IN THE UTAH COURT OF APPEALS

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In the interest of J.H. and

K.H., persons under eighteen years of

age.

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R.O. and T.O.,

Petitioners and Appellees,

v.

E.O.,

Respondent and Appellant.

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PER CURIAM DECISION

Case No.  20120328‐CA

F I L E D

(July 19, 2012)

   2012 UT App 195

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Third District Juvenile, Salt Lake Department, 470716

The Honorable C. Dane Nolan

Attorneys: Nicole A. Salazar‐Hall, Salt Lake City, for Appellant

Martha Pierce, Salt Lake City, Guardian ad Litem

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Before Judges Voros, Orme, and Roth.

¶1 E.O. (Mother) appeals the juvenile court’s order awarding permanent

guardianship to the maternal grandparents.  We affirm.

¶2 In order to overturn the juvenile court’s decision as to the sufficiency of the

evidence, “[t]he result must be against the clear weight of the evidence or leave the

appellate court with a firm and definite conviction that a mistake has been made.”  In re

B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.  The juvenile court is in the best position to weigh
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conflicting testimony, to assess credibility, and from such determinations, render

findings of fact.  See In re L.M., 2001 UT App 314, ¶¶ 10‐12, 37 P.3d 1188.  We “review

the juvenile court’s factual findings based upon the clearly erroneous standard.”  In re

E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680.  A finding of fact is clearly erroneous only

when, in light of the evidence supporting the finding, it is against the clear weight of the

evidence.  See id.  Furthermore, we give the juvenile court a “‘wide latitude of discretion

as to the judgments arrived at’ based upon not only the court’s opportunity to judge

credibility firsthand, but also based on the juvenile court judges’ ‘special training,

experience, and interest in this field.’”  Id.  Finally, “[w]hen a foundation for the court’s

decision exists in the evidence, an appellate court may not engage in a reweighing of the

evidence.”  In re B.R., 2007 UT 82, ¶ 12.

¶3 Mother asserts that there was insufficient evidence to support the juvenile court’s

determination that Mother neglected J.H. and K.H (children).  The record supports the

juvenile court’s determination that Mother neglected the children.  Mother left the

children to be raised by their grandparents for several years, during which time period

she abused drugs and alcohol, lacked stable employment, was homeless, and was

incarcerated.  The juvenile court found specific instances of neglect including an

episode where Mother was absent and she left her child unattended to care for younger

children between the ages of two and five years old.  The juvenile court also determined

that Mother neglected the children by subjecting the children to a traumatic situation by

discussing the legal proceedings with the children contrary to the court’s order.  The

juvenile court found that the totality of Mother’s behavior relating to the violation of the

court’s order rose to the level of the neglect of both children.  Based upon the record, we

cannot say that the juvenile court’s determination that Mother neglected her children

was against the clear weight of the evidence.

¶4 Mother also asserts that the juvenile court erred in admitting the maternal

grandfather’s journal into evidence in violation of rule 803(5) of the Utah Rules of

Evidence.  Rule 803(5) provides that a recorded recollection may be read into evidence,

but may only be received as an exhibit if offered by an adverse party.  See Utah R. Evid.

803(5).  This court will not reverse the trial court’s ruling on an evidentiary issue “unless

it is manifest that the trial court so abused its discretion that there is a likelihood that

injustice resulted.”  State v. Otterson, 2008 UT App 139, ¶ 14, 184 P.3d 604.  Furthermore,

harmless error is an error that is sufficiently inconsequential such that there is no

reasonable likelihood that the asserted error affected the outcome of the proceedings.
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See id. ¶ 16.  Mother fails to demonstrate that the juvenile court’s decision to admit the

grandfather’s journal as an exhibit resulted in an injustice or that admitting the

grandfather’s journal affected the outcome of the proceedings.  Even were we to assume

that the juvenile court erred by admitting the grandfather’s journal, there is no

reasonable likelihood that the asserted error affected the juvenile court’s determination

that Mother neglected her children as there was sufficient, independent evidence to

support the juvenile court’s decision.

¶5 Accordingly, the juvenile court’s order awarding permanent custody to the

maternal grandparents is affirmed.

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J. Frederic Voros Jr.,

Associate Presiding Judge

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Gregory K. Orme, Judge

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Stephen L. Roth, Judge