If you have ever been involved in an appeal from a proceeding in dependency and neglect (D&N), you may have a story about how you were issued an order to show cause as to why your appeal is properly before the court, or even that your appeal was dismissed after bringing your case forward. If you have, you are not alone. Exactly when and what orders or judgments can be appealed is particularly vexing in the D&N context and continues to give attorneys trouble. In recent years, the Colorado Court of Appeals has provided additional guidance on exactly when appeals are proper. The latest guidance comes from a case called In the Interest of C.S.
The Facts of C.S.
The case involved the D&N proceeding of C.S., a baby. C.S. was home alone with his father, who was an EMT. According to Father, the child began choking while being fed. The child became unresponsive. Father claimed that he had to call for emergency assistance and that, in the meantime, he hit the child on the back and provided resuscitation. The child apparently sustained injuries that DHS thought were suspicious. After the incident, DHS filed a petition in dependency and neglect and also entered an administrative child abuse finding.
The child’s mother, who was not at home at the time of the incident, made a no-fault admission that the child was without proper care. Father, on the other hand, denied the allegations in the petition. A jury trial was set per his request.
As the case progressed, DHS switched course. At the joint pretrial readiness conference for Father (which was also the dispositional hearing for Mother), DHS decided to recommend that Mother be allowed to withdraw her plea and moved to dismiss the case against both parents. Apparently, in the interim, Father had disclosed expert witnesses who were prepared to testify that the child’s injuries were inconsistent with Father’s shaking the child (which is apparently what DHS suspected).
But Father wanted more than mere dismissal. According to Father, because he was an EMT, even having an administrative child abuse finding against him was no small matter. He wanted DHS to expunge the administrative findings made against him during the case. In order for that to happen, Father asked the Court to make a finding that the Court was dismissing the case because DHS could not go forward with the evidence it had.
The reason Father made this request was his reliance on a statute, § 19-3-506(6):
When the court finds that the allegations of the petition are not supported by a preponderance of the evidence, the court shall order the petition dismissed and the child discharged from any detention or restriction previously ordered. His or her parents, guardian, or legal custodian shall also be discharged from any restriction or other previous temporary order. The court shall inform the respondent that, pursuant to section 19-3-313.5(3)(f), the department shall expunge the records and reports for purposes related to employment or background checks.
Father wanted the Court to find that the allegations in the petition were not supported and to dismiss the case on those grounds, apparently thinking that would force DHS to expunge the administrative record. The Court, however, dismissed the case without making the findings requested by Father. Instead, the Court noted that Father could obtain the relief he desired through an administrative hearing pursuant to statute. Father appealed from the order dismissing the petition, claiming the Court “denied him a fundamentally fair proceeding when it dismissed the dependency and neglect case without also ensuring the expungement of the administrative child abuse finding that led to the filing of the dependency and neglect case.”
In an opinion by Judge Furman, a division of the Colorado Court of Appeals dismissed this appeal. The division held “that section 19-3-505(6) does not give the juvenile court authority to order expungement of child abuse and neglect records and reports, and the court’s order granting the parties’ voluntary dismissal of the petition in dependency and neglect is not final and appealable.”
The division looked at whether the statutory provision cited by Father actually gave the juvenile court the authority he claimed. Disagreeing with Father’s interpretation, the division interpreted the statute to mean that the court could inform Father about the statute, but not that it could enter an order involving the expunging of records.
Even then, said the division, the juvenile court did not actually determine that the petition was not supported by a preponderance. In fact, it did not enter an order on the merits at all. Section 19-1-109(2)(b) and (c) govern when a party can appeal in D&N cases. Per that statute, no final order judgment, decree or order was entered. So the appeal was dismissed.
Lessons from C.S.: Avoiding Dismissal of an Appeal
The C.S. case provides additional guidance on exactly what can be appealed. It is also a good reminder about the other remedies that are available if DHS makes a finding of child abuse against a client. Administrative remedies are available and can be pursued, particularly when the effects of simply having a finding on one’s record is concerning. (Based on this case, the policy issue of whether it is fair for an innocent parent to be required to take action to defend himself both in court and in an administrative proceeding would have to be addressed by the legislature.)
When on appeal from a D&N case, always be sure to research whether jurisdiction is met, checking section 19-1-109(2)(b) and (c), as well as Colorado Rule of Appellate Procedure 3.4. These appeals are nuanced and situations are often unclear.
Featured Image: ”The Honorable Judge Furman” by Colorado Judicial Branch.
- Frivolous Appeals, Part Two: How to Hold Your Opponent Accountable For a Frivolous Appeal (and Avoid One Yourself)
- The U.S. Supreme Court October 2017-2018 Term Preview
- Defining “Other Legal Disability” and Tolling Colorado’s Statute of Limitations
- Frivolous Appeals, Part One: How to Spot a Truly Frivolous Appeal
- Notice to Opposing Counsel in Discovery: The Intersection of Technology and Courtesy