IN RE AK., No. 98-FS-1431|

• Decision Date: 23 March 2000
• Docket Number: No. 98-FS-1431, No. 98-FS-1450.,No. 98-FS-1431|, No. 98-FS-1449
• Citation: 747 A.2d 570
• Parties: In re AK. V. . In re Am. V. . In re An. V. . P.V., Appellant.
• Court: D.C. Court of Appeals

747 A.2d 570

In re AK. V. (No. 98-FS-1431).

In re Am. V. (No. 98-FS-1449).

In re An. V. (No. 98-FS-1450).

P.V., Appellant.

Nos. 98-FS-1431, 98-FS-1449, 98-FS-1450.

District of Columbia Court of Appeals.

Submitted January 27, 2000.

Decided March 23, 2000.

Judith A. Lovelace, appointed by this court, was on the brief for appellant.

Rhonda Blank, appointed guardian ad litem by this court, filed a memorandum in lieu of brief.

Jo Anne Robinson, Interim Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Sheila Kaplan, Assistant Corporation Counsel, were on the brief for appellee.

Before TERRY, FARRELL, and RUIZ, Associate Judges.

RUIZ, Associate Judge:

This is an appeal from a denial by the Family Division of the Superior Court of appellant's motion to file a late appeal of a finding of neglect and disposition order removing appellant's children from her custody. Fifty days after the disposition order was entered, appellant moved for an extension of time to file an appeal on the grounds that she did not have timely notice of the court's disposition and that she had not been able to confer with her attorney in time to file a timely appeal. The trial court denied the motion, finding that the circumstances alleged by appellant did not constitute excusable neglect justifying an extension to file an untimely appeal. We remand the case for a hearing and further fact-finding on the record as to the circumstances surrounding appellant's failure to timely file her appeal, and for consideration of the motion consistent with the factors discussed in this opinion.

I. Background

A. Facts

Appellant, P.V., is the mother of Am.V., born in 1988, Ak.V., born in 1992, and An.V., born in 1997. On March 10, 1997, the police received a report that appellant had left Ak.V., then four years old, at home alone with the door unsecured, and an unidentified adult male had entered the apartment to sleep on the couch. P.V., who had a history of drug abuse, was in custody after having been arrested that morning for destruction of property. Ak. V.'s older sibling, then eight years old, and younger sibling, then two months old, were with a neighbor. The police removed Ak.V. and the two siblings, and contacted the Department of Human Services (DHS).

The District of Columbia filed petitions in the Family Division of Superior Court alleging the three children were neglected pursuant to D.C.Code § 16-2301(9)(B) and (C) (1997).¹ Appellant was served with copies of the neglect petitions, and the court immediately appointed an attorney to represent her in the proceedings. The court also appointed a guardian ad litem to represent the children, and another attorney to represent the fathers of each of the children.² The children were temporarily placed with their maternal grandmother. Appellant was granted visitation supervised by the grandmother, and An.V.'s father was granted unsupervised visitation.

B. Proceedings

After an initial hearing, in a pre-trial order dated April 1, 1997, the Family Division found that there was probable cause to believe that the children were neglected, but released the three children to appellant's care on the conditions that appellant undergo regular drug testing, attend mental health appointments, receive parenting assistance, and permit daily visits by the maternal grandmother.³

Appellant and her counsel appeared for a status hearing on December 15, 1997, at which a trial date was scheduled for January 21, 1998. Neither appellant nor An. V.'s father appeared for the neglect trial on January 21, 1998, but both were represented by counsel. The court adjudicated all three children to be neglected pursuant to § 16-2301(9)(B) and (C). At the conclusion of the trial, in the presence of counsel for the parties, the court set the disposition hearing for March 6, 1998.

On February 5, 1998, the guardian ad litem moved for an emergency hearing for the purpose of considering removal of the children from appellant's care. The motion alleged that some time after the date of the trial, appellant had stopped attending the required parenting classes and was reported to be using drugs, that the children were not picked up from school one day, and that the social worker was being denied access to the children to monitor their safety. At the emergency hearing, on February 6, 1998, at which appellant did not appear but was represented by her counsel, the court ordered the children placed in shelter care.

The disposition hearing was held on March 6, 1998. Appellant did not appear, but was represented by her counsel who requested a continuance for reasons not apparent from the record. The continuance was denied. By order docketed March 9, 1998, the three children were committed to the custody of DHS for an indeterminate period not to exceed two years with visitation rights for the mother,⁴ and a custody order was issued for the youngest child, An.V, who apparently had not yet been removed to shelter care. On March 31, 1998, An.V., was taken into care and placed at St. Ann's infant home. On April 8, 1998, DHS notified the court that An.V. had been returned to DHS' custody by filing a "Request for the Withdrawal of Custody Order." The trial court scheduled a status hearing for April 10, 1998. At that hearing, upon the government's motion, the court suspended appellant's visitation rights with An.V. The order stated that it had been entered "after hearing argument on behalf of all parties concerned," even though neither appellant nor her counsel were present.⁵

On April 28, 1998, appellant's counsel filed an unopposed motion requesting an extension of time to file an attached notice of appeal.⁶ The motion contended that

[t]he mother reports that she received no personal notice of the disposition hearing and was unaware of what transpired at that hearing until her son, [An.V.], was removed from her care during the week of April 6. She telephoned her attorney soon thereafter and requested that the case be appealed. He was not able to meet with her to discuss this motion until April 27. Thus the failure to file the Notice of Appeal within 30 days of the disposition hearing is excusable neglect.

The trial court denied the motion without a hearing on August 26, 1998, four months after it was filed. Docketed the next day with the court's order denying the motion to late-file an appeal were the court's written findings of fact and conclusions of law supporting the January 21, 1998, neglect adjudication.⁷ Appellant timely noted an appeal from the denial of her motion.

II. Excusable Neglect

The order appealed from was signed on March 6, 1998, and entered on the docket on March 9, 1998. The rules of appellate procedure require notice of appeal to be filed within thirty days of entry of the disposition order, see In re A.B., 486 A.2d 1167, 1168 (D.C.1984),i.e., in this case by April 8, 1998.⁸ The thirty-day time limit is mandatory and jurisdictional with this court, see Berenbaum v. Berenbaum, 638 A.2d 681, 683 (D.C.1994) (citing In re C.I.T., 369 A.2d 171, 172 (D.C.1977)), but the trial court may extend the time for filing a notice of appeal up to thirty days for excusable neglect. See D.C.App. R. 4(a)(4) (1999).⁹ To demonstrate excusable neglect, appellant must show lack of knowledge of entry of a judgment, extraordinary circumstances such as physical disability or unusual delay in transmission of the mail, or "unique circumstances." See Berenbaum, 638 A.2d at 683; Pryor v. Pryor, 343 A.2d 321, 322 (D.C.1975).

Appellant filed her request for extension of time on April 28, 1998, approximately three weeks after the thirty-day time to appeal had expired. Appellant claimed therein that she did not timely know of the disposition hearing or its result and that when she did find out, soon after her youngest child was removed from her care the week of April 6, she promptly instructed her attorney to file an appeal and attempted to meet with him, but he was not available for almost three weeks. The issue before the trial court was whether appellant's motion showed that she had done "all [s]he could do under the circumstances to perfect an appeal within the time prescribed by the rules." (John E.) Thomas v. United States, 586 A.2d 1228, 1229 (D.C.1991) (citations omitted).

We review the trial court's denial of an extension of time to file an appeal for abuse of discretion. See Thomas, 586 A.2d at 1230. Cf. Snow v. Capitol Terrace, Inc., 602 A.2d 121, 124 (D.C.1992) (affirming a finding of excusable neglect which permits a late appeal absent a "clear abuse of discretion") (citing Trezevant v. Trezevant, 403 A.2d 1134, 1136 (D.C.1979) and Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.)).¹⁰ Here, the court found no excusable neglect without a hearing and barred the appeal by denying an unopposed motion for an extension. Under the circumstances of this case, the first in which we have considered a trial court's denial of a request to extend the time for appeal for excusable neglect in the context of a neglect proceeding and removal of children from parental custody, we conclude that it was an abuse of discretion for the trial court summarily to deny the requested extension.

First, if what appellant claimed in her motion is true, she was diligent in pursuing her appeal, and may be able to show excusable neglect. According to appellant, she immediately spoke with her attorney after learning of the court's disposition and instructed her attorney to appeal. When her attorney told her to wait three weeks, she met with him on his schedule, and filed the request for an extension to file an appeal one day after the appointment with her attorney.

Appellant argues that she did not have actual notice of the final disposition. We cannot say whether or not that is so based on the record before us, because the court below did not undertake a hearing or make findings of fact on the record to support or refute this assertion....