State of Utah, in the interest of P.G. and M.G.

----ooOoo----

State of Utah, in the interest of P.G. and M.G., persons under eighteen years of age.
______________________________

E.G.
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020165-CA

F I L E D
November 15, 2002

2002 UT App 374 -----

First District Juvenile, Logan Department
The Honorable Jeffrey R. Burbank

Attorneys:
David M. Perry, Logan, for Appellant
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce and Tracy Mills, Salt Lake City, Guardians Ad Litem -----

Before Judges Jackson, Bench, and Davis.

DAVIS, Judge:

Appellant E.G. appeals from an order adjudicating P.G. and M.G. as neglected children, at risk because another minor in the home was abused, under Utah Code Ann. § 78-3a-103(1)(s)(i)(E) (Supp. 2002), and awarding continued temporary custody to the Division of Child and Family Services. We affirm.

E.G. contends that the evidence presented at trial was insufficient to support the juvenile court's findings of fact.

"[W]hen an appellant challenges the sufficiency of the evidence supporting a court's findings of fact, we require them to first 'marshall [sic] the evidence in support of the findings and then demonstrate that despite this evidence, the [juvenile] court's findings are so lacking in support as to be against the clear weight of evidence.'" In re L.M., 2001 UT App 314,¶14, 37 P.3d 1188 (first alteration in original) (citation omitted).

Because E.G. has substantially complied with the marshaling requirement, see In re S.L., 1999 UT App 390,¶23, 995 P.2d 17, cert. denied, 4 P.3d 1289 (Utah 2000), "[w]e review the challenge[] to the juvenile court's findings of fact for clear error." L.M., 2001 UT 314 at ¶11. Findings of fact are "not clearly erroneous . . . merely because the juvenile court accepted one party's evidence over another's." In re M.W., 970 P.2d 284, 291 (Utah Ct. App. 1998), rev'd in part, 2000 UT 79, 12 P.3d 80.

E.G.'s sufficiency of the evidence claim rests primarily on the testimony of E.G., his wife, and medical experts. We have previously held that "[t]he [juvenile] court is in a better position to observe factors bearing on credibility and we will not disturb a factual assessment unless it clearly appears that the [juvenile] court was in error." In re R.A.F., 863 P.2d 1331, 1333 (Utah Ct. App. 1993). Specifically, "[i]t is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies." In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996). Thus, "we defer to the juvenile court because of its 'advantaged position with respect to the parties and the witnesses' in assessing credibility and personalities." S.L., 1999 UT App 390 at ¶20 (quotations and citations omitted).

Here, there was conflicting testimony presented concerning the cause of the injuries suffered by the child. Dr. Maureen Frikke concluded that the child died as a result of blunt force injuries to the abdomen and that, in her opinion, the child's death was due to non-accidental trauma. Further, she reasoned that the numerous bruises and markings on the child's body were deliberately inflicted. Also, Dr. Doug Plowman, the treating emergency room physician, stated that the child had numerous traumatic marks and suspected the child had been killed.

On the other hand, E.G. testified that the injuries resulted from the child playing and falling down the stairs, as well as from E.G.'s efforts in resuscitating the child. E.G.'s wife, the mother, testified that E.G. had never abused the child and corroborated E.G.'s testimony about the cause of the abdominal injury. Also, Dr. Robert Rothfeder testified that some bruising was consistent with falling down the stairs and with CPR attempts and that there was no evidence of battered child syndrome.

The juvenile court concluded that the testimony of Dr. Frikke was the "best evidence." The court found that Dr. Frikke's testimony was sufficiently "based on science and experience and was corroborated by [bruises and] markings on the child." Because the juvenile court has wide discretion in measuring the credibility of conflicting witnesses, we conclude the juvenile court did not clearly err when it chose to believe the testimony of Dr. Frikke. See In re E.R., 2001 UT App 66,¶11, 21 P.3d 680 (holding juvenile court is given "wide latitude of discretion" as to judgments based upon juvenile court's opportunity to judge credibility, and juvenile court judge's special training and experience (quotations and citation omitted)).

Therefore, we hold that the juvenile court's findings are not clearly erroneous and, after a review of the record, that there was clear and convincing evidence to support the juvenile court's findings.
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 

______________________________
Norman H. Jackson,
Presiding Judge
 

______________________________
Russell W. Bench, Judge