V.M. v. State of Utah

State of Utah, in the interest of F.A., a person under eighteen years of age, Case No. 990129-CA, Filed March 16, 2000 IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of F.A.,
a person under eighteen years of age.
______________________________

V.M.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990129-CA

F I L E D
March 16, 2000
  2000 UT App 72 -----

Third District Juvenile, Salt Lake Department
The Honorable Frederic M. Oddone

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Philipe E. Rivera, Salt Lake City, Guardians Ad Litem

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Even if appellant's "attenuation" argument had merit, we would still uphold the trial court's decision to terminate appellant's parental rights. The court made it clear that it was basing its decision to terminate appellant's rights not just on the parental unfitness ground but also on the ground of neglect, pursuant to Utah Code Ann. § 78-3a-407(2) (1996), due to appellant exposing the child to an "unreasonably high risk of mistreatment or abuse." A "neglected child," for purposes of the statute, includes one that has been returned to an abusive environment by a parent, thus exposing the child to the substantial risk of abuse in the future. See In re C.B., 1999 UT App 293 at ¶¶8-11, 989 P.2d 76 (upholding trial court's finding that child was "neglected child" because mother voluntarily returned to abusive relationship with child's father, thus subjecting child to risk of either witnessing or being subjected to future abuse).

The trial court made numerous findings,(1) beyond the shaking incidents in 1997, supporting its conclusion of neglect. These findings focused on appellant's continued voluntary relationship with the abusive father. Appellant, after completing her treatment plan, immediately allowed the father to have access to the child, even though he had previously abused the child. During the period from July 1997, when the child was returned to appellant, to January 1998, when the child was again taken from appellant, the child sustained multiple fractures, one of which was found to be both nonaccidental and caused by the father. Even after signing a safety plan on January 21, 1998, aimed at allowing the child to stay with appellant, she violated that agreement and again allowed the father to have unsupervised access to the child.

All these facts led the trial court to conclude that appellant was unable or unwilling to protect her child from further harm from the father and that her parental rights must therefore be terminated. We see no error in this regard. The appellant's failure to cut her ties to the man who nearly killed her child two previous times and her attempts to deceive the state about her continued involvement with him constitute a fully adequate basis for terminating her parental rights. See In re Jonathan Michael D., 459 S.E.2d 131, 137-38 (W. Va. 1995) (per curiam) (affirming termination of parental rights of mother who completed treatment plan but continued to allow abusive father to have access to child). Cf. In re C.B., 1999 UT App 293 at ¶¶9-10 (holding that return to abusive relationship by mother was neglect of her child justifying protective intervention).

Appellant also argues that the court erred in relying on evidence concerning "battered child syndrome" to help demonstrate that the pattern of injuries the child sustained was proof that the injuries were not accidental. Our Supreme Court has stated that "battered child syndrome" is a medically recognized condition denoting that a child has suffered from a pattern of abuse. See State v. Tanner, 675 P.2d 539, 543 (Utah 1983). This evidence is typically used in cases where there are a number of unexplained injuries to a child. See id. at 542-43. The fact that appellant's child, in the nine months she spent with appellant, suffered seven fractures and at least two incidents of shaking that produced life-threatening injuries is more than enough to justify allowing testimony concerning battered child syndrome.(2)

Appellant's complaint about the trial court overlooking potential kinship placement for the child is also unavailing. A kinship placement determination is mandated at the shelter hearing, see Utah Code Ann. § 78-3a-307(5) (Supp. 1999), but no similar direction is contained in the provisions governing the termination hearing. See In re J.J.T., 877 P.2d 161, 165 (Utah Ct. App. 1994). If concerned about the failure of the court to make a kinship determination, appellant's recourse was to appeal from the shelter order, which she did not do.

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

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James Z. Davis, Judge

1. Insofar as appellant challenges the sufficiency of the evidence supporting the court's findings, her challenge is not well taken. See, e.g., In re J.D.M., 808 P.2d 1122, 1124 (Utah Ct. App. 1991).

2. Appellant also questions the qualifications of Dr. Karen Hansen as an expert witness concerning battered child syndrome. The appellant has failed to adequately brief this issue, and we therefore decline to reach it. See State v. Price, 827 P.2d 247, 249 (Utah Ct. App. 1992).