A.S. v. State (In re T.S.)

A.S. v. State (In re T.S.)

IN THE UTAH COURT OF APPEALS
 

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

______________________________

A.S.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050295-CA
 

F I L E D
(May 26, 2005)
 

2005 UT App 244

 

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Third District Juvenile, Salt Lake Department, 450825

The Honorable Robert S. Yeates

Attorneys: A.S., Eagle Mountain, Appellant Pro Se

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

Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

    A.S. appeals from the denial of her motion to dismiss for lack of subject matter jurisdiction. The Guardians ad Litem (GAL) and the State move to dismiss the appeal for lack of jurisdiction on the basis that the appeal is not taken from a final, appealable judgment.

    In an order entered on October 12, 2004, the juvenile court concluded that S.S. was neglected by A.S., that T.S. was a sibling at risk of neglect and abuse, and that both children were within the jurisdiction of the juvenile court. A.S. did not file a timely appeal from the pretrial adjudication order.

    On February 22, 2005, A.S. made a motion to dismiss for lack of jurisdiction, contending that the State had no authority under the Utah Constitution to remove the children from her custody. In an order entered on March 16, 2005, the juvenile court stated that A.S. had filed a motion to dismiss, found that "the statute is constitutional," and ruled that "[t]he Motion to Dismiss for Lack of Subject Matter Jurisdiction filed on February 22, 2005 is denied."(1) A.S. filed a "Notice of Intent to Appeal Decision Concerning Lack of Subject Matter Jurisdiction," which challenged the denial of her motion to dismiss.

    The juvenile court's order denying the motion to dismiss is interlocutory because it results in the case proceeding to the next stage. "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) (mem.); see also In re H.J., 1999 UT App 238, 986 P.2d 115, 122 (Utah Ct. App. 1999) (holding a temporary custody order that did not completely resolve grandmother's rights and status was not final and appealable). There may be more than one final and appealable order in a child welfare proceeding; accordingly, an adjudication order constituting "a final determination of the factual allegations" in an abuse or neglect petition is final and appealable. In re E.M., 922 P.2d 1282, 1284 (Utah Ct. App. 1996). Nevertheless, A.S. did not appeal from the October 12, 2004 order adjudicating the neglect petition and concluding that both children were within the jurisdiction of the juvenile court.

    A.S. did not file a timely petition seeking permission to appeal from the interlocutory order denying her motion to dismiss. See Utah R. App. P. 5 (allowing appeal of an interlocutory order if an appellate court grants a petition for permission to appeal filed within twenty days after entry of the trial court's order). Because the appeal is taken from an order that is not final and appealable, we lack jurisdiction to consider it. Having concluded that we lack jurisdiction, we "retain[] only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. A later order on the same subject matter entered on March 28, 2005, failed to repeat the language denying the motion. Based upon the notice of appeal filed by A.S. on March 23, 2005, we conclude that the appeal was taken from the March 16, 2005 order prepared by the court.