Department of Health & Welfare v. Doe I ( 2009 )

W. JONES, Justice.

I.NATURE OF CASE

John Doe I (Appellant) appeals the decision of Magistrate Judge Griffin of the Third Judicial District to terminate Appellant’s parental rights to his son, John Doe (Doe). Because we do not have jurisdiction to hear this case, we decline to review Appellant’s claims on the merits.

II.FACTUAL AND PROCEDURAL BACKGROUND

On February 27, 2008, after conducting a hearing on the matter, Magistrate Judge Griffin entered Findings of Fact, Conclusions of Law and Decree, terminating the parent-child relationship between Appellant and Doe. Pursuant to I.C. § 16-2005, the court based its decision on the grounds of neglect, the best interests of the parent and child, and abandonment.

On April 8, 2008, Appellant filed a notice of appeal with the magistrate court to give notice that he was appealing that court’s decision to the Third Judicial District Court. District Judge Ryan was assigned to the case and facilitated appellate proceedings in the district court. At that point, the district court obtained jurisdiction over this matter.

On September 25, 2008, Magistrate Judge Griffin entered an Order Recommending the Supreme Court Accept a Direct Permissive Appeal Pursuant to I.A.R. 12.1. Magistrate Judge Griffin noted that the recommendation was “on [his] own initiative” and based on his belief that “the best interest of the child would be served by an immediate appeal.”

On October 3, 2008, this Court entered an Order Granting a Direct Permissive Appeal and Expediting Appeal Process. That order states that the appeal “shall proceed as if from a final judgment or order entered by the District Court.” It then sets a briefing schedule for the parties. No notice of appeal was filed to this Court. Neither party raises these jurisdictional issues on appeal.

III.ISSUES ON APPEAL

A. Whether the magistrate court had jurisdiction to recommend that this Court accept a direct permissive appeal?

B. Whether Appellant’s failure to file a notice of appeal to this Court precludes this Court from having jurisdiction to hear this case?

IV.STANDARD OF REVIEW

“Even though none of the parties has raised the issue of jurisdiction on appeal, ‘[t]he question of subject matter jurisdiction may be raised by the Court at any time sua sponte.’ ” Erickson v. Idaho Bd. of Registration of Professional Engineers and Professional Land Surveyors, 146 Idaho 852, 854, 203 P.3d 1251, 1253 (2009) (quoting In re Quesnell Dairy, 143 Idaho 691, 693, 152 P.3d 562, 564 (2007)).

V.ANALYSIS

The magistrate court did not have jurisdiction to recommend that this Court accept a direct permissive appeal.

In termination of parental rights cases a magistrate court is permitted to enter, on its own initiative, an order recommending permission to appeal directly to this Court, see I.A.R. 12.1:

Whenever the best interest of a child would be served by an immediate appeal, any party or the magistrate hearing a case may petition the Supreme Court to accept a direct permissive appeal of a judgment or order involving the custody of a minor, a Child Protective Act proceeding, the termination of parental rights, or an adoption, without first appealing to the district court.

However, the magistrate court must have jurisdiction over a case to make such a recommendation. When an appeal is taken from district court to the Supreme Court, pending such appeal the district court retains the powers enumerated in I.A.R. 18(b). Pursuant to I.R.C.P. (u)(1), when an appeal is taken from magistrate court to a higher court, the appeal is handled n the same manner as an appeal from the district court to the Supreme Court. I.R.C.P. 83(u)(1) provides:

Upon an appeal from the magistrate’s division of the district court, not involving a trial de novo, the district court shall review the case on the record and determine the appeal as an appellate court in the same manner and upon the same standards of review as an appeal from the district court to the Supreme Court under the statutes and law of this state, and the appellate rules of the Supreme Court.

Thus, pursuant to I.R.C.P. 83(u)(1), when an appeal is taken from the magistrate court to a higher court, the magistrate court retains the powers enumerated in I.A.R. 13(b). Recommending a direct permissive appeal pursuant to I.A.R. 12.1 is not one of the powers enumerated in I.A.R. 13(b). Therefore, the magistrate court’s recommendation had no force or effect and was improvidently accepted by this Court.

Appellant’s failure to file a notice of appeal to this Court precludes this Court from having jurisdiction to hear this case.

After this Court enters an order permitting parties in a case regarding termination of parental rights to appeal directly to the Supreme Court, the parties are required to file a notice of appeal with the lower court, see I.A.R. 12.1(d):

Any appeal by permission of a judgment or order of a magistrate under this rule shall not be valid and effective unless and until the Supreme Court shall enter an order accepting such judgment or order of a magistrate, as appealable and granting leave to a party to file a notice of appeal within a time certain.

(Emphasis added). In this case Appellant failed to file a notice of appeal to this Court. It appears that the Clerk of this Court was not aware that such notice of appeal had not been filed, but instead the case had only been appealed from the magistrate court to the district court. This Court does not have the power to confer jurisdiction where it has none, even if only to correct a seemingly technical error. Even if the magistrate court properly had jurisdiction to recommend a permissive appeal to this Court, we would not have jurisdiction to hear the case due to the lack of notice of appeal in the record. See Martin v. Soden, 80 Idaho 416, 419, 332 P.2d 482, 483 (1958) (“The filing of the notice of appeal ... [is] jurisdictional. In the absence of compliance with the provisions of the code, this Court has no jurisdiction to entertain the appeal”). Thus, we are precluded from reviewing this ease on the merits because a notice of appeal to this Court was never filed.

VI. CONCLUSION

The fact that the magistrate court did not have jurisdiction to recommend a permissive appeal to this Court and Appellant’s failure to file a notice of appeal to this Court preclude us from reviewing this case on the merits. Thus, Appellant’s attempted appeal to this Court of the magistrate court’s decision to terminate Appellant’s parental rights to Doe fails for lack of jurisdiction. The appeal is therefore dismissed.