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State ex rel M.M. v. State11/25/2003
On Certiorari to the Utah Court of Appeals
The juvenile court terminated T.S.'s parental rights to her three children. T.S. asked her appointed counsel to appeal. Her counsel failed to file a notice of appeal before the thirty-day deadline. Counsel then filed a motion to accept T.S.'s notice of appeal out of time. The juvenile court denied the motion because it failed to show either excusable neglect or good cause as required by rule 4(e) of the Utah Rules of Appellate Procedure. The court of appeals affirmed the juvenile court's ruling as being within its broad grant of discretion.
We granted certiorari to review whether counsel's failure to file a timely notice of appeal in a termination of parental rights case, an omission which strongly suggests ineffective assistance of counsel, may justify extending the time to appeal. We direct our inquiry exclusively to the decision of the court of appeals which, because it turns on a legal interpretation, we review for correctness. Brown v. Glover, 2000 UT 89, 15, 16 P.3d 540.
T.S. concedes that her notice of appeal was not filed within thirty days as required by rule 4(a) of the Utah Rules of Appellate Procedure. Generally, overdue notices of appeal trigger stern consequences, divesting the appellate court of jurisdiction. Reisbeck v. HCA Health Serv. of Utah, Inc., 2000 UT 48, 5, 2 P.3d 447. The only exception to this is found in rule 4(e), which allows a "trial court, upon a showing of excusable neglect or good cause [to extend] the time for filing a notice." Utah R. App. P. 4(e).
Rule 4(a) has been enforced even if the lawyer, rather than the party, was responsible for the tardiness, as we have held a party accountable for his attorney's neglectful conduct. Reisbeck illustrates this point. 2000 UT 48 at 15. Ms.Reisbeck's medical malpractice lawsuit was dismissed by the trial judge. Id. at 2. Her lawyer filed an untimely notice of appeal. Id. Her innocence in the untimely appeal notwithstanding, the trial judge denied Ms. Reisbeck's rule 4(e) motion to extend the time for filing the notice of appeal, and we affirmed. Id. at 3, 17.
In the case before us, the court of appeals grounded its affirmance of the trial court on the standards for evaluating "good cause" and "excusable neglect" under rule 4(e) found in paragraph 15 of the Reisbeck opinion. There, we indicated that a party would be held accountable for his lawyer's conduct, stating that "where a party or a party's attorney was concededly neglectful, the court must determine whether that neglect should, on balance, be excused." Id. at 15 (emphasis added).
Neither this court in Reisbeck nor the court of appeals in the case now before us considered ineffective assistance of counsel as a relevant issue, as it is not available as an excuse to a disappointed party in a civil case. The court of appeals extended that principle to litigation concerning the termination of parental rights. However, by extending the right to appointed counsel to parents facing termination of their parental rights, our legislature has expressly recognized that termination proceedings are unlike the traditional civil case. In light of this legislative action, it is proper for us to re-examine our application of rule 4(e).
The legislature has expressly codified a parent's right to be represented by counsel at every stage of a termination proceeding. Utah Code Ann. ยง 78-3a-913(1)(a) (1999). If a parent "requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court." Id. In an earlier case, the court of appeals explained the meaning of this statute by saying:
Although this se
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