In re H.S. (A.S. v. State) , 2013 UT App 239 ( 2013 )


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    2013 UT App 239
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH, IN THE INTEREST OF H.S., A PERSON UNDER
    EIGHTEEN YEARS OF AGE.
    A.S.,
    Appellant,
    v.
    STATE OF UTAH,
    Appellee.
    Memorandum Decision
    No. 20120891‐CA
    Filed October 10, 2013
    Fourth District Juvenile Court, Heber City Department
    The Honorable Mary T. Noonan
    No. 1010116
    Mary Ann Hansen, Attorney for Appellant
    John E. Swallow and John M. Peterson, Attorneys
    for Appellee
    Martha Pierce, Guardian ad Litem
    JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
    Decision, in which JUDGES GREGORY K. ORME and
    J. FREDERIC VOROS JR. concurred.
    CHRISTIANSEN, Judge:
    ¶1     A.S. (Mother) appeals from the juvenile court’s permanency
    order granting custody of H.S. (Child) to D.K.W. (Father). Mother
    argues that the court erred in interpreting and applying the
    permanency statute. See Utah Code Ann. § 78A‐6‐314(1)(a), (2)(a)
    (LexisNexis 2012). Mother also appeals the juvenile court’s denial
    of what Mother characterizes as her “custody motion,” arguing that
    In re H.S.
    the court violated her due process rights. We determine that the
    issues Mother raises on appeal are mooted by the parties’
    stipulation. Accordingly, we dismiss Mother’s appeal.
    ¶2     After a hearing on November 4, 2011, based upon Mother’s
    long‐standing substance abuse and also many domestic disputes
    between Mother and Father, the juvenile court ordered that Child
    be removed and placed in the temporary legal custody of the
    Division of Child and Family Services (DCFS). At a disposition
    hearing on January 5, 2012, the juvenile court set the primary
    permanency goal as Child’s reunification with Father and ordered
    DCFS to provide Father with reunification services for a period of
    twelve months. The court did not order reunification services for
    Mother because she had received reunification services in the past
    and because Mother was still struggling to overcome a significant
    prescription drug abuse problem. Mother subsequently filed a
    motion seeking reconsideration of the court’s denial of
    reunification services to her, which motion the court denied. The
    court scheduled several further review hearings, including an
    eleven‐month review hearing scheduled for October 4, 2012, and
    a permanency hearing scheduled for November 1, 2012.
    ¶3     At the October 4 review hearing, the juvenile court found
    that Father had substantially complied with the service plan and all
    other reunification requirements. Accordingly, the court
    terminated DCFS’s custody, granted permanent custody and
    guardianship to Father, and struck the November 1 permanency
    hearing because it was no longer necessary. The court also ordered
    Mother and Father to participate in mediation—scheduled for
    November 5—so Mother and Father could resolve parent‐time
    issues and develop a co‐parenting plan. The court then scheduled
    a hearing for December 20 to review any agreement that might
    emerge from the parents’ mediation.
    ¶4     At the conclusion of mediation, Father and Mother
    stipulated to the following terms:
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    In re H.S.
    1. The parties agree that both parents will [urine
    analysis] test today. If the mother tests positive then
    she will test every 2 weeks until she tests negative
    and her parent time will be supervised. If she, or
    when she, tests negative then her parent time will
    become unsupervised.
    2. The mother will have parent time in alternating
    weekends and on Wednesday evening and holiday
    time as set out in the statutory guidelines.
    3. The parties agree that each parent will have a right
    of first refusal for childcare while the other parent is
    working or unable to care for the child.
    4. The parties agree to joint legal custody with the
    custodial father having the final say, if the parents
    are unable to agree. The mother may bring the matter
    to mediation if there is non‐agreement.
    5. The parties agree to sole physical custody to the
    father subject to the mother’s parent time as set out
    herein.
    6. The parties agree to revisit custody and parent
    time on or about 3 months from this date.
    Following the December 20 review hearing, the juvenile court
    issued an order in which it incorporated Mother and Father’s
    mediated agreement “in its entirety.”
    ¶5     Mother raises two issues on appeal. First, she argues that the
    juvenile court erred in its interpretation and application of the
    permanency statute by not considering Mother’s eligibility for
    physical custody of Child during the October 4 hearing. Second,
    Mother contends that the juvenile court violated her due process
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    In re H.S.
    rights by denying what Mother characterizes as her “custody
    motion.”
    ¶6     Before we can reach the merits of Mother’s claims, we must
    first decide whether her claims are mooted by the mediated
    agreement and December 20 order of the juvenile court.
    “Generally, we will not decide a case that is moot.” In re C.D., 
    2010 UT 66
    , ¶ 11, 
    245 P.3d 724
    . “An appeal is moot if during the
    pendency of the appeal circumstances change so that the
    controversy is eliminated, thereby rendering the relief requested
    impossible or of no legal effect.” In re Adoption of L.O., 
    2012 UT 23
    ,
    ¶ 8, 
    282 P.3d 977
     (citation and internal quotation marks omitted).
    In other words, “[w]here the issues that were before the trial court
    no longer exist, the appellate court will not review the case.” 
    Id.
    ¶7      On October 18, 2012, Mother filed her notice of appeal of the
    juvenile court’s October 4 permanency order. Mother and Father
    then entered into the mediated agreement on November 5.
    Mother’s appeal applies only to the October 4 permanency
    order—not the December 20 review order that incorporated the
    mediated agreement in its entirety. This procedural sequence is
    significant because it illustrates that during the pendency of
    Mother’s appeal, the attendant circumstances changed such that
    the relevant custody “controversy [was] eliminated, thereby
    rendering the relief requested [by Mother] . . . of no legal effect.”
    See 
    id.
     (citation and internal quotation marks omitted).
    ¶8     Mother’s requests for relief on appeal demonstrate her intent
    to obtain physical custody, or some form of physical custody, of
    Child—issues that were resolved during the pendency of this
    appeal through the mediated agreement and the December 20
    order. For example, with respect to her first claim, Mother requests
    that this court “reverse the [p]ermanency [o]rder at issue herein
    and remand with direction to the juvenile court to determine
    permanency of the Child with regard to the Mother” and “further
    direct the juvenile court to consider [certain statutory factors] in
    determining whether a joint physical custody arrangement would
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    In re H.S.
    be appropriate for the Child.” As for her second claim, Mother
    again requests reversal of the permanency order and remand to the
    juvenile court. According to Mother, her “[c]ustody [m]otion
    should have been determined by the [juvenile] court and . . .
    Mother’s progress and efforts to change weighed against . . .
    Father’s progress in determining permanency and custody.” Yet
    Mother voluntarily stipulated to the physical custody and parent‐
    time arrangements in the mediated agreement, which agreement
    was ultimately made binding on Mother through the December 20
    order. “Generally, stipulations are binding on the parties and the
    court. Thus, a stipulation entered into by the parties and accepted
    by the court acts as an estoppel upon the parties thereto and is
    conclusive of all matters necessarily included in the stipulation.”
    Prinsburg State Bank v. Abundo, 
    2012 UT 94
    , ¶ 13, 
    296 P.3d 709
    (citation and internal quotation marks omitted). Indeed, Mother
    agreed “to joint legal custody with the custodial father having the
    final say, if the parents are unable to agree,” and “to sole physical
    custody to the father subject to the mother’s parent time.”
    Therefore, based upon Mother’s agreement, no controversy
    regarding physical custody remains and Mother’s requests for
    relief, if granted by this court, would have no legal effect. See In re
    Adoption of L.O., 
    2012 UT 23
    , ¶ 13.
    ¶9     Our holding is consistent with the Utah Supreme Court’s
    decision in In re Adoption of L.O., 
    2012 UT 23
    , 
    282 P.3d 977
    . In that
    case, the Navajo Nation (the Nation) challenged the state’s
    compliance with certain provisions of the Indian Child Welfare Act
    with respect to L.O., a child who was an enrolled member of the
    Nation. 
    Id.
     ¶¶ 1–2. The Nation moved the juvenile court to transfer
    jurisdiction of the child’s case to the Nation. Id. ¶ 3. The court
    denied the motion, and the Nation appealed. Id. ¶¶ 3–4. During the
    pendency of the appeal, the Nation and the state entered into a
    stipulation whereby the Nation consented to the child’s adoption
    by foster parents. Id. ¶ 5. The supreme court held that the “case
    [was] moot because the Nation’s consent to [the child’s] adoption
    eliminated the controversy.” Id. ¶ 8. Similarly, here, Mother’s
    decision to stipulate to the terms in the mediated agreement, as
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    In re H.S.
    incorporated into the court’s binding December 20 order, took
    place during the pendency of Mother’s appeal and effectively
    eliminated the custody controversy in this case.
    ¶10 Mother argues that her appeal is not moot because she did
    not stipulate to Father’s sole physical custody. She argues that
    because the question of sole physical custody had already been
    decided against her in the juvenile court’s October 4 order, that
    issue could not have been altered by the mediation. Therefore,
    Mother asserts “[i]t would be absurd to think that . . . Mother,
    having submitted herself to court‐ordered mediation on the issue
    of her parent‐time, somehow mooted her appellate issue [of
    physical custody] absent either actions or verbiage amounting to a
    waiver,” and “[i]t is axiomatic that . . . Mother did not have
    discretion to ignore nor stipulate to something that she was already
    court ordered to follow.”
    ¶11 The plain language of the stipulation states that the parties
    “agree to sole physical custody to the father.” Although it is true
    that the court ordered Mother to participate in mediation, nothing
    in the record indicates that Mother was compelled to stipulate to
    any specific terms in the mediation. Indeed, it seems that Mother
    could have participated in the mediation and refused to enter into
    any agreement. Also, her argument that the issue of sole physical
    custody could not have been amended through mediation appears
    unsupported by the record. Mother and DCFS both stated at the
    October 4 hearing that Mother’s physical custody rights may be an
    appropriate issue for mediation. And nothing in the court’s
    October 4 order purported to define the parameters of the
    mediation. The order notes only that mediation was scheduled for
    November 5. Also, though the juvenile court instructed Mother and
    Father at the close of the October 4 hearing that the purpose of the
    mediation was to develop “an appropriate, thoroughly vetted,
    carefully constructed parenting plan,” the court did not state that
    the issue of physical custody could not be addressed during the
    mediation. Indeed, the purpose of the October 4 hearing was to
    review the issue of custody as between DCFS and Father. The
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    In re H.S.
    juvenile court left the issue of Mother’s custodial rights for another
    day. The fact that the court later incorporated the mediated
    agreement “in its entirety,” and thereby substantially modified its
    October 4 order, further suggests that the court would have
    accepted a change to Father’s physical custody rights had Mother
    and Father so agreed.
    ¶12 In conclusion, we hold that both of Mother’s custody claims
    on appeal are moot because Mother voluntarily stipulated to the
    physical and legal custody arrangements in the mediated
    agreement. Accordingly, we need not reach the parties’ other
    arguments on appeal.
    ¶13    Dismissed.
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Document Info

Docket Number: 20120891-CA

Citation Numbers: 2013 UT App 239

Filed Date: 10/10/2013

Precedential Status: Precedential

Modified Date: 12/21/2021