author: ORME, Judge:

text:
    2004 UT App 179
    James C. MEDLEY, Petitioner and Appellant, v. Freda A. MEDLEY, Respondent and Appellee.
    No. 20020920-CA.
    Court of Appeals of Utah.
    June 4, 2004.
    Clark A. McClellan and Clark B. Allred, MeKeachnie Allred McClellan & Trotter, Vernal, for Appellant.
    Cleve J. Hatch, Duchesne, for Appellee.
    Before Judges JACKSON, ORME, and THORNE, Jr.
   OPINION

ORME, Judge:

¶ 1 With our leave, James C. Medley appeals the interlocutory order denying his motion to dismiss Freda A. Medley’s petition to modify alimony. We agree with the trial court that Freda did not waive her right to future alimony and remand for consideration of whether she is entitled to such alimony.

FACTUAL BACKGROUND

¶ 2 After thirty years of marriage, James and Freda Medley were divorced on March 20, 2000. During the course of the marriage, James earned the primary income. At the time of the divorce, James was employed at the Deseret Generation plant outside Vernal, Utah, and was earning over $50,000 per year. During the marriage and at the time of divorce, Freda was primarily a homemaker, although she was employed outside the home for short intervals.

¶ 3 The decree of divorce, drafted by James’s attorneys, incorporated the terms of the parties’ stipulation and property settlement agreement. Freda was not represented by counsel in the divorce proceedings. Among other things, the decree awarded to each party a vehicle, the personal property in his or her possession, half of the retirement and savings accounts, half of the 1999 income tax refund, and half of the proceeds remaining from the sale of their home after the mortgage and costs of sale had been paid.

¶ 4 At issue in this appeal is the effect of paragraph 7 of the stipulated decree, which provided in pertinent part:

In lieu of and as satisfaction of any claim either party has to alimony, after the house is sold, [James] is ordered to pay [Freda] $400.00 per month to be used for rent and starting November 1, 1999, [James] is ordered to pay [Freda] $300.00 per month for health insurance. These $400.00 per month and $300.00 per month payments shall cease on December 31, 2002.

¶ 5 On July 19, 2002 — five months before James’s payments were to cease — Freda filed a petition to modify the divorce decree, alleging a material change of circumstances, principally the fact that she had been diagnosed with congestive heart failure. Relying on what he contends was Freda’s waiver of the right to alimony, James moved to dismiss. The trial court declined to dismiss, determining that, depending on Freda’s proof, it could enter a new order of alimony despite the provisions in the stipulation and decree. James petitioned this court for leave to take an immediate appeal from this interlocutory order, and we granted the petition.

ISSUE AND STANDARD OF REVIEW

¶ 6 James argues that the trial court erred in denying his motion to dismiss. He claims that the settlement agreement and divorce decree constitute a binding waiver of alimony, which may not be modified, and that the provisions of Utah Code Ann. § 30 — 3—5(8)(g) (Supp.2003) therefore do not apply. “[Although we generally review the determination to modify a divorce decree for an abuse of discretion, insofar as that determination is based on a conclusion of law, we review it for correctness.” Krambule v. Krambule, 1999 UT App 357, 1110, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000).

ANALYSIS

¶ 7 “ ‘Waiver is “the intentional relinquishment of a known right.” ’ ” Hinckley v. Hinckley, 815 P.2d 1352, 1354 (Utah Ct.App.1991) (quoting Mont Trucking, Inc. v. Entrada Indus., Inc., 802 P.2d 779, 781 (Utah Ct.App.1990)) (other citation omitted). “ ‘In order for waiver to occur, “there must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it.” ’ ” Id. (citations omitted). The conduct of a party waiving a right “ ‘ “must evince unequivocally an intent to waive, or must be inconsistent with any other intent.” ’ ” Id. (citations omitted). Additionally, “contracts between spouses or potential spouses are not necessarily judged on the same terms as contracts executed by persons operating at ‘arm’s length.’ ” Reese v. Reese, 1999 UT 75,¶ 24, 984 P.2d 987.

¶ 8 In order to conclude that Freda waived alimony, including her prospective rights under, the divorce statute, James must show that she knowingly and intentionally gave up the right to obtain support from him in the future. We are unable to say that Freda gave up this right because the circumstances do not show a clear intention to relinquish her prospective statutory alimony rights.

¶ 9 In Kinsman v. Kinsman, 748 P.2d 210 (Utah Ct.App.1988), the “[pjlaintiff agreed to waive any right to receive alimony ‘now and forever.’ ” Id. at 212. The language of that agreement shows a clear’ intent to waive alimony in the present and future. In contrast, the stipulation in the present case, which was incorporated into the decree, states that its provisions are “[i]n lieu of and as satisfaction of’ alimony. The language of the stipulation is ambiguous because it is not clear whether the payments were to be made in satisfaction of the alimony obligation, or in exchange for Freda surrendering her right to alimony. If the payments were in lieu of alimony, then they were taken as an alternative to alimony, and the intent to waive at least the present right to alimony could be inferred. However, if the payments were merely in satisfaction of an acknowledged alimony obligation, it would stand to reason that the obligation could be modified pursuant to the statute.

¶ 10 Moreover, even if the stipulation can be fairly construed as a waiver of the present right to receive alimony, it cannot be fairly construed to waive the right to future alimony in the event of a material change in circumstances, pursuant to the alimony provisions of the divorce statute. See Utah Code Ann. § 30-3-5(8)(g)(i)-(ii) (Supp.2003). We reach this conclusion because the stipulation made no reference to the statutory right to new alimony allegedly waived, either by explicit reference to the statute or, as attempted in Kinsman, by a clear reference to the concept of future alimony. We simply “will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is ‘explicitly stated.’ More succinctly, the waiver must be clear and unmistakable.” Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708,103 S.Ct. 1467, 1477, 75 L.Ed.2d 387 (1983). There is no such “clear and unmistakable” waiver in the stipulation in the case before us.

CONCLUSION

¶ 11 We agree with the conclusion of the trial court and affirm its refusal to dismiss on waiver grounds. We remand the case for consideration of Freda’s petition on its merits.

¶ 12 WE CONCUR: NORMAN H. JACKSON and WILLIAM A. THORNE JR., Judges.

      . As a convenience to the reader, and because the provisions in effect at the relevant times do not differ materially from the provisions currently in effect, we cite to the most recent statutory codifications throughout this opinion.

      . "The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce." Utah Code Ann. § 30-3-5(8)(g)(i) (Supp.2003) (emphasis added).

      . The plaintiffs promise in Kinsman was conditioned on her husband’s payment of certain bills. See 748 P.2d at 211. When he declared bankruptcy, this condition was not satisfied and her waiver of alimony was thereby relieved. See id. The applicable part of that stipulation read as follows: "The parties hereby stipulate and agree that each party is a fit and employable person capable of supporting himself [or] herself respectively and that neither party is entitled to alimony and both parties hereby waive the same now and forever.” Id. at 211 n. 1.

      .Given that "[t]he purpose of alimony is to ‘provide support for the wife,’ ” Georgedes v. Georgedes, 627 P.2d 44, 46 (Utah 1981) (citation omitted), the terms of the stipulation in this case may be revealing. The payments James was required to make under the stipulation were for rent and health insurance — classic elements of support. At the same time, it is not clear from the record whether James took a deduction on his taxes for the payments, as Freda alleged in her petition, or whether Freda reported the same as income, both of which would be anticipated, given applicable provisions of the Internal Revenue Code, if the payments were intended to be alimony. See 26 U.S.C.A. §§ 61, 62, 215 (West 2002) (Gross income is defined as income from any source, including alimony; a deduction from gross income is allowed in an amount equal to alimony paid.).

      . We hasten to add that the fact that Freda was not represented by counsel when she entered into the stipulation is of only limited relevance in this appeal. A party is free to represent herself, but may not then use her lack of representation to her tactical advantage. The fact that she did not have counsel means, however, that we need not pause to consider whether it should be presumed that her attorney advised her of her rights to future alimony under the statute and that, in signing the stipulation, she was therefore necessarily waiving that right.

      . Because the key issue on remand will be the legal effect of Freda’s downturn in health in the context of Utah Code Ann. § 30-3-5(8) (Supp. 2003), a matter which occupied much of our attention at oral argument, we had hoped to offer some meaningful guidance for the assistance of the parties and the trial court on remand. See, e.g., Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 38, 70 P.3d 35 (explaining that although the decision to remand makes it unnecessary to reach other issues raised on appeal, "in the interest of judicial economy, 'a brief discussion of these issues is appropriate as guidance for the trial court on remand’ ") (citation omitted); State v. Bell, 770 P.2d 100, 108 (Utah 1988) (addressing issues although they were unnecessary in making the determination to remand “to provide the trial court with some guidance”). In the course of our deliberations, however, it has become clear that we have no consensus on whether we should offer guidance to assist the trial court in resolving the issues likely to arise on remand and, if so, what any such guidance should be. We believe the sharing of multiple, inconsistent views would actually confuse the court and parties, rather than enlighten them, and complicate, rather than aid, the course of the proceedings on remand. Accordingly, in the exercise of judicial discipline — if not judicial economy — we resist the temptation to globally resolve the legal issues raised by Freda’s petition and simply decide the issue squarely presented in this interlocutory appeal.


source: Caselaw Access Project

author: BILLINGS, Presiding Judge:

license: Public Domain

text:
    2004 UT App 193
    ALLSTATE INSURANCE COMPANY, Plaintiff and Appellee, v. Dixon WONG, Defendant and Appellant.
    No. 20030072-CA.
    Court of Appeals of Utah.
    June 10, 2004.

      Daniel F. Bertch and Kevin K. Robson, Berteh Robson, Salt Lake City, and Preston L. Handy, Siegfried & Jensen, Murray, for Appellant.
    Lynn S. Davies and Zachary E. Peterson, Richards Brandt Miller & Nelson, Salt Lake City, for Appellee.
    Before BILLINGS, P.J., GREENWOOD and JACKSON, JJ.
   OPINION

BILLINGS, Presiding Judge:

¶ 1 Dixon Wong appeals the trial court’s order granting Allstate Insurance Company’s (Allstate) Motion to Modify Arbitrator’s Award. Wong argues that the trial court erred by (1) modifying the arbitrator’s award to conform to the underinsured policy limits and (2) considering extrinsic evidence to conclude that the arbitrator had exceeded his authority.

BACKGROUND

¶ 2 On June 1, 2002, Wong sustained serious injuries in an automobile accident in which the other driver was at fault. Wong recovered $50,000 from the other driver’s liability policy and $10,690 from his own personal injury protection (PIP) insurance. Wong subsequently filed a claim under his underinsured motorist policy with Allstate. Wong’s policy has a recovery limit of $100,000 per person. Allstate disputed the amount of damages claimed by Wong. Thus, the parties agreed to submit their dispute to arbitration and signed two documents: (1) an Arbitration Agreement and (2) a Binding Arbitration Agreement.

¶ 3 The Arbitration Agreement, drafted by counsel for Allstate, originally contained a high/low clause which stated that “[t]he parties agree to be bound by a high/low agreement with a high of $100,000 and a low of $0.00. The terms of this high/low agreement shall not be disclosed to the arbitrator.” However, counsel for Wong crossed out the first line of the proposed agreement and reference to the high/low agreement in the second line so that the clause read: “The terms of this agreement shall not be disclosed to the arbitrator.” Counsel for Wong signed and returned the Arbitration Agreement to counsel for Allstate who also signed it with all references to the high/low agreement crossed out. The remaining provisions in the Arbitration Agreement addressed only the rules and procedures for conducting the arbitration.

¶ 4 On March 18, 2002, the parties signed the Binding Arbitration Agreement, which defined the nature of the dispute to be arbitrated as “underinsured motorist claim— damages.” On May 14, 2002, counsel for Wong sent a letter to Allstate’s counsel confirming their agreement that the dispute would be arbitrated without a high/low agreement in place and without making the arbitrator aware of the Arbitration Agreement or the policy limits. On May 15, 2002, counsel for Allstate replied by letter affirming their agreement not to submit a high/low provision to the arbitrator but also indicating Allstate’s position that Wong is bound by the $100,000 policy limit regardless of the amount the arbitrator awards.

¶ 5 The arbitration hearing was held the following day, May 16, 2002. Neither party introduced Wong’s insurance policy or any evidence regarding policy limits, and the arbitrator did not request that information. The arbitrator found that Wong had suffered $321,616.85 in damages and awarded a net amount of $260,926,84 after subtracting the liability coverage and PIP benefits previously paid to Wong.

¶ 6 When Wong refused to accept Allstate’s tender of $100,000, Allstate timely filed a Motion to Vacate Arbitrator’s Award, or in the Alternative, Motion for Modification of Arbitrator’s Award. Allstate provided the trial court an affidavit from an Allstate insurance adjuster and the declarations page of Wong’s policy as evidence of the $100,000 policy limit. After a hearing on Allstate’s motion, the trial court found that “the arbitrator exceeded his authority and power by entering an award in excess of $100,000, that the award is beyond the reasonable contemplation of the parties, and that award lacks adequate foundation in reason or fact.” The court ordered that the arbitrator’s award be modified to conform to the policy limits of $100,000. Wong appeals.

ISSUE AND STANDARDS OF REVIEW

¶ 7 Wong asserts that the trial court erred by granting Allstate’s motion to modify the arbitration award because the arbitrator did not exceed his authority in awarding an amount greater than Wong’s underinsured motorist policy limit. There are two standards applicable to the review of arbitration awards: the standard applied by the trial court in reviewing the arbitration award and the standard applied in an appellate review of the trial court’s decision. See Softsolutions, Inc. v. Brigham Young Univ., 2000 UT 46,¶ 10, 1 P.3d 1095. “The standard of review for a trial court ‘is an extremely narrow one’ giving “considerable leeway to the arbitrator,” ’ and setting aside the arbitrator’s decision ‘ “only in certain narrow circumstances.” ’ ” Id. (quoting Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 947 (Utah 1996) (other citation omitted)). Further, “[t]he trial court ‘may not substitute its judgment for that of the arbitrator, nor may it modify or vacate an award because it disagrees with the arbitrator’s assessment.’ ” Id. (quoting Buzas Baseball, Inc., 925 P.2d at 947).

[2]¶8 “In reviewing the order of the district court confirming, vacating, or modifying an arbitration award, we grant no deference to the court’s conclusions of law, reviewing them for correctness.” Id. at ¶ 12. In particular, our “scope of review is limited to the legal issue of whether the trial court correctly exercised its authority in confirming, vacating, or modifying an arbitration award.” Intermountain Power Agency v. Union Pac. R.R. Co., 961 P.2d 320, 323 (Utah 1998).

ANALYSIS

¶ 9 Wong asserts that the trial court erred by modifying the arbitrator’s award and by considering extrinsic evidence in interpreting the scope of the parties’ submission. Under the Utah Arbitration Act (the Act), see Utah Code Ann. §§ 78-31a-l to -20 (2002), a trial court must vacate an arbitration “award if it appears ... the arbitrators exceeded their powers.” Id. § 78-31a-14(l)(c). The Act also requires a trial court to “modify or correct the award if it appears [that] ... the arbitrators’ award is based on a matter not submitted to them, if the award can be corrected without affecting the merits of the award upon the issues submitted.” Id. § 78-31a-15(l)(b) (emphasis added). Here, the trial court found that under section 78-31a-14(l)(c), the arbitrator exceeded his authority. Rather than vacating the award as required by the Act, the trial court modified it to conform to Wong’s underinsured motorist policy limits. We conclude this was error.

[4] ¶ 10 Allowing the trial court to vacate that portion of the arbitration award which exceeds the limits of Wong’s insurance policy actually modifies the award without determining whether modification is warranted under the Act. Where a trial court determines that an arbitrator exceeds his authority, the proper remedy is to vacate the entire award and “order a rehearing before new arbitrators chosen as provided in the arbítra-

tion agreement or by the court; Ann. § 78-31a-14(3). Utah Code

¶ 11 While this is an issue of first impression in Utah, addressing the statutory provisions separately is consistent with Utah case law. In Softsolutions v. Brigham Young University, 2000 UT 46, 1 P.3d 1095, the Utah Supreme Court affirmed the trial court’s order denying the appellant’s motion to vacate or, in the alternative, modify an arbitration award. See id. at ¶ 57. The court held that under the Act, a trial court must vacate an arbitration award if it appears that the arbitrator exceeded his authority. See id. at ¶ 15. The court explained that for a trial court to conclude an arbitrator exceeded his authority it must “(1) review the submission agreement and determine that the ‘arbitrator’s award covers areas not contemplated by the submission agreement,’ or (2) determine that an award is ‘without foundation in reason or fact.’ ” Id. (quoting Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 950 (Utah 1996) (other quotations and citations omitted)). In a separate paragraph, the court stated that the Act requires a trial court “to modify an arbitration award if it appears that ‘the arbitrators’ award is based on a matter not submitted to them, if the award can be corrected without affecting the merits of the award upon the issues submitted.’ ” Id. at ¶ 16 (quoting Utah Code Ann. § 78-31a-15(l)(b) (1996)). The court then addressed each claim separately under the two statutory provisions. See id. at ¶¶ 17-39.

¶ 12 Because the trial court in the instant case modified, rather than vacated, the arbitration award, we must examine whether the modification was appropriate under section 78-31a-15(l). In particular, we must determine whether the trial court could have found that the arbitrator’s “award [was] based on a matter not submitted to [him]” and, if so, whether the award “can be corrected without affecting the merits of the award upon the issues submitted.” Utah Code Ann. § 78-31a-15(l)(b).

¶ 13 First, the trial court could have found that the arbitrator based his award on a matter not presented in the parties’ submission agreement. The Binding Arbitration Agreement states that the issue to be addressed by the arbitrator is “underinsured motorist claim—damages.” It does not state that any other matters are to be addressed such as the specific amount Allstate must pay Wong under his underinsured motorist insurance policy. The arbitrator correctly determined that Wong had suffered a total of $321,616.85 in damages. However, the arbitrator also decided the net amount to be paid to Wong by Allstate, a “matter not submitted to [him].” Utah Code Ann. § 78-31a-15(l)(b). In particular, the arbitrator reduced the total amount of damages by $60,690.00 for liability coverage and PIP benefits previously paid and awarded Wong a net amount of $260,926.84. However, the matter submitted to the arbitrator was the total amount of damages incurred by Wong without regard to policy limits or other set-off amounts. Therefore, had the trial court examined the Binding Arbitration Agreement and the arbitration award, it could have reasonably concluded that the arbitrator’s award was based on a matter not submitted to him.

¶ 14 Second, the trial court could have corrected the award without affecting the merits of the award upon the issue submitted to arbitration by the parties. See id. Specifically, because the arbitrator determined what damages Wong suffered prior to calculating the net amount awarded, the trial court could have modified the award to reflect the only issue properly before the arbitrator: damages suffered by Wong without regard to policy limits or other set-off amounts. Therefore, we hold that the trial court could have corrected the award without affecting the merits upon the matter submitted to arbitration. Accordingly, the trial court should have modified the arbitrator’s award to reflect the matter submitted to arbitration and entered the total amount of damages incurred by Wong as $321,616.85.

¶ 15 However, the total amount of damages incurred by Wong has no bearing on the maximum amount Allstate could pay Wong pursuant to his underinsured motorist policy. The trial court held that

the ■ underinsured motorist policy constitutes a contract, and ... the policy limits of $100,000 define the outer extent of exposure to [Allstate] on a claim for underin-sured motorist benefits.... The Arbitration Agreement did not operate to open or modify the terms of the insurance contract. ... The court finds that the insurance policy limits of $100,000 constitute a contractual determination of the parties, which are not modified or altered by virtue of the arbitration agreements.

We agree. There is no evidence that the parties intended the prior contractual relationship to be modified by either the Arbitration Agreement or the Binding Arbitration Agreement. In fact, correspondence between the parties just prior to the arbitration evidences the opposite intent. Therefore, while the trial court should have modified the arbitration agreement to reflect the matter submitted to the arbitrator, the trial court correctly found that the arbitration did not modify the original contractual obligations of the parties and ordered that Allstate pay Wong $100,000 pursuant to his insurance policy. Accordingly, we affirm.

¶ 16 WE CONCUR: PAMELA T. GREENWOOD and NORMAN H. JACKSON, Judges.

      . There is no evidence that Wong’s insurance policy with Allstate contained an arbitration clause. Rather, it appears that both parties agreed to arbitration after the dispute arose.

      . At the arbitration, counsel for Allstate was Leonard E. McGee and counsel for Wong was Preston L. Handy.

      . The Act was repealed and a new Chapter 31a was enacted in its place effective May 15, 2003. See Utah Code Ann. §§ 78-31a-101 to -131 (2002).

      . The full text of that former provision provides: (1) Upon motion to the court by any party to the arbitration proceeding for vacation of the award, the court shall vacate the award if it appears:
      (a) the award was procured by corruption, fraud, or other undue means;
      (b) an arbitrator, appointed as a neutral, showed partiality, or an arbitrator was guilty of misconduct that prejudiced the rights of any party;
      (c) the arbitrators exceeded their powers;
      (d) the arbitrators refused to postpone the hearing upon sufficient cause shown, refused to hear evidence material to the controversy, or otherwise conducted the hearing to the substantial prejudice of the rights of a party; or
      le) there was no arbitration agreement between the parties to the arbitration proceeding.
      Utah Code Ann. § 78-31a-14(l) (2002).

      .The full text of that former provision provides:
      (1) Upon motion made within 20 days after a copy of the award is served upon the moving party, the court shall modify or correct the award if it appears:
      (a) there was an evident miscalculation of figures or an evident mistake in the description of any person or property referred to in the award;
      (b) the arbitrators' award is based on a matter not submitted to them, if the award can be corrected without affecting the merits of the award upon the issues submitted; or
      (c) the award is imperfect as to form.
      Utah Code Ann. § 78-31a-15(l) (2002).

      . However, a better way to reach the same correct result would have been for Allstate to file a declaratory action asking the court to determine the effect of the arbitrator’s award on Allstate's obligation to pay Wong, its insured under the policy.

      . Wong also seeks attorney fees pursuant to Utah Code Annotated section 78-31a-16 (2003). Because we affirm, attorney fees are not warranted.


author: THORNE, Jr., Judge:

text:
    2004 UT App 198
    STATE of Utah, Plaintiff and Appellee, v. Heather Jo RODRIGUEZ aka Heather Holdman, Defendant and Appellant.
    No. 20030006-CA.
    Court of Appeals of Utah.
    June 10, 2004.

      Lori J. Seppi and Shannon N. Romero, Salt Lake City, for Appellant.
    Mark L. Shurtleff, atty. gen., and Matthew D. Bates, asst. atty. gen., Salt Lake City, for Appellee.
    Before Judges DAVIS, JACKSON, and THORNE, Jr.
   OPINION

THORNE, Jr., Judge:

¶ 1 Heather Jo Rodriguez appeals from the trial court’s denial of her motion to suppress evidence and her subsequent conviction through a conditional guilty plea. We reverse.

BACKGROUND

¶2 On the afternoon of May 9, 2001, Heather Jo Rodriguez was driving southbound on Main Street, in Salt Lake City, accompanied by her friend, Terry Stewart. Between 4:45 and 4:50 pm, soon after she passed through the controlled intersection of 17th South and Main Street, Rodriguez abruptly turned left into oncoming traffic, directly in front of a school bus. Rodriguez’s sudden turn gave the bus driver no time to evade the car, and the bus struck the passenger side of Rodriguez’s ear, throwing the car off of the road and onto a nearby yard. The bus driver immediately reported the accident. Paramedics arrived on the scene at 4:50 pm. After removing Rodriguez from the vehicle, the paramedics determined that she was in critical condition and quickly moved her to an ambulance, which transported her to LDS Hospital. The paramedics then noted that Stewart had severe head injuries and determined that she was near death and likely to die. They moved her to an ambulance for transport to the University Hospital. At about that point, the first of the responding Salt Lake City police officers arrived on the scene.

¶3 As the officers began to examine the scene and look for possible witnesses they were approached by someone who appeared to be a paramedic. That person told the officers that the occupants of Rodriguez’s car smelled of alcohol. When the officers looked in Rodriguez’s car, they found a purse, which turned out to be Stewart’s. In the purse the officers found an open, partially empty bottle of vodka. Soon thereafter, the supervising officer arrived. He was informed of the circumstances surrounding the accident, the apparent paramedic’s observations, and the partially empty bottle of vodka found in the car. He immediately requested that dispatch send an officer to obtain a blood sample from Rodriguez.

4 At 5:10 pm — no more than twenty-five minutes after the accident occurred- — dispatch instructed officer Nate Swensen to locate the driver and “witness a blood draw.” Swensen first drove to the University Hospital. There, he learned that the driver had been taken to LDS Hospital and that Stewart, the passenger, was expected to die. He then drove to LDS Hospital. Although he did not know Rodriguez’s name at the time, when Swensen entered the emergency room he asked the staff to direct him to the “patient that was brought in from the traffic accident.” The staff directed him to the CT room where Swensen found Rodriguez lying on a CT table, waiting for a CT scan. He noticed that she was being very uncooperative with the medical staff and that her breath had a heavy odor of alcohol. He also noticed that her eyes were red and that her speech was slurred. In general, Swensen described Rodriguez as “uncooperative,” “very angry,” and “belligerent.”

¶ 5 Upon locating Rodriguez, Swensen asked her some questions, but found her to be uncooperative. He then waited between twenty and twenty-five minutes for the blood draw technician to arrive. When the technician arrived, Swensen informed Rodriguez that they “were going to draw blood from her just as we do in accidents.” The technician drew blood from an IV line that had been inserted into Rodriguez’s arm upon her arrival. The vials containing the blood were then labeled, stored, and the blood was eventually tested. The test revealed that, at the time of the blood draw, Rodriguez’s blood-alcohol level was .39.

¶ 6 Stewart died and Rodriguez was charged with one count of automobile homicide. Rodriguez filed a motion to suppress any evidence derived from the warrantless blood draw, which the trial court initially granted. However, after the State petitioned for relief from the judgment, the trial court reconsidered and denied the motion. Rodriguez subsequently entered into an agreement with the State, pleading guilty to the charge, but reserving her right to appeal the trial court’s denial of her motion to suppress. She now appeals.

ISSUE AND STANDARD OF APPEAL

¶ 7 Rodriguez argues that the trial court erred in refusing to suppress all evidence that resulted from the warrantless blood draw performed after her automobile accident, because the State failed (1) to demonstrate that the officer had probable cause to believe she had committed an alcohol related offense, and (2) to show that the extraction was justified by exigent circumstances. When reviewing a trial court’s determination that exigent circumstances justified a war-rantless intrusion, we defer to the court’s factual findings, but examine its ultimate legal conclusion for correctness. See City of Orem v. Henrie, 868 P.2d 1384, 1386 (Utah Ct.App.1994).

ANALYSIS

¶ 8 Rodriguez argues that the State’s decision to obtain forcibly a blood sample from her was unsupported by either probable cause or exigent circumstances. “Warrant-less searches are per se unreasonable under both the state and federal constitutions.” State v. Morck, 821 P.2d 1190, 1192-93 (Utah Ct.App.1991). “However, the presumption against warrantless searches is not without its exceptions, which are ‘ “jealously and carefully drawn.” ’ ” City of Orem v. Henrie, 868 P.2d 1384, 1387-88 (Utah Ct.App.1994) (quoting State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987) (additional citation omitted)). “One such exception to the warrant requirement recognized by both the United States Supreme Court and Utah’s appellate courts is exigent circumstances.” Salt Lake City v. Davidson, 2000 UT App 12,¶ 9, 994 P.2d 1283.

¶ 9 To justify a police officer’s decision to extract blood without the benefit of a search warrant, the State bears the burden of showing that (1) the officer had probable cause to believe that the defendant was involved in an alcohol-related offense; (2) the officer had reason to believe the blood sample would produce evidence of the defendant’s level of intoxication when the crime was committed; (3) the officer reasonably believed that they were “confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of the evidence,’ ”; and (4) the method used by the officer to obtain the blood sample was “performed in a reasonable manner.” Schmerber v. California, 384 U.S. 757, 771-72, 86 S.Ct. 1826, 1836-37,16 L.Ed.2d 908 (1966) (citation omitted); see also Henrie, 868 P.2d at 1388 (stating “the [State] bears the burden of showing both probable cause and exigent circumstances”). Because we find the exigency question to be dispositive, we do not address the issue of probable cause.

¶ 10 Rodriguez argues that the trial court erred in failing to examine the totality of the circumstances of this case before deciding that the drawing of her blood was justified by exigent circumstances. The State counters that “[t]he U.S. Supreme Court and a majority of jurisdictions that have considered the issue have held that the evanescence of blood-alcohol evidence coupled with delays inherent in investigating an alcohol-related traffic accident constitutes exigent circumstances under the Fourth Amendment.” See, e.g., United States v. Berry, 866 F.2d 887, 891 (6th Cir.1989) (“Because evidence of intoxication begins to dissipate promptly, it is evidence in this case that there were exigent circumstances indicating the need to take such action.”); State v. Codo, 147 Ariz. 277, 709 P.2d 1336, 1345 (1985) (concluding that “because of the destructibility of the [blood-alcohol] evidence, exigent circumstances existed”); People v. Milhollin, 751 P.2d 43, 49 (Colo.1988) (stating “[t]he inherent nature of a blood alcohol test justifies the conclusion ... that exigent circumstances existed”); State v. Cooper, 136 Idaho 697, 39 P.3d 637, 640-41 (Ct.App.2001) (recognizing the propriety of the warrantless extraction of blood “since blood alcohol concentration begins to dissipate due to the body’s natural metabolism of alcohol shortly after a person stops drinking”); State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 402 (1993) (“A logical analysis of the Schmerber decision indicates that the exigency of the situation presented was caused solely by the fact that the amount of alcohol in a person’s blood stream diminishes over time.”); cf. United States v. Reid, 929 F.2d 990, 994 (4th Cir.1991) (concluding that exigent circumstances justify a warrantless administration of a breathalyzer test because “[t]ime is of the essence when testing for alcohol in the bloodstream,” and because of society’s interest in “protecting its citizens from drunk drivers”). Although we recognize that several jurisdictions have interpreted Schmerber as creating what is, in effect, a per se rule, we conclude that the Schmerber language comports with accepted exigent circumstances doctrine and decline to adopt the per se interpretation urged by the State.

¶ 11 In Schmerber, the United States Supreme Court recognized that in certain situations police officers may be presented with exigent circumstances that justify the officer’s failure to comply with the Fourth Amendment warrant requirement. See Schmerber, 384 U.S. at 770-72, 86 S.Ct. at 1835-36. After an automobile accident in which the defendant and his passenger were injured, the defendant was taken to a hospital where he was placed under arrest. See id. at 758 & n. 2, 86 S.Ct. at 1829 & n. 2. Following the arrest, “[a]t the direction of a police officer, a blood sample was then withdrawn from [the defendant’s] body by a physician.” Id. at 758, 86 S.Ct. at 1829. Over the defendant’s objection, the state’s analysis of the involuntary warrantless blood sample was then used to convict him of driving under the influence of alcohol. See id. at 758-59, 86 S.Ct. at 1829.

¶ 12 On appeal, the Supreme Court began by noting that the blood draw violated neither the defendant’s constitutional Due Process rights, nor his Fifth Amendment privilege against self-incrimination. See id. at 759-61, 86 S.Ct. at 1830-31. The Court then highlighted that the extraction of blood for evidentiary reasons clearly implicates the Fourth Amendment, but that “the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Id. at 768, 86 S.Ct. at 1834. After quickly disposing of the probable cause issue, the Court addressed the warrant requirement, stating that “[sjearch warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.” Id. at 770, 86 S.Ct. at 1835. “The importance of informed, detached and deliberate determinations of the issue of whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Id. However, the Court concluded that under certain circumstances, warrantless searches do not violate the Fourth Amendment. Specifically, the Court determined that when a trial court is able to find that a police officer’s warrantless search was premised upon a reasonable belief that “he was confronted with an emergency,” and “the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” the warrantless extraction of blood is justified. Id. (citation omitted). After acknowledging that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops” the Court concluded: “Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, [encompassing approximately two hours time,] there was no time to seek out a magistrate and secure a warrant.” Id. at 770-71, 86 S.Ct. at 1836.

¶ 13 Consequently, the Court determined that the police officers involved in Schmerber did not violate the Fourth Amendment because they were faced with exigent circumstances. See id. However, the Court did not conclude that exigent circumstances existed solely because the evidence involved was blood-alcohol. Instead, the Court focused on the evanescent nature of blood-alcohol evidence coupled with the time that had elapsed between the occurrence of the accident and the opportunity to draw the defendant’s blood. Moreover, the Court’s language — highlighting the potential difficulties California police officers faced in contacting a magistrate at that time — suggests that other factors important to the analysis are magistrate availability and local warrant procedures. See State v. Flannigan, 194 Ariz. 150, 978 P.2d 127, 131 (Ct.App.1998) (concluding that under Schmerber “the evanescent quality of alcohol and drugs in a person’s body creates an exigency only if the evidence might disappear before the police can obtain a warrant”). Finally, the language in Schmerber itself supports a conclusion that the court did not adopt a per se approach. The language states:

It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the State’s minor intrusion into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836.

¶ 14 Relying upon the language of Schmerber, we conclude that exigent circumstances will be found, where the situation involves blood-alcohol evidence, only when the “totality of the circumstances,” City of Orem v. Henrie, 868 P.2d 1384, 1388 (Utah Ct.App.1994), supports a finding that the officer “was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835 (citation omitted). Moreover, the mere fact that blood-alcohol evidence is evanescent, although important to the equation, is insufficient to create exigent circumstances by itself.

¶ 15 Therefore, we must examine the instant case to determine whether or not the totality of the circumstances supports a conclusion that the officer was faced with exigent circumstances when he extracted Rodriguez’s blood without a warrant. “ ‘Exigency does not evolve from one individual fact. Instead, there is often a mosaic of evidence, no single part of which is itself sufficient. Our task is to review the totality of the facts and circumstances of the particular ease.to determine if the finding of exigency was proper.’ ” Henrie, 868 P.2d at 1388 (alteration omitted) (quoting State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987)). However, although we review “the facts and circumstances of the case” as a whole, State v. White, 856 P.2d 656, 659 (Utah Ct.App.1993), should the trial court’s findings fail to address any important factor, we are in no position to supplement the findings. See Bailey v. Bayles, 2002 UT 58,¶¶ 19-20, 52 P.3d 1158; Brigham City v. Stuart, 2002 UT App 317,¶ 10, 57 P.3d 1111, cert. granted, 65 P.3d 1190 (Utah 2003).

¶ 16 We have, in the past, highlighted several factors for use in determining whether a situation created exigent circumstances sufficient to overcome the need for a search warrant.

Relevant facts may include the distance to the nearest magistrate, the availability of a telephonic warrant, the feasibility of a stake-out or other form of surveillance while a warrant is being obtained, the seriousness of the underlying alcohol-related offense, the commission of another offense such as fleeing the scene, the ongoing and continuing nature of an investigation, the extent of probable cause, and the conduct of the investigating officers.

Henrie, 868 P.2d at 1392.

¶ 17 In this case, the trial court ruled that the dissipation rate of alcohol in the blood created an exigency that justified the war-rantless extraction of Rodriguez’s blood. The court also ruled that the alcohol-related accident was quite serious and that the police officers had probable cause to believe that Rodriguez was driving while intoxicated. However, the trial court left open the question of time; the proximity of the nearest magistrate; the alternatives explored and discarded by the officers; the estimated delay the officers faced in seeking a warrant; the impact that the delay could have had on obtaining viable evidence; and the point of time in the accident investigation when the decision was made to extract Rodriguez’s blood. The court’s failure to address these factors is fatal to its determination that exigent circumstances existed in this case.

¶ 18 Our review of the record reveals that the accident occurred between approximately 4:45 and 4:50 pm on Wednesday, May 9, 2001. After arriving on the scene and being apprised of the seriousness of the accident, the condition of Rodriguez and her passenger, and the possibility that alcohol may have contributed to the accident, the supervising officer, through dispatch, ordered Swensen to ensure that the State procured a sample of Rodriguez’s blood. Swen-sen testified that he received the call at 5:10 — no more that twenty-five minutes after the accident occurred. Swensen further indicated that he first went to the University Hospital — where Stewart had been taken— and then to LDS Hospital, where he found Rodriguez. There, he waited an additional twenty to twenty-five minutes before the department’s authorized blood technician arrived. Only then did Swensen inform Rodriguez that he was there to supervise the extraction of her blood “as we do in accidents.”

¶ 19 It is clear from the record that the decision to extract Rodriguez’s blood was made soon after the accident occurred, at a time “when courts are open and search warrants can be readily requested” either in person or by telephone. State v. Northrup, 756 P.2d 1288, 1292 (Utah Ct.App.1988). Yet the supervising officer testified that he made no effort to obtain a warrant. The record is also devoid of any indication that Swensen considered requesting a warrant. Moreover, the State presented no testimony that anyone, at any time, had assessed the difficulty and time required to obtain a proper search warrant to obtain Rodriguez’s blood. Rather, both officers seemingly proceeded with the understanding that a warrant was not necessary to extract Rodriguez’s blood.

¶20 Under these circumstances, we conclude that the State has failed to meet its burden of proving exigency. Neither officer made any efforts to procure a warrant, or even inquire about the availability of a magistrate, prior to performing the blood draw on Rodriguez. More troubling is Officer Swen-son’s statement that the blood draw was to be done “as we do in accidents,” which suggests that officers of the Salt Lake City Police Department view such blood draws as a matter of routine. However, exigency is the opposite of routine, and a reasonable belief that an emergency is at hand is always required if warrantless action is to be justified on the basis of exigent circumstances.

¶ 21 The evanescent nature of blood-alcohol evidence does not, per se, convert every alcohol-related blood draw into an emergency. Without some reasonable belief that the steady dissipation of blood-alcohol constitutes an emergency under the particular circumstances, a warrant must be obtained. The record does not reflect such a reasonable belief in this case; consequently, the evidence arising from the warrantless draw of Rodriguez’s blood must be suppressed.

CONCLUSION

¶ 22 The trial court erred in admitting the evidence obtained through the warrantless extraction of Rodriguez’s blood. The exigent circumstances doctrine requires the State to show that the situation amounted to an emergency. Here, however, the State has shown only that the warrantless blood draw occurred pursuant to routine procedure followed by the Salt Lake City Police Department. Accordingly, we reverse Rodriguez’s conviction for driving under the influence of alcohol and remand, instructing the trial court to suppress all evidence derived from the warrantless blood draw.

¶ 23 WE CONCUR: JAMES Z. DAVIS and NORMAN H. JACKSON, Judges.

      . The trial court made no findings concerning the timing of these events; consequently, we rely on the only reliable time reference in the record: that of the responding officer. The supervising officer testified that he did not remember the exact time he had called dispatch.

      . We acknowledge that later statements by the United States Supreme Court concerning Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), suggest that the evanescent nature of blood-alcohol may be sufficient, in and of itself, to justify a warrantless blood draw. See Skinner v. Railway Labor Rxec-utives' Ass’n, 489 U.S. 602, 623, 109 S.Ct. 1402, 1416, 103 L.Ed.2d 639 (1989) (addressing blood tests and railway employees); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (concluding that a defendant’s refusal to take a blood test is admissible evidence not violative of the Fifth Amendment). However, because these cases do not directly address the question that we face today, and because the Schmerber references found therein are best described as dicta, we adhere to what we believe the plain language of Schmerber demands: a totality of the circumstances approach with the understanding that blood-alcohol evidence is evanescent.

      . Although the thrust of City of Orem v. Henrie, 868 P.2d 1384 (Utah Ct.App.1994), was focused on the warrantless invasion of Henrie’s home, central to that issue was the importance of preserving blood-alcohol evidence. See id. at 1388 (“[W]e consider only whether the possible destruction of evidence of defendant's alcohol content under the facts and circumstances presented was an exigent circumstance justifying this war-rantless home search.”). Consequently, we conclude that the Henrie analysis is applicable to the warrantless extraction of blood from a defendant.

      . Having failed to present sufficient evidence to support tire trial court's conclusion, the State is foreclosed any opportunity to revisit this issue on remand. See State v. Topanotes, 2003 UT 30, ¶ 11, 76 P.3d 1159 (stating "we have previously held that when the State has the burden of proof and the record on appeal fails to sustain any theory of admissibility, the State ‘is not entitled to a remand to [possibly] put on new evidence’ " (quoting State v. Hodson, 907 P.2d 1155, 1159 (Utah 1995))). Because Topanotes also forecloses any possible remand for the trial court to enter additional factual findings, we remand directing the trial court to grant Rodriguez's motion to suppress.


author: LEHMAN, Justice.

text:
    2004 WY 82
    In the Interest of HP and NP, minor children: AA, Appellant (Respondent), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).
    No. C-03-15.
    Supreme Court of Wyoming.
    July 14, 2004.

      Representing Appellant: Stacy E. Casper of Casper Law Office, LLC, Casper, WY. Argument by Ms. Casper.
    Representing Appellee: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; and Jill E. Kucera, Senior Assistant Attorney General. Argument by Ms. Kucera.
    Guardian ad Litem: Ann M. Rochelle.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Mother appeals the juvenile court order entered following a review hearing in a neglect proceeding. The juvenile court ordered the Department of Family Services (DFS) to pursue termination of parental rights. Mother challenges the sufficiency of the evidence regarding the juvenile court’s findings. She also asserts that her fundamental rights were violated. We affirm.

ISSUES

[¶ 2] Mother presents two issues:

I. Whether the trial court erred in finding that reasonable efforts had been made to reunify the family, that there were ongoing and persistent failures by mother to comply with basic requirements of case plan and that the children’s health and safety would be jeopardized by returning the children to the mother.
II. Whether mother’s fundamental rights were violated when her right to associate with her children was terminated by decision of MDT group July 1, 2002, contrary to the court’s prior ruling of June 4, 2003.

The State phrases the issues as:

I. Was there sufficient evidence for the juvenile court to determine, by clear and convincing evidence, that reasonable efforts had been made to reunify the family and that the health and safety of the minor children would be jeopardized by returning the children to the mother?
II. Were Mother’s rights violated in this neglect proceeding?

Finally, the Guardian Ad Litem (GAL) presents the following statement of the issues:

1. The Trial Court properly found by clear and convincing evidence that [Mother’s] parental rights to her two children, [HP] and [NP] should be terminated.
2. There was no violation of [Mother’s] rights by the actions of the Multi-Disci-plinary Team on July 1, 2002.

FACTS

[¶ 3] On December 4, 2001, the Natrona County Assistant District Attorney filed a petition in the juvenile court alleging that Mother’s two children, HP and NP, were neglected. Prior to the petition, HP and NP had been residing in the home of their paternal grandparents and biological father (Father). A supporting affidavit provided by DFS alleged that on December 3, 2001, DFS was informed “the family could no longer provide care for the children.” At that time, the grandparents had been evicted from their home; the location of Father was unknown, but he was believed to be in the Wyoming Behavioral Institute; and Mother was incarcerated at the Natrona County Detention Center for drug issues. On December 5, 2001, Mother was sentenced to eighteen to twenty-four months at the Women’s Center in Lusk, Wyoming.

[¶ 4] Additionally on December 5, 2001, the juvenile court held a shelter care hearing. Mother was present at the hearing and was advised of her rights and the allegations in the petition. Father did not attend. The juvenile court found that Mother was serving a sentence at the Women’s Center. This fact, combined with Father’s failure to attend the hearing, led the juvenile court to find that the children needed continued shelter care. The juvenile court therefore placed the children in the temporary legal and physical custody of DFS for appropriate placement. The court additionally ordered DFS to provide ease management.

[¶ 5] On December 19, 2001, the district court held an initial hearing on the petition. Again, Father did not attend the hearing. At the hearing, Mother stated that she was in agreement with an adjudication of neglect. The court then stated that it would “adjudicate the case based upon the petition that [is] not objected to and the affidavit of [DFS].” The court found that it was neither appropriate nor in the children’s best interest to remain in the family’s home. In its order of placement following the hearing, the juvenile court noted that Mother “admitted and consented to the Court’s jurisdiction and disposition” and ordered that the children remain in the legal and physical custody of DFS. The court also ordered DFS to make reasonable efforts to reunite the family and that a multidisciplinary team (MDT) be appointed to make recommendations and provide the court with a report for disposition of the matter.

[¶ 6] The MDT first met on January 11, 2002. Mother appeared by telephone and reported Father had a negative effect on her and the children, Father had a history of becoming physically violent, and she had significant concerns for the children’s safety if Father were allowed to care for them. The MDT considered this information and the needs of the children and determined that both children needed consistent contact with Mother, an environment free from violence, and parents that were drug and alcohol free. The MDT also noted that Mother had “huge potential” due to her bonding with the children, positive family support, her intelligence, and stated willingness to make changes. The recommended placement goal at that time was for the children to be reunified with Mother or Father. To achieve reunification with her children, the MDT recommended that Mother complete the following objectives:

1) Attend and successfully complete the drug treatment program at the Women’s Center.
2) Comply with all recommendations made throughout the treatment program.
3) Attend and complete parenting classes available at the Women’s Center.
4) Complete her GED.
5) Participate in individual counseling. She will address co-dependency tendencies, self-esteem, her tendency to self-sabotage, and overall relationship issues.
6) Pay child support of $10.00 per month, per child. She will comply with Child Support Enforcement. Their requirements of child support will override this recommended amount.
7) Remain drug and alcohol free.

Following this meeting, Mother received and signed the prepared case plan that contained these objectives.

[¶7] On January 23, 2002, the juvenile court held a dispositional hearing. The juvenile court found that custody should be continued in DFS and ordered DFS to continue to make reasonable efforts to reunite the children with them family. The juvenile court also ordered the parents to cooperate with DFS and the case plan for reunification. Lastly, the court ordered that the MDT reconvene in six months to review the case and make recommendations to the court. On April 29, 2002, DFS filed a report with the court which summarized the progress Mother had made on the ease plan. The report indicated the permanency plan for HP and NP was family reunification with Mother. In the report DFS recommended that the children remain in foster care until Mother was released from prison and had obtained employment and a home for her and the children.

[¶ 8] The MDT met a second time on July 1, 2002, and a third time on November 12, 2002. Mother again participated in these meetings by phone. The MDT noted Mother’s progress with the case plan, such as the completion of her GED, but also noted problems encountered at the Women’s Center, including being fired from employment. The team continued to recommend that the children be reunified with Mother and set forth the objectives Mother needed to complete before reunification could be achieved. These objectives were substantially similar to the ones noted previously. At the third meeting the team agreed that it was important for the case to remain open to allow Mother to work toward reunification after she was released from the Women’s Center in March 2003. Following this meeting, the MDT submitted a report to the court and recommended the court consider that Mother was in prison until March of 2003 a compelling reason not to terminate Mother’s parental rights. At the third meeting Mother also noted that she was planning to live at Life Steps Transitional Housing upon her release from prison.

[¶ 9] A fourth MDT meeting was held on February 21, 2003, in anticipation of Mother’s release from prison. At that time, the MDT recommended that the children be reunified with Mother upon her satisfactory completion of her DFS case plan. Following this meeting Mother received and signed another case plan, which contained eight objectives:

1. Obtain suitable housing,
2. Maintain steady and suitable employment,
3. Enroll in and complete parenting classes,
4. Attend individual counseling,
5. Have supervised visitation with her children,
6. Keep in constant contact with DFS and CASA — keeping them aware of any and all changes,
7. Remain free of any illegal substances, and
8. Fully cooperate with a Family Assistance Worker.

The team also worked with Mother regarding housing arrangements, employment, transportation to visit the children, childcare services, Title XIX, and medical coverage for the children. Mother was released from the Women’s Center on the anticipated date, and DFS placed the children with her on March 28, 2003.

[¶ 10] On May 2, 2003, the juvenile court held another review hearing. At the time of the hearing, the case had been ongoing for seventeen months. Prior to the hearing, DFS filed a report with the court. In the report the MDT appeared optimistic about Mother’s progress. A CASA/Co-GAL report outlined Mother’s home, employment, enrollment in a parenting class, and her child support payments. Based on the MDT’s positive report, the court ordered legal custody of the children to DFS and physical custody of the children to Mother. The court further ordered that the matter “shall not continue for more than three (3) months absent further request for a hearing in this matter.”

[¶ 11] However, DFS learned of several problems shortly after the May 2, 2003 review hearing. These problems were noted at a May 20, 2003 MDT meeting. Specifically, Mother was unemployed. Additionally, within five days of the May 2, 2003 review hearing, Mother had been evicted from Life Steps housing. The eviction was reportedly the result of a failure to follow Life Steps’ guidelines. In particular, Mother was not doing her chores, not meeting with her case manager weekly, and not abiding by curfew. In addition, Mother left her children unsupervised as she slept or talked on the phone, left the children with other residents without approval from Life Steps’ staff, and was suspected of using alcohol at the facility. At this meeting, Mother disputed that she was evicted due to alcohol use but did admit that she went out a lot and that she had been intoxicated after the children had been placed with her. Mother also claimed that she had not left the children unattended but had asked a babysitter to look in on the children periodically. On May 7, 2003, Mother returned the children to DFS, and they were placed in a new foster home.

[¶ 12] Another problem discussed was that Mother allowed Father to have contact with the children and allowed the children to ride in a vehicle without proper safety restraints. Specifically, Mother and the children were riding in a car with Father when he was arrested. Mother was holding NP on her lap, and HP was not properly restrained in the back seat. When Father was pulled over, he admitted to police that he had used methamphetamine earlier that day and had consumed alcohol. The police found a hypodermic needle and empty beer cans in the car. Also, Father slurred his speech and had bloodshot eyes. Mother claimed that she was unaware that Father was under the influence of drugs or alcohol.

[¶ 13] At this meeting the MDT prepared a revised case plan, which Mother received and signed. This plan included eight objectives: obtain suitable housing within thirty days, obtain steady and suitable employment within thirty days, complete parenting classes, attend individual counseling, submit to random urine analysis, keep in constant contact with DFS and CASA and be honest and forthright about all pertinent information, not have any contact with Father, and cooperate with visitation set up by DFS. The MDT also recommended that if Mother had not made significant progress on her plan within thirty days, the concurrent plan was to recommend termination of parental rights.

[¶ 14] The juvenile court held another review hearing on June 4, 2003. Due to the eighteen months that the case had been pending, the juvenile court expressed reluctance to allow the case to proceed without achieving permanency for the children. The State advised the court of the problems recently brought to the MDT’s attention. In particular, Mother was having contact with Father, Mother was leaving the children without appropriate supervision, and she was using alcohol in an inappropriate manner. Additional concerns were raised that after Mother was evicted from Life Steps, she moved in with a boyfriend but would not disclose information about this man to DFS. At the hearing the district court made the finding that exceptional circumstances existed to warrant continuing the case, but that Mother must comply with the DFS plan for reunification within forty-five days.

[¶ 15] On July 1, 2003, the MDT held a sixth meeting. There DFS advised the MDT that Mother had obtained a job at Wendy’s, but that she quit this job and now worked for a man named Impong. Pay stubs could not be obtained for this work, and it was reported that Mother did not receive a paycheck. Instead, Impong paid her rent and other bills as needed. The MDT also learned that Mother missed appointments with her counselor, and the counselor then refused to see her. In addition, MDT members reported that Mother was living with or sometimes staying with Impong, and his name was on the lease for Mother’s apartment. A DFS report to the court noted these facts and that Mother was evasive about her relationship with Impong, but that she was completely dependant on Impong for her financial and housing needs. The MDT recommended that parental rights be terminated.

[¶ 16] On August 6, 2003, the juvenile court held a dispositional review hearing. The court made three findings by clear and convincing evidence: 1) reasonable efforts have been made to reunify the family; 2) there have been ongoing and persistent failures on behalf of Mother to comply with basic plan requirements; and 3) the children’s health and safety would be jeopardized by returning the children to Mother. In making its findings at the review hearing the court stated, “just by the passage of time and the large, large number of efforts that have been involved with this case that there have been reasonable efforts to rehabilitate; that there have been ongoing, persistent, and continued failures on the part of [Mother] to seek and maintain some stability in housing, a safe environment, employment, counseling, and the other just basics that would need to be implemented.”. The juvenile court then ordered that the case remain open for six months, legal and physical custody remain with DFS, and that DFS pursue termination of parental rights. Mother appeals this order.

STANDARD OF REVIEW

[¶ 17] We understand Mother’s argument to challenge the sufficiency of the evidence supporting the juvenile court’s findings. When reviewing a record for sufficient evidence to sustain a finding of neglect, we:

1. Give considerable deference to the trial court’s determination because it has the advantage to judge the demeanor and intelligence of the witnesses;
2. Examine the evidence in the light most favorable to appellee and resolve all conflicts in evidence for appellee;
3. Assume as true the evidence in appel-lee’s favor, disregard entirely appellant’s evidence in conflict with appellee’s evidence, and give to appellee’s evidence every favorable inference that may fairly be drawn.

DH v. Dep’t of Family Servs. (In re “H” Children), 2003 WY 155, ¶ 54, 79 P.3d 997, ¶ 54 (Wyo.2003) (quoting MP v. State in Interest of CP, 965 P.2d 1155, 1157 (Wyo.1998)).

DISCUSSION

Findings of Fact

[¶ 18] In order to facilitate our discussion of the issues presented by the parties, we find it necessary to briefly review the procedural process of this ease. This matter came before the juvenile court as the result of a petition alleging neglect as defined by Wyo. Stat. Ann § 14-3-401 through -439 (LexisNexis 2003), the Child Protection Act. Under the Child Protection Act, a neglected child is defined as a child “[w]hose custodian has failed or refused to provide adequate care, maintenance, supervision, education or medical, surgical or any other care necessary for the child’s well being.” Wyo. Stat. Ann. § 14-3^402(a)(xii)(A). Allegations of neglect under the Act must be proved by & preponderance of the evidence. Wyo. Stat. Ann. § 14-3-425(a).

[¶ 19] In her brief, Mother states that the petition only alleged neglect against Father. In reviewing the petition we see that it alleged that the children were “without proper care and control or lack subsistence, maintenance, education required by law, medical care or treatment or supervision necessary for said children’s health and welfare because of omissions of said children’s parents.” Hence, the petition did not specify a particular parent but included both parents. Furthermore, at the initial hearing held on December 19, 2001, Mother admitted and consented to the court’s jurisdiction and disposition. We therefore conclude the petition of neglect involved Mother.

[¶ 20] As noted in the fact section, at the initial hearing Mother stated that she was in agreement with an adjudication of neglect, and the court stated that it would “adjudicate the case based upon the petition that’s not objected to and the affidavit of [DFS].” However, following the initial hearing, it appears that there is no separate decree of neglect against Mother. We note, as we did in In re “H” Children, ¶ 63, we are somewhat concerned by the lack of a decree. Wyo. Stat. Ann. § 14 — 3—402(a)(i) contemplates a separate decree of neglect, and § 14-3-426(c) requires entry of a decree. Id. Nevertheless, the lack of a separate decree is not specifically raised as an issue in this case, and we will not consider it further.

[¶ 21] What we do find in the record following the initial hearing is an Order for Placement. This order does not specifically use the word “neglect” or make a specific finding of neglect against Mother. However, it does state that the court “hereby adjudicates and takes jurisdiction over this matter” and specifically finds that Mother was sentenced to the Wyoming State Penitentiary. As defined by the Child Protection Act, “adjudication” is “a finding by the court or the jury, incorporated in a decree, as to the truth of the facts alleged in the petition.” Wyo. Stat. Ann. § 14-3-402(a)(i). By specifically stating that it “adjudicates” the matter, the juvenile court made a finding that the facts alleged in the petition were true. We conclude that this statement, combined with the court’s specific finding that Mother was in prison, was a finding of neglect against Mother. In fact later at the August 6, 2003 review hearing, the juvenile court explained that Mother’s incarceration and inability to care for the children constituted neglect. We have previously allowed orders that do not specifically use the word “neglect” but do contain findings tantamount to neglect to constitute findings of neglect. See In Interest of C, 638 P.2d 165, 172 (Wyo.1981); In Interest of MFB, 860 P.2d 1140, 1151 (Wyo.1993). We similarly find that in this case the court made a finding of neglect against Mother.

[¶ 22] Having found that the juvenile court did make a finding of neglect against Mother, we additionally conclude that there was sufficient evidence for the court to make such a finding. At the time the petition was filed, Mother was incarcerated and unable to care for the children. The whereabouts of Father were unknown. The children were left with Father’s parents who could not care for them, and no one else had been provided to care for the children. As such, we hold that there was sufficient evidence for the juvenile court to find by a preponderance of the evidence that the children were neglected inasmuch as Mother had failed to provide adequate care for the children’s well-being.

[¶ 23] This finally leads us to the order Mother specifically appeals. This order states:

AND THE COURT FINDS by clear and convincing evidence that reasonable efforts have been made to reunify the family and that there have been ongoing and persistent failures on behalf of the mother of the minor children, [Mother], to comply with basic case plan requirements and that the children’s health and safety would be jeopardized by returning the children to the mother; FURTHER, that the said father of the minor children is incarcerated.
IT IS FURTHER ORDERED that this matter shall continue for six (6) months; and that the Department of Family Services shall pursue Termination of Parental Rights.
IT IS FURTHER ORDERED that the previous Court orders and conditions not amended herein shall be continued.

Because the order specifically continues the case for six months, at first glance it may not appear to be an appealable order. However, under W.R.A.P. 1.05(b), an order affecting a substantial right made in a special proceeding is an appealable order. “Proceedings in juvenile court are special proceedings and both adjudication and disposition affect substantial rights.” In re “H” Children, ¶ 61. As discussed above, the court adjudicated neglect following the initial hearing. This order did however follow a dispositional review hearing and appears to be a dispositional order because it orders DFS to begin termination proceedings. In any event, the order certainly affects Mother’s substantial rights as it has the effect of halting reunification attempts. Therefore, we will treat it as an appealable order. Id., at ¶ 64.

[¶ 24] On appeal, Mother argues that the juvenile court erred in finding by clear and convincing evidence that reasonable efforts have been made to reunify the family, that there have been ongoing and persistent failures on behalf of Mother to comply with basic case plan requirements, and that the children’s health and safety would be jeopardized by returning the children to Mother. As provided by statute, the juvenile court is charged with conducting:

a review hearing six (6) months from the date of the child’s removal from the home, twelve (12) months from the date of the child’s removal from the home, and not less than once every twelve (12) months thereafter. At each of these review hearings the court shall review the case plan to determine:
(i) The health and safety of the child;
(ii) The continuing necessity for the placement;
(iii) The appropriateness of the current placement;
(iv) The reasonableness of efforts made to reunify the family and the consistency of those efforts with the case plan;
(v) The appropriateness of the case plan and the extent of compliance with the case plan including the permanent placement of the child;
(vi) If progress has been made toward alleviating or mitigating the causes necessitating placement outside the home and the extent of that progress; and
(vii) The date the child is expected to be returned to the home or placed for adoption or legal guardianship.

Wyo. Stat. Ann. § 14-3-431(e). These criteria help the court determine the appropriateness of its disposition, and it appears that it is in this context, that the juvenile court made the findings Mother claims were in error.

[¶ 25] Mother’s argument on this issue is framed as a challenge to the sufficiency of the evidence. As we have previously explained, termination of parental rights requires clear and convincing evidence, but child neglect need only be shown by a preponderance of the evidence. In re “H” Children, ¶ 39. “In the realm of due process, this is consonant with the requirement that notice and the opportunity to be heard must be appropriate to the nature of the case.” Id. Additionally, Wyo. Stat. Ann. § 14-3-424(a) provides that hearings under the Child Protection Act are to be conducted in “an informal but orderly manner and separate from other proceedings not included under this act.” (Emphasis added.) Thus, the formalities of the proceedings themselves and the notice and opportunity to be heard provided in a neglect proceeding are not the same as that in a termination proceeding. Accordingly, we review the court’s findings only in the context of a review hearing in a neglect proceeding and under the preponderance of the evidence standard that is applicable to neglect proceedings. See Wyo. Stat. Ann. § 14-3-425; In re “H” Children, ¶ 39; but see Wyo. Stat. Ann. § 14-3-429(a)(iv) where clear and convincing evidence is required to show that reasonable efforts were made to prevent the initial removal from the home. Although the juvenile court’s findings in this case may be similar to several of the findings required in order to terminate parental rights, they must be fully litigated in a termination proceeding under the applicable clear and convincing standard. See In re “H” Children, ¶ 39; Wyo. Stat. Ann. § 14-2-309(a)(iii).

[¶ 26] The juvenile court’s first finding is that there had been reasonable efforts to reunify the family. See Wyo. Stat. Ann. § 14-3-431(c)(iv). We conclude that there was sufficient evidence for the juvenile court to make this determination. Six MDT meetings were held to assess the case. At each of these meetings the MDT encouraged Mother to complete her case plan and offered assistance. The MDT wrote four case plans for Mother that outlined the steps she would have to take to achieve reunification. While Mother was incarcerated, the MDT tailored case plans to her situation. DFS arranged overnighfc-unsupervised visits between the children’s maternal grandmother and the children while Mother was incarcerated. This allowed Mother visitation with her children because her mother took the children to the Women’s Center twice a month. Additionally, the MDT requested and the court appointed a CASA worker to facilitate providing services to Mother and the children. Immediately upon her release from the Women’s Center, Mother was allowed visitation with the children, and the children were allowed to live with Mother within two weeks of her release. DFS offered Mother transportation to visitation, recommended Mother for counseling services, and assisted Mother in procuring suitable housing. It is true that the rehabilitative efforts after Mother was released from the Women’s Center were short lived. However, over the course of the plan the above-noted facts show that reasonable efforts were made to reunify the family.

[¶27] Next, the court found that there were ongoing and persistent failures by Mother to comply with the case plan. See § 14-3-431(c)(v) and (vi). Mother argues that she complied with the case plan. She asserts that the MDT recommended termination based on criteria that were never a part of the written case plan, for example, that she had contact with Father and that she consumed alcohol. These issues aside, part of Mother’s case plan was to obtain suitable housing, that she maintain steady and suitable employment, and that she properly care for the children.

[¶ 28] Mother was evicted due to her violation of the rules at transitional housing. Mother then chose to move in with Impong, but would not give DFS information about him so that DFS could ensure that the children would be safe around him and that the housing was “safe, stable, and secure.” Similarly, Mother left her job on her own volition and then began working for Impong who “would be paying her under the table and she would never get a formal paycheck.” In fact, the letter Mother obtained from Impong stated that her “income has yet to be determined, and may be subject to fluctuational changes.” As such, her work could be characterized as less than steady and suitable. It was documented that Mother was leaving the children unattended or without suitable attention. Thus, we conclude that in the context of a review hearing this evidence is sufficient in itself for the juvenile court to find that Mother has failed to comply with the case plan which meant that progress was not being made toward alleviating or mitigating the causes necessitating placement outside the home.

[¶ 29] Likewise, there was sufficient evidence for the court to find that the children would be jeopardized by return to Mother’s custody. See § 14—3—431 (c)(i), (ii), (vi), and (vii). Mother exposed the children to drugs and alcohol. Mother drank herself to the point of intoxication, leaving her unable to care for the children. The children were exposed to drugs because of Mother’s contact with Father who had drug paraphernalia and was under the influence of drugs. Mother allowed the children to ride in a car where the driver was intoxicated. The children were additionally exposed to instability due to Mother’s lack of employment and housing. Furthermore, it was Mother who alerted DFS to safety concerns when the children were with Father, yet she disregarded this safety concern. These facts combine to show that the children were currently in jeopardy and could not be immediately returned to Mother.

[¶ 30] At the time of the final review hearing, this case had been pending for nineteen months. With few exceptions, Wyo. Stat. Ann. § 14-3-431(d) requires the State file a petition to terminate parental rights when a child has been placed in foster care under the responsibility of the State for fifteen of the most recent twenty-two months. One such exception is if the state agency has documented a compelling reason that the filing of the petition is not in the best interests of the child. Wyo. Stat. Ann. § 14-3-431(d)(ii). As part of her argument Mother asserts that the MDT had documented, and the court had found, a compelling reason not to terminate Mother’s parental rights because she was incarcerated. Once Mother was released and had an opportunity to attempt reunification, even though such an opportunity was short lived, the juvenile court was well within its rights to determine that this compelling reason no longer existed.

[¶ 31] We, therefore, find that there was sufficient evidence for the court to make these findings in the context of a review hearing in a neglect proceeding. As such, the court’s disposition was that DFS no longer had to make attempts to reunify the family. Based on the circumstances and the evidence presented, we do not believe the court erred in making these determinations and ordering DFS to begin termination proceedings.

Fundamental Rights

[¶ 32] Mother’s second issue is that her fundamental rights were violated by the MDT’s decision to recommend terminating her parental rights. The thrust of Mother’s argument is that at the June 4, 2003 review hearing, the court gave her forty-five days to comply with her case plan, yet the MDT recommended well before expiration of this time that termination be pursued.' We conclude that the MDT’s actions did not violate Mother’s fundamental rights. Certainly, as Mother asserts, the application of the termination of parental rights statutes is a matter for strict scrutiny. See SD v. Carbon County Dep’t of Family Servs., 2002 WY 168, ¶ 5, 57 P.3d 1235, ¶ 5 (Wyo.2002). However, just as with the first issue, we must consider that this was a neglect proceeding, not a termination proceeding. The MDT does not have the power to terminate Mother’s parental rights, but simply makes recommendations to the juvenile court. Additionally, while the court ordered DFS to begin termination proceedings, Mother’s parental rights have not been terminated. Until actual termination occurs, Mother has residual parental rights. See Wyo. Stat. Ann. § 14-3-402(a)(x) (LexisNexis 2003).

[¶ 33] Furthermore, the court ordered Mother to comply with DFS requests for information. At the sixth MDT meeting it became apparent that Mother was reluctant to share information with DFS regarding her living situation and employment with Im-pong. Thus, it was apparent that DFS would not be able to verify whether Mother had complied with her case plan. It also appeared that future rehabilitative efforts would be unsuccessful, as Mother had adopted the attitude that what she did was her business and not that of DFS. Therefore the MDT decided‘to recommend termination of parental rights.

[¶ 34] Although the MDT recommended termination prior to the expiration of the forty-five-day time frame, it is clear the court did not order DFS to begin termination until after the period had elapsed. The MDT has no power to terminate parental rights, but merely makes a recommendation. It is the court’s duty to determine disposition. Indeed, the juvenile court heard argument regarding the shortening of time but nevertheless decided to take the MDT’s recommendation. Had the court found the MDT’s actions to be in violation of its order, it could have ordered that Mother be extended more time to comply. Furthermore, Mother did not come to court and show that new strides had been made from the July 1, 2003 MDT meeting to the August 6, 2003 review hearing and has not shown how she was prejudiced by the MDT’s actions. We therefore find Mother’s arguments unpersuasive.

CONCLUSION

[¶ 35] We affirm the court’s Order Following Review Hearing. As described above, the State presented sufficient evidence for the juvenile court to make the contested findings in the context of a review hearing in a neglect proceeding. Additionally, Mother’s fundamental rights were not violated.

      . The GAL's statement of the issues states that the court found by clear and convincing evidence that Mother's parental rights should be terminated. However, this was not a termination proceeding and, as noted above, the court's findings are in the context of a review hearing in a neglect proceeding.

      . As noted in the fact section, such a finding in this case was made at the initial hearing.