2017 UT App 94
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF A.C.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
K.C.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20170250-CA
Filed June 8, 2017
Second District Juvenile Court, Farmington Department
The Honorable Janice L. Frost
No. 1139124
Jason B. Richards, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 K.C. (Mother) appeals the March 23, 2017 “findings,
conclusions and dispositional order” entered on the State’s
amended petition for protective supervision. Specifically,
Mother appeals that part of the order substantiating the Division
of Child and Family Services’ (DCFS) supported finding that
Mother failed to protect A.C. from sexual abuse by Mother’s
boyfriend. We affirm.
In re A.C.
¶2 Mother neither admitted nor denied the allegations of the
amended petition. Accordingly, the juvenile court deemed the
factual allegations to be true. See Utah R. Juv. P. 34(e)
(“Allegations not specifically denied by a respondent shall be
deemed true.”). The juvenile court found that Mother’s
boyfriend was a registered sex offender who sexually abused a
twelve-year-old girl in January 2004, and that he was convicted
of rape of a child, a first degree felony, and sentenced to six
years to life in prison. The juvenile court found that Mother was
aware of her boyfriend’s criminal history and aware that he was
a registered sex offender. “Knowing and having reason to know
about her boyfriend’s sex abuse history, [Mother] allowed her
child and [her boyfriend] to have contact with each other and
reside together.” While Mother and A.C. resided with Mother’s
boyfriend, the boyfriend sexually abused A.C. In an interview
with law enforcement, A.C. said that the boyfriend and A.C.
showered together nude. A.C. also told law enforcement that the
boyfriend threatened that she would be grounded if she did not
shower with him. A.C. described an incident where the
boyfriend digitally penetrated her vagina while they were
resting in bed together.
¶3 The following additional factual findings are relevant to
Mother’s claims in this appeal. In 2012, prior to getting into a
relationship with the boyfriend, Mother met with the boyfriend’s
counselor and got permission to start dating him. Prior to being
released from his counseling, the boyfriend passed a polygraph
test and a PPG.1 After dating for two years, Mother and her
children moved in with the boyfriend. Parole officers continued
to supervise the boyfriend and came in to check on the family
until August 2016 when he was released from parole. Mother
signed a form with the boyfriend’s parole officer “indicating that
it was appropriate for the boyfriend and her daughter to have
contact with each other.” After DCFS initiated a child welfare
1. PPG is an acronym for “penile plethysmograph” test, which is
intended to measure sexual arousal.
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In re A.C.
investigation of suspected abuse, Mother signed a safety plan
that included requirements that Mother and A.C. would not
reside with Mother’s boyfriend, and that Mother would not
allow contact between the boyfriend and A.C. Mother and the
child thereafter moved in with Mother’s parents.
¶4 The juvenile court’s “review findings, conclusions, and
order” of March 21, 2017, addressed the substantiation issue that
had been under advisement at the adjudication hearing. In that
order, the juvenile court found that Mother’s “actions in
allowing a live-in relationship with the known sex offender was
not reasonable or prudent because [Mother] placed her child in a
position of being sexually abused.” The court also found, “It was
not reasonable for [Mother] to have her child reside with a
known sex offender,” and “was likely not reasonable for
[Mother] not to have ensured that her boyfriend would only
have supervised contact . . . with the child.” Finally, Mother’s
“actions were not reasonable in preventing sexual abuse and her
failure to act reasonably caused her child to be sexually abused
by her boyfriend.” The juvenile court found in the March 21,
2017 order that the boyfriend sexually abused A.C. and that
Mother neglected A.C. by failing to protect the child. In the
subsequent dispositional order entered on March 23, 2017, the
juvenile court found, “by a preponderance of the evidence that
the supported findings of [DCFS] are substantiated and includes
the finding in its order, within the meaning of Utah Code Ann.
§ 78A-6-323 and 62A-4a-1006.”
¶5 Utah Code section 78A-6-323 states, in relevant part:
(1) Upon the filing with the court of a petition
under Section 78A-6-304[2] by the Division of
2. Utah Code section 78A-6-304 defines a “petition” as “a
petition to commence proceedings . . . alleging that a child is[]
(a) abused[,] (b) neglected[,] or (c) dependent. See Utah Code
Ann. § 78A-6-304(1) (LexisNexis 2012).
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In re A.C.
Child and Family Services or any interested
person informing the court, among other
things, that the division has made a supported
finding that a person committed a severe type
of child abuse or neglect as defined in Section
62A-4a-1002, the court shall:
(a) make a finding of substantiated,
unsubstantiated, or without merit;
(b) include the finding described in Subsection
(1)(a) in a written order; and
(c) deliver a certified copy of the order
described in Subsection (1)(b) to the
division.
Utah Code Ann. § 78A-6-323(1) (LexisNexis Supp. 2016). Utah
Code section 62A-4a-1002(1)(a)(i)(C) defines “severe type of
child abuse” to include sexual abuse of a child. Id. § 62A-4a-
1002(1)(a)(i)(C) (LexisNexis 2011). Thus, the boyfriend’s sexual
abuse of A.C. was a severe type of child abuse, as defined by
statute. An adjudication of a supported finding of abuse or
neglect that is not a severe type of child abuse or neglect “may
be joined in the juvenile court with an adjudication of a severe
type of child abuse or neglect.” Id. § 78A-6-323(4) (LexisNexis
Supp. 2016). Therefore, the juvenile court could adjudicate the
request to substantiate the supported finding of failure to protect
by Mother along with the adjudication of the supported finding
that the boyfriend sexually abused A.C. Accordingly, the
juvenile court in this case was informed in the petition that
DCFS had made supported findings that the boyfriend sexually
abused A.C. and Mother failed to protect A.C. from sexual
abuse.
¶6 “[I]n order to overturn the juvenile court’s decision, [t]he
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 (second alternation in original) (citations and internal
quotation marks omitted). “When a foundation for the court’s
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In re A.C.
decision exists in the evidence, an appellate court may not
engage in a reweighing of the evidence.” Id.
¶7 Mother seeks reversal only of the juvenile court’s
substantiation of DCFS’s supported finding that Mother failed to
protect A.C. Mother does not dispute that A.C. was properly
adjudicated to be an abused child or that Mother’s boyfriend
abused A.C. However, Mother argues that the juvenile court’s
findings of fact do not support its order substantiating DCFS’s
supported finding of failure to protect. Mother argues that the
juvenile court’s factual findings “outline the protective factors
. . . Mother set into place prior to moving in with [her boyfriend]
with her two children.” Mother argues that although she was
aware of her boyfriend’s criminal history, she “dated and
participated in counseling with [her boyfriend] for over three
years before deciding to move in with him.” She asserts that her
boyfriend took and passed a polygraph test and a PPG, which
she characterizes as “a common indicator that sex offender
treatment is successful.” Therefore, Mother asserts that she
“placed enough protective factors into place and she thought her
children would be safe.” Mother also states that immediately
after she learned of the abuse, she signed a safety plan, moved
out of her boyfriend’s home, and ceased contact with him.
¶8 Mother further argues that there was no evidence that she
was aware of the abuse until after it occurred, that she failed to
report the abuse, or that she attempted to conceal it. She
challenges the juvenile court’s ruling at the March 21, 2017
hearing as relying solely on the fact that Mother brought her
children to live with a convicted sex offender to support its
conclusion that she failed to protect A.C. from abuse. Mother
argues that under the juvenile court’s reasoning, “[e]ven if you
take steps to mitigate the risk, like attending couples’ therapy,
ensuring compliance with parole responsibilities, and requesting
the offender to undergo testing to verify compliance, even
success, with treatment is not enough to mitigate a failure to
protect finding on the licensing database of the Division.”
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In re A.C.
¶9 The State and the Guardian ad Litem contend that
Mother’s petition on appeal mischaracterizes the juvenile court’s
findings of fact and “takes substantial liberties in their
interpretation” by asserting that the findings support that
Mother put protective measures in place that should preclude
any conclusion that she failed to protect A.C. from sexual abuse.
The juvenile court did not characterize any of Mother’s actions
as protective measures. While Mother contends that the juvenile
court found she engaged in couples’ therapy, the factual finding
stated only that she “met” with the boyfriend’s counselor. The
State argues that “[t]he boyfriend’s probation officer did not
validate her decision to move in with him, rather Mother signed-
off on the arrangement with the probation officer.” The juvenile
court’s actual finding states, “The mother signed a form with
[her boyfriend’s] parole officer indicating that it was appropriate
for [her boyfriend] and her daughter to have contact with each
other.” There is no support for Mother’s implicit assertion that
the parole officer could approve of the living arrangement and
thereby insulate Mother from her parental responsibility to keep
A.C. safe from abuse.
¶10 Mother claims that because she allegedly put substantial
protective measures into place, the juvenile court’s
substantiation decision means that “every person who brings a
child to live with a convicted sex offender is guilty of ‘failure to
protect.’” However, the juvenile court’s decision was limited to
the facts of this case, which do not support Mother’s central
claim that she took substantial protective measures to mitigate
any risk to her children. Instead, the undisputed facts
demonstrated that Mother allowed unsupervised contact
between her boyfriend and A.C., which allowed him to shower
nude with A.C. and to digitally penetrate her vagina. The
assertion that Mother was not aware that the abuse was
occurring does not support the claim that she took adequate
protective measures. Under these circumstances, the juvenile
court was not called upon to decide what, if any, protective
measures would be sufficient to prevent a parent from being
found to have failed to protect a child from abuse by a known
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In re A.C.
sex offender with whom the child is residing. Similarly, this
court does not address that hypothetical issue in this appeal.
¶11 The juvenile court’s decision to substantiate the
supported finding that Mother failed to protect A.C. is
supported by the juvenile court’s findings of fact and by the
undisputed facts alleged in the State’s petition. Because “a
foundation for the court’s decision exists in the evidence,” this
court “may not engage in a reweighing of the evidence.” In re
B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. Accordingly, we affirm.
20170250-CA 7 2017 UT App 94