in the Interest of L.B-H-P ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 21, 2021
2021COA5
No. 20CA0897, People in the Interest of L.B-H-P. — Juvenile
Court — Dependency and Neglect — Termination of the Parent-
Child Legal Relationship — Magistrates — Petition for Review
— Excusable Neglect
In this dependency and neglect proceeding, a magistrate
terminated the parent-child legal relationship between the mother
and the child. The mother sought juvenile court review of the
termination order, but the court denied her request because it was
untimely under section 19-1-108(5.5), C.R.S. 2020, and she did not
show that the late filing was the result of excusable neglect.
On appeal, a division of the court of appeals considers a novel
question in Colorado: When does a party’s counsel’s medical
condition or need for medical care constitute excusable neglect?
The division concludes that the party must show that counsel’s
condition or need for care was so disabling as to prevent counsel
from filing the petition or a request for an extension of time.
Because the mother did not meet that standard here, the division
affirms the juvenile court’s judgment.
COLORADO COURT OF APPEALS 2021COA5
Court of Appeals No. 20CA0897
Fremont County District Court No. 19JV6
Honorable Larry Dean Allen, Magistrate
The People of the State of Colorado,
Appellee,
In the Interest of L.B-H-P. a Child,
and Concerning B.B.,
Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE NAVARRO
Tow and Lipinsky, JJ., concur
Announced January 21, 2021
Brenda L. Jackson, City Attorney, Roger B. Larsen, Assistant City Attorney,
Cañon City, Colorado, for Appellee
Jenna Mazzucca, Guardian Ad Litem
Ainsley Bochniak, Office of Respondent Parents’ Counsel, Denver, Colorado, for
Appellant
¶1 In this dependency and neglect proceeding, a magistrate
terminated the parent-child legal relationship between B.B.
(mother) and L.B-H-P. (the child). Mother sought juvenile court
review of the termination order, but the juvenile court denied her
request because it was untimely under section 19-1-108(5.5),
C.R.S. 2020. Mother now appeals the juvenile court’s judgment
denying her request for review.
¶2 Colorado law makes clear that section 19-1-108(5.5) does not
limit the juvenile court’s jurisdiction to consider a petition for
review but sets forth “a procedural rule that creates a condition
precedent to the party’s right to appeal the magistrate’s order.” C.S.
v. People in Interest of I.S., 83 P.3d 627, 635 (Colo. 2004).
Therefore, a juvenile court retains jurisdiction to consider a late
petition for review and may do so if, in its discretion, the court finds
that the delay is the result of excusable neglect. See id. But we
must decide an unanswered question in Colorado: When does a
party’s counsel’s medical condition or need for medical care
constitute excusable neglect?
¶3 We conclude that the party must show that counsel’s
condition or need for care was so disabling as to prevent counsel
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from filing the petition or a request for an extension of time. Mother
did not meet that standard here. Therefore, we affirm the
judgment.
I. The Dependency and Neglect Case
¶4 In January 2019, the Fremont County Department of Human
Services initiated a dependency and neglect case and assumed
custody of the child, who was nearly one year old. According to the
Department, the child had been present during a domestic violence
altercation between her parents, mother had been arrested for
violating a protection order that prohibited her from having contact
with the child, and mother was using methamphetamine.
¶5 Based on mother’s admission, a magistrate adjudicated the
child dependent and neglected. The magistrate also adopted a
treatment plan for mother.
¶6 In August 2019, the Department moved to terminate the legal
relationship between mother and the child. Mother consented to
the magistrate’s hearing the termination motion. After a two-day
hearing held between November 2019 and January 2020, the
magistrate issued an order terminating mother’s parental rights in
late February 2020.
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¶7 Eleven days later, mother sought juvenile court review of the
magistrate’s termination order. Mother recognized that the request
for review was four days late but asked the court to find that she
had shown excusable neglect for the late filing. The court decided
that she had not shown excusable neglect and denied her petition
for review.
II. Review of Magistrate’s Order
¶8 Mother contends that the juvenile court erred by denying her
petition for review of the magistrate’s termination order. We
disagree. The juvenile court reasonably determined that mother did
not show that her late petition was the result of excusable neglect.
A. The Statutory Framework
¶9 The juvenile court has exclusive, original jurisdiction in
proceedings to terminate the parent-child legal relationship.
§ 19-1-104(d), C.R.S. 2020. The juvenile court may delegate its
authority to hear such proceedings to magistrates. § 19-1-108(1).
In a case heard by a magistrate, the parties are bound by the
magistrate’s findings and recommendations, subject to requesting
review by the juvenile court. § 19-1-108(3)(a.5).
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¶ 10 A request for juvenile court review is a prerequisite to an
appeal to this court or to our supreme court. § 19-1-108(5.5). In
dependency and neglect proceedings, the request for review must be
filed within seven days of the magistrate’s order. Id.
B. Excusable Neglect
1. The Legal Standard
¶ 11 As noted, our supreme court has held that a juvenile court
has jurisdiction to consider a late petition for review in dependency
and neglect cases. See C.S., 83 P.3d at 635. The supreme court
recognized that a juvenile court has discretion to consider a late
petition when the delay is the result of excusable neglect. Id.
¶ 12 Excusable neglect for filing a late petition for juvenile court
review exists in “a situation where the failure to act results from
circumstances which would cause a reasonably careful person to
neglect a duty.” People in Interest of M.A.M., 167 P.3d 169, 172
(Colo. App. 2007) (citation omitted); see also P.H. v. People in
Interest of S.H., 814 P.2d 909, 912-13 (Colo. 1991). In other words,
to establish excusable neglect, the circumstances must show that
“there has been a failure to take proper steps at the proper time,
not in consequence of carelessness, but as the result of some
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unavoidable hindrance or accident.” People in Interest of A.J., 143
P.3d 1143, 1146 (Colo. App. 2006) (citation omitted).
¶ 13 In exercising its discretion to entertain a late petition, the
juvenile court should take into account not only the reasons for the
delay but also the child’s need for finality in the proceedings. C.S.,
83 P.3d at 635. A court abuses its discretion when its ruling is
manifestly arbitrary, unfair, or unreasonable. People in Interest of
C.Y., 2018 COA 50, ¶ 13.
2. The Reason for the Late Petition
¶ 14 Here, mother’s counsel offered two reasons for the late filing of
the petition. Counsel asserted that she
• had initially operated under the mistaken belief that the
deadline for seeking review was fourteen days because that is
the timeframe for other proceedings subject to the Children’s
Code; and
• did not have a meaningful opportunity to file the petition
within the prescribed seven-day period because she had to
attend three medical appointments related to her high-risk
pregnancy as well as represent another client in a termination
hearing lasting a day and a half.
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3. Misunderstanding of the Timeframe
¶ 15 As the juvenile court recognized, a counsel’s failure to act
because of carelessness and negligence is not excusable neglect.
See Colo. Dep’t of Pub. Health & Env’t v. Caulk, 969 P.2d 804, 809
(Colo. App. 1998). Thus, absent unusual circumstances, an
attorney’s negligence in failing to meet a deadline does not
constitute excusable neglect. See A.J., 143 P.3d at 1147.
¶ 16 To be sure, section 19-1-108(5.5) lays out different deadlines
for seeking review of a magistrate’s order. A party has fourteen
days to request review in delinquency, paternity, and support
proceedings, instead of the seven days to request review in a
dependency and neglect proceeding. § 19-1-108(5.5). Still, the
existence of the different deadlines is not an unusual circumstance
that would cause a reasonably careful person to neglect a duty.
4. Counsel’s Medical Condition and Other Commitments
¶ 17 We do not minimize the significance of counsel’s need for
medical care for a high-risk pregnancy. But counsel’s medical
condition does not automatically constitute an excuse for neglect.
Maroc Fruit Bd. S.A. v. M/V VINSON, 285 F.R.D. 181, 183 (D. Mass.
2012). We agree with the juvenile court’s observation that, if the
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constraints imposed by counsel’s personal commitments impeded
her ability to file a petition for review, counsel could have remedied
the situation by seeking an extension of time to file the petition.
¶ 18 Thus, to constitute excusable neglect, counsel’s medical
condition or need for medical care must have been so physically or
mentally disabling as to render counsel unable to file the requested
relief or at least seek an extension of time. See United States v.
Ruth, 753 F. Supp. 897, 898 (D. Kan. 1990); see also Islamic
Republic of Iran v. Boeing Co., 739 F.2d 464, 465 (9th Cir. 1984).
Stated differently, excusable neglect arises when counsel’s
condition actually disables counsel from timely compliance with a
statute or a rule of procedure. Minick v. City of Petaluma, 207 Cal.
Rptr. 3d 350, 363 (Cal. Ct. App. 2016).
¶ 19 Mother’s counsel made no showing that her high-risk
pregnancy and corresponding need for medical care was so
disabling as to prevent her from at least filing a request for an
extension of time to seek review of the magistrate’s order. On the
contrary, counsel’s participation in a day-and-a-half hearing in
another case during the relevant period refutes the notion that she
was physically or mentally unable to file such a request.
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¶ 20 Moreover, because “the press of work or other activities of an
attorney do not constitute excusable neglect,” counsel’s need to
participate in the other case was insufficient to establish excusable
neglect. Bosworth Data Servs., Inc. v. Gloss, 41 Colo. App. 530,
531, 587 P.2d 1201, 1203 (1978).
¶ 21 Accordingly, the juvenile court did not abuse its discretion
when it determined that mother had not established that the delay
in filing the petition was the result of excusable neglect.1 In
addition, the court reasonably found that “mother has not shown
excusable neglect while the child’s need for finality continues, if not
increases, with each delay.” See C.S., 83 P.3d at 635.
¶ 22 Finally, to the extent mother contends that the juvenile court
should have also considered whether good cause exists to accept
the late petition for review, we decline to review that contention.
Mother did not assert in the juvenile court that such good cause
exists, nor does she explain on appeal why the factors relevant to a
good cause determination weigh in favor of considering the late
filing. See People in Interest of M.B., 2020 COA 13, ¶ 14 (“[L]ike
1 Mother does not allege that she received ineffective assistance
from her counsel in the juvenile court.
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other civil actions, dependency and neglect proceedings are subject
to the limitation that except where jurisdiction is implicated,
generally appellate courts review only issues presented to and ruled
on by the lower court.”); M.A.M., 167 P.3d at 174 (discussing good
cause factors a district court should consider after deciding that
counsel’s acts or omissions were inexcusable).2
III. Remaining Contentions
¶ 23 We do not consider mother’s challenges to the magistrate’s
decision because that decision is not properly before us. See People
in Interest of A.P.H., 2020 COA 159, ¶ 19 (“[W]e lack jurisdiction to
review the magistrate’s order directly because the district court
didn’t review it.”).
IV. Conclusion
¶ 24 The judgment is affirmed.
JUDGE TOW and JUDGE LIPINSKY concur.
2 The division in People in Interest of M.A.M., 167 P.3d 169, 174
(Colo. App. 2007), held a district court should consider whether
good cause exists to consider a juvenile’s untimely petition for
review of a magistrate’s judgment of delinquency. Because the
issue is not properly presented, we express no opinion on whether a
court may accept, upon good cause shown, a late petition for review
of a magistrate’s decision to terminate parental rights.
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