S.M. v. State (In re S.M.)

S.M. v. State (In re S.M.)

IN THE UTAH COURT OF APPEALS

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State of Utah, in the interest of S.M., B.M., K.M., and J.M, persons under eighteen years of age.

______________________________

S.M.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20050308-CA

F I L E D

(June 3, 2005)

2005 UT App 252

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Fifth District Juvenile, Cedar City Department, 427617

The Honorable Hans Q. Chamberlain

Attorneys: Randall C. Allen and William H. Leigh, Cedar City, for Appellant

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

Martha Pierce and Karla Staheli, Salt Lake City, Guardians Ad Litem

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

S.M. (Father), father of S.M., B.M., K.M., and J.M., seeks to appeal an order of the juvenile court denying Father's motion to amend a child protective order. Father filed a petition pursuant to rule 55 of the Utah Rules of Appellate Procedure. Father's initiation of the appeal is untimely under Utah Rule of Appellate Procedure 52(a). See Utah R. App. P. 52(a).

The child protective order was entered in January 2004, see Utah Code Ann. §§ 78-3h-101 to -107 (Supp. 2004), along with a shelter order and subsequent orders relating to the welfare of the minor children. On December 1, 2004, Father moved the juvenile court to modify the child protective order. The juvenile court held a hearing in January 2005 and denied the motion. The order denying Father's motion to modify was entered on March 7, 2005. Father filed a notice of appeal from this ruling on March 31, twenty-four days after the order was entered.

"A notice of appeal from an order in a child welfare proceeding, as defined in Rule 1(f), must be filed within 15 days of the entry of the order appealed from." Utah R. App. P. 52(a). Rule 1(f) includes appeals taken "from juvenile court orders related to abuse, neglect, dependency, termination, and adoption proceedings." Utah R. App. P. 1(f). The proceeding involved here is "related to" proceedings regarding abuse and neglect of the minor children. Thus, the time frames of rule 52 apply to Father's case. Father's notice of appeal was untimely because it was filed more than fifteen days after the date of the minute entry. See Utah R. App. P. 52(a).

If an appeal is not timely filed, this court has no jurisdiction to consider the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. When this court determines it lacks jurisdiction, it retains only the authority to dismiss the action. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

Accordingly, this appeal is dismissed.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge