State of Utah in the interest of C.B.
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah, in the interest
of C.B.,
a person under eighteen
years of age.
______________________________
H.M.,Appellant,
v.
State of Utah,
Appellee.
OPINION
(For Official Publication)
Case No. 981867-CA
F I L E D
October 15, 1999
1999 UT App 293
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Second District Juvenile,
Farmington Department
The Honorable Diane W. Wilkins
Attorneys:
Scott L. Wiggins, Salt Lake
City, for Appellant
Jan Graham and John Peterson,
Salt Lake City, for Appellee
Martha Pierce, Salt Lake
City, Guardian Ad Litem
-----
Before Judges Greenwood, Bench, and Orme.
BENCH, Judge:
¶1
Appellant, H.M., challenges
the juvenile court's final order finding that her child, C.B., is "neglected"
based on H.M's admissions to the State's petition and her voluntary return
to an abusive relationship. We affirm.
BACKGROUND
¶2
H.M. is the natural mother
of C.B. (the child). On numerous occasions, the child was present while
N.B. (the father) physically abused H.M. and engaged in conduct that placed
both H.M. and the child at serious risk of injury. H.M. reported many of
the abuse incidents to police and filed three protective orders. However,
between protective orders, H.M. voluntarily returned to the relationship
with the father.
¶3
The State filed a verified
petition alleging that the child was abused or neglected. The court allowed
the child to remain with H.M. under the protective supervision of the Division
of Child and Family Services. The father admitted to all of the allegations
in the State's petition, while H.M. admitted to all but two of them. At
a trial scheduled to address the two remaining allegations concerning H.M.,
the State elected to submit the matter to the court based solely on H.M.'s
previous admissions. The court then questioned H.M. regarding her claim
that she did everything possible to prevent the child from being exposed
to the father's abuse, given the number of violent disputes the child witnessed.
H.M. conceded that she voluntarily returned to the father between protective
orders. The court then determined that the child was "neglected" based
on the eleven admitted allegations and H.M.'s voluntary return to the father
between protective orders. H.M. appeals the decision, arguing that the
juvenile court erred in its determination that the child was "neglected"
within the meaning of the statute.
ISSUE AND STANDARD OF REVIEW
¶4
The issue presented for
review in this appeal is whether the juvenile court properly found that
neglect was proven by clear and convincing evidence, based upon the eleven
admitted allegations in the State's petition and the fact that H.M. voluntarily
returned to an abusive relationship with the father.
¶5
This issue presents a mixed
question of law and fact, requiring a review of the juvenile court's application
of statutory law to the facts. We review findings of fact for clear error,
with deference given to the trial court. See State v. Pena,
869 P.2d 932, 935-36 (Utah 1994). We review conclusions of law for correctness,
giving no deference. See id. at 936. However, the trial court is
afforded some discretion in applying the law to the facts. See id.
at 937.
ANALYSIS
¶6
We first dispose of H.M.'s
contention that the juvenile court proceeded to determine neglect sua sponte.
Our review of the record confirms that the juvenile court did not address
the issue sua sponte. The State did not waive the entire neglect petition,
as H.M. asserts, but simply expressed a desire to waive any reliance on
the two allegations H.M. had denied. The State made this clear in stating,
"And so . . . as paragraphs 12 and 13 relate to the mother, we do not proceed
on this." Therefore, the only issue remaining is the court's determination
of neglect.
¶7
A "neglected child" includes
a minor whose parent has subjected the child to mistreatment or lack of
proper parental care due to the faults or habits of the parent. See
Utah Code Ann. § 78-3a-103(1)(r)(i)(A)-(B) (Supp. 1999). "Neglect"
must be established by clear and convincing evidence. See Utah R.
Juv. P. 41(b).
¶8
In this case, the juvenile
court properly determined that "neglect" was clearly and convincingly shown.
H.M. admitted to the following relevant allegations of the State's verified
petition:
4. On March 17,
1994, when [the child] was approximately two weeks old, [H.M.] and [the
father], while in separate cars, began arguing with each other. A high
speed chase ensued and [the father] attempted to run [H.M.] off the road.
[The father] eventually rammed his vehicle into [H.M.'s] vehicle. [The
child] was in [H.M.'s] vehicle during this incident. [The father] was arrested
and transported to the Davis County Jail.
5. On February 10, 1995, [H.M.] contacted law enforcement claiming that she was the victim of domestic violence involving [the father]. [H.M.] claimed the domestic violence had been happening for two years.
6. On July 23, 1995, [the father], while wearing boots, kicked [H.M.] in the head and shoulder. [The child] was present during the assault. [The father] was arrested and transported to the Davis County Jail.
7. On March 31, 1996, law enforcement responded to the residence of [H.M.] and [the father]. [H.M.] and [the father] were in a verbal fight. Both parties were separated for the night.
8. On April 8, 1996, [H.M.] and [the father] became involved in an altercation in which [H.M.] was physically injured. [The child] was present during the fight. [The father] was arrested and transported to the Davis County Jail.
9. On March 2, 1997, [the father], in an intoxicated state, struck [H.M.] and [the child]. Law enforcement provided a civil stand-by while [H.M.] left the residence.
10. On July 19, 1997, [H.M.] attempted to pick up [the child] at [the father's] residence. [The father] refused to return [the child]. [The father] also chased [H.M.] with a bat, pipe or club of some type.
11. On July 23, 1997, while [H.M.] was visiting a friend, [the father] entered the apartment and chased [H.M.] to a back room. [H.M.] locked the door to the room but [the father] gained access by kicking down the door. Once in the room, [the father] destroyed a table. [The child] was present during this incident. While it is implicit in the foregoing admissions, H.M. conceded, in open court, that she had voluntarily returned to the relationship with the father between protective orders.
¶9
Taken together, the foregoing
supports the juvenile court's determination that H.M. subjected the child
to "ongoing interaction in conduct that placed [the child] at risk." H.M.
knew that the father's violence harmed the child in the past, and that
there was great potential for future harm. Despite this knowledge, H.M.
voluntarily returned to the abusive relationship with the father, thereby
potentially subjecting the child to witness, or be the victim of, further
abuse. It is sad and unfortunate that H.M. was often the victim of the
father's abuse; however, H.M. had a statutory duty not to knowingly place
the child in harm's way. See Utah Code Ann. § 78-3a-301(1)(c)
(Supp. 1999) (stating that allowing child to be in physical presence of
alleged abuser, if parent has actual notice that abuse has occurred, constitutes
prima facie evidence that child is at risk of being physically abused).
¶10
An adjudication on the ground
of "neglect" is followed by "protective supervision," "whereby the [child]
is permitted to remain in his home, and supervision and assistance to correct
the abuse, neglect, or dependency is provided by the probation department
or other agency designated by the court." Utah Code Ann. § 78-3a-103(1)(u)
(Supp. 1999). Both the child and H.M. may benefit from the supervision
and assistance the State can provide.
¶11
Based upon the evidence
before the juvenile court, the judge properly ruled that there is sufficient
to show that she had, through her own choices and actions, gone back into
a relationship that continued being violent, explosive, if not physically,
at least verbally. But there were even admissions to [the child] being
present during the fight on April 8, 1996. Because of his young age, he
. . . does fit within the definition of a neglected child.
CONCLUSION
¶12
The juvenile court properly
determined that the child was a "neglected child" for statutory purposes.
We therefore affirm.
______________________________
Russell W. Bench, Judge
-----
¶13
WE CONCUR:
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
______________________________
Gregory K. Orme, Judge
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