The Court of Appeals reviews a magistrate decision to close a paternity case based on the mother’s refusal to testify in person.

The El Paso County Child Support Services (“CSS”) filed a paternity action to determine whether respondent is the biological father of the child. The mother of the child resided in Missouri and declined to testify in person due to outstanding Colorado arrest warrants. The magistrate declined mother’s offer to testify by telephone due to her outstanding warrants. The magistrate ruled that the mother’s testimony was necessary to proceed with the paternity action and closed the case. CSS sought district court review. The district court affirmed the magistrate judge’s decision based on mother’s outstanding warrants. CSS appealed.

The Court of Appeals issued a show cause order directing CSS to address why the appeal should not be dismissed for lack of a final, appealable judgement. A motions division of the court of appeals held that the district court order was a final, appeal able order under the unusual circumstances of this case. The motions division discharged the order to show cause and directed the appeal to proceed. CSS filed an opening brief. No other party filed a brief or entered an appearance.

The Court of Appeals agrees that the district court order is a final appealable order because the order effectively terminated the paternity proceeding. The Court of Appeals notes that the district court order is most analogous to a dismissal without prejudice. While a dismissal without prejudice is ordinarily not a final, appealable order, when case circumstances indicate that the action cannot be saved and the district court’s order precludes further proceedings, dismissal without prejudice qualifies as a final judgment for the purposes of appeal. The Court of Appeals holds that the district court’s judgment was final and served as a basis for appeal because by refusing to allow mother to testify by telephone, the court prevented indefinitely, and likely permanently, an adjudication.

The Court of Appeals also holds that there was no legal basis for the magistrate’s refusal to permit the mother’s testimony by phone. In fact, Colorado Revised Statute 14-5-316(f) required the court to accept such testimony.

The Court of Appeals reverses the district court’s order and remands with instructions that telephone testimony by the mother be permitted.

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