Revisions to CAR 3.4 Encourage Improved Advocacy in Dependency and Neglect Appeals, 1016 COBJ, Vol. 45, No. 10 Pg. 49

• Author: David Furman J, David Dean, J. JJ. Wallace and Claire Vetter, J.

45 Colo.Law. 49

Revisions to CAR 3.4 Encourage Improved Advocacy in Dependency and Neglect Appeals

Vol. 45, No. 10 [Page 49]

The Colorado Lawyer

October, 2016

David Furman J, David Dean, J. JJ. Wallace and Claire Vetter, J.

Appellate Practice

On May 23, 2016, the Colorado Supreme Court adopted a revised Colorado Appellate Rule (CAR) 3.4, which governs appeals from dependency and neglect proceedings.^[1] The revisions seek to increase the efficacy of appellate advocacy while maintaining the expedited nature of such appeals. This article describes why such a revised rule was necessary and highlights those revisions.

The Original CAR 3.4: Unintended Consequences

In 2005, the Colorado Supreme Court adopted CAR 3.4 to expedite the appellate process for dependency and neglect cases, in recognition of the deleterious effects lengthy appeals had on children and families. Parents faced uncertainty while they waited for appellate decisions; their children were delayed in being placed in permanent homes. The rule established a petition process in lieu of traditional briefing and shortened the time periods in which parties were required to file a petition and response.

Although CAR 3.4 significantly reduced the length of time required to resolve dependency and neglect appeals, the expedited petition process produced unintended consequences. When the Supreme Court adopted the rule, it anticipated that parties would have access to real-time transcripts when preparing the petition and response. Unfortunately, that did not happen, so parties did not have consistent access to transcripts before the petition or response was due. This created additional responsibilities for staff attorneys of the Court of Appeals in dependency and neglect cases.^[2] These responsibilities included reviewing the entire record to verify facts, locating factual references made by the parties, identifying appellate issues the parties might have missed due to their limited access to the record, and verifying compliance with the Indian Child Welfare Act (ICWA). ^[3]Such responsibilities did not exist for any other case type.

The CAR 3.4 petition process also diminished the quality of appellate advocacy in dependency and neglect cases. Because transcripts often were not available before the petition or response was due, parties were not required to cite to the record. And appellate counsel, who often did not participate in the trial court proceedings and were new to the case, were expected to identify and address important issues on appeal without the benefit of transcripts or a full record. The petition format also limited counsel to presenting legal issues in a summary fashion, despite the fact that many of these cases involved termination of parental rights.

In 2014, the State Court Administrator established a Respondent Parents' Counsel Work Group to, among other things, evaluate the appellate process and make recommendations for improving the quality of appellate advocacy in dependency and neglect appeals. The Work Group recommended significant revisions to CAR 3.4 and related judicial department forms. It presented these recommendations to the Appellate Rules Committee, which, in turn, proposed the revisions to the Colorado Supreme Court. On May 23, 2016, the Court adopted the proposed revisions to CAR 3.4 and related judicial department forms. The changes apply to appellate cases filed on or after July 1, 2016.

The Revised CAR 3.4: Summary of Procedural Changes

The revised CAR 3.4 includes a number of significant changes. These are discussed below.

What May Be Appealed

The revised rule clarifies the types of judgments, decrees, and orders that may be appealed under CAR 3.4, adding the following to those expressly included in the previous rule:

• orders allocating parental responsibilities (CRS § 19-1 -104 (6));

• final orders reinstating the parent-child legal relationship (CRS § 19-3-612); and

• final orders placing guardianship and permanent legal custody with a relative of the child (CRS § 19-3-605).^[4]

Previously, CAR 3.4 only applied to:

• orders terminating or refusing to terminate the parent-child legal relationship (CRS § 19-1-109(2)(b));

• orders decreeing a child to be dependent or neglected (CRS § 19-l-109(2)(c)); and

• final orders of permanent legal custody (CRS § 19-3-702).

E-Service

The revised rule retains the requirement from the previous rule that an appeal must be filed within 21 days after the entry of the judgment, decree, or order.^[5] It also retains the instruction that if notice of the order is mailed to the parties, the time for filing commences from the date of mailing.^[6] The revised rule adds that if notice of the judgment, decree, or order is transmitted to the parties by e-service, the time for filing the appeal commences from the date of e-service. ^[7]

Responsibility to Ensure a Timely Notice of Appeal Is Filed

The revised rule clarifies that trial counsel is obligated to ensure that a timely appeal is filed.^[8] This obligation may be met if different counsel files the appeal, but ultimate responsibility for the appeal rests with trial counsel.^[9] Self-represented parties are obligated to file their own appeals.^[10]

New Requirements to Be Included in the Notice...