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.

20220050-CA 2 2023 UT App 13

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 
In re K.K.

20220050-CA 3 2023 UT App 13

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 
In re K.K.

20220050-CA 4 2023 UT App 13

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.”
In re K.K.

20220050-CA 5 2023 UT App 13

¶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 
In re K.K.

20220050-CA 6 2023 UT App 13

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 
In re K.K.

20220050-CA 7 2023 UT App 13

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.
In re K.K.

20220050-CA 8 2023 UT App 13

¶ 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 
In re K.K.

20220050-CA 9 2023 UT App 13

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.
In re K.K.

20220050-CA 10 2023 UT App 13

¶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...)
In re K.K.

20220050-CA 11 2023 UT App 13

¶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.
In re K.K.

20220050-CA 12 2023 UT App 13

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.”