State in Interest of Hj

in empt property the of residential homes CONCLUSION TV is that former customers. Action correct ¶ 33 We see no error the Commission’s property its rent-to-own becomes residential per- conclusion that TV’s Action rent-to-own property passes to a when title residential property escaped property subject sonal was customer, for- and neither Action TV nor its five-year retroactive tax assessment. required pay mer can then be customer We also see no error in the Commission’s property. taxes on Utah Ann. See Code finding the fair market of value Action (1996) (“Household furnishings, § 59-2-1113 personal property TV’s rent-to-own ap- furniture, by equipment exclusively used propriately using ap- determined the cost place the owner at the of owner’s abode proach depreciated according to the Commis- maintaining a home owner for the 3, five-year sion’s Class class life schedule. family exempt property owner’s from Accordingly, we no occasion to disturb taxation.”). TV, however, Action miscon- the Tax order. Commission’s of strues the role estimated useful economic life in the fair market value calculation. ¶ 34 WE JUDITH CONCUR: M. BILLINGS, Judge, DAVIS, Z. JAMES

¶ 31 Action TV was assessed taxes Judge. only property personal on rent-to-own under January

rent-to-own contracts on 1 of each of years at

the tax issue. It was not taxed on rented, or, property yet

available not if al

ready repossessed, yet not rented sold of, disposed

otherwise which Commission App UT regarded inventory. Nor was Action TV that, personal property by taxed on the as Utah, H.J., of STATE of Interest date, property sessment had become the of a M.J., J.M., persons under customer. The useful continued life of eighteen years age. of property in the homes of Action TV’s former J.M., Appellants, J.M. and solely customers im was considered for its pact on estimated market of fair value property by while owned Action TV. Utah, Appellee. State of statutory definition “fair market value” objective § No. 981409-CA. establishes an test. See id. 59- 2-102(9) (Supp.1998). The Assessor re Appeals Court of of Utah. quired to estimate fair market value abstract, property Action TV’s Aug. property value of the from Action TV’s Thus, unique perspective. although business five-year class Commission’s life sched

ule’s estimate useful economic life property

Action TV’s took into account a

period pass of time after title would renter,

former it did not result in a tax

property longer by Action TV. owned acceptance The Commission’s

five-year supported life is class substantial Accordingly, reject

evidence. we Action

TV’s assertion that use of the Class five-

year depreciation class life table overvalued property.

its do We therefore not disturb rulings regard. Commission’s

H7 D.M., rights children’s mother. rental grandpar- dismissed the The second order children. ents’ appeals We reverse were consolidated. proceedings remand for consistent with opinion. our

FACTS In November DCFS removed child, H.J., protective custody after oldest against receiving allegation abuse step-father.2 petition alleging filed a DCFS abused, siblings and her were ne- that H.J. dependent glected, or children. After January found the jurisdiction. within the court’s children to be mother, D.M., permitted The court custody of children. DCFS retain was family provide preservation services. The step-father was no contact with the to have children.

¶3 In March DCFS discovered the step-father again living was with the chil- result, protective As a took dren. DCFS of the children and filed motion for Shortly temporary custody. after the chil- removed, step-father were dren commit- suicide, attempted ted and D.M. suicide and Corporon, Mary Corporon & C. Williams hospitalized. was At the March shelter PC, City, Appellants. for Lake Salt hearing, the court found that acted DCFS Graham, Atty. Peter- Gen. and John Jan reasonably taking the children into custo- son, City, Appellee. for Lake Salt dy permitted and DCFS to retain custody. The court ordered DCFS to inves- Mills, Tracy Martha Pierce S. Salt appellant (grandmother) tigate for fit- J.M. City, Litem. Lake Guardians Ad possible kinship placement, ness for a provide DCFS to reunification ser- ordered BILLINGS, BENCH, Judges Before to the mother and children. vices JACKSON. grand- 4 DCFS initiated the evaluation of kinship placement. mother for Because OPINION Angeles, grandmother lived in Los BILLINGS, Judge: Compact followed Interstate for (ICPC) process, Appellants, grandparents of three chil- Placement of Children dren, H.J., M.J., J.M., Angeles Los social services con- contacted Family grandmother. a home Utah Division of Child and Services duct evaluation (DCFS), positive appeal two orders of evaluation and recommended grandmother. pa- placed be with court.1 The first order terminated the children assertion, analysis J.M. above is the maternal State’s thus this focuses on The first referenced J.M., children; grandmother, appellant. the maternal as grandmother of the the second J.M. is step-grandfather the maternal children. step-grandfather step-father youngest State that the has asserts was the father of 2. H.J.’s child, reference, purposes special For he status as a relative. For the J.M. ease of will be accept deciding step-father. appeal, to as we without referred

H9 May 1997, grandmother 5 On filed a findings, Based on these the court concluded temporary custody for placement motion of the children. grandmother children with alleged The motion that the children’s moth- at that time would not be the children’s grandmother er indicated her desire that Consequently, best interests. the court con- Additionally, care for the children. the mo- tinued the order of temporary custody with tion stated willing to DCFS and set the next review by appropriate agencies monitored to in- 23,1997. October for, sure the children cared would as- 9, 1997, grandmother 8 On October filed needed, therapy sure the children received requesting permanent verified cus- comply and would with visitation limits as tody of the children. At the October 23 therapists. recommended the children’s hearing, review the court set December hearing, At the June review the court 1997, as the hearing grandmother’s date for temporary custody continued the order of designated The court also Decem- DCFS, with and set motion ber 3 as dispositional the twelve-month re- temporary custody for an view. opposed because the State kinship placement grandmother. The court did ¶ 9 At the December 3 on the permit grandmother access to casework- motion, State’s grand- the court dismissed therapist reports er or regarding the chil- mother’s dren. holding evidentiary without hearing. an The ¶6 August At the 22 temporary custody petition concluded the issues in the had evidentiary hearing, the children’s casework- previously been August addressed in the therapist er and testified for the State. Both kinship placement temporary custody hear- recommended the children remain their ing. dismissing grandmother’s After petition group current foster placements. and home for custody, the court excluded Both progressing testified the children were grandmother’s attorney from the courtroom any disruption likely well and would result dispositional for the hearing. The court then therapeutic According setback. to the chil- terminated reunification services and set a therapist, likely dren’s it would take at least permanency plan 2, February for six months for the children to form a thera- 1998. peutic Also, therapist. bond with a new ¶ 2, 1998, February 10 On DCFS filed a therapist grandmother believed interacted petition parental rights.4 terminate D.M.’s inappropriately with the children her sin- February At 2 hearing, the court set gle visit after DCFS took pretrial March 18 as date for the appreciate she failed to special their needs The court also continued the order for tem-

resulting from abuse. porary custody recognized with DCFS and ¶ grandmother’s 7 The court denied motion permanency plan goal At temporary custody, finding disrup- that a pretrial hearing, the March the court set a placement tion in counseling would be 8,1998. trial of date June detrimental to the children. The court also ¶ grandmother 29, found that appreciate May 1998, did not grandmother 11 On filed a needs, special the children’s petition adopt minimized the children. Included with problems. their Additionally, adoption petition the court request was a for termi- found the grand- children did not feel safe in parental rights nation of of D.M. The court home, grandmother mother’s and that parental rights 8, would terminated D.M.’s on June likely permit by 1998, unauthorized visits D.M.3 appear after D.M. failed to for trial on findings 3. The court petition request included in its of facts that 4. The included a to terminate the parent another adopting foster was interested in rights. rights father’s His were terminated an why finding the children. It is unclear July order dated temporary made or was relevant to a motion for At the time of this reunifica- being provided, tion services goal. had not been identified as the hearing. Custody holding an petition.5 of the children the State’s DCFS, adop- grounds its on the of goal of court based dismissal with with remained judicata statutory interpretation. The court at- res tion. excluded judicata question application termi- torney from the for the res courtroom law, trial, def with no the State that reviewed correctness agreeing nation with given party. erence trial court. See Gardner grandmother not an interested Madsen, Ct.App. grand- filed a 12 DCFS motion to dismiss 1997). statutory interpretation Issues July adoption petition on 6. The mother’s law, matters of reviewed for correctness also grandmother standing claimed State given no deference to the trial court’s with further, adoption, Christean, interpretation. See A.E. v. kinship hear- August Ct.App.1997). grand- ing placement with established that The court inappropriate. mother would ANALYSIS adoption petition on October dismissed 15,1998, holding evidentiary hear- without Terminating Rights I. Order Parental ing. The court concluded Custody Continuing DCFS 1997, kinship temporary custody hearing set- appeals 16 Grandmother the order regarding placement matters of the chil- tled terminating parental rights, asserting D.M.’s grandmother. also dren with The court held continuing the court erred law did as a matter of holding regarding without statutory requirements meet to file a interests of the children. the best adopt. standing require “Traditional criteria appeals from 13 Grandmother now parties interests that the be adverse order, parental rights specifi- termination of party ‘seeking and that relief attacking cally continuation legally protectible in the controver interest appeals She the order DCFS. also dis- ” H., sy.’ State ex rel A.H. v. Mr. & Mrs. missing her (Utah 1986) 284, (quoting 716 P.2d 286 Ken County, Corp. necott v. Salt Lake 702 P.2d AND ISSUES STANDARDS OF REVIEW (Utah 1985)). 451, ap Additionally, “an 454 ¶ Initially, 14 we must generally decide pellant show both that he or must grandmother standing appeal whether has to party a action privy she was to the below proceeding terminating by the order from the aggrieved that he or she is rights. parental D.M.’s The issue of stand judgment.” Society court’s Journal of Prof. law, (Utah ing primarily Bullock, 1166, for is matter of reviewed v. 743 P.2d 1171 ists Corp. 1987). correctness. See Kearns-Tribune v. (Utah 1997). Wilkinson, 946 P.2d 373 ¶ law, notice of 18 Under Utah findings by Factual the trial court that made petition parental hearing on a terminate to standing bear on will be reviewed with defer provided parents, rights must be to the standing at ence. See id. 374. Because in guardian, and custodian of the children. See considerations, important policy appel

volves (1996). §Ann. Utah Code 78-3a-406 Grand “will closely late courts review trial court parents are not entitled to notice. “Relatives given determinations whether a set of parents rights other than the have no such legal requirements standing, fits facts for require process in [a a child as to service of granting minimal to the trial discretion adju proceeding, have an termination] nor to court.” Id. any dication of severance of asserted ¶ Div., Second, right.” Family 15 we must determine Wilson v. Servs. Re 1976). Two, dismissing the trial gion whether court erred adoption petition party proceed- to the without Grandmother not a Although parental rights effectively July parental D.M.’s until 14. The of D.M.’s termination by rights portion grandmother's terminated on June 8 virtue of the bench made moot that ruling, the order was not of termination filed order, appeals proteetible from the termination and thus ings and did not have below by ruling; court’s we conclude has waived legal interest affected she this issue.7 therefore, Moreover, standing appeal she has no to we not need address this issue rights. holding parental grandmoth of D.M.’s further on termination our Cf. K.J.P., adoption petition dispositive L.P. W.L.P. and 590 So.2d 335 er’s at this (“A (Ala.Civ.App.1991) person party stage not a proceedings. of the See State v. Mor rison, standing Ct.App. n. 4 proceeding has below court.”). 1997). appeal to bring an however, Fundamentally, grandmoth- Adoption II. Dismissal of Petition disagree termination of er does with the Rather, rights. she parental D.M.’s seeks to juve- next Grandmother contends the portion continuing order appeal the of the dismissing nile court erred in her custody of the children without hold- puts grandmother petition. in an State grandmother previ- ing a when by position arguing untenable that because ously petitioned permanent for children, she did not have she challenging the termination or- children. petition is not entitled to a on her der, substance, grandmother, attacks the adoption, summarily precluding grand- thus summary perma- petition dismissal of her asserting mother from her interests in her nent grandchildren. arguments If the State’s correct, then there would be no mechanism petition After her cus- grandmother protect which in- could denied, tody grandmother filed plan goal permanency terests when a seeking permanent custody October changes adoption. from reunification of the children. dismissed evidentiary without an Denying Temporary A. Order 3, 1997, stating on December Custody Final Not Order already issues raised had been addressed. petition on The court dismissed the the same matter, 23 As a ar- threshold the State day reunification were termi- services grandmother gues appealed should nated, goal and the State recommended denying grandmother 1997 order changed The dismissal of the temporary custody after an hear- petition effectively foreclosed that, ing. by failing do The State asserts receiving from cus- so, she has waived all ' tody, though for goal even the children T.S., relies on In re 927 issues. The State changed perma- to had from reunification a (Utah Ct.App.1996), support 1124 its P.2d to placement. nent argument. ¶ T.S., grandparent 24 In Arguably 21 trial court erred a who had been legal dismissing grandmother’s permanent permanent custody her granted cus holding custody to tody petition grandchild relinquished without back However, stipulated dependen- hearing. grandmother does not DCFS and verified cy petition. Subsequent- 1124-25. appeal specific dismissing from the her See id. at order custody,6 ly, permanent grandparent for filed a motion to restore but rather ing parents appeal 6. this order at this time relatives other than have inchoate Grandmother’s Wilson, may any untimely, custody rights entitling hearing); event have if the been order them to any rights permanent (holding and all of her to dor- 231 next-of-kin have resolved custody T.S., grandchildren. of her See In re 927 parentless chil- mant or inchoate interests in (Utah Ct.App.1996). dren). right P.2d To make exercise of such a meaningful, hearing point should be held at a meaningful oppor- at has a which a relative still However, we note that it is critical that there tunity custody gain Although of a child. a to special who have a be a mechanism those guaranteed custody, longer a relative is not relationship with their children to assert interests delayed, permanent custody is the lower custody. recognizes spe- Utah those with hearing. relative to right chance of a noncustodial obtain have a See In re cial interests to J.W.F., (Utah 1990) (hold- custody. 714-15 custody. The an eviden- denial of a motion for tem court held custody pending disposition grandparent’s porary a final tiary to determine the final, placement appeal- not a children is to At the hear- status in relation the child. order, legal parties’ rights able because the conclusion, it ing’s the court determined was relationships finally have not been deter in the child’s best interest to return to not mined. This court noted: has con- grandparent’s The court also grandparent residual cus- cluded that had no finality juvenile pro- an order [t]he rights todial to child because she had ceedings in manner is similar determined voluntarily custody transferred back to judgments to and orders other matters. final, appealable and had admitted that the child was A order is one that ends juvenile proceedings, leaving at con- the current dependent. See id. 1125. The court DCFS, question open judicial custody for further action. temporary tinued the with completely An which change order does not deter- plan goal and ordered service rights parties merely ... mine through permanent placement of the child T.D.C., interlocutory in nature. ap- adoption. Grandparent not See id. did (memo- (Utah Ct.App.1988) peal terminating custodial this order her decision). randum rights after the merits. See id. case, rights grandmother’s In this ¶ Grandparent re- later filed a motion grandchildren in relation status to her questing the restoration ser- of reunification order, completely not resolved vices to her and the of reunifi- identification appealable. By and thus the order was goal plan cation as the service rather than terms, in scope. its order was limited denied her motion. only The court addressed the issue of wheth- denying Grandparent appealed this her order temporary er was a suitable motion for restoration of reunification ser- kinship placement, pursuant to statute. The plan. vices and a new service See id. at 1126. court order denied motion for grandparent This court concluded that had temporary custody, continued with appeal waived issues on because she DCFS, granted grandmother rights visitation appeal resolving had failed the order all therapist, in the discretion of the children’s legal rights custodial to the child. See a date and set for further review. Grand- id. legal relationship mother still familial opportunity the children peti- and the ¶26 The State to mean reads T.S. permanent custody, certainly tion for continuing temporary court orders adoption, at a later date when reunification denying temporary custody with DCFS or longer goal. was no final, petitioners appealable orders. This T.S., reading too of T.S. is broad. argues grandmother 29 The dissent disposition a final regarding made appealed should have the court’s order de- grandparent’s permanent rights. custodial nying temporary her motion This was final determination of because the court made “a dis- custody rights thus appealable.8 position custody making and of while a final de- court, rely pending The State does not on the dismissal of was still so before there had grandmother’s permanent custody petition to regarding grandmother's been no final resolution T.S., argument support waiver its under nor relationship children. rely. Although grandmother could it so could Finally, adoption petition addresses differ- appealed permanent have custody petition the dismissal of her petition permanent custody. ent issues than a finally deter- because the court permanent custody arrangement, parents particular legal relationship, mined one her fail- rights residual retain to the children. In con- appeal preclude appeal ure to does not of her trast, adoption rights, parental severs all adoption petition. dismissal of her The dismissal legal child-parent relationship. creates a new grandmother’s custody petition of did not sever had, Accordingly, appeal failure to any rights grandmother as did the court rather, T.S.; summary permanent custody simply dismissal of her order in it did not extend rights responsibilities request- petition appeal additional as does her from bar the dis- Further, disposition ed. the final of the children missal of subsequent allegations hearing not foreclose a on the regarding the termination underlying petition.” totally separate pro- [appellant’s] merits of a issue and T.H., result, Ct.App.1993). ceeding petition adopt. As a —a However, assignment of grandmother’s appeal this refers to the of her dismissal custody allega- temporary properly of children after adoption petition is before this dependency tions or abuse court.

finally proceeding, in a determined civil custody

thereby depriving parents of tem- Right Hearing B. porarily. No such at issue only a motion for law, here. denied persons 32 Under Utah with a custody. request- temporary Grandmother special relationship right to a child have a custodian, DCFS, temporary ed that one hearing adoption custody on matters. temporary custody dismissed and the J.W.F., 1990); See In re 799 P.2d 710 grandmother children be awarded to as an- Wulffenstein, State ex rel Summers v. temporary Custody (Utah 1980) (Summers II); other custodian. State P.2d 608 temporary rather than Wulffenstein, ex rel Summers v. (Utah 1977) (Summers I); Wilson,

the court could still return the children to parent’s Although home. the court Supreme P.2d at 231. The Utah Court has findings grandmother made was not an that, only recognized although parents have a appropriate placement for the children at child, vested right custody in the of a under time, adjudicate grandmoth- it did not kin, some circumstances the “next of such as Thus, grandmoth- parental capacity. er’s grandmother, [a] do have some dormant or rights finally er’s custodial had not been right inchoate or interest in the temporary custody determined at the evi- parentless, who welfare of children become dentiary hearing legal and she still had a they may come so that forward and assert relationship grandchildren. Wilson, (hold with her claim.” 554 P.2d at 231 their ing grandmother right hearing before ¶30 Moreover, practical policy consider- grandchild when reject require that ations we the State’s view. promptly parental asserted interest after procedural nightmare if all It would be a terminated). strong rights This is a interest rulings temporary on interim seriously by the that should be considered appealable final or- court, ac “at least to the extent of Potentially, periodic each review order ders. cording ... a on determination continuing subject would be Id. the merits” of an See Utah Code appeal. Ann. to immediate 78-3a-121, (Supp.1998) (pro- §§ 78-3a-310 Supreme re-empha- 33 The Court Utah jurisdiction viding continuing Sum- grandparents’ rights in sized dormant periodic court and review of children’s sta- There, mers I. rejected the court the State’s tus). Further, temporary if a on argument parent’s rights that where opportunity is the sole for a relative terminated, parent thereby pro- and the been challenge custody, a denial of what is now filing petition regarding custo- hibited from a short and focused dy, grandparents prohibited are likewise unwieldy kinship placement would become I, See Summers filing from complex, important and would decide in a P.2d at 1320-21. The court noted that prematurely. issues parental rights proceeding only termination Thus, temporary custody hearing, parental rights are involved. even 31 After the af- grandpar- parental permanent placement parental rights, status and ter termination asserting an open questions precluded still for the ents are not from the children were Thus, legal grandchil- in their grandmother’s court. because interest the II, Furthermore, dren. See id. Summers in rights in relation the children and status determined, finally view that cus- [dormant were not she could not the court stated “we Certainly being liberty interest.” appealed tody] the fail- have this order. interest II, order does Summers at 610. appeal ure to an interim 616 P.2d 124 judicial

¶ “promote mere effi- case, inappropriate to grandmother has a In this 34 welfare”); ciency expense of a child’s at the grandchildren to connection to her sufficient (“[A] J.J.T., 161, hyper- P.2d 163 In re 877 right hearing on her the warrant judicata is im- application of res regular technical contact with She adjudications in where the welfare of custody; proper she prior to DCFS the children T.J., stake.”); see also 945 peri children is at for extended care of the children took (Wilkins, J., concurring) (noting res ods; at 164 her interest and she asserted in judicata not bar claims provide the would promptly and offered to children nature, because, by claims involv- their support. court with a stable home children passage ing would be different with sum, relationship her children time). grandchildren under the circumstances a.hearing her to on

this case entitles ¶ Furthermore, doctrine of the judicata simply legally applicable in is not res judicata Res has two branches: this case. August Effect of Res Judicata C. barring relitigation preclusion, claim 22, 1997, Hearing litigated previously claims between same dismissing grandmother’s 35 In its order barring parties; preclusion, relit- and issue evidentiary adoption petition without an decided, although igation the causes of issues hearing, accepted court claims are not the same. See of action or 1997, 22, August position that State’s T.J., at 162. 945 P.2d hearing regarding temporary satis- preclusion involves three ele- 38 Claim any right grandmother had to a fied ments: judicata adoption petition, and res on her First, involve the same both cases must further consideration of all issues banned Second, parties privies. the claim or their grandchildren. involving her and her alleged that is to be barred must have by asserting that dissent addresses this issue presented in suit or must be been the first findings temporary custody hear- that could and should have been raised one ing binding in all subse- somehow became Third, in the first suit the first action. concerning children quent proceedings judgment in final must resulted on and were the law of the case the merits. disagree. proceedings. We J.J.T., (quoting at Madsen v. 877 P.2d judicata purposes of res include 36 The 1988)). (Utah Borthick, 245, 247 769 P.2d “judicial economy promoting and the conve- preclu by finality legal 39 We conclude claim nience afforded controver- (Utah J.J.T., grandmother’s adoption sion does not bar sies.” In re 877 P.2d However, not raised in Ct.App.1994). has often this court strictly nor could it have been expressed applying over concern evidentiary hearing judicata presented. was for of res doctrine determining specific purpose of whether setting when interests of children the best T.J., kinship grandmother would be a suitable at stake. See In re 945 P.2d (Utah temporary custody of the chil Ct.App.1997) (noting placement 162 n. reunifying goal the chil approval many “concluded dren when states have Temporary custody judicata in dren with their mother. application that a strict of res right care of the children proceedings not war- is the to take parental termination is ranted”); R.N.J., during a transitional time. Parents of the In re rights, (noting child retain residual Ct.App.1995) some circum- stances, judicial efficiency continuing jurisdiction. By defini retains “furtherance of tion, temporary custody not a equity give way the central is must when rights placement. Different and duties are decided concerns the best inter- issue J.L.W., child”); temporary custody adop versus of a involved ests holding Ct.App.1995) (noting application of tion. It follows judicata does not equitable as res doctrines such regarding adoption. temporary when reunification is hearing the equate with a Thus, adoption petition of fact goal is not involves different issues and law hearing adoption. for preclusion.9 than a on a barred claim cannot for the other. One substitute The preclusion, collateral 40 “Issue prior evidentiary hearing was insufficient for different causes of estoppel, ‘involves two purposes the of the in only and bars those issues the sec action litigation necessarily in the ¶43 decided ond The that dissent contends (citation T.J., P.2d at 163 omit first.’” challenge findings the did not ted). four-part apply a test to Utah courts hearing temporary from the on estoppel: evaluate collateral allege and to new circum- failed stances, findings law prior those became the of the 1. Was the issue decided the Thus, adjudication present- hearing with the identical one case. no additional would be question? However, required. very ed action in nature signifi- proceedings involved demonstrates judgment 2. a final on the Was there change cant in circumstances. merits? against plea whom party 3. Was the temporary hearing 44 The took party privity or in with a is asserted a goal place when was still a reunification and adjudication? party prior to the adoption petition possibility. The reflected compe- 4. in the first Was issue case .the goal changed that the for the children tently, fully, fairly litigated? and permanent placement through adoption; Dep’t (quoting Id. ex rel. Serv. State Soc. restoring custody parent children’s to the of Ruscetta, Ct.App. v. Also, longer option. legal was no an 1987)). significance of from tempo- differs custody, rary requiring a different commit- ¶41 essentially argues The State legal resulting ment and in different conse- “custody custody,” and because the court quences. Although grandmother did not grandmothér found specifically allege changed circumstances in placement appropriate temporary not an for petition, change goal for place- in the goal reunification, the children when the legal posture ment of the and the children litigating her she is barred from claim juvenile proceedings continuing court However, adoption. previously explained, provide changed sufficient circumstances to prior adjudication issue decided Thus, evidentiary hearing. warrant a new issue was not identical temporary custody pre- could not petition. hearing and the court’s find The grandmother’s adoption clude a ings only grand went the issue of whether , . . appropriate temporary mother would be placement legal the children. issues ¶45 Additionally, evolving because of the temporary custody permanent adop juve- proceedings in nature of child welfare different; separate are hear tion therefore court, judicata application of res nile strict ings required. little makes sense a series court hearings. hearings regarding frequent apparent 42 The the' status of children within ly adapt tried held for one jurisdiction children’s demonstrate purpose. specific purpose, to another Judi do, can, change needs circumstances justify economy cial cannot the double use of continuing rapidly. courts maintain hearings purpose Juvenile when the behind the hear jurisdiction them to which enables review ings involves different issues fact and law. Christean, children’s needs. The res A.E. re-evaluate See judicata not lend itself well to Ct.App.1997). A doctrine does determine Also, custody, precluded ing adoption petition regarding reunification is not as a mother, being provided to the services were still claim that could and should have been raised in proceeding. At the time hear- children were not available earlier setting, passage virtually such a “[T]here when of time itself are no restrictions on or substantially can exceptions result different circum- right petition to the to contained (Wil- See, T.J., W.A.T., e.g., stances. at Adoption the statute.” kins, J., (Utah 1991). 1083, 1085 concurring) (noting in court claims, raising judicata actions res “the ¶ Furthermore, adoption petition same, practically claims are never the nor are hearing adop ers entitled to a under the they be,” likely to because of time ever tion statute. “The court shall conduct a full passing). hearing petition on adoption for and ex ¶ parties amine the addition, interest under oath.” process 46 In due con 78-30-14(5) (1996). §Ann. Utah Code This implicated hearing cerns are when a for one explicit language, grants right hearing to a purpose purpose involving serves a second though permit even other sections would process requires different issues. Due petition. § court dismiss the id. 78- “timely adequately notice which informs the Saee 30-14(6) (1996) (providing place if parties specific they pre issues must report disapproves State, adoption, ment pare to meet.” L.A.W. v. 78-30-3.5(5) may petition); § dismiss id. Furthermore, Ct.App.1998). par (Supp.1998) (providing may pe dismiss particular ties are “entitled to that a notice person if agency conducting pre- tition or being by issue is considered a court.” Id. at postplacement disapproves adop evaluations “[A]dequate opportunity an notice and tion). discretionary peti The of a dismissal meaningful way very to be heard in a are the after report tion an unfavorable reflects the procedural heart of fairness.” Id. at 294. evaluating range court’s role in process of evidence ambig Due is not met when notice is to determine the child’s best interests. identify uous or insufficient to the issues to considered, impeding party’s prep be thus ¶ 51 The court found the proceedings. aration for the See id. grandmother children did not live with for postplacement report six months and that no case, grandmother 47 In this fact, was filed. true in While this has no hearing regarding that a notice legal bearing grandmother’s right on to file a adoption would resolve issues of petition adoption for right and thus her well. She had no notice that the court would hearing petition. full on her require single evidentiary consider hearing this to be postplacement ments of a report and resi dispositive specifically of other issues not prospective parents dence with adoptive for raised at hearing. prior six months must be met finalizing styled only aas on a motion decree, adoption an may not before a temporaryicustody; nothing in the notice of 78-30-3.5(4) § be (Supp.1998); filed. See id. proceedings would indicate that fitness 78-30-14(7) (1996). §id. adoption by would hearing. be settled this ¶ 52 The court also noted that DCFS Statutory Interpretation D. given had not consent to 48 The court also children, based its dis- adopt thus the grandmother’s adoption missal of petition on without merit as a matter of law. Consent what the petition’s legal court considered the agency placing from the adoption child for insufficiency provisions adoption under necessary prior § is id. See 78- statute. 30-4.14(l)(g). agrees The dissent that lack of DCFS consent obviated the need for an provides “[a]ny 49 Utah law minor adoption However, hearing. again once may adopted by child an person.” adult prerequisite for final pre does not (1996). § adop- Utah Code Ann. 78-30-1 An grandmoth clude on the merits of parent years tive must be at least ten older er’s adoptive § than the child. id. See 78-30-2. specific requirements State, There are no other relying Kasper 53 The v. Nord petitioners may they felt, 815 P.2d Ct.App.1991), before file §§ See id. argues 78-30-1 to -19. effectively the lack of DCFS consent challenge petitioner for a Kasper place er reliance on petition. Such ends the agency. withholding of consent the state this court found misplaced. Kasper, rights in a child were grandparents’ that the ¶ sum, juvenile conclude the 55 In we par- and sole extinguished when the mother interpreted applied provi- incorrectly voluntarily relinquished the ent of the child adoption determining in statute sions adop- adoption service for private child to a adoption petition grandmother’s should be concluded the id. This court tion. See on merits.10 dismissed without the petition adopt to the child was grandparents’ they the did not have meritless CONCLUSION consent, agency and the had select- agency’s ¶ standing ap- to 56 Grandmother has no Kasper parents. id. at 749. ed other See terminating parental peal the order D.M.’s the the ease at hand because different from However, the rights. we conclude agency the agency private was a with whom dismissing grandmother’s in court erred deliberately thoughtfully chose mother adoption petition holding without an eviden- appropriately place child. The mother to her tiary hearing the on merits: Grandmother grandpar- rights, her own and the exercised special relationship with the children has a an exer- could not interfere with such ents hearing; sufficient to entitle her to cise. relying on an hear- court erred contrast, custody involves a State temporary 54 In this case more than ing held on parental rights, parentless satisfy year grandmother’s to termination one earlier children, attempting grandparents finally, to ex- right hearing; the court custody interests in of misinterpreted provisions ercise their inchoate in the concluding petition legally when the children are such children statute custody arguing In of the State. remand We thus reverse and insufficient. filed or adoption petition evidentiary hearing can be that no on the merits of for an obtaining first petition adopt grand- heard on its merits without grandmother’s consent, attempting in effect is DCFS DCFS children. key judicial deci- insulate from review I H. 57 CONCUR: NORMAN pre- agency. court has of a state This sions JACKSON, Judge. rejected implicit viously assertion State’s decisions and actions withhold- that DCFS BENCH, Judge (concurring and judicial beyond

ing consent to dissenting): J.J., Adoption P.2d review. See 781 majority in fully I concur with the 58 (memorandum (Utah Ct.App.1989) holding appellant grandmother has no that decision) curiam). that (per We noted DCFS terminating “ standing appeal order legal custody, ‘power to which lacks confer however, dissent, rights. I parental D.M.’s judicial If one desires by its nature is a act. concluding opinion portion of the from that legal an interest a child assert dismissing that court erred [DCFS], proceeding is a such a ” appellant’s judicial (quoting Id. at 469 Sum- function.’ ¶59 1322). Thus, majority opinion states: “It is I, at because it mers 571 P.2d persons with clear under Utah law province of the court to determine is the right have a jurisdic- special relationship to a child its legal custody of children within adoption or matters.” tion, not bar on lack of consent does Indeed, squarely eases stand adoption peti- the cited grandmother’s J.W.F., See, e.g., In prop- proposition. re contrary, the court is tion. On Two, Div., Family Region additionally argues 554 P.2d v. Servs. son The Guardian Ad Litem J.W.F., 1976); (Utah In 799 P.2d 710 allege re petition that the children live must Also, (Utah 1990). grafting additional re allegation, this petitioners, such and absent with potentially quirement would in support onto the statute petition fails. We can find judicial review DCFS's actions from reading have found several sulate requiring of the statute and any asserting in filings upheld actual before even in which cases See, e.g., allegation Wil terest. without an 1990); v. Summers She discounts and minimizes the chil- Wulffenstein, problems expressed dren's] and has never 1977); Div., Family Region any empathy Wilson Servs. grandchildren for her to the Two, (Utah 1976). caseworker; each cases, of the cited court had they 18. The children have stated that do summarily dismissed a not feel safe in their home. any hearing without or determination on the apprehensive living children are about merits. [appellant’s who husband] would be easily distinguished. primary during 60 The case at bar is their caretaker the work Here, juvenile provided [appellant] time; the week appellant employed is full evidentiary hearing full on her motion for likely It grandmother 19. is that the custody August in considering 1997. After would allow the mother unauthorized ac- testimony all the presented, and evidence the they cess to the if placed children findings, court entered detailed her, with appear since she doesn’t to un- following: which included the gravity neglect derstand the of the and 15, 1997, 9. The March appel- [with visit suffered; abuse the children have supervised by lant] was Jennifer E. Ford- ham, psychologist. Ph.D. All three chil- Any placement 21. therapeutic disrup- or regressed dren and during deteriorated tions would be detrimental to the children. visit, During and after the visit. [ap- the in long [J.] is need of term treatment and pellant] inappropriately responded to the any interruption therapeutic of his rela- emotional needs of the children and didn’t tionships would be detrimental to him. It appropriate demonstrate levels of concern likely would take at least six months for

for the children. “shutdown” [M.] emo- the therapeutic children to form a relation- tionally grand- [J.] and withdrew from his ship therapist. with another visit; during mother the course of the [Appellant] 22. grandchildren loves her strong and has a desire to assume history 15. has a prob- [D.M.] of domestic of them but the children appear do not negatively lems with males that has im- share emotional attachment with then- pacted [Appellant] the children. knew or grandmother. problems yet should have known of the did concluded, The court then intervene; nothing to Placement 3, 1997, 16. of the At a above-named children hearing, June the grandmother with the grandmother step- maternal was ordered this Court to grandfather appropriate contact would not be in the chil- treatment resources in following dren's] best interest for community her the rea- that would be available for sons: they the children should placed be

her. She was provide ordered to the in- a) The children are not comfortable with assigned formation to the Utah casework- husband]; [appellant and her er who was appro- directed to assess the b) [Appellant] recognize does not the priateness of the services. It wasn’t until parents’] history children; of abuse of the 20, 1997, August days two before the c) [Appellant] strong enough is not [on] the motion for enough committed inappropriate resist custody that provided requested [she] requests by their mother for access to the provided information. The information children in accordance with the Court or- psycholo- consisted of resumes of two ders; gists] flyers pro- about available d) [Appellant] pro- is not committed to grams[,] many appro- of which were not viding proper therapeutic care for the priate children; for the needs children. appreciate does not severity the nature and neglect entering 61 After findings these of fact grandchildren abuse her experienced. law, and conclusions of repetitious in contentions guard involved difficulties ordered rulings upon proposition with DCFS. same ianship the children remain case”); Lake v. City Corp. P.2d Salt James Wulffenstein, 616 same See Summers (Utah 1980) (“The showed, Constructors, Ct.App. our Court 1988) (“The partic sensitivity law of the is degree case doctrine high opinion, subsequent grandchil ularly applicable when ... a mo appellant to raise desire present in a different dren, deciding tion fails case what would but new, light, when no material evidence involved—which such as interest of children best introduced.”). paramount duty was the Court’s —decided custody should with DFS remain Appellant contends that omitted). (footnote at the Au Consequently, previous temporary determi- court’s made, clearly “a tem gust the court applied adoption peti- cannot be to the nation making porary disposition of while permanent custody. relating to At the tion allegations regarding final determination however, juvenile court underlying petition.” In re [appellant’s] very presented adjudicated the same issues T.H., Ct.App.1993). ruling The court’s ruling. not the court’s Appellant did contest underlying appellant’s in on the issues raised juvenile petition a final on the challenging the first determination 62 Instead determination, applied appellant appellant. filed merits as See court’s T.H., Thus, appel- petition alleging that the children 860 P.2d at 374. because a verified any change of dependent, requesting the lant failed to assert circum- were custody. part, At the grant on her there was no need court stances 3, petition, juvenile full 1997 this the court conduct another December dependency evidentiary hearing it had appellant’s argued counsel the on the same issues adjudicated.1 changed previously Af- court. Without issues circumstances, adoption ap- placement with found that ter this court in August pellant hear- not be children’s best parties participated in the would same § adjudicated now See Utah Code Ann. 78-30-1.5 ing, which the same issues interests. (“ít (1996) petition. importantly, is the intent and desire of the in this More raised in appellant’s “legally Legislature every adoption the best found the court face; govern be of are not of the child should on its children interest insufficient in they concern the court’s determina- dependant, are in care.” foremost State’s tion.”). true, especially light in properly the defi- This is court therefore dismissed may adoption final decree “[a] fact that cient until the child has lived be entered peti- Subsequently, appellant filed a 63 adoptive parent parents for home of the petition, appellant In tion 78-30-14(7) (1996). § Id. six months.” the same that the reasserted facts Therefore, grant could not hearing. court had addressed at the requested in her appellant the relief she wholly again, appellant failed to assert Once had cus- adoption petition because never she ju- changed any new or circumstances. tody of the children. already adjudicated and re- court had venile 15, ¶ Additionally, 1998 at the these facts at the full October solved ap- to dismiss hearing August these find- on the State’s motion 1997. Because found, petition, they pellant’s adoption the court ings unchallenged, became remained subsequent custodian binding of Utah the current of the case and “The State law T.S., 1124, the State guardian of the children and proceedings. See re (Utah adoption by grandparents. Ct.App.1996); opposes Richard- see also necessary pursuant to consent is Corp., 572 P.2d The State’s son v. Grand Cent. 1977) 78-30-4.14(l)(g) (stating inasmuch as DCFS purpose law of the [section] placing agency for the delays child is “to is the licensed case doctrine avoid may changed the court en- Although have since circumstances circumstances children’s custody. appellant findings regarding changed, how her must show tered its children.” The properly ings then dis- of fact or conclusions of law that this missed the appellant made was a factor in denying appellant temporary showing that she statutorily obtained the contrary, To the the court’s find- required consent for from DCFS. ings genuine indicate its concern appel- about § See Utah 78-30-4.14(l)(g) Code Ann. permitting lant “the mother unauthorized ac- (1996) (providing consent to is re- they cess to placed the children if quired child-placing agen- from “the licensed her, appear since she doesn’t to understand cy placing ... adoption”); that is the child for gravity neglect and abuse the see Kasper Nordfelt, also 749 children have suffered.” See Mullins v. Ore- (Utah Ct.App.1991) (holding court did not err (9th Cir.1995) gon, (“Also, 57 F.3d dismissing grandparents’ adoption petition grandparents we note that may sometimes because without placement consent of child adoptive parents precisely unsuitable be- agency, adoption petition their was merit- cause of their relationship, especially blood less). cases of abuse such as this which there may be a well grand- founded fear that the 66 It is true that decisions are parents will protect be unable to the children subject not forever set in stone and remain abuse.”). parental from future contact and ground to modification change “on the that a of circumstances has occurred.” Utah Code 78-3a-903(l) §

Ann. (Supp.1998); see also CONCLUSION Larson, Larson v. 722 n. 2 agree people, I that certain because of Ct.App.1994) (noting when modifying special child, relationship their are enti- custody order obligation “[t]he court’s is to tled to a and “a determination as to evaluate particular change whether a in cir- whether it would be the best interests of justifies upsetting cumstances quo the status the child for custody.” them to have In re in order to achieve what is in the best inter- J.W.F., Wilson, (citing 799 P.2d at 714 children.”). ests of Appellant has never 230). case, however, P.2d at In this appel- petitioned juvenile modify court to its lant received a full and fair on her custody orders change based on a of circum- motion After careful consider- Although appellant stances. attempts to as- ation, and based on the children’s best inter- changed sert circumstances to this court on ests, juvenile court denied the motion. appeal, she argu- failed to ever make that “ Appellant directly never challenged the ment to the appellate court. ‘The ruling by court’s appeal or through consistently courts of this state have refused modify Therefore, order. to address issues ... that are raised for the ruling court’s on the issue appeal. first time on principle applies This became the law of the appellant ease when equally proceedings originating before the ” raised the same issue in subsequent peti- M.L., courts.’ tions. (Utah Ct.App.1998) E.D., (quoting In re (cita- Ct.App.1994) ¶ Accordingly, juve- I would affirm the omitted)). tions precluded We are therefore court, nile properly and hold that it dis- addressing from appeal. these issues appellant’s missed ¶ 67 It should be further noted that al- though appellant contends she was denied custody because out-of-state

placement of the children would have inter- parental services,

fered with reunification

juvenile court finding. made no such

juvenile court made no indication in its find-

Case Details

Case Name: State in Interest of Hj

Court Name: Court of Appeals of Utah

Date Published: Aug 5, 1999

Citation: 986 P.2d 115

Docket Number: 981409-CA

Court Abbreviation: Utah Ct. App.