State ex rel. S.M.

2007 UT 21
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, in the interest No. 20051030
of S.M., K.K., A.K., M.K., M.K.,
J.K., J.K., K.K., M.K., R.K.,
and L.K., persons under eighteen
years of age.
________________________________
Office of the Guardian ad Litem,
Appellant,
v.
F I L E D
H.M.,
Appellee. February 23, 2007
---
Third District Juvenile, Salt Lake
The Honorable Elizabeth A. Lindsley
No. 919778
Attorneys: Mark L. Shurtleff, Att’y Gen., John M. Peterson,
Carol L. C. Verdoia, Asst. Att’ys Gen., Salt Lake
City for the State
Martha Pierce, Kristin G. Brewer, Anthony Ferdon,
Salt Lake City, for the Office of the Guardian ad
Litem
Gary L. Bell, South Jordan, for H.M.
Daniel Virgil Irvin, Salt Lake City, for J.D.K., S.K.
---
On Certification from the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 The Office of the Guardian ad Litem (“GAL”) appeals
directly from a permanency order by the juvenile court returning
all but two of the eleven children of J.D.K. (“Father”) and H.M.
(“Mother”) to Mother’s custody. The GAL’s appeal presents us

1 S.K.’s name was legally changed to S.M. on April 6, 2005.
For convenience, we refer to her as S.K. throughout this opinion.
No. 20051030 2
with the following issues: (1) whether the permanency order was
final for purposes of appellate review; (2) whether the juvenile
court applied the correct legal standard in deciding whether to
return the children to Mother’s custody; and (3) whether the
juvenile court committed reversible error in applying rule
20A(h)(1) of the Utah Rules of Juvenile Procedure to exclude as
untimely testimony from the GAL’s expert witness, Dr. Goldsmith.
¶2 We conclude, first, that the permanency order returning
the children to Mother’s custody was final for purposes of
appellate review. Second, we agree with the GAL that the
juvenile court was required to apply the safety standard provided
in Utah Code section 78-3a-312(2)(a), but our review of the
record leaves us satisfied that the juvenile court applied the
correct standard. And third, we hold that the juvenile court
misapplied rule 20A(h)(1) of the Utah Rules of Juvenile Procedure
in excluding expert testimony proffered by the GAL, but that the
error was harmless. We therefore affirm the juvenile court.
BACKGROUND
¶3 Mother and Father have eleven children together: S.K.1,
Ke.K., A.K., Ma.K., Me.K., Ja.K., Je.K., Ki.K., Mi.K., R.K., and
L.K. Due to multiple instances of neglect and abuse that need
not be recited here, the State filed an abuse and neglect
petition involving the first ten children of Father and Mother;
and on July 6, 2004, the juvenile court entered an order
adjudicating them abused and neglected children. On August 2,
2004, the juvenile court adjudicated the eleventh child, an
infant girl born to Mother and Father on July 3, 2004, to be a
sibling at risk, bringing her within the juvenile court’s
jurisdiction. The court later added findings regarding Mother’s
involvement in the abuse and neglect in an order dated
February 12, 2005.
¶4 In the course of the proceedings in this case, all of
the children but L.K. were removed. The infant, L.K., remained
with Mother.
¶5 The juvenile court initially set the permanency goal
for all of the children in DCFS custody as reunification with
Mother and ordered reunification services. Reunification
services were later terminated as to A.K. Initially, Mother was
allowed visitation with the children, but visitation was
suspended in February 2005. Reunification services were not

2 Although the twelve-month permanency hearing for S.K. was
originally scheduled for February 22, 2005, the juvenile court
found that a continuance until April was in S.K.’s best
interests.
3 No. 20051030
provided to Father, who had never had physical custody of the
children. The court also put in place a no-contact order between
Father and the children.
I. APRIL PERMANENCY HEARING
¶6 In April 2005, Juvenile Court Judge Andrew Valdez held
a permanency hearing as required by Utah Code section
78-3a-312(1)(a) for all of the children in DCFS custody except
A.K. (the “April Permanency Hearing”).2 In accordance with Utah
Code section 78-3a-312(2)(a), Judge Valdez inquired at the April
Permanency Hearing whether the children could safely be returned
to Mother’s custody. With regard to the children’s safety, Judge
Valdez heard three days of testimony from Mother, the children’s
therapists, and Mother’s therapists that focused in large measure
upon Mother’s acknowledgment of past abuse as it related to her
ability to protect the children from future abuse. The parties
disputed whether Mother had made enough of an acknowledgment of
past abuse and developed sufficient empathy to demonstrate that
the children would be safe in her care. Judge Valdez also
interviewed the children on the record in his chambers with only
the attorneys present.
¶7 At the conclusion of the April Permanency Hearing,
Judge Valdez made an oral ruling, which he revised at a
clarification hearing on April 15, 2005, and entered as a written
order on May 25, 2005. Judge Valdez’s written findings included
the following positive assessments with respect to Mother and the
safety of the children:
2. Based upon the testimony of Ms. Merkley
and Ms. Peters, the therapists for
[Mother], [Mother] has made significant
adjustments with respect to the matters
which led to the removal of the children
from her care.
3. [Mother] has made progress in what this
Court has ordered her to do in terms of
counseling and therapy.
4. The children have expressed that they
desire to return home to live with their

No. 20051030 4
mother . . . and have not expressed any
fear of returning home to live with
their mother.
5. [Mother] has shown marked improvement
and the Court feels that she would be
capable of standing up for either
herself or the children, and that
[Mother] would be capable of protecting
the children.
6. [Mother] has a clean and suitable home
for the children.
¶8 Nevertheless, Judge Valdez also found the following:
7. Returning the children immediately would
not be in their best interests and may
pose substantial risk or detriment to
their emotional well-being based upon
the testimony of their therapists.
8. It is in the best interests of the
children for reunification services to
be extended with respect to [Mother],
and for the children[’s] therapists to
formulate a plan for transitioning them
home without substantial risk or
detriment to their emotional well-being.
9. Initial supervision by a therapist of
the visitation between the children and
[Mother] is necessary to enable any
emotional or behavioral needs of the
children to be addressed which may arise
in either the resumption of contact with
[Mother] or the children’s transition to
her home.
10. It is necessary for the therapists to
formulate a transition plan to address
the children[’s] emotional and
behavioral needs and to address the
order in which the children are to
return home, the length of time needed
for therapeutic assistance in the
transition for each child, and
continuing therapeutic needs for the
family subject to the therapists[’]

5 No. 20051030
recommendations or further orders of
this Court.
He then concluded as a matter of law:
11. Pursuant to Utah Code Ann.
§ 78-3a-312(4)(d), there has been
substantial compliance by [Mother] with
the child and family plan, reunification
with the children is probable within
ninety (90) days, and the extension of
reunification services with respect to
[Mother] is in the children[’s] best
interests.
Judge Valdez ordered a ninety-day extension of reunification
services for Mother, as well as involvement by therapists “to
address any emotional or behavioral issues which may arise in the
transition home.” The order stated, in part,
B. Supervised visitation between [Mother]
and each of the above-named children is
to begin immediately--the first to occur
the weekend of April 15, 16 or 17,
2005--with the purpose of moving towards
extended and unsupervised visitation
and, ultimately, transitioning the
children home by the next hearing date
or sooner, subject to [Mother’s]
continued compliance.
II. JULY PERMANENCY HEARING
¶9 After Judge Valdez extended reunification services at
the April Permanency Hearing but before the case was resolved, he
recused himself because criminal charges had been filed against
his son in connection with an altercation that occurred outside
the courthouse between the son and protestors during the April
Permanency Hearing. Judge Elizabeth Lindsley was assigned to the
case in Judge Valdez’s place and held another permanency hearing
in July 2005 (the “July Permanency Hearing”). Between the two
permanency hearings, visitation between Mother and the children
had resumed, but most of the children were still in their foster
homes. The eldest son, K.K., and one of the other boys, Ja.K.,
had been returned to Mother’s custody. But the eldest child,
S.K., had filed an affidavit and motion to change her permanency
goal from reunification with Mother to permanent custody or
adoption. And A.K.’s permanency goal had been modified to
guardianship with a concurrent goal of adoption.

No. 20051030 6
¶10 The July Permanency Hearing was held on July 18, 21,
and 22, 2005. During this three-day hearing, Judge Lindsley took
evidence from both sides regarding whether it would be safe to
return the children to Mother’s custody. She also took judicial
notice of the transcripts from the April Permanency Hearing. The
children’s therapists, Mother, and Mother’s therapists testified,
and Judge Lindsley interviewed each of the children individually
in her chambers, as Judge Valdez had previously done. Judge
Lindsley’s interviews of the children were recorded and were held
in the presence of counsel. Judge Lindsley also reviewed
affidavits given by S.K. and A.K. and other evidence regarding
events that had occurred between the two permanency hearings.
¶11 As in the April Permanency Hearing, much of the
testimony at the July Permanency Hearing focused on the degree to
which Mother had acknowledged past instances of abuse and the
negative effects that a failure to acknowledge such past
instances would have on the children’s safety. There was also
evidence presented, however, regarding Mother’s behavior since
the April Permanency Hearing and the children’s reactions to the
resumption of visitation with Mother.
¶12 After the July Permanency Hearing, Judge Lindsley made
an oral ruling on August 23, 2005, and then entered a written
“Permanency Order” on October 27, 2005. In the written
permanency order, Judge Lindsley made the following findings:
1. Reasonable efforts have been made by
DCFS to finalize the permanency plan for
the children which has been to return
home. DCFS, Mr. Giles and Mr. Madsen
are to be commended for their efforts.
This finding of fact is made by clear
and convincing evidence.
2. [Mother] is in substantial compliance
with court orders and the service plan.
3. It is safe to return [Ma.K., Me.K.,
Je.K., Ki.K., Mi.K., and R.K.] to the
custody of [Mother], provided family
preservation services are provided to
the family.
4. [Mother] has an appropriate home for the
children.

7 No. 20051030
5. [Mother] has followed through with the
services required of her by the court
and necessary for the return of her
children. These services were different
from the ones that had previously been
provided by DCFS. The special tailoring
of the YWCA group by DCFS and the court,
and the specifics with the peer parent
were above and beyond reasonable.
Mr. Giles and Mr. Madsen worked hard on
this case in providing services to this
family.
Judge Lindsley therefore ordered the following:
1. Custody and guardianship of the
children, with the exception of [S.K.
and A.K.][,] are returned to [Mother].
The children, with the exception of
[S.K. and A.K.][,] shall be returned
forthwith.
2. DCFS shall provide family preservation
services to [Mother] and the children in
her custody. [Mother] and the children
in her custody shall cooperate and
participate in the services. . . .
. . . .
4. [Mother] shall continue to attend and
participate with her classes and
parenting therapy . . . .
. . . .
7. [Father] shall have no contact of any
sort with the children. He is not to
speak, communicate with, or approach the
children. If the children approach him,
he is not to speak to them or any one of
them. [Father and Mother] are
responsible for enforcing this
provision.
¶13 On behalf of all of the children except A.K., S.K., and
Ke.K., the GAL appealed Judge Lindsley’s permanency order to the
court of appeals, which then certified this case to us prior to
final judgment. Before certifying the case to us, however, the

3 Irvin v. State (State ex rel. S.M.), 2006 UT 75, ¶ 6, _
P.3d _.
4 See, e.g., State ex rel. J.H., 2006 UT App 205, ¶ 5, 138
P.3d 70 (“Whether the juvenile court’s actions met the statutory
requirements for a permanency hearing is a question of law that
we review for correctness.”).
5 See, e.g., In re Fox, 2004 UT 20, ¶ 5, 89 P.3d 127 (“This
court generally reviews interpretations of rules for correctness
. . . .”).
No. 20051030 8
court of appeals directed the parties to brief the finality of
the permanency order for purposes of appellate review.
¶14 The GAL maintains that the permanency order was final
because the order granted permanent custody of all of the
children but A.K. and S.K. to Mother. It argues that Judge
Lindsley erred in awarding custody of the children to Mother
because she considered Mother’s “substantial compliance” rather
than the ultimate question of whether the children would be safe
in Mother’s custody. Additionally, the GAL argues that the court
erred by excluding Dr. Goldsmith, an expert witness proffered by
the GAL at the July Permanency Hearing, as untimely under rule
20A(h)(1) of the Utah Rules of Juvenile Procedure because rule
20A(h)(1) applies to “adjudication trials,” not permanency
hearings, and because the exclusion of Dr. Goldsmith’s proffered
testimony regarding the importance of acknowledgment of abuse was
prejudicial and a violation of the children’s due process rights.
We have jurisdiction to hear the GAL’s appeal pursuant to Utah
Code section 78-2-2(3)(b).
STANDARDS OF REVIEW
¶15 Whether an order is final and appealable is an issue
with regard to which this court makes an original determination.3
Whether the juvenile court applied the appropriate legal standard
at the July Permanency Hearing is a question of law that we
review for correctness.4 And whether the juvenile court
correctly applied rule 20A(h)(1) of the Utah Rules of Juvenile
Procedure is a question of law that we review for correctness.5

6 State ex rel. M.W., 2000 UT 79, ¶ 25, 12 P.3d 80.
7 Id. (internal quotation marks omitted).
8 State ex rel. E.M., 922 P.2d 1282, 1284 (Utah Ct. App.
1996) (internal quotation marks omitted).
9 State ex rel. M.W., 2000 UT 79, ¶ 26.
9 No. 20051030
ANALYSIS
I. THE PERMANENCY ORDER AWARDING CUSTODY OF THE CHILDREN TO
MOTHER WAS FINAL AND APPEALABLE
¶16 Before certifying this case to us, the court of appeals
instructed the parties to brief the issue of whether the
permanency order in this case was final for purposes of appellate
review. Inexplicably, Father failed to provide the requested
briefing--even though Father was the party who had initially
raised, in a motion for summary dismissal, the argument that the
permanency order was not final. Both Mother and the GAL briefed
the issue, but they agreed that the order in this case was final
for purposes of appeal. Mother then reversed her position at
oral argument and argued that the order was not final.
¶17 Because this issue is jurisdictional, we address it.
We conclude that permanency orders such as this that terminate
DCFS’s custody of a minor, end reunification services, and return
the minor to the custody of a parent are final for purposes of
appellate review.
¶18 We have said that “[t]he finality of an order in
juvenile proceedings is determined the same way as the finality
of an order in other courts.”6 A final order “is one that ends
the current juvenile proceedings, leaving no question open for
further judicial action.”7 But our inquiry into whether an order
leaves a question open for further judicial action is often
unconcerned with the question of whether the juvenile court’s
jurisdiction over a minor continues beyond its entry of the
order. Because “considerations regarding a child’s welfare are
rarely, if ever, static and because the child’s environment is
constantly evolving,” the juvenile court frequently retains
jurisdiction over cases after some of the issues have been
finally resolved.8 For instance, the juvenile court retains
jurisdiction over a child whose custody is awarded in a neglect
proceeding, but “that does not mean the neglect adjudication is
not final.”9 “[A]n order entered upon disposition of an
adjudicated petition of abuse, neglect or dependency is a final

10 Id. (citations and internal quotation marks omitted).
11 See State ex rel. A.H. v. Mr. & Mrs. H., 716 P.2d 284,
286 (Utah 1986) (holding that an order of temporary custody
pending adjudication of the petition is not final for purposes of
appeal); State ex rel. H.J., 1999 UT App 238, ¶ 27, 986 P.2d 115
(holding that an order denying a motion for temporary custody of
children pending a final disposition or placement is not final);
State ex rel. M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997)
(holding that a shelter hearing order pending adjudication of the
factual allegations of a petition is not final).
12 Utah Code Ann. § 78-3a-312(4)(f) (Supp. 2006).
No. 20051030 10
order on the merits of the petition” because “it ends the current
juvenile proceedings begun by the petition, and is a final
factual determination of the underlying petition.”10 On the
other hand, shelter orders and orders denying motions for
temporary custody of children are not final because they make an
interim determination pending additional proceedings.11
¶19 The October 27, 2005 permanency order from which the
GAL appeals is final and appealable because it terminates the
custody of DCFS and awards custody to Mother--finally
implementing the permanency goal set for the children. In that
permanency order, the court found that all of the children then
in DCFS custody, except A.K. and S.K., would be safe in Mother’s
custody despite the prior abuse and neglect leading to their
removal.
¶20 This is not an interim award of custody pending
additional findings of fact. No further proceedings are
contemplated with regard to the question of whether, given the
record of past problems, the children should be returned to
Mother. Because Father never had physical custody of the
children and has not sought physical custody, outstanding issues
regarding his rights to the children do not affect the finality
of the order awarding custody to Mother. Neither is finality
affected by the juvenile court’s order that the family be
involved in continuing protective services and counseling. The
permanency order at issue is a final determination of Mother’s
custody, and the juvenile court is specifically authorized under
Utah Code section 78-3a-312(4)(f) to exercise its discretion to
order protective services and to make additional orders in the
best interest of the minor when DCFS’s custody of a minor has
been terminated.12

11 No. 20051030
¶21 Because we hold that the permanency order was final and
appealable, we will now proceed to address the remaining two
issues presented by the GAL’s appeal.
II. JUDGE LINDSLEY APPLIED THE CORRECT STANDARD, FINDING AFTER A
LENGTHY PERMANENCY HEARING THAT THE CHILDREN COULD SAFELY BE
RETURNED TO MOTHER’S CUSTODY
¶22 The GAL argues that Judge Lindsley did not apply the
correct legal standard when she returned all of the children
except S.K. and A.K. to Mother’s custody after the July
Permanency Hearing. According to the GAL, Judge Lindsley’s
findings indicate that she was ultimately concerned with whether
Mother was in “substantial compliance” with the requirements
placed on her by the court, rather than with the safety of the
children, the standard provided in Utah Code section
78-3a-312(2)(a). The GAL contends that Judge Lindsley made this
mistake because she misinterpreted Judge Valdez’s findings from
the April Permanency Hearing to contain a determination that the
children would be safe if returned to Mother. The GAL does not
otherwise challenge the juvenile court’s findings of fact and
ultimate conclusion that the children could safely be returned to
Mother’s custody.
¶23 We agree with the GAL that Judge Valdez had not
conclusively determined at the April Permanency Hearing that the
children could safely be returned to Mother. Judge Lindsley was
therefore required to determine in accordance with Utah Code
section 78-3a-312(2)(a) whether the children “may safely be
returned” to Mother. But our review of the record indicates that
Judge Lindsley did in fact focus on the safety of the children
and that she considered Mother’s compliance as it related to the
children’s safety.
¶24 Because the GAL alleges that Judge Lindsley was
confused as to the appropriate standard due to her
misinterpretation of Judge Valdez’s findings associated with the
April Permanency Hearing, we first discuss the April Permanency
Hearing held by Judge Valdez. We then discuss the July
Permanency Hearing held by Judge Lindsley and the resulting
permanency order awarding custody of the children to Mother.
A. At the April Permanency Hearing, Judge Valdez Determined That
Return of the Children to Mother Posed a Risk of Emotional
Detriment Justifying Extension of Reunification Services
¶25 When the court sets a minor’s primary permanency goal
as reunification with a parent and reunification services are
ordered, as in this case, Utah Code section 78-3a-312(1)(a)

13 Utah Code Ann. § 78-3a-312(1)(a) (Supp. 2006).
14 Id. § 78-3a-312(2)(a); State ex rel. J.H., 2006 UT App
205, ¶ 8, 138 P.3d 70.
15 Utah Code Ann. § 78-3a-312(2)(b).
16 Id. § 78-3a-312(4)(a); see also State ex rel. J.H., 2006
UT App 205, ¶ 8 (“[A] permanency hearing requires . . . either a
determination that [a minor] could safely be returned to [the
parent’s] custody or an order terminating reunification services
and setting a final permanency plan for [the minor].” (citing In
re S.K., 1999 UT App 261, ¶ 12 n.5, 987 P.2d 616)).
17 Utah Code Ann. § 78-3a-312(4)(d).
No. 20051030 12
provides that “with regard to a minor who is in the custody of
the [DCFS], a permanency hearing shall be held by the court no
later than 12 months after the original removal of the minor.”13
At the permanency hearing, the juvenile court is required to
determine “whether the minor may safely be returned to the
custody of the minor’s parent.”14 The minor may not be returned
to the parent if return “would create a substantial risk of
detriment to the minor’s physical or emotional well-being.”15
Ultimately, if the juvenile court determines that the minor will
be safe in the parent’s custody, the court returns the minor; but
if the minor is not returned to the parent, the court is
ordinarily required to terminate reunification services and to
“make a final determination regarding whether termination of
parental rights, adoption, or permanent custody and guardianship
is the most appropriate final plan for the minor.”16
¶26 Judge Valdez stated that he was acting in accordance
with these statutory requirements when he held the April
Permanency Hearing. However, rather than returning the children
to Mother’s custody or terminating reunification services, Judge
Valdez used an exception provided in Utah Code section
78-3a-312(4)(d) to extend reunification services for up to ninety
days. Under that exception, in circumstances where the minor
cannot be returned to the parent immediately, “the court may
extend reunification services for no more than 90 days if the
court finds that: (i) there has been substantial compliance with
the child and family plan; (ii) reunification is probable within
that 90-day period; and (iii) the extension is in the best
interest of the minor.”17
¶27 In connection with the April Permanency Hearing, Judge
Valdez explicitly found that “[Mother] has made significant

13 No. 20051030
adjustments with respect to the matters which led to removal of
the children from her care”; that “[t]he children have expressed
that they desire to return home to live with their mother . . .
and have not expressed any fear of returning home to live with
their mother”; that “[Mother] has shown marked improvement and
the Court feels that she would be capable of standing up for
either herself or the children”; and that Mother “has a clean and
suitable home for the children.” However, he also determined
that “[r]eturning the children immediately would not be in their
best interests and may pose substantial risk or detriment to
their emotional well-being based upon the testimony of their
therapists” and that “[i]t is in the best interests of the
children for reunification services to be extended with respect
to [Mother], and for the children[’s] therapists to formulate a
plan for transitioning them home without substantial risk or
detriment to their emotional well-being.” He concluded,
“Pursuant to Utah Code Ann. § 78-3a-312(4)(d), there has been
substantial compliance by [Mother] with the child and family
plan, reunification with the children is probable within ninety
(90) days, and the extension of reunification services with
respect to [Mother] is in the children[’s] best interests.” He
therefore ordered that reunification services be extended for
ninety days; that supervised visitation begin “immediately” “with
the purpose of moving towards extended and unsupervised
visitation and, ultimately, transitioning the children home by
the next hearing date or sooner, subject to [Mother’s] continued
compliance”; and that a therapist be involved to support the
children and address emotional and behavioral issues.
¶28 Read in its entirety, Judge Valdez’s order makes clear
his conclusion that it would not be safe to immediately return
the children to Mother’s custody--but his findings and order
indicate that his remaining concerns stemmed primarily from the
risk of detriment that a hasty transition would present to the
children’s emotional well-being. Judge Valdez apparently
contemplated that the safety of the children would likely be
protected by a gradual transition into Mother’s home, supervised
by a therapist who would be there “to enable any emotional or
behavioral needs of the children to be addressed which may arise
in either the resumption of contact with [Mother] or the
children’s transition to her home.”
B. Judge Lindsley Heard Lengthy Testimony on the Safety
of the Children at the July Permanency Hearing and Reviewed
Transcripts of the April Permanency Hearing Before Returning
the Children to Mother’s Custody
¶29 Because Judge Valdez extended reunification services
rather than making a final permanency order, it became necessary

18 See Utah Code Ann. § 78-3a-311(2)(f)(I) (“If
reunification services are ordered, a permanency hearing shall be
conducted by the court in accordance with Section 78-3a-312 at
the expiration of the time period for reunification services.”).
19 See id. § 78-3a-312(2)(a).
No. 20051030 14
for the juvenile court to hold another permanency hearing at the
expiration of the ninety-day extension.18 At this second
permanency hearing, which, due to Judge Valdez’s recusal, was
held before Judge Lindsley in July, the same standard that Judge
Valdez applied at the April Permanency Hearing was applicable.
Judge Lindsley was required to determine whether the children
could safely be returned to Mother’s custody.19
¶30 Accordingly, at the July Permanency Hearing Judge
Lindsley heard three days of testimony focusing on the safety of
the children in addition to reviewing the transcripts from the
April Permanency Hearing. Judge Lindsley then concluded that,
with the exception of S.K. and A.K., all of the children who had
not already been placed in Mother’s custody could safely be
returned to her custody, “provided family preservation services
are provided to the family.” She therefore returned custody of
all of the children except S.K. and A.K. to Mother.
¶31 Despite Judge Lindsley’s express finding in the
permanency order that the children would be safe in Mother’s
custody, the GAL argues that we should read statements made by
Judge Lindsley in both her oral ruling and the permanency order
as proof that Judge Lindsley improperly substituted an inquiry
into whether Mother was in “substantial compliance” with the
requirements of the child and family plan for an inquiry into the
children’s safety in Mother’s custody. Specifically, the GAL
points to statements made by Judge Lindsley in her oral ruling to
the effect that the July Permanency Hearing had introduced
“nothing new,” that she was going to make the “same findings of
fact as Judge Andrew Valdez,” and that the case previously had
not met any criteria for extension of reunification services past
the April Permanency Hearing. The GAL argues that if Judge
Lindsley truly made the “same findings” as had Judge Valdez, she
would necessarily conclude that it was not safe to return the
children to Mother.
¶32 Additionally, the GAL maintains that because Judge
Valdez found “substantial compliance” and because Judge Lindsley
repeated the finding of “substantial compliance” and stated that
Mother “has followed through with the services required of her by
the court and necessary for the return of her children,” Judge

15 No. 20051030
Lindsley must have erroneously applied a “substantial compliance”
standard rather than the “safety” standard.
¶33 Judge Lindsley’s comments in connection with her oral
ruling do indicate a belief that at the April Permanency Hearing
Judge Valdez should have immediately returned custody of the
children to Mother rather than using the exception in section
78-3a-312(4)(d) to support the children’s transition into
Mother’s home. Nevertheless, Judge Lindsley recognized that
reunification services were extended and that “there was never a
motion for no reunification services.” Upon expiration of the
time set for reunification services, Judge Lindsley therefore
held a permanency hearing in accordance with Utah Code sections
78-3a-111(2)(f) and 78-3a-312.
¶34 Our review of the record from the July Permanency
Hearing and Judge Lindsley’s permanency order leaves us satisfied
that Judge Lindsley was herself ultimately concerned with whether
the children could safely be returned to Mother, as required by
Utah Code section 78-3a-312(2)(a). At the July Permanency
Hearing, the GAL provided extensive testimony on the impact that
return of the children would have on their safety and mental
health. And during that hearing, Judge Lindsley made statements
indicating that she understood that her primary concern was with
the children’s safety.
¶35 In an exchange with counsel on the first day of the
hearing Judge Lindsley stated, “[W]here the focus of this hearing
is whether it’s safe to return the children or not, I think it
would be beneficial for this Court to hear from the children, so
we will need to make arrangements for the children to come to
court.” Later, Judge Lindsley interviewed the children
individually in her chambers on the record and in the presence of
the parties’ counsel. During the interviews, she asked each
child about recent interactions with Mother and about whether the
child felt safe in Mother’s care. For instance, during Judge
Lindsley’s interview with Ja.K., who at that time was already
living with Mother, the following exchange took place:
[Q. by Judge Lindsley] Do you feel like
you’re safe at home?
[A. by Ja.K.] Yeah.
Q. Do you worry about someone hurting you
there?
A. No.

No. 20051030 16
Q. Have you ever worried about people
hurting you at home?
A. No.
Q. What if somebody had come to the house
and was going to hurt you, what would you do?
A. I wouldn’t have to worry about that
because it’s not going to happen.
Q. Okay. Well, let’s say what if, because,
I mean, we always figure we’re safe there but
what if somebody were to come to the house?
A. Um, I don’t know.
Q. Would you call the police?
A. I guess so.
Q. Do you know how to call the police?
A. Yeah.
Q. How?
A. I’m not dumb.
Q. I know you’re not dumb. Do you just call
911 if someone was there to hurt you?
A. Yeah.
Judge Lindsley’s interviews with the other children involved
similar exchanges. Together with the lengthy testimony regarding
the children’s safety at the permanency hearing and Judge
Lindsley’s ultimate finding that the children were safe in
Mother’s custody, these statements by Judge Lindsley demonstrate
that she was indeed ultimately concerned with the children’s
safety.
¶36 Further, the record shows that Judge Lindsley was not
using the term “substantial compliance” as a substitute for the
children’s safety, but as a measurement of Mother’s
acknowledgment of prior abuse and compliance with court orders.
Throughout both the April and July Permanency Hearings, the GAL
argued that Mother had not appropriately acknowledged the prior
abuse and neglect suffered by her children and that without this

17 No. 20051030
acknowledgment the children could not be safe in her care.
Witnesses for the GAL maintained that the children would not be
safe physically because Mother could not empathize with them to
determine when they were unsafe, and they would not be mentally
and emotionally safe because her failure to believe that they
were abused would present problems as to their concept of
reality.
¶37 The true degree of Mother’s acknowledgment was in
dispute, however, with the therapists for the children on one
side arguing that she had not adequately acknowledged the problem
and Mother’s therapists on the other stating that Mother had
indeed acknowledged the past problems, although she was reluctant
to specifically admit those problems because of concerns that
doing so would incriminate her in other legal proceedings.
Mother’s therapists criticized the children’s therapists for
looking specifically for “magic words” and not allowing
visitation in which she could put her professed changes into
practice.
¶38 After hearing this testimony at the April Permanency
Hearing, Judge Valdez made a number of findings of fact
indicating that he had considered this testimony and felt that
the degree of Mother’s acknowledgment was sufficient for the
children’s protection. Judge Valdez found that “[b]ased upon the
testimony of . . . the therapists for [Mother], [Mother] has made
significant adjustments with respect to the matters which led to
the removal of the children from her care”; that “[Mother] has
made progress in what this Court has ordered her to do in terms
of counseling and therapy”; that “[t]he children have expressed
that they desire to return home to live with their mother . . .
and have not expressed any fear of returning home to live with
[her]”; and that “[Mother] has shown marked improvement and the
Court feels that she would be capable of standing up for either
herself or the children, and that [Mother] would be capable of
protecting the children.”
¶39 Judge Valdez’s findings indicate that his concern with
the children’s emotional safety was based on therapist testimony
that an immediate return of the children to Mother--with whom
visitation had previously been suspended--would be emotionally
detrimental. Judge Valdez indicated that he believed
reunification with Mother was likely within ninety days, although
there was no testimony to indicate that Mother would be likely to
make further statements of acknowledgment during that time.
¶40 Because Judge Valdez ordered reunification services and
did not return the children to Mother’s custody, all of the
evidence that was previously considered by Judge Valdez was still

20 See State ex rel. J.J.T., 877 P.2d 161, 163-64 (Utah Ct.
App. 1994) (asserting that because a child’s environment is
constantly evolving, a juvenile court may reweigh previously
considered evidence in light of more recent events).
No. 20051030 18
relevant at the July Permanency Hearing to assessing the
children’s safety. Judge Lindsley was not required to give that
evidence the same weight as Judge Valdez had given it because it
was her prerogative to independently weigh the evidence initially
heard at the April Permanency Hearing in light of the additional
evidence regarding interactions with the children that occurred
between the two permanency hearings.20
¶41 Nevertheless, Judge Lindsley still assigned significant
weight to Judge Valdez’s findings. In reaction to a dispute over
the introduction of evidence regarding the degree of Mother’s
acknowledgment, Judge Lindsley stated as follows:
I have findings from Judge Valdez on what was
found at the permanency hearing, which finds
with regard to substantial compliance, it was
not safe to return the children at that time.
Now I’m looking at is it safe today to return
the children, so if you can link this up, do
it quickly, but I’m not going to rehash
everything that Judge Valdez has previously
found. He has found substantial compliance
by the mother.
¶42 Essentially, although substantial compliance was a
legal conclusion necessary for Judge Valdez to extend
reunification services, Judge Lindsley also considered Judge
Valdez’s finding of substantial compliance to reflect on issues
regarding Mother’s acknowledgment, and she expressed that she was
less interested in retreading the controversy regarding the
degree of Mother’s acknowledgment than in looking at other
indicators of the children’s safety. When Judge Lindsley stated
in connection with her oral ruling that extension of
reunification services had not been warranted at the April
Permanency Hearing and that there was “nothing new” since the
April hearing, it appears that she was expressing her impression
that Judge Valdez had essentially already determined that safety
would be assured by the next permanency hearing when he found
that despite Mother’s failure to make complete acknowledgment she
had substantially complied, that Mother was capable of protecting
the children, and that Mother should get her children back as
long as the transition was facilitated by a therapist and Mother
continued to comply with court orders. Judge Lindsley indicated

21 Gerbich v. Numed, Inc., 1999 UT 37, ¶ 16, 977 P.2d 1205;
accord Utah R. Civ. P. 61; Hardy v. Hardy, 776 P.2d 917, 924-25
(Utah Ct. App. 1989).
19 No. 20051030
that in light of the testimony at the July Permanency Hearing,
the outlook was very similar and that the transition of the
children to Mother’s custody should be completed because the
children were safe.
¶43 In sum, despite Judge Lindsley’s generalized statements
about Judge Valdez’s prior findings, we are convinced that Judge
Lindsley understood that it was her duty to determine whether the
children would be safe if returned to Mother and that she did so
in this case.
III. THE JUVENILE COURT INCORRECTLY APPLIED RULE 20A(h)(1) TO
EXCLUDE DR. GOLDSMITH’S TESTIMONY, BUT THE ERROR WAS HARMLESS
¶44 Finally, we consider the GAL’s argument that the
juvenile court erred in excluding the GAL’s expert witness,
psychologist Dr. Goldsmith, from testifying based on the GAL’s
failure to disclose the witness at least ten days prior to trial
in accordance with rule 20A(h)(1) of the Utah Rules of Juvenile
Procedure. Ordinarily, we will not overturn a trial court ruling
excluding a proffered witness from testifying unless the trial
court “has overreached the broad discretion granted it and
thereby affected [the complaining party’s] substantial rights.”21
As discussed below, we hold that rule 20A(h)(1) does not apply to
permanency hearings and that the court therefore erred in
excluding Dr. Goldsmith’s testimony based on the GAL’s failure to
comply with rule 20A(h)(1). We find that the error was harmless
and not a violation of the children’s due process rights,
however, because Dr. Goldsmith’s testimony regarding the
importance of Mother’s acknowledgment was cumulative of other
testimony from both the April and July Permanency Hearings.
A. The Juvenile Court Erred in Applying Rule 20A(h)(1) of the
Utah Rules of Juvenile Procedure to Exclude Untimely Expert
Testimony at the July Permanency Hearing
¶45 On the first day of the July Permanency Hearing, the
GAL stated to the court that it intended to call “Dr. Goldsmith”
as an expert witness. Later that day, the GAL filed an expert
witness designation as a “courtesy.” Mother objected to
Dr. Goldsmith’s offering testimony, and the juvenile court
excluded it as untimely under rule 20A(h)(1) of the Utah Rules of
Juvenile Procedure. The GAL made a proffer of Dr. Goldsmith’s

22 Utah R. Juv. P. 20A(h).
23 Id. 20A(h)(1) (second emphasis added).
24 Id. (emphasis added).
No. 20051030 20
intended testimony and now appeals the exclusion of his
testimony.
¶46 The GAL maintains that rule 20A(h)(1) of the Utah Rules
of Juvenile Procedure was inapplicable and that the juvenile
court should have instead applied rules 26 and 37 of the Utah
Rules of Civil Procedure and granted a continuance rather than
excluding Dr. Goldsmith’s testimony. In contrast to the
interpretations of the rules offered by the juvenile court and
the GAL, we hold that rule 46 of the Utah Rules of Juvenile
Procedure, not rule 20A(h)(1), applies to discovery of expert
witnesses in permanency hearings.
¶47 Rule 20A(h) of the Utah Rules of Juvenile Procedure
provides for discovery of experts in two types of trials in
juvenile court: “adjudication trials” and “termination of
parental rights trials.”22 In this case, the juvenile court
applied the provision applicable to “adjudication trials,” rule
20A(h)(1), which states as follows:
Adjudication trials. Any person who has been
identified as an expert whose opinions may be
presented at the adjudication trial must be
disclosed by the party intending to present
the witness at least ten days prior to the
trial or hearing unless modified by the
court. If ordered by the court, a summary of
the proposed testimony . . . shall be filed
at the same time.23
While the juvenile court apparently recognized that the
permanency hearing was not an “adjudication trial,” it reasoned
that rule 20A(h)(1) applied to permanency hearings based on the
language mandating that expert testimony must be disclosed “at
least ten days prior to the trial or hearing.”24
¶48 We note, however, that the language “trial or hearing”
in rule 20A(h)(1) is modified by the initial designation of the
provision as one that applies to “[a]djudication trials.” The
“or hearing” language must therefore be taken to refer to an
“adjudication hearing.” This conclusion is supported by a
comparison of the instant language in rule 20A(h)(1) with almost

25 Id. 20A(h)(2) (“Termination of parental rights trials.
Any person who has been identified as an expert whose opinions
may be presented at the termination of parental rights trial must
be disclosed by the party intending to present the witness at
least thirty days prior to the trial or hearing unless modified
by the court.” (second emphasis added)).
26 Compare id. 5(b) (“‘Adjudication’ means a finding by the
court, incorporated in a judgment or decree, that the facts
alleged in the petition have been proved.”), with id. 5(g)
(“‘Petition’ means the document containing the material facts and
allegations upon which the court’s jurisdiction is based.”). See
also Utah Code Ann. § 78-3a-103(1)(b) (Supp. 2006) (giving nearly
identical definition of term “Adjudication” to that offered by
the rules of juvenile procedure).
27 See Utah Code Ann. § 78-3a-310(1) (2002); id.
(continued...)
21 No. 20051030
identical “trial or hearing” language in rule 20A(h)(2), the
provision applicable to “[t]ermination of parental rights
trials.”25 If the reference to a “hearing” in rule 20A(h)(1)
were interpreted to extend the application of rule 20A(h)(1) to
hearings not associated with an “adjudication,” rule 20A(h)(2)
would require similar interpretation and it would be unclear
which provision would be applicable to any particular “hearing.”
We find it more consistent with logic and with the apparent
structure of the statute to interpret the “or hearing” language
in rule 20A(h)(1) as a reference to an “adjudication hearing.”
¶49 A permanency hearing is not an adjudication trial or
hearing to which rule 20A(h)(1) applies, but is instead a type of
disposition hearing to which rule 46 of the Utah Rules of
Juvenile Procedure applies. “Adjudication” is a defined term
both in the Utah Rules of Juvenile Procedure and in related
statutes that refer to “a finding by the court, incorporated in a
judgment or decree, that the facts alleged in the [petition
alleging the court’s jurisdiction] have been proved.”26 In the
context of a juvenile court proceeding based on a petition
alleging abuse or neglect such as this one, an adjudication trial
or hearing is one where the juvenile court determines whether a
minor has been abused or neglected and thus whether the minor
comes within its jurisdiction.
¶50 If the juvenile court finds abuse or neglect at an
adjudication hearing, it then conducts a dispositional hearing
where it may make any disposition authorized by Utah Code section
78-3a-118.27 “Disposition” is defined by the Utah Rules of

27 (...continued)
§ 78-3a-118(2) (Supp. 2006).
28 Utah R. Juv. P. 5(f).
29 State ex rel. B.R., 2006 UT App 354, ¶ 27 n.9, 144 P.3d
231; see Utah Code Ann. § 78-3a-312 (Supp. 1995).
30 See Utah Code Ann. §§ 78-3a-311 to -312 (Supp. 2006).
31 State ex rel. J.H., 2006 UT App 205, ¶ 7, 138 P.3d 70
(internal quotation marks omitted).
32 Utah R. Juv. P. 46(a).
33 Id. 46(b).
No. 20051030 22
Juvenile Procedure to mean “any order of the court, after
adjudication, pursuant to section 78-3a-118.”28 Permanency
hearings are a type of disposition hearing, which in previous
versions of the relevant statutes were called “dispositional
review hearings.”29 Permanency hearings are held after the
initial dispositional hearing in cases where DCFS custody over
the minor is continued at the disposition hearing.30 Permanency
hearings “are designed to end the ‘legal limbo’ for the children
concerned.”31
¶51 In contrast to the specific rules for discovery and
expert witness disclosure in the context of adjudication trials
and termination of parental rights trials, the rule applicable to
disposition hearings is explicitly informal. Rule 46(a) of the
Utah Rules of Juvenile Procedure provides that “[d]isposition
hearings shall be conducted in an informal manner to facilitate
the opportunity for all participants to be heard.”32 Rule 46(b)
further provides:
The court may receive any information that is
relevant to the disposition of the case
including reliable hearsay and opinions.
Counsel for the parties are entitled to
examine under oath the person who prepared
the pre-disposition report if such person is
reasonably available. The parties are
entitled to compulsory process for the
appearance of any person, including character
witnesses, to testify at the hearing.33

34 Utah Code Ann. § 78-3a-312(3) (Supp. 2006).
35 See, e.g., Gerbich v. Numed, Inc., 1999 UT 37, ¶ 16, 977
P.2d 1205 (“This court will overturn a trial court ruling
excluding a proffered witness if the appellant demonstrates that
the trial court has overreached the broad discretion granted it
and thereby affected the appellant’s substantial rights.”).
36 Utah R. Juv. P. 46(a).
37 See, e.g., State ex rel. K.M., 965 P.2d 576, 579 (Utah
Ct. App. 1998) (noting in context of disposition review hearing
that as a matter of due process, a party “must be given a
reasonable opportunity to know the claims of the opposing party
and to meet them” (internal quotation marks omitted)); State ex
rel. W.S., 939 P.2d 196, 202 (Utah Ct. App. 1997) (commenting
that “[n]ot only was it contrary to Rule 46 of the Utah Rules of
Juvenile Procedure to deny appellant the right to testify and
present evidence [at a disposition hearing], it also was a denial
of due process” and holding that “[d]ue process requires that a
parent be given a meaningful opportunity to be heard” (internal
quotation marks omitted)).
23 No. 20051030
¶52 In the context of permanency hearings, the instructions
of rule 46 are modified by Utah Code section 78-3a-312(3), which
mandates, among other things, that in making a determination
regarding whether it is safe to return a minor to the parent’s
custody “the court shall review and consider: . . . (b) any
admissible evidence offered by the minor’s guardian ad litem.”34
¶53 In the absence of strict deadlines for disclosure of
expert testimony like those provided for adjudication trials and
termination of parental rights trials, the juvenile court has
broad discretion to control the conduct and admission of evidence
in disposition hearings.35 But it must abide by the intent
expressed in rule 46 that the hearings be managed informally “to
facilitate the opportunity for all participants to be heard,”36
and it must ensure that the disposition hearing meets the
requirements of due process.37
¶54 As for the permanency hearing in this case, we do not
read the requirement of Utah Code section 78-3a-312(3)(b) that
the juvenile court “review and consider . . . any admissible
evidence offered by the [GAL]” to limit the juvenile court’s
discretion to exclude expert testimony that the GAL, without good
cause, fails to disclose prior to the permanency hearing. We
therefore conclude that the juvenile court had discretion in the

38 830 P.2d 291, 296 (Utah Ct. App. 1992).
39 See Utah R. Juv. P. 2(a) (“When the proceeding involves
neglect, abuse, dependency, permanent deprivation of parental
rights, adoption, status offenses or truancy, the Utah Rules of
Civil Procedure shall apply unless inconsistent with these
rules.” (emphasis added)).
40 See Berrett, 830 P.2d at 294-96 (reasoning that “the
necessary prerequisite to the imposition of a [discovery]
sanction is an order that brings the offender squarely within
possible contempt of court” and holding that “absent an order
creating a judicially imposed deadline, a trial court may not
sanction a party by excluding its witnesses under rule 37(b)(2)”
(citations and internal quotation marks omitted)).
No. 20051030 24
context of the permanency hearing with respect to deciding
whether to admit or exclude Dr. Goldsmith’s expert testimony.
¶55 While the GAL correctly argued in its briefs that the
juvenile court erred in applying rule 20A(h)(1) to permanency
hearings, the GAL erroneously concluded that the juvenile court
should have instead applied rule 26 of the Utah Rules of Civil
Procedure. The GAL argues, based on the court of appeals’
decision in Berrett v. Denver & Rio Grande Western Railroad,38
that the juvenile court erred in excluding Dr. Goldsmith’s
testimony instead of granting a continuance because the juvenile
court had not set a disclosure deadline for the permanency
hearing. In response to the GAL’s arguments, the juvenile court
also cited rule 26’s requirement of a written report as an
alternative ground supporting exclusion of Dr. Goldsmith’s
testimony.
¶56 We note briefly that the provisions for discovery of
expert witnesses in rule 26 of the Utah Rules of Civil Procedure
are inconsistent with the informal nature of disposition and
permanency hearings. Therefore, the expert witness disclosure
provisions of rule 26 and the accompanying discovery sanctions in
rule 37 do not apply in this case.39 Furthermore, the court of
appeals’ decision in Berrett is distinguishable because its
holding that a court cannot sanction a party by excluding a
witness when there is no judicially mandated deadline for
disclosure applies only to courts’ use of exclusion of a witness
as a discovery sanction under rule 37 of the Utah Rules of Civil
Procedure.40 Thus, we hold that the juvenile court should have
applied only rule 46 of the Utah Rules of Juvenile Procedure and
exercised its discretion in determining whether Dr. Goldsmith’s
testimony should have been excluded from the permanency hearing.

41 Rehn v. Rehn, 1999 UT App 41, ¶ 28, 974 P.2d 306; Utah R.
Civ. P. 61.
42 Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 100, 82 P.3d
1076 (internal quotation marks omitted).
25 No. 20051030
¶57 We do not reach the question of whether the juvenile
court abused its discretion in this case, however, because in
applying rule 20A(h)(1) of the rules of juvenile procedure the
juvenile court appeared to believe that exclusion was mandated
rather than subject to the court’s exercise of discretion. We
therefore treat the juvenile court’s exclusion of Dr. Goldsmith’s
testimony as error. As we will now discuss, however, the error
was harmless.
B. Dr. Goldsmith’s Testimony Was Cumulative and
Its Exclusion Was Harmless and Not a Violation of Due Process
¶58 When a trial court errs in excluding evidence, “no new
trial . . . is warranted, unless the error affected a substantial
right of the party.”41 “An error is harmful if it is reasonably
likely that the error affected the outcome of the proceedings.”42
According to the GAL’s proffer, Dr. Goldsmith is a child
psychologist with training regarding chronic abuse and neglect
who would have testified that parental acknowledgment of abuse is
important to measure change and assure children’s safety; that
change is unlikely in a family where there is a chronic history
of past abuse, neglect, and DCFS intervention; that a parent’s
failure to acknowledge abuse and neglect has detrimental effects
on the children; that Mother’s treatment was superficial; and
that the court should not rely simply on whether the children
indicate that they would feel safe returning because young
children often do not recognize when their needs are not being
met. The evidence that Dr. Goldsmith was prepared to provide
regarding these issues was, however, largely cumulative of
testimony at both the April Permanency Hearing and the July
Permanency Hearing.
¶59 Over the course of both permanency hearings, the
juvenile court heard extensive testimony regarding the importance
of acknowledgment of past abuse and neglect from the doctor who
performed Mother’s psychological evaluation, from the children’s
therapists, and from DCFS worker Curtis Giles. These witnesses
testified that acknowledgment was important as the first step
toward changing a prior pattern of abuse, as well as for the
children’s mental health. Even one of Mother’s therapists,
Bonnie Peters, agreed at the April Permanency Hearing that

No. 20051030 26
“perpetrators must acknowledge their abuse before the family can
begin getting back together.” Yet, at both permanency hearings,
the degree of Mother’s acknowledgment was disputed, with
witnesses for the GAL on one side arguing that Mother’s
statements of acknowledgment were vague and that she continued to
blame others for her problems and with witnesses for Mother on
the other opining that she had adequately accepted
responsibility, made the commitments necessary for change, and
was now able to empathize with her children.
¶60 As for the other related issues that Dr. Goldsmith
would have addressed if allowed, the juvenile court heard similar
testimony from Dr. Davies and two of the children’s therapists,
Paul Butters and Pamela Mitchell, who testified that a parent’s
failure to acknowledge isolated a child and could lead the child
to question reality and perhaps to psychotic behaviors. It heard
testimony questioning the focus of the treatment programs in
which Mother was enrolled and the lack of a traditional element
of domestic violence treatment. And finally, it heard testimony
from witnesses that children often express a desire to return
home to their parents, even when they have been seriously abused.
¶61 In short, despite hearing substantially similar
testimony to that which Dr. Goldsmith would have offered, the
juvenile court was persuaded that Mother had made sufficient
changes for the children to be returned safely to her custody.
None of the problems raised by Dr. Goldsmith were new or
previously unconsidered by the court, and there was nothing in
Dr. Goldsmith’s proffered testimony to indicate that the court
would be likely to give more weight to these problems than it
gave to them without Dr. Goldsmith’s testimony. We therefore
conclude that although the juvenile court erred in excluding
Dr. Goldsmith’s proffered testimony under rule 20A(h)(1) of the
Utah Rules of Juvenile Procedure, the error was harmless. We
also conclude that, because Dr. Goldsmith’s proffered testimony
was cumulative and the error was harmless, the juvenile court’s
exclusion of Dr. Goldsmith’s testimony did not violate the
children’s due process rights.
CONCLUSION
¶62 In sum, we hold that the July Permanency Order
terminating DCFS’s custody of the children and vesting custody in
Mother was final for purposes of appellate review and that we
therefore have jurisdiction to hear the GAL’s appeal. Further,
our review of the record in this case leaves us satisfied that
the juvenile court applied the safety standard of Utah Code
section 78-3a-312(2)(a) in returning the children to Mother’s
custody and did not erroneously confuse the “safety” standard

27 No. 20051030
with a “substantial compliance” standard. Finally, we hold that
the juvenile court did err in excluding the GAL’s expert witness
Dr. Goldsmith as untimely under rule 20A(h)(1) of the Utah Rules
of Juvenile Procedure, but that the error was harmless and not a
violation of the children’s due process rights because the
testimony was cumulative. We therefore affirm the decision of
the juvenile court to return custody of all of the children but
S.K. and A.K. to Mother.
---
¶63 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.