               This opinion is subject to revision before final
                      publication in the Pacific Reporter

                               2017 UT 44


                                  IN THE

     SUPREME COURT OF THE STATE OF UTAH

                          STATE OF UTAH,
          In the interest of K.T., C.T., Ka.T., and Ca.T.,
              children under eighteen years of age.


                              B.T. and S.T.,
                               Appellants,
                                     v.
                            STATE OF UTAH,
                               Appellee.


                     Nos. 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. Peterson,
         Asst. Att’y Gens., Salt Lake City, for appellee
 Martha Pierce, Salt Lake City, for Office of Guardian ad Litem

  JUSTICE PEARCE authored the opinion of the Court, in which
     CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
        JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:
                     In the Interest of K.T., et al.
                        Opinion of the Court


                          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 mother] 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
parents 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 clear
and convincing evidence that the children had been harmed. We
reverse.
                          BACKGROUND
   ¶2 This case involves four children—K.T., C.T., Ka.T., and Ca.T.
Appellant S.T. (Mother) is the mother of all four children. Appellant
B.T. (Father) is the biological father of the younger 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 shelter hearing,
the 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 findings 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). All parties acknowledge that Mother
and Father stipulated to this fact.



                                   2
                         Cite as: 2017 UT 44
                        Opinion of the court

      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
      appropriate 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 with 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
specifically, 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 meaning of Utah law.
                      STANDARD OF REVIEW
    ¶8 We review a juvenile court’s conclusions 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,



                                  3
                     In the Interest of K.T., et al.
                         Opinion of the Court


in relevant part, “physical, emotional, or developmental 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 discipline Parents
administered resulted in harm. “Simply put,” they argue, “there are
no stipulated facts regarding ‘harm.’” Parents 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 facts
that the children had been harmed.
    ¶11 The juvenile court attempted to bridge the evidentiary gap
with 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 in 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 141U (per curiam). In C.I., the “[m]other hit C.I. on his arms
with a belt, and also hit C.I. near 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
_____________________________________________________________
   3The 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 1955). 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).



                                   4
                          Cite as: 2017 UT 44
                          Opinion of the court

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.
The court of appeals’ seemingly definitive statement about striking a
child with a belt may 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 bruises, contusions, or abrasions on
the child; . . .[and] evidence of unreasonably cruel punishment 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, these 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
every use of any object to discipline a child constitutes per se abuse.
Although the C.I. court stated 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 that C.I. had been harmed. Rather,
just as it did in L.P., the court of appeals relied on additional findings
that spoke to the harm C.I. had suffered. For example, the 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. Had 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 evidence
about the particular way that Mother “uses a black belt with
rhinestones,” 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 spankings and
discipline mother administered looked like, or rely on a per se rule
that harm occurs any time a child is struck with any object. The
juvenile court opted for the per se rule.


                                    5
                     In the Interest of K.T., et al.
                         Opinion of the Court


    ¶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 UTAH CODE § 78A-6-
105(1). The juvenile court’s per se rule expands the definition of
“abuse” to capture the myriad ways a parent 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 with 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 speculate 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
don’t know that.5 And we don’t know that with the level of certainty
needed to meet a clear and convincing evidentiary standard.
    ¶16 In other words, while 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. Failure 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.” UTAH CODE § 78A-6-105(19).




                                   6
                        Cite as: 2017 UT 44
                       Opinion of the court

emotional, or developmental injury or damage.” See UTAH CODE
§ 78A-6-105(19). It is unclear how hard Parents hit the children,
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.




                                7
