State of Utah, Division of Child and Family Services v. Jackson

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah, Division of Child and Family Services,
Petitioner,

v.

The Honorable Joseph Jackson, Fifth Judicial District Juvenile Court, Utah County,
Respondent.

Case No. 981081-CA

F I L E D
(October 29, 1998)
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Seventh District Juvenile, Price Department
The Honorable Joseph E. Jackson

Attorneys:
Jan Graham and Jeffrey Buckner, Salt Lake City, for Petitioner
Brent M. Johnson, Salt Lake City, for Respondent

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Before Judges Wilkins, Jackson, and Orme.

PER CURIAM:

This matter is before the court on a sua sponte motion to summarily dismiss appellant's petition for extraordinary relief pursuant to Utah R. App. P. 37, on the grounds that the issues raised in the petition have been rendered moot. The motion is hereby granted and the petition is dismissed.

Petitioner seeks extraordinary relief from this court in the form of an order reversing the ruling of the Honorable Joseph E. Jackson disqualifying the Honorable Scott N. Johansen from conducting the trial on the petitioner's petition to terminate parental rights in State of Utah in the interest of A.D.W. and A.D.W. Subsequent to the filing of the petition in this court, the trial in the underlying matter was held and the parental rights were terminated.

The focus of a mootness inquiry is whether any requested judicial relief can affect the rights of the litigants. Phillips v. Schwendiman, 802 P.2d 108 (Utah Ct. App. 1990). In the case at hand, the state's challenge to the propriety of Judge Johansen's disqualification was rendered moot when the underlying case went forward under the new judge and the state received the relief sought. Any opinion issued by this court would have no practical effect upon the parties.

Nonetheless, an issue that would ordinarily be deemed moot may be considered by an appellate court if it involves a wrong capable of repetition yet evading review. State ex rel. M.E.C., 933 P.2d 380 (Utah 1997). The petitioner asserts that the issues raised in its petition involve just such a wrong. We agree. Litigation under the Child Welfare Reform Act involves a unique process that intimately involves the judge on a regular basis for an extended period of time. Thus, Rule 63 affidavits regarding disqualification in this context are problematic. However, the problem has been addressed by this court in S.L. v. State of Utah, 349 Utah Adv. Rep. 49 (August 13, 1998). Accordingly, the state's arguments regarding the necessity for an opinion in this matter, despite the mootness of the issues raised, are themselves moot.

Based upon the foregoing, we dismiss the petition.
 

______________________________
Michael J. Wilkins, Associate Presiding Judge
 

______________________________
Norman H. Jackson, Judge
 

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Gregory K. Orme, Judge