In re A.S... ( 2024 )

2024 UT App 52THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.S. AND J.S.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
V.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20230338-CA
Filed April 11, 2024
Third District Juvenile Court, Summit Department
The Honorable Elizabeth M. Knight
No. 1214949
Julie J. Nelson and Alexandra Mareschal,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and
John M. Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.
TENNEY, Judge:
¶1 On the basis of a set of stipulated facts, the juvenile court
adjudicated A.S. and J.S. as being neglected as to V.S. (Mother).
Mother now challenges that adjudication on appeal, arguing that
the stipulated facts did not support the neglect adjudication. For
the reasons set forth below, we affirm.
In re A.S.
BACKGROUND
Initial Proceedings
¶2 This is a child welfare case concerning two children: A.S.,
who was 16 years old at the time of this appeal, and J.S., who was
9 years old. A.S. and J.S. (collectively, the Children) are the
biological children of Mother and J.S. (Father). 1 Mother and
Father divorced in March 2018, and they’ve had an “ongoing” and
“contentious” custody dispute in district court ever since.
¶3 In August 2022, the Department of Child and Family
Services (DCFS) filed a petition for protective supervision
services, alleging that the Children were “abused, neglected, or
dependent children” pursuant to Utah Code section 80-1-102. The
petition alleged a range of conduct to support this—most of it by
Mother, though with one allegation relating to Father. This appeal
is brought by Mother, so we’ll focus on the allegations,
proceedings, and rulings relating to her. 2
¶4 On March 10, 2023, DCFS filed an amended petition
relating to Mother, and the amended petition realleged some (but
not all) of the allegations from the original petition. Based on the
amended set of allegations, DCFS again alleged that the Children
were abused, neglected, or dependent. That same day, the
1. Mother and Father also have another child who was not a minor
during the proceedings in question.
2. For background purposes only, we note that the juvenile court
held a “merged pretrial, adjudication, and partial disposition
hearing” relating to the one allegation made against Father. At the
close of that hearing, the court concluded that the Children were
“dependent children . . . in that they were without proper care
through no fault of [Father].” Father was ordered to comply with
protective supervision services through DCFS as a result. Father
has not appealed that ruling.
20230338-CA 2 2024 UT App 52In re A.S.
juvenile court held a “merged pretrial and adjudication hearing”
relating to Mother, and Mother was represented by counsel at that
hearing. Mother acknowledged under oath that she understood
that she had a right to a trial, that DCFS bore the burden of
proving the allegations against her by clear and convincing
evidence, and that she had the right to present evidence in her
defense. Mother then waived her right to a trial, affirmatively
admitted to a specified list of the allegations from the amended
petition, and, pursuant to rule 34(e) of the Utah Rules of Juvenile
Procedure, “neither admitted nor denied” certain other specified
allegations from the amended petition.
¶5 On the basis of Mother’s affirmative admissions and the
allegations deemed to be true by virtue of her rule 34(e) response,
the juvenile court later issued a ruling that found a list of facts to
be “true by clear and convincing evidence.” We now recount
those facts here, with any quotations being drawn directly from
the court’s precise verbiage. 3
The Stipulated Facts
¶6 Since filing for divorce, Mother has sought four protective
orders against Father: one in 2016, one in 2020, and two in 2022.
3 . The parties in this case have all referred to these facts as
“stipulated facts.” As indicated, however, Mother affirmatively
admitted to certain facts, but for others, she invoked rule 34(e) of
the Utah Rules of Juvenile Procedure and neither admitted nor
denied them. Under that rule, when a party “declin[es] to admit
or deny the allegations,” the “[a]llegations not specifically denied
. . . shall be deemed true.” Id. Thus, in a technical sense, the facts
the court relied on pursuant to rule 34(e) might not actually be
“stipulated” (because Mother didn’t affirmatively agree to all of
them), but by force of law, they might as well be. For ease of
reference, we’ll follow the lead of the parties and refer to the
court’s findings collectively as “stipulated facts.”
20230338-CA 3 2024 UT App 52In re A.S.
Also, Child Protective Services (CPS) has received twelve reports
accusing Father of neglect, physical abuse, sexual abuse, domestic
violence-related child abuse, and other miscellaneous complaints
which were not child welfare related. “All but one of these reports
were either unaccepted because they did not meet CPS minimum
requirements for investigation or unsupported because there was
inadequate evidence to support the allegation after the matter was
investigated.” Only two of the twelve reports affirmatively
identified Mother as the person who made the report, and though
a touch unclear, a third suggested that she was likely the reporter.
¶7 Sometime in 2020, certain pictures were taken of J.S. at
Wasatch Pediatrics. These pictures showed “mild inflammation”
of J.S.’s “inner labia,” “mild peri-anal erythema,” and a
“superficial linear abrasion in the crease of [her] right thigh and
perineum.” In August 2020 and again in April 2022, Mother
shared medical records with DCFS that included those
photographs, and she did so in both instances “as part of an abuse
investigation.” In April 2022, Mother “forwarded all
communications with DCFS to the Ombudsmen’s office at [its]
request,” again including these photographs.
¶8 In June 2022, Mother also “began documenting pictures of
[J.S.’s] stool under the medical advice of” a gastroenterology
specialist (Specialist) who was treating J.S. “for a chronic
gastrointestinal issue.”
¶9 On June 28, 2022, Mother took photographs of “bruises on
[J.S.’s] knee, leg, and abdomen.” One of these photographs was
“taken in the bathtub when [J.S.] was naked,” but J.S.’s “genitalia
were not visible in the picture,” and the other photographs taken
on this occasion “were taken when [J.S.] was clothed.”
¶10 Based on Mother’s concerns about these bruises and about
“additional vaginal redness,” Mother took J.S. to the Redstone
Clinic on June 30, 2022. A medical professional at the clinic “took
pictures of the bruises and vaginal and anal redness” and then
20230338-CA 4 2024 UT App 52In re A.S.
instructed Mother to take J.S. to the Emergency Department at
Primary Children’s Hospital. In an effort to avoid a further genital
exam, a doctor at the hospital accessed and viewed the
photographs that had been taken at the Redstone Clinic. While at
the hospital, Mother also spoke to the Safe and Healthy Families
Clinic over the phone. Mother was advised to call the clinic back
during normal clinic hours.
¶11 The next day, a doctor (Doctor) at the Safe and Healthy
Families Clinic “indicated that the pattern of bruising [was]
unusual and that in the absence of a history of accidental injury,
inflicted injury, or physical abuse, the bruises would be a
reasonable concern,” but Doctor further opined “that sexual
abuse of a child is most often recognized when a child makes a
disclosure.” Doctor also said that “constipation . . . is a common
manifestation of childhood stress and only rarely associated with
sexual abuse.” As to the vaginal redness in question, Doctor said
that it was “not an indicator of sexual contact,” “particularly with
swimming and warm weather.” Doctor saw “no reason to have
specific concern for sexual abuse in this case,” and Doctor did not
believe that J.S.’s symptoms met “the threshold for suspected
abuse or neglect.” Doctor therefore “did not make a report to
either DCFS or law enforcement,” and she saw “no need for
follow up in the Safe and Healthy Families Clinic based on” the
information that had been provided to her.
¶12 That same day, Mother spoke with an officer from the
Summit County Sheriff’s Office, again “reporting the bruises and
vaginal and anal redness.” When the officer offered to come to the
home and take “pictures of the bruising,” Mother declined.
Instead, she sent him the pictures that she had taken of the
bruising on J.S.’s knee, leg, and abdomen.
¶13 Sometime later that day, Mother called the Safe and
Healthy Families Clinic. A nurse (Nurse) received a page
regarding the call. Before calling Mother back, Nurse contacted
20230338-CA 5 2024 UT App 52In re A.S.
DCFS and was informed “that there had been several calls over
the last few years, but all of them were closed unsupported.”
DCFS also informed Nurse that Mother had texted photos to
DCFS and a detective. After receiving this information, Nurse
called Mother. During that conversation, Mother “requested that
Safe and Healthy Families conduct a forensic examination and
take photographs of [J.S.’s] genitals due to a request from law
enforcement.” The juvenile court’s subsequent finding recounts
the following about what happened next:
According to [Nurse], the mother told her that she
had taken photographs of [J.S.’s] genitals before and
after she went to see her father on the advice of a
pelvic floor physical therapist. [Nurse] asked the
mother three times for the name of the physician
that advised her to take photographs and the
mother refused to provide it. [Nurse] states that the
mother eventually reported that she was
documenting what [J.S.’s] genitals looked like
before and after parent-time with her father. The
mother indicates that she felt pressured and
interrogated and was unable to provide the name of
[Specialist] to [Nurse]. Mother states that she had
trouble communicating with [Nurse] and was
unable to explain everything.
The court’s findings also note that “[n]o one has received” the
“before and after” photographs described in the conversation
Mother had with Nurse.
¶14 Doctor later shared her professional opinion that “she
would have substantial concerns about repeated photography” of
a child’s genitals. In Doctor’s view, children are “told repeatedly
that these are private parts of our body,” but because children
would understand that photographs are “usually show[n] to all
sorts of people,” repeated photographing of genitals would
20230338-CA 6 2024 UT App 52In re A.S.
undermine this messaging. Doctor also expressed her view that
subjecting a child to “multiple forensic exams” would improperly
“normalize[] certain amounts of touching and manipulation of the
genital region.”
¶15 With respect to Mother, “[m]ultiple police reports and
DCFS records indicate that [Mother] may be difficult to
understand.” It is “documented” that Mother has “POTS (post
orthostatic tachycardia syndrome) which causes forgetfulness
and trouble focusing (brain fog) making it difficult for [Mother] to
think and speak clearly under stress.” 4
The Neglect Adjudication
¶16 Based on the stipulated facts, the juvenile court found that
the Children “are neglected as to [Mother], as it is lack of proper
parental care to subject a child to having her genitals
photographed before and after visits with [Father], as well as
sending other photographs to various agencies.” The juvenile
court then ordered that “[c]ustody and guardianship shall
continue with the parents with protective supervision services
with DCFS,” and Mother was also ordered to “comply with the
requirements of the DCFS service plan.” Mother now appeals that
ruling.
ISSUES AND STANDARDS OF REVIEW
¶17 The juvenile court ruled that Mother neglected the
Children by (i) taking “before and after” photographs of J.S.’s
genitals, as well as (ii) “sending other photographs” to various
4. Though the findings at issue don’t specifically draw the link,
DCFS’s original petition in this case alleged that Mother has a
“traumatic brain injury because a car hit her in December 2020,”
and the juvenile court also included this finding in an order that
it entered with respect to Father elsewhere in this litigation.
20230338-CA 7 2024 UT App 52In re A.S.
agencies. As explained below, we need consider only the court’s
conclusions relating to the “before and after” photographs. With
respect to those, Mother raises two challenges: first, Mother
challenges the finding that she actually took the photographs; and
second, Mother argues that even if she did, this did not constitute
neglect. Although Mother’s first challenge is to a factual finding,
that finding was based on stipulated facts. When “the facts are
stipulated, we review the conclusions drawn by the juvenile court
for correctness.” In re K.T., 2023 UT App 5, ¶ 7, 524 P.3d 1003(quotation simplified), cert. denied, 528 P.3d 327 (Utah 2023). We
also review the court’s interpretation of the neglect statute for
correctness. See In re M.S., 2023 UT App 74, ¶ 23, 533 P.3d 859(holding that the determination of “whether the statutory criteria
for neglect have been met” is “primarily a law-like endeavor” that
is accordingly reviewed for correctness) (quotation simplified).
ANALYSIS
¶18 The juvenile court concluded the Children are neglected as
to Mother because “it is a lack of proper parental care to subject a
child to having her genitals photographed before and after visits
with [Father], as well as sending other photographs to various
agencies.” Because we determine that the “before and after”
photographs alone are enough to support the neglect
adjudication, we need not consider whether Mother also
neglected the Children by sending the photographs to “various
agencies.” 5
5. The court found that Mother took photographs of J.S.’s genitals,
but there’s no finding that she took similar photographs of A.S.’s
genitals. Even so, the court found that both the Children are
neglected. On appeal, Mother has not argued that this potential
distinction provides a basis for reversing the adjudication as to
A.S., and we therefore do not consider whether this is so.
20230338-CA 8 2024 UT App 52In re A.S.
¶19 Mother makes two arguments relating to the “before and
after” photographs: first, she argues that there was not clear and
convincing evidence that she actually took them; and second, she
argues that even if she did take the photographs, this did not
constitute neglect.
I. There Was Sufficient Evidence to Support the Court’s
Conclusion that Mother Took These Photographs.
¶20 Mother first argues that there was not “clear and
convincing evidence that Mother took photos of [J.S.’s] genitals
before and after visits with Father.” We disagree. 6
¶21 At an adjudication trial, the juvenile court must
determine whether “the allegations contained in the abuse,
neglect, or dependency petition are true” by “clear and
6. The juvenile court did not explicitly find that Mother personally
took these photographs. Rather, in this portion of the ruling, the
court stated that it is a “lack of proper parental care to subject a
child to having her genitals photographed before and after visits
with [Father].” “Unstated findings can be implied,” however, “if
it is reasonable to assume that the trial court actually considered
the controverted evidence and necessarily made a finding to
resolve the controversy, but simply failed to record the factual
determination it made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379
P.3d 882 (quotation simplified). Here, we conclude that the
juvenile court did make an unstated finding that Mother took
these photographs. As discussed in more detail below, Nurse
claimed that Mother admitted to taking them. And of note, no one
has claimed that anyone else took these particular photographs.
Thus, when the court ruled that Mother had “subject[ed] a child
to having her genitals photographed before and after visits with
[Father],” the clear (and, indeed, only) implication that can be
reasonably drawn from this record and the court’s ruling is that
the court implicitly found that Mother took these photographs.
20230338-CA 9 2024 UT App 52In re A.S.
convincing evidence.” Utah Code § 80-3-402(1). “Clear and
convincing evidence is an intermediate standard of proof that
implies something more than the usual requirement” of a
preponderance of the evidence and “something less than proof
beyond a reasonable doubt.” In re K.K., 2023 UT App 13, ¶ 22, 525
P.3d 519 (quotation simplified), cert. denied, 531 P.3d 731 (Utah
2023). As noted, because the juvenile court made this finding on
the basis of stipulated facts, we afford no deference to its
conclusion that DCFS had satisfied the clear and convincing
evidence standard. But even so, we conclude that this standard
was satisfied.
¶22 The clearest indication that Mother took these photographs
is the stipulated finding that Mother told Nurse that she took
these photographs. The law has of course long recognized that
admissions from a party can carry substantial evidentiary weight.
As a result, once Mother told Nurse that she took these
photographs, the court had a solid evidentiary basis for
concluding that she had indeed taken them.
¶23 In a footnote of her brief, Mother nevertheless argues that
the court should not have credited this admission. As an initial
matter, Mother points out that “[n]o one has received” these
particular photographs. And this seems to be true. But again,
Mother told Nurse that she had taken them. From this, even
without the actual photographs, the juvenile court could take
Mother at her word and find that she had taken them.
¶24 More significantly, Mother suggests that her seeming
admission was actually the product of a misunderstanding. As
noted, the stipulated facts include that “Mother state[d] that she
had trouble communicating with [Nurse] and was unable to
explain everything.” They also include that “[m]ultiple police
reports and DCFS records indicate that [Mother] may be difficult
to understand,” and that it is “documented” that Mother has
“POTS (post orthostatic tachycardia syndrome),” a condition that
20230338-CA 10 2024 UT App 52In re A.S.
“causes forgetfulness and trouble focusing (brain fog) making it
difficult for [Mother] to think and speak clearly under stress.” But
even accounting for these facts, the juvenile court could still take
Mother’s admissions to Nurse at face value. This is so for several
reasons.
¶25 The first is the specificity of Nurse’s account. Nurse didn’t
say that Mother had made a passing or unclear comment to this
effect. Rather, Nurse recalled Mother telling her that “she had
taken photographs of [J.S.’s] genitals before and after she went to
see [Father] on the advice of a pelvic floor physical therapist.” On
its own, the specificity of Nurse’s account belies the suggestion
that Nurse had simply misunderstood Mother.
¶26 Second, Mother seems to have reiterated her initial
admission as the conversation with Nurse continued. According
to Nurse, after Mother made her initial comment about taking
these photographs, Nurse “asked [Mother] three times for the
name of the physician” who had recommended taking them, but
Mother “refused to provide it.” If Mother had not meant to say
that she was taking “before and after” photographs of J.S.’s
genitals (or, instead, if she hadn’t said it at all and Nurse had
misheard her), Nurse’s repeated questioning about which doctor
had asked for the photographs would have given Mother the
opportunity to clarify that she had misspoken (or that she had
been misunderstood) and that she hadn’t actually taken these
photographs. But this wasn’t Mother’s response.
¶27 Instead, Nurse claimed that as the conversation continued,
Mother “eventually reported that she was documenting what
[J.S.’s] genitals looked like before and after parent-time with
[Father].” Nurse’s statement that Mother “eventually” told Nurse
that she was “documenting” the condition of her daughter’s
genitals indicates that Mother reiterated that she had indeed taken
them. And the fact that Mother then added the detail that she was
“documenting” the “before and after” look of her daughter’s
20230338-CA 11 2024 UT App 52In re A.S.
genitals functioned as her explanation for why she thought this
was appropriate to do.
¶28 Finally, there’s no place in either the court’s ruling or even
in the record as a whole where Mother has ever denied taking
these photographs. Even when confronted with a specific
allegation from DCFS about an instance in which a witness said
that Mother admitted to taking them, Mother chose to respond
with a non-admission/non-denial pursuant to rule 34(e).
¶29 Thus, the evidence before the juvenile court was that
Mother had told Nurse that she had taken these photographs, that
even with the benefits of further conversation and even
subsequent litigation, Mother never retracted that admission, and
that Mother had instead chosen to justify taking them. In light of
all this, we see no basis for overturning the court’s implicit finding
that Mother personally took these photographs.
II. The “Before and After” Photographs Were Enough to
Establish Neglect.
¶30 “Neglect is statutorily defined,” and it “can be proved in
any one of several ways.” In re G.H., 2023 UT App 132, ¶ 28, 540
P.3d 631; see also Utah Code § 80-1-102(58)(a). The juvenile court
here concluded that Mother’s actions constituted neglect because
“it is a lack of proper parental care to subject a child to having her
genitals photographed before and after visits with [Father].” This
was an apparent reference to Utah Code section 80-1-
102(58)(a)(ii), which defines neglect as “action or inaction causing
. . . lack of proper parental care of a child by reason of the fault or
habits of the parent.”
¶31 In her brief, Mother points out that the legislature has not
further defined the phrase “lack of proper parental care.”
Drawing on various textual, structural, and even constitutional
sources, Mother now asks us to take the opportunity to fill in the
gap and provide further definition of what this phrase means.
20230338-CA 12 2024 UT App 52In re A.S.
While we need not create a definitive one-size-fits all definition,
we do agree with Mother on a few broad points that inform our
analysis below.
¶32 First, the word “proper” is commonly understood to refer
to something that is “marked by suitability, rightness, or
appropriateness.” 7 Second and similarly, we think the phrase
“proper parental care” would naturally incorporate notions of
reasonableness. (After all, conduct that’s appropriate would likely
be reasonable, and the converse would also be true.) In this vein,
we note that Black’s Law Dictionary links the term “proper care”
to notions of “reasonable care” that are commonly used in
negligence cases, and Black’s defines “reasonable care” as “the
degree of care that a prudent and competent person engaged in
the same line of business or endeavor would exercise under
similar circumstances.” Care, Black’s Law Dictionary (11th ed.
2019). Third, because the statutory phrase at issue turns on
notions of “proper parental care,” the relevant inquiry is
appropriately focused on what would be proper (with all that the
word entails) “under similar circumstances”—meaning, in the
particular parenting circumstance at issue. And finally, we agree
with Mother that, in light of the fundamental and constitutional
rights that are associated with parenting, the neglect standard
should not be applied to conduct that falls within an ordinary
range of permissible parenting.
¶33 With those principles in mind, we think the contours of this
phrase can then capably be fleshed out in the same way that most
other phrases from constitutions or statutes are fleshed out—
through the ordinary process of common law development. And
while there doesn’t appear to be a Utah case that has
comprehensively defined this phrase, the parameters of what
7 . Proper, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/proper [https://perma.cc/YGY2-MJXP].
20230338-CA 13 2024 UT App 52In re A.S.
constitutes neglect have been explored and applied in a number
of cases. Among others, we note the following:
• In In re G.H., we held that the neglect standard was
satisfied where the mother “did not attend to the children’s
basic health and welfare needs, such as feeding and
bathing them, changing their diapers regularly, and
obtaining medical care for them when they were sick,”
where the mother “did not behave in a manner consistent
with parenting a child,” and where the mother “would
refuse to care for them when asked by the family members
with whom she was living.” 2023 UT App 132, ¶¶ 29–31,
540 P.3d 631 (quotation simplified).
• In In re K.K., we held that the neglect standard was satisfied
based on the mother’s “inaction in failing to protect the
children from exposure to domestic violence and
prioritizing her toxic relationship” with the father. 2023 UT
App 14, ¶ 12, 525 P.3d 526 (quotation simplified).
• In In re K.D.N., we upheld a neglect determination that was
based on “the lack of food,” the “profound lack of
parenting skills,” and the presence of “violence” and
“chaos” within the home. 2013 UT App 298, ¶ 11, 318 P.3d
768 (quotation simplified).
• In In re D.T., we held that the neglect standard was satisfied
based on the mother’s “admitted relapse” on illegal drugs,
“her frequent absences, inconsistent housing, lack of
stability, and other behaviors.” 2013 UT App 169, ¶ 5, 309
P.3d 248 (quotation simplified).
• And in In re N.M., we held that “sufficient evidence
support[ed] the juvenile court’s determination
that the father “neglected [his child] by engaging in
domestic violence.” 2013 UT App 151, ¶ 3, 305 P.3d 194.
20230338-CA 14 2024 UT App 52In re A.S.
In these and other cases, we held that the neglect standard was
satisfied, not because of a failure of best-practices parenting, but
instead because the behavior in question fell outside acceptable
norms of proper parenting. To again use the phrase that we
recently used in In re G.H., such cases involve a parent who simply
“did not behave in a manner consistent with parenting a child.”
2023 UT App 132, ¶ 30.
¶34 So viewed, we agree with the juvenile court’s conclusion
here that Mother’s behavior likewise reflected a “lack of proper
parental care.” Utah Code § 80-1-102(58)(a)(ii). Again, while DCFS
alleged that Mother had neglected the Children based on a
number of things (including her excessive reporting of abuse, as
well as her decision to submit the photographs taken by doctors
to law enforcement and medical professionals), the conduct at
issue in the court’s ruling was Mother taking photographs of a
minor’s genitals “before and after parent-time” with Father, as
well as Mother’s explanation that she was doing so to
“document[] what” J.S.’s “genitals looked like before and after
parent-time with” him.
¶35 The juvenile court had before it a statement from Doctor
that she had “substantial concerns” about the “repeated
photography” of a child’s genitals. Doctor opined that such
behavior can be damaging to a child, in part, because it can
undermine the messaging that children receive about the privacy
relating to their genitals. Doctor’s concerns seem well-founded.
¶36 Moreover, we also note that the photographs in question
here were taken by a parent who was in the midst of an “ongoing”
and “contentious” custody dispute. By taking photographs of her
young child’s genitals “before and after” that child’s visits with
her father, Mother wasn’t just potentially desensitizing her
daughter to photography of her genitals, but Mother was also
communicating to her daughter that she should be concerned that
Father was sexually abusing her or at least was likely to do so.
20230338-CA 15 2024 UT App 52In re A.S.
This, too, carries obvious potential for harm, both to the child and
to her relationship with Father.
¶37 We recognize, of course, that contextual questions such as
the ones presented here can and often do turn on even small
factual differences. And to be very clear, we don’t mean to suggest
that a parent (even one who is involved in a contentious custody
dispute) must sit idly by if the parent has a good-faith basis for
suspecting that a child is being abused. As illustrated by our
survey of the relevant cases above, children should always be
protected, and on that front, their parents are indeed the first line
of defense.
¶38 If a parent has suspicions that a child is being sexually
abused, the parent should of course do something to protect the
child, and as indicated, a failure to do anything may well
constitute neglect in its own right. Among other things, a parent
might respond by reaching out to medical, law enforcement, or
other trained professionals, and such professionals may well be
involved in documenting any observed abuse. But unlike some of
the other photographs at issue in this case, the particular
photographs in question here weren’t taken by professionals or in
response to their recommendation, nor were they taken by
Mother to document visible genital trauma. 8 Rather, according to
the explanation that Mother “eventually” gave to Nurse during
their conversation, Mother was trying to “document[] what [J.S.’s]
genitals looked like before and after parent-time with her father.”
It was on this basis that the juvenile court concluded that the
neglect standard had been satisfied.
8. In contrast, the juvenile court noted that the photographs taken
in 2020 showed “inflammation” of the labia and a small
“abrasion” near the groin, while the 2022 photographs showed
“vaginal and anal redness.”
20230338-CA 16 2024 UT App 52In re A.S.
¶39 We have no need to determine whether it would ever be
within the bounds of “proper parental care” for a parent to take
photographs of a young child’s genitals without first involving
trained professionals. And we note here too that, in addition to
the suspected abuse scenario, there may be situations where such
photography is in response to something more benign (such as
diaper rash on an infant), and such contextual differences would
likely place such photographs on different analytical footing. For
purposes of this appeal, however, we simply conclude that it falls
outside the realm of “proper parental care” for a parent to take
photographs of a child’s genitals “before and after” visits with the
other parent for “documentation” purposes. On this basis, we
affirm the juvenile court’s conclusion that Mother neglected the
Children. 9
9. Mother also makes some allusion to the stipulated facts relating
to certain photographs that she was taking on the advice of
Specialist. It’s unclear from the briefing whether Mother means to
assert this as something of an “advice of doctor” defense to this
neglect allegation. See Utah Code § 80-1-102(58)(b)(ii) (stating that
neglect “does not include . . . a health care decision made for a
child by the child’s parent or guardian, unless the state or other
party to a proceeding shows, by clear and convincing evidence,
that the health care decision is not reasonable and informed”). In
any event, those stipulated findings reflect that Specialist worked
at a gastroenterology clinic, that Specialist was treating J.S. for “a
chronic gastrointestinal issue,” and that Mother had been
“documenting pictures of [J.S.’s] stool” in conjunction with that
treatment. Mother has not specifically asserted that, in
conjunction with this gastroenterology treatment, Specialist also
told her to take photographs of her daughter’s genitals, much less
that Specialist instructed her to “document[] what [J.S.’s] genitals
looked like before and after parent-time with [Father].” We
accordingly see no basis from this record to overturn the neglect
finding on this potential ground.
20230338-CA 17 2024 UT App 52In re A.S.
CONCLUSION
¶40 We agree with the juvenile court’s conclusion that, without
something more, it constitutes a “lack of proper parental care,”
Utah Code § 80-1-102(58)(a)(ii), for a parent to take photographs
of a child’s genitals “before and after” visits with the other parent
for “documentation” purposes. We affirm the adjudication of the
juvenile court on that basis.
20230338-CA 18 2024 UT App 52