In re J.B.

2016 UT App 66THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.B. AND T.B.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
A.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20160085-CA
Filed April 7, 2016
Third District Juvenile Court, Salt Lake Department
The Honorable Mark W. May
No. 1120237
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.
PER CURIAM:
¶1 A.B. (Mother) appeals the January 22, 2016 order
adjudicating J.B. and T.B. to be neglected children within the
jurisdiction of the juvenile court. We affirm.
¶2 Mother claims on appeal that the juvenile court
(1) improperly admitted hearsay testimony; (2) committed plain
error by considering her history with the Division of Child and
Family Services (DCFS) because the allegation was vague;
In re J.B.
(3) improperly included a finding on history because agency and
judicial proceedings employ different burdens of proof;
(4) improperly substantiated DCFS findings; and (5) determined
the children were neglected based upon insufficient evidence.
¶3 After her family was evicted from their residence on
September 11, 2015, Mother left T.B. in the care of neighbors
on the same day. Mother left J.B. with the same neighbors on
September 13, 2015. After the neighbors determined they could
no longer care for T.B. and J.B., they tried unsuccessfully to
contact Mother. The neighbors also had concerns about the
medications that J.B. required but did not have. The neighbors
contacted DCFS, which took the children into protective custody
on September 15, 2015. Following an adjudication of the State’s
petition, the juvenile court determined that the children were
neglected by Mother and therefore were within the jurisdiction
of the juvenile court.
¶4 “[T]o overturn the juvenile court’s decision, the result
must be against the clear weight of the evidence or leave the
appellate court with a firm and definite conviction that a mistake
has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (citation
and internal quotation marks omitted). We “review the juvenile
court’s factual findings based upon the clearly erroneous
standard.” In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680. A finding
of fact is clearly erroneous when the court “failed to consider all
of the facts or considered all of the facts and its decision was
nonetheless against the clear weight of the evidence.” In re B.R.,
2007 UT 82, ¶ 12. Therefore, “[w]hen a foundation for the court’s
decision exists in the evidence, an appellate court may not
engage in a reweighing of the evidence.” Id.
¶5 Mother claims that the juvenile court erred in admitting
hearsay evidence from the husband neighbor who testified at the
adjudication hearing. The juvenile court sustained a hearsay
objection to the husband testifying about what his wife had told
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him, but the court allowed him to testify about his own
understanding. Although the juvenile court stated that it did not
have sufficient evidence to determine how the children came to
be placed with the neighbors, it found the key facts were that
T.B. was there by September 11 and J.B. was there by September
13, and they remained there until September 15. The juvenile
court specifically found Mother’s testimony stating that she
called the wife neighbor every day and came to visit the children
while they were in the neighbors’ care and her testimony about
when her phone did or did not work not to be credible. The
court also found that the neighbors contacted DCFS because they
could not reach Mother. After DCFS came to the neighbors’
home, the caseworker tried unsuccessfully to contact Mother by
using a phone number the neighbor provided, by contacting a
relative and the children’s school, and through other searches.
Because the neighbors were unwilling or unable to continue to
care for the children, DCFS took them into protective custody.
Therefore, even assuming that the juvenile court improperly
admitted the husband’s testimony about his understanding,
Mother was not prejudiced because the juvenile court’s factual
findings were supported by the remaining evidence.
¶6 Mother’s second and third issues on appeal both assert
that the juvenile court erred in considering her past history with
DCFS and the juvenile court. The State’s verified petition alleged
a “long history” with DCFS and the juvenile court. Mother
moved to strike the allegation, arguing at the adjudication
hearing that “the State can’t bootstrap a . . . ‘long agency history’
under [Utah Code section] 62(a)-4(a) into a . . . judicial
proceeding under [section] 78(a)-6 without specifically alleging
those matters and pleading them and proving them by clear and
convincing evidence.” The juvenile court denied the motion to
strike, stating at the adjudication hearing that whether or not the
family had a long history did not affect the adjudication of
“whether in this instance the mother neglected the children.”
Accordingly, the court denied a motion to strike. Mother later
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objected to the State’s inclusion of the “long history” allegation
in the proposed findings. The juvenile court entered amended
findings that the family had a “history”; that in 2001, Mother
was represented by an attorney in a juvenile court case; and that
the children were represented by a Guardian ad Litem who
became a juvenile court judge and recused himself from this
case. Accordingly, the amended findings of fact recited only
undisputed procedural facts regarding a previous juvenile court
case. The assertion that the juvenile court plainly erred in
considering the family’s past history lacks merit.
¶7 Furthermore, the minutes from the February 4, 2016
hearing on Mother’s objections to the State’s proposed findings
of fact and conclusions of law recited that Mother’s counsel
stated that “the issues had been resolved with the Court’s
correction of the findings of fact order.” On appeal, Mother
argues that, notwithstanding the juvenile court’s statement that
the family’s history was not relevant to the adjudication of
whether the events before the court constituted neglect, the
juvenile court actually did consider the family history. There is
no record support for the assertion, and Mother withdrew her
objection to the challenged finding below.
¶8 For similar reasons, this court need not consider the claim
on appeal that the juvenile court erred by including a conclusion
of law substantiating the DCFS findings. Mother’s objections to
the State’s proposed findings of fact and conclusions of law
included an objection to the proposed conclusion stating, “The
supported findings of the Division are substantiated consistent
with the court’s findings.” As previously noted, at the hearing
on Mother’s objections, counsel indicated that all of the issues
had been resolved by the amended findings of fact and
conclusions of law. On appeal, Mother again argues that this
conclusion was improper because the juvenile court lacked
authority to make it. She further argues that “the Court never
articulated it was ordering substantiation, it was simply
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included in the findings proposed by the State, and signed off on
by the court.” Having withdrawn the objection to the conclusion
by representing to the juvenile court that the issues were
resolved by the amended findings and conclusions, any claimed
error was waived, invited, and not preserved.
¶9 Finally, Mother argues that the evidence was insufficient
to support a neglect finding. Mother acknowledges that it is not
an appellate court’s task to reweigh the evidence, but she urges
this court “to consider whether based on the allegations and the
record, a legal finding of dependency [rather than neglect] is
appropriate.” Mother cites no authority supporting an appellate
court’s revision or modification of the court’s adjudication order
as proposed. “When a foundation for the court’s decision exists
in the evidence, an appellate court may not engage in a
reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171
P.3d 435. Because the evidence is sufficient to support the
neglect finding, we do not disturb it.
¶10 Affirmed.
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