author: KENNETH L. BUETTNER, Judge.

text:
    2003 OK CIV APP 68
    In the Matter of the Complaint Against: MAINSTREET PHARMACY, (7-4481), 2205 W. Main, Norman, OK, 73069 and Clayton Fuchs, RPh # 12790, 9710 Kings Link Circle, Rowlett, TX 75089. Clayton Fuchs and Mainstreet Pharmacy, Appellants, v. Oklahoma State Board Of Pharmacy, Appellee.
    No. 97,489.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 17, 2003.

      J.W. Coyle, III, Catherine M. Burton, Coyle, McCoy & Burton, Oklahoma City, OK, For Appellants.
    Grant E. Moak, Assistant Attorney General, State of Oklahoma, Oklahoma City, OK, For Appellee.
   Opinion by

KENNETH L. BUETTNER, Judge.

T1 The State Board of Pharmacy revoked Clayton Fuchs' permit to establish a pharmacy and his professional pharmacist's lHeense on multiple grounds. Mainstreet Pharmacy was an internet pharmacy and had no walk-in customers in its Norman, Cleveland County, Oklahoma, store. Fuchs appealed the Board's order to the District Court of Cleveland County. The State Board of Pharmacy (Board) moved to transfer venue to Oklahoma County, the site of its residence and where it issued the license and permit. The matter was transferred, but through inadvertence, the administrative record was not forwarded to Oklahoma County. The District Court of Oklahoma County nonetheless issued an order affirming the Board's decision. We hold that a review of an administrative order is fatally flawed if the District Court on review does not have the record before it. Consequently, the order of the District Court on appeal is reversed. Further, because the permit to operate the pharmacy resulted in adverse action against the pharmacy, we hold that venue was properly laid in Cleveland County and direct that the matter be transferred to Cleveland County for review.

T2 Fuchs contends that the review of the administrative order by the District Court was incomplete; that the order granting transfer of venue was contrary to law; and that revocation of the license and permit was excessive in light of the cireumstances and nature of the charges.

18 The revocation of the pharmacy license and the permit to establish a pharmacy were procedures subject to the Oklahoma Administrative Procedures Act, 75 0.8. Supp. 1997 § 250 et seq. What constitutes review of the agency order is specifically cireum-scribed. Title 75 section 821 states:

The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.

14 In the case at bar, the District Court accepted briefs and heard oral argument. There was no allegation of irregularities in the administrative process and, consequently, no witnesses testified. Unfortunately, the reviewing court did not have the administrative record before making its decision and the parties did not realize this until after the order was entered. The basis of review is on the record. What happened here was a reliance on the briefs and argument. However, briefs and argument do not constitute evidence. In Fuchs' appellate brief in the District Court, he raises two allegations of error: that there was no statutory authority to revoke his license and permit, and that the revocation of his license was clearly erroneous in view of the evidence in the record. He cited parts of the transcript of the administrative hearing in support of his arguments. The District Court impermissibly denied itself meaningful review because it did not have the record before it rendered its decision.

T5 The Board argues that the briefs contained sufficient record information to support the District Court's decision. We hold, however, that briefs are insufficient, even when they cite parts of the record, because they are not evidence and their purpose is to persuade the reviewing court. The law requires the Court to have the record. There is no way any party or the Court can waive this requirement. Where an appeal of an agency action raises sufficiency of the evidence issues, it is error not to review the administrative record.

T6 The Board also states that even if failure to review the record is erroneous, because this reviewing court does have the administrative record, then the error is harmless. However, the Act provides that there is a right to two reviews, once in District Court and thereafter, if the party aggrieved by the order of the District Court desires, in the Supreme Court 75 O.S8. Supp.1992 § 318 (judicial review in district court); 75 0.8.2001 § 328 (Judicial review of district court's order by appeal to Oklahoma Supreme Court). The District Court's order on review was not supported by the record and must be reversed. See Freeman v. Shultz 468 F.2d 120 (C.A.D.C.1972)(When there is no administrative record, there is no showing of the allegations, the answers to the allegations or the administrative body's determination).

T7 With respect to venue, there were two entities against whom complaints were made: Clayton Fuchs (pharmacist license) and Mainstreet Pharmacy (permit to operate a pharmacy). Each entity was charged with nine counts. After the administrative hearing, Clayton Fuchs, in his capacity as pharmacy permit holder (Maintst-reet Pharmacy) was found guilty on all counts except he was found not guilty on Count VII (having an "employee physician" write prescriptions for controlled dangerous substances which were not issued for legitimate medical purposes). Clayton Fuchs, as a pharmacist, was found guilty on all nine counts of violation of the Board's rules.

T8 The venue of review proceedings is provided in Title 0.8.75 2001 § 818(B)(2), which states:

... proceedings for review shall be instituted by filing a petition, in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated....

T9 In the case at bar, there are two aggrieved entities, the pharmacist and the pharmacy. The pharmacist is not a resident of Oklahoma. He has a constitutionally protected property interest in his license. Johnson v. Board of Governors of Registered Dentists of the State of Oklahoma, 1996 OK 41, 913 P.2d 1339; Mills v. New Mexico State Board of Psychologist Examiners, 1997-NMSC-028, 123 N.M. 421, 941 P.2d 502. Venue is at the option of the petitioner. The statute does not permit the Board to request for transfer of venue. The Board could have moved to dismiss because of improper venue, but did not do so. Only if the "property interest affected" could not be said to be in Cleveland County would venue be improper there.

10 Admittedly, one property interest affected was the permit itself. The permit for the pharmacy was issued by the Board from its seat in Oklahoma County, and the Board claims the situs of the permit is therefore Oklahoma County. While this may be true, then Fuchs, as petitioner, could have filed the petition for review in Oklahoma County. That does not answer the question whether some property interest of Fuchs, affected by the Board's action, was also situated in Cleveland County.

T 11 The Board's orders affected the physical business of the pharmacy. It shut the pharmacy down. Even though it was an internet pharmacy, there was an office, Main-street Pharmacy in Norman, Cleveland County, Oklahoma. A permit to operate a pharmacy is not the same as a professional license. And it must have a physical location. The pharmaey's physical location was in Cleveland County. Venue was properly placed in the District Court of Cleveland County and transfer to Oklahoma County was error. Section 818(B)(2) gives the venue option to the petitioner and is broad enough to include the physical location of the pharmacy.

1 12 We will not address the other issues presented to the District Court for review because we remand the case with directions to transfer this matter to the District Court of Cleveland County to conduct the review pursuant to law.

113 The order of the District Court of Oklahoma County affirming the Board of Pharmacy's order revoking the permit to establish and operate a pharmacy and revoking Fuchs' license to practice pharmacy in Oklahoma is REVERSED and the matter is REMANDED to the District Court of Cleveland County, Oklahoma with directions to proceed with Appellants' petition for review.

ADAMS, P.J., and JOPLIN, C.J., coneur.

APPENDIX

(The complaint filed by the Board against Clayton Fuchs, pharmacist and Clayton Fuchs as manager of Mainstreet Pharmacy, alleged nine violations by respondents of the Oklahoma Pharmacy Act, 59 0.8.1991 § 3583.1 et seq, Titles 585 and 475 of the Oklahoma Administrative Code, Rules of the Board and Rules of the Oklahoma Bureau of Narcotics and Dangerous Drugs and The Uniform Controlled Dangerous Substance Act, 63 0.8.1991 § 2-101 et seq.)

Count I:

1. Respondents violated Board Rule OAC 535:10-3-1.1(8) by conducting himself in a manner which does not entitle him to the respect and confidence of the pharmacist community in which he practices. Respondent also violated Title 59 - O.S. 858.26(A)(1)(e) by conducting himself in a manner likely to lower public esteem for the profession of pharmacy.

2. Respondent owns and operates and manages Mainstreet Pharmacy, an internet pharmacy which utilizes or has utilized a world wide web site at natitonpharmacy.com. Respondent is responsible for all aspects of the professional operation of the pharmacy since it opened in Oklahoma in October, 2000, as he is the pharmacy manager who signed the original pharmacy application pursuant to OAC 585:15-3-2(b)(1).

3. Respondent has employed two physi-clans to write prescriptions, for large quantities of controlled drugs with usually two automatic refills on each. The controlled substances include but [are] not limited to hydrocodone, diazepam, butalbital, alprazo-lam, ete. for customers throughout the country. - Respondents routine pharmacy business practice has been operated with knowledge that the employed physicians would not establish a predicate face-to-face doctor patient relationship prior to writing prescriptions for a 30-90 day supply, for controlled dangerous substances.

4. Respondents' pharmacy practice involving Mainstreet Pharmacy and nation-pharmaecy.com has been the subject of public criticism in Oklahoma in the media as a pharmacy which readily dispenses and ships controlled dangerous substances to individuals after a mere internet contact. Public complaints have been made that the Main-street Pharmacy is not reachable, that refills are not being provided. A person used a false identity to improperly obtain controlled dangerous substances, and that suicidal persons have obtained controlled dangerous substances (CDS).

5. Numerous facts relating to the operation of nationpharmacy.com and Mainstreet Pharmacy yield an appearance of impropriety and result in an image that the pharmacy is attempting to avoid the jurisdiction of the Board of Pharmacy and the jurisdictions of other states for possible personal injury law suits which unsatisfied customers may wish to file. Respondents appear to be using Oklahoma as a haven for an extraterritorial questionable sales of CDS under the auspices of the Oklahoma pharmacy license. Respondent has placed a notice on the nationphar-macy.com web site that the pharmacy will not ship to Oklahoma (or Texas). The na-tionpharmacy.com web site does not list important information for the customers such as: the name of the associated pharmacy, Mainstreet Pharmacy; a phone number or mailing address of the pharmacy or the web site office; the parent corporate name of the Oklahoma corporation, Millenium - Health Services, Inc.; the names of the associated physicians and pharmacists issuing and dispensing the prescriptions. - Respondents have sold CDS prescriptions to customers in many states without obtaining the proper licensing required by the laws of those states to include California, Texas, Illinois, Virginia, Ohio and Florida.

Count II:

1. Respondents violated Board Rule OAC 535:10-3-1.1(5) by charging unfair and inequitable professional fees for dispensing pre-seriptions. The prices for the CDS drugs which Mainstreet Pharmacy sells through nationpharmacy.com are grossly disproportionate to its cost for the same CDS drugs.

A. For 100 hydrocodone 10/500, Respondents pay their supplier $18.00 (Eighteen Dollars). The customer is charged $240 (Two hundred and forty dollars) for 100 hy-drocodone 10/500.

B. Respondents pays it (sic) supplier $102.51 (One hundred and two dollars & fifty-one cents) for 478 mis of Tussionex. The price list posted on natilonpharma-cy.com shows the customers' price for 473 mis of Tussionex is $285 (Two hundred & eighty five dollars).

Count III:

1. Respondent violated the Board Rule OAC 535:10-3-1.1(8) by utilizing a secret arrangement between himself as pharmacist owner and manager of Mainstreet Pharmacy and a physician, whereby he charged an initial fee of $240 (Two Hundred and Forty Dollars) to every initial internet pharmacy elient, including re-initiations after a second refill. Forty-five dollars of the initial $240 fee was paid to the physician for every prescription written. This arrangement is not revealed to the customer.

Count IV:

1. Respondent violated OAC 585:10-3-1.2(2) by failing to establish and maintain any effective controls against the diversion of prescription drugs into other than legitimate medical, scientific or industrial channels as provided by federal or state laws.

2. Respondents have coordinated the writing and shipping of prescriptions for controlled dangerous drugs in alarming quantities. For the dates of October 25, 26, 27, 30, & 31 and November 1st and 2nd 2000, 1684 prescriptions were processed. Of that number 1651 were CDS prescriptions. Main-street Pharmacy coordinated the preparation and shipping of 151,000 units of controlled dangerous substances. Such volume would lead an average prudent and professional pharmacist to believe that some of these prescriptions may be for persons who are addicted to controlled substances, or for illegal resale on the street for profit. Respondent failed to take any action to guard against such possible diversion for illegitimate purposes.

Count V;

1. Respondent has violated Board Rule OAC 585:15-3-2(a) by failing to employ an adequate number of pharmacists to perform the practice of pharmacy as defined by the Oklahoma Pharmacy Act with reasonable safety.

2. Respondents have been filling CDS prescriptions in excessive quantities, up to 300-400 per day, and up to over 800 per day counting refills. While operating Main Street Pharmacy in Oklahoma, Respondents have employed only one pharmacist to fill this quantity of prescriptions.

Count VI:

1. Respondents have violated Board Rule OAC 585:15-8-11() by permitting the employee pharmacist, Jerry Shadid, to dispense the refill prescriptions written by the physi-clan Ricky Joe Nelson, after Dr. Nelson withdrew his authorization on December 14, 2000.

2. Respondents' employee pharmacist (Jerry Shadid) dispensed five prescriptions from January 2, 2001 through January 29, 2001 after Dr. Nelson had withdrawn his authorization of these prescriptions.

Count VII:

1. Respondents have violated Board Rule 535:10-38-1.1(1) by failing to comply with all federal and state laws in their pharmacy business. As Respondents facilitated a regular business practice of dispensing controlled dangerous substance prescriptions written by their "employ physicians" which were not issued for legitimate medical purposes in violation of Rule 475:30-1-3(A) of the Oklahoma State Bureau of Narcotic and Dangerous Drug Control.

Count VIII:

1. Respondent violated OAC 585:10-3-1.2(10) by failing to attempt to address the possible addiction or dependency of a patient to a drug dispensed by the pharmacist, if there is reason to believe that the patient may be dependent.

2. Respondents have or have caused to be dispensed large numbers of controlled dangerous drugs to customers through the mail system. Numerous facts and cireumstances surrounding the operations of Mainstreet Pharmacy should have suggested the likelihood that there was addiction or dependency problems with their eustomers. - Respondents' business maintained records of patient profiles. The patient profile records contained information which suggested that individuals were seeking prescriptions for CDS using multiple names and paying the excessive costs which Mainstreet Pharmacy charged.

Count IX:

1. Respondents have violated Board Rule 585:10-3-1.1(1) by failing to comply with all federal and state pharmacy laws. By dispensing controlled dangerous drugs (CDS) through Mainstreet Pharmacy method (sic) of operation, Respondents have violated Title 63 0.S. § 2-809(G). Respondents have regularly dispensed CDS through the mail when the ultimate user has not been personally known to the practitioner.

2. Respondents knew that the physician writing the prescriptions did not personally know the ultimate user, the customer. Respondents were aware of the method of operation of Mainstreet Pharmacy and that the physicians writing the prescriptions simply reviewed a questionnaire response submitted by the customers. Respondents were aware that the employed physicians were prescribing for these customers and also aware that the filled prescriptions were shipped from Mainstreet Pharmacy to the ultimate users.

      . 75 0.S. Supp.1992 § 320 allows the parties to stipulate to shorten a record. However, there is absolutely no law which allows the reviewing court to reach a decision without any of the administrative record.

      . The nine counts are set forth in the Appendix to this opinion.


source: Caselaw Access Project

author: KENNETH L. BUETTNER, Judge:

license: Public Domain

text:
    2003 OK CIV APP 73
    Carolyn MABRY and The First National Bank and Trust Company of Vinita, Successor Trustees of the James W. Harris Trust Agreement dated September 15, 1994, as amended and restated in its entirety June 29, 2000, Plaintiffs/Appellees, v. Kevin LIKE, Defendant/Appellant.
    No. 98,191.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    July 18, 2003.

      Mark W. Curnutte, James M. Meredith, Logan & Lowry, LLP, Vinita, OK, for Plaintiffs/Appellees.
    Robert G. Green, Tulsa, OK, for Defendant/Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge:

1 The trial court granted summary judgment in favor of Plaintiffs (Trustees) on their quiet title action filed against Kevin Like, who claimed an interest in certain real property arising from a real estate auction conducted by Plaintiffs. We affirm.

1 2 The property was advertised for public auction with a minimum bid of $100,000. The advertisement did not state whether the auction was with or without reserve. Before bidding, the auctioneer stated that the sale was subject to confirmation by the Trustees, who the auctioneer stated were present. The auctioneer also stated that the highest and best bidder would be the one whose name went on the contract.

T3 Kevin Like was high bidder at $136,000. The auctioneer did not "drop the hammer," but stated, when no more bids were forthcoming, that the bidding was closed. The Trustees had previously told the auctioneer that the minimum they would accept for the property was $175,000. The auctioneer conferred with the Trustees who declined to accept the bid, and the auctioneer informed Like.

14 If an auction is with reserve, then the seller "reserves the right to approve or reject the high bid at a later time." East v. Brown, 1999 OK CIV APP 68, ¶ 7, 986 P.2d 523, 525. "An auction is deemed to be conducted with reserve unless there is an express announcement or advertisement to the contrary before the auction takes place." Marten v. Staab, 4 Neb.App. 19, 537 N.W.2d 518 (syllabus by the court ¶ 7)(Neb.App.1995). - Whether sellers reserved the right to confirm or accept the sale is a question of fact. See East v. Brown, 1999 OK CIV APP 68, ¶ 8, 986 P.2d 523. Whether a contract is formed is a question of law. "... [There is no meeting of the minds in an auction sale until the offer of the bidder is accepted in an auction with reserves or until the high bid is made in an auction without reserves." Dry Creek Cattle Company v. Harriet Bros. Limited Partnership, 908 P.2d 399, 404 (Wyo.1995).

T5 The material facts in this case are undisputed and the resolution of the matter revolves around the issue whether the auction was with or without reserve. The facts lead to the conclusion that the auction was with reserve and that when the sellers did not confirm the highest bid, no contract was formed. Summary judgment was properly granted in favor of Plaintiffs. 12 0.8. Ch. 2, App. 1, Supp.1998, District Court Rule 18(e).

T6 Like contends several facts preclude summary judgment. First is the fact that the auction brochure advertised a starting bid of $100,000. However, satisfaction of a starting bid does not change a with reserve auction to one without reserve. A starting bid is a floor at which bids must start. Starting bids do not bind a seller to accept the highest bid above the minimum.

17 It's also true that the auctioneer, after announcing that the auction was subject to confirmation by the Trustees stated: "Highest and best bidder will be the one that goes-name that goes on the contract." This statement is insufficient to transform the auction into one without reserve.

When an auctioneer presents an article for sale, he ordinarily is not making an operative offer and such an auction is 'with reserve" This is true even though the seller has advertised or made statements that the article will be sold to the highest bidder, as such statements are usually 'merely preliminary negotiation, not intended and not reasonably understood to be intended to affect legal relations.

Marten v. Staab, 4 Neb.App. 19, 537 N.W.2d 518, 523, (citing 1 Corbin on Contracts § 414 at 639-640, 1993). Accord: Pitchfork Ranch Company v. The Bar TL, 615 P.2d 541 (Wyo.1980); Specialty Maintenance & Construction, Inc., 790 S.W.2d 835 (Tex.App.1990). Conceptually, the high bidder's name goes "on the contract" which must still be accepted by the seller when the auction is with reserve.

18 Finally, the fact that Like was high bidder with a bid above the advertised starting bid and his willingness to have his offer accepted as evidenced by his ability to pay the 5% down as required, does not force an acceptance. Consequently, no contract was formed. "Thus, it can be said that where the auction has not been announced to be without reserve, the sale contract is consummated by the offer of the bidder to buy and the acceptance of the bid by the seller." Pitchfork Ranch Company, supra at 547.

T 9 In Like's Response to Plaintiffs' Motion for Summary Judgment, he describes some of the conduct related to the auction as violations of the Oklahoma Consumer Protection Act, 15 0.8. § 751 et seq. However, he has no pending claim under such act, and the provisions cited do not supercede Oklahoma law relating to whether an auction is presumptively with reserve.

{10 The trial court's order granting summary judgment in favor of Plaintiffs on their petition to quiet title to the real estate and against Like on his counterclaim is AFFIRMED.

ADAMS, P.J., and JOPLIN, C.J., concur.

      . The auction contract between Trustees and the auctioneer provided:
      "(B) METHOD OF AUCTION: I/We authorize this property to be offered with trustee's confirmation, the trustee's (sic) reserve the right to accept or reject the high bid."

      . The bid packet received by Like included the following:
      -"Our company policy, however, requires every seller's confirmation of the high bid before the sale is final, whether or not the seller is willing to accept any price for the property."

        -"2. CONFIRMATION - OF - AUCTION: THE SALE OF THIS PROPERTY IS SUBJECT ONLY TO CONFIRMATION BY THE
      SELLER. Bidding shall be open to any person who agrees to abide with the terms and conditions."


author: CARL B. JONES, Judge.

text:
    2003 OK CIV APP 70
    Anthony Troy STEELE, Plaintiff/Appellant, v. Melinda GUILFOYLE, Sonny H. Scott and the Oklahoma Department of Corrections, Defendants/Appellees.
    No. 97,997.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    July 25, 2003.

      Anthony Troy Steele, Lexington, OK, Pro Se Plaintiff/Appellant.
    Ronald A. Anderson, Assistant General Counsel, Oklahoma Department of Corree-tions, Oklahoma City, OK, for Defendants/Appellees.
   OPINION

CARL B. JONES, Judge.

T1 Anthony Troy Steele, Plaintiff, is an inmate in the custody of the Department of Corrections (DOC). He claims adherence to the Islamic faith. At the time this action was filed, Melinda Guilfoyle was the designee of the DOC director and H.N. "Sonny" Seott was the warden of the Joseph Harp Correctional Center where Plaintiff is incarcerated. Pursuant to the settlement of a federal lawsuit, DOC assigns cellmates on a random basis without any consideration of the religious beliefs of inmates. The settlement was reportedly reached in order to address a claim of racial discrimination in, among other things, the assignment of inmates to cells. The only considerations made by DOC in making cell assignments are security and safety concerns, medical and/or mental health needs, and treatment and/or program needs.

12 On November 28, 2001, Plaintiff filed the instant suit alleging Defendants violated his right to practice his religion because he is housed in a cell with a non-Muslim. Plaintiff specifically claimed violations of the First Amendment to the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000CC-1, et seq, and the Oklahoma Religious Freedom Act (ORFA), 51 § 251, et seq. He complained his cellmate eats pork and has photographs of beings with souls hanging in their cell. This, Plaintiff contended, defiles his cell and prevents angels from entering. Plaintiff maintains he should be assigned a Muslim cellmate.

T3 Defendants filed a motion to dismiss and/or for summary judgment on multiple grounds. The trial court found that Defendants' actions in no way prohibit Plaintiff from practicing his religion, praying or meeting with fellow Muslims, and therefore, Plaintiff failed to show the random assignment of cellmates violates the First Amendment, RLUIPA or ORFA. The trial court granted Defendants' motion for summary judgment and dismissed the case with prejudice. Plaintiff appeals. The matter stands submitted without appellate briefs on the trial court record. See Rule 1.36, Oklahoma Supreme Court Rules, 12 Ch. 15, App.

I. Standard of Review

T 4 Because Defendants' motion and Plaintiffs response contained evidentiary materials outside the pleadings, we treat this appeal as one arising from the grant of summary judgment. 12 0.8. § 2012(B); Patel v. OMH Medical Ctr., Inc., 1999 OK 33, ¶ 17, 987 P.2d 1185, 1192-3. Summary judgment is proper when the evidentiary materials "establish there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Shelley v. Kiwash Elec. Co-op., Inc., 1996 OK 44, ¶ 15, 914 P.2d 669, 674. In reviewing a motion for summary judgment, all inferences and conclusions drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Id. This court's standard of review of a trial court's grant of summary judgment is de novo. Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶ 2, 921 P.2d 350, 351-52.

II. RLUIPA and ORFA Claims

15 Title 42 U.S.C. § 2000cc-1 states in relevant part:

(a) General rule
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution ... even if the burden results from a rule of general applicability, unless the government demonstrates that imposition © of the burden on that person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
T 6 Title 51 0.9$.2001 § 258 provides:
A. Except as provided in subsection B of this section, no governmental entity shall substantially burden a person's free exercise of religion even if the burden results from a rule of general applicability.
B. No governmental entity shall substantially burden a person's free exercise of religion unless it demonstrates that application of the burden to the person is:
1. Essential to further a compelling governmental interest; and
2, The least restrictive means of furthering that compelling governmental interest.

Section 254, which applies specifically to prisoners, states:

A state or local correctional facility's regulation must be considered in furtherance of a compelling state interest if the facility demonstrates that the religious activity:
1. Sought to be engaged by a prisoner is presumptively dangerous to the health or safety of that prisoner; or
2. Poses a direct threat to the health, safety, or security of other prisoners, correctional staff, or the public.

T7 Assuming for purposes of this opinion that § 2000ce 1 of RLUIPA and ORFA are constitutional , we find the trial eourt properly granted summary judgment in favor of Defendants. Both acts prohibit laws or regulations that place a "substantial burden" on a person's free exercise of religion. Under the RLUIPA, the responsibility of demonstrating such burden falls upon the plaintiff. 42 U.S.C. § 2000cc-2(b). Only if he succeeds does the burden then shift to the government to prove the remaining elements of the Act. Id.; Charles v. Verhagen, 220 F.Supp.2d 937, 944 (W.D.Wis.2002). Although not specifically set forth in the Act, we hold a plaintiff in an ORFA action must similarly make an initial prima facie showing of "substantial burden" before any burden of persuasion shifts to the state.

18 A government regulation is said to constitute a "substantial burden" upon a prisoner's capacity to exercise or express his or her beliefs or faith where it:

[ Slignificantly inhibitls} or constrain[s] conduct or expression that manifests some central tenet of a prisoner's individual beliefs, meaningfully curtails] a prisoner's ability to express adherence to his or her faith; or ... deny(s] a prisoner reasonable opportunities to engage in those activities that are fundamental to a prisoner's religion.

Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir.1995), cert. denied 515 U.S. 1166, 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995) (citations omitted). A government regulation does not substantially burden religious activity when it merely has an incidental effect that makes it more difficult to practice the religion. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-51, 108 S.Ct. 1319, 1826, 99 L.Ed.2d 534 (1988).

T9 In the present case, Plaintiff has failed to demonstrate that DOC's policy of randomly assigning cellmates substantially burdens his right to exercise his religion. The policy does not inhibit or constrain Plaintiffs religious conduct; it does not curtail Plaintiff's ability to express adherence to his faith; and it does not deny Plaintiff a reasonable opportunity to engage in those activities that are fundamental to his religion. Plaintiff admitted he prays four times a day outside of his cell and is effected by the policy only the one time of day he prays while locked down with his cellmate. We hold such a policy merely has an incidental effect upon Plaintiff in that it makes it more difficult for him to practice his religion; however, it does not place a "substantial burden" on Plaintiff's right to exercise his beliefs.

III. First Amendment Claim

110 In addressing a prisoner's claims under the First Amendment, the United States Supreme Court has held that prison policies which infringe on an inmate's constitutional rights are valid if they are reasonably related to legitimate penological objectives. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). The instant record reveals DOC's policy of randomly assigning cellmates is reasonably related to legitimate penological objectives. The policy was implemented to settle a class action lawsuit that alleged racial discrimination in the assignment of cells; it ensures DOC will not engage in racial or religious discrimination in making cell assignments; and it contributes to the safety and security of the prison, prison staff and inmates. Just as the Court reaffirmed in O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), we also refuse, "even where claims are made under the First Amendment, to 'substitute our judgment on ... difficult and sensitive matters of institutional administration' ... for the determinations of those charged with the formidable task of running a prison." Id. at 353, 107 S.Ct. at 2407, quoting Block v. Rutherford, 468 U.S. 576, 588, 104 S.Ct. 3227, 3233, 82 L.Ed.2d 438 (1984). Plaintiff's claim based upon the First Amendment is rejected.

IV. Miscellaneous Claims

1 11 Plaintiff's petition in error also alleges the trial court erred by failing to address his (1) declaratory judgment claim; (2) civil rights claim under 42 U.S.C. § 1983; and (8) claims under 28 U.S.C. §§ 2201 & 2202. Plaintiff also asserts (4) the trial court erred by not permitting him to conduct discovery prior to ruling on the motion for summary judgment and (5) an accumulation of errors requires reversal. With respect to his first allegation, Plaintiff's petition sought an order from the trial court declaring his rights were being violated under ORFA and RLUIPA. Because we have determined Plaintiff failed to make a showing of "substantial burden" under either statute, he is not entitled to such a declaratory decree. Regarding Plaintiff's second and third contentions, we note that he did not include such claims in his district court petition, his summary judgment response or his motion for new trial. Our review is limited to issues actually presented to the trial court. Jones v. Alpine Inv., Inc., 1987 OK 113, ¶ 11, 764 P.2d 513, 515.

112 In his fourth proposition, Plaintiff contends the trial court erred in failing to permit discovery. Again, Plaintiff did not file any pleading or motion with the trial court in which he sought discovery. Therefore, he has waived this issue on appeal. Id. Moreover, Plaintiff was afforded the opportunity to present whatever eviden-tiary material he desired to justify his opposition to the summary judgment motion by attaching the same to his response. See Rule 18(b), Rules for District Courts, 12 0.9.2001, Ch. 12, App. 1. In fact, Plaintiff did attach some evidentiary materials to his response. His belated assertion that additional, unspecified evidence might have been helpful to his cause comes too late.

After summary judgment is granted, the objecting party cannot on appeal rely on any fact or evidentiary material that was not before the trial court at the time of its rendition. The ruling on a motion for summary judgment must be rested on the record which is then before the court rather than on one that could have been assembled.

Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 6, 698 P.2d 17, 20 (footnotes omitted). As for Plaintiff's fifth proposition, "where there is no individual error there can be no reversal for cumulative error." - Alverson v. State, 1999 OK CR 21, ¶ 78, 983 P.2d 498, 520, cert. denied 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000) (quotation omitted).

V. Conclusion

113 Upon de novo review of the record, we conclude there exists no genuine issue of material fact and that Defendants are entitled to judgment as a matter of law. Accordingly, we hold the trial court properly granted Defendants' motion for summary judgment and dismissed Plaintiff's claims.

1 14 AFFIRMED.

HANSEN, J., and MITCHELL, P.J., concur.

      . Defendants urge both acts are unconstitutional. The Establishment Clause of the First Amendment of the United States Constitution states that "Congress shall make no law respecting an establishment of religion." A statute effecting religion is permissible if (1) it has a secular legislative purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create excessive entanglement between government and religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). Applying the Lemon test, both Kilaab al Ghashiyah v. Dept. of Corrections of the State of Wis., 250 F.Supp.2d 1016 (E.D.Wis.2003), and Madison v. Riter, 240 F.Supp.2d 566 (W.D.Va.2003), held that § 2000cc-1 of RLUIPA violated the Establishment Clause because it has the principal and primary effect of advancing religion. Kilaab at 1031; Madison at 577. The Kilaab court also held § 2000cc-1 fosters excessive entanglement of government with religion. Kilaab at 1034. Contra Mayweathers v. Newland, 314 F.3d 1062 (9th Cir.2002).

        As the Kilaab court noted, the Establishment Clause "prevents the government from endorsing or affiliating with any particular religious doctrine or organization, expressing a preference between religions, or promoting religion generally." Kilaab, 250 F.Supp.2d at 1021 (emphasis added). Accord Madison, 240 F.Supp.2d at 571. The ORFA appears to possess the same constitutional shortcomings the Kilaab and Madison courts found in § 2000cc-1.


author: BAY MITCHELL, Presiding Judge:

text:
    2003 OK CIV APP 72
    WILSON PAVING, INC., and National American Insurance, Petitioners, v. Brian Todd ABERNATHY, and The Workers Compensation Court, Respondents.
    No. 98,152.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Aug. 1, 2003.

      Paul V. McGivern, Jr., J. Heath Lofton, McGivern, Gilliard & Curthoys, Tulsa, OK, for Petitioner.
    Greg Barnard, The Bell Law Firm, Norman, OK, for Respondent.
   BAY MITCHELL, Presiding Judge:

T1 Wilson Paving, Inc. and National American Insurance, Petitioners or collectively, "Employer", seek review of a panel-approved order awarding permanent total disability benefits, continuing medical maintenance, and attendant home care to Brian Todd Abernathy, Respondent or "Claimant." Claimant sustained an on-the-job injury to multiple body parts and had resulting depression and memory loss. Most significantly, Claimant's injury caused brain damage which made him unable to function independently. Employer proposed placing Claimant in the Oklahoma Neurorestorative Center, a rehabilitation facility highly specialized in the rehabilitation of patients who have suffered traumatic brain injuries. Claimant's parents, acting as his legal guardian, objected to such placement because Claimant might hurt himself or others and they feared the potential use of medication as a means to control Claimant in such a facility. His parents asked to be reimbursed for their day-today care of Claimant. They alternated working outside the home or worked on a part-time basis so that one of them could be at home with Claimant.

12 At trial, Claimant was awarded permanent total disability (PTD) benefits and an award for disfigurement. In conjunction with the award, the trial court ordered:

THAT based upon consideration of the testimony and other evidence in connection with the attendant care issues, the Court finds that the parents and legal guardians of claimant should be reimbursed at the rate of $9.00 per hour for 10 hours per day, seven days per week, for a total of $630.00 per week, The Court finds that this reimbursement should be applied for all attendant care rendered claimant to date and continuing into the future until such time as attendant home care is no longer feasible or practical (at which time the legal guardians may petition this court for a modification of the attendant care arrangements). Respondent shall pay the parents the difference between the weekly rates of $400.00 paid and $630.00 due through March 25, 1998. Thereafter, respondent shall pay at the weekly rate of $630.00 to date and continuing.

T3 Employer contends the trial court exceeded its authority in ordering Employer to reimburse the parents of Claimant for "attendant care", contending it is non-technical, non-medical, and akin to household duties. Further, if attendant care is allowed, Employer should only be obligated to reimburse for those reasonable services provided by a trained health care worker. Employer also contends that as an injured party, Claimant has the obligation to mitigate his damages by undergoing medical treatment as necessary, here, at a neurological rehabilitation facility.

14 Workers' compensation benefits are purely determined by statute. Employer's contention that the trial court acted outside its authority in awarding compensation is one requiring statutory interpretation. This is a question of law which we will review de novo. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1122-23.

{5 Title 85 0.8.2001 § 14(A)(1) (since amended) provides:

The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus as may be necessary after the injury. The attending physician shall supply the injured employee and the employer with a full examining report of injuries found at the time of examination and proposed treatment, this report to be supplied within seven (7) days after the examination; also, at the conclusion of the treatment the attending physician shall supply a full report of the treatment to the employer of the injured employee. (emphasis added).

16 Claimant relies on Champion Int'l. v. Nicholes, 1989 OK CIV APP 23, 773 P.2d 376, to interpret "other attendance" as care from other than a licensed physician. In Champion, the Court held that a psychologist holding a Ph.D. degree provided "medical care" that was required to be paid for by claimant's employer, even though psychologist was not a "physician" as defined in the workers' compensation statutes. In Orrick Stone Co. v. Jeffries, 1971 OK 116, 488 P.2d 1243, the Court found that in-home nursing care needed by the quadriplegic claimant was medical treatment, attendance and nursing service, etc., within the meaning of 85 0.8. § 14.

T7 Here, Claimant's parents provide the care that would otherwise be provided by an in-home nurse. We decline to interpret the statute so narrowly that it would limit "other attendance" to licensed health care providers. If a non-nurse, especially a parent or other family member, is capable and willing to provide home nursing care then that should be acceptable and, in our view, is contemplated by the statute. "[Olther attendance" is not defined in or limited by the statute. This implies an understanding that the spectrum of care needed by injured employees is probably as varied as the injuries employees receive. As long as the care being provided is equivalent to some type of medical or health care it should make no difference that a parent is the care provider. Therefore, compensation for such care, whether by parents, guardians, or medical personnel, is proper. The Compensation Court's conclusion was correct and the services provided by Claimant's parents are within the meaning of the medical care set out in 85 0.8.2001 § 14(A) (since amended).

18 Employer also contends that if it is decided that parents may be the providers of "attendant care", then the court erred in awarding reimbursement to Claimant's parents because they were merely performing "household duties". We disagree. There was expert testimony that Claimant needed a "personal care attendant" for ten hours per day which would cost from $9 to $382 per hour. The award for the parents was for ten hours per day at $9.00 per hour. This award is supported by the necessary competent evidence.

T9 Employer next asserts that Claimant, by not agreeing to be a patient at the Oklahoma - Neurorestorative Center, failed to take reasonable steps to mitigate his damages. The Compensation Court's order analogized this to a claimant who refuses a surgical recommendation. Kerr-McGee Corporation v. State Industrial Court, 1970 OK 158, 474 P.2d 411, 413, teaches that just as an employer has a duty to provide prompt medical, surgical, and hospital and other services and treatment, the injured employee has a correlative duty to avail himself of such reasonable remedial measures as are within his power and to use ordinary care to avoid aggravating the injury. Regarding an employer-proposed surgery which the claimant has declined, the employer must establish that the proposed surgery is safe and reasonably certain to alleviate the condition. Texas-Oklahoma Express v. Best, 1978 OK 42, 576 P.2d 1177, 1180. In the instant case, while it is probably safe, there is no evidence of a reasonable likelihood that Claimant's condition will improve or that he will benefit from a stay at the Oklahoma Neurorestora-tive Center. The Court's decision will not be disturbed.

T 10 The decision of the Workers Compensation Court Three-Judge Review Panel is sustained in all respects.

111 SUSTAINED,

HANSEN and JONES, JJ., concur.


author: JERRY L. GOODMAN, Presiding Judge.

text:
    2003 OK CIV APP 71
    Peter TELL, III, Petitioner, v. CITY OF PERRY, Compsource Oklahoma, and The Workers' Compensation Court, Respondents.
    No. 98,100.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Aug. 5, 2003.
    Walt Brune, Walt Brune, P.C., Fred L. Boettcher, Boettcher Law Offices, Inc., Pon-ca City, OK, for Petitioner.

      Michael D. Gilliard, James B. Cassody, McGivern, Gilliard & Curthoys, Tulsa, OK, for Respondents.
   Opinion by

JERRY L. GOODMAN, Presiding Judge.

1 1 This is a proceeding to review an order of a Workers' Compensation Court three-judge panel affirming a trial court order denying a claim for additional hearing loss after the claimant had previously entered a joint petition settlement of a claim for hearing loss. The issue presented by the parties is whether a claim for hearing loss is divisible. Based upon our review of the record and applicable law, we hold the claim is divisible, vacate the order under review, and remand for further proceedings.

I

1 2 On September 15, 1997, claimant Peter Tell, III, settled by joint petition a claim for 11 percent binaural hearing loss he sustained during the course and scope of his employment as a firefighter for the City of Perry. On March 19, 2001, the claimant filed a Form 3 alleging he had "[alggravated previous [hearing] injury by repetitive exposure to sirens and engines." He sought permanent partial disability benefits and continuing medical treatment in the form of hearing aids.

{3 The trial court held a hearing on the matter July 5, 2001. In an order filed February 27, 2002, the court denied the claim, stating in part:

-2.-
THAT in 1996 claimant filed a claim for Binaural hearing loss against the City of Perry. This claim was settled by Joint Petition on September 15, 1997 for 11% to the ears.
-3.-
THAT claimant through the present claim seeks to obtain compensation from the same employer for additional hearing loss. In effect claimant is asking this Court to determine that hearing loss is a divisible injury and to award increased disability against the same employer.
-4.~
THAT the Supreme Court in the case of Williams Company v. Lawrence, 1992 OK 3, 824 P.2d 1134 and reiterated in the case of Prophet v. Vickers, 1992 OK 85, 833 P.2d 1231 was held [sic] that hearing loss is not divisible The Court in Williams stated at page 1186 of its opinion: "A hearing loss claim caused by repeated small traumatic episodes or occurrences is not divisible in such a manner, but is one single accident."
-5.-
THAT in view of these authorities this Court concludes that claimant may not seek to divide his hearing loss between pre-1997 exposures and post-1997 exposures; particularly where the small traumatic episodes or occurrences are from the same exposures (sirens and engine noises) while working for the same employer. There is but one single claim for hearing loss and claimant has been previously compensated for this.
-6.-
THAT it is therefore the order of this Court that claimant's claim for compensation benefits be DENIED.

{ 4 The claimant appealed to a three-judge panel which affirmed the order. The claimant seeks our review.

II

5 The claimant argues that the Workers' Compensation Court erred when it denied his claim based upon a finding that a hearing loss claim was not divisible. In his appellate brief the claimant "seeks [al good faith change in the law based upon the incongruous application of hearing loss under the cases of Williams Company v. Lawrence, 1992 OK 3, 824 P.2d 1134 and Prophet v. Vickers, 1992 OK 85, 833 P.2d 1231."

6 In its answer brief, the employer contends that "[cllaimant's hearing loss claim is res judicata as there is identity of the parties, identity of the subject matter of the actions, and identity of the causes of action." The claimant responded in his reply brief, stating:

Given the argument as set forth in [the employer's] Answer Brief, if [the claimant] had, after his joint petition settlement for hearing loss in 1997, been involved in an explosion and had lost all of his hearing as a result of that explosion, a subsequent employer would not be liable for any of his hearing loss because hearing loss is an indivisible injury.

T7 We agree with the claimant that the three-judge panel erred as a matter of law when it affirmed the trial court's denial of the claimant's claim for additional hearing loss. The Court of Civil Appeals, in Whiteside v. Braden Manufacturing LLC, 2003 OK CIV APP 48, 70 P.3d 890, recently addressed this very issue. In Whiteside, the claimant had a previous claim for hearing loss, which was settled by joint petition. He subsequently suffered additional hearing loss, but was denied compensation because the trial court held an injury for hearing loss was indivisible, citing Williams Company and Prophet.

T8 On appeal, the Whiteside court correctly distinguished Williams and Prophet and found that the trial court was not bound to treat the claimant's post-joint petition aggravation of her condition as a single injury with the previously compensated injury. Id. at 110, 70 P.3d at 891. The court went on to hold that the trial court "erred in denying Claimant's request for compensation on the grounds that, as a matter of law, hearing losses are not divisible." Id. at ¶ 12, 70 P.3d at 892. Because the facts in Whiteside and the facts in the case under review are very similar, we adopt the reasoning of the White-side court.

19 We therefore hold that the trial court erred as a matter of law in denying the claimant's claim for additional hearing loss after the claimant had previously entered a joint petition settlement of an earlier claim of hearing loss. The order of the three judge-panel is vacated and the matter remanded to the trial court for further proceedings.

10 VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

REIF, J., and RAPP, J., concur.

      . Williams Company and Prophet involved claims arising under the awareness doctrine, and prohibited dividing a hearing loss into pre-awareness loss and post-awareness loss to avoid the statute of limitations.


author: THORNE, Judge:

text:
    2003 UT App 264
    John William COX, Petitioner and Appellee, v. Brenda Lyn KRAMMER fka Brenda Lyn Cox, Respondent and Appellant.
    No. 20020696-CA.
    Court of Appeals of Utah.
    July 25, 2003.

      George B. Handy and Raymond B. Rounds, Ogden, for Appellant.
    Laura Rasmussen, Daniel L. Wilson & Associates, and F. Kim Walpole, Vlahos & Walpole, Ogden, for Appellee.
    Before Judges JACKSON, BENCH, and THORNE.
   OPINION

THORNE, Judge:

4 1 Brenda Lyn Krammer appeals the trial court's denial of her request for attorney fees and order splitting the cost of an in-home custody evaluation with John William Cox. We affirm.

BACKGROUND

12 Cox and Krammer were divorced in February 1999. Upon agreement of the parties, the district court ordered joint legal custody of the couple's minor child. The court designated Krammer as the physical custodian and granted Cox visitation. In June 2000, Cox filed a motion to modify custody, asking that he be designated the custodial parent. Cox claimed that custody and visitation should be modified because Krammer was not financially stable, the child was being abused or neglected, and the child was being raised in a religion different than Cox.

3 At a pre-trial confererice before a court commissioner, the commissioner ordered an in-home evaluation and directed Cox to pay the cost of this evaluation. The motion to modify custody was then heard by the district court, where it was denied. In its order, the district court stated that "there has been no substantial or material change of circumstances occurring after the [divorce] [dJeceree was entered in this matter to justify a change in custody of the child." The district court then ordered Krammer to pay one-half of the cost of the in-home evaluation. In response to Krammer's request for fees, the district court found Cox's motion had "serious merit and was brought in good faith" and ordered each party to pay their own attorney fees. Krammer appeals.

ISSUES AND STANDARD OF REVIEW

$4 Krammer argues that she is entitled to an award of attorney fees pursuant to Utah Code Annotated section 830-3-5(5) (Supp.2002). Krammer also argues that the district court exceeded its authority when it overruled the commissioner's pretrial order and directed the parties to split the cost of the in-home evaluation. - Resolution of both of these issues requires that we engage in statutory interpretation. "[A] district court's interpretation of a statutory provision is a question of law that we review for correctness." Davis County Solid Waste Mgmt. v. City of Bountiful, 2002 UT 60, ¶ 9, 52 P.3d 1174.

ANALYSIS

T5 Krammer argues that she is entitled to attorney fees pursuant to Utah Code Ann. section 80-8-5(5) (Supp.2002), which provides:

[ilf a petition for modification of child custody ... is made and denied, the court shall order the petitioner to pay the reasonable attorneys' fees expended by the prevailing party in that action, if the court determines that the petition was without merit and not asserted or defended against in good faith.

Id. (emphasis added). When interpreting statutes "[wle look first to the statute's plain language as evidence of the legislature's intent, and give effect to that plain language unless the statute is ambiguous." Grynberg v. Questar Pipeline Co., 2008 UT 8, ¶ 27, 70 P.3d 1.

16 Krammer argues that the court must order a losing party to pay attorney fees to the prevailing party unless it finds the motion to modify has merit and was asserted in good faith. Thus, Krammer argues, the [clourt does not make a finding in favor of [Cox] on both, not just one of those requirements, it becomes mandatory for the Court to award the prevailing party a reasonable attorney[ ] fee."

17 We disagree with Krammer's reading of section 30-8-5(5). Relying upon the plain language of the section, we conclude that Krammer would have been entitled to an attorney fee award only if the district court had found that Cox's motion was without merit and brought in bad faith Here, the district court made a specific finding, both in its conclusions of law and in its final judgment, that Cox's motion had "serious merit" and had been brought in good faith. Thus, pursuant to section 30-5-5, Krammer is not entitled to attorney fees.

T8 In the alternative, Krammer argues that she is entitled to attorney fees because the district court failed to support with specific factual findings its conclusions that Cox's motion had merit and had been brought in good faith. Krammer relies upon case law interpreting Utah Code Annotated section 78-27-56 (2000) to argue that she must be awarded fees unless the trial court makes specific factual findings to support its conclusion that there was no bad faith and its subsequent decision to deny fees under seetion 80-5-5(5) However, Krammer's reliance on section 78-27-56 is misplaced. Like section 30-5-5, section 78-27-56 requires a finding of bad faith and lack of merit as a trigger before attorney fees can be awarded. As previously stated, the trial court found Cox's motion to have "serious merit" and to have been brought in good faith. Consequently, Krammer does not meet the requirement of section 78-27-56. Thus, we affirm the district court's denial of Kram-mers request for attorney fees.

19 Next, relying on rule 6-401(2)(K) of the Utah Rules of Judicial Administration, Krammer argues that the district court erred when it directed her to pay half the cost of the in-home evaluation, because pretrial orders issued by commissioners cannot be modified by the district court. We disagree.

110 When interpreting court rules, we apply our rules of statutory construction with an understanding that rules, like statutes, are " 'passed as a whole and not in parts or sections." " State v. Maestas, 2002 UT 123, ¶ 54, 63 P.3d 621 (citation omitted). " '[Ojur primary goal is to evince "the true intent and purpose of the" ' " rule-making body and " 'to render all parts [of the rule] relevant and meaningful! " Id. at 152 (citations omitted). However, the effect of rule 6-401 must be colored by a recognition that commissioners are not vested with the authority to make decisions involving "core judicial functions." State v. Thomas, 961 P.2d 299, 302 (Utah 1998); see also Salt Lake City v. Ohms, 881 P.2d 844, 851-52 n. 17 (Utah 1994) (noting that while commissioners have the authority to make recommendations to the trial court, "ultimate decision making remains with the judge"). Rule 6-401(2), (4) and (6) state, in relevant part,

Court commissioners shall have the following authority:
(2)(A) Upon notice, require the personal appearance of parties and their counsel;
(2)(B) Require the filing of financial disclosure statements and proposed settlement forms by the parties;
(2)(C) Obtain child custody evaluations
(2)(D) Make recommendations to the court regarding any issue, including a recommendation for entry of final judgment, in domestic relations or spouse abuse cases
2}
(2)(F) At the commissioner's discretion, and after notice to all parties or their counsel, conduct evidentiary hearings....;
(2)(G) Impose sanctions against any party who fails to comply with the commissioner's requirements of attendance or production of discovery;
(2)(H) Impose sanctions against any person who acts contemptuously. .. .;
(2)(I) Issue temporary or ex parte orders;
(2)(J) Conduct settlement conferences.... Issues which cannot be agreed upon at the settlement conference shall be certified to the district court for trial; and
(2)(K) Conduct pretrial conferences [then] make recommendations on all issues under consideration at the pretrial and submit those recommendations to the district court.
(4) ... With the exception of pre-trial orders, the commissioner's recommendation is the order of the court until modified by the court. Any party objecting to the recommended order shall file a written objection to the recommendation with the clerk of the court and serve copies on the commissioner's office and opposing counsel. Objections shall be filed within ten days of the date the recommendation was made in open court or if taken under advisement, ten days after the date the subsequent written recommendation made by the commissioner. Objections shall be to specific recommendations and shall set forth reasons for each objection.
(5) ... Cases not resolved at the settlement or pretrial conference shall be set for trial on all issues not resolved. All other matters shall be reviewed in accordance with Rule 4-501 [of the Rules of Judicial Administration];
(6)(A) ... Commissioners shall not make final adjudications of domestic relations matters *

Utah Code Jud. Admin. R. 6401. Kram-mer argues that rule 6-401 immunizes the commissioner's order from modification. We disagree.

{11 A plain reading of this text suggests that commissioners have the authority to issue two types of orders: (1) pre-trial orders necessary to the orderly progression of the proceedings; and (2) recommendations submitted to the trial court concerning the outcome of the controversy. Moreover, the plain language of the rule also suggests that only the commissioner's recommendations are to be considered the order of the court prior to submission to the trial court, and only the recommendations are subject to the objection provisions of the rule. See Utah Code Jud. Admin. R. 6-401(4). Pre-trial orders, on the other hand, are always subject to modification by the trial court. It would defy logic to conclude that pretrial orders made by a trial judge are subject to modification, but that a commissioner's pretrial orders were not. See Utah R. Civ. P. 16 (establishing pre-trial procedures); Lewis v. Moultree, 627 P.2d 94, 97 (Utah 1981) (establishing that pre-trial orders may be modified prior to trial for good cause); Reich v. Christopulos, 123 Utah 137, 256 P.2d 238, 241 (1953) (noting the propriety of amending a pretrial order following the trial, if it is necessary to avoid " 'manifest injustice' " (quoting Utah R. Civ. P. 16)); of Boice v. Marble, 1999 UT 71, ¶ 10, 982 P.2d 565 (noting that when justice and fairness require, rule 16 of the Utah Rules of Civil Procedure should be viewed as flexible). Nor are the parties under an obligation to make a specific objection to the commissioner's pre-trial orders before they are subject to review and modification.

1 12 Here, the order questioned by Kram-mer was entitled "pretrial order" and dealt mainly with the commissioner's ordering of an in-home evaluation, as authorized by rule 6-401(2)(C). As such, the questioned order was not subject to the objection provisions of the rule, and, contrary to Krammer's argument, the district court's later order assigning the costs of the in-home evaluator evenly between the parties did not violate rule 6-401.

CONCLUSION

{13 Krammer is not entitled to an attorney fee award because the district court found pursuant to Utah Code Ann. § 30-5 5(5) (Supp.2002) that Cox's motion had "serious merit" and was brought in good faith. Furthermore, the commissioner's pretrial order directing Cox to pay one-half of the in-home evaluation was not a final order and was properly modified by the district court. We affirm.

[ 14 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and RUSSELL W. BENCH, Judge.

      . While we review a lower court's interpretation of the law for correctness, see State v. Pena, 869 P.2d 932, 936 (Utah 1994), generally, we defer to the trial court's application of that law to the facts. See Bailey v. Bayles, 2001 UT App 34, ¶ 24, 18 P.3d 1129 (Davis, J., dissenting) (noting that "[Hegal determinations regarding the trial court's application of the law to the set of facts are reviewed with more deference than the trial court's interpretation of the law""); State v. Farrow, 919 P.2d 50, 53 (Utah Ct.App.1996) (noting that "[wle review the trial court's application of [a statute] to the facts ... with more deference"). However, this distinction is not at issue in this case.

      . At trial, Cox claimed that Krammer was not financially stable because she and her new husband recently filed bankruptcy. The court disagreed and found that both Krammer and her new husband were gainfully employed and that the bankruptcy had little impact on the child. Cox also claimed that the child was being abused or neglected. The court ordered an in-home evaluation and then concluded that the child was "happy, healthy, well-nourished, adequately dressed and groomed, and has thrived in the care of [Krammer]." Lastly, Cox objected to the child's religious up-bringing. The court concluded that the religious teachings of Krammer were "not harmful to the child ... and religion in this case should not be a critical factor in determining custody [because] there is no religious incompatibility."

      . Pursuant to Utah Code Annotated section 78-27-56 (2000) and its interpreting case law, when a trial court determines that an action is without merit and brought in bad faith, the trial court must make specific factual findings if it chooses to deny the requested attorney fees. See, e.g., Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1068 (Utah 1991) (noting that trial courts must make specific findings with regard to each element of section 78-27-56, including decisions not to award fees); Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 32, 61 P.3d 1009 (noting that an award of no or limited fees pursuant to section 78-27-56 must be "predicated on proper findings").

      . The Utah Judicial Council and the Utah Supreme Court adopted the Rules of Judicial Administration in 1988. These rules were an attempt to "compile, review, amend and consolidate the myriad of administrative rules and rules of practice" in effect in the State of Utah in hopes/of achieving statewide uniformity. See Utah Code Jud. Admin., Foreword.

      . State v. Thomas, 961 P.2d 299, 302 (Utah 1998), provides that
      "core judicial functions include (1) the power to hear and determine controversies between adverse parties and questions in litigation, (2) the authority to hear and determine justiciable controversies, (3) the authority to enforce any valid judgment, decree or order, and (4) all powers that are necessary to protect the fundamental integrity of the judicial branch."
      (Quotations and citations omitted.)


author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 273
    STATE of Utah, Plaintiff and Appellee, v. Lavar T. JENSEN, Defendant and Appellant.
    No. 20020359-CA.
    Court of Appeals of Utah.
    July 25, 2003.

      Heather Johnson, L. Monte Sleight, and Rudy J. Bautista, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, GREENWOOD, and ORME.
   OPINION

BILLINGS, Associate Presiding Judge:

1 Lavar T. Jensen appeals his conviction of violating a protective order, a class A misdemeanor, in violation of Utah Code Ann. § 76-5-108 (1999). We reverse and remand for a new trial.

BACKGROUND

1 2 On May 25, 1999, the trial court granted the victim in this case a protective order against Jensen. In June 2001, the prosecution charged Jensen with violating the protective order. He pleaded not guilty, and trial was held on October 16, 2001, with jury selection occurring earlier that day. After voir dire, the prosecutor used all three of her peremptory challenges on men. Jensen objected on the basis that the challenges were based on the gender of the jurors. The trial court asked the prosecutor to explain the challenges. She replied:

I didn't even initially realize that all three of them were men, all three of my challenges were men until [defense counsel] just pointed it out. I have on my notations that the three struck [sic] were part of the protective order, and logically I assumed that usually they would be on defendant's side, since more than likely than not men are the respondents to protective orders, other than women. Those were my reasoning [sic].... I wasn't looking for men to strike. I left-I just went in order of the ones that were most likely to be called, and I was just looking through that, and that's why I left [a different male venire member] on. I was just going through. The next person that was part of a protective order was-the first ones [sic] I have noted is [the first male involved in a protective order]. The one after that, he was part of a protective order.

The trial court found that the State articulated a non-discriminatory reason and upheld the challenges.

13 Before the calling of any witnesses, Jensen was informed that the victim was not present to testify for the prosecution. Jensen immediately moved for a continuance, emphasizing that the prosecution had subpoenaed the victim, and that her presence as a witness was crucial to his defense. The trial court denied the motion.

114 After the State rested its case, Jensen moved for a directed verdict on the basis that the State did not prove Jensen was "properly served" with the protective order. As proof of proper service, the State had submitted a five-page document (the protective order doe-ument) into evidence. The first four pages contain a standard protective order. The first page names the victim as the petitioner and Jensen as the respondent. Boxes checked next to "Petitioner" and "Respondent" on that page indicate that both Jensen and the victim "were in attendance" at the protective order hearing. Page four is dated May 25, 1999, and is signed by a district court judge and deputy court clerk, with a State of Utah seal next to the clerk's signature. Page five contains the signature, dated May 25, 1999, of a district court commissioner. That page also indicates, above a signature with Jensen's name marked "Respondent," that "(bly this signature, Respondent approves the form, and accepts service, of this Protective Order and waives the right to be personally served." Based on the protective order document, the trial court denied Jensen's motion for a directed verdict.

15 The jury convicted Jensen for violating the protective order,. Jensen now appeals.

ISSUES AND STANDARDS OF REVIEW

T6 Jensen argues he was not "properly served" with a protective order, as required by Utah Code Ann. § 76-5-108 (1999). In doing so, Jensen claims that proper service is an element of the offense of violating a protective order. Which elements constitute an offense is a question of statutory interpretation, which we review for correctness. See State v. McKinnon, 2002 UT App 214, ¶ 3, 51 P.3d 729. Jensen also claims the trial court erred in admitting the last page of the protective order document under rule 902 of the Utah Rules of Evidence and insists that without that page, the evidence was insufficient to support his convietion. To determine whether the trial court correctly admitted the page in question, we apply a correction of error standard. See State v. Silva, 2000 UT App 292, ¶ 10, 13 P.3d 604. Ultimately, under the facts presented, whether Jensen was "properly served" is a question of law we review for correctness. See Reed v. Reed, 806 P.2d 1182, 1184 n. 3 (Utah 1991).

#7 Jensen also contends that the prosecution's stated reason for striking two potential jurors was gender-discriminatory, in violation of his equal protection rights. "Absent a showing of clear error, we will not overturn a trial court's determination concerning the discriminatory intent embodied in a party's explanation for the exercise of a peremptory challenge." State v. Chatwin, 2002 UT App 363, ¶ 5, 58 P.3d 867.

ANALYSIS

I. Service of the Protective Order

18 Jensen claims the prosecution was required to prove proper service as an element of the offense of violating a protective order. The only evidence offered by the prosecution to show service was the protective order document. Jensen argues that page five of that document was inadmissible. Without page five, Jensen insists, the evidence was insufficient to prove beyond a reasonable doubt that he was "properly served." Alternatively, Jensen argues all five pages of the protective order document were insufficient to prove proper service.

T9 Under Utah Code Ann. § 76-5-108 (1999), any person subject to a protective order "who intentionally or knowingly violates that order after having been property served, is guilty of a class A misdemeanor." (Emphasis added.) Although the proseeution must prove every element of a crime to sustain a conviction, see Utah Code Ann. § 76-1-501 (1999), the State argues proper service is not an element of the offense. The State is incorrect. In State v. Rudolph, 970 P.2d 1221, 1233 (Utah 1998), the Utah Supreme Court plainly concluded that "an actor must have been 'properly served with the protective order before he or she can be convicted of violating Utah Code Ann. § 76-5-108." Thus, Jensen's conviction required proof of proper service.

$10 Jensen claims the trial court erred in admitting page five-the final page-of the protective order document. Because the prosecution offered no evidence of authenticity, aside from the protective order document itself, the trial court correctly considered its admission under rule 902 of the Utah Rules of Evidence. Under rule 902, a certified copy of a public record, bearing the proper seal and signature, is a self-authenticating document requiring no extrinsic evidence of authenticity for admissibility. See Utah R. Evid. 902(1), (4). Here, Jensen does not challenge the admissibility of the first four pages. Jensen only challenges admission of the fifth page as self-authenticating, claiming that page five is entirely separate from the first four pages, which include the State's seal and court clerk's signature on page four.

11 A paper attached to a certified document must be "readily identifiable" with that document to be included in the certification. Miller v. State, 563 N.E.2d 578, 584 (Ind.1990). But see State v. Smith, 63 Ohio App.3d 71, 577 N.E.2d 1152, 1156 (1989) (denying admissibility of " 'entire' writing" where a document stapled to the first document did not separately appear to be self-authenticating). Here, although page five does not contain a separate seal or court clerk signature, it is readily identifiable with the first four pages. Most importantly, the first page has a checked box signifying Jensen's presence at the protective order hearing. Consistent with this indication of Jensen's presence, page five contains a signature bearing Jensen's name, whereby the signee "accepts service, of this Protective Order and waives the right to be personally served." (Emphasis added.) Thus, we conclude the trial court correctly interpreted and applied rule 902 in admitting page five as part of a self-authenticating document.

$12 Finally, the protective order doe-ument, including page five, proves that Jensen was "properly served." The document indicates Jensen attended the protective order hearing, thus putting him on notice of the protective order. Further, page five plainly states that Jensen accepted service and waived any other right to personal service. The evidence was therefore sufficient to con-viet Jensen of violating a protective order.

IL - Peremptory Challenges

118 Next, Jensen argues the prosecution violated equal protection by striking two potential jurors on the basis of gender. " "The Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges, " and " 'intentional discrimination on the basis of gender by state actors violates the Equal - Protection Clause" " State v. Chatwin, 2002 UT App 363, ¶ 6, 58 P.3d 867 (quoting J.E.B. v. Alabama, 511 U.S. 127, 128, 130-31, 114 S.Ct. 1419, 1421-22, 128 L.Ed.2d 89 (1994)), cert. denied, 67 P.3d 495 (Utah 2003). Under the Supreme Court's Batson jurisprudence, see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), trial courts must apply a three-step test for determining whether a peremptory challenge violates equal protection. See J.K.B., 511 U.S. at 144-45, 114 S.Ct. at 1429-30.

"[ Olnee the opponent of a peremptory challenge has made out a prima facie case of [gender] discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a [gen-derl-neutral explanation (step 2). If a [gender-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful [gender] discrimination."

State v. Colwell, 2000 UT 8, ¶ 17, 994 P.2d 177 (quoting State v. Higginbotham, 917 P.2d 545, 547 (Utah 1996)).

114 Here, the prosecution waived step 1 "by not raising it before explaining the reasons for its peremptory challenge[s]." State v. Merrill, 928 P.2d 401, 403 (Utah Ct.App.1996); see Higginbotham, 917 P.2d at 547 ("Where the proponent of the peremptory challenge fails to contest the sufficiency of the prima facie case at trial and merely provides a rebuttal explanation for the challenge, the issue of whether a prima facie case was established is waived.").

115 Under step 2, we conclude as a matter of law that the prosecution did not provide a gender-neutral explanation for the two strikes in question. See Chatwin, 2002 UT App 363 at ¶ 19, 58 P.3d 867 (determining prosecutor's explanation that was "clearly gender-based" violated equal protection). When asked by the trial court if she had a reason other than gender for her challenges, the prosecutor responded that each of the two men had been involved in a protective order and, although nothing in the record indicated whether the involvement was as a victim, perpetrator, or witness, she "logically assumed that usually they would be on the defendant's side, since more likely than not men are the respondents to protective orders, [rather] than women." Thus, the prosecutor's motivation was unavoidably linked to the jurors' gender. Cf. State v. Cantu, 778 P.2d 517, 518-19 (Utah 1989) (concluding the prosecution's motivation for striking a juror was "indirect[ly]" connected to the juror's race, yet still finding a violation of equal protection).

{16 The State points to statistics showing that 95% of domestic violence perpetrators are male, and insists the prosecutor's challenges were thus "based on a gender-associated probability grounded in fact," and "not gender-based stereotypes." However, "Lelven if a measure of truth can be found in some of the gender stereotypes used to justify gender-based peremptory challenges, that fact alone cannot support discrimination on the basis of gender in jury selection ... even when some statistical support can be conjured up for the generalization." J.E.B., 511 U.S. at 139 n. 11, 114 S.Ct. at 1427 n. 11. Further, in J.E.B., the Supreme Court's concern "focused not simply on stereotypes, but on any use of gender in the jury selection process." Chatwin, 2002 UT App 363 at ¶ 17, 58 P.3d 867.

117 Moreover, the prosecution did not simply challenge all venire members belonging to a predominantly male or female classification. See J.E.B., 511 U.S. at 143 n. 16, 114 S.Ct. at 1429 n. 16 (suggesting that although "challenging all persons who have had military experience would disproportionately affect men at this time," such a challenge would not be gender-based). Instead of asking the court to inquire during voir dire which prospective jurors had been respondents in protective order cases and then striking those jurors if the court did not see fit to excuse them, the prosecutor admitted that she based her strikes on the assumption that the men previously involved in protective orders were likely respondents. By "rellying] upon ... gender when explaining the reasons underlying [her] peremptory challenge[s]," the prosecutor violated the equal protection clause. Chatwin, 2002 UT App 363 at ¶ 18, 58 P.3d 867.

' 18 Therefore, we do not move to step 8 of the Batson test, see Chatwin, 2002 UT App 363 at ¶ 20, 58 P.3d 867, and we "conclude as a matter of law that the trial court clearly erred in allowing the prosecutor to strike the [two] potential juror[s]" in question. Id.

119 In the alternative, the State urges us to adopt the so-called "dual motivation" analysis, under which a number of jurisdictions have upheld peremptory challenges where the prosecution provided both a discriminatory and non-discriminatory explanation. See, e.g., United States v. Tokars, 95 F.3d 1520, 1533-34 (11th Cir.1996); United States v. Darden, 70 F.3d 1507, 1530-82 (8th Cir.1995); Howard v. Senkowski, 986 F.2d 24, 30 (2nd Cir.1993) (remanding under dual motivation analysis). But see, e.g., State v. Lucas, 199 Ariz. 366, 18 P.3d 160, 163 (App.2001) (rejecting dual motivation approach); Payton v. Kearse, 329 S.C. 51, 495 S.E.2d 205, 209-10 (1998) (same). Utah courts have not yet adopted the dual motivation analysis, see Chatwin, 2002 UT App 363 at ¶ 19 n. 2, 58 P.3d 867, and we decline to consider its adoption in this case.

{20 The State claims that even if the prosecutor based her strikes on gender, she alternatively based them on past involvement with protective orders. After providing a discriminatory reason for challenging the jurors, the prosecutor backtracked, stating that she "wasn't looking for men to strike," and was instead simply going down the list of those venire members involved in protective orders, striking them in sequence. However, the prosecutor had already tipped her hand and admitted she challenged the jurors because they were men involved in protective orders. Cf. Leahy v. Farmon, 177 F.Supp.2d 985, 997, 997 n. 6 (N.D.Cal.2001) (noting important difference at jury selection between discriminating against "native Americans ... employed by [al] tribe" and merely those generally employed by that tribe). The prosecutor's attempt at a "do-over" by retreating to the more general explanation of mere involvement in a protective order contravenes the plain language of her prior explanation and does not hold weight as a separate reason for the strikes.

121 In sum, because the prosecutor did not provide a facially neutral explanation for the peremptory strikes in question, we reverse Jensen's conviction and remand for a new trial. See J.E.B., 511 U.S. at 145-46, 114 S.Ct. at 1430.

CONCLUSION

122 We reverse Jensen's conviction and remand for a new trial given the prosecution's gender-based reason for striking two potential jurors.

23 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, JJ.

      . This statutory scheme is consistent with due process, which "requires that the prosecution prove every element of the charged crimes be-youd a reasonable doubt." State v. Lopes, 1999 UT 24, ¶ 13, 980 P.2d 191.

      . Moreover, at trial, the prosecution treated proper service as an element. The trial court even used the prosecution's proposed jury instruction, which stated that the jury must find, "'beyond a reasonable doubt," that the "protective order had previously been properly served on the defendant." Typically, a party may not raise an issue for the first time on appeal absent a showing of plain error. See, e.g., State v. Bluff, 2002 UT 66, ¶ 25, 52 P.3d 1210.

      . Jensen does not challenge any other element of the offense.

      . The prosecutor could have lawfully removed the same two jurors without relying on gender. First, she could have requested a question on voir dire identifying all who had been accused of or convicted of domestic violence or been subject to a protective order. She made no such request. If she had, she could have simply explained, when prompted, that she was removing all prospective jurors who answered this question in the affirmative. In fact, she probably would have been successful in removing them for cause. Finally, when asked for an explanation for her removal of the two male jurors, she could have simply stated that she was removing all prospective jurors who admitted to being involved in a protective order, whether as perpetrators, victims, or witnesses. However, that is not what occurred in this case.

      . Furthermore, case law applying a "dual motivation" analysis has thus far involved non-discriminatory reasons completely separate from the discriminatory reasons for striking potential jurors. See, e.g., Wallace v. Morrison, 87 F.3d 1271, 1273 (11th Cir.1996) (applying dual motivation analysis where race was a factor, along with age and place of employment); United States v. Darden, 70 F.3d 1507, 1530-31 (8th Cir.1995) (applying dual motivation analysis where prosecutor considered a juror's race along with the fact that "(s)he said virtually nothing" when questioned); Howard v. Senkowski, 986 F.2d 24, 25, 30 (2nd Cir.1993) (applying dual motivation analysis where, in addition to believing a juror's race made him/her more sympathetic, the prosecution considered the juror's education level); State v. Gattis, 1996 WL 769328, at *3, 5-7, 1996 Del.Super. LEXIS 574, at *10, 19-22 (Del.Super.Ct. Dec. 11, 1996) (upholding strike where reasons for strike included juror's views of the death penalty and the fact that he was an "older gentleman"); State v. Williams, 1999 WL 10256, at *2-3, 1999 Minn.App. LEXIS 38, at *6-7 (Minn.Ct.App. Jan. 12, 1999) (upholding strike where prosecutor's reasons included "a concern about the juror's lack of life experience," as well as a "perception that female jurors were 'more biased' against sexual assault victims"), rev'd on other grounds, 608 N.W.2d 837 (Minn.2000); Guzman v. State, 85 S.W.3d 242, 254 (Tex.Crim.App.2002) (applying dual motivation analysis where prosecutor's reasons included fact that juror was male, single, and had no children}.

      . Because we reverse and remand on equal protection grounds, we do not reach Jensen's claim that the trial court's denial of his motion for a continuance to procure the victim's testimony violated his rights to due process and witness confrontation.


author: GREENWOOD, Judge.

text:
    2003 UT App 262
    STATE of Utah, in the interest of D.N. and D.C., persons under eighteen years of age. G.H.M., Appellant, v. State of Utah, Appellee.
    No. 20020454-CA.
    Court of Appeals of Utah.
    July 25, 2003.

      Justin K. Roberts, Murray, for Appellant.
    Mark L. Shurtleff and Carol L. Verdoia, Salt Lake City, for Appellee.
    Martha Pierce, Salt Lake City and Brent J. Newton, Layton, Guardians Ad Litem.
    Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.
   OPINION

GREENWOOD, Judge.

11 G.H.M. (Grandmother) appeals, claiming the juvenile court erred in denying her petition for adoption. - Specifically, Grandmother argues the juvenile court erred in not granting her "preferential consideration" as a relative during the adoption proceedings.

BACKGROUND

T2 In October 1999, D.N. was briefly removed from the custody of TN. (Mother) and placed with the Division of Child and Family Services (DCFS). After a shelter hearing, custody was restored to Mother, but D.N. remained under the protective supervision of DCFS. In August 2000, D.N. and her sister D.C. (collectively, the children) were placed in DCFS custody. Grandmother, the children's maternal grandmother, was granted custody of the children as a kinship placement on August 29, 2000. However, due to familial and financial problems, Grandmother returned the children to DCFS less than a month later, on September 15, 2000. The children were then placed in foster care, without a kinship placement.

13 Approximately one year later, on September 12, 2001, the juvenile court entered an order terminating the parental rights of the children's parents. On August 7, 2001, Grandmother and D.W.M. (Grandfather) filed a Petition for Adoption. The children's Guardian ad Litem filed a Motion in Limine for the purpose of determining whether Grandmother was entitled to a statutory placement "preference" as a relative of the children under Utah Code Ann. § 78-8a-307 (2001).

T 4 An Order was entered on the Motion in Limine, wherein the juvenile court determined that Grandmother was an interested party and entitled to a hearing on her adoption petition, but that she was not entitled to a "preference" under section 78-8a-307. The court reasoned that the "preference" applied only to the shelter phase of proceedings, not to adoption proceedings. The juvenile court also ordered a bonding assessment be conducted with Grandmother and Grandfather.

15 The bonding assessment was conducted in March 2002, and included a similar assessment of the foster parents who had also petitioned for adoption. After trial, the juvenile court entered "Findings of Fact, Conclusions of Law, Decision and Order on [Grandmother and Grandfather's] Petition for Adoption." The juvenile court concluded that it would not be in the best interest of the children to be adopted by Grandmother and Grandfather, and denied their adoption petition. Only Grandmother filed a notice of appeal.

ISSUE AND STANDARD OF REVIEW

T6 We review for correctness the juvenile court's statutory interpretation that "preferential consideration" for relatives is not applicable in adoption proceedings. See In re S.D.C., 2001 UT App 353,¶ 18, 36 P.3d 540.

ANALYSIS

T7 Grandmother argues that the juvenile court erred in determining that preferential consideration of relatives for placement, applicable in abuse, neglect, and dependency proceedings, does not apply in adoption proceedings. Utah Code Ann. §§ 78-3a-301 to -307 (2002) govern abuse, neglect, and dependency proceedings. The statute grants "preferential consideration" to a relative's request for custody of a child who has been removed from his or her parents' custody, provided such a placement is in the best interest of the child. See Utah Code Ann. § 78-82-307(5b)(a). However,

[ alny preferential consideration that a relative may be initially granted ... expires 120 days from the date of the shelter hearing. After that time period has expired, a relative who has not obtained custody or asserted an interest in a child, may not be granted preferential consideration by the division or the court.

Id. § 78-82-807(8)(a).

T8 The State argues that the preferential consideration in abuse, neglect, and dependency proceedings "expires 120 days from the date of the shelter hearing," id.; thus, any preferential consideration that may have been available to Grandmother expired well before adoption proceedings commenced. The State also argues that Grandmother forfeited any preference when she returned the children to DCFS.

T9 In this case, the children were briefly placed in Grandmother's custody after being removed from Mother. Although the children were returned to the custody of DCFS, Grandmother argues that the juvenile court erred in refusing to grant her preferential consideration in the adoption proceedings because by initially taking the children she expressed an "interest" in the children, see id. (stating relative may obtain custody or assert an interest in child), which maintained her preferential consideration status.

1 10 A plain reading of section 78-3a-307, however, reveals that it is focused solely on the placement of a child after a shelter hearing, enunciating a policy favoring placing a child with a relative if that is in the best interest of the child. This preference expires after 120 days if there is no success in identifying a suitable relative. See id. § 78-Ba-307(8)(a). A suitable relative is one who is "willing to cooperate if the child's permanency goal is reunification with his parent or parents, and be willing to adopt or take permanent custody of the child if that is determined to be in the best interests of the child." Id. § 78-8a-807(5)(b)@). This provision is consistent with the legislature's stated policy of providing permanent, stable homes for children whose parents cannot appropriately care for them. See id. §§ 62A4a-108(2)(b), 62A-4a-206(1)(a)-(b) (2000). This policy is furthered by identifying potential adoptive parents as soon as practicable to achieve permanence for children. Given the paramount importance of stability and permanence, whatever interest and suitability for placement Grandmother initially established was essentially repudiated when she returned the children to DCFS.

T11 Moreover, even if this court determined that Grandmother maintained her "preferential consideration" by expressing an "interest" in the children, the determinative issue before us is whether the "preferential consideration" available in abuse, neglect, and dependancy proceedings extends to adoption proceedings. The juvenile court determined "[that Utah Code Ann[.] § 78-8a-307 (2001) does not provide a preference for placement with [Grandmother]. That section of the law governs a preference during the shelter phase of the Child Welfare Act and the Court will not extend the preference in that section to these adoption proceedings."

112 Utah Code Ann. §§ 78-30-1 to -19 (2002) (Adoption Code) governs adoption in Utah. The Adoption Code does not provide preferential consideration for family members. Further, there is nothing in the Adoption Code that supports applying such a preference to adoption proceedings. The governing criterion for adoption is that the "best interest of the child should govern and be of foremost concern in the court's determination." Id. § 78-30-1.5(1). However,

[ in assessing the best interest of a child in the custody of [DCFS] whose foster parents have petitioned for adoption, the court shall give special consideration to the relationship of the child with his foster parents, if the child has been in that home for a period of six months or longer.

Id. § 78-830-1.6 (emphasis added). Thus, in adoption proceedings, only a person, which could include a relative, who has acted as a foster parent to the child, is given "special consideration," and that is only after being a child's foster parent for "six months or longer." Id. Relatives are not given "preferential consideration" in adoption proceedings merely because they are relatives. See In re A.B., 1999 UT App 315,¶ 16, 991 P.2d 70.

[ 13 In A.B., the grandmother had custody of two of three siblings for over a year after the children were removed from their parents' custody. See id. at 14. At a review hearing the two children were removed from the grandmother's custody and placed with the other sibling in the home of a couple who later petitioned to adopt all three children. See id. at 1 4. The grandmother filed a petition to adopt the children, arguing she should be given a preference in the adoption proceedings as a relative of the children. See id. at 11 7, 16. This court rejected the argument as unavailing because "Utah law does not give such a preference in adoption cases," noting that the standard for adoption is " 'the best interest of the child' " Id. at ¶ 16 (quoting Utah Code Ann. § 78-80-1.5 (1996)). Similarly in this case, Grandmother requests preferential consideration because of a familial relationship. However, as in A.B., such consideration is not available in adoption proceedings. Rather, to fulfill the statutory policy established by our legislature, courts must look only to the best interest of a child, giving "special consideration" only "to the relationship of the child with his foster parents, if the child has been in that home" for six months or longer. Utah Code Ann. § 78-80-1.6.

1 14 Grandmother did not maintain a foster parent relationship with the children because of financial and familial problems. Consequently, she was not entitled to "special consideration" under the Adoption Code. Any "preferential consideration" she could have claimed within 120 days of the shelter hearing is not applicable in adoption proceedings because familial relationships have not been granted a preference by our legislature in adoption proceedings. See A.B., 1999 UT App 315 at ¶ 16, 991 P.2d 70. Thus, the juvenile court correctly concluded that seetion 78-8a-807 was inapplicable.

CONCLUSION

115 Any "preferential consideration" for relatives provided during abuse, neglect, and dependency proceedings, is not applicable in adoption proceedings because relatives are not statutorily entitled to preferential consideration in adoption proceedings. See In re A.B., 1999 UT App 315,¶ 16, 991 P.2d 70. Thus, the juvenile court was correct in concluding that Utah Code Ann. § 78-8a-307 (2002) is inapplicable in adoption proceedings.

1 16 We therefore affirm.

117 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

      . Grandmother also claims the juvenile court erred when it did not order a preplacement adoptive evaluation, and instead ordered a "bonding assessment" to be completed prior to entering its decision. Grandmother failed to preserve this issue for appeal. Rule 24(a)(5)(A) of the Utah Rules of Appellate Procedure requires that Grandmother cite to the record "showing that the issue was preserved in the trial court." Id. Here, Grandmother did not file a transcript of the proceedings below, nor did she file a motion with the juvenile court establishing her objection. - '"[Albsent exceptional circumstances or plain error, a party who fails to bring an issue to the trial court's attention is barred from asserting it on appeal." Brigham City v. Stuart, 2002 UT App 317,¶ 14, 57 P.3d 1111. Because Grandmother has not established that she raised the issue before the trial court, and does not argue plain error or exceptional circumstances on appeal, we decline to address it. See id.

      . Grandfather is Grandmother's husband and Mother's step-father.

      . _" '[RJelative' means an adult who is a grandparent, great grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first cousin, stepsibling, or sibling of the child." Utah Code Ann. § 78-3a-307(5)(d) (2002).

      . Utah Code Ann. § 78-3a-307(5)(a) does not guarantee that "an identified relative will receive custody of the child." Id. Section 78-3a-307(5)(a) only grants preferential consideration to a relative "if it is in the best interest of the child." Id. (emphasis added).

      . - Grandmother does not appeal from the juvenile court's findings of fact and conclusion that adoption by her was not in the children's best interest.