People in Interest of R.S

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ADVANCE SHEET HEADNOTE
April 30, 2018

2018 CO 31

No. 16S970, People in Interest of R.S.—Children’s Code—Dependency or Neglect
Proceedings—Appeals.

In this dependency or neglect case, the trial court held a single adjudicatory trial

to determine the dependent or neglected status of the child, with the judge serving as

fact-finder with respect to allegations against the child’s mother, and a jury sitting as

fact-finder with respect to the allegations against the child’s father. The judge

ultimately concluded that the child was dependent or neglected “in regard to” the

mother. In contrast, the jury concluded there was insufficient factual basis to support a

finding that the child was dependent or neglected. In light of these divergent findings,

the trial court adjudicated the child dependent or neglected and continued to exercise

jurisdiction over the child and the mother, but entered an order dismissing the father

from the petition. The People appealed the jury’s verdict regarding the father.

The court of appeals dismissed the People’s appeal for lack of jurisdiction,

reasoning that the dismissal of a single parent from a petition in dependency or neglect

based on a jury verdict is not a final appealable order because neither the appellate rule
nor the statutory provision governing appeals from proceedings in dependency or

neglect expressly permits an appeal from a “‘no adjudication’ finding.”

The supreme court concludes that, with limited exceptions not relevant here,

section 19-1-109(1) of the Colorado Children’s Code authorizes appeals in dependency

or neglect proceedings from “any order” that qualifies as a “final judgment” for

purposes of section 13-4-102(1), C.R.S. (2017). Because the trial court’s order in this case

dismissing the father from the petition was not a “final judgment,” the supreme court

concludes that the court of appeals lacked jurisdiction and properly dismissed the

Department’s appeal.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2018 CO 31

Supreme Court Case No. 16SC970
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 16CA685
______________________________________________________________________________

Petitioner:
The People of the State of Colorado,
In the Interest of Minor Child:
R.S.
v.
Respondents:
G.S. and D.S.

______________________________________________________________________________

Dismissal Affirmed
en banc
April 30, 2018
______________________________________________________________________________

Attorneys for Petitioner:
Ron Carl, County Attorney, Arapahoe County
Michael Valentine
Marilee McWilliams
Aurora, Colorado

Guardian ad Litem for the Minor Child:
Bettenberg, Sharshel & Maguire, LLC
Alison A. Bettenberg
Ranee Sharshel
Centennial, Colorado
Attorneys for Amicus Curiae Office of the Child’s Representative:
Cara L. Nord
Denver, Colorado

Attorneys for Amicus Curiae Office of Respondent Parents’ Counsel:
Ruchi Kapoor
Denver, Colorado

No appearance on behalf of Respondents.

JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE COATS concurs in the judgment.
¶1 In this case, the Arapahoe County Department of Human Services filed a petition

in dependency or neglect concerning minor child R.S., and naming both parents as

respondents. The mother requested a bench trial to adjudicate the dependent or

neglected status of the child; the father requested a jury trial for the same purpose. The

court held a single adjudicatory trial, with the judge serving as fact-finder with respect

to the Department’s allegations against the mother, and a jury sitting as fact-finder with

respect to the allegations against the father. The judge ultimately concluded that the

child was dependent or neglected “in regard to” the mother. In contrast, the jury, as the

father’s fact-finder, concluded there was insufficient factual basis to support a finding

that the child was dependent or neglected. In light of these divergent findings, the trial

court adjudicated the child dependent or neglected and continued to exercise

jurisdiction over the child and the mother, but entered an order dismissing the father

from the petition. The mother appealed the trial court’s adjudication of the child as

dependent or neglected; the Department appealed the jury’s verdict regarding the

father, as well as the trial court’s denial of the Department’s motion for adjudication

notwithstanding the verdict.

¶2 In a unanimous, published opinion, the court of appeals dismissed the

Department’s appeal for lack of jurisdiction, reasoning that the dismissal of a single

parent from a petition in dependency or neglect based on a jury verdict is not a final

appealable order because neither the appellate rule nor the statutory provision

governing appeals from proceedings in dependency or neglect expressly permits an

3
appeal from a “‘no adjudication’ finding.” See People In Interest of S.M-L., 2016 COA

173, ¶¶ 15–23, ___ P.3d ___. We granted the Department and the guardian ad litem’s

petition for certiorari review.1

¶3 We conclude that, with limited exceptions not relevant here, section 19-1-109(1)

of the Colorado Children’s Code authorizes appeals in dependency or neglect

proceedings from “any order” that qualifies as a “final judgment” for purposes of

section 13-4-102(1), C.R.S. (2017). Because the trial court’s order in this case dismissing

the father from the petition was not a “final judgment,” we conclude that the court of

appeals lacked jurisdiction and properly dismissed the Department’s appeal. We

therefore affirm the court of appeals’ dismissal of the Department’s appeal, albeit under

different reasoning.

I. Facts and Procedural History

¶4 In January 2016, the Arapahoe County Department of Human Services filed a

petition in dependency or neglect before the Arapahoe County District Court

concerning minor child R.S. and two other minor children,2 naming R.S.’s biological

mother (“Mother”) and biological father (“Father”) as respondents. The petition alleged

1 We granted certiorari to review the following issue: “Whether a denial of adjudication
in a dependency and neglect action is a final order for purposes of appeal.”
2 The Department’s petition also involves two other children, S.M-L. (Mother’s
biological daughter and Father’s stepdaughter) and B.M-M. (Mother’s biological son
and Father’s stepson), and names O.M-M. (the biological father of S.M-L. and B.M-M.)
as an additional respondent. The appeal before this court concerns only the legal status
of R.S. with respect to Mother and Father.
4
that R.S. was dependent or neglected under section 19-3-102(1)(a)–(d), C.R.S. (2017), on

the grounds that her parents had “abandoned” her, “subjected [her] to mistreatment or

abuse,” or “suffered or allowed another to mistreat or abuse [her] without taking lawful

means to stop such mistreatment or abuse”; she “lack[ed] proper parental care”; her

“environment [was] injurious to [her] welfare”; and her parents failed or refused to

provide proper or necessary care for her well-being. As factual support for these

claims, the petition alleged that Father had sexually abused his stepdaughter (R.S.’s

half-sister) S.M-L., who lived with R.S. and Mother. The petition further alleged that

Mother did not believe S.M-L.’s outcry and that Mother stated that S.M-L. had lied

about the abuse. The petition did not allege that Father had sexually abused R.S. or that

R.S. made an outcry.

¶5 Father and Mother denied the allegations and each requested a trial to

adjudicate the dependent or neglected status of R.S. Mother requested a bench trial,

and Father requested a jury trial.

¶6 A single trial was held on April 19–21, 2016, with the trial court sitting as

Mother’s fact-finder and a jury sitting as Father’s fact-finder.3 The Department

3 Because Mother’s case required certain additional testimony, the adjudicatory trial
proceeded in two phases. In the first phase, spanning April 19–20, the parties presented
evidence pertaining to both Mother’s and Father’s cases. At the end of the second day
of trial, the parties presented closing arguments to the jury, and the jury retired to
deliberate as to Father. On April 21 (the third day of trial), the parties presented
additional evidence regarding Mother’s case and gave closing arguments to the trial
5
presented expert testimony from the Arapahoe County investigator who investigated

the allegations that Father had sexually assaulted S.M-L., the caseworker assigned to the

family, a forensic interviewer who interviewed S.M-L. regarding the sexual-assault

allegations against Father, and a licensed clinical social worker with expertise in sexual

abuse. The Department also presented lay testimony from S.M-L. and Mother. The

Department contended that R.S. faced “prospective harm” as a result of Father’s

conduct toward S.M-L., stating in closing argument that, “If the evidence shows that

[Father] was inappropriate with his stepdaughter [S.M-L.], then we know that [R.S.] is

at risk.” R.S.’s guardian ad litem (the “GAL”) agreed with the Department, adding that

R.S. should be adjudicated as dependent or neglected because Mother “is blatantly

unwilling to even look at the idea that this may have happened to [S.M-L.].”

¶7 The trial court, as Mother’s fact-finder, determined that R.S. was dependent or

neglected, finding that Mother’s response to S.M-L.’s outcry was insufficient to protect

her children, even if the allegations were ultimately untrue. The trial court observed,

“[Mother] does not believe that the information provided by [S.M-L.] is true.

Nonetheless, [Mother] has not developed a way to protect [R.S.] should the allegations

court. The court then made its ruling (as to Mother) and read the jury verdict (as to
Father).
6
be true,” nor has she “determined how she would shelter [R.S.] from [Father] during

times that [R.S.] might be vulnerable.”

¶8 In contrast, the jury, as Father’s fact-finder, found insufficient factual basis to

support a finding that R.S. was dependent or neglected. The Department moved for an

adjudication notwithstanding the jury’s verdict, arguing that the verdict was not

supported by the evidence. The trial court denied the motion and entered an order

dismissing Father from the petition. The court then entered an order adjudicating R.S.

as dependent or neglected “in regard to” Mother and adopted a treatment plan for her.

The case continued with Mother maintaining custody of R.S. under the Department’s

supervision.

¶9 Father later pled guilty in a separate criminal case to a charge of unlawful sexual

contact—no consent, in violation of section 18-3-404(1)(a), C.R.S. (2017). On October 24,

2016, Father was sentenced to four years of Sex Offender Intensive Supervision

Probation and was barred from contact with children under the age of 18.

¶10 Mother appealed the trial court’s adjudication of R.S. as dependent or neglected

with regard to her. The Department appealed the jury’s nonadjudication verdict

regarding Father and the trial court’s denial of its motion for adjudication

notwithstanding the verdict.4

4 The GAL did not file a notice of appeal with respect to the trial court’s orders, but did
file briefing urging the court of appeals to affirm the adjudication of R.S. as dependent
or neglected and to reverse the trial court’s orders dismissing Father from the petition
7
¶11 The court of appeals issued an order to show cause why the Department’s appeal

should not be dismissed for lack of a final appealable order, questioning whether the

dismissal of a single parent from a dependency or neglect petition based on a jury

verdict was a final appealable order. See People In Interest of S.M-L., 2016 COA 173,

¶ 15, ___ P.3d ___. In response to the show-cause order, the Department cited People in

Interest of M.A.L., 592 P.2d 415 (Colo. App. 1976), in which the court of appeals

entertained an appeal of a jury verdict finding that minor children were not dependent

or neglected. See S.M-L., ¶ 15. A motions division of the court allowed the appeal to

proceed and for the issue of finality to be considered on the merits. See id.

¶12 In a unanimous, published opinion, the court of appeals dismissed the

Department’s appeal, concluding that “the [trial] court’s dismissal of a party from a

dependency or neglect petition based on a jury’s verdict is not a final appealable order

under [the Colorado Appellate Rules] or the [Colorado] Children’s Code.” S.M-L., ¶ 15.

The court examined C.A.R. 3.4(a) and section 19-1-109, C.R.S. (2017)—the appellate rule

and statutory provision governing appeals from proceedings in dependency or

neglect—and concluded that neither contains language expressly permitting an appeal

based on the jury verdict. After the court of appeals dismissed the Department’s
appeal, the GAL joined in the Department’s petition for writ of certiorari and in the
Department’s merits briefing before this court.
8
from a “‘no adjudication’ finding.” Id. at ¶¶ 19–20. Thus, the court reasoned, the

General Assembly did not intend for such findings to be appealable orders. Id.

¶13 We granted the Department and the GAL’s joint petition for certiorari review of

the court of appeals’ dismissal of the Department’s appeal.5

II. Analysis

¶14 As the court of appeals observed both in its show-cause order and its opinion,

the question here is whether the dismissal of one parent from a petition based on a

jury’s “no adjudication” verdict constitutes a final appealable order. See S.M-L., ¶ 15.

Accordingly, we analyze whether the statutory provisions and court rule governing

appeals in dependency or neglect proceedings authorized the Department’s appeal of

the trial court’s order dismissing Father from the petition based on the jury’s “no

adjudication” verdict. We conclude that section 19-1-109(1) of the Colorado Children’s

Code authorizes appeals from “any order, decree, or judgment” in dependency or

neglect proceedings, but only to the extent that such appeals are permitted by section

13-4-102(1), C.R.S. (2017). As pertinent here, section 13-4-102(1) authorizes the appeal of

any order that constitutes a final judgment. Here, the order dismissing Father from the

petition was not a final judgment because it did not end the dependency or neglect

proceeding or provide a final determination of the rights of all the parties to the

5Neither Mother nor Father entered appearances or filed briefing before this court. The
Office of Respondent Parents’ Counsel filed an amicus brief in support of Mother and
Father. The Office of the Child’s Representative filed an amicus brief in support of the
Department and the GAL.
9
proceeding. Therefore, the court of appeals lacked jurisdiction and properly dismissed

the Department’s appeal.

A. Statutory Authorization for Appeals from Proceedings in
Dependency or Neglect

¶15 We begin by examining the statutory provisions governing appeals from

proceedings in dependency or neglect. We review questions of statutory construction

de novo. Trujillo v. Colo. Div. of Ins., 2014 CO 17, ¶ 12, 320 P.3d 1208, 1212. In

interpreting these provisions, “[o]ur objective is to effectuate the intent and purpose of

the General Assembly.” Id. at ¶ 12, 320 P.3d at 1212–13. To determine the legislature’s

intent, we look first to the plain language of a statutory provision. Bostelman v. People,

162 P.3d 686, 690 (Colo. 2007). Where the statutory language is clear, we apply the plain

and ordinary meaning of the provision. Trujillo, ¶ 12, 320 P.3d at 1213. Additionally, a

statute must be read “as a whole, construing each provision consistently and in

harmony with the overall statutory design, if possible.” Whitaker v. People, 48 P.3d

555, 558 (Colo. 2002).

¶16 Section 19-1-109 of the Colorado Children’s Code governs appeals from

proceedings in juvenile court, including dependency or neglect proceedings.

Subsection (1) states that an appeal may be taken from “any order, decree, or

judgment,” “as provided in the introductory portion to section 13-4-102(1), C.R.S.”

§ 19-1-109(1). In turn, section 13-4-102(1) provides that the court of appeals shall have

10
initial jurisdiction over appeals from “final judgments”6 of district courts, including

juvenile courts that preside over dependency or neglect proceedings.7

¶17 Section 19-1-109(1)’s reference to appeals “as provided in” section 13-4-102(1)

means that an appeal from juvenile court proceedings must be brought in the court of

appeals and must fall within the scope of appealable orders authorized by section

13-4-102(1). Because section 13-4-102(1), as pertinent here,8 authorizes the court of

appeals to review “final judgments,” we conclude that section 19-1-109(1) authorizes

appeals in dependency or neglect proceedings from any order that qualifies as “final”

for purposes of section 13-4-102(1).

¶18 In considering whether section 19-1-109 authorized the appeal of the trial court’s

order dismissing Father from the petition, the court of appeals focused its analysis on

subsection (2)(b) and (2)(c) of the statute, which designate certain types of orders in

dependency or neglect proceedings as final appealable orders, including “an order

terminating or refusing to terminate” a parent-child relationship and “an order

6Consistent with C.R.C.P. 54(a), we understand the term “judgment” to include orders
and decrees.
7 The Colorado Children’s Code defines “juvenile court” as “the juvenile court of the
city and county of Denver or the juvenile division of the district court outside of the city
and county of Denver.” § 19-1-103(70), C.R.S. (2017).
8Section 13-4-102(1) also provides that the court of appeals shall have initial jurisdiction
over interlocutory appeals of certified questions of law in civil cases from the district
courts, the probate court of the City and County of Denver, and the juvenile court of the
City and County of Denver, with certain exceptions. Such appeals are not at issue in
this case.
11
decreeing a child to be neglected or dependent” following entry of the disposition. See

§ 19-1-109(2)(b)–(c); S.M-L., ¶¶ 19–20. The court of appeals reasoned that the omission

of “no adjudication” findings from the list of appealable orders identified in subsection

(2)(b) and (2)(c) reflects the legislature’s intent not to permit such appeals. See S.M-L.,

¶¶ 18–20.

¶19 We disagree with the court of appeals’ construction of subsection (2)(b) and (2)(c)

because it conflicts with the plain meaning of subsection (1). Subsection (2) must be

read in conjunction with subsection (1), with the goal of giving harmonious and

sensible effect to each subsection. See People v. Kennaugh, 80 P.3d 315, 317 (Colo.

2003). As discussed above, subsection (1) authorizes the appeal of “any order” from a

dependency or neglect proceeding that is “final.” Rather than treat subsection (2)(b)

and (2)(c) as limiting the types of orders in dependency or neglect proceedings that may

be appealed, we construe subsection (2)(b) and (2)(c) to authorize appeals from certain

additional orders beyond those authorized by subsection (1).

¶20 Put differently, subsection (1) codifies a general rule of finality, and subsection

(2)(b) and (2)(c) provide certain exceptions to that general rule by authorizing the

appeal of certain orders from dependency or neglect proceedings that would not

otherwise be considered “final.” For example, subsection (2)(c) provides that an order

of adjudication becomes a final appealable order after the entry of the disposition. Such

an order, however, does not “end[] the particular action in which it is entered.” People

v. Guatney, 214 P.3d 1049, 1051 (Colo. 2009). Rather, an adjudication order authorizes

12
the juvenile court to make further orders affecting the child and the rights of the

parents. See § 19-3-508, C.R.S. (2017); A.M. v. A.C., 2013 CO 16, ¶ 12, 296 P.3d 1026,

1031 (“The adjudication represents the court’s determination that state intervention is

necessary to protect the child and that the family requires rehabilitative services in

order to safely parent the child”). In other words, but for section 19-1-109(2)(c), an

adjudication order ordinarily would not be an appealable order because it would not be

considered “final.”

¶21 The statutory history of section 19-1-109 further supports our reading of

subsections (1) and (2). Since its enactment, the statute has permitted the appeal of any

“final” order in a dependency or neglect proceeding, and nothing in the subsequent

amendments to section 19-1-109 (or its predecessor provisions) evinces a clear

legislative intent to limit the right to appeal in dependency or neglect cases.

¶22 In 1967, the General Assembly enacted the Colorado Children’s Code, which was

then codified under Title 22 of the Revised Statutes. See Ch. 443, sec. 1, §§ 22-1-1 to

22-10-7, 1967 Colo. Sess. Laws 993, 993–1039. Section 22-1-12 of the 1967 Children’s

Code, a predecessor to section 19-1-109, allowed appeals from orders in juvenile

proceedings to be taken to the supreme court.9 That provision stated, in relevant part:

“An appeal from any order, decree, or judgment may be taken to the supreme court by

writ of error as provided by the Colorado rules of civil procedure . . . .” § 22-1-12, C.R.S.

9At the time of the enactment of the 1967 Children’s Code, the Colorado Court of
Appeals did not exist.
13
(1963 & Supp. 1967). At the time, Rule 111 of the Colorado Rules of Civil Procedure

provided that a writ of error shall lie from the supreme court to, among other things, “a

final judgment of any district, county, or juvenile court in all actions or special

proceedings whether governed by [the Colorado Rules of Civil Procedure] or by the

[Colorado Revised Statutes].” C.R.C.P. 111(a)(1), (1963). Thus, in 1967, the legislature

allowed “any order, decree, or judgment” in a dependency or neglect proceeding that

was “final” to be appealed to the supreme court by writ of error.

¶23 The General Assembly reestablished the Colorado Court of Appeals in 1969,

adding Article 21 (“Court of Appeals”) to Title 37 (“Courts of Record”) of the Revised

Statutes. See ch. 106, sec. 1, 1969, §§ 37-21-1 to 37-21-14, Colo. Sess. Laws 265, 265–68.

In so doing, the legislature provided that the court of appeals “shall have initial

jurisdiction over appeals from final judgments of the district courts.” § 37-21-2(1)(a),

C.R.S. (1963 & Supp. 1969); see also § 13-4-102(1), C.R.S. (2017) (current codification).

Two years later, in 1971, the legislature amended section 22-1-12 (the Children’s Code

provision governing appeals), to provide that an appeal may be taken from any order,

decree or judgment “as provided in section 37-21-2(1)(a).” Ch. 87, sec. 5, § 22-1-12, 1971

Colo. Sess. Laws 286, 287.

¶24 The 1971 amendment to section 22-1-12 had the effect of redirecting appeals from

juvenile proceedings to the court of appeals, thus replacing the prior method of appeal

to the supreme court by writ of error. Significantly, the cross-reference to section

37-21-2 demonstrates the legislature’s continued intent to allow appeals from any

14
“final” order in a juvenile proceeding. In other words, nothing in the 1971 amendment

altered the scope of appealable orders in juvenile proceedings, which under the original

version of section 22-1-12 likewise included all orders that were “final.”

¶25 In 1973, the legislature amended section 22-1-12 by adding the following as

subsection (2): “The People of the State of Colorado shall have the same right to appeal

questions of law in delinquency cases under section 22-1-4(1)(b) as exists in criminal

cases.” Ch. 110, sec. 10, § 22-1-12, 1973 Colo. Sess. Laws 384, 388. The addition of

subsection (2) appears to have altered, for the first time, the scope of appealable orders

in juvenile proceedings. However, under its plain terms, the 1973 alteration affected

only delinquency cases and did not suggest the legislature intended to alter or limit any

party’s right to appeal in other juvenile proceedings, such as dependency or neglect

cases.

¶26 Following various recodification projects affecting the ordering of the Revised

Statutes, see, e.g., ch. 138, sec. 1, §§ 19-1-101 to 19-6-105, 1987 Colo. Sess. Laws 695, 812

(recodifying the entire Children’s Code), section 22-1-12 and section 37-21-2 were

relocated to section 19-1-109 and section 13-4-102, respectively, and the cross-reference

was correspondingly updated.

¶27 Finally, in 1997, the General Assembly amended section 19-1-109(2) by

designating the provision governing the People’s right to appeal in delinquency cases

as paragraph (a), and adding new paragraphs (b) and (c) identifying certain types of

orders in dependency or neglect proceedings as final and appealable:

15
 (b) An order terminating or refusing to terminate the legal relationship
between a parent or parents and one or more of the children of such
parent or parents on a petition, or between a child and one or both parents
of the child, shall be a final and appealable order.

(c) An order decreeing a child to be neglected or dependent shall be a final
and appealable order after the entry of the disposition pursuant to section
19-3-508. Any appeal shall not affect the jurisdiction of the trial court to
enter such further dispositional orders as the court believes to be in the
best interests of the child.

Ch. 254, sec. 7, § 19-1-109(2)(b)–(c), 1997 Colo. Sess. Laws 1426, 1433. The legislature has

not further amended subsections (1) or (2).

¶28 Nothing in the 1997 amendment to subsection (2) evinces legislative intent to

restrict appealable orders in dependency or neglect proceedings to those orders

described in paragraphs (b) and (c). Certainly, nothing in the language of the

amendment altered subsection (1) or expressly limited the scope of appealable orders in

such proceedings generally. Moreover, to construe paragraphs (b) and (c) as limitations

on the right to appeal ignores that the statute historically has authorized the appeal of

any final order in dependency or neglect proceedings, and that none of the previous

amendments to section 19-1-109 (or its predecessors) ever sought to limit the scope of

appealable orders in such proceedings.10 If anything, the 1997 addition of paragraphs

(b) and (c) in subsection (2) introduced examples of exceptions to the general finality

10 Even if section 19-1-109(2)(a) could be construed to limit the orders that are
appealable in delinquency cases, we see no reason to construe subsection (2)(b) and
(2)(c) to circumscribe the right to appeal in dependency or neglect cases.
16
requirement embodied in section 109(1)—thus expanding the types of orders that may

be appealed in dependency or neglect cases.

¶29 In sum, we hold that section 19-1-109(1) authorizes the appeal of any order from

a dependency or neglect proceeding that is “final” and that section 19-1-109(2)

authorizes the appeal of certain orders in addition to those orders whose appeal is

authorized by section 19-1-109(1).

B. Whether Section 19-1-109 Conflicts with C.A.R. 3.4(a)

¶30 Having determined that section 19-1-109(1) authorizes the appeal of any final

order and that subsection (2) of that statute does not limit the scope of appealable

orders under subsection (1), we next examine whether this statutory provision conflicts

with C.A.R. 3.4, the appellate rule governing appeals from proceedings in dependency

or neglect. See § 19-1-109(1) (“Appellate procedure shall be as provided by the

Colorado appellate rules.”).

¶31 Because the Department filed its appeal on April 25, 2016, its appeal was

governed by a prior version of C.A.R. 3.4(a), which stated: “How Taken. Appeals from

orders in dependency or neglect proceedings, as permitted by section 19-1-109(2)(b) and

(c), C.R.S., and including final orders of permanent legal custody entered pursuant to

17
section 19-3-702, C.R.S, shall be in the manner and within the time prescribed by this

rule.” (Second emphasis added.)11

¶32 We apply “[t]he standard principles of statutory construction . . . to our

interpretation of court rules.” In re Marriage of Wiggins, 2012 CO 44, ¶ 24, 279 P.3d 1,

7. Where a rule promulgated by this court and a statute conflict, the question becomes

whether the affected matter is “procedural” or “substantive.” See Borer v. Lewis, 91

P.3d 375, 380–81 (Colo. 2004); People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993);

People v. McKenna, 585 P.2d 275, 276–79 (Colo. 1978). The state constitution vests this

court with plenary authority to create procedural rules in civil and criminal cases, but

the legislature has authority to enact statutes governing substantive matters as

distinguished from procedural matters. Borer, 91 P.3d at 380; Wiedemer, 852 P.2d at

436. Thus, if the affected matter is “procedural,” then the court rule controls; if the

affected matter is “substantive,” then the statute controls. See Borer, 91 P.3d at 380;

11 The current version of C.A.R. 3.4(a) was adopted by this court on May 23, 2016, and
became effective for all cases filed on or after July 1, 2016. In its current form, C.A.R.
3.4(a) reads:
How Taken. Appeals from judgments, decrees, or orders in dependency
or neglect proceedings, as permitted by section 19-1-109(2)(b) and (c),
C.R.S., including an order allocating parental responsibilities pursuant to
section 19-1-104(6), C.R.S., final orders entered pursuant to section
19-3-612, C.R.S., and final orders of permanent legal custody entered
pursuant to section 19-3-702 and 19-3-605, C.R.S., must be in the manner
and within the time prescribed by this rule.
Because the Department filed its appeal on April 25, 2016, its appeal was subject to the
pre–July 2016 version of C.A.R. 3.4(a), which, as quoted above in the text, referred only
to appeals from orders, but not from judgments or decrees.
18
Wiedemer, 852 P.2d at 436. Although the distinction between “procedural” and

“substantive” matters is sometimes difficult to discern, we have held that, generally,

“rules adopted to permit the courts to function and function efficiently are procedural

whereas matters of public policy are substantive and are therefore appropriate subjects

for legislation.” Wiedemer, 852 P.2d at 436. We have further explained that when

distinguishing between legislative policy and judicial rulemaking, “we strive to avoid

any unnecessary ‘[c]onfrontation[s] of constitutional authority,’ and instead seek to

reconcile the language and intent of the legislative enactment with our own well-

established rules of procedure.” Borer, 91 P.3d at 380 (alterations in original) (quoting

McKenna, 585 P.2d at 279). Finally, we have recognized that “legislative policy and

judicial rulemaking powers may overlap to some extent so long as there is no

substantial conflict between statute and rule.” McKenna, 585 P.2d at 279.

¶33 The applicable version of C.A.R. 3.4(a) generally establishes the manner and time

for appeals in dependency or neglect proceedings. But by referring to “[a]ppeals from

orders in dependency or neglect proceedings, as permitted by section 19-1-109(2)(b) and

(c),” the rule also implies that only those orders specifically identified in subsection

(2)(b) and (2)(c) may be appealed. Thus, the rule appears to conflict with section

19-1-109(1), which we have determined authorizes the appeal of any final order in

dependency or neglect proceedings.

¶34 We conclude that the matter at issue here—the scope of appealable orders from

dependency or neglect proceedings—is “substantive” and that the statute therefore

19
must prevail over the court rule. Even before we expressly adopted the distinction

between “substantive” and “procedural” matters as a formal analytical framework for

resolving conflicts between statutes and court rules, we held that “[s]tatutes pertaining

to the creation of appellate remedies take precedence over judicial rules of procedure.”

Bill Dreiling Motor Co. v. Court of Appeals, 468 P.2d 37, 41 (Colo. 1970). Implicit in the

notion that appellate remedies created by statute cannot be limited by court rules is our

understanding that the state constitution confers to the legislature the right to define the

subject matter jurisdiction of the appellate courts and, by extension, the kinds of orders

that may be appealed. See id. at 40; People ex rel. City of Aurora v. Smith, 424 P.2d 772,

774 (Colo. 1967). We have thus long recognized that the question of what orders may

be appealed is a “matter[] of public policy” that is an “appropriate subject[] for

legislation,” see Wiedemer, 852 P.2d at 436, even if we have not always expressly

labeled it as a “substantive” matter. We conclude that the scope of appealable orders in

dependency or neglect proceedings is a “substantive” matter, as it pertains to a party’s

right to appeal from such proceedings and to the subject matter jurisdiction of the court

of appeals.

¶35 Accordingly, we hold that, to the extent that the prior version of C.A.R. 3.4(a)

conflicts with section 19-1-109(1), the statute prevails and the rule cannot limit the types

of orders from dependency or neglect proceedings that may be appealed under the

statute.

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 C. Whether the Order Dismissing Father was “Final”

¶36 Having concluded that section 19-1-109(1) authorizes the appeal from any “final”

order in a dependency or neglect proceeding, and that the applicable version of C.A.R.

3.4(a) does not limit the types of orders that may be appealed under the statute, we next

consider whether the trial court’s order dismissing Father from the petition was “final.”

¶37 The general requirement that an order must be final to be appealable stems from

the well-established principle “that an entire case must be decided before any ruling in

that case can be appealed.” Cyr v. Dist. Court, 685 P.2d 769, 770 (Colo. 1984). We have

consistently characterized a final order as “one that ends the particular action in which

it is entered, leaving nothing further for the court pronouncing it to do in order to

completely determine the rights of the parties involved in the proceedings.” Guatney,

214 P.3d at 1051 (citing People v. Jefferson, 748 P.2d 1223, 1224 (Colo. 1988); Stillings v.

Davis, 406 P.2d 337, 338 (Colo. 1965)). Thus, in determining whether an order is final

for purposes of appeal, we generally ask “whether the action of the court constitutes a

final determination of the rights of the parties in the action.” Cyr, 685 P.2d at 770.

¶38 We conclude that the order dismissing Father was not “a final determination of

the rights” of all of the parties to the action, nor did it “end[] the particular action in

which it [was] entered.” See id. at 770 & n.2. Indeed, after entering the order

dismissing Father, the trial court adjudicated R.S. as dependent or neglected (“in regard

to” Mother). The court thus continued to exercise jurisdiction over the child and

21
Mother, adopted a treatment plan for Mother, and ordered the case to proceed with

Mother maintaining custody of R.S. under the Department’s supervision.

¶39 We do not address whether C.R.C.P. 54(b), which “creates an exception to the

general requirement that an entire case be resolved by a final judgment before an

appeal is brought,” Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986), applies to the trial

court’s order dismissing Father. Rule 54(b) permits a trial court “to direct the entry of a

final judgment as to one or more but fewer than all of the claims or parties,” but “only

upon an express determination that there is no just reason for delay and upon an

express direction for the entry of judgment.” Here, the trial court did not certify the

order dismissing Father as final under Rule 54(b) or make any determinations relating

to Rule 54(b), and no party sought Rule 54(b) certification. Under these circumstances,

we will not, sua sponte, inject into this case the issue of whether the order dismissing

Father from the petition could have been certified as a final judgment pursuant to

C.R.C.P. 54(b).

¶40 Because the order dismissing Father from the petition was not “final” for

purposes of section 13-4-102, we conclude that the court of appeals lacked jurisdiction

and properly dismissed the Department’s appeal.

III. Conclusion

¶41 We conclude that, with limited exceptions not relevant here, section 19-1-109(1)

of the Colorado Children’s Code authorizes appeals of all orders in dependency or

neglect proceedings that are “final judgments.” Because the order dismissing Father

22
from the petition was not a “final judgment,” the court of appeals lacked jurisdiction to

hear the Department’s appeal of that order. Accordingly, we affirm the court of

appeals’ dismissal of the Department’s appeal.

JUSTICE COATS concurs in the judgment.

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JUSTICE COATS, concurring in the judgment.

¶42 Because I agree that the People were not authorized to appeal either the jury

verdict finding the child not dependent or neglected or the denial of their motion for an

adjudication notwithstanding the jury’s verdict, I concur in the majority’s judgment

affirming dismissal by the court of appeals. It is not the majority’s finding that the

People’s appeal was unauthorized with which I disagree, but rather its determination,

which I consider both unnecessary to the resolution of this case and mistaken, that but

for the court’s continued exercise of jurisdiction over the child as the result of its

adjudication of dependency or neglect in regard to the mother, the People’s appeal

would be so authorized. Because I also understand the majority to concede, however,

that it is the prerogative of the legislature to preclude an appeal by the People at this

stage of the proceedings if, as a matter of policy, it chooses to do so, and that it has

simply failed to do so thus far, I do not consider the error, as it concerns dependency or

neglect orders, to be of substantial moment. Rather, I write to briefly explain why I do

not consider the majority rationale the better construction of the applicable statutes and

why I believe its premises should not be extended beyond the dependency or neglect

context to which they are applied in this case.

¶43 The majority’s construction rests entirely on the weight it attributes to the word

“any” in the sentence appearing in section 19-1-109(1) of the revised statutes, “An

appeal as provided in the introductory portion to section 13-4-102(1), C.R.S., may be

taken from any order, decree, or judgment,” and the fact that section 13-4-102(1), C.R.S.

1
(2017), describes, among other things, the court of appeals’ “initial jurisdiction over

appeals from final judgments,” id. (emphasis added), of the district courts. The

majority reasons that this subsection therefore authorizes an appeal to the court of

appeals from any “final” order, decree, or judgment, by any party, notwithstanding the

immediately following subsection of the statute, expressly authorizing certain, and

limiting other, appeals by the “people of the state of Colorado.” § 19-1-109(2), C.R.S.

(2017). Unlike the majority, I believe that when read in conjunction with subsection (1)

of section 19-1-109, subsection (2) can only be understood to specify when, and with

regard to what questions, judgments in both delinquency and dependency or neglect

proceedings will be subject to appeal by the People.

¶44 Whether or not the term “final” as used in section 13-4-102 could have the

meaning ascribed to it, the word “any” simply cannot shoulder the burden levied upon

it by the majority. Subsection (2) of section 19-1-109 contains three paragraphs

distinguishing the right of the People to appeal from that of the juvenile or parents,

with regard to three different classes of judgments. The majority asserts that rather

than clarifying or limiting the appellate rights of the People with regard to the

judgments referred to in subsection (1), these provisions permit appeals in addition to

the already authorized appeal of “any” final judgment. This proposition is, however,

difficult to square with the statutory scheme as a whole. Paragraph (2)(a) of section

19-1-109 permits appeals of questions of law by the People in delinquency cases to the

same extent as permitted in criminal cases, but because such appeals are limited to final

2
judgments even in criminal cases, see § 16-12-102(1), C.R.S. (2017); People v.

Gabriesheski, 262 P.3d 653, 656 (Colo. 2011), paragraph (2)(a) would be completely

superfluous if the legislature had already authorized appeals by the People of all final

judgments concerning juveniles in subsection (1). Similarly, paragraph (2)(b) expressly

permits appeals both from orders terminating and orders refusing to terminate parental

rights, but if appeals by the People of all final orders were already authorized,

paragraph (2)(b) would add nothing by authorizing appeals of orders refusing to

terminate parental rights. Rather, the only reasonable conclusion to be drawn from the

legislature’s choice, in back-to-back paragraphs, to specify with regard to termination of

parental rights that both orders terminating and orders refusing to terminate would be

appealable but, concerning dependency or neglect, to designate as appealable only

orders actually decreeing a child to be dependent or neglected, must surely be that the

legislature did not intend for orders declining to adjudicate a child dependent or

neglected to be appealable by the People at all.

¶45 This, of course, is precisely the understanding of these statutory provisions

incorporated by this court in C.A.R. 3.4. At all times pertinent to this case, that rule

expressly permitted, and still does permit, appeals in dependency or neglect

proceedings only as described in paragraphs (2)(b) and (c) of section 19-1-109, without

reference to subsection (1). Despite our clear intent to conform the rule to the statute,

and our long-expressed reluctance to enter the separation-of-powers fray by construing

our own rules to be in conflict with the legislative statutes, see, e.g., People v. Owens,

3
228 P.3d 969, 971–72 (Colo. 2010), the majority is forced to overcome this hurdle to its

current statutory interpretation by construing the rule and statute to be in irreconcilable

conflict, and resolving that conflict by finding the matter to be “substantive,” giving

precedence to the statute, according to the majority’s current interpretation. In addition

to finding this maneuver wholly unconvincing, I am concerned by the majority’s

unnecessarily positing a conflict between statute and rule and gratuitously taking

another stab at the delicate distinction between “procedural” and “substantive”

matters.

¶46 Quite apart from its effect on dependency or neglect law, I am also concerned

about the implications of the majority’s construction for the reviewability of matters by

the appellate courts in general, and the initial jurisdiction of the court of appeals in

particular. Unlike the majority, I do not believe section 13-4-102 is concerned with the

appellate reviewability of judgments at all, a matter as to which it defers to the

appellate rules, but rather with the initial jurisdiction of this state’s statutory, as

distinguished from its constitutional, appellate court. Cf. Bill Dreiling Motor Co. v.

Court of Appeals, 468 P.2d 37, 40–41 (Colo. 1970). As one clear indication that section

13-4-102 has not been understood to be exclusive, or at least that its use of the term

“final” was intended broadly in the sense of “reviewable,” within the contemplation of

C.A.R. 1, the initial jurisdiction of the court of appeals over orders granting or denying

temporary injunctions (made immediately reviewable by C.A.R. 1(a)(3)) has regularly

been exercised without question, despite those orders not being “final” either according

4
to the categorization of Rule 1 or the majority’s test. See, e.g., Gergel v. High View

Homes, L.L.C., 58 P.3d 1132, 1135 (Colo. App. 2002). More importantly, however,

neither section 13-4-102 nor section 19-1-109 remotely suggests that finality is the sole

criterion determining the appealability of any particular judgment, by any particular

party, at any particular point in time.

¶47 Appeals by the People in criminal and delinquency cases are among the clearest

examples of review being barred as moot, notwithstanding the finality of the judgment

with regard to which review is sought, in the absence of express statutory authorization

to the contrary. See People v. Guatney, 214 P.3d 1049, 1050–51 (Colo. 2009); In re People

in Interest of P.L.V., 490 P.2d 685, 687 (Colo. 1971). In providing such express statutory

authorization in this jurisdiction, see § 16-12-102(1), the legislature has nevertheless

subjected appeals by the People to the procedures dictated by the rules of this court,

much as it has done in section 13-4-102, which we have construed to include a limitation

to finality as required by C.A.R. 1. Notwithstanding this general limitation concerning

finality, however, we have regularly acceded to specific legislative direction with regard

to the finality of certain classes of orders, based on policy judgments within the purview

of the legislature, even where we have previously found precisely the contrary

according to our own jurisprudence concerning finality. See, e.g., § 16-12-102(1)

(amendments permitting immediate review of orders dismissing some but not all

counts prior to trial, orders granting new trials, orders judging legislative acts to be

inoperative or unconstitutional). In this regard, our case law is replete with examples of

5
our deferring to the legislature, regardless of any general requirement of finality,

concerning the immediate appealability of any particular order or judgment.

¶48 Finally, I note that the immediate reviewability of particular court orders, by

particular parties, depends largely on how the legislature conceives of the entire process

of which the order in question is a part. With regard to the denial of motions by the

People to revoke probation, for example, we have concluded that despite clearly

finalizing the question whether the defendant’s probation is to be revoked on the basis

of the current motion, such an order is not a final, appealable order as contemplated by

section 16-12-102. See Guatney, 214 P.3d at 1051. In the probation revocation context,

we relied primarily on two considerations: first, the fact that the review of an order

revoking probation was expressly contemplated by both statute and rule, while no

similar provision existed for orders declining to revoke; and second, the fact that, in

light of such things as the defendant’s unchanged status as a probationer and the

continued ability of the People to file for revocation whenever warranted, orders

denying revocation, in contrast to orders granting revocation, did not exhibit typical

indicia of finality. Id. I believe both considerations apply with equal force to the no

adjudication orders at issue here. Rather than the product of some ill-defined interplay

among various canons of statutory construction, I believe the language with which the

legislature has expressed itself in section 19-1-109 demonstrates, on its face, a legislative

conception of the adjudication of dependency or neglect as merely one step in a process

of identification, treatment, and if necessary termination, final only in the sense that an

6
adjudication adversely affects the parent’s right to maintain custody, while an order of

no adjudication merely maintains the status quo, without limiting the People’s right,

and obligation, to refile when warranted by additional circumstances.

¶49 I therefore believe the majority fails to grasp the true legislative intent reflected

in these statutory provisions. Whether or not mine is the better view, however, I

consider it unfortunate that the majority chooses to resolve this question in a case in

which even it holds that the department’s appeal on behalf of the People was premature

and could not be sustained. Under these circumstances, I would simply disapprove the

court of appeals’ construction as unnecessary; affirm its ultimate judgment on the more

narrow grounds upon which the majority relies in any event; and wait for a case in

which our resolution of the broader question whether the People are statutorily

authorized to appeal from no adjudication orders would be of consequence for the

outcome.

7