People , Petitioner–appellee,in the Interest of R.D., a Child,andconcerning M.D., Respondent–appellant.
| Decision Date | 07 July 2011 |
| Docket Number | No. 10CA2070.,10CA2070. |
| Parties | The PEOPLE of the State of Colorado, Petitioner–Appellee,In the Interest of R.D., a Child,andConcerning M.D., Respondent–Appellant. |
| Court | Colorado Court of Appeals |
OPINION TEXT STARTS HERE
Ellen G. Wakeman, County Attorney, Ingrid H. Holmes, Assistant County Attorney, Golden, Colorado, for Petitioner–Appellee.Doris A. Waters, Guardian Ad Litem.Jenna Reulbach, P.C., Jenna Reulbach, Golden, Colorado, for Respondent–Appellant.Opinion by Judge WEBB.
In this dependency and neglect proceeding, M.D. (mother) appeals the trial court's judgment terminating her parent-child legal relationship with R.D. (child). We conclude that mother's initial notice of appeal was ineffective for failure to comply with C.A.R. 3.4(d), and that she failed to show good cause for her untimely amended notice of appeal (which did comply). Therefore, we dismiss the appeal for lack of jurisdiction.
The child was approximately eight months old when he was removed from mother's care. Thus, this case fell under the expedited permanency planning statutes, which require placement in a permanent home no later than twelve months after his removal from the home, unless his best interests required otherwise. See §§ 19–1–102(1.6), 19–1–123, 19–3–703, C.R.S.2010; K.D. v. People, 139 P.3d 695, 699 (Colo.2006).
If mother's parental rights were to be terminated, the permanency plan was for the maternal grandparents, who had custody of the child throughout the proceedings, to adopt. Mother's parental rights were terminated in a written order dated August 30, 2010, and served on the parties by mail on September 2, 2010. Therefore, mother's notice of appeal was due on or before September 27, 2010. See C.A.R. 3.4(b)(1); C.A.R. 26(a) (); People in Interest of S.M.A.M.A., 172 P.3d 958, 960 (Colo.App.2007) ().
On October 8, 2010—eleven days past the due date—mother's counsel filed a “Notice of Appeal and Designation of Record and Motion to Accept Appeal out of Time.” As good cause for the untimely filing under C.A.R. 2 and 26(b), counsel alleged that she had not heard from mother since the termination hearing held on August 4, 2010, and wanted to ensure that mother desired to appeal because an appeal would delay the adoption of the child by the grandparents.
Counsel attached to the Notice of Appeal a Form 2, “Certificate of Diligent Search,” as provided by C.A.R. 3.4(d). The Certificate, also filed in the trial court, stated:
• Counsel had told mother at the termination hearing that mother's signature would be needed on the notice of appeal;
• Counsel had mailed mother the written termination order, but mother did not respond;
• Counsel had called every telephone number she had for mother and found none of the numbers to be correct;
• Counsel located mother on Facebook and posted a message for mother to contact her, but mother had not done so; and
• Counsel was unable to determine mother's whereabouts or to communicate with her.
Instead of ruling on the motion to accept the untimely notice of appeal, this court ordered counsel to show cause why the appeal should not be dismissed for failure to secure mother's signature or specific authorization to appeal. After receiving no response, the appeal was dismissed on January 11, 2011.
On January 19, 2011—now 114 days after the Notice of Appeal was originally due—mother's counsel filed a “Motion Requesting the Court [to] Reconsider the Dismissal of the Appeal.” The motion stated that counsel had not been contacted by mother until January 3, 2011, when mother inquired about the status of the appeal. However, it did not offer any explanation of why mother had failed to contact counsel sooner. Counsel attached an Amended Notice of Appeal containing mother's signature. On April 20, 2011, a motions division of this court granted the motion, noting that “an opinion shall issue in due course.”
The case is now fully briefed. The guardian ad litem's response brief argues that the appeal should be dismissed for failure to timely appeal. We agree.
Even if we assume that the notation of the motions division, “an opinion shall issue in due course,” referred to the merits of the appeal, we are not bound by that ruling. See FSDW, LLC v. First Nat'l Bank, 94 P.3d 1260, 1262 (Colo.App.2004) (); Hillen v. Colorado Comp. Ins. Auth., 883 P.2d 586, 588 (Colo.App.1994) ().
We examine the language of C.A.R. 3.4(d) to determine whether this notice was effective, and we conclude that it was not.
C.A.R. 3.4(d) sets the requirements for a notice of appeal in dependency and neglect proceedings:
The Notice of Appeal and Designation of Record (Form 1) must be prepared and signed by the appellant's trial counsel or by the appellant, if pro se. The notice must identify the party or parties initiating the appeal, specify the order or part thereof from which the appeal is taken, and set forth the date the order was reduced to writing, dated, and signed by the trial court. The notice must be signed by the appellant, if an adult, unless counsel states in the notice of appeal that the appellant has specifically authorized the filing of the appeal. If counsel is unable to file a notice of appeal because the appellant is unavailable, counsel may file a Certificate of Diligent Search (Form 2) with the clerk of the trial court.
(Emphasis added.) Thus, mother's initial notice of appeal, which lacked mother's signature or counsel's statement that mother had authorized the appeal, was noncompliant. For the following reasons, we conclude that this noncompliance rendered the notice ineffective.1
The same rules of statutory construction apply to interpretation of rules of procedure. See People v. Gilmore, 97 P.3d 123, 128 (Colo.App.2003); Watson v. Fenney, 800 P.2d 1373, 1375 (Colo.App.1990). A court should first look to the language of the rule and afford the words their plain and ordinary meaning, but if the language is unclear, a court may look to a variety of sources to determine intent, including “the object ... [to be] obtain[ed] by [a rule's] enactment, the circumstances under which it was adopted, and the consequences of a particular construction.” See Weld Cnty. Sch. Dist. RE–12 v. Bymer, 955 P.2d 550, 554 (Colo.1998) (quoting State Eng'r v. Castle Meadows, Inc., 856 P.2d 496, 504 (Colo.1993)).
C.A.R. 3.4(d) specifies that the notice of appeal “must” be signed or at least authorized by the parent-appellant. However, if counsel “is unable to file a notice of appeal because the appellant is unavailable,” counsel may file a Certificate of Diligent Search in the trial court. “Use of the word ‘must’ connotes a requirement that is mandatory and not subject to equivocation.” Silverview at Overlook, LLC v. Overlook at Mt. Crested Butte Ltd. Liab. Co., 97 P.3d 252, 255 (Colo.App.2004). The use of “unable” further indicates that counsel cannot file a notice of appeal without having obtained the parent-appellant's authorization.2
The minutes of meetings held by the Colorado Supreme Court's Committee on Rules of Appellate Procedure support this conclusion.3 During initial discussion of proposed C.A.R. 3.4, the Committee noted the “necessity” of a parent's signature on the notice of appeal. Minutes of the Supreme Court Committee on Rules of Appellate Procedure Meeting July 30, 2004, at 3. At a later meeting and in response to several guests' opposition to the parental signature requirement, the Committee defended this requirement as “critical” for trial counsel to know that his or her client “actually wants to file an appeal.” Minutes of the Supreme Court Committee on Rules of Appellate Procedure Meeting October 7, 2004, at 6. The Committee expressed its desire to avoid Id.
The Committee then adopted a limited exception to the signature requirement by adding the language allowing a notice to be filed without the parent's signature if counsel affirms that the parent has authorized the appeal. Id. The Committee also added the sentence in C.A.R. 3.4(d) regarding the Certificate of Diligent Search. However, this sentence does not say that the Certificate would provide a basis for filing a notice of appeal in this court. Id. The direction to file the certificate only in the trial court suggests the opposite.
Utah adopted rules for expedited appeals in juvenile cases before Colorado. See Karen M. Ashby, Implementing C.A.R. 3.4 to Expedite Appeals in Dependency and Neglect Cases, 34 Colo. Law. 47, 48 n. 2 (June 2005). Its Rule 53(b) of the Rules of Appellate Procedure provides that a notice of appeal must be signed by both counsel and appellant. The rule allows for a fifteen-day extension if counsel files a certificate of diligent search. But after the additional fifteen days, the appeal will be dismissed if the appellant's signature has not been obtained. See State in Interest of T.J.D., 252 P.3d 867, 867 (Utah Ct.App.2011). Cases from other jurisdictions confirm the importance of a party's consent to an appeal in termination and other family law cases.4 We consider these cases well reasoned and apply them here.
People ex rel. Yeager, 93 P.3d 589, 593 (Colo.App.2004), does not require a different result. There, the trial court appointed both a guardian ad litem...
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