Rojas v. State of Utah

----ooOoo----

Martha Rojas,
Petitioner and Appellant,

v.

Department of Human Services,
Division of Child and Family Services,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020763-CA

F I L E D
December 12, 2002 2002 UT App 410 -----

Third District Juvenile, Salt Lake Department
The Honorable Kimberly K. Hornak

Attorneys:
Martha Rojas, Kaysville, Appellant Pro Se
Mark Shurtleff and John M. Peterson, Salt Lake City, for Appellee -----

Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

This case is before the court on its own motion for consideration of summary disposition, pursuant to rule 10 of the Utah Rules of Appellate Procedure, on the basis that the question presented lacks sufficient merit to justify further consideration by the court. Both parties filed a response to this court's motion.

This was a judicial review of an informal administrative proceeding and was filed in the juvenile court. The administrative proceeding affirmed a substantiation by the Division of Child and Family Services of emotional maltreatment by Appellant of her child.

Appellee argues that the juvenile court correctly dismissed the administrative appeal because Appellant failed to properly serve Appellee with the complaint, pursuant to rule 4(b) of the Utah Rules of Civil Procedure, within 120 days of filing of the complaint with the court.

The State is correct that petitions for judicial review of informal adjudicative hearings, pursuant to Utah Code Ann. § 63-46b-15 (Supp. 2002), are filed as complaints and governed by the Utah Rules of Civil Procedure. A party filing a complaint must serve it upon the opposing party no more than 120 days after filing of the complaint. See Utah R. Civ. P. 4(b). Appellant has not alleged, nor does the record indicate, that Appellant properly served the opposing party. Failure to timely serve the summons and complaint requires dismissal of the action. See id. Therefore, the juvenile court did not err in dismissing the complaint.

Appellant argues that the juvenile court did not dismiss on the basis of failure to properly serve the opposing party because the complaint was dismissed with prejudice. However, nothing in the record indicates that the juvenile court dismissed the complaint with prejudice.

Because we determine the juvenile court was correct in its dismissal of the complaint on the basis stated above, we need not address the other arguments. The dismissal of the complaint by the juvenile court is summarily affirmed.
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge