author: DURHAM, Chief Justice: WILKINS, Associate Chief Justice,

text:
    2004 UT 55
    Steve and Catherine SMITH, Plaintiffs and Appellants, v. Mel FRANDSEN dba Mary Mel Construction Co., Defendant and Appellee.
    No. 20020248.
    Supreme Court of Utah.
    July 2, 2004.

      Stephen Quesenberry, J. Bryan Quesen-berry, Provo, for plaintiffs.
    Michael W. Homer, Jesse C. Trentadue, Bret S. Hayman, Thomas B. Price, Salt Lake City, for defendant.
   DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Appellants, Steve and Catherine Smith (the Smiths), filed suit against appellee, Mel Frandsen dba Mary Mel Construction Company (Mary Mel), seeking compensatory and punitive damages for negligent misrepresentation, negligence, and fraudulent concealment after the footings, foundation, and structure of their home settled, allegedly due to improper soil compaction and a general lack of lateral support.

¶ 2 The trial court granted Mary Mel’s motion for summary judgment, and the Smiths filed a timely notice of appeal. We affirm.

FACTS

¶ 3 In the early 1990s, Mary Mel purchased land in Lehi City with the intention of developing the property for residential use. In the period up to 1995, Mary Mel obtained approval from local government agencies and constructed and installed the roads, curbs, gutters, sidewalk, and utilities in what is now the Summer Crest Subdivision. On October 10, 1995, Mary Mel conveyed the properties, divided and improved, to Patterson Construction (Patterson), a residential developer with whom Mary Mel had an ongoing business relationship. Patterson, in turn, conveyed a portion of the property, lot 223, on the same day to GT investments (GT).

¶4 GT is a licensed general contractor. GTS acting through one of its employees, Joseph Sharp (Sharp), constructed a home on lot 228. During construction, Sharp “personally inspected the ... lot and viewed the condition of the lot before purchase and before building commenced.” As the Smiths assert in their complaint, despite the fact that “the soil [on lot 223] was so soft that anyone walking on it would leave an imprint,” Sharp, allegedly as a result of his lack of experience in contracting, ignored this “red flag” and failed to order any soils testing or other measures that would have revealed that the soil on lot 223 was inadequately compacted. After completing construction, GT delivered a warranty deed to the .Smiths on August 26,1996.

¶ 5 Since occupying the home, the Smiths have experienced “significant settlement of the house, its footings, foundations and structure.” In seeking recovery for damage caused by the subsidence, the Smiths argue that GT “knew, should have known, or negligently failed to determine that the House was built on inadequate soil material and/or inadequately compacted soil.” They additionally claim that in subdividing and developing the property prior to its conveyance to Patterson, Mary Mel performed “certain excavation work ... including filling in a low area or ravine” running through lot 223. As a result, the Smiths allege, Mary Mel “knew that the lot [included] unconsolidated fill, and failed to take proper steps to compact [the] lot, and in fact concealed and/or failed to disclose these facts to appropriate government entities and prospective purchasers.” It is upon these facts that the Smiths assert claims against GT, Sharp, Mary Mel, and Patterson.

STANDARD OF REVIEW

¶ 6 In reviewing a grant of summary judgment, we give no deference to the trial court with respect to its legal conclusions. Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 13, 70 P.3d 35. Rather, we make our own determination as to whether the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). Nevertheless, we may affirm the result reached by the trial court “ ‘if it is sustainable on any legal ground or theory apparent on the record,’ even though that ground or theory was not identified by the lower court as the basis of its ruling.” Bond v. SDNCO, Inc., 2002 UT 83, ¶ 10, 54 P.3d 1131, (quoting Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998)).

¶ 7 Mary Mel, pursuant to Utah Rule Appellate Procedure 11(e)(2), urges this court to uphold summary judgment, asserting that since the appellants have failed to provide a copy of the summary judgment hearing transcript, “the district court’s decisions are presumed to be valid.” However, Mary Mel misconstrues the meaning of rule 11(e)(2).

¶ 8 The rule simply requires appellants to include “a transcript of all evidence” relevant to a challenged finding or conclusion. Utah R.App. P. 11(e)(2). In this ease, neither party claims that the missing transcript contains evidence bearing on the determination of the case. See Harper v. Summit County, 963 P.2d 768, 775 n. 4 (Utah Ct.App.1998), rev’d in part and vacated in part on other grounds by Harper v. Summit County, 2001 UT 10, 26 P.3d 193. Thus, appellants had no obligation to include the transcript in the record on appeal.

ANALYSIS

I. THEORIES OF LIABILITY

¶ 9 Appellants seek compensatory and punitive damages against Mary Mel under three different theories of liability: negligent misrepresentation, negligence, and fraudulent concealment. In order to prevail under any of these causes of action, a plaintiff must demonstrate the existence of a duty running between the parties. For example, with respect to negligent misrepresentation, we stated in Jardine v. Brunswick Corporation, 18 Utah 2d 378, 423 P.2d 659, 662 (1967), that “[w]here one ... carelessly or negligently makes a false representation ..., expecting the other party to rely and act thereon, and the other party reasonably does so and suffers loss in that transaction, the representor can be held responsible if the other elements of fraud are also present.”

¶ 10 Ordinarily, in order to prevail in an action for negligent misrepresentation, plaintiffs must identify a “representor [who] makes an affirmative assertion which is false.” Ellis v. Hale, 13 Utah 2d 279, 373 P.2d 382, 385 (1962); see also Baskin v. Mortgage & Trust, Inc., 837 S.W.2d 743, 748 (Tex.App.1992) (upholding summary judgment in favor of a third-party lender who made no representations to plaintiffs in connection with the purchase of their homes). Indeed, Mary Mel makes a point of claiming that it made no representations, false or true, to the Smiths. The Smiths, however, contend that by conveying the property (jointly with Patterson) without indicating that the lot was unsuitable for construction, Mary Mel effected a representation to GT, which in turn made the same representation to them.

¶ 11 In the past, Utah cases have acknowledged that “negligent misrepresentation is a form of fraud.” Atkinson v. IHC Hosps., Inc., 798 P.2d 733, 737 (Utah 1990); see also Christenson v. Commonwealth Land Title Co., 666 P.2d 302, 305 (Utah 1983) (“Negligent misrepresentation is a tort which grew out of common-law fraud.”); Robinson v. Tripco Inv., Inc., 2000 UT App 200, ¶ 31, 21 P.3d 219 (Billings, J., dissenting) (identifying negligent misrepresentation as a “species” of fraud). Thus, interpreting the elements of the tort in a manner consistent with principles of common-law fraud, we have found that in addition to affirmative misstatements, an omission may be actionable as a negligent misrepresentation where the defendant has a duty to disclose. Sugarhouse Fin. Co. v. Anderson, 610 P.2d 1369, 1373 (Utah 1980) (“Misrepresentation may be made either by affirmative statement or by material omission, where there exists a duty to speak.”); DeBry v. Valley Mortgage Co., 835 P.2d 1000, 1008 (Utah Ct.App.1992) (denying liability for an “implied” misrepresentation where the defendant mortgage company owed no duty to disclose information to purchasers of real property). Thus, a duty to disclose is a necessary element of the tort of negligent misrepresentation.

¶ 12 In addition, it is well-established in our law that “without a duty, there can be no negligence as a matter of law, and summary judgment is appropriate.” Tallman v. City of Hurricane, 1999 UT 55, ¶ 5, 985 P.2d 892 (quoting Rocky Mountain Thrift Stores Inc. v. Salt Lake City Corp., 887 P.2d 848, 852 (Utah 1994)). Finally, in order to establish fraudulent concealment, “a plaintiff must prove the following three elements: (1) the nondisclosed information is material, (2) the nondisclosed information is known to the party failing to disclose, and (3) there is a legal duty to communicate.” Hermansen v. Tasulis, 2002 UT 52, ¶ 24, 48 P.3d 235; see also Fennell v. Green, 2003 UT App. 291, ¶ 10, 77 P.3d 339; McDougal v. Weed, 945 P.2d 175, 179 (Utah Ct.App.1997) (“Fraudulent concealment requires that one with a legal duty or obligation to communicate certain facts remain silent or otherwise act to conceal material facts known to him”). Therefore, a duty to disclose is material to each of the alleged causes of action.

¶ 13 The pivotal question in this case is thus whether Mary Mel owed a duty to disclose the nature and existence of any subsurface defects, not only to its immediate successors in title, Patterson and GT, but also to the subsequent and more remote purchasers, the Smiths.

II. DUTY OF RESIDENTIAL REAL ESTATE DEVELOPERS TO REMOTE PURCHASERS

A. Defining the Limits of a Developer’s Duty

¶ 14 “The issue of whether a duty exists is entirely a question of law to be determined by the court.” Ferree v. State, 784 P.2d 149, 151 (Utah 1989). Courts consider many factors, none of which is disposi-tive, in determining when a duty runs between parties. DeBry v. Valley Mortgage Co., 835 P.2d, 1000, 1007 (“A duty to speak will be found from ‘all the circumstances of the case and by comparing the facts not disclosed with the object and end in view by the contracting parties.’ ” (quoting Elder v. Clawson, 14 Utah 2d 379, 384 P.2d 802, 804 (1963) (citation omitted))).

¶ 15 Particularly in the realm of tort law, “[t]he duty concept ... is a policy determination.” DeBry, 835 P.2d at 1003-04 (“Duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”) (citations omitted). For example, policy was one factor motivating our decision in Loveland v. Orem City Corp., 746 P.2d 763, 769 (Utah 1987), adopting the position of the Wyoming Supreme Court extending the duty of disclosure to developers engaged in subdividing and improving lots for residential purposes. In Anderson v. Bauer, upon which Loveland relies, the Wyoming Supreme Court observed that “[a]s we developed from a rural to an urban society, ... [b]uilders constructing great numbers of houses acquired considerable knowledge and expertise in the area and used engineering services and studies to determine soil conditions ... and other questions concerning suitability for construction.” 681 P.2d 1316, 1322 (Wyo. 1984).

¶ 16 Therefore, in order to protect unsophisticated purchasers, under Loveland, a developer, subdivider or person performing similar tasks has

a duty to exercise reasonable care to insure that the subdivided lots are suitable for construction of some type of ordinary, average dwelling house, and he must disclose to his purchaser any condition which he knows or reasonably ought to know makes the subdivided lots unsuitable for such residential building. He has a further duty to disclose, upon inquiry, information he has developed in the course of the subdivision process which is relevant to the suitability of the land for its expected use.

Loveland, 746 P.2d at 769.

¶ 17 Notwithstanding our holding in Loveland, the duties owed by contractors and developers are not without limitation. Even where a duty is found to exist, it does not continue indefinitely. Absent intentional fraud, “it continues only until the vendee, or his successor, have had adequate time and opportunity, through occupation of the land or otherwise, to discover the existence of the condition, and to take effective precautions against it by repair or other means.” Restatement (Second) of Torts § 353 cmt. g (1965). Thus, the duties running from vendor to vendee and subvendee persist only until a subsequent purchaser knows or should know of the defect in the property.

B. Application to the Facts

¶ 18 In this case, there is no dispute that Mary Mel conveyed the property to Patterson and then to GT. GT is a licensed general contractor in the state of Utah, and like developers, the law imputes to builders and contractors a high degree of specialized knowledge and expertise with regard to residential construction. McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283, 1292 (1979) (“Whether the builder be large or small, the purchaser relies upon his superior knowledge and skill, and he impliedly represents that he is qualified to erect a habitable dwelling. He is also in a better position to prevent the existence of major defects.”); Groff v. Pete Kingsley Bldg., Inc., 374 Pa.Super. 377, 543 A.2d 128, 133 (1988) (“The professional builder is expected to have the skill and expertise to know how to guard against potential structural problems. Moreover, the builder is in the best position to prevent structural defects.”); Moxley v. Laramie Builders, Inc., 600 P.2d 733, 735 (Wyo.1979) (“Consumer protection demands that those who buy homes are entitled to rely on the skill of the builder and that the house is constructed so as to be reasonably fit for its intended use.”).

¶ 19 In particular, builder-contractors are expected to be familiar with conditions in the subsurface of the ground. See Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 377 P.2d 889, 891 (1963) (holding a residential contractor negligent where “a reasonably prudent person under like or similar circumstances and as a result of making said excavations for foundation footings would have discovered the insufficient compaction of the underlying earth material, and would have caused soil tests and investigations to be made before proceeding with the building”); Conolley v. Bull, 258 Cal.App.2d 183, 65 Cal.Rptr. 689, 697 (1968) (finding a contractor was negligent for “constructing [a] house upon unstable and filled ground, containing an underground spring, without taking protective steps for providing adequate drainage”); ABC Builders, Inc. v. Phillips, 632 P.2d 925, 938 (Wyo.1981) (“We hold this to be the duty of ABC as builders to appel-lees: To furnish a safe location for a residential structure, and it may be negligence to not do so”). See generally Annotation, Duty of Contractor to Warn Owner of Defects in Subsurface Conditions, 73 A.L.R.3d 1213 (1976) (collecting cases from various jurisdictions in which “it was held that a contractor who knows, or should know, of a defect in a particular subsoil does not perform his contractual obligations in a workmanlike manner if he fails to notify the owner of the existence of the condition”).

¶ 20 The facts indicate that Sharp, the GT employee supervising the excavation and placement of the Smith’s foundation, had “no prior construction experience.” Nevertheless, GT is deemed to possess the knowledge of a reasonably prudent builder-contractor under similar circumstances, and, as a matter of law, a builder of ordinary prudence would have discovered the insufficient compaction on lot 223. See Coburn v. Lenox Homes, Inc., 186 Conn. 370, 441 A.2d 620, 624 (1982); Foust v. McKnight, 675 So.2d 1147, 1149 (La.Ct.App.1996) (“[A] vendor-builder of a residence is considered to be a manufacturer, and as such he cannot avoid the conclusively presumptive knowledge of the defects in the thing he manufactures.”) (citations omitted); Schamens v. Crow, 326 So.2d 621, 626 (La.Ct. App.1975) (same); George B. Gilmore Co. v. Garrett, 582 So.2d 387, 393 (Miss.1991); March v. Thiery, 729 S.W.2d 889, 894-95 (Tex.Ct.App.1987) (imputing knowledge of faulty construction to residential builder). In addition, the Smiths themselves allege in their complaint that GT “knew, should have known, or negligently failed to determine that [their] house was built on inadequate soil material and/or uncompacted fill.”

¶21 The parties agree that Mary Mel conveyed the property to Patterson and GT, both parties who, as a matter of law, possessed superior knowledge and expertise regarding the subsurface conditions on lot 223. Where a developer conveys property to a residential contractor, the knowledge and expertise of the builder, and the independent duties owed thereby, interrupt certain obligations running from the initial developer to subsequent purchasers. In other words, borrowing from the language of the Restatement, we find that by conveying to one having “adequate time and opportunity” to discover the subsurface defects in lot 223, Mary Mel incurred no liability to remote purchasers of the property as a matter of law. See Restatement (Second) of Torts § 353 cmt. g (1965). Mary Mel had no duty extending beyond its conveyance to Patterson and GT, to both of which the law imputes a high degree of knowledge and expertise.

¶22 The present case is distinguishable from those relied upon by the Smiths. For example, in Lawson v. Citizens & Southern National Bank of South Carolina, 255 S.C. 517, 180 S.E.2d 206 (1971), the South Carolina Supreme Court found a developer had a duty to disclose to a subsequent purchaser that “in developing and subdividing its land into lots to be sold for residential use only, [it] filled an enormous gully with stumps and other rubble to a depth of twenty to twenty-five feet and concealed this fill by covering it with soil.” Id. at 208. However, when that ease was decided in 1971, builder-contractors were not universally held to the same high standards that they are today. As the cases cited above indicate, the adoption of builder-contractor liability is a fairly recent phenomenon. See Conklin v. Hurley, 428 So.2d 654, 657 n. 2 (Fla.1983) (documenting a trend beginning in the late 1960s and extending through the early 1980s whereby builder-vendors were held liable to immediate purchasers under an implied warranty of habitability).

¶ 23 Appellants also point to Anderson v. Bauer, 681 P.2d 1316 (Wyo.1984). In that case, the court placed primary responsibility on builders and contractors to ensure the suitability of the land for construction of residences. There, the lots at issue were suitable for some form of dwelling house, although some of the lots were admittedly unfit for homes with basements. Id. at 1323. But, as the court observed, “whether the particular house to be built was a house with no basement, a half basement, a tri-level house, or a full basement was a decision not involving the developer.” Id. Therefore, the court relied on the knowledge and judgment of the builder in finding that the developer had satisfied his duty and was not liable to homeowners. Likewise, our decision today requires contractors to be accountable, either directly or through explicit warranties from their predecessors in title, for the suitability of the land upon which they build.

¶24 Those cases that do find developers liable to remote purchasers involve factual settings in which the developer was also the builder-contractor or otherwise include a chain of title with no intermediate sophisticated purchaser. See Barnhouse v. City of Pinole, 133 Cal.App.3d 171, 183 Cal.Rptr. 881 (1982); Washington Rd. Developers, LLC v. Weeks, 249 Ga.App. 582, 549 S.E.2d 416 (2001); Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo.1979).

C. Policy Implications

¶25 Our holding today furthers the purposes and policies underlying the recognized exceptions to the doctrine of caveat emptor, and is not inconsistent with our prior caselaw on duty issues generally, or Utah statutes. As a result of their superior knowledge, residential home-builders in other jurisdictions have consistently been held liable to subsequent as well as immediate purchasers. Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1044-45 (Colo.1983) (citing cases from eight different states in which subsequent purchasers were held able to state a claim for negligence against a builder); see also Timothy E. Travers, American Law of Products Liability § 38:19 (3d ed.1987); Michael A. DeSabatino, Liability of Builder of Residence for Latent Defects Therein as Running to Subsequent Purchasers from Original Vendee, 10 A.L.R.4th 385 (1981). Just as the lack of purchaser sophistication motivated the initial exceptions to the doctrine of caveat emptor, the expansion of builder-contractor liability to encompass even remote purchasers is similarly driven. Like initial consumers of residential construction, subsequent homeowners typically possess no greater sophistication that would enable them to discover latent defects in the property. Tusch Enters, v. Coffin, 113 Idaho 37, 740 P.2d 1022, 1034 (1987) (“ ‘The same policy considerations that lead to [our adoption of the implied warranty of habitability for sales of new homes] ... are equally applicable to subsequent homebuyers.’ ” (quoting Richards v. Powercraft Homes, Inc., 139 Ariz. 242, 678 P.2d 427, 430 (1984))); see also Dwight F. Hopewell, C. Oates v. Jag: Let the Buyer Beware — A Remedy for Subsequent Purchasers of Homes in North Carolina, 64 N.C. L.Rev. 1485, 1493 (1986) (“[A] subsequent purchaser of real estate is in a very similar position to that of the initial purchaser. Both are innocent purchasers who lack the expertise and knowledge necessary to uncover every latent defect.... Thus, both classes of purchasers deserve equal protection”).

¶ 26 By implication, where a subsequent purchaser is not similarly situated but rather possesses some unique insight or information with respect to the property, liability may not be extended to subsequent purchasers. See Tusch Enters., 740 P.2d at 1038 (Shepard, J., dissenting) (arguing that liability should be denied where “[t]he plaintiffs ... are not unknowing buyers of a residence built by an unscrupulous builder/developer[.] Rather, plaintiffs are a sophisticated and knowledgeable group of investors in real estate”). As the cases cited above indicate, residential builders and contractors are not innocent transferees occupying the same position as the ultimate residential consumer. Extending the liability of developers beyond builder-contractors to encompass remote purchasers is inconsistent with the rationale upon which recovery by subsequent purchasers was initially based.

¶ 27 As a policy matter, we believe that our holding will encourage builders and contractors to exercise that level of care consistent with the expertise legally imputed to them. In addition, our decision preserves the contractual expectations of developers and builder-contractors. If unstable soil conditions are known to both the developer and the builder-transferee, the price of the land may be discounted to reflect the added cost involved in correcting the defect. See Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283, 1284 (Ind.1991) (dealing with a property transaction in which a buyer “was given a credit against the purchase price of [a] new lot to compensate [the buyer] for the expense they incurred in correcting the soil conditions on the previous lot”). By requiring plaintiffs generally to sue up the chain of title, the allocation of risk and expectations embodied in land sale contracts will be preserved.

CONCLUSION

¶ 28 We hold that Mary Mel’s duty of care and disclosure extended only to its immediate transferees, Patterson and GT, who “knew or should have known” of defects in the property, and not to the appellants. The order granting summary judgment is affirmed.

¶ 29 Justice PARRISH and Justice NEHRING concur in Chief Justice DURHAM’S opinion.

WILKINS, Associate Chief Justice,

concurring in the result:

¶ 30 I concur with the conclusion reached by the majority opinion that Mary Mel owed no duty to the Smiths, and that as such a summary judgment in Mary Mel’s favor was proper. Mary Mel conveyed the lot to Patterson Construction, who conveyed to GT Investments, who conveyed to the Smiths. No theory advanced by the Smiths supports extension of a duty to disclose that far. The remaining analysis regarding the duty of home builders to disclose subsurface conditions to buyers is dicta at best.

¶ 31 We need not, nor are we asked to consider the duty, if any, running from a home builder to a home buyer to disclose non-obvious defects in the land that may or may not be known by the builder. To do so in this case simply extends our analysis not only beyond the facts and law considered by the trial court, but also beyond the facts and law necessary to resolve the case. There is no need for us to rely on the law of numerous other jurisdictions to fashion a new duty under Utah law to be imposed on home builders.

¶ 32 As a result, I would affirm the trial court on the sole basis that the law imposed no duty on Mary Mel to disclose anything regarding the condition of the property to the Smiths, and that as a direct result the causes of action advanced by the Smiths against Mary Mel fail as a matter of law.

¶ 33 Justice DURRANT concurs in Associate Chief Justice WILKINS’ concurring opinion.

      . We clarified this test in Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 59 n. 2 (Utah 1986), wherein we indicated that the suggestion in Jardine that "all of the elements of fraud must also be proven is dictum. Although the cause of action for negligent misrepresentation grew out of common law fraud, the elements of fraud need not be independently established.”

      . Because we find the resolution of this issue dispositive of the case, we decline to address the merits of Mary Mel’s alternative argument that the Smith’s allegation of negligent misrepresentation is barred by the economic loss rule.

      . See e.g., Price-Orem Inv. Co., 713 P.2d at 60 (foreseeability); Christenson v. Commonwealth Land Title Ins. Co., 666 P.2d 302, 305 (Utah 1983) (privity of contract); Ellis v. Hale, 13 Utah 2d 279, 373 P.2d 382, 384-85 (1962) (statutory obligations); House v. Armour of Am., Inc., 886 P.2d 542, 549-50 (Utah Ct.App.1994) (whether user possesses special knowledge, sophistication, or expertise).

      . See also Moxley v. Laramie Builders, Inc., 600 P.2d 733, 735 (Wyo.1979) ("The average purchaser is without adequate knowledge or opportunity to make a meaningful inspection of the component parts of a residential structure.”).

      . See also Moxley v. Laramie Builders, Inc., 600 P.2d 733, 735 (Wyo.1979) ("The average purchaser is without adequate knowledge or opportunity to make a meaningful inspection of the component parts of a residential structure.”).

        .See also House v. Armour of Am., Inc., 886 P.2d 542, 550 (Utah Ct.App.1994) (recognizing the "sophisticated user doctrine” whereby the manufacturer of a product is relieved of a duty to warn of the inherent dangers associated with a product if the purchaser is a sophisticated user and is charged with knowledge of the product); see generally Uniform Land Sales Practices Act, Utah Code Ann. § 57-11-17 (2000) (relieving real estate vendors of liability where "it is proved that the purchaser knew of the [vendor's] untruth or omission.”); Restatement (Second) of Torts § 388 (1965); id. § 353 (a vendor of real property is only liable for failing to disclose conditions on real property if the "the vendee does not know or have reason to know of the condition or the risk involved, and the vendor ... has reason to believe that the vendee will not discover the condition or realize the risk”).

      . In doing so we do not address the merits of any suit involving Patterson, GT and the Smiths or between Mary Mel and GT.

      . Stepanov v. Gavrilovich, 594 P.2d 30 (Alaska 1979), also relied on by the Smiths, is inapposite because it involves a suit brought by residential contractors, rather than homeowners, against a developer.

      . It is, of course, likely that increases in costs incurred by builders will be passed on to purchasers, but presumably those increases will be outweighed by losses avoided because of higher standards in the building process.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2004 WY 87
    In the Matter of the Parental Rights to KLS, Minor Child: RS, Appellant (Respondent), v. Department of Family Services, Sheridan County, Wyoming, Appellee (Petitioner).
    No. C-03-12.
    Supreme Court of Wyoming.
    July 22, 2004.

      Representing Appellant: Robert W. Brown of Lonabaugh and Riggs, Sheridan, Wyoming.
    Representing Appellee: Patrick J. Crank, Attorney General; Dan S. Wilde, Senior Assistant Attorney General; Robin Sessions Cooley, Deputy Attorney General; and Sue Chatfield, Assistant Attorney General.
    Guardian ad litem: Jan K. Flaharty of Family Law Office, Sheridan, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] The Father of KLS, a minor child, appeals the district court’s order terminating his parental rights claiming the Department of Family Services (DFS) failed to offer sufficient evidence of neglect at the time KLS was removed from his custody. Upon review of the record, which contains clear and convincing evidence of abuse and neglect over the child’s lifetime, including evidence the father caused her to witness repeated episodes of domestic violence, we affirm.

ISSUES

[¶ 2] The issues presented by Father are as follows:

• A. Whether [Father] neglected his child as that term is defined [by] Wyoming Statute.
B. Whether the Court may consider evidence of a guilty plea by [Father] in a separate matter entered after the close of evidence in this case.
C. Whether the evidence presented by the State through its witnesses in support of termination is credible in light of the fact that the State’s witness, Nelinda Dahmke, mislead and made false statements to the District Court.
[¶ 3] DFS phrases the issue as follows:
Whether the district court’s finding that [Father’s] parental rights to KLS should be terminated was established by clear and convincing evidence?

FACTS

[¶4] KLS was born October 28, 1999. While Father and Mother were not married at the time of KLS’ birth, they lived together periodically after KLS was born. Father and Mother married briefly, but eventually divorced. Between October 1999 and January 2002, the couple moved in and out of at least twelve different residences in two states, which included houses, apartments, motels and homes of friends and family. Father and Mother physically and verbally abused each other, often in the presence of KLS. Mother filed for and received numerous family violence protection orders against Father over the course of their troubled relationship.

[¶5] On January 10, 2002, Mother left KLS in Sheridan with a babysitter, Misty Humphries. Four days later, on January 14, 2002, Ms. Humphries’ sister Amanda contacted the DFS office in Sheridan to report that Mother had failed to pick up KLS as scheduled. As a result of the allegation that Mother had abandoned KLS, and after failed attempts to contact Mother and Father, DFS took KLS into protective custody pursuant to Wyo. Stat. Ann. § 14-3-405 (LexisNexis 2003).

[¶ 6] The same day DPS took KLS into custody, it located Father and arranged for him to pick up KLS. DFS placed KLS with Father on the condition that KLS not have un-supervised contact with Mother and that Father keep DFS informed of KLS’ whereabouts. On January 15, 2002, when DFS could not locate Father and KLS, it concluded Father had violated the conditions under which he was allowed custody. Thus, DFS retrieved KLS from Father and placed KLS in foster care.

[¶ 7] The district court entered an order for temporary protective custody on January 18, 2002, finding KLS’ life or safety was in danger and continued placement in the family home would be contrary to KLS’ wellbe-ing. KLS was to be placed in the protective legal and physical custody of DFS in accordance with the Child Protection Act, Wyo. Stat. Ann. § 14-3-401, et. seq. (LexisNexis 2003). Pursuant to the statute, a petition for neglect was filed in the district court sitting as the juvenile court. After a hearing on May 3, 2002, the court entered an order finding Mother had neglected KLS. Consequently, the court ordered KLS to stay in the temporary custody of DFS until Father and Mother successfully completed the objectives identified in a case plan prepared by DFS.

[¶ 8] The ultimate goal of the case plan was family reunification. The specific objectives with which Mother and Father were required to comply were: (1) substance abuse evaluation and treatment/counseling to address addiction and/or use of methamphetamine, marijuana and alcohol; (2) counseling to address issues such as, but not limited to, relationships, parenting, effective appropriate communication, anger and control issues; (3) parenting classes; (4) pay child support for KLS; (5) submit to random UAs and breathalyzer tests; (6) establish paternity; (7) maintain contact with KLS; (8) secure and maintain adequate, consistent, and safe housing for a minimum of six consecutive months; and (9) secure and maintain employment for a minimum of six consecutive months. The case plan warned, “failure or refusal to successfully complete the case plan for family reunification shall result in alternative permanency planning for said minor child, i.e. termination of parental rights followed by adoption.”

[¶ 9] On June 18, 2002, DFS filed a petition in juvenile court against Mother and Father alleging contempt for failure to follow the case plan. At a hearing on the contempt petition, Mother admitted the allegations and Father failed to appear. On July 10, 2002, the juvenile court issued a bench warrant for Father’s arrest regarding his failure to appear. On November 15, 2002, all juvenile proceedings were suspended when the juvenile court learned DFS had filed a petition for termination of parental rights in the district court.

[¶ 10] In the petition, DFS alleged Mother and Father failed to comply with rehabilitation services despite continued efforts by DFS, failed to comply with the case plan and, in turn, had neglected KLS. After a two day hearing, the district court terminated Mother and Father’s parental rights in an order dated May 13, 2003. Father appeals that decision.

STANDARD OF REVIEW

[¶ 11] Our standard of review for the granting of a petition to terminate parental rights is as follows:

Due to the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children, application of statutes for termination of parental rights is a matter for strict scrutiny. TR v. Washakie County Dep’t of Pub. Assistance & Soc. Servs., 736 P.2d 712, 715 (Wyo.1987). As part of this strict scrutiny standard, a case for termination of parental rights must be established by clear and convincing evidence. Wyo. Stat. Ann. § 14-2-309(a) (Michie 1997); In Interest of JG, 742 P.2d 770, 773 (Wyo.1987); D.S. v. Dep’t of Pub. Assistance & Soc. Servs., 607 P.2d 911, 919 (Wyo.1980). Clear and convincing evidence is that kind of proof that would persuade a trier of fact that the truth of the contention is highly probable. Matter of GP, 679 P.2d 976, 982 (Wyo.1984). Rigorous though this standard may be, we apply our traditional principles of eviden-tiary review when a party challenges the sufficiency of the evidence supporting termination. Matter of SYM, 924 P.2d 985, 987 (Wyo.1996). Thus, we examine the evidence in the light most favorable to the party prevailing below, assuming all favorable evidence to be true while discounting conflicting evidence presented by the unsuccessful party. Id.; D.S. v. Dep’t of Pub. Assistance & Soc. Servs., 607 P.2d at 919-20; In Interest of JG, 742 P.2d at 773. In Re ZKP, 979 P.2d 953, 956 (Wyo.1999); see also In Re IH, 2001 WY 100, P14, 33 P.3d 172, P14 (Wyo.2001); Matter of TLC, 2002 WY 76, 46 P.3d 863 (Wyo.2002).

SD v. Carbon County Dep’t of Family Servs. (In re SED), 2002 WY 168, ¶ 5, 57 P.3d 1235, ¶ 5 (Wyo.2002).

DISCUSSION

[¶ 12]Termination of parental rights pursuant to Wyo. Stat. Ann. § 14 — 2—309(a)(iii) (LexisNexis 2003) requires the establishment of three elements: (1) abusive treatment or neglect by the parent; (2) unsuccessful efforts to rehabilitate the family; and (3) the child’s health and safety would be seriously jeopardized by remaining with or returning to the parent. Abuse and neglect are defined in Wyo. Stat. Ann. § 14 — 3—202(a)(ii) (LexisNexis 2003):

(ii) “Abuse” means inflicting or causing physical or mental injury, harm or imminent danger to the physical or mental health or welfare of a child other than by accidental means, including abandonment, unless the abandonment is a relinquishment substantially in accordance with W.S. 14-11-101 through 14-11-109, excessive or unreasonable corporal punishment, malnutrition or substantial risk thereof by reason of intentional or unintentional neglect, and the commission or allowing the commission of a sexual offense against a child as defined by law:
(A) “Mental injury” means an injury to the psychological capacity or emotional stability of a child as evidenced by an observable or substantial impairment in his ability to function within a normal range of performance and behavior with due regard to his culture;
(B) “Physical injury” means any harm to a child including but not limited to disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor bruising associated with reasonable corporal punishment, bleeding, burns, fracture of any bone, subdural he-matoma or substantial malnutrition;
(C) “Substantial risk” means a strong possibility as contrasted with a remote or insignificant possibility;
(D) “Imminent danger” includes threatened harm and means a statement, overt act, condition or status, which represents an immediate and substantial risk of sexual abuse or physical or mental injury.
(vii) “Neglect” means a failure or refusal by those responsible for the child’s welfare to provide adequate care, maintenance, supervision, education or medical, surgical or ay other care necessary for the child’s well being.

[¶ 13] At the hearing on the petition to terminate parental rights, the State presented evidence through DFS employees and caseworkers, a counselor, and KLS’ foster mother. Both Mother and Father testified, as did family members. Father denied he had neglected KLS. Instead, he offered testimony that on the morning of January 15, 2002, when KLS was taken from him after one day in his custody, KLS was healthy, well-fed, well-dressed and clean. The State produced evidence of Father’s pattern of behavior throughout the child’s short life, which included repeated incidences of domestic violence against Mother, often occurring in KLS’ presence.

[¶ 14] The district court found that although ‘Wyoming Courts recognize the parent child relationship is one of the most precious rights,” KLS was neglected by both parents when they subjected her to domestic violence, failed to follow the case plan, failed to obtain consistent and adequate housing, and failed to visit KLS as often as allowed. Further, the court found that because of the parents’ lack of cooperation, reasonable efforts by DFS were unsuccessful in rehabilitating either parent in an effort to reunify the family.

Abuse and Neglect

[¶ 15] Because Father focuses on the sufficiency of the evidence of neglect, our discussion begins there. This Court has previously observed that there is a thin line between abuse and neglect and often an act or an incident may be evidence of both neglect and abuse. MS v. Kuchera (In re MLM), 682 P.2d 982, 987 (Wyo.1984). Such was true in this case, and thus we view the evidence through the lenses of both, although only neglect was alleged by DFS.

[¶ 16] Father’s argument relies on the one day he had full custody during which he claims he did not neglect KLS. However, in the termination of parental rights, we must consider all of the factors, incidents and conditions that demonstrate neglect. MLM, 682 P.2d at 988. Rarely do we find a single condition or incident standing alone justifies termination. Instead, neglect is usually manifested by numerous incidents and conditions extending over a considerable length of time. Id. One day without neglect does not overcome a lifetime of abusive and neglectful behavior.

[¶ 17] The record establishes clear and convincing evidence of a pattern of neglect by Father. He failed to provide KLS with a stable home as demonstrated by the sheer number of living situations. Of course, the lack of a stable home alone does not constitute abuse or neglect. However, in the specific context of these facts, it is a factor. In her short lifetime, Father shuffled KLS between twelve different residences in two different states. The family lived in a hotel and two houses in Colorado. Mother testified to living in three different places in Gillette, which included two apartments and a friend’s home. Upon moving to Sheridan, Father moved KLS six times, mostly to different motels. As a result of the lack of a stable home, KLS was not given timely immunizations or follow-up medical care for illnesses.

[¶ 18] Father repeatedly subjected KLS to witnessing domestic violence' between him and Mother. The statutory definition of neglect includes failure to provide adequate care and supervision and abuse is defined to include inflicting mental injury. Causing a child to witness violence and abuse of others is an appropriate consideration in determining whether a parent is guilty of neglect by failing to properly care for and supervise that child and of abuse by subjecting the child to mental and emotional injury. Father first struck Mother three days into their relationship. Father often pushed and hit Mother, as well as destroyed her property. Because of the frequency of reported incidents of domestic violence between the two parents, we can infer that it often occurred in KLS’ presence. In addition, the record contains direct evidence of that fact on numerous occasions. In October 2000, law enforcement officers responded to a domestic dispute between Father and Mother, which occurred while KLS was present in her crib. On December 13, 2000, Mother filed a petition for a family violence protection order in Sheridan County Circuit Court. In her affidavit, she claimed Father pulled her out of bed by her hair, broke the bed, bathroom doors and mirror, and punched and kicked her. In March 2001, Mother filed another petition for a family violence protection order in Campbell County claiming Father pushed her down and tore the phone out of the wall. A few days later, while KLS was in the vehicle with him, Father tried to run Mother’s vehicle off the road while yelling, “I’ll kill you, you fucking bitch.” In July 2001, law enforcement was called to a residence where Mother and Father were engaged in a domestic dispute while KLS was inside the house. Police were called again in October 2001 after Father and Mother (and Father’s mother) got into an argument.

[¶ 19] Mother filed for and obtained yet another family violence protection order on November 13, 2001, stemming from an argument outside of the motel room where they were staying while KLS remained inside the room. Mother claimed Father grabbed her by the neck, shook and choked her, then threatened he would kill her if she left. He then threw a bottle of alcohol at Mother’s car as she left, breaking the window. Mother also indicated in her affidavit that the day before this incident, Father charged and choked her while she was holding KLS and said he would cut her head off and could not wait until she was dead. Mother testified that during, the rest of the day two-year-old KLS repeated, “cut off Mommy’s head”, until Father apologized, at which time KLS started repeating “so fucking sorry.” After the hearing on the last protection order, Father yelled, “You fucking bitch” to Mother as she was leaving the courtroom with KLS in her arms.

[¶ 20] Evidence of the effect on KLS of witnessing the violence between her parents came through the testimony of Sharyn Siler, a licensed clinical social worker. In October 2002, DFS retained Ms. Siler to examine and treat KLS. After approximately thirty-four sessions with KLS involving play, art therapy and discussions with Mother and KLS’ foster mother, Ms. Siler diagnosed KLS with post-traumatic stress disorder (PTSD). Ms. Siler testified as follows:

[KLS] displays feelings of anxiety, fears. [KLS] worries about the safety of others. [KLS] can be very clingy to her caregiver. At other times she’s more — as she gets used to the surroundings, she is more free and apart from. But she can be very clingy. She worries about recurrence of violence. This is not something that she has verbally said. I want to make that specific. This is what has come out through play therapy about how she displays — KLS is right now three years old, so much of her life has been preverbal stages; and she doesn’t still right now have a lot of verbal skills to be able to explain things. So, this is through interpretation of play therapy.
There ha[ve] been changes in behavior throughout the time that she’s been in foster care of withdrawal and then — first, she’ll withdraw; and then she will become closer in the clinging part. She’ll have outbursts of anger without any knowing, precipitating event that happened before. She has in play therapy recreated events that display violence or anger between the toys that she’s playing with, the toys that she’s selected.
She has — she’s hyper-vigilant, increased sensitivity to sound. If there’s any noises in my office that she can’t readily identify, if there’s pipes or something going on, she will immediately stop what she’s doing and ask what that is. At first she was fearful of that and after the explanations and she’s getting used to it, but she still is very aware of any noises in the office.
Changes in sleep pattern, as explained — or as told to me by the foster mother, she has a difficult time falling asleep. She has a difficult time staying asleep once asleep. She prefers, well, white noises — the sound of the TV or someone else in the room, some sort of other stimulation during sleep.
She’s had an increase in negative behaviors, as shown at the daycare, as well as at the foster home. There has been some regression in behaviors. Most recently she was in respite care for a week. I saw her during that week. She regressed during that time. When I saw her during the session, she started baby talking, displaying symptoms that I hadn’t seen in KLS before. And this is while the foster mother wasn’t there.

Ms. Siler ended her testimony by explaining that the PTSD could be caused by a number of factors, including witnessing domestic violence between parents and unstable living conditions. She testified that children who may not have been abused directly, but who witnessed abuse of others, will oftentimes display symptoms of PTSD.

[¶ 21] Other jurisdictions have recognized that subjecting a child to witnessing domestic violence between parents constitutes neglect and abuse of the child. Children who witness acts of violence between their parents may be in imminent danger of becoming impaired, if they have not already suffered actual emotional harm. In re Athena M., 253 A.D.2d 669, 678 N.Y.S.2d 11 (A.D. 1 Dept.1998). Children are victimized by a climate of violence existing between their parents, even if they are not direct targets of the abuse. Heck v. Reed, 529 N.W.2d 155, 163 (N.D.1995). A New York court of appeals upheld a finding of neglect based on abuse between parents, stating:

While violence between parents adversely affects all children, younger children in particular are most likely to suffer from psychosomatic illnesses and arrested development (Lynn R. Kurtz, Note, Protecting New York’s Children: An Argument for the Creation of a Rebuttable Presumption Against Awarding a Spouse Abuser Custody of a Child, 60 Albany L.Rev. 1345, 1351, n 45 (1997)).

In re Lonell J., 242 A.D.2d 58, 673 N.Y.S.2d 116 (A.D. 1 Dept.1998). The law review article cited by the New York court describes scientific support for the proposition that witnessing abuse between parents has a profound negative impact on children:

Studies have shown that children who witness domestic violence suffer many harmful psychological and emotional effects. Areas in which' such problems exist include “health[,] socioemotional development[,] and behavior” relating to others. A more recent study, which compared children with no history of domestic violence to children with violent family backgrounds, found that the latter group had borderline to severe behavioral problems, below average adaptive behavior skills, lower reading levels, a significant difference in their social competence and more aggressive responses.

Comment, Protecting New York’s Children: An Argument for the Creation of a Rebutta-ble Presumption Against Awarding a Spouse Abuser Custody of a Child, 60 Albany L.Rev. 1345, 1351, n 45 (1997) (footnotes omitted).

[¶ 22] Many, if not most, jurisdictions have echoed the conclusion that subjecting children to domestic violence justifies termination of parental rights. 4 Child Custody and Visitation, Law and Practice § 28.02[l][c] (Matthew Bender, Lexis 2004). In In re Stephen Tyler R., 213 W.Va. 725, 584 S.E.2d 581 (2003), the facts resemble those we are faced with in this case, and the court affirmed a termination of parental rights. In that case, the father struck the child’s mother while she was holding the child in her arms, and repeatedly refused to cooperate in a family case plan or undergo therapy for anger management. In In re: J.R., 991 S.W.2d 318 (Tex.Civ.App.1999), a Texas court terminated mother’s parental rights finding that she knowingly placed or allowed the children to remain in conditions or surroundings that endangered their emotional or physical well-being.

[¶23] A young child is not a mere bystander to domestic violence. The consequences of subjecting KLS to such dysfunctional behavior are manifested in her documented psychological problems. Additional evidence existed of Father’s failure to provide proper care and supervision of KLS and his propensity to compromise her safety including the incident in which Father attempted to run Mother off the road while KLS was in the car with him.

[¶ 24] Further evidence of neglect was Father’s failure to comply with the case plan, which is discussed in detail below. Father argues that his noncompliance with the case plan is immaterial because he claims he did not neglect KLS in the first place and, therefore, DFS could not force him to comply with the case plan. However, the district court sitting as the juvenile court always has jurisdiction over both parents under Wyo. Stat. § 14-3-402(a)(xiv). That statute defines “parties” to a neglect proceeding as including “the child, his parents, guardian or custodian, the state of Wyoming, and any other person.” Furthermore, Father signed the case plan. Therefore, the court had jurisdiction over Father and his failure to comply with the case plan led to his neglect. See EBH v. Hot Springs Dep’t of Family Servs. (In re IH), 2001 WY 100, 33 P.3d 172 (Wyo.2001) (Father failed to adhere to the case plan, which in part led to termination of his parental rights); WR v. Natrona County Dep’t of Family Servs. (In the Interest of DG), 916 P.2d 991 (Wyo.1996) (Mother signed and agreed to case plan, but did not complete programs suggested in case plan, leading to termination of parental rights).

[¶ 25] All of this evidence, when considered together, provides clear and convincing proof sufficient to support the district court’s findings of neglect. In re SED v. Carbon County Dep’t of Family Services, 2002 WY 168, ¶ 15, 57 P.2d 1235, ¶ 15 (Wyo.2002).

Attempts to Rehabilitate the Family

[¶ 26] We now turn our focus to the second element of § 14-2-309(a)(iii), unsuccessful attempts to rehabilitate the family. As we have discussed above, DFS presented sufficient evidence of neglect to warrant placement of KLS in its custody and imposition of the requirements of the case plan as condition precedent to reunification of the family. When family reunification is the goal of the case plan, the statute imposes on DFS the responsibility to provide reasonable services necessary to accomplish that goal and sets out the steps the parents must take before reunification can occur. SED, ¶ 16. The record is replete with instances of DFS’ fulfillment of its responsibilities and Father’s failure to fulfill his.

[¶ 27] After failing to appear for the May 9, 2002, meeting to develop the case plan, Mother and Father appeared at a second meeting and stipulated to the "plan prepared by DFS. The plan contained nine objectives and clearly warned that failure or refusal to successfully complete the case plan for family reunification would result in alternative permanency planning for said minor child, i.e. termination of parental rights, followed by adoption. The district court made the following findings regarding Father’s failure to follow the ease plan:

Objective 1: Substance abuse evaluation and treatment/eounseling to address [addiction] and/or use of methamphetamine, marijuana and alcohol. [Father did not complete].
Father failed to attend a substance abuse evaluation at Piedmont. He [did] participate in a substance abuse evaluation at Big Horn Counseling in Basin, Wyoming. The results of that evaluation are questionable because Father falsely reported no history of abusive use of alcohol or drugs, and that he had lost his temper only once in the last three years.
Objective 2: Counseling to address issues such as but not limited to relationships, parenting, effective appropriate communication, anger and control issues. [Father did not complete].
Father failed to attend anger management counseling as recommended by Big Horn Counseling.
Objective 3: Parenting Classes. [Father did not attend] classes offered by DFS.
Objective U: Child Support. Neither parent has paid support during the pendency of [these] proceedings.
Father did not provide proof of employment. ...
Objective 5: Random UAs and breathalizer.
Father complied with 7 of a possible 46 UAs. [One] of 7 was positive for methamphetamine.
Objective 6: Establishing paternity was accomplished.
Objective 7: Contact with [KLS]. Failure to visit and provide nurturing for a child is neglect. [Father did not visit] KLS regularly despite the fact that many different visitation plans were developed by DFS, with input from parents, to accommodate their schedules.
Father attended less than half of scheduled visits....
Objective 8: Father and Mother will secure and maintain adequate, consistent, and safe housing for a minimum of six consecutive months. [Father did not complete.]
After February 2002, when the Case Plan went into effect, Father provided DFS with many different addresses and telephone numbers....
Telephone numbers that were provided by [Father] were not always accurate and DFS was not always able to contact [Father].

[¶ 28] Father does not dispute the factual findings of the district court regarding his failures to meet the requirements of the ease plan. Of the nine requisites in the case plan, the evidence demonstrated Father fully complied with only one — determining his paternity. Accordingly, the district court’s finding regarding this element is fully supported by the evidence.

Health and Safety of Child

[¶ 29] The third element of § 14-2-309(a)(iii) requires DFS to prove that returning KLS to Father’s custody would seriously jeopardize her health and safety. Pam Emerson, director of Sheridan County Court-Appointed Special Advocates, testified that every time KLS was exposed to domestic violence, her safety was compromised. She testified:

Q: In what way was her safety compromised, then, by the alleged exposure to domestic violence?
A: In domestic violence situations, children’s safety is compromised by parents that are out of control, by parents who are exhibiting anger physically. KLS’ physical safety could be compromised by that. Certainly her emotional safety is compromised.
Q: When you say her physical safety could be compromised, what do you mean? The possibility exists that a shoe might come flying out of the melee?
A: Absolutely. That’s not uncommon. We have — I read an affidavit for the Family Violence Protection Order that we supervised visitation on where [Mother] indicated that she was sitting in a chair while [Father] was choking her and KLS was sitting on her lap. And those are the kinds of situations where a child’s physical safety can be compromised.

[¶ 30] Testimony from Nelinda Dahmke, the DFS caseworker in charge of KLS’ case, demonstrated that KLS would not be safe if returned to Father. She stated:

The risk of abuse or neglect, future harm to the child have not been reduced; and the position the department took was it was not safe for the child’s return to these caretakers.
That decision was made in consultation with, again, my supervisor, CASA advocate, and then subsequent meetings, including contact with Mr. Tate, you, and Mr. Flaharty.

[¶31] Father’s lifestyle continued to be unstable despite DFS’ efforts to assist him in developing the skills necessary to be an adequate parent. As evidenced by testimony iterated above, clear and convincing evidence existed that KLS’s health and safety would be in jeopardy if KLS were returned to Father’s custody.

Credibility of Witness

[¶ 32] Father challenges the testimony of the State’s principal witness, Ms. Dahmke, as not credible and claims the court should not have relied upon it to support the termination of his parental rights.

[¶ 33] As we stated in Keever v. Payless Auto Sales, Inc., 2003 WY 147, ¶ 7, 79 P.3d 496, ¶ 7 (Wyo.2003) (citations omitted):

We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they, are unsupported by the record or erroneous as a matter of law. We affirm the trial court’s findings if there is any evidence to support them. We accept the evidence of the prevailing party as true and give that party the benefit of all favorable inferences that can fairly be drawn from the evidence, while disregarding conflicting evidence.

[¶ 34] We have held that “the trial judge is in the best position to assess the credibility of witnesses and weigh their testimony, and, thus, this Court accords considerable deference to the trial judge’s findings.” CAA v. ZWA (In the Interest of ERA), 2004 WY 18, ¶ 16, 85 P.3d 432, ¶ 16 (Wyo.2004) (citation omitted).

[¶ 35] Father points to three instances in which he claims Ms. Dahmke mislead the district court. Ms. Dahmke’s lengthy testimony consisted of almost 200 pages in which she fully explained each of the alleged misleading statements to the satisfaction of the district court. We find the minor inconsistencies in her testimony afford no basis for reversal of the district court’s termination of Father’s parental rights.

District Court’s Reliance on Father’s Drug Conviction After Hearing

[¶ 36] Father maintains the district court committed reversible error because it relied on evidence concerning Father’s guilty plea to a felony drug charge that was entered after the termination hearing. The State did not address this argument. Although Father provides no support for his contentions on this issue, we will briefly address' his concerns.

[¶ 37] The district court’s findings stated “Father is currently released on bond, pending sentencing after an April 28, 2003[,] plea of guilty to a felony charge of delivery of a controlled substance (methamphetamine) within this district.” Although the guilty plea took place after the termination of parental rights hearing, Father failed to explain how the district court’s judicial notice of Father’s criminal file was improper. This Court has held that a court may take judicial notice of its own records in cases closely related to the one before it. State in Interest of C v. Platte County Department of Public Assistance and Social Services, 638 P.2d 165, 172 n. 10 (Wyo.1981). See also State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301 (1931); Ellis v. Cauhaupe, 71 Wyo. 475, 260 P.2d 309 (1953); Weber v. Johnston Fuel Liners, Inc., 540 P.2d 535 (Wyo.1975) (we do not deem it improper to take notice of the judgment, temporary restraining order, and opinion in the earlier case because of the identity of the parties and the interrelationship of these actions). While the guilty plea in this case was entered after the termination hearing, the district court was well aware of the pending charges at the time of the hearing and of Father’s repeated failure of the drug tests required by the case plan.

[¶ 38] Whether or not Father pled guilty to a drug-related charge was of minor importance in the face of the overwhelming evidence of abuse and neglect. The court made multiple and detailed findings of fact which demonstrated neglect. We fail to see how the reference to the guilty plea that occurred after the hearing prejudiced Father. See In the Matter of A.C.B., 598 N.E.2d 570, 573 (Ind.Ct.App.1992) (where Father alleged the district court improperly took judicial notice of a paternity test in its findings of fact, the appellate court failed to see the prejudice that resulted).

CONCLUSION

[¶ 39] The district court fully considered all of the evidence and provided detailed and thorough findings on each of the elements required by the statute for termination of Father’s parental rights. Clear and convincing evidence proved Father subjected KLS to continuing abuse and neglect, and her safety and well-being requires that she not be returned to his custody. We affirm the district court’s findings and order terminating Father’s parental rights.

      . Wyo. Stat. Ann. § 14-3-405 (LexisNexis 2003). "Taking of child into custody; when permitted, (a) A child may be taken into custody by a law enforcement officer without a warrant or court order when: (i) There are reasonable grounds to believe a child is abandoned, lost, suffering from illness or injury or seriously endangered by his surroundings and immediate custody appears to be necessary for his protection; or (ii) The child’s conduct or behavior seriously endangers himself and immediate custody appears necessary.”

      . The record does not contain transcripts of the neglect hearing, nor does it contain the original petition for neglect.

      . The Wyoming Legislature recognized domestic violence must be considered contrary to the best interest of children in the context of custody issues. Wyo. Stat. Ann. § 20-2-201(c) (Lexis-Nexis 2003); see Cobb v. Cobb, 2 P.3d 578, 580 (Wyo.2000) where abuse, harassment, and stalking by mother's boyfriend occurred, we agreed that although the boyfriend had not directly harmed the children, the district court properly reasoned it was not required to "sit idly by until some form of physical or emotional harm is done to [the children].” Id.