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

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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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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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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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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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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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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