Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

The People of the State of South Dakota

June 15, 2011

THE PEOPLE OF THE STATE OF SOUTH DAKOTA, EX REL., SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, IN THE INTEREST OF B.H., JR. AND M.H., CHILDREN AND CONCERNING P.H. AND B.H., SR.


APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA HONORABLE WARREN G. JOHNSON Judge

Per curiam.

-denied-

CONSIDERED ON BRIEFS ON SEPTEMBER 17, 2010

[¶1.] Petitioner (Father) filed a notice of appeal seeking to appeal termination of his parental rights under SDCL chapter 26-8A. Father's appeal was dismissed because the original notice of appeal did not contain his signature as required by SDCL 15-26A-4. Father now petitions this Court to reinstate his appeal. A signed notice of appeal accompanied the petition for reinstatement. Because the signing requirement of SDCL 15-26A-4 is jurisdictional and jurisdictional requirements cannot be waived, the petition for reinstatement is denied.

PROCEDURAL HISTORY

[¶2.] In this abuse and neglect proceeding Father seeks to appeal termination of his parental rights. The notice of appeal filed by Father's counsel on June 24, 2010, did not contain Father's signature. SDCL 15-26A-4 requires that an appellant and his or her attorney sign the notice of appeal when seeking to appeal an order terminating parental rights under SDCL chapter 26-8A. By order filed June 30, 2010, this Court dismissed the appeal.

[¶3.] On July 1, 2010, Father's counsel mailed the instant petition for reinstatement of appeal. Time for filing a notice of appeal had expired prior to July 1. Attached to the petition for reinstatement of appeal is a notice of appeal signed by Father and his attorney. By affidavit, Father's counsel indicates Father did not sign the notice of appeal earlier because he was hospitalized and changing residences.

ANALYSIS

[¶4.] This Court takes notice of jurisdictional questions regardless of whether the parties present them. Johnson v. Lebert Const., Inc., 2007 S.D. 74, ¶ 4, 736 N.W.2d 878, 879. "The appellate jurisdiction of this Court will not be presumed but must affirmatively appear from the record." Id.

We apply the rules of statutory interpretation to determine whether this Court has appellate jurisdiction over a case. Id.

[¶5.] In this factual context, the issue is whether the rules of appellate procedure allow the lack of signature on the notice of appeal under SDCL chapter 26-8A to be cured after the time for filing a notice of appeal expired. In addition to the rules addressed above, other rules of appellate procedure factor into the analysis.

[¶6.] SDCL 15-26A-2 provides: In the interest of expediting decision in cases of pressing concern to the public or to litigants, or for other good cause shown, the Supreme Court, except as otherwise provided in § 15-26A-92, may suspend the requirement or provision of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction. SDCL 15-26A-92 provides:

The Supreme Court for good cause shown may upon motion enlarge or extend the time prescribed by this chapter for doing any act or may permit an act to be done after the expiration of such time; but the Supreme Court may not enlarge the time for filing a notice of appeal.

[ΒΆ7.] Reading these rules together, the only requirement which cannot be suspended is timely filing a notice of appeal. Therefore, it would seem that the appellant signing requirement of SDCL 15-26A-4 could be suspended. However, "[t]he failure of the appellant and his or her attorney to sign a notice of appeal under chapter ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.