T.M. v. State

ORME, Judge

(concurring in part and concurring in the result in part):

131 I concur in part III of the court's opinion. I also concur in the result reached in parts I and II. However, I disagree that appellants failed to meet their marshaling burden. In addition to the nine numbered sentences expressly relied on in challenging the key findings-which sentences include specific references to the testimony of Dr. Hansen and Nurse Carver-appellants set forth nearly seventy numbered sentences in the fact section of their brief, each with a citation to the record or supporting documentation. Some of these sentences admittedly stray from pure marshaling of the evidence in swpport of the findings and instead refer to evidence which does not support the findings and, indeed, even evidence which is not in the record before us. All things considered, however, I believe appellants have adequately marshaled the evidence and fairly put in issue the question of whether the key findings are supported by the evidence.

82 Of course, the question for us is not whether the evidence would support other findings; the question is whether the findings that were made have adequate support in the evidence. The evidence concerning the origin of the child's injuries was very much in dispute and simply could not be reconciled. Some of the evidence would definitely support findings that would exonerate the parents. Other evidence very much incriminates them. It was the incriminating evidence that the trial court accepted. We are in no position to second-guess its underlying eredibility determinations. Given those determinations, there is adequate evidence to support the trial court's findings, and thus I agree our appropriate starting point in this case is the findings. Given those findings, the court's legal conclusions are correct, and its disposition is within the broad range of its discretion, as the main opinion holds.

133 I do wish to make one additional observation. The documentation referred to in footnote 3 of the main opinion seriously undercuts the findings made and the disposition reached. It includes a letter from the Deputy Chief Medical Examiner agreeing with another expert that the injuries, while of mysterious origin, were more consistent with severe diaper rash than inflicted trauma. That letter, and the other items improperly included in an addendum to appellant's brief, were submitted months after the trial court entered its judgment in this case. They are simply not part of the record before us. However, it should be noted that the strictures of procedural rules do not rigidly limit the ability of the trial court to reconsider this case in light of such evidence. See, e.g., In re J.P., 921 P.2d 1012, 1016-17 (Utah Ct.App.1996), cert. denied, 931 P.2d 146 (Utah 1997); In re J.J.T., 877 P.2d 161, 163-64 (Utah Ct.App.1994).

[Tlo effectively determine the best interests of a child, the juvenile court needs continuing jurisdiction, and thus must be "free from the imposition of artificial constraints that serve merely to advance the cause of judicial economy." This principle, coupled with the equitable nature of juvenile court proceedings, supports a less stringent notion of finality.

J.P., 921 P.2d at 1016 (quoting J.J.T., 877 P.2d at 164 ). If, as appears likely, the new evidence suggests that the trial court's conclusions and disposition must, in fairness, be reconsidered, then such reconsideration should occur. However, the forum where *1197 such reconsideration should initially take place is in the trial court, not this court.