People ex rel. A.J.

• Decision Date: 10 August 2006
• Docket Number: No. 05CA2697.,05CA2697.
• Citation: 143 P.3d 1143
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of A.J., a Child, and Concerning C.J., Respondent-Appellant.
• Court: Colorado Court of Appeals

Page 1143

143 P.3d 1143

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

No. 05CA2697.

Colorado Court of Appeals, Div. A.

August 10, 2006.

COPYRIGHT MATERIAL OMITTED

James D. Robinson, County Attorney, Katherine E. Gregg, Assistant County Attorney, Denver, Colorado, for Petitioner-Appellee.

J. William Sierra, Brighton, Colorado, for Respondent-Appellant.

Karen A. Reid, Guardian Ad Litem.

Opinion by Chief Judge DAVIDSON.

C.J. (mother) appeals from a judgment terminating the parent-child legal relationship between her and her child, A.J. We affirm.

The evidence presented at the termination hearing established that mother, who was fifteen years old when the child was born, was herself the subject of a dependency and neglect case that resulted in the termination of her biological parents' parental rights.

The child was exposed to drugs in utero. He was removed from mother's care after she was adjudicated a juvenile delinquent and sabotaged her placement with the child in a mutual foster home by telling the foster parents she was a drug dealer and a gang member and that she was going to run away and leave the child in their care. The child was almost seven months old at the time of the termination hearing.

I.

As a threshold matter, we must address mother's motion that we accept her late-filed notice of appeal. Because we conclude that mother established good cause for failing timely to appeal, we grant the motion.

A. Although C.A.R. 3.4(b)(3) prohibits extending the deadline for filing a notice of appeal in dependency and neglect cases based on a showing of excusable neglect, it does not preclude us from exercising our discretion under C.A.R. 2 and 26(b) to retain jurisdiction over a late-filed appeal for good cause.

An order terminating parental rights affects the parent's fundamental liberty interests and the right to appeal such an order is of significant import to the parent. C.S. v. People, 83 P.3d 627 (Colo.2004); People in Interest of A.J.H., 134 P.3d 528 (Colo.App. 2006). However, "the state also has a significant interest in finalizing a dependency and neglect proceeding in an expeditious manner to meet the child's emotional and psychological needs for a permanent home." People in Interest of T.D., 140 P.3d 205, 213 (Colo.App. 2006); see also C.S. v. People, supra.

In recognition of these often competing interests, the supreme court determined that dependency and neglect cases should no longer proceed under the time frames and other procedures in C.A.R. 4(a) for most civil appeals. The court therefore adopted C.A.R. 3.4, which sets forth an expedited appellate procedure for dependency and neglect cases. See People in Interest of A.J.H., supra; People in Interest of N.A.T., 134 P.3d 535 (Colo. App.2006); see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 565, 136 L.Ed.2d 473 (1996) (refusing to "classify" termination cases "with the generality of civil cases" for appeal access purposes). The new rule strikes a careful balance between protecting parents' fundamental rights and furthering the state's legitimate interest in the expeditious resolution of dependency and neglect appeals. See People in Interest of T.L.D., supra.

This expedited procedure begins with a shorter period of time within which to file a notice of appeal than that allowed in appeals filed pursuant to C.A.R. 4(a). Specifically, under C.A.R. 3.4(b), the appellant in a dependency and neglect case has twenty-one, not forty-five, days within which to file a notice of appeal. Unless a notice of appeal is timely filed, the court of appeals lacks jurisdiction to hear the appeal. People in Interest of A.J.H., supra.

C.A.R. 3.4(b)(3) further provides that the time in which to file a notice of appeal in dependency and neglect cases "will not be extended." Thus, while C.A.R. 4(a), for most civil appeals, and C.A.R. 4(b), for criminal appeals, authorize the appellate court to extend the deadline for filing a notice of appeal for up to thirty days based on a showing of excusable neglect, C.A.R. 3.4, which supplants C.A.R. 4(a) in dependency and neglect cases, does not. See People in Interest of A.J.H., supra.

However, even in circumstances such as those here, in which an excusable neglect extension is not available, an appellate court remains empowered to extend or suspend deadlines based on a showing of good cause. See People v. Baker, 104 P.3d 893 (Colo. 2005); Estep v. People, 753 P.2d 1241 (Colo. 1988).

Specifically, C.A.R. 26(b) allows an appellate court to enlarge the time for filing after the expiration of a deadline "for good cause shown." In addition, "except as otherwise provided in C.A.R. 26(b)," C.A.R. 2 allows the court of appeals not simply to enlarge, but completely to suspend application of the requirements or provisions of any of the appellate rules "[i]n the interest of expediting decision, or for other good cause shown." See Colo. Ass'n of Pub. Employees v. Dep't of Highways, 809 P.2d 988 (Colo.1991) (suspending appellate procedure requiring that appeal of declaratory order of state personnel board be filed in the court of appeals, and retaining and resolving appeal erroneously filed in the supreme court).

Although some of the same factors are considered in applying both standards, the "good cause" standard applicable to extensions or suspensions granted under C.A.R. 2 and 26(b) and the excusable neglect standard applicable to extensions granted pursuant to C.A.R. 4(a) and (b) are not the same. See People v. Baker, supra; Estep v. People, supra; see also Singh v. Mortensun, 30 P.3d 853 (Colo.App.2001) (discussing difference between "good cause" standard applicable to motions for relief from entry of default under C.R.C.P. 55(c) and "excusable neglect" standard applicable to motions to set aside a default judgment pursuant to C.R.C.P. 60(b)).

For example, to establish excusable neglect, the circumstances must show that "there has been a failure to take proper steps at the proper time, not in consequence of carelessness, but as the result of some unavoidable hindrance or accident." Farmers Ins. Group v. Dist. Court, 181 Colo. 85, 89 507 P.2d 865, 867 (1973). Under that standard, absent unusual circumstances, an attorney's negligence in failing to meet a jurisdictional deadline does not constitute excusable neglect. See People v. Baker, supra; Estep v. People, supra. But the same negligent conduct may be sufficient to support a finding of good cause if the court determines that other factors, including "the potential prejudice the appellee may suffer from a late filing, the interests of judicial economy, and the propriety of requiring [the appellant] to pursue other remedies to redress" counsel's neglect, "weigh heavily in favor of permitting the late filing." Estep v. People, supra, 753 P.2d at 1248.

While the good cause standard, because it always is case specific, is more flexible than the excusable neglect standard, the good cause extension and suspension provisions of C.A.R. 2 and 26(b), are not unlimited, either in application or in scope. Specifically, C.A.R. 26(b) provides that "the court may not enlarge the time for filing a notice of appeal" from an order of a state agency or "beyond that prescribed in C.A.R. 4(a)." Likewise, by its reference to C.A.R. 26(b), C.A.R. 2 does not permit the court of appeals to suspend the deadlines for filing notices of appeal pursuant to C.A.R. 4(a) and in agency cases.

But this is not an agency case, and C.A.R. 4(a) is not applicable in dependency and neglect appeals, which, as discussed above, are in a category of their own for appellate procedure purposes. See People in Interest of A.J.H., supra; see also In re K.L., 91 S.W.3d 1 (Tex.App.2002) (discussing differences between civil and parental termination appeals and recognizing constitutional rights afforded parents in termination cases that civil appellants do not enjoy).

Thus, nothing in the plain language of C.A.R. 2 and 26(b) limits our discretion to extend or suspend the filing deadlines in C.A.R. 3.4, including the deadline for filing a notice of appeal for good cause.

Moreover, we presume that when it adopted C.A.R. 3.4, the supreme court was aware of the good cause provisions of C.A.R. 2 and 26(b) and of the difference between the good cause and excusable neglect standards. More particularly, we presume the court was aware of the parallel between C.A.R. 3.4(b)(3) and the excusable neglect extension provisions in C.A.R. 4(a) and (b), and that, like its C.A.R. 4 counterparts, the limiting language of C.A.R. 3.4(b)(3), without more, would not operate to limit our discretion to extend or suspend filing deadlines in dependency and neglect cases based on a showing of good cause. See Martin v. People, 27 P.3d 846 (Colo.2001) (in interpreting statutes, appellate courts generally presume that the General Assembly is aware of judicial precedent in particular area when it enacts legislation in that area); People v. Gilmore, 97 P.3d 123 (Colo.App.2003) (the general rules of statutory construction apply to the interpretation of procedural rules, including C.A.R. 26(b)); see also People in Interest of A.J.H., supra (the Colorado Rules of Appellate Procedure must be read in pari materia to fulfill their intent and avoid inconsistencies).

The ability of an appellate court to enlarge or suspend the rules in the interests of justice for good cause is broad, and it is important. People v. Baker, supra; Fields v. Suthers, 984 P.2d 1167 (Colo.1999); Estep v. People, supra; Weason v. Colo. Court of Appeals, 731 P.2d 736 (Colo.1987); Rivera v. Civil Serv. Comm'n, 34 Colo.App. 152, 529 P.2d 1347 (1974). Thus, the supreme court has rarely placed limitations on this discretion, either in its appellate rules or the case law interpreting them. When it has done so, the court has been careful and explicit, such as in the exception to our...