in Interest of M.R.M , 2021 COA 22 ( 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
February 25, 2021
2021COA22
No. 17CA0255, People in Interest of M.R.M. — Juvenile Court —
Dependency and Neglect — Appeals — Final Appealable Order
In this dependency and neglect proceeding, mother appeals
from the order dismissing the dependency and neglect proceeding
concerning her children. In an earlier opinion, a division of the
court of appeals concluded that the order from which mother
sought to appeal wasn’t 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 was untimely. See People in the Interest of M.R.M., 2018
COA 10. The division, therefore, dismissed mother’s appeal.
The supreme court granted mother’s petition for writ of
certiorari, the vacated the division’s judgment, and remanded the
case for the division to reconsider the case in light of its holding in
People in the Interest of R.S., 2018 CO 31.
After reconsidering of mother’s appeal in light of People in the
Interest of R.S., the division concludes that the allocation of
parental responsibilities (APR) order was the final appealable order
in mother’s proceeding — not the order terminating the juvenile
court’s jurisdiction. And because mother’s notice of appeal was
filed more than twenty-one days after the entry of the APR order,
the division concludes that her appeal was untimely and that it,
therefore, lacks jurisdiction to consider the appeal. Accordingly, the
division dismisses the appeal for lack of jurisdiction
COLORADO COURT OF APPEALS 2021COA22
Court of Appeals No. 17CA0255
Garfield County District Court No. 16JV21
Honorable Denise K. Lynch, Judge
The People of the State of Colorado,
Appellee,
In the Interest of M.R.M., M.M.M., and M.A.M., Children,
and Concerning M.M.A.,
Appellant.
APPEAL DISMISSED
Division II
Opinion by JUDGE WELLING
Dailey and Hawthorne*, JJ., concur
Announced February 25, 2021
Tari L. Williams, County Attorney, Heather K. Beattie, Assistant County
Attorney, Glenwood Springs, Colorado, for Appellee
Cassie L. Coleman, Luisa Berne, Guardians Ad Litem
Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for
Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 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). In our original opinion on this case, we
concluded that the order from which mother seeks to appeal wasn’t
a final and appealable order and that, because her notice of appeal
wasn’t filed within twenty-one days after the entry of the order that
was final and appealable, her appeal was untimely. See People in
Interest of M.R.M., 2018 COA 10 (M.R.M. I). We dismissed mother’s
appeal. Id. at ¶ 1.
¶2 The supreme court granted mother’s petition for writ of
certiorari, vacated our judgment, and remanded the case to us for
reconsideration in light of its holding in People in Interest of R.S.,
2018 CO 31. See M.M.A. v. People in Interest of M.R.M., (Colo. No.
18SC101, May 21, 2018) (unpublished order). Specifically, the
supreme court asked us to address
[w]hether a juvenile court’s order terminating
its jurisdiction is a final and appealable order
from which an appeal may be taken; or
whether an order allocating parental
responsibilities automatically terminates the
juvenile court’s jurisdiction such that the APR
order is the only order from which an appeal
may be taken after entry of the allocation
order.
1
Id. The parties submitted supplemental briefs concerning R.S. and
its effect on the issue at hand.
¶3 After reconsideration of mother’s appeal in light of People in
Interest of R.S., we conclude that the allocation of parental
responsibilities (APR) order was the final, appealable order in
mother’s proceeding — not the order terminating the juvenile
court’s jurisdiction. Because mother’s notice of appeal was filed
more than twenty-one days after the entry of the APR order, her
appeal was untimely and, accordingly, we lack jurisdiction to hear
the appeal. Therefore, we dismiss the appeal.
I. Background
¶4 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.
¶5 Shortly after the children were removed from mother’s home,
the Department filed a petition in dependency and neglect, naming
mother and M.M., who is the father of M.R.M. and M.M.M., and
stepfather to M.A.M. (hereinafter father M.M.), as respondents. The
2
Department acknowledged that father M.M. wasn’t 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 he had mental health issues. The caseworker then
discussed the situation with J.H.’s mother, who was his primary
caretaker.
¶6 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.
¶7 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 two older
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.
3
¶8 In May, father M.M. entered into a stipulated agreement for
continued adjudication under section 19-3-505(5), C.R.S. 2020, 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)).
¶9 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.
¶ 10 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
4
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. 2020, 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.
¶ 11 Approximately two weeks after the court entered the APR
order, the court entered an order terminating its jurisdiction and
closing the case. Mother appealed from that order and the history
of that appeal is discussed supra. Applying R.S. to mother’s appeal,
we reaffirm our prior holding that the APR order is the final,
appealable order from which an appellant has twenty-one days to
file a notice of appeal for the request to be timely.
II. Finality and Appealability
¶ 12 Mother argues the APR order wasn’t final and appealable for
five reasons. First, she contends that the APR order can’t be
deemed a final, appealable order because the juvenile court didn’t
have jurisdiction under section 19-1-104(6), C.R.S. 2020. Second,
she argues that the juvenile court didn’t have jurisdiction to enter
the APR order under section 19-4-130(1), C.R.S. 2020. Third, she
5
argues that the APR order wasn’t final or appealable because it
didn’t fully resolve M.A.M.’s paternity. Fourth, she argues that the
APR order wasn’t final because it was subject to revision. Fifth, she
contends that the APR order wasn’t final because when it was
entered there were still other unresolved issues in the dependency
and neglect proceeding.
A. Law
¶ 13 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 Interest of O.C., 2012 COA
161, ¶ 8, aff’d, 2013 CO 56.
¶ 14 Under section 19-1-109(1), C.R.S. 2020, of the Children’s
Code, “an appeal as provided in the introductory portion to section
13-4-102(1), C.R.S. [2020], may be taken from any order, decree, or
judgment.” Section 13-4-102(1) provides that the court of appeals
may review the “final judgments” of district courts, including
juvenile courts. In R.S., the supreme court confirmed that “section
19-1-109(1) of the Colorado Children’s Code authorizes appeals in
dependency or neglect proceedings from ‘any order’ that qualifies as
a ‘final judgment’ for purposes of section 13-4-102(1).” R.S., ¶ 3.
6
¶ 15 Subsections 19-1-109(2)(b) and (2)(c) further authorize appeals
of “order[s] terminating or refusing to terminate the legal
relationship between a parent or parents and one or more of the
children of such parent or parents on a petition, or between a child
and one or both parents of the child,” and “order[s] decreeing a
child to be neglected or dependent . . . after the entry of the
disposition pursuant to section 19-3-508.”
¶ 16 To determine “whether an order is final for purposes of appeal,
we generally ask ‘whether the action of the court constitutes a final
determination of the rights of the parties in the action.’” R.S., ¶ 37
(quoting Cyr v. Dist. Ct., 685 P.2d 769, 770 (Colo. 1984)).
¶ 17 In R.S., the supreme court construed subsections 19-1-
109(2)(b) and (2)(c) in conjunction with subsection 19-1-109(1) as
“authoriz[ing] appeals from certain additional orders beyond those
authorized by subsection (1).” Id. at ¶ 19. That is, “subsection (1)
codifies a general rule of finality, and subsection[s] (2)(b) and (2)(c)
provide certain exceptions to that general rule by authorizing the
appeal of certain orders from dependency or neglect proceedings
that would not otherwise be considered final.” Id. at ¶ 20.
7
B. Jurisdiction Under Section 19-1-104(6)
¶ 18 Subsection 19-1-104(6) authorizes a juvenile court to enter an
APR order for a child who is the subject of a dependency and
neglect proceeding if requested to do so by a party to the case and if
no child custody action concerning the same child is pending in a
district court. Section 19-1-104(6) further provides that, following
the entry of such an order, the court shall file a certified copy of the
order in the county where the child permanently resides, and,
thereafter, such order “shall be treated in the district court as any
other decree issued in a proceeding concerning the allocation of
parental responsibilities.”
¶ 19 Thus, by entering an APR order as authorized by section 19-1-
104(6) and ordering that a copy of the order be filed in the district
court of the county where the child is to reside, the juvenile court
ends the dependency and neglect proceeding and transfers
jurisdiction over the child to the district court. That is, an APR
order determines the rights of the parties and ends the proceeding.
See R.S., ¶¶ 36-38. Such an APR order is final and appealable. See
People in Interest of E.C., 259 P.3d 1272, 1276 (Colo. App. 2010)
(entry of permanency planning order allocating parental
8
responsibilities to aunt, followed by transfer of jurisdiction to the
district court, ended the dependency and neglect proceedings; thus,
the permanency planning order was a final and appealable order);
see also C.A.R. 3.4(a) (expressly recognizing an order allocating
parental responsibilities pursuant to section 19-1-104(6) as an
appealable order).
¶ 20 Mother contends that the APR order can’t be deemed a final,
appealable order because the juvenile court didn’t have jurisdiction
to make the findings needed to grant APR to a nonparent and,
indeed, didn’t have jurisdiction to enter an APR order at all for
M.A.M. She argues that because the court hadn’t adjudicated
M.A.M. dependent and neglected with respect to her father, J.H.,
and the adjudication of the two older children with respect to father
M.M. was still in “deferred” status, the APR order was invalid.
¶ 21 However, the question before us isn’t whether the court had
jurisdiction to enter the order, but, rather, whether the order was
final and appealable. Even an order entered without jurisdiction
may be a final, appealable order if it ends the action, leaving
nothing further to be done to determine the rights of the parties.
See, e.g., People in Interest of S.T., 2015 COA 147 (appeal from APR
9
order entered after trial court found that the allegations of
dependency and neglect petition weren’t proven as to one parent;
order vacated for lack of subject matter jurisdiction).
¶ 22 Under R.S., E.C., and C.A.R. 3.4(a), an APR order entered
under subsection 19-1-104(6) is final and appealable. And because
mother didn’t file a timely appeal from that order, we must dismiss
the appeal.
C. Jurisdiction Under Section 19-4-130(1)
¶ 23 Citing S.T., mother also contends that “without commencing a
paternity action, the juvenile court did not have independent
jurisdiction under the Uniform Parentage Act to enter an order
allocating parental responsibilities.” Here, too, we note that the
issue before us isn’t whether the court had jurisdiction to enter an
APR order, but whether the APR order under the circumstances of
this case was final and appealable, and whether mother filed a
timely appeal from that order. Having concluded that the APR
order was final and appealable, and that mother’s appeal wasn’t
timely, our inquiry is at an end because we lack appellate
jurisdiction. And this is so even when, as here, the issue being
raised on appeal is a challenge to the subject matter jurisdiction of
10
the trial court. Cf. Garcia v. Kubosh, 377 S.W.3d 89, 107 n.41 (Tex.
App. 2012) (“And when a party attempts to challenge a judgment or
order but fails to timely file a notice of appeal, we generally dismiss
the appeal for lack of appellate jurisdiction regardless of whether
the appeal involves a challenge to the trial court’s subject matter
jurisdiction.”).
D. Paternity and Finality
¶ 24 Mother argues that the APR order wasn’t a final, appealable
order because it didn’t fully resolve the rights and liabilities of the
parties as to paternity, support, and parental responsibilities with
respect to M.A.M. We disagree.
1. Legal Principles
¶ 25 Under the Uniform Parentage Act (UPA), sections 19-4-101
to -130, C.R.S. 2020, a man is presumed to be the natural father of
a child if, as relevant here, “genetic tests or other tests of inherited
characteristics have been administered . . . and the results show
that the alleged father is not excluded as the probable father and
that the probability of his parentage is ninety-seven percent or
higher.” § 19-4-105(1)(f), C.R.S. 2020. A presumption of paternity
may arise under other circumstances as well, as provided by
11
section 19-4-105(1)(a)-(e). For example, a presumption of paternity
arises if, while the child is under the age of majority, a man receives
a child into his home and openly holds out the child as his natural
child. § 19-4-105(1)(d).
¶ 26 If two or more presumptions of paternity arise which conflict
with each other, and none has been rebutted by clear and
convincing evidence, “the presumption which on the facts is
founded on the weightier considerations of policy and logic
controls.” § 19-4-105(2)(a); People in Interest of J.G.C., 2013 COA
171, ¶ 22.
¶ 27 Section 19-4-107, C.R.S. 2020, addresses who may bring an
action under the UPA, for what purpose, and when. As relevant
here, a child’s natural mother may bring an action to determine the
existence of the father and child relationship even if the child has
no presumed father. See § 19-4-107(3).
¶ 28 If a paternity issue arises in a dependency and neglect
proceeding, a paternity action may be joined with the dependency
and neglect proceeding to resolve the issue. J.G.C., ¶ 10. In that
situation, the juvenile court must follow the procedures outlined in
the UPA, as its failure to do so will deprive the court of subject
12
matter jurisdiction to decide paternity. Id. at ¶ 11. As relevant
here, the UPA provides that each man presumed to be the father of
a child and each man alleged to be the natural father must be made
a party to the paternity proceeding, or, if not subject to the personal
jurisdiction of the court, must be given notice of the action and an
opportunity to be heard. § 19-4-110, C.R.S. 2020; J.G.S., ¶ 12.
2. Efforts to Determine M.A.M.’s Paternity
¶ 29 As an initial matter, we note that M.A.M. had no presumed
father. Although mother alleged that J.H. was M.A.M.’s biological
father, and there are indications in the record that J.H. had actual
notice of the dependency and neglect proceeding through
communications with the caseworker, he didn’t appear in the case;
he didn’t seek a relationship with the child; and his biological
relationship to the child was never established. Thus, at all times
relevant to this proceeding, J.H. was simply an “alleged father” of
the child, not a presumed father under the UPA. Nor was father
M.M. a presumed father. Although he asserted that he was
M.A.M.’s psychological father, he never claimed to have held her out
as his own or that he was otherwise entitled to the status of
“presumptive father.” Thus, there was no need for a paternity
13
proceeding to determine which of two presumptive fathers should
be recognized as the child’s legal father.
¶ 30 Of course, a paternity proceeding may be initiated for
purposes other than making a choice between two (or more)
presumptive fathers. In this case, the Department’s Child Support
Services Unit had opened a case in 2015 to determine the paternity
of all three children. The court determined that father M.M. was
the oldest children’s father, but not M.A.M.’s father. In that case,
too, J.H. didn’t cooperate in taking a genetic test to determine
whether he was the child’s father despite the fact he was “made
aware” of the proceeding. Eventually the court dismissed the 2015
paternity case with respect to M.A.M.
¶ 31 In October 2016, in a renewed attempt to resolve the problem
of M.A.M.’s paternity, the Department filed a petition to determine
whether J.H. was her father. But the Department quickly withdrew
the petition after concluding that the court didn’t have personal
jurisdiction over J.H.
¶ 32 A few days after the Department withdrew the petition to
determine M.A.M.’s paternity, the juvenile court entered the APR
order. Thus, the question of M.A.M.’s paternity was never resolved.
14
3. R.S., Finality, and Appealability
¶ 33 The supreme court addressed whether the dismissal of a
single parent from a petition in dependency or neglect based on a
jury verdict is a final, appealable order. R.S., ¶¶ 2-3. The court
first concluded that, generally, section 19-1-109(1) authorizes the
appeal from any order that is a “final determination” under section
13-4-102(1) — that is, any order that is a final determination of the
rights of the parties or that ends the action. See id. at ¶ 37 (quoting
Cyr, 685 P.2d at 770). And it held that subsections 19-1-109(2)(b)
and (2)(c) are two exceptions to this general rule established in
section 19-1-109(1).
¶ 34 Applying this holding, the supreme court concluded that the
order dismissing father M.M. from the petition in dependency and
neglect wasn’t final because it “was not ‘a final determination of the
rights’ of all of the parties to the action, nor did it ‘end[] the
particular action in which it [was] entered.” Id. at ¶ 38 (quoting
Cyr, 685 P.2d at 770). Rather, “after entering the order dismissing
[father M.M.], the [juvenile] court adjudicated R.S. as dependent or
neglected (‘in regard to’ Mother)” and the “court thus continued to
exercise jurisdiction over the child and Mother, adopted a treatment
15
plan for Mother, and ordered the case to proceed with Mother
maintaining custody of [the child] under the Department’s
supervision.” Id. Accordingly, the court held, this order didn’t meet
section 19-1-109(1)’s general rule for finality and appealability.
¶ 35 Under section 19-1-109, in a dependency and neglect
proceeding, a post-dispositional order that neither terminates
parental rights nor declines to terminate them generally doesn’t end
the proceeding and isn’t deemed a final, appealable order. See, e.g.,
E.O. v. People, 854 P.2d 797, 801 (Colo. 1993) (order approving
permanency plan that didn’t effectuate any change in permanent
custody or guardianship or terminate parental rights held not final
and appealable; order expressly contemplated further court
proceedings).
4. Finality of the APR Order
¶ 36 Invoking C.R.C.P. 54(b), mother argues that the APR order
wasn’t final because it didn’t fully resolve the rights and liabilities of
all of the parties. But, insofar as she contends that the order didn’t
fully resolve her own rights and liabilities, she doesn’t explain what
was left to be decided in an order that addressed her rights to
visitation, parenting time, and other matters relevant to the APR
16
between her and father M.M. Nor did she attempt to initiate a
paternity proceeding herself, as she might have done under section
19-4-107, if she believed that resolving the issue of M.A.M.’s
paternity was necessary to protect her rights.
¶ 37 Mother also contends that the order didn’t resolve the rights
and liabilities of J.H., the “alleged father” of M.A.M. Rule 54(b),
however, refers to the rights and liabilities of “parties,” and J.H.
wasn’t a party. Although J.H. was identified as the alleged father of
one of the children, he wasn’t ever served with a summons and the
juvenile court never obtained personal jurisdiction over him. And
because J.H. wasn’t a party, whether there were outstanding issues
related to him doesn’t affect finality under Rule 54(b).
E. Possibility of Revision
¶ 38 Mother argues that the APR order wasn’t final because it was
subject to revision. However, once the juvenile court entered the
APR order and directed that it should be certified to the district
court, jurisdiction to modify the order under sections 14-10-129
and 14-10-131, C.R.S. 2020, was transferred to the district court,
leaving nothing further for the juvenile court to do. See § 19-1-
104(6). In addition, we note that, under sections 14-10-129 and
17
14-10-131, all orders concerning parenting time and
decision-making responsibility may be modified if a sufficient
showing is made that circumstances warrant a change.
Nevertheless, APR orders are considered final and appealable, as
recognized by C.A.R. 3.4(a). See also R.S., ¶ 29.
F. Unresolved Issues in the Dependency and Neglect Proceeding
¶ 39 Mother contends that the APR order wasn’t final because when
it was entered the paternity summons for J.H. was still
outstanding, father M.M.’s deferred adjudication hadn’t been
addressed, and the court hadn’t dismissed the case. We aren’t
persuaded.
¶ 40 As discussed above, we conclude that under section 19-1-
104(6), the entry of the APR order ended the dependency and
neglect proceeding and transferred jurisdiction over the allocation of
parental responsibilities to the district court. Therefore, there was
no longer any need to address father M.M.’s deferred adjudication.
Nor was there any need to enter an additional order to dismiss the
case where the APR order served as the case-ending order.
¶ 41 As for the paternity summons, the record doesn’t reveal
whether it was outstanding when the court entered the APR order,
18
as mother asserts. But, even if it was, mother cites no authority for
the proposition that the existence of an outstanding summons is
sufficient to prevent the court from closing the case in which the
summons was issued, and we are aware of no such authority.
III. Timeliness
¶ 42 “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 like untimeliness nostra sponte. People
v. S.X.G., 2012 CO 5, ¶ 9.
¶ 43 Once a final and appealable judgment, decree, or order has
been entered in a dependency and neglect proceeding, a party who
wishes to appeal must file a notice of appeal within twenty-one
days. C.A.R. 3.4(b)(1).
¶ 44 Here, the juvenile court entered an APR order, and ordered
that the APR order be certified into an existing custody proceeding
in the district court as to the older two children and certified into a
new domestic relations case as to the youngest child. Under R.S.
19
and E.C., the APR order was appealable. However, mother didn’t
appeal from that order.
¶ 45 After the court entered the APR order, the Department moved
to terminate the jurisdiction of the juvenile court and close the
dependency and neglect case. The Department reported that the
APR order had been certified into the existing domestic relations
case as to the older two children, and into a new domestic relations
case as to the youngest child, as the court had directed. The
Department argued that there were no further child welfare issues
in the dependency and neglect proceeding that required
intervention by the court, and that it was in the children’s best
interests that the court terminate its jurisdiction and close the case.
The court agreed and entered an order that purportedly terminated
its jurisdiction and closed the dependency and neglect case. That is
the order from which mother appeals.
¶ 46 Because mother’s notice of appeal was filed more than
twenty-one days after the entry of the APR order, we conclude that
her appeal was untimely, and that, accordingly, we lack jurisdiction
to hear the appeal. However, mother argues that the juvenile
court’s order terminating its jurisdiction was the final, appealable
20
order from which she had twenty-one days to file a notice of appeal
because it closed the dependency and neglect proceeding and ended
the jurisdiction of the juvenile court. Further, she contends that
section 19-1-109 is evidence of the legislature’s intent to expand
appellate rights, rather than limit them, and thus the termination
order is final and appealable. Consequently, she argues that her
notice of appeal was timely because it was filed within twenty-one
days of the juvenile court’s entry of the termination order.
Therefore, we have jurisdiction over her appeal and must address
the merits of her contentions.
¶ 47 After review of the supreme court’s opinion in R.S., we
conclude that that the APR order was final and appealable under
section 19-1-109(1) because it resolved the issue at hand — the
parental responsibilities of mother’s three children — and ended the
dependency and neglect proceeding and transferred jurisdiction
over the children to the district court. Thus, the juvenile court’s
order terminating its jurisdiction is superfluous. Mother’s appeal
was untimely because she didn’t file her notice of appeal within
twenty-one days of the juvenile court’s entry of the APR order.
21
Thus, we lack jurisdiction over her appeal and must dismiss the
case.
IV. Indian Child Welfare Act
¶ 48 Mother raises an issue as to whether the Department and the
juvenile court complied with the provisions of the Indian Child
Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and applicable
Bureau of Indian Affairs regulations and guidelines for
implementing ICWA after she asserted that she had Indian heritage.
She contends that the Department failed to comply with ICWA when
it failed to investigate or send notices to tribes after she and the
children’s maternal grandmother stated that mother had a tribal
affiliation and the children’s great-grandmother had been enrolled
in an Indian tribe. The parties disagree as to whether we can
address this issue notwithstanding our determination that the
appeal is untimely. We conclude that we can’t. The untimeliness of
the appeal deprives us of jurisdiction as to all of the issues raised in
mother’s appeal, including the ICWA issues.
¶ 49 However, we note that under 25 U.S.C. § 1914, a parent “may
petition any court of competent jurisdiction” to invalidate an action
for foster care placement or termination of parental rights upon a
22
showing that such action violated any of several sections of ICWA,
including section 1912, concerning notice to tribes. And, in People
in Interest of K.G., 2017 COA 153, ¶¶ 12-18, a division of this court
concluded that in some circumstances a proceeding to allocate
parental responsibilities is a child custody proceeding covered by
ICWA. Thus, mother may be able to raise the issue of ICWA
compliance in the juvenile court. But the availability of such a
collateral attack on the APR order in the juvenile court doesn’t vest
us with jurisdiction to address the ICWA issue in the first instance
as part of this appeal.
V. Conclusion
¶ 50 The appeal is dismissed with prejudice.
JUDGE DAILEY and JUDGE HAWTHORNE concur.
23