State of Utah, in the interest of K.B., B.B., and L.B., persons under eigtheen years of age. R.B., Appellant,
State of Utah, Appellee.
District Juvenile Court, Provo Department The Honorable Brent
H. Bartholomew No. 1126443
N. Weight, Attorney for Appellant
D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys
Pierce, Guardian ad Litem
Kate A. Toomey authored this Opinion, in which Judges Michele
M. Christiansen and Ryan M. Harris concurred.
R.B. (Mother) appeals the juvenile court's award of
protective supervision of her three minor
children to Utah Division of Child and Family
Services (DCFS). Mother makes three arguments on appeal: (1)
there was insufficient evidence to 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.
Early one Saturday morning, a neighbor contacted the police
to report a "family argument" after hearing
screaming and a bump on the wall. 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).
Following K.B.'s incident, DCFS filed a petition seeking
an award of protective supervision (the Petition) over the
children with the juvenile court. The Petition revealed that
DCFS had supported findings against both Mother and Father of
physical abuse of K.B. As a result of K.B.'s physical abuse,
the Petition alleged all of the minor children were abused or
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]
The relationship between Mother and Father had long been and
continues to be strained. Shortly after the divorce, 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. 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.
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. 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 Father if he did not pay his portion of the
children's medical bills, but she did not follow through
on that specific threat.
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
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.
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 about [Father] and his
house and everyone there" caused her ...