Rule 3.1 juvenile abuse and neglect matters are some of the most difficult appeals to litigate. Along with administrative agency appeals under Appellate Rule 18, juvenile cases under Rule 3.1 have their own special rules and procedures that can be quite foreboding for the uninitiated.
At the same time, these cases often hold useful nuggets that apply outside the Rule 3.1 context. This week’s In re K.L. is a prime example.
First, give credit to our good friend Toby Hampson for overcoming an apparent waiver by trial counsel on a key issue in the case. At first glance, it appears that trial counsel did not object to the trial court’s “finding” of abuse and neglect by the respondent-mother:
DSS COUNSEL: The mother would neither admit nor deny but interpose [sic] no objection [to] the Court making a finding of abuse or neglect.
THE COURT: Mr. McGregor?
RESPONDENT’S COUNSEL: Yes, sir
THE COURT: With that Stipulation in, the Respondent neither admits nor denies, but is not opposed to [a] finding of abuse and neglect.
Toby overcame this handicap by skillfully distinguishing between findings of fact and legal conclusions.
Second, the case is a good example of why the proper time for filing an appeal can be confusing to less experienced appellate litigants. Generally, the time for filing notice of appeal runs from the date that the order on appeal was “entered.” In In re K.L., one of the orders specifically stated that it was “entered” on 4 April 2012. So assuming timely service of the order, you would think that the notice of appeal would have been due sometime in early May? Wrong. Civil Procedure Rule 58 defines entry as the date when all three of the following have occurred: the order 1) is reduced to writing, 2) signed by the judge, and 3) filed with the trial court clerk. Despite a purported entry date of 4 April 2012, the order was not signed and filed until more than a month later. Therefore, the 4 April 2012 “entry” date was mislabeled, and is likely the date when the trial court orally rendered its ruling. For Rule 58 & notice of appeal purposes, the order was not “entered” until 1 June 2012—the date on which the written and signed order was filed.
Finally, the In re: K.L. case cautions us to beware of subsequent orders issued after the order being appealed. If subsequent orders are not specifically mentioned in the notice of appeal, an amended notice of appeal, or a petition for writ of certiorari, you could find yourself in a strange boat on remand.
In In re K.L., a “Dispositive Order” from which notice of appeal was given was filed on 22 May 2012 and served on 31 May 2012. The day after service of the “Dispositive Order,” the trial court entered a “Subsequent Order” modifying or clarifying the stay issue first addressed in the “Dispositive Order.” [Disclaimer 1: The record is sealed, and so I do not know when the notice of appeal was filed. But based on the way the opinion came out, I have to assume that the notice of appeal was filed after the “Subsequent Order” was entered].
Because the only notice of appeal in the case did not specifically designate the “Subsequent Order,” as required by Appellate Rule 3(d), the Court of Appeals held that it only had jurisdiction to review the “Dispositive Order.” The Court of Appeals decided to remand on the Dispositive Order, but refused to touch the “Subsequent Order.” On remand, this means that the trial court has been instructed to enter new findings of facts and conclusions of law in the juvenile matter, but the trial court’s “Subsequent Order” staying the juvenile matter is still in effect. [Disclaimer 2: It’s even more complicated than that, but you likely get my point].
Hopefully, the trial court and parties will be able to sort this matter out on remand. The key lesson for me is that cases arising under Rule 3.1 can be instructive for all of us, regardless of the types of appeals we take.
–Beth Scherer