In re K.K...

2023 UT App 14

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20220051-CA
Filed February 9, 2023

Second District Juvenile Court, Farmington Department
The Honorable Sharon S. Sipes
No. 1176751

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Candace
Roach, Attorneys for Appellee
Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.
HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 This is a companion case to and arises out of the same facts
involved in In re K.K., 2023 UT App 13, which also issues today.
In short,1 B.K. (Mother) and D.K. (Father) are the parents of

1. A more fulsome description of the relevant facts and procedural
history can be found in In re K.K., 2023 UT App 13, the case in
(continued…)
 In re K.K.

triplets K.K., S.K., and S.K. (collectively, the Children). When the
Children were six years old, the State filed a petition for custody
and guardianship on the grounds that the Children were
neglected and abused by Mother and Father. The underlying facts
giving rise to the petition were multiple acts of domestic violence,
culminating in a physical and boisterous verbal altercation
between the couple that occurred on June 22, 2021, and that took
place in front of the Children and other witnesses.

¶2 Following an adjudication trial on the petition, during
which the juvenile court heard testimony from Mother, Father,
two neighbors who had witnessed the June 22 altercation, and
two police officers who had responded to the neighbors’ 911 calls
regarding the June 22 altercation, the court issued an order
adjudicating the Children neglected and abused as to Mother.

¶3 In the adjudication order, the court found, among other
things, that Mother and Father had engaged in numerous acts of
domestic violence, some of which had occurred in the presence of
the Children, including on June 22; that when Mother and Father
fight they sometimes send the Children downstairs to wait with a
roommate, which had occurred two or three times that year; that
the Children are aware they are sent downstairs because Mother
and Father fight; that “[a]ccording to the [C]hildren, [Father] and
[Mother] fight and yell and hurt each other’s bodies”; and that
“[t]he [C]hildren have experienced domestic violence with
enough frequency that they appear calm during incidents
between their parents . . . even though the parents ‘fight a lot and
hurt’ each other.”

¶4 As to Mother, the court found she was not yelling back at
Father during the June 22 altercation but that she did yell at him
on another occasion during which officers were dispatched to the

which we adjudicated Father’s appeal. In this case, we adjudicate
Mother’s appeal.

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house on a “domestic” call. In addition, the court found that
Mother “is not concerned” that the Children witness her and
Father fight and that her “demeanor and testimony”—including
her inability to recall much of what happened on June 22—“is in
tune with her desire to protect [Father] rather than address the
domestic violence that exists in her home.” Based on these
findings, the court concluded that Mother “has failed to protect
the [C]hildren from exposure to domestic violence in the home”
and that “[Father] and [Mother’s] domestic violence in their home
has harmed the[] [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶5 Mother now appeals the juvenile court’s neglect and abuse
adjudications, asserting the court erred in determining that she
neglected and abused the Children. We review the juvenile
court’s factual findings deferentially, reversing the court’s
findings only if they are clearly erroneous. In re E.R., 2021 UT 36,
¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court
either “failed to consider all of the facts or reached a decision
against the clear weight of the evidence.” Id. ¶ 32 (quotation
simplified). And we review the juvenile court’s underlying legal
determinations nondeferentially for correctness. See In re A.B.,
2022 UT 39, ¶¶ 27–28.

ANALYSIS

¶6 Mother argues the juvenile court erred in determining that
the State had proved by clear and convincing evidence that she
neglected and abused the Children “by exposing them to
domestic violence.” Clear and convincing evidence is an
“intermediate standard of proof” that “implies something more
than the usual requirement of a preponderance . . . of the evidence;
and something less than proof beyond a reasonable doubt.”
Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d

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430 (quotation simplified). “For a matter to be clear and
convincing to a particular mind it must at least have reached the
point where there remains no serious or substantial doubt as to
the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407,
¶ 42, 267 P.3d 930 (quotation simplified).

¶7 Because neglect and abuse are distinct, with different
statutory definitions, we address Mother’s challenge to the
juvenile court’s adjudications separately. With regard to Mother’s
neglect adjudication, we conclude the court did not err in
determining that she neglected the Children. As to the court’s
abuse adjudication, we conclude that Mother, like Father, cannot
show prejudice resulting from the abuse adjudication where the
underlying facts giving rise to both adjudications are the same.
Accordingly, we decline to address the merits of Mother’s
challenge to the abuse adjudication.

I. Neglect

¶8 To prove that Mother neglected the Children, the State
needed to present clear and convincing evidence that Mother’s
“action[s] or inaction[s]” caused the Children to experience a
“lack of proper parental care . . . by reason of the fault or habits
of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide
proper . . . care necessary for [the Children’s] health, safety,
morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii).
Mother argues the juvenile court’s conclusion that she neglected
the Children by “‘allowing’ them to be exposed to her abuse at
Father’s hands” does not satisfy the statutory definition of
neglect. She further contends that the court “engaged in
unwarranted assumptions that are contrary to the well-settled
notions underlying the Battered Woman Syndrome” by
concluding that Mother’s “behavior constituted ‘nonaccidental’
conduct or that her behavior was due to her ‘faults or habits.’” We
disagree.

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¶9 The evidence presented at trial included testimony from
six witnesses who detailed Father and Mother’s history of
engaging in domestic disputes with each other and specifically
described the altercation that occurred on June 22. The testimony
indicated that two of the children were present during the June 22
altercation and were observed “clinging” to Mother outside in the
front yard while Father argued with her, punched her, and threw
objects at her. One of the officers who responded to the June 22
altercation testified that the two children who had witnessed the
altercation “seemed calm” and were not “distraught or flustered
at all.”2 The officers acknowledged they had been called to Mother
and Father’s house prior to the June 22 altercation on a “domestic”
call after neighbors reported Mother and Father were screaming
at each other.

¶10 Mother also testified that on many occasions she tried to
prevent the Children from observing her and Father fight. To
accomplish this, “as soon as any argument started” she would
send the Children downstairs with her roommate, where they
would wait until the fight was over. Despite making this effort,
Mother testified that she believed the Children were aware they
were sent downstairs to avoid hearing any fighting. Moreover, the
evidence also showed that Mother repeatedly allowed Father to
return home after the court issued a criminal no contact/protective
order and that she minimized the severity of the domestic
violence. Mother was also largely unwilling to testify at trial about
the June 22 altercation, claiming that she had “trouble
remembering” much of what happened. Based on this evidence,
the juvenile court found, “[Mother] is not concerned that the
[C]hildren are subjected to the argument[s] between [Mother] and

2. The juvenile court did not take this evidence to mean that the
Children had not been adversely affected by their parents’
inappropriate behavior. Rather, the inference drawn by the court
was that the parental conflict had been so pervasive that the
Children had become somewhat numb to it.

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[Father]. [Mother’s] demeanor and testimony is in tune with her
desire to protect [Father] rather than address the domestic
violence that exists in her home.”

¶11 As described above, in its adjudication order, the juvenile
court made several findings in support of its determination of
neglect as to Mother. Those findings address Mother’s ongoing
relationship with Father and the violent dynamic of their
relationship, Mother’s knowledge that the Children were aware
of her fights with Father despite her attempts to shield them from
the violence, and Mother’s apparent lack of concern or desire to
extricate herself from future interactions with Father. Under Utah
law, a parent “ha[s] a statutory duty not to knowingly place [their]
child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d
76. By voluntarily returning to the abusive relationship with
Father, Mother ignored this duty by “potentially subjecting the
[Children] to witness, or be the victim of, further abuse.” See id.
Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d
749, a parent’s act of domestic violence can have adverse impacts
on a child, even if there is no evidence of violence toward the child
and even if the child does not directly witness the violence.
Relying on “both common sense and expert opinion,” this court
recognized that children who are exposed to domestic violence
may suffer “direct physical and psychological injuries,”
regardless of whether they are physically harmed. Id. ¶¶ 20–21
(quotation simplified). Among other things, children who observe
domestic violence “may be taught that violence is an acceptable
way to handle issues with loved ones,” which “breeds a culture
of violence in future generations. . . . Abused children are at great
risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified).
Although it is unfortunate that Mother is a victim of domestic
violence, her decision to knowingly return to Father and to protect
him rather than to protect the Children despite her knowledge
that the Children are aware of the abuse in the home satisfies the
statutory definition of neglect.

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¶12 We recognize that most, if not all, of the domestic violence
at issue in this case was committed by Father against Mother and
that Mother was therefore often the victim rather than the
perpetrator. But under Utah’s statutory definition of neglect,
under certain circumstances, even victims of domestic violence
can “neglect” their children if they fail to take sufficient steps to
protect them from the domestic violence present in the home or if
they choose to prioritize their relationship with the perpetrator of
the violence over the need to protect their children. After all,
neglect can stem from either “action or inaction” on the part of a
parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction”
in question causes either “lack of proper parental care of a child
by reason of the fault or habits of the parent” or “failure or refusal
of a parent . . . to provide . . . care necessary for the child’s health,
safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii).
Here, the juvenile court found that Mother was “not concerned”
about protecting the Children from domestic violence and that
Mother had a “desire to protect [Father] rather than address the
domestic violence that exists in her home.” These findings were
supported by substantial evidence presented at trial. And these
facts, as found by the court, constitute “neglect” as our legislature
has defined that term. In short, Mother’s “inaction” in failing to
protect the Children from exposure to domestic violence and
prioritizing her toxic relationship with Father resulted in a failure
to provide the “care necessary for [the Children’s] health, safety,
morals, or well-being” and caused the Children to experience a
“lack of proper parental care.” See id.

¶13 Mother resists this conclusion by contending the juvenile
court improperly relied on In re C.C.W. for “the proposition that
children are harmed by domestic violence in the home.” She
asserts the court’s reliance on In re C.C.W. was unwarranted
because that case concerned a proceeding to terminate parental
rights whereas this case concerns abuse and neglect adjudications.
While Mother is correct that the two proceedings are different,
those differences do not bear on whether the court could properly

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rely on the research and studies cited in In re C.C.W. supporting
the general proposition that domestic violence is harmful to
children. See 2019 UT App 34, ¶ 20. Termination proceedings and
abuse and neglect adjudications are both governed by the Utah
Juvenile Code, see Utah Code § 80-4-301 (termination of parental
rights); id. § 80-3-201 (abuse or neglect proceedings), and the
statutory definitions of “neglect,” “abuse,” “harm,” and
“threatened harm” are the same in both proceedings, see id. § 80-
1-102(1), (37), (58)(a), (92) (providing definitions applicable to
provisions of Title 80, Utah Juvenile Code). Accordingly, it does
not follow that the court may properly consider the effect of
domestic violence in finding neglect in one proceeding but not the
other.

¶14 In addition, Mother asserts that the juvenile court “rel[ied]
on the unfounded presumption that Mother’s decision to
maintain a relationship with Father constituted a conscious failure
to protect the Children from exposure to domestic violence.” In so
doing, Mother posits that the juvenile court ignored the directive
offered in In re C.C.W. cautioning courts “to avoid unnecessarily
drawing negative inferences from a battered spouse’s decision to
maintain a relationship with the batterer, or from a battered
spouse’s decision to decline to immediately seek help.” See 2019
UT App 34, ¶ 19 n.4. But that is not what happened here.

¶15 In this case, the juvenile court analyzed the evidence before
it in adjudicating Mother for neglect. Thus, the court’s conclusion
was not based on an unfounded presumption. As previously
discussed, the evidence the court considered included testimony
that Father had engaged in multiple acts of domestic violence in
the presence of the Children. And based on Father’s multi-year
track record of assaulting Mother, even after services were
provided to him, the court could reasonably conclude that Father
is likely to continue perpetrating acts of domestic violence against
Mother in the future and that the Children will continue to be
exposed to the violence if Mother fails to take action. In short, the

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court’s determination that Mother failed to provide the proper
care for the Children’s health, safety, morals, or well-being by
failing to protect them and prioritizing her relationship with
Father was based on the evidence presented at trial and not on an
unwarranted presumption.

¶16 Finally, Mother misconstrues the directive offered in In re
C.C.W. cautioning courts to “avoid unnecessarily drawing
negative inferences from a battered spouse’s decision to maintain
a relationship with the batterer.” See id. Mother contends that by
adjudicating her for neglect, the juvenile court made an
“automatic determination that both the batterer and victim are
responsible as a unit,” which in turn results in the victim being
blamed for the domestic violence. While we are sympathetic to
Mother and acknowledge that extricating oneself from an abusive
relationship can often prove difficult, see In re L.M., 2019 UT App
174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134,
¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say
that a parent’s status as a domestic violence victim excuses the
parent’s duty to protect the children or provides the parent with
license to elevate the relationship with the abuser over the safety
of the children. Indeed, the directive offered in In re C.C.W. merely
cautions courts to “avoid unnecessarily drawing negative
inferences” about a victim’s decision to stay in an abusive
relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the
court from considering domestic violence issues in their entirety,
nor does it provide absolution for a parent who continues to
expose a child to domestic violence. To find otherwise would be
contrary to precedent. See, e.g., In re L.M., 2019 UT App 174, ¶ 8
(“A parent who maintains a relationship with an abusive partner
jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20,
147 P.3d 529 (collecting cases and observing that “Utah case law
indicates that courts have minimal empathy for parents whose
strong emotional ties to their spouses or significant others
jeopardize their children’s safety”).

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¶17 Accordingly, we affirm the court’s neglect adjudication.

II. Abuse

¶18 The juvenile court determined that Mother both neglected
and abused the Children by failing to protect them from exposure
to domestic violence and that Father and Mother’s “domestic
violence in their home has harmed the[] [C]hildren.” Mother
argues the court’s abuse adjudication was in error because the
State failed to produce clear and convincing evidence of abuse as
it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B),
(37)(a)–(b) (defining abuse as including “nonaccidental harm of a
child” and “threatened harm of a child” and defining harm as
“physical or developmental injury or damage” and “emotional
damage that results in a serious impairment in the child’s growth,
development, behavior, or psychological functioning”). Mother
raises a fair point that other than applying the general principles
set forth in In re C.C.W. to infer harm, the State did not present
specific evidence that the Children had sustained harm, and the
court made no specific findings—other than that the Children
appeared calm during incidents of domestic violence between
their parents—that the Children were developmentally harmed
or suffered the sort of emotional damage that constituted serious
impairment to their growth, development, behavior, or
psychological functioning.3

¶19 But even if we were to agree with Mother that the juvenile
court erred in adjudicating the Children as abused as to Mother,

3. We do not intend to suggest the State could never demonstrate
that a parent who is the victim of domestic violence has “abused”
his or her children, as that term is statutorily defined. We agree
with the general sentiments expressed in the concurring opinion
that such a path is possible but is more difficult than
demonstrating “neglect” and would require specific evidence and
findings. See infra ¶¶ 22–27.

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Mother cannot show she was prejudiced by any such error. See In
re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is
prejudicial only if a review of the record persuades the appellate
court that without the error there was a reasonable likelihood of a
more favorable result for the appellant.” (quotation simplified));
In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the
termination of a father’s parental rights despite the juvenile
court’s reliance on improper findings because such reliance did
not result in “prejudicial error”). Mother claims that being labeled
an abuser “negatively affect[s] her ability—going forward—to
perform the primary caretaking responsibilities to [the]
Children.” But Mother does not demonstrate how the court’s
abuse adjudication will affect her more severely or more
negatively as this case proceeds than the neglect adjudication will.
See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to
reach the merits of a challenge to an abuse adjudication where the
parent did not challenge a neglect adjudication based on the same
facts because the parent did not demonstrate that the abuse
adjudication carried “some collateral consequences . . . that [did]
not follow from a neglect determination”). Indeed, post-
adjudication dispositions turn on the factual circumstances that
bring a family into court rather than on the category of
adjudication and are implemented based on concern for the
child’s health and safety and remedying the underlying issues
resulting in the adjudication. See Utah Code § 80-3-405. Here, as
found by the juvenile court, whether her inaction is labeled as
abuse or neglect, Mother failed to protect the Children from
exposure to domestic violence and prioritized her relationship
with Father over the well-being of the Children. The services that
will be offered to Mother and the Children to remedy these
circumstances are not likely to differ based on whether the
adjudication is for neglect or abuse. We agree with the guardian
ad litem’s assertion that “any or all three categories of
adjudication (abuse, neglect, dependency) trigger the same
dispositional provisions.” Accordingly, because Mother has not
demonstrated how the court’s abuse adjudication will affect her

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any differently than the neglect adjudication, she cannot show
prejudice.4 See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based
on the same facts as the current case, that Father could not show
prejudice stemming from the court’s abuse adjudication because
the abuse adjudication was based on the same underlying facts
supporting the neglect adjudication).

CONCLUSION

¶20 We are cognizant that Mother is a victim of domestic
violence, not a perpetrator. Nevertheless, the primary purpose of
the State’s petition alleging neglect was to protect the Children,
not to punish Mother. Based on the foregoing, we conclude the
evidence presented by the State was sufficient to support the
juvenile court’s neglect adjudication as to Mother. And even if the
juvenile court erred in its abuse adjudication, Mother has not
persuaded us that she was prejudiced by any such error because
she has not shown how she will be negatively affected by the
abuse adjudication over and above the effect of her neglect
adjudication. Accordingly, we affirm.

HARRIS, Judge (concurring):

¶21 I concur fully in the majority opinion. I write separately to
offer a word of caution to juvenile courts when it comes to finding
that a parent who is a victim of domestic violence has “abused”
or “neglected” his or her children by allowing them to be exposed

4. In fact, a review of the underlying docket in Mother’s case
reveals that Mother and the Children have done so well in their
treatment and services that the juvenile court released the
Children from DCFS’s protective supervision and terminated the
court’s jurisdiction last fall.

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to domestic violence in the home. In my view, Utah’s statutory
definitions of the terms “abuse” and “neglect” are broad enough
to make it possible, in certain situations, for courts to determine
that a domestic violence victim has committed abuse or neglect.
But courts should exercise caution in doing so, and should make
these rather striking findings only in appropriate cases.

¶22 With regard to neglect, we hold today that the juvenile
court’s determination was appropriate in this case, because
Mother’s “inaction” in failing to protect the Children from the
domestic violence occurring in the home constituted a lack of
proper parental care, as well as a failure to provide care necessary
for the Children’s health, safety, or well-being. See supra ¶¶ 8–16;
see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis
Supp. 2022). In my view, the key to affirming this determination,
in this case, was the court’s finding that Mother had prioritized
her relationship with her abuser over the safety and well-being of
the Children. Evidence presented at trial indicated that Mother
repeatedly allowed Father to return to the home despite the
existence of protective orders making it unlawful for him to be
there, and that she was less than fully cooperative with DCFS and
law enforcement officials who were investigating the situation.
This sort of evidence, to my way of thinking, is critical to any
determination that a domestic violence victim has neglected his
or her children. Absent evidence like this, domestic violence
victims will likely not have committed actions or inactions
significant enough to constitute “neglect” of their children.

¶23 And given the differing statutory definitions, it is even
more difficult for domestic violence victims to be considered to
have “abused” their children than it is for them to be considered
to have “neglected” their children. The statutory definition of
“abuse” is (justifiably) narrower than the statutory definition of
“neglect.” In order to find that abuse has occurred, a court in most
cases (that is, in cases not involving sexual exploitation, sexual
abuse, human trafficking, or the child’s death) must find either (a)

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“nonaccidental harm of a child” or (b) “threatened harm of a
child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT
44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must
find harm.”).

¶24 A finding that a child has sustained nonaccidental harm
involves a backward-looking determination, one that must be
supported by evidence that the child has already been harmed.
And the kind of harm at issue—according to strict statutory
definition—must be either “physical or developmental injury or
damage” or the sort of “emotional damage that results in a serious
impairment in the child’s growth, development, behavior, or
psychological functioning.” See id. § 80-1-102(37)(a), (b). I can
envision a court, in many cases, being able to make a finding of
physical harm without the necessity of expert testimony, but in
my view a finding of already-sustained “developmental injury or
damage” or emotional damage severe enough to cause “a serious
impairment in the child’s growth, development, behavior, or
psychological functioning” will often require expert testimony. I
think this will nearly always be the case where the question
presented is whether a child has already sustained non-physical
“harm” as a result of a victim parent failing to protect the child
from violence in the home.

¶25 A finding that a child has sustained “threatened harm” is—
by contrast—more of a forward-looking inquiry, under the
applicable statutory definition. As our legislature has defined it in
this context, “threatened harm means actions, inactions, or
credible verbal threats, indicating that the child is at an
unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1-
102(92) (emphasis added). A child can sustain “threatened harm”
even if the child has not yet sustained actual “harm.” Pursuant to
statutory definition, a child sustains “threatened harm” when,
through the “actions” or “inactions” of a parent, the child is
placed at “unreasonable risk” of future “developmental injury or
damage” or “emotional damage” severe enough to seriously

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impair the “child’s growth, development, behavior, or
psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92).
In cases involving parents who are victims of domestic violence,
a juvenile court could perhaps more easily make a finding of
“threatened harm” than already-sustained past harm. Indeed, we
have already recognized that “domestic violence can have
adverse impacts on a child, even if that child is not the direct
object of such violence, and even if the child does not directly
witness the violence.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440
P.3d 749. A parent victim’s failure to adequately protect a child
from violence in the home could—if the violence was frequent
and severe enough, and likely to continue in the future—lead to a
supported finding that the parent, through inaction, has placed
the child at an unreasonable risk of future developmental
damage. It may even be possible, in appropriate cases, for such a
finding to be made without expert testimony.

¶26 But in order to reach “abuse” through “threatened harm”
in cases involving victims of domestic violence, a court must make
specific and supported findings regarding each of the elements of
the statutory definition. First, a court must specify that it is finding
“abuse” by way of “threatened harm” (as opposed to through a
finding of already-sustained “nonaccidental harm”). Second, the
court must make a detailed finding of threatened harm on the
facts of the case at hand, including specific identification of the
“action or inaction” taken by the parent that leads to the
“unreasonable risk” of future harm, as well as a satisfactory
explanation of why the risk of future harm is “unreasonable.”
Third, the court must specify the type of future harm it believes
the child is at risk of sustaining, whether it be developmental
injury or severe emotional damage, and should explain—with
reference to specific evidence in the record—why the court
believes the child is likely to sustain that particular type of harm.

¶27 In short, Utah’s statutory definitions of “neglect” and
“abuse” are broad enough to allow courts, in appropriate cases,

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to find that a parent who is the victim of domestic violence has
committed neglect or abuse by failing to protect his or her child
from domestic violence in the home. But courts should exercise
caution in so doing, and should reserve such findings for those
cases in which the domestic violence is severe and sustained and
in which the victim parent has taken specific actions or inactions
aimed at prioritizing his or her relationship with the abuser over
care and protection of the children.

¶28 In this case, I concur in the majority’s view that the court
made appropriate findings of neglect with regard to Mother. I also
concur in the majority’s decision not to reach the merits of the
propriety of the court’s findings regarding abuse as to Mother, but
I register serious reservations about the adequacy and sufficiency
of those findings, and urge courts to exercise caution in making
neglect and abuse determinations in situations like this one.

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