People ex rel. N.S.

413 P.3d 172
CourtColorado Court of Appeals
DecidedJanuary 12, 2017
DocketCourt of Appeals No. 16CA0289
StatusPublished
Cited by2 cases

This text of 413 P.3d 172 (People ex rel. N.S.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. N.S., 413 P.3d 172 (Colo. Ct. App. 2017).

Opinion

Opinion by JUDGE FURMAN

¶ 1 In this dependency and neglect case, mother's boyfriend, N.S., challenges the jurisdiction of the juvenile court to adjudicate paternity with regard to mother's child, N.S. Because we conclude that the juvenile court has jurisdiction to enter a judgment of paternity in a dependency and neglect case, we affirm.

I. The Dependency and Neglect Proceedings

¶ 2 The El Paso County Department of Human Services (the Department) became involved in this case after it received a report that the child had tested positive for THC at birth and that there had been an altercation between the child's mother and her boyfriend. According to the report, mother threw the child at boyfriend, and, after he took the child, mother went to his home and threatened to kill his whole family. Shortly thereafter, mother and boyfriend set up a meeting for the child to visit mother, who then decided that she would not give the child back. Consequently, boyfriend contacted law enforcement officials.

¶ 3 The Department filed a dependency and neglect petition. The petition listed boyfriend as the respondent-father. The child *174was placed with him while the Department exercised protective supervision.

¶ 4 At a pretrial conference, the juvenile court found that boyfriend had been alleged to be the child's biological father but had not been adjudicated the child's legal father. So the court ordered genetic paternity testing.

¶ 5 Boyfriend admitted to the dependency and neglect petition's allegation that the child was homeless, without proper care, or not domiciled with a parent, guardian, or legal custodian through no fault of the child's parent, guardian, or legal custodian. Based on his admission, the juvenile court adjudicated the child dependent and neglected. In mother's case, the court deferred the child's adjudication.

¶ 6 The Department subsequently amended the dependency and neglect petition to list "unknown father" and another man, A.C., as respondent-fathers. A.C. was served with this petition. Through genetic paternity testing, it was confirmed that A.C. was the child's biological father.

¶ 7 At a paternity hearing, the juvenile court considered competing presumptions of paternity. On the one hand, pursuant to section 19-4-105(1)(d), C.R.S. 2016, boyfriend was presumed to be the father because he had received the child into his home and openly held out the child to be his natural child. On the other hand, pursuant to section 19-4-105(1)(f), A.C. was presumed to be the father because genetic test results had shown that he was not excluded as the probable father and that the probability of his parentage was ninety-seven percent or higher.

¶ 8 On December 31, 2015, the juvenile court resolved the competing presumptions of paternity and entered judgment adjudicating A.C. as the child's legal father.

¶ 9 On February 16, 2016, boyfriend filed a notice of appeal, challenging the juvenile court's judgment of paternity.

¶ 10 Although the judgment of paternity constituted a final judgment with respect to boyfriend, see D.H. v. People , 192 Colo. 542, 544, 561 P.2d 5, 6 (1977) (defining a final judgment as "one which 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 proceeding"), this court issued an order in which it directed boyfriend to show cause why his appeal should not be dismissed. It noted that a notice of appeal from the judgment of paternity may have been due on or before January 21, 2016. See C.A.R. 3.4(b)(1) (providing that a notice of appeal must be filed within twenty-one days after the entry of the judgment, decree, or order).

¶ 11 Boyfriend responded that C.A.R. 3.4 did not govern an appeal from a judgment of paternity, and thus, the expedited twenty-one-day time period to file a notice of appeal did not apply to his case. Instead, he asserted that C.A.R. 4(a) governed his appeal. Because C.A.R. 4(a) provides that a party must file a notice of appeal "within 49 days of the date of the entry of the judgment, decree, or order from which the party appeals," boyfriend asserted that his notice of appeal was timely.

¶ 12 In response, a motions division of this court ordered the parties to brief two issues: (1) whether the notice of appeal was due within twenty-one days of the date of the final, appealable order under C.A.R. 3.4 ; and (2) whether the juvenile court had jurisdiction to issue the judgment of paternity in a dependency and neglect proceeding.

¶ 13 We first address the notice of appeal issue.

II. Notice of Appeal

¶ 14 We conclude that boyfriend's notice of appeal was timely because C.A.R. 4(a) applies to his appeal.

¶ 15 The interpretation of a rule is a question of law that is reviewed de novo. People v. Zhuk , 239 P.3d 437, 438 (Colo. 2010). And, "[w]e interpret rules of procedure consistent with principals [sic] of statutory construction." Id. at 438-39 (quoting People v. Shell , 148 P.3d 162, 178 (Colo. 2006) ). In so doing, we afford a rule's language its "commonly understood and accepted meaning." Id. at 439 (quoting Leaffer v. Zarlengo , 44 P.3d 1072, 1078 (Colo. 2002) ).

*175¶ 16 C.A.R. 3.4(a), C.R.S., 2015, as it existed when boyfriend filed his appeal, applied to "[a]ppeals 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 section 19-3-702, C.R.S....."

¶ 17 Section 19-1-109(2)(b) and (c) provides that appeals in dependency and neglect cases may be taken from orders terminating or refusing to terminate parental rights and from dispositional orders. Thus, the plain language of C.A.R. 3.4 shows that the rule does not apply to paternity actions.

¶ 18 In contrast, C.A.R. 4 does not list specific orders that are appealable. In the absence of any limiting language, we conclude that a judgment of paternity is subject to C.A.R. 4. Because C.A.R. 4(a) includes only a forty-nine-day limit, and boyfriend filed his notice of appeal within this time period, his appeal was timely, and we will consider it.

III.

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Bluebook (online)
413 P.3d 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-ns-coloctapp-2017.