R.J. v. State (In re A.J.)

R.J. v. State (In re A.J.)

IN THE UTAH COURT OF APPEALS
 

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

______________________________

R.J.,

Appellant,

v.

State of Utah,

Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040756-CA
 

F I L E D
(November 4, 2004)
 

2004 UT App 400

 

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Seventh District Juvenile, Price Department

The Honorable Scott N. Johansen

Attorneys: Samuel S. Bailey, Price, for Appellant

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

Martha Pierce, Salt Lake City, Guardian Ad Litem

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    R.J. (Father), father of A.J and K.J., seeks to appeal an order of the juvenile court retaining jurisdiction over dependency, neglect, custody, and parental rights matters regarding the children. Father filed a petition styled as a petition pursuant to rule 55 of the Utah Rules of Appellate Procedure, but which is substantively more like a petition for interlocutory appeal under rule 5 of the Utah Rules of Appellate Procedure. Regardless of the procedural confusion, however, Father's initiation of the appeal is untimely.

    After a hearing in July 2004, the juvenile court determined that it would retain jurisdiction over the children and that it was the appropriate forum for the proceedings. Although the children had been within the jurisdiction of a California court in proceedings several years prior, the California court declined jurisdiction, conceding that Utah was the proper forum. The juvenile court signed a minute entry, dated August 5, 2004, memorializing the jurisdiction ruling. Father filed a notice of appeal from this ruling on September 1, twenty-seven days after the minute entry.

    Under Utah Rule of Appellate Procedure 52, a notice of appeal in a child welfare matter regarding dependency, neglect, or termination of parental rights must be filed within fifteen days of the entry of the order appealed from. See Utah R. App. P. 52(a). The proceeding involved here regards the status of the children as dependent or neglected, and includes a proceeding to terminate Father's parental rights. 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.

    Under Utah Rule of Appellate Procedure 5, a petition for permission to appeal an interlocutory order must be filed within twenty days after the date of the order appealed from. See Utah R. App. P. 5(a). Although captioned as a rule 55 petition, Father's petition ultimately requests permission to appeal the juvenile court's ruling retaining jurisdiction, an interlocutory order. This request, however, does not comport with rule 5 requirements to file a petition for permission within twenty days of the order. Father's petition including the request was filed on September 17, well beyond the twenty-day time frame.

    Father's notice of appeal was untimely under either rule 52 or rule 5. 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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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge