965 N.W.2d 870
N.D.2021Background
- State petitioned in Aug 2020 to involuntarily terminate A.S.’s parental rights; A.S. was appointed counsel but expressed dissatisfaction and counsel withdrew; a second appointed attorney also moved to withdraw and the court granted the motion after finding a breakdown in the attorney-client relationship and that A.S. voluntarily waived her right to counsel.
- The termination hearing proceeded with A.S. unrepresented and the juvenile court entered a written order terminating parental rights on June 10, 2021.
- The June 10 order was mailed to A.S.’s last known address but was returned as unclaimed; the court then issued a revised/summarized order for publication on July 13, 2021 and published it in the Minot Daily News.
- A.S. applied for court-appointed appellate counsel on July 22; counsel was appointed July 27; A.S. filed a notice of expedited appeal to the North Dakota Supreme Court on August 10, 2021.
- The central procedural question was whether the July 13 summarized order restarted the 30-day appeal clock under N.D.R.App.P. 2.2(a); the court also considered whether service of the June 10 order by mailing was proper and whether any extension could save the untimely appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 13 summarized/published order restarted the 30-day appeal period | The July 13 order restarted the appeal period, so A.S.’s Aug 10 appeal was timely | The July 13 order merely reiterated the June 10 order and did not restart the appeal clock | July 13 did not restart the appeal period; appeal untimely |
| Whether service of the June 10 order was proper | A.S. implied mailed service was ineffective because mail was returned unclaimed | Service by mailing to last known address is complete upon mailing under N.D.R.Juv.P. 7 | Mail service was proper and complete despite return as unclaimed |
| Whether an extension of time to appeal was available (excusable neglect/right to counsel) | A.S. argued denial/waiver of counsel deprived her of timely appeal ability | Rule N.D.R.App.P. 2.2 bars extensions for parental-termination appeals; earlier excusable-neglect relief no longer applies | No extension available; jurisdiction lacking because appeal filed after 30 days |
| Whether pre-Rule cases allowing late appeals control | A.S. relied on earlier cases that extended appeal periods | Those cases predate N.D.R.App.P. 2.2 and have been superseded | Prior cases superseded by Rule 2.2; cannot save late appeal |
Key Cases Cited
- Miller v. Thompson, 153 N.W. 390 (N.D. 1915) (second order identical to first cannot revive lapsed appeal period)
- FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206 (1952) (reentry or immaterial revision of a judgment does not toll review period)
- Interest of T.S.C., 908 N.W.2d 754 (N.D. 2018) (no extensions for excusable neglect in parental-termination appeals)
- In re C.R.H., 620 N.W.2d 175 (N.D. 2000) (pre-Rule 2.2 practice addressing appeal timing in termination cases)
- Interest of M.M.S., 449 N.W.2d 574 (N.D. 1989) (pre-Rule jurisprudence on extending appeal periods)
- B.R.T. v. Exec. Dir., Soc. Serv. Bd. of N.D., 391 N.W.2d 594 (N.D. 1986) (pre-Rule case on appellate timing in termination matters)