#27171-dismissed-JKK

2014 S.D. 95

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                     ****

         THE PEOPLE OF THE STATE OF SOUTH DAKOTA, EX REL.,
           SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES
          IN THE INTERESTS OF L.R. AND T.W., MINOR CHILDREN
             AND CONCERNING A.W. AND T.R., RESPONDENTS.

                                     ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    YANKTON COUNTY, SOUTH DAKOTA

                                     ****

                       THE HONORABLE GLEN W. ENG
                                 Judge

                                     ****


ANN M. HOLZHAUSER
Special Assistant Attorney General
Department of Social Services
Pierre, South Dakota                              Attorneys for petitioner
                                                  and appellee State of
                                                  South Dakota.

LUCI YOUNGBERG
Yankton County Public Defender
Yankton, South Dakota                             Attorney for respondent
                                                  and appellant Mother
                                                  A.W.

                                     ****
                                            CONSIDERED ON RESPONSE
                                            TO SHOW CAUSE ORDER ON
                                            OCTOBER 2, 2014

                                            OPINION FILED 12/23/2014
#27171

KONENKAMP, Justice

[¶1.]        In response to an order to show cause, we examine whether, after this

Court has dismissed an untimely filed appeal, a circuit court may amend its final

order with a new date to permit the filing of another, timely notice of appeal in the

same case.

                                     Background

[¶2.]        On July 16, 2013, the circuit court entered findings of fact, conclusions

of law, and a dispositional order terminating the parental rights of A.W. (Mother) to

her biological children L.R. and T.W., in an abuse and neglect proceeding under

SDCL chapter 26-8A. A timely notice of appeal was filed on August 16, 2013, but

Mother’s signature was not on the notice. As this error in an appeal of a chapter 26-

8A proceeding “deprives the Supreme Court of jurisdiction to decide the appeal[,]”

SDCL 15-26A-4, we dismissed the appeal (#26781) for lack of jurisdiction. “[T]here

is no provision for cure, and the signing requirement of SDCL 15-26A-4 is explicitly

jurisdictional[; thus,] failure to comply with its mandate cannot be excused.” People

ex rel. B.H., 2011 S.D. 26, ¶ 19, 799 N.W.2d 408, 412 (per curiam).

[¶3.]        Mother then filed a second notice of appeal on November 15, 2013. In

anticipation of filing this second notice, she obtained a second notice of entry of the

July dispositional order from the Yankton County State’s Attorney in an attempt to

restart the thirty-day timeframe for appeal. See SDCL 15-26A-6. If that notice of

entry lawfully restarted the thirty-day timeframe, her second appeal would have

been timely. But we dismissed her second attempted appeal (#26892) as untimely




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because there was no authority to restart the thirty-day timeframe for appeal on the

mere filing of an updated notice of entry. See SDCL 15-26A-2, -4, -92.

[¶4.]         On August 14, 2014, thirteen months after the circuit court entered its

dispositional order terminating Mother’s parental rights, she filed a third notice of

appeal after obtaining an “Amended Dispositional Order” from the circuit court.

This Order comprised six bolded changes to the original July 16, 2013 dispositional

order. One of these changes was to modify the date of the order to August 5, 2014.

The other changes can only be characterized as minor additions or corrections. The

court then entered the order on August 6, 2014, and the State filed a notice of entry

on August 11, 2014. This Court again found that Mother had failed to adhere to

appellate procedure by not certifying proof of service of the notice of appeal and

docketing statement on “each party other than appellant[.]” SDCL 15-26A-4(3). As

a result, we issued an order for Mother to show cause why her appeal should not be

dismissed for failure to adhere to procedure. 1 Mother answered by producing her

certification that she had indeed served the notice of appeal and docketing

statement on all other parties when she filed the third notice of appeal.




1.      We exercised our discretion not to dismiss the notice of appeal outright
        because “[i]t is the fact of service, not proof thereof, that gives the court
        jurisdiction.” Johnson v. Kusel, 298 N.W.2d 91, 93 (S.D. 1980). “[O]nly
        failure to timely serve and file the notice of appeal is jurisdictionally fatal to
        an appeal’s validity, while lesser omissions may be subject to sanctions.” W.
        States Land & Cattle Co. v. Lexington Ins. Co., 459 N.W.2d 429, 432 (S.D.
        1990) (footnote omitted). In other words, per SDCL 15-26A-4: “Failure of an
        appellant to take any step other than timely service and filing of a notice of
        appeal does not affect the validity of the appeal, but is ground only for such
        action as the Supreme Court deems appropriate, which may include
        dismissal of the appeal.”

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#27171

[¶5.]        In response, the State asserted that the circuit court’s bolded changes

to the amended order were “corrections to clerical mistakes.” Regardless of

Mother’s actual service on the parties, the State argued, an order amended to

correct clerical errors cannot restart the timeframe for appeal, making Mother’s

third appeal untimely. See Rabo Agrifinance, Inc. v. Rock Creek Farms, 2012 S.D.

20, ¶¶ 10-11, 813 N.W.2d 122, 126-27 (citing SDCL 15-26A-2, -92). “It is the rule in

this state that jurisdiction must affirmatively appear from the record and this Court

is required sua sponte to take note of jurisdictional deficiencies, whether presented

by the parties or not.” State v. Phipps, 406 N.W.2d 146, 148 (S.D. 1987) (quoting

State v. Huftile, 367 N.W.2d 193, 195 (S.D. 1985)) (internal quotation marks

omitted).

                              Analysis and Decision

[¶6.]        In Federal Trade Commission v. Minneapolis-Honeywell Regulator Co.,

344 U.S. 206, 73 S. Ct. 245, 97 L. Ed. 245 (1952), the United States Supreme Court

dismissed a petition for writ of certiorari from the FTC. The FTC had failed to file a

petition for rehearing “within 15 days after the entry of judgment” after the Seventh

Circuit Court of Appeals reversed an FTC enforcement decision on one of three

counts. Id. at 208, 73 S. Ct. at 247. Instead, the FTC had submitted, one month

after the rehearing deadline, a memorandum asking the court to sustain its cross-

petition on the other two counts, “which had no effect on the merits of the decision

that [the Supreme Court was subsequently] asked to review in the petition for

certiorari.” Id. at 208, 211, 73 S. Ct. at 247, 248. The Seventh Circuit thereafter

issued a “Final Decree” affirming both the FTC’s cross-petition on the two counts

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and the court’s earlier reversal of the FTC’s decision on the single count. Id. at 209-

10, 73 S. Ct. at 248. The FTC’s certiorari petition was only timely if “the ninety-day

filing period began to run anew from the second judgment.” Id. at 210, 73 S. Ct. at

248.

[¶7.]        The Supreme Court found the petition for certiorari untimely, holding:

             While it may be true that the Court of Appeals had the power to
             supersede the judgment of July 5 with a new one, it is also true
             . . . that the time within which a losing party must seek review
             cannot be enlarged just because the lower court in its discretion
             thinks it should be enlarged. Thus, the mere fact that a
             judgment previously entered has been reentered or revised in an
             immaterial way does not toll the time within which review must
             be sought. Only when the lower court changes matters of
             substance, or resolves a genuine ambiguity, in a judgment
             previously rendered should the period within which an appeal
             must be taken or a petition for certiorari filed begin to run anew.
             The test is a practical one. The question is whether the lower
             court, in its second order, has disturbed or revised legal rights
             and obligations which, by its prior judgment, had been plainly
             and properly settled with finality.

Id. at 211-12, 73 S. Ct. at 248-49 (footnotes omitted). The principle underlying the

Supreme Court’s ruling against the FTC is one intrinsic to our system of justice —

the finality of judgments:

             [W]e do mean to encourage applicants to this Court to take heed
             of another principle — the principle that litigation must at some
             definite point be brought to an end. It is a principle reflected in
             the statutes which limit our appellate jurisdiction to those cases
             where review is sought within a prescribed period.

See id. at 213, 73 S. Ct. at 249 (footnote omitted). Indeed, “[t]he general rule is that

. . . where the amendment [to a judgment] relates only to the correction of a clerical

or formal error, it does not affect the time allowed for appeal.” Interstate Printing




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Co. v. Dep’t of Revenue, 459 N.W.2d 519, 523 (Neb. 1990) (quoting 4 Am. Jur. 2d

Appeal & Error § 308, at 793 (1962)).

[¶8.]         Much like the United States Supreme Court, this Court follows rules

that limit our appellate jurisdiction to timely filings. 2 See SDCL 15-26A-4(4), -6.

Timely filing is a prerequisite that cannot be waived. See SDCL 15-26A-2, -92. We

therefore agree with the Supreme Court that in our procedure:

              The purpose of statutes limiting the period for appeal is to set a
              definite point of time when litigation shall be at an end, unless
              within that time the prescribed application has been made; and
              if it has not, to advise prospective appellees that they are freed
              of the appellant’s demands. Any other construction of the
              statute would defeat its purpose. Would-be appellants could
              prolong indefinitely the appeal period . . . .

Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S. Ct. 1126, 1128, 87 L. Ed.

1483 (1943) (per curiam). If this Court did not adhere closely to this principle of

finality, such as by allowing an amended final order or judgment to revive a right to

2.      A statutory exception applies to criminal cases. See SDCL 23A-27-51:

              If the court finds that an applicant was denied the right to an
              appeal from an original conviction in violation of the
              Constitution of the United States or the Constitution of South
              Dakota, the court shall issue a new judgment and impose the
              same sentence if such relief is requested within a reasonable
              time and an adequate record of the original trial proceeding is
              available for review. The court shall advise the applicant of the
              following:

              1. The rights associated with an appeal from a criminal
                 conviction; and

              2. The time for filing a notice of appeal from the reimposed
                 judgment and sentence.

              Nothing in this section limits an applicant’s right to habeas
              corpus.
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#27171

appeal in a case months or years after the time for appeal had otherwise expired,

yet another juridical principle would be jeopardized — predictability. See id.

[¶9.]        A lack of predictability and finality in judgments would unreasonably

burden courts and litigants with stale claims and would especially burden children

in abuse and neglect cases:

             Children are not static objects. They grow and develop, and
             their proper growth and development require more than day-to-
             day satisfaction of their physical needs. Their growth and
             development also require day-to-day satisfaction of their
             emotional needs, and a primary emotional need is for
             permanence and stability. . . . A child’s need for permanence
             and stability, like his or her other needs, cannot be postponed.
             It must be provided early.

In re A.S., 2000 S.D. 94, ¶ 24, 614 N.W.2d 383, 387 (per curiam) (quoting In re Baby

Boy K, 1996 S.D. 33, ¶ 43, 546 N.W.2d 86, 97). This Court has often held that

where parents in abuse and neglect cases ask for repeated chances to forestall

termination of parental rights after minimal or no improvement in parenting,

“[children] should not be required to wait for parents to acquire parenting skills

that may never develop.” See, e.g., People ex rel. S.H.E., 2012 S.D. 88, ¶ 33, 824

N.W.2d 420, 429 (per curiam) (alteration in original) (quoting People ex rel. P.K.,

2006 S.D. 17, ¶ 24, 711 N.W.2d 248, 256) (internal quotation marks omitted); In re

L.S., 2012 S.D. 22, ¶ 22, 812 N.W.2d 505, 510 (quoting In re J.Y., 502 N.W.2d 860,

862 (S.D. 1993)). In like manner, children’s lives should not be held in suspense for

months or years — potentially until they reach adulthood — on the chance a lapsed

appeal might revive on the filing of a judgment that makes insubstantial corrections

to an earlier judgment.


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#27171

[¶10.]       As with the revisions of the “final” order in Minneapolis-Honeywell, the

bolded revisions contained in the Amended Dispositional Order were not “matters of

substance” and did not “resolve[ ] a genuine ambiguity” or “disturb[ ] or revise[ ]

legal rights and obligations which, by [the court’s] prior judgment, had been plainly

and properly settled with finality.” See 344 U.S. at 211-12, 73 S. Ct. at 248-49. The

amendments in the Amended Dispositional Order therefore did not create a new,

final order that restarted the time for appeal. See id. at 211, 73 S. Ct. at 248.

[¶11.]       We order Mother’s appeal dismissed as untimely.

[¶12.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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