In re J.A.

2018 UT App 29THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF J.A. AND C.A.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
C.A.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Amended Opinion 1
No. 20160201-CA
Filed February 15, 2018
Second District Juvenile Court, Ogden Department
The Honorable Sherene T. Dillon
No. 1118574
Jason B. Richards, Attorney for Appellant
Sean D. Reyes and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.
1. This Amended Opinion replaces the Opinion in Case No.
20160201-CA issued on December 7, 2017. After our original
opinion issued, the State of Utah and the Guardian ad Litem
filed petitions for rehearing, and we called for a response. We
grant the petitions for the limited purpose of removing one
footnote and deny the petitions in all other respects.
In re J.A.
CHRISTIANSEN, Judge:
¶1 C.A. (Father) appeals from the juvenile court’s
adjudication order, in which the court found that Father had
severely abused one of his children and neglected both of them.
We affirm.
BACKGROUND 2
¶2 Father and A.Z. (Mother) had two children—J.A. (Older
Child) and C.A. (Younger Child). Older Child was born in
November 2012, and Younger Child was born in April 2015.
¶3 On July 21, 2015, Mother left for work around 7:30 a.m.,
leaving Father at home to care for the children. Younger Child
was awake and smiling when Mother left.
¶4 According to Father, Younger Child took a nap from 9:30
to 11:30 a.m., and both children took naps around 1:00 p.m. As
Father watched television, he heard a “choking” sound coming
from Younger Child’s room and went to check on him. Father
took Younger Child into the living room. Younger Child was
limp and did not appear to be breathing. According to Father, he
unsuccessfully attempted CPR and called 911.
¶5 The first responding officer observed that Younger Child
was nonresponsive, that his arms were “straight out in front” of
him, that his “hands were locked,” and that he had very shallow
breathing. The officer later testified that Father told him that he
“shook [Younger Child] a little bit” to try to clear his airways.
2. We recite the facts as found by the juvenile court. See In re
O.D., 2006 UT App 382, ¶ 2 n.1, 145 P.3d 1180.
20160201-CA 2 2018 UT App 29In re J.A.
¶6 An ambulance transported Younger Child to a local
hospital, where a CT scan revealed that he had a subdural
hematoma. The hospital requested an airlift to Primary
Children’s Medical Center (PCMC), where doctors stabilized
Younger Child and performed additional tests and scans on him.
The additional testing revealed that Younger Child had two
subdural hematomas, one older and one more recent. He also
had retinal hemorrhaging, fractured ribs, and a neck injury. The
incident ultimately left Younger Child with significant and
permanent brain damage.
¶7 Police obtained search warrants for the family’s house
and for the parents’ cell phones. After conferring with physicians
at PCMC, who ultimately concluded that Younger Child’s
injuries were the result of nonaccidental trauma, police officers
arrested Father. The State obtained a warrant to take both
children into custody and filed a verified petition alleging abuse
and neglect based on the July 21, 2015 incident.
¶8 The police extracted several text messages from each
parent’s cell phone. A detective (Detective) sifted through the
texts and compiled the ones he believed were relevant to the
investigation. For example, in a June 24, 2015 text to Mother,
Father stated, “I think you should take the kids. He is getting me
to a new level.” Mother responded, “[D]o whatever you need to
get away and take a break.” And in a June 27, 2015 text, Father
sent Mother a picture of a bruise on Younger Child’s neck.
Mother responded with “W.T.F.” and “OMG . . . that is a really
bad bruise.”
¶9 In December 2015, the juvenile court held a four-day
adjudication trial. Father testified that he watched the children
about half of the time. Father added that Younger Child had
choking issues from birth and had also been diagnosed with acid
reflux. He denied ever “shaking” Younger Child, stating that he
only ever “slight[ly] bounce[d]” Younger Child to help him clear
20160201-CA 3 2018 UT App 29In re J.A.
his airways. In an apparent attempt to explain Younger Child’s
rib injuries, Father testified that about a week before the
incident, Mother had been driving and was forced to slam on the
brakes to avoid a collision. Father testified that Younger Child
was sleeping in the car at the time and did not wake up or cry.
¶10 Regarding Younger Child’s neck injury, Father described
an incident in which Older Child had allegedly tripped over
Younger Child. Father stated that Younger Child seemed
“startled” after Older Child tripped over him, but that he did not
cry. Father told Mother about the incident via text message.
Father admitted that he had initially lied to her about what had
happened; he told her that Younger Child had gotten the bruise
by lying on his pacifier. Father also discussed his text messages
with Mother regarding a bruise on Younger Child’s forehead
and stated that the forehead bruise came from the same tripping
incident. Father acknowledged that Younger Child’s injuries
were “pretty severe,” but he denied causing them.
¶11 The first responding officer testified about what he had
witnessed when he arrived at the family’s house on the day of
the incident. Although the first responding officer testified that
Father admitted he “shook [Younger Child] a little bit” to try to
get him to respond, another officer stated that Father told him
that Father had “jiggled and bounced” Younger Child and
“flatly” denied shaking Younger Child. While he was in the
house, the first responding officer heard a sound coming from
another room. When he opened the door he found Older Child,
who had been locked inside the room with a child-proof lock.
The room smelled like urine. Father was upset that the officer
had opened Older Child’s door and stopped the officer from
talking to Older Child. Father told Older Child to “remember
what I told you.” The officer described the family’s house as
“cluttered” but “not overly dirty.”
20160201-CA 4 2018 UT App 29In re J.A.
¶12 A second responding officer testified that he observed
Father arguing with the first responding officer about why he
had opened Older Child’s bedroom door. The second officer
testified that Father was more concerned with the police
presence than with Younger Child’s welfare. Father asked the
first responding officer to leave several times, stating that he
“didn’t want police there.”
¶13 The first responding officer further testified that he had
executed the warrant to seize the parents’ cell phones. The
officer stated that he had taken the phones, turned them off,
removed the batteries, and given them to detectives.
¶14 Detective testified that a “data dump” was performed on
the phones and that he had been provided with two thumb
drives containing “all of the content from those phones.”
Detective “looked through all the messages, the
pictures, . . . [and] the videos and put the content together for the
text messages leading up to and the day of the incident that
occurred.” He testified that he “didn’t include all of the texts” in
his police report; he only included “texts [he] felt [were] relevant
to this case and with communication between [Father] and
[Mother] or anybody else that would have had anything to do
with [Younger Child] and [his] health and well-being.”
¶15 Three medical experts testified at the trial. The head of the
Safe and Healthy Families Team at PCMC (Doctor) testified for
the State. Doctor testified generally about “shaken baby
syndrome” and clarified that it was properly referred to as
“abusive head trauma.” Doctor testified that none of the parents’
explanations adequately accounted for Younger Child’s injuries.
¶16 Doctor testified in detail about Younger Child’s injuries.
She testified that Younger Child suffered retinal hemorrhages in
both of his eyes and that “this particular pattern where it’s in
multiple layers of the retina and goes all the way out to the aura
20160201-CA 5 2018 UT App 29In re J.A.
is specific—not entirely specific, but very specific for rotational
injury by shaking.” Doctor observed that Younger Child’s CT
scan showed that he had an older subdural hematoma, but she
testified that it was unlikely that the newer hematoma was a “re-
bleed of the chronic ones” based on Younger Child’s symptoms.
Doctor also testified regarding other possible causes for Younger
Child’s injuries, but she stated that “nothing seemed to fit the
pattern of anything other than abusive head trauma and
physical abuse to explain all of [Younger Child’s] injuries.”
Doctor explained that a baby like Younger Child “would have
symptoms immediately after having sustained these injuries.”
¶17 A board-certified radiologist (Radiologist) testified for the
State regarding Younger Child’s rib fractures. He testified that x-
rays showed calcification of Younger Child’s rib fractures, which
is indicative of healing. He also testified that the fractures would
not have been caused by Father’s attempts at CPR. Radiologist
testified that Younger Child’s rib injuries appeared to be “about
seven to fourteen days” old as of the July 21, 2015 incident. He
ruled out rickets as the cause of Younger Child’s rib injuries. 3
¶18 At the close of the State’s case-in-chief, Father moved for
involuntary dismissal pursuant to rule 41(b) of the Utah Rules of
Civil Procedure. Father argued that the State had failed to
provide clear and convincing evidence that he was responsible
for Younger Child’s injuries. Father also argued that the Juvenile
Court Act was unconstitutional as applied to him. The court
denied Father’s motion for involuntary dismissal and took his
3. “Rickets is the softening and weakening of bones in children,
usually because of an extreme and prolonged vitamin D
deficiency.” Mayo Clinic, Rickets, https://www.mayoclinic.org/
diseases-conditions/ rickets/ symptoms-causes/syc-20351943
[https://perma.cc/N26A-C7PW].
20160201-CA 6 2018 UT App 29In re J.A.
constitutional argument under advisement, stating that it would
decide those issues after all of the evidence had been presented.
¶19 Thereafter, Father’s expert (Father’s Expert) testified that
all of Younger Child’s subdural hematomas were the result of a
“re-bleed” from a subdural hematoma that likely occurred
during Younger Child’s birth, combined with rickets. Father’s
Expert acknowledged that, while he had considerable experience
as an emergency room physician, he had no special training in
diagnosing child abuse and was not a trained radiologist. On
rebuttal, Doctor disagreed with Father’s Expert that Younger
Child’s newer subdural hematoma was the result of a “re-bleed.”
Doctor explained that the entire collection of Younger Child’s
injuries, including subdural hematomas, 360-degree multilayer
retinal hemorrhaging, neck injury, and rib fractures, could
reasonably be explained only by traumatic shaking incidents.
¶20 In March 2016, the juvenile court entered an order
adjudicating both children as neglected by the parents. The court
found that Younger Child had suffered two rib fractures within
a two-week period surrounding his “acute injuries.” In addition,
the court found that Younger Child had been severely abused by
Father. The court rejected Father’s argument regarding the
constitutionality of the Juvenile Court Act.
¶21 On January 6, 2017, the juvenile court terminated Father’s
parental rights on the grounds that (1) Father had “abandoned
his children and failed to show the normal interest of a natural
parent”; (2) Father had “severely abused or neglected” the
children; (3) Father was an “unfit or incompetent parent[]”;
(4) Father had “been unable or unwilling to remedy the
circumstances that caused the children to be in an out-of-home
placement” and there was a “substantial likelihood that [he
would] not be capable of exercising proper and effective parental
care in the near future”; (5) Father’s actions constituted a failure
of parental adjustment; and (6) Father had “made only token
20160201-CA 7 2018 UT App 29In re J.A.
efforts to support or to communicate with the children.” As far
as this court is aware, Father has not appealed from the juvenile
court’s order terminating his parental rights in the children.
Father’s appeal in this case is from the juvenile court’s order
adjudicating the children as abused and neglected.
ISSUES AND STANDARDS OF REVIEW
¶22 First, Father contends that the juvenile court erred by
denying his motion for involuntary dismissal. When reviewing
the denial of a motion for involuntary dismissal, we review the
juvenile court’s factual findings and inferences for clear error
and its legal conclusions for correctness. Brady v. Park, 2013 UT
App 97, ¶ 14, 302 P.3d 1220.
¶23 Second, Father contends that the juvenile court erred by
denying his motion to find that the Juvenile Court Act (the Act)
is unconstitutional. More specifically, Father argues that the Act
is unconstitutional because it “fails to properly outline the
elements of committing severe child abuse.” In a related but
separate argument, Father further argues that the Act is
unconstitutional because it “does not require the juvenile court
to make any type of finding regarding the mental intent of the
purported perpetrator of severe abuse.” “‘Constitutional
challenges to statutes present questions of law, which we review
for correctness.’” Jones v. Jones, 2013 UT App 174, ¶ 7, 307 P.3d
598 (quoting State v. Green, 2004 UT 76, ¶ 42, 99 P.3d 820), aff’d,
2015 UT 84, 359 P.3d 603. “Nevertheless, ‘legislative enactments
are presumed to be constitutional, and those who challenge a
statute or ordinance as unconstitutional bear the burden of
demonstrating its unconstitutionality.’” Id. (quoting Green, 2004
UT 76, ¶ 42).
¶24 Third, Father contends that the juvenile court erred by
“allowing text messages to be read into the record without any
20160201-CA 8 2018 UT App 29In re J.A.
foundation.” We review the juvenile court’s interpretation and
application of a rule of evidence for correctness. See Utah Dep’t of
Transp. v. TBT Prop. Mgmt., Inc., 2015 UT App 211, ¶ 15, 357 P.3d
1032; see also State v. Griffin, 2016 UT 33, ¶ 14, 384 P.3d 186(applying a correctness standard to “legal questions underlying
the admissibility of evidence” (citation and internal quotation
marks omitted)).
ANALYSIS
I. Father’s Motion for Involuntary Dismissal
¶25 Father contends that “[t]he juvenile court committed error
in denying [his mid-trial] motion for involuntary dismissal
under [Utah Rule of Civil Procedure] 41(b).” According to
Father, the juvenile court should have granted his motion
because the State “did not establish that Father caused [Younger
Child’s] severe injuries, but rather only offered circumstantial
evidence that [Younger Child’s] injuries may have been caused
by Father.”
¶26 In a bench trial, after the plaintiff “has completed the
presentation of his evidence[,] the defendant . . . may move for a
dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief.” Utah R. Civ. P. 41(b)
(2015) 4; see also Grossen v. DeWitt, 1999 UT App 167, ¶ 8, 982 P.2d
581 (“In the context of a bench trial, . . . where there is no jury
4. Utah Rule of Civil Procedure 41 was amended in November
2016. “[T]he 2016 amendments move a central provision of
paragraph (b) from [rule 41] to Rule 52(e).” Utah R. Civ. P. 41
(2017) advisory committee note to 2016 amendments; see also id.R. 52(e) (2017). For clarity, we cite the rule that was in effect at
the time Father made his motion.
20160201-CA 9 2018 UT App 29In re J.A.
verdict, the directed verdict’s counterpart is a motion to
dismiss.”). “Under Rule 41(b), the court may dismiss if (1) the
claimant has failed to introduce sufficient evidence to establish a
prima facie case, or (2) the trial court is not persuaded by that
evidence.” Grossen, 1999 UT App 167, ¶ 8 (citation and internal
quotation marks omitted).
¶27 Father asserts that his motion was “based upon a lack of
evidence to support the allegation that he had directly inflicted
injury on [Younger Child]. No forensic evidence, further
eyewitness testimony, nor any confession from Father that he
shook or abused [Younger Child] was offered.” Thus, according
to Father, “the State failed to establish a prima facie case that
[Younger Child’s] injuries [were] a direct result of the Father and
being in his care.” “[T]he determination of whether a party has
made out a prima facie case is a question of law which we
review for correctness, affording no deference to the trial court’s
judgment.” Brady v. Park, 2013 UT App 97, ¶ 48, 302 P.3d 1220(citation and internal quotation marks omitted). “A prima facie
case has been made when evidence has been received at trial
that, in the absence of contrary evidence, would entitle the party
having the burden of proof to judgment as a matter of law.” Id.(citation and internal quotation marks omitted).
¶28 As a preliminary consideration, we note that Father
appears to be arguing that circumstantial evidence is insufficient
as a matter of law to survive a motion for involuntary dismissal.
Indeed, according to Father, the evidence that he caused
Younger Child’s injuries “was only circumstantial at best.”
¶29 The State concedes that its case “was largely based upon
circumstantial evidence.” But it is well-settled that circumstantial
evidence may be sufficient in both criminal and civil
proceedings. See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 100
(2003) (“Circumstantial evidence is not only sufficient, but may
also be more certain, satisfying and persuasive than direct
20160201-CA 10 2018 UT App 29In re J.A.
evidence.” (citation and internal quotation marks omitted)); id.(“The adequacy of circumstantial evidence also extends beyond
civil cases; we have never questioned the sufficiency of
circumstantial evidence in support of a criminal conviction, even
though proof beyond a reasonable doubt is required.”); State v.
MacNeill, 2017 UT App 48, ¶ 57, 397 P.3d 626 (“[T]he idea that
circumstantial evidence is necessarily less convincing and of less
value than direct evidence is a misstatement of the law.”
(ellipsis, citation, and internal quotation marks omitted)); In re
Z.D., 2007 UT App 33, ¶¶ 14–15, 156 P.3d 844 (affirming the
juvenile court’s conclusion that the father nonaccidentally
injured the child where testimony indicated that the child was in
the father’s sole care when the child’s injury occurred and the
father “provided no nonaccidental explanation for [the child’s]
injury”).
¶30 Father contends that the State “did not establish that
Father caused [Younger Child’s] severe injuries.” After
reviewing the record, we conclude that the State presented
sufficient circumstantial evidence demonstrating that Father
caused Younger Child’s severe injuries. 5
5. The parties have not addressed whether we should only
review the evidence up to the time that the juvenile court denied
Father’s motion for involuntary dismissal, i.e., at the conclusion
of the State’s case-in-chief, or whether we should review the
entire record before us. See State v. Kihlstrom, 1999 UT App 289,
¶ 9, 988 P.2d 949 (observing, where the defendant’s appeal
focused on the denial of a motion to dismiss at the close of the
State’s case-in-chief, that the court’s “review of the sufficiency of
the evidence is limited to the evidence adduced by the
prosecution in its case-in-chief”). But see State v. McCallie, 2016
UT App 4, ¶¶ 42, 44, 369 P.3d 103 (suggesting that the Utah
Supreme Court adopted the waiver rule in State v. Stockton, 310
P.2d 398 (Utah 1957), and observing that under the waiver rule,
(continued…)
20160201-CA 11 2018 UT App 29In re J.A.
¶31 Mother testified that on the day of the incident, Younger
Child was awake and smiling when she left for work. The
children were then in Father’s exclusive care. When first
responders arrived several hours later, Younger Child was
nonresponsive, his arms were “straight out in front” of him, his
“hands were locked,” and he had very shallow breathing.
According to the first responding officers, Father was more
concerned that police were in his house and that they tried to
talk with Older Child than he was with Younger Child’s welfare.
¶32 A CT scan revealed that Younger Child had two subdural
hematomas, one older and one newer. He also had retinal
hemorrhages in both of his eyes and rib fractures. Doctor
testified that Younger Child’s injuries were life-threatening and
that “the one explanation that explains everything is that
[Younger Child] was abused, that he was shaken.”
¶33 Father asserts, and the State appears to agree, that
Younger Child’s rib injuries had occurred at least two weeks
prior to the incident in question. The evidence bears this out.
Radiologist testified that x-rays showed calcification of Younger
Child’s rib fractures, which is indicative of healing. He also
testified that the fractures would not have been caused by
Father’s attempts at CPR. Radiologist opined that Younger
(…continued)
“if the defendant elects to introduce evidence following the
denial of a motion for a judgment of acquittal, appellate review
of the defendant’s conviction encompasses all of the evidence
presented to the jury, irrespective of the sufficiency of evidence
presented during the state’s case-in-chief” (citation and internal
quotation marks omitted)), cert. granted, 384 P.3d 567 (Utah
2016). In arguing that the juvenile court erred in denying his
motion for involuntary dismissal, Father relies only on the
evidence presented in the State’s case-in-chief. We follow suit.
20160201-CA 12 2018 UT App 29In re J.A.
Child’s rib injuries appeared to be “about seven to fourteen
days” old as of the July 21, 2015 incident. He also ruled out
rickets as the cause of Younger Child’s rib injuries. Father asserts
that, apart from Younger Child’s rib injuries being an older
injury, “[n]o testimony was offered by the State or [DCFS] to
show who was caring for [Younger Child] during that specific
time period.” While this may be true, we ultimately agree with
the State that even if Younger Child’s rib injuries could have
been caused by someone other than Father, there was sufficient
evidence demonstrating “that [Younger Child] suffered the final
acute life-threatening injury while in the sole care of [Father].”
¶34 Doctor testified that Younger Child had “chronic, so
older, subdural hemorrhages on each side of his head” and “a
newer subdural hemorrhage on the right side of his head going
up over the top and covering the part of the brain that is in the
front and on the side of his head on the right.” She stated that
the most common cause for a subdural hematoma is trauma and
that it was significant that Younger Child had hemorrhages on
both sides of his head, because with abusive head trauma, “most
commonly it is on both sides of the head.” Doctor clarified that
“[l]ess commonly, but still frequently[,] it’s on one side of the
head.” She further testified that about “40 to 50 percent of babies
with no symptoms at all” can have a subdural hemorrhage that
is caused by the birthing process, but “that is generally
gone . . . by about a month of age.” According to Doctor, it was
not likely that Younger Child’s newer hematoma was the result
of a “re-bleed of the chronic ones” based on the symptoms he
had when he was admitted to PCMC: “This is what we see with
new trauma.” Doctor acknowledged that a “birth trauma related
subdural hematoma” could be mistaken for abusive head
trauma, but she stated that she would have noticed that because
“[w]hen chronic subdurals re-bleed, the clinical picture is not
one of devastation, of symptomatic problems like [Younger
Child] had, like limpness, like seizures, like poor breathing. It’s
without symptoms.”
20160201-CA 13 2018 UT App 29In re J.A.
¶35 Doctor refuted Father’s explanation for Younger Child’s
neck bruise, testifying that the bruise looked “like something
was squeezing [his] neck or a t-shirt was pulled on.” She further
testified that it was unlikely that the incident where Mother had
slammed on the car brakes caused any of Younger Child’s
injuries, observing that the parents had told her that Younger
Child slept through the incident and did not cry.
¶36 Regarding the retinal hemorrhages in each of Younger
Child’s eyes, Doctor testified that “this particular pattern where
it’s in multiple layers of the retina and goes all the way out to the
aura is specific—not entirely specific, but very specific for
rotational injury by shaking.” She discussed other possible
causes of retinal hemorrhaging and stated that she always
considers other possibilities besides abuse or trauma in making a
diagnosis.
¶37 Doctor also testified regarding other possible causes for
Younger Child’s injuries generally, including bleeding disorders,
metabolic disorders, “benign extra axial fluid of infancy,” and
growth curves of the head, but she further stated that “nothing
seemed to fit the pattern of anything other than abusive head
trauma and physical abuse to explain all of [Younger Child’s]
injuries.” Doctor explained that a baby “would have symptoms
immediately after having sustained these injuries.” She further
stated that, as of the time of trial, Younger Child was receiving
seizure treatment, had to be fed via a “gastrostomy tube” due to
his trouble with swallowing “because of his brain trauma,” had
left-sided cerebral palsy, and that “there were signs of
encephalomalacia starting,” i.e., “where the brain has died.” She
stated that it was her opinion that Younger Child had permanent
brain damage.
¶38 Mother’s father (Grandfather) testified that Father told
him at the hospital that “they were going to pin this on him” and
that both parents “started making . . . up stories to go with
20160201-CA 14 2018 UT App 29In re J.A.
whatever the doctor just said.” For example, “when the doctor
was saying, that there was a problem [with Younger Child’s]
ribs, . . . they thought they were broken. . . . [Father and Mother]
started, well it could have been from this, and . . . they were just
changing their stories to match whatever was being said.”
According to Grandfather, Father and Mother also asked
Grandfather’s “son and . . . [Mother’s sister] to tell [Grandfather]
a story—to tell [him] about an accident—that they didn’t know
anything about” to explain how Younger Child received his
injuries.
¶39 In addition, the record indicates that prior to the incident
in question, there were no major concerns listed in Younger
Child’s medical records other than a reference to acid reflux. The
officer who interviewed Father at the hospital testified that
Father had told him that Younger Child “had been in for a well
child check within the last several weeks and the baby checked
out fine.” Although Mother and Father testified that Younger
Child had choking episodes, neither Grandfather nor Mother’s
sister had ever witnessed one of these alleged choking spells.
And in any event, Doctor testified that she did not think that
choking would have “cause[d] the subdural hemorrhages or the
retinal hemorrhages or the rib fractures.”
¶40 Based on the foregoing, we conclude that there was
sufficient circumstantial evidence demonstrating that Father was
responsible for Younger Child’s severe injuries. The record
indicates that Younger Child was fine when Mother left for work
on the day of the incident, that Younger Child was in Father’s
exclusive care throughout the day, and that by the time Father
called 911, Younger Child had suffered life-threatening injuries
that have left him with permanent brain damage. Although
Father denied shaking Younger Child, he failed to provide a
reasonable alternative explanation for Younger Child’s
devastating injuries. Accordingly, the juvenile court correctly
denied Father’s motion for involuntary dismissal.
20160201-CA 15 2018 UT App 29In re J.A.
II. The Constitutionality of the Act
¶41 Father next contends that “[t]he juvenile court committed
error in denying [his] motion to deem the Act unconstitutional,
on its face and as applied to him, since it fails to properly outline
the elements of committing severe child abuse.” More
specifically, Father asserts that “the Act is not narrowly tailored
to achieve the statutory interest of protecting children, because
the Act does not outline what particular elements must be
proven for the court to enter a finding of ‘abuse’ or ‘severe
abuse’ against a parent or caregiver. It lists no physical act, no
mental state, no guidance at all.” In support of this argument,
Father asserts that the Act is unconstitutionally vague.
¶42 The juvenile court adjudicated Older Child as neglected
and Younger Child as neglected and severely abused. As Father
correctly observes, the court’s adjudication of Younger Child as
severely abused gave rise to a statutory presumption that
reunification services would not be provided to Father. Section
78A-6-312(20) of the Act provides, in relevant part,
There is a presumption that reunification services
should not be provided to a parent if the court
finds, by clear and convincing evidence, that any of
the following circumstances exist:
....
(e) the minor suffered severe abuse by the parent
or by any person known by the parent, if the
parent knew or reasonably should have known
that the person was abusing the minor; [or]
(f) the minor is adjudicated an abused child as a
result of severe abuse by the parent, and the court
finds that it would not benefit the minor to pursue
reunification services with the offending parent[.]
20160201-CA 16 2018 UT App 29In re J.A.
Utah Code Ann. § 78A-6-312(20)(e), (f) (LexisNexis Supp. 2016).
Father asserts that this presumption against reunification
services “is devastating to a parent, because it virtually begins
the process that will ultimately end in the permanent
deprivation of his/her parental rights.” Father contends that the
Act fails to “outline what elements must be proven for a parent
to be found liable for child abuse in a civil context,” and that it is
therefore “not narrowly tailored to achieve an important
government purpose.”
¶43 “[T]he interest of parents in the care, custody, and control
of their children . . . is perhaps the oldest of the fundamental
liberty interests recognized by [the United States Supreme]
Court.” Jones v. Jones, 2013 UT App 174, ¶ 10, 307 P.3d 598(alterations and omission in original) (quoting Troxel v. Granville,
530 U.S. 57, 65 (2000) (plurality opinion)), aff’d, 2015 UT 84, 359
P.3d 603. “Parents have a fundamental right ‘to make decisions
concerning the care, custody, and control of their children.’” Id.(quoting Troxel, 530 U.S. at 66). “The Utah Constitution similarly
protects this fundamental right. ‘In a long line of precedent, [the
Utah Supreme Court] has recognized parental rights as a
fundamental component of liberty protected by article I, section
7 [of the Utah Constitution].’” Id. ¶ 11 (alterations in original)
(quoting Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250
P.3d 465). Consequently, “[a] statute that infringes upon this
‘fundamental’ right is subject to heightened scrutiny and is
unconstitutional unless it (1) furthers a compelling state interest
and (2) the means adopted are narrowly tailored to achieve the
basic statutory purpose.” Jensen, 2011 UT 17, ¶ 72 (citation and
additional internal quotation marks omitted).
¶44 “It is equally well established, however, that although
‘fundamental,’ parental rights are not absolute. A parent’s rights
must be balanced against the state’s important interest in
protecting children from harm.” Id. ¶ 74; see also In re J.P., 648
P.2d 1364, 1382 (Utah 1982) (Stewart, J., dissenting) (“[T]he
20160201-CA 17 2018 UT App 29In re J.A.
correlative of parental rights is parental duties. When parents
fail to, or are incapable of, performing their parental obligations,
the child’s welfare must prevail over the right of the parent.”);
see also id. at 1381 (“[O]nce the welfare of the child is threatened,
it is the child’s welfare, not the interest of the parents, which
predominates.”).
¶45 Father does not dispute that the State has a compelling
interest in protecting children from abuse and neglect. See
generally Utah Code Ann. § 62A-4a-201(2) (LexisNexis Supp.
2016) (“It is also the public policy of this state that children have
the right to protection from abuse and neglect, and that the state
retains a compelling interest in investigating, prosecuting, and
punishing abuse and neglect . . . . There may be circumstances
where a parent’s conduct or condition is a substantial departure
from the norm and the parent is unable or unwilling to render
safe and proper parental care and protection. Under those
circumstances, the state may take action for the welfare and
protection of the parent’s children.”); Jones, 2013 UT App 174,
¶ 26 (“The classic justification for state intervention in the
parent-child relationship is to protect a child who is an abused
child, neglected child, or dependent child[.]” (citation and
internal quotation marks omitted)); In re S.A., 2001 UT App 307,
¶ 25, 37 P.3d 1166 (observing that “the State’s interest in . . . a
child potentially at risk of abuse or neglect, is of prime import”).
Rather, he focuses on the second prong of the heightened-
scrutiny test, i.e., whether the Act is “narrowly tailored to
achieve the basic statutory purpose.” See Jensen, 2011 UT 17,
¶ 72. The question is therefore whether the Act is narrowly
tailored to attain the compelling legislative goal of protecting
children from abuse and neglect.
¶46 In attempting to answer this question, Father asserts that
the Act is unconstitutionally vague because it fails to give
adequate notice of that conduct which is proscribed. Father
argues that the Act “lists no physical act, no mental state, no
20160201-CA 18 2018 UT App 29In re J.A.
guidance at all.” “Vagueness questions are essentially
procedural due process issues, i.e., whether the statute
adequately notices the proscribed conduct.” State v. MacGuire,
2004 UT 4, ¶ 14, 84 P.3d 1171 (citation and internal quotation
marks omitted). “[T]he Utah Supreme Court has held that a
statute is not unconstitutionally vague if it is sufficiently explicit
to inform the ordinary reader what conduct is prohibited and
does so in a manner that does not encourage arbitrary and
discriminatory enforcement.” 6 State v. Krueger, 1999 UT App 54,
¶ 23, 975 P.2d 489.
¶47 Based on the Act’s definitions of abuse, harm, and severe
abuse, we conclude that the Act is “sufficiently explicit to inform
the ordinary reader what conduct is prohibited.” See id. Section
78A-6-105 of the Act defines “[a]buse,” in relevant part, as
“nonaccidental harm of a child.” Utah Code Ann. § 78A-6-
105(1)(a)(i) (LexisNexis Supp. 2016). “Harm” means, in relevant
part, “physical or developmental injury or damage.” Id. § 78A-6-
105(19)(a). And “‘[s]evere abuse’ means abuse that causes or
threatens to cause serious harm to a child.” Id. § 78A-6-105(37).
¶48 While the Act does not draw a bright line between abuse
and severe abuse, it is evident from the definitions of abuse and
severe abuse that severe abuse is something more than “simple”
abuse. The fact that the Act does not describe specific physical
acts that constitute abuse versus severe abuse does not render
the Act unconstitutionally vague. See generally People v. D.A.K.,
596 P.2d 747, 751 (Colo. 1979) (“An ordinarily reasonable parent
can understand what it means to ‘abuse’ and ‘mistreat’ a child.
Fundamental fairness does not require a statute to enumerate in
all-encompassing examples, or exactly described acts, precisely
6. Father does not argue that the Act promotes arbitrary and
discriminatory enforcement. See State v. Krueger, 1999 UT App
54, ¶ 23, 975 P.2d 489.
20160201-CA 19 2018 UT App 29In re J.A.
how poorly a parent can treat a child before risking losing
parental rights.”); Simons v. Department of Human Services, 2011
ND 190, ¶ 30, 803 N.W.2d 587 (“A statute is not
unconstitutionally vague merely because it does not specifically
state all of the various ways it may be violated.”).
¶49 Indeed, in In re L.P., 1999 UT App 157, 981 P.2d 848, this
court observed that because “all children, parents and
circumstances are different,” “the broad definition of an abused
child . . . is necessary, and . . . the focus of the juvenile court
should be on evidentiary findings to determine whether, by clear
and convincing evidence, a child has suffered or been threatened
with nonaccidental physical or mental harm.” Id. ¶ 7 (emphasis
added) (citation and internal quotation marks omitted). The
court further observed that because there is “a myriad of
circumstances with countless permutations, which may or may
not justify intervention of the juvenile court, it is essential that the
definition of an abused child remain broad so the juvenile court can
effectively apply section [78A-6-103(1)(c)].” 7 Id. (emphasis
added); see also Simons, 2011 ND 190, ¶ 31 (concluding, in the
context of a vagueness challenge to a child abuse statute, that
“[t]he statute need not set out in explicit detail all factual
scenarios that would fall within its reach; it need only give
adequate and fair warning, when measured by the common
understanding and practice of a ‘reasonable person,’ of the
proscribed conduct”). Although the Act does not “set out in
explicit detail all factual scenarios that would fall within its
reach,” we nevertheless conclude that the Act’s definitions of
abuse and severe abuse provide the kind of notice that enables
7. As previously discussed, section 78A-6-103(1)(c) provides the
juvenile court with exclusive, original jurisdiction in proceedings
concerning “an abused child, neglected child, or dependent
child, as those terms are defined in Section 78A-6-105.” Utah
Code Ann. § 78A-6-103(1)(c) (LexisNexis 2012).
20160201-CA 20 2018 UT App 29In re J.A.
ordinary readers to understand what conduct is statutorily
prohibited. 8 See Simons, 2011 ND 190, ¶ 31. The Act defines
“harm” and requires that the harm be nonaccidental. Supra ¶ 47.
Moreover, with regard to the facts of this case, Father does not
argue that his behavior, which resulted in Younger Child’s
permanent brain damage, somehow fell on the “safe” side of the
severe-abuse line; indeed, Father acknowledged below that
Younger Child’s injuries were “pretty severe.”
¶50 Because the Act is sufficiently explicit to inform the
ordinary reader what conduct is prohibited, it is not
unconstitutionally vague. See Krueger, 1999 UT App 54, ¶ 23.
¶51 Father also argues that “the Act [is] unconstitutional
because it does not require any proof or evidence of mental
intent when making a finding of abuse against a parent.” The
8. As a general matter, we note that the Act is not
unconstitutionally overbroad, because it does not prohibit any
constitutionally protected behavior. “Statutory overbreadth . . . is
a substantive due process question which addresses the issue of
whether the statute in question is so broad that it may not only
prohibit unprotected behavior but may also prohibit
constitutionally protected activity as well.” Board of Comm'rs of
Utah State Bar v. Petersen, 937 P.2d 1263, 1268 (Utah 1997)
(omission in original) (citation and internal quotation marks
omitted). Section 78A-6-105(1)(c) specifically exempts
“reasonable discipline or management of a child” from the
definition of abuse, and thus the Act does not prohibit protected
behavior, i.e., the Act does prohibit parents from reasonably
disciplining their children and a parent’s use of reasonable
discipline may not provide the basis for a finding that a child has
been abused. See generally In re L.P., 1999 UT App 157, ¶ 15, 981
P.2d 848 (Bench, J., concurring) (“[O]ur common law dictates
that reasonable discipline by a parent cannot constitute abuse.”).
20160201-CA 21 2018 UT App 29In re J.A.
State, on the other hand, contends that “the civil offense of child
abuse is based on a child’s status as abused, not on the parent’s
intent to harm the child,” and that “[t]he purpose of civil child
welfare adjudication does not require a parent to form specific
intent prior to committing abuse.” We agree with the State.
¶52 In making his argument, Father observes that the statute
governing child abuse in criminal proceedings “mandates that
the prosecutor prove intent beyond a reasonable doubt when
alleging severe abuse”:
Any person who inflicts upon a child serious
physical injury or, having the care or custody of
such child, causes or permits another to inflict
serious physical injury upon a child is guilty of an
offense as follows:
(a) if done intentionally or knowingly, the
offense is a felony of the second degree;
(b) if done recklessly, the offense is a felony
of the third degree; or
(c) if done with criminal negligence, the
offense is a class A misdemeanor.
Utah Code Ann. § 76-5-109(2) (LexisNexis 2012).
¶53 Utah courts have previously recognized that “the focus of
a criminal trial is quite different than that of a child welfare
proceeding.” In re C.B., 2013 UT App 7, ¶ 11, 294 P.3d 670.
A child welfare proceeding “is a civil proceeding designed by
our legislature to protect the child and to assist the family in
resolving difficulties that endanger the child. It is not a criminal
trial of the accused abuser.” In re Z.D., 2006 UT 54, ¶ 56, 147 P.3d
401 (Wilkins, J., concurring in the result). Accordingly, Utah
courts have declined to apply criminal statutes in civil child
20160201-CA 22 2018 UT App 29In re J.A.
welfare proceedings. See, e.g., In re L.P., 1999 UT App 157, ¶ 6,
981 P.2d 848 (“It is incumbent upon the juvenile court to apply
the proper definition from the appropriate statute. . . . [W]e are
not reviewing a criminal case and therefore criminal statutes
are inapplicable. . . . Here, we are reviewing a juvenile court
proceeding held to determine whether that court may
assert jurisdiction over [the child], and the concept of varying
definitions for varying purposes is not foreign to
our jurisprudence.” (citation omitted)); In re A.R., 1999 UT 43,
¶¶ 18–20, 982 P.2d 73 (rejecting the petitioner’s argument that a
child protection proceeding was “quasi-criminal in nature,”
observing that “[t]he primary focus of and sole statutory
justification for child protection proceedings is to protect the
interests of children who are neglected or abused,” and
concluding that “the Fourth Amendment exclusionary rule is
inapplicable to child protection proceedings” given the “purpose
of the exclusionary rule, as well as the State’s interest in
protecting children”); Ibarra v. Holder, 736 F.3d 903, 905 (10th Cir.
2013) (“The purpose of civil definitions is to determine when
social services may intervene. The purpose of criminal
definitions is to determine when an abuser is criminally
culpable.”). Based on the foregoing, we conclude that the
juvenile court appropriately declined to apply the criminal
definition of child abuse to the case at hand.
¶54 Moreover, we disagree with Father’s assertion that the
Act “does not require any proof or evidence of mental intent.”
As previously discussed, the Act defines abuse, in relevant part,
as “nonaccidental harm of a child.” Utah Code Ann. § 78A-6-
105(1)(a)(i) (LexisNexis Supp. 2016). The term “nonaccidental”
encompasses anything that is not an accident. Thus, the parent
may cause the abuse intentionally, knowingly, or recklessly.
Although Father asks this court to determine which specific
mental state applies in the civil child-abuse context, we think the
term “nonaccidental” appropriately encompasses the three
relevant mental states. This reading of the Act comports with the
20160201-CA 23 2018 UT App 29In re J.A.
State’s compelling interest in protecting children from abuse and
neglect; so long as the abuse was caused by the intentional,
knowing, or reckless acts of the parent, the Act applies to the
child.
¶55 Because the Act’s definitions are sufficiently explicit to
inform an ordinary reader what conduct is prohibited, we
conclude that the Act is not unconstitutionally vague. And
because the Act protects only those children who have been
nonaccidentally abused or nonaccidentally severely abused by
their parents, we conclude that the Act is narrowly tailored to
attain the compelling legislative goal of protecting children from
abuse. 9 The juvenile court therefore did not err in denying
Father’s motion to deem the Act unconstitutional.
III. The Text Messages
¶56 Lastly, Father contends that “[t]he juvenile court
committed error in allowing text messages to be read into the
record without the proper foundation and chain of custody.”
Father also observes that “[t]he text messages that had been
testified to were only those messages selected by [Detective] that
he felt were important” and asserts that “the text messages were
taken out of context and did not contain sufficient evidence to
support a finding of authenticity or identification.”
9. A statute is not narrowly tailored when it affects a class of
persons greater than necessary to vindicate the identified
compelling interest of the state. See Ward v. Rock Against Racism,
491 U.S. 781, 799–800 & n.7 (1989) (noting that “a complete ban
on handbilling would be substantially broader than necessary to
achieve the interests justifying it” and therefore would not be
narrowly tailored). We note that Father has not identified any
class of persons other than those intended by the Act that are
affected by the presumption against reunification services.
20160201-CA 24 2018 UT App 29In re J.A.
¶57 Father and the State both treat the text messages as
admitted evidence. Father contends that they were not properly
authenticated under rule 901 of the Utah Rules of Evidence
while the State responds that the parents’ testimony constituted
sufficient authentication. However, the text messages were not
formally admitted into evidence. When they were discussed,
Father objected to their use, but the juvenile court denied his
objections on the ground that the text messages were not being
admitted into evidence. Indeed, at one point in the proceedings,
the juvenile court ruled that the text messages could not be
admitted into evidence. Nevertheless, the juvenile court relied
upon them and concluded in its findings that they contradicted
the parents’ other testimony in some respects. We conclude that
it was improper for the juvenile court to rely on the text
messages as evidence when they had not been received into
evidence.
¶58 We next consider whether the improper use of the text
messages was sufficiently prejudicial to undermine our
confidence in the court’s findings and conclusions of law. Rule
61 of the Utah Rules of Civil Procedure provides,
No error in either the admission or the exclusion of
evidence . . . is ground for granting a new trial or
otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court
inconsistent with substantial justice. 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.
Utah R. Civ. P. 61. An error is harmless when it is “sufficiently
inconsequential that we conclude there is no likelihood that the
error affected the outcome of the proceedings.” Crookston v. Fire
Ins. Exchange, 817 P.2d 789, 796 (Utah 1991) (citation and internal
quotation marks omitted).
20160201-CA 25 2018 UT App 29In re J.A.
¶59 The juvenile court relied on the text messages to conclude
that Father “was frustrated while caring for his child.” The court
noted, “Both parents testified that this was not true, however,
the text messages read to the court and the lies admitted to by
[Father] make their testimony not credible.” Thus, the effect of
the text messages was to establish that Father was frustrated
with Younger Child. This frustration was part of the
circumstantial evidence showing that Father was responsible for
Younger Child’s injuries.
¶60 However, even discounting the frustration, there was
extensive other evidence that Younger Child’s injuries were
caused by Father. For example, Younger Child was “awake and
smiling” and “did not appear to have any problems” when
Mother left the house but was severely injured when 911 was
called in the afternoon. Father was the only caretaker present in
the interim. As noted above, the core question in the abuse
adjudication was not whether Father intentionally (versus
knowingly or recklessly) abused Younger Child but rather
whether Younger Child had suffered nonaccidental severe abuse
at all while in Father’s care. See supra ¶¶ 53–54. While Father’s
frustration could well have been probative as to the former point
because it relates to Father’s intent, such frustration is much less
probative as to the latter question. Put another way, regardless
of whether Father intended to abuse Younger Child, there was
abundant other evidence suggesting that Younger Child did
indeed suffer nonaccidental severe abuse while in Father’s
exclusive care.
¶61 Because Father’s frustration was not central to the court’s
determination that Younger Child had suffered nonaccidental
severe abuse, the improper “admission” of the text messages
suggesting such frustration does not undermine our confidence
in that determination.
20160201-CA 26 2018 UT App 29In re J.A.
CONCLUSION
¶62 For the foregoing reasons, the order of the juvenile court
is affirmed.
20160201-CA 27 2018 UT App 29