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State ex rel. J.B.

Supreme Court of Utah

April 24, 2018

State of Utah, in the interest of J.B., a person under eighteen years of age.
v.
State of Utah, Appellee. J.M.B., Appellant,

          On Direct Appeal Second District Juvenile Court, Farmington The Honorable J. Mark Andrus No. 1091623

          Scott L. Wiggins, Salt Lake City, for appellant

          Sean D. Reyes, Att'y Gen., Carol L. C. Verdoia, John M. Peterson, Asst. Att'ys Gen., Salt Lake City, for appellee

          Martha Pierce, Salt Lake City, for Office of Guardian ad Litem

          Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Judge Toomey joined.

          Due to her retirement, Justice Durham did not participate herein; Court of Appeals Judge Kate A. Toomey sat.

          Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

          OPINION

          Lee, Associate Chief Justice

         ¶1 J.B. is the biological child of J.J. When J.J. gave birth to J.B. in 2010, she was involved in a relationship with J.M.B. Later, when J.J. and J.M.B. split up, J.M.B. became J.B/s legal guardian. J.M.B. was also given custody of the child. J.M.B/s guardianship and custody were subsequently terminated after a third party called the police to report child neglect.

         ¶2 At that time J.B. was placed into the custody of the Division of Child and Family Services (Division). And the State petitioned the juvenile court to award custody and guardianship of J.B. to the Division. During the custody and guardianship trial, J.M.B., who was representing herself, chose to remove herself from the trial proceedings. The trial continued in her absence. The juvenile court then determined that J.M.B/s guardianship rights should be terminated. It also found that reunification services between J.M.B. and J.B. would not be appropriate. J.M.B. filed this appeal.

         ¶3 During oral arguments on appeal, the Guardian ad Litem renewed a motion to dismiss for lack of jurisdiction. The Guardian ad Litem asserted that this appeal is moot because J.B/s adoption had been finalized for more than one year and a governing statute bars any person from contesting the adoption after one year from the date of a finalized adoption. See Utah Code § 78B-6-133(7)(b).

         ¶4 We deny the motion to dismiss and reach the merits of J.M.B/s appeal. We conclude that the case is not moot because J.M.B/s action and appeal satisfy the time constraints set forth in Utah Code section 78B-6-133(7)(d). And we affirm the juvenile court's order terminating J.M.B/s guardianship and custody. In so doing we reject the principal arguments raised by J.M.B. on this appeal.

         ¶5 First we conclude that the juvenile court had jurisdiction to vacate the district court's orders yielding guardianship rights to J.M.B. We explain that juvenile courts have statutory authority to modify a district court's order if the child also falls within the juvenile court's jurisdiction. See UTAH CODE § 78A-6-104(4)(a). Second we hold that J.M.B. waived her statutory right to counsel. This determination is based on evidence in the record reflecting that J.M.B. reasonably understood the proceedings and was aware of her right to counsel but nonetheless took actions in a clear effort to proceed pro se. Third we decline to reach a final series of arguments raised by J.M.B. because she failed to preserve these matters in the juvenile court proceedings below.

         I

         ¶6 J.B. was born to J.J. in 2010 while she was in a relationship with J.M.B. When that relationship ended J.M.B. petitioned the district court for custody of J.B. The district court awarded joint physical and legal custody to both J.J. and J.M.B. In so doing the court suggested, among other things, that J.M.B. was "entitled to parenting rights in [J.B.]."[1] J.M.B. was also ordered to pay child support.

         ¶7 The custody arrangement was changed a few months later when J.M.B. sought to take J.B. with her on a move to Colorado. At that point the district court awarded J.M.B. sole physical custody but retained the joint legal custody arrangement. And under this arrangement J.J. was ordered to pay child support to J.M.B.

         ¶8 In October 2015, J.M.B. and J.B. traveled from Colorado to Utah. They stopped at a McDonald's in Davis County. While in the McDonald's playroom, J.B. approached a third party, A.H., asking for food. A.H. noticed that the child was wearing a visibly soiled diaper and dirty ...


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