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as: 748 P.2d 201)
Court
of Appeals of Utah.
STATE
of Utah, In the Interest of T.D.C., A Person Under
Eighteen Years of Age.
No.
870425-CA.
Jan. 5, 1988.
Certiorari
Denied March 22, 1988.
*202 Scott
Groene, DNA-People's Legal Services, Inc., Mexican Hat, for T.D.C.
Diane Wilkins, Asst.
Atty. Gen., Salt Lake City.
Craig Halls, San Juan
Co. Atty., Monticello.
Before DAVIDSON, GARFF
and GREENWOOD, JJ. (On Law and Motion).
MEMORANDUM DECISION
This appeal is before us on an application by Appellant, T.D.C., a minor,
for a certificate of probable cause to stay, pending appeal, a juvenile
court's order of temporary confinement for observation and assessment.
We deny a stay and dismiss the appeal as not taken from a final order.
Appellant was involved
in a high-speed automobile chase with two other youths to avoid a stop
by a police officer for a minor traffic infraction. Although appellant
was initially charged with attempted homicide, he ultimately pled guilty
in juvenile court to the misdemeanor offense of "obstructing justice."
At a hearing on September 23, 1987, after considering a pre-disposition
report, the juvenile court committed appellant to the temporary custody
of the State Division
of Youth Corrections "for up to ninety days of observation and assessment
pending final disposition." A follow-up hearing for "final disposition"
was also set.
Appellant immediately
sought review of that order by appeal to this Court, urging that the juvenile
court lacked jurisdiction under the Federal Indian Child Welfare Act,
25 U.S.C.A. § 1911(a)(1983), to separate appellant from his mother
by even "temporary confinement". Upon consideration of the application
for stay of the order, we questioned, sua sponte, whether that order was
a final order under Rule 4(a), R.Utah Ct.App. for the purpose of our jurisdiction
on appeal.
An appellant may only
appeal from a final order of the juvenile court.
[FN1] The finality of an order in juvenile proceedings is determined in
a manner similar to judgments and orders in other matters. A final, appealable
order is one that ends the current juvenile proceedings, leaving no question
open for further judicial action. In
the Matter of the Appeal in Pima County Juvenile Action,
135 Ariz. 278, 660 P.2d 1205, 1207 (1982), cf.
In re State in the Interest of Atcheson,
575 P.2d 181, (Utah 1978). (An order certifying a juvenile to district
court is a final, appealable order because it irrevocably terminates the
jurisdiction of the juvenile court.) An order which does not completely
determine the rights of the parties, including those of the juvenile child,
is merely interlocutory in nature. D.H.
v. People,
192
Colo. 542, 561 P.2d 5, 6 (1977) (citing
Stillings v. Davis,
158 Colo. 308, 406 P.2d 337 (1965)).
FN1.
In re State
in the Interest of Persinger,
19 Utah 2d 186, 429 P.2d 37 (1967), (an order that a mother submit to
a psychological examination is not a final, appealable order); accord
In re State in the Interest of Atcheson,
575 P.2d 181, 182 (1978).
The Colorado Supreme
Court noted in D.H.
v. People:
It
is imperative by reason of the age of the alleged offenders that their
involvement in unlawful conduct be speedily resolved so that, in cases
where the petition in delinquency is sustained, proper *203
sanctions appropriate to juveniles vis-a-vis adults may be effectively
imposed. The delay involved in appellate review of interlocutory orders
would in many cases necessarily impede the proper function of the juvenile
court.
Id.
561 P.2d at 6 n. 2.
In this case, the order
and the juvenile judge's attendent comments at the hearing indicate that
the order was not intended to be a final disposition of the matter. At
the September 23rd hearing, the judge there stated:
...
I'm going to commit T.D.C. to the Division of Youth Corrections for observation
and assessment, for a period of 60 to 90 days....
And
the case will be continued for a further disposition upon his release
from O & A and depending on the findings at that time, the Court will
reserve judgment as to whether to consider any future placement thereafter,
or to consider probation or some other additional disposition.
Further hearing for the contemplated final disposition was then scheduled
for December 9, 1987.
Appellant argues that
the order of temporary confinement was final because the judge selected
one of the dispositional alternatives in Utah Code Ann. § 78- 3a-39
(1986). This section enumerates approximately eighteen alternative remedies
available in juvenile delinquency proceedings. The statute does not require
that the selection of one of these alternatives necessarily constitutes
a final, appealable disposition. While most of the alternatives suggest
a final appealable disposition, such need not always be automatic. A selection
of certain of the several broad, discretionary choices available to the
court need not result in a final disposition, particularly when a combination
of multiple alternatives may be employed, as was clearly intended in this
case. See
Utah Code Ann. § 78-3a-39(17) (1987). Finality of an order should
be determined by its content and not merely by whether a remedial action
under this statute is employed.
The order for T.D.C.'s temporary confinement in a youth facility for the
purpose of observation and assessment prior to a final disposition does
not purport
to finally dispose of all issues, the rights of T.D.C. and/or his mother
as parental custodian. Nor does the general concept of the continuing
jurisdiction of the juvenile court somehow transform this interlocutory
ruling into a final order.
Accordingly, we dismiss
the appeal for lack of jurisdiction and remand the matter to the juvenile
court for further proceedings.
[FN2]
FN2.
Notwithstanding dismissal of this appeal for lack of a final order, we
observe that appellant also would not be entitled to any stay or other
relief under either Rule 27, U.R.Crim Proc. As noted, his only claim on
appeal is that the juvenile court's authority to order confinement is
preempted by the Indian Child Welfare Act. 25 U.S.C.A. §§ 1903,
1911 (1983). By the express language of § 1903(1) the term "child
custody proceedings", in which the tribal court may exert exclusive
jurisdiction, does not include "placement based upon an act which,
if committed by an adult, would be deemed a crime ..." The exclusion
of delinquent criminal behavior from the federal act is clear and unambiguous.
It would be entirely inappropriate for this Court to presume that when
Congress referred to "juvenile acts which, if committed by an adult,
would be deemed a crime" that it really only meant "serious
criminal conduct" as defined by the Federal Juvenile Justice and
Delinquent Preventions
Act, 42 U.S.C.A. § 5603(14). Had Congress so intended such a restrictive
definition of criminal conduct, it would have so provided. We do not consider
the term "crime" to be ambiguous as appellant claims. The Indian
Child Welfare Act simply has no application in juvenile delinquency proceedings.
Had
we jurisdiction of this appeal, we would be constrained to deny a stay
because the Indian Child Welfare Act has no application in this proceeding.
The issue raised is wholly without merit. State
v. Neeley,
707 P.2d 647 (Utah 1985).
748 P.2d 201
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