text:
    STATE of Utah, IN the INTEREST OF K.J., a Person Under Eighteen Years of Age.
    J.J., Appellant, and C.J., Appellant, v. State of Utah, Appellee.
    Nos. 20170812-CA 20170814-CA
    Court of Appeals of Utah.
    Filed November 16, 2018
    Sheleigh A. Harding, Salt Lake City, Attorney for Appellant J.J.
    Jordan Putnam, Cottonwood Heights, Attorney for Appellant C.J.
    Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Salt Lake City, Attorneys for Appellee.
    Martha Pierce and Natalia Peterson, Salt Lake City, Guardian ad Litem.
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 This case requires us to determine whether the State may file a petition seeking termination of parental rights when the child is already subject to ongoing abuse, neglect, and dependency proceedings. We conclude that the plain language of the Juvenile Court Act (the JCA) permits the State to file a termination petition at any time. Accordingly, we affirm the juvenile court's order terminating C.J.'s (Mother) and J.J.'s (Father) parental rights in K.J. (Child).

BACKGROUND

¶2 Mother and Father are the biological parents of Child. At birth, Child tested positive for benzodiazepines, oxycodone, and morphine and remained in the hospital's neonatal intensive care unit for eleven days for treatment related to opiate withdrawals.

¶3 Approximately three weeks after Child was born, he was taken into custody by law enforcement, and the Division of Child and Family Services (DCFS) filed a verified petition alleging that Child was "an abused, neglected, or dependent child." The juvenile court held a shelter hearing and placed Child in DCFS's temporary custody. At the adjudication hearing, the parents stipulated to certain factual findings, and the juvenile court adjudicated Child as neglected by Mother and dependent as to Father. The court entered a dispositional order in September 2016, ordering DCFS to provide reunification services to Father but not to Mother who was incarcerated at the time. After Mother's release, the court ordered her to participate in a substance abuse evaluation and to follow any recommendations from that evaluation. In February 2017, the court determined that reunification services had been successful, transferred permanent custody of Child back to the parents, and terminated its jurisdiction and DCFS's involvement.

¶4 Five months later, in July 2017, DCFS filed another verified petition alleging that Child was "abused and neglected." At that time, Mother was again incarcerated. The juvenile court held a shelter hearing and placed Child in DCFS's temporary custody "for appropriate placement." The court also appointed counsel for both parents.

¶5 In August 2017, DCFS filed a verified petition seeking termination of both Father's and Mother's parental rights. The court scheduled a pretrial hearing and a trial on the termination petition. During the pretrial hearing, the parents moved "for a hearing for reunification services." DCFS opposed the parents' motion, asserting that there is no provision for reunification services when DCFS files a termination petition instead of an abuse and neglect petition. The juvenile court stated that it would consider any motions for reunification services "filed in a timely manner."

¶6 Before trial, Father filed a "Motion to Stay Termination of Rights Petition and Convert Trial Setting to Pretrial Hearing on Underlying Petition." In his motion, Father requested a stay of the termination petition and argued that DCFS was required to proceed on its abuse and neglect petition, "and only once [the juvenile court] has determined that reunification services are inappropriate should [DCFS] file a termination of rights petition." He further argued that "[t]he dispositional statute clearly contemplates that there will be a hearing to determine whether reunification services are appropriate" and that, "[b]y moving straight to a petition to terminate parental rights, the State jumps over all of the safeguards and due process given to the family in the dispositional statute." See generally Utah Code Ann. § 78A-6-312 (LexisNexis Supp. 2018) (discussing dispositional hearings and reunification services).

¶7 DCFS objected to Father's motion, arguing that Father "does not have a constitutional right to reunification" and that his "due process rights will be preserved and protected during the trial" on the termination petition. DCFS further asserted that "[t]here is no provision for reunification [services] to be granted under the Termination of Parental Rights Act."

¶8 At the beginning of the termination trial, the court addressed and denied Father's motion to stay. In its written ruling, the court stated that it was not persuaded that Father's "due process rights are violated by the State pursuing alternative petitions and acting on the more final petition first." First, the court determined that "there is no recognized substantive due process right that would require the state to either dismiss ... or proceed on a verified [abuse or neglect adjudication] petition prior to proceeding with a Petition for Termination of Parental Rights." The court recognized that parents have a " 'fundamental liberty interest in the care, custody, and management of their children' " and that, notwithstanding that interest, " 'a parent shown by clear and convincing evidence to be unfit can be permanently deprived of all parental rights.' " (Quoting In re J.S. , 2017 UT App 167, ¶ 7, 405 P.3d 828 (per curiam).) The court observed that requiring the State to forgo "alternative jurisdictional theories would dilute the State's 'moral and statutory obligation to step in and protect children when those children are suffering from neglect and abuse.' " (Quoting id. ) Thus, the court concluded, "[t]he separate filing does not implicate [Father's] substantive due process rights."

¶9 Second, the court concluded that Father was not denied procedural due process. Specifically, the court observed that the parties had "concede[d] that there is no constitutional or statutory right to reunification services, nor do the presumptions for or against reunification services apply to a verified petition for termination of parental rights." The court determined that there is "no right to have a petition for adjudication [of abuse or neglect] filed before a petition to terminate parental rights" and that "the State or any party has the discretion to file a termination petition whenever the parties believe there are grounds to terminate parental rights." The court observed that Father (1) had participated in all of the proceedings since Child's birth, (2) had received notice of the termination petition, (3) had been appointed counsel "at all stages of the proceeding," and (4) "had a full and fair opportunity to defend against" the termination petition. The court determined that there was "nothing 'fundamentally unfair' about proceeding with a properly filed termination proceeding while a verified petition alleging abuse and neglect remains filed and outstanding."

¶10 Ultimately, the court terminated both parents' parental rights. Regarding Mother, the court found that (1) Mother had neglected Child and was an unfit parent because she "habitually and excessively use[d] controlled substances or dangerous drugs that render[ed] her unable to care for [Child]"; (2) Child was being cared for in an out-of-home placement and Mother had "substantially neglected, willfully refused or [was] unable or unwilling to remedy the circumstances that cause[d] [Child] to be in an out-of-home placement[,] and there [was] a substantial likelihood that [she would] not be capable of exercising proper and effective parental care in the near future"; and (3) Mother had experienced a failure of parental adjustment. See Utah Code Ann. § 78A-6-507(1)(b), (d), (e) (LexisNexis Supp. 2018); id. § 78A-6-508(2)(c), (d). The court further determined that it was in Child's best interest to terminate Mother's parental rights.

¶11 Regarding Father, the court found that (1) Father had neglected Child and was an unfit parent because he "habitually and excessively use[d] controlled substances or dangerous drugs that render[ed] him unable to care for [Child]"; (2) Child was being cared for in an out-of-home placement and Father had "substantially neglected, willfully refused or [was] unable or unwilling to remedy the circumstances that cause[d] [Child] to be in an out-of-home placement[,] and there [was] a substantial likelihood that [he would] not be capable of exercising proper and effective parental care in the near future"; and (3) Father had experienced a failure of parental adjustment. See id. § 78A-6-507(1)(b), (d), (e) ; id. § 78A-6-508(2)(c), (d). The court also took judicial notice "of its disposition and review orders related to [Father]" and found that "the services provided to [Father] in 2016 when [Child] was removed the first time were reasonable." The court further determined that it was in Child's best interest to terminate Father's parental rights.

¶12 The parents moved to amend the order terminating their parental rights under rule 59 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 59(a)(7) ("[A] new trial may be granted to any party on any issue for any of the following reasons: ... that the verdict or decision is contrary to law or based on an error in law."). They asserted that the juvenile court's ruling that the State could proceed on its termination petition instead of the underlying abuse and neglect petition was contrary to this court's decision in In re S.F. , 2012 UT App 10, ¶ 43, 268 P.3d 831. According to the parents, In re S.F. stands for the proposition that, where juvenile court jurisdiction is terminated in an earlier case, the child welfare proceedings must begin anew, which requires a shelter hearing, adjudication, disposition, and a permanency hearing before the State can seek termination of parental rights. Thus, the parents asserted, the State should have been required to "proceed on its underlying verified petition of abuse and neglect prior to proceeding on its termination of rights petition."

¶13 The juvenile court denied the parents' motion. The court was not persuaded by the parents' arguments and disagreed with their reading of In re S.F. , concluding that the case held that "when a child is removed after the Court's jurisdiction is terminated, the filing of a new petition is needed to reanimate the Court's jurisdiction." But the court did not read the decision "to limit how the Court's jurisdiction is reanimated to only custody petitions." The court determined that "it is clear that that juvenile court act procedures did begin anew in this case," explaining:

A new petition for custody was filed to take [Child] back into protective custody. A shelter hearing was held and the parents were afforded counsel and a right to be heard. After the shelter hearing but before adjudication of the first petition, the State filed a second petition, this one requesting termination of parental rights. The case proceeded to adjudication: the termination of parental rights petition was adjudicated, and the order terminating parental rights constituted the dispositional order.

(Quotation simplified.) The court further stated that it "had jurisdiction to hear either petition and it determined to hear ... the more determinative petition first."

¶14 Mother and Father appeal.

ISSUE AND STANDARDS OF REVIEW

¶15 Mother and Father contend that their due process rights were violated "when the juvenile court allowed DCFS to proceed on its termination of [parental] rights petition, rather than requiring DCFS to proceed on the underlying abuse/neglect petition." "Whether a parent has been afforded adequate due process is a question of law, reviewed for correctness." In re S.F. , 2012 UT App 10, ¶ 24, 268 P.3d 831 (quotation simplified). "Likewise, any interpretation of the Juvenile Court Act is a question of law, reviewed for correctness." Id.

ANALYSIS

¶16 "The right to raise one's children is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution." In re X.C.H. , 2017 UT App 106, ¶ 14, 400 P.3d 1154 (quotation simplified); see also Utah Code Ann. § 78A-6-503(1) (LexisNexis Supp. 2018) ("Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent's child."). "Accordingly, that right may not be terminated without due process of law." In re X.C.H. , 2017 UT App 106, ¶ 14, 400 P.3d 1154 (quotation simplified); see also U.S. Const. amend. XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law ...."); Utah Code Ann. § 78A-6-503(2) (LexisNexis Supp. 2018) ("The court shall provide a fundamentally fair process to a parent if a party moves to terminate parental rights.").

¶17 Mother and Father contend that the State "should have been required to proceed on the underlying abuse/neglect petition" and that their due process rights were violated when the juvenile court instead allowed the State to proceed on its termination petition. Once the State filed its abuse and neglect petition, the parents contend they then "had a due process right to an adjudication of the abuse, neglect, and/or dependency petition ..., and to a dispositional hearing [thirty] days later." They assert that "[t]he dispositional statute clearly contemplates that there will be a hearing to determine whether reunification services are appropriate, and if not, then the case proceeds to a permanency hearing, where a petition to terminate parental rights could be filed." In other words, the parents contend that, once the State filed its abuse and neglect petition, the parents were thereafter entitled to the full panoply of proceedings set forth in Part 3 of the JCA before the State was permitted to seek termination of either parent's parental rights.

¶18 "When interpreting a statute, it is axiomatic that [our] primary goal is to give effect to the legislature's intent in light of the purpose that the statute was meant to achieve." Monarrez v. Utah Dep't of Transp. , 2016 UT 10, ¶ 11, 368 P.3d 846 (quotation simplified). As Utah courts have often noted, "the best evidence of the legislature's intent is the plain language of the statute itself." Id. (quotation simplified). "Our task ... is to determine the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme)." Id. (quotation simplified). We therefore "read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters." Id. (quotation simplified). Lastly, "we avoid any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word of a statute." Id. (quotation simplified).

¶19 We see nothing in the JCA's plain language prohibiting the State from bringing a termination proceeding while an abuse, neglect, or dependency proceeding is pending in the juvenile court. We first address the statutory language, concluding that the statutes' language permits the State to file a termination petition at any time during the pendency of an abuse, neglect, or dependency proceeding. We then address the case law upon which the parents rely.

A

¶20 The JCA contains multiple statutory avenues for the termination of parental rights. To begin with, Part 3 of the JCA, governing abuse, neglect, and dependency proceedings, sets out a detailed process by which the State may intervene in the parent-child relationship, work to improve that relationship and the conditions of the family, and seek to terminate a parent's parental rights if necessary. See generally Utah Code Ann. §§ 78A-6-301 to -324 (LexisNexis Supp. 2018). Pursuant to the JCA, a juvenile court has exclusive original jurisdiction in a proceeding concerning "a child who is an abused child, neglected child, or dependent child." Id. § 78A-6-103(1)(b).

¶21 Under Part 3, an abuse, neglect, or dependency proceeding generally begins when, after taking a child into protective custody, the State files a verified petition alleging that the child has been abused, neglected, or is dependent. See id. §§ 78A-6-302, -304. The juvenile court is then required to hold a shelter hearing pursuant to section 78A-6-306 to determine whether continued removal and placement of the child in DCFS's temporary custody are necessary. See id. § 78A-6-306. The matter then proceeds, and the court holds an adjudication hearing. See id. § 78A-6-311. "If, at the adjudication hearing, the court finds, by clear and convincing evidence, that the allegations contained in the petition are true, it shall conduct a dispositional hearing." Id. § 78A-6-311(1). At the dispositional stage, the juvenile court has myriad dispositional choices available to it, from protective supervision, to reunification services, to termination of parental rights. See id. §§ 78A-6-117(2), -312(1)-(2). If the court does not order reunification services, a permanency hearing must be held within thirty days. Id. §§ 78A-6-312(26), -314(1)(b). If, at the permanency hearing, the final plan for the child is to proceed toward termination of parental rights, "the petition for termination of parental rights shall be filed, and a pretrial held, within [forty-five] calendar days after the permanency hearing." Id. § 78A-6-314(9).

¶22 Notably, section 78A-6-314 provides that nothing in the section pertaining to the permanency hearing and the final permanency plan "may be construed to ... limit or prohibit the filing of a petition for termination of parental rights by any party, or a hearing on termination of parental rights, at any time prior to a permanency hearing."Id. § 78A-6-314(11)(c). "This provision clearly contemplates the possibility that if a termination trial is held prior to a permanency hearing and the parent's rights are terminated, then the parent may never receive a permanency hearing." In re S.F. , 2012 UT App 10, ¶ 53, 268 P.3d 831.

¶23 The State concedes that this process is "the norm" and that, "[i]n child welfare proceedings initiated by the State, it is more typical that the proceedings begin with a petition pursuant to Utah Code [section] 78A-6-304" seeking adjudication of abuse, neglect, or dependency. But while that process may be "the norm," we agree with the State that "it is not a legal requirement" for this process to occur before terminating parental rights. In other words, while most termination cases begin as abuse, neglect, and dependency cases, a termination proceeding does not necessarily flow from an abuse, neglect, and dependency proceeding. Nor does a termination proceeding depend upon a prior adjudication of abuse or neglect.

¶24 Pursuant to Utah Code section 78A-6-103(1)(f), juvenile courts also have exclusive original jurisdiction in proceedings concerning "the termination of the legal parent-child relationship in accordance with Part 5, Termination of Parental Rights Act, including termination of residual parental rights and duties." Utah Code Ann. § 78A-6-103(1)(f) (LexisNexis Supp. 2018). Section 78A-6-504 provides that "[a]ny interested party ... may file a petition for termination of the parent-child relationship with regard to a child." Id. 78A-6-504(1). "When termination proceedings are initiated under [the Termination of Parental Rights Act], the [juvenile] court must make two distinct findings supported by clear and convincing evidence before a person's parental rights can be properly terminated." In re Adoption of T.H. , 2007 UT App 341, ¶ 11, 171 P.3d 480. "First, the court must find that the parent is below some minimum threshold of fitness, such as finding that a parent is unfit or incompetent based on any of the grounds for termination under section 78A-6-507 of the Utah Code." In re X.C.H. , 2017 UT App 106, ¶ 34, 400 P.3d 1154 (quotation simplified); see also Utah Code Ann. § 78A-6-507(1) (LexisNexis Supp. 2018) (listing the grounds for termination of parental rights and providing that the finding of a single enumerated ground will support the termination of parental rights). Second, after finding at least one of the enumerated grounds, "the court must find that the best interests and welfare of the child are served by terminating the parents' parental rights." In re X.C.H. , 2017 UT App 106, ¶ 34, 400 P.3d 1154 (quotation simplified); see also Utah Code Ann. § 78A-6-506(3) (LexisNexis Supp. 2018).

¶25 Mother and Father do not challenge the constitutionality or statutory procedures set forth under either Part 3 or Part 5 of the JCA independently. Rather, they assert that due process prohibits the State from jumping to a termination proceeding under Part 5, while an adjudication of abuse, neglect, or dependency is proceeding under Part 3. Such a change in course, the parents argue, deprives them of "the safeguards and due process" provided in the adjudication statute. We are not persuaded. The statutes do not prohibit the State from changing course and, as we discuss later, infra ¶¶39-42, such a turn does not violate the parents' due process rights. The plain language of the applicable statutes simply does not prohibit the State from filing a petition seeking termination of parental rights while an abuse, neglect, or dependency proceeding is pending in the juvenile court. Indeed, as previously discussed, section 78A-6-314 provides that nothing in the section relating to the permanency hearing and the final permanency plan "may be construed to ... limit or prohibit the filing of a petition for termination of parental rights by any party, or a hearing on termination of parental rights, at any time prior to a permanency hearing ." Utah Code Ann. § 78A-6-314(11)(c) (LexisNexis Supp. 2018) (emphasis added). Rather, we agree with the State that the plain language of the JCA "allows for a termination petition to be filed at any time [during an abuse, neglect, or dependency proceeding], or even as a stand-alone action."

¶26 Moreover, the JCA provides that juvenile courts have exclusive original jurisdiction over "a child who is an abused child, neglected child, or dependent child," as well as "the termination of the legal parent-child relationship in accordance with Part 5, Termination of Parental Rights Act, including termination of residual parental rights and duties." Utah Code Ann. § 78A-6-103(1)(b), (1)(f). Here, DCFS filed a verified petition alleging that Child was "abused and neglected." The juvenile court held a shelter hearing and placed Child in DCFS's temporary custody "for appropriate placement." Before adjudication on the first petition, DCFS filed a second verified petition seeking termination of both Mother's and Father's parental rights. The juvenile court had exclusive original jurisdiction over both petitions, and we agree with the juvenile court that the State may elect to proceed with the more final petition first. Indeed, as the juvenile court observed, "[t]o require the State to [forgo] alternative jurisdictional theories would dilute the State's 'moral and statutory obligation to step in and protect children when those children are suffering from neglect and abuse.' " (Quoting In re J.S. , 2017 UT App 167, ¶ 7, 405 P.3d 828 (per curiam).)

¶27 In sum, where an abuse, neglect, or dependency proceeding is pending, nothing in the plain language of the JCA prohibits the State from reasserting jurisdiction by filing another petition seeking termination of parental rights.

B

¶28 Mother and Father direct our attention to In re S.F. , 2012 UT App 10, 268 P.3d 831, for the proposition that the State must go through all of the statutory child welfare proceedings under Part 3, once initiated, before proceeding to termination under Part 5. The parents' reliance on In re S.F. is misplaced.

¶29 There, the father's children were first placed in DCFS's protective custody in August 2007, and the juvenile court later adjudicated the children as neglected. Id. ¶ 2. After twelve months of reunification services, the juvenile court found that the father had substantially complied with the treatment plan, and the court returned custody and guardianship of the children to the father "subject to protective supervision by DCFS." Id. ¶¶ 3-4 (quotation simplified). The court also ordered DCFS to create a new service plan for the father and scheduled a review hearing for a few months later. Id. ¶ 4. Shortly after the father entered into the new service plan, police responded to two separate domestic violence incidents at his home, and in November 2008, DCFS filed a petition seeking to have the children removed from the father's custody. Id. ¶ 5. The juvenile court placed the children in DCFS's temporary custody, having determined that removal was necessary and in the children's best interests. Id. ¶ 7. At the next pretrial hearing, the State filed a petition to terminate the father's parental rights, id. ¶ 9, and at a subsequent hearing, the court denied further reunification services to the father, see id. ¶¶ 10, 13-14. The case proceeded to a termination trial, and the court ultimately terminated the father's parental rights. Id. ¶ 16.

¶30 On appeal, the father asserted that the juvenile court failed "to hold statutorily-mandated child welfare proceedings" after his children were removed for the second time and that the juvenile court therefore exceeded its "jurisdiction and violated his due process rights." See id. ¶ 24. More specifically, he argued that when his children were returned to DCFS's custody in November 2008, the juvenile court was required "to adjudicate the [c]hildren again in order to obtain jurisdiction over the [c]hildren." Id.

¶31 This court first determined that, although the juvenile court had returned legal custody of the children to the father in August 2008, the court had retained its dispositional authority over the children as evidenced by the court's order, which anticipated continued protective supervision by DCFS and required the father to enter into a new service plan. Id. ¶¶ 33, 35. We determined that "as long as the juvenile court does not dismiss the case or terminate jurisdiction, the court retains dispositional authority over the [c]hildren because there has been an initial legal determination that those [c]hildren are abused, neglected, or dependent." Id. ¶ 34. "In contrast, where the juvenile court makes a ruling incompatible with a continuation of its authority, the court's jurisdiction ends." Id. Because the juvenile court "did not affirmatively renounce its jurisdiction or enter any ruling incompatible with its continuing authority," the juvenile court retained jurisdiction over the children. See id. ¶¶ 35-36.

¶32 Regarding the father's argument that the juvenile court was required to adjudicate the children as neglected again, this court concluded that the juvenile court was not required to restart the child welfare proceedings in November 2008. Id. ¶ 39. Observing that "the juvenile court did not amend the children's status as neglected [or] surrender its jurisdiction over the family" in August 2008 when it restored legal custody to the father, we determined that the court retained dispositional authority over the children and could therefore return the children to DCFS's custody in November 2008. Id. ¶¶ 41, 44. As a result, the court was not required to restart the child welfare proceedings after the children's second removal. That is, the court was not required to hold a shelter hearing or readjudicate the children as neglected. See id. ¶ 48.

¶33 Relevant to this appeal, this court also observed, in dicta, that under a different set of circumstances-for example, if the father "had abided by the service plan until the court had terminated child supervision services and its jurisdiction, and only then had engaged in domestic violence in front of the [c]hildren"-"the situation would be entirely different." Id. ¶ 43. We stated that "[i]n such a case, where the court has terminated its jurisdiction, the Juvenile Court Act procedures would begin anew ." Id. (emphasis added). We then set forth a hypothetical sequence of events that would occur in the new proceedings:

After taking the [c]hildren into protective custody, the State would file a petition introducing new allegations of neglect pursuant to Utah Code section 78A-6-304(1)(b). The court would then hold a shelter hearing pursuant to section 78A-6-306, the result of which might be to remove the children and place them in DCFS's temporary legal custody. After that, the matter would proceed to adjudication.

See id. (quotation simplified).

¶34 The parents assert that In re S.F. demonstrates that "where new grounds for removal occur after termination of jurisdiction" in a previous case, the juvenile court is required to "restart the child welfare proceedings." Relying on the sequence of events described in In re S.F. , the parents assert that they were entitled to "an adjudication of the abuse, neglect, and/or dependency petition ..., and to a dispositional hearing 30 days later," at which hearing the juvenile court could have determined whether reunification services were appropriate. See id. ¶ 43. We are not persuaded.

¶35 In In re S.F. , this court was concerned with the juvenile court's jurisdiction over the children, not with setting forth a mandatory sequence of events that must occur in all child welfare proceedings before a party can seek termination of parental rights. Specifically, we observed that "where the court has terminated its jurisdiction, the Juvenile Court Act procedures would begin anew," which would involve the filing of a new petition. See id. But as the juvenile court in this case correctly observed, In re S.F. does not "limit how the [c]ourt's jurisdiction is reanimated." The juvenile court's jurisdiction may be reanimated with a petition alleging abuse, neglect, or dependency, or with a petition seeking termination of parental rights. Our legislature has given juvenile courts exclusive original jurisdiction over both types of proceedings. See Utah Code Ann. § 78A-6-103(1)(b), (1)(f) (LexisNexis Supp. 2018). Here, the juvenile court had jurisdiction over both the State's abuse and neglect petition and its termination petition. Thus, as previously discussed, the only issue was deciding on which petition to proceed, and the State opted to proceed on the termination petition. As such, the statutory procedures relating to abuse, neglect, and dependency proceedings in Part 3 of the JCA had no bearing on the termination proceedings.

¶36 Our conclusion is supported by this court's decision in In re A.K. , 2012 UT App 232, 285 P.3d 772. In that case, the daughter had been removed from her mother's custody twice. Id. ¶¶ 3-4. Both times, the daughter was returned to the mother's custody with protective supervision services. Id. ¶¶ 3, 5. DCFS later filed a joint petition for custody and termination of the mother's parental rights. Id. ¶¶ 6-7. The juvenile court ordered removal of both the daughter and mother's infant son (daughter's third removal and son's first removal), granted custody to DCFS, and set a discovery schedule for the termination hearing. Id. ¶ 7. The court ultimately terminated the mother's parental rights. Id. ¶ 10.

¶37 On appeal, the mother asserted that "certain statutory procedures were not followed after the final removal of her children" and that the juvenile court therefore lacked "jurisdiction to hear the State's petition to terminate her parental rights." Id. ¶ 11. More specifically, she asserted that the juvenile court "failed to hold a shelter hearing, an adjudication, and a dispositional hearing," and that the juvenile court was "deprived of jurisdiction by its failure to strictly comply with the statutory procedures for the abuse, neglect, and dependency proceedings." Id. ¶¶ 15-16.

¶38 This court disagreed, observing that juvenile courts have jurisdiction over proceedings concerning " 'a child who is an abused child, neglected child, or dependent child,' " id. ¶ 16 (quoting Utah Code Ann. § 78A-6-103(1)(c) (Supp. 2012) ), and that juvenile courts also have a separate statutory basis for jurisdiction in proceedings concerning " 'the termination of the legal parent-child relationship in accordance with Part 5, Termination of Parental Rights Act,' " id. ¶ 17 (quoting Utah Code Ann. § 78A-6-103(1)(g) (Supp. 2012) ). Consequently, this court concluded that, "[e]ven if the alleged defects deprived the court of jurisdiction over abuse, neglect, and dependency proceedings," the juvenile court "clearly had jurisdiction over the termination proceedings ... pursuant to subsection (1)(g)." Id. In other words, any jurisdictional defects in the underlying adjudication were remedied by the termination proceeding, which provided the juvenile court with an independent grant of jurisdiction. See id. Here, the State initially filed an abuse, neglect, or dependency petition. Switching course, the State filed a separate petition seeking termination of Mother's and Father's parental rights. The State's new petition under Part 5 of the JCA called upon a separate grant of jurisdiction given to the juvenile court. Consequently, the State's abandonment of the Part 3 neglect adjudication proceedings did not impact its ability to proceed to termination of parental rights pursuant to a Part 5 petition. See id.

¶39 Mother and Father do not challenge the statutory procedures set forth under either Part 3 (abuse, neglect, or dependency adjudication) or Part 5 (termination of parental rights) independently. Rather, they assert that due process requires the State to follow through with the dispositional portion of Part 3, once that adjudication process is initiated, before changing course and commencing termination proceedings under Part 5. We have already concluded that the statutes do not prohibit the State from altering course in this way, supra ¶25, and we are not persuaded that the State doing so in this case infringed on the parents' due process rights.

¶40 "Parties to a judicial proceeding are entitled to notice that a particular issue is being considered by a court and must be given an opportunity to present evidence and argument on that issue before decision." In re M.J. , 2011 UT App 398, ¶ 51, 266 P.3d 850 (quotation simplified). "Parties are deprived of due process when they are not properly informed of the nature of a proceeding, or notice is not given sufficiently in advance to allow preparation." In re A.H. , 2004 UT App 39, ¶ 11, 86 P.3d 745. "Judicial and administrative proceedings following the State's removal of children from their home are no exception to this fundamental principle." Id. ¶ 12.

¶41 Here, once the State filed its termination petition, the juvenile court scheduled a pretrial hearing on the petition and set a date for the termination trial. See supra ¶ 5. Both parents had proper notice of both hearings and an opportunity to argue their positions at both hearings. See supra ¶¶ 5-8. In addition, each parent was assisted by legal counsel throughout the termination proceedings. See supra ¶ 4. The fact that the parents were ultimately unsuccessful in their arguments does not mean that they did not receive the due process to which they were entitled.

¶42 As a general consideration, we note that the State's decision regarding which cases should proceed through the statutory abuse, neglect, and dependency proceedings and which cases should proceed directly, or more swiftly, to termination proceedings does seem somewhat arbitrary. But the State's decisions in that regard fall squarely within its use of executive discretion. "It is not a function of the courts to review the exercise of executive discretion,"

see State v. Garcia , 29 Utah 2d 52, 504 P.2d 1015, 1015-16 (1972), and given the plain language of our current statutory scheme, we cannot conclude that it was a violation of due process for the State and DCFS to deviate from the usual sequence of events in abuse, neglect, and dependency proceedings and to proceed on the termination petition instead.

¶43 The Guardian ad Litem is correct that what the parents seek in this case is "a legislative remedy, not a judicial one." "The policy of the law in this instance has been set by the legislature, as is its responsibility." See In re S.L. , 1999 UT App 390, ¶ 56, 995 P.2d 17 (Wilkins, J., concurring). That policy allows the State to determine how to proceed in child welfare proceedings. If this is not what the legislature intended, then it should consider amending the relevant portions of the JCA to limit the circumstances under which the State may abandon pending abuse, neglect, and dependency proceedings in favor of termination proceedings.

CONCLUSION

¶44 We conclude that the State was not required to see its abuse, neglect, and dependency petition through to its end before the State could file and proceed on a separate termination petition. Both parents had notice of, and a meaningful opportunity to participate in, the termination proceedings, and we therefore conclude that they each received the due process to which they were entitled. Accordingly, we affirm the juvenile court's termination of Mother's and Father's parental rights.

      Termination of parental rights proceedings are governed by Part 5 of the Juvenile Court Act (the JCA), known as the Termination of Parental Rights Act. See Utah Code Ann. §§ 78A-6-501 to -515 (LexisNexis Supp. 2018). Abuse, neglect, and dependency adjudications, proceed under Part 3 of the JCA, "Abuse, Neglect, and Dependency Proceedings." See id. §§ 78A-6-301 to -324. Where the applicable statutory provisions remain substantially unchanged or unless noted otherwise, we refer to the current version of the Utah Code for convenience.

      The juvenile court's termination of Mother's and Father's parental rights is the subject of separate appeals. Because both parents' arguments are the same, we issue a joint opinion resolving both appeals.

      Mother and Father concede that "a parent does not have a right to reunification services from the State of Utah." See generally In re N.R. , 967 P.2d 951, 955-56 (Utah Ct. App. 1998) ("Reunification services are a gratuity provided to parents by the Legislature, and [parents] thus have no constitutional right to receive these services.").

      Although "any interested person" may file an abuse, neglect, or dependency petition, for our purposes we refer only to the State. See Utah Code Ann. § 78A-6-304(2)(a) (LexisNexis Supp. 2018).

      While juvenile courts have exclusive original jurisdiction to consider the termination of the parental rights of parents who are deemed unfit, pursuant to Utah Code section 78B-6-112, a district court has jurisdiction "to terminate parental rights in a child if the party who filed the petition is seeking to terminate parental rights in the child for the purpose of facilitating the adoption of the child." Utah Code Ann. § 78B-6-112(1) (LexisNexis Supp. 2018).

      The mother in In re A.K. also asserted that the alleged procedural defects violated her due process rights. In re A.K. , 2012 UT App 232, ¶¶ 12, 18, 285 P.3d 772. However, she failed to "adequately demonstrate[ ] what the alleged procedural deficiency was or how, under the facts of [the] case, any alleged deficiency violated her due process rights." Id. ¶ 20. Consequently, she failed to carry her burden of persuasion on her due process claim. Id. ¶ 36.

      Regarding the juvenile court's grounds for termination of the parents' parental rights, Mother and Father both assert that their "only argument ... in response to each of the grounds for termination of parental rights [is] that [they were] not afforded an opportunity to correct these problems by the juvenile court in violation of due process." They concede that "the due process argument is key to the entirety of [their] appeal[ ]." Because we have concluded that Mother's and Father's due process rights were not violated, we need not address the court's grounds for termination.


source: Caselaw Access Project

author: TOOMEY, Judge:

license: Public Domain

text:
    Rozalind MURPHY and Nicole Radford, Appellants, v. Sean WHALEN and Flip Avenue LLC, Appellees.
    No. 20170730-CA
    Court of Appeals of Utah.
    Filed November 16, 2018
    Trevor Brett Fugate and Michael R. Anderson, Attorneys for Appellants
    Richard J. Armstrong, Lehi, Attorney for Appellees
    Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   TOOMEY, Judge:

¶1 Rozalind Murphy and her daughter Nicole Radford (collectively, Buyers) appeal the district court's grant of summary judgment in favor of Sean Whalen and Flip Avenue, LLC (collectively, Sellers), contending the court erred in determining as a matter of law that Buyers failed to present sufficient evidence of damages. We agree with Buyers that they were able to produce evidence of damages. We therefore reverse the district court's award of summary judgment in favor of Sellers and remand for further proceedings.

¶2 Buyers "became interested in purchasing and 'flipping' real property" and purchased from Sellers three properties (the Properties) in Detroit, Michigan. According to the Real Estate Purchase Contract (the Contract), Buyers paid $103,000 for the Properties. After purchasing the Properties, Buyers hired "a real estate agent to inspect [the Properties] who said they were all in very poor condition, one had been flooded, and one was occupied by a squatter." Buyers filed a complaint against Sellers, alleging fraud, negligent misrepresentation, constructive trust, and unjust enrichment.

¶3 According to Buyers, Sellers represented that the Properties were " 'turn-key' rental properties," that they would supply "instant cash flow," and that they were valued higher than the price Sellers were asking. They claimed that they learned, after inspection, "one of the houses was worthless, and the other two (2) were worth about $2,500 each." To mitigate their damages, Buyers sold the Properties for a total of $22,000. Their complaint claimed that they reasonably relied on Sellers' representations about the Properties and that they sustained damages exceeding $100,000.

¶4 Following discovery, Sellers filed a motion for summary judgment. Among other things, Sellers argued that all of Buyers' claims for relief were "barred" because they "failed to prove damages." The district court granted summary judgment in favor of Sellers, basing its decision solely on its conclusion that Buyers "produced no evidence of their damages."

¶5 Buyers appeal and contend the district court erred when it granted summary judgment in favor of Sellers because there were genuine issues of material fact with regard to whether they sustained damages.

¶6 Summary judgment is appropriately granted "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). When the district court grants summary judgment, "we review de novo whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," Dillon v. Southern Mgmt. Corp. Ret. Trust , 2014 UT 14, ¶ 21, 326 P.3d 656 (quotation simplified), and recite "all facts and fair inferences drawn from the record in the light most favorable to the nonmoving party," Poteet v. White , 2006 UT 63, ¶ 7, 147 P.3d 439.

¶7 To recover damages, the party must prove both the "fact of damages" and the "amount of damages." Atkin Wright & Miles v. Mountain States Tel. & Tel. Co. , 709 P.2d 330, 336 (Utah 1985). To prove the "fact of damages," the party must "do more than merely give rise to speculation that damages in fact occurred" and instead must provide evidence that "give[s] rise to a reasonable probability that the [party] suffered damage[s]." Id. "[T]he standard for determining the amount of damages is not so exacting as the standard for proving the fact of damages," but "there still must be evidence that rises above speculation and provides a reasonable, even though not necessarily precise, estimate of damages." Id.

¶8 Here, the district court granted summary judgment in favor of Sellers based solely on its conclusion that Buyers "produced no evidence of their damages." The court referred to Murphy's deposition testimony in which she stated she did not "have any evidence of how much or whether the purchase price that [they] paid for [the Properties] was fraudulently inflated." Although Buyers' damages evidence may have flaws that may be explored on remand, Buyers have nevertheless demonstrated they suffered a loss between the amount for which they purchased the Properties and the amount they received upon selling them. Buyers asserted in their complaint that the Properties' values were significantly lower than what Sellers represented they were and lower even than the price Buyers paid for them. Buyers purchased the Properties for $103,000 and, about six months later, resold them for $22,000. They presented to the district court the sales contract for the resale of the Properties for $22,000, supporting their claim of damages. This was sufficient evidence to overcome a grant of summary judgment to Sellers based solely on the court's determination there was an absence of evidence of damages.

¶9 We conclude that Buyers presented evidence of both the fact and the amount of damages. We therefore reverse the district court's grant of summary judgment in favor of Sellers and remand for trial or other such proceedings as may now be appropriate.

      The Contract included a choice of law provision and a forum selection clause, providing that Utah law would govern the Contract and designating Utah as the proper forum for any dispute arising out of the Contract. See Coombs v. Juice Works Dev. Inc. , 2003 UT App 388, ¶¶ 9-10, 81 P.3d 769 ; see also Utah Code Ann. § 78B-3-307(1) (LexisNexis 2012).

      Buyers raise other arguments on appeal with respect to whether (1) Sellers made false statements, (2) Buyers' reliance on Sellers' statements was reasonable, (3) Buyers requested proof of existing lease agreements, and (4) the Properties' defects were discoverable "pre-purchase." We decline to address those arguments because, although Sellers' moved for summary judgment on these grounds, the district court did not rule on them. We reverse the grant of summary judgment in favor of Sellers on the ground upon which the district court relied. See infra ¶¶ 8-9.

      Buyers assert that both Buyers and Sellers agree that the total purchase price was $110,000, even though the Contract stated that the purchase price was $103,000.


author: MORTENSEN, Judge:

text:
    OSMOND SENIOR LIVING LLC, Appellant, v. UTAH DEPARTMENT OF PUBLIC SAFETY and Utah Department of Health, Appellees.
    No. 20170153-CA
    Court of Appeals of Utah.
    Filed November 23, 2018
    Richard J. Armstrong, Lehi, and Judson D. Burton, Attorneys for Appellant
    Sean D. Reyes, Salt Lake City, and Joshua Davidson, Attorneys for Appellees
    Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.
    Opinion
   MORTENSEN, Judge:

¶1 Osmond Senior Living, LLC (Osmond) submitted plans and obtained the appropriate building permit to construct a new, three-story assisted living facility in Lindon City (the City). The State Fire Marshal Division alerted Osmond that the structure, the construction of which was well underway, might not be approved for licensure as an assisted living facility because the third floor violated building codes for such facilities. Osmond changed its plans, removed the partially completed third story, and built a two-story facility instead. About six months later, the State Fire Marshal told Osmond that three-story assisted living facilities were now allowed. Osmond brought an unconstitutional takings claim against the Department of Public Safety and the Department of Health, seeking millions in compensation for renovation costs and lost revenue. The district court ruled that it lacked subject matter jurisdiction because Osmond did not exhaust its administrative remedies. In the alternative, the court ruled that Osmond failed to state a claim for which relief could be granted because it never held a vested interest in the three-story facility. Osmond appeals. We affirm.

BACKGROUND

¶2 Osmond planned to build a three-story assisted living facility in the City, with the first two floors built for Institutional Group 2 (I-2) occupancy and the third floor built for Institutional Group 1 (I-1) occupancy. Osmond received the required building permit from the City prior to construction. The permit, issued in late January 2014 (1) required the applicant to comply with all city, county, and state building laws and ordinances and (2) prohibited occupancy "until after final inspection and zoning and occupancy compliance certificate is issued."

¶3 With permit in hand, Osmond began construction as planned, building for I-2 occupancy on the first two levels and I-1 occupancy on the third level. Part of Osmond's attempt to construct a compliant facility involved the inclusion of a two-hour firewall between the I-1 and I-2 levels. But in April 2014-several months after construction began and after Osmond had erected the structural components for all three floors-Osmond's architect received a letter (the Letter) from the Utah Department of Health signed by the Architect and Special Deputy of the Utah State Fire Marshal. The Letter stated that it was the third "plan review letter" issued by the department concerning the project. The Letter indicated that the department had received drawings for the project in February 2014 and that it had sent an earlier letter in March 2014 regarding "outstanding items" that needed to be addressed. Although the Letter referenced these earlier communications, the appellate record contains no other documentary evidence of prior communication between Osmond and any state agency.

¶4 In bold type, the Letter warned: "Plans for the project have not been approved by our office. Any items that are currently being constructed that are found not to be in compliance with the required rules will need to be corrected before we can approve plans and ultimately recommend approval for licensure." The Letter opined that the project did not comply with the International Building Code [IBC] or Utah law for an assisted living facility. Specifically, the Letter stated:

As we see it, the biggest issue on this project is the permissibility of a 3 story, wood framed building that contains an I-2 occupancy and a type-2 assisted living population. ... [A]fter reading through the commentary to the IBC and consulting with different code officials and Life Safety surveyors ... it is our opinion that a 3 story, wood framed building containing an I-2 occupancy is not allowed per the IBC.

The Letter then made the following request:

We ask that you and the owner consider removing the top floor of the new building to meet not only what we interpret to be required in the IBC, but more so to comply to what we have been told is the intent of the [State of Utah] amendment allowing a maximum of 2 stories, wood framed construction for I-2 occupancies.

The Letter expressed that the Utah Department of Health was concerned about the consistent application of regulations:

Owners from competing [assisted living] facilities have frequently stated to us that we have allowed leniency to their competition on rules relating to assisted living facilities while requiring them to be in strict compliance. It is our intent to apply the rules for assisted living facilities evenly throughout the State of Utah. I am concerned that if this project is built as currently designed, it may set a bad [precedent] for current and future assisted living facilities in the State of Utah.

Lastly, the Letter said, "We will leave the permissibility of the 3 story buildings containing I-2 occupancies up to the local Building Official having jurisdiction to enforce as they ultimately have jurisdiction on this matter." The Letter concluded by asking Osmond's architect to "respond to these comments in writing and with appropriate drawings so that approval may be considered."

¶5 In May 2014, Osmond representatives met with State Fire Marshal Division officials and other state officials to discuss the Letter and the future of the project (the Meeting). According to Osmond, the Deputy State Fire Marshal and other state officials warned that the three-story facility "would never be licensed to operate as an assisted living facility." Although Osmond asserts throughout its brief that state officials ordered the construction to be "stopped," the record is not so absolute. Rather, it indicates that Osmond was told that its facility would be not be licensed as an assisted care facility if it had three floors instead of two, but it was never told to "stop" construction. The State contends that the State Fire Marshal merely "advised" Osmond that a three-story facility would "not comply with the [IBC] and would not be licensed."

¶6 In response to the Letter and the Meeting, Osmond redesigned the project as a two-story facility. Osmond incurred significant expenses in redesigning, reengineering, and rebuilding the project. Osmond also alleges it lost the annual rental value-approximately $1,008,000-of the entire third floor.

¶7 In October 2014, the Deputy State Fire Marshal visited the facility and, according to Osmond, stated: "[W]e've changed our policy and now allow three stories to be built for assisted-living."

¶8 Osmond never attempted to appeal or otherwise seek review of the State Fire Marshal Division's directives expressed in the Letter or the Meeting. Instead, after capitulating to the State Fire Marshal Division's warnings and completing the project, Osmond filed suit for an unconstitutional taking against the Utah Department of Health and the Utah Department of Public Safety (collectively, the State). The district court granted the State's motion to dismiss for lack of subject matter jurisdiction, agreeing with the State that Osmond failed to exhaust its administrative remedies. The court also granted summary judgment in favor of the State on the alternative ground of failure to state a claim, concluding that Osmond did not have a vested property interest in the property allegedly taken. Osmond appeals.

ISSUE AND STANDARD OF REVIEW

¶9 Osmond raises a number of arguments relating to the district court's grant of the State's motion to dismiss. Whether the district court erred by granting the State's motion to dismiss under rule 12(b)(1) for lack of subject matter jurisdiction is a question of law reviewed for correctness. See Republic Outdoor Advert., LC v. Utah Dep't of Transp ., 2011 UT App 198, ¶ 12, 258 P.3d 619.

ANALYSIS

¶10 Because Osmond did not exhaust the available administrative remedies, the district court ruled that it lacked subject matter jurisdiction to review the claim. See Utah R. Civ. P. 12(b)(1) ; Western Water, LLC v. Olds , 2008 UT 18, ¶ 18, 184 P.3d 578 ("Authority for judicial review arises only after the parties have exhausted their administrative remedies unless an exception applies."). Osmond argues that it was not required to exhaust its administrative remedies because the legislature did not specifically delegate adjudicative authority to the Utah Fire Prevention Board (the Board). Osmond further argues that, even if the legislature delegated adjudicative authority, Osmond was excused from exhausting those remedies because the State Fire Marshal acted outside the scope of his authority. We conclude that the legislature has delegated adjudicative authority to fire protection districts and that the State Fire Marshal acted within the scope of his authority.

I. The Legislature Delegated Adjudicative Authority to Fire Protection Districts.

¶11 District courts have "original jurisdiction in all matters except as limited ... by statute." Utah Const. art. VIII, § 5. Thus, "Utah courts have subject matter jurisdiction over a legal claim unless adjudicative authority for that claim is specifically delegated to an administrative agency." Zions Mgmt. Services v. Record , 2013 UT 36, ¶ 24, 305 P.3d 1062 (cleaned up). To determine whether the legislature has delegated adjudicative authority to an agency, courts "look to the plain language of the applicable statute." Ramsay v. Kane County Human Res. Special Service Dist. , 2014 UT 5, ¶ 9, 322 P.3d 1163.

¶12 The task before us then is to determine whether the district court retained adjudicative authority or whether the legislature specifically delegated that authority elsewhere. The relevant code sections indicate that adjudicative authority is "administered locally by a city, county, or fire protection district." See Utah Code Ann. § 53-7-204(4) (LexisNexis Supp. 2018).

¶13 The Utah Fire Prevention and Safety Act, id. §§ 53-7-101 to -506, outlines the specific duties of the Utah Fire Prevention Board and the administrative duties of local fire protection districts. Subsection 204 lists the Board's duties but does not delegate adjudicative authority to the Board. Rather, subsection 204 states that "creating a local board of appeals in accordance with the state fire code" "shall be administered locally by a city, county, or fire protection district." Id. § 53-7-204(4)(b). The State Construction and Fire Codes Act (the State Fire Code), referenced in the Utah Fire Prevention and Safety Act, provides: "A compliance agency shall establish a method of appeal by which a person disputing the application and interpretation of a code may appeal and receive a timely review of the disputed issues in accordance with the codes." Id. § 15A-1-207(3)(a) (LexisNexis 2013).

¶14 The statutory language makes clear that adjudicative authority for the "application and interpretation of a code," see id. , has been delegated by the legislature to "a local board of appeals" through the Utah Fire Prevention and Safety Act, see id. § 53-7-204(4)(b). It is not entirely clear why the legislature chose to delegate that authority to a local entity rather than to the Utah Fire Prevention Board itself; but the limited question before us is whether adjudicative authority has been delegated. We conclude that it has.

II. The State Fire Marshal Did Not Act Outside the Scope of His Authority.

¶15 Having determined that the legislature delegated adjudicative authority for the application and interpretation of the State Fire Code, we now address Osmond's alternative argument that it was excused from exhausting its administrative remedies because the State Fire Marshal acted outside the scope of his statutory authority. Osmond specifically argues that the State Fire Marshal (1) acted outside his scope of authority under Utah Code section 53-7-104(3)(b) and (2) did not act in compliance with the procedures outlined in Utah Code section 63G-4-201. We disagree on both points.

A. The State Fire Marshal Acted Within the Scope of Authority to Enforce the Fire Code Under Utah Code Section 53-7-104.

¶16 Utah Code section 53-7-104 outlines the enforcement of the State Fire Code and the scope of enforcement authority. The section states,

The state fire marshal may enforce the state fire code and rules in: ... state-owned property, school district owned property, and privately owned property used for schools located within corporate cities and county fire protection districts, asylums, mental hospitals, hospitals, sanitariums, homes for the aged, residential health-care facilities, children's homes or institutions, or similar institutional type occupancy of any capacity.

Utah Code Ann. § 53-7-104(3)(b) (LexisNexis Supp. 2018).

¶17 Osmond argues that the statute allows the State Fire Marshal to enforce the State Fire Code against only one type of privately owned property: private property located within corporate cities used for schools. We disagree.

¶18 The Utah Supreme Court has stated that "the plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters." Kouris v. Utah Highway Patrol , 2003 UT 19, ¶ 12, 70 P.3d 72 (cleaned up). Osmond would have us read the statute to mean that "privately owned property used for schools located within corporate cities and county fire protection districts," Utah Code Ann. § 53-7-104(3)(b), is an independent class of privately owned property inserted into the middle of a list of state-owned property categories to which enforcement authority applies. In other words, Osmond argues that the statute authorizes enforcement "against state-owned property , including school district owned property, asylums, mental hospitals, homes for the aged, residential health-care facilities, etc.," but that an "exception-to-the-exception"-privately owned property used for schools in corporate cities and county fire protection districts-is grafted in the middle of that list. While Osmond's construction of the statute is grammatically creative, it does not withstand closer examination.

¶19 The statute contemplates three property classifications separated by commas: (1) "state-owned property," (2) "school district owned property," and (3) "privately owned property." Id. The first two classifications are unqualified; the State Fire Code may be enforced in all state-owned and school district owned property. The third classification, privately owned property, is qualified by specific subsets and defined by the type of use. Thus, the State Fire Code does not apply to all privately owned property; it applies only to those private properties specifically identified in the statute. And among the subset of private properties to which it expressly applies are "residential health-care facilities." Id. Based on the plain language of the statute, we have no difficulty concluding that the State Fire Marshal may enforce the State Fire Code against private property used as an assisted living facility.

¶20 We further note that section 53-7-204, a section in the same act, similarly identifies assisted living facilities under the umbrella of the section's authority. That section states that the Utah Fire Prevention Board shall administer the State Fire Code by establishing standards in any

(A) publicly owned building, including all public and private schools, colleges, and university buildings; [or] (B) building or structure used or intended for use as an asylum, a mental hospital, a hospital, a sanitarium, a home for the elderly, an assisted living facility , a children's home or day care center, or any building or structure used for a similar purpose.

Utah Code Ann. § 53-7-204(1)(b)(i)(A)-(B) (emphases added). This section's organization reinforces our reading of section 104-that the State Fire Code is applicable and enforceable against any building, public or private, used as an assisted living facility.

B. The State Fire Marshal Did Not Exceed His Authority by Failing to Comply with Procedures for an Adjudicative Proceeding.

¶21 Utah Code section 63G-4-201 outlines the procedure for an administrative adjudicative proceeding. This subsection requires that officers conducting adjudicative proceedings, among other things, serve a "notice of agency action," Utah Code Ann. § 63G-4-201(1)(a) (LexisNexis 2016), hold a hearing "after timely notice to all parties," id. § 63G-4-203(1)(d), and provide the parties "a signed order in writing," id. § 63G-4-203(1)(i).

¶22 Osmond argues that the State Fire Marshal acted outside his authority by failing to comply with these procedures. But these requirements apply only to adjudicative acts. They would not apply, for example, to the State Fire Marshal picking up the telephone and discussing a potential violation with a builder. Similarly, the Letter sent by the State Fire Marshal does not rise to the level of an agency action because its language does not constitute an "application and interpretation of a code," id. § 15A-1-207(3)(a), but only expresses the State Fire Marshal's opinion that a three-story building would not be in compliance with the State Fire Code. The Letter does not indicate that any action was going to be taken. The State Fire Marshal never issued a citation, notice of violation, or a stop work order. In fact, the Letter explicitly states that the decision regarding the permissibility of a three-story building containing I-2 occupancies would be left up to local building authorities. Thus, the State Fire Marshal did not issue an administrative ruling or conduct an adjudicative proceeding in sending the Letter or holding the Meeting. Rather, by these actions, the State Fire Marshal merely advised Osmond of potential licensing problems. Put succinctly, the State Fire Marshal could not exceed his authority by failing to follow the procedures for adjudicative actions because there was no adjudication.

¶23 Even in the absence of agency action, the Utah Administrative Code provides a means to petition for a declaratory order in situations where the applicability of a rule or code provision is in question. See id. § 63G-4-503(1) ("Any person may file a request for agency action, requesting that the agency issue a declaratory order determining the applicability of a statute, rule, or order within the primary jurisdiction of the agency to specified circumstances."). Rather than pursue a declaratory order, Osmond opted to yield to the State Fire Marshal's warning and voluntarily redesign the building while it was under construction.

¶24 We conclude that the State Fire Marshal did not act outside the scope of his authority by warning Osmond of a perceived violation.

CONCLUSION

¶25 The district court lacked subject matter jurisdiction because the legislature has delegated adjudicative authority for interpretations of the State Fire Code to local fire protection districts. We hold that Osmond was not excused from exhausting administrative remedies because the Letter and the Meeting were actions taken within the scope of authority granted in the relevant statutes. Accordingly, the district court correctly granted the motion to dismiss.

¶26 Affirmed.

      Under the International Building Code, I-1 occupancy buildings are used "for more than 16 persons who reside on a 24 hour basis in a supervised environment and receive custodial care ." 2012 International Building Code § 308.3. I-2 occupancy buildings are used to provide medical care on a twenty-four-hour basis for more than five persons who are "incapable of self-preservation ." Id. § 308.4. The relevant section of the code is available at https://codes.iccsafe.org/content/IBC2012/chapter-3-use-and-occupancy-classification [https://perma.cc/5EKV-EL97].

      The following were copied on the Letter: (1) Jared Osmond, owner of Osmond Senior Living; (2) Phil Brown, Chief Building Official for the City; (3) Mark Burton, Deputy State Fire Marshal; and (4) Richard Gee, Utah State Fire Marshal's plan reviewer.

      The parties agree that the Meeting took place, but the record contains no transcript or minutes of what transpired at the Meeting.

      It is unclear from the record whether there was a change in interpretation of the State Fire Code or whether it was a decision not to enforce it in this instance. As the Utah Department of Health indicated in the Letter to Osmond's architect, some assisted living facility owners had expressed concern that the regulations were being inconsistently implemented.

      Because we conclude that the district court lacked subject matter jurisdiction under Utah Rule of Civil Procedure 12(b)(1) owing to Osmond's failure to exhaust administrative remedies, we do not address the takings claim, which Osmond asserts the district court erroneously dismissed under rule 12(b)(6).

      The State argues that because Osmond did not raise the issue of the Utah Fire Prevention Board's adjudicative authority at the district court, Osmond's arguments on subject matter jurisdiction were waived. "One exception to the preservation requirement is subject matter jurisdiction. Because subject matter jurisdiction goes to the heart of a court's authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal." In re adoption of Baby E.Z. , 2011 UT 38, ¶ 25, 266 P.3d 702 (cleaned up). We therefore consider Osmond's arguments.

      Because the statutory provisions in effect at the time do not differ in any material way from those now in effect, we cite the current version of the Utah Code for convenience.

      As our supreme court has pointed out, fire protection districts are not agencies of the State, but they nonetheless retain agency status. See Lyon v. Burton , 2000 UT 19, ¶ 80, 5 P.3d 616 ("[F]ire protection districts are categorized with other nonstate agency entities like counties, towns, and metropolitan water districts.").

      The Letter uses the word "interpret" but does so in a qualified and informal sense: "We ask that you and the owner consider removing the top floor of the new building to meet not only what we interpret to be required in the IBC, but more so to comply to what we have been told is the intent of the [State of Utah] amendment allowing a maximum of 2 stories, wood framed construction for I-2 occupancies."

      The Letter stated that it was the third plan review letter that the State Fire Marshal had issued on the project, suggesting that Osmond had at least two other occasions to seek clarification by asking the agency to issue a declaratory order.