STATE EX REL. ER

• Decision Date: 11 May 2000
• Docket Number: No. 981713-CA.,981713-CA.
• Citation: 2 P.3d 948,2000 Utah Ct. App. 143
• Parties: STATE of Utah, in the Interest of E.R., a person under eighteen years of age. State of Utah, Division of Child and Family Services, Appellant, v. N.R., Appellee.
• Court: Utah Court of Appeals

2 P.3d 948

2000 Utah Ct. App. 143

STATE of Utah, in the Interest of E.R., a person under eighteen years of age.

State of Utah, Division of Child and Family Services, Appellant, v. N.R., Appellee.

No. 981713-CA.

Court of Appeals of Utah.

May 11, 2000.

Jan Graham, Attorney General and John Peterson, Attorney General's Office, Salt Lake City, for Appellant.

Justin Gary Jensen, Crippen & Cline LC, Salt Lake City, for Appellee.

Martha Pierce and Tracy S. Mills, Salt Lake City, Guardians Ad Litem.

Before Judges JACKSON, BILLINGS, and ORME.

OPINION

ORME, Judge:

¶ 1 This appeal arises from an action filed by the State against N.R. for alleged abuse of his eleven-year-old daughter. Prior to trial, counsel for N.R. sent the State and the Guardian Ad Litem requests for admissions to which they never responded. The juvenile court deemed the requests admitted in accordance with Rule 36(a), Utah Rules of Civil Procedure, and entered judgment in the father's favor on the strength of the State's and Guardian Ad Litem's "admissions." The State appeals. With some trepidation, we affirm.

BACKGROUND

¶ 2 E.R. is the child of N.R., her father, and E.A., her mother, who apparently were never married. E.R. was born in 1987 and lived with her mother until December 3, 1997, when she was taken into protective custody from her mother's home. The State took action after the mother failed to pick E.R. up from school. E.R. was then placed in the temporary custody of the Division of Child and Family Services (DCFS) and was adjudged by the juvenile court a dependent and neglected child.

¶ 3 In January 1998, the father was awarded custody of E.R. Three months later, during a conversation with a DCFS caseworker, E.R. disclosed that her father had hit her with a shoe for failing to take a shower and for not eating well. E.R. was once again taken into protective custody by DCFS.

¶ 4 On May 1, 1998, the State filed a verified petition alleging that E.R. had been neglected and abused by her father. Twenty days later, counsel for the father filed interrogatories, requests for production of documents, and requests for admissions. A certificate of service showed that a copy had been mailed to the Attorney General's Office and the Office of the Guardian Ad Litem. The father requested that the State and Guardian Ad Litem admit three things:

1. Please admit all injuries to the child, as alleged herein, were not inflicted by the natural father.

2. Please admit that the natural father has neither neglected or abused said child.

3. Please admit that the child is dependent.

No response was submitted by the State or Guardian Ad Litem. On July 9, 1998, the day before trial, the father filed a motion asking the court to deem those matters admitted.

¶ 5 On the morning of trial, the father's motion was heard. The State and the Guardian Ad Litem explained that neither had received the father's requests for admissions and knew nothing about the requests until receiving the motion to enter the admissions the previous afternoon. The juvenile court found:

1) While neither the Assistant Attorney General nor the Guardian ad Litem personally received the Requests for admission sent by [the father's counsel], the mailing certificate indicated that [the] discovery request was sent on May 20, 1998.

2) The State and Guardian ad Litem (GAL), failed to respond to the Requests for Admissions, within the time allowed by Rule 36, Utah Rules of Civil Procedure.

Because the requests for admissions were properly served, see Utah R. Civ. P. 5(b)(1), and were neither objected to nor denied, the father's requests were deemed admitted. The juvenile court also concluded that the admissions were conclusive on the issue of the father's alleged abuse and no additional evidence would be required from the parties. The court then held that E.R., who had made it known that she would refuse to return home, was dependent and was to remain in State custody,¹ but that the father had not been shown to have abused or neglected E.R.

ISSUES AND STANDARD OF REVIEW

¶ 6 We are asked to decide whether the trial court misapplied Rule 36(a) in deeming the requests admitted. "The proper interpretation of a rule of procedure is a question of law, and we review the trial court's decision for correctness." Ostler v. Buhler, 1999 UT 99, ¶ 5, 989 P.2d 1073. If we conclude the court's interpretation of the rule was correct, we are asked to consider whether the trial court abused its discretion by refusing to permit withdrawal of the admissions under Rule 36(b), given the overriding concern about the child's best interest.

¶ 7 When a party moves to amend or withdraw admissions under Rule 36(b), we review the trial court's decision for an abuse of discretion, specifically recognizing that the trial court's discretion is not unlimited. See Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1060-61 (Utah 1998).

[O]ur review of [a 36(b)] decision is not a typical review for "abuse of discretion." Instead, we review these decisions in two steps, using ... a "conditional" discretionary standard.... [F]irst ... we review the trial court's determination as to whether amendment or withdrawal would serve the presentation of the merits and whether amendment or withdrawal would result in prejudice to the nonmoving party. [Only then do] we review the trial court's discretion.... [B]ecause the rule does not give the trial court discretion to disregard the preliminary conditions of rule 36(b), its judgment as to whether those conditions have been satisfied is subject to a somewhat more exacting standard of review.

Id.

ANALYSIS

¶ 8 The State argues that the trial court erred, as a matter of law, in deeming the matters admitted because the court should not have faulted the State for failing to respond to requests for admissions the State never received. Had the trial court in fact found that the State had never been served with the requests, the State's argument would be correct. However, the State reads too much into the trial court's findings of fact in this regard.

¶ 9 Taken as a whole, the import of the court's findings is that while the responsible attorneys never received the requests, the requests were served upon their respective offices, which was enough to trigger the responsibility to respond within 30 days. This construction of the court's finding is evident in the language, with our emphasis, that "neither the Assistant Attorney General nor the Guardian ad Litem personally" received the requests. This is also consistent with the remainder of the court's findings, namely, that the requests were in fact mailed on May 20, 1998, as indicated by the certificate of service, and the State and Guardian Ad Litem "failed" in never responding to the requests.² Apparently, the requests were lost or misplaced after service, as a result of some internal routing problem. This is not a valid excuse. See City of Muncie v. Peters, 709 N.E.2d 50, 54 (Ind.Ct.App.1999) (deeming requests admitted after served at counsel's office, although requests never actually crossed counsel's desk and he remained completely unaware of their existence until opposing party moved to have them admitted); Agristor Credit Corp. v. Donahoe, 568 S.W.2d 422, 425-26 (Tex.Civ.App.1978) (requests deemed admitted although attorney's secretary, who received requests, did not notify party's attorney, who never actually knew of requests).

¶ 10 The State next argues that in light of the need to protect the best interests of the child, the trial court abused its discretion first by deeming the requested admissions admitted and then by refusing to permit withdrawal of the admissions. When requests for admissions are properly served, and no written answer or objection has been submitted, the result is automatic—the requests for admissions, as a matter of law, are deemed admitted by simple operation of the rule. See Jensen v. Pioneer Dodge Ctr., Inc., 702 P.2d 98, 100-01 (Utah 1985); United States v. 2204 Barbara Lane, 960 F.2d 126, 129 (11th Cir.1992); Hughes v. Bobich, 875 P.2d 749, 755 (Alaska 1994); W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co., 8 Haw.App. 354, 802 P.2d 1203, 1209 (1990); Peters, 709 N.E.2d at 54. See also 4A Moore's Federal Practice ¶ 36.05[4] n. 6 (2d ed.1985) (discussing federal rule).

¶ 11 Rule 36 provides, in pertinent part, as follows:

A party may serve upon any other party a written request for the admission, for purpose of the pending action only, of the truth of any matters ... that relate to statements or opinions of fact or of the application of law to fact....

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter[.]

Utah R. Civ. P. 36(a)(1) & (2) (emphasis added). The rule does not say the court may admit the matter—it says "[t]he matter is admitted." Utah R. Civ. P. 36(a)(2) (emphasis added). By simple operation of Rule 36(a), parties who ignore requests for admissions do so at their peril. Nor does the rule make special provision for cases involving children, although the State has requested we place such a gloss on it.

¶ 12 Indeed, in some contexts we have employed a more flexible standard when cases involve the best interests of children, because a child's best interest is an inherently compelling basis for forgoing formality when, for example, counsel's blunders would lead to a premature dismissal before the merits are presented. See Wright v. Wright, 941 P.2d 646, 651-52 (Utah Ct.App.1997). Procedural exceptions have been recognized in a variety of circumstances when the central issue involving the best interest of the child is blocked by "court-made rules and doctrines [imposed] in...