State of Utah, in the interest of J.E.

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State of Utah, in the interest of J.E., Case No. 20010188-CA, Filed November 1, 2001 IN THE UTAH COURT OF APPEALS


State of Utah, in the interest of J.E.,
a person under eighteen years of age.



State of Utah,

(Not For Official Publication)

Case No. 20010188-CA

November 1, 2001 2001 UT App 324 -----

Third District Juvenile, Salt Lake Department
The Honorable Kimberly K. Hornak

John E. Laherty, Salt Lake City, for Appellant
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Karen Flynn, Salt Lake City, Guardians Ad Litem -----

Before Judges Bench, Davis, and Orme.

DAVIS, Judge:

The trial court's "Findings," to the extent they relate to Utah Code Ann. § 78-3a-305.1 (Supp. 2000), appear to be the product of a clerical error for the following reasons: (1) on the facts of this case, the presumption in section 78-3a-305.1 is not applicable because the child was not under Appellant's "direct and exclusive care and control;" (2) section 78-3a-305.1 does not define abuse; and (3) the written findings are inconsistent with the oral findings made by the court.

However, it is clear from the oral findings that the court did not rely on the presumption set forth in section 78-3a-305.1 in determining that the mother abused the child, but instead relied upon testimony presented at trial.

In Merriam v. Merriam, 799 P.2d 1172 (Utah Ct. App. 1990), we stated that "on review we are not limited to written findings, and may properly examine findings expressed solely from the bench or contained in other court documents, such as court memoranda." Id. at 1177 (citing Erwin v. Erwin, 773 P.2d 847, 849 (Utah Ct. App. 1989)). In addition, a trial court's clerical oversight in failing to include the proper section of the code does not require disturbing the judgment. See Martindale v. Adams, 777 P.2d 514, 517 (Utah Ct. App. 1989).

In this case, the trial court's "Findings" contained in its "Minutes and Orders" are either consistent with the oral findings, or, as stated, the result of a clerical error. The findings announced from the bench are clear and unambiguous. See Utah R. Juv. P. 44(a) (findings of fact may be announced orally). First, the court clearly found the child had been abused. Next, the court determined, by weighing the evidence presented at trial, that the mother most likely inflicted the abuse. Finally, the court determined that the child was neglected because the mother failed to provide proper medical care in a timely manner. Thus, the court did not rely on the statutory presumption in section 78-3a-305.1 in making its ruling. The decision of the trial court is affirmed.

James Z. Davis, Judge -----


Russell W. Bench, Judge

Gregory K. Orme, Judge