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People ex rel. M.R.M.

Court of Appeals of Colorado, Second Division

January 25, 2018

The People of the State of Colorado, Petitioner-Appellee, In the Interest of M.R.M., M.M.M., and M.M.M., Children, and Concerning M.M.A., Respondent-Appellant.

          Garfield County District Court No. 16JV21 Honorable Denise K. Lynch, Judge

          Tari L. Williams, County Attorney, Heather K. Beattie, Assistant County Attorney, Glenwood Springs, Colorado, for Petitioner-Appellee

          Cassie L. Coleman and Luisa V. Berne, Guardians Ad Litem Debra W. Dodd, Berthoud, Colorado, for Respondent-Appellant

          WELLING, JUDGE

          ¶ 1 In this dependency and neglect proceeding, M.M.A. (mother) appeals from the order dismissing the dependency and neglect proceeding concerning M.R.M., M.M.M., and M.A.M. (the children). We conclude that the order from which mother seeks to appeal is not a final and appealable order, and that because her notice of appeal was not filed within twenty-one days after the entry of the order that was final and appealable, her appeal is untimely. Therefore, we dismiss the appeal.

         I. Background

         ¶ 2 In March 2016, the Garfield County Department of Human Services (the Department) sought and received temporary custody of eleven-year-old M.R.M., six-year-old M.M.M., and three-year-old M.A.M. based on concerns that the children had been exposed to drugs, violence in the home, and an injurious environment.

         ¶ 3 Shortly after the children were removed from mother's home, the Department filed a petition in dependency and neglect, naming mother and M.M. (father of M.R.M. and M.M.M., and stepfather to M.A.M.; hereafter father M.M.) as respondents. The Department acknowledged that father M.M. was not M.A.M.'s biological father and that J.H., a resident of Florida, was suspected to be her father. A caseworker contacted J.H. in Florida and learned that he had some mental health issues. The caseworker then discussed the situation with J.H.'s mother, who was his primary caretaker.

         ¶ 4 Although the court entered an order requiring genetic testing of J.H., and the Department said that it was "in the process of conducting a genetic test to determine paternity, " no genetic test results appear in the record, and J.H. was never determined to be M.A.M.'s father or named as a party to the case.

         ¶ 5 The court initially placed the children with their maternal grandmother. However, father M.M. moved from Florida to Colorado and sought custody of all three children soon after the case began. He said that he shared custody of the older two children with mother under a domestic relations order, and he asserted that he should have custody of M.A.M. because he was her psychological parent. The court placed the children with him, under the protective supervision of the Department, at the end of March.

         ¶ 6 In May, father M.M. entered into a stipulated agreement for continued adjudication under section 19-3-505(5), C.R.S. 2017, and the court adjudicated the children dependent and neglected with respect to mother after a trial. A division of this court affirmed the adjudication with respect to mother in People in Interest of M.R.M., (Colo.App. No. 16CA1845, Nov. 16, 2017) (not published pursuant to C.A.R. 35(e)).

         ¶ 7 The court adopted treatment plans for both mother and father M.M. But a few weeks after the court approved mother's plan, father M.M. moved to modify the existing order under which he shared custody of the children with mother and to dismiss the dependency and neglect case. In support of his request for custody of M.A.M., as well as the older two children, he submitted a letter asserting that he was M.A.M.'s father because he was the only father she had ever known, and that he was willing to take full responsibility for her.

         ¶ 8 In November, the juvenile court entered an order allocating parental responsibilities for all three children between father M.M. and mother (the APR order). The court made no findings as to whether J.H. or father M.M. was M.A.M.'s legal father. Instead, the court concluded that it had jurisdiction to allocate parental responsibilities regarding M.A.M. to father M.M. under section 14-10-123(1)(d), C.R.S. 2017, which provides that a proceeding concerning the allocation of parental responsibilities may be commenced by a person other than a parent who has been allocated parental responsibilities through a juvenile court order.

         ¶ 9 Approximately two weeks after the court entered the APR order, the court entered an order terminating its jurisdiction and closing the case. Mother now appeals from that order. II. Finality, Appealability, Timeliness, and Jurisdiction

         ¶ 10 "Unless a notice of appeal is timely filed, the court of appeals lacks jurisdiction to hear the appeal." People in Interest of A.J., 143 P.3d 1143, 1146 (Colo.App. 2006). Because an appellate court must satisfy itself that it has jurisdiction to hear an appeal, it may raise jurisdictional defects nostra sponte. People v. S.X.G., 2012 CO 5, ¶ 9. We asked the parties to file supplemental briefs addressing whether mother's appeal was timely. After reviewing their briefs, we conclude that the appealable order was the APR order; mother's notice of appeal was not timely with respect to that order; and, therefore, we lack jurisdiction to consider her appeal.

         ¶ 11 Ordinarily, a final order or judgment, for purposes of appeal, is one that ends the action, leaving nothing further to be done to determine the parties' rights. People in ...

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