State of Utah, in the interest of A.L.

State of Utah, in the interest of A.L.

IN THE UTAH COURT OF APPEALS
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State of Utah, in the interest of A.L., a person under eighteen years of age.
______________________________
R.L.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020674-CA

F I L E D
(July 25, 2003)

2003 UT App 263

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Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

Attorneys: Edward K. Brass, Salt Lake City, for Appellant

Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee

Kristin G. Brewer, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Bench, and Thorne.

BENCH, Judge:

R.L. (Mother) appeals from the juvenile court's order finding that A.L. (Daughter) is a neglected child pursuant to Utah Code Ann. § 78-3a-103 (2002).(1) Mother argues that the evidence was insufficient to support the juvenile court's findings. "[W]e . . . review the juvenile court's factual findings based upon the clearly erroneous standard." In re E.R., 2001 UT App 66,¶11, 21 P.3d 680. Mother contends that "[t]he fact that the trial court believed that A.L.'s femur was broken undermines the remainder of [its] analysis." This argument is not supported by the record. The juvenile court accidentally mentioned femur instead of fibula in its written findings. This reference did not affect the court's decision as it is clear from the record that the court understood which bones were broken. We conclude that, when considered in context, the findings of the juvenile court are not clearly erroneous.

Mother also argues that "[t]he trial court abused [its] discretion in asserting jurisdiction over A.L. because A.L. was not an abused or neglected child, but was a child who incurred an accidental injury." In re N.K.C., 1999 UT App 345, 995 P.2d 1 is instructive in ascertaining whether the trial court acted within its permitted range of discretion in adjudicating Daughter a neglected child.(2)

In N.K.C., we analyzed the medical neglect statute currently found in section 78-3a-103 to determine whether a child was medically neglected by its mother. See N.K.C., 1999 UT App 345 at ¶8. The mother in N.K.C. returned home and found the child limp and lethargic with fixed pupils. See id. at ¶2. Instead of immediately seeking medical help, the mother put the child back to bed and did not go to the hospital until almost five hours after "initially discovering the child's dire condition." Id. at ¶3. We adopted a reasonable parent standard and concluded that the trial court properly found the mother's conduct was unreasonable. See id. at ¶¶16-17, 22. We stated that "'[r]easonable care does not require extraordinary caution or exceptional skill. Reasonable care is what an ordinary, prudent [parent] uses in similar situations.'" Id. at ¶19 (citation omitted).

In the present case, the trial court properly exercised its discretion in determining that Mother did not exercise reasonable care when she set Daughter on the floor with sufficient force to break her tibia and fibula. See N.K.C., 1999 UT App 345 at ¶19. Mother's action can be properly characterized as "mistreatment." See Utah Code Ann. § 78-3a-103(1)(s)(i)(B). We therefore conclude that the juvenile court did not abuse its discretion in concluding that Daughter "is a neglected child . . . that . . . has been subjected to mistreatment by its parent, pursuant to Utah Code Ann. § 78-3a-103(1)[(s)(i)(B)]."

Finally, Mother attempts to raise several constitutional issues on appeal. There is no indication in the record that Mother raised these issues below; therefore, we decline to address them. See N.K.C., 1999 UT App 345 at ¶9.

Affirmed.

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Russell W. Bench, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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William A. Thorne Jr., Judge

1. In 2002, Utah Code Ann. § 78-3a-103 was amended and renumbered to add a new subsection. We cite to the most recent version of the statute as there have been no substantive changes that affect our analysis.

2. A neglected child is defined, in relevant part, as "a minor: whose parent, guardian, or custodian has subjected the minor to mistreatment or abuse." Utah Code Ann. § 78-3a-103(1)(s)(i)(B) (2002).