Opinion
No. 12–P–186.
2012-05-23
ADOPTION OF SAMIRA.
By the Court (KANTROWITZ, COHEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On December 22, 2011, a single justice of this court allowed the mother's motion to file a late notice of appeal from a Juvenile Court decree terminating her parental rights, and ordered the appeal docketed. A motion to reconsider filed by the Department of Children and Families (department) was denied. Both the department and the child appeal, claiming that more than a year had passed since the decree was entered on December 15, 2010, thus terminating the single justice's authority to extend the time for appeal, and that the mother established neither good cause/excusable neglect nor a meritorious issue to warrant the action taken. We agree that good cause was never established and therefore reverse.
Discussion. A notice of appeal must be filed within thirty days from the date of the entry of the judgment. Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). “Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal by any party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this rule.” Mass.R.A.P. 4(c), as amended, 378 Mass. 930 (1979). “[A]n appellate court may, for good cause shown, extend the period for filing notice of an appeal for up to one year from entry of the judgment.” Cummings v. City Council of Gloucester, 28 Mass.App.Ct. 345, 348 (1990). See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). While good cause may differ from case to case, it must nonetheless be “unique or extraordinary.” Mailer v. Mailer, 387 Mass. 401, 406 (1982).
We recognize that “there is a general equivalence in meaning between [excusable neglect and good cause] in the civil realm.” Commonwealth v. Salinger, 76 Mass.App.Ct. 776, 780 (2010).
Here, the mother waited eight months from the denial of her “motion for new trial/amendment of judgment” before filing a notice of appeal. During this time, the child was adopted by the only family she has known. The only reason proffered for the long delay was that the mother had a drug problem. While we are sympathetic to her plight, her alleged dependence upon drugs did not furnish good cause under rule 14(b).
While the mother did not appear, allegedly due to an illness, at trial on December 15, 2010, she immediately informed her attorney, who quickly sought redress by filing a “motion for new trial/amendment of judgment.” A hearing on that motion was scheduled for January 7, 2011, at which time the mother again did not appear. Her counsel, apparently after speaking with his client, informed the judge that the mother was “otherwise engaged” but would appear in forty-five minutes. Despite the judge giving her ample time to appear, she did not.
As the applicable standard was not met, it was improper to extend the period for filing a late notice of appeal.
Order of single justice reversed.