L.G. v. State

DAVIS, Judge

(concurring in part and dissenting in part):

{17 I concur with the majority's opinion with respect to its interpretation of Utah Code section 78A-6-312(25), to the extent it requires a determination that providing reasonable services would be detrimental to the Children. I dissent, however, as to the result that opinion reaches. Under the facts and circumstances of this case, the juvenile court made more than adequate findings to support that determination. I would exercise this court's power to modify the juvenile court's order accordingly, rather than reverse and remand for further proceedings. See Utah R.App. P. 30(a) ("The court may reverse, affirm, modify, or otherwise dispose of any order or judgment appealed from.").

118 The juvenile court's order touches upon the factors enumerated by subsection (25)(b). The court found that DCFS has been involved in the Children's lives almost continuously since A.T. was barely a toddler and throughout J.B.J.'s entire life. See Utah Code Ann. § 78A-6-812(25)(b)(i) (LexisNexis 2012) (directing the court to consider the age of the children). The juvenile court noted that the Children were raised in a "chaotic environment" in which they were exposed to domestic violence and illegal drug use, prompting its earlier adjudication "that the [Clhildren had ... been chronically neglected by [Mother] due to the prolonged history with DCFS, the recurrence of domestic violence and substance abuse, and criminal activity that resulted in frequent and now prolonged incarceration." See id. § 78A-6-312(25)(b)(v) (requiring the court to consider the nature of the crime). Indeed, Mother "has been incarcerated for the entire course of this case" and, at the time of the juvenile court's order, was not going to be "in a position to ... have custody of the [CJhil-dren" "for at least another six to eight months." - See id. § T8A-6-812(25)(b)(iii) (directing the court to consider the length of the sentence). Further, Mother had not seen the Children since her November 2010 *677incarceration and had written them just two or three letters throughout her prolonged incarceration. See id. § TBA-6-312(25)(b)(ii) (requiring the court to consider the strength of the parent-child bond). Before Mother's prolonged incarceration, DCFS had, over the course of several years, made "[elxtensive efforts ... to facilitate appropriate and necessary services to [Mother] so that she could make necessary changes in her life, including family drug court, substance abuse treatment, drug testing, parenting, etc.," but she returned to her bad behaviors after her case was closed. See id. § TRA-6-812(25)(b)(iv) (directing the court to consider the nature of the treatment). The juvenile court noted that Mother "has had the benefit of previous services on multiple occasions and has failed to make permanent changes in her lifestyle and decision making in order to provide a suitable home for her children." See id.

1 19 The majority nonetheless reverses the juvenile court's decision and remands for further proceedings because the court did not specifically "articulate a decision that it would be detrimental to the Children to order services to Mother," see supro 1% 15-16. I do not believe such an outcome is warranted here. Instead, I would rule that by following the rubric prescribed by subsection (25)(b), the juvenile court's findings necessarily illustrate that it would be detrimental to the Children to order services to Mother. Accordingly, given this court's ability to "modify ... any order or judgment appealed from," Utah R.App. P. 30(a), I would modify the juvenile court's order to make the required determination based on the findings the juvenile court has already made in support thereof.