People ex rel. A.J.H.

• Citation: 134 P.3d 528
• Decision Date: 23 February 2006
• Docket Number: No. 05CA1129.,05CA1129.
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of A.J.H., a Child, and Concerning R.W., Respondent-Appellant.
• Court: Court of Appeals of Colorado

134 P.3d 528

The PEOPLE of the State of Colorado, Petitioner-Appellee,

In the Interest of A.J.H., a Child, and

Concerning R.W., Respondent-Appellant.

No. 05CA1129.

Colorado Court of Appeals, Division A.

February 23, 2006.

No Appearance for Petitioner-Appellee.

Daniel C. Kender, Pueblo, Colorado, for Respondent-Appellant.

DAVIDSON, Chief Judge.

R.W. (father) appeals from the judgment terminating the parent-child legal relationship between him and his child, A.J.H. We affirm.

Intervention was necessitated here because father was incarcerated and the child's mother was hospitalized after overdosing on methamphetamines. The child was eleven months old when he was removed from the home in February 2003. His mother's parental rights were terminated in April 2004.

The trial court held a separate hearing regarding the Department of Social Services' motion to terminate father's parental rights in February 2005. The court held a second hearing on March 17, 2005, at which it made extensive factual findings and orally announced its order terminating father's parental rights. After the court directed the County Attorney to prepare a written order for the court's signature, the hearing ended with the following colloquy:

FATHER'S COUNSEL: I'd like to withdraw from the case, and I'd like to see [father] appointed an appellate attorney. He obviously is indigent, Judge, because he's in custody.

THE COURT: Okay.

FATHER'S COUNSEL: And if [the County Attorney] could put the withdrawal in the order?

COUNTY ATTORNEY: That's fine, Judge.

THE COURT: All right.

FATHER'S COUNSEL: Then if we could get somebody for an appeal.

THE COURT: Sure. If you'll — as long as that's included in there so that I know what is going on there, okay?

COUNTY ATTORNEY: Okay. Sounds good.

The court entered a written order terminating father's parental rights on April 13, 2005, and mailed the order to the parties on April 14, 2005. The order did not address counsel's motion to withdraw and for the appointment of substitute counsel.

Pursuant to C.R.C.P. 60(a), which permits trial courts to correct clerical mistakes in judgments arising from oversight or omission, the court entered an addendum to the termination order on May 4, 2005, appointing trial counsel to represent father on appeal, and indicating that counsel would be permitted to withdraw "once the requirements concerning appeal are satisfied." The court mailed the addendum to the parties on May 16, 2005.

C.A.R. 3.4(b) provides that the appellant in a dependency or neglect case has twenty-one days within which to file a notice of appeal. When, as here, notice of entry of the termination order is mailed to the parties, the time for filing the notice of appeal begins to run the date of mailing. Entry of an order under C.R.C.P. 60(a) does not extend the time for filing a notice of appeal of the underlying judgment. In re Marriage of Buck, 60 P.3d 788 (Colo.App.2002). Accordingly, father's notice of appeal was due twenty-one days after April 14, 2005, the date the original termination order was mailed to the parties, or by May 5, 2005.

Because father did not file his notice of appeal until May 30, 2005, this court issued an order to show cause why the appeal should not be dismissed for failure to file a timely notice of appeal and resultant lack of jurisdiction. See People in Interest of A.E., 994 P.2d 465 (Colo.App.1999)(the timely filing of a notice of appeal of an order terminating parental rights is a jurisdictional requirement, and the parent's failure to comply with that requirement mandates dismissal of the appeal).

In his response to the order to show cause, father argued that, during the quoted colloquy, the trial court granted counsel's motion to withdraw and agreed to appoint substitute appellate counsel. The response characterized the addendum as having "allowed [trial counsel] to withdraw and reappointed him as appellate counsel." According to the response, counsel called the trial court clerk seeking clarification of his responsibilities with respect to father's appeal, and the clerk informed counsel on May 23, 2005, that substitute counsel would be appointed after the notice of appeal was filed.

Concluding that C.A.R. 3.4 does not provide for any extension of time to file a notice of appeal and that father's notice of appeal was untimely filed, a three-judge panel dismissed the appeal. The trial court appointed substitute counsel, who filed a motion to reconsider the order dismissing the appeal. Another three-judge panel granted the motion, deferred to division resolution of the issue whether father's notice of appeal was timely, and directed parties to brief the issue whether this court has authority to grant extensions of time for filing notices of appeal in dependency and neglect cases.

I.

In his petition on appeal, father continues to argue that his appeal should not be dismissed as untimely. We agree. We conclude that, under the limited circumstances presented here, we have authority to grant an extension of time for filing the notice of appeal.

The Colorado Rules of Appellate Procedure are subject to the generally applicable rules of statutory construction. Anheuser Busch, Inc. v. Indus. Claim Appeals Office, 28 P.3d 969 (Colo.App.2001); see also Crawford v. Melby, 89 P.3d 451 (Colo.App.2003). Thus, we read all of the rules in pari materia to fulfill their intent and avoid inconsistencies. McFarlen v. Eckhart, 878 P.2d 11 (Colo.App.1993); see also R.E.N. v. City of Colorado Springs, 823 P.2d 1359 (Colo.1992)(Children's Code must be construed in pari materia in order to effectuate legislative intent and to give consistent, harmonious and sensible effect to all parts).

Because an order terminating parental rights affects the parent's fundamental liberty interests, the right to appeal such an order is of significant import to the parent. C.S. v. People In Interest of I.S., 83 P.3d 627 (Colo.2004); see also B.B. v. People, 785 P.2d 132 (Colo.1990); People in Interest of D.R.W., 91 P.3d 453 (Colo.App.2004); People in Interest of A.E., 914 P.2d 534 (Colo.App.1996); People in Interest of M.H., 855 P.2d 15 (Colo.App.1992).

In C.A.R. 3.4, the supreme court adopted amendments to the Colorado Appellate Rules to expedite the disposition of appeals in dependency or neglect cases. See also § 19-1-109(3), C.R.S.2005 (creating a "Child Welfare Appeals Workgroup" to submit a written report to the General Assembly to consider necessary statutory or other changes to ensure that appeals in dependency and neglect cases be resolved within six months after being filed). The new rule became effective March 1, 2005, less than two months before the trial court entered the original termination order in this case.

As noted above, C.A.R. 3.4(b) provides that appeals in termination cases must be filed within twenty-one days after entry of the order appealed, as opposed to the forty-five days allowed for criminal and most other civil appeals. See C.A.R. 4(a), (b). The rules also differ in another important respect: while C.A.R. 4(a) and (b) authorize the appellate court to extend the deadline for filing a notice of appeal for up to thirty days after the initial forty-five day period based on a showing of excusable neglect, C.A.R. 3.4 does not contain such an extension provision.

The thirty-day extension provisions in C.A.R. 4 do not apply in dependency and neglect cases. See In the Interest of J.J.L., 119 P.3d 315 (Utah App.2005)(the extension provision in the Utah rule governing civil appeals does not apply in child welfare cases). Indeed, C.A.R. 3.4(b)(3) provides that the time in which to file a notice of appeal in dependency and neglect cases "will not be extended."

We nevertheless conclude that we may extend the deadline for filing the notice of appeal in this case based on the "unique circumstances exception" to procedural rules limiting a court's authority to grant extensions of time.

The unique circumstances exception applies "if a party reasonably relies and acts upon an erroneous or misleading statement or ruling by the trial court." Converse v. Zinke, 635 P.2d 882, 886 (Colo.1981). The exception is rarely invoked and applies only to an extreme situation. Canton Oil Corp. v. Dist. Ct., 731 P.2d 687 (Colo.1987); Hillen v. Colo. Comp. Ins. Auth., 883 P.2d 586 (Colo. App.1994); Anderson v. Molitor, 770 P.2d 1305 (Colo.App.1988); Sandoval v. Trinidad Area Health Ass'n, 752 P.2d 1062 (Colo.App. 1988).

In P.H. v. People, 814 P.2d 909 (Colo.1991), our supreme court applied the unique circumstances doctrine in an appeal of a termination order. In that case, the appellant filed a timely motion for extension to file the notice of appeal, but filed it in the trial court instead of the court of appeals. The trial court purported to grant the motion, and the appellant filed the notice of appeal on the extended deadline set by the trial court, which was within the seventy-five day jurisdictional limit of C.A.R. 4(a). However, because the appellant's counsel was under the mistaken impression that the trial court had properly extended the filing deadline, he did not seek an excusable neglect extension in the court of appeals before the seventy-five day deadline had passed as required by C.A.R. 4(a). A division of this court dismissed the appeal, concluding that it lacked authority to grant an extension sought after the deadline, and that the notice of appeal was thus untimely.

In reversing the court of appeals' decision, the supreme court noted that the parent's failure to file a timely motion for extension and notice of appeal was the direct result of the trial court order purporting to extend the filing deadline. The court held that, because counsel reasonably relied on the erroneous trial court action, the court of appeals should have exercised its discretion to accept the late-filed appeal under the unique circumstances doctrine. See also Weason v. Colo. Court of Appeals, 731 P.2d...