State ex rel. H.M. v. State

• Docket Number: 20220774-CA
• Decision Date: 13 October 2023
• Citation: State ex rel. H.M. v. State, 538 P.3d 242 (Utah App. 2023)
• Parties: STATE of Utah, IN the INTEREST OF H.M. and D.M., persons under eighteen years of age. G.B., Appellant, v. State of Utah, Appellee.
• Court: Utah Court of Appeals

538 P.3d 242

STATE of Utah, IN the INTEREST OF H.M. and D.M., persons under eighteen years of age.

G.B., Appellant,

v.State of Utah, Appellee.

No. 20220774-CA

Court of Appeals of Utah.

Filed October 13, 2023

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee State of Utah

Jonathan P. Thomas, Attorney for Father

Martha Pierce, Salt Lake City, Guardian ad Litem

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

TENNEY, Judge:

¶1Mother and Father separated in 2015 and were divorced in 2018.They had two children during their marriage—D.M. and H.M. (collectively, the Children).From 2015 until 2020, Mother repeatedly told state authorities that Father had physically and sexually abused the Children.In several instances, Mother prompted the Children to make allegations against Father too.Although authorities investigated the reports, none of the investigations resulted in a finding that Father had abused the Children.Also, on two occasions in 2020, Mother absconded with the Children during times in which she did not have custody.Both times, law enforcement was involved in locating and returning the Children to Father's custody.

¶2 After Mother encouraged one of the Children to file a new report of abuse against Father in January 2022, the Division of Child and Family Services(DCFS) filed a petition to terminateMother's parental rights.At the close of a several-day trial, the juvenile court issued an order finding that Mother"cannot stop her destructive behavior" of making "false allegations" against Father.The court then terminated Mother's parental rights.

¶3Mother now appeals the termination decision.For the reasons set forth below, we affirm.

BACKGROUND

¶4Mother and Father had two children during their marriage: D.M., who was born in 2012, and H.M., who was born in late 2014.Mother and Father separated in 2015 when H.M. was approximately three months old, and their divorce was finalized in 2018.Mother subsequently married another man (Stepfather).

Allegations of Abuse from 2015 Through 2020¹

¶5 The reports of abuse began in February 2015, when DCFS received a referral alleging that during the marriage between Mother and Father, Father would "throw things, but not at [Mother], and punch holes in the doors."DCFS chose not to accept this referral as a basis for action.In June 2015, DCFS received a referral alleging that Father views pornography "including teenaged girls."This referral was unaccepted because there were no allegations that the Children were being abused or neglected.

¶6 In May 2016, DCFS received a referral alleging that after D.M. came back from parent-time with Father, he would not sit down because "his bottom hurt" and his anus was "red and inflamed."The referral was not accepted because D.M. did not make any disclosure that any abuse had occurred.In September 2016, DCFS received a referral alleging that the Children had returned from parent-time with Father with black eyes and that Father commonly yelled at the Children, which allegedly made D.M. fearful to get out of bed to use the bathroom at night.The referral was unaccepted because the Children did not report any injuries from Father or provide specific details about what Father was saying to the Children.

¶7 In early October 2016, DCFS received a referral alleging that the Children were being physically abused by Father and that H.M. had been sexually abused by Father.The referral was accompanied by photographs of a bruise on H.M.’s leg.When a DCFS worker interviewed D.M. about these allegations, D.M. reported that Father had pushed him into a "monkey bag," but D.M. couldn't explain what a "monkey bag" was.D.M. made no disclosures of sexual abuse.

¶8 In late October 2016, Mother contacted law enforcement and reported that H.M. had complained of his "bum hurting" after returning from parent-time with Father.Mother also said that she changed H.M.’s diaper and that there was blood present and that she had also observed tearing on his anus.Mother told law enforcement that H.M. had said that Father put his finger "in there."DCFS interviewed H.M. the following day.During that interview, H.M. said that he had been "hurt" at "daddy's house," but he made no other disclosures.Shortly thereafter, H.M. underwent a physical examination at the Children's Justice Center (the CJC), but no evidence of sexual or physical abuse was discovered during this examination.

¶9 In September 2017, DCFS received a referral alleging that D.M. had been physically abused by his paternal grandfather.When DCFS interviewed D.M., D.M. said that "grandpa pushed him backwards and he fell on the rocks, because he didn't hear grandpa."When the grandfather was then interviewed, he acknowledged that he had accidentally knocked D.M. over during a recent visit when moving him away from something.

¶10 In June 2018, DCFS received a referral alleging that during a parent-time exchange, Mother had pulled Father's beard and kicked him and that Father had ripped out one of Mother's hair extensions.This case was not accepted.

¶11 In November 2018, DCFS received a referral alleging that Father attempted to hit Mother with his car and that Father had threatened to kill Mother by loosening the screws on her car.While investigating this referral, DCFS interviewed both of the Children.H.M. reported that he gets "hurt" at "all of my parents’ houses," that his parents get frustrated with each other, and that Father punches Mother.D.M. reported that his parents are "always fighting."

¶12 In December 2018, March 2019, and April 2019, Father made reports against Mother suggesting that she was using illegal drugs and wasn't taking proper care of the Children.None of the referrals were accepted.

¶13 In April 2019, DCFS received a referral alleging that the Children had been "sodomized" by both Father and the paternal grandfather during visits with Father and that the paternal grandmother was aware of the abuse but not intervening.The referral also alleged that Father had punched D.M. in the stomach and testicles.As part of an investigation into these allegations, both of the Children were interviewed at the CJC.Though somewhat unclear, the record suggests that D.M. said nothing about abuse in his interview.H.M., however, said that his "old dad" is "going to be in the car when it explodes""because he was mean to me."H.M. also said that Father"put his penis in my bum" and "spanks [my] bum."H.M. said that Father did the same thing to his cousins and that Mother told him this.When the interviewer spoke to Mother about what the Children had said, Mother asked the interviewer to talk to D.M. again, which the interviewer declined to do.During this investigation, Mother was "jittery and unable to finish sentences."

¶14 In May 2019, Mother sought a protective order against Father.The protective order request was later denied.Around this same time, Mother informed DCFS that H.M. had bloody stools and that H.M. had reported that Father had "punched and kicked him."Later that month, DCFS received information that H.M. had allegedly said Father"peed in his butt."Father denied all allegations when interviewed by a detective from the Smithfield City Police Department.

¶15 In June 2019, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father.DCFS visited with the Children and observed no suspicious bruises.DCFS also found the accusations of physical abuse to be without merit.As part of this investigation, a DCFS caseworker and a Smithfield City Police Department detective interviewed Mother.During this interview, Mother alleged that the Children had told her that they"are being raped" and "punched in the crotch" by Father.

¶16 On July 1, 2019, Mother brought the Children to the CJC for an interview.At the outset of H.M.’s interview, and before the DCFS interviewer had even finished explaining the nature of the interview to him, H.M. said, "Well, my dad puts his penis in my bum."H.M. said that Mother was present when this occurred, and that Father, paternal grandfather, and paternal grandmother "did it."H.M. further reported that Father punches him with a "real hammer that is metal and black."H.M. also reported that Father punches him in the penis and "punches me with his butt."When asked what he saw when Father put his penis in his bottom, H.M. said, "That's all I needed to tell you.I didn't see anything."When asked again what he saw, H.M. responded, "That's all I have to tell you."D.M. was also interviewed at the CJC that day.D.M. responded "nothing" and "I don't know" to the majority of the interviewer's questions.He also said that "nothing happened" at Father's house and that "nothing happened to his brother that hurt him."In addition, D.M. told the interviewer that Mother would talk to H.M. about events that happened at Father's house.After finishing the interviews with the Children, the interviewer and a Smithfield City Police Department detective interviewed Mother.They encouraged Mother"not to press" the Children "for information and not to question them."

¶17 Later that month, Mother contacted law enforcement during a parent-time exchange with Father.Mother told law enforcement that the Children wanted to share "their concerns" regarding Father.The Children spoke to law enforcement, and nothing further was reported to DCFS.

¶18 On February 21, 2020, DCFS received another referral alleging that the Children were being physically, sexually, and emotionally abused by Father.This referral alleged that Father had threatened to kill the Children and Mother if the Children reported the abuse.The referral further alleged that, within the past few days, Father had touched the Children's genitals and " ‘go[ne] inside’ their...