In re A.B.

2021 UT App 91THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.B.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
K.T.,
Appellant,
v.
S.T. AND T.T.,
Appellees.
Opinion
No. 20200342-CA
Filed August 26, 2021
Third District Juvenile Court, Salt Lake Department
The Honorable Julie V. Lund
No. 1174795
Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant
Sheleigh A. Harding, Attorney for Appellee
Martha Pierce, Guardian ad Litem
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 Each summer for nearly a decade, Annabelle1—with the
permission of her mother, K.T. (Mother)—went to visit and stay
with welcoming relatives. Eventually, and on agreement,
summer turned into a whole year. When the hosting family then
1. A pseudonym.
In re A.B.
sought custody, the juvenile court characterized the situation as
“neglect” and granted the request. Mother now appeals, and we
reverse.
BACKGROUND
¶2 Like many parents returning to work, Mother utilized the
assistance of family and friends to help care for Annabelle after
giving birth to her in 2008. But as the years went by, Mother’s
use of family and friends to help with childcare went beyond
mere “babysitting.” As Annabelle grew older, Mother
established a pattern of leaving Annabelle with a welcoming
relative every summer; often, Annabelle spent the summer at the
home of Mother’s aunt, S.T. (Aunt), and uncle, T.T. (Uncle).
Finally, in 2018, Mother—who at the time was struggling with
parenting Annabelle—agreed to allow Annabelle to spend not
just the summer but the entire 2018–2019 school year with Aunt
and Uncle in Utah.
¶3 In the years leading up to Annabelle’s yearlong residence
with Aunt and Uncle, Mother and Annabelle had moved to New
Mexico. There, Annabelle demonstrated behavioral problems
including throwing chairs, hitting, screaming, kicking,
“‘thrashing out,’ and expressing rage and hatred toward
Mother.” Annabelle even “claimed to want to die,” a sentiment
that, purportedly based on the advice of Annabelle’s counselor,
Mother thought “was not abnormal” for a person of Annabelle’s
age. Eventually, this crisis led Mother to reach out to Aunt and
tell her, “I’m depressed, my daughter is depressed. All we do is
cry some days.” Not long after, Mother asked Aunt to meet with
her and take Annabelle because “[s]he’s out of control, grumpy,
[and] thrashing out.” Aunt and Uncle agreed. So, Annabelle’s
annual summer migration to Utah started early that year when
Mother left Annabelle with Aunt and Uncle in May 2018 and
moved to North Carolina with her boyfriend.
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¶4 About Annabelle’s year with Aunt and Uncle, the juvenile
court heard conflicting testimony. On the one hand, the juvenile
court heard that Mother monitored Annabelle’s progress in
school, that Mother purchased clothes for Annabelle even
though Aunt and Uncle “never asked [her] for financial
support,” that Mother engaged in “several” phone calls with
Annabelle over that time period, and that Mother gave Aunt and
Uncle specific requests, including that they “put [Annabelle] into
counseling.” On the other hand, Mother admitted that she did
not visit Annabelle for over six months from October 2018 to
May 2019, and the court heard testimony that Mother declined to
participate when offered “extra opportunities . . . to contact
[Annabelle] on the phone more frequently, extra opportunities to
participate with [Annabelle] in activities, and the opportunity to
attend an eye doctor appointment.” Aunt and Uncle also
testified that Mother provided no financial support for
Annabelle’s needs and refused to assist Aunt and Uncle with
costs associated with medical co-pays, fixing Annabelle’s
eyeglasses, or purchasing school clothes and supplies. Aunt and
Uncle claimed that Mother told them, “She’s your responsibility.
I don’t need to take care of anything, it’s your responsibility.”
Aunt and Uncle further maintained that, at their home,
Annabelle transformed from “reserved,” “quiet,” and fearful, to
“thriving and happy.”
¶5 A week before that school year’s end, in May 2019,
Mother unexpectedly checked Annabelle out of school, planning
to drive her back to North Carolina. Aunt and Uncle “retrieved
[Annabelle] by way of an ex parte protective order” and filed a
petition requesting custody, which the juvenile court granted
temporarily. In addition to the testimony about the time at Aunt
and Uncle’s home, the court heard testimony that Mother’s
“parenting style lack[ed] affection,” “nurturing,” and
“comforting behavior”—for example there was “no hugging”—
and that Mother often peppered Annabelle with various insults.
Aunt and Uncle also described that during one of Annabelle’s
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unsupervised visits with Mother, they received an accidental
dial from Annabelle and, after answering the call, overheard
Mother “yelling at [Annabelle] that she ‘needed to go . . . tell
[Aunt and Uncle] that she needed to come home right now’” and
to tell Aunt and Uncle to call Annabelle’s guardian ad litem to
relay the same message. If she did not, Mother said, “a lot of
people [would] get hurt.” Aunt and Uncle terminated this visit,
but in their view more generally, Annabelle “was very
depressed and sad after visits with” Mother, and only “[a]fter
lots of support and kindness from [Aunt and Uncle]” would
Annabelle “return to her normal, happy self.” And Mother did
testify “that if custody were returned to her, she would cut off all
contact between [Annabelle] and [Aunt and Uncle].”
¶6 Ultimately, the juvenile court determined that although
“[M]other loves [Annabelle],” “love alone is not enough for a
child,” and that Mother’s conduct “demonstrates a complete
disregard for the best interests of [Annabelle] and further
demonstrates a pattern of [Mother] consistently placing her own
best interests before those of [Annabelle].” Further, the court
determined that Mother had “been unwilling or unable to
provide [necessary] stability, and ha[d] therefore asked other
family members to care for [Annabelle] for protracted lengths of
time.” The court made findings and concluded that Mother
“neglected” Annabelle and therefore granted Aunt and Uncle
permanent custody and guardianship.
¶7 Specifically, the court entered conclusions of law that:
[Annabelle] has been neglected by [Mother] in the
form of emotional maltreatment, which has caused
[Annabelle] to be insecure, afraid and emotionally
disturbed.
[Annabelle] has been neglected by [Mother] by
being placed with relatives for extended and
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regular periods of time without support from
[Mother].
....
[Mother] has neglected [Annabelle] in not assisting
in paying for her support or providing items for
[Annabelle’s] care. . . .
It is in [Annabelle’s] best interests to be placed in
the permanent custody and guardianship of [Aunt
and Uncle].
¶8 Mother appeals the juvenile court’s neglect determination.
ISSUE AND STANDARD OF REVIEW
¶9 Mother raises one issue we address here: whether the
juvenile court improperly determined that Mother’s conduct
amounted to “neglect.” “We apply differing standards of review
to findings of fact, conclusions of law, and determinations of
mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14.
Here, Mother does not dispute the juvenile court’s relevant
findings of fact but instead contends that the juvenile court
improperly applied the governing law. “This is a mixed
determination of law and fact—in which the abstract law is
applied to a given set of facts.” Id. ¶ 17. And,
the standard of review for mixed questions
depends on the nature of the issue. Law-like mixed
questions are reviewed de novo, while fact-like
mixed questions are reviewed deferentially. To
determine whether a mixed question should be
deemed law-like or fact-like, we evaluate the
marginal costs and benefits of conducting either a
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searching de novo review or a deferential review of
a lower tribunal’s resolution of the mixed question.
De novo review of mixed questions is
appropriate where a fresh appellate
reconsideration of the issues presents little
downside and significant upside. Issues that are
law-like are matters that lend themselves to
consistent resolution by uniform precedent.
Appellate courts are in a preferred position on such
issues. They can establish a uniform body of
precedent establishing consistent rules that
litigants and lower courts can rely on. And a need
to establish such rules cuts against a standard of
deference to lower courts.
Id. ¶¶ 18–19 (cleaned up). We distinguish law-like questions
from fact-like questions based on
(1) the degree of variety and complexity in the facts
to which the legal rule is to be applied; (2) the
degree to which a trial court’s application of the
legal rule relies on facts observed by the trial judge,
such as a witness’s appearance and demeanor,
relevant to the application of the law that cannot be
adequately reflected in the record available to
appellate courts; and (3) other policy reasons that
weigh for or against granting discretion to trial
courts.
Id. ¶ 21 (cleaned up).
¶10 As to the first two factors, where Mother does not dispute
the relevant facts as found by the juvenile court, the facts before
us are set and clear, and, having been entered by the juvenile
court, are not dependent on disputed subjective factors observed
by the juvenile court. As to the third factor, where the
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application of a statute to the facts lies in the vein of statutory
interpretation—which is reviewed for correctness, see State v.
Soules, 2012 UT App 238, ¶ 2, 286 P.3d 25—sound policy dictates
that application of statute be reviewed de novo, giving no
deference to the juvenile court. We view the question presented
here as law-like because it concerns whether the facts as
constituted meet the legal standard of the statute. De novo
review here presents little downside and allows this court to
establish precedent on which future litigants and lower courts
can rely. Accordingly, we review the issue presented here giving
no deference to the juvenile court.
ANALYSIS
¶11 In contending that the juvenile court misapplied the
statutory definition of “neglect,” Mother argues that “the
juvenile court’s reasons for determining that [Annabelle] is a
neglected child do not fall under the neglect statute or relate to
that statute” or, at most, “bear only a passing relation.” Upon
reviewing the juvenile court’s conclusions of law alongside the
relevant statute, we conclude that the juvenile court failed to
properly link its findings of fact and conclusions of law to the
statute defining “neglect” in these situations.
¶12 Initially, while we are sensitive to the challenging
circumstances Annabelle has experienced in this case, we
nevertheless must acknowledge the presumption in the law that
generally parents have a right to the custody of their children.
See In re C.Z., 2021 UT App 28, ¶ 16, 484 P.3d 431. Speaking
about a related area of law, termination of parental rights, our
supreme court has said that “[n]o parent could be deprived of
his or her parental rights without a prior showing of unfitness,
abandonment, or substantial neglect,” and that “[s]o long as a
parent’s conduct remain[s] within those broad bounds, the state
[is] not empowered to terminate the parent-child relationship.”
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See In re J.P., 648 P.2d 1364, 1367 (Utah 1982). Our supreme court
has further stated,
It is rooted in the common experience of
[humankind], which teaches that parent and child
normally share a strong attachment or bond for
each other, that a natural parent will normally
sacrifice personal interest and welfare for the
child’s benefit, and that a natural parent is
normally more sympathetic and understanding
and better able to win the confidence and love of
the child than anyone else.
The parental presumption is not conclusive,
but it cannot be rebutted merely by demonstrating
that the opposing party possesses superior
qualifications, has established a deeper bond with
the child, or is able to provide more desirable
circumstances. If the presumption could be
rebutted merely by evidence that a nonparent
would be a superior custodian, the parent’s natural
right to custody could be rendered illusory and
with it the child’s natural right to be reared, where
possible, by his or her natural parent.
Hutchison v. Hutchison, 649 P.2d 38, 40–41 (Utah 1982) (cleaned
up). We recognize that this is not a termination of parental rights
case, and we do not apply the presumption here, but this is all to
emphasize the importance of the natural parent-child
relationship and clarify that before a juvenile court removes a
child from a natural parent based on the presence of “neglect,”
that court must find facts that meet the statutory definition of
neglect, which definition the legislature has deemed substantial
enough to warrant the drastic consequence of removing a child
from that child’s natural parent.
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¶13 Utah law provides six bases on which a juvenile court
may determine that a situation amounts to “neglect.” Utah Code
Ann. § 78A-6-105(40)(a) (LexisNexis Supp. 2020).2 Specifically,
“Neglect” means action or inaction causing:
(i) abandonment of a child . . . ;
(ii) lack of proper parental care of a child by
reason of the fault or habits of the parent,
guardian, or custodian;
(iii) failure or refusal of a parent, guardian, or
custodian to provide proper or necessary
subsistence or medical care, or any other care
necessary for the child’s health, safety, morals,
or well-being;
(iv) a child to be at risk of being neglected or
abused because another child in the same home
is neglected or abused;
(v) abandonment of a child through an
unregulated custody transfer; or
(vi) educational neglect.
Id. However, as far as we can tell, the court did not base its
ruling on any of these statutory grounds. Instead, the court
found that Annabelle had “been neglected by [Mother] in the
form of emotional maltreatment,” that Anabelle had “been
neglected by [Mother] by being placed with relatives for
2. We note that since the relevant time, the statute’s contents
have been renumbered but have not substantively changed. For
convenience, we cite the current code.
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extended periods of time,” and that “Mother ha[d] neglected
[Annabelle] in not assisting in paying for her support or
providing items for [Annabelle’s] care.”
¶14 We do not see the required relation between these
explanations—as expressed in the court’s conclusions of law—
and the statutory text. As to the conclusion that Annabelle had
“been neglected by [Mother] in the form of emotional
maltreatment,” Aunt and Uncle concede that “emotional
maltreatment is . . . not neglect”; and, indeed, this concession
aligns with our own caselaw as provided in K.Y. v. Division of
Child & Family Services, 2010 UT App 335, 244 P.3d 399, which
clarified that “the statutory definition of neglect cannot be
construed to include emotional maltreatment.”3 See id. ¶ 20.
3. Aunt and Uncle also contend that the juvenile court
mistakenly referred to “emotional maltreatment” when it
actually meant to write “emotional abuse” and ask us to affirm
the juvenile court’s ruling on that alternative ground. However,
the language in the court’s ruling does, in fact, say “emotional
maltreatment,” and we view “abuse” as such a significant term
of art under the statute that a juvenile court’s failure to use this
word in a particular instance cannot reasonably be viewed as a
mere typographical error. See generally Utah Code Ann. § 78A-6-
105(1) (LexisNexis Supp. 2020) (defining “abuse”). Certainly, the
juvenile court made no substantive findings regarding emotional
abuse, perhaps because Aunt and Uncle testified that Annabelle
was “thriving,” a condition inconsistent with the presence of
emotional abuse. See id. § 78A-6-105(1)(a)(i)(A)–(B), (29)(b)
(defining “abuse” as including “harm,” and defining “harm,” in
relevant part, as “emotional damage that results in a serious
impairment in the child’s growth, development, behavior, or
psychological functioning”). We therefore decline Aunt and
Uncle’s invitation to affirm on the alternative ground of
emotional abuse.
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Similarly, the court’s statements that Annabelle has “been
neglected by [Mother] by being placed with relatives for
extended periods of time” and that “Mother has neglected
[Annabelle] in not assisting in paying for her support or
providing items for [Annabelle’s] care” do not clearly fall within
the statute’s language. See infra ¶¶ 15–21.
¶15 After reviewing the actual statutory grounds found in
Utah Code section 78A-6-105(40)(a), we come no closer to seeing
a connection between the court’s findings and conclusions and
the statutory language. Of the statute’s six grounds for neglect,
none apply to this case under the facts as found by the juvenile
court.
¶16 First, Annabelle cannot have been subject to “educational
neglect,” Utah Code Ann. § 78A-6-105(40)(a)(vi), because
“educational neglect” occurs only when a parent “fails to make a
good faith effort to ensure that the child receives an appropriate
education” after “receiving a notice of [a] compulsory education
violation,” id. § 78A-6-105(20). The juvenile court made no
findings in this regard.
¶17 Second, Annabelle cannot have been abandoned through
an “unregulated custody transfer,” id. § 78A-6-105(40)(a)(v),
because an “[u]nregulated custody transfer” occurs only when
the child is left with someone other than statutorily specified
family members or an adult friend of the family—and no party
challenges whether Aunt and Uncle fit in this category, id. § 78A-
6-105(64)(a).
¶18 Third, Annabelle cannot have been “at risk of being
neglected . . . because another child in the same home is
neglected,” as no other child is identified in the juvenile court’s
findings of fact. Id. § 78A-6-105(40)(a)(iv).
¶19 Fourth, although appearing closer to the mark, Annabelle
cannot have been subject to the “failure or refusal of a parent,
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guardian, or custodian to provide proper or necessary
subsistence or medical care, or any other care necessary for the
child’s health, safety, morals, or well-being.” Id. § 78A-6-
105(40)(a)(iii). To be sure, Mother did refuse to pay Aunt and
Uncle for various aspects of Annabelle’s care. However, in
interpreting a statute, “we look first to the statute’s plain
language and presume that the legislature used each word
advisedly and read each term according to its ordinary and
accepted meaning.” In re J.M.S., 2011 UT 75, ¶ 13, 280 P.3d 410(cleaned up). And here, the statute’s plain language relates only
to a parent’s refusal to provide care—it says nothing about a
parent’s refusal to reimburse another caretaker for providing the
care. If a non-parent party, retaining custody of a child, contends
that a parent should pay for that child’s care, the non-parent
party’s remedy is to return the child to the parent’s custody,
where the parent would bear the monetary burden of providing
for the child’s necessary care. On the facts before us, Mother
never refused to provide care but refused only to reimburse
Aunt and Uncle for providing that care. Thus, because the
statute does not discuss money at all, the fact that Mother
refused to repay Aunt and Uncle is neither here nor there for
purposes of applying the statute to this situation and does not
support a finding of neglect.
¶20 Fifth, again, although apparently more applicable than
other alternatives, Annabelle cannot have been subject to a “lack
of proper parental care . . . by reason of the fault or habits of the
parent, guardian, or custodian.” Utah Code Ann. § 78A-6-
105(40)(a)(ii). While it would be inaccurate and insensitive to
suggest that the interactions between Mother and Annabelle
approached ideal, the record before us suggests that Annabelle
received proper parental care, even if not always at Mother’s
hand. And while Aunt and Uncle identify certain facts that they
allege suggest a lack of proper parental care, the juvenile court
did not rely on these facts in identifying the situation as neglect,
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and we are skeptical that such facts could have amounted to
neglect in any event.
¶21 Sixth, under the facts as applied by the juvenile court, we
cannot determine whether Annabelle faced “abandonment.” Id.§ 78A-6-105(40)(a)(i). The juvenile court did not analyze whether
a parent who leaves a child temporarily with relatives could be
considered to have abandoned the child; indeed, the juvenile
court made no findings that it connected to abandonment, and
its conclusions of law contain no language that suggests to us
that the neglect determination rested on a finding of
abandonment under section 78A-6-105(40)(a)(i). In short, the
findings of fact and conclusions of law set forth by the juvenile
court do not bear a connection to the governing statute sufficient
to remove Annabelle from the custody of her natural parent on
the basis of “neglect.”
CONCLUSION
¶22 In declaring that Mother neglected Annabelle, the juvenile
court made insufficient connection between its findings of fact
and conclusions of law and the actual statutory grounds
governing findings of “neglect.” The facts as found by the
juvenile court do not meet the statutory definition of “neglect.”
Therefore, we reverse the court’s order of permanent custody
and guardianship issued in favor of Aunt and Uncle.
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