In Re: Parental Rights As To A.I.B., D.M.X.A. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE PARENTAL No. 84298
RIGHTS AS TO: A. I. B.; AND D. M.X.
A., MINORS.
THERESA CHINEZ D..,
Appellant, F | L E ~
Vs.
CLARK COUNTY DEPARTMENT OF AUG 12 2022
FAMILY SERVICES; A. I. B.; AND D. CLERIC OF SUPREME COURT
M.X. A., MINORS, wy eee
Respondents.
ORDER DISMISSING APPEAL
This is an appeal from a district court order terminating
appellant’s parental rights. Eighth Judicial District Court, Clark County;
Cynthia N. Giuliani, Judge.
When initial review of the notice of appeal and documents
before this court revealed a potential jurisdictional defect, this court ordered
appellant to show cause why this appeal should not be dismissed for lack of
jurisdiction. Specifically, it appeared that the notice of appeal was untimely
filed. Notice of entry of the challenged order was electronically served on
appellant’s counsel on January 11, 2022. See NRCP 5(b)(1) (‘If a party 1s
represented by an attorney, service under this rule must be made on the
attorney unless the court orders service on the party.”). Therefore, the
notice of appeal was due to be filed in the district court by February 10,
2022. See NRAP 4(a)(1). However, the notice of appeal, which is dated
February 12, 2022, was not filed in the district court until February 16,
2022.
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Appellant asserts in response that she understood from her
district court counsel that she had to file the notice of appeal after 30 days.
Appellant notes that she cannot file documents pro se while represented by
counsel and asserts her counsel should have filed the notice of appeal or
withdrawn from the case. Appellant’s counsel also asserts that it appears
appellant attempted to file a notice of appeal on February 11, 2022.
Respondents A.I.B. and D.M.X.A. reply that the notice of appeal
was untimely and must be dismissed.! They point out that the challenged
order included a notice of right to appeal informing appellant of the right to
appeal and that any appeal must be filed “no later than 30 days after the
date that written Notice of Entry of the Order is served.” The certificate of
service for the notice of entry indicates that both appellant and her counsel
were served with the notice of entry, and appellant’s counsel was orally
permitted to withdraw on January 12, 2022. A.I.B. and D.M.X.A. contend
that appellant cites no authority for the proposition that an exception to the
requirements of NRAP 4(a)(1) exists based upon a misunderstanding
between an appellant and her counsel or counsel’s alleged failure to file a
notice of appeal. Even if there were an exception, appellant’s argument
regarding the alleged inaction of her district court counsel is not persuasive.
And appellant’s February 11, 2022, filing is still untimely.
Respondent Clark County Department of Family Services
(CCDFS) agrees that the notice of appeal was untimely filed.2 CCDFS also
1The motion of A.I.B. and D.M.X.A. for leave to file exhibits to their
reply under seal is granted. See NRS 128.090(7). The clerk shall file the
exhibits received on July 11, 2022, under seal.
2CCDFS’s untimely motion for an extension of time to file a reply is
granted. NRAP 26(b)(1)(B). The reply was filed on July 13, 2022.
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points out that appellant was notified in the challenged order of the right to
appeal. Appellant’s confusion with her counsel, CCDFS argues, does not
excuse the untimely filing.?
Appellant’s pro se notice of appeal was untimely filed more than
30 days after notice of entry of the challenged order was served on
appellant’s counsel. See NRAP 4(a)(1). While this court is sympathetic to
appellant’s assertions, this court lacks jurisdiction to consider an untimely
notice of appeal and cannot extend the time to file the notice of appeal.
Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 330, 741 P.2d
432, 432 (1987); NRAP 26(b)(1)(A) (“[T]he court may not extend the time to
file a notice of appeal except as provided in Rule 4(c).”). Accordingly, this
court lacks jurisdiction and
ORDERS this appeal DISMISSED.
Dit. J.
Silver
Pickering
8This court disagrees with CCDFS’s suggestion that this appeal
should be dismissed because the notice of appeal does not sufficiently
identify the order challenged on appeal.
ec: Hon. Cynthia N. Giuliani, District Judge
The Grigsby Law Group
Legal Aid Center of Southern Nevada, Inc.
Clark County District Attorney/Juvenile Division
Eighth District Court Clerk
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