State DCFS v. Z.F.

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State of Utah,
Division of Child and Family Services,
Respondent and Appellant,

v.

Z.F.,
Petitioner and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001084-CA

F I L E D
April 19, 2001
2001 UT App 132
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Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Attorneys:
Mark L. Shurtleff, Carol L. Verdoia, and Jeffrey S. Buckner, Salt Lake City, for Appellant
Douglas J. Parry and Jennifer L. Lange, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

The Division of Child and Family Services (DCFS) appeals from an order (1) dismissing Z.F.'s complaint seeking judicial review of informal agency action and (2) transferring the case to the juvenile court. The case is before this court on Z.F.'s motion for summary dismissal, on DCFS's motion for partial summary reversal, and on Z.F.'s motions to strike DCFS's motion and its reply.

We deny both motions to strike. The DCFS motion for partial summary reversal was timely under Rule 10 of the Utah Rules of Appellate Procedure, and the reply memorandum was allowed under Rule 23 of the Utah Rules of Appellate Procedure. We also deny Z.F.'s motion to dismiss the appeal because we conclude that the order dismissing the case and transferring it to juvenile court was final and appealable.

DCFS seeks partial reversal of the district court's order, which would preserve the dismissal, but reverse the transfer. If the DCFS motion is granted, the effect would be to leave dismissal as the disposition in district court contrary to the intent of that court. We agree that the district court could not simultaneously dismiss the case, and transfer it to the juvenile court. However, based upon our determination that the district court had subject matter jurisdiction and erred in both the dismissal and the transfer, we reverse the order and remand for further proceedings in district court.

Z.F. filed a timely complaint on April 7, 1999 seeking judicial review of informal agency action. At that time, Utah Code Ann. § 63-46b-15(1)(a) (1997) gave the district court jurisdiction "to review by trial de novo all final agency actions resulting from informal adjudicative proceedings," with the exception that the juvenile court had jurisdiction in actions relating to removal or placement of children in state custody or the support of those children. The agency decision advised Z.F. that he could seek judicial review in the district court. An amendment to the statute, effective May 3, 1999, gave the juvenile court jurisdiction to review actions relating to "substantiated findings of abuse or neglect pursuant to [Utah Code Ann. §] 62A-4a-116.5." Utah Code Ann. § 63-46b-15(1)(a)(iii) (Supp. 2000).

DCFS argued that the district court automatically lost jurisdiction over Z.F.'s complaint, although it was filed roughly one month before the amendment's effective date. The Utah Supreme Court rejected a similar argument in National Parks & Conservation Ass'n v. Board of State Lands, 869 P.2d 909 (Utah 1993), holding that the statute in effect when a petition seeking judicial review of agency action was filed established the court's subject matter jurisdiction. See id. at 912. The court concluded that "[o]nce a court has acquired jurisdiction of a case, jurisdiction is not extinguished by subsequent legislative action" and an amendment to its jurisdictional statute "did not divest this Court of jurisdiction over this case because jurisdiction attached under the statute in effect when the petition for review was filed." Id. DCFS's reliance on Department of Social Services v. Higgs, 656 P.2d 998 (Utah 1982), is misplaced. Higgs distinguished cases where a complaint was filed after the effective date of the repealed jurisdictional provision, as in Higgs, from cases where a complaint was filed before the effective date of the amendment, as in the present case. See id. at 1001. Accordingly, the court stated that "once a reviewing court's jurisdiction had attached in a case, an action repealing the jurisdiction of the court in question was not intended to divest that court of jurisdiction." Id. (quoting Industrial Comm'n v. Agee, 56 Utah 63, 189 P.2d 414 (1920)). Under well-settled law, the district court was not divested of jurisdiction on the effective date of the amendment, and DCFS's argument did not support dismissal of Z.F.'s complaint.

DCFS argues that even if the district court had subject matter jurisdiction under the statute in effect when the complaint was filed, its jurisdiction terminated when Z.F. failed to serve the complaint on DCFS within 120 days. See Utah R. Civ. P. 4(a). Although Rule 4(a) states that an action shall be dismissed, without prejudice, for failure to timely serve a summons and complaint, the court may extend the time for service under Rule 6(b) of the Utah Rules of Civil Procedure, even if the time has expired. See Callahan v. Sheaffer, 877 P.2d 1259, 1262 (Utah Ct. App. 1994). "Unless and until a cause of action is dismissed, a party who fails to serve a summons in a timely fashion may preserve the action under proper circumstances." Id. The trial court granted Z.F.'s motion to extend time for service, without objection by DCFS. Two months later, DCFS filed a motion to dismiss for lack of jurisdiction, which collaterally attacked the earlier ruling by arguing that the complaint should be dismissed for failure to perfect service within 120 days and that the district court could not extend the time for service.

The district court had subject matter jurisdiction over the case and could grant an extension of the time to serve the defendants based upon a finding of good cause and excusable neglect. See Utah R. Civ. P. 6(b). The district court's excusable neglect "inquiry is fundamentally equitable in nature and entails broad discretion." Serrato v. Utah Transit Authority, 2000 UT App 299,¶10, 414 Utah Adv. Rep. 43. There is no evidence of bad faith; the delay in service was not extensive; upon discovery that his original counsel had not served the complaint, Z.F. and substitute counsel acted diligently to accomplish service. There appears to be no prejudice to DCFS, other than being required to respond to the merits of the complaint. See id. at ¶9. In contrast, dismissal of the complaint, coupled with the expiration of the time for seeking judicial review, would deny Z.F. the opportunity for judicial review.

Finally, we conclude the district court could not transfer the pending case to the juvenile court for determination. The district court's authority to certify issues to the juvenile court is limited to questions of "support, custody, and visitation" where a petition involving the same minor is pending in juvenile court or the juvenile court has previously acquired continuing jurisdiction over the minor. Utah Code Ann. § 78-3a-105(3)(b) (Supp. 2000). A complaint seeking judicial review of the substantiated finding that Z.F. was "substantially responsible" for child abuse is not within this transfer provision. Because the district court had subject matter jurisdiction over the complaint, it should have retained the case for determination on the merits.

We reverse the order dismissing and transferring the case, and remand to the district court for further proceedings on the merits of the complaint.
 
 

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Pamela T. Greenwood,
Presiding Judge
 
 

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Judith M. Billings, Judge
 
 

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Gregory K. Orme, Judge