Interest of A.S.F.
DISMISSED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justices Crothers and McEvers joined. Justice VandeWalle filed a concurring оpinion.
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.
[¶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. exрressed 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 movеd 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 сounsel‘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 оf 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 оn 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 thе 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 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 dеtermine whether A.S.‘s appeal was timely, we first must determine
[¶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 fоr the purpose of making another attempt to serve A.S. Under
[¶7] Under
[¶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 аnalyzed 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, 153 N.W. 390 (N.D. 1915), 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. Id. at 391. 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., 344 U.S. 206, 208 (1952), the Court of Appeals issued a judgment from which the respondent did not appeal. Id. at 208. Two months later, the
[¶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. Insteаd, 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 appеal 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
[¶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 adviсe regarding the process and deadline for 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 appеal was untimely.
[¶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 agrеed 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