Monday, December 27, 2010

DCFS Guidelines Are Neither Administrative Rules Nor Statute

K.Y. v. DCFS, (Utah Court of Appeals November 26, 2010).

Juvenile Court found K.Y., a teacher, neglected the student according to DCFS Guidelines’ definition of emotional maltreatment.  The teacher taped the student’s wrists to her desk with a six inch piece of scotch tape for two minutes as a method of discipline.
The Guidelines were neither promulgated as rules nor codified in statute and as such were neither rules nor statute and do not have the force of law.  The Juvenile Court based its entire ruling on only the DCFS guidelines, and never considered the statutory definitions of abuse or neglect.
The Court of Appeals found that K.Y.’s actions did not meet the statutory definition of neglect.  Additionally, there was insufficient evidence for any finding of abuse, and the JV court did not evaluate whether the teacher’s actions were a form of reasonable discipline.

In short, the JV Court did not use the correct analysis.  Under the correct analysis, K.Y.’s actions were neither neglect nor abuse.  The ruling of the JV court is Reversed.

Wednesday, December 1, 2010

Subject Orders are Not Final Appealable Orders

In re JMS and JRS, C.S.S. v. Stat e of Utah, (Utah Court of Appeals November 18, 2010).

Juvenile Court entered an order removing Father’s (C.S.S.) children from his home, but stayed the implementation of the order allowing Father to keep his children in his home if he complied with DCFS recommendations.  Father failed to comply, the stay was lifted, and the children were removed from the home.  Father filed an interlocutory appeal, which was denied.  He then filed this standard appeal.
The Court of Appeals found that the removal of the stay was not a final appealable order.  A final order is one that leaves no question open for further judicial action or effects a change in the permanent status of the child.  Removal of children from Father’s home was what the court considered a mere fact that did not indicate finality.  Dismissed for lack of jurisdiction.

Concurrence: Judge Thorne reiterated the Opinion of In re A.R., 982 P.2d 73 (Utah 1999), children should not be removed as punishment for failure to comply with court orders.  He additionally addressed the Constitutional concerns that children might be removed from a parent’s home without a final order leaving the parent without means for appeal.  However, Judge Thorne concluded that the interlocutory appeals system appropriately addresses this concern.  However, he noted that these appeals are discretionary and not allowed as a right of the parent.


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