State of Utah in the interest of S.O.

State v. H.O. (In re S.O.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.O., S.O., and E.O.,
persons under eighteen years of age.

______________________________

State of Utah,
Appellee,

v.

H.O.,
Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020975-CA
 

F I L E D
(May 1, 2003)
 

2003 UT App 130

 

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Third District Juvenile, Tooele Department

The Honorable Charles D. Behrens, Jr.

Attorneys: Julie George, Salt Lake City, for Appellant

Mark L. Shurtleff and Annina M. Mitchell, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Davis, Orme, and Thorne.

PER CURIAM:

This case is before the court on a suggestion of mootness.

This court granted the petition for permission to appeal only "insofar as it raises the issue whether the juvenile court had subject matter jurisdiction under provisions of Part 2 of the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)." See Utah Code Ann. § 78-45c-101 to -318 (2002).(1) However, we stayed the order for thirty days "during which the Third District Juvenile Court shall contact the Superior Court of

Arizona for Mohave County (the Arizona court) to determine whether that court intends to exercise jurisdiction or will decline jurisdiction."

In compliance with the order, the Third District Juvenile Court (the Utah court) contacted the Arizona court that had issued a default divorce decree containing a child custody order. Following the conference, the Utah court issued an order stating, in part:

[The Arizona court] expressed concern that Arizona should maintain jurisdiction if it were determined that [the mother] had left the jurisdiction with the children following the entry of the divorce decree on January 28, 2002. A review of the Arizona file (notice through publication and a default) and the Utah file suggests that [the mother] left Arizona with the children prior to the divorce being entered. Under these circumstances, [the Arizona court] and this Court felt that jurisdiction over the matter was properly with Utah. The Superior court for the State of Arizona refuses to exercise jurisdiction in this matter. Issues pending concerning child custody and safety shall be resolved by the Third District Juvenile Court of Utah.

This court issued a sua sponte suggestion of mootness on the basis that the sole issue in this appeal was rendered moot because the Arizona court declined to exercise jurisdiction.

The children moved from Arizona to Utah with their mother in September of 2001. On January 29, 2002, the Division of Children and Family Services (DCFS) removed the children from their mother's home in Tooele, Utah based upon a petition alleging dependency, neglect, and abuse. On January 28, 2002, one day prior to the removal of the children by DCFS, H.O. obtained a default divorce decree in Arizona awarding him custody of the children. H.O. opposes the suggestion of mootness on grounds that (1) issues regarding personal jurisdiction are not moot, and (2) Arizona's decision to decline jurisdiction is irrelevant to the issue of whether the Utah court erred in denying his motion to dismiss because the Utah court lacked jurisdiction at the time of the shelter hearing.

We limited the grant of discretionary interlocutory review to the issue of subject matter jurisdiction under the UCCJEA, and we did not grant review of H.O.'s claim of lack of personal jurisdiction. H.O asserts that the Utah court was required to dismiss its case based solely upon the existence of the Arizona divorce decree. The Arizona decree at most triggered an obligation on the part of the Utah court to confer with the Arizona court under the UCCJEA to resolve jurisdiction.

Utah Code Ann. § 78-45c-204(1) (2002) states that "[a] court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." If the court exercising emergency jurisdiction becomes aware that a child custody proceeding has been commenced in another state, the court exercising emergency jurisdiction is required to communicate with the court of the other state to "resolve the emergency, protect the safety of the parties and the child and determine a period for the duration of the temporary order." Utah Code Ann. § 78-45c-204(4). Other provisions of the UCCJEA also require a Utah court that has obtained information indicating that child custody proceedings have been previously commenced in another state that would have jurisdiction under provisions similar to the UCCJEA to stay the Utah proceedings, communicate with the court of the other state, and dismiss its proceeding unless the other state agrees that the Utah court is the more appropriate forum. See Utah Code Ann. § 78-45c-206 (2002).

The Arizona court's decision to decline to exercise child custody jurisdiction makes it unnecessary for this court to determine the issues presented by this appeal. Our order granting interlocutory appeal, which required the Utah court to confer with the Arizona court, recognized that Arizona might decline jurisdiction. Regardless of the ultimate resolution of the issues presented by this appeal, the determination by the Arizona court results in Utah becoming the only state with subject matter jurisdiction to determine this child custody proceeding.

Accordingly, we dismiss the appeal as moot and vacate our order granting interlocutory review under rule 5 of the Utah Rules of Appellate Procedure.

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James Z. Davis, Judge

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Gregory K. Orme, Judge

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William A. Thorne Jr., Judge

1. We limited the grant of interlocutory review to the issue of subject matter jurisdiction under the UCCJEA and did not grant interlocutory review of the claim that the juvenile court lacked personal jurisdiction over H.O. This latter issue may be raised in an appeal initiated at the conclusion of the case, although it appears the issue may be governed by In re W.A., 2002 UT 127, 463 Utah Adv. Rep. 13.