In the Interest of H. M., 411 So. 2d 1176

In the Interest of H. M.

411 So. 2d 1176 | La. Ct. App. | 1982

Lead Opinion

ORDER OF DISMISSAL

KLEES, Judge.

The court has considered the Motion to Dismiss Appeal filed by the State of Louisiana through the District Attorney’s office for Orleans Parish, the Motion to Dismiss Appeal filed on behalf of Mr. and Mrs. Cornelius Tilton, Statement of No Objection to the Motion to Dismiss appeal filed by the State of Louisiana through the District Attorney’s office for Orleans Parish entered by the appointed legal representative of the two minor children, as well as the opposition to the motion to dismiss, filed by the Office of Human Development for the State of Louisiana. After an examination of the record this court finds that the Original Motion for Devolutive Appeal filed November 6, 1981 appealed from that judgment of the Juvenile Court read and signed September 8, 1981. Under LSA-CJP, Art. *117799; Appeals shall be taken within fifteen (15) days from the entering of the judgment of disposition.

As this appeal was taken long after the expiration of the 15 day time limit, we are of the opinion that the appeal must be dismissed for lack of jurisdiction.

IT IS ORDERED, that this appeal be dismissed for lack of jurisdiction at appellant’s costs.

REDMANN, J., dissenting with written reasons.

Dissenting Opinion

REDMANN, Judge,

dissenting.

There is no problem of jurisdiction in an untimely appeal in juvenile or criminal matters in this state. The notion that untimeliness of a civil appeal deprives the appellate court of jurisdiction is based on La.C.C.P. 2088’s use of the word “jurisdiction” (in a different meaning, at that). But there is no word “jurisdiction” in the statute applicable here, La.C.J.P. 99.

Particularly in the circumstances of this case, where two infant children, one male and one female, are allegedly being sent back into the household of an adult male who abuses their sex organs and rectums for his own sexual gratification, we should recognize that the failure of some public employee to appeal timely is not the fault of the afflicted infants and we should grant an out-of-time appeal (as does the Louisiana supreme court, as in State v. Wilkerson, 403 So.2d 652 (La.1981)) and decide the merits of this case immediately.