PEOPLE EX REL. AE, 98CA2564.

• Citation: 994 P.2d 465
• Case Date: November 12, 1999
• Court: Court of Appeals of Colorado

994 P.2d 465

The PEOPLE of the State of Colorado, Petitioner-Appellee,
In the Interest of A.E., a Child, and Concerning
S.E., Respondent-Appellant

No. 98CA2564.

Colorado Court of Appeals, Div. A.

November 12, 1999.

Rehearing Denied December 16, 1999¹.

Certiorari Denied February 22, 2000.

Maurice Lyle Dechant, Mesa County Attorney, Mark R. Hand, Assistant County Attorney, Grand Junction, Colorado, for Petitioner-Appellee.

Vicki A. Alsin, Guardian Ad Litem.

Rennard E. Hailey, Grand Junction, Colorado, for Respondent-Appellant.

Opinion by Judge KAPELKE.

In this dependency and neglect proceeding, S.E. (mother) appeals from a judgment

994 P.2d 466

terminating the parent-child legal relationship between her and her child, A.E. We issued an order directing mother to show cause why the appeal should not be dismissed for lack of jurisdiction based on the untimely filing of the notice of appeal. Having considered the responses, we now dismiss the appeal

On August 28, 1998, the trial court entered an order terminating mother's parental rights regarding A.E. Later, on November 10, 1998, the court entered an order terminating the father's parental rights. Mother filed her notice of appeal on December 24, 1998, which was more than 45 days after the order terminating her rights, but within 45 days of that terminating father's rights.

In response to the show cause order, mother contends that, because she had filed her notice of appeal within 45 days of the order adjudicating father's rights, her appeal was timely. We disagree.

Section 19-1-109(2)(b), C.R.S.1999, which was enacted in 1997, provides that:

An order terminating or refusing to terminate the legal relationship between a parent or parents and one or more of the children of such parent or parents on a petition, or between a child and one or both parents of the child, shall be a final and appealable order. (emphasis supplied)

When construing a statute, a court must give effect to the intent of the General Assembly and adopt the construction that best effectuates the purpose of the statutory scheme. M.S. v. People, 812 P.2d 632 (Colo.1991). To determine intent, a court should look first to the language of the statute and give the words their ordinary meaning. People in Interest of G.W.R., 943 P.2d 466 (Colo.App.1997).

Under the plain meaning of its language, § 19-1-109(2)(b) expressly renders an order terminating the parent and child relationship immediately "final and appealable," even where such order relates to only one of the parents.

The 1997 amendment of the statute effected a change from the rule that formerly applied. See D.H. v. People, 192 Colo. 542, 561 P.2d 5 (1977). Previously, a parent could appeal a judgment terminating the parent-child relationship only after the trial court had entered a ruling that determined the rights of all the parties and concluded the juvenile action. A parent could, however, appeal a judgment terminating his or her parental rights, but not those of the other parent, by obtaining a proper certification from the juvenile court pursuant to C.R.C.P. 54(b). See Harding Glass Co. v. Jones, 640 P.2d 1123 (Colo.1982) (stating general rule that a judgment which does not resolve all claims against all parties in a case involving multiple claims or multiple parties, and which would otherwise not be a final, appealable judgment, may be certified for appellate review pursuant to C.R.C.P. 54(b)).

Under the statute, as amended, mother does have a right to an immediate appeal of the termination order. The issue, however, is whether she was required to exercise that right under § 19-1-109(2)(b) within 45 days of entry of the order or whether she had the option of waiting until the trial court entered the judgment terminating father's parental rights. We conclude that, because the August 1998 judgment terminating her rights was, by the terms of the statute, "final and appealable," she had to file her notice within 45 days of its entry. In so ruling, we reject mother's contention that the right to immediate appeal provided in § 19-1-109(2)(b) is optional.

Our conclusion flows from the following principles: First, appeals lie from any final judgment entered by a juvenile court, People in Interest of E.A., 638 P.2d 278 (Colo.1981); C.A.R. 1(a)(1); second, the General Assembly has made an order terminating parental rights as to any parent a "final and appealable" order, § 19-1-109(2)(b); and third, in any civil case in which "an appeal is permitted by law as of right from a trial court to the appellate court," the notice of appeal must be filed within 45 days of the date of the judgment or order from which the party is appealing, C.A.R. 4(a).

The timely filing of a notice of appeal within the 45-day period is a jurisdictional requirement, and a failure to comply with that requirement mandates dismissal of the

994 P.2d 467

appeal. Meredith v. Zavaras, 954 P.2d 597 (Colo.1998); Broderick v. McElroy & McCoy, Inc., 961 P.2d 504 (Colo.App.1997)

We are aware that in Walton v. State, 968 P.2d 636 (Colo.1998), the supreme court construed § 24-10-108, C.R.S.1999, as giving a party desiring to challenge a trial court's determination on the jurisdictional issue of governmental immunity the option of either filing an appeal immediately or waiting to do so until judgment has been entered on the merits following trial. The court concluded in Walton that the General Assembly's use of the language "final judgment" in the statute did not create a requirement that the party had to pursue an immediate appeal of the immunity issue. As the court noted, § 24-10-108, makes a decision on a motion addressing the governmental immunity issue "a final judgment" which "shall be subject to interlocutory appeal."

In arriving at its conclusion, the Walton court emphasized the General Assembly's recognition that such an appeal is interlocutory: "Significantly, the legislature provided that the trial court's [governmental immunity] ruling is `subject to interlocutory appeal....'" 968 P.2d at 641. Unlike the governmental immunity statute interpreted in Walton, however, the provision at issue here, § 19-1-109(2), does not describe an order or judgment terminating the parent-child relationship as one that is "interlocutory." Such an order is simply made "final and appealable." Accordingly, in our...