Opinion
No. 1 CA-JV 91-016.
June 18, 1991. Petition and Cross-Petition for Review Granted March 17, 1992.
Appeal from the Superior Court, Maricopa County, Cause No. JS-8441, James C. McDougall, J.
Peter S. Balkan, Phoenix, for appellant.
Grant Woods, Atty. Gen. by C. Eileen Bond, Asst. Atty. Gen., Phoenix, for appellee Department of Economic Security.
OPINION
This is an appeal by a father from a final minute entry order terminating his parental rights in his four-year-old daughter. Appellee Arizona Department of Economic Security (ADES) has moved to dismiss the appeal as untimely filed. The appellant opposes the ADES motion to dismiss and in the alternative asks that he be granted a delayed appeal pursuant to State v. Berlat, 146 Ariz. 505, 507-8, 707 P.2d 303, 305-6 (1985). We consider the following issues:
This court ordinarily rules on such matters in unpublished orders. However, because this case raises important, recurring questions of juvenile appellate procedure, we have chosen to rule on the ADES motion and the appellant's request by published opinion.
(1) Which of the dates reflected on a minute entry order of the juvenile court in Maricopa County represents the date when the order was "entered in the minutes of the juvenile court" within the meaning of Rule 25, Arizona Rules of Procedure for the Juvenile Court;
(2) Whether the procedure for seeking a delayed appeal in a juvenile matter outlined in Berlat, 146 Ariz. 505, 707 P.2d 303, applies in a non-delinquency case; and
(3) Whether the juvenile court has jurisdiction in a non-delinquency case to vacate a final appealable order pursuant to Rule 60(c), Arizona Rules of Civil Procedure, to enable an aggrieved party to commence a timely appeal.
PROCEDURAL BACKGROUND
ADES initiated this matter by filing a petition for the termination of the parent-child relationship between the appellant and his daughter on several of the grounds set forth in A.R.S. § 8-533(B). The appellant indicated his intention to contest the allegations of the petition and was appointed counsel to represent him. The juvenile court conducted a hearing on the petition and took the matter under advisement on August 20, 1990.
The juvenile court subsequently issued a seven-page minute entry order terminating the parent-child relationship. The order set forth the juvenile court's findings as required by A.R.S. § 8-538(A); it therefore was final and appealable. In the Matter of the Appeal in Pima County Juvenile Action No. S-933, 135 Ariz. 278, 280, 660 P.2d 1205, 1207 (1982). Like all minute entry orders issued by the juvenile court in Maricopa County, the juvenile court's termination order reflected several different dates. At the top left, it was dated "10-18-90." At the bottom right, it bore the following designation:
CLERK OF THE COURT Juvenile Court Received: OCT 25 1990 Processed: OCT 25 1990
On November 6, 1990, the juvenile court judge received a letter from the appellant asking that a different attorney be appointed to represent him on appeal. On November 7, 1990, the twentieth day following October 18, 1990, the appellant's counsel filed a notice of appeal. On November 14, 1990, ADES filed a response to the notice of appeal that included a motion to dismiss the appeal as untimely filed.
The ADES motion to dismiss relied on Rule 25, Arizona Rules of Procedure for the Juvenile Court, which provides in part:
(a) An appeal must be taken within 15 days after the final order is entered in the minutes of the juvenile court. There is no requirement that a final order be in writing and signed by the judge before an appeal can be taken. [Emphasis added.]
On November 23, 1990, the appellant's counsel filed a pleading offering the following response to the ADES motion to dismiss:
The Minute Entry was not received or processed by the Clerk of the Juvenile Court until October 25, 1990 as is evidenced by the date stamped on page one on the face of the Minute Entry. ( See Attached Exhibit "1".)
October 25, 1990 was a Thursday. The Natural Father's counsel did not receive a copy of the Minute Entry until Monday, October 29, 1990.
The Natural Father resides in the State of California. The Notice of Appeal was filed within seven (7) days after counsel received notice of the Court's decision.
Also on November 23, 1990, the juvenile court issued a minute entry order appointing a new attorney to represent the appellant in all further proceedings.
On November 26, 1990, the appellant's new counsel filed a separate response to the ADES motion to dismiss, arguing:
(1) The notice of appeal was timely because it was filed within 15 days after the "received" and "processed" date on the juvenile court's minute entry ruling;
(2) The court should treat the letter from the appellant received by the juvenile court on November 6, 1990, as "substantial notice of his intention to appeal;" and
(3) The court should grant the appellant a delayed appeal pursuant to Berlat, 146 Ariz. 505, 707 P.2d 303.
MEANING OF "ENTERED IN THE MINUTES OF THE JUVENILE COURT"
Juvenile Rule 25(a) requires that a notice of appeal be filed within 15 days after the order appealed from is "entered in the minutes of the juvenile court." Relying on Rule 58(a), Arizona Rules of Civil Procedure, which provides that the filing of a written, signed judgment with the clerk of the superior court "constitutes entry of such judgment," the appellant argues that the juvenile court's final order is not "entered in the minutes" within Juvenile Rule 25(a) until it is "filed" with the clerk of the superior court. He asserts that the face of the juvenile court's minute entry ruling in this case indicates that it was received by the clerk of the superior court on October 25, 1990. He therefore concludes that the 15-day appeal period did not begin to run until that date.
We cannot agree. A "minute entry" order is an informal, typed or hand-written record of a trial judge's order made most often by a deputy clerk at the judge's direction. These written records are referred to collectively as the court's "minutes." As a matter of logic and plain English, the date on which a "minute entry" order is "entered in the minutes" of the court is the date of the minute entry order itself. In Maricopa County, this date is reflected at the top left of the minute entry order. See Focal Point, Inc. v. Court of Appeals, 149 Ariz. 128, 129, 717 P.2d 432, 433 (1986) ("It is the practice of the superior court clerk in Maricopa County not to use a `filed' stamp on minute entries filed in the clerk's office. For dating purposes, the clerk uses the date typed in the upper left hand corner of the minute entry order . . ."); see also State v. Garza, 128 Ariz. 8, 9, 623 P.2d 367, 368 (App. 1981). The "received" and "processed" dates on a Maricopa County minute entry order have nothing to do with the "entry" of the order in the court's minutes, but instead indicate the dates on which the clerk's office's mailing center receives the minute entry order and mails out copies to counsel. City of Phoenix v. Geyler, 144 Ariz. 323, 326-27, 697 P.2d 1073, 1076-77 (1985). Accordingly, contrary to the appellant's argument, the 15 days for the filing of a notice of appeal in this case began to run on October 18, 1990, and therefore expired at the close of business on November 2, 1990.
The appellant's letter to the juvenile court judge was not received until November 6, 1990. Reliance on this as a proper "filing" is unavailing; under Juvenile Rule 25, a notice of appeal must be timely filed with the clerk of the superior court. Though the appellant's former counsel evidently received the juvenile court's minute entry ruling on or before November 1, 1990, she did not file a notice of appeal until November 7, 1990. The appeal therefore is untimely and must be dismissed for lack of jurisdiction. Garza, 128 Ariz. at 10, 623 P.2d at 369.
REQUEST FOR DELAYED APPEAL
The appellant's current counsel asserts that any delay in filing the notice of appeal was not attributable to the appellant, but rather to his former counsel or to the juvenile court. He therefore asks that a delayed appeal be granted in accordance with Berlat, 146 Ariz. 505, 707 P.2d 303. Resolution of the question of whether this court or the juvenile court is empowered to grant the appellant a delayed appeal requires a review of the applicable Arizona case law.
In the case of In the Matter of the Appeal in Pima County Juvenile Action No. B-9385, 138 Ariz. 291, 674 P.2d 845 (1983), the juvenile court vacated and reentered its minute entry ruling in an adoption case to enable counsel for the minor children, who had never received a copy of the original minute entry ruling, to file a timely appeal on their behalf. Division Two of this court dismissed the appeal on the theory that the minor children had no standing to appeal. On review, the supreme court held that the minor children had the requisite aggrievement to entitle them to appeal, but it also stated:
There does not appear to have been any formal motion filed in this case to have the order of the juvenile court reentered. Reading the court's minute entry of November 16, 1982, it appears that the juvenile court judge acted in response to information orally furnished to him by counsel. Thus, the record in this case is that the juvenile court judge acted because the parties did not get notice of the original minute entry. Relief under such circumstances is neither available nor appropriate. Park v. Strick, [ 137 Ariz. 100, 669 P.2d 78 (1983)].
Although the appeal in this case must be dismissed as untimely, the parties may be entitled to relief in the juvenile court if an appropriate motion is filed supported by reasons showing justification for such relief. Park v. Strick, supra.
Id. at 295, 674 P.2d at 849. The court in Park v. Strick had held that when an aggrieved party establishes a lack of knowledge that a judgment has been entered and demonstrates additional reasons that are so extraordinary as to justify relief, the trial court has authority under Rule 60(c)(6), Arizona Rules of Civil Procedure, to vacate the judgment and reenter a new judgment to allow a timely appeal. 137 Ariz. 100, 104-5, 669 P.2d 78, 82-83 (1983); see also Geyler, 144 Ariz. at 327-28, 697 P.2d at 1077-78.
The supreme court next addressed the availability of delayed appeals in juvenile cases in Berlat, 146 Ariz. 505, 707 P.2d 303. Berlat and the case on which it relied, In the Matter of the Appeal in Maricopa County Juvenile Action No. J-73355, 110 Ariz. 207, 516 P.2d 580 (1973) (appeal from transfer order), arose from delinquency proceedings. The court in both cases held that a juvenile defendant whose original appeal fails to confer jurisdiction on the appellate court through no fault of his own may seek a delayed appeal from the appellate court pursuant to Rule 16(a), Rules of the Supreme Court. Berlat, 146 Ariz. at 508-9, 707 P.2d at 306-7; J-73355, 110 Ariz. at 209, 516 P.2d at 582. Rule 16(a) provides:
Motion to take delayed appeal. A defendant who has, without fault on his part, failed to take an appeal within the sixty days prescribed by Rule 348 of the Arizona Rules of Criminal Procedure [ see current Rule 31.3] may, by written motion supported by affidavit, apply to this court for an order permitting him to take a delayed appeal. The clerk shall forthwith notify the attorney general who shall respond to such motion within five days.
In Berlat, the court stated:
We recognize that Rule 16 as it pertains to the granting of delayed appeals in criminal cases has been superseded by Criminal Rule 32 which delegates such authority to the superior court. [Citation omitted.] Rule 16, however, has not been abrogated and thus still governs juvenile delayed appeals. Therefore, a juvenile may seek relief in the court of appeals by filing a motion for a delayed appeal with supporting affidavit.
146 Ariz. at 508, 707 P.2d at 306. The court in footnote 1 of Berlat stated: "We also hold that Rule 60(c), Rules of Civil Procedure, 16 A.R.S., does not govern a juvenile's right to a delayed appeal." Id. at 508 n. 1, 707 P.2d at 306 n. 1.
The court in Berlat did not cite its earlier decision in Pima County Juvenile Action No. B-9385 and there is an interpretation that footnote 1 of Berlat conflicts with or even overrules sub silentio B-9385. In our opinion, however, this view fails to take into account the clear difference between Berlat and B-9385. B-9385 arose in a "civil" (non-delinquency) juvenile proceeding in which resort to Rule 60(c) was logical and appropriate. In contrast, Berlat and its predecessor, Maricopa County Juvenile Action No. J-73355, both arose out of delinquency proceedings and just as logically drew on Supreme Court Rule 16(a), which by its terms applied only in criminal proceedings. The court in Berlat accordingly had no reason to cite or discuss B-9385. Both the context and the specific language of footnote 1 in Berlat strongly indicate that the court intended only to foreclose the use of Rule 60(c) in attempts to obtain delayed appeals for juveniles who are the subjects of delinquency or related transfer proceedings. Berlat is simply inapplicable in other kinds of juvenile cases.
The last pertinent case is Arizona Department of Economic Security v. Don, 165 Ariz. 407, 799 P.2d 27 (App. 1990), decided by Division Two of this court. In that case, the juvenile court granted a motion for a delayed appeal from an order terminating the parent-child relationship between the real party in interest and his two children. ADES filed a special action challenging the juvenile court's jurisdiction to do so and the court granted relief. The court observed that Juvenile Rule 29(c) specifically prohibited granting an extension of time for filing an appeal and stated:
The juvenile rules do not provide a procedure for filing a delayed appeal. In criminal cases, Ariz.R.Crim.P. 32, 17 A.R.S., provides such a procedure, and it has been held that a juvenile may seek a delayed appeal under Ariz.R.S.Ct. 16(a), 17A A.R.S., which allows delayed appeals in criminal cases. Maricopa County Juvenile Action No. J-73355, 110 Ariz. 207, 516 P.2d 580 (1973). Rule 16 has been superseded by Ariz.R.Crim.P. 32, delegating the authority to grant a delayed appeal to the superior court, see State v. Rodriquez, 27 Ariz. App. 689, 558 P.2d 717 (1976), but Rule 16 still governs juvenile delayed appeals. State v. Berlat, 146 Ariz. 505, 707 P.2d 303 (1985). It is settled under Berlat that a juvenile has the right to seek a delayed appeal in the criminal context. However, we are unable to find any basis for the granting of a delayed appeal from a juvenile court's order in a civil case. We acknowledge that the severance of the parent-child relationship is a severe and final step. However, it is still a civil matter and, as such, is without the constitutional guarantee of the right to an appeal. Absent such constitutional guarantee, and absent any statutory authority to allow the circumscribing of the time limits for the filing of a notice of appeal, we find that the respondent court acted in excess of its jurisdiction in granting the motion to file a delayed appeal. Therefore, the order granting the motion is vacated.
165 Ariz. at 409, 799 P.2d at 29 (emphasis added). Review by the supreme court was not sought in Don.
The court in Don fails to discuss or even cite B-9385, 138 Ariz. 291, 674 P.2d 845, which expressly indicated that in a juvenile case of the "civil" variety, the juvenile court had jurisdiction to grant a delayed appeal pursuant to Rule 60(c) and Park, 137 Ariz. 100, 669 P.2d 78. Id., 138 Ariz. at 295, 674 P.2d at 849. In our view, B-9385 remains good law. We therefore decline to follow Don.
Like Juvenile Rule 29(c), Rule 5(b) of the Arizona Rules of Civil Appellate Procedure specifically forbids the superior court to shorten or extend the time for filing a notice of appeal. Nevertheless, the supreme court has evidently not viewed Rule 5(b) as barring what amounts to indirect extensions of the time for appeal in civil cases pursuant to Rule 60(c). See generally Geyler, 144 Ariz. 323, 697 P.2d 1073.
In this case, as in B-9385, the appellant may be entitled to relief in the juvenile court if he files an appropriate motion pursuant to Rule 60(c) and demonstrates circumstances meeting the rigorous standards of Geyler, 144 Ariz. 323, 697 P.2d 1073, and Park, 137 Ariz. 100, 669 P.2d 78. We express no opinion on this record concerning whether those standards can be met in this case.
The appeal is dismissed. The appellant's request for a delayed appeal pursuant to Berlat is denied without prejudice to any request for relief in the juvenile court pursuant to Rule 60(c). The appellant's request for permission to file a supplemental brief is denied as moot.
EUBANK, P.J., and CONTRERAS, J., concur.