Is violence only against a parent relevant to the best interests inquiry of a child? Yes.

March 7, 2019

In re CCW, 2019 UT App 34, (Filed March 7, 2019)

In this termination of parental rights case, a Father had committed serious domestic violence against the mother, and against other women.
The trial court found grounds for termination due to abandonment, but declined to find that the termination was in the children's best interests. The trial court found that violence against another adult is not the same as violence against the child, and that the violent parent may still have a place for a parental role. The trial court compartmentalized the violence against adult as compared with violence against children. The Court of Appeals then outlined a long string of statutes, cases and cautions about such compartmentalization and remanded to the trial court for further analysis and findings about the role of domestic violence among adults as it relates to the children's interests.

¶19 It does not follow, however, that Mother’s appeal is unsuccessful. In particular, we are troubled by the juvenile court’s treatment of Father’s history of domestic violence. Although it recognized that “Father’s crimes were extremely violent, and they caused his victims, [Mother] in particular, unthinkable physical and emotional injuries,” the juvenile court concluded that “assaulting your spouse or another person[] does not necessarily mean that you are unable to fulfill your duties as a parent,” and that “when assessing the issue of unfitness to parent . . . the focus is on the parent’s interactions with children” rather than on the parent’s interactions with other adults. While it is true that a history of domestic violence does not necessarily lead to parental termination in every case, we nevertheless find the juvenile court’s statements problematic, and emphasize that—even where there is no evidence of violence toward children—it is inappropriate to completely separate or compartmentalize a parent’s history of domestic violence toward other adults from the best-interest inquiry regarding that parent’s child.

¶20 Such compartmentalization conflicts with the statutory view that a history of violent behavior has relevance, especially when committed against “the other parent of the child.” See Utah Code Ann. § 78A-6-316(2)(iv); cf. id. § 76-5-109.1 (criminalizing actions of domestic violence committed “in the presence of a child,” even if the child is not the direct victim). And both common sense and expert opinion indicate that a parent’s acts of domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence. See Winston J. v. State Dep’t of Health & Social Services, Office of Children’s Services, 134 P.3d 343, 348 (Alaska 2006) (concluding that a father’s acts of domestic violence against his children’s mother, coupled with his history of violence against other women, created a substantial risk of harm even though the children had not yet been born when the acts occurred); In re V.V., 349 S.W.3d 548, 555 (Tex. Ct. App. 2010) (en banc) (concluding that a parent’s history of domestic violence, even if not directed at his child, provided support for the trial court’s termination decision because this conduct placed his child in jeopardy); Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol’y 221, 228 (1994) (“Studies show that violence by one parent against another harms children even if they do not witness it.”). Indeed, numerous studies clearly show that violence directed at a parent—even where not directed at the children—can have a significant impact on the abused parent’s children, especially when the abused parent is the children’s primary caretaker. See Michal Gilad, Abraham Gutman & Stephen P. Chawaga, The Snowball Effect of Crime and Violence: Measuring the Triple-C Impact, 46 Fordham Urb. L.J. 1, 4, 9–10 (2019); Karen Czapanskiy, Domestic Violence, The Family, and the Lawyering Process: Lessons from Studies on Gender Bias in the Courts, 27 Fam. L.Q. 247 (1993); see also Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1055–56 (1991) (stating that, “even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents,” and that “children of abusive fathers are likely to be physically abused themselves”). These notions are not new; more than three decades ago, health professionals were making efforts to tell judges about the potential impact a parent’s domestic violence could have on children, emphasizing that children who are exposed to abuse may be taught that violence is an acceptable way to handle issues with loved ones: Children learn several lessons in witnessing the abuse of one of their parents. First, they learn that such behavior appears to be approved by their most important role models and that the violence toward a loved one is acceptable. Children also fail to grasp the full range of negative consequences for the violent behavior and observe, instead, the short term reinforcements, namely compliance by the victim. Thus, they learn the use of coercive power and violence as a way to influence loved ones without being exposed to other more constructive alternatives.

Children learn several lessons in witnessing the abuse of one of their parents. First, they learn that such behavior appears to be approved by their most important role models and that the violence toward a loved one is acceptable. Children also fail to grasp the full range of negative consequences for the violent behavior and observe, instead, the short term reinforcements, namely compliance by the victim. Thus, they learn the use of coercive power and violence as a way to influence loved ones without being exposed to other more constructive alternatives. Spouse abuse results not only in direct physical and psychological injuries to the children, but, of greatest long-term importance, it breeds a culture of violence in future generations. Up to 80 percent of men who abuse their wives witnessed or experienced abuse in their family of origin. Abused children are at great risk of becoming abusive parents. Patricia Ann S. v. James Daniel S., 435 S.E.2d 6, 18 (W. Va. 1993) (Workman, C.J., dissenting) (quoting L. Crites & D. Coker, What Therapists See That Judges May Miss, The Judges’ Journal, 9, 11–12, (Spring 1988)).6

¶21 When a parent whose parental rights are subject to being terminated has a history of violence, particularly domestic violence, trial courts should carefully weigh the potential impact of that violence on the children as part of considering whether termination of the parent’s rights would be in the best interest of the children, even if the parent has not visited any of that violence directly upon the children. See In re B.T.B., 2018 UT App 157, ¶ 47 (stating that “the ‘best interest’ inquiry is broad, and is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation”); see also In re K.K., 2017 UT App 58, ¶ 4, 397 P.3d 745 (per curiam) (explaining that Mother’s “unresolved domestic violence issues” made it “unsafe for the children to be around her”); In re R.T., 2013 UT App 108, ¶ 7, 300 P.3d 767 (per curiam) (concluding that it was in the children’s best interest to terminate their father’s parental rights given his history of violence and anger issues).

¶22 In this case, Father not only attacked two women, but he brutally beat Mother, choked her to the point of momentary unconsciousness, and threatened to kill her at gunpoint. Yet in its findings, the juvenile court brushed aside Father’s violent history and the risk that Father’s conduct might pose to the Children, emphasizing the fact that there was no evidence that Father had ever been violent toward children. We find such compartmentalization troubling, especially given the fact that individuals prone to domestic violence tend to reoffend. See United States v. Bryant, 136 S. Ct. 1954, 1959 (2016) (“As this Court has noted, domestic abusers exhibit high rates of recidivism, and their violence ‘often escalates in severity over time.’”) (quoting United States v. Castleman, 572 U.S. 157, 160 (2014)); see also Linell A. Letendre, Beating Again and Again and Again: Why Washington Needs a New Rule of Evidence Admitting Prior Acts of Domestic Violence, 75 Wash. L. Rev. 973, 977–78 (2000) (stating that a person’s past violent behavior is “the best predictor of future violence,” because “studies demonstrate that once violence occurs in a relationship, the use of force will reoccur in 63% of these relationships,” and that “even if a batterer moves on to another relationship, he will continue to use physical force as a means of controlling his new partner” (quotation simplified)).

¶23 Of course, not every parent who has committed an act of domestic violence deserves to have his or her parental rights terminated. Each case must be judged on its own merits, and in appropriate cases a trial court might reasonably find, among other things, that the domestic violence issues in the case are not sufficient to counsel in favor of termination; that the parent in question has taken meaningful steps to change his or her life and make amends; that under the circumstances presented there is no significant risk of continued violence; or that, even when all incidents of past violence are fully considered, the children would be better off with the parent still playing an active role in their lives than they would be if the parent’s rights were terminated. But the trial court must carefully explain its reasons for so finding, and it is not sufficient to say, as the juvenile court essentially did here, that acts of domestic violence are not relevant in a termination case simply because none of the violence was directly visited upon the Children.

In re CCW, 2019 UT App 34, (Filed March 7, 2019)

To read entire case, Click HERE.

May 24, 2018
In an alimony case where the requesting party fails to provide supporting financial documents, a court may impute reasonable expenses based on circumstantial and testimonial evidence.

In a previous Utah Supreme Court case of Dahl v. Dahl, 2015 UT 79, the court rule in the facts of […]

Read More
March 14, 2018
Income for Child Support Purposes - Definitions and Contours Under Utah Code

This statute provides the statutory basis for income in the determination of child support.  Case law adds to these principles. […]

Read More
April 4, 2019
Court rejects argument that an order transferring judicial authority to a third-party neutral should be set aside.

Cox v. Hefley, 2019 UT App 60 (Filed April 18, 2019). In this case, a Mother and Father signed an […]

Read More
envelopephone-handsetmap-markermagnifiercrossmenuarrow-up-circle