State Ex Rel. J.M.S.

2010 UT App 326, 246 P.3d 1188, 669 Utah Adv. Rep. 17, 2010 Utah App. LEXIS 326

• Court: Court of Appeals of Utah
• Decided: November 18, 2010
• Docket: No. 20100073-CA
• Status: Published

Opinions

OPINION

DAVIS, Presiding Judge:

1 C.S.S. (Father) appeals from two post-adjudication orders transferring temporary custody of J.R.S. and J.M.S. (the Children) to the Division of Child and Family Services (the Division). We conclude that the subject orders are not final, appealable orders. Accordingly, we lack jurisdiction over the appeal and have only the authority to dismiss it.

BACKGROUND

T 2 In April 2009, the Division filed a Verified Petition for Protective Services (the Petition) alleging that the Children were abused and neglected due to domestic violence between Father and the Children's mother (Mother), Father's history of drug abuse, and a history of substandard and dangerous housing. In May 2009, pursuant to Father's and Mother's stipulation, the juvenile court adjudicated the Petition and found the Children to be abused and neglected. As a result, the juvenile court granted the Division protective supervision over the Children, ordered Mother and Father to enter into a family plan with the Division, and set the matter for further review. At that time, the Children were not removed from the home.

13 At a review hearing on December 3, 2009, the juvenile court found that Father was failing to meet the Children's needs. Specifically, the juvenile court noted the following:

[Father] has not been able to put his needs for a romantic relationship ahead of the needs of [the Children]. He has been asked not to have his girlfriend spend the night in his home, but he does allow her to stay overnight. The [CJhildren go to school unkempt with dirty clothes.... There is an issue with the stove not working properly; the washer is draining out onto the ground and there is a hole in the wall in [J.R.S.]'s bedroom that lets in cold air.... The Division is aware that living conditions are marginal and a decision needs to be made between the [Clhildren's needs and the adults'] needs.

The juvenile court entered an order placing the Children in the custody and guardianship of the Division. The juvenile court then stayed the order (the Stayed Order) on the condition that Father comply with the following:

(1) [Father]'s girlfriend is not to be on his property ... nor be around the children; (2) No dogs are to be in the home; (8) [J.R.S.] is to attend therapy every week; (4) The stove is to be fixed ...; (5) The washer draining to the outside [is] to be fixed ...; (6) The hole in the wall [is] to be fixed....

14 Father failed to comply with the terms of the Stayed Order. Upon learning that Father had been noncompliant, the Division filed a motion to lift the stay and implement placement of the Children in the Division's custody. On January 4, 2010, the juvenile court held a hearing to address the motion to lift the stay. On January 6, 2010, the juvenile court entered findings of fact and an order (the January 6 Order). The juvenile court found that "[Father] either refuses or is incapable of complying with the court's orders to remedy the issues that brought the family into services" and that "[rleasonable efforts have been made by the Division ... to prevent out of home placement ...; however, those efforts ... have been unsuccessful." The juvenile court also found that continued placement in Father's custody would be contrary to the Children's best interests. Accordingly, the juvenile court lifted the stay and implemented the placement of the Children in the temporary custody of the Division. The juvenile court further ordered the Division "to provide a placement update to the court every 7 days ... until the [CJhil-dren are placed" and then set the matter for "[a] Child and Family Plan Review hearing [on] 02-04-2010." ¹

T5 Father subsequently filed an interlocutory appeal regarding the January 6 Order, which this court denied. On January 21, 2010, Father filed a notice of appeal,² which, according to Father, "indicated his intent to appeal from both [the January 6 Order] ... and the ... Stayed Order."³ This court then ordered the parties to brief the issue of whether the Stayed Order and the January 6 Order were final for the purposes of appeal.

ISSUE AND STANDARD OF REVIEW

16 Father appeals the juvenile court's orders on several grounds. However, "Iwlhether subject matter jurisdiction exists is a threshold issue that we must resolve before we may address [Father]'s substantive issues." In re K.F., 2009 UT 4, ¶ 21, 201 P.3d 985. "If we lack jurisdiction, we must dismiss." Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 20, 44 P.3d 663. "The question of whether an order is final and appealable is a question of law." Powell v. Cannon, 2008 UT ¶ 9, 19, 179 P.3d 799 (footnote omitted).

ANALYSIS

17 This court requested that the parties brief the issue of whether the Stayed Order and the January 6 Order are final for the purpose of appeal. It is well settled that an appeal may only be taken from a final order of the juvenile court. See In re A.F., 2007 UT 69, ¶ 2, 167 P.3d 1070; In re T.D.C., 748 P.2d 201, 202 (Utah Ct.App.1988) (mem.).

[T]he finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts. A final order is one that ends the current juvenile proceedings, leaving no question open for further judicial action. The question of whether an order is final and ap-pealable is determined by the substance and effect of the order. In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child. For example, termination of parental rights is final and appealable because it constitutes a change in the child's status in that it changes the child's legal relationship with his or her parents.

In re A.F., 2007 UT 69, ¶ 3, 167 P.3d 1070 (citations and additional internal quotation marks omitted). With this legal framework in mind, we now address whether the subject orders are final for the purpose of appeal.

I. The Stayed Order

18 As a preliminary matter, we note that the juvenile court entered the Stayed Order on December 4, 2009. Father did not file his notice of appeal until January 21, 2010-well past the fifteen-day time limit imposed by rule 52(b) of the Utah Rules of Juvenile Procedure, see Utah R. Juv. P. 52(b) ("Appeals taken from juvenile court orders related to abuse, neglect, dependency, termination and adoption proceedings must be filed within 15 days of the entry of the order appealed from."). Accordingly, even were we to conclude that the Stayed Order was a final, appealable order, we lack jurisdiction to consider the merits of the claims Father makes relating to it.

€ 9 However, because this court specifically requested that the parties brief the issue, we address whether the Stayed Order is a final order. We conclude that it is not. First, the Stayed Order did not effectuate a permanent change in the Children's legal status vis-a-vis Father. See generally In re A.F., 2007 UT 69, ¶ 3, 167 P.3d 1070 (stating that an order is final when "it effects a change in the permanent status of the child"). Secondly, by its terms, the Stayed Order did not end the current juvenile proceedings but, rather, ordered the removal of the Children from Father's home and then stayed enforcement thereof so long as Father met certain conditions. The juvenile court set the matter for further review at a later date, at which time the court determined that Father had failed to comply with the terms of the order⁴ Accordingly, the Stayed Order is not a final, appealable order. Cf. Francisconi v. Hall, 2008 UT App 166U, para. 6, 2008 WL 1971336 (mem.) (concluding that a stayed order "did not end[ ] the controversy between the litigants" and was therefore not a final order (alteration in original) (internal quotation marks omitted)).

II. The January 6 Order

T10 Father argues that "(inasmuch as the January 4, 2010 hearing acted as an adjudication of the removal, the [January 6 Order] is final." See generally In re SA.K., 2008 UT App 87, ¶ 13, 67 P.3d 1037 ("An adjudication order is one such judgment that we have found to be final for purposes of appeal."). Moreover, Father contends that "Lf the finality of [the January 6 Order] is not recognized ... then a parent is necessarily deprived of their right to appeal the matter." See generally In re K.F., 2009 UT 4, ¶ 42, 201 P.3d 985 (noting that the subject order there "must be considered final for matters of appealability; otherwise, the mother may never have an opportunity to appeal this order"). For the following reasons, Father's arguments are unavailing.

I 11 First, contrary to Father's contention otherwise, the January 4, 2010 hearing and the January 6 Order did not constitute an adjudication of the neglect petition. Rather, Father and Mother stipulated to adjudication of the neglect petition in May 2009. Accordingly, any right Father had to appeal attached to the May 2009 adjudication order.⁵

1 12 Second, even if an order lifting a stay were otherwise final and appealable, whether the January 6 Order is final for the purpose of appeal turns on whether it constitutes a permanent change in the Children's status in that it changes their legal relationship with Father. See In re K.F., 2009 UT 4, ¶ 88, 201 P.3d 985. Here, Father's parental rights have not been terminated, see generally In re A.F., 2007 UT 69, ¶ 3, 167 P.3d 1070 ("[Tler-mination of parental rights is final and ap-pealable because it constitutes a change in the child's status in that it changes the child's legal relationship with his or her parents."), and there has been no other permanent change in the Children's legal status. The mere fact that the Children were removed from Father's custody, on a temporary basis, does not indicate finality for the purposes of appeal. See In re MV., 937 P.2d 1049, 1051 (Utah Ct.App.1997) (holding that a shelter hearing order is not final and appealable). Rather, the Division has only temporary custody of the Children and further judicial proceedings are required to determine their ultimate placement. Moreover, Father still has the chanee to regain custody if he complies with the juvenile court's orders. Indeed, since entry of the January 6 Order, the juvenile court has continued to revisit the case pursuant to its ongoing disposition jurisdiction. In fact, as recently as February 2010, Father was apparently seeking reunification with the Children. For the foregoing reasons, we conclude that the January 6 Order is not final and appealable.

CONCLUSION

(183 We conclude that the Stayed Order and the January 6 Order are not final, ap-pealable orders. Where an appeal is not taken from a final order, we lack jurisdiction to hear it and must dismiss the appeal. See Bradbury v. Valencia, 2000 UT 50, ¶¶ 8-9, 5 P.3d 649. Dismissed.

{14 I CONCUR: GREGORY K. ORME, Judge.

1 . Since the entry of the January 6 Order, the juvenile court has continued to revisit the matter. Most recently, Father filed a Motion and Memorandum For [Father's Girlfriend] to Reside on Father's Property. In February 2010, the juvenile court denied the motion "while reunification is the goal." The juvenile court then noted, "If [Father] wishes to terminate reunification, [the court willl reconsider."

2 . Although captioned as an "amended" notice of appeal, this notice of appeal is the only one that has been filed in the case.

3 . The notice of appeal states, "Notice is hereby given that [Father] ... appeals to the Utah Court of Appeals the Minutes, Findings, and Order of the Honorable Mary L. Manley entered in this matter on January 6, 2010." At the end of this sentence, Father's counsel added the following language by hand, referencing the Stayed Order: "and the Review and Order entered December 4, 2009."

4 . We note that it would have been improper for the juvenile court to order the removal of the Children merely as a "sanction" against Father for his failure to comply with the court's orders. Cf. In re A.R., 1999 UT 43, ¶ 18, 982 P.2d 73 ("Although parents may suffer a severe detriment in losing temporary or permanent custody of their children, punishment of the parents is not the purpose of the proceeding. A child is never removed from a home as a 'punishment' to the parent."). But despite Father's implied claim to the contrary, there is no indication in the record that such occurred here.

5 . Not surprisingly, having just stipulated to it, Father chose not to appeal the May 2009 adjudication order.