M.W. v. State

THORNE, Judge

(dissenting):

T 7 I respectfully dissent from the majority opinion. I cannot agree with the majority's conclusion that, under these circumstances, the juvenile court acted improperly. Rather, I would conclude that the court acted properly in attempting to accomplish its unstated goal: facilitating the eventual return of A.W. to the family home. The court's decision prevented A.W. from having to choose between returning to a place that she repeatedly and unswervingly asserted was unsafe for her, and self-emancipating (running away) thereby forcing her to fend for herself in extremely risky cireumstances.

[ 8 The juvenile courts are certainly familiar with the nearly 'impossible task of sue-cessfully forcing a seventeen-year-old girl into any placement situation against her will, regardless of the threat of court sanction.¹ Here, instead of attempting to force A.W. into just such a situation, the court decided to assist in resolving the underlying issues that existed within the family, rather than ignore them and present A.W. with a proverbial Hobson's choice:

19 While I acknowledge that the petition did not explicitly allege dependency as one of the causes of action, I also firmly believe that the evidence presented supports the juvenile court's conclusion. The juvenile court's inability to determine whether specific instances of abuse had actually occurred should not be dispositive in this instance, nor should the absence of the term dependency in the petition. After examining the record, I would conclude that the State presented sufficient evidence at the hearing to support a finding of dependency pursuant to Utah Code Ann. § 78-Ba-104(1)(c) (1996 & Supp.2001), as found by the juvenile court. I would also conclude that A.W.'s parents were presented with adequate notice and an opportunity to respond to the facts surrounding the dependency issue, and in fact did so, thereby supporting the State's argument that the parents either expressly or impliedly agreed to try the issue. In drawing this conclusion, it is essential to note that the facts supporting the dependency finding are grounded in the same facts that the parties thoroughly explored in addressing the abuse allegation.

10 The juvenile court found A.W., a seventeen-year-old girl with little or no history of acting out, to be a dependent child, and thus continued the out-of-home placement. The evidence certainly made it clear to the court that a fundamental breakdown in AW .s family unit had occurred when A.W., for reasons as yet unknown, felt it necessary to allege that her father had subjected her to physical abuse. When faced with insufficient evidence to determine whether abuse had occurred, but sufficient evidence to support a finding of dependency, the trial court carefully crafted its order to shield the parents from fault. The juvenile court concluded that a problem existed that might threaten A.W.'s successful reintegration into the family home. Therefore, the court attempted to formulate a solution beneficial to all parties. The court ordered all parties into immediate counseling with the stated purpose being not only to remedy and expedite the short-term placement issue, but also to attempt to further the long-term family relationship.

{11 In my view, the evidence presented clearly supports the juvenile court's conclusion. Without the State's intervention, A.W. was in danger of becoming a homeless child without the proper care of a parent or guardian, thereby satisfying both the spirit and the letter of the statutory requirement. See id.

1 12 I therefore dissent.

1 . See, eg., The National Coalition for the Homeless, Homeless Youth: Fact Sheet #11 (1999), at http://nch.arinet{ youth.himl (April 1999); U.S. Department of Health and Human Services, Division of Family and Youth Services Bureau, Frequently _ Asked - Questions, - at - http:// www.acf.dhhs.gov! programs/fysb/faq.htm (August 3, 2001).