People ex rel. T.D., 05CA0731.

• Citation: 140 P.3d 205
• Decision Date: 09 March 2006
• Docket Number: No. 05CA0731.,05CA0731.
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of T.D., Jr. and S.D., Children, and Concerning M.A. and T.D., Respondents-Appellants.
• Court: Court of Appeals of Colorado

140 P.3d 205

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

In the Interest of T.D., Jr. and S.D., Children, and Concerning M.A. and T.D., Respondents-Appellants.

No. 05CA0731.

Colorado Court of Appeals, Div. II.

March 9, 2006.

Rehearing Denied May 4, 2006.

Certiorari Denied June 26, 2006.^*

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James D. Robinson, Adams County Attorney, Deborah Kershner, Assistant County Attorney, for Petitioner-Appellee.

Gibson, Dunn, & Crutcher, LLP, J. Gregory Whitehair, Jonathan M. Warner, Monica K. Loseman, Denver, Colorado; John R. Chesteen, Westminster, Colorado, for Respondent-Appellant M.A.

Bruce E. Kirkpatrick, Henderson, Colorado, for Respondent-Appellant T.D.

ROTHENBERG, J.

In this consolidated appeal, M.A. (mother) and T.D. (father) appeal from a judgment terminating their parent-child legal relationships with their children, T.D., Jr. and S.D. We affirm.

I. Background

In early 2004, the parents' two children were removed from the home by the Adams County Department of Social Services because of concerns about its unsafe physical condition. A dependency and neglect petition was filed, an adjudication order was entered, and the children were placed in a foster home.

During their visitations, the parents noticed bruising on the children and reported it to the department. They claim their concerns were ignored or minimized. Shortly thereafter, T.D., Jr. suffered a traumatic head injury while in foster care, which required that he be hospitalized for about a month and resulted in permanent injury. The parents testified that this event caused them considerable anguish and that, thereafter, they both had difficulty cooperating with the department in implementing their treatment plans. On behalf of T.D., Jr. they retained counsel, who filed a lawsuit against the department and certain of its employees.

The parents had separate trial counsel, and they have separate appellate counsel, who did not serve as trial counsel during the termination proceedings.

The parents' appeal was filed after the effective date of C.A.R. 3.4, which was adopted by the Colorado Supreme Court. The rule expedites appeals in dependency and neglect proceedings and makes significant changes in the way such appeals proceed in this court.

In her petition on appeal, mother challenged the constitutionality of the new rule as applied to her. She raised several issues, and we requested supplemental briefs addressing them. We later requested additional briefs from all parties addressing whether there was a conflict of interest between the department and the parents in this case, and if so, the appropriate remedy.

II. Constitutional Issues

Mother contends that by expediting dependency and neglect appeals, C.A.R. 3.4 interferes with her right of access to the judicial process, and violates her rights under the Due Process and Equal Protection Clauses of the federal and state constitutions. She maintains that C.A.R. 3.4 deprives her of fundamentally fair appellate review by (1) failing to provide an opportunity for full briefing in all dependency and neglect appeals; (2) requiring the court, rather than the appellant, to decide which issues require written argument; and (3) forcing appellant's counsel to rely "on an incomplete record, including an informal transcript," and therefore depriving the appellant of the effective assistance of appellate counsel. We reject each of her arguments in turn.

A. Court of Appeals Jurisdiction

We have found no published cases in Colorado directly resolving whether we have jurisdiction to address the constitutionality of a rule promulgated by the Colorado Supreme Court, and other states are divided on the manner in which the constitutionality of a state supreme court rule may be challenged. Although none of the parties have raised this issue, we conclude it is appropriate first to address our jurisdiction. See Davidson Chevrolet, Inc. v. City & County of Denver, 138 Colo. 171, 174, 330 P.2d 1116, 1118 (1958)("Every court has judicial power to hear and decide the question of its own jurisdiction.").

Appellate courts in Florida and Tennessee have upheld the authority of the trial court or intermediate court of appeals to construe supreme court rules when applying them to given cases, but have concluded this authority does not extend to nullification of the rules. See Ser-Nestler, Inc. v. Gen. Fin. Loan Co., 167 So.2d 230, 232 (Fla.Dist.Ct. App.1964)("The Supreme Court is vested with the sole authority to promulgate, rescind and modify the rules, and until the rules are changed by the source of authority, they remain inviolate."); Barger v. Brock, 535 S.W.2d 337, 342 (Tenn.1976)("[T]he inferior courts of the state may not entertain any suit or action challenging the validity of any Rule of this Court. Such a suit would be in the nature of a bill of review or to impeach a judgment of this Court . . . .").

Other states, including Arizona, North Carolina, Ohio, and Texas, have allowed the constitutionality of a supreme court rule to be challenged in a litigated case. For example, the Texas Supreme Court upheld the jurisdiction of the state's lower courts to decide, in the first instance, the constitutionality of its rules, provided there is a real case or controversy before the court:

Because the Court's power to regulate the practice of law is an administrative one, the exercise of that power does not in and of itself deprive lower courts of general subject matter jurisdiction over challenges to that governance. They do not, however, have jurisdiction over all such challenges because in every individual case, jurisdiction also depends on justiciability. . . . [T]here must be a real controversy between the parties that will be actually resolved by the judicial relief sought. . . .

. . . Had this Court actually promulgated rules establishing a pro bono program and had Gomez challenged the constitutionality of such rules, the district court would have jurisdiction to decide, in the first instance, whether such rules met constitutional standards. In due course, we would review any adverse determination in our adjudicative capacity. . . . Such a case would be justiciable because the district court would be capable of rendering a judgment that accords the parties complete relief, subject of course to appellate review.

State Bar v. Gomez, 891 S.W.2d 243, 245-46 (Tex.1994) (citations omitted); see also Chenault v. Phillips, 914 S.W.2d 140, 142 (Tex.1996)("[C]onstitutional challenges to rules enacted by this Court must be brought in the district court and heard by this Court in the exercise of its appellate jurisdiction."). But see Sherman v. State, 12 S.W.3d 489, 494 (Tex.App.1999)(refusing to address challenge to the constitutionality of a rule promulgated by the Texas Court of Criminal Appeals, the state's court of last resort for criminal appeals, stating: "As an intermediate appellate court, we are not the appropriate forum to do so.").

In State v. Meek, 8 Ariz.App. 261, 445 P.2d 463 (1968), a majority of the Arizona Court of Appeals held that, as an intermediate appellate court, it lacked jurisdiction to determine the validity of rules promulgated by the Arizona Supreme Court. However, the Arizona Supreme Court, on a petition for review, remanded the case to the court of appeals "with directions to determine [the] case on [its] merits." State v. Meek, 9 Ariz.App. 149, 151, 450 P.2d 115, 117 (1969).

On remand, the court of appeals stated:

This indicates to us that the Arizona Supreme Court is in accord with the statements as to this Court's position announced in the dissent of our previous opinion in State v. Meek. We now hold that the Arizona Court of Appeals has the power to determine the validity and constitutionality of the rules promulgated by the Arizona Supreme Court in connection with a case before us.

State v. Meek, supra, 9 Ariz.App. at 151, 450 P.2d at 117.

Similarly, in Beard v. North Carolina State Bar, 320 N.C. 126, 128, 357 S.E.2d 694, 695 (1987), an attorney filed an action in the trial court when his license to practice law was suspended because he refused to pay into the Client Security Fund, as required by an order of the North Carolina Supreme Court. The supreme court stated that "a direct challenge of the constitutionality of an order of this Court" "must be litigated as an original action in the General Court of Justice." Beard v. N.C. State Bar, supra, 320 N.C. at 128, 357 S.E.2d at 695.

In an Ohio case, the court of appeals simply considered the constitutionality of a supreme court rule without questioning whether it had authority to do so. See Shimko v. Lobe, 152 Ohio App.3d 742, 751, 790 N.E.2d 335, 342 (2003)(court of appeals upheld constitutionality of court rule, noting that its decision was "in accord with courts in other jurisdictions which have encountered similar constitutional challenges to court rules that require attorney fee arbitration"), aff'd, 103 Ohio St.3d 59, 813 N.E.2d 669 (2004).

Some state supreme courts have expressly provided for the filing of petitions challenging their orders and rules directly with that court. See Aldridge v. Watling Ladder Co., 275 Ark. 225, 226, 628 S.W.2d 322, 323 (1982)(holding that a case involving construction of supreme court rule should have been certified to supreme court under Supreme Court Rule 29(1)(c)); Goetz v. Harrison, 153 Mont. 403, 404, 457 P.2d 911, 912 (1969) (questions involving the constitutionality of a supreme court rule should "perhaps" be presented to the supreme court in an "appropriate original proceeding" or in the federal district court). Currently, Colorado has no such provision.

The Colorado Court of Appeals is a statutorily created court. Section 13-4-102(1)(b), C.R.S.2005, provides, as relevant here, that "the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts,...