in Interest of M.R.M

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
February 25, 2021

2021COA22

No. 17CA0255, People in Interest of M.R.M. — Juvenile Court —
Dependency and Neglect — Appeals — Final Appealable Order

In this dependency and neglect proceeding, mother appeals

from the order dismissing the dependency and neglect proceeding

concerning her children. In an earlier opinion, a division of the

court of appeals concluded that the order from which mother

sought to appeal wasn’t a final and appealable order, and that

because her notice of appeal was not filed within twenty-one days

after the entry of the order that was final and appealable, her

appeal was untimely. See People in the Interest of M.R.M., 2018

COA 10. The division, therefore, dismissed mother’s appeal.

The supreme court granted mother’s petition for writ of

certiorari, the vacated the division’s judgment, and remanded the
case for the division to reconsider the case in light of its holding in

People in the Interest of R.S., 2018 CO 31.

After reconsidering of mother’s appeal in light of People in the

Interest of R.S., the division concludes that the allocation of

parental responsibilities (APR) order was the final appealable order

in mother’s proceeding — not the order terminating the juvenile

court’s jurisdiction. And because mother’s notice of appeal was

filed more than twenty-one days after the entry of the APR order,

the division concludes that her appeal was untimely and that it,

therefore, lacks jurisdiction to consider the appeal. Accordingly, the

division dismisses the appeal for lack of jurisdiction
COLORADO COURT OF APPEALS 2021COA22

Court of Appeals No. 17CA0255
Garfield County District Court No. 16JV21
Honorable Denise K. Lynch, Judge

The People of the State of Colorado,

Appellee,

In the Interest of M.R.M., M.M.M., and M.A.M., Children,

and Concerning M.M.A.,

Appellant.

APPEAL DISMISSED

Division II
Opinion by JUDGE WELLING
Dailey and Hawthorne*, JJ., concur

Announced February 25, 2021

Tari L. Williams, County Attorney, Heather K. Beattie, Assistant County
Attorney, Glenwood Springs, Colorado, for Appellee

Cassie L. Coleman, Luisa Berne, Guardians Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 M.M.A. (mother) appeals from the order dismissing the

dependency and neglect proceeding concerning M.R.M., M.M.M.,

and M.A.M. (the children). In our original opinion on this case, we

concluded that the order from which mother seeks to appeal wasn’t

a final and appealable order and that, because her notice of appeal

wasn’t filed within twenty-one days after the entry of the order that

was final and appealable, her appeal was untimely. See People in

Interest of M.R.M., 2018 COA 10 (M.R.M. I). We dismissed mother’s

appeal. Id. at ¶ 1.

¶2 The supreme court granted mother’s petition for writ of

certiorari, vacated our judgment, and remanded the case to us for

reconsideration in light of its holding in People in Interest of R.S.,

2018 CO 31. See M.M.A. v. People in Interest of M.R.M., (Colo. No.

18SC101, May 21, 2018) (unpublished order). Specifically, the

supreme court asked us to address

[w]hether a juvenile court’s order terminating
its jurisdiction is a final and appealable order
from which an appeal may be taken; or
whether an order allocating parental
responsibilities automatically terminates the
juvenile court’s jurisdiction such that the APR
order is the only order from which an appeal
may be taken after entry of the allocation
order.

1
Id. The parties submitted supplemental briefs concerning R.S. and

its effect on the issue at hand.

¶3 After reconsideration of mother’s appeal in light of People in

Interest of R.S., we conclude that the allocation of parental

responsibilities (APR) order was the final, appealable order in

mother’s proceeding — not the order terminating the juvenile

court’s jurisdiction. Because mother’s notice of appeal was filed

more than twenty-one days after the entry of the APR order, her

appeal was untimely and, accordingly, we lack jurisdiction to hear

the appeal. Therefore, we dismiss the appeal.

I. Background

¶4 In March 2016, the Garfield County Department of Human

Services (the Department) sought and received temporary custody

of eleven-year-old M.R.M., six-year-old M.M.M., and three-year-old

M.A.M. based on concerns that the children had been exposed to

drugs, violence in the home, and an injurious environment.

¶5 Shortly after the children were removed from mother’s home,

the Department filed a petition in dependency and neglect, naming

mother and M.M., who is the father of M.R.M. and M.M.M., and

stepfather to M.A.M. (hereinafter father M.M.), as respondents. The

2
Department acknowledged that father M.M. wasn’t M.A.M.’s

biological father and that J.H., a resident of Florida, was suspected

to be her father. A caseworker contacted J.H. in Florida and

learned he had mental health issues. The caseworker then

discussed the situation with J.H.’s mother, who was his primary

caretaker.

¶6 Although the court entered an order requiring genetic testing

of J.H., and the Department said that it was “in the process of

conducting a genetic test to determine paternity,” no genetic test

results appear in the record, and J.H. was never determined to be

M.A.M.’s father or named as a party to the case.

¶7 The court initially placed the children with their maternal

grandmother. However, father M.M. moved from Florida to

Colorado and sought custody of all three children soon after the

case began. He said that he shared custody of the two older

children with mother under a domestic relations order, and he

asserted that he should have custody of M.A.M. because he was her

psychological parent. The court placed the children with him,

under the protective supervision of the Department, at the end of

March.

3
¶8 In May, father M.M. entered into a stipulated agreement for

continued adjudication under section 19-3-505(5), C.R.S. 2020, and

the court adjudicated the children dependent and neglected with

respect to mother after a trial. A division of this court affirmed the

adjudication with respect to mother in People in Interest of M.R.M.,

(Colo. App. No. 16CA1845, Nov. 16, 2017) (not published pursuant

to C.A.R. 35(e)).

¶9 The court adopted treatment plans for both mother and father

M.M. But a few weeks after the court approved mother’s plan,

father M.M. moved to modify the existing order under which he

shared custody of the children with mother and to dismiss the

dependency and neglect case. In support of his request for custody

of M.A.M., as well as the older two children, he submitted a letter

asserting that he was M.A.M.’s father because he was the only

father she had ever known and that he was willing to take full

responsibility for her.

¶ 10 In November, the juvenile court entered an order allocating

parental responsibilities for all three children between father M.M.

and mother (the APR order). The court made no findings as to

whether J.H. or father M.M. was M.A.M.’s legal father. Instead, the

4
court concluded that it had jurisdiction to allocate parental

responsibilities regarding M.A.M. to father M.M. under section 14-

10-123(1)(d), C.R.S. 2020, which provides that a proceeding

concerning the allocation of parental responsibilities may be

commenced by a person other than a parent who has been

allocated parental responsibilities through a juvenile court order.

¶ 11 Approximately two weeks after the court entered the APR

order, the court entered an order terminating its jurisdiction and

closing the case. Mother appealed from that order and the history

of that appeal is discussed supra. Applying R.S. to mother’s appeal,

we reaffirm our prior holding that the APR order is the final,

appealable order from which an appellant has twenty-one days to

file a notice of appeal for the request to be timely.

II. Finality and Appealability

¶ 12 Mother argues the APR order wasn’t final and appealable for

five reasons. First, she contends that the APR order can’t be

deemed a final, appealable order because the juvenile court didn’t

have jurisdiction under section 19-1-104(6), C.R.S. 2020. Second,

she argues that the juvenile court didn’t have jurisdiction to enter

the APR order under section 19-4-130(1), C.R.S. 2020. Third, she

5
argues that the APR order wasn’t final or appealable because it

didn’t fully resolve M.A.M.’s paternity. Fourth, she argues that the

APR order wasn’t final because it was subject to revision. Fifth, she

contends that the APR order wasn’t final because when it was

entered there were still other unresolved issues in the dependency

and neglect proceeding.

A. Law

¶ 13 Ordinarily, a final order or judgment, for purposes of appeal, is

one that ends the action, leaving nothing further to be done to

determine the parties’ rights. People in Interest of O.C., 2012 COA

161, ¶ 8, aff’d, 2013 CO 56.

¶ 14 Under section 19-1-109(1), C.R.S. 2020, of the Children’s

Code, “an appeal as provided in the introductory portion to section

13-4-102(1), C.R.S. [2020], may be taken from any order, decree, or

judgment.” Section 13-4-102(1) provides that the court of appeals

may review the “final judgments” of district courts, including

juvenile courts. In R.S., the supreme court confirmed that “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).” R.S., ¶ 3.

6
¶ 15 Subsections 19-1-109(2)(b) and (2)(c) further authorize appeals

of “order[s] 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,” and “order[s] decreeing a

child to be neglected or dependent . . . after the entry of the

disposition pursuant to section 19-3-508.”

¶ 16 To determine “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.’” R.S., ¶ 37

(quoting Cyr v. Dist. Ct., 685 P.2d 769, 770 (Colo. 1984)).

¶ 17 In R.S., the supreme court construed subsections 19-1-

109(2)(b) and (2)(c) in conjunction with subsection 19-1-109(1) as

“authoriz[ing] appeals from certain additional orders beyond those

authorized by subsection (1).” Id. at ¶ 19. That is, “subsection (1)

codifies a general rule of finality, and subsection[s] (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.” Id. at ¶ 20.

7
B. Jurisdiction Under Section 19-1-104(6)

¶ 18 Subsection 19-1-104(6) authorizes a juvenile court to enter an

APR order for a child who is the subject of a dependency and

neglect proceeding if requested to do so by a party to the case and if

no child custody action concerning the same child is pending in a

district court. Section 19-1-104(6) further provides that, following

the entry of such an order, the court shall file a certified copy of the

order in the county where the child permanently resides, and,

thereafter, such order “shall be treated in the district court as any

other decree issued in a proceeding concerning the allocation of

parental responsibilities.”

¶ 19 Thus, by entering an APR order as authorized by section 19-1-

104(6) and ordering that a copy of the order be filed in the district

court of the county where the child is to reside, the juvenile court

ends the dependency and neglect proceeding and transfers

jurisdiction over the child to the district court. That is, an APR

order determines the rights of the parties and ends the proceeding.

See R.S., ¶¶ 36-38. Such an APR order is final and appealable. See

People in Interest of E.C., 259 P.3d 1272, 1276 (Colo. App. 2010)

(entry of permanency planning order allocating parental

8
responsibilities to aunt, followed by transfer of jurisdiction to the

district court, ended the dependency and neglect proceedings; thus,

the permanency planning order was a final and appealable order);

see also C.A.R. 3.4(a) (expressly recognizing an order allocating

parental responsibilities pursuant to section 19-1-104(6) as an

appealable order).

¶ 20 Mother contends that the APR order can’t be deemed a final,

appealable order because the juvenile court didn’t have jurisdiction

to make the findings needed to grant APR to a nonparent and,

indeed, didn’t have jurisdiction to enter an APR order at all for

M.A.M. She argues that because the court hadn’t adjudicated

M.A.M. dependent and neglected with respect to her father, J.H.,

and the adjudication of the two older children with respect to father

M.M. was still in “deferred” status, the APR order was invalid.

¶ 21 However, the question before us isn’t whether the court had

jurisdiction to enter the order, but, rather, whether the order was

final and appealable. Even an order entered without jurisdiction

may be a final, appealable order if it ends the action, leaving

nothing further to be done to determine the rights of the parties.

See, e.g., People in Interest of S.T., 2015 COA 147 (appeal from APR

9
order entered after trial court found that the allegations of

dependency and neglect petition weren’t proven as to one parent;

order vacated for lack of subject matter jurisdiction).

¶ 22 Under R.S., E.C., and C.A.R. 3.4(a), an APR order entered

under subsection 19-1-104(6) is final and appealable. And because

mother didn’t file a timely appeal from that order, we must dismiss

the appeal.

C. Jurisdiction Under Section 19-4-130(1)

¶ 23 Citing S.T., mother also contends that “without commencing a

paternity action, the juvenile court did not have independent

jurisdiction under the Uniform Parentage Act to enter an order

allocating parental responsibilities.” Here, too, we note that the

issue before us isn’t whether the court had jurisdiction to enter an

APR order, but whether the APR order under the circumstances of

this case was final and appealable, and whether mother filed a

timely appeal from that order. Having concluded that the APR

order was final and appealable, and that mother’s appeal wasn’t

timely, our inquiry is at an end because we lack appellate

jurisdiction. And this is so even when, as here, the issue being

raised on appeal is a challenge to the subject matter jurisdiction of

10
the trial court. Cf. Garcia v. Kubosh, 377 S.W.3d 89, 107 n.41 (Tex.

App. 2012) (“And when a party attempts to challenge a judgment or

order but fails to timely file a notice of appeal, we generally dismiss

the appeal for lack of appellate jurisdiction regardless of whether

the appeal involves a challenge to the trial court’s subject matter

jurisdiction.”).

D. Paternity and Finality

¶ 24 Mother argues that the APR order wasn’t a final, appealable

order because it didn’t fully resolve the rights and liabilities of the

parties as to paternity, support, and parental responsibilities with

respect to M.A.M. We disagree.

1. Legal Principles

¶ 25 Under the Uniform Parentage Act (UPA), sections 19-4-101

to -130, C.R.S. 2020, a man is presumed to be the natural father of

a child if, as relevant here, “genetic tests or other tests of inherited

characteristics have been administered . . . and the results show

that the alleged father is not excluded as the probable father and

that the probability of his parentage is ninety-seven percent or

higher.” § 19-4-105(1)(f), C.R.S. 2020. A presumption of paternity

may arise under other circumstances as well, as provided by

11
section 19-4-105(1)(a)-(e). For example, a presumption of paternity

arises if, while the child is under the age of majority, a man receives

a child into his home and openly holds out the child as his natural

child. § 19-4-105(1)(d).

¶ 26 If two or more presumptions of paternity arise which conflict

with each other, and none has been rebutted by clear and

convincing evidence, “the presumption which on the facts is

founded on the weightier considerations of policy and logic

controls.” § 19-4-105(2)(a); People in Interest of J.G.C., 2013 COA

171, ¶ 22.

¶ 27 Section 19-4-107, C.R.S. 2020, addresses who may bring an

action under the UPA, for what purpose, and when. As relevant

here, a child’s natural mother may bring an action to determine the

existence of the father and child relationship even if the child has

no presumed father. See § 19-4-107(3).

¶ 28 If a paternity issue arises in a dependency and neglect

proceeding, a paternity action may be joined with the dependency

and neglect proceeding to resolve the issue. J.G.C., ¶ 10. In that

situation, the juvenile court must follow the procedures outlined in

the UPA, as its failure to do so will deprive the court of subject

12
matter jurisdiction to decide paternity. Id. at ¶ 11. As relevant

here, the UPA provides that each man presumed to be the father of

a child and each man alleged to be the natural father must be made

a party to the paternity proceeding, or, if not subject to the personal

jurisdiction of the court, must be given notice of the action and an

opportunity to be heard. § 19-4-110, C.R.S. 2020; J.G.S., ¶ 12.

2. Efforts to Determine M.A.M.’s Paternity

¶ 29 As an initial matter, we note that M.A.M. had no presumed

father. Although mother alleged that J.H. was M.A.M.’s biological

father, and there are indications in the record that J.H. had actual

notice of the dependency and neglect proceeding through

communications with the caseworker, he didn’t appear in the case;

he didn’t seek a relationship with the child; and his biological

relationship to the child was never established. Thus, at all times

relevant to this proceeding, J.H. was simply an “alleged father” of

the child, not a presumed father under the UPA. Nor was father

M.M. a presumed father. Although he asserted that he was

M.A.M.’s psychological father, he never claimed to have held her out

as his own or that he was otherwise entitled to the status of

“presumptive father.” Thus, there was no need for a paternity

13
proceeding to determine which of two presumptive fathers should

be recognized as the child’s legal father.

¶ 30 Of course, a paternity proceeding may be initiated for

purposes other than making a choice between two (or more)

presumptive fathers. In this case, the Department’s Child Support

Services Unit had opened a case in 2015 to determine the paternity

of all three children. The court determined that father M.M. was

the oldest children’s father, but not M.A.M.’s father. In that case,

too, J.H. didn’t cooperate in taking a genetic test to determine

whether he was the child’s father despite the fact he was “made

aware” of the proceeding. Eventually the court dismissed the 2015

paternity case with respect to M.A.M.

¶ 31 In October 2016, in a renewed attempt to resolve the problem

of M.A.M.’s paternity, the Department filed a petition to determine

whether J.H. was her father. But the Department quickly withdrew

the petition after concluding that the court didn’t have personal

jurisdiction over J.H.

¶ 32 A few days after the Department withdrew the petition to

determine M.A.M.’s paternity, the juvenile court entered the APR

order. Thus, the question of M.A.M.’s paternity was never resolved.

14
3. R.S., Finality, and Appealability

¶ 33 The supreme court addressed whether the dismissal of a

single parent from a petition in dependency or neglect based on a

jury verdict is a final, appealable order. R.S., ¶¶ 2-3. The court

first concluded that, generally, section 19-1-109(1) authorizes the

appeal from any order that is a “final determination” under section

13-4-102(1) — that is, any order that is a final determination of the

rights of the parties or that ends the action. See id. at ¶ 37 (quoting

Cyr, 685 P.2d at 770). And it held that subsections 19-1-109(2)(b)

and (2)(c) are two exceptions to this general rule established in

section 19-1-109(1).

¶ 34 Applying this holding, the supreme court concluded that the

order dismissing father M.M. from the petition in dependency and

neglect wasn’t final because it “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.” Id. at ¶ 38 (quoting

Cyr, 685 P.2d at 770). Rather, “after entering the order dismissing

[father M.M.], the [juvenile] court adjudicated R.S. as dependent or

neglected (‘in regard to’ Mother)” and the “court thus continued to

exercise jurisdiction over the child and Mother, adopted a treatment

15
plan for Mother, and ordered the case to proceed with Mother

maintaining custody of [the child] under the Department’s

supervision.” Id. Accordingly, the court held, this order didn’t meet

section 19-1-109(1)’s general rule for finality and appealability.

¶ 35 Under section 19-1-109, in a dependency and neglect

proceeding, a post-dispositional order that neither terminates

parental rights nor declines to terminate them generally doesn’t end

the proceeding and isn’t deemed a final, appealable order. See, e.g.,

E.O. v. People, 854 P.2d 797, 801 (Colo. 1993) (order approving

permanency plan that didn’t effectuate any change in permanent

custody or guardianship or terminate parental rights held not final

and appealable; order expressly contemplated further court

proceedings).

4. Finality of the APR Order

¶ 36 Invoking C.R.C.P. 54(b), mother argues that the APR order

wasn’t final because it didn’t fully resolve the rights and liabilities of

all of the parties. But, insofar as she contends that the order didn’t

fully resolve her own rights and liabilities, she doesn’t explain what

was left to be decided in an order that addressed her rights to

visitation, parenting time, and other matters relevant to the APR

16
between her and father M.M. Nor did she attempt to initiate a

paternity proceeding herself, as she might have done under section

19-4-107, if she believed that resolving the issue of M.A.M.’s

paternity was necessary to protect her rights.

¶ 37 Mother also contends that the order didn’t resolve the rights

and liabilities of J.H., the “alleged father” of M.A.M. Rule 54(b),

however, refers to the rights and liabilities of “parties,” and J.H.

wasn’t a party. Although J.H. was identified as the alleged father of

one of the children, he wasn’t ever served with a summons and the

juvenile court never obtained personal jurisdiction over him. And

because J.H. wasn’t a party, whether there were outstanding issues

related to him doesn’t affect finality under Rule 54(b).

E. Possibility of Revision

¶ 38 Mother argues that the APR order wasn’t final because it was

subject to revision. However, once the juvenile court entered the

APR order and directed that it should be certified to the district

court, jurisdiction to modify the order under sections 14-10-129

and 14-10-131, C.R.S. 2020, was transferred to the district court,

leaving nothing further for the juvenile court to do. See § 19-1-

104(6). In addition, we note that, under sections 14-10-129 and

17
14-10-131, all orders concerning parenting time and

decision-making responsibility may be modified if a sufficient

showing is made that circumstances warrant a change.

Nevertheless, APR orders are considered final and appealable, as

recognized by C.A.R. 3.4(a). See also R.S., ¶ 29.

F. Unresolved Issues in the Dependency and Neglect Proceeding

¶ 39 Mother contends that the APR order wasn’t final because when

it was entered the paternity summons for J.H. was still

outstanding, father M.M.’s deferred adjudication hadn’t been

addressed, and the court hadn’t dismissed the case. We aren’t

persuaded.

¶ 40 As discussed above, we conclude that under section 19-1-

104(6), the entry of the APR order ended the dependency and

neglect proceeding and transferred jurisdiction over the allocation of

parental responsibilities to the district court. Therefore, there was

no longer any need to address father M.M.’s deferred adjudication.

Nor was there any need to enter an additional order to dismiss the

case where the APR order served as the case-ending order.

¶ 41 As for the paternity summons, the record doesn’t reveal

whether it was outstanding when the court entered the APR order,

18
as mother asserts. But, even if it was, mother cites no authority for

the proposition that the existence of an outstanding summons is

sufficient to prevent the court from closing the case in which the

summons was issued, and we are aware of no such authority.

III. Timeliness

¶ 42 “Unless a notice of appeal is timely filed, the court of appeals

lacks jurisdiction to hear the appeal.” People in Interest of A.J., 143

P.3d 1143, 1146 (Colo. App. 2006). Because an appellate court

must satisfy itself that it has jurisdiction to hear an appeal, it may

raise jurisdictional defects like untimeliness nostra sponte. People

v. S.X.G., 2012 CO 5, ¶ 9.

¶ 43 Once a final and appealable judgment, decree, or order has

been entered in a dependency and neglect proceeding, a party who

wishes to appeal must file a notice of appeal within twenty-one

days. C.A.R. 3.4(b)(1).

¶ 44 Here, the juvenile court entered an APR order, and ordered

that the APR order be certified into an existing custody proceeding

in the district court as to the older two children and certified into a

new domestic relations case as to the youngest child. Under R.S.

19
and E.C., the APR order was appealable. However, mother didn’t

appeal from that order.

¶ 45 After the court entered the APR order, the Department moved

to terminate the jurisdiction of the juvenile court and close the

dependency and neglect case. The Department reported that the

APR order had been certified into the existing domestic relations

case as to the older two children, and into a new domestic relations

case as to the youngest child, as the court had directed. The

Department argued that there were no further child welfare issues

in the dependency and neglect proceeding that required

intervention by the court, and that it was in the children’s best

interests that the court terminate its jurisdiction and close the case.

The court agreed and entered an order that purportedly terminated

its jurisdiction and closed the dependency and neglect case. That is

the order from which mother appeals.

¶ 46 Because mother’s notice of appeal was filed more than

twenty-one days after the entry of the APR order, we conclude that

her appeal was untimely, and that, accordingly, we lack jurisdiction

to hear the appeal. However, mother argues that the juvenile

court’s order terminating its jurisdiction was the final, appealable

20
order from which she had twenty-one days to file a notice of appeal

because it closed the dependency and neglect proceeding and ended

the jurisdiction of the juvenile court. Further, she contends that

section 19-1-109 is evidence of the legislature’s intent to expand

appellate rights, rather than limit them, and thus the termination

order is final and appealable. Consequently, she argues that her

notice of appeal was timely because it was filed within twenty-one

days of the juvenile court’s entry of the termination order.

Therefore, we have jurisdiction over her appeal and must address

the merits of her contentions.

¶ 47 After review of the supreme court’s opinion in R.S., we

conclude that that the APR order was final and appealable under

section 19-1-109(1) because it resolved the issue at hand — the

parental responsibilities of mother’s three children — and ended the

dependency and neglect proceeding and transferred jurisdiction

over the children to the district court. Thus, the juvenile court’s

order terminating its jurisdiction is superfluous. Mother’s appeal

was untimely because she didn’t file her notice of appeal within

twenty-one days of the juvenile court’s entry of the APR order.

21
Thus, we lack jurisdiction over her appeal and must dismiss the

case.

IV. Indian Child Welfare Act

¶ 48 Mother raises an issue as to whether the Department and the

juvenile court complied with the provisions of the Indian Child

Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and applicable

Bureau of Indian Affairs regulations and guidelines for

implementing ICWA after she asserted that she had Indian heritage.

She contends that the Department failed to comply with ICWA when

it failed to investigate or send notices to tribes after she and the

children’s maternal grandmother stated that mother had a tribal

affiliation and the children’s great-grandmother had been enrolled

in an Indian tribe. The parties disagree as to whether we can

address this issue notwithstanding our determination that the

appeal is untimely. We conclude that we can’t. The untimeliness of

the appeal deprives us of jurisdiction as to all of the issues raised in

mother’s appeal, including the ICWA issues.

¶ 49 However, we note that under 25 U.S.C. § 1914, a parent “may

petition any court of competent jurisdiction” to invalidate an action

for foster care placement or termination of parental rights upon a

22
showing that such action violated any of several sections of ICWA,

including section 1912, concerning notice to tribes. And, in People

in Interest of K.G., 2017 COA 153, ¶¶ 12-18, a division of this court

concluded that in some circumstances a proceeding to allocate

parental responsibilities is a child custody proceeding covered by

ICWA. Thus, mother may be able to raise the issue of ICWA

compliance in the juvenile court. But the availability of such a

collateral attack on the APR order in the juvenile court doesn’t vest

us with jurisdiction to address the ICWA issue in the first instance

as part of this appeal.

V. Conclusion

¶ 50 The appeal is dismissed with prejudice.

JUDGE DAILEY and JUDGE HAWTHORNE concur.

23