State of Utah, in the interest of H.M.

Annotate this Case
R.S. v. State. Filed August 26, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of H.M., a person under eighteen years of age.
_____________________________

R.S.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981376-CA

F I L E D
August 26, 1999
  1999 UT App 248 -----

Third District Juvenile, Salt Lake Department
The Honorable Andrew Valdez

Attorneys:
William B. Parsons III, Salt Lake City, for Appellant
Jan Graham and John Peterson, Salt Lake City, for Appellee
Martha Pierce and Karen Flynn, Salt Lake City, Guardians Ad Litem

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Before Judges Greenwood, Bench, and Orme.

PER CURIAM:

R.S. appeals an order denying a petition for restoration of custody pursuant to Utah Code Ann. § 78-3a-903 (Supp. 1998).

Utah Code Ann. § 78-3a-903(1) (Supp. 1998) allows a parent whose legal custody has been transferred by the court "to petition the court for restoration of custody . . . on the ground that a change in circumstances has occurred which requires such modification or revocation in the best interest of the minor or the public." However, if the court, on a preliminary investigation, "finds that the alleged change of circumstance, if proved, would not affect the decree, it may dismiss the petition." Utah Code Ann. § 78-3a-903(2) (Supp. 1998). The only issue before this court on appeal is whether the juvenile court erred in finding the alleged change in circumstances, if proved, would not justify a custody change.

On July 22, 1996, the parties entered into a Stipulation to Modify Prior Orders setting forth conditions to allow a 90-day trial placement of H.M. with R.S. The stipulation, as approved by the court, contained prerequisites to placement of H.M. and the conditions under which the placement would continue. Findings that R.S. failed to comply with one or more of the agreements set forth in the stipulation and that such failure was not reasonable would result in removal of H.M. without further hearing.

The juvenile court ruled R.S. had failed to comply with two conditions and that the failure was not reasonable. Accordingly, in April of 1997, the court denied R.S.'s first petition for restoration of custody, granted permanent custody of H.M. to her foster parents, terminated DCFS involvement, and granted R.S. supervised visitation. R.S. did not appeal from this permanent custody order, but filed a second petition for return of custody in July of 1997. The juvenile court characterized the second petition as a request for reconsideration of the former custody order and denied this petition in February of 1998. R.S. again did not appeal.

The third petition for restoration of custody, which is the subject of this appeal, repeated arguments based upon facts predating the permanent custody order, which had previously been considered and ruled upon, and criticized actions of the Guardian ad Litem and foster parents. R.S. has consistently failed to address the effect of prior proceedings in this case, including her failure to appeal from the original permanent custody order. R.S. did not allege a change of circumstances occurring after entry of the permanent custody order that, if proved, would justify vacating the custody order. See Utah Code Ann. 78-3a-903(1). Accordingly, the court did not err in summarily denying the third petition for restoration of custody under section 78-3a-903(2). The contention that this case resulted in a de facto termination of parental rights is without merit, having no basis in fact or law.

Accordingly, we affirm.
 
 
 

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Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

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Russell W. Bench, Judge
 
 
 

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Gregory K. Orme, Judge