In re C.A.B.L.

• Decision Date: 12 November 2009
• Docket Number: No. 08CA1899.,08CA1899.
• Citation: 221 P.3d 433
• Parties: In the Interest of C.A.B.L., a minor Child, and Concerning B.E.G., Petitioner-Appellee, and N.R.B., Respondent-Appellant.
• Court: Colorado Court of Appeals

221 P.3d 433

In the Interest of C.A.B.L., a minor Child, and Concerning B.E.G., Petitioner-Appellee, and N.R.B., Respondent-Appellant.

No. 08CA1899.

Colorado Court of Appeals, Div. I.

November 12, 2009.

No Appearance for Petitioner-Appellee.

Beltz & West, P.C., W. Thomas Beltz, Daniel A. West, Colorado Springs, Colorado, for Respondent-Appellant.

Opinion by Judge TAUBMAN.

N.R.B. (mother) appeals from (1) a magistrate's orders of November 30, 2005 and November 20, 2007 terminating the parent-child legal relationship with her daughter, C.A.B.L. (child), and decreeing the child's adoption under the kinship adoption provision, § 19-5-203(1)(j), C.R.S.2009, and (2) the district court's orders of June 30, 2006 and July 30, 2008 upholding the magistrate's first order and determining that it lacked jurisdiction to review the second. We issued an order to show cause raising the question of whether we have jurisdiction over this appeal.

We now hold that mother timely appealed the district court's July 30, 2008 order. We further hold, as a matter of first impression in Colorado, that in a kinship adoption appeal governed by C.A.R. 4(a), the unique circumstances doctrine allows this court to accept notices of appeal filed past the seventy-five-day period set forth in that rule. Considering the merits of the appeal, we reverse the judgment and orders of the magistrate and the district court and remand for further proceedings.

I. Factual and Procedural Background

In 2005, B.E.G., the child's grandmother and then her custodian, filed a petition for kinship adoption of the child. The matter was heard before a magistrate who initially terminated mother's parental rights. After the magistrate advised mother to seek review in the district court, mother did so, but the district court ruled against her on the merits. Mother then appealed to this court. A division of this court dismissed that appeal without prejudice for lack of a final appealable order.

On November 20, 2007, following a contested hearing, the magistrate granted the kinship adoption petition. Mother filed a petition for review in the district court, relying on the magistrate's second advisement that she had fifteen days to do so.

On April 4, 2008, the district court issued an order to show cause requesting that the parties address whether the court had jurisdiction to review the magistrate's order. By order dated July 30, 2008, the court concluded that it did not have jurisdiction because the matter was heard by the magistrate on consent and such matters are to be appealed directly to this court.

On September 10, 2008, mother filed her notice of appeal. After reviewing mother's opening brief and the record on appeal, we issued an order to show cause indicating that it appeared that a final appealable judgment was entered by the magistrate on November 20, 2007 and that, unless we were to determine that the unique circumstances doctrine applied in this case, we lacked jurisdiction over this appeal. We thus asked mother to address, among other things, whether the unique circumstances doctrine can be applied to allow the filing of a notice of appeal beyond the seventy-fifth day after a judgment becomes final. After reviewing mother's response, we conclude that the unique circumstances doctrine may be applied here, rendering mother's appeal timely.

II. District Court's July 30, 2008 Order

Mother initially asserts that the district court erred in concluding that it had no jurisdiction to address her petition for review of the magistrate's November 20, 2007 order because (1) any proceeding under the Children's Code heard by a magistrate is subject to district court review, and (2) the law of the case doctrine compelled review because the magistrate and the district court had previously treated the matter as one that did not require consent. We disagree.

A.

As a preliminary matter, we conclude that we have jurisdiction over mother's appeal from the district court's July 30, 2008 order, because mother timely appealed from that order pursuant to C.A.R. 4(a).

Turning to the merits of this portion of mother's appeal, we note that the district court here had original jurisdiction to terminate parental rights and to issue adoption orders, including kinship adoption proceedings. §§ 19-1-104(1)(d), (g), 19-5-203(1)(j), C.R.S.2009; In re C.A.O., 192 P.3d 508, 510 (Colo.App.2008). Because it had such jurisdiction, it was authorized to appoint a magistrate to hear those proceedings. § 19-1-108(1), C.R.S.2009 (authorizing court to appoint one or more magistrates to hear any case or matter under the court's subject matter jurisdiction, with exceptions not applicable here).

Pursuant to C.R.M. 6(d), consent to proceeding before a magistrate in any juvenile matter is required as set forth in C.R.M. 3(f)(1). Under C.R.M. 3(f)(1)(A)(i)-(ii), a party is deemed to have consented to proceeding before a magistrate when the party affirmatively consents in writing or on the record, or does not file a written objection within fifteen days after receiving notice of the referral, setting, or hearing of a proceeding before the magistrate.

Here, the magistrate advised mother on the record of her right to transfer the matter to a district court judge, without explaining the implications of the decision, and mother expressly chose to remain before the magistrate. Accordingly, mother consented to proceeding before the magistrate. Thus, review of the magistrate's orders was to be taken pursuant to C.R.M. 7(b), which provides, in relevant part:

Any order or judgment entered with consent of the parties in a proceeding in which such consent is necessary is not subject to review under Rule 7(a) [providing for petitions for review in the district court], but shall be appealed pursuant to the Colorado Rules of Appellate Procedure in the same manner as an order or judgment of a district court.

In light of the foregoing, although the magistrate may have believed the matter was nonconsensual, requiring district court review, and although the district court had previously reviewed the magistrate's November 30, 2005 order on the merits without objection, the magistrate could not confer nonconsensual status on a consensual proceeding, nor could the district court exercise jurisdiction where it had none. See Olson v. Hillside Cmty. Church SBC, 124 P.3d 874, 878 (Colo.App.2005) (subject matter jurisdiction cannot be conferred by consent); cf. Soto v. Progressive Mountain Ins. Co., 181 P.3d 297, 300 (Colo.App.2007) (the parties' stipulation does not confer appellate court jurisdiction to review an otherwise unreviewable order). Accordingly, the district court correctly concluded that it lacked jurisdiction to hear mother's petition for review of the magistrate's November 20, 2007 order.

B.

Notwithstanding the foregoing, mother contends that all matters heard by a magistrate under the Children's Code are subject to district court review. We disagree.

Section 19-1-108(5.5), C.R.S.2009, provides for district court review of a magistrate's order under articles 2, 3, 4, and 6 of the Children's Code. This provision, however, does not include district court review of magistrate's orders under article 5, the article at issue here, which addresses kinship adoptions, even though parental rights are terminated. Under settled rules of statutory construction, we conclude that the omission of article 5 from section 19-1-108(5.5) demonstrates the General Assembly's intent that proceedings under that article are not subject to district court review. See Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo. 1995) ("[W]hen the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others.").

C.

We likewise are not persuaded by mother's argument that the law of the case doctrine required the district court to review the November 20, 2007 order because the magistrate and the district court had previously treated the matter as nonconsensual.

The law of the case doctrine recognizes that prior relevant rulings made in the same case are generally to be followed. In re Bass, 142 P.3d 1259, 1263 (Colo.2006); see also In re Marriage of Dunkle, 194 P.3d 462, 467 (Colo.App.2008) (law of the case doctrine applies to a court's decisions of law and not to its resolution of factual questions). The law of the case doctrine, however, is discretionary when applied to a court's power to reconsider its own prior rulings and neither requires nor encourages courts to follow erroneous judgments. Giampapa v. Am. Family Mut. Ins. Co., 64 P.3d 230, 243 (Colo. 2003). Accordingly, a court may properly decline to apply the doctrine if a previous decision is not legally sound, id., and we conclude that the district court did not err when it did so here.

In any event, the law of the case doctrine may not be used to confer subject matter jurisdiction on the district court. See Horton v. Suthers, 43 P.3d 611, 615 (Colo. 2002) (subject matter jurisdiction is not conferred on court by party's view of court's jurisdiction).

For these reasons, the magistrate's November 20, 2007 order was a final judgment, and mother's appeal to this court was ordinarily due within forty-five days of that judgment—January 4, 2008. See C.A.R. 4(a); C.R.M. 7(b). It is undisputed that mother did not file her notice of appeal until September 10, 2008, within forty-five days of the district court's July 30, 2008 order of dismissal. Accordingly, we turn to the question of whether we may accept mother's untimely notice of appeal objecting to the magistrate's two orders and the district court's order of June 30, 2006.

III. Unique Circumstances Doctrine

Mother asserts that we should accept her untimely notice of appeal under the unique circumstances doctrine. We agree.

A.

The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate...