In Re CRH

2000 ND 222, 620 N.W.2d 175, 2000 WL 1864462
CourtNorth Dakota Supreme Court
DecidedDecember 21, 2000
Docket20000228
StatusPublished

This text of 2000 ND 222 (In Re CRH) 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
In Re CRH, 2000 ND 222, 620 N.W.2d 175, 2000 WL 1864462 (N.D. 2000).

Opinion

620 N.W.2d 175 (2000)
2000 ND 222

In the Interest of C.R.H., a child.
Vincent Ament, Petitioner,
v.
C.H. and M.H., Respondents and Appellees.
North Dakota Department of Human Services, Intervenor and Appellant.

No. 20000228.

Supreme Court of North Dakota.

December 21, 2000.

*176 Thomas E. Merrick, Merrick & Schaar Law Firm, Jamestown, ND, for respondents and appellees.

Jean R. Mullen, Assistant Attorney General, Bismarck, ND, for intervenor and appellant.

MARING, Justice.

[¶ 1] The North Dakota Department of Human Services ("Department") appealed from an order denying the Department's post-judgment motion to intervene in a parental termination proceeding and to amend the trial court's order terminating M.H.'s parental rights. We hold the trial court erred in denying the motion to intervene. We further hold the trial court erred in awarding visitation for M.H. in its parental termination order. We, therefore, reverse the order denying intervention and remand with instructions the trial court vacate its order terminating parental rights and conduct further proceedings on the merits of the petition for termination.

[¶ 2] In October 1998, the Stutsman County Department of Social Services filed a petition to terminate the parental rights of M.H. to her natural child C.R.H. After the petition was filed, M.H. stipulated her child was a deprived child and the cause of the deprivation was likely to continue. M.H. agreed to the termination of her parental rights on the condition that she would receive limited visitation privileges with the child. In accordance with the stipulation, the trial court entered an order on December 30, 1998 terminating the parental rights of M.H. with the condition that "[M.H., the natural mother] shall have the right to visit with the child on his birthday, on or near major holidays, and at significant family events such as weddings or funerals, before and after any adoption." The court placed the child in the custody of the Department's executive director.

[¶ 3] On January 5, 2000 the Department filed a motion to intervene and a motion to amend the court's order, asserting the court did not have authority to award visitation to a person whose parental rights were being terminated and requesting the court to remove the visitation provision from the termination order. On January 7, 2000 the district court granted the Department's motion to intervene. After conducting two hearings, the trial court *177 entered an order on June 5, 2000, setting aside the previous order granting the motion to intervene and denying the Department's motion to amend the parental termination order. On August 7, 2000, the Department filed a notice of appeal.

I

[¶ 4] The order setting aside the trial court's original grant of the motion to intervene was entered on June 5, 2000 and the Department did not file its notice of appeal until August 7, 2000, 63 days after entry of the order. Section 27-20-56(1), N.D.C.C., provides for appeals from final decisions in proceedings brought under the Uniform Juvenile Court Act:

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....

The statutory 30-day time for appeal is not absolute and this Court can grant extensions of time for filing an appeal under the statute. In Interest of M.M.S., 449 N.W.2d 574, 575 (N.D.1989). In the M.M.S., 449 N.W.2d at 576 decision, this Court, following our earlier direction in Heitkamp v. S.L., 338 N.W.2d 834 (N.D. 1983), stated:

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.

[¶ 5] Under N.D.R.App.P. 4(a), an appeal in a civil case must be filed within 60 days "of service of notice of entry of the judgment or order appealed from." Service of the notice of entry of the order is the trigger which starts the running of the time to file an appeal under N.D.R.App.P. 4(a). In this case there was no service of notice of the entry of the trial court's order. The Department's attorney filed an affidavit with the notice of appeal, stating she received actual knowledge of the trial court's order "through a phone call to the Stutsman County Clerk of Court on August 2, 2000." The filing of the affidavit constitutes record evidence of the Department's actual notice of the order on August 2, 2000 and, consequently, the running of the 60-day period to file a timely notice of appeal began to run on that date. See N.D.R.Civ.P. 58(b); Gierke v. Gierke, 1998 ND 100, ¶¶ 6-12, 578 N.W.2d 522. Consequently, the Department's appeal is not untimely under Rule 4(a). We, therefore, conclude we have jurisdiction to review this order.

II

[¶ 6] Although the trial court entered its order terminating the parental rights of M.H. on December 30, 1998, the Department did not move to intervene until January 7, 2000, more than one year later. The Department's substantial delay is perplexing and difficult to justify, considering the trial court placed custody of the child with the Department for the express purpose of placing the child for adoption. The Department moved to intervene as an intervention of right under N.D.R.Civ.P. 24(a). In reviewing the trial court's consideration of this motion, we review any findings of fact made by the trial court under the clearly erroneous standard of N.D.R.Civ.P. 52(a). Fisher v. Fisher, 546 N.W.2d 354, 355 (N.D.1996). However, the ultimate question of whether the Department has a right to intervene in the action is a question of law that is fully reviewable. Id.

[¶ 7] The trial court provided in its termination order "[I]n the event the child *178 has not been adopted within one year from the date of the Order ... this matter shall be brought back before the Juvenile Court for further review and disposition." The trial court is authorized under N.D.C.C. § 27-20-47 to commit a child to the custody of the Department's executive director upon entering an order terminating the parental rights of the child's parent and, as amended effective August 1, 1999, the statute provides:

3. If the child is not placed for adoption within twelve months after the date of the order and a legal guardianship or other planned permanent living arrangement for the child has not been established by a court of competent jurisdiction, the child must be returned to the court for entry of further orders for the care, custody, and control of the child.

More than one year after the termination of the parental rights of his natural mother, C.R.H. has not been placed for adoption, and we are not aware of any legal guardianship or other permanent living arrangement having been established by the court.

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Related

Gierke v. Gierke
1998 ND 100 (North Dakota Supreme Court, 1998)
State v. Hafner
1998 ND 220 (North Dakota Supreme Court, 1998)
Matter of Jacob
660 N.E.2d 397 (New York Court of Appeals, 1995)
Fisher v. Fisher
546 N.W.2d 354 (North Dakota Supreme Court, 1996)
Heitkamp v. S.L.
338 N.W.2d 834 (North Dakota Supreme Court, 1983)
In Re MM
589 N.E.2d 687 (Appellate Court of Illinois, 1992)
Gregory B. v. Gregory F.
542 N.E.2d 1052 (New York Court of Appeals, 1989)
Morgan v. Parents of M.M.
619 N.E.2d 702 (Illinois Supreme Court, 1993)
Ament v. C.H.
2000 ND 222 (North Dakota Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
2000 ND 222, 620 N.W.2d 175, 2000 WL 1864462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-crh-nd-2000.