IN RE: PARENTAL RIGHTS AS TO A.I.B., D.M.X.A.

Statutes cited

Key holdings

Practitioner summary

The court evaluated its appellate jurisdiction sua sponte after initial review of the notice of appeal suggested a timeliness defect. Under NRAP 4(a)(1), a notice of appeal must be filed within 30 days after service of written notice of entry of the challenged order. Notice of entry was electronically served on appellant's counsel on January 11, 2022, see NRCP 5(b)(1), making the filing deadline February 10, 2022. The notice of appeal was dated February 12, 2022, and filed in the district court on February 16, 2022. Appellant argued that her district court counsel had told her she had to file after 30 days, that she could not file pro se while represented, and that counsel should have either filed the notice or withdrawn. Counsel further asserted that appellant attempted to file a notice of appeal on February 11, 2022. Respondents A.I.B. and D.M.X.A. responded that the termination order itself contained a notice of the right to appeal stating any appeal had to be filed "no later than 30 days after the date that written Notice of Entry of the Order is served," that appellant's counsel was orally permitted to withdraw on January 12, 2022, and that no authority supports an exception to NRAP 4(a)(1) based on attorney-client miscommunication. Respondents also noted that the alleged February 11 filing would still be untimely. CCDFS agreed the notice of appeal was untimely. Citing Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 330, 741 P.2d 432, 432 (1987), and NRAP 26(b)(1)(A), the court reaffirmed that it lacks jurisdiction to consider an untimely notice of appeal and may not extend the time to file a notice of appeal except as provided in NRAP 4(c). The court rejected CCDFS's separate suggestion that dismissal was warranted because the notice of appeal did not sufficiently identify the challenged order. The court also granted A.I.B. and D.M.X.A.'s motion to file exhibits under seal pursuant to NRS 128.090(7), and granted CCDFS's untimely motion for an extension of time to file a reply under NRAP 26(b)(1)(B).

In plain language

A Nevada district court terminated a mother's parental rights to her two children. The mother wanted to appeal that decision to the Nevada Supreme Court. To do so, she had to file a "notice of appeal" - a short document that tells the courts she is challenging the decision - within 30 days after she was officially notified that the termination order had been entered. The official notice was electronically served on the mother's attorney on January 11, 2022. That meant the deadline to file the notice of appeal was February 10, 2022. The notice of appeal was dated February 12, 2022, and not filed in the district court until February 16, 2022 - several days late. The mother says she also tried to file something on February 11, 2022, but even that date would have been one day past the deadline. The mother explained that she had been confused: she understood from her district court attorney that she had 30 days to file after some other event, and she pointed out that she could not file paperwork on her own while she was represented by a lawyer. She argued her attorney should have either filed the notice of appeal or formally withdrawn from the case. The record reflects that her counsel was orally permitted to withdraw on January 12, 2022, and that the termination order itself contained a written notice telling her she had to appeal within 30 days of being served with the notice of entry. The Nevada Supreme Court said it was sympathetic to the mother's situation but explained that it has no power to hear an appeal filed after the deadline, and it has no power to extend the deadline. Because the notice of appeal was filed late, the court dismissed the appeal without addressing whether the termination of parental rights was correct.