Can photographing a child's genitals constitute neglect in Utah? In re A.S. Explained

The Utah Court of Appeals recently addressed whether a parent’s conduct in photographing a child’s genitals can constitute neglect under Utah’s child welfare statutes in In re A.S., 2024 UTApp 52.

Background and Facts

The case involved Mother and Father engaged in an ongoing and contentious custody dispute following their 2018 divorce. DCFS filed a petition alleging the children were neglected. Based on stipulated facts, the evidence showed Mother had taken photographs of her daughter J.S.’s genitals “before and after” visits with Father, telling a nurse she was “documenting what [J.S.’s] genitals looked like before and after parent-time with her father.” Medical professionals expressed substantial concerns about repeated photography of a child’s genitals, noting it could undermine messaging about privacy and potentially desensitize the child.

Key Legal Issues

The court addressed two primary issues: (1) whether there was clear and convincing evidence that Mother actually took the photographs, and (2) whether such conduct constituted neglect under Utah Code section 80-1-102(58)(a)(ii), which defines neglect as “action or inaction causing … lack of proper parental care of a child by reason of the fault or habits of the parent.”

Court’s Analysis and Holding

The court applied a correctness standard since the findings were based on stipulated facts. Regarding the evidentiary question, the court found Mother’s admission to the nurse, combined with the specificity of her statements and her failure to deny the allegations, provided sufficient evidence. On the neglect issue, the court held that “proper parental care” incorporates notions of reasonableness and appropriateness. The court distinguished this case from situations where parents legitimately suspect abuse and involve trained professionals, concluding that photographing a child’s genitals for “documentation” purposes in a custody dispute falls outside acceptable parenting norms.

Practice Implications

This decision clarifies that parents cannot unilaterally photograph children’s genitals to document their condition during custody disputes without risking neglect findings. The court emphasized that while parents should protect children from suspected abuse, they should involve medical, law enforcement, or other trained professionals rather than taking such photographs themselves. The decision also demonstrates how courts will analyze “proper parental care” by considering reasonableness, appropriateness, and whether conduct falls within ordinary parenting norms.