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In re A.T.; In re J.M.; State v. Sorbonne; State v. Peterson; State v. Higley; Onysko v. Dept. of Envntl. Quality; Christiansen v. Tax Commission; Cochegrus v. Herriman; O’Connor v. Labor Commission; Massengale v. Labor Commission presented by The Appellate Group

CHILD WELFARE

In re A.T., 2020 UT App 50 (Harris, J.)

After Mother’s and Father’s divorce, Mother was awarded sole custody of their two children. But after Mother overdosed, the children were removed from Mother’s care. Initially the court ordered reunification services. But when Mother did not fully complete her child and family plan, the juvenile court terminated reunification services and placed the children in the permanent physical and legal custody of Father. In so doing, it relied on the parental presumption. The Court of Appeals reversed, holding:

  1. The parental presumption was introduced into Utah’s jurisprudence in a case involving a custody dispute between a natural parent and an individual without a biological or legal connection to a child. The presumption does not appear to apply here because this case involves two natural parents. But even if the presumption could apply in a dispute between two natural parents, the presumption does not apply here because both parents lost the presumption when the juvenile court entered uncontested findings of neglect against Mother and dependency against Father. 
  2. The juvenile court’s analysis was highly dependent upon its understanding of the parental presumption. Based on its understanding, the juvenile court considered itself legally bound to make a ruling in Father’s favor. On remand, the juvenile court should not rely on the parental presumption and instead consider the statutory factors. 

In re J.M., 2020 UT App 52 (Harris, J.)

Mother had her children removed after one child tested positive for drugs. Originally the juvenile court set the goal as reunification, but when Mother did not comply with the reunification plan, the court set the goal as adoption. The State filed a petition to terminate Mother’s parental rights. Then Mother made remarkable progress and completed all the goals of her plan without DCFS assistance. The juvenile court, however, terminated Mother’s parental rights. The Court of Appeals affirmed, holding:

  1. In finding that Mother “has neglected” the children—one of the statutory grounds for termination—the juvenile court properly considered past episodes of neglect, even if they occurred a while ago and even if the parent has since taken steps to improve her behavior. 
  2. In a footnote, the Court recognizes that other statutory grounds for termination are in present tense—such as “the parent is unfit”—so the question at trial is whether the parent, at the time of the termination trial, is unfit. Courts, then, will have to consider a parent’s previous acts that might demonstrate unfitness against any current acts that might demonstrate improvement.
  3. It was appropriate for the juvenile court to consider the termination of Mother’s parental rights to a prior child; consideration of a parent’s past actions is not only allowed by encouraged by the Juvenile Court Act and by caselaw interpreting it.
  4. As for the best interest determination, the Court of Appeals judges might not have reached the same decision that the juvenile court reached had they been in the juvenile court’s position. But given the deferential standard of review, the Court of Appeals defers to the juvenile court’s ultimate determination because it was supported by competent findings and by record evidence.

CRIMINAL

State v. Sorbonne, 2020 UT App 48 (Hagen, J., majority; Christiansen Forster, J., concurring; Orme, J., dissenting)

After an argument with his father, the defendant drove away from home. The father drove after the defendant and stopped him. The father approached the car, and the defendant pointed a gun at the father and said he was going to kill the father. The State charged the defendant with threatening with a dangerous weapon in a fight. At a bench trial, the defendant argued that he acted in self-defense. The court also admitted several instances of the father’s abuse of others, but it excluded other instances of abuse. The court convicted the defendant. The Court of Appeals affirmed the convictions, holding:

  1. The Court of Appeals does not reach the question of whether pointing a gun at another is a use of deadly force or a threat of force because the district court found that the defendant’s conduct was unreasonable under either standard.
  2. The district court did not abuse its discretion in excluding the father’s prior violent acts because either (1) trial counsel withdrew the question about a prior act before the district court ruled on its admissibility, (2) the specific acts were not admissible under Utah R. Evid. 404(a) (which allows proof of a victim’s propensity for violence to be proved through reputation or opinion) to prove that the father was the first aggressor, or (3) the acts were not admissible to show that the defendant reasonably feared his father because there was no evidence on the record that the defendant knew about those prior acts. 
  3. The defendant has not convinced the Court of Appeals to overrule its prior case that require acts of self-defense to be objectively reasonable. 
  4. Concurrence: Although the concurring judge agrees with the majority opinion, the concurring judge agrees that it is time to reexamine the standard the courts use in assessing the reasonableness of the responsive action exhibited by domestic violence victims or abused children in the self-defense context. It is time for Utah law to recognize that repeated abuse of an intimate partner or child can cause that abused person to reasonably perceive a threat of imminent danger from conduct that may not appear imminently threatening to someone who had not been subjected to a repetitive cycle of violence. 
  5. Dissent: The dissenting judge took Duchesne County’s failure to file a brief to be tantamount to a concession that the defendant’s conviction should be reversed. The defendant’s conviction was the product of multiple errors. 

State v. Peterson, 2020 UT App 47 (Mortensen, J.)

A defendant drove his wife in his car and hit her. The wife exited the car when it slowed, but she got back in the car because she wanted to avoid law enforcement and she believed the defendant would try to get her back in the car. The defendant continued to hit her during the drive, held her in the car when she threatened to jump out on the freeway, stopped at a park, and continued hitting her at a park. The defendant was convicted of aggravated assault and aggravated kidnapping. The Court of Appeals affirmed the convictions, holding:

  1. Sufficient evidence supported the defendant’s conviction for aggravated kidnapping. When the wife exited the car when it slowed, her choices among the defendant’s ultimatums did not indicate that she re-entered the car volitionally. A reasonable jury could have also found that the defendant detained or restrained the wife in the car when he held her to prevent her from jumping out and when he forced her around the park.
  2. Trial counsel was not ineffective when she did not seek to merge the aggravated assault conviction into the aggravated kidnapping conviction. Here, evidence of materially different acts exist to support a jury’s conclusion that the defendant was guilty of both aggravated assault and aggravated kidnapping.

State v. Higley, 2020 UT App 45 (Appleby, J.)

The police found the defendant slumped over in his car while his car was in neutral and and stopped in a left-turn lane. After awaking him, the defendant admitted to taking alprazolam (Xanax) and failed the two balance-based field sobriety tests. The police arrested him and only found Xanax in his system. At trial, a toxicologist testified that the amount of Xanax in the defendant’s system was within the clinical range. The jury convicted the defendant of DUI and of possessing heroin the police found in a subsequent search of the car. The Court of Appeals affirmed the convictions, holding:

  1. Trial counsel was not ineffective for not seeking to arrest judgment on the DUI conviction. There was sufficient evidence that the defendant was incapable of safely operating a vehicle because he failed two field sobriety tests, had a hard time keeping his balance, was asleep at the wheel, and had difficulty complying with the officers’ orders. 
  2. The district court did not erroneously deny the defendant’s request to instruct the jury on reckless driving as a lesser-included offense to DUI. The elements of the two crimes do not sufficiently overlap: DUI does not require a mens rea, and reckless driving does. DUI requires the defendant be under the influence and incapable of safely operative a vehicle, and reckless driving does not. Both offenses have an element of operating a vehicle, but that is not sufficient overlap to constitute a lesser included offense. 
  3. The defendant has not established nonspeculative facts that show his trial counsel was ineffective for failing to question him more thoroughly about the facts of the case or calling his mother to testify.

EMPLOYMENT

Onysko v. Department of Environmental Quality and Career Service Review Office, 2020 UT App 51 (Orme, J.)

A government employer terminated a veteran employee. After a days-long hearing, a hearing officer from the Career Service Review Office reviewed the termination and upheld it. The Court of Appeals affirmed, holding:

  1. The hearing officer could consider the employee’s conduct during the hearing as confirmation of the employer’s evidence about the employee’s difficult manner and negative effect on morale and productivity, which was a matter of disagreement between the parties that the hearing officer needed to resolve. 
  2. The employee’s due process rights were not violated because he received adequate notice—either actual notice or written notice—of the reasons for his proposed termination prior to his pre-termination hearing. For those reasons where he was not given adequate notice, he did not show that he had been harmed. 
  3. The hearing officer’s findings did not violate the residuum rule, which requires that an administrative agency’s findings of fact be supported by a residuum of legal evidence competent in a court of law even if the agency has received and considered evidence of a lesser quality. The hearsay statements in the hearing officer’s order were either not findings of fact, harmless, supported by other non-hearsay evidence, or unsupported by sufficient legal analysis. 

TAX

Christiansen v. Tax Commission, 2020 UT App 46 (per curiam)

An individual did not file state tax returns for several years. After the Tax Commission informed the individual of the tax deficiencies and the individual responded by demanding that the Commission provide proof that she was required to file a federal tax return, the Commission upheld the deficiency and penalty assessments. The Court of Appeals affirmed, holding:

  1. The Commission demonstrated that the individual was required to file a federal tax return and thus was required to file a state tax return. 
  2. The individual is not exempt from state taxes because, on her own, she is not eligible for a tax exemption under section 501(c) and there is no support for her assertion that she, as an individual, is entitled to a corporate church’s exemption.

TORTS

Cochegrus v. Herriman, 2020 UT 14 (Peterson, J.)

The plaintiff tripped over a piece of rebar protruding five inches from a park strip. The rebar was rusted and had been nicked several times, and some of the nicks were clean and others were rusted. The plaintiff sued the city (who owned the parking strip), a homeowner’s association that owned the property abutting the park strip, and the property management company that contracted with the homeowner’s association to maintain the park strip. The defendants moved for summary judgment, and the district court granted it because the plaintiff had not provided sufficient evidence that the protruding rebar existed long enough to infer that the defendants had constructive knowledge of it. The Utah Supreme Court reversed, holding:

  1. The plaintiff provided sufficient evidence that sufficient time had elapsed that the defendants should have remedied the temporary unsafe condition. The nature of an unsafe condition may itself be evidence of its age. A durable, nontransitory unsafe condition like a protruding metal rod inherently suggests longevity. Here, the metal rod was firmly fixed to the ground and installed years prior, it had been exposed to the elements long enough that it had rusted, the rod had been nicked several times by lawnmower blades, and it was in a residential park strip that was regularly mowed. 
  2. The homeowner’s association and maintenance company did not successfully argue that they owed no duty to the plaintiff. A city code provision required abutting property owners to maintain in good condition all park strips. These two defendants did not analyze why a code-based duty to maintain a park strip did not encompass a duty to exercise reasonable casre to remediate any danger posed by the protruding rebar, even if the duty only requires notifying the city of the rod or warning pedestrians of the danger. 

WORKERS’ COMPENSATION

O’Connor v. Labor Commission, 2020 UT App 49 (Hagen, J.)

In 1983, an employee was injured at work and started receiving a static disability payment of $241 per week for the remainder of his life, as was statutorily required. But the legislature amended the law in 1988 to provide for a payment based on the percentage of Utah’s average weekly wage rather than a flat payment. When the employee’s static weekly payment fell below what he would receive under the percentage-of-the-average-weekly-wage system, he petitioned the Labor Commission to increase his disability award to match the percentage system. The Commission ultimately denied his petition. The Court of Appeals affirmed, holding:

  1. The law as it existed at the time of the employee’s injury in 1983 governs the amount of benefits the employee is entitled to. Absent express direction from the legislature to apply the 1988 amendment to employees injured before the amendment’s effective date in 1988, the law in effect at the time of the injury continues to control the calculation of benefits.

Massengale v. Labor Commission, 2020 UT App 44 (Christiansen Forster, J.)

In 2002, an employee was injured at work. In 2014, he applied for a hearing on a request for surgery stemming from that injury and a claim for permanent total disability benefits. He withdrew that application and filed another claim for permanent total disability in 2016. The Labor Commission dismissed the employee’s claim as untimely. The Court of Appeals affirmed, holding:

  1. By statute, an employee’s claim for permanent disability benefits is barred unless the employee “by no later than 12 years from the date of the accident is able to meet the employee’s burden of proving that the employee is due the compensation claimed.” Utah Code §34A-2-417(2)(a). Because the employee was pursuing a claim for surgery alongside his permanent disability claim, he was not in a position—at the 12-year mark in 2014—to prove his entitlement to permanent disability benefits. 

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