dissenting.
Appellant’s former counsel did not file a timely notice of appeal from a judgment committing appellant to the custody of the Mental Health Division. Appellant, represented by new counsel, has moved for an order permitting her to pursue her appeal. She argues that her former counsel’s failure to file a timely notice of appeal constitutes inadequate assistance of counsel and that she has established a colorable claim of error in the trial court proceedings. It follows, she reasons, that she has established a sufficient basis for granting her motion. See State ex rel Juv. Dept. v. Balderas, 172 Or App 223, 18 P3d 434 (2001). Although the state has not opposed her motion, the concurring judges have denied it. I respectfully dissent from that decision.
In State ex rel Juv. Dept. v. Geist, 310 Or 176, 185, 796 P2d 1193 (1990), the court held that the parents in a termination of parental rights case have a statutory right to the assistance of adequate counsel and that, where the legislature has failed to provide a remedy to vindicate a violation of that right, the court must fashion a remedy. In State ex rel *721SOSCF v. Hammons, 169 Or App 589, 10 P3d 310 (2000), also a termination of parental rights case, this court held that an attorney’s failure to file a notice of appeal timely is inadequate assistance of counsel. We held that, in the absence of a remedy created by the legislature, the court would afford a remedy, namely, permitting the otherwise untimely appeal to go forward. Id. at 593-94. In Balderas, without engaging in the statutory construction analysis followed by the concurrence, we extended the holding of Geist and Hammons to a juvenile delinquency case and held that the failure of counsel to file a timely notice of appeal was inadequate assistance of counsel and that the proper remedy was to permit the otherwise untimely appeal to go forward. 172 Or App at 227-28.
ORS 426.100(3)(a) provides that the defendant in a mental commitment case has the right to be represented by “suitable legal counsel.” I do not see a legitimate basis for distinguishing this case from Geist, Hammons, and Balderas. In each of those cases, as here, the force of the state directly was brought to bear against an individual’s liberty interests. In each of those cases, as here, the legislature had created a right on the part of the would-be appellant to be represented by suitable counsel. In each of those cases, as here, the legislature had not enacted a remedy to vindicate a violation of the right to be represented by suitable or adequate counsel.
The concurrence takes us to task for failing to examine defendant’s statutory right to counsel under the lens of PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Although it is true that in Miller v. Baldwin, 176 Or App 500, 32 P3d 234 (2001), we distinguished Geist in part on the basis that its statutory construction analysis predated PGE, we primarily distinguished Miller from Geist on the ground that the reasoning of Geist is limited logically to direct attacks on an individual’s liberty interests. That distinction, although not springing from statutory construction methodology, is inapplicable here. Unless and until the Supreme Court decides to revisit the approach taken in Geist, we take comfort in the distinction drawn in Miller.
Appellant’s statutory right to suitable counsel in this case was violated when appellant’s trial attorney failed to cause a notice of appeal to be filed timely. The legislature has *722not provided a remedy to vindicate that right. Therefore, we should do so. The appropriate remedy for the violation is to permit the otherwise untimely appeal to go forward, provided that appellant is able to demonstrate a colorable claim of error in the proceedings from which the appeal is taken. Hammons, 169 Or App at 595; Balderas, 172 Or App at 228. Appellant contends that the record will show that the state failed to prove by clear and convincing evidence that appellant is unable to provide for her own needs, as opposed merely to pursuing an alternative life style. Appellant has demonstrated that the notice of appeal was filed untimely due to no fault of her own personally and she has demonstrated a colorable claim of error in the proceedings below. Therefore, appellant is entitled to have this appeal go forward, notwithstanding that the notice of appeal was filed untimely. The motion should be allowed.
I respectfully dissent.
Haselton, Armstrong, Wollheim, and Schuman, JJ., join in this dissent.