24.1 OVERVIEW
An increasing number of abuse or neglect cases are finding their way into the appellate courts, and it is incumbent on both the children's court and the parties before the children's court to be prepared for the possibility of appeal. Considerations include, for practitioners, the importance of proposing and, for children's court judges, the importance of making sufficient findings, and for all the participants, the desirability of making a complete record to permit adequate review. Taking and docketing appeals properly is also critical.

24.2 APPEALS AS OF RIGHT
These final orders are appealable as of right to the Court of Appeals:

• An order dismissing an abuse and neglect petition. State ex rel. CYFD in the Matter of Vincent L., 1998-NMCA-089, 125 N.M. 452.
• An order finding a child is abused or neglected. State ex rel. CYFD v. Frank G. and Pamela G., 2005-NMCA-026, 137 N.M. 137, aff’d sub nom. In the Matter of Pamela A.G., 2006-NMSC-019, 139 N.M. 459.
• An order terminating parental rights. State ex rel. CYFD v. Erika M., 1999-NMCA-036, 126 N.M. 760.
• Any other final order. See the annotations to Rule 12-201 for examples.

For a discussion of what constitutes a final order, see Kelly Inn No. 102, Inc. v Kapnison, 113 N.M. 231, 236 (1992), discussed in the Court of Appeals’ opinion in Frank G. and Pamela G., 2005-NMCA-026, ¶40.

24.3 APPEALS BY LEAVE
All orders not appealable as of right are appealable by leave of the Court of Appeals as an interlocutory appeal, if so certified with specific language by the children’s court judge in the order from which review is sought. Rule 12-203 of the Rules of Appellate Procedure.

24.4 TIME REQUIREMENTS

24.4.1 FILING THE NOTICE OF APPEAL IN AN APPEAL AS OF RIGHT
An appeal as of right is taken by filing a notice of appeal with the district court clerk within 30 days after the entry of the order or judgment appealed from. Rule 12-201(A)(2). The Court of Appeals has ruled that ineffective assistance of counsel is presumed where counsel fails to file a timely notice of appeal, and thus a parent's appeal from termination of parental rights was deemed to have been timely filed and would be considered on the merits. State ex rel. CYFD in the Matter of Ruth Anne E., 1999-NMCA-035, ¶¶9-10, 126 N.M. 670. The Court of Appeals will also presume ineffective assistance where counsel does not file a timely notice of appeal from an adjudication of abuse and neglect; again, the court will deem the appeal to be timely filed. State ex rel. CYFD v. Amanda M., 2006-NMCA-133, ¶22, 140 N.M. 578. This does not mean an appeal can be filed at any time regardless of the time limits found in the Rules of Appellate Procedure. A conscious decision by a respondent not to file an appeal is not the same as the failure of counsel to file an appeal in a timely manner even though the respondent wanted it filed. The reported cases deal only with the latter situation.

24.4.2 FILING AN INTERLOCUTORY APPEAL
An interlocutory appeal is taken by filing an application for leave to file an interlocutory appeal with the Court of Appeals within 15 days after the entry of the order appealed from. Rule 12-203(A). An interlocutory appeal can only be filed if the trial court judge certifies in writing that the order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. §39-3-4(A).

24.4.3 FILING THE DOCKETING STATEMENT
Unless otherwise ordered by the Court of Appeals, trial counsel is responsible for preparing and filing the docketing statement with the Court of Appeals within 30 days after the filing of the notice of appeal. Rule 12-208(A).

Parents are entitled to appeal the termination of their parental rights, so trial counsel for a parent has an obligation to present the parent's issues in accordance with the guidelines set forth for criminal cases in State v. Franklin, 78 N.M. 127 (1967). See State ex rel. CYFD v. Alicia P., 1999-NMCA-098, ¶¶7-9, 127 N.M. 664 (decided in 1998).

24.4.4 DEADLINES FOR THE SUMMARY CALENDAR
If the case is assigned to the summary calendar, no transcript of proceedings is to be filed. Counsel has 20 days from the date of service of the appellate court clerk's notice of proposed summary disposition to file a memorandum in response to the notice. Rule 12-210(D).

24.4.5 DEADLINES FOR THE GENERAL CALENDAR
Non-Expedited Bench. If the case is assigned to the general calendar, the case will be further assigned to the expedited bench or the non-expedited bench. For the non-expedited bench:

• A transcript of proceedings must be filed as provided by Rule 12-211.
• Briefs are to be filed in accordance with Rules 12-201(B) and 12-213.
• All documents filed with the Court of Appeals, including briefs, must now be in 14 point typeface.
• Appellant's brief in chief must be filed within 45 days after the transcript is filed in the appellate court. Rule 12-210(B).
• Appellee's answer brief must be filed within 45 days after service of appellant's brief in chief. Rule 12-210(B).
• Appellant's reply brief must be filed within 20 days after service of appellee's answer brief. Rule 12-210(B).
• The brief-in-chief and answer brief are limited to 35 pages and the reply brief, if any, is limited to 15 pages. If the page limit is exceeded, the party filing the brief must certify the number of words or number of lines, and that number cannot exceed the number provided for in the applicable rule.

Expedited Bench. The parties may file written objections to an order assigning a case to the expedited bench within 10 days of the order. The court has the discretion to keep a case on the expedited bench despite objection by a party.

The schedule for the expedited bench is as follows:

• The brief in chief is to be filed and served within 30 days after the transcript is filed; the answer brief is to be filed within 30 days of service of the brief-in-chief, and the reply brief, if any, is to be filed within 15 after service of the answer brief.
• The brief-in-chief and answer briefs are limited to 20 pages, in 14 point typeface, and the reply brief, if any, is limited to 10 pages, except by leave of the court. The same rule regarding exceeding page limits for briefs in cases on the general calendar, non-expedited bench, applies to briefs on the expedited bench.
• Once the case is briefed, it is submitted to a panel of three judges, and oral argument is scheduled in every expedited bench case at the next calendar after submission.
• At the conclusion of oral arguments, a decision is ordinarily announced from the bench, and a written decision filed within 24 hours.
• The court may in its discretion ask at oral argument for further briefing. If it does so, the case is placed on the non-expedited general calendar.

24.5 FILING THE TRANSCRIPT OF PROCEEDINGS

24.5.1 AUDIO RECORDED TRANSCRIPTS
If the transcript of proceedings is an audio recording, within 15 days after receipt of the general calendar assignment, the district court clerk must prepare and send the original and two (2) duplicates of the audio recording and an index log to the appellate court. Rule 12-211(B).

24.5.2 OTHER TRANSCRIPTS
If the transcript of proceedings is not an audio recording, within 15 days after service of the general calendar assignment, appellant must file in district court a description of the parts of the proceeding the appellant intends to include in the transcript. Rule 12-211(C)(1).

Within 15 days after appellant's designation, appellee may file in district court a designation of additional parts to be included or may apply to the district court for an order requiring appellant to designate such parts. Rule 12-211(C)(1).

Each party designating a portion of the stenographic transcript must make satisfactory arrangements with the court reporter for payment for the transcript and proof of satisfactory arrangements must be filed with the district court within 15 days of the designation. Rule 12-211(C)(2).

Computer-aided transcripts must be filed within 30 days after the filing of the certificate of satisfactory arrangements. If the transcript is not a computer-aided transcript, it must be filed within 60 days after the filing of the certificate. Rule 12-211(C)(3).

The parties may agree upon a statement of facts and proceedings and stipulate that they deem the statement sufficient for purposes of review. They must file the statement as a transcript of proceedings within 60 days of service of the general calendar assignment, unless otherwise ordered by the court. Rule 12-211(I).

24.6 PRIORITY OF CASES
If the order appealed from grants legal custody of the child to or withholds it from one or more of the parties to the appeal, the appeal must be heard at the earliest practicable time. §32A-1-17(B). Appeals from orders in abuse and neglect and termination of parental rights cases are given priority by the Court of Appeals in scheduling these cases for submission to a panel for a decision. After consulting with attorneys for CYFD, respondents and children, the Court of Appeals adopted a policy aimed at expediting these appeals to the maximum extent possible consistent with the due process rights of the parties. Specifically, the Court has adopted the following policy: “If a children’s court civil case has been pending for more than two months after submission [to an appellate panel] and an opinion has not been circulated, the chief judge shall reassign the case, unless exceptional circumstances exist.”

24.7 STANDARD OF REVIEW
It is the state's burden to prove the statutory grounds for adjudication of abuse or neglect and for termination of parental rights by clear and convincing evidence, with a beyond a reasonable doubt standard required for termination in the case of an Indian child. §§32A-4-20(H) and 32A-4-29(J); State ex rel. CYFD in the Matter of Sara R., 1997-NMSC-038, ¶10, 123 N.M. 711; State ex rel. CYFD v. Tammy S., 1999-NMCA-009, ¶13, 126 N.M. 664 (decided in 1998). The appellate court will uphold the judgment if, viewing the evidence in the light most favorable to the judgment, a fact finder could properly determine that the required standard was met. In the Matter of the Termination of Parental Rights of Eventyr J., 120 N.M. 463, 466 (Ct. App. 1995)

Questions of law are reviewed de novo. Martinez v. Martinez, 93 N.M. 673 (1979). A claim that procedural due process was denied is also reviewed de novo. State ex rel. CYFD in the Matter of Ruth Anne E., 1999-NMCA-035, ¶22, 126 N.M. 670.

24.8 STAY OF PROCEEDINGS
The order of the children's court from which an appeal is taken is not suspended during the pendency of the appeal unless the children's court or the appellate court specifically orders the stay or suspension of the order. The Children's Code, the Children’s Court Rules and the Rules of Appellate Procedure set forth procedures and requirements for a stay. See §32A-1-17 and Rules 10-118 and 12-206.

24.9 JURISDICTION DURING AN APPEAL
The children's court judgment stands until reversed. The children's court retains jurisdiction in the case to enforce (or stay) the order while it is on appeal and to take other actions for the welfare of the child. This was reasonably clear given the ongoing responsibilities of the children’s court in an abuse or neglect case under the Children’s Code, together with the New Mexico Supreme Court’s opinions in Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231 (1992), and Albuquerque Journal v. Jewell, 2001-NMSC-05, 130 N.M. 64. It has been confirmed by the Court of Appeals in State ex rel. CYFD v. Frank G. and Pamela G., 2005-NMCA-026, 137 N.M. 137, aff’d, In the Matter of Pamela A.G., 2006-NMSC-019, 139 N.M. 459.

Kelly Inn v. Kapnison was not a child welfare case but the Court’s opinion may be helpful to children’s court judges and practitioners debating the jurisdiction of the children’s court to address the needs of the child while a case is on appeal: The Court observed:

[T]he rule that an appeal “completely divests” the trial court of jurisdiction over “the case” or “the litigation” has, through frequent repetition, taken on the character of an inflexible law of nature rather than a pragmatic guideline enabling trial courts to determine when to proceed further with some part of a case and when to refrain because issues already resolved are under consideration by an appellate court….

It is clear … that a pending appeal does not divest the trial court of jurisdiction to take further action when the action will not affect the judgment on appeal and when, instead, the further action enables the trial court to carry out or enforce the judgment. 113 N.M. at 241.

When considering a question about the jurisdiction of the trial court more than 30 days after entry of judgment, under §39-1-1, the Court stated: “The trial court retains the same jurisdiction to deal with matters collateral to or separate from the issues resolved in the judgment as it has following the filing of the notice of appeal.” 113 N.M. at 244.

Albuquerque Journal v. Jewell, involved the taking of a writ to the Supreme Court, not a regular appeal, but the same uncertainty over the continued role of the Children’s Court existed. The lower court did not believe it had jurisdiction over its order once the matter went before the appellate court. The Supreme Court disagreed. In accordance with Rule 12-504(D)(1), a party seeking a stay of some action must include a request for a stay in its petition. Unless a stay is granted, the children’s court retains jurisdiction over the order, notwithstanding the appellate court’s consideration of its propriety. 2001-NMSC-05, ¶8.

Frank G. and Pamela G. puts the matter to rest. “While an appeal of an abuse and neglect adjudication is pending, the children’s court has jurisdiction to take further action in the case under Section 32A-4-17(B) which states that an appeal to this Court ‘does not stay the judgment appealed from.’ The Abuse and Neglect Act provides for additional services by CYFD and further hearings by the court to monitor the actions of CYFD, the well-being of the child, and the progress of the parent.” 2005-NMCA-026, ¶42.

24.9.1 APPELLATE JURISDICTION AFTER DISTRICT COURT DISMISSAL
An “appeal of an abuse or neglect adjudication challenging the sufficiency of the evidence is not rendered moot by the district court’s dismissal of the underlying case while the adjudication is on appeal.” State ex rel. CYFD v. Amanda H., 2007-NMCA-29, ¶¶16-18 (note that this is a different case than Amanda M., cited earlier). The Court determined that cases challenging the sufficiency of the evidence of abuse or neglect are capable of repetition but may evade appellate review because district courts are required to dispose of Children’s Code cases quickly, and may do so before the Court of Appeals is able to complete its review. As such, these cases fall within an exception to the mootness doctrine.

24.10 PRESERVING ERROR FOR APPEAL
To preserve error for review, it is important to raise the issue in the trial court. According to the Court of Appeals in Yeager v. St. Vincent Hospital, 1999-NMCA-020, ¶8, 126 N.M. 598, 601 (decided in 1998):

Generally, “a party's failure to request findings and conclusions on specific factors or issues it wishes to be considered results in the waiver of any argument it may wish to raise on appeal as to those issues.” Cordova v. Taos Ski Valley, Inc., 121 N.M. 258, 263, 910 P.2d 334, 339 (Ct. App. 1995). “However, where the record is sufficiently clear to allow the appellate court to understand which issues were raised and argued to the trial court, and not abandoned, the appellate court may address these issues on their merits.” Id.

This comports with the Rules of Appellate Procedure. According to Rule 12-216, to preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked, but formal exceptions are not required nor is it necessary to file a motion for a new trial to preserve questions for review.

The Court of Appeals recently addressed preservation of error in a case challenging the appointment of the grandparents as guardians under the Probate Code, over the mother’s objections. In the court below, mother’s attorney did not cite to past authorities or specifically argue that the district court did not have authority under the Probate Code to appoint guardians for the girls. Yet the Court of Appeals decided that requested findings of fact to the effect that the mother had not abused or neglected the girls, that she was a fit parent and that her parental rights should not be terminated were sufficient to alert the trial court to the appropriate standards to apply. The court cited for support another appellate decision in which the parties having advised the district court of the general theory was sufficient to preserve an issue for appeal. In the Matter of the Guardianship of Ashleigh R., 2002-NMCA-103, ¶12, 132 N.M. 772, citing Quintana v. Baca, 1999-NMSC-017, ¶12, 126 N.M. 679.

The Supreme Court addressed preservation in a case asserting that the respondent mother had a due process right to have an expert appointed at the State’s expense to assist in her defense. The court found that the mother had preserved the issue for appeal by raising it in post-trial motions before the district court entered its findings and judgment because “they alerted the trial court to the alleged error before the entry of the court’s final findings and judgment, giving the trial court the opportunity to correct the error.” State ex rel. CYFD v. Kathleen D.C., 2007-NMSC-018, ¶10, 141 N.M. 335.

A word of caution about no contest pleas: A claim that a plea was involuntary or unknowing may be waived if the respondent does not move to revoke or withdraw the plea when she first learns the consequences and if she does not appeal at the time. State ex rel. CYFD v. Amy B., 2003-NMCA-017, ¶9, 133 N.M. 136. In Amy B., the mother raised the issue for the first time in the Court of Appeals after the children’s court had terminated her parental rights. Yet she had entered the no contest plea at adjudication and did not move to revoke or withdraw it at disposition when she learned the consequences of the plea, nor did she appeal the disposition. As a result, she waived any issue concerning an involuntary or unknowing plea.

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