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People ex rel. South Dakota Dep't of Soc. Servs.

Supreme Court of South Dakota

December 23, 2014

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

Considered on Response to Show Cause Order October 2, 2014

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA. THE HONORABLE GLEN W. ENG, Justice.

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.

KONENKAMP, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.

OPINION

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."

Page 887

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 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.

[¶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." Sta ...


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