State of Utah in the interest of S.Y. and Z.Y.

Annotate this Case
State of Utah in the interest of S.Y. and Z.Y., persons under eighteen years of age, Case Nos. 20010558-CA, & 20010619-CA, Filed October 4, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.Y. and Z.Y.,
persons under eighteen years of age.
______________________________

T.Y.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case Nos. 20010558-CA, & 20010619-CA

F I L E D
October 4, 2001 2001 UT App 288 -----

Third District Juvenile, Salt Lake Department
The Honorable Frederic M. Oddone

Attorneys:
Wayne Searle, Midway, for Appellant
Mark L. Shurtleff and John Peterson, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Jackson, Bench, and Thorne.

PER CURIAM:

Appellant filed petitions for permission to appeal from an interlocutory order and notices of appeal in each of the above numbered cases. The State filed both a response in opposition to the petitions for permission to pursue an interlocutory appeal, and a motion to dismiss. We deny the petitions for interlocutory appeal and dismiss the remaining appeals for lack of jurisdiction.

The Utah Rules of Appellate Procedure state that petitions for permission to appeal from the interlocutory order must be filed "with the clerk of the appellate court with jurisdiction over the case within 20 days after the entry of the order of the trial court." Utah R. App. P. 5(a). Petitioner, through counsel, filed her requests for interlocutory appeal of the shelter hearing order in the juvenile court on July 26, 2001, some thirty-six days after the June 20, 2001 entry of the shelter hearing order. Because petitioner filed in the wrong court, the juvenile court transferred the petitions to this court, where they were again untimely filed on July 30, 2001, forty days after the entry of the shelter hearing order. The petitions did not comply with the requirements of Rule 5 because they were filed in the wrong court more than twenty days after the entry of the shelter hearing order. Consequently, in each case, the petitions to appeal from an interlocutory order are denied as untimely.

In case number 20010558-CA, appellant filed a pro se notice of appeal in the juvenile court on June 22, 2001. This notice sought a direct appeal from "the motion to adopt by grandparent." A review of the record indicates that a motion to adopt was never filed or ruled upon in the juvenile court. Therefore, appellant seeks to appeal from a non-existent or non-final order. As appeals may only be taken from final orders, this court lacks jurisdiction and must dismiss this appeal. See Utah R. App. P. 3(a).

On July 26, 2001, appellant, through counsel, also filed a notice of direct appeal in case number 20010619-CA regarding the shelter hearing order entered on June 20, 2001. The State correctly argues that the shelter hearing order is not a final appealable order. This court has previously stated that a shelter hearing order "is not final and appealable as a matter of right." In re M.V., 937 P.2d 1049, 1051 (Utah Ct. App. 1997). Therefore, this appeal is not taken from a final order and must be dismissed for lack of jurisdiction. See Utah R. App. P. 3(a).

The State also requests that this court impose sanctions on petitioner's attorney for the frivolous appeals. Counsel for petitioner did not file a response. As petitioner's counsel has wholly failed to comply with the most basic requirements of the rules of appellate procedure in seeking permission to appeal from an interlocutory order, and because the direct appeals are not taken from final appealable orders, we conclude that petitioner's appeals are frivolous. See Utah R. App. P. 33. We therefore award the State double costs on appeal. Further, the cost award shall be paid solely by petitioner's attorney, and shall not be assessed directly or indirectly against the client.

The petitions for permission to appeal from an interlocutory order are hereby denied as untimely and improperly filed. Further, the State's motion to dismiss for lack of jurisdiction is granted, and the direct appeals are hereby dismissed. The State is awarded double costs on appeal, to be paid by petitioner's attorney. The State may claim the cost award in the trial court pursuant to Rule 34(d) of the Utah Rules of Appellate Procedure.
 
 

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Norman H. Jackson,
Associate Presiding Judge
 

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Russell W. Bench, Judge
 
 

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William A. Thorne, Jr., Judge