Opinion
No. 09SA22.
September 14, 2009.
Appeal from the District Court, El Paso County, Thomas L. Kennedy, J.
Davide C. Migliaccio, Colorado Springs, CO, Attorney for Respondent G.H.
Office of the El Paso County Attorney, William Hobbs Louis, El Paso County Attorney, John A. Thirkell, Chief Deputy County Attorney, Colorado Springs, CO, Attorneys for the El Paso County Department of Human Services.
Susan L. Mueller, P.C., Susan L. Mueller, Colorado Springs, CO, Attorneys for Respondent A.P.
Nancy J. Walker-Johnson, Monument, CO, Guardian ad litem.
I. Introduction
This original proceeding pursuant to C.A.R. 21 was brought by the father of A.H., a minor child who is the subject of a dependency and neglect case pending in the El Paso County District Court. The father claims that the district court wrongfully denied him custody of A.H. after the Department of Human Services ("DHS") failed to prove at trial that he was an unfit parent and he was dismissed from the dependency and neglect case.
We issued a rule to show cause and received responses from the mother, DHS, and the child's guardian ad litem. The respondents argue that relief is not appropriate under C.A.R. 21 because the father had a remedy that he failed to exercise. Alternatively, they contend that he is not entitled to prevail on the merits.
We agree that C.A.R. 21 relief is inappropriate in this case. The father had two other remedies. First, if the father disagreed with the trial court's order, he should have appealed the order through the expedited appeals process applicable to cases for dependency and neglect adjudications established in C.A.R. 3.4. Instead, for no apparent reason, he waited until months after the deadline passed for seeking C.A.R. 3.4 relief and then filed this petition under C.A.R. 21. Although C.A.R. 21 review is available for cases that demonstrate a compelling need, absent such a need C.A.R. 21 may not serve as a substitute for an adequate appellate remedy that a party simply fails to exercise. Second, the father can intervene in the pending dependency and neglect case and seek custody in that forum. Accordingly, we discharge the rule to show cause.
II. Facts and Procedural History
Some of the facts are undisputed. A.H. was born to mother A.P. and father G.H. while the two parents lived together. The couple was not married, and they separated shortly after their daughter was born. The father was not named on the birth certificate and did not acknowledge her as his child. During her first year, A.H. was in her mother's care. The father had little or no contact with A.H. and took no part in raising her. He was identified as A.H.'s father and ordered to pay child support as a result of a paternity action filed against him after the mother received public assistance for the care of A.H. Uncontroverted reports and testimony in the record indicate that the father never sought visitation or custody of A.H., and DHS's attempts to set up visitations with the father went unanswered. The mother testified that it was she who reinitiated contact between the father and A.H., sometime after he failed to acknowledge the child's first birthday.
Approximately two years after A.H.'s birth, DHS initiated an investigation into A.H.'s care. After an initial investigation, DHS filed a dependency and neglect petition in A.H.'s case based on allegations against the mother and independent allegations against the father. One day while the mother and A.H. were visiting the father's home, DHS arrived and took custody of A.H. The father contends that he had custody of A.H. when DHS removed her. The respondents dispute his claim, and the district court ruled against the father.
The trial court found that the mother admitted to two of the allegations in DHS's petition with respect to her. The father, in contrast, exercised his right to a jury trial as to the petition's four allegations against him. The first jury held in his favor on three allegations and did not reach a verdict on the fourth. The second jury returned a verdict for the father on the last claim. DHS moved for judgment notwithstanding the verdict, but the trial court denied that motion and dismissed the dependency and neglect petition against the father.
In an order dated October 1, 2008 ("the order"), the trial court found that the mother had custody of A.H. prior to DHS's intervention, found A.H. dependent and neglected with respect to the mother based on her two admissions, and therefore retained jurisdiction over A.H. and the mother. The order adopted concurrent permanency goals to return custody to the mother pending her completion of a treatment program, and to permanently place A.H. with her paternal grandparents through guardianship or permanent custody.
In the same order, the trial court dismissed the father from the proceedings for a lack of jurisdiction due to DHS's failure to prove that A.H. was dependent and neglected with respect to the father's conduct. The court also denied the father's request that it grant him custody of A.H., finding that parental custody was contrary to A.H.'s best interests. The trial court advised the father of two methods to assert any continued interest in A.H. First, the trial court stated that if the father wanted to request custody or visitation, he could intervene as a party to the proceedings and pursue relief through the filing of appropriate motions. In addition, both orally during the hearing and in its written order, the court stated that the order was final and appealable as to the father.
The father exercised neither of the options offered by the trial court; he did not seek custody or visitation through the trial court, and he also failed to appeal the trial court's decision by the established deadline. Instead, several months after missing the deadline to file for an appeal, he filed this petition for a writ of prohibition.
III. Analysis
The father offers no explanation for his failure to appeal the order. Instead, he supports his petition with three arguments. First, he asserts that, although he did nothing for over three months after the order, the expedited appeal procedure established by C.A.R. 3.4 was not timely enough to address his challenges to the trial court's order. Second, he questions whether the order was final and appealable. Third, he argues that the trial court lacked jurisdiction to make any custody determination regarding A.H. Rejecting the father's first two arguments, we determine that C.A.R. 21 relief is inappropriate in this case. We therefore decline to address the merits of the father's jurisdictional argument.
A. The father had an adequate remedy in C.A.R. 3.4's expedited appeal procedure.
C.A.R. 21 relief is limited to extraordinary circumstances where there is no other adequate remedy. See People v. Maestas, 199 P.3d 713, 716 (Colo. 2009) ("Relief under C.A.R. 21 is appropriate when an appellate remedy would not be adequate to rectify a serious abuse of discretion."); Pearson v. Dist. Court, 924 P.2d 512, 515 (Colo. 1996). It may also be appropriate where the trial court acts without or in excess of jurisdiction and there is no other adequate remedy. Halaby, McCrea, Cross v. Hoffman, 831 P.2d 902, 905 (Colo. 1992); People v. Gallagher, 194 Colo. 121, 123, 570 P.2d 236, 237-38 (1977).
This court established the expedited appeal process outlined in C.A.R. 3.4 specifically to address the timeliness of appeals in dependency and neglect cases. This was part of a nationwide effort to reduce the time children spent in foster care and improve the outcome for these vulnerable children. Several jurisdictions focused on the need to expedite appeals for child welfare cases. Laura Grzetic Eibsen Toni J. Gray, Dependency and Neglect Appeals Under C.A.R. 3.4, 36 Colo. Law. 55, 55-56 (Oct. 2007) (discussing the fact that Iowa and Utah both adopted expedited appeals processes shortly before Colorado); 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). In 1997, the General Assembly enacted section 19-1-109(3), which created a workgroup "to consider necessary changes . . . to ensure that appeals in cases concerning relinquishment, adoption, and dependency and neglect be resolved within six months after being filed. Ch. 254, sec. 7, § 19-1-109(3), 1997 Colo. Sess. Laws 1433.
Serious discussions regarding Colorado's interest in disposing of dependency and neglect appeals in a more timely fashion began in 2004, after the states of Iowa and Utah adopted expedited appeals processes in 2002 and 2004, respectively. Eibsen Gray, supra at 56-57; Ashby, supra at 48. A symposium was held in which Iowa's procedure was discussed and, afterward, several other organizations began to discuss the issue, including the Colorado Court Improvement Committee, the Colorado Bar Association ("CBA") Juvenile Law Section, the Colorado County Child Welfare Attorneys, the Colorado County Attorneys Association, the CBA Executive Council, and finally this court. Eibsen Gray, supra at 56. In 2005, this court adopted the expedited appeal process set forth in C.A.R. 3.4 to address the impact on families of appellate delay in dependency and neglect cases. C.A.R. 3.4 expedites the appellate procedure for these cases by reducing filing periods, streamlining the pleadings, and making the record more quickly and easily accessible. Eibsen Gray, supra at 55-58.
The father acknowledges that the expedited appeals process provided by C.A.R. 3.4 was available to him, but argues that the C.A.R. 3.4 appeals process was not adequate in his case because it is not swift enough. However, he gives no reasoning beyond that conclusory statement. He does not, for example, identify any circumstances that would distinguish his case from any other dependency and neglect case in order to justify circumventing the established procedure. His argument is further undermined by the fact that he not only failed to meet the filing deadline of C.A.R. 3.4, he waited over three months to file his C.A.R. 21 petition and yet does not assert any unusual or extenuating circumstances. Pursuant to C.A.R. 3.4's expedited filing requirements, the father's appeal would have been fully briefed within sixty-one days of the trial court's order. C.A.R. 3.4(b), (g), and (h). This entire period, plus another month, passed before the father chose to even begin the briefing period in this appeal by filing his C.A.R. 21 petition, with no explanation for the delay. No exigency was ever asserted or demonstrated despite the claim that swiftness was of the essence.
If we were to conclude that the C.A.R. 3.4 appellate process was not timely enough in this case — which on the facts presented appears no more urgent than all other dependency and neglect petitions — we would in effect be concluding that the expedited appellate procedure is never timely enough for a dependency and neglect case. Given that C.A.R. 3.4 was specifically established as an expedited procedure for dependency and neglect cases and has had a documented effect in reducing appellate periods, we conclude that it is an adequate remedy to address trial court determinations in dependency and neglect cases.
The average amount of time it takes a dependency and neglect filing to pass through the court of appeals, from the date of filing to a court of appeals mandate, has been reduced by 133 days — about four and a half months. Eibsen Gray, supra at 55.
This conclusion does not mean that C.A.R. 21 is never available in dependency and neglect adjudications. If a particular case presents a compelling need to bypass the ordinary appeal process, C.A.R. 21 review may be appropriate. However, a party must present specific facts demonstrating a compelling need. Simply asserting that a normal appeal would not be timely enough is inadequate to trigger C.A.R. 21 review. In the present case, the father had an adequate remedy available but chose not to utilize it. He makes no showing of immediacy or compelling need to bypass C.A.R. 3.4's expedited appeal process. Accordingly, C.A.R. 21 relief is inappropriate in the present case.
B. The order was final and appealable.
The father also argues that the trial court's order was not necessarily appealable under C.A.R. 3.4. However, section 19-1-109, C.R.S. (2008), specifically states that orders regarding a parent's legal relationship to a child, as well as adjudications of dependency and neglect, are final and appealable. § 19-1-109(2)(b) and (c). In addition to section 19-1-109(2), the trial court expressly stated that the order was appealable. During the hearing, while the trial court orally delivered its ruling, the father's counsel asked the judge whether the order was final at that time; the trial judge responded in the affirmative: "[a]bsolutely." The father's counsel acknowledged the answer, and then the judge immediately confirmed that this was "[a] classic appealable order." Moreover, the written order expressly stated that the judgment was final and appealable. Even if the trial judge had not explicitly told the father both orally and in writing that the order was final and appealable, the law as written by the General Assembly would have still applied and the order would have been ready for review. Accordingly, we conclude that the order was final and appealable and the father was aware, or at least should have been aware, of that fact.
C. Alternative Remedy
Although the father missed his opportunity to appeal the final order by failing to meet the filing deadline, we note that he is not without a remedy — he may still petition the trial court for visitation or custody of A.H., as he was instructed in the order he appeals from today. Should the father petition for custody of A.H., the trial court will make a determination based on the best interests of the child, as it did in the order at issue here. If the father again disagrees with the trial court's determination, he may appeal the decision via the established appeals process.
IV. Conclusion
We conclude that the expedited appeal procedure established in C.A.R. 3.4 adequately protects a parent's interest in a timely review of orders in dependency and neglect proceedings. We also conclude that, unless a party presents specific facts demonstrating that the expedited appeal process is inadequate in a particular case, C.A.R. 21 review is not available. Simply stating, without more, that a C.A.R. 3.4 appeal would not be timely enough does not suffice. In the present case, the father had an appropriate remedy to challenge the trial court's determinations but he neither chose to exercise his right to an expedited appeal nor offers any facts to indicate a compelling need to bypass that appeal process. Accordingly, we discharge the rule to show cause.
Justice MARTINEZ dissents, and Justice BENDER and Justice COATS join in the dissent.