Interest of A.S.F. , 2021 ND 189 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 28, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 189In the Interest of A.S.F., minor child
State of North Dakota, Petitioner and Appellee
v.
A.S.F., child, C.F., father, Respondents
and
A.S., mother, Respondent and Appellant
No. 20210222
Appeal from the Juvenile Court of Ward County, North Central Judicial
District, the Honorable Connie S. Portscheller, Judicial Referee.
DISMISSED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justices Crothers and McEvers joined. Justice VandeWalle filed a concurring
opinion.
Rozanna C. Larson, State’s Attorney, Minot, N.D., for petitioner and appellee;
submitted on brief.
Scott O. Diamond, Fargo, N.D., for respondent and appellant; submitted on
brief.
Interest of A.S.F.
No. 20210222
Tufte, Justice.
[¶1] A.S. appeals the juvenile court’s judgment and order terminating her
parental rights. Because A.S.’s notice of appeal was untimely, we are without
jurisdiction and we dismiss the appeal.
I
[¶2] A.S. is the mother of A.S.F. In August 2020, the State petitioned for
involuntary termination of A.S.’s parental rights. A.S. was appointed counsel.
At the parental termination hearing, the court allowed A.S.’s counsel to
withdraw after A.S. expressed dissatisfaction with her counsel. The
termination hearing was continued and new counsel was appointed. One day
before the rescheduled hearing, A.S.’s second counsel moved to withdraw. The
judge heard the motion at the termination hearing. There, counsel stated a
material breakdown in the attorney-client relationship had occurred. The court
granted counsel’s motion on the basis of the treatment A.S. showed to her counsel
and the unwillingness of A.S. to work with any attorney the court appointed.
The judge found A.S.’s actions to be a voluntary waiver of her right to counsel.
Counsel was allowed to leave the courtroom. The hearing proceeded with A.S.
without counsel.
[¶3] The juvenile court entered an order terminating parental rights on June
10, 2021. The court served the order to A.S.’s last known address; however, it
came back as returned mail. The court then entered a revised order for
publication on July 13, 2021. The order was published in the Minot Daily News.
On July 22, 2021, A.S. applied for court-appointed counsel. Appellate counsel
was appointed on July 27, 2021. On August 10, 2021, A.S. appealed the
termination of her parental rights to this Court.
II
[¶4] A.S. appealed to this Court 61 days after the initial June 10 order
terminating her parental rights was entered. Because the juvenile court
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entered a revised order for publication on July 13, A.S. argues that her time to
appeal to this Court restarted on July 13. A.S. argues her appeal was timely
because she appealed 28 days after the revised July 13 order was entered.
[¶5] To determine whether A.S.’s appeal was timely, we first must determine
whether the juvenile court properly served A.S. the order terminating her
parental rights. “After the original summons has been served and jurisdiction has
been established, service of papers in a juvenile proceeding may be made” on the
parent’s attorney. If the parent does not have an attorney, service may be made by
“mailing it to the [parent’s] last known address—in which event service is
complete upon mailing.” N.D.R.Juv.P. 7.
[¶6] The juvenile court properly served A.S. the order terminating her
parental rights. In this case, there were two orders entered by the juvenile
court terminating A.S.’s parental rights: the initial June 10 order containing
the findings of fact and conclusions of law, and the July 13 order that was
revised solely for the purpose of making another attempt to serve A.S. Under
N.D.R.Juv.P. 7(c)(3), it was unnecessary for the court to re-attempt service by
republishing the order. At the time the order was served, the original summons
had been served upon A.S. and jurisdiction had been established. Thus, it was
permissible for the court to serve A.S. the order by mailing it to her last known
address. Even though it came back as “unclaimed,” the service was complete
upon mailing. The court was under no obligation to make continued attempts
to serve A.S. Because the court used the last known address for A.S, the court’s
first attempt at service was proper.
[¶7] Under N.D.R.App.P. 2.2(a), “[a]n appeal from an order terminating
parental rights must be taken by filing a notice of expedited appeal with the
clerk of the supreme court within 30 days after entry of the order.” Here, no
motion for an extension of time to file an appeal was made. Any such motion
would have been unavailing, because we have held “an extension of time for
excusable neglect or good cause . . . does not apply to terminations of parental
rights.” Interest of T.S.C., 2018 ND 76, ¶ 6, 908 N.W.2d 754. A.S.’s appeal is
timely only if the time to appeal restarted upon entry of the July 13 revised
order.
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[¶8] This Court has not considered the effect of a subsequent, summarized
order for publication on the running of the time to appeal. However, this Court
has analyzed whether a party may appeal an order that has the same legal
effect as an earlier order from which the time for appeal has lapsed. In Miller
v. Thompson, this Court held that a second order denying a new trial did not
extend the lapsed period for appeal on the court’s first order denying a new
trial. 153 N.W. 390, 391 (N.D. 1915). In that case, the trial court entered its
first order on November 30. Id. at 390–91. Thompson did not appeal that order
within the appeal period. Id. at 391. The court then “entered a second order of
the same legal effect as that of [the] November 30th” order. Id. Thompson
timely appealed the second order. Id. This Court held that because the “lapse
of time without an appeal” made the November 30 order “final and conclusive,”
the court was “powerless to later, and after the expiration of the said [time to
appeal], amend it or make a subsequent order to the same effect from which
an appeal might be taken.” Id. Thus, the second order “was a nullity” and
“could confer no right of appeal therefrom nor in any way extend the already
lapsed period for appeal from the only appealable order, that of November
30th.” Id.[¶9] The U.S. Supreme Court has also considered whether a second judgment
revives a party’s time to petition for certiorari. In FTC v. Minneapolis-
Honeywell Regulator Co., the Court of Appeals issued a judgment from which
the respondent did not appeal. 344 U.S. 206, 208 (1952). Two months later, the
court issued another judgment that repeated the substance of its prior
judgment. Id. at 209–210. Respondent timely appealed from that second
judgment. Id. The Supreme Court held that “the mere fact that a judgment
previously entered has been reentered or revised in an immaterial way does
not toll the time within which review must be sought.” Id. at 211. The Court
stated that only when a lower court’s judgment “changes matters of substance
or resolves a genuine ambiguity” should the appeal timeframe “begin to run
anew.” Id. at 211–12. The question for the appellate court to ask is “whether
the lower court, in its second order, has disturbed or revised legal rights and
obligations which, by its prior judgment, had been plainly and properly settled
with finality.” Id. at 212. Because the second judgment “reiterated, without
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change,” everything decided by the first judgment, the second judgment did not
restart the appeal window. Id.[¶10] The juvenile court’s July 13, 2021 order did not revive the time A.S. had
to appeal. Similar to the orders in Miller and FTC, the July 13 order had the
same legal effect as the June 10 order. The court summarized the order for the
purpose of publication. The July 13 order did not change or modify its findings
of fact and conclusions of law, nor did it clarify any ambiguities in the original
order. Instead, the July 13 order “reiterated, without change” everything from
the first order. Because the juvenile court revised the first order only “in an
immaterial way” in an attempt to try serving A.S. again, A.S.’s time to appeal
did not begin to run anew. Thus, A.S. had only until July 12, 2021, to appeal to
this Court.
[¶11] The outcome of this case is governed by N.D.R.App.P. 2.2, which we
adopted after our decisions in In re C.R.H., 2000 ND 222, ¶ 4, 620 N.W.2d 175,
Interest of M.M.S., 449 N.W.2d 574 (N.D. 1989), and B.R.T. v. Exec. Dir. of the
Soc. Serv. Bd. of N.D., 391 N.W.2d 594, 597 (N.D. 1986). In those cases, this
Court applied Rule 4(a) and found jurisdiction to hear the parental termination
appeals even though the appellants appealed after the time for appeal had
lapsed. C.R.H., 2000 ND 222, ¶ 5; Interest of M.M.S., 449 N.W.2d at 576; B.R.T.,
391 N.W.2d at 597. These cases predate the enactment of N.D.R.App.P. 2.2. At
that time, N.D.R.App.P. 4(a) allowed a finding of excusable neglect to extend
the time for filing the notice of appeal in a termination of parental rights case.
Since the adoption of N.D.R.App.P. 2.2, which does not provide for an extension
of time to appeal upon a showing of excusable neglect or other good cause, and
the addition of subsection (e) to N.D.R.App.P. 4, this Court lacks jurisdiction to
consider an appeal filed more than 30 days following entry of an order
terminating parental rights. To the extent these cases would have allowed an
appeal in a termination of parental rights matter to be extended beyond 30
days, they have been superseded by N.D.R.App.P. 2.2.
[¶12] A.S. argues her right to counsel was violated after the court granted her
second attorney’s motion to withdraw, leaving A.S. to represent herself at the
termination hearing and without advice regarding the process and deadline for
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appeal. Once the time to appeal has expired, we lack jurisdiction—even to
consider a claim that a party failed to timely appeal as a result of a denial of
the party’s right to counsel. We are without jurisdiction to hear A.S.’s waiver
of her right to counsel argument because her appeal was untimely.
III
[¶13] Because we are without jurisdiction, we dismiss this appeal.
[¶14] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
VandeWalle, Justice, concurring.
[¶15] I agree with the result because it leaves in place the order terminating
parental rights. I would also have agreed with the order terminating parental
rights had this Court reached the merits of the case and not dismissed this
appeal. Henceforth, judges should give the reasons for issuing subsequent
orders so that this Court may understand the circumstances that caused the
judge to enter the subsequent order.
[¶16] Gerald W. VandeWalle
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