The Colorado Court of Appeals issued its opinion in People in Interest of M.K.D.A.L. on Thursday, October 23, 2014.
CAR 4.2—Sua Sponte Certification of an Issue for Interlocutory Review.
J.A.A.U., the biological father of M.K.D.A.L., petitioned under CRS § 15-14-304(1) for his appointment as a permanent guardian. According to the petition, “[r]espondent is unable effectively to communicate in the English language to the extent that he lacks the ability to satisfy essential requirements for physical health, safety, or self-care even with appropriate and reasonably available technological assistance.”
The trial court denied the petition, finding that, as a matter of law, speaking English is not a requirement for competency. The court also stated that, pursuant to CAR 4.2, it “will stay this order for 14 days and certify that there is no current case law on this point and that determination of this issue will determine the case.” Petitioner timely filed a petition for interlocutory appeal. There was no motion or stipulation for certification.
Under CAR 4.2(c), the appealing party must move for certification or submit a stipulation signed by all parties within fourteen days after the date of the order to be appealed. The trial court then has discretion to certify the order as immediately appealable; however, if all parties stipulate, the trial court must certify the order. No case interpreting CAR 4.2 has addressed a petition to appeal based on a trial court’s sua sponte certification.
The Court of Appeals concluded that a trial court cannot certify sua sponte an issue for interlocutory review.The Court recognized that a case may arise in which, despite the parties’ inaction, the trial court perceives that its order clearly involves “a controlling and unresolved question of law,” immediate review of which would “promote a more orderly disposition or establish a final disposition of the action,” as provided by CAR 4.2(b). However, the rule only empowers trial courts to grant or deny a motion for certification, not to initiate certification. Accordingly, the petition was dismissed.