People in Interest of L.B-H-P., 2021 COA 5

In this case, the Court of Appeals considers an issue of first impression: When does the medical condition or need for medical care of a party’s counsel constitute excusable neglect? Ultimately, the Court concludes that the party must show that counsel’s condition or need for care was so disabling that it prevented counsel from filing the petition or requesting a time extension.

The mother sought district court review of the magistrate’s order terminating the parent-child legal relationship between she and the child, acknowledging that her request for review was four days late but asking the district court to find that she demonstrated excusable neglect for the late filing. The district court denied her petition for review and decided she had not demonstrated excusable neglect. The mother appealed.

The division of the Court Appeals noted that the deadline for filing a request for district court review of a magistrate’s decision in a dependency and neglect case is within seven days of the magistrate’s order. § 19-1-108(5.5). If the trial court determines that a delay in a late petition is the result of excusable neglect, it retains jurisdiction to consider the late petition. C.S. v. People in Interest of I.S., 83 P.3d 627, 635 (Colo. 2004). Excusable neglect is demonstrated in “a situation where the failure to act results from circumstance which would cause a reasonably careful person to neglect a duty.” People in Interest of M.A.M., 167 P.3d, 172 (Colo. App. 2007).

Here, the mother’s counsel provided two reasons for her late filing: her mistaken belief that the deadline was fourteen days rather than seven and her high-risk pregnancy required her to attend three medical appointments within that seven-day period. While acknowledging the importance of medical care for high-risk pregnancies, the Court of Appeals notes that this medical condition did not constitute excusable neglect because counsel could have petitioned for an extension of time. Excusable neglect exists when the condition actually prevents counsel from complying with statutory constraints or procedural rules. The mother’s counsel made no showing that her condition was so disabling that it prevented her from filing a request for an extension of time and the mother’s counsel participated in a day-and-a-half hearing in another case during the relevant period. Regarding counsel’s deadline confusion, the Court acknowledged that the Children’s Code sets different deadlines for different case types but holds that the difference in deadlines does not constitute an unusual circumstance that would cause a reasonably careful person to neglect a duty.

Because the mother failed to meet the standard for excusable neglect, the Court of Appeals affirms the district court decision.

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