Dorothy v. B.L.R.

449 N.W.2d 574, 1989 N.D. LEXIS 243
CourtNorth Dakota Supreme Court
DecidedDecember 20, 1989
DocketCiv. No. 890123
StatusPublished
Cited by2 cases

This text of 449 N.W.2d 574 (Dorothy v. B.L.R.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorothy v. B.L.R., 449 N.W.2d 574, 1989 N.D. LEXIS 243 (N.D. 1989).

Opinion

MESCHKE, Justice.

B.L.R. appealed from a judgment terminating her parental rights to M.M.S. We determine that her appeal was timely with the aid of an extension by the juvenile court, and we affirm.

B.L.R. was admitted to the psychiatric ward of a Bismarck hospital on June 1, 1987. She gave birth to M.M.S. on June 6, 1987. An emergency order of the juvenile court placed temporary custody of M.M.S. with Burleigh County Social Services. Social Services petitioned for termination of parental rights to M.M.S. B.L.R., represented by counsel, resisted. After several delays, the termination hearing was held on March 3, 1988. On April 5, 1988, the juvenile court ordered termination of the parental rights both of his alleged father and of B.L.R., his mother. Notice of entry of the judgment was given to B.L.R. on April 14, 1988.

B.L.R. wanted to appeal. Her appointed trial attorney declined to appeal because, in his opinion, an appeal lacked merit. A second attorney concurred and also refused to appeal. On June 29,1988, B.L.R. wrote the juvenile court “requesting an appeal.” On the same date, B.L.R. also wrote the Clerk of the Supreme Court: “Being unable to obtain legal counsel, this is sent for an appointed date to hear the appeal” on termination of her parental rights to M.M.S. In referring her letter to the juvenile court, this court suggested that the procedure for appointed counsel “should be akin to that in State v. Lewis, 291 N.W.2d 735 [ (N.D.] 1980)” for criminal cases. Another counsel was appointed and brought this appeal.

APPEAL TIMELINESS

B.L.R.’s notice of appeal was filed with the juvenile court on June 30, 1988. This was 75 days after notice of entry of the judgment, 45 days after the 30 days for appeal allowed by NDCC 27-20-56(1), and 15 days after the 60 days for a civil appeal allowed by NDRAppP 4(a). Arguing that “[tjhis child has been in ... legal limbo for over one (1) year,” Social Services insisted that “[sjurely it cannot be in the best interests or for the protection of this small child to be so long in a legal limbo.” Arguing that this court lacked jurisdiction to hear B.L.R.’s untimely appeal, Social Services sought dismissal without review of the merits.

NDCC 27-20-56(1) authorizes an appeal from a final decision in juvenile court:

“An aggrieved party, including the state or a subdivision of the state, may appeal from a final order, judgment, or decree of the juvenile court to the supreme court by filing written notice of appeal within thirty days after entry of the order, judgment, or decree, or within any further time the supreme court grants, after entry of the order, judgment, or decree....”

In a past application of this statute, we granted an appeal filed more than 30 days, though less than 60 days, after a judgment terminating parental rights. In B.R.T. v. Executive Director of S.S. Bd. N.D., 391 N.W.2d 594, 597 (N.D.1986), we said:

“The Department contends that although the appeal was filed within 60 days in compliance with Rule 4(a), N.D.R. App.P., the 30-day limit for appeals under § 27-20-56(1), N.D.C.C., of the Uniform Juvenile Court Act controls in this case. Relying upon Rule 49(b), N.D.R. App.P., and State v. Stokes, 240 N.W.2d 867 (N.D.1976), B.R.T. asserts that the 30-day limit set forth in § 27-20-56(1), N-D.C.C., has been superseded by Rule 4(a), N.D.R.App.P. Regardless of whether Rule 4(a) has superseded the 30-day time limit under the Uniform Juvenile Court Act, § 27-20-56(1), N.D. C.C., specifically allows the filing of the notice of appeal to occur ‘within any further time the supreme court grants, ... ’ We deem this an appropriate case for an extension, and conclude that B.R.T.’s appeal was timely filed.”

The statutory 30-day time for appeal is not absolute.

In an earlier case, Heitkamp v. S.L., 338 N.W.2d 834 (N.D.1983), this court dismissed an untimely appeal from a judg[576]*576ment which terminated parental rights. That judgment was entered and notice of entry was given on November 22, 1982. An appeal was filed 73 days later on February 3, 1983, which was neither within the 30 days allowed by the statute nor the 60 days allowed by the rule. However, those appellants asked the juvenile court to extend the appeal time for excusable neglect as allowed by NDRAppP 4(a). At first, the juvenile court refused an extension, believing that it had no jurisdiction to grant it after an appeal had been filed. Those appellants asked the juvenile court to reconsider, citing Dehn v. Otter Tail Power Co., 248 N.W.2d 851 (N.D.1976). Then, the juvenile court realized that it had authority to act, found no excusable neglect, and denied the appellants an extension. When those decisions were not appealed, this court concluded that it was without jurisdiction and dismissed the appeal. Heit-kamp made clear that this court is unwilling to grant additional time for an appeal of a juvenile matter beyond that usually allowed for a civil appeal.

During oral argument, counsel for B.L.R. grasped the point of these prior opinions, and moved to remand to the juvenile court for consideration of an extension of the appeal time for excusable neglect. We remanded for that limited purpose. Upon remand, the juvenile court found excusable neglect by B.L.R. in “acting on her own in attempting to appeal” and granted her an extension of thirty days to appeal. If we apply NDRAppP 4(a), this expanded B.L.R.’s time for appeal to July 14, 1988, making her June 30 effort timely.

We equate our statutory power to grant further time for an appeal under NDCC 27-20-56(1) with our rulemaking power which established the time for an appeal in a civil case. NDRAppP 4(a). This administers the need for finality in juvenile cases, including a termination of parental rights. It does so without treating a juvenile case differently than other civil cases for appellate procedure. Since B.L.R.’s appeal was made timely under the appellate rules by the juvenile court’s extension, we conclude that we have jurisdiction to review the judgment terminating B.L.R.’s parental rights.

PARENTAL TERMINATION

On appeal, B.L.R. argued that hearsay testimony about her past experience with children had been erroneously admitted and that the evidence did not clearly and convincingly support termination of her parental rights.

During direct examination, Nancy Schae-fer, a social worker, was asked about her conversation with A.B., a former foster parent of B.L.R. Over objections of B.L. R.’s counsel, Schaefer testified that A.B. said that B.L.R. had a long history of mental illness, that B.L.R. had abandoned an earlier child, and that B.L.R. was incapable of caring for a child. Later, Schaefer testified, again over objection, about statements made by hospital personnel about B.L.R.’s inability to cope with the infant. The juvenile court overruled both objections and received the testimony as bearing on why Social Services acted, not on B.L.R.’s ability as a parent.

Since the hearing dealt only with B.L. R.’s ability as a parent, B.L.R.

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449 N.W.2d 574 (North Dakota Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
449 N.W.2d 574, 1989 N.D. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorothy-v-blr-nd-1989.