Appellate Procedure: Parties Cannot Stipulate Around Mootness

In Re L.O. (Navajo Nation v. State), 2012 UT 23, April 13, 2012

L.O. was a minor child and member of the Navajo Nation.  DCFS removed L.O. from the child’s parents and placed with a foster family.  L.O.’s parents relinquished their parental rights, and a Petition for Adoption was filed.  The Navajo Nation objected to the adoption and moved to transfer jurisdiction to the Nation.  The Juvenile Court denied the motion because the Nation had waited too long, and allowed the foster parents to adopt.  The Nation Appealed.

Before the Appeal could be heard, the Nation consented to the adoption.  However, DCFS and the Nation agreed that the issues would not be mooted and that the appeal could go forward because of the important public policy grounds.

The Court of Appeals dismissed the case because the issues were moot.  The Nation petitioned cert which resulted in this opinion.  The Supreme Court affirmed the Court of Appeals and found that the parties cannot stipulate around mootness.  In short, if the issue is dead, the parties cannot resurrect the issue by agreeing that it is alive.  This case also failed to qualify for moot-review because that is likely to evade review because of the short duration of the claim at issue.

Full opinion available at:  http://www.utcourts.gov/opinions/supopin/AdoptLO1223041312.pdf

Contested Adoptions: Still a Race to the Courthouse and GAL Fees Can Be Awarded on Bad Faith Grounds

In Re A.W. (BWH and SH v. State), 2012 UT App. 109, March 13, 2012

BWH and SH were Foster-parents to A.W.  A.W. was removed because of allegations of sexual abuse.  A.W. was placed in respite care and adopted.  Prior to the completion of the Adoption, BWH and SH Petitioned to adopt A.W.  Their Petition failed to meet minimal procedural guidelines.  Further, DCFS supported allegations of sexual abuse against Foster-father, Foster-parents allowed their license to lapse, and Foster-father was convicted of disorderly conduct.  The trial court refused to join the cases and ultimately dismissed Foster-parent’s petition.  The Court also awarded fees to the Guardian ad Litem because the Petition was brought in bad faith and the GAL substantially prevailed. Foster-parent’s appealed.

The Court of Appeals affirmed the trial court’s dismissal of Foster-parent’s petition for adoption.  Because of the procedural failings, and the impossibility of placement with Foster-parent’s based on Father’s actions the Court found that the dismissal of Foster-parents was appropriate.  The Court of Appeals also found that because of the impossibility of prevailing on the merits the award of attorney fees to the Guardian ad Litem was appropriate.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/JV_aw041212.pdf