430 P.3d 893 (Hawai’i App. 2018), CAAP-18-0000010, In re AB

Docket Nº:CAAP-18-0000010
Citation:430 P.3d 893, 143 Hawai‘i 332
Party Name:In the INTEREST OF AB
Attorney:Peter L. Steinberg, Madison, WI, for Appellant. Sandra L.S. Freitas, Julio C. Herrera, Deputy Attorneys General, for Appellee.
Judge Panel:By: Ginoza, Chief Judge, Fujise and Leonard, JJ.
Case Date:November 30, 2018
Court:Court of Appeals of Hawai'i, Intermediate
 
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Page 893

430 P.3d 893 (Hawai’i App. 2018)

143 Hawai‘i 332

In the INTEREST OF AB

No. CAAP-18-0000010

Intermediate Court of Appeals of Hawai‘i

November 30, 2018

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

APPEAL FROM THE FAMILY COURT OF THE THIRD CIRCUIT (FC-S NO. 15-0007).

On the briefs:

Peter L. Steinberg, Madison, WI, for Appellant.

Sandra L.S. Freitas, Julio C. Herrera, Deputy Attorneys General, for Appellee.

By: Ginoza, Chief Judge, Fujise and Leonard, JJ.

SUMMARY DISPOSITION ORDER

Proposed Intervenor-Appellant KL (KL) appeals from the following orders entered by the Family Court of the Third Circuit (Family Court):1 (1) Order Awarding Permanent Custody, filed on April 3, 2017 (Order Awarding Permanent Custody); (2) Order Continuing Permanent Custody, filed on July 31, 2017 (Order Continuing Permanent Custody); (3) Order Denying Motion to Intervene, filed on October 9, 2017 (Order Denying Intervention); and (4) Order Denying Motion for Reconsideration of Order Entered October 9, 2017, Denying Motion to Intervene, filed on December 21, 2017 (Order Denying Reconsideration). KL filed a Notice of Appeal on January 5, 2018.

On appeal, KL contends that the Family Court: (1) plainly erred when it entered the Order Awarding Permanent Custody; (2) plainly erred when it entered the Order Continuing Permanent Custody; (3) erred in entering the Order Denying Intervention; and (4) abused its discretion in entering the Order Denying Reconsideration. KL states that the relief she is seeking from this court is to vacate the Order Awarding Permanent Custody and award permanent custody of AB to her.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve KL’s points of error as follows:

(1) Even if KL had standing to oppose the award of permanent custody to the State of Hawai‘i, Department of Human Services (DHS),2 this court lacks appellate jurisdiction over KL’s appeal from the Order Awarding Permanent Custody because the appeal is untimely. Appeals must be taken "in the manner and within the time provided by the rules of court." Hawaii Revised Statutes (HRS) § 641-1(c) (2016). Pursuant to HRS § 571-54 (2006), "[a]n interested party, aggrieved by any order or decree of the [family court], may appeal to the intermediate appellate court.... upon the same terms and conditions as in other cases in the circuit court, and review shall be governed by chapter 602, except as hereinafter provided." Rule 3 of the Rules Expediting Child Protective Appeals requires that a notice of appeal be filed within fifteen days after entry of an appealable judgment, order, or decree, but further provides that if the appeal "is otherwise filed within the time permitted by Rule 4 of the Hawai‘i Rules of Appellate Procedure [ (HRAP) ], the appeal shall not be dismissed for lack of jurisdiction[.]" HRAP Rule 4(a)(1) provides that a notice of appeal "shall be filed within 30 days after entry of the judgment or appealable order ." (Emphasis added).

The Order Awarding Permanent Custody was entered on April 3, 2017. This final order was immediately appealable. In re Doe, 77 Hawai‘i 109, 114-15, 883 P.2d 30, 35-36 (1994). KL filed the Notice of Appeal on January 5, 2018. Therefore, the appeal was untimely. The failure to timely file a notice of appeal is a jurisdictional defect that cannot be waived by the parties or disregarded by the court. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986). Therefore, this court lacks jurisdiction to review the Order Awarding Permanent Custody.

(2) Similarly, even if KL had standing to appeal from the Order Continuing Permanent Custody, this court lacks appellate jurisdiction over KLs appeal from the Order Continuing Permanent Custody because the appeal is...

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