State of Utah, in the interest of D.B., K.B., A.H., and T.H.

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State of Utah, in the interest of D.B., K.B., A.H., and T.H. IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of D.B., K.B., A.H., and T.H.,
persons under eighteen years of age.
______________________________

R.H.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010320-CA

F I L E D
September 12, 2002 2002 UT App 294 -----

Second District Juvenile, Farmington Department
The Honorable Diane W. Wilkins

Attorneys:
Edward K. Brass, Salt Lake City, for Appellant
Mark L. Shurtleff and John M. Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, and Jan W. Arrington, Layton, Guardians Ad Litem -----

Before Judges Jackson, Bench, and Greenwood.

JACKSON, Presiding Judge:

Appellant challenges the juvenile court's underlying findings and subsequent finding that he sexually molested his step daughter (Child). He argues that the evidence was insufficient to support those findings. "We review challenges to the juvenile court's findings of fact for clear error. Unless the findings are against the clear weight of the evidence, we will not set the juvenile court's findings aside." In re L.M. v. State, 2001 UT 314,¶11, 37 P.3d 1188. "[H]owever, when 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 court's findings are so lacking in support as to be against the clear weight of the evidence.' To successfully discharge [his] duty to marshal, [A]ppellant must 'present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings [he] resists.'"[(1)] Id. at ¶14 (second alteration in original) (citations omitted).

Appellant attempts to marshal, inter alia, Child's videotaped statements and Detective Grubb's statements regarding the "blanket" incident, Child's testimony regarding Appellant's viewing of pornography, and Child's testimony regarding the "chocolate fudge" incident. Appellant then attempts to discredit this evidence. However, we conclude that the evidence Appellant attempts to discredit provides sufficient basis to support the challenged findings notwithstanding his views on its reliability and credibility. In other words, his mere re-argument as to the evidence's reliability fails to demonstrate "that these same findings are so lacking in support as to be against the clear weight of the evidence, thus making them clearly erroneous." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (quotations and citations omitted).

Further, as the guardian ad litem points out, Appellant fails to fully marshal the evidence. Instead, he omits some evidence that supports the juvenile court's findings and "'argue[s] selected portions of the evidence which he believ[es] support[] his own position.'" In re L.M., 2001 UT 314 at ¶15 (citation omitted). Thus, "we assume that 'the evidence introduced at trial adequately supported the findings,' and, accordingly, affirm the findings as written."(2)Id. (citation omitted).

Affirmed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge

-----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. Appellant argues that because the challenged findings "effect[] [his] custody over his step and natural children," we should re-weigh the evidence. As support for this proposition, he cites In re A.H., v. Mr. H., 716 P.2d 284, 286 (Utah 1986), which essentially provides the standard of review recently applied in Davis v. Davis:

[w]hen "reviewing [trial court determinations regarding the custody of children], we must do our own weighing and make our own decision based on the facts in the record. Nevertheless, the [trial] court is allowed a considerable latitude of discretion in child custody matters, and its judgment will not be disturbed unless we determine the [trial] court has exceeded the scope of permitted discretion or has acted contrary to law."

2001 UT App 225,¶6, 29 P.3d 676 (alterations in original) (citation omitted). Here, although the finding Appellant challenges may impact custody determinations, he appeals not a custody determination, but a finding that he sexually molested Child.

2. In light of this ruling, we decline to address the State's suggestion of mootness.

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