In re K.K...

2023 UT App 13

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.

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

Opinion
No. 20220050-CA
Filed February 9, 2023

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

Freyja Johnson, Emily Adams, and Hannah K.
Leavitt-Howell, Attorneys 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 JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 D.K. (Father) and B.K. (Mother) are the parents of triplets
K.K., S.K., and S.K. (collectively, the Children). When the
Children were six years old, the State filed a child welfare petition
for custody and guardianship on the grounds that the Children
were neglected and abused by Father and Mother. Following an
 In re K.K.

adjudication hearing on the petition, the juvenile court issued an
order adjudicating the Children as neglected and abused.

¶2 Father now appeals the juvenile court’s abuse adjudication,
arguing that the State failed to prove by clear and convincing
evidence that he abused the Children. We affirm.

BACKGROUND

¶3 In 2019, when the Children were four years old, the State
filed a petition seeking protective supervision services based on
allegations that Father and Mother had engaged in repeated acts
of domestic violence in front of the Children. Thereafter, Father
and Mother agreed to engage in services voluntarily, and the State
eventually dismissed its petition.

¶4 Two years later, however, Father and Mother again
engaged in a series of domestic violence incidents that involved
law enforcement. In May 2021, Father called the police and told
them that Mother had “beat him up.” When officers arrived on
scene and talked to Father, he told them he and Mother were
“fighting about money” and that Mother “swung to hit him but
never touched him.” On June 10, officers were again dispatched
to the family home on a “domestic” call because Father and
Mother were “screaming at each other with the [C]hildren in the
home.” When officers arrived, they could hear the screaming.
Father was uncooperative with the officers, but he eventually left
the home. However, Father returned to the home later that same
night.

¶5 On June 22, Father and Mother were involved in an
altercation that led the State to seek custody and guardianship of
the Children. During this altercation, Father and Mother were
arguing inside the home. Mother was sitting on the couch, and
Father sat on top of her demanding that she give him the keys to
the car. Father then “head butted” Mother and told her to get out

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of the home, which she did. Once Mother was outside, Father
followed her and began punching her “with a closed fist on the
side of her stomach.” Father proceeded to grab a large rock and
chase Mother around the car, “acting like he was going to throw
the rock at her.” The Children were outside of the home for the
duration of the altercation and witnessed Father chasing Mother
and hitting her. Several neighbors also witnessed the altercation
and called the police. When officers arrived, Father was arrested
and taken to jail.

¶6 After Father’s arrest, Mother completed a lethality
assessment, an evaluation given to assess the level of danger an
abused person faces, which resulted in a score of high risk. Mother
did not seek a protective order for herself or for the Children
during the eight days Father was in jail. However, due to the
severity of the prior altercation, the district court entered a
criminal no contact/protective order on July 1. The order
prohibited Father from residing with Mother and the Children.

¶7 On July 8, a caseworker from the Department of Child and
Family Services (DCFS) went to the home for an unannounced
visit. During the visit, the caseworker found Father outside;
Father reported that Mother was inside sleeping. Father allowed
the caseworker to interview the Children. During the interview,
the Children reported that Father and Mother “fight and yell” and
“hurt each other’s bodies.” Father was subsequently arrested for
violation of the criminal no contact/protective order. Thereafter,
the caseworker attempted to talk to Mother, who had been inside
sleeping, but Mother refused to speak with the caseworker.

¶8 Based on the foregoing, the State filed a petition for
custody and guardianship of the Children on the grounds that
they were neglected and abused based on Father and Mother
engaging in domestic violence in the home. Following a shelter
hearing, the juvenile court determined the Children should
remain in Mother’s custody for the time being but ordered Mother

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and the Children to have “absolutely no contact” with Father and
that Mother “immediately notify law enforcement” if Father
appeared at the home.

¶9 Following a series of pretrial hearings, the matter
proceeded to an adjudication trial in December 2021. At trial, the
State presented the testimony of six witnesses: 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.

¶10 According to the neighbors, Father and Mother were
arguing about car keys. As Father approached Mother, “she put
her arms out to stop him . . . and he slapped her hands aside.”
Father then began punching Mother “haymaker style” to her side
and stomach. The punching continued “for a minute or two,” and
Father connected “five to ten” times. After the punching stopped,
Father chased Mother around the front yard, “throwing rocks”
and “bikes and other toys” in the direction of Mother, although
the neighbors did not see any of the objects hit Mother.

¶11 The neighbors testified that during the altercation, two of
the Children were in the front yard “standing behind [Mother]”
and “clinging” to her. Mother was positioned between Father and
the two children, acting as a “buffer” between them. One neighbor
opined that he did not “believe any [of Father’s] aggression was
towards the children,” and that “at no[] point did [he] think [the
two children] were in any sort of danger.” However, the two
children were outside the entire time, “seeing everything.”

¶12 In addition, one neighbor testified that she had witnessed
Father and Mother “screaming” at each other multiple times in
the presence of the Children prior to the June 22 altercation.
Moreover, the neighbor had witnessed Father yelling at the
Children twice and had observed that the Children “are terrified
and trying to do whatever [Father] says to not be in trouble.”

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¶13 The responding officers testified next. One officer testified
that after arriving at the scene on June 22, he interviewed Mother,
who told him that she had been arguing with Father over car keys.
During the argument, Father “sat down on her” to keep her from
leaving, headbutted her in the forehead, and “punched her in the
back of the leg.” After Mother jumped out the window to the front
yard, Father followed her and the two continued arguing. Father
chased Mother around a vehicle parked in the front yard; once he
caught her, he began “punching her in the side underneath her
arms with a closed fist.” Mother was able to break away, but
Father chased her with a rock in his hands. Mother told the officer
the Children were outside with her during the altercation.

¶14 The officer also interviewed Father about the altercation.
Father said he was “upset” because Mother hid the car keys from
him but that “nothing got physical.” Father told the officer he and
Mother had argued and run around the vehicle in the front yard.
Father indicated that he had picked up a rock and held it over his
head, but he did not throw it, nor did he intend to.

¶15 Lastly, the officer testified regarding his observations of the
Children. When the officer arrived at the scene, the Children were
inside the house. The officer interviewed Mother while she was
standing at the front door. During the interview, the officer saw
“at least two” of the Children standing by the front door behind
Mother and “one of the kids popped his head outside” and asked
for stickers. Officer opined that the Children’s demeanor “seemed
calm.” The Children seemed “a little upset that some toys were
. . . strewn about the front yard,” but otherwise they did not seem
“distraught or flustered” by the altercation.

¶16 Mother testified that the June 22 incident started when she
refused to give Father the keys to the car. Mother explained that
she could not remember all the details about the altercation
because she has “trouble remembering things.” However, she did
remember that the altercation began when Father headbutted her

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in the house. After the headbutt, Father and Mother went outside
to the front yard. Although Mother did not remember whether
Father hit her in the yard, she recalled that he “didn’t follow [her]
around the yard,” that he picked up a basket and “threw it up in
the air” but not “at” her, and that he “picked up a rock” but did
not chase her while holding it. Mother maintained that the
Children had not observed the altercation because they were
downstairs inside the house with a roommate where they stayed
until the officers arrived.

¶17 Mother also testified that the Children “were never present
for full on arguments or yelling.” She explained that “as soon as
any argument started,” her roommate would take the Children
downstairs so they would not be able to hear the fighting.
Although Mother did not believe the Children had been impacted
by the fighting, she did believe the Children were aware that they
were sent downstairs to avoid hearing any fighting.

¶18 Father testified last. When asked about the June 22
altercation he invoked his Fifth Amendment right not to testify
because criminal charges were pending against him regarding
that incident. But Father explained that “before” he and Mother
would engage in any verbal arguments, the Children would go
downstairs.

¶19 After considering all the evidence, the juvenile court issued
an adjudication order. In the order the court found, among other
things, that Father and Mother had engaged in numerous acts of
domestic violence, some of which had occurred in the presence of
the Children, including the one on June 22; that when Father and
Mother 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 that they are sent downstairs
because Father and Mother 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

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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.”

¶20 As to Father, the court drew a number of adverse
inferences based on his decision to invoke his constitutional right
to silence when asked specific questions about the June 22
altercation. And as to Mother, the court found that she “is not
concerned” about the Children witnessing her and Father fighting
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 Father “failed to provide proper care
necessary for the health, safety, morals and well-being of the
children in that he has engaged in domestic violence with
[Mother], and [both Father and Mother] failed to protect the
[C]hildren from exposure to domestic violence in the home.” The
court also concluded that “[Father] and [Mother’s] domestic
violence in their home has harmed [the Children]” and,
accordingly, adjudicated the Children as neglected and abused as
to Father.

ISSUE AND STANDARD OF REVIEW

¶21 Father now appeals only the juvenile court’s abuse
adjudication, arguing that the court’s ruling was in error because
the State failed to prove by clear and convincing evidence that he
had harmed or threatened harm to the Children. “We apply
differing standards of review to findings of fact, conclusions of
law, and determinations of mixed questions of law and fact.” In re
E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. We review the juvenile court’s
factual findings deferentially, reversing the court’s findings only
if they are clearly erroneous. Id. ¶ 15. 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.

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¶ 32 (quotation simplified). However, the question of whether the
juvenile court properly applied the governing law to the facts of
the case presents “a law-like mixed question subject to
nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.

ANALYSIS

¶22 At an adjudication trial, the juvenile court must determine
whether “the allegations contained in the abuse, neglect, or
dependency petition are true” by “clear and convincing
evidence.” Utah Code § 80-3-402(1). 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 430 (quotation simplified). Put differently,
this standard requires “the existence of facts that make a
conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

¶23 As relevant here, “abuse” is defined as the “nonaccidental
harm of a child” or the “threatened harm of a child.” Utah Code
§ 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law,
a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91.
“Harm” includes “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.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened
harm” is defined as “actions, inactions, or credible verbal threats,
indicating that the child is at an unreasonable risk of harm or
neglect.” Id. § 80-1-102(92).

¶24 As applied to this case, to satisfy the clear and convincing
standard, the State “needed to present evidence that would allow
the [juvenile] court to conclude that it was very highly probable
that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44,
¶ 9 n.3 (quotation simplified). In reaching this conclusion the

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court may properly “infer harm” based on the evidence
presented. Id. ¶ 14. However, the court may not “speculate” about
the existence of harm absent clear and convincing evidence
demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.

¶25 After considering the evidence presented during the
adjudication trial, the juvenile court concluded the Children were
abused because “[Father] and [Mother’s] domestic violence in
their home has harmed [the Children].” Father argues the court’s
conclusion was in error because the State failed to produce clear
and convincing evidence that he physically harmed the Children
or that the Children were developmentally harmed or
emotionally damaged by observing Father assault Mother and
Father and Mother argue. But even if we were to agree with Father
that the State failed to present sufficient evidence that Father
harmed the Children and were to agree that the juvenile court
erred in adjudicating Father as abusing the Children, Father has
not demonstrated that he was prejudiced by the alleged 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”). As noted above, the court
adjudicated the Children as both neglected and abused, and
Father appeals only the court’s abuse adjudication. Although
Father is correct that “[a]buse and neglect are statutorily defined
and given ‘distinct statuses’” and that “[u]nder the statutory
definitions . . . abuse requires a higher level of improper conduct
from a parent than neglect,” that distinction has no bearing in this
case—and Father has not shown that it is likely to have any
bearing in the future—because the court’s adjudications of neglect
and abuse were based on the same underlying incidents of
domestic violence.

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¶26 When a juvenile court adjudicates a child as either
neglected or abused, that determination brings the child within
the jurisdiction of the court and allows the court to enter
dispositional orders. See Utah Code § 80-3-402. The dispositions
available to the court do not hinge on whether the child was
adjudicated as neglected or abused. Instead, dispositions are tied
to the factual findings about what is going on in the case and are
implemented based on concern for the child’s health and safety
and remedying the underlying issues resulting in the
adjudication. See id. § 80-3-405.

¶27 Here, the juvenile court’s disposition is governed by the
need to address Father’s commission of domestic violence in the
presence of the Children and the risk such behavior will continue.
Services to address this behavior will not differ whether the
underlying adjudication is labeled as neglect or abuse because the
court’s neglect determination was based on the same underlying
facts as the abuse determination: here, Father’s failure to protect
and to provide proper care for the Children as a result of his
engaging in acts of domestic violence.1

1. In his reply brief Father argues he was harmed by the juvenile
court’s abuse adjudication because “an abuse adjudication goes
into a central abuse registry system managed by DCFS” and “the
information in that registry is used for licensing purposes and
prevents individuals who have been adjudicated of abuse from
holding licenses in certain professions.” But this argument misses
the mark. While Father correctly notes that the abuse registry
system—called the Management Information System (the MIS)—
can be accessed by the State for all future cases involving Father,
see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part”
of the MIS called the Licensing Information System (the LIS), see
id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts
relevant to each child welfare case, whereas the LIS is maintained
(continued…)

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¶28 Father cites this court’s decision in In re C.M.R., 2020 UT
App 114, 473 P.3d 184, for the proposition that Father was harmed
by the court’s abuse adjudication, asserting that the findings of
abuse in the adjudication order “will form the basis for whether
[Father] is able to comply with the requirements of [any service
plan] going forward and whether [Father] can be reunited with
the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R.,
who was potentially prejudiced by entering admissions to
allegations regarding a specific additional incident of abuse at the
adjudication hearing, Father’s abuse adjudication was based on
the exact same underlying set of facts as his neglect adjudication.
In this case, Father has not challenged the juvenile court’s neglect
adjudication, nor has he challenged the court’s underlying factual
findings—which support both the neglect and the abuse
adjudications—that he assaulted Mother in the presence of the
Children and repeatedly engaged in heated verbal arguments
with her. Those underlying actions, which form the foundation
for both adjudications, are the reason why he “can only have
supervised visitation with [the] Children” and why “[h]e is not
allowed in the home,” and not because the court adjudicated the
Children as abused in addition to neglected. Because Father has
not challenged the neglect adjudication or demonstrated how the
ramifications flowing from this unchallenged adjudication would

for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an
individual on the LIS may be prohibited from, among other
things, holding licenses in certain professions, see id. § 80-2-
708(2)(a)(v), inclusion on the LIS is not automatic in every child
welfare case. Rather, the LIS identifies only individuals found to
have committed a “severe type of child abuse or neglect.” See id.
§ 80-2-708(1). Because the court did not adjudicate Father as
severely abusing the Children, inclusion on the LIS does not
automatically follow, and Father has not asserted that he has
been—or is likely to be—included therein. Accordingly, Father
has not demonstrated that, in this case, he has sustained any
prejudice as a result of the juvenile court’s abuse determination.

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be less severe than those resulting from an abuse adjudication, he
has not demonstrated that he has sustained any prejudice as a
result of the court’s abuse adjudication.2 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”).

CONCLUSION

¶29 On appeal, Father does not challenge the juvenile court’s
findings that he committed domestic violence in the presence of
the Children or that those actions resulted in him neglecting the
Children by failing to provide them proper care and to protect
them from exposure to domestic violence. Under these
circumstances, even if the juvenile court erred in its separate
abuse adjudication—a conclusion we stop short of reaching—
Father has not demonstrated he was prejudiced by any such error
because he has not challenged the court’s neglect adjudication or
the facts underlying it, which are the same facts underlying the
court’s abuse adjudication, and any court-ordered disposition
will be based upon Father’s own acts and not the adjudication of
abuse.

¶30 Affirmed.

2. Indeed, in the juvenile court’s dispositional order, entered
approximately two months after the adjudication order, Father’s
primary responsibility is to “complete a domestic violence/mental
health assessment . . . and follow any and all of the
recommendations made.”

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