to provide that the order can’t be dismissed if the respondent was convicted of a protective order violation, now the protective order can’t be dismissed if the respondent merely “committed” a protective order violation. In other words, it used to be that a protective order could be dismissed if you committed a protective order violation but didn’t get convicted of it. Now, if it can be proven that you did commit the violation, regardless of whether you were convicted, the protective order stays in place.
Do you suppose that when a respondent moves for a dismissal of his or her protective order, that the petitioner might be tempted to accuse the respondent of having “committed” a protective order violation, even if there’s no record of any conviction? Or am I just being cynical?
Utah Family Law, LC | divorceutah.com | 801-466-9277
The Utah Supreme Court has adopted a new effective date for newly created rule 109 of the Utah Rules of Civil Procedure. The rule was formerly effective May 1, 2019, but is now effective November 1, 2019. This new November 2019 date will accommodate programming changes necessary to effectuate the rule’s purposes.
The new rule 109 is entitled “Injunction in certain domestic relations cases.” It provides that in certain domestic relations cases, an injunction will enter upon the filing of the case. Its provisions address areas such as disposing of property, disturbing the peace of the other party, committing domestic violence, using the other party’s identification to obtain credit, interfering with telephone or utility service, modifying insurance, and behavior around the minor children. The injunction is binding on the petitioner upon filing the initial petition and on the respondent after the filing of the initial petition and upon receipt of a signed copy of the injunction as entered by the court.
It was in March of 2013, when I read this article, “False allegations of rape and domestic violence are rare, according to CPS” that I understood why certain people make such false and intelligence-insulting claims.
It dawned on me finally when I was watching one of those exposé TV shows about an innocent man convicted and sentenced to prison, only to be freed 20 years later when the truth come to light.
In typical TV journalism show fashion, the ashen-faced prosecutor is set down in front of the cameras and asked essentially, “Now that it’s clear that Mr. X did not commit the crime and was falsely imprisoned, do you still think he’s guilty?” The poor prosecutor, appearing about as comfortable as if he or she had just sat down on a broomstick, looks into the camera and says, “I am still convinced that Mr. X is still guilty.” For years, as this TV journalism trope repeated itself, I would think to myself, “What a stupid question,” and then wonder, “How can that prosecutor tell such an obvious lie?” I wrestled with this question (perhaps longer than most of you, if you see the punch line coming) and finally understood: the prosecutor had no choice.
Imagine what would happen if the prosecutor told the truth and said, “Yeah, the evidence is conclusive; we got it wrong. Mr. X is clearly innocent, no question about it.” The courts would at best be flooded with appeals from every man that prosecutor ever put away. At worst, that prosecutor might be discovered floating face down in a river somewhere.
So does it come as surprise to anybody when CPS (Child Protective Services), whose job it is to protect children from child abusers (and whose budget grows in proportion to the number of “guilty” people they root out), would claim that everyone they deem to be an abuser is in fact guilty?
And does it come as any surprise to anybody that CPS, never wishing to appear weak or flawed for prone to error, would assert anything other than, “False allegations of rape and domestic violence are rare”?
Meathead Movers quickly found out there are more than financial risks when taking on this type of endeavor.