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In re Petition of M. O.

Court of Appeals of Minnesota

August 26, 2013

In re: The Petition of M. O. and K. O. to Adopt K. M. G. and K. A. O. and The Petition of J. D. and W. G. to Adopt K. M. G. and K. A. O.

Morrison County District Court File No. 49-FA-11-2035

John E. Mack, Mack & Daby P.A., New London, MN (for appellants M.O. and K.O.)

Brian J. Middendorf, Morrison County Attorney, Amy J. Chantry, Special Assistant Morrison County Attorney, Little Falls, MN (for respondent Morrison County Social Services)

Cynthia J. Vermeulen, Vermeulen Law Office, P.A., St. Cloud, MN (for respondents J.D. and W.G.)

Thomas J. Nolan, Jr., Nolan Law Office, Minneapolis, MN (for respondent guardian ad litem Jody Cox)

Considered and decided by Johnson, Chief Judge; Halbrooks, Judge; and Larkin, Judge.

SYLLABUS

1. In an adoption proceeding, any appeal must be taken within 30 days, as provided by rule 48.02, subdivision 2, of the Minnesota Rules of Adoption Procedure.

The 60-day period in rule 104.01 of the Minnesota Rules of Civil Appellate Procedure and section 259.63 of the Minnesota Statutes does not apply.

2. The requirement in rule 10.04 of the Minnesota Rules of Adoption Procedure that the district court administrator "shall" use a notice-of-filing form developed by the state court administrator is directory rather than mandatory. If a district court administrator uses a form other than the form developed by the state court administrator pursuant to rule 10.04, the district court administrator's notice of filing nonetheless may be effective to limit the time in which a party may appeal.

SPECIALTERM OPINION

JOHNSON, Chief Judge

This appeal is before a special term panel of this court to determine whether the notice of appeal was timely filed. For the reasons stated below, we conclude that the appeal is untimely and must be dismissed.

The appeal arises from competing petitions to adopt K.A.O., a five-year-old girl, and K.M.G., a two-year-old girl, for whom parental rights previously were terminated. Appellants M.O. and K.O. are the children's maternal grandparents. Respondents W.G. and J.D. are K.M.G.'s paternal uncle and aunt. In December 2011, Morrison County placed the children with respondents. In August 2012, the commissioner of the Minnesota Department of Human Services withheld consent for appellants to adopt the children. In December 2012, the district court conducted a five-day trial to determine whether consent was reasonably withheld from appellants. See Minn. R. Adopt. P. 42.03, subd. 2.

On December 28, 2012, the district court issued an order in which it concluded that the commissioner did not unreasonably withhold consent for appellants to adopt the children and that the county appropriately placed the children in respondents' home. The order directed entry of judgment. That day, the district court administrator entered judgment and served notice of the filing of the order by United States mail. On the same day, the district court dismissed ...


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