¶ 15 I concur in the majority opinion, as I agree that the Stayed Order and the January 6 Order were not final, appealable orders. However, I write separately to explore two areas of concern. First, I respond to Father's argument that this court's failure to treat the January 6 Order as final and appealable deprives him of his right to a direct appeal of the juvenile court's removal decision. Second, as noted by the majority opinion, see supra ¶ 9 n. 4, children are never to be removed from the home as a punishment to a parent or parents. See In re A.R., 1999 UT 43, ¶ 18,982 P.2d 73. I believe that this prohibition on removal as punishment should also preclude the routine use of removal as a mechanism for the enforcement of court orders, which the State has argued for in this case.
¶ 16 In his initial appellate brief, Father argues that, in light of this court's denial of his petition for interlocutory appeal, the January 6 Order must be treated as final in order to preserve Father's constitutional right to appeal.See Utah Const. art. VIII, § 5. Father argues:
If the finality of the order is not recognized . . ., then a parent is necessarily deprived of their right to appeal the matter if [the court of appeals] also declines to hear the matter on interlocutory review. [Father] filed both an interlocutory petition and a direct appeal on the issue for this reason, and [the court of appeals] denied the interlocutory petition. Disallowing a process which allows an appeal from the merits of the issues surrounding removal renders the [Juvenile Court] Act's provisions completely meaningless and allows the State, [Guardian ad Litem], and juvenile court to side-step the parent's right to appeal.
In his reply brief, in response to the State's argument that further proceedings would be required in the juvenile court, Father argues that the only such hearings would be review hearings that would not permanently change the Children's status and would, therefore, also not be final and appealable. Accordingly, Father argues that "this is [his] only chance to appeal the removal of the Children" and that he "has appealed at the appropriate time."
¶ 17 Even assuming that there may never *Page 1193 be a final order in this case, 1 the appeal rights of parents in Father's position are adequately protected by this court's careful consideration of petitions for interlocutory appeal. See Utah R.App. P. 5; In re A.F.,2007 UT 69, ¶ 10, 167 P.3d 1070 ("While orders that do not affect the status of the child are not immediately appealable as a matter of right, they are not rendered completely unreviewable. Discretionary review may be sought through a petition for interlocutory appeal."). Obviously, petitions for interlocutory review of removal decisions are not granted as a matter of routine. However, when such petitions are denied it is after this court's careful consideration of the circumstances of each individual case.
¶ 18 Rule 5 of the Utah Rules of Appellate Procedure provides that interlocutory review "may be granted only if it appears that the order involves substantial rights and may materially affect the final decision or that a determination of the correctness of the order before final judgment will better serve the administration and interests of justice." Utah R.App. P. 5(e). Although the granting of interlocutory review is discretionary, see In re A.F., 2007 UT 69, ¶ 10,167 P.3d 1070, it seems to me that orders removing children from the home may qualify for — i.e., meet the minimum requirements for — discretionary review pursuant to rule 5. The right of parents to raise their children in their home is unquestionably a substantive right. See In re T.B.,2010 UT 42, ¶ 30, 232 P.3d 1026 ("[T]he United States Supreme Court has recognized that the Fourteenth Amendment provides parents a protectable liberty interest in the care, custody, and control of their children, and that such an interest is a fundamental right. . . ." (internal quotation marks omitted)). Removal of children from the home may also have some impact on the final decision in the matter, as when the children's bonding with foster parents supports the later termination of parental rights, see, e.g., In reA.F.K., 2009 UT App 198, ¶ 37, 216 P.3d 980, cert.denied, 221 P.3d 837 (Utah 2009), or when parental rights are terminated for failure to correct the conditions leading to removal, see, e.g., In re D.H., 2009 UT App 32, ¶ 12, 204 P.3d 210.
¶ 19 Thus, this court's review of petitions for interlocutory appeal of removal orders should carefully consider the third qualifying factor enumerated in rule 5, whether "a determination of the correctness of the order before final judgment will better serve the administration and interests of justice." Utah R.App. P. 5(e); see also In reJ.W., 2004 UT App 482, ¶ 4, 105 P.3d 962 (mem.) (per curiam) ("[T]he child's welfare outweighs the concern for judicial economy, even if it results in more than one appeal."). Just such a review happened in this case, not once, but three times by two different courts — once on Father's petition for inter-locutory appeal in this court, once on Father's motion for rehearing of the denial of that petition, and once by the Utah Supreme Court in denying certiorari review.
¶ 20 Thus, Father's right to appeal the removal of the Children has not been denied in this case. Father obtained multiple reviews of his petition for discretionary appeal. He may still appeal from a final order that issues in this matter. And, if no final order ever issues, Father may continue to seek discretionary review of other orders or may seek relief through an extraordinary writ or other judicial process. Thus, Father's due process rights to appellate review have not been violated by our requirement that direct review result from a final order or judgment.
¶ 21 Turning to my second concern, the State expressly argued in its brief that the juvenile court must be allowed to "enforce its orders, in some cases by affecting the placement of the children under its jurisdiction." At oral argument, the State reiterated its position that removal was a tool available to the juvenile court to "enforce judicial conditions." However, the Utah Supreme Court has stated: *Page 1194
The primary focus of and sole statutory justification for child protection proceedings is to protect the interests of children who are neglected or abused. "[T]he welfare of children is the consideration of paramount importance," and children are removed only when it is in their best interest. Although parents may suffer a severe detriment in losing temporary or permanent custody of their children, punishment of the parents is not the purpose of the proceeding. A child is never removed from a home as a "punishment" to the parent. Indeed, it is strongly presumed that "it is in the best interest and welfare of a child to be raised under the care and supervision of his [or her] natural parents." In most cases, the primary objective is to effectuate a family treatment plan that will allow children to be returned to their parents. In such cases, state intervention is designed to benefit parents in the long run.In re A.R., 1999 UT 43, ¶ 18, 982 P.2d 73 (alterations in original) (citations omitted).
¶ 22 I believe that a prohibition on using child placement decisions as punishment should also preclude their use as routine sanctions to enforce court orders. Courts have multiple other tools at their disposal to enforce their orders, up to and including fines and imprisonment. See Utah Code Ann. § 78B-6-310 (2008) (setting penalties for contempt of court). More importantly, placement decisions must always be based on the best interest of the child. See, e.g., In reO.C., 2005 UT App 563, ¶ 21, 127 P.3d 1286 ("The Utah Supreme Court has likewise stated that the `interest and welfare of the child be given paramount consideration in all cases involving the custody of children.'" (quotingTaylor v. Waddoups, 121 Utah 279, 241 P.2d 157, 160 (1952))). Not only are the enforcement of court orders and the best interests of children two independent goals, but removal of children from the home is often traumatic to both parents and children and, even when justified, may ultimately cause more harm than good. See generally UPenn Collaborative on Community Integration, Removal from the Home: ResultingTrauma, http://www.upennrrtc.org/var/tool/file/ 238-Updated% 20Trauma.pdf (surveying research examining the harms caused by removal of children from the home). For these reasons, I write to highlight the State's sanctions argument, even though the court is not reaching the merits of Father's appeal.
¶ 23 Notwithstanding these concerns, I agree with the conclusion of the majority opinion that neither the Stayed Order nor the January 6 Order was final and appealable because neither "effect[ed] a change in the permanent status of the [Children]." See In re A.F., 2007 UT 69, ¶ 3,167 P.3d 1070. Accordingly, I concur in the majority opinion.