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State v. Fowers – 2023 UT App 128 – violation of protective order

State v. Fowers – 2023 UT App 128

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellant,

v.

THOMAS FOWERS,

Appellee.

Opinion

No. 20220073-CA

Filed October 26, 2023

Fourth District Court, Provo Department

The Honorable Robert A. Lund

No. 201402484

Sean D. Reyes and Jeffrey D. Mann, Attorneys for

Appellant, assisted by law student Rebecca Barker[1]

Douglas J. Thompson, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which

JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1        Thomas Fowers’s ex-wife (Ex-Wife) is married to his adopted brother (Brother). A court issued a protective order directing Fowers not to “contact . . . or communicate in any way with [Ex-Wife], either directly or indirectly,” and not to “threaten to commit any form of violence against” her. Early one morning, Fowers called Brother’s phone three times in two minutes from an unrecognized number. The first two times, no one answered. The third time, Ex-Wife answered, and Fowers said, “You and that f***ing whore have it coming.”

¶2        Fowers was charged with violating the protective order. The district court declined to bind Fowers over and dismissed the charge, determining that there was “no evidence in the record to establish that Mr. Fowers . . . intentionally communicat[ed] either directly or indirectly to [Ex-Wife]” since “the statement itself clearly [was] directed at [Brother]” and Fowers did not tell Brother “to direct the comment to [Ex-Wife].” The State appeals, and we reverse.

BACKGROUND

¶3        Ex-Wife obtained a protective order against Fowers in August 2017. The order included a “No Contact Order” stating, “Do not contact, phone, mail, e-mail, or communicate in any way with [Ex-Wife], either directly or indirectly.” It also included a “Personal Conduct Order” stating, “Do not commit, try to commit or threaten to commit any form of violence against [Ex-Wife] . . . . This includes stalking, harassing, threatening, physically hurting, or causing any other form of abuse.”

¶4        One morning in July 2020, Brother’s phone received three calls between 4:57 a.m. and 4:58 a.m. from an unrecognized number. At the time of the first call, Ex-Wife and Brother “were, of course, sleeping.” As they awoke, they thought that maybe someone was calling for help related to a wedding they were to attend that day. When Ex-Wife answered the third call, she recognized Fowers’s voice saying, “You and that f***ing whore have it coming.”

¶5        Ex-Wife reported the calls to authorities, and Fowers was charged with one third-degree felony count of violation of a protective order with a domestic violence enhancement.

¶6        The district court held a preliminary hearing on the charge. The State presented evidence that Fowers had been served with the protective order. In addition to Ex-Wife, who testified about the phone calls, the deputy who received Ex-Wife’s report testified that he had checked the number from which the calls had been made against local records and found that the number was attached to Fowers. The deputy also said that he called the number and that, when he asked to speak to Fowers, the person who answered identified himself as Fowers. Additionally, the court accepted into evidence records of three prior convictions of Fowers’s for violating this protective order and a previous protective order because those convictions were “relevant to establish under evidence [r]ule 404 both knowledge by the defendant and intention.”

¶7        After the State presented its case, the court found “that the [S]tate ha[d] not met its burden.” The court explained:

[A]lthough the direct and circumstantial evidence establishes that Mr. Fowers made the call, the number that he called was his adoptive brother’s number, not the alleged victim’s number. . . .

[And] the statement itself clearly is directed at [Brother], not at [Ex-Wife]. He say[s] “you and that f’ing whore,” meaning that he’s directing his comment toward [Brother] and not [Ex-Wife] . . . . [W]hat is glaringly missing from the record here is any statement by Mr. Fowers to [Brother] to direct the comment to the alleged victim. Therefore, there is no evidence in the record to establish that Mr. Fowers intentionally violated this order by intentionally communicating either directly or indirectly to [Ex-Wife].

Based on those findings, I find that the [S]tate has not—even drawing inferences in the light most favorable to the [S]tate— . . . establish[ed] sufficient evidence[,] and I decline to bind the charge over.

The court dismissed the charge with prejudice, and the State now appeals.

ISSUE AND STANDARD OF REVIEW

¶8        The State contends that it presented evidence establishing probable cause that Fowers violated the protective order and that the district court therefore erred by not binding Fowers over. In essence, the State argues that the court applied the wrong legal standard by not viewing the evidence and all reasonable inferences that can be drawn from it in favor of the prosecution. A district court’s “decision to bind over a criminal defendant for trial presents a mixed question of law and fact and requires the application of the appropriate bindover standard to the underlying factual findings. As a result, in reviewing a bindover decision, an appellate court should afford the decision limited deference.” In re I.R.C., 2010 UT 41, ¶ 12, 232 P.3d 1040 (cleaned up). “Applying the wrong legal standard . . . will always exceed whatever limited discretion the [court] has in the bindover decision.” State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444.

ANALYSIS

¶9        Our supreme court has explained that the evidentiary threshold for bindover is a low bar:

Although the guarantee of a preliminary hearing is fundamental, the evidentiary threshold at such hearing is relatively low. As we have emphasized, a showing of “probable cause” entails only the presentation of evidence sufficient to support a reasonable belief that the defendant committed the charged crime. . . . To justify binding a defendant over for trial, the prosecution need not present evidence capable of supporting a finding of guilt beyond a reasonable doubt. Nor is the prosecution required to eliminate alternative inferences that could be drawn from the evidence in favor of the defense. All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.

State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (cleaned up). Here, the State needed to present “evidence sufficient to support a reasonable belief” that Fowers violated the protective order, id. (cleaned up), and the court was required to “view all evidence in the light most favorable to the prosecution and . . . draw all reasonable inferences in favor of the prosecution,” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (cleaned up).

¶10 A person commits the crime of violation of a protective order if the person “(a) is the respondent or defendant subject to a protective order . . . and (b) intentionally or knowingly violates that order after having been properly served” with it. Utah Code § 76-5-108(2). A person acts intentionally “when it is his conscious objective or desire to engage in the conduct.” Id. § 76-2-103(1). And a person acts knowingly “when he is aware of the nature of his conduct or the existing circumstances.” Id. § 76-2-103(2).

¶11 There is no dispute that Fowers was subject to the protective order at issue, and the State showed that Fowers was served with that protective order. Thus, the only issue before us is whether the State offered evidence supporting a reasonable belief that Fowers intentionally or knowingly violated the protective order. On this point, the State first argues that it put on evidence sufficient to establish probable cause that Fowers violated the No Contact Order portion of the protective order by “intentionally or knowingly contact[ing] Ex-Wife at least indirectly” because “[i]t was reasonable to infer that Fowers knew or intended that his contact and [message] . . . would be relayed to Ex-Wife.” The State then argues that Fowers’s statement “You and that f***ing whore have it coming” can also be reasonably interpreted as a threat of violence in violation of the Personal Conduct Order portion of the protective order. We agree with each of the State’s arguments.[2]

¶12      The State put on evidence establishing probable cause that Fowers intentionally or knowingly contacted Ex-Wife at least indirectly. In State v. Fouse, 2014 UT App 29, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014), this court affirmed a conviction for violation of a protective order where the defendant mailed envelopes to the victim’s sisters rather than to the victim, his estranged wife. Id. ¶¶ 4–7, 43. The victim was living with one of the sisters, and the other sister lived in the apartment next door. Id. ¶ 3. While some of the letters in the envelopes were addressed to the victim, others contained statements such as, “Please hold onto this. . . . [E]ven though I can’t send nor talk to my wife or kids[,] . . . writing sure does help.” Id. ¶ 4. Nonetheless, we reasoned that a factfinder “could readily infer that communication directed to or dealing with one’s ex-spouse, and sent to the ex-spouse’s siblings, will routinely and predictably be conveyed by the siblings to their family member.” Id. ¶ 40. And we noted, “Such an inference is particularly sound in this case, given the jury’s awareness that [the victim] and her sisters were close—in both senses of that term.” Id.

¶13 The same reasoning applies here. A factfinder could readily infer that calls Fowers placed to Brother or statements Fowers made to him would “routinely and predictably be conveyed” to Ex-Wife, Brother’s spouse, especially where a factfinder could reasonably infer that Brother and Ex-Wife were “close” “in both senses of that term.” Id. Indeed, a factfinder could infer that Fowers’s decision to call Brother just before 5:00 a.m.— a time when spouses could reasonably be assumed to be together—manifested his intent to catch Brother and Ex-Wife together. Therefore, we have no trouble concluding that the State’s evidence was sufficient to support a reasonable belief that Fowers, by calling Brother’s phone when he did, intentionally or knowingly contacted Ex-Wife directly or indirectly. Fowers did not need to explicitly direct Brother to communicate his message to Ex-Wife, and the court erred in suggesting as much.

¶14 The State also asserts that Fowers’s statement “You and that f***ing whore have it coming” can be reasonably interpreted as a threat of violence. We agree. In State v. Spainhower, 1999 UT App 280, 988 P.2d 452, this court recognized that the admittedly “vague and indirect” statement, “‘I’m going to get you,’ surely may connote a threat of bodily injury” because “among the many dictionary definitions of the verb ‘get’ are: ‘to bring to retribution, take vengeance on, KILL’ and ‘to strike with force, HIT.’” Id. ¶¶ 6– 7 (cleaned up). Likewise, the words at issue here, though perhaps similarly vague and indirect, could carry either a violent or a nonviolent meaning and must be interpreted by the factfinder in light of “the inferences to be drawn from the context in which the words were spoken.” Id. ¶ 7. And again, at the preliminary hearing stage, a court must “view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” Clark, 2001 UT 9, ¶ 10 (cleaned up). Accordingly, at this stage, the court should have interpreted Fowers’s words to be capable of conveying, in context, a threat of violence.

CONCLUSION

¶15 The protective order’s No Contact Order forbade Fowers from contacting, phoning, mailing, e-mailing, or communicating in any way with Ex-Wife, either directly or indirectly. Its Personal Conduct Order forbade him from threatening violence against Ex-Wife. Plainly there is “reasonably believable evidence—as opposed to speculation—sufficient to” show that Fowers violated one or both of these provisions. State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444. By not viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the State—and instead requiring a statement by Fowers to Brother to direct the comment at issue to Ex-Wife—the district court applied the wrong legal standard and exceeded “whatever limited discretion” it had in the bindover decision. Id. ¶ 7. We therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.


[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Fowers asserts that the State did not preserve “the arguments” it now makes on appeal because the prosecutor “did not raise [them] in a way that gave the district court the opportunity . . . to address [them].” “An issue is preserved by presenting it to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Vierig v. Therriault, 2023 UT App 67, ¶ 43, 532 P.3d 568 (cleaned up); see id. ¶ 44 (“Of note, issues must be preserved, not arguments for or against a particular ruling on an issue raised below. By contrast, new arguments, when brought under a properly preserved issue or theory, do not require an exception to preservation.” (cleaned up)).

Fowers is mistaken when he says that the State did not meet this preservation standard here. At the close of the preliminary hearing, the State referenced “paragraph 1 and 2 of the protective order”; identified those paragraphs as the Personal Conduct Order and No Contact Order respectively; and noted that they prohibited Fowers from “threatening [Ex-Wife] in any way” and from “communicating in any way with [Ex-Wife] either directly or indirectly.” The State then highlighted the evidence that Fowers “called the husband of [Ex-Wife] in the early morning hours when they would presumably be together and made a statement against her to [her] then husband,” which is the same evidence that the State emphasizes here. By presenting evidence and arguing below for bindover based on an alleged violation of both the Personal Conduct Order and the No Contact Order, the State gave the district court an opportunity to rule on the same questions we are now asked to rule on. So regardless of whether those questions are characterized as arguments or issues—and we express no opinion as to the proper characterization here— Fowers’s preservation argument fails.

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Practical steps to take to prepare to leave an abusive relationship?

Fredric Garms’s answer to What are practical, tangible steps someone can and should take when preparing to leave an abusive relationship?

I would add that if you reasonably believe you have some time to prepare:

  • save up some money to help you get on your feet in your new location and life
  • avoid communicating in writing and with your personal phone with those who are helping you, so that your abuser will have a harder time discovering your fears and plans
  • have a P.I. (private investigator)
    • sweep your vehicle and phone for tracking devices and teach you how to sweep your vehicle and phone for tracking devices
    • teach you how to avoid attention, tracking, and surveillance by your abuser
    • teach you how and/or help you to disappear without leaving a trace and without your abuser being able to victimize you after you disappear by ruining your credit or things like that.

If it’s emotional abuse:

  • try to get your abuser to realize what he/she is doing is abusive and that you want it to change
  • urge your abuser to make an earnest good faith commitment to some couple’s therapy or counseling
  • look at yourself and ask whether you need to change, regardless of being a victim of emotional abuse
  • If reasonable—reasonable—efforts (made over a reasonable time) to get your abuser to change fail, break off the relationship. Easier said than done, but you can’t expect things to get better if your abuser won’t even try to change.

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

https://www.quora.com/What-are-practical-tangible-steps-someone-can-and-should-take-when-preparing-to-leave-an-abusive-relationship/answer/Eric-Johnson-311

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2019 UT App 202 – State v. Baize – protective order challenge

2019 UT App 202 – THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee,
v.
NATHAN DAVID BAIZE, Appellant.

Opinion
No. 20180326-CA
Filed December 12, 2019

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1           Nathan David Baize appeals his convictions for violating a protective order. We affirm.

BACKGROUND[1]

¶2           Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” Baize was also ordered, “Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly,” with the exception that Baize could email Victim about their child, provided his communications were “civil in nature.”

¶3           After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim’s qualities and character. Baize sent emails to Victim telling her that she was a “spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,” “uncooperative,” “incapable,” “fake,” and lacking “integrity.” Baize also sent emails to Victim telling her to “[u]se your brain blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up approach to cooperation.” Additionally, on several occasions, Baize threatened to call the police for “custodial interference charges.”

¶4           On another occasion, Baize emailed Victim—with a copy also sent to Victim’s new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim’s husband spoke to Baize at length and told him that he “need[ed] to stop the belligerent, degrading emails to [Victim].” Baize responded that his emails “will never stop.” Furthermore, Baize told Victim that she was “a weak, weak person” because she would “construe [his email comments] as personal attacks.”

 

¶5        The content of Baize’s emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be “civil in nature” was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms “harassing,” “threatening,” and “abuse” in the protective order as “forms of violence or threats of violence.” The court denied both motions.

¶6        At trial, Baize stated that while the tone in his emails might indicate that he was “[f]rustrated,” “feeling dejected,” “[h]elpless, hopeless, [and] concerned,” the emails were never uncivil. Rather, Baize asserted that he was just being “honest” and “clear.” However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was “weak” for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.

ISSUES AND STANDARDS OF REVIEW

¶7        The first issue on appeal is whether the restriction in the protective order requiring that Baize’s communication with Victim be “civil in nature” rendered the order unconstitutionally vague or acted as a prior restraint on speech. “Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court.” State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

 

¶8           Baize’s second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the “legal definitions” of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court’s decision on this point for correctness. See State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s refusal to give a requested jury instruction for correctness.”).

ANALYSIS

I. Constitutional Challenges to the Protective Order

¶9           At the outset, we must determine whether Baize is permitted, “in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding.” See State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as “a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order.”

¶10 A collateral attack is “where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement.” Olsen v. Board of Educ. of Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). “Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). “With rare exception, when a court with proper jurisdiction enters a final judgment, . . . that judgment can only be attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a protective order’s terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom, where we stated that a civil protective order is not subject to collateral attack and that there is “nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.” 2014 UT App 213, ¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18 (“The proper method for contesting an adverse ruling is to appeal it, not to violate it.” (quotation simplified)). Courts in other jurisdictions are in accord.[2]

¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter, 979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” (quotation simplified)).

¶13 Here, Baize was ordered not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” The relevant portion of the protective order also provided the following prohibition: “Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly,” the only exception being that Baize could contact Victim “via email about Child,” provided the emails were “civil in nature.” Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions­ states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order’s terms.[3]

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” to Victim. Baize argues that the trial court erred when it denied his request to define for the jury certain “legal terms” contained in the protective order.

¶16 Jury instructions require no specific form as long as they accurately convey the law. “To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” State v. Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d 1218 (stating that jury instructions will be upheld when they “fairly tender the case to the jury even where one or more of the instructions, standing alone, are not as full or accurate as they might have been” (quotation simplified)).

¶17 Baize was charged with violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that any person who is “subject to a protective order” and “who intentionally or knowingly violates that order after having been properly served” is guilty of a misdemeanor or felony, depending on the circumstances). The court instructed the jury that to find Baize guilty of violating the protective order, it would need to find beyond a reasonable doubt the following elements:

  1. Nathan David Baize;
  2. While subject to a protective order issued by a Utah Court;
  3. After having been properly served with the protective order;
  4. Intentionally or knowingly violated the protective order; and
  5. Is or was a cohabitant of the alleged victim.

¶18 Baize contends that the court erred when it denied his motion requesting a jury instruction that defined the terms “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” as forms of violence or the threat of violence. Baize argues that “because the protective order only prohibits stalking, harassing, threats, and abuse insofar as these terms could mean violence or a threat of violence,” the definitions of those terms should be “limited . . . to that realm.” (Quotation simplified.) Specifically, Baize requested that the court instruct the jury on the definitions of harassment and physical harm as those terms are defined in Utah’s criminal code or in the Cohabitant Abuse Procedures Act. See Utah Code Ann. § 76-5-106(1) (LexisNexis 2017) (defining harassment as intentionally frightening or harassing another by communicating “a written or recorded threat to commit any violent felony”); id. § 77-36-1(4) (Supp. 2019) (defining domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm”).[4]

¶19 The violence-based definitional language Baize requested is not found in the protective order or in the statute he was accused of violating. But Baize asserts that because Utah Code section 76-5-108 does not define the terms in the protective order (namely, harassing and threatening), the court should have given the jury the statutory meanings of those terms pulled from other provisions of the criminal code instead of allowing the jury to rely on the general understanding of the terms. Baize’s argument misses the mark. He was not charged with harassing or any other violent behavior pursuant to a separate statute. Rather, he was charged pursuant to Utah Code section 76-5-108 with four counts of violating the protective order, and the jury instructions on those four counts closely tracked the language of that section. Moreover, Baize presents no evidence that the protective order adopted the specific violence-based statutory definitions he proposed.

¶20 We conclude that the trial court did not err when it denied Baize’s request that the jury be instructed using Baize’s restrictive definitions of certain terms and allowed the jury to determine whether Baize violated the protective order based on common definitions of the terms contained in the protective order.[5]

CONCLUSION

¶21 We hold that the proper forum for Baize to challenge the protective order was the original civil proceeding pursuant to which the order was entered. Because Baize had notice and the opportunity to appeal the protective order, he is barred from collaterally challenging it in the subsequent criminal proceeding resulting from its violation. We also conclude that the trial court did not err in denying Baize’s request to define for the jury certain terms contained in the protective order. Accordingly, the judgment of the trial court is affirmed.

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

———————–

[1] “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

[2] 2. Other jurisdictions also explicitly bar collateral attack in this context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw. 2001) (stating that a domestic restraining order is not subject to collateral attack in the criminal proceeding for its violation and collecting cases stating the same); Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order”); Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may not collaterally attack the validity of a [protective order] in a subsequent criminal proceeding based on violation of the [protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404 P.3d 450 (“The collateral bar rule precludes a restrained party from challenging the merits of [a protective order] after a finding of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash. 2011) (en banc) (“The collateral bar rule precludes challenges to the validity . . . of a court order in a proceeding for violation of such an order except for challenges to the issuing court’s jurisdiction to issue the type of order in question.”).

[3] 3. Even if we were to conclude that Baize could attack the validity of the civil protective order here and agree with him that the “civil in nature” language in the protective order is unconstitutionally vague, Baize ignores the alternative restriction imposed on him by the protective order, namely that his communication with Victim must pertain to their child. Baize’s emails to Victim appear to have violated this provision.

Baize’s communications variously described Victim in unflattering terms and accused her of indiscretions. Indeed, our review of the record reveals that Baize’s emails to Victim are replete with examples of Baize directing his comments to Victim’s alleged attributes rather than a discussion of co-parenting needs or the needs of the child.

We find the argument that Baize’s comments took place in the context of communication about their child unpersuasive. Baize’s concerns regarding their child’s well-being or Victim’s parenting could have been effectively communicated without personal commentary about Victim. In fact, Baize admitted at trial that he was “[g]ambling on” Victim construing the comments he made in his emails as “personal attacks.”

[4] Baize also argues on appeal that the jury should have been instructed on the definition of stalking. But at trial, the State stipulated that the court would consider instructing the jury on the definition of stalking only “[i]f the State [brought] in evidence of stalking.” The State did not attempt to introduce evidence of stalking, and Baize did not again request that the trial court instruct the jury on the issue of stalking. Consequently, Baize waived this aspect of his argument below and cannot raise it on appeal. See State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue before a court, is generally the relinquishment or abandonment of an issue before a trial or appellate court. . . . If an issue has been waived in the trial court, that issue is not preserved for appeal.”).

[5] 5. We resolve this aspect of Baize’s appeal by declining to apply strict statutory definitions, but we note that the language of the relevant provisions of the protective order was written broadly and did not suggest that Baize was prohibited from engaging in only physically violent behavior or in making threats of violence. Baize’s violence-based reading of the protective order’s terms conflicts with the public policy underlying the entire domestic violence statutory scheme:

Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders . . . because of the need to provide ongoing protection for the victim . . . . [T]he court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not . . . have a reasonable fear of future harm or abuse.

Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state has an inarguably significant interest in protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim’s family.”). Thus, the statute’s purpose is to protect domestic abuse victims from further abusive behavior in the broad sense, including psychological abuse and other forms of controlling behavior. Baize’s violence-based interpretation of the protective order’s terms appears to run contrary to the significant interest the State has in protecting the overall health and emotional well-being of its citizens.

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2019 UT App 207 – Peeples v. Peeples – modification of child custody

2019 UT App 207 – THE UTAH COURT OF APPEALS

ADAM LEGRANDE PEEPLES, Appellee,
v.
ANNALEISE T. PEEPLES, Appellant.

Opinion
No. 20180713-CA
Filed December 19, 2019

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 044901980

Brian Boggess, Attorney for Appellant
Adam L. Peeples, Appellee Pro Se

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

HARRIS, Judge:

¶1           Annaleise T. Peeples (Mother) asked the district court to modify her divorce decree to give her sole custody of her two teenage daughters, but the district court refused, determining that Mother had failed to demonstrate any substantial change in the circumstances underlying the original decree. Mother now appeals the district court’s order dismissing her petition to modify, and we affirm.

BACKGROUND

¶2           In 2004, after about three-and-a-half years of marriage, Adam Legrande Peeples (Father) filed for divorce from Mother, citing irreconcilable differences. Around the same time, Father also sought and obtained a protective order against Mother, asserting that Mother had been physically abusive to him; that protective order awarded temporary custody of the parties’ two young daughters to Father. The parties were each represented by counsel in both the divorce and the protective order proceedings, and because of the allegations of physical abuse, the court also appointed a guardian ad litem to represent the best interests of the two children. Early in the divorce case, all parties and counsel appeared before a domestic relations commissioner to discuss the parties’ motions for temporary orders. Following that hearing, the commissioner entered a temporary order, later countersigned by the assigned trial judge, awarding temporary custody of the children to Father, as the protective order did, with Mother receiving parent-time.

¶3           As the divorce proceedings progressed, the district court appointed a custody evaluator to make a recommendation to the court. While the custody evaluation was ongoing, the court entered a stipulated bifurcated decree of divorce in 2005, severing the parties’ marital union but reserving all other issues, including custody and parent-time, for further proceedings. In 2007, Mother filed her first motion for a change in custody, alleging that the temporary order giving custody to Father was unworkable because Mother lived in northern Utah County and Father lived in Salt Lake County, and because Father had “moved three times in three years and has not demonstrated stability.” Father objected, and after briefing and oral argument, the commissioner denied Mother’s motion.

¶4           In October 2007, soon after the commissioner denied Mother’s motion for a change in temporary custody, the parties and counsel participated in a settlement conference with the custody evaluator, at which the evaluator orally shared with the parties his recommendation: that primary physical custody remain with Father. At a hearing in December 2007, the guardian ad litem informed the court that he agreed with the custody evaluator’s recommendation. At that same hearing, the district court set a date for a bench trial to resolve all remaining issues.

¶5           Following the commissioner’s ruling on Mother’s motion and the court’s decision to set a trial date, as well as the revelation of the recommendations made by the custody evaluator and the guardian ad litem, the parties and their counsel entered into negotiations, and were able to resolve the remaining issues by stipulation. On April 28, 2008, after more than four years of divorce litigation, the court entered a stipulated amended decree of divorce, awarding the parties “joint legal custody” of the children, but awarding Father “primary physical custody.” Mother was to have “liberal parenting time” amounting to five out of every fourteen overnights during the school year, with the schedule to be “reversed” during the summertime.

¶6           Perhaps not surprisingly, given the nature and tone of the four years of pre-decree litigation, entry of the final divorce decree did not end the divisiveness and discord between these parties. About a year-and-a-half after the amended decree was entered, Mother filed a petition to modify, seeking amendments to the parent-time provisions of the decree. Mother alleged that circumstances had changed substantially since the entry of the decree because Father had enrolled the children in year-round school, rendering certain of the decree’s provisions unworkable, and because Father had violated the decree in numerous particulars. Father responded by filing a cross-petition to modify, seeking sole legal and physical custody. After further proceedings, the district court declined to modify the original divorce decree, and denied the parties’ dueling petitions.

¶7           A few years later, in 2013, Mother filed the instant petition to modify, this time seeking sole physical custody of the children. Mother asserted that circumstances had changed in three specific ways. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children [had] been emotionally abused.”

¶8           Soon after the filing of Mother’s 2013 petition to modify, the parties agreed to have another custody evaluation done. After some procedural wrangling about the identity of the evaluator, the court finally appointed one, and the new evaluator interviewed the parties and the children in the fall of 2015. In January 2016, the evaluator shared her recommendation with the parties’ attorneys: that Mother be awarded sole physical custody, with Father to receive “standard minimum parent time.” Soon thereafter, the court appointed a different guardian ad litem (GAL) to represent the best interests of the children during the proceedings on the petition to modify.

¶9           From there, it took over a year to get to trial on the petition to modify; trial eventually took place over two days in December 2017. Just a few days before trial was to begin, the GAL issued a report containing his recommendations. Unlike the custody evaluator, the GAL recommended that the custody arrangement remain unchanged, with Father retaining primary physical custody. He explained that, while he understood the evaluator’s “rationale for recommending a change in custody at the time [the] evaluation was performed, over two years [had] passed” since the evaluator conducted her interviews, and he expressed his view that the information on which the evaluator based her conclusions was outdated.

¶10         At trial, Mother (as the petitioner on the petition to modify) presented her case first, and called three witnesses over the first day-and-a-half of trial: herself, Father, and the custody evaluator. At the conclusion of Mother’s case-in-chief, Father made an oral motion to dismiss the petition to modify, arguing that Mother failed to “meet her burden to prove that a significant change in circumstances has taken place.” After hearing argument from both sides, as well as from the GAL, the court granted Father’s motion. The court explained that Father’s relative instability had been constant since before the decree was entered, and therefore was not a change in circumstances; that any violations by Father of the terms of the decree could be resolved in contempt proceedings, and—especially in a case in which “[t]he parties have been in constant conflict since their separation and likely before”—that those violations did not rise to the level of unworkability that would constitute a change in circumstances; and found that there had not been any violence or emotional abuse. The court noted that the parties had been fighting over custody for some thirteen years, and that the fighting had been fairly constant. The court stated that, in such a “high-conflict” case, “if anything, the need to show a change in circumstances [is] even stronger,” and “the need for a permanent decree . . . that people can rely on . . . is that much greater.” A few weeks later, the court entered a written order, drafted by Father’s counsel, dismissing Mother’s petition to modify; that order contained a provision stating that, “[i]n a high conflict divorce such as this one, the need for finality is even greater and therefore the burden to show a material and significant change in circumstances should be higher than normal.”

ISSUE AND STANDARDS OF REVIEW

¶11         Mother now appeals from the district court’s order dismissing her petition to modify. When reviewing such a decision, we review the district court’s underlying findings of fact, if any, for clear error, see Vaughan v. Romander, 2015 UT App 244, ¶ 7, 360 P.3d 761, and we review for abuse of discretion its ultimate determination regarding the presence or absence of a substantial change in circumstances, see Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. The district court’s choice of legal standard, however, presents an issue of law that we review for correctness. See id. ¶ 6.

ANALYSIS

¶12         Mother challenges the district court’s dismissal of her petition to modify on two general grounds. First, she contends that the district court employed an incorrect (and overly strict) legal standard in determining whether circumstances had changed sufficiently to justify reopening the governing custody order. Specifically, she asserts that the court did not properly take into account the fact that the decree at issue was stipulated rather than adjudicated, and she takes issue with the statement in the court’s written order that, in “high conflict” cases, the burden of demonstrating a change in circumstances is “higher than normal.” Second, Mother contends that the district court abused its discretion in determining, on the facts of this case, that no substantial and material change in circumstances existed. We address each of these contentions in turn.

A

¶13         Under Utah law, petitions to modify custody orders are governed by a two-part test:

A court order modifying . . . an existing joint legal custody or joint physical custody order shall contain written findings that: (i) a material and substantial change of circumstance has occurred; and (ii) a modification . . . would be an improvement for and in the best interest of the child.

Utah Code Ann. § 30-3-10.4(2)(b) (LexisNexis Supp. 2019). Because “[t]he required finding of a material and substantial change of circumstances is statutory, . . . [n]either this court nor the supreme court has purported to—or could—alter that requirement.” Zavala v. Zavala, 2016 UT App 6, ¶ 16, 366 P.3d 422; see also Doyle v. Doyle, 2011 UT 42, ¶ 38, 258 P.3d 553 (“Even an overwhelming case for the best interest of the child could not compensate for a lack of proof of a change in circumstances.”). Thus, “only if a substantial change of circumstances is found should the [district] court consider whether a change of custody is appropriate given the child’s best interests.” Wright v. Wright, 941 P.2d 646, 651 (Utah Ct. App. 1997) (quotation simplified).

¶14         This statutory requirement that a substantial change in circumstances be present before a court may modify a custody order serves two important ends. “First, the emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). We have previously noted the “deleterious effects of ‘ping-pong’ custody awards” that subject children to ever-changing custody arrangements. See Taylor v. Elison, 2011 UT App 272, ¶ 13, 263 P.3d 448 (quotation simplified). Second, the requirement “is based in the principles of res judicata,” as “courts typically favor the one-time adjudication of a matter to prevent the undue burdening of the courts and the harassing of parties by repetitive actions.” Id. (quotation simplified); see also Zavala, 2016 UT App 6, ¶ 16 (stating that the statutory change-in­circumstances requirement is “a legislative expression of the principle of res judicata”).

¶15         The change-in-circumstances requirement is itself comprised of two parts. In order to satisfy it, “the party seeking modification must demonstrate (1) that since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based; and (2) that those changes are sufficiently substantial and material to justify reopening the question of custody.” Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982). In this context, however, our case law has drawn something of a distinction between adjudicated custody decrees and stipulated custody decrees, recognizing that “an unadjudicated custody decree” is not necessarily “based on an objective, impartial determination of the best interests of the child,” and therefore the res judicata policies “underlying the changed-circumstances rule [are] at a particularly low ebb.” See Taylor, 2011 UT App 272, ¶ 14 (quotation simplified). In Zavala, we clarified that the change-in-circumstances requirement still applies even in cases involving stipulated (as opposed to adjudicated) custody orders, although we acknowledged that, in some cases, “a lesser showing” of changed circumstances may “support modifying a stipulated award than would be required to modify an adjudicated award.” See 2016 UT App 6, ¶ 17.

¶16         In this case, the court did not specifically discuss the distinction our case law has drawn between stipulated and adjudicated decrees, or the extent to which this decree should be considered stipulated or adjudicated. The court simply applied the change-in-circumstances requirement and found it not met on the facts of this case. In one recent case, we found no error under similar circumstances. See Erickson v. Erickson, 2018 UT App 184, ¶ 21, 437 P.3d 370 (declining to reverse a district court’s determination that no substantial and material change in circumstances had been shown, despite the fact that the district court did not specifically consider “the fact that the underlying custody award was based on a stipulated agreement”).

¶17         But more to the point, we think it unhelpful to view the adjudicated/stipulated dichotomy as entirely binary; instead, in assessing how much “lesser” a showing might be required to satisfy the change-in-circumstances requirement, see Zavala, 2016 UT App 6, ¶ 17, courts should examine the origin of the order in question and analyze the extent to which the order—even if stipulated—reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.

¶18         We discern no error here, even though the district court did not expressly discuss the origin of the custody decree at issue, because the decree—although entered as a result of a negotiated settlement—was more akin to an adjudicated decree than a non-adjudicated decree. Here, the decree was finalized in April 2008, after more than four years of litigation between the parties, during which both parties were represented by counsel the entire time. The parties had fully litigated not only motions for protective orders, which involved custody determinations made by a court, but also motions for temporary orders before the court commissioner and the district court wherein temporary custody determinations were made. Moreover, the court had appointed a guardian ad litem to represent the children, and in addition a full evaluation had been performed by a neutral court-appointed custody evaluator. The parties did not reach their negotiated settlement in this case until after they had received input from not only the custody evaluator and the guardian ad litem, but also from the commissioner and the court during the temporary orders process. By the time the settlement was reached, four years of litigation had passed and a trial date had been set. In the end, the decree encapsulated, for the most part, the recommendations made by the guardian ad litem and the custody evaluator, and memorialized an arrangement very similar to the one previously ordered by the court on a temporary basis.

¶19         We certainly recognize the potential for injustice with certain types of stipulated custody orders; indeed, this is part of the reason why courts, when considering petitions to modify, retain the flexibility to be less deferential to stipulated custody orders. See Taylor, 2011 UT App 272, ¶ 14 (stating that unadjudicated custody decrees “may in fact be at odds with the best interests of the child” (quotation simplified)). Depending on the situation, our confidence that a stipulated custody decree—at least one that is submitted to the court before receipt of input from judicial officers during the temporary orders process or from custody evaluators or guardians ad litem—will actually be in keeping with the best interest of the child may be comparatively low, especially where neither side is represented by counsel (or, potentially more concerning, when only one side is represented by counsel). Inequalities in negotiating power or financial resources can sometimes result in one parent agreeing to conditions by stipulation that may not be in the long-term best interest of the child.

¶20         But such concerns are not present in a case like this one, where the parties reached a negotiated agreement after fully and robustly participating in the litigation process, with lawyers, for more than four years. The terms of the negotiated custody decree in this case—entered on the eve of a scheduled trial—did not substantially deviate from the terms of the temporary custody order imposed by the court, and were heavily influenced by the recommendations of both the custody evaluator and the guardian ad litem. In this case, therefore, we have relatively high confidence that the custody order was in line with the best interests of the children. Accordingly, we discern no error in the district court’s decision to apply the change-in-circumstances requirement without watering it down to account for the fact that the custody order in question was, technically speaking, stipulated.

¶21         We are more concerned, however, with the district court’s statement in its written order that, in “high conflict” cases, “the burden to show a material and significant change in circumstances should be higher than normal.” The district court offered no citation to any authority supporting this principle in our case law, and we are aware of none. We take this opportunity to clarify that there is no separate standard that courts are to apply in high-conflict cases when considering whether a substantial change of circumstances is present in the context of a petition to modify. Nevertheless, we are not persuaded that the district court’s statement made a material difference to its analysis in this case. In context, especially after reviewing the court’s oral ruling, we view the court’s statement as simply acknowledging that, in high-conflict divorce cases, parties are perhaps more willing to seek modification more often, and that the danger of “ping-pong” custody awards in those cases is therefore proportionately higher.

¶22         In the end, we are convinced, after a review of the full record, that the district court applied the proper two-step analysis to determine whether a substantial and material change in circumstances occurred here. First, the court analyzed whether, “since the time of the previous decree, there have been changes in the circumstances upon which the previous award was based.” See Hogge, 649 P.2d at 54. Second, the court analyzed whether “those changes are sufficiently substantial and material to justify reopening the question of custody.” See id. Because we conclude that the court applied the proper test, we now proceed to analyze whether the court abused its discretion in its application of that test.

B

¶23         In her petition to modify, Mother pointed to three things that she believed led to a substantial and material change in circumstances. First, she contended that Father had been “unable to provide a stable home environment” and find “stable employment.” Second, she contended that Father had “denied [her] physical visitation” to which she was entitled pursuant to the decree. Third, she contended that Father had “become violent with other people” and that “the children have been emotionally abused.” After hearing evidence for a day-and-a-half, the district court concluded that these things did not constitute a substantial and material change in circumstances, finding either that they were occurring, at most, infrequently, or that they had been occurring throughout the litigation and therefore could not constitute a change in circumstances. We conclude that the court did not abuse its discretion in making that determination.

1

¶24         Mother’s first contention was that Father had “been unable to provide a stable home environment” for the children because he had “been evicted from several residences” resulting in the children having to change schools a number of times. In addition, Mother contended that Father had not “had stable employment for the last eight years.” The district court acknowledged that Mother had presented evidence that Father’s “income was questionable and [his] lifestyle was a little bit itinerant.” But the court noted in its oral ruling that this had been the case both “before and after the decree,” and that nothing had changed in this regard. In its written ruling, the court made a finding that it had “not received evidence that there has been a significant and material change in [Father’s] ability to provide the children with a stable home.”

¶25         It is unclear from Mother’s brief whether she even intends to challenge the district court’s factual findings, stating that her “appeal is primarily legal.” But in any event Mother has not carried her burden—if indeed she intended to shoulder that burden—of demonstrating that the court’s factual finding was clearly erroneous. As noted above, Mother alleged as early as 2007—in her pre-decree motion to alter the terms of the court’s temporary custody order—that Father had “moved three times in three years and has not demonstrated stability.” Despite Father’s itinerant nature, the first custody evaluator recommended that primary physical custody be awarded to Father, and the stipulated decree followed that recommendation. Presumably, all of that was taken into account during the litigation that preceded entry of the decree. Moreover, in her own petition to modify filed in 2013, Mother alleged that Father’s employment instability had been an issue “for the last eight years,” dating back to 2005, three years before entry of the decree. Issues that were present prior to the decree, and continue to be present in much the same way thereafter, do not represent a change in circumstances sufficient to justify the reopening of a custody decree. See Utah Code Ann. § 30-3­ 10.4(2)(b)(i) (LexisNexis Supp. 2019) (requiring a “change of circumstance” before reopening a custody decree); see also Becker v. Becker, 694 P.2d 608, 610 (Utah 1984) (stating that the rationale behind the change-in-circumstances requirement “is that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed”). In the end, Mother has not shown that the district court’s finding—that Father’s employment instability and itinerant nature had been present the whole time and therefore did not constitute a substantial change in circumstances—was clearly erroneous.

2

¶26         Mother’s next contention was that Father failed on numerous occasions to facilitate parent-time as required under the divorce decree. The district court found that, while Father may have committed occasional violations of the terms of the decree, “[t]he court has not received evidence that any denial of physical visitation on the part of [Father] was systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.

¶27         Ordinarily, when one parent commits a violation of the terms of a divorce decree, the other parent’s remedy lies in contempt. See Utah Code Ann. §§ 78B-6-301(5), -310 (LexisNexis 2018) (categorizing “disobedience of any lawful judgment [or] order” as “contempt[] of the authority of the court,” and authorizing courts to sanction violators); see also, e.g., Clarke v. Clarke, 2012 UT App 328, ¶¶ 24–31, 292 P.3d 76 (resolving one parent’s request for contempt sanctions against the other for asserted violations of a custody order). In most cases, violations of a custody order by one party will not constitute the type of substantial and material change in circumstances that will justify reexamining the propriety of the order. But if the violations are so numerous and pervasive that it becomes evident that the custody arrangement is “not functioning,” then a change in circumstances may have occurred. See Moody v. Moody, 715 P.2d 507, 509 (Utah 1985) (“[T]he nonfunctioning of a joint custody arrangement is clearly a substantial change in circumstances which justifies reopening the custody issue.”); see also Huish v. Munro, 2008 UT App 283, ¶ 13, 191 P.3d 1242 (same).

¶28         In this case, the district court, after hearing Mother’s evidence, made a factual finding that the evidence of Father’s potentially contemptuous behavior was not so overwhelming as to render the decree unworkable. The court noted that the parties had been “in constant conflict since their separation and likely before,” and that they were “still at war” thirteen years after their separation. The court found that, while Father may have violated the decree with regard to parent-time on a few occasions, Father’s violations were not “systemic, deliberate, or pathogenic enough to satisfy the requirements of the law in reopening” the decree.

¶29         As noted above, it is unclear if Mother even intends to challenge the district court’s factual findings, but in any event she has not demonstrated clear error here. The district court’s finding that the decree had not been rendered unworkable as the result of Father’s violations was supported by, among other evidence, the recommendation of the court-appointed GAL, who expressed the view that the custody arrangement was working well enough and should remain unchanged, and that “the children have maintained throughout these proceedings that they are happy with the current arrangement.” Mother has not demonstrated that the district court’s determination about the decree’s workability was clearly erroneous.

3

¶30         Mother’s final contention was that Father had “become violent with other people and the children have been emotionally abused.” After hearing the evidence, the district court found insufficient evidence that Father had been violent or that he had emotionally abused anyone. In her brief, Mother makes no serious effort to challenge this factual finding, and therefore we are unable to find any error therein.

4

¶31         Given that Mother has not mounted a successful challenge to any of the district court’s factual findings, all that remains is for us to examine whether, given these findings, the court abused its discretion in determining that no material and substantial change in circumstances had occurred. See Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. And on this record, we have no trouble concluding that the court did not abuse its discretion in making that determination. Many of the issues identified by Mother in her petition—such as Father’s unstable employment and frequent change of residence—had been present from the outset of this case, and were present before the decree was entered; such ever-present conditions cannot constitute a change in circumstances sufficient to reopen a custody decree. Any issues Father had with complying with the terms of the decree were apparently not egregious or pervasive enough to render the custody arrangement unworkable. And the district court, after listening to a day-and-a-half of evidence, did not hear any evidence that Father had acted violently or abusively toward anyone.

¶32         Under these circumstances, the district court did not abuse its discretion in concluding that Mother had not carried her burden of demonstrating a change in circumstances that was substantial and material enough to justify reexamining the parties’ longstanding custody arrangement. Because Mother did not satisfy the first part of the statutory test for obtaining a modification of a divorce decree, the district court did not err by dismissing her petition.

CONCLUSION

¶33         For all of the foregoing reasons, we affirm the district court’s dismissal of Mother’s petition to modify.

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

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What do you do about domestic abuse?

I have not been the victim of domestic violence or abuse, but I have had some clients who are. If you have a good, honest, and responsive police force in your jurisdiction, coupled with the court that is willing to issue protective orders AND enforce them, then police and courts can help.

Regardless of whether the police and courts in your jurisdiction do or not take domestic violence and abuse seriously, you should never rely upon law enforcement or the court’s to protect your life and physical safety. You and you and you alone are best equipped to protect your physical safety and life.

If the police and courts in your jurisdiction will not bring to bear their resources to protect you, then protect yourself. Get away from the abuser, if you can. Yes, run. Stay alive. The National Domestic Violence Hotline | Get Help Today | 1-800-799-7233 provides help for women and for men who are abuse victims.

You can complain all you want about your rights, but that won’t stop a bullet or a fist. Learn how to own and carry and use a gun for self-defense. learn how to secure your home with locks and surveillance cameras and alarm systems.

If you are the victim of domestic violence and/or abuse, report it as quickly as you can after it occurs. If you are threatened with domestic violence, report that too. and if you have any written or recorded evidence of those threats, make sure you share that with law enforcement and with the court. Not only can you report violence or threats of violence, you can take action to protect yourself from future violence by requesting a protective order or civil stalking injunction.

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

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In re C.C.W. – 2019 UT App 34 – termination of parental rights

In re C.C.W.
http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=In re C.C.W.20190307_20170360_34.pdf

2019 UT App 34

THE UTAH COURT OF APPEALS

IN THE INTEREST OF C.C.W. AND Z.C.W., PERSONS UNDER EIGHTEEN YEARS OF AGE.
R.D.T. AND GUARDIAN AD LITEM, Appellants,
v.
C.L.W., Appellee.

Opinion No. 20170360-CA
Filed March 7, 2019

Third District Juvenile Court, West Jordan Department
The Honorable Renee M. Jimenez
No. 1135445

Troy L. Booher, Julie J. Nelson, Erin B. Hull, and Shane A. Marx, Attorneys for Appellant R.D.T.
Martha Pierce, Attorney for Appellant Guardian ad Litem
David Pedrazas, Attorney for Appellee

JUDGES RYAN M. HARRIS and MICHELE M. CHRISTIANSEN FORSTER jointly authored this Opinion. JUDGE GREGORY K. ORME concurred in the result.

HARRIS and CHRISTIANSEN FORSTER, Judges:

¶1        R.D.T. (Mother) petitioned the juvenile court to terminate the parental rights of her ex-husband, C.L.W. (Father), as to their children, C.C.W. and Z.C.W. (collectively, the Children). After Mother presented her case-in-chief, Father asked the court to dismiss Mother’s petition. The court granted the motion on the ground that—although Father had abandoned the Children and had twice been incarcerated for violently attacking Mother and, later, another woman—it was not in the Children’s best interest to terminate Father’s parental rights. Mother and the Guardian ad Litem (the GAL) appeal, contending that the court misapplied the law to the facts. In one significant respect, we agree, and therefore vacate the juvenile court’s determination and remand for further proceedings consistent with this opinion.

BACKGROUND

¶2        Mother and Father married in September 2005. Z.C.W. was born in August 2006 and C.C.W. in January 2009. Shortly after C.C.W. was born, and when Z.C.W. was three years old, Father brutally attacked Mother and threatened to kill her at gunpoint after the two had an argument about Father’s infidelity. Father was charged with aggravated kidnapping and two counts of aggravated assault, and ultimately pled guilty to kidnapping and aggravated assault. The court presiding over his criminal case sentenced him to prison, where he was incarcerated from April 2010 to March 2013.

¶3        While Father was incarcerated, Mother filed for divorce, and a divorce decree was entered in 2010 that awarded Mother sole physical custody of the Children. Mother and Father have each remarried thereafter.

¶4        In 2014, one year after his release from prison, Father violated his parole by leaving the state, attacked another woman in Missouri, and later pled guilty to domestic assault. For this crime, he was incarcerated in Missouri from May 2014 to December 2016.

¶5        In October 2016, just before Father was released from prison for the second time, Mother petitioned the juvenile court to terminate Father’s parental rights. Mother filed the petition because she believed, among other things, that Father had abandoned the Children, and because she believed that reintroducing Father into the Children’s lives would be disruptive and potentially violent. The case proceeded to trial.

¶6        After Mother presented her case-in-chief, but before he put on any evidence of his own, Father asked the court to dismiss Mother’s petition. The juvenile court granted Father’s motion and entered findings of fact and conclusions of law, wherein it found that Father had abandoned the Children but that Mother had not shown that it was in the Children’s best interest to terminate Father’s parental rights.

¶7        The juvenile court first found that there were grounds for termination because Father did not attempt to communicate at all with the Children beginning in 2012, during his first incarceration, and through 2016 when Mother filed her termination petition. Significantly, Father did not attempt to communicate with the Children during the year between his two terms of incarceration, even though an order of therapeutic reintroduction had been entered to reestablish Father’s relationship with the Children. The court found that, rather than take advantage of this opportunity, Father left the state, violated his parole, and committed another assault. As a result of Father’s neglect of his parental responsibilities, the court found that he destroyed the parent-child relationship. Accordingly, the court found that Father had abandoned the Children.

¶8        The court also found that Mother’s testimony regarding Father’s attack on her was credible. In the court’s words, “Father’s crimes were extremely violent, and they caused his victims, [Mother] in particular, unthinkable physical and emotional injuries.”[1] Notwithstanding this determination, the court found that Father’s history of violence toward women did not make him an unfit parent because those acts were against adults, not children. In particular, the juvenile court stated that, while Father’s “crimes may have made him a terrible husband, . . . assaulting your spouse or another person[] does not necessarily mean that you are unable to fulfill your duties as a parent.” The court found it significant that “[t]here is no evidence that [Father] is an inherently violent person or that he has been violent with his own or other children.”

¶9        Having found that there were grounds for termination—namely, abandonment—the court began its best-interest analysis. The court found that under Mother’s care, the Children were good students, excelled in extracurricular activities, and enjoyed “security and stability.” Somewhat contradictorily, the court then stated that Mother “has not necessarily had consistently stable relationships in her own life which [h]as resulted in some instability or inconsistency in the [C]hildren’s lives.” The court added that the Children “have experienced a changing landscape of parental figures during their entire lives, and two of these significant changes have nothing to do with [Father].” The court stressed that, at the time, there was no plan for Mother’s current spouse to adopt the Children, and therefore “there is no other individual, step-parent or otherwise, available to take over that legal parental role.” However, the court also found that Mother’s spouse was “developing a parent relationship” with the Children.

¶10 The court found that the Children have not asked about Father and “have no information” about him. But the court expressed its view that “Father’s circumstances are different now.” Although Father suffers from post-traumatic stress and bipolar disorders, he “obtained treatment for his mental health needs while incarcerated and he currently receives therapy and medication management” through the federal government’s Department of Veterans Affairs. Since being released from prison, Father has been “a coach and a mentor to other children.” Father now resides with his second wife and two stepchildren. He has also maintained contact with his older daughter who is the Children’s half-sister and whom the Children know. The court stressed that Father “does not have the ability to ever assume full custody of the [C]hildren,” that he is willing to participate in reunification services, and that he “desires the opportunity to provide love, support and guidance to the [C]hildren.” The court specifically found that, if the reunification process were “done properly, Father could be a positive person in the [C]hildren’s lives . . . . There are adequate and protective measures built into the reunification process that take into consideration the [C]hildren’s needs.” The court concluded that “[t]here is insufficient evidence that [Father] exercising parent-time with the [C]hildren would cause significant harm or risk of harm to the [C]hildren’s physical, mental or emotional well-being.”

¶11 Also, during its best-interest determination, the court found it significant that the Children might be eligible to receive support payments from the federal government as a result of Father’s military service. While Father was incarcerated, Mother was able to apply for an apportionment of his benefits to be used as support for the Children. During Father’s incarcerations, the Children obtained approximately $38,000 in support. The court found that these payments amounted to child support.

¶12 After considering all of its findings, the court concluded that there were no “compelling reasons to terminate [Father’s] parental rights and that it [was] not strictly necessary to terminate [Father’s] parental rights.”

ISSUE AND STANDARD OF REVIEW

¶13      Mother and the GAL contend that the juvenile court erred in granting Father’s motion to dismiss, asserting that Mother presented clear and convincing evidence that Father’s parental rights should be terminated. A court may grant such a motion “if (1) the claimant has failed to introduce sufficient evidence to establish a prima facie case, or (2) the trial court is not persuaded by that evidence.” In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913 (quotation simplified).[2]

¶14 In this case, although the juvenile court determined that statutory grounds existed to terminate Father’s parental rights, the court granted Father’s motion on best-interest grounds, concluding that the evidence Mother presented in her case-in-chief did not provide “compelling reasons” to terminate Father’s rights. Because termination decisions “rely heavily on the [trial] court’s assessment and weighing of the facts in any given case,” its decision “should be afforded a high degree of deference.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. For us “to overturn the [trial] court’s decision the result must be against the clear weight of the evidence or leave [us] with a firm and definite conviction that a mistake has been made.” Id. (quotation simplified).

ANALYSIS

¶15 Mother and the GAL contend that the juvenile court misapplied the law to the facts. While expressing no opinion on the ultimate decision to be made in this case, we agree that the juvenile court’s analysis was materially flawed and that remand is therefore required.

¶16 Under Utah law, before terminating a parent-child relationship, a court must find (1) that there are grounds for termination and (2) that terminating parental rights is in the child’s best interest. Utah Code Ann. § 78A-6-506(3) (LexisNexis 2018). There is no dispute that the juvenile court properly found that, as a result of Father’s abandonment of the Children, there were grounds for termination. The dispute solely concerns the court’s best-interest analysis.

¶17 Mother first argues that it “is well settled” that where grounds for termination are established, it is “almost automatically” in the child’s best interest to terminate parental rights. Because the juvenile court found that Father had abandoned the Children, she asserts that the court should have automatically concluded that it was in the Children’s best interest to terminate Father’s parental rights.

¶18 We have indeed previously stated that “where grounds for termination are established, the conclusion that termination will be in a child’s best interest follows almost automatically.” In re G.J.C., 2016 UT App 147, ¶ 25, 379 P.3d 58 (emphasis added) (quotation simplified), abrogated by In re B.T.B., 2018 UT App 157. But, as we recently concluded in In re B.T.B., our “almost automatically” line of cases was not supported by statutory language or Utah Supreme Court case law, and we disavowed all of our cases that had relied upon the concept. 2018 UT App 157, ¶ 44 & n.12.[3] We noted that the “almost automatically” characterization had gone too far, and that the “‘best interest’ inquiry requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation, not just the specific statutory grounds for termination.” Id. ¶ 55. We therefore determined that “the ‘best interest’ inquiry should be applied in a more thorough and independent manner than some of our cases might suggest.” Id. ¶ 2. We therefore reject Mother’s contention that, after determining there were grounds for termination, the juvenile court should have automatically concluded that it was in the Children’s best interests to terminate Father’s parental rights.

¶19 It does not follow, however, that Mother’s appeal is unsuccessful. In particular, we are troubled by the juvenile court’s treatment of Father’s history of domestic violence. Although it recognized that “Father’s crimes were extremely violent, and they caused his victims, [Mother] in particular, unthinkable physical and emotional injuries,” the juvenile court concluded that “assaulting your spouse or another person[] does not necessarily mean that you are unable to fulfill your duties as a parent,” and that “when assessing the issue of unfitness to parent . . . the focus is on the parent’s interactions with children” rather than on the parent’s interactions with other adults.[4] While it is true that a history of domestic violence does not necessarily lead to parental termination in every case, we nevertheless find the juvenile court’s statements problematic, and emphasize that—even where there is no evidence of violence toward children—it is inappropriate to completely separate or compartmentalize a parent’s history of domestic violence toward other adults from the best-interest inquiry regarding that parent’s child.[5]

¶20 Such compartmentalization conflicts with the statutory view that a history of violent behavior has relevance, especially when committed against “the other parent of the child.” See Utah Code Ann. § 78A-6-316(2)(iv); cf. id. § 76-5-109.1 (criminalizing actions of domestic violence committed “in the presence of a child,” even if the child is not the direct victim). And both common sense and expert opinion indicate that a parent’s acts of 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 Winston J. v. State Dep’t of Health & Social Services, Office of Children’s Services, 134 P.3d 343, 348 (Alaska 2006) (concluding that a father’s acts of domestic violence against his children’s mother, coupled with his history of violence against other women, created a substantial risk of harm even though the children had not yet been born when the acts occurred); In re V.V., 349 S.W.3d 548, 555 (Tex. Ct. App. 2010) (en banc) (concluding that a parent’s history of domestic violence, even if not directed at his child, provided support for the trial court’s termination decision because this conduct placed his child in jeopardy); Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol’y 221, 228 (1994) (“Studies show that violence by one parent against another harms children even if they do not witness it.”). Indeed, numerous studies clearly show that violence directed at a parent—even where not directed at the children—can have a significant impact on the abused parent’s children, especially when the abused parent is the children’s primary caretaker. See Michal Gilad, Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of Crime and Violence: Measuring the Triple-C Impact, 46 Fordham Urb. L.J. 1, 4, 9–10 (2019); Karen Czapanskiy, Domestic Violence, The Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts, 27 Fam. L.Q. 247 (1993); see also Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1055–56 (1991) (stating that, “even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents,” and that “children of abusive fathers are likely to be physically abused themselves”). These notions are not new; more than three decades ago, health professionals were making efforts to tell judges about the potential impact a parent’s domestic violence could have on children, emphasizing that children who are exposed to abuse may be taught that violence is an acceptable way to handle issues with loved ones:

Children learn several lessons in witnessing the abuse of one of their parents. First, they learn that such behavior appears to be approved by their most important role models and that the violence toward a loved one is acceptable. Children also fail to grasp the full range of negative consequences for the violent behavior and observe, instead, the short term reinforcements, namely compliance by the victim. Thus, they learn the use of coercive power and violence as a way to influence loved ones without being exposed to other more constructive alternatives.

. . . .

Spouse abuse results not only in direct physical and psychological injuries to the children, but, of greatest long-term importance, it breeds a culture of violence in future generations. Up to 80 percent of men who abuse their wives witnessed or experienced abuse in their family of origin. Abused children are at great risk of becoming abusive parents.

Patricia Ann S. v. James Daniel S., 435 S.E.2d 6, 18 (W. Va. 1993) (Workman, C.J., dissenting) (quoting L. Crites & D. Coker, What Therapists See That Judges May Miss, The Judges’ Journal, 9, 11–12, (Spring 1988)).[6]

¶21      When a parent whose parental rights are subject to being terminated has a history of violence, particularly domestic violence, trial courts should carefully weigh the potential impact of that violence on the children as part of considering whether termination of the parent’s rights would be in the best interest of the children, even if the parent has not visited any of that violence directly upon the children. See In re B.T.B., 2018 UT App 157, ¶ 47 (stating that “the ‘best interest’ inquiry is broad, and is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation”); see also In re K.K., 2017 UT App 58, ¶ 4, 397 P.3d 745 (per curiam) (explaining that Mother’s “unresolved domestic violence issues” made it “unsafe for the children to be around her”); In re R.T., 2013 UT App 108, ¶ 7, 300 P.3d 767 (per curiam) (concluding that it was in the children’s best interest to terminate their father’s parental rights given his history of violence and anger issues).

¶22 In this case, Father not only attacked two women, but he brutally beat Mother, choked her to the point of momentary unconsciousness, and threatened to kill her at gunpoint. Yet in its findings, the juvenile court brushed aside Father’s violent history and the risk that Father’s conduct might pose to the Children, emphasizing the fact that there was no evidence that Father had ever been violent toward children. We find such compartmentalization troubling, especially given the fact that individuals prone to domestic violence tend to reoffend.[7] See United States v. Bryant, 136 S. Ct. 1954, 1959 (2016) (“As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence ‘often escalates in severity over time.’”) (quoting United States v. Castleman, 572 U.S. 157, 160 (2014)); see also Linell A. Letendre, Beating Again and Again and Again: Why Washington Needs a New Rule of Evidence Admitting Prior Acts of Domestic Violence, 75 Wash. L. Rev. 973, 977–78 (2000) (stating that a person’s past violent behavior is “the best predictor of future violence,” because “studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of these relationships,” and that “even if a batterer moves on to another relationship, he will continue to use physical force as a means of controlling his new partner” (quotation simplified)).

¶23      Of course, not every parent who has committed an act of domestic violence deserves to have his or her parental rights terminated. Each case must be judged on its own merits, and in appropriate cases a trial court might reasonably find, among other things, that the domestic violence issues in the case are not sufficient to counsel in favor of termination; that the parent in question has taken meaningful steps to change his or her life and make amends; that under the circumstances presented there is no significant risk of continued violence; or that, even when all incidents of past violence are fully considered, the children would be better off with the parent still playing an active role in their lives than they would be if the parent’s rights were terminated. But the trial court must carefully explain its reasons for so finding, and it is not sufficient to say, as the juvenile court essentially did here, that acts of domestic violence are not relevant in a termination case simply because none of the violence was directly visited upon the Children.

¶24 Again, we recognize that the juvenile court made these comments in the context of assessing Father’s fitness as a parent under statutory grounds. While the juvenile court did not repeat these comments in the “best interest” portion of its analysis, and while the juvenile court did make general findings that Father’s “circumstances are different now” because, among other things, Father has “obtained treatment for his mental health needs” and “currently receives therapy,” the juvenile court never directly grappled with Father’s violent history in its best interest analysis. It may be that the juvenile court espouses the view that, in this case, the steps Father has taken to address his situation have ameliorated any risk that his violent past might pose to his successful reintroduction into the Children’s lives. But the juvenile court did not expressly explain why it believes this is so and, evaluated against the backdrop of the compartmentalizing comments it made in the course of its “fitness” analysis, we cannot construe the juvenile court’s best-interest discussion as containing adequately articulated reasons for its decision.[8]

Second, Mother asserts that the juvenile court relied too heavily on the possibility that termination of Father’s parental rights might result in the Children losing any right to receive any of Father’s veterans’ benefits. This issue was not well briefed by the parties from a legal standpoint, and its resolution also depends upon factual issues not specifically found by the juvenile court, which phrased its findings on this issue in hypothetical, conditional terms (e.g., the Children “would potentially” lose veterans’ benefits because Father “could object” to their receiving them). To the extent this issue remains relevant on remand, the juvenile court may invite the parties to explore it in a more meaningful way.

CONCLUSION

¶25 Accordingly, we conclude that the juvenile court’s best-interest determination was materially flawed, because the court did not appropriately consider what effect, if any, Father’s history of domestic violence might have on his efforts to re­establish a relationship with the Children. We therefore vacate the juvenile court’s order dismissing Mother’s petition, and remand for proceedings consistent with this opinion. We do not, however, make any effort to urge the juvenile court to reach one conclusion or another upon reconsideration. Given the juvenile court’s superior position and specialized training and experience in matters involving children, supported factual findings from the juvenile court on remand, entered after adequately considering all of the proper factors, are, of course, always entitled to deference by appellate courts.

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

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[1] While the juvenile court’s finding is accurate, it lacks detail and uses relative terms. Mother’s testimony regarding the attack, credited by the juvenile court, bears fuller explication. The attack lasted over two hours, during which Father (1) grabbed Mother by the neck and threw her against a wall “from one place to the other,” denting the sheetrock; (2) repeatedly choked Mother to the point that she could not breathe, causing her to gasp for air and briefly lose consciousness; (3) ordered her to the basement, where he interrogated her at gunpoint; (4) punched, slapped, and hit Mother in the face and head with a gun; (5) threatened to kill Mother with the gun; (6) smothered Mother’s face in a pillow, causing Mother to gasp for air, and pressed the gun against the pillow and asked, “Now that you think you’re going to die, are you finally going to tell me the truth?”; and (7) after leaving the house in a car with Mother to take formula and diapers to Mother’s parents who were watching the Children, threatened to kill Mother if she left the car.

[2] At the time he made his motion, Father cited rule 41(b) of the Utah Rules of Civil Procedure. A previous version of that rule stated that, “[i]n a bench trial, after the plaintiff ‘has completed the presentation of [her] evidence, the defendant . . . may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.’” See In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913 (quoting the 2015 version of rule 41 of the Utah Rules of Civil Procedure). As we noted in In re J.A., rule 41(b) was amended in 2016, and now speaks only of motions to dismiss for failure to prosecute. Id. ¶ 26 n.4; see also Utah R. Civ. P. 41(b). Under the current version of the rules, it is rule 52(e) of the Utah Rules of Civil Procedure that allows a party to move for dismissal at the close of the other side’s evidence. See Utah R. Civ. P. 52(e); see also id. advisory committee note (stating that “the 2016 amendments move a provision found in Rule 41(b) to this rule”). In this case, the parties and the juvenile court appear to have been applying the 2015 version of the rules in making and adjudicating the motions at issue. But in any event, the standard of review is the same, regardless of whether the motion is grounded in rule 41(b) or rule 52(e).

[3] The briefing and argument in this case took place prior to the issuance of our opinion in In re B.T.B., 2018 UT App 157. After that opinion issued, the GAL filed a motion (which Mother joined) for “emergency relief” asking us to stay proceedings in this case “pending resolution” of petitions for rehearing in In re B.T.B. We decline that invitation, and hereby deny the motion.

[4] In the context of assessing the severity of Father’s violent acts toward Mother, the juvenile court also mentioned that, after Father assaulted Mother, Father “continued to reside in the family home with” Mother and the Children for another few weeks, and that even after their separation, Father and Mother “continued in a sexual and/or romantic relationship” for a while, and noted that “[a]t no time” during this period did Mother “prohibit [Father] from taking the [C]hildren” or “seek a child protective order prohibiting” Father from exercising parent-time. We caution trial 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. In many instances, victims of domestic violence stay in abusive relationships, at least for a time, because they may not feel like they have any other option, or because they may feel they are at least partly to blame for the violence. See Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191 (1993); Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 Mich. L. Rev. 1, 6 (1991).

[5] We recognize that the juvenile court made these comments in the context of analyzing whether Father was “unfit” to parent the Children, which is one of the statutory grounds for termination, Utah Code Ann. § 78A-6-507(1)(c) (LexisNexis 2018), rather than in the context of analyzing whether termination of Father’s parental rights would be in the Children’s best interest. The juvenile court was incorrect in refusing to take Father’s history of domestic violence into account when considering Father’s fitness to parent the Children, because our legislature expressly requires courts to consider a parent’s “history of violent behavior” against anyone—not just children—in assessing a parent’s fitness. See id. § 78A-6-508(2)(f) (mandating that, “[i]n determining whether a parent . . . [is] unfit . . . the court shall consider . . . [the parent’s] history of violent behavior”); see also, e.g., In re A.C.M., 2009 UT 30, ¶ 27, 221 P.3d 185 (affirming a juvenile court’s decision to take into account a parent’s violence toward his “domestic partner[s],” even though there was no evidence of violence toward children); In re K.C., 2014 UT App 8, ¶ 4, 318 P.3d 1195 (per curiam) (affirming a juvenile court’s decision to take into account a parent’s commission of “domestic violence in the presence of the children,” even though no mention was made of violence toward the children themselves). But in addition, for the reasons we explain herein, a parent’s history of domestic violence, even against other adults, is a factor that the court should consider as part of the “best interest” analysis, even if that history might also be relevant to one or more of the statutory grounds for termination. Cf., e.g., In re B.T.B., 2018 UT App 157, ¶ 55 (stating that “[t]he ‘best interest’ inquiry requires courts to examine all of the relevant facts and circumstances surrounding the child’s situation”).

[6] Relevant literature indicates that men who saw their mothers abused are more than twice as likely to abuse their spouses as adults, and that women who saw their mothers abused are twice as likely to be victimized as adults. See Matthew Robins, State of Fear: Domestic Violence in South Carolina, 68 S.C. L. Rev. 629, 661 (2017) (citing Charles L. Whitfield et al., Violent Childhood Experiences and the Risk of Intimate Partner Violence in Adults, 18 J. Interpersonal Violence 166, 178 (2003)); see also Michal Gilad, Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of Crime and Violence: Measuring the Triple-C Impact, 46 Fordham Urb. L.J. 1, 10 (2019) (“The rattling presence of violence in the home can also lead to erroneous beliefs: the conceptualization that aggression is a functional and legitimate part of intimate relationships and family dynamics, and the belief that men are intrinsically dominant and privileged.”) (citing Sandra A. Graham-Bermann & Victoria Brescoll, Gender, Power and Violence: Assessing the Family Stereotypes of the Children of Batterers, 14 J. Fam. Psychol. 600, 605 (2000)).

[7] In this case, as noted above, Father did reoffend, and did so within one year of his release from prison on his first offense.

[8] Mother raises two other potential flaws with the juvenile court’s analysis. First, she asserts that the juvenile court focused too heavily on Mother’s fitness as a parent, in violation of our earlier pronouncement that “the best interests prong of the termination statute does not anticipate an evaluation of a parent whose fitness has not been challenged by a cross-petition to terminate parental rights.” See In re A.M., 2009 UT App 118, ¶ 23, 208 P.3d 1058. At issue in that case was an effort by the parent whose rights were at issue to subpoena the other parent’s “health records” in an effort to prove her unfitness. Id. ¶¶ 18, 21. We affirmed the juvenile court’s order quashing that subpoena, on the grounds that those health records were irrelevant because the other parent’s fitness was not at issue. Id. ¶ 23. That case is easily distinguishable from this one, in that here, the juvenile court’s discussion of Mother’s living situation came in the context of assessing whether the Children were “stable,” and in evaluating Mother’s own argument that adding Father back into their lives would affect their stability. Taking such things into account as part of the holistic “best interest” inquiry is entirely proper, and a far cry from, for instance, giving the respondent in a termination case access to the petitioner’s health records.

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