People in Interest of R.S

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ADVANCE SHEET HEADNOTE
April 30, 2018
2018 CO 31
No. 16S970, People in Interest of R.S.—Children’s Code—Dependency or Neglect
Proceedings—Appeals.
In this dependency or neglect case, the trial court held a single adjudicatory trial
to determine the dependent or neglected status of the child, with the judge serving as
fact-finder with respect to allegations against the child’s mother, and a jury sitting as
fact-finder with respect to the allegations against the child’s father. The judge
ultimately concluded that the child was dependent or neglected “in regard to” the
mother. In contrast, the jury concluded there was insufficient factual basis to support a
finding that the child was dependent or neglected. In light of these divergent findings,
the trial court adjudicated the child dependent or neglected and continued to exercise
jurisdiction over the child and the mother, but entered an order dismissing the father
from the petition. The People appealed the jury’s verdict regarding the father.
The court of appeals dismissed the People’s appeal for lack of jurisdiction,
reasoning that the dismissal of a single parent from a petition in dependency or neglect
based on a jury verdict is not a final appealable order because neither the appellate rule
nor the statutory provision governing appeals from proceedings in dependency or
neglect expressly permits an appeal from a “‘no adjudication’ finding.”
The supreme court concludes that, with limited exceptions not relevant here,
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), C.R.S. (2017). Because the trial court’s order in this case
dismissing the father from the petition was not a “final judgment,” the supreme court
concludes that the court of appeals lacked jurisdiction and properly dismissed the
Department’s appeal.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 31
Supreme Court Case No. 16SC970
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA685
______________________________________________________________________________
Petitioner:
The People of the State of Colorado,
In the Interest of Minor Child:
R.S.
v.
Respondents:
G.S. and D.S.
______________________________________________________________________________
Dismissal Affirmed
en banc
April 30, 2018
______________________________________________________________________________
Attorneys for Petitioner:
Ron Carl, County Attorney, Arapahoe County
Michael Valentine
Marilee McWilliams
Aurora, Colorado
Guardian ad Litem for the Minor Child:
Bettenberg, Sharshel & Maguire, LLC
Alison A. Bettenberg
Ranee Sharshel
Centennial, Colorado
Attorneys for Amicus Curiae Office of the Child’s Representative:
Cara L. Nord
Denver, Colorado
Attorneys for Amicus Curiae Office of Respondent Parents’ Counsel:
Ruchi Kapoor
Denver, Colorado
No appearance on behalf of Respondents.
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE COATS concurs in the judgment.
¶1 In this case, the Arapahoe County Department of Human Services filed a petition
in dependency or neglect concerning minor child R.S., and naming both parents as
respondents. The mother requested a bench trial to adjudicate the dependent or
neglected status of the child; the father requested a jury trial for the same purpose. The
court held a single adjudicatory trial, with the judge serving as fact-finder with respect
to the Department’s allegations against the mother, and a jury sitting as fact-finder with
respect to the allegations against the father. The judge ultimately concluded that the
child was dependent or neglected “in regard to” the mother. In contrast, the jury, as the
father’s fact-finder, concluded there was insufficient factual basis to support a finding
that the child was dependent or neglected. In light of these divergent findings, the trial
court adjudicated the child dependent or neglected and continued to exercise
jurisdiction over the child and the mother, but entered an order dismissing the father
from the petition. The mother appealed the trial court’s adjudication of the child as
dependent or neglected; the Department appealed the jury’s verdict regarding the
father, as well as the trial court’s denial of the Department’s motion for adjudication
notwithstanding the verdict.
¶2 In a unanimous, published opinion, the court of appeals dismissed the
Department’s appeal for lack of jurisdiction, reasoning that the dismissal of a single
parent from a petition in dependency or neglect based on a jury verdict is not a final
appealable order because neither the appellate rule nor the statutory provision
governing appeals from proceedings in dependency or neglect expressly permits an
3
appeal from a “‘no adjudication’ finding.” See People In Interest of S.M-L., 2016 COA
173, ¶¶ 15–23, ___ P.3d ___. We granted the Department and the guardian ad litem’s
petition for certiorari review.1
¶3 We conclude that, with limited exceptions not relevant here, 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), C.R.S. (2017). Because the trial court’s order in this case dismissing
the father from the petition was not a “final judgment,” we conclude that the court of
appeals lacked jurisdiction and properly dismissed the Department’s appeal. We
therefore affirm the court of appeals’ dismissal of the Department’s appeal, albeit under
different reasoning.
I. Facts and Procedural History
¶4 In January 2016, the Arapahoe County Department of Human Services filed a
petition in dependency or neglect before the Arapahoe County District Court
concerning minor child R.S. and two other minor children,2 naming R.S.’s biological
mother (“Mother”) and biological father (“Father”) as respondents. The petition alleged
1 We granted certiorari to review the following issue: “Whether a denial of adjudication
in a dependency and neglect action is a final order for purposes of appeal.”
2 The Department’s petition also involves two other children, S.M-L. (Mother’s
biological daughter and Father’s stepdaughter) and B.M-M. (Mother’s biological son
and Father’s stepson), and names O.M-M. (the biological father of S.M-L. and B.M-M.)
as an additional respondent. The appeal before this court concerns only the legal status
of R.S. with respect to Mother and Father.
4
that R.S. was dependent or neglected under section 19-3-102(1)(a)–(d), C.R.S. (2017), on
the grounds that her parents had “abandoned” her, “subjected [her] to mistreatment or
abuse,” or “suffered or allowed another to mistreat or abuse [her] without taking lawful
means to stop such mistreatment or abuse”; she “lack[ed] proper parental care”; her
“environment [was] injurious to [her] welfare”; and her parents failed or refused to
provide proper or necessary care for her well-being. As factual support for these
claims, the petition alleged that Father had sexually abused his stepdaughter (R.S.’s
half-sister) S.M-L., who lived with R.S. and Mother. The petition further alleged that
Mother did not believe S.M-L.’s outcry and that Mother stated that S.M-L. had lied
about the abuse. The petition did not allege that Father had sexually abused R.S. or that
R.S. made an outcry.
¶5 Father and Mother denied the allegations and each requested a trial to
adjudicate the dependent or neglected status of R.S. Mother requested a bench trial,
and Father requested a jury trial.
¶6 A single trial was held on April 19–21, 2016, with the trial court sitting as
Mother’s fact-finder and a jury sitting as Father’s fact-finder.3 The Department
3 Because Mother’s case required certain additional testimony, the adjudicatory trial
proceeded in two phases. In the first phase, spanning April 19–20, the parties presented
evidence pertaining to both Mother’s and Father’s cases. At the end of the second day
of trial, the parties presented closing arguments to the jury, and the jury retired to
deliberate as to Father. On April 21 (the third day of trial), the parties presented
additional evidence regarding Mother’s case and gave closing arguments to the trial
5
presented expert testimony from the Arapahoe County investigator who investigated
the allegations that Father had sexually assaulted S.M-L., the caseworker assigned to the
family, a forensic interviewer who interviewed S.M-L. regarding the sexual-assault
allegations against Father, and a licensed clinical social worker with expertise in sexual
abuse. The Department also presented lay testimony from S.M-L. and Mother. The
Department contended that R.S. faced “prospective harm” as a result of Father’s
conduct toward S.M-L., stating in closing argument that, “If the evidence shows that
[Father] was inappropriate with his stepdaughter [S.M-L.], then we know that [R.S.] is
at risk.” R.S.’s guardian ad litem (the “GAL”) agreed with the Department, adding that
R.S. should be adjudicated as dependent or neglected because Mother “is blatantly
unwilling to even look at the idea that this may have happened to [S.M-L.].”
¶7 The trial court, as Mother’s fact-finder, determined that R.S. was dependent or
neglected, finding that Mother’s response to S.M-L.’s outcry was insufficient to protect
her children, even if the allegations were ultimately untrue. The trial court observed,
“[Mother] does not believe that the information provided by [S.M-L.] is true.
Nonetheless, [Mother] has not developed a way to protect [R.S.] should the allegations
court. The court then made its ruling (as to Mother) and read the jury verdict (as to
Father).
6
be true,” nor has she “determined how she would shelter [R.S.] from [Father] during
times that [R.S.] might be vulnerable.”
¶8 In contrast, the jury, as Father’s fact-finder, found insufficient factual basis to
support a finding that R.S. was dependent or neglected. The Department moved for an
adjudication notwithstanding the jury’s verdict, arguing that the verdict was not
supported by the evidence. The trial court denied the motion and entered an order
dismissing Father from the petition. The court then entered an order adjudicating R.S.
as dependent or neglected “in regard to” Mother and adopted a treatment plan for her.
The case continued with Mother maintaining custody of R.S. under the Department’s
supervision.
¶9 Father later pled guilty in a separate criminal case to a charge of unlawful sexual
contact—no consent, in violation of section 18-3-404(1)(a), C.R.S. (2017). On October 24,
2016, Father was sentenced to four years of Sex Offender Intensive Supervision
Probation and was barred from contact with children under the age of 18.
¶10 Mother appealed the trial court’s adjudication of R.S. as dependent or neglected
with regard to her. The Department appealed the jury’s nonadjudication verdict
regarding Father and the trial court’s denial of its motion for adjudication
notwithstanding the verdict.4
4 The GAL did not file a notice of appeal with respect to the trial court’s orders, but did
file briefing urging the court of appeals to affirm the adjudication of R.S. as dependent
or neglected and to reverse the trial court’s orders dismissing Father from the petition
7
¶11 The court of appeals issued an order to show cause why the Department’s appeal
should not be dismissed for lack of a final appealable order, questioning whether the
dismissal of a single parent from a dependency or neglect petition based on a jury
verdict was a final appealable order. See People In Interest of S.M-L., 2016 COA 173,
¶ 15, ___ P.3d ___. In response to the show-cause order, the Department cited People in
Interest of M.A.L., 592 P.2d 415 (Colo. App. 1976), in which the court of appeals
entertained an appeal of a jury verdict finding that minor children were not dependent
or neglected. See S.M-L., ¶ 15. A motions division of the court allowed the appeal to
proceed and for the issue of finality to be considered on the merits. See id.
¶12 In a unanimous, published opinion, the court of appeals dismissed the
Department’s appeal, concluding that “the [trial] court’s dismissal of a party from a
dependency or neglect petition based on a jury’s verdict is not a final appealable order
under [the Colorado Appellate Rules] or the [Colorado] Children’s Code.” S.M-L., ¶ 15.
The court examined C.A.R. 3.4(a) and section 19-1-109, C.R.S. (2017)—the appellate rule
and statutory provision governing appeals from proceedings in dependency or
neglect—and concluded that neither contains language expressly permitting an appeal
based on the jury verdict. After the court of appeals dismissed the Department’s
appeal, the GAL joined in the Department’s petition for writ of certiorari and in the
Department’s merits briefing before this court.
8
from a “‘no adjudication’ finding.” Id. at ¶¶ 19–20. Thus, the court reasoned, the
General Assembly did not intend for such findings to be appealable orders. Id.
¶13 We granted the Department and the GAL’s joint petition for certiorari review of
the court of appeals’ dismissal of the Department’s appeal.5
II. Analysis
¶14 As the court of appeals observed both in its show-cause order and its opinion,
the question here is whether the dismissal of one parent from a petition based on a
jury’s “no adjudication” verdict constitutes a final appealable order. See S.M-L., ¶ 15.
Accordingly, we analyze whether the statutory provisions and court rule governing
appeals in dependency or neglect proceedings authorized the Department’s appeal of
the trial court’s order dismissing Father from the petition based on the jury’s “no
adjudication” verdict. We conclude that section 19-1-109(1) of the Colorado Children’s
Code authorizes appeals from “any order, decree, or judgment” in dependency or
neglect proceedings, but only to the extent that such appeals are permitted by section
13-4-102(1), C.R.S. (2017). As pertinent here, section 13-4-102(1) authorizes the appeal of
any order that constitutes a final judgment. Here, the order dismissing Father from the
petition was not a final judgment because it did not end the dependency or neglect
proceeding or provide a final determination of the rights of all the parties to the
5Neither Mother nor Father entered appearances or filed briefing before this court. The
Office of Respondent Parents’ Counsel filed an amicus brief in support of Mother and
Father. The Office of the Child’s Representative filed an amicus brief in support of the
Department and the GAL.
9
proceeding. Therefore, the court of appeals lacked jurisdiction and properly dismissed
the Department’s appeal.
A. Statutory Authorization for Appeals from Proceedings in
Dependency or Neglect
¶15 We begin by examining the statutory provisions governing appeals from
proceedings in dependency or neglect. We review questions of statutory construction
de novo. Trujillo v. Colo. Div. of Ins., 2014 CO 17, ¶ 12, 320 P.3d 1208, 1212. In
interpreting these provisions, “[o]ur objective is to effectuate the intent and purpose of
the General Assembly.” Id. at ¶ 12, 320 P.3d at 1212–13. To determine the legislature’s
intent, we look first to the plain language of a statutory provision. Bostelman v. People,
162 P.3d 686, 690 (Colo. 2007). Where the statutory language is clear, we apply the plain
and ordinary meaning of the provision. Trujillo, ¶ 12, 320 P.3d at 1213. Additionally, a
statute must be read “as a whole, construing each provision consistently and in
harmony with the overall statutory design, if possible.” Whitaker v. People, 48 P.3d
555, 558 (Colo. 2002).
¶16 Section 19-1-109 of the Colorado Children’s Code governs appeals from
proceedings in juvenile court, including dependency or neglect proceedings.
Subsection (1) states that an appeal may be taken from “any order, decree, or
judgment,” “as provided in the introductory portion to section 13-4-102(1), C.R.S.”
§ 19-1-109(1). In turn, section 13-4-102(1) provides that the court of appeals shall have
10
initial jurisdiction over appeals from “final judgments”6 of district courts, including
juvenile courts that preside over dependency or neglect proceedings.7
¶17 Section 19-1-109(1)’s reference to appeals “as provided in” section 13-4-102(1)
means that an appeal from juvenile court proceedings must be brought in the court of
appeals and must fall within the scope of appealable orders authorized by section
13-4-102(1). Because section 13-4-102(1), as pertinent here,8 authorizes the court of
appeals to review “final judgments,” we conclude that section 19-1-109(1) authorizes
appeals in dependency or neglect proceedings from any order that qualifies as “final”
for purposes of section 13-4-102(1).
¶18 In considering whether section 19-1-109 authorized the appeal of the trial court’s
order dismissing Father from the petition, the court of appeals focused its analysis on
subsection (2)(b) and (2)(c) of the statute, which designate certain types of orders in
dependency or neglect proceedings as final appealable orders, including “an order
terminating or refusing to terminate” a parent-child relationship and “an order
6Consistent with C.R.C.P. 54(a), we understand the term “judgment” to include orders
and decrees.
7 The Colorado Children’s Code defines “juvenile court” as “the juvenile court of the
city and county of Denver or the juvenile division of the district court outside of the city
and county of Denver.” § 19-1-103(70), C.R.S. (2017).
8Section 13-4-102(1) also provides that the court of appeals shall have initial jurisdiction
over interlocutory appeals of certified questions of law in civil cases from the district
courts, the probate court of the City and County of Denver, and the juvenile court of the
City and County of Denver, with certain exceptions. Such appeals are not at issue in
this case.
11
decreeing a child to be neglected or dependent” following entry of the disposition. See
§ 19-1-109(2)(b)–(c); S.M-L., ¶¶ 19–20. The court of appeals reasoned that the omission
of “no adjudication” findings from the list of appealable orders identified in subsection
(2)(b) and (2)(c) reflects the legislature’s intent not to permit such appeals. See S.M-L.,
¶¶ 18–20.
¶19 We disagree with the court of appeals’ construction of subsection (2)(b) and (2)(c)
because it conflicts with the plain meaning of subsection (1). Subsection (2) must be
read in conjunction with subsection (1), with the goal of giving harmonious and
sensible effect to each subsection. See People v. Kennaugh, 80 P.3d 315, 317 (Colo.
2003). As discussed above, subsection (1) authorizes the appeal of “any order” from a
dependency or neglect proceeding that is “final.” Rather than treat subsection (2)(b)
and (2)(c) as limiting the types of orders in dependency or neglect proceedings that may
be appealed, we construe subsection (2)(b) and (2)(c) to authorize appeals from certain
additional orders beyond those authorized by subsection (1).
¶20 Put differently, subsection (1) codifies a general rule of finality, and subsection
(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.” For example, subsection (2)(c) provides that an order
of adjudication becomes a final appealable order after the entry of the disposition. Such
an order, however, does not “end[] the particular action in which it is entered.” People
v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009). Rather, an adjudication order authorizes
12
the juvenile court to make further orders affecting the child and the rights of the
parents. See § 19-3-508, C.R.S. (2017); A.M. v. A.C., 2013 CO 16, ¶ 12, 296 P.3d 1026,
1031 (“The adjudication represents the court’s determination that state intervention is
necessary to protect the child and that the family requires rehabilitative services in
order to safely parent the child”). In other words, but for section 19-1-109(2)(c), an
adjudication order ordinarily would not be an appealable order because it would not be
considered “final.”
¶21 The statutory history of section 19-1-109 further supports our reading of
subsections (1) and (2). Since its enactment, the statute has permitted the appeal of any
“final” order in a dependency or neglect proceeding, and nothing in the subsequent
amendments to section 19-1-109 (or its predecessor provisions) evinces a clear
legislative intent to limit the right to appeal in dependency or neglect cases.
¶22 In 1967, the General Assembly enacted the Colorado Children’s Code, which was
then codified under Title 22 of the Revised Statutes. See Ch. 443, sec. 1, §§ 22-1-1 to
22-10-7, 1967 Colo. Sess. Laws 993, 993–1039. Section 22-1-12 of the 1967 Children’s
Code, a predecessor to section 19-1-109, allowed appeals from orders in juvenile
proceedings to be taken to the supreme court.9 That provision stated, in relevant part:
“An appeal from any order, decree, or judgment may be taken to the supreme court by
writ of error as provided by the Colorado rules of civil procedure . . . .” § 22-1-12, C.R.S.
9At the time of the enactment of the 1967 Children’s Code, the Colorado Court of
Appeals did not exist.
13
(1963 & Supp. 1967). At the time, Rule 111 of the Colorado Rules of Civil Procedure
provided that a writ of error shall lie from the supreme court to, among other things, “a
final judgment of any district, county, or juvenile court in all actions or special
proceedings whether governed by [the Colorado Rules of Civil Procedure] or by the
[Colorado Revised Statutes].” C.R.C.P. 111(a)(1), (1963). Thus, in 1967, the legislature
allowed “any order, decree, or judgment” in a dependency or neglect proceeding that
was “final” to be appealed to the supreme court by writ of error.
¶23 The General Assembly reestablished the Colorado Court of Appeals in 1969,
adding Article 21 (“Court of Appeals”) to Title 37 (“Courts of Record”) of the Revised
Statutes. See ch. 106, sec. 1, 1969, §§ 37-21-1 to 37-21-14, Colo. Sess. Laws 265, 265–68.
In so doing, the legislature provided that the court of appeals “shall have initial
jurisdiction over appeals from final judgments of the district courts.” § 37-21-2(1)(a),
C.R.S. (1963 & Supp. 1969); see also § 13-4-102(1), C.R.S. (2017) (current codification).
Two years later, in 1971, the legislature amended section 22-1-12 (the Children’s Code
provision governing appeals), to provide that an appeal may be taken from any order,
decree or judgment “as provided in section 37-21-2(1)(a).” Ch. 87, sec. 5, § 22-1-12, 1971
Colo. Sess. Laws 286, 287.
¶24 The 1971 amendment to section 22-1-12 had the effect of redirecting appeals from
juvenile proceedings to the court of appeals, thus replacing the prior method of appeal
to the supreme court by writ of error. Significantly, the cross-reference to section
37-21-2 demonstrates the legislature’s continued intent to allow appeals from any
14
“final” order in a juvenile proceeding. In other words, nothing in the 1971 amendment
altered the scope of appealable orders in juvenile proceedings, which under the original
version of section 22-1-12 likewise included all orders that were “final.”
¶25 In 1973, the legislature amended section 22-1-12 by adding the following as
subsection (2): “The People of the State of Colorado shall have the same right to appeal
questions of law in delinquency cases under section 22-1-4(1)(b) as exists in criminal
cases.” Ch. 110, sec. 10, § 22-1-12, 1973 Colo. Sess. Laws 384, 388. The addition of
subsection (2) appears to have altered, for the first time, the scope of appealable orders
in juvenile proceedings. However, under its plain terms, the 1973 alteration affected
only delinquency cases and did not suggest the legislature intended to alter or limit any
party’s right to appeal in other juvenile proceedings, such as dependency or neglect
cases.
¶26 Following various recodification projects affecting the ordering of the Revised
Statutes, see, e.g., ch. 138, sec. 1, §§ 19-1-101 to 19-6-105, 1987 Colo. Sess. Laws 695, 812
(recodifying the entire Children’s Code), section 22-1-12 and section 37-21-2 were
relocated to section 19-1-109 and section 13-4-102, respectively, and the cross-reference
was correspondingly updated.
¶27 Finally, in 1997, the General Assembly amended section 19-1-109(2) by
designating the provision governing the People’s right to appeal in delinquency cases
as paragraph (a), and adding new paragraphs (b) and (c) identifying certain types of
orders in dependency or neglect proceedings as final and appealable:
15
(b) An order 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, shall be a final and appealable order.
(c) An order decreeing a child to be neglected or dependent shall be a final
and appealable order after the entry of the disposition pursuant to section
19-3-508. Any appeal shall not affect the jurisdiction of the trial court to
enter such further dispositional orders as the court believes to be in the
best interests of the child.
Ch. 254, sec. 7, § 19-1-109(2)(b)–(c), 1997 Colo. Sess. Laws 1426, 1433. The legislature has
not further amended subsections (1) or (2).
¶28 Nothing in the 1997 amendment to subsection (2) evinces legislative intent to
restrict appealable orders in dependency or neglect proceedings to those orders
described in paragraphs (b) and (c). Certainly, nothing in the language of the
amendment altered subsection (1) or expressly limited the scope of appealable orders in
such proceedings generally. Moreover, to construe paragraphs (b) and (c) as limitations
on the right to appeal ignores that the statute historically has authorized the appeal of
any final order in dependency or neglect proceedings, and that none of the previous
amendments to section 19-1-109 (or its predecessors) ever sought to limit the scope of
appealable orders in such proceedings.10 If anything, the 1997 addition of paragraphs
(b) and (c) in subsection (2) introduced examples of exceptions to the general finality
10 Even if section 19-1-109(2)(a) could be construed to limit the orders that are
appealable in delinquency cases, we see no reason to construe subsection (2)(b) and
(2)(c) to circumscribe the right to appeal in dependency or neglect cases.
16
requirement embodied in section 109(1)—thus expanding the types of orders that may
be appealed in dependency or neglect cases.
¶29 In sum, we hold that section 19-1-109(1) authorizes the appeal of any order from
a dependency or neglect proceeding that is “final” and that section 19-1-109(2)
authorizes the appeal of certain orders in addition to those orders whose appeal is
authorized by section 19-1-109(1).
B. Whether Section 19-1-109 Conflicts with C.A.R. 3.4(a)
¶30 Having determined that section 19-1-109(1) authorizes the appeal of any final
order and that subsection (2) of that statute does not limit the scope of appealable
orders under subsection (1), we next examine whether this statutory provision conflicts
with C.A.R. 3.4, the appellate rule governing appeals from proceedings in dependency
or neglect. See § 19-1-109(1) (“Appellate procedure shall be as provided by the
Colorado appellate rules.”).
¶31 Because the Department filed its appeal on April 25, 2016, its appeal was
governed by a prior version of C.A.R. 3.4(a), which stated: “How Taken. Appeals from
orders in dependency or neglect proceedings, as permitted by section 19-1-109(2)(b) and
(c), C.R.S., and including final orders of permanent legal custody entered pursuant to
17
section 19-3-702, C.R.S, shall be in the manner and within the time prescribed by this
rule.” (Second emphasis added.)11
¶32 We apply “[t]he standard principles of statutory construction . . . to our
interpretation of court rules.” In re Marriage of Wiggins, 2012 CO 44, ¶ 24, 279 P.3d 1,
7. Where a rule promulgated by this court and a statute conflict, the question becomes
whether the affected matter is “procedural” or “substantive.” See Borer v. Lewis, 91
P.3d 375, 380–81 (Colo. 2004); People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993);
People v. McKenna, 585 P.2d 275, 276–79 (Colo. 1978). The state constitution vests this
court with plenary authority to create procedural rules in civil and criminal cases, but
the legislature has authority to enact statutes governing substantive matters as
distinguished from procedural matters. Borer, 91 P.3d at 380; Wiedemer, 852 P.2d at
436. Thus, if the affected matter is “procedural,” then the court rule controls; if the
affected matter is “substantive,” then the statute controls. See Borer, 91 P.3d at 380;
11 The current version of C.A.R. 3.4(a) was adopted by this court on May 23, 2016, and
became effective for all cases filed on or after July 1, 2016. In its current form, C.A.R.
3.4(a) reads:
How Taken. Appeals from judgments, decrees, or orders in dependency
or neglect proceedings, as permitted by section 19-1-109(2)(b) and (c),
C.R.S., including an order allocating parental responsibilities pursuant to
section 19-1-104(6), C.R.S., final orders entered pursuant to section
19-3-612, C.R.S., and final orders of permanent legal custody entered
pursuant to section 19-3-702 and 19-3-605, C.R.S., must be in the manner
and within the time prescribed by this rule.
Because the Department filed its appeal on April 25, 2016, its appeal was subject to the
pre–July 2016 version of C.A.R. 3.4(a), which, as quoted above in the text, referred only
to appeals from orders, but not from judgments or decrees.
18
Wiedemer, 852 P.2d at 436. Although the distinction between “procedural” and
“substantive” matters is sometimes difficult to discern, we have held that, generally,
“rules adopted to permit the courts to function and function efficiently are procedural
whereas matters of public policy are substantive and are therefore appropriate subjects
for legislation.” Wiedemer, 852 P.2d at 436. We have further explained that when
distinguishing between legislative policy and judicial rulemaking, “we strive to avoid
any unnecessary ‘[c]onfrontation[s] of constitutional authority,’ and instead seek to
reconcile the language and intent of the legislative enactment with our own well-
established rules of procedure.” Borer, 91 P.3d at 380 (alterations in original) (quoting
McKenna, 585 P.2d at 279). Finally, we have recognized that “legislative policy and
judicial rulemaking powers may overlap to some extent so long as there is no
substantial conflict between statute and rule.” McKenna, 585 P.2d at 279.
¶33 The applicable version of C.A.R. 3.4(a) generally establishes the manner and time
for appeals in dependency or neglect proceedings. But by referring to “[a]ppeals from
orders in dependency or neglect proceedings, as permitted by section 19-1-109(2)(b) and
(c),” the rule also implies that only those orders specifically identified in subsection
(2)(b) and (2)(c) may be appealed. Thus, the rule appears to conflict with section
19-1-109(1), which we have determined authorizes the appeal of any final order in
dependency or neglect proceedings.
¶34 We conclude that the matter at issue here—the scope of appealable orders from
dependency or neglect proceedings—is “substantive” and that the statute therefore
19
must prevail over the court rule. Even before we expressly adopted the distinction
between “substantive” and “procedural” matters as a formal analytical framework for
resolving conflicts between statutes and court rules, we held that “[s]tatutes pertaining
to the creation of appellate remedies take precedence over judicial rules of procedure.”
Bill Dreiling Motor Co. v. Court of Appeals, 468 P.2d 37, 41 (Colo. 1970). Implicit in the
notion that appellate remedies created by statute cannot be limited by court rules is our
understanding that the state constitution confers to the legislature the right to define the
subject matter jurisdiction of the appellate courts and, by extension, the kinds of orders
that may be appealed. See id. at 40; People ex rel. City of Aurora v. Smith, 424 P.2d 772,
774 (Colo. 1967). We have thus long recognized that the question of what orders may
be appealed is a “matter[] of public policy” that is an “appropriate subject[] for
legislation,” see Wiedemer, 852 P.2d at 436, even if we have not always expressly
labeled it as a “substantive” matter. We conclude that the scope of appealable orders in
dependency or neglect proceedings is a “substantive” matter, as it pertains to a party’s
right to appeal from such proceedings and to the subject matter jurisdiction of the court
of appeals.
¶35 Accordingly, we hold that, to the extent that the prior version of C.A.R. 3.4(a)
conflicts with section 19-1-109(1), the statute prevails and the rule cannot limit the types
of orders from dependency or neglect proceedings that may be appealed under the
statute.
20
C. Whether the Order Dismissing Father was “Final”
¶36 Having concluded that section 19-1-109(1) authorizes the appeal from any “final”
order in a dependency or neglect proceeding, and that the applicable version of C.A.R.
3.4(a) does not limit the types of orders that may be appealed under the statute, we next
consider whether the trial court’s order dismissing Father from the petition was “final.”
¶37 The general requirement that an order must be final to be appealable stems from
the well-established principle “that an entire case must be decided before any ruling in
that case can be appealed.” Cyr v. Dist. Court, 685 P.2d 769, 770 (Colo. 1984). We have
consistently characterized a final order as “one that ends the particular action in which
it is entered, leaving nothing further for the court pronouncing it to do in order to
completely determine the rights of the parties involved in the proceedings.” Guatney,
214 P.3d at 1051 (citing People v. Jefferson, 748 P.2d 1223, 1224 (Colo. 1988); Stillings v.
Davis, 406 P.2d 337, 338 (Colo. 1965)). Thus, in determining 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.” Cyr, 685 P.2d at 770.
¶38 We conclude that the order dismissing Father 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.” See id. at 770 & n.2. Indeed, after entering the order
dismissing Father, the trial court adjudicated R.S. as dependent or neglected (“in regard
to” Mother). The court thus continued to exercise jurisdiction over the child and
21
Mother, adopted a treatment plan for Mother, and ordered the case to proceed with
Mother maintaining custody of R.S. under the Department’s supervision.
¶39 We do not address whether C.R.C.P. 54(b), which “creates an exception to the
general requirement that an entire case be resolved by a final judgment before an
appeal is brought,” Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986), applies to the trial
court’s order dismissing Father. Rule 54(b) permits a trial court “to direct the entry of a
final judgment as to one or more but fewer than all of the claims or parties,” but “only
upon an express determination that there is no just reason for delay and upon an
express direction for the entry of judgment.” Here, the trial court did not certify the
order dismissing Father as final under Rule 54(b) or make any determinations relating
to Rule 54(b), and no party sought Rule 54(b) certification. Under these circumstances,
we will not, sua sponte, inject into this case the issue of whether the order dismissing
Father from the petition could have been certified as a final judgment pursuant to
C.R.C.P. 54(b).
¶40 Because the order dismissing Father from the petition was not “final” for
purposes of section 13-4-102, we conclude that the court of appeals lacked jurisdiction
and properly dismissed the Department’s appeal.
III. Conclusion
¶41 We conclude that, with limited exceptions not relevant here, section 19-1-109(1)
of the Colorado Children’s Code authorizes appeals of all orders in dependency or
neglect proceedings that are “final judgments.” Because the order dismissing Father
22
from the petition was not a “final judgment,” the court of appeals lacked jurisdiction to
hear the Department’s appeal of that order. Accordingly, we affirm the court of
appeals’ dismissal of the Department’s appeal.
JUSTICE COATS concurs in the judgment.
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JUSTICE COATS, concurring in the judgment.
¶42 Because I agree that the People were not authorized to appeal either the jury
verdict finding the child not dependent or neglected or the denial of their motion for an
adjudication notwithstanding the jury’s verdict, I concur in the majority’s judgment
affirming dismissal by the court of appeals. It is not the majority’s finding that the
People’s appeal was unauthorized with which I disagree, but rather its determination,
which I consider both unnecessary to the resolution of this case and mistaken, that but
for the court’s continued exercise of jurisdiction over the child as the result of its
adjudication of dependency or neglect in regard to the mother, the People’s appeal
would be so authorized. Because I also understand the majority to concede, however,
that it is the prerogative of the legislature to preclude an appeal by the People at this
stage of the proceedings if, as a matter of policy, it chooses to do so, and that it has
simply failed to do so thus far, I do not consider the error, as it concerns dependency or
neglect orders, to be of substantial moment. Rather, I write to briefly explain why I do
not consider the majority rationale the better construction of the applicable statutes and
why I believe its premises should not be extended beyond the dependency or neglect
context to which they are applied in this case.
¶43 The majority’s construction rests entirely on the weight it attributes to the word
“any” in the sentence appearing in section 19-1-109(1) of the revised statutes, “An
appeal as provided in the introductory portion to section 13-4-102(1), C.R.S., may be
taken from any order, decree, or judgment,” and the fact that section 13-4-102(1), C.R.S.
1
(2017), describes, among other things, the court of appeals’ “initial jurisdiction over
appeals from final judgments,” id. (emphasis added), of the district courts. The
majority reasons that this subsection therefore authorizes an appeal to the court of
appeals from any “final” order, decree, or judgment, by any party, notwithstanding the
immediately following subsection of the statute, expressly authorizing certain, and
limiting other, appeals by the “people of the state of Colorado.” § 19-1-109(2), C.R.S.
(2017). Unlike the majority, I believe that when read in conjunction with subsection (1)
of section 19-1-109, subsection (2) can only be understood to specify when, and with
regard to what questions, judgments in both delinquency and dependency or neglect
proceedings will be subject to appeal by the People.
¶44 Whether or not the term “final” as used in section 13-4-102 could have the
meaning ascribed to it, the word “any” simply cannot shoulder the burden levied upon
it by the majority. Subsection (2) of section 19-1-109 contains three paragraphs
distinguishing the right of the People to appeal from that of the juvenile or parents,
with regard to three different classes of judgments. The majority asserts that rather
than clarifying or limiting the appellate rights of the People with regard to the
judgments referred to in subsection (1), these provisions permit appeals in addition to
the already authorized appeal of “any” final judgment. This proposition is, however,
difficult to square with the statutory scheme as a whole. Paragraph (2)(a) of section
19-1-109 permits appeals of questions of law by the People in delinquency cases to the
same extent as permitted in criminal cases, but because such appeals are limited to final
2
judgments even in criminal cases, see § 16-12-102(1), C.R.S. (2017); People v.
Gabriesheski, 262 P.3d 653, 656 (Colo. 2011), paragraph (2)(a) would be completely
superfluous if the legislature had already authorized appeals by the People of all final
judgments concerning juveniles in subsection (1). Similarly, paragraph (2)(b) expressly
permits appeals both from orders terminating and orders refusing to terminate parental
rights, but if appeals by the People of all final orders were already authorized,
paragraph (2)(b) would add nothing by authorizing appeals of orders refusing to
terminate parental rights. Rather, the only reasonable conclusion to be drawn from the
legislature’s choice, in back-to-back paragraphs, to specify with regard to termination of
parental rights that both orders terminating and orders refusing to terminate would be
appealable but, concerning dependency or neglect, to designate as appealable only
orders actually decreeing a child to be dependent or neglected, must surely be that the
legislature did not intend for orders declining to adjudicate a child dependent or
neglected to be appealable by the People at all.
¶45 This, of course, is precisely the understanding of these statutory provisions
incorporated by this court in C.A.R. 3.4. At all times pertinent to this case, that rule
expressly permitted, and still does permit, appeals in dependency or neglect
proceedings only as described in paragraphs (2)(b) and (c) of section 19-1-109, without
reference to subsection (1). Despite our clear intent to conform the rule to the statute,
and our long-expressed reluctance to enter the separation-of-powers fray by construing
our own rules to be in conflict with the legislative statutes, see, e.g., People v. Owens,
3
228 P.3d 969, 971–72 (Colo. 2010), the majority is forced to overcome this hurdle to its
current statutory interpretation by construing the rule and statute to be in irreconcilable
conflict, and resolving that conflict by finding the matter to be “substantive,” giving
precedence to the statute, according to the majority’s current interpretation. In addition
to finding this maneuver wholly unconvincing, I am concerned by the majority’s
unnecessarily positing a conflict between statute and rule and gratuitously taking
another stab at the delicate distinction between “procedural” and “substantive”
matters.
¶46 Quite apart from its effect on dependency or neglect law, I am also concerned
about the implications of the majority’s construction for the reviewability of matters by
the appellate courts in general, and the initial jurisdiction of the court of appeals in
particular. Unlike the majority, I do not believe section 13-4-102 is concerned with the
appellate reviewability of judgments at all, a matter as to which it defers to the
appellate rules, but rather with the initial jurisdiction of this state’s statutory, as
distinguished from its constitutional, appellate court. Cf. Bill Dreiling Motor Co. v.
Court of Appeals, 468 P.2d 37, 40–41 (Colo. 1970). As one clear indication that section
13-4-102 has not been understood to be exclusive, or at least that its use of the term
“final” was intended broadly in the sense of “reviewable,” within the contemplation of
C.A.R. 1, the initial jurisdiction of the court of appeals over orders granting or denying
temporary injunctions (made immediately reviewable by C.A.R. 1(a)(3)) has regularly
been exercised without question, despite those orders not being “final” either according
4
to the categorization of Rule 1 or the majority’s test. See, e.g., Gergel v. High View
Homes, L.L.C., 58 P.3d 1132, 1135 (Colo. App. 2002). More importantly, however,
neither section 13-4-102 nor section 19-1-109 remotely suggests that finality is the sole
criterion determining the appealability of any particular judgment, by any particular
party, at any particular point in time.
¶47 Appeals by the People in criminal and delinquency cases are among the clearest
examples of review being barred as moot, notwithstanding the finality of the judgment
with regard to which review is sought, in the absence of express statutory authorization
to the contrary. See People v. Guatney, 214 P.3d 1049, 1050–51 (Colo. 2009); In re People
in Interest of P.L.V., 490 P.2d 685, 687 (Colo. 1971). In providing such express statutory
authorization in this jurisdiction, see § 16-12-102(1), the legislature has nevertheless
subjected appeals by the People to the procedures dictated by the rules of this court,
much as it has done in section 13-4-102, which we have construed to include a limitation
to finality as required by C.A.R. 1. Notwithstanding this general limitation concerning
finality, however, we have regularly acceded to specific legislative direction with regard
to the finality of certain classes of orders, based on policy judgments within the purview
of the legislature, even where we have previously found precisely the contrary
according to our own jurisprudence concerning finality. See, e.g., § 16-12-102(1)
(amendments permitting immediate review of orders dismissing some but not all
counts prior to trial, orders granting new trials, orders judging legislative acts to be
inoperative or unconstitutional). In this regard, our case law is replete with examples of
5
our deferring to the legislature, regardless of any general requirement of finality,
concerning the immediate appealability of any particular order or judgment.
¶48 Finally, I note that the immediate reviewability of particular court orders, by
particular parties, depends largely on how the legislature conceives of the entire process
of which the order in question is a part. With regard to the denial of motions by the
People to revoke probation, for example, we have concluded that despite clearly
finalizing the question whether the defendant’s probation is to be revoked on the basis
of the current motion, such an order is not a final, appealable order as contemplated by
section 16-12-102. See Guatney, 214 P.3d at 1051. In the probation revocation context,
we relied primarily on two considerations: first, the fact that the review of an order
revoking probation was expressly contemplated by both statute and rule, while no
similar provision existed for orders declining to revoke; and second, the fact that, in
light of such things as the defendant’s unchanged status as a probationer and the
continued ability of the People to file for revocation whenever warranted, orders
denying revocation, in contrast to orders granting revocation, did not exhibit typical
indicia of finality. Id. I believe both considerations apply with equal force to the no
adjudication orders at issue here. Rather than the product of some ill-defined interplay
among various canons of statutory construction, I believe the language with which the
legislature has expressed itself in section 19-1-109 demonstrates, on its face, a legislative
conception of the adjudication of dependency or neglect as merely one step in a process
of identification, treatment, and if necessary termination, final only in the sense that an
6
adjudication adversely affects the parent’s right to maintain custody, while an order of
no adjudication merely maintains the status quo, without limiting the People’s right,
and obligation, to refile when warranted by additional circumstances.
¶49 I therefore believe the majority fails to grasp the true legislative intent reflected
in these statutory provisions. Whether or not mine is the better view, however, I
consider it unfortunate that the majority chooses to resolve this question in a case in
which even it holds that the department’s appeal on behalf of the People was premature
and could not be sustained. Under these circumstances, I would simply disapprove the
court of appeals’ construction as unnecessary; affirm its ultimate judgment on the more
narrow grounds upon which the majority relies in any event; and wait for a case in
which our resolution of the broader question whether the People are statutorily
authorized to appeal from no adjudication orders would be of consequence for the
outcome.
7