This opinion is subject to revision before final

p ublication in the Pacific Reporter

201 7 UT 44

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

S TATE OF U TAH , I n the interest of K.T., C.T

. , Ka.T., and Ca.T

. ,

c hildren under eighteen years of age.

B.T

. and S.T.

,

Appellant s ,

v.

S TATE OF U TAH , Appellee

.

No s. 20160410, 20160386 Filed August 8 , 2017

On Certification from the Court of Appeals

Third District Juvenile

, Salt Lake
The Honorable Charles D. Behrens

Nos. 1125972, 1125975, 11255977, 1125980

Attorneys:
Sheleigh A. Harding, Salt Lake City, for appellant B.T. Jordan Putnam, Cottonwood Heights, for appellant S.T.

Sean D. Reyes, Att’y Gen., Carol L.C. Verdoia, John M. Peterso n, Asst. Att’y Gen s ., Salt Lake City, for appellee

Martha Pierce, Salt Lake City, for Office of Guardian ad Litem

J USTICE P EARCE authored the opinion of the Court

, in which

C HIEF J USTICE D URRAN T , A SSOCIATE C HIEF J USTICE L EE , J USTICE D URHAM , and J USTICE H IMONAS joined.

J USTICE P EARCE , opinion of the Court:In the Interest of K.T., et al.

Opinion of the C ourt

2 INTRODUCTION ¶1 At the disposition hearing in their child welfare case, appellant parents stipulated to a set of facts, including a statement that one of the family’s children had “disclosed that [the mo ther] has spanked and disciplined her and her siblings with a belt.” Appellants also stipulated that the same child had disclosed that the father “has spanked the children with a belt historically.” The

p arents contend that this was an insufficient factual basis to permit the juvenile court to conclude that they had harmed the children within the meaning of the Utah Code. We agree that the juvenile
court needed additional evidence before it could conclude by clea r and convincing evidence th at the children had been harmed

. W e

reverse.

BACKGROUND

¶2 T his case involves four children

— K

. T., C.T., Ka.T., and Ca.T. Appellant S.T. (Mother) is the mother of all four children

. A ppellant

B.T. (Father) is the biological father of the younge r two

— Ka.T. and

Ca.T. Father is the stepfather of the oldest two

— K.T. and C.T.

¶3 The State filed a Verified Petition in February 2016 seeking to adjudicate the children as abused and neglected under Utah Code

section 78A

- 6

- 105 (2008)

. 1 Following a preliminary s helter hearing,

t he juvenile court placed K.T., C.T., Ka.T., and Ca.T. into the custody of the Division of Child and Family Services (DCFS).

¶4 The parties stipulated to a number of findings of fact . One stipulated finding indicated that “[K.T.] also disclosed [Mother] has spanked and disciplined her and her siblings with a belt. The mother uses a black belt with rhinestones. [Father] has spanked the children with a belt historically.” 2

¶5 Based on the stipulated findin gs of fact, the judge
concluded:

_____________________________________________________________

1 This section of the Utah Code has since been amended. The parties cite, and we will therefore reference

, the 2008 version of the
code.

2 Both Father and Mother responded to this fact under Utah Rule of Juvenile Procedure 34(e)

. A ll parties acknowledge tha t Mother
and Father stipulated to this fact.Cite as: 201 7 UT 44

Opinion of the court

3 1. Hitting a child with a belt or strap or another object is abuse.

2. The pain caused by the striking is non

- accidental
harm

.
3. The court cannot envision a scenario where striking or hitting a child, of any age, would be appropri ate or reasonable discipline.

4. The court can envision a parent, as a child, being hit with a belt or strap as discipline at that time, in that day and age, many years ago that type of discipline was deemed appropriate and perfectly
reasonable.

5. As a society we’ve progressed to the point where it’s not acceptable to strike a child and certainly to strike a child, of any age, with an object, a belt, a strap, or a paddle or anything of that nature.

6. We’ve evolved beyond it being appropriate to
strike a child wit h an object.

7. The simple striking of the child with a belt caused pain and is abuse.

¶6 The juvenile court determined that Mother and Father (collectively Parents) abused the children under Utah Code section

78A

- 6

- 105.

¶7 Parents now appeal that conclusion. They contend that the stipulated facts do not support an abuse determination. More

sp ecifically, they argue that the juvenile court erred when it
concluded that spanking a child with a belt

, without any additional proof of harm, constitutes abuse within the mea ning of Utah law

.
STANDARD OF REVIEW

¶8 We review a juvenile court’s conclusion s of law based upon stipulated facts for correctness

. State ex rel. B.T. , 2009 UT App 182, ¶ 5 , 214 P.3d 881.

ANALYSIS

¶9 To find abuse under Utah law , a court must find harm. Utah
Code section 78A

- 6

- 105(1)(a) defines “abuse,” in relevant part, as

“ nonaccidental harm of a child” or “ threatened harm of a child.”
And , in the 2008 version of the Code the parties cite, “harm” means,In the Interest of K.T., et al.

Opinion of the C ourt

4 in relevant part, “physical , emotional, or developmenta l injury or damage

. ” Id. § 78A

- 6

- 105(19). ”If, at the adjudication hearing, the [juvenile] court finds

, by clear and convincing evidence, that the allegations contained in the petition are true , it shall conduct a dispositional hearing .” Id. § 78A

- 6

- 311 (1)

. 3

¶10 Parents argue that the State failed to put evidence before the
court that would allow it to conclude that the d iscipline Parents
administered resulted in harm. “Simply put,” they argue, “there are no stipulated facts regarding ‘harm.’” P arents are correct. The State failed to introduce evidence that the parental discipline had harmed
the children and left the court to speculate from the stipulated fact s that the children had been harmed.

¶11 T he juvenile court attempted to bridge the evidentiary gap

wit h the conclusion that “ [a] s a society we’ve progressed to the point where it’s not acceptable to strike a child and certainly to strike a child, of any age, with an object, a belt, a strap, or a paddle, or anything of that nature.” 4 Although not explicit i n the juvenile
court’s order , it appears from the argument’s transcript that the court may have relied on State ex rel. C.I. to reach that decision

. 2009 UT App 141 U (per curiam). In C.I. , the “[m]other hit C.I. on his arms with a belt, and also hit C.I. n ear his eye. ” Id. at *1. The record
indicated that

, as a result of the blows, C.I. suffered a “ black eye and bruising. ” Id. The mother argued that her actions did not constitute
abuse because she “reasonably disciplined him.” Id. The court rejected the mother’s argument and found that “[s]triking a child

_____________________________________________________________

3 The clear and convincing standard demands the introduction of
evidence that makes “ the existence of the disputed facts

. . . very highly probable.” Lovett v. Cont’l Bank & Tr. Co. , 286 P.2d 1065, 1067 (Utah 195 5). Translated to the case before the juvenile court, the State needed to present evidence that would allow the court to conclude that it was “very highly probable” that the children had been
harmed. Essential Botanical Farms, LC v. Kay , 2011 UT 71, ¶ 24

, 270
P.3d 430 (citing Lovett , 286 P.2d at 1067)

.

4 The juvenile court also reasoned that it could not “envision a scenario where striking or hitting a child, of any age, would be appropriate or reasonable discipline.” The parties did not argue, and
we will not address, any reasonable discipline exception under Utah
Code section 78A

- 6

- 105(1)(b ) (i)

.Cite as: 201 7 UT 44

Opinion of the court

5 with a belt does not constitute the use of reasonable discipline as it is an ‘unreasonably cruel punishment.’” Id. ( citing State ex rel. L.P. , 1999 UT App 157, ¶ 8, 981 P.2d 848). The court in C.I. affirmed the juvenile court’s order because its determination that C.I. had been abused was not contrary to “ the clear weight of the evidence. ” Id.
Th e court of appeals ’ seemingly definitive statement about str i king a
child with a belt ma y have given the juvenile court in this case comfort in announcing that “ [ h ] itting a child with a belt or strap or another object is abuse.”

¶12 State ex rel. L.P.

, on which the per curiam C.I. relies

, was not so definitive. Rather, L.P. listed a number of factors that a juvenile
court should consider before determining whether a child has been
abused within the meaning of the statute. 1999 UT App 157, ¶ 8.

“ Such factual findings may include, but are not limited to, the following:

. . . evidence of any bruis es, contusions, or abrasions on the child;

. . . [and] evidence of unreasonably cruel punishme nt such as beatings with a belt .

. . or other object. ” Id. L.P. clarified that “[n]one of the factors listed above is necessarily dispositive

. . . . Instead , th ese evidentiary factors should guide the juvenile court as
it exercises its broad discretion in making [an abuse] determination .”
Id.

¶13 Moreover, we do not interpret C.I. as imposing a rule that

eve r y use of an y object to discipline a child constitutes per se abuse. Although the C.I. court state d that striking a child with a belt cannot be reasonable discipline, the court in C.I. did not rely solely on the
mother’s use of a belt to conclude tha t C.I. had been harmed. Rather, just as it did i n L.P. , the court of appeals relied on additional finding s that sp o k e to the harm C.I

. had suffered

. For example, t he court
noted C.I.’s black eye and bruising. C.I. , 2009 UT App 141U at *1

. ¶14 To be clear, in this case the State would not have needed to forward much additional evidence to allow the juvenile court to
infer harm. H ad there been evidence of the effects of the spanking

—

as in C.I.

— the court may have been able to conclude that the
children had been harmed . Or, if there had been additional evide nce about the particular way that Mother “uses a black belt with
rhinestone s , ” the juvenile court could have inferred the existence of
harm. But without such information, the court was presented with two options: improperly speculate about what the spankin gs and discipline mother administered looked like , or rely on a per se rule that harm occurs any time a child is struck with an y object. The juvenile court opted for the per se rule.In the Interest of K.T., et al.

Opinion of the C ourt

6 ¶15 The rule the juvenile court articulated

— that “[h]itting a child with a belt or strap or another object is abuse”

— is overbroad
and alters the statutory meaning of “ abuse

. ” See U TAH C ODE § 78A

- 6

- 105(1 )

. The juvenile court’s per se rule expands the definition of “abuse” to capture the myriad ways a p arent might “ hit a child”
with “another object” that would not actually harm the child. For instance, under the rule the juvenile court announced, a parent throwing a pillow or a rolled up pair of socks at a child would be
considered per se abusive. Hitting a child wit h a Nerf sword playfully as part of a game would also meet the definition. And although those situations are different than those confronting the juvenile court in this case , the need to resort to a per se rule exposes the problem with the factual record before the juvenile court. Although we might specu l a te that Mother was doing more than spanking her children with the belt lightly so that it did not cause physical or emotional injury within the meaning of the statute , we do n’ t know that

. 5 A nd we don’t know that with the level of certainty
needed to m eet a clear and c onvincing evidentiary standard.

¶16 In other words, w hile use of an object to spank or discipline a child might provide persuasive evidence that the child experienced harm, that evidence may not be dispositive

. As the court of appeals has noted, “there are a myriad of circumstances with countless permutations, which may or may not justify intervention of the juvenile court.” L.P. , 1999 UT App 157, ¶ 7. Because of the many
ways adults interact with children, juvenile courts need the flexibility to examine situations as a whole. And it is incumbent upon the State to present the evidence the juvenile courts need to accurately assess the situation. Fail ure to provide that evidence invites speculation and increases the potential for reaching an
erroneous conclusion.

¶17 Parents stipulated that “[K.T.] also disclosed [Mother] has spanked and disciplined her and her siblings with a belt. The mother
uses a black belt with rhinestones. [Father] has spanked the children with a belt historically.” We have before us no additional relevant
facts demonstrating harm

. The juvenile court made no findings that inform us whether the children experienced any “physical

,

_____________________________________________________________

5 The statute defines harm as “ physical , emotional, or developmental injury or damage

. ” U TAH C ODE § 78A

- 6

- 105(19).Cite as: 201 7 UT 44

Opinion of the court

7 emotional, or developmental injury or damage

. ” See U TAH C ODE § 78A

- 6

- 105(19). It is unclear how hard Parents hit the child ren, whether the children suffered emotional or physical pain, and whether the children were injured. Without more, the juvenile court was forced to rely on a per se rule that has the potential to sweep

non

- abusive behavior into its net.

CONCLUSION

¶18 The juvenile court erred when it concluded that the stipulated facts supported an abuse determination . We reverse.