IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 189

In the Interest of A.S.F., minor child

State of North Dakota, Petitioner and Appellee

v.

A.S.F., child, C.F., father, Respondents

and

A.S., mother, Respondent and Appellant

No. 20210222

Appeal from the Juvenile Court of Ward County, North Central Judicial 

District, the Honorable Connie S. Portscheller, Judicial Referee.

DISMISSED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and 

Justices Crothers and McEvers joined. Justice VandeWalle filed a concurring 

opinion.

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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

OCTOBER 28, 2021 

STATE OF NORTH DAKOTA
1

Interest of A.S.F.

No. 20210222

Tufte, Justice.

[¶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. expressed 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 moved 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 counsel’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 of 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 on 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 the 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 
2

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 determine whether A.S.’s appeal was timely, we first must determine

whether the juvenile court properly served A.S. the order terminating her 

parental rights. “After the original summons has been served and jurisdiction has 

been established, service of papers in a juvenile proceeding may be made” on the 

parent’s attorney. If the parent does not have an attorney, service may be made by 

“mailing it to the [parent’s] last known address—in which event service is 

complete upon mailing.” N.D.R.Juv.P. 7.

[¶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 for the purpose of making another attempt to serve A.S. Under 

N.D.R.Juv.P. 7(c)(3), it was unnecessary for the court to re-attempt service by 

republishing the order. At the time the order was served, the original summons 

had been served upon A.S. and jurisdiction had been established. Thus, it was 

permissible for the court to serve A.S. the order by mailing it to her last known 

address. Even though it came back as “unclaimed,” the service was complete 

upon mailing. The court was under no obligation to make continued attempts 

to serve A.S. Because the court used the last known address for A.S, the court’s 

first attempt at service was proper.

[¶7] Under N.D.R.App.P. 2.2(a), “[a]n appeal from an order terminating 

parental rights must be taken by filing a notice of expedited appeal with the 

clerk of the supreme court within 30 days after entry of the order.” Here, no 

motion for an extension of time to file an appeal was made. Any such motion 

would have been unavailing, because we have held “an extension of time for 

excusable neglect or good cause . . . does not apply to terminations of parental 

rights.” Interest of T.S.C., 2018 ND 76, ¶ 6, 908 N.W.2d 754. A.S.’s appeal is 

timely only if the time to appeal restarted upon entry of the July 13 revised 

order.
3

[¶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 analyzed 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, 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. 153 N.W. 390, 391 (N.D. 1915). 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. MinneapolisHoneywell Regulator Co., the Court of Appeals issued a judgment from which 

the respondent did not appeal. 344 U.S. 206, 208 (1952). Two months later, the 

court issued another judgment that repeated the substance of its prior 

judgment. Id. at 209–210. Respondent timely appealed from that second 

judgment. Id. The Supreme Court held that “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.” Id. at 211. The Court 

stated that only when a lower court’s judgment “changes matters of substance 

or resolves a genuine ambiguity” should the appeal timeframe “begin to run 

anew.” Id. at 211–12. The question for the appellate court to ask 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 212. Because the second judgment “reiterated, without 
4

change,” everything decided by the first judgment, the second judgment did not 

restart the appeal window. Id.

[¶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. Instead, 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 appeal 

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 N.D.R.App.P. 2.2, which we 

adopted after our decisions in In re C.R.H., 2000 ND 222, ¶ 4, 620 N.W.2d 175, 

Interest of M.M.S., 449 N.W.2d 574 (N.D. 1989), and B.R.T. v. Exec. Dir. of the 

Soc. Serv. Bd. of N.D., 391 N.W.2d 594, 597 (N.D. 1986). In those cases, this 

Court applied Rule 4(a) and found jurisdiction to hear the parental termination 

appeals even though the appellants appealed after the time for appeal had 

lapsed. C.R.H., 2000 ND 222, ¶ 5; Interest of M.M.S., 449 N.W.2d at 576; B.R.T., 

391 N.W.2d at 597. These cases predate the enactment of N.D.R.App.P. 2.2. At 

that time, N.D.R.App.P. 4(a) allowed a finding of excusable neglect to extend 

the time for filing the notice of appeal in a termination of parental rights case.

Since the adoption of N.D.R.App.P. 2.2, which does not provide for an extension 

of time to appeal upon a showing of excusable neglect or other good cause, and 

the addition of subsection (e) to N.D.R.App.P. 4, this Court lacks jurisdiction to 

consider an appeal filed more than 30 days following entry of an order 

terminating parental rights. To the extent these cases would have allowed an 

appeal in a termination of parental rights matter to be extended beyond 30 

days, they have been superseded by N.D.R.App.P. 2.2.

[¶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 advice regarding the process and deadline for 
5

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 appeal was untimely.

III

[¶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 agreed 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