N.F. v. G.F.

2013 UT App 281, 316 P.3d 944, 748 Utah Adv. Rep. 29, 2013 WL 6115601, 2013 Utah App. LEXIS 276
CourtCourt of Appeals of Utah
DecidedNovember 21, 2013
DocketNo. 20120641-CA
StatusPublished
Cited by8 cases

This text of 2013 UT App 281 (N.F. v. G.F.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.F. v. G.F., 2013 UT App 281, 316 P.3d 944, 748 Utah Adv. Rep. 29, 2013 WL 6115601, 2013 Utah App. LEXIS 276 (Utah Ct. App. 2013).

Opinion

Opinion

BILLINGS, Senior Judge:

11 G.F. (Grandmother) appeals the entry of a protective order against her, which was requested by N.F. (Mother) on behalf of her daughter (Child). We do not reach Grandmother's claims, however, because we determine that they are now moot and do not fit either of the argued exceptions to the mootness doctrine. Thus, we dismiss Grandmother's appeal.

BACKGROUND

12 In November 2011, Child told Mother that Grandmother, her paternal grandmother, had sexually abused her. Mother reported Child's statements to authorities and then filed a petition for an ex parte child protective order in February 2012. After Grandmother responded and the trial court held hearings on the matter, the trial court issued a protective order in July 2012. Grandmother filed a notice of appeal that same month, contesting the judgment and order underlying the issuance of the protective order.

T 3 Shortly before the protective order was set to expire in December 2012, and while this appeal was pending, Mother moved to extend the protective order. The trial court extended the order on a temporary basis and held an evidentiary hearing in March 2018, but ultimately denied Mother's motion to extend the protective order. Consequently, the protective order expired on March 18, 2013.

[946]*9461 4 Mother subsequently filed a suggestion of mootness with this court, seeking dismissal of the appeal and an award of attorney fees. Grandmother responded, arguing that her issues are not moot and that, even if they were, certain exceptions allow this court to consider those issues nonetheless. This court refused to dismiss the appeal at the time but allowed the parties to include their mootness-related arguments within their briefs on appeal. We now address those arguments.

ISSUES AND STANDARDS OF REVIEW

15 Before we can address the issues Grandmother raises in her appeal, we must address Mother's contention that the appeal is moot. This is because "[where the issues that were before the trial court no longer exist, the appellate court will not review the case." In re Adoption of L.O., 2012 UT 23, ¶ 8, 282 P.3d 977 (citation and internal quotation marks omitted). Since we determine that the issues raised on appeal are indeed moot, we do not address Grandmother's arguments of error on their merits.

T6 We also address Mother's various requests for an award of attorney fees on appeal. Under rule 88 of the Utah Rules of Appellate Procedure, "if the court determines that a motion made or appeal taken under these rules is either frivolous or for delay, it shall award just damages." Utah R.App. P. 33(a) (emphasis added). However, the decision of whether to award attorney fees due to briefing violations is in the court's discretion. See id. R. 24(k) ("Briefs which are not in compliance may be disregarded or stricken, on motion or sua sponte by the court, and the court may assess attorney fees against the offending lawyer.").

ANALYSIS

I. Mootness

T7 "A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants." Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989). Certainly the issues raised here are moot. The protective order that Grandmother contests ultimately expired on March 18, 2018. Thus, the relief she seeks in challenging the order will no longer affect her rights. However, there are certain narrow exceptions that allow an appellate court to consider moot issues. Grandmother argues that two of these exceptions apply.

A. Public Interest Exception

18 Grandmother first invokes what she refers to as the "public interest exception."2 This "exception to the mootness doctrine arises when the case [1] presents an issue that affects the public interest, [2] is likely to recur, and [8] because of the brief time that any one litigant is affected, is capable of evading review." - In re Adoption of L.O., 2012 UT 23, ¶ 9, 282 P.3d 977 (alterations in original) (citation and internal quotation marks omitted).

19 As to the first requirement, Grandmother argues that the issue here goes to "the validity or construction of a statute," which is a type of claim affecting the public interest, see Barnett v. Adams, 2012 UT App 6, ¶ 11, 273 P.3d 378 (citation and internal quotation marks omitted). We disagree. We are not persuaded that the issue Grandmother raises is truly a challenge to the trial court's construction of a statute. Grandmother argues that the trial court misinterpreted Utah Code section 78B-7-208 and allowed any possibility of future abuse to satisfy a finding of Child being "in imminent danger of being abused," see Utah Code Ann. § 78B-7-2083(5) (LexisNexis 2012). We conclude that the trial court made no such broad interpretation. The trial court's finding was based, rather, on the unique facts of the case. The trial court acknowledged Mother's ad[947]*947mission that "[Child's] parents can adequately protect her against any potential harm from [Grandmother]." However, the court noted that this admission was made when an ex parte protective order was in place, protecting Child from contact with Grandmother, and that the parents' ability to protect Child was due to the order then in place. Thus, the admission was not given much weight on the question of whether Child was then in imminent danger of abuse that required the entry of a protective order. The trial court specifically stated that it was considering "the likelihood that the abuse would continue in the future if an order is not issued," (emphasis added), and we do not see that the court found fimminent danger based on the existence of any possibility of future abuse.

{10 We are also unconvinced that the second requirement for the public interest exception is met here. Under this requirement, the claim raised must be " "likely to recur in a similar manner' " in future cases. See Barnett, 2012 UT App 6, ¶ 12, 273 P.3d 378 (quoting Anderson v. Taylor, 2006 UT 79, ¶ 10, 149 P.3d 352). As explained above, the decision of the trial court is dependent on a unique combination of the factual cireum-stances of the case, including the admission regarding the parents' ability to protect Child, the existence of the ex parte protective order and the timing of its expiration, the issues caused by the parents' pending divoree, the age and vulnerability of Child, and the extensive and severe abuse allegations. Because the factual underpinnings of each child abuse case are different and because such facts are necessarily the basis of the trial court's determination of whether a child is in imminent danger of being abused, the issues of which Grandmother complains are not likely to be raised in a similar manner in other future cases. Cf. Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256, 1265 n. 14 (2006) ("[Alithough the defendant claims numerous due process and statutory violations, his pro se brief filed before the Appellate Court indicates that they all are rooted in the trial court's exercise of its discretion with respect to the facts of these particular cases, and his brief to this court, filed by counsel, does not indicate otherwise.

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Bluebook (online)
2013 UT App 281, 316 P.3d 944, 748 Utah Adv. Rep. 29, 2013 WL 6115601, 2013 Utah App. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nf-v-gf-utahctapp-2013.