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Tag: Utah Code § 80-3-402(1)

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

2024 UT App 52 – In re A.S.

 

THE UTAH COURT OF APPEALS

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

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

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

The Honorable Elizabeth M. Knight No. 1214949

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

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

Martha Pierce, Guardian ad Litem

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

TENNEY, Judge:

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

BACKGROUND
Initial Proceedings

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

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

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

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

The Stipulated Facts

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

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

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

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

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

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

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

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

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

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

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

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

The Neglect Adjudication

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

ISSUES AND STANDARDS OF REVIEW

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

ANALYSIS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

In re K.K. – 2023 UT App 14

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220051-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Scott L. Wiggins, Attorney for Appellant

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

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

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

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

ANALYSIS

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

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

I. Neglect

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

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

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

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

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

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

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

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

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

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

II. Abuse

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

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

CONCLUSION

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

_____________

HARRIS, Judge (concurring):

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

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

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

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

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

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

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

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

 

______________

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

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

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

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

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In re K.K. – 2023 UT App 13

In re K.K. – 2023 UT App 13

THE UTAH COURT OF APPEALS

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

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220050-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Freyja Johnson, Emily Adams, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

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

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

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

concurred.

CHRISTIANSEN FORSTER, Judge:

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

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE AND STANDARD OF REVIEW

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

ANALYSIS

¶22      At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

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

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

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

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

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

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

 

CONCLUSION

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

¶30 Affirmed.

______________

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

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

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