J.D.K. v. State (In re S.K.)

J.D.K. v. State (In re S.K.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.K., et al., persons under eighteen years of age.

______________________________

J.D.K.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20050164-CA

Case No. 20050340-CA

F I L E D

(June 3, 2005)

2005 UT App 248

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Third District Juvenile, Salt Lake Department, 919778

The Honorable Andrew A. Valdez

Attorneys: Daniel R. Irvin, Salt Lake City, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce, Kristen G. Brewer, and Anthony Ferdon, Salt Lake City, Guardians Ad Litem

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

J.D.K. appeals orders in the same child welfare proceeding entered on February 14, 2005; April 4, 2005; and April 6, 2005. Because our grounds for disposition are the same in both appeals taken from the February orders and the appeal from the April orders, we consolidate the appeals for purposes of decision.

In an adjudication order entered on June 9, 2004, the juvenile court concluded that the children were within its jurisdiction because they were abused and neglected by J.D.K., and they were neglected by their mother, H.M. On August 2, 2004, the juvenile court entered an adjudication order concluding that a newborn child was also a sibling at risk. J.D.K. did not appeal either adjudication order. See In re E.M., 922 P.2d 1282, 1284 (Utah Ct. App. 1996) (per curiam) (holding that because an adjudication order is a determination on the merits of an abuse or neglect petition, it is final and appealable of right). On February 12, 2005, the juvenile court entered an additional adjudication order concluding that the children were abused, as well as neglected, by H.M.

On January 24, 2005, J.D.K. filed two motions seeking dismissal of the petitions, vacation of all prior orders, disqualification of the Guardian ad Litem, and transfer of all cases to another judge. Although seeking identical relief, one motion was based on alleged conflicts of interest and the other was based on an alleged lack of jurisdiction. On February 14, 2005, the juvenile court denied those motions, along with a motion seeking an expedited transcript, and J.D.K. appealed from those denials. The appeals were consolidated as Case No. 20050164-CA. After filing the notice of appeal in Case No. 20050164-CA, J.D.K. filed another motion in the juvenile court seeking dismissal, vacation of prior orders, disqualification of the Guardian ad Litem, and transfer of the cases to another judge, all based on alleged religious discrimination. In addition, J.D.K. filed a motion seeking to remove some of the children from their foster home, characterized as a "Motion to Move the Children to a Safe Location." Finally, J.D.K. renewed a motion seeking to vacate a protective order preventing contact with the children. The juvenile court denied these motions in orders entered on April 4 and April 6, 2005. The appeals from these orders were assigned Case No. 20050340-CA.

"An appeal may be taken from any order, decree or judgment of the juvenile court." Utah Code Ann. § 78-3a-909(1) (Supp. 2004). Nevertheless, we assess the finality of orders from the juvenile court to determine whether they are appealable as a matter of right or must be pursued through a timely petition for permission to appeal from an interlocutory order under rule 5 of the Utah Rules of Appellate Procedure. See Utah R. App. P. 5. "A final, appealable order is one that ends the current juvenile proceedings, leaving no question open for further judicial action." In re T.D.C., 748 P.2d 201, 202 (Utah Ct. App. 1998). "An order which does not completely determine the rights of the parties, including those of the juvenile child, is merely interlocutory in nature." Id.; see also In re H.J., 1999 UT App 238,¶27, 986 P.2d 115 ("The denial of a motion for temporary custody pending a final disposition or placement of children is not a final, appealable order, because the parties' legal rights and relationships have not been finally determined."). Accordingly, while an adjudication order is final and appealable as "a determination on the merits of the abuse petition," In re E.M., 922 P.2d at 1284, a "shelter hearing order is a temporary order entered pending adjudication of the factual allegations of the petition" and is appealable "only if the appellate court granted a petition to appeal pursuant to [r]ule 5 of the Utah Rules of Appellate Procedure." In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997) (per curiam).

An order denying a motion to dismiss is an interlocutory order because it allows a case to proceed to the next stage and does not constitute a final determination of the parties' legal rights and relationships. Similarly, the order denying a motion to change the foster care placement of the children, the order denying a motion to vacate a protective order pertaining to contact and visitation, and the order denying an expedited transcript are interlocutory orders within the context of an ongoing child welfare proceeding. A party may timely petition for permission to appeal from an interlocutory order under rule 5 of the Utah Rules of Appellate Procedure, and the appellate court has discretion to grant or deny the petition. See Utah R. App. P. 5; see also Utah R. App. P. 52(a) (stating appeals from interlocutory orders in child welfare proceedings are governed by rule 5). J.D.K.'s suggestion that any order denying a claim that the court lacks jurisdiction is immediately appealable is without merit. Although the Guardian ad Litem refers to certification of the orders by the juvenile court and some motions filed by J.D.K. sought certification, there is no language in the orders indicating that the juvenile court intended to certify any of the orders. Even assuming that the juvenile court intended to certify the orders as final for purposes of appeal, none of the orders satisfies the requirement that "the order must be one that would otherwise have been appealable, but for the fact that there are other claims or parties remaining in the trial court." See Utah R. Civ. P. 54(b).

The appeals are not taken from final orders that are appealable as a matter or right, and this court did not receive, or grant, a timely petition for permission to appeal under rule 5 of the Utah Rules of Appellate Procedure. Accordingly, we dismiss the appeals for lack of jurisdiction.

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James Z. Davis, Judge

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Gregory K. Orme, Judge

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I CONCUR IN THE RESULT:

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William A. Thorne Jr., Judge