Interest of C.A.S. , 2023 ND 122 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 7, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 122In the Interest of C.A.S., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
C.A.S., child; Respondent
and
J.M.D., mother; and C.R.S., Sr., father; Respondents and Appellants
No. 20230130
In the Interest of C.J.S., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
C.J.S., child; Respondent
and
J.M.D., mother; and C.R.S., Sr., father; Respondents and Appellants
No. 20230131
In the Interest of C.R.S., Jr., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
C.R.S., Jr., child; Respondent
and
J.M.D., mother; and C.R.S., Sr., father; Respondents and Appellants
No. 20230132
In the Interest of C.A.C., Jr., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
C.A.C., Jr., child; and C.A.C., Sr., father; Respondents
and
J.M.D., mother; Respondent and Appellant
No. 20230141
In the Interest of J.R.T., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
J.R.T., child; and S.A.T., father; Respondents
and
J.M.D., mother; Respondent and Appellant
No. 20230142
In the Interest of J.A.D., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
J.A.D., child; and S.A.T., father; Respondents
and
J.M.D., mother; Respondent and Appellant
No. 20230143
In the Interest of R.P.D., a child
Grand Forks County Human Service Zone, Petitioner and Appellee
v.
R.P.D., child; and A.L.M., father; Respondents
and
J.M.D., mother; Respondent and Appellant
No. 20230144
Appeal from the Juvenile Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.
AFFIRMED IN PART; DISMISSED IN PART.
Opinion of the Court by McEvers, Justice.
Alexander Kiser (argued), under the Rule on Limited Practice of Law by Law
Students, and Jacqueline A. Gaddie (appeared), Assistant State’s Attorney,
Grand Forks, ND, for petitioner and appellee.
Samuel A. Gereszek, Grand Forks, ND, for respondent and appellant J.M.D.
Tyler J. Morrow, Grand Forks, ND, for respondent and appellant C.R.S., Sr.
Interest of C.A.S., C.J.S., C.R.S., C.A.C., J.R.T., J.A.D. & R.P.D.
Nos. 20230130, 20230131, 20230132, 20230141, 20230142, 20230143,
20230144
McEvers, Justice.
[¶1] J.D. and C.S. appeal from a juvenile court judgment terminating their
parental rights. J.D. argues her right to due process was violated because she
was not present at trial. C.S. argues the court erred when it found his children
are in need of protection and the conditions and causes of the need for
protection are likely to continue. We hold J.D.’s appeal is untimely and dismiss
it for lack of jurisdiction. We summarily affirm the portion of the judgment
terminating C.S.’s parental rights.
I
[¶2] J.D. is the mother of seven children who are the subject of these
consolidated appeals. C.S. is the father of three of the children. The fathers of
the other children made no appearance in these proceedings. C.S. was the only
parent present at trial. J.D. was represented by her attorney, who requested at
trial that J.D. be allowed to appear by reliable electronic means or
alternatively that the court grant a continuance to allow her to appear in
person. The court denied her motions. A child protection supervisor and the
children’s foster care case manager testified in favor of terminating parental
rights. C.S. did not testify or call any witnesses. J.D.’s adult daughter testified
in support of J.D. After trial, the juvenile court entered an order and judgment
terminating all of the parents’ parental rights. J.D. and C.S. appeal. Along with
her appellate filings, J.D. filed a motion requesting we grant a deadline
extension.
II
[¶3] We lack jurisdiction to consider J.D.’s due process argument concerning
her absence at trial because her appeal is untimely. Under N.D.R.App.P. 2.2(a),
an appeal from a decision terminating parental rights must be taken by filing
a notice of expedited appeal “within 30 days after entry of the order.” It is
undisputed J.D.’s appeal was not filed within 30 days of entry of the order or
1
judgment terminating her parental rights. “[T]his Court lacks jurisdiction to
consider an appeal filed more than 30 days following entry of an order
terminating parental rights.” Interest of A.S.F., 2021 ND 189, ¶ 11, 965 N.W.2d
870. J.D. nevertheless contends her appeal was timely because, under
N.D.R.App.P. 4(a)(1), the time for appeal in civil cases runs “from service of
notice of entry of the judgment or order being appealed.” However, the Rule 4
timing provisions do not apply to appeals from decisions terminating parental
rights, which are expedited. See In re T.S.C., 2018 ND 76, ¶ 5, 908 N.W.2d 754(“Rule 2.2(a), not Rule 4(a)(1), controls when a notice of appeal is made in
terminations of parental rights.”). The explanatory note to Rule 4 specifically
states: “appeals in termination of parental rights matters . . . are not governed
by the appeal deadlines in this rule.” Nor can we grant J.D.’s motion for an
extension. The North Dakota Rules of Appellate Procedure do not authorize an
extension of the deadline for appealing a decision terminating parental rights.
See N.D.R.App.P. 4(e); see also Interest of A.S.F., 2021 ND 189, ¶ 7 (“[A]n
extension of time for excusable neglect or good cause . . . does not apply to
terminations of parental rights.”). Our prior decisions allowing extensions of
appeal deadlines in termination of parental rights cases have been superseded
by N.D.R.App.P. 2.2. Id. at ¶ 11.
[¶4] Absent a holding the appeal is timely or an extension, she alternatively
asserts there should be a “harmless error” exception because her late appeal
caused no one prejudice. We are not aware of any instance where this Court
has applied a harmless error exception to a jurisdictional requirement. Nor has
J.D. provided any supporting authority for her assertion that one should be
applied here. See Interest of Guardianship of J.O., 2021 ND 76, ¶ 9, 958 N.W.2d
149 (“Issues are not adequately briefed when an appealing party fails to cite
any supporting authority, and we will not consider them.”). Because J.D.’s
appeal is untimely and an extension is not authorized, we lack jurisdiction and
must dismiss her appeal.
III
[¶5] C.S. argues the juvenile court erred when it found his children, C.A.S.,
C.J.S., and C.R.S., are in need of protection and the conditions and causes of
2
the need for protection are likely to continue. After reviewing the record, we
conclude the court’s findings are supported by clear and convincing evidence
and are not clearly erroneous. See Interest of A.C., 2022 ND 123, ¶ 5, 975
N.W.2d 567 (factual findings made in a termination of parental rights
proceeding are reviewed under the clearly erroneous standard of review). We
summarily affirm the portion of the judgment terminating C.S.’s parental
rights. See N.D.R.App.P. 35.1(a)(2).
IV
[¶6] The judgment is affirmed in part. J.D.’s appeal is dismissed.
[¶7] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
3