State ex rel. C.L.

2007 UT 51
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah in the interest 	No. 20060441
of C.L., D.S., and R.S., persons
under eighteen years of age.
________________________________
Office of the Guardian ad Litem,
Petitioner,
v.
F I L E D
A.M.K.,
Respondent. 	July 10, 2007
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Third District Juvenile
The Honorable Charles D. Behrens
No. 437078
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Carol L. C. Verdoia,
John M. Peterson, Asst. Att’ys Gen., Salt Lake City,
for the State
Martha Pierce, Brent J. Newton, Salt Lake City, for
petitioner
Lisa B. Lokken, Salt Lake City, for respondent
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	A.M.K.’s parental rights were terminated by the
juvenile court. 	Thereafter, A.M.K. sought a new termination
hearing, arguing that the failure of a planned adoption of two of
her children constituted newly discovered evidence. 	We hold that
the failed adoption does not qualify as newly discovered evidence
because it is not evidence of facts in existence at the time of
trial.

No. 20060441 	2
BACKGROUND
¶2 	A.M.K. is the biological mother of three minor
children, C.L., D.S., and R.S. 	In December 2003, the Division of
Child and Family Services (“DCFS”) began an investigation of
A.M.K.’s home in response to an allegation that she physically
abused one of the children. 	During the course of this
investigation, A.M.K. tested positive for methamphetamine and
engaged in an incident of domestic violence while the children
were present. 	The juvenile court found that the children were
abused and ordered DCFS to provide protective supervision
services.
¶3 	In April 2004, the children were removed from A.M.K.’s
home because she and the father of D.S. and R.S. had violated a
no contact order and had once again engaged in domestic violence
in the presence of the children. 	The juvenile court approved a
service plan with the ultimate goal of returning custody to
A.M.K. 	The service plan required A.M.K. to complete the
recommendations of drug and domestic violence assessments, submit
to random urinalysis, and complete the peer parenting program.
The juvenile court later changed the permanency goal from
reunification to adoption because A.M.K. had failed to comply
with the service plan. 	Following several temporary placements,
R.S. was placed in the custody of A.M.K.’s aunt and her husband,
while C.L. and D.S. were placed with a foster mother.
¶4 	DCFS petitioned to terminate A.M.K.’s parental rights,
and a hearing was held in April 2005. 	At the hearing, A.M.K.
admitted that she had made little progress on her service plan.
A.M.K. acknowledged that she had not been submitting to random
urinalysis, did not participate in domestic violence treatment,
and while she had attended some substance abuse counseling, had
not completed treatment. 	A.M.K. presented no evidence to rebut
the State’s assertion that she was an unfit parent under Utah
Code sections 78-3a-402(2) and -406(3), but instead argued that
terminating her rights was not in the best interests of the
children.
¶5 	As part of the State’s case that the best interests of
the children would be served by terminating A.M.K.’s parental
rights, the foster mother of C.L. and D.S. testified that she was
willing to adopt them. 	A.M.K.’s aunt also testified that perhaps
she and her husband would be willing to adopt R.S. if he could
not live with his siblings.
¶6 	The juvenile court ultimately found that A.M.K. was an
unfit or incompetent parent. 	The court also found that the

1 In her motion, A.M.K. also claimed that she was entitled
to relief from judgment under rule 60(b) of the Utah Rules of
Civil Procedure. 	She has since abandoned this claim, and we do
not address it.
2 The juvenile court, however, issued its order before
A.M.K. was able to reply to the memorandums of the guardian ad
litem and the State in opposition to the mother’s motion. 	After
allowing A.M.K. to file her reply, the court issued a second
order, again denying her request for relief.
3 	No. 20060441
children had been placed in stable, nurturing homes with families
that were willing to adopt them. 	In contrast, the juvenile court
determined that A.M.K. would not be able to provide a safe and
stable home in the near future. 	Consequently, the juvenile court
found that the termination of A.M.K.’s parental rights was in the
children’s best interests and issued an order terminating those
rights.
¶7 	Following the hearing but before the termination order
was issued, the foster mother relinquished custody of C.L. and
D.S. and abandoned her plans to adopt the two children.
Consistent with her claim that this event constituted newly
discovered evidence relating to the best interests of the
children, A.M.K. filed a timely motion for a new hearing under
Utah Rule of Civil Procedure 59(a)(4). 1 	The juvenile court
denied the motion because the failed adoption was “a change in
circumstances for [C.L.] and [D.S.] which occurred after the
trial held on April 26, 2005,” and not “‘newly discovered
evidence’ as contemplated by [rule 59(a)(4)].” 2
¶8 	A.M.K. appealed to the Utah Court of Appeals. 	That
court found that the proper avenue for pursuing a new hearing was
not rule 59(a)(4) of the Utah Rules of Civil Procedure, but
rather Utah Code section 78-3a-908. 	A.M.K. v. State (State ex
rel. C.L.), 2006 UT App 145, ¶ 2, 134 P.3d 1157. 	Because the
standard applicable to both rule 59(a)(4) and Utah Code section
78-3a-908 is the same, the court treated the motion as if it were
brought under the statute. 	Id. 	It then held that, under
principles of horizontal stare decisis, it was bound by the
precedent established in State v. J.P.S. (In re J.P.), 921 P.2d
1012 (Utah Ct. App. 1996), to reverse the juvenile court and
order a new hearing on the basis of newly discovered evidence.
State ex rel. C.L., 2006 UT App 145, ¶¶ 4-7.
¶9 	We granted certiorari to review the court of appeals’
decision.

3 The principal differences between the rule and the statute
involve standing and the proper time frame for bringing a motion
for a new hearing. 	Rule 59(a) limits standing to parties to the
underlying action, while Utah Code section 78-3a-908 expands
standing to include “[a] parent, guardian, custodian, or next
friend of any minor adjudicated under this chapter, or any adult
affected by a decree in a proceeding under this chapter.” 	In
addition, under rule 59(b) a party has ten days from the entry of
judgment to request a new hearing, while section 78-3a-908 allows
a party to petition for a new hearing “at any time.” 	Because
A.M.K. was a party to the termination hearing and petitioned for
a new hearing within the time allotted under rule 59(b), these
differences are immaterial here.
No. 20060441 	4
ANALYSIS
¶10 	We begin by determining whether we should review the
propriety of granting a new hearing under rule 59(a)(4), the
provision under which the motion was originally brought and
considered, or under Utah Code section 78-3a-908, the provision
under which the court of appeals recast the motion because it
found that the statutory remedy had completely eclipsed rule
59(a)(4) in juvenile court proceedings. 	Rule 48(a) of the Utah
Rules of Juvenile Procedure states that “[n]ew hearings shall be
available in accordance with Utah R. Civ. P. 52, 59, and 60.”
Thus, rule 59(a)(4) is explicitly adopted under the juvenile
court rules. 	And although section 78-3a-908 contains language
very similar to rule 59(a)(4), nothing in the statute or our case
law eliminates a party’s right to seek relief under the Utah
Rules of Civil Procedure. 	We therefore conclude that parties may
seek a new hearing under either rule 59(a)(4) or section
78-3a-908. 	It was therefore improper for the court of appeals to
recast A.M.K.’s motion as if it were brought under the statute.
¶11 	This error, however, neither affects our analysis nor
prejudices the parties who have briefed the matter under Utah
Code section 78-3a-908 because both avenues for seeking a new
trial are reviewed under the same standard. 3 	In re S.R., 735
P.2d 53, 57 (Utah 1987) (interpreting the previous version of the
statute, Utah Code Ann. § 78-3a-46 (1987), and applying rule
59(a)(4)’s requirements for newly discovered evidence “[b]ecause
the language and the policies behind the statute and the rule are
substantially similar”). 	Therefore, even though we evaluate the
court of appeals’ decision under rule 59(a)(4), we look to
precedent that interprets both the rule and the statute, as did
the parties and the court of appeals below. 	See A.M.K. v. State
(State ex rel. C.L.), 2006 UT App 145, ¶¶ 2-7, 134 P.3d 1157.

4 Several opinions from the court of appeals have
articulated this set of requirements as three elements plus an
additional requirement that the evidence relate to facts in
existence at the time of trial. 	State ex rel. C.L., 2006 UT App
145, ¶ 3; T.M. v. State (State ex rel. L.M.), 2003 UT App 75,
¶ 8, 68 P.3d 276; In re J.P., 921 P.2d at 1017. 	Although we
agree that the court of appeals has correctly synthesized these
requirements from our holdings in In re S.R., 735 P.2d at 58, and
In re Disconnection of Certain Territory, 668 P.2d at 549, for
the sake of clarity, we refer to them as four elements.
5 	No. 20060441
¶12 	Rule 59(a)(4) provides that a new trial may be granted
for “[n]ewly discovered evidence, material for the party making
the application, which he could not, with reasonable diligence,
have discovered and produced at the trial.” 	Cases interpreting
both this rule and Utah Code section 78-3a-908 have established
that a party must prove that the offered evidence meets four
requirements in order to merit a new trial: 	(1) “‘[I]t must be
material, competent evidence which is in fact newly discovered,’”
(2) “‘it must be such that it could not, by due diligence, have
been discovered and produced at trial,’” (3) “‘it must not be
merely cumulative or incidental, but must be of sufficient
substance that there is a reasonable likelihood that with it
there would have been a different result,’” State v. J.P.S. (In
re J.P.), 921 P.2d 1012, 1017 (Utah Ct. App. 1996) (quoting In re
S.R., 735 P.2d at 58), and (4) it “‘must relate to facts which
were in existence at the time of trial,’” id. (quoting In re
Disconnection of Certain Territory, 668 P.2d 544, 549 (Utah
1983)). 4
¶13 	If the moving party fails to establish any one of these
elements, a new trial may not be granted. 	Because we hold that
the failed adoption is not evidence of facts in existence at the
time of the hearing, we conclude that A.M.K. was not entitled to
a new hearing and that we need not consider the remaining
elements.
¶14 	To justify a new trial under rule 59(a)(4), a movant
must point to newly discovered evidence that relates “to facts
which were ‘in existence at the time of trial.’” 	In re
Disconnection of Certain Territory, 668 P.2d at 549 (quoting
Campbell v. Am. Foreign S.S. Corp., 116 F.2d 926, 928 (2d Cir.
1941)). 	“A motion for a new trial or amended judgment cannot be
based on facts occurring subsequent to trial[;] . . . otherwise,
there would be no end to litigation.” 	Id.
¶15 	In In re J.P., 921 P.2d at 1016-18, however, the court
of appeals adopted a liberalized version of this rule 59(a)(4)

No. 20060441 	6
requirement for certain juvenile court proceedings. 	In that
case, the juvenile court declined to terminate parental rights at
a termination hearing. 	Id. at 1015. 	Eleven days later, the
State learned that the foster parents, who did not testify at the
hearing, were willing to adopt the children. 	Id. at 1016. 	The
State sought a new hearing under rule 59(a)(4), but the juvenile
court denied the motion. 	Id. 	The court of appeals reversed,
finding that the juvenile court had abused its discretion in
denying the new hearing. 	Id. at 1018. 	In so holding, the court
of appeals reasoned that nothing prevented the State from simply
refiling its application to terminate the parental rights with
the additional information about the foster parent’s willingness
to adopt. 	Id. 	Accordingly, the court of appeals concluded that
“[a]llowing a liberal application of Rule 59 seems a more
efficient remedy.” 	Id.
¶16 	In liberally construing rule 59(a)(4), the court of
appeals embraced a relaxed version of the requirement that the
newly discovered evidence relate to facts in existence at the
time of trial. 	Although no evidence regarding the foster
parent’s willingness to adopt had been offered at the hearing,
the court reasoned that “[t]he issue of whether the foster
parents were willing to adopt was at issue at the time of trial
and thus the newly discovered evidence relates to facts in
existence at the time of trial.” 	Id. at 1017. 	Thus, the court
of appeals appears to have endorsed a finding that newly
discovered evidence relates to facts in existence at the time of
trial whenever such evidence relates to an issue present at the
time of trial.
¶17 	In this case, although the court of appeals references
the requirement that the newly discovered evidence relate to
facts in existence at the time of the hearing, it cites and
applies the liberalized requirement from In re J.P. that the
evidence relate to an issue present at the time of trial. 	See
State ex rel. C.L., 2006 UT App 145, ¶¶ 6-7 & n.1 (implying that
the failed adoption related to “ambiguity respecting the foster
mother’s willingness to adopt at the time of trial”). 	Our
initial inquiry, therefore, is whether the court of appeals
applied the correct legal standard.
¶18 	We hold that the court of appeals incorrectly applied
the legal standard from In re J.P. because the justification
driving the liberal application of rule 59(a)(4) in that case is
simply not present here. 	The In re J.P. court correctly noted
that the State may reinitiate proceedings to terminate parental
rights at any time and present any newly discovered evidence in
those proceedings. 	921 P.2d at 1018. 	In other words, a

5 Moreover, the court of appeals seems to have gone beyond
what is required by horizontal stare decisis. 	Rather than
articulating and applying the legal principles adopted by In re
J.P., the court of appeals merely found that In re J.P. applied
to the present case and then found that it was obligated to reach
the same result. 	Although stare decisis requires courts to
adhere to legal rules set forth in prior precedent, it neither
requires nor authorizes courts to abdicate their responsibility
to apply these rules to the unique factual circumstances of each
case.
7 	No. 20060441
termination hearing that does not result in the termination of
parental rights does not insulate a parent from future scrutiny
if subsequent evidence of abuse or neglect is discovered by the
State. 	Thus, the question is not whether the State will be able
to present the newly discovered evidence, but how the State must
proceed in order to have the evidence heard--by filing a new
petition or a rule 59(a)(4) motion. 	The In re J.P. court found
that a liberal application of rule 59(a)(4) “seems a more
efficient remedy.” 	Id.
¶19 	This same reasoning does not apply where a parent’s
rights have been terminated. 	In such cases, the terminated
parent becomes a legal stranger to the child and may not initiate
a new proceeding to reestablish her rights. 	See Utah Code Ann.
§ 78-3a-413(1) (2002). 	Thus, applying a liberalized version of
the requirements for a rule 59(a)(4) motion in this case is not a
matter of mere procedural convenience, but greatly expands a
terminated parent’s substantive right to challenge the
termination. 	Although we have no occasion to either affirm or
overrule the In re J.P. decision, we hold that where the court of
appeals’ stated justification for relaxing the rule 59(a)(4)
requirements is absent, the court of appeals erred in concluding
that principles of horizontal stare decisis required the
application of the relaxed requirement. 5
¶20 	Having concluded that the court of appeals erred in
disposing of this case on principles of horizontal stare decisis,
we proceed to determine whether the newly discovered evidence
offered by A.M.K. related to facts in existence at the time of
the hearing. 	So long as the juvenile court considers and makes a
finding in reference to this requirement, that finding will be
reversed only if the court has abused its discretion. 	See T.M.
v. State (State ex rel. L.M.), 2003 UT App 75, ¶ 8, 68 P.3d 276;
Doty v. Town of Cedar Hills, 656 P.2d 993, 995 (Utah 1982).
Although the juvenile court did not explicitly reference this
requirement, it did find that the failed adoption was not “newly
discovered evidence” because it was “a change in circumstances

No. 20060441 	8
for [C.L.] and [D.S.] which occurred after the trial held on
April 26, 2005.” 	From this finding, it is evident that the
juvenile court considered the issue and found that the failed
adoption was a “fact[] occurring subsequent to trial,” rather
than evidence “relat[ing] to facts which were in existence at the
time of trial.” 	In re Disconnection of Certain Territory, 668
P.2d at 549 (internal quotation marks omitted). 	This finding was
not an abuse of discretion.
¶21 	At the termination hearing, the foster mother expressed
a willingness to adopt C.L. and D.S. at some future date. 	After
the hearing, however, the foster mother relinquished custody of
the children and abandoned her plans to adopt. 	A.M.K. argued
before the juvenile court that the subsequent failed adoption was
evidence of facts in existence at the time of the hearing,
specifically, that the foster mother was untruthful in her
testimony and that the children’s placement with the foster
mother was unstable at the time of the hearing.
¶22 	In evaluating A.M.K.’s argument, we seek to clarify the
manner in which a best interests analysis intersects with the
requirement that newly discovered evidence relate to facts in
existence at the time of the hearing. 	In most criminal and civil
cases, a fact-finder dissects a dead body of evidence in an
endeavor to determine what transpired before the trial began. 	In
contrast, a juvenile court judge conducting a best interests
analysis must weigh evidence forecasting future events in order
to predict what course of action will best protect and nurture
the child. 	This special function of the juvenile court presents
unique dilemmas when new hearings are sought upon the
nonoccurrence of future events predicted by testimony at the
hearing. 	The essential question presented by this scenario is
whether the failure of the predicted event or condition
constitutes evidence of a fact in existence at the time of the
hearing, namely, the falsehood or unreliability of the predictive
testimony, or whether it is a fact occurring subsequent to the
hearing.
¶23 	Although no Utah case has directly addressed this
question, it has been addressed in precedent from other
jurisdictions cited by this court. 	In In re Disconnection of
Certain Territory, 668 P.2d at 549, where we adopted the
requirement that newly discovered evidence relate to facts in
existence at the time of trial, we cited two cases addressing
this issue in the context of personal injury claims involving
prospective damages. 	First, we cited Campbell v. American
Foreign S.S. Corp., 116 F.2d 926, 928 (2d Cir. 1941), for the
proposition that in order to avoid interminable litigation,

9 	No. 20060441
posttrial facts could not be used to seek a new trial. 	In re
Disconnection of Certain Territory, 668 P.2d at 549. 	The
language in Campbell relevant to this proposition states, “If it
were ground for a new trial that facts occurring subsequent to
the trial have shown that the expert witnesses made an inaccurate
prophecy of the prospective disability of the plaintiff, the
litigation would never come to an end.” 	116 F.2d at 928.
Second, we cited Rodgers v. Ogg, 416 P.2d 594, 596-97 (Ariz.
1966), overruled on other grounds by US West Commc’ns, Inc. v.
Ariz. Dep’t of Revenue, 14 P.3d 292, 295 (Ariz. 2000), for this
same proposition. 	In re Disconnection of Certain Territory, 668
P.2d at 549. 	In the Rodgers case, the Arizona Supreme Court
similarly reasoned:
The courts, upon considerations of public
policy, as a rule are not favorable to the
granting of new trials on newly discovered
evidence claiming to show a changed condition
subsequent to trial, which, as has been said,
“may tend to imperil the security of
judgments, may lead to interminable delay in
arriving at definite determinations in
actions, [and] may be productive of
multitudinous and exasperating applications
for new trials in cases, particularly where
verdicts rest in any degree upon expert
evidence as to future resultant conditions
reasonably to be apprehended.”
416 P.2d at 596-97 (quoting Woods v. Ky. Traction & Terminal Co.,
65 S.W.2d 961, 964 (Ky. 1933)); accord Fowler-Propst v. Dattilo,
807 P.2d 757, 760 (N.M. Ct. App. 1991) (“Both parties know that
their expert testimony may be proved wrong by subsequent events.
Yet neither expects a favorable damage award to be set aside when
future events show that the prediction was inaccurate. 	Such
adjustments could go on indefinitely, leading to multiple
reopening [sic] of a single case. 	Parties take their chances
based on the information existing at the time of trial.”).
¶24 	This court echoed these policy concerns regarding the
finality of judgments and adopted language nearly identical to
that found in Campbell when we held that “[a] motion for a new
trial or amended judgment cannot be based on facts occurring
subsequent to trial. 	If the rule were otherwise, there would be
no end to litigation.” 	In re Disconnection of Certain Territory,
668 P.2d at 549 (citations omitted). 	Viewing this statement in
the context of the precedent we cited when making it, we conclude
that future developments relating to predictive testimony given

No. 20060441 	10
at trial are facts occurring subsequent to trial and therefore
may not constitute a basis for a rule 59(a)(4) motion for a new
trial. 	Only direct evidence of intentional fraud or perjury at
trial is sufficient to meet this requirement in such situations.
See Campbell, 116 F.2d at 928.
¶25 	The policy concerns we have expressed regarding the
potential for interminable litigation are perhaps even more
pressing in the context of a best interests determination for a
child. 	In order to determine what is in a child’s best
interests, the juvenile court must weigh testimony that predicts
the constantly shifting future status of both the biological
parent and the child’s potential placement. 	If biological
parents were able to relitigate the best interests issue every
time a future fact or condition varied from a prediction at a
hearing, no child could be truly secure in a future placement or
adoption.
CONCLUSION
¶26 	We reverse the court of appeals and affirm the juvenile
court in denying a new hearing under rule 59(a)(4). 	The juvenile
court did not abuse its discretion in finding that the failed
adoption was a fact occurring subsequent to the hearing and
therefore did not constitute newly discovered evidence.
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¶27 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.