In re N.S. , 2019 UT App 151 ( 2019 )

2019 UT App 151THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF N.S.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
C.S.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Opinion
No. 20190555-CA
Filed September 12, 2019
Second District Juvenile Court, Farmington Department
The Honorable Sharon S. Sipes
No. 1172135
Jason B. Richards, Attorney for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and RYAN M. HARRIS.
PER CURIAM:
¶1 C.S. (Father) appeals a disposition order that denied him
reunification services and set a primary permanency goal of
adoption. The Guardian ad Litem (GAL) moves to dismiss this
child welfare appeal, arguing that it is not taken from a final
appealable order. Father opposes dismissal. The State did not
respond to the motion to dismiss, but it filed a response to the
In re N.S.
petition on appeal stating that it disagrees with the GAL’s
position on jurisdiction. 1
¶2 The juvenile court entered an adjudication order on June
19, 2019, which was based upon the Father’s admissions under
rule 34(e) of the Utah Rules of Juvenile Procedure. The juvenile
court placed N.S. in the custody and guardianship of the
Division of Child and Family Services (DCFS) for appropriate
placement, after finding that N.S. was a neglected child as
provided in Utah Code section 78A-6-105(39karent)(a)(iv). See
Utah Code Ann. § 78A-6-105(39)(a)(iv) (LexisNexis Supp. 2019)
(defining “neglect” as “action or inaction causing. . . a child to be
at risk of being neglected or abused because another child in the
same home is neglected or abused”). DCFS prepared a proposed
Child and Family Plan for consideration by the juvenile court
because Father and the child’s mother (Mother) wanted to regain
custody of N.S. and had advised the DCFS caseworker that they
were willing to participate in services to get N.S. back. The
proposed plan outlined possible services for a permanency goal
of reunification and a concurrent goal of adoption.
¶3 At the dispositional hearing held on June 18, 2019, the
juvenile court reviewed the proposed Child and Family Plan
submitted by DCFS and issued a written disposition order that
same day. In that order, the juvenile court found that Father’s
repeated sexual abuse of A.S.—a sibling of N.S.—constituted “a
threat of serious harm” to N.S., “who is a vulnerable female
child residing in the same home.” The juvenile court considered
whether services would be appropriate before ruling that the
“Child and Family Plan is moot” regarding N.S., “in light of the
Court’s order that reunification will not be offered.” On July 2,
1. This disagreement between the State and the GAL is also the
subject of the State’s pending petition for certiorari in In re J.J.,
Case No. 20190571-SC.
20190555-CA 2 2019 UT App 151In re N.S.
2019, Father filed a notice of appeal from the disposition order,
which he incorrectly characterized as terminating juvenile court
jurisdiction over the child welfare case and placing custody of
the child with a relative. On August 2, 2019, the State filed a
petition to terminate Father’s parental rights as a prerequisite to
effectuating the permanency goal of adoption.
¶4 The GAL moved to dismiss this appeal, arguing that a
disposition order denying reunification services and setting a
permanency goal of adoption was not final and appealable. The
GAL notes that Father did not appeal the adjudication order,
which was based upon his rule 34(e) admissions. See Utah R. Juv.
P. 34(e) (providing that a respondent may answer a petition by
neither admitting nor denying the allegations and that any
allegations not specifically denied “shall be deemed true”). The
GAL cites In re A.T., 2015 UT 41, 353 P.3d 131, for the proposition
that a parent may object to the lack of reunification services at
the termination hearing “because the earlier dispositional
hearing was neither final nor appealable.” Id. ¶ 13.
¶5 Father and the State argue that this court has previously
determined that dispositional orders such as the denial of
reunification services for a parent are final and appealable as a
matter of right, citing In re S.A.K., 2003 UT App 87, 67 P.3d 1037.
In In re S.A.K., the juvenile court issued a memorandum decision
finding the child to have been sexually abused. Id. ¶ 5. After a
disposition hearing roughly one month later, the juvenile court
entered an “Adjudication/Disposition Order,” which included
findings that the child was abused and neglected and placed the
child in the custody of relatives. Id. ¶ 6. Mother appealed,
seeking to raise issues regarding the adjudication hearing. Id.
¶ 7. The GAL argued that this court lacked jurisdiction because
Mother failed to timely appeal the earlier adjudication decision.
Id. ¶ 10. This court compared the adjudication and the
disposition in child welfare cases to the conviction and the
sentencing in criminal cases. See id. ¶ 14. “Consequently, an
20190555-CA 3 2019 UT App 151In re N.S.
appeal from a disposition order should be sufficient to allege
errors occurring in the adjudication proceedings, just as an
appeal after sentencing in a criminal case may allege errors in
the trial as well as sentencing.” Id. Thus, this court concluded it
had jurisdiction over Mother’s appeal of a ruling during the
adjudication hearing because she timely filed a notice of appeal
after the disposition hearing order. Id. ¶ 15.
¶6 In our view, this case is factually distinguishable from In
re S.A.K. In In re S.A.K., this court allowed an appeal of the
adjudication based upon a notice of appeal filed after what
appears to have been a combined adjudication and disposition
order. In contrast, Father in this appeal does not challenge the
adjudication, which was based upon his rule 34(e) admissions,
and instead he challenges the subsequent denial of reunification
services and the setting of a permanency goal of adoption at the
disposition hearing.
¶7 Furthermore, after this court’s 2003 decision in In re
S.A.K., the Utah Supreme Court articulated a test for
determining which orders in a child welfare case are final and
appealable as a matter of right. See In re A.F., 2007 UT 69, ¶4, 167
P.3d 1070. An order in a child welfare case is final and
appealable “only if it effects a change in the status of the child.”
Id. An order that does not effect a change in a child’s permanent
status and serves “only as an interim determination made in
anticipation of additional proceedings” is not final and
appealable. Id.; see also In re K.F., 2009 UT 4, ¶¶ 37–42, 201 P.3d
985 (applying test for finality); In re A.T., 2015 UT 41, ¶ 13, 353
P.3d 131 (same). “All other orders may be appealed at the
discretion of the appellate court as interlocutory appeals.” In re
K.F., 2009 UT 4, ¶ 35.
¶8 Applying the case law to the facts of this case, the
disposition order denying reunification services and setting a
permanency goal of adoption is not final and appealable because
20190555-CA 4 2019 UT App 151In re N.S.
it does not effectuate “a permanent change in the child’s status,”
id. ¶ 38, and further proceedings are necessary to effectuate the
goal of adoption, see id. ¶ 39. Father can request reunification
services or demonstrate parental fitness at any time before
termination. See In re A.F., 2007 UT 69, ¶ 8. “A mere change in a
permanency goal or the creation of a ‘final plan’ [does] not affect
the Child’s status in the absence of further action taken to realize
the goal or implement the plan.” Id. ¶ 9; see also In re A.T., 2015
UT 41, ¶ 13 (“In many cases, these hearings result in orders that
merely set a direction for the remainder of the proceedings, and
the parties are still able to regain custody by taking steps to
show fitness and petitioning the court for custody at any time
prior to termination of their parental rights.” (quotation
simplified)).
¶9 Accordingly, we grant the motion to dismiss this appeal
for lack of jurisdiction, without prejudice to a timely appeal
taken from a final appealable order.
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