C.A.R. 3.4

History

Source: Entire rule added February 10, 2005, effective March 1, 2005; (a), (b)(3), (d), (g)(3)(E), (g)(3)(F), (h)(3)(C), and (h)(3)(D) amended and effective November 9, 2006; (b)(1), (b)(2), (e)(4), (e)(5), (f), (g)(1), (g)(2), (h)(1), (h)(2), (j)(2), (k), and (l) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b); entire rule amended and adopted May 23, 2016, effective July 1, 2016 for cases filed on or after July 1, 2016; (e)(1) amended and adopted October 26, 2017, effective January 1, 2018; (l) amended and effective September 11, 2018; (l) amended February 24, 2022, effective July 1, 2022 (Rule Change 2022(05)). ANNOTATION Law reviews. For article, ‘‘Implementing C.A.R. 3.4 to Expedite Appeals in Dependency and Neglect Cases’’, see 34 Colo. Law. 47 (June 2005). For article, ‘‘Dependency and Neglect Appeals Under C.A.R. 3.4’’, see 36 Colo. Law. 55 (Oct. 2007). For article, ‘‘New ICW A Regu- lations Promote Tribal Sovereignty and Culture for Native American Children’’, see 46 Colo. Law. 41 (Apr. 2017). For article, ‘‘ICW A on Appeal: New Challenges and New Ap- proaches’’ see 49 Colo. Law. 8 (Jan. 2020). For article ‘‘Civil Interlocutory Appeals in Colorado State Courts’’, 49 Colo. Law. 38 (Oct. 2020). Court of appeals has jurisdiction to ad- dress the constitutionality of this rule as pro- mulgated by the Colorado supreme court. People ex rel. T.D., 140 P.3d 205 (Colo. App.), cert. denied, 549 U.S. 1020 and 549 U.S. 1024 (2006). Expedited procedure under this rule does not violate procedural due process because it benefits parents by quickly correcting decisions in which their rights were terminated errone- ously; benefits children, whose parents have had their rights terminated, by decreasing the time before they are either returned to their parents or permitted to be legally adopted; and furthers the state’s interest in protecting chil- dren. People ex rel. T.D., 140 P.3d 205 (Colo. App.), cert. denied, 549 U.S. 1020 and 549 U.S. 1024 (2006). Expedited process does not violate proce- dural due process by placing court of appeals in the role of an advocate on legal issues because it does not alter the court’s responsibil- ity to thoroughly examine the record on factual issues. People ex rel. T.D., 140 P.3d 205 (Colo. App.), cert. denied, 549 U.S. 1020 and 549 U.S. 1024 (2006). This rule sufficiently protects parents in dependency and neglect cases against the risk of an erroneous deprivation of their ap- pellate rights by (1) allowing appellate counsel for the parents a reasonable opportunity to re- view an unedited transcript and to raise possible issues for appeal, and (2) allowing the assigned division of the court of appeals to review the complete record and order supplemental brief- ing when appropriate. People ex rel. T.D., 140 P.3d 205 (Colo. App.), cert. denied, 549 U.S. 1020 and 549 U.S. 1024 (2006). This rule does not violate plaintiff’s consti- tutional right to equal protection because parents whose rights are terminated under article 5 of the Colorado Children’s Code are not similarly situated to parents whose rights are involuntarily terminated under article 3 of the code. This rule applies to parents subject to dependency and neglect proceedings under article 3 of the Colorado Children’s Code. As such, the proceedings focus primarily on the protection and safety of the children, not on the custodial interests of the parent. Further, such a proceeding can be initiated only by the state. People ex rel. T.D., 140 P.3d 205 (Colo. App.), cert. denied, 549 U.S. 1020 and 549 U.S. 1024 (2006). Fact finder’s ‘‘no adjudication’’ finding with respect to one party is not a proper basis for a motion notwithstanding the ver- dict and is not a final appealable order under section (a) of this rule or § 19-1-109 (2)(c). Statute provides that an order decreeing a child neglected or dependent is a final and appealable order. Father’s dismissal from the petition based on a jury verdict that the child was not depen- dent and neglected with respect to him is not subject to direct appeal under this rule. People in Interest of S.M-L, 2016 COA 173, 459 P.3d 572, aff’d sub nom. People in Interest of R.S., 2018 CO 31, 416 P.3d 905. Constitutional right to effective assistance of counsel is not violated because of a lack of a complete record because this rule provides access to an unedited transcript for preparation of the petition on appeal and an opportunity to identify the issues on appeal. People ex rel. T.D., 140 P.3d 205 (Colo. App.), cert. denied, 549 U.S. 1020 and 549 U.S. 1024 (2006). C.A.R. 2 permits an appellate court to ex- pedite decisions and order proceedings in ac- cordance with its direction even though this rule does not extend to permanent custody or- ders entered in dependency or neglect proceed- ings. People ex rel. K.A., 155 P.3d 558 (Colo. App. 2006). The plain language of section (a) shows that this rule does not apply to paternity actions. Because C.A.R. 4 does not list specific orders that are appealable, and in the absence of any limiting language, a judgment of paternity is subject to that rule. People in Interest of N.S., 2017 COA 8, 413 P.3d 172. The Colorado rules of civil procedure ap- ply and govern the appropriate methods of service in dependency and neglect cases be- cause neither the Colorado Children’s Code nor the Colorado rules of juvenile procedure ad- dress the method by which a trial court may serve orders on parties. People ex rel. S.M.A.M.A., 172 P.3d 958 (Colo. App. 2007). Three days must be added to the deadline for filing a notice of appeal pursuant to subsection (b) when the order appealed is served on the parties by delivery to attorney’s courthouse mailbox, which constitutes service by mail. People ex rel. S.M.A.M.A., 172 P.3d 958 (Colo. App. 2007). Appellant mother’s consent is a substan- tive condition precedent to a valid notice of appeal. Mother’s counsel was not empowered to file a notice of appeal without mother’s sig- nature or specific authorization, and her defec- tive notice did not invoke the court’s jurisdic- tion even overlooking the untimeliness of the notice. People ex rel. R.D., 259 P.3d 562 (Colo. App. 2011). In a dependency and neglect proceeding, an allocation of parental rights (APR) order is a final and appealable order under § 19-1- 104 (6). An appeal must be filed within twenty- one days of the APR order to be considered timely. People in Interest of M.R.M., 2021 COA 22, 484 P.3d 807. The language of subsection (b)(3) prohib- iting extensions of time does not preclude enlarging or suspending the deadline for fil- ing a notice of appeal for good cause. An appellate court remains empowered to extend or suspend deadlines based on a showing of good cause. People ex rel. A.J., 143 P.3d 1143 (Colo. App. 2006). Based on the ‘‘unique circumstances ex- ception’’, court of appeals has the authority to extend the deadline for filing the notice of appeal in a dependency and neglect case. The ‘‘no extensions’’ provision in section (b) does not preclude application of the unique circum- stances exception, because it is an exception to procedural rules limiting a court’s authority to grant exceptions. Here, the trial court must bear some responsibility for the late filing because of an ambiguous ruling and subsequent written orders. People ex rel. A.J.H, 134 P.3d 528 (Colo. App. 2006). Substitution of both parents’ counsel ap- propriate. Applying the criminal standard, there was good cause for the substitution of both parents’ counsel in dependency and ne- glect proceedings when the motions judge or- dered supplemental briefing on the issue in Anders v. California, 386 U.S. 738 (1967), and the substitution of mother’s counsel after the announcement of A.L.L. v. People, 226 P.3d 1054 (Colo. 2010). People ex rel. C.Z., 262 P.3d 895 (Colo. App. 2010). The good cause standard is the same standard recognized in criminal cases, not the standard for civil cases set forth in C.R.C.P. 121 § 1- 1(2)(b). People ex rel. C.Z., 262 P.3d 895 (Colo. App. 2010). Matter is moot where guardian ad litem (GAL) failed to offer facts in supplemental brief demonstrating a current basis to termi- nate mother’s parental rights. Although the GAL argued on appeal that the court improperly failed to terminate mother’s rights, the child has been returned to the mother and all parties be- lieved that the child should remain in the moth- er’s custody. A matter is moot when the relief sought, if granted, would have no practical legal effect on the existing controversy. People ex rel. L.O.L., 197 P.3d 291 (Colo. App. 2008). Rule 3.5. Appeals of Mental Health Orders Pursuant to § 27-65-114 (a) How Taken. Appeals from judgments, decrees, or orders in mental health proceed- ings under C.R.S. 16-8.5-112 and 27-65-111 must be in the manner and within the time prescribed by this rule. (b) Time for Appeal. (1) A notice of appeal and designation of transcripts must be filed with the clerk of the court of appeals with an advisory copy served on the clerk of the trial court within 21 days after the entry of the judgment, decree, or order. The trial court continues to have jurisdiction to hear and decide a motion under C.R.C.P. 59 regardless of the filing of a notice of appeal, provided the C.R.C.P. 59 motion is timely filed under C.R.C.P. 59(a) and determined within the time specified in C.R.C.P. 59(j). An order is entered within the meaning of this rule when it is entered pursuant to C.R.C.P. 58. If notice of the entry of judgment, decree, or order is transmitted to the parties by mail or E-Service, the time for the filing of the notice of appeal commences from the date of mailing or E-Service of the notice. (2) If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal and designation of transcripts within 7 days after the date on which the notice of appeal was filed or within the 21 days for the filing of the notice of appeal, whichever period last expires. (3) The time in which to file a notice of appeal or a notice of cross-appeal and the designation of transcripts will not be extended, except upon a showing of good cause pursuant to C.A.R. 2 and C.A.R. 26(b). (4) If subsequent orders regarding medication or certification are entered by the district court, counsel for appellant must, within 14 days after entry of the subsequent order, file an appropriate motion to amend the notice of appeal. (c) Contents of the Notice of Appeal. A notice of appeal and designation of tran- scripts must comply with C.A.R. 3(d). (d) Composition of the Record on Appeal. (1) The record on appeal must include the trial court file, including all exhibits. No designation of record is necessary for the trial court file or the exhibits. The record on appeal may also include any transcripts designated and ordered by any party pursuant to this rule. (2) The appellant and cross-appellant must properly serve the designation of tran- scripts on the other parties and the trial court’s managing court reporter at the time the notice of appeal is filed. (3) The designation of transcripts must set forth the dates of the proceedings for which transcripts are requested and the names of the court reporters, if applicable. (4) Within 7 days after service of any appellant’s designation of transcripts any appellee may complete and file a supplemental designation of transcripts with the clerk of the trial court and the clerk of the court of appeals and serve it on the other parties and the trial court’s managing court reporter. (5) The designating party or public entity responsible for the cost of transcription must make arrangements for payment with the managing court reporter within 7 days after serving the designation. Within 14 days after service of the designation of transcripts, the court reporter must file a statement with the clerk of the trial court and the clerk of the court of appeals indicating whether arrangements for payment have been made. (e) Transmission of Record. (1) Within 21 days after the filing of the notice of appeal and designation of tran- scripts, the record, composed as set forth in subsection (d), must be transmitted to the court of appeals in accordance with C.A.R. 10(c). (2) No extensions will be granted except in exceptional circumstances. (f) Opening Brief on Appeal. (1) Within 14 days after the record is filed, the appellant must file a brief. The appellant’s brief must be entitled ‘‘opening brief’’ and must contain the following under appropriate headings in the order indicated: (A) a caption in compliance with C.A.R. 32(d); (B) a certificate of compliance as required by C.A.R. 32(h); (C) a table of contents, with page references; (D) a table of authorities — cases (alphabetically arranged), statutes, and other au- thorities — with references to the pages of the brief where they are cited; (E) a statement of the issues presented for review; (F) a concise statement identifying the nature of the case, the relevant facts and procedural history, and the ruling, judgment, or order presented for review, with appropri- ate references to the record ( see C.A.R. 28(e)); (G) a summary of the arguments, which must: (i) contain a succinct, clear, and accurate statement of the arguments made in the body of the brief; (ii) articulate the major points of reasoning employed as to each issue presented for review; and (iii) not merely repeat the argument headings or issues presented for review; (H) the arguments, which must contain: (i) under a separate heading placed before the discussion of each issue, statements of the applicable standard of review with citation to authority, whether the issue was preserved, and if preserved, the precise location in the record where the issue was raised and where the court ruled; and (ii) appellant’s contentions and reasoning, with citations to the authorities and parts of the record on which the appellant relies; and (I) a short conclusion stating the precise relief sought. (2) No extensions will be granted except in exceptional circumstances. (3) The opening brief must contain no more than 7,500 words, excluding attachments and any addendum. A self-represented party who does not have access to a word- processing system must file a typewritten or legibly handwritten opening brief of not more than 25 double-spaced and single-sided pages. Such a brief must otherwise comply with this rule and C.A.R. 32. (g) Answer Brief on Appeal. (1) Within 14 days after service of the appellant’s opening brief, any appellee may file an answer brief that must be entitled ‘‘answer brief,’’ and any cross-appellant may file an opening/answer brief that must be entitled ‘‘cross-appeal opening/answer brief.’’ (2) The brief must conform to the requirements of C.A.R. 28(b) except that separate headings titled statement of the issues or of the case need not be included unless the appellee is dissatisfied with the appellant’s statement. For each issue, the answer brief must, under a separate heading placed before the discussion of the issue, state whether the appellee agrees with the appellant’s statements concerning the standard of review with citation to authority and preservation for appeal, and if not, why not. (3) No extensions will be granted except in exceptional circumstances. (4) The answer brief or cross-appeal opening/answer brief must contain no more than 7,500 words, excluding attachments and/or any addendum containing statutes, rules, regulations, etc. A self-represented party who does not have access to a word-processing system must file a typewritten or legibly handwritten brief of not more than 25 double- spaced and single-sided pages. Such a brief must otherwise comply with this rule and C.A.R. 32. (5) In cases involving more than one appellant and in which the appellee chooses to file an answer brief, the appellee must file a combined answer brief addressing the legal issues raised by all appellants. The combined answer brief must be filed within 14 days after service of the last opening brief filed and must contain no more than 9,500 words. (6) In cases involving more than one appellee, the court encourages coordination among appellees to avoid repetition within the answer briefs. A joint answer brief may, but is not required to, be filed by appellees. (h) Reply Brief. Within 7 days after service of the appellee’s answer brief, any appellant may file a reply brief, which must be entitled ‘‘reply brief,’’ in reply to the answer brief. A reply brief must comply with C.A.R. 28(c) and must contain no more than 5,700 words. A self-represented party who does not have access to a word-processing system must file a typewritten or legibly handwritten reply brief of not more than 19 double- spaced and single-sided pages. Such a brief must otherwise comply with this rule and C.A.R. 32. No further briefs may be filed except with leave of court. (i) Oral Argument. Oral argument will be allowed upon the written request of a party or upon the court’s own motion, unless the court, in its discretion, dispenses with oral argument. A request for oral argument must be made in a separate, appropriately titled document filed no later than 7 days after briefs are closed. Unless otherwise ordered, argument may not exceed 15 minutes for the appellant and 15 minutes for the appellee. (j) Advancement on the Docket. Appeals in mental health proceedings must be advanced on the calendar of the appellate courts and will be set for disposition at the earliest practical time. (k) Petition for Rehearing. A petition for rehearing in the form prescribed by C.A.R. 40(b) may be filed within 14 days after entry of judgment. The time in which to file the petition for rehearing will not be extended. (l) Petition for Writ of Certiorari. Review of the judgment of the court of appeals may be sought by filing a petition for writ of certiorari in the supreme court in accordance with C.A.R. 51. The petition must be filed within 14 days after the expiration of the time for filing a petition for rehearing or the date of denial of a petition for rehearing by the court of appeals. The filing of the petition results in an automatic stay of proceedings in the court of appeals. Any cross-petition or opposition brief to a petition for writ of certiorari must be filed within 14 days after the filing of the petition. No reply briefs are allowed. The petition for writ of certiorari, any cross-petition, and any opposition brief must be in the form prescribed by C.A.R. 53(a)-(c) and filed and served in accordance with C.A.R. 53(h). (m) Issuance of Mandate. The mandate must be in the form prescribed by C.A.R. 41(a) and will issue 29 days after entry of the judgment. The timely filing of a petition for rehearing will stay the mandate until the court of appeals has ruled on the petition. If the petition is denied, the mandate will issue 14 days after entry of the order denying the petition. The mandate may also be stayed in accordance with C.A.R. 41. (n) Filing and Service. All papers required or permitted by this rule must be filed and served in accordance with C.A.R. 25. (o) Computation and Extension of Time. Computation and extension of any time period prescribed by this rule must be in accordance with C.A.R. 26. Source: Entire rule adopted and effective March 23, 2023 (Rule Change 2023(05)).