In re CD

2010 UT 66
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Guardian ad Litem, 	No. 20090052
Petitioner and
Cross-Respondent,
v.
State of Utah, in the interest
of C.D., A.D., J.T. and S.T.,
persons under eighteen years
of age,
Respondent and
Cross-Respondent,
v.
A.D.T. and L.D., 	F I L E D
Respondents and
Cross-Petitioners. 	November 19, 2010
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Seventh District Juvenile, Monticello
The Honorable Mary Manley
No. 170258
Attorneys: 	Martha M. Pierce, Salt Lake City, for petitioner
Mark L. Shurtleff, Att’y Gen., John M. Peterson,
Carol L. C. Verdoia, Asst. Att’ys Gen., Salt Lake
City, Joyce G. Smith, Blanding, William L. Schultz,
Moab, Gregory Thornock, Lake Stevens, WA, Garvin
Alfonso Hamilton, Baldwin Park, CA for respondents
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	This case involves the State of Utah, Division of Child
and Family Services’ removal of Indian children from their

No. 20090052 	2
Grandfather’s custody and presents issues regarding the
interpretation of the Indian Child Welfare Act (the “ICWA”). 	25
U.S.C. §§ 1901-1963 (2006). 	We granted certiorari to determine
whether the Utah Court of Appeals erred when it (1) determined
that it had appellate jurisdiction to review whether the juvenile
court complied with the ICWA’s active efforts and placement
requirements, and (2) affirmed the juvenile court’s determination
that, pursuant to the ICWA, further active efforts to prevent the
breakup of the Indian family would be futile and thus were not
required. 	After we granted certiorari, the children were placed
with their respective biological fathers. 	Because the children’s
subsequent placement with their fathers renders the ICWA’s active
efforts and placement requirements moot, we decline to address
the issues raised on certiorari.
FACTUAL BACKGROUND
¶2 	On December 2, 2002, the Division of Child and Family
Services (the “Division”) filed a Verified Petition for
Protective Supervision (the “Petition”) to remove children C.D.,
A.D., J.T., and S.T. from their Mother. 	Because the Mother and
children are all members of or are eligible for membership in the
Navajo Indian Tribe, the ICWA governs any “abuse and neglect”
proceedings involving the children. 	A trial was held on the
Petition and findings of fact, conclusions of law, and an order
were filed on April 3, 2003. 	The juvenile court found that the
Mother was incapable of caring for her children, and it ordered
that the children’s Grandfather be granted permanent custody and
guardianship. 	However, the court did not terminate the Mother’s
parental rights. 	The Mother and the children then moved in with
the Grandfather.
¶3 	On July 23, 2007, upon belief that the Grandfather was
abusing the children, the Division removed the children from the
Grandfather and initiated “abuse and neglect” proceedings. 	The
juvenile court found that the Grandfather had abused the children
on several occasions and placed custody and guardianship of the
children with the Division. 	The juvenile court also found that
the Division satisfied the provisions of the ICWA, which require
active efforts to prevent the breakup of an Indian family.
Specifically, the court held that the ICWA’s active efforts
requirement was satisfied in the previous placement, when the
Division removed the children from their Mother and placed the
children in the custody of the Grandfather, and that no further
active efforts were required to keep the family together. 	The
court then directed the Division to actively search for a
placement for the children with relatives or members of the
Navajo Nation. 	While awaiting a permanent placement, the

3 	No. 20090052
Division separated the children and placed them in non-Indian
foster homes.
¶4 	Grandfather and Mother appealed the juvenile court’s
combined adjudication and dispositional order. 	The court of
appeals issued two per curiam decisions affirming the juvenile
court’s findings but ordered further briefing on two issues
related to the ICWA. 	See L.D. v. State (State ex rel. A.D.),
2008 UT App 111U, para. 10 (per curiam) (Grandfather’s appeal);
A.D.T. v. State (State ex rel C.D.), 2008 UT App 62U, para. 7
(per curiam) (Mother’s appeal). 	These issues were “(1) [w]hether
the juvenile court properly determined that [the Division] made
active efforts to prevent the break up of the Indian family, and;
(2) [w]hether the juvenile court complied with [the] ICWA . . .
in the placements of the children.” 	State ex rel A.D., 2008 UT
App 111U, para. 10.
¶5 	In the court of appeals, the Mother and Grandfather
argued that the juvenile court failed to comply with the ICWA in
two respects. 	First, they argued that the juvenile court did not
comply with the ICWA’s active efforts requirement when the court
removed the children from the Grandfather and denied him
reunification services. 	A.D.T. v. State (State ex rel C.D.),
2008 UT App 477, ¶ 22, 200 P.3d 194. 	Second, they argued that
the children’s subsequent placement in non-Indian foster homes
did not comply with the ICWA’s preference placements. 	Id. ¶ 42.
In addition to these issues, the State and the Guardian ad Litem
(the “Guardian”) raised the issue of whether the court of appeals
had jurisdiction to review the juvenile court’s adjudication and
dispositional order for compliance with the ICWA’s active efforts
and placement requirements. 	Id. ¶¶ 11, 42. 	Specifically, they
argued that a determination of compliance with the ICWA’s active
efforts and placement requirements is not required until the
permanency hearing, which had not yet occurred and therefore was
not before the court on appeal. 	Id.
¶6 	The court of appeals first addressed whether it had
jurisdiction over the two issues on appeal. 	It concluded that
because compliance with the ICWA’s active efforts and placement
requirements are dispositional determinations, the juvenile
court’s combined adjudication and dispositional order was final
as to these two issues and was properly before the court. 	Id.
¶¶ 19, 51. 	However, as to the merits of the placement
preferences issue, because the Division was not on notice of the
deadline for compliance, the court of appeals remanded the issue
so that the Division could place the children according to the
ICWA’s placement preferences or so that it could “create a record

No. 20090052 	4
demonstrating its attempts to comply and good cause for deviating
from those preferences.” 	Id. ¶¶ 52-54.
¶7 	Next, the court of appeals addressed “[w]hether the
juvenile court properly determined that [the Division] made
active efforts to prevent the break[up] of the Indian family.”
Id. ¶ 7 (second alteration in original). 	It held that the active
efforts expended towards the Mother in the previous proceeding
did not satisfy the ICWA’s active efforts requirement and that
the Grandfather was entitled to active efforts in the case below
because he was the children’s Indian custodian. 	Id. ¶¶ 22-30.
The court of appeals then described what active efforts requires.
Id. ¶ 34. 	It stated that active efforts “connote a more involved
and less passive standard than” the reasonable efforts required
by the abuse and neglect provisions of the Utah Code. 	Id. ¶ 34.
It concluded that while the Grandfather had not received any
active efforts, such efforts were not required because they would
have been futile. 	Id. ¶¶ 36-38. 	The court of appeals based its
determination on the fact that before gaining custody of the
children, the Grandfather had previous experience and training as
a Division employee. 	Id. 	The court surmised that, given the
Grandfather’s extensive training in child-rearing techniques, any
further efforts to reform his behavior would be futile. 	Id.
¶8 	Guardian and Grandfather took issue with the court of
appeals’ decision. 	On January 21, 2009, Guardian filed a
Petition for Writ of Certiorari, and on February 20, 2009,
Grandfather filed a Cross-Petition for Writ of Certiorari.
Guardian argues that the court of appeals erred when it
determined that it had jurisdiction to review the juvenile
court’s determination regarding the ICWA’s active efforts and
placement preference requirements. 	Additionally, Guardian
requests that we vacate the court of appeals’ opinion in its
entirety. 	In his cross-petition, Grandfather argues that the
court of appeals erred when it found that the ICWA’s active
efforts requirement contains a futility exception.
¶9 	After we granted certiorari on these issues, the
children were placed with their respective biological fathers.
The State subsequently filed a suggestion of mootness on the
basis that the children’s placement with their fathers moots the
ICWA’s requirement to provide active efforts to prevent the
breakup of the Indian family. 	We have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(a) (Supp. 2010).

5 	No. 20090052
ANALYSIS
¶10 	The State and Guardian argue that the issues regarding
the court of appeals’ jurisdiction and ICWA compliance are now
moot because the children have been placed with their respective
biological fathers. 	Grandfather argues that the issue is not
moot because the Division’s finding that he is not entitled to
active efforts will affect his ability to gain custody of the
children in the event the fathers subsequently relinquish or lose
custody. 	He additionally argues that, if this court finds the
issues moot, the issues should be considered under the public
interest exception to the mootness doctrine because the issues
are “of wide concern, would affect the public interest, [are]
likely to reoccur in a similar manner . . ., and would otherwise
escape judicial review.” 	We disagree and hold that the issues of
jurisdiction and ICWA compliance are moot and do not fall under
the public-interest exception to the mootness doctrine.
I. 	THE ISSUES ARE MOOT
¶11 	First, we address whether the issues raised are moot.
Generally, we will not decide a case that is moot. 	“‘A case is
deemed moot when the requested judicial relief cannot affect the
rights of the litigants.’” 	Ellis v. Swensen, 2000 UT 101, ¶ 25,
16 P.3d 1233 (quoting Burkett v. Schwendiman, 773 P.2d 42, 44
(Utah 1989)). 	The instant case is moot because any decision we
make regarding (1) compliance with the ICWA’s active efforts
requirement or (2) the court of appeals’ jurisdiction will not
affect the rights of the parties. 	As to the ICWA’s active
efforts requirement, the children’s placements with their
respective fathers effectively ends the issue of ICWA compliance.
Any decision we make regarding this issue will not affect the
Grandfather’s alleged right to active efforts under the ICWA.
The children’s fathers have a constitutionally protected right to
custody of their children. 	See Troxel v. Granville, 530 U.S. 57,
65 (2000) (stating that under the Due Process Clause of the
United States Constitution, “[i]t is cardinal . . . that the
custody, care and nurture of [a] child reside first in the
parents”). 	This constitutional right is not overridden by the
ICWA. 	See Dean v. Rampton, 556 P.2d 205, 206-07 (Utah 1976)
(“[I]t has been so long established and universally recognized,
as to be hardly necessary to state, that if a statutory enactment
contravenes any provision of the constitution, the latter
governs.”). 	Nor do the children’s placements with their fathers
conflict with the ICWA’s goal of keeping Indian families
together. 	See 25 U.S.C. § 1901(4)-(5) (2006). 	Because the
fathers have legal custody of the children, Grandfather is no
longer an “Indian custodian” as defined by the ICWA. 	See id. §

No. 20090052 	6
1903(6) (defining Indian custodian as “any Indian person who has
legal custody of an Indian child under tribal law or custom or
under State law or to whom temporary physical care, custody, and
control has been transferred by the parent of such child”).
Accordingly, Grandfather is no longer entitled to active efforts
under the ICWA. 	See id. §§ 1903, 1912, 1931(a) (indicating that
the active efforts requirement applies to Indian custodians and
parents). 	Because any determination we make as to active efforts
will not affect Grandfather in a future proceeding to regain
legal custody of the children, we conclude that a determination
as to active efforts is moot.
¶12 	Likewise, any determination we make regarding the court
of appeals’ jurisdiction will not affect the rights of the
parties in relation to any issues other than those that we have
already declared moot, as discussed above. 	Therefore, the issue
of jurisdiction is also moot. 	In Bennion v. Sundance Development
Corp., the Utah Court of Appeals determined that the issue of
subject matter jurisdiction could not be mooted as a result of
the mootness of a collateral issue because a determination
regarding subject matter jurisdiction would affect other
nonmooted issues. 	897 P.2d 1232, 1234 (Utah Ct. App. 1995). 	But
unlike the issue of jurisdiction in Bennion, the jurisdictional
challenge in this case relates solely to whether the court of
appeals had jurisdiction to review the issues of ICWA compliance.
Therefore, when the issue of ICWA compliance became moot, the
issue of the court of appeals’ jurisdiction to review ICWA
compliance also became moot. 	Because any determination we make
regarding compliance with ICWA’s active efforts requirement or
the court of appeals’ jurisdiction will not affect the rights of
the parties, both issues are moot.
B. 	WE DECLINE TO APPLY THE PUBLIC INTEREST EXCEPTION TO THE
MOOTNESS DOCTRINE
¶13 	Having concluded that the issues of ICWA compliance and
the court of appeals’ jurisdiction are moot, we next consider the
public interest exception to the mootness doctrine. 	“Because
mootness is a matter of judicial policy, the ultimate
determination of whether to address an issue that is technically
moot rests in the discretion of this court.” 	Ellis v. Swensen,
2000 UT 101, ¶ 26, 16 P.3d 1283. 	We generally “will consider a
technically moot issue if it falls within the ‘public interest
exception’ to the mootness doctrine.” 	Id. ¶ 25. 	“The public
interest exception to the mootness doctrine arises ‘when the case
[1] presents an issue that affects the public interest, [2] is
likely to recur, and [3] because of the brief time that any one

7 	No. 20090052
litigant is affected, is capable of evading review.’” 	Id. ¶ 26
(quoting Burkett v. Schwendiman, 773 P.2d 42, 44) (Utah 1989).
¶14 	The issues presented regarding the interpretation of
the ICWA and the court of appeals’ jurisdiction may meet prongs
one and two of the public interest exception to the mootness
doctrine. 	But the issues fail to meet the third prong of the
test because they are not likely to evade review in subsequent
litigation. 	The types of issues likely to evade review are those
that are inherently short in duration so that by the time the
issue is appealed, a court is no longer in a position to provide
a remedy. 	See, e.g., Anderson v. Taylor, 2006 UT 79, ¶ 11, 149
P.3d 352 (holding that failure to file a copy of search warrants
issued and their supporting documentation was likely to evade
review because it would be difficult to conceive of any instance
where law enforcement would not have the incentive to immediately
file the supporting documents thereby rendering the claim moot);
Kearns-Tribune Corp. v. Salt Lake Cnty. Comm’n, 2001 UT 55,
¶¶ 32-33, 28 P.3d 686 (holding that a closed meeting in violation
of the Public Meetings Act was a matter that would evade review
because public officials were likely to publish the notes from
the closed portion of the meeting before the matter was
litigated); Ellis, 2000 UT 101, ¶ 27 (holding that violation of
the election code is likely to evade review because the election
would always be over before the violation could be litigated).
¶15 	Unlike cases where we have employed the public-interest
exception to the mootness doctrine, the issues in this case are
not inherently short in duration. 	Indeed, it is not likely that
most foster or adoptive placements would terminate before issues
surrounding the ICWA could be litigated. 	In fact, in those cases
where a child has been removed from one parent’s custody and
placed in foster care because of neglect or abuse, we suspect
that it is unlikely that the child will be reunited with the
other natural parent at all. 	Rather, in most instances where the
other natural parent is available, it is highly unlikely that a
child found to be “abused or neglected” by one parent will be
placed with another relative or in foster care rather than with
the other available parent. 	Thus, in most cases where Indian
children are placed in foster or adoptive placements, there will
be ample opportunity to litigate the issues surrounding the ICWA.
Because we conclude that the issues raised in the petitions for
certiorari are not likely to evade review in future litigation,
we decline to address them.
¶16 	Having found the issues moot, we now turn to the
Guardian’s request that we vacate the court of appeals’ opinion.
The Guardian argues that vacatur is appropriate because the court

No. 20090052 	8
of appeals erred in its determination that it had jurisdiction.
We decline the Guardian’s invitation to vacate. 	If a case
becomes moot after an appeal has been filed, the decision of
whether to vacate the lower court’s order is a matter of
discretion. 	See, e.g., Cullimore v. Schwendiman, 652 P.2d 915,
916 (Utah 1982) (exercising discretion to dismiss a case that
became moot after an appeal had been filed when the lower court’s
order did not appear to affect the “subsequent proceedings or
rights of the parties” (quoting Merhish v. H.A. Folsom & Assocs.,
646 P.2d 731, 733 (1982))).
¶17 	Generally, if a case becomes moot after a decision by
the court of appeals but before review of a petition for
certiorari, the procedure is to vacate “the [lower court’s] order
and remand the case with instructions to dismiss.” 	See id.; see
also 13C Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3533.10.3, at 623-24 (3d
ed. 2008). 	The purpose behind this procedure is to prevent the
lower court’s judgment from having any res judicata effect on the
parties. 	Merhish, 646 P.2d 731, at 733. (“If a case becomes moot
after a timely appeal has been filed from a lower court order
. . . that order should not be left standing to affect subsequent
proceedings or rights of the parties.”). 	But in those cases
where there is no possibility that the lower court’s decision
will have any collateral consequences for the parties, we may
exercise our discretion to dismiss the petition for certiorari as
moot rather than to vacate the lower court’s opinion. 	See
Cullimore, 652 P.2d at 916.
¶18 	In this case, neither party has presented any evidence
that the lower court’s decisions regarding the narrow issues of
jurisdiction or ICWA compliance will have any collateral legal
consequences on the parties, nor are we aware of such a
possibility. 	Therefore, without expressing any approval or
disapproval of the court of appeals’ opinion, we conclude it is
appropriate to merely dismiss the petitions for certiorari.
CONCLUSION
¶19 	The children’s placements with their fathers make any
determination that we could make regarding ICWA compliance or the
court of appeals’ jurisdiction merely advisory. 	Accordingly, we
hold that these issues are moot. 	Additionally, we decline to
review them under the public-interest exception to the mootness
doctrine because they will not necessarily evade review in
subsequent litigation. 	We therefore dismiss the petitions for
certiorari.

9 	No. 20090052
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¶20 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Nehring, and Judge Christiansen concur in Justice
Parrish’s opinion.
¶21 	Due to his retirement, Justice Wilkins did not
participate herein; Judge Michele M. Christiansen sat.