R.C. v. State (In re R.C.)

R.C. v. State (In re R.C.)

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah, in the interest of R.C., a person under eighteen years of age.

______________________________

R.C.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040454-CA
 

F I L E D
(August 19, 2004)
 

2004 UT App 280

 

-----

Third District Juvenile, Salt Lake Department

The Honorable Frederic M. Oddone

Attorneys: Gary J. Bell, South Jordan, for Appellant

Mark L. Shurtleff and Carol L.C. Verdoia, Salt Lake City, for Appellee

Martha Pierce, Salt Lake City, Guardian Ad Litem

-----

Before Judges Bench, Davis, and Jackson.

PER CURIAM:

    R.C. appeals from the adjudication order entered on July 14, 2004 that found by clear and convincing evidence that the child was neglected and dependent and, therefore, found the parties to be within the jurisdiction of the juvenile court. This case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction because the notice of appeal filed on May 27, 2004 was not timely.

    "Failure to file a timely notice of appeal deprives this court of jurisdiction over the appeal." Reisbeck v. HCA Health Serv., 2000 UT 48,¶5, 2 P.3d 447. It is undisputed that R.C. failed to file a notice of appeal within thirty days after the date of entry of the order he seeks to appeal. Therefore, "this court may entertain [the] appeal only if the time for appeal was appropriately extended." Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. Extensions of the time to appeal are governed by rule 4(e) of the Utah Rules of Appellate Procedure, which allows a motion to be filed in the trial court up to thirty days after the expiration of the original thirty-day appeal period. See Utah R. App. P. 4(e). R.C. did not file a motion to extend the appeal time, and the time for filing a motion in this case expired on March 15, 2004.

    R.C. claims that he was prevented from filing a notice of appeal or a timely motion to extend the time for appeal by the actions of the juvenile court and the Utah Attorney General's Office. Accordingly, he argues that "[u]nder the unique circumstances of this case, the only relief available to Appellant is [through] a determination by this court that Appellant's untimely filing of his Notice of Appeal was excusable neglect." However, the only means to extend the time for appeal is through a timely motion made in the trial court under rule 4(e). Although the appellate courts may review a trial court's determination of a timely rule 4(e) motion, they cannot consider a claim of excusable neglect in the first instance as a basis to exercise jurisdiction over an untimely appeal. See generally, Reisbeck, 2000 UT 48, 2 P.3d 447; Serrato, 2000 UT App 299, 13 P.3d 616; see also Utah R. App. P. 2 (precluding appellate courts from suspending or modifying rule 4(e)).

    Although captioned "Minutes," the January 14, 2004 order contained the juvenile court's findings of fact, conclusions of law, and order reflecting the complete adjudication of the Verified Petition, and it did not direct the preparation of any further order. Appellate counsel was appointed, and appeared, after the time for filing a notice of appeal had expired, but prior to expiration of the time to make a motion under rule 4(e). There is no support in the trial court record for counsel's claims that he was misled about whether the January 14, 2004 order was final and appealable, and the content of the order should have removed any doubt that the document was the final, appealable adjudication order.

    Once this court determines that it lacks jurisdiction over an appeal, "we retain only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss the appeal for lack of jurisdiction.

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge