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State ex rel. J.A.

Court of Appeals of Utah

February 15, 2018

State of Utah, in the interest of J.A. and C.A., persons under eighteen years of age.
State of Utah, Appellee. C.A., Appellant,

         Second District Juvenile Court, Ogden Department The Honorable Sherene T. Dillon No. 1118574

          Jason B. Richards, Attorney for Appellant.

          Sean D. Reyes and John M. Peterson, Attorneys for Appellee.

          Martha Pierce, Guardian ad Litem.

          Judge Michele M. Christiansen authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.

          AMENDED OPINION [1]


         ¶1 C.A. (Father) appeals from the juvenile court's adjudication order, in which the court found that Father had severely abused one of his children and neglected both of them. We affirm.


         ¶2 Father and A.Z. (Mother) had two children-J.A. (Older Child) and C.A. (Younger Child). Older Child was born in November 2012, and Younger Child was born in April 2015.

         ¶3 On July 21, 2015, Mother left for work around 7:30 a.m., leaving Father at home to care for the children. Younger Child was awake and smiling when Mother left.

         ¶4 According to Father, Younger Child took a nap from 9:30 to 11:30 a.m., and both children took naps around 1:00 p.m. As Father watched television, he heard a "choking" sound coming from Younger Child's room and went to check on him. Father took Younger Child into the living room. Younger Child was limp and did not appear to be breathing. According to Father, he unsuccessfully attempted CPR and called 911.

         ¶5 The first responding officer observed that Younger Child was nonresponsive, that his arms were "straight out in front" of him, that his "hands were locked, " and that he had very shallow breathing. The officer later testified that Father told him that he "shook [Younger Child] a little bit" to try to clear his airways.

         ¶6 An ambulance transported Younger Child to a local hospital, where a CT scan revealed that he had a subdural hematoma. The hospital requested an airlift to Primary Children's Medical Center (PCMC), where doctors stabilized Younger Child and performed additional tests and scans on him. The additional testing revealed that Younger Child had two subdural hematomas, one older and one more recent. He also had retinal hemorrhaging, fractured ribs, and a neck injury. The incident ultimately left Younger Child with significant and permanent brain damage.

         ¶7 Police obtained search warrants for the family's house and for the parents' cell phones. After conferring with physicians at PCMC, who ultimately concluded that Younger Child's injuries were the result of nonaccidental trauma, police officers arrested Father. The State obtained a warrant to take both children into custody and filed a verified petition alleging abuse and neglect based on the July 21, 2015 incident.

         ¶8 The police extracted several text messages from each parent's cell phone. A detective (Detective) sifted through the texts and compiled the ones he believed were relevant to the investigation. For example, in a June 24, 2015 text to Mother, Father stated, "I think you should take the kids. He is getting me to a new level." Mother responded, "[D]o whatever you need to get away and take a break." And in a June 27, 2015 text, Father sent Mother a picture of a bruise on Younger Child's neck. Mother responded with "W.T.F." and "OMG . . . that is a really bad bruise."

         ¶9 In December 2015, the juvenile court held a four-day adjudication trial. Father testified that he watched the children about half of the time. Father added that Younger Child had choking issues from birth and had also been diagnosed with acid reflux. He denied ever "shaking" Younger Child, stating that he only ever "slight[ly] bounce[d]" Younger Child to help him clear his airways. In an apparent attempt to explain Younger Child's rib injuries, Father testified that about a week before the incident, Mother had been driving and was forced to slam on the brakes to avoid a collision. Father testified that Younger Child was sleeping in the car at the time and did not wake up or cry.

         ¶10 Regarding Younger Child's neck injury, Father described an incident in which Older Child had allegedly tripped over Younger Child. Father stated that Younger Child seemed "startled" after Older Child tripped over him, but that he did not cry. Father told Mother about the incident via text message. Father admitted that he had initially lied to her about what had happened; he told her that Younger Child had gotten the bruise by lying on his pacifier. Father also discussed his text messages with Mother regarding a bruise on Younger Child's forehead and stated that the forehead bruise came from the same tripping incident. Father acknowledged that Younger Child's injuries were "pretty severe, " but he denied causing them.

         ¶11 The first responding officer testified about what he had witnessed when he arrived at the family's house on the day of the incident. Although the first responding officer testified that Father admitted he "shook [Younger Child] a little bit" to try to get him to respond, another officer stated that Father told him that Father had "jiggled and bounced" Younger Child and "flatly" denied shaking Younger Child. While he was in the house, the first responding officer heard a sound coming from another room. When he opened the door he found Older Child, who had been locked inside the room with a child-proof lock. The room smelled like urine. Father was upset that the officer had opened Older Child's door and stopped the officer from talking to Older Child. Father told Older Child to "remember what I told you." The officer described the family's house as "cluttered" but "not overly dirty."

         ¶12 A second responding officer testified that he observed Father arguing with the first responding officer about why he had opened Older Child's bedroom door. The second officer testified that Father was more concerned with the police presence than with Younger Child's welfare. Father asked the first responding officer to leave several times, stating that he "didn't want police there."

         ¶13 The first responding officer further testified that he had executed the warrant to seize the parents' cell phones. The officer stated that he had taken the phones, turned them off, removed the batteries, and given them to detectives.

         ¶14 Detective testified that a "data dump" was performed on the phones and that he had been provided with two thumb drives containing "all of the content from those phones." Detective "looked through all the messages, the pictures, . . . [and] the videos and put the content together for the text messages leading up to and the day of the incident that occurred." He testified that he "didn't include all of the texts" in his police report; he only included "texts [he] felt [were] relevant to this case and with communication between [Father] and [Mother] or anybody else that would have had anything to do with [Younger Child] and [his] health and well-being."

         ¶15 Three medical experts testified at the trial. The head of the Safe and Healthy Families Team at PCMC (Doctor) testified for the State. Doctor testified generally about "shaken baby syndrome" and clarified that it was properly referred to as "abusive head trauma." Doctor testified that none of the parents' explanations adequately accounted for Younger Child's injuries.

         ¶16 Doctor testified in detail about Younger Child's injuries. She testified that Younger Child suffered retinal hemorrhages in both of his eyes and that "this particular pattern where it's in multiple layers of the retina and goes all the way out to the aura is specific-not entirely specific, but very specific for rotational injury by shaking." Doctor observed that Younger Child's CT scan showed that he had an older subdural hematoma, but she testified that it was unlikely that the newer hematoma was a "re-bleed of the chronic ones" based on Younger Child's symptoms. Doctor also testified regarding other possible causes for Younger Child's injuries, but she stated that "nothing seemed to fit the pattern of anything other than abusive head trauma and physical abuse to explain all of [Younger Child's] injuries." Doctor explained that a baby like Younger Child "would have symptoms immediately after having sustained these injuries."

         ¶17 A board-certified radiologist (Radiologist) testified for the State regarding Younger Child's rib fractures. He testified that x-rays showed calcification of Younger Child's rib fractures, which is indicative of healing. He also testified that the fractures would not have been caused by Father's attempts at CPR. Radiologist testified that Younger Child's rib injuries appeared to be "about seven to fourteen days" old as of the July 21, 2015 incident. He ruled out rickets as the cause of Younger Child's rib injuries.[3]

         ¶18 At the close of the State's case-in-chief, Father moved for involuntary dismissal pursuant to rule 41(b) of the Utah Rules of Civil Procedure. Father argued that the State had failed to provide clear and convincing evidence that he was responsible for Younger Child's injuries. Father also argued that the Juvenile Court Act was unconstitutional as applied to him. The court denied Father's motion for involuntary dismissal and took his constitutional argument under advisement, stating that it would decide those issues after all of the evidence had been presented.

         ¶19 Thereafter, Father's expert (Father's Expert) testified that all of Younger Child's subdural hematomas were the result of a "re-bleed" from a subdural hematoma that likely occurred during Younger Child's birth, combined with rickets. Father's Expert acknowledged that, while he had considerable experience as an emergency room physician, he had no special training in diagnosing child abuse and was not a trained radiologist. On rebuttal, Doctor disagreed with Father's Expert that Younger Child's newer subdural hematoma was the result of a "re-bleed." Doctor explained that the entire collection of Younger Child's injuries, including subdural hematomas, 360-degree multilayer retinal hemorrhaging, neck injury, and rib fractures, could reasonably be explained only by traumatic shaking incidents.

         ¶20 In March 2016, the juvenile court entered an order adjudicating both children as neglected by the parents. The court found that Younger Child had suffered two rib fractures within a two-week period surrounding his "acute injuries." In addition, the court found that Younger Child had been severely abused by Father. The court rejected Father's argument regarding the constitutionality of the Juvenile Court Act.

         ¶21 On January 6, 2017, the juvenile court terminated Father's parental rights on the grounds that (1) Father had "abandoned his children and failed to show the normal interest of a natural parent"; (2) Father had "severely abused or neglected" the children; (3) Father was an "unfit or incompetent parent[]"; (4) Father had "been unable or unwilling to remedy the circumstances that caused the children to be in an out-of-home placement" and there was a "substantial likelihood that [he would] not be capable of exercising proper and effective parental care in the near future"; (5) Father's actions constituted a failure of parental adjustment; and (6) Father had "made only token efforts to support or to communicate with the children." As far as this court is aware, Father has not appealed from the juvenile court's order ...

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