In re K.B. , 407 P.3d 1084 ( 2017 )

2017 UT App 210THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF K.B., B.B., AND L.B.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
R.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20160677-CA
Filed November 16, 2017
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1126443
Scott N. Weight, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and RYAN M. HARRIS concurred.
TOOMEY, Judge:
¶1 R.B. (Mother) appeals the juvenile court’s award of
protective supervision of her three minor children 1 to Utah
Division of Child and Family Services (DCFS). Mother makes
three arguments on appeal: (1) there was insufficient evidence to
1. At the time this opinion issued K.B. was no longer a minor.
Our holdings as they relate to her are therefore moot.
In re K.B.
support finding that her “apparent hate and disgust of [Father]”
or her custodial interference caused the children to suffer
emotional harm, (2) there was insufficient evidence to support
finding that all three children were neglected, and (3) the
juvenile court erred in substantiating DCFS’s supported findings
of non-severe physical abuse against K.B. We affirm in part,
reverse in part, and remand for further proceedings consistent
with this opinion.
BACKGROUND
The Incident
¶2 Early one Saturday morning, a neighbor contacted the
police to report a “family argument” after hearing screaming
and a bump on the wall. 2 In response to this report, an officer
(Officer) and her partner went to Mother’s residence. Upon their
arrival, K.B., who was sixteen at the time, was the only person at
home and answered the door. She “was extremely upset, red
face[d],” and crying to “the point of hyperventilating.” Officer
noted the “left side of [K.B.’s] face was swollen and red, along
with her eye” and her bottom lip was actively bleeding. K.B.
informed Officer that Mother had slapped her mouth and
pushed her by the neck against the refrigerator (K.B.’s incident)
because “she hadn’t mopped [the floor] as was expected.” K.B.
also admitted she slapped Mother and yelled at her “loud
enough for the neighbors to hear.” Officer determined there was
enough evidence to arrest Mother for child abuse and released
K.B. and her minor siblings, B.B. and L.B., to the custody of their
father (Father).
2. On appeal from juvenile court proceedings, “we recite the
facts in the light most favorable to the juvenile court’s decision.”
State v. Van Huizen, 2017 UT App 30, n.2, 392 P.3d 933.
20160677-CA 2 2017 UT App 210In re K.B.
¶3 Following K.B.’s incident, DCFS filed a petition seeking
an award of protective supervision 3 (the Petition) over the
children with the juvenile court. The Petition revealed that DCFS
had supported 4 findings against both Mother and Father of
physical abuse of K.B. 5 As a result of K.B.’s physical abuse, the
Petition alleged all of the minor children were abused or
neglected.
The Family
¶4 Father and Mother divorced in 2010 and have four
children. Three of them, K.B., B.B., and L.B., were minors at the
time DCFS filed the Petition, and another child, T.B., turned
eighteen before the Petition was filed. At the time DCFS filed the
Petition, the three youngest children resided with Mother, and
T.B. with Father. Each parent had “joint custody of the children
with a two week on/off [parent-time] schedule.”
¶5 The relationship between Mother and Father had long
been and continues to be strained. Shortly after the divorce,
3. “Protective supervision” is “a legal status created by court
order following an adjudication on the ground of abuse, neglect,
or dependency, whereby the minor is permitted to remain in the
minor’s home, and supervision and assistance to correct abuse,
neglect, or dependency is provided.” Utah Code Ann. § 78A-6-
105(41) (LexisNexis Supp. 2017).
4. Utah Code section 62A-4a-101(41) (LexisNexis Supp. 2017)
defines “supported” as “a finding by [DCFS] based on the
evidence available at the completion of an investigation that
there is a reasonable basis to conclude that abuse, neglect, or
dependency occurred.”
5. The supported findings against Father arose from a separate,
earlier incident that is not the subject of this appeal.
20160677-CA 3 2017 UT App 210In re K.B.
Father committed criminal trespass at Mother’s house. Mother
later obtained a protective order prohibiting Father from
communicating with her unless the communication was “in
writing regarding the children.” The protective order did not
include the children. 6 Another basis for their strained
relationship was Mother’s discovery of sexually explicit “chat
logs” between Father and a 17-year-old girl. These
communications led Mother to believe Father had a “sexual
affair” with the girl and that he was a “sexual predator.” As a
result, Mother was concerned that Father might sexually abuse
the children during his parent-time. She reported her concerns to
the police, but he was never charged with a crime.
¶6 Although Father had joint custody of the children and a
parent-time order was in place, Mother often did not cooperate
when Father arrived to pick up the children. Father reported
many of these incidents to the police, and Mother was eventually
charged with nine counts of custodial interference. 7 Mother
offered several justifications for her interference. First, she
challenged the charges by arguing that they did not amount to
“custodial interference because the children didn’t want to go”
to Father’s house. Second, Mother argued that she believed any
interference was excused because of her concerns and reports
that Father is a sexual predator and might abuse the children.
Third, Father sometimes arrived very late for his mid-week
parent-time and, by the time he arrived, Mother and the children
were no longer waiting for him. Mother admitted that on one
occasion she had threatened to withhold parent-time from
6. T.B. was still a minor at the time of the divorce.
7. The record shows that Father had one mid-week parent-time
visit with the children, but the record does not contain
additional detail regarding the dates and times of his parent-
time.
20160677-CA 4 2017 UT App 210In re K.B.
Father if he did not pay his portion of the children’s medical
bills, but she did not follow through on that specific threat.
The Trial
¶7 T.B. and K.B. each testified at trial. The majority of the
questioning of T.B. centered on Mother’s treatment of K.B., and
she was asked to describe their arguments. T.B. described them
as “loud, angry, [and] mean.” She also testified that the
arguments sometimes turned physical and that Mother had hit
K.B. in the face and shoulders and had pulled K.B.’s hair. When
asked why she left to live with Father a few months before
turning eighteen, T.B. testified it was because she did not feel
safe, happy, or welcome in Mother’s house. None of the
attorneys asked T.B. to further elaborate on Mother’s treatment
of the children.
¶8 Mother testified to rebut, among other things, T.B.’s
testimony about Mother’s treatment of the children. Specifically,
Mother attempted to show that T.B. chose to live with Father,
not because she felt unsafe, but because of a disagreement
between Mother and T.B. over T.B.’s choice of prom dress.
According to Mother, T.B. agreed that she would wear the same
prom dress she wore the year before, but the weekend before the
prom, Father bought T.B. a new dress that Mother thought was
inappropriate and immodest. Mother told T.B. she could either
wear the dress from the year before or she would be grounded
from going to the prom. T.B. did not attend the prom and, within
a month, left Mother’s house to live with Father. T.B. denied that
being grounded from the prom was the reason she chose to live
with Father. Instead, she said it was because of the way Mother
treated her and her siblings.
¶9 K.B., on the other hand, testified that she felt safer at
Mother’s house and often chose not to go to Father’s house. K.B.
explained that when she and her siblings were at Father’s house,
B.B. and T.B. would “boss [her] around” and that “everything
20160677-CA 5 2017 UT App 210In re K.B.
about [Father] and his house and everyone there” caused her to
“get so stressed” that she preferred not to visit with Father.
¶10 B.B. and L.B., who were ages fifteen and eight at the time
of the trial, did not testify; the juvenile court heard about them
through their grandfather’s (Grandfather) testimony. On the day
of K.B.’s incident, Grandfather took L.B. to a football game
where B.B. was working at a concession stand. While they were
at the game, Grandfather learned of K.B.’s incident. After
halftime, Grandfather took L.B. and B.B. and left the game.
Shortly after leaving, Grandfather received a phone call from
Officer instructing him to bring L.B. and B.B. back to Mother’s
house so Father could take all of the children while Mother was
in custody. When they returned, the police were still at the house
and Mother had been removed from the house. B.B. and L.B.
went inside to pack their clothes and, according to Grandfather,
were “crying hysterically” when they left. Grandfather also said
that L.B. feared that if he left with Father he would never see
Mother again. Grandfather was not asked to elaborate on
whether L.B. or B.B. explained their distress about leaving
Mother’s house to stay with Father.
¶11 At the end of the trial, the juvenile court found that
Mother physically abused K.B. 8 The juvenile court also found
that as a result of “Mother’s apparent hate and disgust of Father”
as well as her custodial interference “all of the children suffered
significant emotional abuse.” The juvenile court issued an order
(the Order) that awarded DCFS “protective supervision over the
minor children.” Mother timely appeals.
8. We determined in a previous order that there was sufficient
evidence to support finding that Mother physically abused K.B.
when Mother slapped K.B. across the face.
20160677-CA 6 2017 UT App 210In re K.B.
ISSUES AND STANDARDS OF REVIEW
¶12 Mother contends there was insufficient evidence for the
juvenile court to find that she either emotionally abused or
physically neglected the children. When a challenge to the
sufficiency of the evidence is raised, “we review the juvenile
court’s factual findings based upon the clearly erroneous
standard.” In re S.O., 2005 UT App 393, ¶ 12, 122 P.3d 686 (per
curiam) (citation and internal quotation marks omitted).
¶13 Mother also contends that the juvenile court erred in
applying Utah Code section 78A-6-323 when it substantiated
DCFS’s supported findings of non-severe physical abuse against
K.B. Whether the juvenile court had authority to substantiate
findings made by DCFS regarding non-severe physical abuse
“presents a question of statutory interpretation, which we
review for correctness.” J.J.W. v. State, 2001 UT App 271, ¶ 8, 33
P.3d 59.
ANALYSIS
I. Emotional Abuse
¶14 Mother contends that the Order “failed to detail sufficient
facts to support its conclusion that the children had been
emotionally abused.” Because “the juvenile court is in a far
better position to evaluate the evidence than an appellate court,”
see In re L.P., 1999 UT App 157, ¶ 9, 981 P.2d 848, we will not
reverse a juvenile court’s order unless the “findings are so
lacking in support as to be against the clear weight of the
evidence,” see In re S.O., 2005 UT App 393, ¶ 12. The juvenile
court found that “Mother’s apparent hate and disgust of Father
cause[d] emotional harm and damage to the children” and that
“Mother’s denial of [parent-time with Father] constitute[d]
emotional abuse and neglect of [the] children.” We agree with
20160677-CA 7 2017 UT App 210In re K.B.
Mother that these findings are against the clear weight of the
evidence. 9
¶15 Relevant to this case, under Utah Code section 78A-6-105,
“abuse” includes the “nonaccidental harm of a child.” See Utah
Code Ann. § 78A-6-105(1)(a)(i)(A) (LexisNexis Supp. 2017). Thus,
the State was required to show that as a result of the parent’s
actions the children suffered a “harm.” Among other things, the
definition of “harm” includes “emotional damage that results in
a serious impairment in the child’s growth, development,
behavior, or psychological functioning.” Id. § 78A-6-105(24)(b).
Thus, for the juvenile court to find Mother emotionally abused
the children, it must develop findings of fact sufficient to show
that the children suffered “emotional damage” that amounted to
a “serious impairment” to their “growth, development, behavior,
or psychological functioning.” See id. (emphasis added).
¶16 Mother argues that the State failed to provide evidence
that would allow the juvenile court to conclude that her
“apparent hate and disgust of Father constituted emotional
abuse.” We agree.
¶17 To support its finding that Mother’s negative feelings
toward Father caused the children to suffer emotional harm, the
juvenile court stated that it would “elaborate on one piece of
testimony that brought this fact into clear focus.” (Emphasis
added.) It then recounted the disagreement surrounding T.B.’s
prom dress. The juvenile court found that, “[i]f the prom dress
was inappropriate, Mother could have” exchanged the dress and
9. Mother also contends there was insufficient evidence to find
that she withheld parent-time from Father. We will not address
the merits of this issue because we are able to determine there
was insufficient evidence to support a finding of emotional
abuse, regardless of whether Mother unlawfully withheld
parent-time.
20160677-CA 8 2017 UT App 210In re K.B.
let T.B. go to the prom. But because Mother would not exchange
the dress Father purchased, the court found that, “[s]imply put,
Mother did not want her daughter to go to the prom in the dress
Father purchased.” 10
¶18 The juvenile court found that the disagreement over the
prom dress provided the best example of Mother’s hatred of
Father and that, as a result of this hatred, all of the children were
emotionally abused. Although we can find no Utah case law
defining emotional abuse, we cannot accept the juvenile court’s
unsupported statement that one parent’s hatred of the other by
itself “constitutes emotional damage and harm to their
children.” 11 Two Utah court decisions help guide our analysis.
¶19 In In re J.R., 2011 UT App 180, 257 P.3d 1043 (per curiam),
a father challenged the juvenile court’s finding of emotional
abuse by arguing that “his conduct was reasonable discipline
and therefore excepted under Utah law.” Id. ¶¶ 1, 3 (citing Utah
Code Ann. § 78A-6-105(1)(b)(i) (LexisNexis 2008)). During the
proceedings, several witnesses testified, among other things, that
the father called J.R., “her mother, and her sister vile names,
accus[ed] J.R of sexual activity, and threaten[ed] J.R. with an
10. The juvenile court also stated that, instead of doing the
“sensible act[]” of exchanging the dress, Mother grounded T.B.
and “then sued [T.B.] for complaining about it” on social media.
Mother sued T.B. for defamation but later voluntarily dismissed
the complaint.
11. From the few facts presented in this case that Mother and
Father do not get along, we cannot conclude that the State
provided sufficient evidence to support a finding that the
children at issue suffered a more “serious impairment” than
most children of divorced parents, particularly in a high-conflict
divorce situation. See Utah Code Ann. § 78A-6-105(24)(b)
(LexisNexis Supp. 2017).
20160677-CA 9 2017 UT App 210In re K.B.
examination to prove or disprove her virginity.” Id. ¶ 5. There
was also evidence to support that “the continual degrading
accusations and name calling resulted in emotional damage to
J.R. over the course of time to the point that J.R. had begun to
harm herself.” Id. We determined this set of facts provided an
example of emotional abuse because of the direct impact it had
on J.R., as evidenced through her self-harming behavior. See
Utah Code Ann. § 78A-6-105(24)(b). Accordingly, we affirmed
“the juvenile court’s determination that J.R. was emotionally
abused by Father.” In re J.R., 2011 UT App 180, ¶ 6.
¶20 Unlike In re J.R., neither the Order nor the record provides
any supporting evidence that Mother engaged in conduct that
had a direct impact on the “growth, development, behavior, or
psychological functioning of the minor children.” See Utah Code
Ann. § 78A-6-105(24)(b). Instead, the unsupported conclusions of
the juvenile court in this case align more closely with the
unsupported findings of physical harm in another case, In re
K.T., 2017 UT 44.
¶21 In In re K.T., our supreme court reviewed a juvenile court
order that found that the parents physically abused their
children by spanking them with a belt. Id. ¶¶ 1, 4. The juvenile
court found that the father “spanked the children with a belt
historically,” id. ¶ 1, and that the mother used a “black belt with
rhinestones,” id. ¶ 17. The juvenile court concluded that
“[h]itting a child with a belt or strap or another object is abuse”
and that it could not “envision a scenario where striking or
hitting a child, of any age, would be appropriate or reasonable
discipline.” Id. ¶ 5. The parents appealed, arguing “that the
juvenile court erred when it concluded that spanking a child
with a belt, without any additional proof of harm, constitutes abuse
within the meaning of Utah law.” Id. ¶ 7 (emphasis added). Our
supreme court determined that the State “failed to introduce
evidence that the parental discipline had harmed the children
and left the court to speculate . . . that the children had been
harmed.” Id. ¶ 10. And although the court “might speculate that
20160677-CA 10 2017 UT App 210In re K.B.
[the mother] was doing more than spanking her children with
the belt lightly so that it did not cause physical or emotional
injury within the meaning of the statute,” there was no evidence
to support that conclusion “with the level of certainty needed to
meet the clear and convincing evidentiary standard.” Id. ¶ 15.
Therefore, our supreme court reversed the juvenile court’s
finding of abuse because the “juvenile court made no findings
that inform[ed the court] whether the children experienced any
‘physical, emotional, or developmental injury or damage.’” Id.
¶¶ 17–18 (citing Utah Code § 78A-6-105(19) (2008)).
¶22 Although In re K.T. does not address emotional abuse, it is
instructive to our analysis. As in In re K.T., no proof of harm was
presented to the juvenile court to support its finding that the
children suffered emotional damage as a result of “Mother’s
apparent hate and disgust of Father.” To the contrary, K.B.
commented that she preferred living with Mother because she
gets “so stressed” when she is at Father’s house and is bossed
around by her siblings there, which is not the case at Mother’s
house. Our review of the record shows B.B. and L.B. made no
statements to the police officers who interviewed them that
relate to their emotional well-being or their relationship with
Mother. And neither B.B. nor L.B. testified at the trial. Thus,
there was no evidence before the juvenile court to support the
conclusion that Mother emotionally abused the children to the
“level of certainty needed to meet the clear and convincing
evidentiary standard.” Id. ¶ 15.
¶23 Because the disagreement regarding T.B.’s prom dress is
the only supporting fact for the juvenile court’s finding that
Mother “constantly and consistently” put the children in the
middle of her arguments with Father, and because T.B. is not one
of the minor children at issue in this case, we conclude this
disagreement alone was insufficient to support the juvenile
court’s finding that Mother emotionally abused all the minor
children. And one instance, alone, of Mother putting a child in
the middle of an argument she had with Father could not be
20160677-CA 11 2017 UT App 210In re K.B.
considered “constant” or “consistent,” as both terms imply a
pattern of behavior. See Constant, Webster’s Third New
International Dictionary (1968) (“[M]arked by continual
recurring or regular occurrence.”); see also Consistent, Webster’s
Third New International Dictionary (1968) (“[M]arked by
unchanging position.”). Absent additional facts relating to the
harm inflicted on the children, we agree with Mother that there
was insufficient evidence to support the statement that
“Mother’s apparent hate and disgust of Father cause[d]
emotional harm and damage to the children.”
¶24 For similar reasons, we also cannot accept the
unsupported statement that denial of parent-time constitutes
emotional abuse. Mother has been charged with custodial
interference, but those charges had not been adjudicated at the
time of this trial. Even assuming Mother committed custodial
interference and that her actions do not fall within any of the
statutory defenses to those charges, see Utah Code Ann. § 76-5-
305 (LexisNexis 2012), the juvenile court’s finding that Mother’s
custodial interference caused the children to suffer emotional
harm is not supported.
¶25 Not every instance of custodial interference will cause a
child to suffer “emotional damage that results in serious
impairment of the child’s growth, development, behavior, or
psychological function.” See Utah Code Ann. § 78A-6-105(24)(b)
(LexisNexis Supp. 2017). For a juvenile court to conclude that
custodial interference constitutes emotional abuse there must be
specific evidence to support such a conclusion. There was no
such evidence here. No witness testified that the children were
suffering, let alone suffering “serious impairment” as a result of
custodial interference.
¶26 The best evidence to support finding that B.B. and L.B.,
but not K.B., may have suffered emotional damage was through
Grandfather’s testimony. First, Grandfather was concerned that
Father would not return the children to Mother following her
20160677-CA 12 2017 UT App 210In re K.B.
release from custody as a result of K.B.’s incident. He based this
concern on T.B. remaining with Father, even though the parents
shared joint custody. But T.B. testified that she chose to live with
Father and that Father had not prevented her from returning to
Mother’s house. And the juvenile court stated in its findings of
fact that T.B. was a credible witness because she was honest and
direct, and her testimony was unwavering.
¶27 Second, Grandfather stated that, while the children were
packing their belongings to stay with Father until Mother’s
release, L.B., who was eight at the time, expressed his fear that if
he went to stay with Father he would never see Mother again.
The Guardian ad Litem argued on appeal that because of
Grandfather’s statement, the juvenile court could reasonably
infer that Mother was responsible for feeding her family with
misinformation that T.B. was, essentially, “kidnapped” by
Father. The Guardian ad Litem also argued that this supported
finding that Mother was responsible for “the ongoing drama,
and the resulting emotional trauma causing the [c]hildren to be
fearful and to cry hysterically.” While Grandfather’s testimony
does reflect that B.B. and L.B. cried “hysterically” when they left
Mother’s house to stay with Father, the juvenile court could only
speculate about the reason for this behavior because no one
asked B.B. or L.B. what had upset them. See In re K.T., 2017 UT
44, ¶ 15 (explaining that although the juvenile court may
speculate that the actions of a parent rise to the level of abuse,
there must be sufficient facts to support that the child suffered a
harm “to meet [the] clear and convincing evidentiary standard”).
Indeed, the presence of the police officers and Mother’s arrest
may have been factors in their distress and L.B. may well have
thought that Mother was going to jail for a long time. And many
families in high-conflict divorce situations experience stress
during custodial exchanges. The evidence presented here was
insufficient to support a conclusion that the minor children in
this case suffered any “serious impairment” in their
“functioning” as a result of the custodial issues experienced.
20160677-CA 13 2017 UT App 210In re K.B.
¶28 After considering these facts in the light most favorable to
the juvenile court’s decision, we agree with Mother that there
was insufficient evidence to support finding that her denial of
parent-time with Father, and her “apparent hate and disgust of
Father,” resulted in emotional damage that caused “a serious
impairment in the [children’s] growth, development, behavior,
or psychological functioning.” See Utah Code Ann. § 78A-6-
105(24)(b).
II. Neglect
¶29 Mother contends there was insufficient evidence to find
that she neglected the children. Specifically, Mother argues, “It is
circular reasoning to argue that because K.B. was abused, B.B.
and L.B. are neglected, and therefore K.B. must be neglected
because B.B. and L.B. are neglected.” We agree with Mother that
this reasoning relied on by the court is unpersuasive with
respect to K.B.’s neglect. We have already concluded, in a
separate order, that K.B. was abused. Supra note 8. Under the
statutory definition of “neglect,” it follows that B.B. and L.B.
must be considered “neglected,” because they live in the same
household as K.B. However, we agree with Mother that,
although K.B. is “abused,” she is not “neglected” as that term is
defined by statute.
¶30 Neglect is defined by statute as, among other things,
“action or inaction causing . . . a child to be at risk of being
neglected or abused because another child in the same home is
neglected or abused.” Utah Code Ann. § 78A-6-105(35)(a)(iv)
(LexisNexis Supp. 2017). Thus, if one child is adjudicated to have
been abused, the other children in the same household can be
found to be “at risk of being neglected or abused” simply
because they reside in the same household as the abused child.
See id.; see also In re A.C., 2014 UT App 157, ¶ 5, 330 P.3d 725 (per
curiam) (explaining that A.C. was “at risk of being neglected
because at least four of her siblings had been the subject of child
welfare proceedings that culminated in Mother’s relinquishment
20160677-CA 14 2017 UT App 210In re K.B.
of parental rights” (citing Utah Code Ann. § 78A-6-105(27)(a)(iv)
(LexisNexis 2012))).
¶31 We have already determined, in a previous order, that
there was sufficient evidence to support the juvenile court’s
finding that Mother physically abused K.B. when Mother
slapped K.B. across the face. It necessarily follows from the
statute that B.B. and L.B. are thus “at risk of being neglected or
abused” simply by virtue of residing with K.B. See Utah Code
Ann. § 78A-6-105(35)(a)(iv).
¶32 But we are not convinced that, at the time K.B. was a
minor, the juvenile court could have concluded that K.B. was
neglected by virtue of residing in the same household as B.B.
and L.B., who were neglected by virtue of having resided with
K.B. This reasoning is not logically consistent with the distinct
statuses of “abuse” and “neglect” within the Utah Code. 12 See id.
§ 78A-6-105(1)(a) (defining abuse); see also id. § 78A-6-105(35)(a)
(defining neglect). If we were to follow this reasoning it would
necessarily result in this court holding that any time a child is
abused that child is neglected if that child has siblings. Under
this logic, if an only-child were abused, that child could not be
determined to be neglected on the basis of that abuse, because
that child does not live with other children who are at risk of
neglect or abuse by virtue of living with the abused child. On the
other hand, if an abused child resided with siblings, then the
abused child would automatically be neglected. Thus, an only-
child would have fewer protections than a child with siblings.
This would also strip away the meaning of neglect and
essentially combine the two distinct statuses of “abused” and
“neglected.”
12. Although our holdings are moot as to K.B., we address
whether K.B. could have been adjudicated as neglected at the
time she was a minor to clarify the distinction between neglect
and abuse under the Utah Code.
20160677-CA 15 2017 UT App 210In re K.B.
¶33 We therefore conclude there was sufficient evidence to
support a finding of neglect of B.B. and L.B., by virtue of Utah
Code section 78A-6-105(35)(a) and the juvenile court’s already-
affirmed finding that K.B. was abused. We affirm the juvenile
court’s order in that respect, but reverse the juvenile court’s
order finding K.B. neglected, as her status does not fall within
the meaning of neglect.
III. Substantiating Findings of Non-Severe Physical Abuse
¶34 Mother also contends that the juvenile court “erred in
applying Utah Code [section] 78A-6-323 by substantiating
previous agency supported findings of non-severe physical abuse
against K.B. by Mother in an adjudication on a petition also
based on non-severe physical abuse.” (Emphases added.) Mother
argues that section 78A-6-323 does “not permit the juvenile court
to substantiate supported findings [here] as neither the
allegation being adjudicated nor the previous supported
findings involved a ‘severe type of abuse or neglect’ under Utah
Code [section] 62A-4a-1002.” (Emphasis added) (citing Utah
Code Ann. § 62A-4a-1002 (LexisNexis 2011)). Both the State and
the Guardian ad Litem have conceded that the “plain language”
of section 78A-6-323 does not “grant[] the juvenile court
authority to ‘substantiate’ a DCFS supported finding where
there is no allegation of severe abuse or neglect.” Therefore, on
remand, the juvenile court shall weigh only the evidence
presented during the proceedings and cannot substantiate DCFS
findings of non-severe abuse or neglect in determining whether
to grant the Petition and award DCFS with “protective
supervision over the minor children.”
CONCLUSION
¶35 We conclude there was insufficient evidence for the
juvenile court to find that Mother caused the children to suffer
emotional damage that resulted in a “serious impairment in the
20160677-CA 16 2017 UT App 210In re K.B.
[children’s] growth, development, behavior, or psychological
functioning.” See Utah Code Ann. § 78A-6-105(24)(b) (LexisNexis
Supp. 2017). We further conclude there was sufficient evidence
to support the finding that B.B. and L.B. were neglected as a
result of Mother physically abusing K.B., but that there is
insufficient evidence to conclude that K.B. was neglected. We
remand to the juvenile court to determine whether DCFS should
be awarded protective supervision. On remand, consistent with
this opinion, the juvenile court cannot substantiate DCFS
findings of non-severe abuse or neglect in determining whether
to grant the Petition.
20160677-CA 17 2017 UT App 210