K.A.M v. State

K.A.M v. State

IN THE UTAH COURT OF APPEALS

----ooOoo----

K.A.M.,

Petitioner and Appellant,

v.

State of Utah, Division of Child and Family Services,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030576-CA
 

F I L E D
(March 4, 2004)
 

2004 UT App 48

 

-----

Third District Juvenile, Salt Lake Department

The Honorable Olof A. Johansson

Attorneys: Steven C. Russell, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

-----

Before Judges Billings, Greenwood, and Orme.

PER CURIAM:

K.A.M. appeals the ruling on a petition seeking removal of his name from the licensing database maintained by the Division of Child and Family Services (DCFS).

Utah Code section 78-3a-320 allows a person to petition the juvenile court to remove that person's name from the licensing database. See Utah Code Ann. § 78-3a-320(3) (Supp. 2003) After hearing a petition, the court must issue an order incorporating its finding whether the DCFS finding is "substantiated, unsubstantiated, or without merit." Id. § 78-3a-320(3)(a).

At the conclusion of the evidentiary hearing in this case, the juvenile court stated:

[T]he court finds by a preponderance of the evidence that on the day in question, in September of 1997, pursuant to the definition existing at the time, i.e., Utah DHS-DCFS Child Welfare Manual, Policy # 202(b)(1)(b)(1), i.e., actual non-accidental harm, the facts establish that a reasonable basis existed for Respondent to conclude that an act of abuse occurred and that Petitioner was substantially responsible for it. Petitioner concedes he spanked the child as he described it, albeit for disciplinary reasons, leaving a mark or contusion which was still visible for up to twenty-four (24) hours afterwards.

We review the juvenile court's findings of fact under a "clearly erroneous" standard. See Utah R. App. P. 52(a). "An appellant seeking to challenge the juvenile court's findings must first marshal the evidence in support of those findings and then demonstrate that the evidence, when viewed in the light most favorable to the court's ruling, is insufficient." In re W.A., 2002 UT 127,¶43, 63 P.3d 607. K.A.M. testified that he spanked C.M. on his bare buttocks with sufficient force to leave a mark that persisted for a twenty-four hour period and was observed by K.A.M., his wife, and the DCFS caseworker. Similarly, there is no dispute that the harm was inflicted by K.A.M. K.A.M. has not demonstrated that the juvenile court's findings are clearly erroneous.

K.A.M.'s reliance upon In re L.P., 1999 UT App 157, 981 P.2d 848 is misplaced. In L.P., we reviewed findings entered after an adjudication hearing in a child protection case, stating the court was required to make detailed findings in support of its determination "whether, by clear and convincing evidence, a child has 'suffered or been threatened with nonaccidental physical or mental harm'". Id. at ¶7 (citation omitted). As guidance, we set forth a number of factors that may be considered in determining whether a child had been abused under Utah Code Annotated section 78-3a-103. See id. In reviewing the petition for removal of K.A.M.'s name from the Licensing Information System, the court was required to "make a finding of substantiated, unsubstantiated, or without merit." Utah Code Ann. § 78-3a-320(3). "'Substantiated' . . . means a judicial finding based upon a preponderance of the evidence that abuse or neglect occurred." Utah Code Ann. § 62A-4a-101(29) (Supp. 2003). The court met that standard in this case.

We decline to consider K.A.M.'s constitutional argument because it is inadequately briefed. The argument appears to be that because corporal punishment is legal, any actual or implicit restriction in its use infringes upon "parental rights." K.A.M. does not identify the specific constitutional right he contends is infringed, and provides no meaningful analysis nor citations to supporting case law for the claim. See Snow Flower Homeowners Ass'n v. Snow Flower Ltd, 2001 UT App 207,¶14, 31 P.3d 576 (declining to consider claim without adequate legal analysis or authority). Similarly, the related argument that the DCFS policy created an irrebutable presumption if evidence of injury lasts more than twenty-four hours is without merit. There is no reference to the time period in the policy. The persistence of the marks on the child's buttocks was simply one of several factors considered in determining whether nonaccidental harm had occurred.

Accordingly, we affirm the ruling of the juvenile court.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

Gregory K. Orme, Judge