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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