author: WILKINS, Justice:

text:
    2002 UT 54
    Dee Voy TUCKER and Marian Tucker, individually and on behalf of themselves and all others similarly situated, Plaintiffs and Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Stephen P. Marble, Farmers Insurance, and Maye Helen Potter, Defendants and Appellees.
    No. 20010228.
    Supreme Court of Utah.
    June 11, 2002.
    Rehearing Denied July 19, 2002.

      Trent J. Waddoups, Salt Lake City, for plaintiffs.
    Alan L. Sullivan, Adrienne Goldsmith, Salt Lake City, for defendant.
   WILKINS, Justice:

T1 Dee Voy and Marian Tucker appeal from the order of the trial court granting summary judgment in favor of State Farm Mutual Automobile Insurance Company ("State Farm"). Because the complaint was barred by the statute of limitations in section 31A-21-313 of the Utah Code, we affirm.

BACKGROUND

12 When reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71, ¶ 15, 10 P.3d 338. Dee Voy and Marian Tucker ('Tuckers") were injured in an automobile accident on August 5, 1994. As a result of the accident, the Tuckers received medical treatment and incurred medical expenses. At the time of the accident the Tuckers' automobile was insured by State Farm. The Tuckers' State Farm insurance policy provided for, among other coverages, personal injury protection ("PIP") benefits for the reasonable value of all necessary medical expenses incurred by the Tuckers up to $5,000, and required the Tuckers to be examined by physicians chosen and paid by State Farm as reasonably required by State Farm.

11 3 The Tuckers submitted medical bills to State Farm for reimbursement. Before reimbursing the Tuckers, State Farm required the Tuckers to be examined by Dr. Stephen Marble, allegedly to determine whether the medical expenses were reasonable and necessary. Dr. Marble concluded that Mrs. Tucker's injuries were not related to the accident and that Mr. Tucker's injuries were related, but that one set of x-rays was duplicative and, therefore, unnecessary. Based on Dr. Marble's report, State Farm reimbursed the Tuckers in November 1996 for the medical expenses it deemed reasonable and necessary. At the time of this payment, State Farm explained that if the Tuckers could provide any additional information which indicated that the submitted medical expenses were reasonable and necessary, State Farm would consider the information.

14 On September 12, 2000, the Tuckers filed an amended complaint adding State Farm as a defendant to a lawsuit they had previously filed against the driver of the car which collided into them, alleging that State Farm should have paid all the Tuckers' submitted medical expenses under the PIP provisions of the insurance policy. State Farm responded by filing a motion to dismiss, alleging, among other things, that the Tuckers' complaint was barred by the statute of limitations. The Tuckers opposed this motion by arguing that a motion to dismiss was an improper procedural vehicle for State Farm to raise its affirmative defense of the statute of limitations and asked that the motion be stricken. In ruling on State Farm's motion, the trial court considered matters outside of the complaint, and, pursuant to rule 12(b)(6), treated the motion to dismiss as one for summary judgment. The trial court granted State Farm's motion, holding, in relevant part, that all of the Tuckers' claims were based on a contract of first-party insurance and that the complaint was barred by the three-year statute of limitations in section 31A-21-8318 of the Utah Code. The Tuckers appeal.

ISSUES PRESENTED AND STANDARD OF REVIEW

15 While the Tuckers raise numerous issues for our consideration, the only issues dispositive to this appeal are whether the trial court was correct in holding that (1) the statute of limitations can be properly raised as an affirmative defense in a motion to dismiss under Utah Rule of Civil Procedure 12(b)(6), (2) all of the Tuckers' claims are based on a contract of first-party insurance, rendering section 31A-21-313 of the Utah Code the exclusive statute of limitations for their claims, and (8) section 81A-21-318 bars the Tuckers' complaint. We review the trial court's summary judgment rulings for correctness. E.g., Surety Underwriters v. E & C Trucking, Inc., 2000 UT 71, 114, 10 P.3d 338.

ANALYSIS

I. RAISING AFFIRMATIVE DEFENSES IN MOTIONS TO DISMISS

T6 In response to the Tuckers' amended complaint, State Farm filed a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure, alleging, in part, that the complaint was time barred by section 31A-21-313 of the Utah Code. The Tuckers addressed this statute of limitations issue by filing a motion to strike, asserting, in part, that affirmative defenses may not be raised in motions to dismiss. In support of this position the Tuckers cite, inter alia, Gill v. Timm, which notes that "[alffirmative defenses must be set forth in responsive pleadings and are usually waived if not so pleaded." (citations omitted). 720 P.2d 1852, 1353-54 (Utah 1986).

17 Gill recites the general rule that affirmative defenses should be set forth in responsive pleadings. Id.; see also Utah R. Civ. P. Sic) Because dismissal under rule 12(b)(6) is "justified only when the allegations of the complaint itself clearly demonstrate that the plaintiff does not have a claim," 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 at 345 (2d ed.1990) (emphasis added), this general rule recognizes that affirmative defenses, which often raise issues outside of the complaint, are not generally appropriate ly raised in a motion to dismiss under rule 12(b)(6).

18 In some instances, however, the existence of the affirmative defense may appear within the complaint itself. For example,

[a] complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading.... [The inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim.

Id. at 352-54. We agree that in such a case a motion to dismiss under rule 12(b)(6) may raise affirmative defenses. Although we have not previously expressly articulated the rule that affirmative defenses may be brought by motion under rule 12(b)(6) when they appear within the complaint, we have previously recognized that a statute of limitations defense can be raised in a motion to dismiss. See Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 106 (Utah 1998) ("A party waives a statute of limitations defense by failing to raise it in a responsive pleading or by motion ...." (emphasis added)). We note also that other jurisdictions have similarly held that in certain cireum-stances affirmative defenses may be raised in a motion to dismiss. See, eg., Chamberlain v. Mathis, 151 Ariz. 551, 729 P.2d 905, 908 (1986) ("[An affirmative defense] may be properly raised in a motion to dismiss, if the facts establishing the occasion for the [defense] appear in the pleadings."); Murrey v. Specialty Underwriters, Inc., 233 Ga. 804, 2183 S.E.2d 668, 671 (1975) ("[Slome affirmative defenses may properly be raised by a motion to dismiss if the facts are admitted or are not controverted or are completely disclosed on the face of the pleadings and nothing further can be developed by a trial of the issue."); Harden v. State of Iowa, 434 N.W.2d 881, 883 (Iowa 1989) ("The bar of the statute of limitations is properly raised by a motion to dismiss when the necessary facts appear on the face of the pleadings...."); Cavanagh v. Cavanagh, 396 Mass. 836, 489 N.E.2d 671, 673 (1986) ("[If the complaint shows on its face the existence of an affirmative defense, the complaint does not state a claim upon which relief can be granted, and a motion to dismiss under ... 12(b)(6) is appropriate.").

T9 Thus, had the Tuckers expressly stated in their amended complaint that State Farm had reimbursed the Tuckers and refused to pay certain expenses in November 1996, the issue of the propriety of raising the statute of limitations in the motion to dismiss would be settled in State Farm's favor. Had this date been specified by the Tuckers, the allegations of the complaint itself would have clearly demonstrated that the Tuckers' claim was time barred, rendering the motion to dismiss an appropriate procedural vehicle for raising the statute of limitations. The Tuckers' amended complaint did not, however, explicitly mention this date. Rather, the amended complaint made reference to the events which began the running of the statute of limitations, ("Defendant STATE FARM paid only the reasonable value of Plaintiffs' medical expenses ...."), without expressly mentioning the date on which those acts occurred. To be sure, the amended complaint does specify a date-September 18, 1997-but this date refers to a subsequent denial of payment, not to the date that payment was received and the Tuckers were initially informed of State Farm's intention to deny a portion of their claims.

$10 Recognizing, presumably, that resolution of the statute of limitations issue required consideration of matters outside the complaint, the trial court noted that it was "exercising its discretion to treat State Farm's motion to dismiss as one for summary judgment under Rule 56 of the Utah Rules of Civil Procedure." See Utah R. Civ. P. 12(b); see also Strand v. Associated Students of the Univ. of Utah, 561 P.2d 191, 193 (Utah 1977) (explaining that the trial court has initial discretion to consider matters outside the pleadings in rule 12(b)(6) motions to dismiss). In exercising its discretion to treat this motion as one for summary judgment under rule 56, the trial court became able to ascertain the relevant date for statute of limitations purposes. We see no abuse of discretion in the trial court's decision to treat State Farm's motion as one for summary judgment and hold that in doing so, the trial court cured any procedural defect in State Farm's motion to dismiss caused by the Tuckers' exclusion of a date in their complaint. -

{11 Thus, in the narrow instance where a plaintiff's complaint describes events which establish when a statute of limitations begins to run but fails to explicitly set forth the relevant date on which those events occurred, a defendant may raise a statute of limitations defense in a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure, provided that the trial court treats the motion as one for summary judgment, thus giving all parties the "reasonable opportunity to present all material made pertinent to such a motion. ..." Utah R. Civ. P. 12(b). This holding is particularly appropriate in light of our policy to "liberally construe{ ]" the rules to "secure the just, speedy, and inexpensive determination of every action." Utah R. Civ. P. l(a). We therefore affirm the trial court's implicit determination that, in this case, the motion to dismiss was a proper procedural vehicle for State Farm to assert its statute of limitations defense.

II. CHARACTERIZATION OF THE TUCKERS' CLAIMS

«112 While the Tuckers concede that some of their claims are based on a contract of first-party insurance and, as such, are governed by the three-year statute of limitations in section 31A-21-8183 of the Utah Code, the Tuckers also argue that other claims in their amended complaint are based on fraud and breach of fiduciary duty, causes of action to which, they argue, the four-year statute of limitations in section 78-12-25(8) applies. The Tuckers' characterization of these claims as based on something other than a contract of first-party insurance is incorrect.

1 13 Section 81A-21-813(1) states, "An action on a written policy or contract of first party insurance must be commenced within three years after the inception of the loss." As we explained in Beck v. Farmers Ins. Exchange,

We use the term "first-party" to refer to an insurance agreement where the insurer agrees to pay claims submitted to it by the insured for losses suffered by the insured. ... In contrast, a "third-party" situation is one where the insurer contracts to defend the insured against claims made by third parties against the insured and to pay any resulting liability, up to the specified dollar limit. '

701 P.2d 795, 799 n. 2 (Utah 1985). Under the PIP provisions of the Tuckers' insurance policy, State Farm has no obligation to defend the Tuckers against claims made by third parties. Rather, State Farm's only obligation under the PIP provisions is to pay claims submitted by the Tuckers for losses suffered by the Tuckers within specified parameters. See, eg., Utah Code Ann. § 31A-22-307 (2001) (describing the parameters of an insurer's obligations concerning personal injury protection coverages and benefits). Thus, in accordance with our definition of "first-party" in Beck, the Tuckers and State Farm have a first-party relationship. Beck, 701 P.2d at 799 n. 2.

114 All duties and obligations arising from this first-party contract of insurance are contractual in nature. We reaffirm our position in Beck that "in a first-party relationship between an insurer and its insured, the duties and obligations of the parties are contractual rather than fiduciary. Without more, a breach of those implied or express duties can give rise only to a cause of action in contract, not one in tort." Id. at 800. Because the Tuckers and State Farm are in a first-party relationship, and all of the duties and obligations arising from that relationship are contractual in nature, we affirm the trial court's holding that section 81A-21-818, which governs "action[s] on written ... contract[s] of first party insurance," is the only statute of limitations applicable to this case and the Tuckers' claims against State Farm "must [have been] commenced within three years after the inception of the loss." § 81A-21-818(1) (2001).

DEL APPLICATION OF SECTION 31A, 21-3183 TO THE TUCKERS CLAIMS

115 The application of this three-year statute of limitations to the Tuckers' claims hinges on the definition of "inception of the loss." As section 31A-21-818(1) explains, "An action on a written policy or contract of first party insurance must be commenced within three years after the inception of the loss." The "inception of the loss" refers to the time when the loss was first incurred or began to accrue. See, e.g., Canadian Indem. Co. v. K & T, Inc., 745 F.Supp. 661, 664 (D.Utah 1990) (construing "inception of the loss" language in section 31A-21-313 (1), holding that it refers to the time when the loss was first incurred). Additionally, section 31A-21-818(4) prohibits filing an action until, among other things, the insurer denies full payment. Utah Code Ann. § 31A-21-318(4)(c) (2001). As the trial court correctly stated, "In a case involving the alleged failure to pay PIP benefits, the [inception of the loss occurs] no later than the date on which the insurer refuses to pay the disputed PIP benefits," and such a refusal to pay constitutes "denial of full payment" under section 81A-21-818(4)(c).

116 Here, State Farm reimbursed the Tuckers in November 1996 for the expenses it deemed to be necessary and informed the Tuckers that it would not reimburse the denied expenses unless the Tuckers could submit additional medical documentation showing the expenses were medically necessary. While State Farm left open some possibility for a future reconsideration of its decision if additional information was forthcoming, it is clear that in November 1996 the Tuckers were on notice that State Farm did not intend to fully reimburse the Tuckers' medical expenses. Thus, November 1996 was the "inception of the loss" triggering the beginning of the limitations period. The Tuckers failed to sue State Farm until September 12, 2000, when they filed their amended complaint adding State Farm as a defendant. Because this date is more than three years from November 1996, the Tuckers' claims against State Farm were barred by section 31A-21-818.

117 While the exact theory of the argument is unclear from the briefs, the Tuckers appear to argue that the statute of limitations was tolled for a period. See Utah Code Ann. § 81A-21-318(5)(2001) ("The period of limitation is tolled during the period in which the parties conduct an appraisal or arbitration procedure ... as agreed to by the parties."). This argument fails. Neither party has alleged that they agreed to an appraisal or arbitration procedure. The Tuckers seem to argue that State Farm's willingness to consider additional information evidences an agreement to toll the limitations period under section 31A-21-313(5). A mere willingness to consider additional information, however, does not constitute such an agreement. The record contains no other evidence of any such agreement. Thus, because the statutory requirements for tolling were not satisfied, the limitations period expired in November 1999, three years after State Farm's initial denial of the Tuckers' claim. We therefore affirm the trial court's decision that the Tuckers' amended complaint-filed on September 12, 2000-was time barred.

CONCLUSION

18 State Farm's contention that the statute of limitations in section 81A-21-318 of the Utah Code barred the Tuckers' claims was properly brought in a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure. The three-year limitations period in section 81A-21-313 applied to all of the Tuckers' causes of action. The limitations period on these causes of action began to run in November 1996, rendering the Tuckers' complaint, filed almost four years later, untimely. We therefore affirm the trial court's grant of summary judgment in favor of State Farm.

T 19 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice RUSSON coneur in Justice WILKINS opinion.

      . See, eg., Hous. Auth. v. Snyder, 2002 UT 28, 19 n. 2, 44 P.3d 724 (noting that where one argument is dispositive, we do not address other contentions).

      . Interpretations of the Federal Rules of Civil Procedure are persuasive where the Utah Rules of Civil Procedure are "substantially similar" to the federal rules. Lund v. Brown, 2000 UT 75, 126, 11 P.3d 277; see Utah R. Civ. P. 12 Compiler's Notes (noting that Utah's rule 12 is similar to federal rule 12).

      . See infra section III for a discussion on why the initial date of reimbursement and refusal is the determinative date for purposes of this case.


source: Caselaw Access Project

author: BENCH, Judge:

license: Public Domain

text:
    2002 UT App 253
    STATE of Utah, Plaintiff and Appellee, v. Curtis W. COLLINS, Defendant and Appellant.
    No. 20010371-CA.
    Court of Appeals of Utah.
    July 26, 2002.
    Rehearing Denied Sept. 17, 2002.

      Jack H. Molgard, Molgard & Hunsaker, Brigham City, for Appellant.
    Mark L. Shurtleff, Attorney General, Christine Soltis, Assistant Attorney General, for Appellee.
    Before Judges JACKSON, BILLINGS, and BENCH.
   OPINION

BENCH, Judge:

T1 This is an interlocutory appeal by Defendant, Curtis Collins, from an order denying his motion to suppress evidence obtained from a search conducted when Defendant was taken into protective cugtody during involuntary commitment into a mental health unit. Defendant is charged with possession of a controlled substance, methamphetamine, a second degree felony. We affirm the trial court's denial of the motion to suppress.

BACKGROUND

1 2 "We recite the facts in the 'light most favorable to the trial court's findings from the suppression hearing.'" State v. Giron, 943 P.2d 1114, 1115 (Utah Ct.App.1997) (citation omitted).

3 Defendant went with his mother for a scheduled appointment with Dr. William Weber at Bear River Mental Health in Brigham City. During the appointment, Defendant "gradually revved up, demonstrating confusion [and] inability to control his repetitive and threatening behavior" and continued to become more violent and irrational. Fearing for their safety, Defendant's mother and clinic staff locked the building's doors when Defendant eventually wandered outside. Defendant then began yelling and pounding on the glass doors. Dr. Weber felt that Defendant was off his medication and needed to be hospitalized so he called the Brigham City Police. The responding officers spoke with the doctor, caseworkers, and Defendant's mother, and received a "Certificate for Commitment to the Local Mental Health Authority Emergency Procedure." The Certificate was signed by Dr. Weber who had examined Defendant and concluded that he was "mentally ill and, because of his mental illness, [was] likely to injure himself or others if not immediately restrained." Utah Code Anu. § 62A-12-282(1)(a)(i) (2000). Pursuant to Utah Code Ann. §§ 62A-12-231 to -282 (2000), the officers took Defendant into custody for transport to Logan Regional Hospital where Defendant could be temporarily and involuntarily held.

1 4 The officers escorted Defendant to the mental , health facility's emergency room. Prior to entering, they "checked [Defendant] for weapons" by doing "an outside pat-down . of his pockets" and boots. After medication was given to Defendant to calm him down, the officers turned Defendant over to an ambulance crew and Officer J. Baty for transport to Logan Regional Hospital. Lynn Yeates, an emergency medical technician (EMT), was part of the ambulance crew. Upon arriving at Logan Regional Hospital, Deputy Yeates did a "complete pat-down search of Mr. Collins" during the admission process. During the search, Deputy Yeates found a knife sheath under clothing in Defendant's crotch area. Deputy Yeates looked inside the sheath and then, upon seeing a "small plastic baggy with a yellowish white powder," handed it to Officer Baty. In addition to the baggy and white powder, Officer Baty also found a straw and several pieces of foil that had a burnt substance on it. Further testing of the knife sheath and the powdery substance confirmed the presence of methamphetamine. "

[ 5 Defendant was charged with possession of a controlled substance, a second degree felony. Following his preliminary hearing, Defendant filed a Motion to Suppress the evidence discovered in the warrantless search of Defendant's person by. Yeates and Baty. The trial court denied this motion, concluding that (1) there is an implied authorization to conduct a search incident to taking an individual into custody pursuant to sections 62A-12-2831 to -282; or, in the alternative, (2) the officers were engaged in a "valid community caretaking role" so any searches came within the "emergency circumstances" exception to the warrant requirement. This court granted Defendant's petition for an interlocutory appeal to review the denial of his Motion to Suppress evidence obtained from the warrantless searches. See State v. Koury, 824 P.2d 474, 476 (Utah Ct.App.1991).

ISSUES AND STANDARD OF REVIEW

T6 The central issue before us is whether a protective custody search is allowed under the Fourth Amendment guarantee against unreasonable searches and seizures. First, Defendant argues that "the warrantless searches of Defendant's person and his belongings were in violation of the Fourth Amendment to the United States constitution and Article I, Section 14 of the Utah Constitution. Second, Defendant argues that Utah Code Ann. § 62A-12-282(1)(a)Gi) was not complied with when Defendant was taken into custody and that sections 62A-12-281 to -282 do not create, an implied exception to the warrant requirement. Finally, Defendant argues that the searches do not fall within the "emergency circumstances" or "community caretaker" exceptions to the warrant requirement. Defendant claims that there are no facts on which to base the emergency cireumstance or community caretaker exceptions, because the searches were primarily motivated by intent to arrest and seize evidence. ‘

T7 " 'In reviewing a trial court's ruling on a motion to suppress evidence, we will not overturn the trial court's factual findings absent clear error....' The trial court's legal conclusions, however, we review for correct, ness." State v. Navanick, 1999 UT App 265, ¶ 7, 987 P.2d 1276 (citations omitted); see also State v. Anderson, 910 P.2d 1229, 1232 (Utah 1996).

ANALYSIS

T8 Section 62A-12-282 provides, in relevant part:

(1)(a) An adult may be temporarily, involuntarily committed to a local mental health authority upon: |
(i) written application by a responsible person who has reason to know, stating a belief that the individual is likely to cause serious injury to himself or others if not immediately restrained, and stating the personal knowledge of the individual's condition or cireumstances which lead to that belief; and
(i) a certification by a licensed physician . stating that the physician ... has examined the individual ..., and that he is of the opinion that the individual is mentally ill and, because of his mental illness, is likely to injure himself or others if not immediately restrained.
(b) Application and certification as described in Subsection (1)(a) authorizes any peace officer to take the individual into the custody of a local mental health authority and transport the individual to that authority's designated facility.
(4) Transportation of mentally ill persons pursuant to Subsections (1) ... shall be conducted by the appropriate municipal, or city or town, law enforcement authority or, under the appropriate law enforcement's authority, by ambulance. ...

Id. (emphasis added).

T9 On appeal, Defendant argues that section 62A-12-282(1)(a)(i) was not complied with. However, Defendant cannot raise this argument on appeal, after having conceded in the trial court that his detention was legal. Defendant's attorney expressly stated, "They [meaning the police] had the obligation to transport, I agree with that." The defense cannot now "cireumvent its earlier concession." City of Orem v. Henrie, 868 P.2d 1384, 1387 (Utah Ct.App.1994). " '[Aln appellate court normally will not consider issues, even constitutional ones, that have not been presented first to the trial court for its consideration and resolution" Id. (alteration in original) (citation omitted). We therefore decline to address this issue for the first time on appeal. See id.

110 Additionally, Defendant argues for the first time on appeal that Defendant's due process rights were denied because the trial court's memorandum decision "advanced new theories of which the Defendant neither had notice or ... opportunity to address." Defendant claims that he had no notice that the lower court would imply a warrant exception in section 62A-12-232 or that, in the alternative, the court would base its decision on the emergency circumstances exception. Defendant therefore contends that he "was not in a position to object to the trial court's desire to take the motion under advisement and do independent research." Our reading of the record does not support Defendant's contention. At the motion hearing, the judge stated that "[slurely there's been other cases where in the process of a {civil commitment] to a mental health facility either weapons or contraband was discovered." In response, Defendant's attorney replied, "I've looked and I didn't see anything in regard to that." The court then told both parties that it would take the matter under advisement to "find some authority that's on point." The defense did not object to the court's procedure at this point and failed to object in the trial court thereafter. We therefore decline to address this issue. See State v. Holgate, 2000 UT 74,¶ 11, 10 P.3d 346 ("As a general rule, claims not raised before the trial court may not be raised on appeal.").

111 Defendant also argues that the warrantless searches of his person were conducted in violation of the Fourth Amendment. Defendant contends that the trial court erred in finding an implied exception to the warrant requirement within sections 62A-12-231 to -282. We disagree, and conclude that a search incident to protective custody, just as a search incident to a lawful arrest, is allowed under the Constitution. See State v. Brown, 858 P.2d 851, 855 (Utah 1992).

112 Statutory interpretation is a question of law and we accord no deference to the legal conclusions of the trial court but review them for correctness. See Rushton v. Salt Lake County, 1999 UT 86,¶ 17, 977 P.2d 1201. In interpreting statutes, our "primary goal is to give effect to the legislature's intent in light of the purpose the statute was meant to achieve." Evans v. State 963 P.2d 177, 184 (Utah 1998). "We therefore look first to the statute's plain language." Id. We interpret a statute to grant an agency "such implied powers as are reasonably necessary to effectuate its express powers or duties." Bennion v. ANR Production Co., 819 P.2d 343, 350 (Utah 1991).

113 The legislature has clearly authorized "any peace officer to take ... [an] individual into ... custody" so the individual can be transported to a mental health authority to be involuntarily committed if certain requirements are met. Utah Code Ann. § 62A-12-232(1)(b). These requirements include a certification by a licensed physician stating that "because of his mental illness, [the individual being committed] is likely to injure himself or others if not immediately restrained." Utah Code Ann. § 62¥A-12-232(1)(a)(ii). From our review of the record, it is apparent that these requirements were met. Defendant was acting in a manner that could have easily led to the serious injury of himself or others. See id. Dr. Weber and the other witnesses, including Defendant's mother, were concerned for their own and Defendant's safety. These facts indicate that it was proper for Dr. Weber to request that the police place Defendant in protective custody. See Utah Code Ann. § 62A-12-2832(1).

¶ 14 The plain language of the statute indicates a concern for the safety of both the individual being taken into custody and those the statute refers to as "others." Accordingly, we agree with the trial court that there is an implied authorization to conduct a search incident to taking an individual into custody pursuant to sections 62A-12-231 to ~282. Without such implied authorization to conduct a search, a "peace officer" could not effectuate the legislative intent of preserving the safety of the public or the individual being taken into custody. Therefore, we conclude that, pursuant to the statute, a peace officer is authorized to conduct a search under sections 62A-12-281 to -282.

115 We recognize that the "Fourth Amendment prohibits all unreasonable searches and seizures." Brown, 853 P.2d at 855 (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)). "Warrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement." Id. Just as a search incident to a lawful arrest is constitutionally permissible, so too is a search incident to being taken into protective custody. "The core inquiry in a Fourth Amendment analysis is 'whether a person has a reasonable expectation of privacy in the area searched." Id. (quoting United States v. Bilanzich, 771 F.2d 292, 296 (7th Cir.1985)). A person being placed in civil protective custody can expect to be searched the same as an individual who is placed in criminal arrest custody. Indeed, a protective custody search of a mentally ill individual may be more warranted given the greater likelihood that they could injure themselves or others with a concealed weapon. We thus conclude that the searches in this case did not violate the Fourth Amendment and are, therefore, constitutional.

116 Furthermore, this statutorily authorized search is not limited in seope to a simple weapons pat-down. See Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968). In a civil protective custody search, the purpose is to protect not only the peace officer but also the mentally ill individual and others. Although Defendant correctly asserts that any implied exception to the warrant requirement is "limited by constitutional protections," there was no violation of such protections in this case. Accordingly, the searches performed in this case were proper. Such a result is not only consistent with the legislature's "intent in light of the purpose the statute was meant to achieve," Evans, 963 P.2d at 184, but is also consistent with other case law. See, e.g., Washington v. Dempsey, 88 Wash.App. 918, 947 P.2d 265 (1997); Washington v. Lowrimore, 67 Wash.App. 949, 841 P.2d 779 (1992)

1 17 We therefore affirm the trial court's denial of Defendant's Motion to Suppress evidence obtained from the searches incident to taking Defendant into protective custody.

118 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JUDITH M. BILLINGS, Associate Presiding Judge.

      . We cite to the most recent version of Utah Code Ann § 62A-12-232 as there have been no relevant changes in this section since the searches at issue.

      . Lynn Yeates is also a deputy for the Box Elder County Sheriff's Office. There is some question as to whether Yeates was acting as a peace officer or as a private citizen. However, we assume Yeates was acting as a peace officer because this is how the parties argued the case to the trial court and on appeal.

      . Defendant refers to but engages in no analysis of article I, section 14 of the Utah Constitution. Therefore, we consider Defendant's claims only under the Fourth Amendment. See City of Orem v. Henrie, 868 P.2d 1384, 1387 (Utah Ct.App. 1994).

      . The Washington cases also discuss emergency circumstances and community caretaker doctrines as bases for conducting protective civil custody searches. We find consideration of these doctrines unnecessary. Therefore, we do not address Defendant's arguments concerning the emergency circumstances and community caretaker exceptions to the warrant requirement.


author: DAVIS, Judge:

text:
    2002 UT App 267
    STATE of Utah, in the interest of J.B., a person under eighteen years of age. E.B., Appellant, v. State of Utah, Appellee.
    No. 20010260-CA.
    Court of Appeals of Utah.
    Aug. 8, 2002.

      Jeffrey J. Noland, Noland Law Office, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Carol L. Verdoia, Assistant Attorney General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before BILLINGS, Associate P.J., and DAVIS, and GREENWOOD, JJ.
   OPINION

DAVIS, Judge:

11 Appellant E.B. (Mother) appeals the juvenile court's termination of her parental rights to J.B., claiming the court erred in relying upon facts from a previous termination proceeding involving J.B.'s older siblings. Mother also claims that the juvenile court erred by not considering Utah Code Ann. § 78-82-409 (Supp.2001) in making its determination. We affirm.

BACKGROUND

{2 Mother is the natural mother of six children: G.B., C.B., LB., E.8.B., B.B., and J.B. The two older children, G.B. and C.B., are currently living in long-term foster care placements. Mother's parental rights to three of the children, L.B., E.S.B., and B.B., were terminated and today we have affirmed the juvenile court's ruling in that case in a separate opinion. See In re G.B., 2002 UT App 270, 53 P.3d 968. The father, RB., voluntarily relinquished his parental rights to the same three children and is not a party to the appeal from that proceeding. The father has filed a separate appeal from the termination proceeding involving J.B., which we have also affirmed today in a separate opinion. See In re J.B., 2002 UT App 268, 53 P.3d 968.

{3 This family has an extensive history with the Division of Child and Family Services (DCFS). Between December 1986 and November 1998, DCFS received approximately eighteen referrals for child abuse and neglect by the parents, at least ten of which were substantiated on grounds of sexual abuse, physical abuse, physical neglect, failure to protect, emotional maltreatment, and medical neglect. In 1996, the children were first placed in foster care after being adjudicated as neglected children. The children were returned home in November 1997.

T4 On or about October 9, 1998, E.S.B. disclosed to her therapist that she recently had been sexually abused by a male friend of her parents who had been living with and caring for the children in their parent's home. Mother believed the friend would never do such a thing and told DCFS that she thought E.S.B. had made up the story. Because Mother refused to ensure that this friend would be kept away from E.S.B., the child was placed into shelter care. On October 13, 1998, the other four children were removed from the family home. At a shelter hearing, Mother again asserted her belief that E.S.B. had made up the story. The juvenile court ordered DCFS to return the children to their home that day. Prior to their return, however, the children were interviewed at the Children's Justice Center. During the interview, E.S.B. asserted that her siblings, C.B., L.B., and B.B., had also been sexually inappropriate with her. C.B. and L.B. admitted touching each other's and E.S.B.'s genitalia on a frequent or regular basis. Based on this new information, the children were not returned home, and instead were placed in shelter care.

15 At a hearing on October 16, 1998, the juvenile court granted temporary custody of the children to DCFS. Custody and guardianship was granted to DCFS on December 9, 1998, when the children were adjudicated abused and neglected by both parents. The two oldest children, G.B. and C.B., remain in foster care with long-term foster care as the permanency goal. L.B., E.S.B., and B.B. are in foster homes awaiting adoption.

T6 Over the many years DCFS was involved with this family, the parents were provided with numerous services, These services included homemaking; nutrition; hygiene; parent advocacy; peer parenting; parenting classes; caseworker involvement; individual, couple, and family therapy; sex abuse treatment; handicapped and medical assistance; an attachment evaluation; psychological evaluations; visitation; Court-Appointed Special Advocate (CASA) support; transportation; and special education. In addition, ongoing family preservation services were provided since 1993.

17 The State filed a verified petition for termination of parental rights on August 18, 1999. Trial on the State's petition concluded on September 11, 2000. Based on the evidence presented and the testimony given, the juvenile court found that Mother had neglected her children by failing to protect them from sexual activity among themselves. The court further found that because she was in the home when the majority of the acts involving her husband and children occurred, she had failed to protect them from sexual abuse by her husband.

18 The court also recognized that DCFS had provided numerous services to this family. However, because Mother was unable or unwilling to acknowledge the family's problems, they were of little benefit. Accordingly, on October 283, 2000, pursuant to' Utah Code Ann. § 78-82a-407 (Supp.2001), the juvenile court terminated parental rights to L.B., E.S.B., and B.B. based on grounds of unfitness, neglect, failure to remedy cireum-stances causing out-of-home placement, and best interest of the children.

1 9 The trial on the first petition to terminate Mother's parental rights concluded on September 11, 2000, and the final order was entered on October 283, 2000. On August 20, 2000, J.B. was born in the state of Idaho. Mother created a fictitious birth certificate which gave the child a different name and listed the names of Mother's friends as the natural parents of J.B. Mother concealed her pregnancy and the birth of J.B. during the course of termination proceedings regarding the older siblings.

[ 10 DCFS learned of the birth of J.B. and began an investigation. When questioned, Mother told DCFS that she was babysitting J.B. for a friend who worked at night. Mother presented the false birth certificate to validate her story. DCFS visited the friend, who subsequently confessed to the deception. J.B. was removed from the parental home on or about October 17, 2000, as a child at risk under Utah Code Ann. § 78-8a-1083(1)(r)M(E) (Supp.2001). Temporary custody and guardianship of J.B. was granted to DCFS at a shelter hearing held on October 30, 2000.

1 11 On November 13, 2000, the State filed its termination petition concerning J.B. and a trial was held on January 25, 2001. The State moved the court to take judicial notice of all prior proceedings, including the first termination findings and order pertaining to the' older siblings. Mother and the father objected. The court heard argument and granted the motion, taking judicial notice of all prior proceedings involving the family.

112 Mother, the father, their friend BR., and three DCFS caseworkers testified at the trial regarding J.B. Based on that testimony and the historical facts surrounding the parents' abuse and neglect of their older children, thé juvenile court terminated Mother's and the father's parental rights to J.B. pursuant to Utah Code Ann. § 78-Sa-407 by finding parental unfitness, failure to remedy cireumstances causing out-of-home placement, token efforts, and best interest of the child.

1 13 Specifically, the court found that the parents did nothing to resolve their issues, modify their behavior, or correct the circumstances that caused them to lose custody of their five older children. The court further found that because J.B.'s siblings had been abused and neglected by his parents, he was at risk of abuse and neglect. Finally, the court found that J.B. was in an adoptive home where he was thriving and had bonded to his foster parents who desired to adopt him.

ISSUES AND STANDARDS OF REVIEW

114 Mother appeals the juvenile court's termination of her parental rights to J.B., claiming the court erred in relying upon facts from a previous termination proceeding involving J.B.'s older siblings. We review the juvenile court's judicial notice of prior adjudicated facts under Rule 201 of the Utah Rules of Evidence for abuse of discretion. See Riche v. Riche, 784 P.2d 465, 468 (Utah Ct.App.1989).

115 Mother also claims that the juvenile court erred in failing to apply Utah Code Ann. § 78-8a-409. This issue presents a mixed question of law and fact requiring a review of the juvenile court's application of statutory law to the facts. See In re C.B., 1999 UT App 293,¶ 5, 989 P.2d 76. Findings of fact are reviewed for clear error, with deference given to the juvenile court. See 1d. Conclusions of law are reviewed by this court for correctness, giving no deference to the trial court. See id. However, we do afford the juvenile court some discretion in applying the law to the facts. See id.

ANALYSIS

116 Mother first argues that the evidence relied upon by the juvenile court was insufficient because: (1) the court's findings of fact and conclusions of law regarding her unfitness are based upon prior evidence and findings presented at the termination trial involving her older children, (2) during the second termination trial the State failed to meet its burden of presenting evidence regarding her then present cireumstances, and (8) the court should not have relied on the prior unfitness findings relating to her older children because J.B. was not in her custody at that time.

117 First, we address whether it was proper for the juvenile court to rely on previously adjudicated facts involving J.B.'s older siblings arising from proceedings in which Mother participated, and whether these findings, together with the evidence and findings from the J.B. termination proceeding, were sufficient to terminate Mother's parental rights. Under rule 201, judicially noticed facts are conclusively established in civil actions for purposes of the fact finding process, and a "party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed." Utah R. Evid. 201(e). In addition, "[clonsiderations regarding a child's welfare are rarely, if ever, statice. In fact, it is more likely that the child's environment is constantly evolving, thus justifying the court's continuing jurisdiction." In re J.J.T., 877 P.2d 161, 163 (Utah Ct.App. 1994); see also In re A.S., 12 Kan.App.2d 594, 752 P.2d 705, 711 (1988) (holding that court must be free to examine all cireum-stances, evidence, prior facts and orders, and other relevant information in termination proceedings).

T18 Utah Code Ann. § 78-32-407 provides that parental rights may be terminated if the juvenile court finds "that the parent or parents have neglected the child." Utah Code Ann. § 78-8a-407(2). A neglected child is defined as a minor "who is at risk of being a neglected or abused child ... because another minor in the same home is a neglected or abused child." Utah Code Ann. § The very termination proceedings giving rise to the adjudicated facts relating to LB., E.S.B., and B.B. were ongoing at the time of J.B.'s birth, obviating any need on the part of the State to negate their ongoing efficacy. Based on the prior adjudicated facts that J.B.'s older siblings were neglected, and applying the plain meaning of both sections of the Utah Code, we hold that it was proper for the juvenile court to find that J.B. was a neglected child.

{19 Mother's next argument requires us to determine where the burden lies in cases where the State argues that a child is at risk of being neglected or abused because a sibling in the same home has been neglected or abused. See Utah Code Ann. § 78-32-103(1)(r)@)(E).

120 Before a court can terminate parental rights it must make two distinct findings. See In re M.L., 965 P.2d 551, 561 n. 18 (Utah Ct.App.1998). "First, the court must find that the parent is below some minimum threshold of fitness." In re R.A.J., 1999 UT App 329,¶ 7, 991 P.2d 1118 (quotations and citations omitted). Second, the court must determine that it is in the child's best interest to terminate the parent's parental rights. See id.; Utah Code Ann. §§ 78-3a-402(2), -406(8) (1996). In termination of parental rights proceedings, "the court shall . require the petitioner to establish the facts by clear and convincing evidence." Utah Code Ann. $ 78-8a-406(B); see also Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 LEd.2d 599 (1982) ("Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence."). Thus, we agree that the State had the burden of proving the allegation in its petition by clear and convine-ing evidence. However, "we conclude [that] the facts before the court were sufficient to meet the statutory requirement." In re E.K., 913 P.2d 771, 775 (Utah Ct.App.1996).

$21 To support its allegations, the State provided documentation reflecting the adjudicated facts from the prior juvenile court proceedings involving Mother's neglect of J.B.'s older siblings. These include Mother's admission to the findings that one of the children was an abused child, as she was sexually abused by an out of the home perpetrator; the male siblings were at risk of being abused since they resided in the same home; there was every indication that the parents would not protect the children; out-of-home placement of the children was necessary until the parents could acknowledge that the abuse occurred and properly deal with the effects; a male sibling had been sexually abused and had not received therapy to address those issues; this same male child perpetrated abuse on the female child who was also in need of therapy; all the children were dependent or neglected; the physical conditions in the home have been unsanitary and the parents required assistance in maintaining their home; and, in spite of services provided, the children in the home were at risk due to the parents' repeated failure to follow through with services needed and suggested by DCFS.

122 In addition to these adjudicated facts, Mother, the father, their friend B.R., who had schemed with the parents to conceal the birth of J.B., and three DCFS workers testified at the termination trial regarding J.B. We conclude that the "State introduced sufficient evidence to establish the elements of a prima facie case." Id. It then became Mother's burden to produce evidence to "persuade the court that the State had not established by clear and convincing evidence that [J.B.] was a neglected child because he was at risk of being [neglected or] abused." Id. Mother failed to present any such evidence, including rebuttal of judicially noticed prior adjudicated facts, and there was clear and convincing evidence before the juvenile court to support its determination to terminate Mother's parental rights to J.B.

123 Next, Mother claims that the juvenile court failed to consider the requirements of Utah Code Ann. § 78-8a-409.

The statute requires courts, in determining whether parental rights should be terminated, to consider the reunification services offered; the children's physical, mental, and emotional condition and needs; and the parent's efforts to change conduct, conditions, or cireumstances to make it in their children's best interest to return home.

In re S.T., 928 P.2d 393, 400 (Utah Ct.App. 1996). Although "the juvenile court did not expressly refer to the statute when considering these factors," it is clear from the detailed findings that the court did consider the requirements set forth in this section when making its final determination. Id. We therefore conclude that prior to terminating Mother's parental rights, "the juvenile court properly considered each statutory factor." Id.

CONCLUSION

[ 24 It was proper for the juvenile court to take judicial notice of the prior adjudicated facts. Because the record reflects no substantial changes in Mother's cireumstances, and based on the minimal amount of time that elapsed between the first termination proceeding and the second, the juvenile court's conclusion that J.B. was at risk was correct. We thus conclude that the State met its burden, and the juvenile court's decision was supported by clear and convincing evidence.

1 25 The juvenile court's order terminating Mother's parental rights is affirmed.

126 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . For convenience, we cite to the most recent version of the statute. There has been no significant change to the statute that would affect our analysis.

      . The father, who has filed a separate appeal, signed a petition to voluntarily relinquish his parental rights io three of the children-L.B., E.B., B.B.-on February 10, 2000. The petition was stayed until the termination of Mother's parental rights became effective on October 23, 2000.

      . Today we affirm the termination order entered by the juvenile court in that proceeding. See In re G.B., 2002 UT App 270, 53 P.3d 963.


text:
    2002 UT App 270
    STATE of Utah, in the interest of G.B., C.B., L.B., E.B., and B.B., persons under eighteen years of age. E.B., Appellant, v. State of Utah, Appellee.
    No. 20000846-CA.
    Court of Appeals of Utah.
    Aug. 8, 2002.

      Jeffrey J. Noland, Noland Law Office, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Carol L. Verdoia, Assistant Attorney General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem. ~
    Before BILLINGS, Associate P.J., and DAVIS and GREENWOOD, JJ.
   OPINION

DAVIS, Judge:

' 1 Appellant E.B. (Mother) challenges the juvenile court's termination of her parental rights. She argues that: (1) the juvenile court erred in determining that she was an unfit parent and that her children were neglected, (2) the evidence was insufficient to support the juvenile court's findings, (8) the juvenile court abused its discretion by denying her motion to strike the testimony of Ms. Jo-Anne Collier, and (4) the juvenile court failed to specifically consider the requirements of Utah Code Ann. § 78-82a-409 (Supp.2001). Mother's first two arguments address the sufficiency of evidence. in support of the juvenile court's findings regarding unfitness, neglect, best interest of the children, and parental unfitress. We will address these arguments together.

BACKGROUND

T2 Mother is the natural mother of six children: G.B., C.B., LB., E.S.B., B.B., and J.B. The two older children, G.B. and C.B., were removed from the State's termination petition and are currently living in long-term foster care placements. This appeal involves the termination of parental rights to L.B., E.S.B., and B.B. The father, R.B., voluntarily relinquished his parental rights to the same three children and is not a party to this appeal. The father has filed a separate appeal from the termination proceeding involving J.B., which we have affirmed today in a ° separate opinion. See In re J.B., 2002 UT App 268, 53 P.3d 968.

T3 This family has an extensive history with the Division of Child and Family Services (DCFS). Between December 1986 and November 1998, DCFS received approximately eighteen referrals of child abuse and neglect by the parents, at least ten of which were substantiated on grounds of sexual abuse, physical abuse, physical neglect, failure to protect, emotional maltreatment, and medical neglect. In 1996, the children were first placed in foster care after being adjudicated as neglected children. The children were returned home in November 1997.

T4 On or about October 9, 1998, E.S.B. disclosed to her therapist that she had recently been sexually abused by a male friend of her parents who had been living with and caring for the children in her parents' home. Mother believed the friend would never do such a thing and told DCFS that she thought E.S.B. had made up the story. Because Mother refused to ensure that this friend would be kept away from E.S.B., the child was placed into shelter care. On October 18, 1998, the other four children were removed from the family home. At a shelter hearing, Mother again asserted her belief that E.S.B. had made up the story. The juvenile court ordered DCFS to return the children to their home that day. Prior to their return, however, the children were interviewed at the Children's Justice Center. During the interview, E.S.B. asserted that her siblings, C.B., LB., and B.B., had also been sexually inappropriate with her. C.B. and L.B. admitted touching each other's and E.S.B.'s genitalia on a frequent or regular basis. Based upon this new information, the children were not returned home, but instead were placed in shelter care.

15 At a hearing on October 16, 1998, DCFS was given temporary custody of the children. Custody and guardianship was granted to DCFS on December 9, 1998, after the juvenile court determined that the children had been abused and neglected by both parents. The two oldest children, G.B. and C.B., remain in foster care with long-term foster care as the permanency goal. Pending the outcome of this appeal, L.B., E.S.B., and B.B. are in foster homes awaiting adoption.

16 Over the many years DCFS was involved with this family, the parents were provided with numerous services. These services included homemaking; nutrition; hygiene; parent advocacy; peer parenting; parenting classes; caseworker involvement; individual, couple, and family therapy; sex abuse treatment; handicapped and medical assistance; an attachment evaluation; psychological evaluations; visitation; Court-Appointed Special Advocate (CASA) support; transportation; and special education. In addition, family preservation services were provided on a nearly ongoing basis since 19983.

17 The State filed a verified petition for termination of parental rights on August 13, 1999. Trial on the State's petition concluded on September 11, 2000. Based on the evidence presented and the testimony given, the juvenile court found that Mother had neglected her children by failing to protect them from sexual activity among themselves. The court further found that because she was in the home when the majority of the acts involving her husband and the children occurred, she had failed to protect the children from sexual abuse by her husband.

18 The court also found that DCFS had provided numerous services to this family. However, because Mother was unable or unwilling to recognize the family's problems, they were of little benefit. Accordingly, on October 28, 2000, pursuant to Utah Code Ann. §. 78-8a-407 (Supp.2001), Mother's parental rights to L.B., E.S.B., and B.B. were terminated based on grounds of unfitness, neglect, failure to remedy circumstances causing out-of-home placement, and best interest of the children.

ISSUES AND STANDARDS OF REVIEW

19 First, Mother asserts that the evidence supporting the juvenile court's findings and ultimate decision to terminate her parental rights was insufficient. Mother challenges the evidence supporting the juvenile court's findings of: (1) unfitness, (2) neglect, (8) failure of parental adjustment, and (4) best interest. " Findings of fact in a parental rights termination proceeding are overturned only if they are clearly erroneous." In re S.L., 1999 UT App 390,¶ 19, 995 P.2d 17 (quoting In re S.T, 928 P.2d 393, 400 (Utah Ct.App.1996)). "Moreover, we defer to the juvenile court because of its advantageous position with respect to the parties and the witnesses in assessing credibility and personalities." Id. at 120 (quotations and citation omitted).

110 Next, Mother alleges that the juvenile court erred in allowing Ms. Jo-Anne Collier to testify as an expert witness. This court has "repeatedly recognized that trial courts have considerable discretion over the admission of expert testimony." In re G.Y., 962 P.2d 78, 83 (Utah Ct.App.1998). Thus, making determinations as to who qualifies as an expert witness and the admissibility of the witness's testimony fall within the discretion of the trial court. "Absent a clear abuse of this discretion, we will not reverse the trial court's determination." Id.

§11 Mother's final argument is that the juvenile court failed to consider, or improperly applied, the requirements of Utah Code Ann. § 78-3a-409 (Supp.2001). Application of statutory law to the facts presents a mixed question of fact and law. We review the juvenile court's findings for clear error and its conclusions of law for correctness, affording the court "some discretion in applying the law to the facts." In re C.B., 1999 UT App 293,¶ 5, 989 P.2d 76.

ANALYSIS

I. Sufficiency of the Evidence

€ 12 In reviewing the entire record in this case, we conclude that there was clear and convincing evidence to support the challenged findings. "We note again that we ... defer to the juvenile court's ability to observe the witnesses and weigh their credibility, in this case, over a period of [several years]." S.L., 1999 UT App 390 at ¶ 24, 995 P.2d 17. With that in mind, we will address Mother's claims as presented.

113 Mother first challenges the juvenile court's findings of unfitness and neglect. Following the termination trial, the juvenile court made numerous findings regarding Mother's unfitness as a parent and her continual neglect of her children. Mother's argument, however, is based solely upon the findings regarding Mother's knowledge of and response to the sexual abuse of E.S.B. by her father. Mother does not challenge the findings regarding her children's repeated sexual victimization, their sexual activity with each other, her ongoing failure to protect the children, her continued denial of the abuse, and her failure to change despite the numerous services provided. These findings alone support the juvenile court's determination.

{14 Nonetheless, after careful review of the record, we conclude that there was ample evidence to support the juvenile court's finding regarding Mother's knowledge of the abuse. We cannot overlook the great weight of evidence supporting the finding that Mother knew of the abuse merely because one witness testified that Mother was asleep during some of the father's abuse of E.S.B. The evidence included testimony that Mother knew that the father showered with E.S8.B., that abuse occurred on camping trips, that the father was caught "smooching" with E.S.B., and that E.S8.B. made an attempt to tell Mother about the abuse. In addition, Mother's argument that she may have been sleeping during some of the abuse incidents does not obviate Mother's repeated denial that abuse was occurring or her inability to protect her children from further abuse over the years, despite the numerous services provided by DCFS, including those specifically designed for the purpose of preventing abuse. We conclude that the juvenile court's findings were supported by clear and convincing evidence.

{15 Mother next challenges the juvenile court's findings that she failed to remedy the cireumstances causing out-of-home placement of her children under Utah Code Aun. § 78-3a-407(4) This section requires a finding that DCFS provided "appropriate services and the parent has substantially neglected, wilfully refused, or has been unable or unwilling to remedy the cireumstances that cause[d] the child{ren] to be in an out-of-home placement." Id. It is clear from both the record and the juvenile court's findings that DCFS provided appropriate services.

116 Next, we must consider whether Mother "substantially neglected, wilfully refused, or has been unable or unwilling to remedy the circumstances that cause[d] the child[ren] to be in an out-of-home placement." Id.

11 17 In In re C.Y., 765 P.2d 251, 255 (Utah Ct.App.1988), this court determined that an effort to improve one's parenting skills is not determinative if "no significant improvement in [the parent's] parenting skills has been noted despite [the parent's] efforts." Here, Mother claims that she significantly complied with the service plan. However, mere compliance is not enough. The evidence presented at trial adequately supports the juvenile court's finding that after several years of involvement by DCFS, Mother failed to internalize what she has been taught relative to child care and child development. Further, the juvenile court found that Mother continued to reside in the home of the father, who had been the perpetrator of both physical and sexual abuse of the children. Additionally, Mother had no intention of separating from the father. The juvenile court also found that Mother continues to deny that any abuse occurred. Thus, there is ample evidence to support the juvenile court's findings pursuant to section 78-8a-407(4), and the juvenile court did not err.

118 Finally, Mother challenges the juvenile court's conclusion that termination of her parental rights was in the best interest of the children. Mother has continued to foster a relationship with the father and has no intention of leaving him, has continually denied the occurrence of any abuse, and has failed to internalize or implement any of the many services provided to her by DCFS. Given this evidence, the juvenile court was correct in determining it was in the children's best interest that Mother's parental rights be terminated.

II. Qualification of Expert Witness

119 Mother claims that because Ms. Collier was not a lHeensed psychologist, the juvenile court abused its discretion by admitting her testimony. Whether a witness qualifies as an expert is governed by Rule 702 of the Utah Rules of Evidence. When applying rule 702, Utah courts have noted that the "'critical factor in determining the competency of an expert is whether that expert has knowledge that can assist the trier of fact in resolving the issues before it"" G.Y., 962 P.2d at 83 (quoting Wessel v. Erickson Landscaping Co., 711 P.2d 250, 253 (Utah 1985)). "Rule 702 only requires an expert to have knowledge, training, or education in the area." Robb v. Anderton, 863 P.2d 1322, 1326 (Utah Ct.App.1993).

[ 20 During the trial, Ms. Collier testified that she had a master's degree in psychology, was a registered psychologist in Australia, and had practiced for eight years as a psychologist. Ms. Collier further testified that she had worked since 1997 as the primary therapist at the Trauma Treatment and Awareness Center in Utah. The focus of her employment involved working with children who were abused, neglected, abandoned, or had other problems such as depression, disorders, or delinquency. After receiving this testimony, and having received no objection from counsel, the juvenile court qualified Ms. Collier as an expert. Because Ms. Collier's licensure had no bearing on whether the court could properly qualify her as an expert witness, and the fact that her knowledge regarding this family could assist the juvenile court in resolving the issues before it, the juvenile court did not abuse its discretion by either qualifying her as an expert or by relying on her testimony. See id.

11 21 Therefore, we conclude that the juvenile court properly qualified Ms. Collier as an expert witness and did not err in admitting her testimony.

III. Application of Utah Code Ann. § 78-3a-409

122 Finally, Mother claims the juvenile court failed to consider the requirements set forth in Utah Code Ann. § 78-32-409.

The statute requires courts, in determining whether parental rights should be terminated, to consider the reunification services offered; the children's physical, mental, and emotional condition and needs; and the parent's efforts to change conduct, conditions, or cireumstances to make it in their children's best interest to return home.

In re S.T., 928 P.2d 393, 400 (Utah Ct.App. 1996). Although "the juvenile court did not expressly refer to the statute when considering these factors," it is clear from the detailed findings that the court did consider the requirements set forth in this section when making its final determination. Id. Therefore, we conclude that prior to terminating Mother's parental rights, "the juvenile court properly considered each statutory factor." Id.

CONCLUSION

1 23 We conclude that the there was sufficient evidence to support the juvenile court's termination of Mother's parental rights. In addition, the juvenile court properly qualified Ms. Collier as an expert witness and did not err in admitting her testimony. Finally, the juvenile court properly considered each statutory factor prior to terminating Mother's parental rights.

«I 24 The juvenile court's order terminating Mother's parental rights is affirmed.

11 25 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . For convenience, we cite to the most recent version of the statute. .There has been no significant change to the statute that would affect our analysis.

      . The father signed a petition to voluntarily relinquish his parental rights to three of the children-L.B., E.B., B.B.-on February 10, 2000. The petition was stayed until the termination of Mother's parental rights became effective on October 23, 2000.

      . The State correctly points out in its brief that the juvenile court's findings inaccurately label the basis for the second ground under which Mother's parental rights were terminated as "failure of parental adjustment." Although failure of parental adjustment is a ground for termination enumerated in Utah Code Ann. § 78-3a-407(5) (Supp.2001), this ground was not relied upon by the juvenile court. Instead, the substance of the findings and conclusions support a determination under Utah Code Ann. § 78-3a-407(4) for failure to remedy circumstances causing out-o[-home placement.

      . Midway through trial, after Ms. Collier had been qualified as an expert, Mother's counsel raised the issue of licensure for the first time. The parties agreed to an investigation and that depending on the status of her licensure the defense would be permitted to file any motions with the court regarding the legal effect of non-licensure on expert status. After the investigation had been performed and the status of Ms. Collier's licensure was known, counsel for Mother did not pursue the issue. In addition, no memorandum or motion was filed. Because Mother did not pursue the issue and the juvenile court did not rule on it, that issue on appeal has been waived. See Hart v. Salt Lake County Comm'n, 945 P.2d 125, 130 (Utah Ct.App.1997).


text:
    2002 UT App 268
    STATE of Utah, in the interest of J.B., a person under eighteen years of age. R.B., Appellant, v. State of Utah, Appellee.
    No. 20010187-CA.
    Court of Appeals of Utah.
    Aug. 8, 2002.

      Francis A. Angley, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, Carol L. Verdsia, and John M. Peterson, Assistant Attorneys General, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City, Guardian Ad Litem.
    Before Judges BILLINGS, DAVIS, and GREENWOOD.
   OPINION

DAVIS, Judge:

T1 Appellant R.B. (Father) challenges the juvenile court's order terminating his parental rights to J.B. on the basis that he was not afforded due process. We affirm.

BACKGROUND

12 Father is the natural father of six children. The two oldest children, G.B. and C.B., are in long-term foster care. Father's voluntarily relinquishment of his parental rights to the three younger children, L.B., E.S8.B., and B.B., became effective on October 283, 2000. On August 20, 2000, J.B., the sixth child, was born and Father, along with the mother, concealed the birth by, among other things, obtaining a false birth certificate naming Father's friend as J.B.'s father.

13 DCFS was notified regarding the birth of J.B. and began an investigation. DCFS was told that J.B. was the child of a friend and that the mother would babysit the child while the friend was at work. The false birth certificate was presented to the DCFS caseworker to validate this story. DCFS visited with the friend who subsequently confessed to the deception. J.B. was removed from the parental home on or about October 17, 2000, as a child at risk under Utah Code Ann. § 78-32-103(D0@0(E) (Supp.2001) At a shelter hearing held on October 830, 2000, the juvenile court granted temporary custody and guardianship of the child to DCFS.

¶4 On November 18, 2000, the State filed its termination petition and a trial on the petition was held on January 25, 2001. The State moved the court to take judicial notice of the prior proceedings involving the older children which included, among other things, two adjudication orders. These orders detailed a twelve year period in which DCFS received approximately eighteen referrals for child abuse and neglect by the parents, at least ten of which were substantiated on grounds of sexual abuse, physical abuse, physical neglect, failure to protect, emotional maltreatment, and medical neglect. The court heard argument on, and granted, the State's motion to take judicial notice of the first termination findings over Father's objection. The juvenile court thus took judicial notice of all prior proceedings, including the termination proceeding in which Father did not participate.

15 Father, the mother, their friend BR., who assisted in concealing the birth and identity of J.B., and three DCFS caseworkers testified at the trial regarding J.B. Based on that testimony and the historical facts surrounding the parents' abuse and neglect of their older children, the juvenile court terminated Father's and the mother's parental rights to J.B. pursuant to Utah Code Ann. § 78-8a-407 (Supp.2001) finding parental unfitness, failure to remedy cireumstances causing out-of-home placement, token efforts, and best interest of the child.

16 Specifically, the court found that the parents did nothing to resolve their issues, modify their behavior, or correct the cireum-stances that caused them to lose custody of their five older children. The court further found that because J.B.'s siblings had been abused and neglected by his parents, he was at risk for abuse and neglect. Finally, the court found that J.B. was in an adoptive home where he was thriving and had bonded to his foster parents who desired to adopt him.

ISSUE AND STANDARD OF REVIEW

T7 Father argues that his parental rights were terminated in violation of due process of law in that he was denied the opportunity to confront his accusers, cross-examine witnesses, or present rebuttal testimony and evidence. Specifically, Father argues that in the proceeding involving the termination of his parental rights to J.B., it was error for the juvenile court to take judicial notice of and to use findings from termination proceedings involving the mother and L.B., E.S.B., and B.B. Having relinquished his parental rights to these children, Father was not a participant in that termination trial. Whether a parent has been afforded adequate due process is a question of law, reviewed for correctness. See In re S.A., 2001 UT App 307,¶ 8, 37 P.3d 1166.

ANALYSIS

T8 Father, having relinquished his parental rights to his older children, did not participate in the proceedings to terminate the mother's parental rights to those children. As the State conceded during oral argument on this matter, to the extent that the findings from the first termination trial were used against Father in this termination trial, the juvenile court erred. "Article I, Section 7 of the Utah Constitution guarantees an accused the right to due process of law. Due process includes, among other things, the opportunity to submit evidence, examine and cross-examine witnesses." State v. Cramer, 2002 UT 9,¶ 19, 44 P.3d 690 (quotations and citation omitted). The juvenile court's reliance upon the findings and order from the prior termination trial in which Father, due to his voluntary relinquishment did not participate, was improper because Father "could not participate in the proceedings that led to that determination." S.A., 2001 UT App 307 at ¶ 17, 37 P.3d 1166. This error amounted to a denial of Father's constitutional right to confrontation, and therefore, due process.

19 The appellate court will only find prejudicial error after a review of the record demonstrates that "there was a reasonable likelihood of a more favorable result for the [appellant]." In re C.Y., 765 P.2d 251, 254 (Utah Ct.App.1988) (quotations, citation, and emphasis omitted). "[Wle must review the record and determine whether there is a reasonable likelihood that the outcome of the termination hearing would have been more favorable to [Father] had the juvenile court not taken judicial notice of the [prior termination order]." Id.

110 The question thus becomes whether the juvenile court's termination order is supported by the previously adjudicated facts involving J.B.'s older siblings from proceedings in which Father participated, together with the evidence and findings from the J.B. termination proceeding, without relying on any findings from the proceeding in which Father did not participate. Under Rule 201 of the Utah Rules of Evidence, judicially noticed facts are conclusively established in civil actions for purposes of the fact finding process and a "party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed." Utah R. Evid. 201(e). In addition, "[clonsider-ations regarding a child's welfare are rarely, if ever, static. In fact, it is more likely that the child's environment is constantly evolyv-ing, thus justifying the court's continuing jurisdiction." In re J.J.T., 877 P.2d 161, 163 (Utah Ct.App.1994); see also In re A.S., 12 Kan.App.2d 594, 752 P.2d 705, 711 (1988) (holding that court must be free to examine all cireumstances, evidence, prior facts and orders, and other relevant information in termination proceedings).

¶11 In this case, the juvenile court granted the State's motion to take judicial notice of all prior proceedings. Exelusive of the prior termination proceeding, the juvenile court took judicial notice of proceedings, tracing its extensive history involving this family which included two previous adjudication orders entered by the court in which Father fully participated. Among other things, those orders included findings of neglect as to the older children.

112 Utah Code Ann. $ 78-82-407 states that parental rights may be terminated if the juvenile court finds "that the parent or parents have neglected or abused the child." Utah Code Ann. § 78-8a-407(2). A neglected child is defined as a minor "who is at risk of being a neglected or abused child ... because another minor in the same home is a neglected or abused child." Utah Code Ann. § 78-3a-108(1)(r)(i)(E). Based on the prior adjudicated facts that J.B.'s older siblings were neglected, resulting from proceedings in which Father fully participated, together with evidence taken in this proceeding, and applying the plain meaning of both sections of the Utah Code, we hold that it was proper for the juvenile court to find that J.B. was a neglected child.

CONCLUSION

1 13 Even without considering the findings from the first termination trial in which Father did not participate and was not a party, the findings entered in prior adjudication proceedings in which Father participated, together with evidence presented at this termination trial, were sufficient to support the juvenile court's termination of Father's parental rights. Therefore, the juvenile court's order terminating Father's parental rights to J.B. is affirmed.

1 14 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . This family has an extensive history with the Division of Child and Family Services (DCFS). For a full recitation of the background and facts refer to the companion case, In re J.B., 2002 UT App 267.

      . For convenience, we cite to the most recent version of the statute. There has been no significant change to the statute that would affect our analysis.