Bergquist v. Busby

Bergquist v. Busby

IN THE UTAH COURT OF APPEALS
 

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Barry D. Bergquist,

Petitioner and Appellee,

v.

David Michael Busby,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031042-CA
 

F I L E D
(June 16, 2005)
 

2005 UT App 268

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Third District Juvenile, Salt Lake Department, 430004

The Honorable Andrew A. Valdez

Attorneys: Mary Cline and Mary C. Corporon, Salt Lake City, for Appellant

Elizabeth A. Hruby-Mills and Zachary E. Peterson, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Wilkins.(1)

BILLINGS, Presiding Judge:

    David Michael Busby appeals the juvenile court's protective order (the Order), entered pursuant to Utah Code section 78-3h-104. See Utah Code Ann. § 78-3h-104 (2002). Busby argues that the juvenile court erred in issuing the Order because its factual findings are clearly erroneous.(2) We affirm.

    The juvenile court's factual findings will not be reversed unless they are clearly erroneous. See State v. Pena, 869 P.2d 932, 935 (Utah 1994). To find clear error, we "must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination." Id. at 935-36. We review the juvenile court's legal conclusions for correctness. See id. at 936.(3)

    Utah law provides that "[a]ny interested person may file a petition for a protective order on behalf of a child who is being abused or is in imminent danger of being abused." Utah Code Ann. § 78-3h-102(1) (2002). An "abused child" is any minor under eighteen years of age who "has suffered or been threatened with nonaccidental physical or mental harm, negligent treatment, or sexual exploitation." Utah Code Ann. § 78-3a-103(1)(a)(i) (2002).

    Because Busby challenges the factual findings of the juvenile court, he must marshal the evidence and "in comprehensive and fastidious order, [present] every scrap of competent evidence introduced at trial which supports the very findings the appellant resists." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). We determine that Busby has satisfied this task; however, he has failed to satisfy the second requirement, to "ferret out a fatal flaw in the evidence." Id. Thus, Busby fails to "convince [us] that the court's finding[s] . . . [are] clearly erroneous." Id.

    For example, Busby argues the juvenile court's finding that Busby tried to contact the children, J. and M., through notes despite the parents' request that he have no contact was clearly erroneous. After reviewing the record, however, we determine that there is adequate evidence supporting such a finding. For example, the children's mother, Dr. Bergquist, testified at a deposition that she found three notes written by Busby to J. in J.'s lunch. She also testified that she found three notes from Busby to M. in M.'s bedroom. The notes were found over about a two-week period of time between the end of October 2002 to the beginning of November 2002. Dr. Bergquist testified that she asked Busby to leave her home and not to see her children any longer in October 2002. We determine this evidence adequately supports the factual finding, thus the finding is not clearly erroneous.

    Busby also challenges the juvenile court's finding that there were allegations that Busby inappropriately touched J. The parties stipulated to a statement by the children's father, the petitioner in this case, that he "witnessed inappropriate touching when [Busby] lived as a nanny in our home--abdominal [and] backrubbing, hugging [sic]. [Busby] was seen lying in bed in [the] dark with J." We determine this evidence adequately supports the factual finding, thus the finding is not clearly erroneous.

    Moreover, the content of the notes and the allegation of inappropriate touching are sufficient to support the issuance of the Order. In Busby's first note to J., he refers to J. as "[m]y beautiful little brother" and writes "I love you little brother, but now it's up to you and M[] to get me back and get Jerk gone. You have to be willing to do anything. You shouldn't care about anything except you and me getting back together. You really need to stop functioning at school." Dr. Bergquist testified that Busby referred to J. and M.'s father as "the Jerk." Busby ends the note with, "I love you. I miss you so much. I don't think you really understand how much this is hurting me. I can't function at all. . . . I love you forever." In the second note, Busby writes "I miss having you by me and being able to hold you. . . . I'll never give up until we're completely together again. You mean everything to me. I love you, I love you, I LOVE YOU." The three notes to M. are substantially similar.

    The content of these notes demonstrates adequate grounds for the Order. Busby attempts to manipulate the children, encourages them to dislike their father, and instructs J. to stop functioning at school. The notes support an imminent threat of mental harm to the children. The allegation of inappropriate touching and the notes' reference to physical touching also support the issuance of the Order because allegations of such inappropriate touching indicate an imminent threat of sexual abuse to the children. Thus, the evidence and the findings based thereon support the issuance of the Order under Utah Code sections 78-3h-102(1) and 78-3a-103(1)(a)(i).

    Accordingly, we affirm.

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Judge Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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Michael J. Wilkins,

Associate Chief Justice, Utah Supreme Court

1. The Honorable Michael J. Wilkins, Associate Chief Justice of the Utah Supreme Court, sat on the Court of Appeals by special assignment pursuant to Utah Code section 78-7-9.5. See Utah Code Ann. § 78-7-9.5 (2002); Utah R. Jud. Admin. 3-108(3).

2. Busby also argues that the Order violates his constitutional right of association. However, this argument fails because we determine the Order was properly issued, giving Busby no right to associate with the children.

3. We do not deal with Busby's challenge of the juvenile court's evidentiary rulings because we determine that such rulings made no difference in the outcome of the case.