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State ex rel. K.B. v. State

Court of Appeals of Utah

November 16, 2017

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.

         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 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.


         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).

         ¶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, 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 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 about [Father] and his house and everyone there" caused her ...

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