In re D.L.H. (State v. D.L.H.)

2014 UT App 117
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF D.L.H., A PERSON UNDER
EIGHTEEN YEARS OF AGE.
STATE OF UTAH,
Appellee,
v.
D.L.H.,
Appellant.
Opinion
No. 20120890-CA
Filed May 22, 2014
Second District Juvenile Court, Farmington Department
The Honorable Paul F. Iwasaki
No. 1020104
Scott L. Wiggins, Attorney for Appellant
Matthew T. Johnson, Attorney for Appellee1
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JOHN A. PEARCE and SENIOR JUDGE RUSSELL W. BENCH concurred.2
ROTH, Judge:
1. Counsel for the State entered an appearance but chose not to
file a brief.
2. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).

In re D.L.H.
20120890-CA 2 2014 UT App 117
¶1 D.L.H. appeals from the juvenile court’s denial of his
petition for expungement of his juvenile record. We affirm.
BACKGROUND
¶2 In 2009, D.L.H. admitted to allegations of serious child
abuse against three very young children. The juvenile court
committed D.L.H. to juvenile detention for thirty days but
suspended that commitment in favor of probation, which
required D.L.H. to, among other things, submit to psychological
evaluations and attend counseling. At a review hearing in
February 2010, the court set a July completion date for all of
D.L.H.’s probation obligations. D.L.H. performed well enough
on probation that in May, his probation officer recommended
that the court consider terminating probation early: D.L.H. “has
completed his therapy and all obligations to the court” and “has
demonstrated through his behavior that he is no longer in need
of the supervision of the probation department.” On that
recommendation, the juvenile court released D.L.H. from
probation early, terminating its continuing jurisdiction.
¶3 In 2012, after D.L.H. turned eighteen, he petitioned the
juvenile court for expungement of his juvenile record. A person
who was adjudicated as a minor is eligible for expungement of
the juvenile record upon that person’s eighteenth birthday and
the passage of one year since the termination of the juvenile
court’s jurisdiction. Utah Code Ann. § 78A-6-1105(1)(a)
(LexisNexis 2012). At the expungement hearing, D.L.H. testified
that he had successfully completed probation two years before
and had not had any subsequent contact with law enforcement.
In the meantime, he had completed high school and was
attending college. He also held part-time employment. D.L.H.
submitted a report recently prepared by a licensed clinical social
worker (the Report). The Report detailed the conduct for which
D.L.H. had been placed on probation three years earlier and,
based on D.L.H.’s response to treatment and subsequent good
behavior, concluded that, from a clinical perspective, his risk of

In re D.L.H.
20120890-CA 3 2014 UT App 117
recidivism was then as low as it would ever be. Though they had
been notified, none of the victims or their parents appeared at
the expungement hearing or otherwise filed any objection. The
county prosecutor confirmed that D.L.H. had not had any
subsequent contact with law enforcement and that he
understood that the Report predicted a low risk of D.L.H.
repeating his earlier conduct. Ultimately, however, the
prosecutor expressed no opinion and deferred to the juvenile
court judge on whether D.L.H’s record ought to be expunged,
stating, “*W+e’ll just submit it to your honor.”
¶4 The judge denied the petition for expungement. In doing
so, the judge orally explained his reasoning:
Well, first of all, you know, I commend you
for going through your . . . treatment . . . and doing
well in school and those kinds of things; but one of
the things that the Court takes into consideration is
the nature and seriousness of the offense.
In this particular incident, there were three
victims, so we’re talking about multiple victims,
multiple abuses with at least one of the victims,
and we’re talking about very young victims as
well; a one-year-old infant, a two-year-old boy, and
[a third victim] two or three years old.
Given those factors, I’m not going to grant
your petition for expungement. I’m denying that
based upon the . . . serious nature of the offense
and the multiplicity of the offense, and the
multiplicity of the victims. So that will be the order.
Your petition for expungement will be denied.
D.L.H. appeals.

In re D.L.H.
20120890-CA 4 2014 UT App 117
ISSUES AND STANDARDS OF REVIEW
¶5 D.L.H. argues that the juvenile court misinterpreted the
statutory requirements for granting a petition for expungement.
D.L.H. also contends that the juvenile court failed to consider
significant evidence that weighed in favor of granting his
petition. The juvenile court’s “interpretation . . . of a statute is a
question of law that we review for correctness.” In re A.M., 2009
UT App 118, ¶ 6, 208 P.3d 1058 (citation and internal quotation
marks omitted). However, when a juvenile court has properly
interpreted and applied the statute, we will disturb its denial of
an expungement petition only for abuse of discretion. See Utah
Code Ann. § 78A-6-1105(2)(b) (explaining that a juvenile court
may grant a petition for expungement only if “the rehabilitation
of the petitioner has been attained to the satisfaction of the
court”); cf. Horgan v. Sandy City, 2012 UT App 210, ¶ 2, 283 P.3d
1079 (per curiam) (explaining that decisions regarding
expungement of an adult’s record of arrest, investigation, or
detention will not be set aside unless the district court abuses its
broad discretion).
ANALYSIS
¶6 The Juvenile Court Act (the Act) permits “*a+ person who
has been adjudicated” by the juvenile court to “petition the court
for the expungement of the person’s juvenile court record” once
he or she “reach*es+ 18 years of age” and at least “one year has
elapsed from the date of termination of the [juvenile court’s+
continuing jurisdiction.” Utah Code Ann. § 78A-6-1105(1)(a).
Once a petition has been filed, the court must notify the county
attorney as well as any victims and provide them an opportunity
to testify at a hearing on the petition. Id. § 78A-6-1105(1)(f)(i)(B),
(f)(ii), (2)(a). The Act then sets out what the court must consider
in deciding whether to grant the petition:
In deciding whether to grant a petition for
expungement, the court shall consider whether the
rehabilitation of the person has been attained to the

In re D.L.H.
20120890-CA 5 2014 UT App 117
satisfaction of the court, taking into consideration
the petitioner’s response to programs and
treatment, the petitioner’s behavior subsequent to
adjudication, and the nature and seriousness of the
conduct.
Id. § 78A-6-1105(2)(b).
I. Interpretation of the Statute
¶7 D.L.H. first asserts that the juvenile court misinterpreted
the provision of the expungement statute that identifies the
factors the court must consider in determining whether an
expungement ought to be granted. Specifically, D.L.H. contends
that the court erred in giving more weight to the third factor—
“the nature and seriousness of the conduct”—than the other two
because, according to D.L.H., “*t+he evident intent of the statute
is that the juvenile court . . . consider each of these specifically
stated elements or factors . . . [without giving] any one element
or factor . . . greater weight than any of the other elements or
factors.”
¶8 When interpreting a statute, our first goal is to give effect
to the statute’s plain language. Baird v. Baird, 2014 UT 8, ¶ 36, 322
P.3d 728. In doing so, we “presume that the legislature used each
word advisedly and read each term according to its ordinary
and accepted meaning.” In re J.M.S., 2011 UT 75, ¶ 13, 280 P.3d
410.
¶9 The language of the expungement statute suggests that a
juvenile court has considerable discretion: “*I+n deciding
whether to grant a petition for expungement, the court shall
consider whether the rehabilitation of the petitioner has been
attained to the satisfaction of the court . . . .” Utah Code Ann.
§ 78A-6-1105(2)(b) (LexisNexis 2012) (emphasis added); cf.
Black’s Law Dictionary 1398–99 (9th ed. 2009) (defining
“rehabilitation” as “[t]he process of seeking to improve a
criminal’s character and outlook so that he or she can function in
society without committing other crimes”). The expungement

In re D.L.H.
20120890-CA 6 2014 UT App 117
statute then identifies three factors that the court must consider
in making that determination: “the petitioner’s response to
programs and treatment, the petitioner’s behavior subsequent to
adjudication, and the nature and seriousness of the conduct.”
Utah Code Ann. § 78A-6-1105(2)(b). In light of the juvenile
court’s responsibility to determine whether the evidence
demonstrates that petitioner has been rehabilitated “to the
satisfaction of the court,” id., those factors must be subject to
balancing, with each factor being afforded the weight the court
deems appropriate. Cf. State v. Newland, 2010 UT App 380, ¶ 26,
253 P.3d 71 (noting that in applying a balancing test, a court
should consider all of the factors but that the factors are not
necessarily of “mathematically equal importance”); State v.
Perkins, 2014 UT App 60, ¶¶ 19–20, 322 P.3d 1184 (explaining
that while imposition of consecutive sentences requires
consideration of a number of statutory factors, including the
nature of the crime and the number of victims, along with the
history, character, and rehabilitative needs of the defendant, the
court’s “discretion *in balancing those factors+ is not to be
surrendered to a mathematical formula by which numbers of
circumstances rather than weight of circumstances are
determinative” (citation and internal quotation marks omitted)).
¶10 Our conclusion that the expungement statute requires the
juvenile court to weigh and balance the described factors rather
than simply add them up seems compelled by the nature of the
second and third factors. Unlike the first factor—“the petitioner’s
response to programs and treatment,” Utah Code Ann. § 78A-6-
1105(2)(b)—which is usually fixed by the time an expungement
petition is filed, the second factor—“the petitioner’s behavior
subsequent to adjudication,” id.—is dynamic. Thus, in many
circumstances, the weight to be given the second factor in
determining whether a petitioner has been rehabilitated depends
to a significant degree on the passage of time since the juvenile
court’s jurisdiction terminated. For instance, a short period of
good behavior may be less significant than a prolonged one in
assessing a petitioner’s rehabilitation.

In re D.L.H.
20120890-CA 7 2014 UT App 117
¶11 The third factor requires the juvenile court to consider the
“nature and seriousness of the conduct.” Id. To properly take
this factor into account in determining whether the petitioner
has been satisfactorily rehabilitated, the court must consider the
nature of the conduct that originally brought the petitioner
before the court and the likelihood that the petitioner will repeat
the conduct, together with the possible consequences—to
potential victims, among other things—if that conduct is
repeated. Such a judgment necessarily involves weighing some
conduct more heavily than other conduct. For example,
shoplifting is much less serious than conduct involving violence,
and while multiple unlawful acts generally weigh more heavily
than a single misstep, a single serious unlawful act may weigh
more heavily than multiple less serious acts. Yet if all three
factors were of equal weight or of “mathematically equal
importance,” as D.L.H. contends, see Newland, 2010 UT App 380,
¶ 26, then the third factor would have no effect whenever the
first two factors favored expungement. So long as the petitioner
had performed well in his rehabilitation requirements and
remained on good behavior since the adjudication, he or she
must always be granted the request for expungement regardless
of whether the underlying conduct was relatively minor or
extremely serious, as was the case here. And the second and
third factors will often interact because more serious unlawful
conduct may require a longer period of good behavior for the
court to feel assured that rehabilitation has been accomplished.
¶12 Presuming, as we must, that the legislature used each
word of the statute advisedly, we cannot adopt an interpretation
that would require each factor to be weighed equally. Rather, the
statute provides the juvenile court with the flexibility to give
more or less weight to any one factor, provided that the court
considers all three. We therefore conclude that the juvenile court
did not misinterpret the requirements of the expungement
statute by giving the third factor added weight in its decision to
deny D.L.H.’s petition for expungement.

In re D.L.H.
20120890-CA 8 2014 UT App 117
II. Application of the Factors
¶13 Next, D.L.H. asserts that the juvenile court failed to
consider “a substantial amount of evidence pertaining to the
[response to treatment and post-adjudication behavior] factors in
ruling on the Petition for expungement.” To the extent that this
argument depends upon an interpretation of the expungement
statute that requires the juvenile court to weigh each factor
equally, we reject it for the reasons stated in Part I. Based on our
review of the record, we also conclude that the court
appropriately considered the evidence that supported
expungement of D.L.H.’s record in reaching its decision to deny
the expungement petition.
¶14 D.L.H. claims that the juvenile court failed to consider
that his probation ended early due to his excellent progress in
counseling, his completion of all court-ordered obligations, and
his therapist’s opinion that D.L.H. was unlikely to reoffend once
released from court supervision. He also contends that the court
failed to take into account the information in the Report that
demonstrated that D.L.H. had been a model citizen since his
adjudication and D.L.H.’s own testimony that he could be an
even more productive member of society if expungement were
granted. D.L.H. concludes that had the juvenile court
appropriately considered these facts, particularly where there
was no opposition to the expungement by either the prosecutor
or the victims’ families, it must have concluded that
expungement was appropriate.
¶15 The record adequately demonstrates that the juvenile
court was aware of all of these facts. D.L.H. testified at the
expungement hearing that he had “been a good citizen since” his
probation was terminated, finishing high school, starting college,
and maintaining part-time employment. D.L.H. further reported,
and the prosecutor confirmed, that he had not committed any
violations of the law since probation ended. D.L.H. explained
that the Report predicted that he had a low risk for reoffending,
and he specifically asked the court to consider the Report in

In re D.L.H.
20120890-CA 9 2014 UT App 117
response to the judge’s question, “*A+nything else you would
like me to hear or take into consideration?” The court confirmed
that it had a copy of the Report. D.L.H. then encouraged the
court to grant the expungement so that he could “further help
the community” by being “involved with more things.”
Following D.L.H.’s testimony, the court heard from the
prosecutor, who reported that although he was aware that the
Report predicted D.L.H. as low risk for recidivism and that
D.L.H. had been a law-abiding citizen since adjudication, he
would “just submit it” for the court’s consideration without
offering an opinion or recommendation. The juvenile court itself
then commended D.L.H. on his successful and productive
lifestyle since he was placed on probation in 2009.
¶16 Despite all of this information, however, the juvenile
court concluded that D.L.H. had not demonstrated to the court’s
satisfaction that D.L.H.’s “rehabilitation . . . ha*d+ been attained.”
See Utah Code Ann. § 78A-6-1105(2)(b) (LexisNexis 2012). The
court cited the “serious nature of the offense*s+,” the “multiple
victims, multiple abuses,” and young ages of the victims as
reasons for denying the expungement that outweighed the other
factors. It is implicit in the court’s ruling that the court was not
yet sufficiently assured that there was not still a risk (even if a
low one) that D.L.H. would repeat his behavior against children,
particularly when his unlawful conduct had been against those
whose age made them particularly vulnerable and less likely to
be able to report what had occurred. And that concern is not
without reason because once expungement is granted, many
significant safeguards—the record of D.L.H.’s admissions and
adjudication as well as any obligations he might have to give
such information to an employer who asks, for example—
vanish. See id. § 78A-6-1105(2)(c) (allowing the court to “order
sealed the petitioner’s records under the control of the juvenile
court [and other agencies] . . . pertaining to the petitioner’s
adjudicated juvenile court cases”); id. § 78A-6-1105(4) (“Upon
entry of the *expungement+, the proceedings in the petitioner’s
case shall be considered never to have occurred and the
petitioner may properly reply accordingly . . . .”). And though

In re D.L.H.
20120890-CA 10 2014 UT App 117
the risk of recidivism may be relatively low, the potential harm if
the conduct recurs is very high due to “the nature and
seriousness of *D.L.H.’s prior+ conduct.” See id. § 78A-6-
1105(2)(b). Because the court had evidence of each of the factors
before it, we conclude that its decision to deny expungement
was not an abuse of discretion but involved a reasoned weighing
and balancing of the statutory factors. Cf. State v. Perkins, 2014
UT App 60, ¶ 20, 322 P.3d 1184 (explaining, in the context of
reviewing a trial court’s sentencing decision for abuse of
discretion, that “*s+imply because mitigating factors were
ultimately outweighed by aggravating factors does not indicate
inadequate consideration”).
¶17 D.L.H. contends that because he has responded as well as
he possibly could, denial of the petition to expunge his juvenile
record does not promote the Juvenile Court Act’s goals to
“promote public safety and individual accountability by the
imposition of appropriate sanctions” without “charg*ing a
minor+ with a crime,” see Utah Code Ann. § 78A-6-102(5)(a); id.
§ 78A-6-116(3), and to “rehabilitat*e+, reeducat*e+, and treat*+”
minors so that they receive the “guidance and control” needed to
“prevent*+ . . . future unlawful conduct” and to “develop* into+
. . . responsible citizens*+,” id. § 78A-6-102(5)(b)–(c). The juvenile
court was not satisfied with D.L.H.’s rehabilitation at this
juncture—only three years after D.L.H.’s admissions to the
conduct and two years after he was released from probation. We
see nothing in the statute that precludes D.L.H. from reapplying
for expungement at a later date. See id. § 78A-6-1105. If D.L.H.’s
model behavior continues, the “behavior subsequent to
adjudication” will likely take on more relative weight in the
juvenile court’s consideration of the three statutory factors.
Whether that will ultimately shift the balance in favor of
expungement at some future date, however, is for the juvenile
court to determine in the exercise of its broad discretion under
the statute.

In re D.L.H.
20120890-CA 11 2014 UT App 117
CONCLUSION
¶18 The juvenile court properly interpreted the expungement
statute. It also appropriately considered all of the available
information relevant to the three factors that must inform its
assessment of whether D.L.H. has been satisfactorily
rehabilitated. We therefore conclude that the court acted within
its discretion in denying the petition for expungement.