2023 UT App 103
THE UTAH COURT OF APPEALS
LUCAS ALLEN JOHN,
Appellee,
v.
CASSANDRA KATHLEEN JOHN,
Appellant.
Opinion
No. 20210506-CA
Filed September 14, 2023
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 164904953
Benjamin K. Lusty, Attorney for Appellant
Mary Deiss Brown, Attorney for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
LUTHY, Judge:
¶1 In Lucas Allen and Cassandra Kathleen John’s divorce
decree, the district court gave Lucas 1 sole legal and physical
custody of the parties’ daughter, Child. The decree gave
Cassandra once-a-week virtual parent-time and in-person parent-time as often “as the parties agree, or as recommended by the
reunification therapist.” The court ordered that Cassandra’s
virtual parent-time “not be . . . monitored” but that her in-person
parent-time be “subject to line-of-sight supervision.” The court
1. As is our practice, because the parties share the same last name,
we use their first names, with no disrespect intended by the
apparent informality.
John v. John
then outlined a “reunification” plan, with the goal of Cassandra’s
eventual transition to unsupervised parent-time with Child.
¶2 Cassandra contends that the district court erred by
ordering supervised in-person parent-time without making the
statutorily required finding of “evidence that [Child] would be
subject to physical or emotional harm or child abuse . . . from
[Cassandra] if left unsupervised with [her].” Utah Code
§ 30-3-34.5(1). 2 Cassandra also forwards multiple arguments in
support of the assertion that the court erred by failing to provide,
as required by statute, “specific goals and expectations” for her to
meet “before unsupervised parent-time may be granted.”
Id. § 30-3-34.5(5). We conclude that the district court made an
adequate finding of evidence that Child would be subject to
physical or emotional harm from Cassandra if left unsupervised
with her, and we conclude that each of Cassandra’s arguments
regarding specific goals and expectations is either mistaken or
unpreserved. We therefore affirm.
BACKGROUND
¶3 Lucas and Cassandra married in March 2014. Child was
born in September of that year. Cassandra had “engaged in drug
use over the years,” and “even though [Cassandra] was a stay-athome mom,” Lucas “hired a baby-sitter to take care of [Child] . . .
because of [Cassandra’s] drug use” and because “he feared for
[Child’s] safety.”
2. After Cassandra filed her notice of appeal, Utah Code section
30-3-34.5 was amended to expand the number of crimes that
qualify as child abuse under this section. See Act of Feb. 16, 2022,
ch. 430, § 7, 2022 Utah Laws 3391, 3398. Because the amendment
is not relevant to our analysis, we cite the current version of the
code for convenience.
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John v. John
¶4 Soon after Child was born, Cassandra became pregnant
with the parties’ second child. When the second child was born,
the baby “had substances in her system,” “indicat[ing] that
[Cassandra had been] engaging in activities that were potentially
harmful to the . . . child.” This child died shortly after her birth. 3
¶5 The parties separated around May 2016, and Cassandra
moved in with her boyfriend later that year. In August 2016,
Lucas petitioned for divorce. The next month, he moved for
temporary orders to grant him sole legal and physical custody of
Child. He also requested that Cassandra’s visitation time with
Child be supervised and that Cassandra be ordered to submit to
drug testing.
¶6 Around this time, Lucas and Cassandra were together “at
a local restaurant” when Cassandra “took [Child], put her in the
front seat of [a] truck without any car seat or any appropriate child
restraints and then drove off,” hitting Lucas with the truck in the
process. A temporary protective order was entered against
Cassandra because she had attempted to run Lucas over with her
truck and abscond with Child. A hearing on the protective order
was held in October 2016, at which the commissioner
recommended dismissal of the protective order,4 entry of a
mutual restraining order, and the granting to Cassandra of
“unsupervised parent time . . . with no overnights.”
¶7 On December 8, 2016, a hearing was held on Lucas’s
Motion for Temporary Orders. Following the hearing, the court
entered mutual restraining and no-contact orders against the
parties, awarded Lucas temporary sole legal and physical custody
of Child, and directed Cassandra to “submit to a hair follicle
3. The district court found that the second child’s death
“reportedly” “was not attributed to [Cassandra’s potentially
harmful activities] but was attributed to medical malpractice.”
4. The protective order was dismissed in October 2016.
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[drug] test before 5:00 p.m.” that day. The court gave Cassandra
parent-time “with . . . no overnights” and provisionally ordered
that it be “facilitated” by a particular family friend. The court
further instructed that if Cassandra’s drug test came back
positive, Lucas’s attorney was to “call the court to schedule a
telephone conference to determine the status moving forward.”
¶8 Cassandra’s hair follicle drug test came back positive for
both cocaine and marijuana, and another hearing was held on
December 20, 2016. Following that hearing, the court ordered that
Cassandra’s parent-time be subject to line-of-sight supervision
and that Cassandra complete another drug test by January 9, 2017.
¶9 On January 9, 2017, Cassandra submitted an “unofficial”
drug test showing negative results for a collection taken that day.
At a review hearing on January 30, 2017, however, the
commissioner was “concern[ed]” because the results of the
January 9 unofficial test were “drastically different” than the
results of the test on December 8, 2016. The commissioner
therefore directed Cassandra to complete another drug test that
day. The commissioner also ordered “continue[d] . . . supervised
parent time, status quo,” and set a review hearing for February
13, 2017.
¶10 Cassandra’s drug test on January 30, 2017, came back
positive for marijuana, and following the February 13 review
hearing, the court ordered “expanded supervised parent-time”
with “no overnight visits.” It also ordered Cassandra to submit to
a urinalysis by March 8, 2017, and it set another review hearing
for March 13, 2017.
¶11 Cassandra took the required test before the March 13
review hearing, but she failed to submit the results. Her counsel
(Counsel) nevertheless proffered at the hearing that the test had
come back “positive for THC.” The court ordered that
Cassandra’s parent-time remain subject to “direct line-of-sight”
supervision “with no overnight visits.”
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¶12 “At some point”—likely during April 2017—Cassandra
“moved to Idaho for several months.” After a “stint in Louisiana,”
she then moved to Iowa and lived there with a boyfriend. Once
she had left Utah, Cassandra did not request any review hearings
or make any attempt to exercise in-person parent-time with Child.
As a result, she was “around [Child] physically on [only] three
occasions” between January 2017 and June 2021.
¶13 Eventually, in March 2021, after compromise negotiations
proved only minimally successful, the court held a bench trial on
the parties’ outstanding issues. At the time of trial, Child was six
years old.
¶14 Following trial, the court held a hearing to orally announce
its rulings. To Cassandra’s credit, the court found that she was
“trying to make some changes in her life,” including engaging in
“therapy to resolve anger, trauma, and substance abuse” issues,
and that she “appear[ed] to be improving.” But the court found
that Cassandra still “lack[ed] . . . maturity in her decision-making
processes,” “consider[ed] her own needs first and primary over
[Child]’s,” and might not be “completely emotionally stable.” The
court also found that Cassandra had engaged in “instances of
violence” in the past (including the one that led to the temporary
protective order noted above). And it found that Cassandra’s
failures to “give[] first priority to [Child]’s welfare” were due to
her “history with drug abuse.” Based on the foregoing findings,
the court awarded Lucas sole legal and physical custody of Child.
¶15 The court then granted Cassandra supervised in-person
parent-time at a frequency to be determined by a therapist and
unsupervised virtual parent-time at least once per week. The
court said that it thought there ought to be “some sort of ramping
up” of supervised in-person visits and that a therapist should
“come up with a schedule” for those visits after talking with
Child, Cassandra, and Lucas to “see what’s appropriate.” The
court further explained, “I expect that the therapist will come up
with so many overnights so that [Cassandra] can practice with all
20210506-CA 5 2023 UT App 103
John v. John
of those things, and then once she’s completed the therapist’s
plan, then I would say that the standard relocation statute would
then become effective.” Counsel then asked whether “at that
point”—i.e., when Cassandra had completed the therapist’s
plan—“supervision would no longer be required.” The court
responded, “I don’t know, Counsel,” “because there’s . . . some
ongoing drug issues . . . and we don’t have any evidence . . . that
she would have clean tests.”
¶16 Counsel then asked if the court was going to make findings
as to whether Child “would be in danger if she were with
[Cassandra unsupervised].” In response, the court said:
[G]iven that [Cassandra]’s not complied with the
Court orders, it’s not clear to me whether or not
she’s a danger to [Child] still. She hasn’t completed
the drug tests, et cetera, so given her noncompliance
with the Court’s prior temporary orders, she
potentially could still be a danger; but given also
that she hasn’t been around [Child] physically
except for three times, I just think that’s
problematic.[5]
¶17 Counsel then said, “So . . . [a]fter two things occur, if I
understand correctly, then [Cassandra]’s parent time will be
according to [section] 30-3-37 and unsupervised.” He listed “one,
the completion of the ramp up period as recommended by the
5. These oral findings were later memorialized in the court’s
written Findings of Fact and Conclusions of Law as follows:
The Court finds that, given [Cassandra]’s
noncompliance with the Court orders, including her
failure to provide clean drug tests, it is not clear
whether [she] is still a danger to [Child]. The Court
finds it problematic that [Cassandra] has only been
around [Child] physically on three occasions since
2016.
20210506-CA 6 2023 UT App 103
John v. John
therapist; and two, . . . submitting to the Court a clean drug test.”
He asked, “Is that accurate?” The court responded that it could
not “say that [Cassandra]’s going to go immediately to
unsupervised [visitation] after the ramp up” because the court
might “need some more information at that point.”
¶18 Counsel then informed the court, “My understanding,
your Honor, is that the Court needs to provide specific criteria
that [Cassandra] needs to meet . . . in order to have supervision
dismissed.” The court replied, “I . . . don’t know what the
therapist is going to say, Counsel. So I think it’s a little bit
speculative. . . . What I’m going to have to see is what the therapist
recommends, and then I can give you some further instructions at
that point.” It added, “But yes, we do need her to have clean drug
tests . . . .” Then the court, Counsel, and Lucas’s attorney
discussed what the drug test requirements would be.
¶19 Counsel later asked, “Your Honor, what would be the time
line and/or process for setting up what sounds like is a . . . review
hearing on how we are going to . . . establish the criteria for having
supervision lifted?” The court asked Lucas’s attorney if she
“want[ed] to respond,” saying, “[Counsel] wants criteria on how
to remove supervision.” Lucas’s attorney explained that she did
not think there was “enough information . . . to anticipate . . . the
factors that [the court was] going to have to consider” and that it
seemed reasonable to “notice up a hearing after [the parties got] a
lot of these things going[] and have enough information to go
ahead.” But the court indicated that it was “not going to notice up
a hearing at [that] point.” It directed the parties to “get the
therapist on board first, and . . . to do that within three weeks,”
then to get “the drug test filed.” The court said, “[A]fter I’ve
reviewed these things[,] . . . I’d like to make sure that Cassandra
is complying with everything, and that she’s able to do what she
needs to do.” It further stated, “So I would like to do that as
quickly as possible, [Counsel], but I don’t know how long of a
period it’s going to take because it will also depend on whether or
20210506-CA 7 2023 UT App 103
John v. John
not your client is able to do everything that’s required. I hope that
she does.”
¶20 Counsel then, again, stated his interpretation of the process
the court was explaining:
[I]t sounds like . . . you’re saying that there’s a two-step process. That we won’t be able to arrive at the
criteria for . . . when supervision will be lifted until
[Cassandra] has complied with everything the
therapist has said and filed clean drug tests. Then
we can come back to have a hearing to determine
what the criteria are for supervision to be lifted; is
that accurate?
¶21 At that point, the court turned to Lucas’s attorney and
asked whether she “[had] any objection” to the process Counsel
had just summarized or whether she thought that supervision
“should be lifted” as soon as Cassandra “completes the criteria”
the court had already identified. She said that she thought “there
might be concerns” even after Cassandra completes reunification
therapy, although she did not “know what they would be.” The
court then said, “Let’s just get through the therapy portion, and
then I want to see what the reports are. . . . It could be likely that
if she’s successful with all of th[e] things [the therapist
recommends] that the Court will lift supervision at that time.”
¶22 Counsel once again spoke, seeking “to clarify” certain
matters by asking, “[I]f after [Cassandra] has met with the
therapist and complied with the therapist, the therapist
recommends that supervision be lifted, . . . then would the Court
accept that recommendation . . . or do we still need to meet to
determine criteria for if and how supervision would be lifted?”
The court replied that it “[did not] know the answer to that yet,”
saying, “[B]ut let’s go through that, and if the therapist
recommends it, if we need to have a discussion with the therapist
20210506-CA 8 2023 UT App 103
John v. John
present, then we might need to do that, okay? Because I might . . .
have some questions.”
¶23 Counsel then asked the court to order that the therapist be
an Association for Family and Conciliation Courts therapist, and
the court agreed. Then the court said, “If there’s no other
questions, I do need to get to my next hearing.” Counsel initially
replied that he had “[n]o other questions” but then said, “Last
question, your Honor. . . . [I]s the review hearing going to be . . .
before you or the Commissioner?” The court answered that the
review hearing would be before the court.
¶24 The court concluded the hearing and memorialized its oral
rulings into written Findings of Fact and Conclusions of Law and
a Decree of Divorce. Cassandra appeals.
ISSUES AND STANDARDS OF REVIEW
¶25 On appeal, Cassandra contends that the district court erred
in two ways when it ordered supervised parent-time. First, she
argues that the order of supervised parent-time was legally
inappropriate under Utah Code section 30-3-34.5(1) because the
court “did not find that Cassandra poses a present threat of harm”
to Child. Second, she argues that the order of supervised
parent-time was legally inappropriate under Utah Code section
30-3-34.5(5) because the court did not “provide specific goals and
expectations for Cassandra to meet” in order to be granted
unsupervised parent-time. “We generally will not disturb the
district court’s parent-time determination absent a showing that
the court has abused its discretion. However, we review the
district court’s interpretation of a statute for correctness. Likewise,
we review the legal adequacy of findings of fact for correctness as
a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4,
427 P.3d 1221
(cleaned up).
20210506-CA 9
2023 UT App 103
John v. John
ANALYSIS
I. Adequacy of the District Court’s Findings in Support of
Supervised Parent-Time
¶26 Cassandra argues that the district court erred in ordering
supervised parent-time because it did not make the finding that
the Utah Code mandates as a prerequisite to supervised
parent-time. The pertinent portion of the relevant provision reads
as follows:
When necessary to protect a child and no less
restrictive means is reasonably available . . . , a court
may order supervised parent-time if the court finds
evidence that the child would be subject to physical
or emotional harm or child abuse, as described in
Sections 76-5-109, 76-5-109.2, 76-5-109.3, and 76-5-
114, from the noncustodial parent if left
unsupervised with the noncustodial parent.
Utah Code § 30-3-34.5(1).
¶27 As an initial matter, we agree with Cassandra’s assertion
that this statute means that the court must find a current risk of
harm to the child from unsupervised parent-time, “rather than
merely [a] past or historic risk of harm.” (Emphasis added.) To
require “evidence that the child would be subject to . . . harm or . . .
abuse . . . if left unsupervised with the noncustodial parent,” id.
(emphasis added), is to require evidence of harm or abuse during
a potential situation that would occur, if at all, in the future. 6 Thus,
before ordering supervised parent-time, a court must find that
6. The phrase “would be” “can refer to” situations that “may or
may not happen in the future.” The Modal WOULD to Express
Unreal Situations, Grammaring, https://www.grammaring.com/
the-modal-would-to-express-unreal-situations [https://perma.cc/
C2ZD-RBY5].
20210506-CA 10 2023 UT App 103
John v. John
there is evidence that harm or abuse could occur in the future, not
merely that harm or abuse, or a risk of harm or abuse, occurred or
was present in the past.
¶28 That is not to say that the existence of harm, or a risk of
harm, from a noncustodial parent in the past has no bearing on
whether there is a risk of harm from that parent in the future.
Evidence that harmful or potentially harmful circumstances from
the past have recurred or have not substantially abated could
certainly be probative of whether there is a risk of harm in the
future.
¶29 Moreover, a court need not find that the child definitely
would be subjected to harm or abuse if left unsupervised with the
noncustodial parent. Rather, a court is required to find only
“evidence that the child would be subject to . . . harm or . . . abuse”
if left alone with the noncustodial parent. Id. (emphasis added).
For this reason, we, like Cassandra, conclude that a finding of a
presently existing threat or risk of harm or abuse is sufficient to
support supervised parent-time under section 30-3-34.5(1).
¶30 However, we disagree with Cassandra that “the district
court did not find that [she] presently poses a threat of harm to
[Child] if she were [to be left] unsupervised with [Child].”
¶31 Cassandra’s argument here is a challenge to the adequacy
of the district court’s findings, not to the sufficiency of the
evidence. 7 When we assess the adequacy of findings, “we review
7. In Cox v. Cox,
2023 UT App 62,
532 P.3d 128, we recently
explained that “a sufficiency of the evidence argument asserts that
there was insufficient evidentiary support for a particular factual
finding,” while “a challenge to the adequacy of the findings . . .
asserts that the court’s findings did not adequately explain the
basis for the court’s rulings.”
Id. ¶ 32 n.5. The instant case presents
another type of inadequate-findings argument—the argument
(continued…)
20210506-CA 11 2023 UT App 103
John v. John
the [trial court’s] written and oral findings of fact together to
determine if they are [adequate] to support the trial court’s
rulings.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 17,
176 P.3d
476. See generally Utah R. Civ. P. 52(a)(1) (“The findings . . . may
be stated in writing or orally following the close of the evidence.”).
This is particularly true when “the written findings are
incomplete, inadequate, or ambiguous.” Bill Nay & Sons
Excavating v. Neeley Constr. Co.,
677 P.2d 1120, 1121 (Utah 1984). In
those instances, the written findings “may be elaborated [on] or
interpreted (in respects not inconsistent therewith) by reference to
the trial court’s . . . oral explanation of the decision.”
Id. This is one
of those instances.
¶32 Cassandra supports her argument that the court failed to
make the requisite finding by pointing to only one statement from
the district court’s written findings: “[I]t is not clear whether
[Cassandra] is still a danger to [Child].” But the court orally
supplied additional findings and reasoning. When asked if it was
going to make findings as to whether “[Child] would be in danger
if she were with [Cassandra],” the court replied, “[G]iven that
[Cassandra has] not complied with the Court orders, it’s not clear
to me whether or not she’s a danger to [Child] still. She hasn’t
completed the drug tests, et cetera, so given her noncompliance
that the trial court did not make a finding that is legally required
as a prerequisite to a particular order. See Hall v. Hall,
858 P.2d
1018, 1025 (Utah Ct. App. 1993) (holding that the trial court’s
“findings on the whole” were inadequate because “they omit[ted]
critical findings required by the statute”). While Cassandra argues
that the district court did not make the legally required finding of
a present risk of harm to Child if Child were to be left
unsupervised with Cassandra, she does not make the separate
argument that there is insufficient evidence to support a finding
of such a present risk of harm. Thus, we review only the adequacy
of the district court’s findings, not the sufficiency of the evidence
supporting those findings.
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John v. John
with the Court’s prior temporary orders, she potentially could still
be a danger . . . .” (Emphasis added.) The court then added that it
also found it “problematic” that Cassandra “[had]n’t been around
[Child] physically except for three times” during the preceding
four-plus years. Because Counsel, in posing the question,
employed the phrase “[Child] would be in danger if she were with
[Cassandra]” to summarize the requirement of a current threat of
harm or abuse, we take the court’s responsive statement that
Cassandra “potentially could still be a danger” to Child to be a
finding of a current threat of physical or emotional harm to Child
if Child were to be left unsupervised with Cassandra. 8
¶33 Our reading of the court’s answer to Counsel’s question is
bolstered by the fact that it came on the heels of additional
findings that Cassandra still “lack[ed] . . . maturity in her decision-making processes,” that Cassandra still “consider[ed] her own
needs first and primary over [Child]’s,” that Cassandra still might
not be “completely emotionally stable,” and that Cassandra’s
failures to “give[] first priority to [Child]’s welfare” were linked
to her “history with drug abuse.” When the court’s response to
Counsel’s question is viewed in the context of these and other
findings, its import is unmistakable: Cassandra has a history of
drug abuse, which, without objection, merited supervised parent-time in the past; since supervised parent-time was instituted,
Cassandra has failed to provide a negative drug test; six-year-old
Child has been in Cassandra’s physical presence only three times
over the course of four-plus years; and Cassandra remains
immature, potentially emotionally unstable, and self-centered in
8. We also read the court’s back-to-back statements that “it’s not
clear . . . whether or not [Cassandra is] a danger” and “[Cassandra]
potentially could still be a danger” as the court’s recognition that
it need not find that Child definitely would be harmed if left
unsupervised with Cassandra but that, instead, it need only find
an existing risk of harm to Child through unsupervised visitation.
See supra ¶¶ 16, 29.
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relation to Child; accordingly, Cassandra “potentially could still
be a danger” to Child in the present. This finding is adequate to
support the court’s order of supervised parent-time. 9
II. The District Court’s Provision of Specific Goals and
Expectations to Discontinue Supervised Parent-Time
¶34 When a court orders supervised parent-time, it must
“provide specific goals and expectations for the noncustodial
parent to accomplish before unsupervised parent-time may be
granted.” Utah Code § 30-3-34.5(5). Cassandra’s initial brief on
appeal states at least two, and perhaps three, independent
arguments to support her assertion that the district court did not
comply with section 30-3-34.5(5). We disagree with her first
argument, and we conclude that her second possible argument
and her third argument are unpreserved.
¶35 Cassandra’s first argument regarding the district court’s
compliance with section 30-3-34.5(5) is that the court’s orders “are
9. Cassandra also argues that supervised parent-time is “not the
least restrictive means of protecting [Child].” However, her
least-restrictive-means argument is a repackaging of her assertion
that the district court failed to find a current risk of harm to Child
from unsupervised parent-time with Cassandra. This is evident
from her argument’s circular premise—that “supervised parent
time cannot constitute the least restrictive means of [protecting a
child from harm from a noncustodial parent] if the [noncustodial]
parent cannot be found to be a risk of harm.” Additionally,
Cassandra does not offer a plausible, less restrictive alternative for
protecting Child during parent-time other than through
supervision. Cf. United States v. Playboy Ent. Group, Inc., 529 U.S.
803, 816 (2000) (“When a plausible, less restrictive alternative is offered
to a content-based speech restriction, it is the Government’s
obligation to prove that the alternative will be ineffective to
achieve its goals.” (emphasis added)). For these reasons,
Cassandra’s least-restrictive-means argument is unavailing.
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John v. John
silent on the question of what conditions Cassandra must meet
prior to [the] lifting of supervised parent time” and that, because
of this purported silence, “the district court erred.” Cassandra is
mistaken, however.
¶36 After Counsel informed the court of his understanding that
the court “need[ed] to provide specific criteria that [Cassandra]
needs to meet . . . in order to have supervision dismissed,” the
court said that it “need[ed] her to have clean drug tests” and also
directed the parties to “get [a] therapist on board . . . within three
weeks.” Moreover, Cassandra acknowledges that the court
ordered her to complete reunification therapy. The court repeated
these requirements multiple times. Plainly, the court provided
three specific goals or expectations for Cassandra to meet before
unsupervised parent-time would be granted: (1) Cassandra
needed to provide clean drug tests in connection with her
supervised visitation; (2) Cassandra needed to work with Lucas
to identify a therapist within three weeks; and (3) Cassandra
needed to complete reunification therapy as determined by the
therapist. Thus, Cassandra’s first argument fails.
¶37 Next, Cassandra asserts that the district court did not
comply with Utah Code section 30-3-34.5(5) because the court did
not say that “completion of reunification therapy . . . [was] a
condition precedent to lifting supervised parent time.”10 What
Cassandra means by this assertion is not clear. If what she means
is that completion of reunification therapy is not a condition the
court expected her to meet before supervision would be lifted, this
is merely a restatement of Cassandra’s first argument and
Cassandra is simply mistaken, as we have explained. On the other
hand, if what she means is that to comply with section
30-3-34.5(5), a court must identify at the time it orders supervised
10. A “condition precedent” is “[a]n act or event, other than a
lapse of time, that must exist or occur before a duty to perform
something promised arises.” Condition precedent, Black’s Law
Dictionary (11th ed. 2019).
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John v. John
parent-time a comprehensive list of the things the parent must do to
receive a guarantee that supervision will be lifted, she did not
preserve this potential issue for our review.
¶38 “In order to preserve an issue for appeal,” the appellant
must have “presented [it] to the trial court in such a way that the
trial court ha[d] an opportunity to rule on that issue.” 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51,
99 P.3d 801 (cleaned up). “For
a trial court to be afforded an opportunity to correct [an asserted]
error (1) the issue must be raised in a timely fashion, (2) the issue
must be specifically raised, and (3) the challenging party must
introduce supporting evidence or relevant legal authority.”
Id.
(cleaned up). As to the second of these requirements, “an
objection must at least be raised to a level of consciousness such
that the trial court can consider it.” State v. Cruz,
2005 UT 45, ¶ 33,
122 P.3d 543 (cleaned up).
¶39 Here, Counsel indicated to the district court that his
“understanding” was “that the Court needs to provide specific
criteria that [Cassandra] needs to meet . . . in order to have
supervision dismissed.” The court then identified or reiterated
three specific criteria for Cassandra to meet, as we have explained.
Counsel then repeated, over the course of a lengthy discussion,
essentially the same question three times. First, he asked, “[W]hat
would be the time line and/or process for setting up what sounds
like is a . . . review hearing on how we are going to . . . establish
the criteria for having supervision lifted?” The second time he
described “a two-step process” in which the parties “won’t be able
to arrive at the criteria for” lifting supervision “until [Cassandra]
has complied with everything the therapist has said and filed
clean drug tests” and they then “come back to have a hearing to
determine what the criteria are for supervision to be lifted.” He
asked the court, “[I]s that accurate?” Finally, “to clarify,” he asked
a third time whether—“after [Cassandra] has met with the
therapist and complied with the therapist”—if “the therapist
recommends that supervision be lifted, . . . would the Court accept
that recommendation . . . or do we still need to meet to determine
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criteria for if and how supervision would be lifted?” Each of these
questions came after the court had iterated or reiterated specific
initial expectations for Cassandra to meet to have supervision
lifted. In that context, each of Counsel’s foregoing questions can
be fairly understood as an attempt to clarify when or whether
additional expectations would be set, not as an objection to the fact
that the court had not identified a comprehensive set of
expectations at the outset.
¶40 Indeed, after the second of the foregoing questions from
Counsel, the court turned to Lucas’s attorney and asked if she
objected to the process Counsel had just summarized. This clearly
indicates that the court did not understand Counsel’s question to
be an objection but rather an attempt at clarification. Thereafter,
Counsel emphasized the notion that he was attempting to gain
clarity rather than objecting when he explicitly prefaced the third
of his questions by stating that he was seeking “to clarify.” Then,
after the court reiterated for the third time its initial expectation—
for Cassandra to “go through” therapy—it said, “If there’s no
other questions, I do need to get to my next hearing.” Cassandra’s
counsel responded not by objecting but by saying: “Last question,
your Honor. . . . [I]s the review hearing going to be . . . before you
or the Commissioner?”
¶41 Given the foregoing, we conclude that even if Counsel was
trying to raise an objection to the fact that the district court had
not provided a comprehensive set of expectations for Cassandra
to meet in order to have supervision of her parent-time lifted, he
did not raise that objection to a level of consciousness in the mind
of the court such that the court could consider it. Accordingly, this
potential issue was not preserved for our review. See Cruz, 2005
UT 45, ¶ 33; State v. Olsen,
860 P.2d 332, 336 (Utah 1993) (“A party
who fails to make a clear and timely objection waives the right to
raise the issue at the appellate level.” (cleaned up)).
¶42 Finally, Cassandra argues that the expectation that she
complete reunification therapy as determined by a therapist
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John v. John
before she is allowed unsupervised parent-time violates section
30-3-34.5(5) because that section “does not allow the district court
to delegate the [setting of conditions for the lifting of supervision]
to a therapist.” Again, she did not raise this issue below. Because
it is unpreserved, we do not address it. See True v. Utah Dep’t of
Transp., 2018 UT App 86, ¶ 32,
427 P.3d 338 (stating that “an
argument based upon an entirely distinct legal theory is a new
claim or issue and must be separately preserved” (cleaned up)).
CONCLUSION
¶43 The district court made an adequate finding that
Cassandra posed a present risk of harm to Child if Child were to
be left unsupervised with her. Additionally, Cassandra’s first
argument in support of a conclusion that the district court failed
to comply with Utah Code section 30-3-34.5(5) by not providing
specific goals and expectations for Cassandra to meet before being
granted unsupervised parent-time is mistaken, and her other
arguments in support of that conclusion were unpreserved. We
therefore affirm.
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