2013 UT App 190
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF L.M. AND L.M., PERSONS
UNDER EIGHTEEN YEARS OF AGE.
M.V‐L.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20120556‐CA
Filed August 1, 2013
Third District Juvenile, Salt Lake Department
The Honorable Charles D. Behrens
No. 1027720
Colleen K. Coebergh, Attorney for Appellant
John E. Swallow and John M. Peterson, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGES
GREGORY K. ORME and CAROLYN B. MCHUGH concurred.
DAVIS, Judge:
¶1 M.V‐L. (Father) appeals the juvenile court’s ruling
terminating his parental rights to his two daughters, L.M. (Older
Sister) and L.M. (Younger Sister). We affirm the juvenile court’s
ruling.
In re L.M...
BACKGROUND
¶2 Father, the non‐custodial parent of the two girls, maintained
a friendly co‐parenting relationship with the girls’ custodial parent
(Mother).1 The incidents leading up to the termination of Father’s
parental rights began in 2009, after Mother and her paramour,
M.A., were arrested on outstanding warrants. The Division of
Child and Family Services (DCFS) and the juvenile court became
involved at that time, and the court ordered Protective Supervision
Services over Older Sister, Younger Sister, and Mother’s two other
children.2
¶3 In April 2010, Father moved in with Mother and the children
and stayed with them for eight or nine months, during which time
he watched the children and participated in the peer parenting
classes that Mother was required to take.3 Father was aware that
Mother’s relationship with M.A. was part of the reason DCFS and
the courts were involved and was also aware that M.A. abused
Mother. Mother was eventually deemed to be in substantial
1. “We recite the facts in a light most favorable to the juvenile court
findings.” In re L.M., 2001 UT App 314, ¶ 2, 37 P.3d 1188.
2. Mother gave birth to a son (Son), fathered by M.A. in 2010. M.A.
voluntarily relinquished his parental rights to Son. Mother has
another daughter, Half Sister, who has a different father than Son,
Older Sister, and Younger Sister. In addition, prior to the 2009
proceedings, Mother had relinquished her parental rights to four
other children.
3. Older Sister and Younger Sister were found to be dependent as
to Father, and no reunification services were ordered as to him. See
generally Utah Code Ann. § 78A‐6‐105(11) (LexisNexis 2012)
(“‘Dependent child’ includes a child who is homeless or without
proper care through no fault of the child’s parent, guardian, or
custodian.”).
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In re L.M...
compliance with her reunification plan, and the DCFS case was
closed in December 2010.
¶4 The State became involved again in October 2011 after two
particularly severe incidents of domestic violence in which M.A.
held a knife to Mother’s throat, threatened to kill her with a
baseball bat, dragged her by her hair, kicked and punched her, and
attempted to strangle her. One of these incidents was witnessed by
Son and a cousin, and the other by all four of Mother’s children.
¶5 This time, the State elected to proceed directly to the
termination of parental rights as to both Mother and Father,
without offering further reunification services in light of the
services offered to Mother in 2009. The four children were placed
in the same foster care home, and a five‐day termination trial was
held in March 2012.
¶6 At the termination trial, Mother testified that she kept Father
apprised of “everything” going on with the girls, including her
2009 involvement with DCFS and her abusive relationship with
M.A. Mother assured Father that his children were not aware of the
domestic violence going on in the home, explaining that she made
sure her interactions with M.A. occurred in the garage, where they
supposedly could not be heard when the children were in the
home.
¶7 Father testified that he was aware that M.A., a violent gang
member, had essentially been “stalking” Mother and would beat
her and steal and damage her property, but that the children were
not harmed by M.A.’s actions because they did not directly witness
them. Father testified that he encouraged Mother to report the
domestic violence to the police or DCFS, but that he did not do so
himself, considering it a futile endeavor because M.A. could not be
caught in the act.
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In re L.M...
¶8 Both Mother and Father also testified that the children were
not being properly cared for in their foster placement. Of primary
concern were the “sexually reactive behaviors” that Half Sister and
Older Sister began exhibiting in the foster home. These behaviors
included inappropriately exposing themselves and touching the
other children in the foster home.4 The children had disclosed to
the foster mother and a therapist that M.A. had molested Older
Sister and Half Sister and was physically abusive to Son, an infant
at the time. Mother was not aware that M.A. had abused her
children. When the sexually reactive behavior began, the foster
mother contacted DCFS and attempted to work out a plan to keep
all of the children safe while also keeping Mother’s children
together. Ultimately, Half Sister had to be removed from the home
until her sexually reactive behavior could be addressed.
¶9 The juvenile court ultimately terminated Father’s parental
rights, concluding that Father was an unfit parent and neglected his
children. Specifically, the juvenile court found that he was
neglectful based on his failure to take any steps to protect his
children from the domestic violence that he knew was occurring in
their home. Father appeals.5
ISSUES AND STANDARD OF REVIEW
¶10 Father challenges the sufficiency of the evidence supporting
the juvenile court’s determinations that he is an unfit parent, that
he neglected his children, and that it is in the children’s best
4. In addition to Mother’s four children, there were four other
children in the foster home ranging from five years old to eighteen
years old.
5. Mother appeals separately. In re L.M., 2013 UT App 191, 308 P.3d
553.
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In re L.M...
interests for his parental rights to be terminated.6 “[O]n appeal
[f]indings of fact in a parental rights termination proceeding are
overturned only if they are clearly erroneous.” In re D.G., 938 P.2d
298, 301 (Utah Ct. App. 1997) (second alteration in original)
(citation and internal quotation marks omitted); accord In re B.R.,
2007 UT 82, ¶ 12, 171 P.3d 435.
ANALYSIS
¶11 Father argues that the juvenile court’s finding that he failed
to take any action to protect his children from M.A.—i.e., that he
failed to call the police, file for a protective order, or contact
DCFS—is insufficient to support the termination of his parental
rights. Father contends that the actions enumerated by the juvenile
court “would [not] have ensured the protection and safety of his
children from the risks and harms of being exposed to domestic
violence presented to them,” particularly because the police were
already aware of the situation, Mother had assured him that the
6. Father did not request that the State be ordered to provide him
with reunification services, and to the extent he challenges on
appeal the propriety of having his parental rights terminated
without having received such services, he did not raise the issue
until oral argument before this court. We accordingly do not
address this issue. See State v. Dunn, 850 P.2d 1201, 1220 n.17 (Utah
1993) (explaining that a claim made at oral argument, but not
raised in the party’s appellate briefing, is deemed waived); see also
Utah Code Ann. § 78A‐6‐312 (LexisNexis 2012) (listing guidelines
to be considered by a court deciding whether reunification services
are appropriate); id. § 78A‐6‐312(20) (noting that “a parent’s
interest in receiving reunification services is limited”); In re S.O.,
2005 UT App 393, ¶ 11, 122 P.3d 686 (mem.) (per curiam)
(“Reunification services are a gratuity provided to parents by the
Legislature, and appellants thus have no constitutional right to
receive these services.” (citation and internal quotation marks
omitted)).
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children could not hear the violence being perpetrated through the
garage walls, and the children had not disclosed to Father that they
knew of the domestic violence. Therefore, he contends, he “violated
no legal duties” by opting against pursuing such futile protective
measures. Father also asserts that he and the children shared a
loving and bonded relationship and that the children were “subject
to gross neglect in the foster home due to obvious risks of ongoing
sexually reactive behaviors being ignored and perpetuated.”7
I. Grounds
¶12 The Utah Code authorizes the juvenile court to “terminate
all parental rights with respect to a parent if the court finds any one
of the following: . . . (b) that the parent has neglected or abused the
child; (c) that the parent is unfit or incompetent . . . .” Utah Code
Ann. § 78A‐6‐507(1)(b), (c) (LexisNexis 2012). The juvenile court
may also terminate parental rights if “only token efforts have been
made by the parent: . . . (ii) to prevent neglect of the child; (iii) to
eliminate the risk of serious harm to the child; or (iv) to avoid
being an unfit parent.” Id. § 78A‐6‐507(1)(f)(ii)–(iv). “Neglect”
includes “action or inaction causing . . . failure or refusal of
a parent, guardian, or custodian to provide proper or necessary
subsistence, education, or medical care, or any other care necessary
for the child’s health, safety, morals, or well‐being.” Id. § 78A‐6‐
105(27)(a)(iii). The juvenile court must also “consider the welfare
and best interest of the child . . . in determining whether
termination of parental rights shall be ordered.” Id. § 78A‐6‐503(12).
7. Father also asserts that his rights to “a fundamentally fair
process” were violated because his first language is Spanish and
DCFS never provided him with a Spanish interpreter. Because this
argument is not adequately briefed, we do not address it. See Utah
R. App. P. 24(a)(9) (outlining the appellate briefing requirements
for an argument); Jacob v. Cross, 2012 UT App 190, ¶ 2, 283 P.3d 539
(per curiam) (“If an appellant fails to adequately brief an issue on
appeal, the appellate court may decline to consider the
argument.”).
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In re L.M...
¶13 Here, the juvenile court based its decision to terminate
Father’s parental rights on evidence that Father was aware that
M.A. was abusing Mother in the children’s home and that this
“domestic violence was a significant factor in the [2012] removal of
his children” and in DCFS’s involvement in 2009. Contrary to
Father’s assertions, the juvenile court found that Father “was aware
that [his children] had been exposed to domestic violence” and did
not take any steps to protect the children, such as calling the police
or DCFS, or filing for an adult or child protective order. The
juvenile court declined to make any “findings regarding the sexual
abuse” allegations, determining that Father’s “unwillingness or
inability to provide for the children is based upon his prior” and
ongoing “unwillingness to protect or prevent the children from the
domestic violence.”
¶14 We agree with the juvenile court. Father’s arguments as to
the futility of the protective actions suggested by the juvenile court
do not exonerate him from his duty to protect his children from the
violence occurring in their home. Likewise, even if the children
could not hear the abuse through the garage walls, that does not
necessarily prove that they were otherwise unaware that it was
occurring. Indeed, according to Mother’s testimony, all of the
children had witnessed at least one of M.A.’s attacks, and
according to Father’s testimony, Mother was often visibly bruised.
However, the children do not need to have witnessed the violence
firsthand to be aware that it was taking place and to be
psychologically harmed by it. See generally Brooke Kintner, Note,
The “Other” Victims: Can We Hold Parents Liable for Failing to Protect
Their Children from Harms of Domestic Violence?, 31 New Eng. J. on
Crim. & Civ. Confinement 271, 272 (2005) (describing studies that
indicate “that despite victims’ attempts to conceal domestic
violence in the home, children actually witness or are at least aware
of nearly all battering episodes,” and that “[w]itnessing domestic
violence affects children in a similar manner as direct abuse”
(citations and internal quotation marks omitted)). Further, that the
children did not tell Father about the domestic violence could
indicate that they were not close to Father or had other reasons not
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In re L.M...
to share this information with him, just as easily as it could
indicate, as Father argues, that they did not know it was occurring.
Ultimately, the very fact that Mother was unable to keep M.A. out
of her home to protect herself should have been enough to prompt
Father to take action to protect his children, regardless of the
children’s knowledge of the abuse. Cf. In re V.L., 2008 UT App 88,
¶ 23, 182 P.3d 395 (listing as one factor supporting the termination
of the father’s parental rights his “fail[ure] to take any steps to
prevent the children from remaining in” a home in which he knew
there was domestic violence).
¶15 Father attempts to undermine the import of his inaction by
focusing on other measures of his parenting ability, i.e., by pointing
out that his “parenting was not found to fall below any cognizable
legal standard in 2009” and that he pays child support, buys the
children clothes, spends time with his children, talks to them
regularly on the telephone, and otherwise has positive, loving
relationships with his children, as well as with Son and Half Sister.
Father also notes that he had made one offer to take the children
and conducted a brief and fruitless search for more suitable
housing to facilitate their moving in with him. Father’s positive
relationship and other strengths as a parent, as well as his fleeting
efforts to have the children move in with him, however, do not
outweigh the severity of his overall failure to act. The knowledge
that a violent gang member with a lengthy criminal record, whom
Father described as adept at eluding authorities, was regularly
breaking into the home in which his children lived and assaulting
their mother should have prompted any reasonable parent to take
actions that would ensure the safety and best interests of his or her
children. Father was also aware that during at least one of these
incidents, M.A. threatened Mother with a knife. Allowing children
to continue living under these conditions based primarily on the
belief that they will remain blind to and unharmed by reality if
they “hear no evil” and “see no evil” decidedly does not ensure the
children’s safety. Accordingly, the juvenile court had sufficient
evidence to determine that Father neglected his children. Cf. In re
T.M., 2006 UT App 435, ¶ 21, 147 P.3d 529 (noting that the appellate
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In re L.M...
courts “must forebear disturbing the ‘close call’” because “the
juvenile court, with its training, expertise, and superior ability to
assess the credibility of parties and witnesses, . . . is in the best
position to make such a difficult determination” (citations and
internal quotation marks omitted)).8
II. Best Interests
¶16 Next, in determining the best interests of Older Sister and
Younger Sister, the juvenile court noted that “[t]he children are in
need of stability and protection from abuse and neglect” and that
Older Sister and Younger Sister “have been residing in a legal risk
placement where their needs have been met,” and in the same
foster home as Son, their half brother. The foster family has been
providing the children with the necessary medical, dental,
emotional, and psychological care, whereas when the children
were first placed in State custody, Father indicated that were he not
living with his cousin at the time, he would be willing to take
custody of Half Sister and Older Sister, but not, in the State’s
words, “the medically fragile [Younger Sister], his biological
8. We recognize that this was a close case because, as the State put
it, Father is “an atypical father compared to most facing
termination. He did not use drugs, he was consistently employed
throughout the proceedings, never abused his children, and
consistently maintained contact with them,” as well as with Son
and Half Sister. Cf. In re T.M., 2006 UT App 435, ¶ 21, 147 P.3d 529
(affirming the termination of a father’s parental rights where “the
[juvenile] court weighed evidence of Father’s history of poor
choices that negatively impacted the Children’s lives, the stability
and love the Children’s foster home provided, and the Children’s
close bond with their foster family, against evidence of Father’s
efforts to complete his treatment plan, his commitment to provide
for the Children, his employed and drug‐free status, and the
mutual love and bond between Father and the Children”).
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In re L.M...
daughter.” Further, the foster parents are willing to adopt the
children and “have been approved by DCFS as an adoptive home.”
¶17 Father attempts to turn on its head the context of the
sexually reactive behavior exhibited by Half Sister and Older Sister
in the foster home, describing the foster placement as “rampant”
with “sexual acting out” that the foster parents knew about and
ignored. Father ignores the evidence supporting the allegation that
Older Sister had been sexually abused by M.A. and that the
sexually reactive behavior she exhibited in the foster placement
was possibly a manifestation of the psychological trauma caused
by the alleged abuse. We agree with the State that, if anything, “the
children’s physical and emotional condition when they came in to
foster care is actually further evidence of parental neglect” and, we
would add, further evidence that termination of Father’s parental
rights is in the children’s best interests. Accordingly, sufficient
evidence supported the juvenile court’s determination that it is in
the children’s best interests to terminate Father’s parental rights
and allow the children “to be adopted by [the foster] parents into
a home where they will be secure, stable, loved, and protected from
neglect and abuse.”
CONCLUSION
¶18 Sufficient evidence supports the juvenile court’s findings
that Father was neglectful and that termination of his parental
rights was in the children’s best interests. Accordingly, we affirm
the juvenile court’s termination of Father’s parental rights.
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