V.M. v. DCFS , 2020 UT App 35 ( 2020 )

2020 UT App 35THE UTAH COURT OF APPEALS
V.M.,
Appellant,
v.
DIVISION OF CHILD AND FAMILY SERVICES,
Appellee.
Opinion
No. 20180906-CA
Filed March 5, 2020
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1155142
Andrew G. Deiss and John Robinson Jr., Attorneys
for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 V.M. appeals the juvenile court’s order substantiating a
finding of the Division of Child and Family Services (DCFS) that
V.M. sexually abused a child. We affirm.
BACKGROUND
¶2 In 2015, a minor child (Child) alleged that V.M., her
brother-in-law, sexually abused her. The State charged V.M.
with aggravated sexual abuse of a child. The criminal case went
to trial and resulted in an acquittal.
V.M. v. DCFS
¶3 Separately from the criminal case, DCFS conducted
an investigation into the allegation against V.M. As a result
of that investigation, DCFS made and entered a supported
finding against V.M. for sexual abuse of a child. See Utah
Code Ann. § 62A-4a-101(41) (LexisNexis 2018) (“‘Supported’
means a finding by the division based on the evidence
available at the completion of an investigation that there is a
reasonable basis to conclude that abuse, neglect, or dependency
occurred.”).
¶4 Although a copy of the agency’s decision was sent to
V.M.’s last known address, V.M. never received it. Instead, he
discovered it in 2017 when he underwent a background check.
He requested an administrative hearing on the matter. After an
internal review, DCFS upheld its supported finding of sexual
abuse of a child.
¶5 V.M. then initiated the present action in juvenile court,
seeking judicial review of DCFS’s decision. See generally id.
§ 63G-4-402(1)(a)(iii) (2016) (explaining that juvenile courts have
jurisdiction over all state agency actions relating to
“substantiated findings of abuse or neglect made by the Division
of Child and Family Services”); id. § 78A-6-323(1)(a) (2018)
(providing that upon the filing of a petition by DCFS “or any
interested person” informing the court “that the division has
made a supported finding that a person committed a severe type
of child abuse or neglect,” the juvenile court shall, among other
things, “make a finding of substantiated, unsubstantiated, or
without merit”).
¶6 The juvenile court held a two-day trial in September 2018.
At the beginning of the trial, DCFS announced its intention to
play the video of Child’s forensic interview, and it indicated its
understanding that V.M. would play the audio of Child’s
testimony at his criminal trial and then Child would testify in the
juvenile court. When the juvenile court asked whether that
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procedure was acceptable, V.M. indicated that it was “fine with
[him].” The trial then proceeded in that fashion.
¶7 While the audio of Child’s trial testimony played, V.M.
observed that the “quality [of the audio] is a little hard” and
offered to provide a transcript for the juvenile court and others
to use for “follow[ing] along” with the audio. V.M. then moved
to admit the transcript of Child’s trial testimony, and the court
granted the motion.
¶8 When Child testified in the juvenile court, she said that
she remembered her forensic interview and testifying at V.M.’s
criminal trial. When asked whether she remembered the
specifics of her statements during the forensic interview, Child
responded, “Not the specifics, but like vaguely. I just remember I
was just nervous, and I just told everything I knew.” When
DCFS asked Child whether she told the truth in the forensic
interview and at the criminal trial, Child responded
affirmatively. In the juvenile court proceedings, however, Child
did not independently testify about the abuse.
¶9 Child’s mother testified, as did an employee of Brigham
Young University (BYU) responsible for investigating allegations
of sexual misconduct involving students. The employee testified
that based on his investigation of V.M., who was a BYU student
at the time of the alleged abuse, there was insufficient evidence
to find that V.M. had violated BYU’s policies on sexual
misconduct and child protection.
¶10 On the second day of trial in juvenile court, V.M. asked to
telephone his next witness: the individual (Forensic Interviewer)
who conducted the forensic interview of Child. When the court
reached Forensic Interviewer by phone, she said that she was
unavailable to testify. V.M. then proposed that the court read
Forensic Interviewer’s testimony from V.M.’s criminal trial,
telling the court, “[E]verything that you need is in the
transcript.” The juvenile court admitted the transcript of that
20180906-CA 3 2020 UT App 35V.M. v. DCFS
testimony into evidence. At V.M.’s request, the court also
admitted the transcripts of his ex-wife’s testimony from his
criminal trial. Additionally, V.M. played the audio recording of a
conversation between Child and her parents. V.M. also asked for
and received the admission of a transcript of that conversation;
the transcript of Child’s aunt’s testimony at the criminal trial;
and two declarations from the aunt, which, V.M. asserted, had
bearing on Child’s “reputation for truthfulness.” Finally, V.M.
testified before the juvenile court and denied abusing Child.
¶11 After trial, the juvenile court entered a written order. It
found, based on a preponderance of the evidence, that when
Child was eleven years old and visiting the home of her sister
and V.M., V.M. sexually abused Child. 1
¶12 The juvenile court found that shortly after the abuse,
Child’s parents spoke with Child to find out what had
happened. The court found that the parents’ inquiry, which they
recorded, “was innocently done and did not taint the evidence
later presented by [Child].”
¶13 The juvenile court further found that Child’s parents also
arranged for Child to talk to a professional experienced in
working with victims of sexual abuse. Once or twice before the
interview with Forensic Interviewer, Child spoke with the
professional because Child was “uneasy about talking about
what [V.M.] had done to her.” The juvenile court found that the
purpose of these conversations was for “strength and support”
and “not for coaching [Child] on what to say” to Forensic
Interviewer.
¶14 The juvenile court also found that no one had told Child
“what to say” during the forensic interview. The adults in
1. Because the details of the abuse are not relevant to the issues
on appeal, we do not repeat them here.
20180906-CA 4 2020 UT App 35V.M. v. DCFS
Child’s life “all encouraged [Child] to tell the truth about the
incident” with V.M., and the court found that Child did in fact
tell the truth.
¶15 Indeed, the juvenile court found that Child’s testimony
at the criminal trial and in the forensic interview was “believable
and credible.” According to the court, Child was “detailed in
her description” of the abuse and she “was certain that [V.M.]
was her abuser.” Child had “no motive to accuse” V.M. To
the contrary, Child “found it difficult to comprehend that [V.M.]
would knowingly touch her inappropriately” and even
suggested that V.M. “might have been sleepwalking or
not feeling well” when he abused her. The court also found
that Child “displayed discomfort” in describing the abuse, did
“not blurt out a rehearsed story,” and did not “appear to have
been coached on what to say.”
¶16 The court further found that Forensic Interviewer “used
proper protocol” in conducting the forensic interview of Child.
In so finding, the court relied on the video of the forensic
interview and Forensic Interviewer’s testimony given at the
criminal trial. The court noted that Forensic Interviewer’s
testimony was “credible.”
¶17 The juvenile court’s written order also included
its conclusions of law. It began by explaining that DCFS had
the burden to prove, by a preponderance of the evidence, that
abuse or neglect occurred and that V.M. was substantially
responsible for that abuse or neglect. See generally Utah Code
Ann. § 62A-4a-1009(5)(a) (LexisNexis 2018). The court gave
“little to no weight” to the fact that criminal charges against
V.M. ultimately were dismissed and expunged, noting that the
preponderance of the evidence standard applicable in
the juvenile court proceeding is “lower than the beyond a
reasonable doubt evidentiary standard used in the district
court’s criminal trial.”
20180906-CA 5 2020 UT App 35V.M. v. DCFS
¶18 Similarly, the court gave “little weight” to the BYU
investigation because it was “conducted for a different purpose”
than the DCFS investigation and because the BYU investigator
considered only information provided by V.M. The court noted
that it had the “advantage” over the BYU investigator of
“hearing directly from and meeting with [Child] through her
testimony in court during the juvenile court trial.”
¶19 As a result of its findings of fact and conclusions of law,
the juvenile court substantiated DCFS’s finding against V.M. for
sexual abuse of a child. See id. § 62A-4a-101(39). The court
accordingly dismissed V.M.’s petition. V.M. appeals.
ANALYSIS
¶20 On a petition informing the court “that the division has
made a supported finding that a person committed a severe type
of child abuse or neglect as defined in Section 62A-4a-1002,” the
juvenile court shall, among other things, “make a finding of
substantiated, unsubstantiated, or without merit.” 2 Utah Code
Ann. § 78A-6-323(1)(a) (LexisNexis 2018); see also id. § 63G-4-402
(2016) (explaining that juvenile courts have jurisdiction over all
state agency actions relating to “substantiated findings of abuse
or neglect made by the Division of Child and Family Services”).
During the proceeding on such a petition, the juvenile court
2. “‘Substantiated’ or ‘substantiation’ means a judicial finding
based on a preponderance of the evidence that abuse or neglect
occurred.” Utah Code Ann. § 62A-4a-101(39) (LexisNexis 2018).
“Unsubstantiated,” in contrast, “means a judicial finding that
there is insufficient evidence to conclude that abuse or neglect
occurred.” Id. § 62A-4a-101(44). And “without merit” includes a
judicial finding “that the alleged abuse, neglect, or dependency
did not occur, or that the alleged perpetrator was not responsible
for the abuse, neglect, or dependency.” Id. § 62A-4a-101(46).
20180906-CA 6 2020 UT App 35V.M. v. DCFS
reviews DCFS’s finding “by trial de novo,” id. § 63G-4-402(1)(a),
and DCFS has “the burden of proving, by a preponderance of
the evidence, that abuse, neglect, or dependency occurred and
that the alleged perpetrator was substantially responsible for the
abuse or neglect that occurred,” id. § 62A-4a-1009(5)(a) (2018).
¶21 The preponderance of the evidence standard generally
“requires the proponent of a contested fact to demonstrate that
its existence is more likely than not.” Harken Sw. Corp. v. Board of
Oil, Gas & Mining, 920 P.2d 1176, 1182 (Utah 1996); see also
Alvarado v. Tucker, 268 P.2d 986, 988 (Utah 1954) (defining
preponderance of the evidence as the “greater weight of the
evidence” in favor of the prevailing party). This standard of
proof is lower than the beyond a reasonable doubt standard
applicable to criminal defendants. See Egbert v. Nissan N. Am.,
Inc., 2007 UT 64, ¶ 12, 167 P.3d 1058; In re L.N., 2004 UT App 120,
¶ 8 n.2, 91 P.3d 836.
¶22 On appeal, V.M. contends that the juvenile court
committed an error of law in (A) relying on the paper transcript
of Child’s testimony from his criminal trial to determine the
credibility of Child’s story and (B) relying on the transcript of
Forensic Interviewer’s trial testimony to determine that Forensic
Interviewer was credible. According to V.M., “it’s black letter
law that credibility can only be determined from live testimony”
and “[c]redibility simply cannot be determined from a cold
transcript.” Because the juvenile court used both transcripts
when deciding that Child’s allegations of abuse were
substantiated, V.M. asserts that “a single error of law—the
court’s mistaken premise that paper transcripts could be used for
credibility—infected the [juvenile court’s] entire decision.”
A
¶23 With regard to Child—whose “testimony at trial and the
[forensic] interview” the juvenile court found to be “believable
and credible”—V.M. contends that because Child “did not tell
20180906-CA 7 2020 UT App 35V.M. v. DCFS
her story” of the abuse to the juvenile court, the court
improperly relied on the transcript of her testimony from V.M.’s
criminal trial to find Child credible. V.M. argues that live
testimony was essential to the court’s credibility assessment
because the court could not assess Child’s credibility without
observing her demeanor. We reject V.M.’s argument both
because the juvenile court relied on more than just the transcript
of Child’s trial testimony and because we do not agree that
paper transcripts can never be used in evaluating a witness’s
credibility.
¶24 First, to aid its assessment of Child’s credibility, the
juvenile court was able to observe Child’s demeanor in a handful
of ways. Specifically, the court listened to the audio recording of
Child’s trial testimony and it relied on the transcript—at V.M.’s
urging—to follow along. By listening to the audio recording, the
court could hear Child’s tone of voice and how she responded to
questioning, both of which could factor into its assessment of her
credibility. 3 The court also watched Child’s forensic interview,
and by doing so, it could observe Child’s outward demeanor as
she described the abuse. Finally, Child testified before the
juvenile court, and although she did not independently testify
about the abuse during that testimony, the juvenile court could
still take stock of Child’s general characteristics as a witness and
compare them with her forensic interview and the transcript of
her testimony during the criminal trial. Cf. In re M.A.V., 736 P.2d
1031, 1033 n.1 (Utah Ct. App. 1987) (noting that where a judge
had “heard [a witness’s deposition] testimony ‘live’” and “had
seen and heard from” the witness at two other hearings, the
“court accordingly had more opportunity to take the measure of
[the witness] and evaluate his credibility, demeanor, and
3. V.M. also played for the court an audio recording of Child
discussing the abuse with her parents.
20180906-CA 8 2020 UT App 35V.M. v. DCFS
attitude than would ordinarily occur where a deposition
transcript had to be relied upon”).
¶25 Because the court had before it the video of Child’s
forensic interview as well as the audio and transcript of Child’s
testimony at the criminal trial, a recording of her conversation
with her parents, and Child’s in-person testimony, 4 we reject the
premise of V.M.’s argument: that the court relied solely on “a
cold transcript” in crediting her allegations of abuse.
¶26 Second, we agree with V.M. that the “‘importance of live
testimony to a credibility determination is well recognized and
longstanding.’” (Quoting Oshodi v. Holder, 729 F.3d 883, 891 (9th
Cir. 2013).) It is one of the reasons “credibility determinations are
within the province of the district court judge,” who is best
positioned to make factual findings based on oral testimony
“due to his or her opportunity to view the witnesses firsthand, to
assess their demeanor, and to consider their testimonies in the
context of the proceedings as a whole.” Meyer v. Aposhian, 2016
UT App 47, ¶ 13, 369 P.3d 1284 (cleaned up); see also Utah R. Civ.
P. 52(a)(4) (“Findings of fact, whether based on oral or other
evidence, must not be set aside unless clearly erroneous, and the
reviewing court must give due regard to the trial court’s
opportunity to judge the credibility of the witnesses.”); Henshaw
v. Henshaw, 2012 UT App 56, ¶¶ 11–12, 271 P.3d 837 (explaining
that trial courts are “better equipped to make credibility
determinations based on conflicting oral evidence than an
appellate court that has access only to the cold record”).
¶27 Yet V.M. has not persuaded us that black letter law
prohibits fact-finders in all circumstances from considering
4. V.M. does not challenge the admission of any evidence,
including the transcripts or the video. Nor does he complain that
the court listened, at his urging, to the audio recording.
20180906-CA 9 2020 UT App 35V.M. v. DCFS
transcripts in making credibility determinations. 5 After all,
“factors other than demeanor and inflection go into the decision
whether or not to believe a witness.” Anderson v. City of Bessemer
City, 470 U.S. 564, 575 (1985). “Documents or objective evidence
may contradict the witness’ story; or the story itself may be so
internally inconsistent or implausible on its face that a
reasonable factfinder would not credit it.” Id.; see also Jackson v.
United States, 353 F.2d 862, 866 (D.C. Cir. 1965) (“Credibility
involves more than demeanor. It apprehends the overall
evaluation of testimony in light of its rationality or internal
consistency and the manner in which it hangs together with
other evidence.” (cleaned up)); cf. Smith v. Freeman, 902 N.E.2d
1069, 1075 (Ill. 2009) (“It is a common practice for a judge, and
even a jury, to make credibility determinations based on
5. To the contrary, Utah law permits the use of transcripts at trial
in some scenarios. For instance, the Utah Rules of Civil
Procedure allow, under certain conditions, the use of depositions
in court proceedings “for any purpose.” Utah R. Civ. P. 32(a)(2),
(3); see also id. R. 32(e) (“Except as otherwise directed by the
court, a party offering deposition testimony pursuant to this rule
may offer it in stenographic or nonstenographic form, but, if in
nonstenographic form, the party shall also provide the court
with a transcript of the portions so offered.”). And the Utah
Rules of Evidence allow, under certain conditions when a
witness is unavailable, the admission of testimony that “was
given as a witness at a trial, hearing, or lawful deposition.” Utah
R. Evid. 804(a), (b)(1) (setting forth when former testimony is not
excluded by the rule against hearsay). Neither one of these rules
suggests that credibility determinations from such non-live
testimony are impossible. Indeed, when V.M. advised the court
that he would be seeking to admit transcripts of the criminal trial
testimony of his ex-wife and Child’s aunt due to their
unavailability, the court noted its ability to assess their
credibility through means other than observing their demeanor.
20180906-CA 10 2020 UT App 35V.M. v. DCFS
transcripts of testimony.”). And as we regularly instruct our
juries, factors such as personal interest, bias, knowledge,
memory, consistency, and reasonableness can aid a factfinder in
the assessment of a witness’s credibility. See Model Utah Jury
Instructions 2d CV121 (2018); see also id. CR207.
¶28 Thus, while we readily agree that viewing a witness
firsthand is generally a superior way to evaluate his or her
credibility, and while we do not question the value of live
testimony, we cannot say that fact-finders are necessarily barred
from using a cold transcript to evaluate a witness’s credibility in
all circumstances. We therefore reject the premise of V.M.’s
assertion of error on appeal—that paper transcripts could not be
used to judge credibility as a matter of law. And particularly
here, where V.M. invited the court to consider Child’s trial
testimony, 6 we cannot conclude that the court committed legal
error by considering the transcript along with the other evidence
to determine that Child’s allegations were credible.
B
¶29 V.M. likewise assails the juvenile court’s reliance on the
transcript of Forensic Interviewer’s testimony at his criminal
trial. As compared to Child, the juvenile court had less
opportunity to view Forensic Interviewer’s demeanor. But it had
the transcript of her testimony from the criminal trial, it had the
opportunity to view her demeanor by watching the forensic
interview she conducted, and it could compare the interview
with Forensic Interviewer’s testimony about it. Thus, although
6. Given that a jury had acquitted V.M. based on the testimony
that Child gave at the criminal trial, V.M. may have, for strategic
reasons, preferred that the juvenile court consider Child’s trial
testimony rather than see Child testify to the details of the abuse
in person.
20180906-CA 11 2020 UT App 35V.M. v. DCFS
the court depended largely on the transcript to assess Forensic
Interviewer’s credibility, its assessment was not strictly based on
the transcript alone.
¶30 Still, even if the juvenile court had relied only on the
transcript to judge Forensic Interviewer’s credibility, that is
exactly what V.M. invited the court to do. An alleged error is
invited when an appellant encourages the court to take the
action he later challenges on appeal, and we will not reverse a
court’s decision under such circumstances. See State v. McNeil,
2016 UT 3, ¶ 17, 365 P.3d 699; Pratt v. Nelson, 2007 UT 41, ¶ 17,
164 P.3d 366. When Forensic Interviewer was unable to testify,
V.M. suggested that the court read her testimony, including
cross-examination, from V.M.’s criminal trial. Though V.M.
claims that he “never affirmatively invited the court to use paper
transcripts for credibility determinations,” he told the court,
without limitation, that “everything that [it] need[s] is in the
transcript.” V.M. has not explained what he expected the court
to do with Forensic Interviewer’s testimony if not assess her
credibility on some level. By introducing the transcript and
inviting the court to consider her testimony in evaluating the
case, V.M. affirmatively and necessarily led the court to assess
Forensic Interviewer’s credibility without personally observing
her demeanor. We therefore cannot fault the juvenile court for its
use of Forensic Interviewer’s transcript.
¶31 Further, even if V.M. did not invite this alleged error, he
has not shown he was harmed by the court’s assessment of
Forensic Interviewer’s credibility in the absence of in-person
testimony. See Utah R. Civ. P. 61 (“The court at every stage of the
proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”); see
also Utah R. Juv. P. 2(c) (“In substantiation proceedings, the
procedure set forth in U.C.A. 63G-4-402(2) shall apply.”); Utah
Code Ann. § 63G-4-402(2)(b) (LexisNexis 2016) (explaining that
substantiation proceedings are “governed by the Utah Rules of
20180906-CA 12 2020 UT App 35V.M. v. DCFS
Civil Procedure”). V.M. states that Forensic Interviewer’s
“credibility was never at issue in this case,” and he has not
persuasively argued that had the juvenile court observed
Forensic Interviewer’s demeanor and live testimony firsthand,
its assessment of her credibility and the result of this proceeding
would have been any different.
CONCLUSION
¶32 V.M. has not shown legal error in the juvenile court’s
evaluation of the evidence in this case. Accordingly, we affirm
its substantiation of DCFS’s finding against V.M. for sexual
abuse of a child.
20180906-CA 13 2020 UT App 35