Opinion
A18-0098
February 20, 2018, Filed
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND FOR THE FOLLOWING REASONS:
This appeal was filed on January 17, 2018. Appellant C.W.N. seeks review of a December 28, 2017 order terminating parental rights. We questioned whether appellant timely served the notice of appeal on the child's guardian ad litem (GAL) and, if not, whether dismissal of the appeal is required. Appellant, the GAL, and Hennepin County Human Services and Public Health Department (the county) filed informal memoranda.
In a juvenile-protection proceeding, an appeal shall be taken within 20 days of the service of notice by the court administrator of the filing of the court's order. Minn. R. Juv. Prot. P. 47.02, subd. 2. On December 28, 2017, the court administrator issued a notice of filing of the order terminating parental rights. If the court administrator served the notice of filing on appellant by U. S. Mail on December 28, 2017, the appeal period expired on Monday, January 22, 2018. See Minn. R. Juv. Prot. P. 4.01, 4.02.
Within the time allowed for an appeal, the party appealing shall serve a notice of appeal on the county attorney and all parties or their counsel if represented, and shall file a notice of appeal with the clerk of the appellate courts. Minn. R. Juv. Prot. P. 47.02, subd. 3. The county and the GAL argue that this appeal must be dismissed due to appellant's failure to timely serve the notice of appeal on the GAL. Appellant acknowledges that he did not serve the notice of appeal on the GAL or her counsel. Appellant requests that we allow the appeal to proceed so that appellant may address the alleged lack of due process in the underlying action.
The failure to serve timely a notice of appeal on the GAL in a termination-of-parental-rights case is a jurisdictional defect requiring dismissal of the appeal. In re Welfare of J.R., Jr., 655 N.W.2d 1, 6 (Minn. 2003). In J.R., Jr., as in this case, the parent appealing the termination of parental rights timely served the notice of appeal on the county attorney and timely filed the notice of appeal with the clerk of the appellate courts. But the supreme court held that timely service of the notice of appeal on the GAL is also required. In view of the importance of the GAL in the child-protection system, the failure to serve the GAL is not merely a technical violation of the rules but truly compromises the system's ability to serve the best interests of the children. Id. at 5-6.
Because the timing requirement of Minn. R. Juv. Prot. P. 47.02, subd. 2, is jurisdictional, the court of appeals is required to dismiss an untimely appeal in a juvenile-protection matter. In re Welfare of Child of T.L.M, 804 N.W.2d 374, 377 (Minn. App. 2011). We cannot accept this untimely appeal.
The supreme court has inherent authority to take an untimely appeal in the interests of justice. J.R., Jr., 655 N.W.2d at 3. A petition for review of a court of appeals' decision in a juvenile-protection matter must be filed and served within 15 days of the filing of the court of appeals' decision. Minn. R. Juv. Prot. P. 47.07.
IT IS HEREBY ORDERED:
1. This appeal is dismissed.
2. The clerk of the appellate courts shall provide copies of this order to the Honorable James A. Moore, the self-represented appellant, counsel of record, and the district court administrator.
Dated: February 20, 2018
BY THE COURT
/s/ Edward J. Cleary
Edward J. Cleary
Chief Judge