Barnett v. Adams , 699 Utah Adv. Rep. 12 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Sean Barnett, ) AMENDED OPINION1
)
Petitioner and Appellee, ) Case No. 20100562‐CA
)
v. ) FILED
) (January 6, 2012 )
Polly Adams, )
) 2012 UT App 6Respondent and Appellant. )
‐‐‐‐‐
Third District Juvenile, Salt Lake Department, 1036546
The Honorable Andrew A. Valdez
Attorneys: Mary Rutledge, Payson, for Appellant
Ezekiel R. Dumke IV, Salt Lake City, for Appellee
Martha Pierce, Salt Lake City, Guardian ad Litem
‐‐‐‐‐
Before Judges Davis, McHugh, and Thorne.
DAVIS, Presiding Judge:
¶1 Polly Adams (Mother) appeals the juvenile court’s grant of Sean Barnett’s
(Father) child protective order petition. We dismiss the appeal because the issues are
moot.
1. This Amended Opinion replaces the Opinion in Case No. 20100562‐CA issued on
December 1, 2011.
BACKGROUND
¶2 Mother and Father are the parents of J.B. (Child). The two parents were never
married to each other. Mother was awarded primary custody of Child in a paternity
case in 2004. Father filed a child protective order petition in the juvenile court on May
26, 2010, based upon Child’s statements to both Father and Child’s school principal that
Mother beat him the previous night and “had been hitting him for a long time.” The
juvenile court granted an ex parte protective order, which gave Father temporary
custody of Child, and set a hearing on the petition for June 10, 2010. See generally Utah
Code Ann. § 78B‐7‐203(1) (Supp. 2011) (“If an ex parte order is granted, the court shall
schedule a hearing within 20 days after the ex parte determination.”). Throughout the
June 10 hearing, the juvenile court posed questions to each party’s counsel and at times
interrupted counsel as they answered. For instance, Mother’s objections were often
interrupted before her counsel could articulate the reasons behind the objection. Her
objections were primarily on hearsay grounds, arguing that the statements in Father’s
protective order petition, the guardian ad litem’s (GAL) statements pertaining to her
interview with Child, and the report created by the Division of Child and Family
Services (DCFS) constituted inadmissible hearsay. Toward the end of the proceeding,
Mother’s counsel repeated these objections, stating, “[T]here is no testimony other than
. . . hearsay . . . .” The juvenile court summarily overruled the objections, agreeing with
the GAL that the hearing was “dispositional in nature and the rules of juvenile
procedure permit hearsay testimony [in dispositional proceedings].” The juvenile court
found that Child was “in imminent danger of abuse” and concluded that it was “not
safe [for him] to return home without instituting some form of protective supervision
services or a safety plan.” The juvenile court granted Father’s petition in a Final
Protective Order against Mother (the protective order). The protective order provided
that Child be “placed in the temporary custody of [Father],” authorized supervised
visitation for Mother, and ordered DCFS “to provide protective supervision services to
the child” and “to establish a safety plan [for Mother and Father to] follow.”2 The
protective order was to expire “150 days from the date of the order,” or on or around
November 10, 2010. Mother filed an appeal from the protective order on July 8, 2010.
2
The protective order also ordered the parties to participate in family counseling.
20100562‐CA 2
ISSUE AND STANDARD OF REVIEW
¶3 Mother appeals the protective order, arguing that the evidence supporting it
consisted entirely of hearsay statements that the juvenile court erred in admitting, that
the protective order was against the clear weight of the admissible evidence, and that
Mother’s due process rights were violated because the juvenile court assumed Father’s
burden of proof by actively questioning the witnesses.
¶4 Before addressing Mother’s arguments, however, we must be satisfied that the
issues raised are not moot or that an exception to the mootness doctrine applies.3 A case
is deemed moot “[i]f the requested judicial relief cannot affect the rights of the
litigants.” H.U.F. v. W.P.W., 2009 UT 10, ¶ 21, 203 P.3d 943 (alteration in original)
(internal quotation marks omitted). “Because mootness is a matter of judicial policy, the
ultimate determination of whether to address an issue that is technically moot rests in
the discretion of this court.” In re C.D., 2010 UT 66, ¶ 13, 245 P.3d 724 (internal
quotation marks omitted). In addition,
[t]he function of appellate courts, like that of courts
generally, is not to give opinions on merely abstract or
theoretical matters, but only to decide actual controversies
injuriously affecting the rights of some party to the litigation,
and it has been held that questions or cases which have
become moot or academic are not a proper subject to review.
McRae v. Jackson, 526 P.2d 1190, 1191 (Utah 1974) (internal quotation marks omitted).
3
The GAL argues that the protective order does not constitute a final, appealable
order because it has been consolidated with a paternity modification proceeding that is
pending, and has possibly been completed, in the district court. Because another panel
of this court denied the GAL’s motion to supplement the record, the record presented
on appeal does not contain any information for us to verify this assertion—not even an
order from the juvenile court transferring the case to the district court or a case number
to confirm that there is in fact an active proceeding in the district court dealing with
issues relevant to this appeal. Accordingly, we do not address the GAL’s finality
argument.
20100562‐CA 3
ANALYSIS
¶5 Here, the protective order against Mother “presumably expired by its own
terms,” Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989) (mem.), on or around
November 10, 2010, and there is no information in the record to indicate it was
continued in effect. Consequently, reversal of the juvenile court’s grant of the
protective order cannot affect Mother’s rights because the protective order, and the
orders and conditions contained therein, should have expired roughly one year ago.
Thus, the issues presented on appeal are moot.
I. Collateral Consequences Exception to Mootness
¶6 Mother argues that we should nonetheless review her mooted claims because the
doctrine of collateral consequences applies.4 We disagree.
¶7 “Where collateral legal consequences may result from an adverse decision, courts
have generally held an issue not moot and rendered a decision on the merits.” In re
Giles, 657 P.2d 285, 286 (Utah 1982) (citing Carafas v. LaVallee, 391 U.S. 234 (1968)); see also
Putman v. Kennedy, 900 A.2d 1256, 1261 (Conn. 2006) (“[T]he court may retain
jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial
collateral consequences will occur . . . .” (omission in original) (internal quotation marks
omitted)). This exception to mootness is generally applied in criminal cases. See In re
Giles, 657 P.2d at 286 (“The doctrine of collateral legal consequences is chiefly applied in
criminal cases where the absence or presence of those consequences may determine a
criminal’s chance of rehabilitation or recidivism.” (citing Sibron v. New York, 392 U.S. 40(1968))); see also Sibron, 392 U.S. at 57 (“[A] criminal case is moot only if it is shown that
there is no possibility that any collateral legal consequences will be imposed on the
basis of the challenged conviction.”); Gardiner v. York, 2010 UT App 108, ¶ 33, 233 P.3d
500 (same), cert. denied, 238 P.3d 443 (Utah 2010). Accordingly, the examples of
collateral consequences that preclude a case from mootness are relatively limited. See,
e.g., In re Giles, 657 P.2d at 286‐87 (applying the collateral consequences exception “to
patients of mental hospitals who face . . . deprivations of liberty [similar to prisoners]
and whose commitment and hospitalization must stand scrutiny on the merits when
4
We denied the GAL’s first motion to dismiss Mother’s appeal on mootness
grounds and requested that the parties brief, “along with all other relevant issues, . . .
the mootness argument raised by the [GAL] and the issue of whether any potential
collateral consequences preclude dismissal on mootness grounds.”
20100562‐CA 4
challenged”); Duran v. Morris, 635 P.2d 43, 45 (Utah 1981) (listing possible collateral
consequences in the criminal law context).
¶8 However, one commonality among the applications of the collateral
consequences doctrine is the need for the consequences complained of to be more than
merely speculative. See, e.g., Spencer v. Kemna, 523 U.S. 1, 14 (1998) (holding that “a
possibility rather than a certainty or even a probability” of suffering a collateral
consequence is insufficient to overcome mootness); Fratis v. Ortiz, 190 F. App’x 686, 688
(10th Cir. 2006) (applying Spencer, 523 U.S. at 14, and holding that collateral
consequences must be shown, not presumed); State v. Moore, 2009 UT App 128, ¶ 17, 210
P.3d 967 (explaining that collateral consequences “will not [be] presume[d]” when a
party has failed to show that the consequences complained of are “actual[ and]
adverse”). Thus, a litigant must show that the collateral consequences complained of
are not merely hypothetical or possible but that they are probable and represent actual
and adverse consequences. See Spencer, 523 U.S. at 14; Moore, 2009 UT App 128, ¶ 17; cf.
Putman, 900 A.2d at 1261‐62 (noting that Connecticut recognizes a diverse array of
collateral consequences, “includ[ing] harm to a defendant’s reputation as a result of the
judgment at issue,” and that a “litigant must show that there is a reasonable possibility
that prejudicial collateral consequences will occur . . . by more than mere conjecture, but
need not demonstrate that these consequences are more probable than not”).
¶9 Assuming without deciding that the collateral consequences doctrine ought to
apply in this civil context, Mother’s alleged collateral consequences are merely
speculative. Specifically, Mother argues that “the juvenile court’s erroneous
adjudication of child abuse” in the protective order prompted Father to file a petition to
modify the Order of Paternity, which resulted in Mother losing primary physical
custody of Child. Additionally, Mother asserts that as a result of this adjudication of
abuse she “is now listed on the management information system [MIS], which listing
legally impairs her right to foster a child, adopt a child, or work with children.”5
5
Utah Code section 62A‐4a‐1003 requires DCFS to maintain a management
information system that contains information regarding the complete history of each
child involved in a child welfare case. See Utah Code Ann. § 62A‐4a‐1003(2) (2011).
Among other things, a child welfare case history filed in the MIS should include “a
record of all reports of abuse or neglect received by the division with regard to that
child’s parent[ or] parents” and indicate the status and findings of those reports. Id.
§ 62A‐4a‐1003(2)(e). This case history is “exclusively for the purposes of foster parent
(continued...)
20100562‐CA 5
Mother, however, does not claim that she has attempted or even plans to exercise “her
right to foster a child, adopt a child, or work with children” or that being listed in the
MIS actually impaired her ability to pursue any of these things.6 She has simply listed
potential legal impairments that generally impact a person listed in the MIS, not injuries
that she has actually suffered or will even likely suffer based on a pending application
to foster, adopt, or work with children, or even based on any expressed intent by
Mother to pursue a foster placement, adoption, or occupation with children.7 Thus,
assuming that the collateral consequences doctrine ought to apply in this instance, “the
hypothetical impact” of Mother’s listing in the MIS “does not create a collateral legal
5
(...continued)
licensure and monitoring.” Id. § 62A‐4a‐1003(2). Additionally, “[w]ith regard to all
child protective services cases, the [MIS] shall: (a) monitor the compliance of each case
with . . . [DCFS] rule and policy . . . and (b) include [identifying information] of the
alleged perpetrator . . . .” Id. § 62A‐4a‐1003(4). The information in the MIS is accessible
within DCFS “upon the approval of the executive director, on a need‐to‐know basis,” id.
§ 62A‐4a‐1003(5), and may be accessible to a limited number of other individuals under
certain circumstances, see id. § 62A‐4a‐1003(6) (noting that DCFS may allow “its contract
providers, court clerks . . . , and the Office of the Guardian Ad Litem to have limited
access to the [MIS]”); id. § 62A‐4a‐1006 (recognizing that the Licensing Information
System, a subsection of the MIS, is accessible outside DCFS, but only for limited
purposes and by specific organizations); see also Devlin v. Smalley, 4 F. Supp. 2d 1315,
1323 (D. Utah 1998) (mem.) (“A few provisions in the Utah Administrative Code require
the Office of Licensing to use the [MIS] database to screen applicants for licensure, but
the provisions do not mandate that the Office of Licensing take any particular action
with respect to the application as a result. The point of the database, as the statute itself
indicates, is to facilitate the sharing of information between departments within [the
Department of Human Services].”).
6
Mother provides no evidence to substantiate her assertion that she is now listed
in the MIS. For purposes of this appeal, we assume that her assertion is accurate.
7
In fact, the record indicates that most of Mother’s work experience has been in
administrative settings, in the food service industry, and in mortgage lending. Notably
absent from the record is any indication that Mother has ever held a position working
with children.
20100562‐CA 6
consequence that prevents the conclusion that [Mother]’s claim is moot.”8 See Moore,
2009 UT App 128, ¶ 14; see also Spencer, 523 U.S. at 14. When a party has not shown the
existence of “actual, adverse collateral consequences[,] . . . we will not presume that
such collateral consequences exist.” Moore, 2009 UT App 128, ¶ 17 (footnote omitted).
Assuming, without deciding, that the collateral consequences doctrine applies in this
civil context, we conclude that collateral consequences do not exist here, and therefore
the exception does not preclude dismissal of Mother’s appeal on mootness grounds.
II. Public Interest Exception to Mootness
¶10 In addition to the collateral consequences exception, we may review a technically
moot claim if we determine that the public interest exception applies. See In re C.D.,
2010 UT 66, ¶ 13, 245 P.3d 724. Retention of a mooted case should occur “only under
exceptional circumstances and where the public interest clearly appears.” McRae v.
Jackson, 526 P.2d 1190, 1191 (Utah 1974). “‘The public interest exception to the mootness
doctrine arises when the case [1] presents an issue that affects the public interest, [2] is
likely to recur, and [3] because of the brief time that any one litigant is affected, is
capable of evading review.’” In re C.D., 2010 UT 66, ¶ 13 (alterations in original)
(additional internal quotation marks omitted) (quoting Ellis v. Swensen, 2000 UT 101,
¶ 26, 16 P.3d 1233). The exception requires satisfaction of all three prongs, as evidenced
by the use of the word “and” in the case law establishing the exception. See id. ¶¶ 13‐15
(using “and” to link the three prongs of the public interest exception together and
dismissing a mooted claim that satisfied the first two requirements of the exception but
did not satisfy the third requirement).
¶11 Here, the primary issues are whether the protective order was supported by
sufficient evidence and whether the hearing was conducted in a proper, constitutional,
manner. Subsidiary to Mother’s evidentiary challenge is her assertion that hearsay
evidence was improperly admitted and relied on by the juvenile court. Regarding the
sufficiency challenge, we do not believe the specific factual arguments challenging the
basis upon which this particular protective order was granted “present[] an issue that
affects the public interest,” see id. ¶ 13 (internal quotation marks omitted). Indeed,
8
Additionally, the GAL asserts that since filing this appeal, Mother has
voluntarily relinquished her parental rights in a district court proceeding. Although the
record provided on appeal does not indicate whether Mother has actually voluntarily
relinquished her parental rights, if she has, such a result further undermines Mother’s
collateral consequences argument.
20100562‐CA 7
“[t]he issues of which the courts frequently retain jurisdiction because of the public
interest involved, although the immediate issues may have become moot, are class
actions, questions of constitutional interpretation, issues as to the validity or
construction of a statute, or the propriety of administrative rulings.” McRae, 526 P.2d at
1191; see also Ellis, 2000 UT 101, ¶ 28 (determining that a mooted claim that does “not
involve a class action, a question of constitutional interpretation, or an issue as to the
validity or construction of a statute . . . does not present an issue that affects the public
interest”). Mother’s challenge to the factual basis of the protective order does not fall
within any of those categories, and we are unconvinced that the issue otherwise
presents an “exceptional circumstance[] . . . where the public interest clearly appears,”
see McRae, 526 P.2d at 1191. Accordingly, Mother’s evidentiary claims fail to meet the
public interest exception to mootness.9 Cf. Mortenson v. Turley, 2009 UT App 67U, para.
5 n.3 (mem.) (noting that the public interest exception did not apply to a party’s mooted
appeal of the juvenile court’s dismissal of a child protective order petition because the
“factual determination” underlying the denial of the petition did not “fall[] within the
exception to the mootness doctrine”).
¶12 Similarly, we are not convinced that Mother’s constitutional challenge satisfies
the recurrence prong of the public interest exception. The Child Protective Order
statute, see generally Utah Code Ann. §§ 78B‐7‐201 to ‐207 (2008 & Supp. 2011), and the
Rules of Juvenile Procedure provide substantial guidance to the juvenile court
regarding the manner in which child protective order proceedings ought to be
conducted. Even if the juvenile court deviated from these procedures in the instant
case, we are not convinced that the same issue “is likely to recur in a similar manner,”
see Anderson v. Taylor, 2006 UT 79, ¶ 10, 149 P.3d 352 (framing the recurrence prong of
the public interest exception to involve the determination of whether a claim “is likely
to recur in a similar manner” (emphasis added)). Accordingly, Mother’s due process
argument is also dismissed.10
9
To the extent the statutory framework and the Rules of Juvenile Procedure are
unclear as to the general applicability of the Rules of Evidence in matters like this, such
uncertainty is best resolved by the legislature or relevant rule‐making authority. This
opinion should not be construed as passing judgment on whether the juvenile court,
under the facts and circumstances of this case, properly admitted and relied on hearsay
evidence.
10
Additionally, Mother admits that her due process challenge was not preserved,
thus requiring us to overcome another layer of “exceptional circumstances” in order to
(continued...)
20100562‐CA 8
CONCLUSION
¶13 Mother’s challenges on appeal are moot. The collateral consequences exception
and the public interest exception to the mootness doctrine do not apply. As a result, we
dismiss the appeal.
____________________________________
James Z. Davis,
Presiding Judge
‐‐‐‐‐
¶14 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Associate Presiding Judge
____________________________________
William A. Thorne Jr., Judge
10
(...continued)
review the issue. See State v. Irwin, 924 P.2d 5, 7‐8 (Utah Ct. App. 1996) (noting that the
preservation rule “bar[s a party] from raising [an issue] for the first time on appeal” but
that one exception to the preservation rule is the “concept of exceptional
circumstances,” which “is not so much a precise doctrine, which may be analyzed in
terms of fixed elements, as it is a descriptive term used to memorialize an appellate
court’s judgment that even though an issue was not raised below and even though the
plain error doctrine does not apply, unique procedural circumstances nonetheless
permit consideration of the merits of the issue on appeal”). Thus, we do not address
Mother’s due process challenge, and this opinion should not be construed as containing
any ruling as to whether the juvenile court acted properly by interjecting questions and
interrupting the parties throughout the termination petition hearing.
20100562‐CA 9