In re E.R.

2016 UT App 204THE UTAH COURT OF APPEALS
STATE OF UTAH, IN THE INTEREST OF E.R.,
A PERSON UNDER EIGHTEEN YEARS OF AGE.
W.J.R.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20160564-CA
Filed September 29, 2016
Third District Juvenile Court, Salt Lake Department
The Honorable Charles D. Behrens
No. 1048062
W.J.R., Appellant Pro Se
Sean D. Reyes and Carol L.C. Verdoia, Attorneys
for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN, and
JILL M. POHLMAN.
PER CURIAM:
¶1 W.J.R. (Mother) appeals the June 17, 2016 order
dismissing her “Motion for Custody, New Hearing, and Relief
from Both 3/18/16 Orders.” We affirm.
¶2 On March 18, 2016, the juvenile court granted permanent
custody and guardianship of E.R. to the child’s proctor parents
pursuant to Utah Code section 78A-6-117(2)(y). See Utah Code
Ann. § 78A-6-117(2)(y)(i) (LexisNexis Supp. 2016). Mother filed a
In re E.R.
timely appeal, which she voluntarily dismissed in April 2016 in
In re E.R., Case No. 20160258-CA. On June 8, 2016, Mother filed
the “Motion for Custody, New Hearing, and Relief from Both
3/18/16 Orders”, in which she sought restoration of her custody
of E.R. On June 17, 2016, the juvenile court dismissed the motion
based upon Utah Code section 78A-6-1103(3)(b), which provides,
“A parent may not file a petition for restoration of custody under
this section during the existence of a permanent guardianship
established for the child under Subsection 78A-6-117(2)(y).”
Utah Code Ann. § 78A-6-1103(3)(b) (LexisNexis Supp. 2016).
Mother appeals that dismissal order.
¶3 Section 78A-6-117(2)(y)(i) authorizes the juvenile court to
“enter an order of permanent custody and guardianship with an
individual or relative of a child where the juvenile court has
previously acquired jurisdiction as a result of an adjudication of
abuse, neglect, or dependency.“ Id. § 78A-6-117(2)(y)(i). An order
of permanent guardianship “shall remain in effect until the child
reaches majority,” id. § 78A-6-117(2)(y)(ii)(A), and “may be
modified by petition or motion as provided in Section 78A-6-
1103,” id. § 78A-6-117(2)(y)(ii)(C). However, section 78A-6-
1103(3)(b) precludes a parent from petitioning to restore custody
where “a permanent guardianship [has been] established for the
child under Subsection 78A-6-117(2)(y).” Id. § 78A-6-1103(3)(b).
Mother’s motion seeking to restore custody of E.R. to her was
specifically precluded by section 78A-6-1103(3)(b), and the
juvenile court did not err in dismissing the motion.
¶4 To the extent that Mother’s motion sought relief under
rule 60(b) of the Utah Rules of Civil Procedure, the juvenile court
also did not err in denying it. The juvenile court announced the
decision to establish a permanent guardianship on March 15,
2016, and entered its written Minutes, Findings and Order on
March 18, 2016. Mother filed motions to reconsider on March 15,
2016 and April 1, 2016, neither of which invoked rule 60(b) or
claimed surprise with regard to the March 7 evidentiary hearing.
20160564-CA 2 2016 UT App 204In re E.R.
Furthermore, although Mother filed a timely direct appeal from
the March 18, 2016 order establishing a permanent guardianship
that would have provided an avenue to address her claims of
procedural irregularity, she chose to voluntarily dismiss that
appeal in In re E.R., Case No. 20160258-CA.1 This court
dismissed an appeal of the April 19, 2016 denial of her motions
to reconsider based upon Mother’s failure to file a petition on
appeal in In re E.R., Case No. 20160378-CA. On June 8, 2016,
Mother filed the motion for custody, citing rule 60(b) and
claiming surprise with reference to the March 7, 2016 hearing,
which time was set during a January 28, 2016 hearing that
Mother attended. The June 8, 2016 motion for custody was
essentially Mother’s third request for relief from the March 18,
2016 order establishing a permanent guardianship. The claim of
surprise could have been raised in either of her previous motions
or in her direct appeal. See Robinson v. Baggett, 2011 UT App 250,
¶ 23, 263 P.3d 411 (“As a general rule, parties should allege all
known grounds for relief in one motion for relief from judgment
under rule 60(b).”). Under these circumstances, the juvenile
court did not err in denying the purported rule 60(b) motion for
relief from judgment.
¶5 Affirmed.
1. Mother may have mistakenly believed that the recusal of the
original juvenile court judge authorized her to challenge the
juvenile court’s previous orders. She stated in her June 8, 2016
motion for custody that the previous judge “has chosen to make
a way for this to happen, for she recused herself from this case so
that custody of *E.R.+ could be returned back to myself.” The
order of recusal had no bearing on any aspect of this case other
than on which judge would be assigned to the case in the future;
it did not suspend, modify, or alter the previous order
establishing a guardianship.
20160564-CA 3 2016 UT App 204