## Facts

- B.D. (father) and E.J.D. (mother) were the parents of four young children: three girls (E.D., C.D., and C.S.D.) and one boy (W.D.).
- Utah’s Department of Family Services removed the three girls from the parents’ custody after allegations that B.D. sexually abused them.
- About six months later, the Department created a reunification plan requiring B.D. to obtain sexual-abuse treatment; the plan allowed the parents unsupervised weekend visits with the girls.
- After an unsupervised Thanksgiving visit, C.D. told her substitute caregiver that both B.D. and E.J.D. had sexually abused her and W.D.
- E.D. confirmed the report and described abuse “using their hands and with a spoon.”
- The Department then removed W.D. and placed all four children together in the same temporary care home.
- During the next year, the Department tried two additional reunification plans. By Labor Day, the children again had an unsupervised weekend visit with the parents and a grandmother.
- After that visit, the children reported additional sexual abuse by both parents, including abuse occurring in the grandmother’s presence and involving kitchen utensils.
- Medical examinations of the three girls (then roughly ages three to eight) showed abnormalities and scarring consistent with chronic sexual abuse; all four children were found to have been sexually abused.
- The Department petitioned to terminate both parents’ rights. After a two-day bench trial featuring testimony from doctors, therapists, caseworkers, and others, the juvenile court terminated B.D.’s and E.J.D.’s parental rights.
- The children did not testify at trial because a therapist advised that testimony could harm their mental health; their out-of-court statements were introduced through other witnesses and records.
- On appeal, the parents argued (for the first time) that the proceedings violated confrontation rights under the state and federal constitutions and that a criminal rule governing child-victim hearsay had not been followed.

## Issues

1. Whether parents in a civil termination-of-parental-rights case have a state or federal constitutional right to confront and cross-examine their children by requiring the children to testify.
2. Whether a rule governing admission of a child’s out-of-court statements in criminal proceedings applied to this termination case, making the children’s hearsay statements inadmissible.
3. Whether the juvenile court’s findings supporting termination should be reversed as clearly erroneous.

## Decision

- The Utah Court of Appeals affirmed the termination orders.
- The court rejected the confrontation-rights challenge, noting the issue was raised for the first time on appeal and that the Sixth Amendment Confrontation Clause applies to criminal prosecutions, not civil termination proceedings; the governing protection is due process and a fair hearing.
- The court rejected the claim that the criminal child-hearsay rule controlled, concluding that rule did not apply in this civil juvenile proceeding and that the court did not err by receiving the children’s statements through other testimony and records.
- The court declined to reweigh evidence and emphasized the appellant’s duty to marshal the evidence supporting the juvenile court’s findings when asserting clear error; the parents did not meet that burden.

## Legal Principles

- Termination of parental rights is a civil proceeding; the Sixth Amendment Confrontation Clause does not apply as it does in criminal cases.
- Procedural protection in termination litigation comes from due process, which asks whether the hearing was fair in light of the interests at stake; due process does not automatically require live testimony from child victims.
- A child-hearsay rule designed for criminal prosecutions does not automatically govern civil juvenile termination trials; admissibility is evaluated under the rules applicable to juvenile civil proceedings and fairness requirements.
- On appeal from termination findings, the reviewing court applies a clear-error standard and will not reweigh credibility; an appellant must marshal the evidence supporting the findings and then show why the findings still fail under that evidence.

## Conclusion

The court affirmed termination because the parents’ confrontation argument was not preserved and, in any event, criminal confrontation protections do not control civil termination proceedings; the criminal child-hearsay rule did not apply; and the parents failed to carry their appellate burden to marshal the supporting evidence and show the juvenile court’s findings were clearly erroneous.


In re E.D., 876 P.2d 397 (1994)