Dependency and Neglect Appeals Under C.a.r. 3.4 - October 2007
| Jurisdiction | Colorado,United States |
| Citation | Vol. 36 No. 10 Pg. 55 |
| Pages | 55 |
| Publication year | 2007 |
2007, October, Pg. 55. Dependency and Neglect Appeals Under C.A.R. 3.4 - October 2007
October 2007
Vol. 36, No. 10 [Page 55]
Dependency and Neglect Appeals Under C.A.R 3.4
by Laura Grzetic Eibsen, Toni J. Gray
This article is intended as a practitioner's resource for Colorado dependency and neglect appeals. It provides an overview of pleadings and procedures under C.A.R. 3.4, as well as practice tips and a summary of relevant case law.
Dating back to the 1970s, at least, there was growing nationwide concern about the large number of children who remained out of their family homes for significant periods of their childhoods, frequently moving from one foster home to another, and often reaching the age of majority without belonging to a permanent family. This phenomenon, known as "foster care drift," resulted in the passage of Public Law 96-272, the Adoption Assistance and Child Welfare Act of 1980.(fn1) This Act's main focus provided that a child should have permanency in his or her life.(fn2) The goal of achieving this permanency must be balanced with the state's obligation to make reasonable efforts to reunite children with their families.(fn3) The federally mandated reasonable efforts requirement underwent a transformation whereby the focus on reunification was broadened to place greater emphasis on the health and safety of the child. Furthermore, the Adoption and Safe Families Act of 1997, with its mandate to place children in permanent homes as soon as possible, recognized "the important element of time." Thus, there was a shift in focus from family reunification per se to "time-limited family reunification services."(fn4)
C.A.R. 3.4 expedites dependency and neglect (D&N) appeals by simplifying pleadings and shortening filing periods.(fn5) This article discusses the history of C.A.R. 3.4, provides an overview of the rule, and offers practical suggestions for effective pleadings and practices for attorneys handling D&N appeals.
Effect of C.A.R. 3.4
As a result of C.A.R. 3.4, the average number of days from filing to mandate decreased by 133 days. Thus, children whose parental rights have been terminated can now be adopted four and one-half months earlier than prior to the rule. See the table on the next page entitled "The Effect of C.A.R. 3.4," which was created and provided by John Doerner, Clerk of the Colorado Court of Appeals.
There were eight fewer D&N appeals during the year starting July 1, 2005 after C.A.R. 3.4 took effect, than there were in the year starting March 1, 2004, prior to C.A.R. 3.4. During those time frames, the reversal rate remained almost the same: 4.1 percent under C.A.R. 3.4, compared to 4.8 percent prior to C.A.R. 3.4.
Excluding five complex cases, the time it takes a case to go from being at-issue to being evaluated by Court of Appeals staff attorneys to being assigned to a Court of Appeals judge increased from sixty-six to sixty-seven days. Because traditional citations to the record are not required in the petition and response under C.A.R. 3.4, the Court is taking more time to review the record. In addition, the Colorado Court of Appeals staff attorney reviews the record for issues that may be raised by the court under C.A.R. 3.4(j)(2). Furthermore, supplemental briefing, the receipt of any supplemental record, appellate motions practice, and limited remand all occur after the case is at-issue. These actions take time not consumed by Court of Appeals staff attorney review, but within the staff attorney review period.
The attorneys presenting the issues, authority, argument, and often some references to the record have twenty days to finalize their submissions to the Court, and the Court staff attorneys sometimes take more than three times longer. In one instance, in contrast, an opinion was received forty-one days after being at-issue.
Aside from a slight increase in time from when the case is at-issue to assignment to a Court of Appeals judge, D&N appeals now take less time at every stage of the proceedings. An average of four and one-half months is saved on each appeal. Thus, C.A.R. 3.4 has been successful in expediting D&N appeals.
History and Overview of C.A.R. 3.4
Colorado Appellate Rule 3.4 originated with the Colorado Court Improvement Committee (CIC). Beginning in 2004, the Colorado Court of Appeals Education Unit held symposia where guardians ad litem (GALs), respondent parents' counsel, judges, court reporters, and county attorneys discussed possible improvements to Colorado's D&N appeal procedure.(fn6) As part of this discussion, Judge Gayle Vogel of the Iowa Court of Appeals outlined the process by which Iowa expedited D&N appeals beginning January 1, 2002. She emphasized that significant reduction of the time necessary for D&N appeals expedited permanency for children and families and thus benefited biological parents and children.
Beginning in May 2004, the Colorado Bar Association (CBA) Juvenile Law Section considered the matter of expedited D&N appeals. The Colorado County Child Welfare Attorneys and the Colorado County Attorneys Association supported a revised draft of C.A.R. 3.4. The CBA Executive Council and the CIC considered the rule change, and went before the Colorado Supreme Court on January 25, 2005 to present their position. C.A.R. 3.4 was effective March 1, 2005.
General Provisions of C.A.R. 3.4
To expedite D&N appeals, C.A.R. 3.4 shortened the filing periods and simplified the pleadings. C.A.R. 3.4 provides that the Notice of Appeal must be filed within twenty-one days of the entry of the order being appealed.(fn7) The Petition on Appeal, which is the pleading filed instead of an opening brief, must be filed within twenty days of the filing of the Notice of Appeal.(fn8) The Petition on Appeal is limited to twenty pages.(fn9) The Response to Petition on Appeal must be filed within twenty days after service of the Petition on Appeal(fn10) and also is limited to twenty pages. The pleadings are discussed in more detail below.
The Effect of C.A.R. 3.4
March 1, 2004-February 28, 2005
July 1, 2005-June 30, 2006
Days
Days
Days
100
48
-52
78
9
-69
66
72
6
18
17
-1
62
45
-17
311
178
-133
Opinions issued in sample
105
97
2
2
5
2
0
2
NOA: Notice of Appeal
At-issue: Designation that briefing has been completed; at this point, the case is referred to a staff attorney for review of the record, petition, and response, and preparation of a predisposition memorandum.
Assignment: Assignment of the case to an appellate Division.
To continue reading
Request your trial