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K.P.S. v. E.J.P.

Court of Appeals of Utah

January 5, 2018

K.P.S., Appellee,
E.J.P., Appellant.

         Third District Court, Salt Lake Department The Honorable Paul G. Maughan No. 034906783

          Virginia L. Sudbury and Alison Satterlee, Attorneys for Appellant

          Asa E. Kelley, Attorney for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.


          TOOMEY, JUDGE

         ¶1 E.J.P. (Father) appeals the district court's award of sole physical custody of their child (Child) to K.P.S. (Mother), contending the district court failed to provide sufficient findings of fact to support its decision and failed to articulate the reasons for its decision not to follow the recommendation of the Guardian ad Litem (the GAL) that Father be awarded primary physical custody of Child. Father also asks this court to remand for a ruling on the remaining issues that were certified for trial but were not ruled upon. We agree with Father and vacate the district court's award of sole physical custody to Mother and remand for further proceedings on this issue, as well as the issues that the district court failed to address.


         ¶2 Mother petitioned for a divorce from Father in 2003, after almost two years of marriage. Shortly thereafter, they stipulated to a mutual restraining order, which prohibited communication between them that did not involve Child, and agreed Mother would have temporary legal and physical custody of Child, who was less than two years old at the time. Mother was also permitted to move to Idaho with Child, where she and Child have resided since 2003. Father, who remained in Salt Lake City, Utah, was awarded parent-time. In 2005, the district court entered a bifurcated decree of divorce, leaving the issues of child custody, child support, spousal support, marital debts, and marital property for further adjudication.

         ¶3 Since the divorce, Mother and Father's relationship has been hostile. Testimony at trial demonstrated that parent-time exchanges were often tense. And in 2005 and 2007, Mother accused Father of abusing Child and reported the allegations to the Division of Child and Family Services (DCFS). DCFS initiated investigations into the allegations, which led the court to order supervision during Father's parent-time with Child. In 2011, Father successfully petitioned DCFS to review the abuse allegations against him. Thereafter, DCFS changed its findings from "supported" to "unsupported."[1] In 2013, Father petitioned the district court to amend the bifurcated decree of divorce to remove the supervised parent-time provision, but that provision was not removed until after a 2015 mediation.

         ¶4 While in Mother's care, Child became severely depressed, sparking a pattern of self-harming behavior, most of which went unnoticed, including at least one of two suicide attempts. And when Mother was apprised of this behavior, her concern did not rise to the level that would be expected. During one of Child's stays with Father, he believed she was having an allergic reaction of some sort and took her to the emergency room for treatment. Because Child did not respond to treatment, the physician directed a social worker to observe Child to determine whether the reaction was "anxiety related." The social worker asked Child if "she had ever had thoughts of self-harm, " and Child disclosed that, when she was ten years old, she had taken a bottle of sleeping pills at Mother's house "because she just wanted to die." Mother did not know that Child had attempted suicide until Father informed her of it. Child also told the social worker that she had attempted suicide a second time at the age of twelve, this time by cutting her wrists with knives from Mother's kitchen.[2] The knives were not sharp enough to cause fatal wounds, but they did physically injure her.

         ¶5 At the time of trial, Child had continued to engage in self-harming behavior while in Mother's care, including using razor blades to cut her forearms and hips. When asked if Child engaged in this type of behavior while in Father's care, Father testified it was very unlikely because when she arrived at his house Child gave him the razor blade and discussed with him what had "bother[ed] her."

         ¶6 At trial, Mother downplayed Child's first suicide attempt. She testified that the pills Child ingested were merely melatonin and that melatonin is "a natural herbal sleep aid, " so "they don't hurt ya." When asked about this again, Mother testified, that she did not know exactly what Child ingested in an attempt to end her life but stated, "I know that if you take one melatonin pill, it won't harm you. I don't know how many she took . . . . I don't know if [taking a full bottle] would or would not" have harmed Child.

         ¶7 Father, on the other hand, took the news of Child's attempted suicide seriously and found her an Idaho therapist (Therapist) with an office thirty minutes away from Mother's house. Father testified that, even when Child stayed with him in Salt Lake City, he drove her to therapy appointments in Idaho. Father and Child also filled out a "suicide prevention" plan that included the names of people to call if Child had suicidal ideations and identified other steps to take to prevent her from harming herself. Father added that he was concerned that Mother continued to not allow Child to take the medication prescribed to treat her depression.

         ¶8 One incident, dubbed by Mother's attorney as "the ice cream event, " received the most attention at trial. Mother testified that, before one of Child's therapy appointments, Mother "could tell [Child] was just dragging that morning. It was hard to get her up and ready for the [appointment]." Once there, Child told Therapist that she was having suicidal ideations. Mother testified that, based on this, Therapist "[v]ery strongly" recommended that Mother immediately take Child to the nearest emergency room, and Therapist had notified the hospital's psychiatric unit that Child would be arriving shortly. Therapist also contacted Father to alert him to Child's suicidal thoughts. Concerned, Father tried contacting Mother, but after numerous unanswered phone calls, spoke directly to Child, who informed him that, rather than going to the emergency room, Mother was taking her and her half-siblings out to swim and get ice cream.

         ¶9 On cross-examination, Mother was asked whether she took Child's "threats and attempts to kill herself seriously." Mother responded, "Of course, " but also stated she "made a decision" not to follow through with Therapist's recommendation to take Child to the emergency room on that particular occasion. While Mother and Therapist talked, Child was having fun with her half-siblings in the waiting room. Mother then clarified that she had still planned to take Child to the emergency room and added, "But surely [I could] take her to get ice cream first, you know, before [going] to the psychiatric center." Mother also testified she could not have taken her two younger children to the emergency room with Child and instead decided to take all of them swimming, because "it just turned out to be a good day for it" and "as a family . . . we don't get to do it very much." Mother testified that Child appeared "happy" and "overjoyed" after swimming and eating dinner with the family and told Mother she felt much better.

         ¶10 Father testified that if Child ever expressed suicidal ideations while staying with him, "There wouldn't even be a hesitation, she would be back up in the emergency room."[3]

          ¶11 Child's educational needs were also addressed during trial. Both parties agreed that Child is intelligent and had always been "very articulate" and independent. Father testified he had communicated with Child's teachers in Idaho and had been informed that "they really can't challenge Child. She gets bored." Father testified he "has to put pressure on her to pull her grades back up because she gets bored and doesn't [participate]." The teachers recommended that Father look into an online school "while she's in Idaho to challenge her." Father described Child's academic and career aspirations and the plan Father had helped her create to realize those goals. Father testified that, if Child lived with him, she would be "guaranteed a seat" at a public charter school[4] that offered numerous advanced placement courses in languages, history, English, math, science, and more. The charter-school students also had the opportunity to take courses for college credit at the University of Utah. Based on Child's long-term academic and career goals, Father wanted Child to have the opportunity to prepare for college.

         ¶12 Mother did not testify that she conversed with Child's teachers about her status as a student. When asked about the courses Child would "be exposed to" if she continued to attend school in Idaho, Mother responded, "Generally just whatever is required by law in the public school system. Um, also I have . . . some pamphlets on an accelerated program where she can receive college credits and graduate early." But Mother could not identify the courses offered or the requirements of the accelerated programs that would allow Child to graduate early.

         ¶13 Each parent was asked to explain why he or she should be awarded custody of Child. Mother testified she should maintain sole physical custody because she loved Child, has had sole custody of Child for the majority of Child's life, and was concerned Father would not facilitate the statutorily required parent-time with her. Mother did not explain the basis for this concern.[5] Father testified that he should have primary physical custody because he would help make Child's life better. He wanted to ensure that her mental health stabilizes and that she would be given the opportunity to succeed academically and pursue her goals.

         ¶14 The GAL made a detailed oral recommendation to the court. She determined it would be in Child's best interest to award Father primary physical custody. She spent a significant amount of time addressing her concerns about Mother's responses, or lack thereof, to Child's mental health issues and repeatedly stated that it was not in Child's best interest for Mother to maintain sole physical custody. She emphasized her concerns about Mother's pattern of "minimiz[ing] the seriousness" of Child's health, suicide attempts, suicidal ideations, and self-harming behavior. She noted that Mother's refusal to allow Child to take prescribed medication and her refusal to take Child to the emergency room after Therapist told her that Child was suicidal not only minimized the seriousness of Child's mental health condition but was also an attempt to distance herself from acknowledging that she contributed to Child's condition. The GAL concluded that Mother's behavior was "dangerous for [Child]."

         ¶15 The GAL also highlighted Mother's initial retort that the bottle of sleeping pills Child took in her first suicide attempt "was 'only melatonin' and 'couldn't have hurt her, '" but then later forgot exactly what substance Child took in an attempt to end her life. The GAL also recounted the "ice cream event" and discussed her concern that Mother would allow Child, who was thirteen at the time, to dictate whether Mother should follow Therapist's recommendation to go to the emergency room. Child told the GAL that she feels "ignored and not taken seriously" by Mother. The GAL noted that, "concerning the medical issues . . . and her depression alone, " she could "understand where [Child] doesn't feel that her needs are being taken seriously" by Mother. The GAL commented that "sometimes we might all identify as being [a] lazy [parent]. We didn't bathe the kids one night [or] help them pick up their rooms, " but noted that there is a difference between "a lazy parent and one who . . . minimizes the care their child needs."

         ¶16 In contrast, the GAL stated that Father immediately responded to Child's medical needs. The GAL said that Child felt "she can approach [Father] with anything, " she feels "loved and cared for" by Father, and that they both followed the suicide prevention plan she and Father established for her ideations, which "gives her a sense of security." The GAL recommended that Father be awarded primary physical custody of Child because Father took appropriate actions to address her needs.

         ¶17 The district court asked the GAL to "be more specific" about why the recommendation was in Child's best interest because, as the court explained, "[W]e don't let children make decisions. They're not capable of making decisions. . . . We don't do what ...

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