In re J.D.H.
In re J.D.H.
Opinion of the Court
This is an appeal from an order of the circuit court of Lincoln County, South Dakota, denying the appellants, parents of the above described minor children, permission to appeal to the circuit court from a decree of the district county court of Lincoln County which terminated the parental rights of appellants in said children (#11020). There is also a related action which is an attempted direct appeal to this court from the same decree (#11019).
Pursuant to petition, the district county court held a hearing on March 30, 1971, at which evidence was received concerning the allegations that the three minor children in question were neglected and dependent children as defined in SDCL 26-8-6. At this hearing the state was represented by the Lincoln County State's Attorney, SDCL 26-8-22.4, the appellants appearing personally and with an attorney.
On April 2, 1971, the district county court entered an order declaring the children to be neglected and dependent children. On April 6, 1971, the district county court entered the decree referred to above terminating the parental rights of the appellants in said minor children. Service of certified copies of the order and of the decree was made on the attorney for appellants on April 7, 1971.
At the time of the hearing in the instant case and until July 1, 1971, SDCL 26-8-58 provided that:
"An appeal may be taken to the circuit court from a judgment, decree, or order of the county court under the provisions of this chapter, within the time and in the manner provided in chapter 30-35."
Chapter 151, Laws of 1971, materially amended SDCL 30-35. Prior to July 1, 1971, SDCL 30-35-1 provided that: "An appeal may be taken to the circuit court from a judgment, decree, or order of the county court * * * ", SDCL 30-35-4 provided that: "An appeal must be taken within thirty days from the date of filing the judgment, decree, or order appealed from in the office of the clerk of court."
Appellants argue that although SDCL 26-8-58 specifically provides that an appeal may be taken to the circuit court from a decree of the district county court terminating parental rights under ihe provisions of SDCL 26-8-36, nowhere in the statute is it provided that an appeal can be taken only to the circuit court. They contend that because SDCL 15-26-1 clearly and definitely confers appellate jurisdiction in the Supreme Court in appeals from judgments of the district county courts and does not conflict with any other provision of law, they may appeal directly to this court.
Chapter 151, § 5, Laws of 1971, amended SDCL 30-35-1 to read: "An appeal may be taken to the Supreme Court from a judgment, decree or order of the district county court * * * ", SDCL 30-35-4 was amended by Ch. 151, § 6, Laws of 1971, to read: "An appeal must be taken within the time allowed for appeals to the Supreme Court under SDCL 15-26-2, the time to commence from the date of filing the judgment, decree, or order appealed from in the office of the clerk of the court."
Significantly, by § 3, Ch. 151, Laws of 1971, the legislature amended SDCL 26-8-58 to read:
"An appeal may be taken to the circuit court from a judgment, decree, or order of the district county court under the provisions of this chapter, within thirty days from the date of filing of the judgment, decree or order appealed from in the office of the clerk of the court, and shall otherwise be conducted as provided in chapter BOSS. Initials shall appear on the record on appeal in the place of the name of the child."
We believe that had the legislature intended that there be a right of appeal from the district county court to this court in cases arising under SDCL 26-8, then SDCL 26-8-58 would have
Because the circuit court had no jurisdiction other than to deny the motion for permission to appeal from the decree of the district court, the time for appeal having expired, the order denying the appeal in #11020 is affirmed. Because there is no right of direct appeal to this court from a decree of a district county court terminating parental right under the provisions of SDCL 26-8, the appeal in #11019 is dismissed.
Present counsel for appellants did not represent them at the hearing; from the record it appears that his first formal representation of them occurred sometime during July of 1971. Pursuant to the application and affidavit of appellants representing that they were indigent and requesting the appointment of counsel, the district county court formally appointed present counsel to represent appellants on appeal on August 3, 1971.
Reference
- Full Case Name
- In the Matter of J.D.H.
- Status
- Published