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Tag: supervised parent-time

John v. John – 2023 UT App 103

John v. John – 2023 UT App 103

THE UTAH COURT OF APPEALS

LUCAS ALLEN JOHN,

Appellee,

v.

CASSANDRA KATHLEEN JOHN,

Appellant.

Opinion

No. 20210506-CA

Filed September 14, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

Commission Joanna Sagers

No. 164904953

Benjamin K. Lusty, Attorney for Appellant Mary Deiss Brown, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1        In Lucas Allen and Cassandra Kathleen John’s divorce decree, the district court gave Lucas[1] sole legal and physical custody of the parties’ daughter, Child. The decree gave Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the reunification therapist.” The court ordered that Cassandra’s virtual parent-time “not be . . . monitored” but that her in-person parent-time be “subject to line-of-sight supervision.” The court then outlined a “reunification” plan, with the goal of Cassandra’s eventual transition to unsupervised parent-time with Child.

¶2        Cassandra contends that the district court erred by ordering supervised in-person parent-time without making the statutorily required finding of “evidence that [Child] would be subject to physical or emotional harm or child abuse . . . from [Cassandra] if left unsupervised with [her].” Utah Code § 30-3-34.5(1).[2] Cassandra also forwards multiple arguments in support of the assertion that the court erred by failing to provide, as required by statute, “specific goals and expectations” for her to meet “before unsupervised parent-time may be granted.” Id. § 30-3-34.5(5). We conclude that the district court made an adequate finding of evidence that Child would be subject to physical or emotional harm from Cassandra if left unsupervised with her, and we conclude that each of Cassandra’s arguments regarding specific goals and expectations is either mistaken or unpreserved. We therefore affirm.

BACKGROUND

¶3        Lucas and Cassandra married in March 2014. Child was born in September of that year. Cassandra had “engaged in drug use over the years,” and “even though [Cassandra] was a stay-at-home mom,” Lucas “hired a baby-sitter to take care of [Child] . . . because of [Cassandra’s] drug use” and because “he feared for [Child’s] safety.”

¶4        Soon after Child was born, Cassandra became pregnant with the parties’ second child. When the second child was born, the baby “had substances in her system,” “indicat[ing] that [Cassandra had been] engaging in activities that were potentially harmful to the . . . child.” This child died shortly after her birth.[3]

¶5        The parties separated around May 2016, and Cassandra moved in with her boyfriend later that year. In August 2016, Lucas petitioned for divorce. The next month, he moved for temporary orders to grant him sole legal and physical custody of Child. He also requested that Cassandra’s visitation time with Child be supervised and that Cassandra be ordered to submit to drug testing.

¶6        Around this time, Lucas and Cassandra were together “at a local restaurant” when Cassandra “took [Child], put her in the front seat of [a] truck without any car seat or any appropriate child restraints and then drove off,” hitting Lucas with the truck in the process. A temporary protective order was entered against Cassandra because she had attempted to run Lucas over with her truck and abscond with Child. A hearing on the protective order was held in October 2016, at which the commissioner recommended dismissal of the protective order,[4] entry of a mutual restraining order, and the granting to Cassandra of “unsupervised parent time . . . with no overnights.”

¶7        On December 8, 2016, a hearing was held on Lucas’s Motion for Temporary Orders. Following the hearing, the court entered mutual restraining and no-contact orders against the parties, awarded Lucas temporary sole legal and physical custody of Child, and directed Cassandra to “submit to a hair follicle [drug] test before 5:00 p.m.” that day. The court gave Cassandra parent-time “with . . . no overnights” and provisionally ordered that it be “facilitated” by a particular family friend. The court further instructed that if Cassandra’s drug test came back positive, Lucas’s attorney was to “call the court to schedule a telephone conference to determine the status moving forward.”

¶8        Cassandra’s hair follicle drug test came back positive for both cocaine and marijuana, and another hearing was held on December 20, 2016. Following that hearing, the court ordered that Cassandra’s parent-time be subject to line-of-sight supervision and that Cassandra complete another drug test by January 9, 2017.

¶9        On January 9, 2017, Cassandra submitted an “unofficial” drug test showing negative results for a collection taken that day. At a review hearing on January 30, 2017, however, the commissioner was “concern[ed]” because the results of the January 9 unofficial test were “drastically different” than the results of the test on December 8, 2016. The commissioner therefore directed Cassandra to complete another drug test that day. The commissioner also ordered “continue[d] . . . supervised parent time, status quo,” and set a review hearing for February 13, 2017.

¶10 Cassandra’s drug test on January 30, 2017, came back positive for marijuana, and following the February 13 review hearing, the court ordered “expanded supervised parent-time” with “no overnight visits.” It also ordered Cassandra to submit to a urinalysis by March 8, 2017, and it set another review hearing for March 13, 2017.

¶11 Cassandra took the required test before the March 13 review hearing, but she failed to submit the results. Her counsel (Counsel) nevertheless proffered at the hearing that the test had come back “positive for THC.” The court ordered that Cassandra’s parent-time remain subject to “direct line-of-sight” supervision “with no overnight visits.”

¶12 “At some point”—likely during April 2017—Cassandra “moved to Idaho for several months.” After a “stint in Louisiana,” she then moved to Iowa and lived there with a boyfriend. Once she had left Utah, Cassandra did not request any review hearings or make any attempt to exercise in-person parent-time with Child. As a result, she was “around [Child] physically on [only] three occasions” between January 2017 and June 2021.

¶13      Eventually, in March 2021, after compromise negotiations proved only minimally successful, the court held a bench trial on the parties’ outstanding issues. At the time of trial, Child was six years old.

¶14      Following trial, the court held a hearing to orally announce its rulings. To Cassandra’s credit, the court found that she was “trying to make some changes in her life,” including engaging in “therapy to resolve anger, trauma, and substance abuse” issues, and that she “appear[ed] to be improving.” But the court found that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” “consider[ed] her own needs first and primary over [Child]’s,” and might not be “completely emotionally stable.” The court also found that Cassandra had engaged in “instances of violence” in the past (including the one that led to the temporary protective order noted above). And it found that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were due to her “history with drug abuse.” Based on the foregoing findings, the court awarded Lucas sole legal and physical custody of Child.

¶15 The court then granted Cassandra supervised in-person parent-time at a frequency to be determined by a therapist and unsupervised virtual parent-time at least once per week. The court said that it thought there ought to be “some sort of ramping up” of supervised in-person visits and that a therapist should “come up with a schedule” for those visits after talking with Child, Cassandra, and Lucas to “see what’s appropriate.” The court further explained, “I expect that the therapist will come up with so many overnights so that [Cassandra] can practice with all of those things, and then once she’s completed the therapist’s plan, then I would say that the standard relocation statute would then become effective.” Counsel then asked whether “at that point”—i.e., when Cassandra had completed the therapist’s plan—“supervision would no longer be required.” The court responded, “I don’t know, Counsel,” “because there’s . . . some ongoing drug issues . . . and we don’t have any evidence . . . that she would have clean tests.”

¶16      Counsel then asked if the court was going to make findings as to whether Child “would be in danger if she were with [Cassandra unsupervised].” In response, the court said:

[G]iven that [Cassandra]’s not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger; but given also that she hasn’t been around [Child] physically except for three times, I just think that’s problematic.[5]

¶17      Counsel then said, “So . . . [a]fter two things occur, if I understand correctly, then [Cassandra]’s parent time will be according to [section] 30-3-37 and unsupervised.” He listed “one, the completion of the ramp up period as recommended by the therapist; and two, . . . submitting to the Court a clean drug test.” He asked, “Is that accurate?” The court responded that it could not “say that [Cassandra]’s going to go immediately to unsupervised [visitation] after the ramp up” because the court might “need some more information at that point.”

¶18 Counsel then informed the court, “My understanding, your Honor, is that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court replied, “I . . . don’t know what the therapist is going to say, Counsel. So I think it’s a little bit speculative. . . . What I’m going to have to see is what the therapist recommends, and then I can give you some further instructions at that point.” It added, “But yes, we do need her to have clean drug tests . . . .” Then the court, Counsel, and Lucas’s attorney discussed what the drug test requirements would be.

¶19      Counsel later asked, “Your Honor, what would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The court asked Lucas’s attorney if she “want[ed] to respond,” saying, “[Counsel] wants criteria on how to remove supervision.” Lucas’s attorney explained that she did not think there was “enough information . . . to anticipate . . . the factors that [the court was] going to have to consider” and that it seemed reasonable to “notice up a hearing after [the parties got] a lot of these things going[] and have enough information to go ahead.” But the court indicated that it was “not going to notice up a hearing at [that] point.” It directed the parties to “get the therapist on board first, and . . . to do that within three weeks,” then to get “the drug test filed.” The court said, “[A]fter I’ve reviewed these things[,] . . . I’d like to make sure that Cassandra is complying with everything, and that she’s able to do what she needs to do.” It further stated, “So I would like to do that as quickly as possible, [Counsel], but I don’t know how long of a period it’s going to take because it will also depend on whether or not your client is able to do everything that’s required. I hope that she does.”

¶20      Counsel then, again, stated his interpretation of the process the court was explaining:

[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the criteria for . . . when supervision will be lifted until [Cassandra] has complied with everything the therapist has said and filed clean drug tests. Then we can come back to have a hearing to determine what the criteria are for supervision to be lifted; is that accurate?

¶21 At that point, the court turned to Lucas’s attorney and asked whether she “[had] any objection” to the process Counsel had just summarized or whether she thought that supervision “should be lifted” as soon as Cassandra “completes the criteria” the court had already identified. She said that she thought “there might be concerns” even after Cassandra completes reunification therapy, although she did not “know what they would be.” The court then said, “Let’s just get through the therapy portion, and then I want to see what the reports are. . . . It could be likely that if she’s successful with all of th[e] things [the therapist recommends] that the Court will lift supervision at that time.”

¶22      Counsel once again spoke, seeking “to clarify” certain matters by asking, “[I]f after [Cassandra] has met with the therapist and complied with the therapist, the therapist recommends that supervision be lifted, . . . then would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” The court replied that it “[did not] know the answer to that yet,” saying, “[B]ut let’s go through that, and if the therapist recommends it, if we need to have a discussion with the therapist present, then we might need to do that, okay? Because I might . . . have some questions.”

¶23      Counsel then asked the court to order that the therapist be an Association for Family and Conciliation Courts therapist, and the court agreed. Then the court said, “If there’s no other questions, I do need to get to my next hearing.” Counsel initially replied that he had “[n]o other questions” but then said, “Last question, your Honor. . . . [I]s the review hearing going to be . . . before you or the Commissioner?” The court answered that the review hearing would be before the court.

¶24      The court concluded the hearing and memorialized its oral rulings into written Findings of Fact and Conclusions of Law and a Decree of Divorce. Cassandra appeals.

ISSUES AND STANDARDS OF REVIEW

¶25      On appeal, Cassandra contends that the district court erred in two ways when it ordered supervised parent-time. First, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(1) because the court “did not find that Cassandra poses a present threat of harm” to Child. Second, she argues that the order of supervised parent-time was legally inappropriate under Utah Code section 30-3-34.5(5) because the court did not “provide specific goals and expectations for Cassandra to meet” in order to be granted unsupervised parent-time. “We generally will not disturb the district court’s parent-time determination absent a showing that the court has abused its discretion. However, we review the district court’s interpretation of a statute for correctness. Likewise, we review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (cleaned up).

ANALYSIS

  1. Adequacy of the District Court’s Findings in Support of
    Supervised Parent-Time

¶26      Cassandra argues that the district court erred in ordering supervised parent-time because it did not make the finding that the Utah Code mandates as a prerequisite to supervised parent-time. The pertinent portion of the relevant provision reads as follows:

When necessary to protect a child and no less restrictive means is reasonably available . . . , a court may order supervised parent-time if the court finds evidence that the child would be subject to physical or emotional harm or child abuse, as described in Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5­114, from the noncustodial parent if left unsupervised with the noncustodial parent.

Utah Code § 30-3-34.5(1).

¶27 As an initial matter, we agree with Cassandra’s assertion that this statute means that the court must find a current risk of harm to the child from unsupervised parent-time, “rather than merely [a] past or historic risk of harm.” (Emphasis added.) To require “evidence that the child would be subject to . . . harm or . . . abuse . . . if left unsupervised with the noncustodial parent,” id. (emphasis added), is to require evidence of harm or abuse during a potential situation that would occur, if at all, in the future.[6] Thus, before ordering supervised parent-time, a court must find that there is evidence that harm or abuse could occur in the future, not merely that harm or abuse, or a risk of harm or abuse, occurred or was present in the past.

¶28      That is not to say that the existence of harm, or a risk of harm, from a noncustodial parent in the past has no bearing on whether there is a risk of harm from that parent in the future. Evidence that harmful or potentially harmful circumstances from the past have recurred or have not substantially abated could certainly be probative of whether there is a risk of harm in the future.

¶29      Moreover, a court need not find that the child definitely would be subjected to harm or abuse if left unsupervised with the noncustodial parent. Rather, a court is required to find only “evidence that the child would be subject to . . . harm or . . . abuse” if left alone with the noncustodial parent. Id. (emphasis added). For this reason, we, like Cassandra, conclude that a finding of a presently existing threat or risk of harm or abuse is sufficient to support supervised parent-time under section 30-3-34.5(1).

¶30      However, we disagree with Cassandra that “the district court did not find that [she] presently poses a threat of harm to [Child] if she were [to be left] unsupervised with [Child].”

¶31      Cassandra’s argument here is a challenge to the adequacy of the district court’s findings, not to the sufficiency of the evidence.[7] When we assess the adequacy of findings, “we review the [trial court’s] written and oral findings of fact together to determine if they are [adequate] to support the trial court’s rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17, 176 P.3d 476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may be stated in writing or orally following the close of the evidence.”). This is particularly true when “the written findings are incomplete, inadequate, or ambiguous.” Bill Nay & Sons Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1121 (Utah 1984). In those instances, the written findings “may be elaborated [on] or interpreted (in respects not inconsistent therewith) by reference to the trial court’s . . . oral explanation of the decision.” Id. This is one of those instances.

¶32      Cassandra supports her argument that the court failed to make the requisite finding by pointing to only one statement from the district court’s written findings: “[I]t is not clear whether [Cassandra] is still a danger to [Child].” But the court orally supplied additional findings and reasoning. When asked if it was going to make findings as to whether “[Child] would be in danger if she were with [Cassandra],” the court replied, “[G]iven that [Cassandra has] not complied with the Court orders, it’s not clear to me whether or not she’s a danger to [Child] still. She hasn’t completed the drug tests, et cetera, so given her noncompliance with the Court’s prior temporary orders, she potentially could still be a danger . . . .” (Emphasis added.) The court then added that it also found it “problematic” that Cassandra “[had]n’t been around [Child] physically except for three times” during the preceding four-plus years. Because Counsel, in posing the question, employed the phrase “[Child] would be in danger if she were with [Cassandra]” to summarize the requirement of a current threat of harm or abuse, we take the court’s responsive statement that Cassandra “potentially could still be a danger” to Child to be a finding of a current threat of physical or emotional harm to Child if Child were to be left unsupervised with Cassandra.[8]

¶3        Our reading of the court’s answer to Counsel’s question is bolstered by the fact that it came on the heels of additional findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own needs first and primary over [Child]’s,” that Cassandra still might not be “completely emotionally stable,” and that Cassandra’s failures to “give[] first priority to [Child]’s welfare” were linked to her “history with drug abuse.” When the court’s response to Counsel’s question is viewed in the context of these and other findings, its import is unmistakable: Cassandra has a history of drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted, Cassandra has failed to provide a negative drug test; six-year-old Child has been in Cassandra’s physical presence only three times over the course of four-plus years; and Cassandra remains immature, potentially emotionally unstable, and self-centered in relation to Child; accordingly, Cassandra “potentially could still be a danger” to Child in the present. This finding is adequate to support the court’s order of supervised parent-time.[9]

  1. The District Court’s Provision of Specific Goals and Expectations to Discontinue Supervised Parent-Time

¶34 When a court orders supervised parent-time, it must “provide specific goals and expectations for the noncustodial parent to accomplish before unsupervised parent-time may be granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on appeal states at least two, and perhaps three, independent arguments to support her assertion that the district court did not comply with section 30-3-34.5(5). We disagree with her first argument, and we conclude that her second possible argument and her third argument are unpreserved.

¶35      Cassandra’s first argument regarding the district court’s compliance with section 30-3-34.5(5) is that the court’s orders “are silent on the question of what conditions Cassandra must meet prior to [the] lifting of supervised parent time” and that, because of this purported silence, “the district court erred.” Cassandra is mistaken, however.

¶36      After Counsel informed the court of his understanding that the court “need[ed] to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed,” the court said that it “need[ed] her to have clean drug tests” and also directed the parties to “get [a] therapist on board . . . within three weeks.” Moreover, Cassandra acknowledges that the court ordered her to complete reunification therapy. The court repeated these requirements multiple times. Plainly, the court provided three specific goals or expectations for Cassandra to meet before unsupervised parent-time would be granted: (1) Cassandra needed to provide clean drug tests in connection with her supervised visitation; (2) Cassandra needed to work with Lucas to identify a therapist within three weeks; and (3) Cassandra needed to complete reunification therapy as determined by the therapist. Thus, Cassandra’s first argument fails.

¶37      Next, Cassandra asserts that the district court did not comply with Utah Code section 30-3-34.5(5) because the court did not say that “completion of reunification therapy . . . [was] a condition precedent to lifting supervised parent time.”[10] What Cassandra means by this assertion is not clear. If what she means is that completion of reunification therapy is not a condition the court expected her to meet before supervision would be lifted, this is merely a restatement of Cassandra’s first argument and Cassandra is simply mistaken, as we have explained. On the other hand, if what she means is that to comply with section 30-3-34.5(5), a court must identify at the time it orders supervised parent-time comprehensive list of the things the parent must do to receive a guarantee that supervision will be lifted, she did not preserve this potential issue for our review.

¶38      “In order to preserve an issue for appeal,” the appellant must have “presented [it] to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). “For a trial court to be afforded an opportunity to correct [an asserted] error (1) the issue must be raised in a timely fashion, (2) the issue must be specifically raised, and (3) the challenging party must introduce supporting evidence or relevant legal authority.” Id. (cleaned up). As to the second of these requirements, “an objection must at least be raised to a level of consciousness such that the trial court can consider it.” State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (cleaned up).

¶39      Here, Counsel indicated to the district court that his “understanding” was “that the Court needs to provide specific criteria that [Cassandra] needs to meet . . . in order to have supervision dismissed.” The court then identified or reiterated three specific criteria for Cassandra to meet, as we have explained. Counsel then repeated, over the course of a lengthy discussion, essentially the same question three times. First, he asked, “[W]hat would be the time line and/or process for setting up what sounds like is a . . . review hearing on how we are going to . . . establish the criteria for having supervision lifted?” The second time he described “a two-step process” in which the parties “won’t be able to arrive at the criteria for” lifting supervision “until [Cassandra] has complied with everything the therapist has said and filed clean drug tests” and they then “come back to have a hearing to determine what the criteria are for supervision to be lifted.” He asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked a third time whether—“after [Cassandra] has met with the therapist and complied with the therapist”—if “the therapist recommends that supervision be lifted, . . . would the Court accept that recommendation . . . or do we still need to meet to determine criteria for if and how supervision would be lifted?” Each of these questions came after the court had iterated or reiterated specific initial expectations for Cassandra to meet to have supervision lifted. In that context, each of Counsel’s foregoing questions can be fairly understood as an attempt to clarify when or whether additional expectations would be set, not as an objection to the fact that the court had not identified a comprehensive set of expectations at the outset.

¶40      Indeed, after the second of the foregoing questions from Counsel, the court turned to Lucas’s attorney and asked if she objected to the process Counsel had just summarized. This clearly indicates that the court did not understand Counsel’s question to be an objection but rather an attempt at clarification. Thereafter, Counsel emphasized the notion that he was attempting to gain clarity rather than objecting when he explicitly prefaced the third of his questions by stating that he was seeking “to clarify.” Then, after the court reiterated for the third time its initial expectation— for Cassandra to “go through” therapy—it said, “If there’s no other questions, I do need to get to my next hearing.” Cassandra’s counsel responded not by objecting but by saying: “Last question, your Honor. . . . [Ills the review hearing going to be . . . before you or the Commissioner?”

¶41      Given the foregoing, we conclude that even if Counsel was trying to raise an objection to the fact that the district court had not provided a comprehensive set of expectations for Cassandra to meet in order to have supervision of her parent-time lifted, he did not raise that objection to a level of consciousness in the mind of the court such that the court could consider it. Accordingly, this potential issue was not preserved for our review. See Cruz, 2005 UT 45, ¶ 33; State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (“A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.” (cleaned up)).

¶42 Finally, Cassandra argues that the expectation that she complete reunification therapy as determined by a therapist before she is allowed unsupervised parent-time violates section 30-3-34.5(5) because that section “does not allow the district court to delegate the [setting of conditions for the lifting of supervision] to a therapist.” Again, she did not raise this issue below. Because it is unpreserved, we do not address it. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 427 P.3d 338 (stating that “an argument based upon an entirely distinct legal theory is a new claim or issue and must be separately preserved” (cleaned up)).

CONCLUSION

¶43 The district court made an adequate finding that Cassandra posed a present risk of harm to Child if Child were to be left unsupervised with her. Additionally, Cassandra’s first argument in support of a conclusion that the district court failed to comply with Utah Code section 30-3-34.5(5) by not providing specific goals and expectations for Cassandra to meet before being granted unsupervised parent-time is mistaken, and her other arguments in support of that conclusion were unpreserved. We therefore affirm.

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

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What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?

What would you do if your child’s father who is only entitled to supervised visitation filed for a modification of a court order so a family member you don’t approve of could supervise visits?

Here’s what I would do:

First, remember that merely claiming that the proposed visitation supervisor poses a clear and serious danger to the child’s mental or emotional health without having proof or some highly credible evidence does not simply make for a weak argument, it could call your credibility into question.

  • I would first ask: if you have proof or highly credible evidence that there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s life, safety, or health.
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the life, safety, or health of the other parent or of anyone else?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask: if there anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the child’s mental or emotional health?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there is anything about this proposed visitation supervisor that poses a clear and factual (or at least credible) danger to the mental or emotional health of the other parent or of anyone else?
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would ask if there is anything about the proposed supervisor that indicates he/she is not available to provide supervision as needed and/or cannot provide supervision responsibly and reliably.
    • If the answer is “yes,” then you probably have at least one very good argument against having this person approved as a visitation supervisor.
  • If the answer is “no,” then I would likely see no point to objecting to the proposed supervisor because I would have no valid argument against the appointment of this supervisor.

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

https://www.quora.com/What-would-you-do-if-your-childs-father-who-is-only-entitled-to-supervised-visitation-filed-for-a-modification-of-a-court-order-so-a-family-member-you-dont-approve-of-could-supervise-visits/answer/Eric-Johnson-311

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Does being jailed necessitate supervised visitation?

Would you be ok with a parent getting out of jail and having full unsupervised visitation?

Under certain circumstances, yes. Certainly.

If the jailed parent was jailed for non-violent, non-dangerous crimes like unpaid parking tickets or check kiting, it would not make sense to restrict parent-time to supervision, reason being that there is no evidence that unpaid parking tickets or check kiting makes one a danger to the child.

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

https://www.quora.com/Would-you-be-ok-with-a-parent-getting-out-of-jail-and-having-full-unsupervised-visitation/answer/Eric-Johnson-311

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Supervised Parent-time in Utah – Blocker v. Blocker (January 2017)

KIRSTEEN D. BLOCKER,
Appellee,

v.

MICHAEL P. BLOCKER,
Appellant.

2017 UT App 10

The Utah Court of Appeals

Memorandum Decision
No. 20150720-CA

Filed January 12, 2017

Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 024402553

Michael P. Blocker, Appellant Pro Se
Grant W.P. Morrison, Attorney for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in which JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.

TOOMEY, Judge:

¶1         Michael P. Blocker (Father) appeals the district court’s order granting Kirsteen D. Blocker (Mother) unsupervised parent time with their minor son. We remand to the district court to enter findings of fact.

BACKGROUND

¶2         Father and Mother have one son (Child), who was not yet four months old when these proceedings began. Pursuant to their stipulation at the time the divorce decree was entered in 2004, the district court awarded the parties joint legal custody and shared parent time, with Child’s primary care and residence being with Mother.

¶3        Eventually, Father petitioned the district court for a custody modification. The matter went to trial in August 2009, and the court granted Father sole legal and physical custody of Child (the Custody Award).[1]

[1.] Although the court announced its decision at the end of trial, the decision was not reduced to writing until February 2010.

The court noted that numerous professionals had been involved in the case, and that, notwithstanding their efforts, Mother “ha[d] a history of not working with, not paying, or not establishing appropriate professional relationships” with them. It expressed its “concern[] about this history and the impact on the parties’ minor child.” Mother had “declined” to coparent and “interfered” with Child’s relationship with Father. The court found that “no joint physical or legal custody of [Child] [was] possible” and that it was in Child’s best interest to award sole custody to Father.

¶4 Child’s therapist and the court-appointed custody evaluator recommended that Mother’s parent time be supervised until Mother “has changed her mind set with regard to her own parenting abilities and [Father’s] relationship with the child,” but the court was concerned that this would not be practical for financial reasons. It therefore decided to permit Mother unsupervised parent time, provided that she retain a Special Master and verify her participation in individual therapy and joint therapy with Child. The court “recognize[d] that awarding [Mother] statutory parent-time is an experiment as she ha[d] been unable to cooperate with at least twelve (12) past professionals,” but found that it was in Child’s “best interest to give her one more chance.” Thus, until she verified her compliance with the court’s terms, Mother’s parent time was to be supervised.[2]

[2.] In December 2010, Mother filed a complaint in federal court against the judge and others involved in the divorce and custody proceedings. Based on the existence of the federal action, Mother filed a motion to disqualify the judge from the ongoing custody proceedings, and he voluntarily recused himself. The case was then reassigned. This case has been ongoing for fourteen years.

¶5        The next relevant development in litigation came in late 2013 when Mother filed a Motion to Clarify or Modify the Custody Order. At a scheduling conference, the district court instructed Mother to “submit an order to show cause.” Mother then filed an order to show cause requesting that the court order Father to “afford *Mother+ minimum statutory visitation.” Curiously, however, at the order to show cause hearing in March 2014, the court noted that “there is no petition to modify. This is an action to enforce the existing order. A motion to clarify [the] existing order is not appropriate.” In any event, at an evidentiary hearing in April 2014, the court sua sponte deemed Mother’s order to show cause a petition to modify. At the conclusion of that hearing, the court ordered “an evaluation of [Mother] and her circumstances in relation to visitation.” The court set what it referred to as a “status conference” for August 2014, but also made clear that it would be “a hearing at which time the results of the home study shall be reviewed, the need for supervised exchanges or supervised visitation examined, and, a final custody order entered.” In the meantime, all visits were to be supervised.

¶6        Mother, represented by counsel, appeared for the status conference in August 2014 and brought with her the home study report and the person who prepared it. Father, representing himself, objected that because he believed the proceeding was a status conference and not an evidentiary hearing, he did not have the opportunity to call witnesses on his own behalf and was not prepared to cross-examine Mother’s witness. The court continued the hearing to provide Father an opportunity to prepare for cross-examination and to arrange for his own witnesses. In the interim, based on the home study report and “the status of the case,” the court granted Mother unsupervised parent time.

¶7 The next hearing was not conducted until nearly one year later in June 2015.[3]

[3.] The reason for this delay is difficult to determine. Father and Mother each submitted witness lists and exhibits in September and October 2014 in preparation for the upcoming hearing. Father moved to deny Mother’s petition to modify the custody order and to strike the home study report in November 2014. These motions were not ruled on, and the date for oral argument on the pending motions was not set until April 2015, when the hearing was scheduled for the following June.

Aside from the written home study report, the court received no other evidence or testimony.[4]

[4.] In September 2014, Mother identified the home study report as an exhibit and indicated her intention to call one witness, the person who prepared the report. In September and October 2014, Father submitted over two hundred pages of exhibits and identified seven potential witnesses. But no witnesses testified at the June 2015 hearing, and the court considered no evidence other than the report.

The court expressed disappointment in the report, calling it “[not] particularly helpful” and its conclusions “very limited.” It also called the case a “procedural mess” and proceeded in an “informal way” to “get to the heart of this matter.” It decided to make the August 2014 temporary order, which granted Mother unsupervised parent time, permanent. Father objected, citing Hogge v. Hogge, 649 P.2d 51 (Utah 1982), and asked the court how it could modify a custody award without first finding there had been a material change in circumstances. The court told Father it had “wide discretion in these matters” and that there was “satisfactory evidence in [the] file to demonstrate that [this decision] is in the best interest of the child.” It ordered that Mother’s unsupervised parent time be made permanent without entering any findings of fact. Father appeals.

ISSUE AND STANDARD OF REVIEW

¶8         Father contends the district court erred in granting unsupervised parent time to Mother without finding that there had been a material change in circumstances since the court’s custody determination in 2009.[5]

[5.] Father raises five issues on appeal, but because four of them are inadequately briefed, we address only the first issue on its merits. See Utah R. App. P. 24; State v. Thomas, 961 P.2d 299, 304– 05 (Utah 1998) (outlining the requirements for an adequately briefed argument and observing that “[i]t is well established that a reviewing court will not address arguments that are not adequately briefed”); infra ¶¶ 18–19.

A district court’s decision to modify parent time is reviewed for abuse of discretion. Tobler v. Tobler, 2014 UT App 239, ¶ 12, 337 P.3d 296; see also Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App. 1998) (“[W]e will not disturb the trial court’s visitation determination absent a showing that the trial court abused its discretion.”). “We review a district court’s alleged failure to require evidence establishing a material change of circumstances for correctness . . . .” Jones v. Jones, 2016 UT App 94, ¶ 8, 374 P.3d 45.

ANALYSIS

  1. Inadequate Findings

¶9        As a threshold matter, Mother contends that Father’s argument is inadequately briefed. We disagree. An adequately briefed argument “contain[s] the contentions and reasons of the appellant with respect to the issues presented, including the grounds for reviewing any issue not preserved in the trial court, with citations to the authorities, statutes, and parts of the record relied on.” Utah R. App. P. 24(a)(9). Father represents himself on appeal and is “held to the same standard of knowledge and practice as any qualified member of the bar.” See Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983). But as a pro se party, Father is entitled to “every consideration that may reasonably be indulged.” See id. (citation and internal quotation marks omitted).

¶10 In his first issue, Father presents a clear argument, with citations to authority and the record. He also demonstrates, with citations to the record, that the issue was preserved in the district court. See Utah R. App. P. 24(a)(5)(A). Although Father does not provide an in-depth legal analysis, his argument is sufficient to show an error and why, under applicable authorities, that error must be redressed. See State v. Lucero, 2002 UT App 135, ¶ 13, 47 P.3d 107 (“[T]o permit meaningful appellate review, briefs must comply with the briefing requirements sufficiently to enable us to understand . . . what particular errors were allegedly made, where in the record those errors can be found, and why, under applicable authorities, those errors are material ones necessitating reversal or other relief.” (alteration and omission in original) (citation and internal quotation marks omitted)).

¶11 Father contends the district court erred “when it failed to state any finding that there had been a material change in the circumstances upon which the previous visitation award was based.” He cites Hogge v. Hogge, 649 P.2d 51 (Utah 1982), which requires a two-step process when modifying a custody award. First, the court must make a finding that “there have been changes in the circumstances upon which the previous award was based” that are “sufficiently substantial and material to justify reopening the question of custody.” Id. at 54. And second, the court must determine what custody arrangement would serve the child’s best interest. Id. A modification of parent-time rights generally requires this same two-step process. Becker v. Becker, 694 P.2d 608, 611 (Utah 1984).

¶12 The Utah Supreme Court has acknowledged that the “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). Whether there has been a “material change with respect to visitation” is a different inquiry from whether there has been a “material change with respect to custody.” Jones v. Jones, 2016 UT App 94, ¶ 10 374 P.3d 45 (internal quotation marks omitted) (citing Becker, 694 P.2d at 609, 611). While the inquiry with regard to parent time “does not rise to the same level as the substantial and material showing required when a district court alters custody,” it still requires a showing of a change in circumstances. Id. ¶ 10; see Becker, 694 P.2d at 611; Hogge, 649 P.2d at 54.

¶13 For example in Jones, the district court altered parent time without making a separate finding of a substantial change in circumstances. 2016 UT App 94, ¶¶ 7–10. But the court made several findings that changes in the parties’ circumstances had occurred—the parent with primary physical custody of the children moved much closer to the other parent, who then relocated closer still. Id. ¶ 11. Also, the original divorce decree in Jones anticipated modifying parent time if the noncustodial parent relocated to be closer to the children. Id.

¶14 Although a district court need not find a substantial and material change in circumstances to alter parent time, it is still required to find some change in circumstances. Unlike the Jones court, the court in this case made no findings that a change had occurred, even when Father pressed the court to address this issue. The court likewise made no specific findings regarding the best interest of Child.

¶15 In making custody determinations, a court must provide adequate and detailed findings of fact. Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). “The importance of complete, accurate and consistent findings of fact in a case tried by a judge is essential to the resolution of dispute under the proper rule of law.” Id. (citation and internal quotation marks omitted). “Proper findings of fact ensure that the ultimate custody award follows logically from, and is supported by, the evidence and the controlling legal principles.” Id. (citation and internal quotation marks omitted).

¶16 Here, because there are no findings to review, we cannot determine whether the district court’s decision was based on correct legal principles or whether it was supported by the evidence. The only new evidence before the district court was the home study report, which the court itself described as limited and not particularly helpful. In making the Custody Award, the court awarded Mother unsupervised parent time provided that she verify that she met certain conditions; supervision would continue if she did not. Years later, the court temporarily suspended the supervision requirement, then made the order permanent without explaining the basis for its decision.

¶17 Because we are unable to conduct a meaningful review, we remand to the district court for more detailed findings of fact.

  1. Inadequate Briefing

¶18 Father raises four other issues on appeal. First, he contends the district court erred when it decided that Mother’s “inability to comply with the conditions for her unsupervised parent time constituted a material change in circumstances.” Second, he contends the court erred when it signed the order three days after it was submitted, without giving Father the opportunity to object. Third, Father contends the court denied him due process when it would not allow him to argue his motion to dismiss, signed the order without notifying him, failed to send him a copy of the order, failed to act on two other motions, and changed the status conference to an evidentiary hearing without notice. Fourth, Father contends the court erred when it converted Mother’s order to show cause into a petition to modify. These issues are inadequately briefed and we decline to address them on their merits. See supra ¶¶ 8 n.5, 9; Utah R. App. P. 24(a)(9) (requiring an adequately briefed argument to “contain the contentions and reasons of the appellant with respect to the issues presented . . . with citations to the authorities, statutes, and parts of the record relied on”).

¶19 For example, with respect to Father’s contention that the court erred when it decided that Mother’s inability to comply with the conditions in the Custody Award constituted a material change in circumstance, Father fails to identify where in the record the district court made this decision.[6]

[6.] This argument is curious given Father’s first argument, in which he contends the court did not make “any finding that there had been a material change in the circumstances.”

In addition, although Father cites some authority, he does not provide “development of that authority and reasoned analysis based on that authority.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998). In any event, we need not address this issue because additional findings on remand will either clarify this matter or dispose of it entirely.

¶20 Father’s other arguments are also inadequately briefed. They provide scant citations to the record, and where there is citation to authority, he offers no development or reasoned analysis based on that authority. We therefore decline to address them.

CONCLUSION

¶21 Because the district court modified the parent time requirements of the Custody Award without providing any findings, we are unable to review its decision and remand for more detailed findings. The other issues raised are inadequately briefed and we therefore do not reach them on the merits.

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

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