author:
BLATZ, Chief Justice. PAUL H. ANDERSON, Justice
      PAGE, Justice

text:
    In the Matter of the WELFARE OF J.R., Jr., and A.I.R.
    No. C2-02-378.
    Supreme Court of Minnesota.
    Jan. 9, 2003.
    Brian M. Olsen, Cokato, MN, for Appellant.
    Michael J. Thompson, Meeker County Attorney, Gayle A. Borchert, Assistant County Attorney, Litchfield, MN, for Respondent.
    Kathryn J. Bergstrom, Christopher A. Carlisle, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, Guardian At Litem.
   OPINION

BLATZ, Chief Justice.

Appellant, the mother of J.R., Jr. and A.I.R., appeals an order of the Minnesota Court of Appeals dismissing her appeal of the trial court order terminating her parental rights. The court of appeals dismissed the appeal because appellant failed to timely serve the guardian ad litem, a party to the matter, with the notice of appeal within the appeal period. Appellant argues that because termination of parental rights cases are such important cases, a technical violation of the rules of court procedure should not prevent the appeal from proceeding. While we agree that termination of parental rights cases are important, we disagree that the rules of court procedure can be ignored and affirm the court of appeals.

An order was filed by the trial court on February 5, 2002, terminating appellant’s parental rights to J.R., Jr. and A.I.R. Because Rule 82.02, subd. 2 of the Rules of Juvenile Procedure requires that an appeal be taken within 30 days, the last day to perfect an appeal was March 7, 2002. On March 7, 2002, appellant timely filed a notice of appeal with the court of appeals and timely served the notice of appeal on respondent Meeker County. Appellant failed to serve the notice of appeal on the guardian ad litem until March 21, 2002, 14 days beyond the 30 day appeal deadline. See Minn. R. Juv. P. 82.02, subd. 3(a) (requiring service of notice of appeal on all parties within the appeal period). The court of appeals held that because the guardian ad litem was a party to a juvenile protection matter, dismissal of the appeal was required.

We are now asked to decide whether the failure to timely serve the guardian ad litem deprived the court of appeals of jurisdiction over appellant’s appeal. Because jurisdiction is a question of law, the standard of review is de novo. Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn.2000).

Before answering the jurisdictional question, it is important to recognize the procedural framework governing juvenile protection matters and appeals. In Minnesota, the Rules of Juvenile Procedure govern the procedures for juvenile protection matters in the juvenile courts, including termination of parental rights. Minn. R. Juv. P. 37.01, 38.01(h)(4). As to appeals, the Rules of Juvenile Procedure state that the Rules of Civil Appellate Procedure will apply to appeals of juvenile protection matters, “[ejxcept as provided in Rule 82.02.” Minn. R. Juv. P. 82.01.

Rule 82.02 of the Rules of Juvenile Procedure differs from the comparable Rules 104.01 and 103.01 of the Rules of Civil Appellate Procedure in two relevant ways. First, Rule 82.02, subd. 2 provides that in juvenile matters “[a]ny appeal shall be taken within thirty (30) days of the filing of the appealable order.” Minn. R. Juv. P. 82.02, subd. 2. This is contrary to the general rule that in civil cases an appeal must be filed within 60 days. Minn. R. Civ.App. P. 104.01, subd. 1. Second, Rule 82.02, subd. 3 further states:

Within the time allowed for an appeal from an appealable order, the person appealing shall: (a) serve a notice of appeal upon the county attorney and all parties or their counsel if represented; and (b) file a notice of appeal, together with proof of service upon all parties, with the clerk of appellate courts and the court administrator.

Minn. R. Juv. P. 82.02, subd. 3 (emphasis added). In contrast, Rule 103.01 of the Rules of Civil Appellate Procedure requires only adverse parties be served with notice of the appeal within the appeal period. Minn. R. Civ.App. P. 103.01, subd. 1.

In dismissing this case, the court of appeals did not apply Rules 82.01 and 82.02 of the Rules of Juvenile Procedure. Instead, the court relied on a statute, Minnesota Statutes section 260C.415 (2000), which provides that appeals from final orders in juvenile-protection matters must be taken within 30 days of the filing of the appealable order and that an appeal from juvenile court is taken to the court of appeals as in civil ca^es. The court of appeals then applied Rule 103.01, subd. 1 of the Rules of Civil Appellate Procedure, which provides that an appeal is made by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period. The court of appeals determined that the guardian ad litem was an adverse party and that the failure to timely serve the notice of appeal on an adverse party was a jurisdictional defect requiring dismissal.

While the result here is not affected by the court of appeals’ application of the statute and Rule 103.01 (because the 30 day appeal period in statute and Rule 82.01, subd. 2 are identical and because there is no dispute that the guardian ad litem was an adverse party), we nonetheless note that the legal authority relied on by the court of appeals in the order issued in this case is not controlling. We have consistently held that the supreme court has the primary responsibility under the separation of powers doctrine to regulate matters of trial and appellate procedure. State v. Lindsey, 632 N.W.2d 652, 658 (Minn.2001); State v. Olson, 482 N.W.2d 212, 215 (Minn.1992). Therefore, the Rules of Juvenile Procedure should control over the statute in juvenile protection cases. Accordingly, we hold that under Rule 82.02 of the Rules of Juvenile Procedure, the guardian ad litem should have been served with notice of appeal by March 7, 2002. Because the guardian ad litem was not served until March 21, 2002, the appeal was not perfected.

Having concluded that the appeal was not timely served on a necessary party, we must then determine what consequences flow from such a failure. We have previously recognized that failure to abide by the rules of procedure deprives this court of jurisdiction to hear the appeal. See Tischendorf v. Tischendorf, 321 N.W.2d 405, 409 (Minn.1982); Kenzie v. Dalco Corporation, 309 Minn. 495, 497, 245 N.W.2d 207, 208 (Minn.1976); Schaust v. Town Bd. Of Hollywood Tp., Carver County, 295 Minn. 571, 573, 204 N.W.2d 646, 648 (Minn.1973). While the rules do not expressly state that failure to timely file is a jurisdictional defect, the 1998 Advisory Committee Comment to Rule 103.01 of the Rules of Civil Appellate Procedure provides that “[tjimely filing the notice of appeal with the clerk of the appellate courts and timely service on the adverse party are the jurisdictional steps required to initiate an appeal.”

Despite this case precedent and the comment to the rules, in a limited number of other cases we have recognized our inherent authority to take an appeal in the interests of justice even when the filing or service requirements set forth in a rule or statute have not been met. See Ruberg v. Shelly Oil Co., 297 N.W.2d 746, 749 (Minn.1980); Krug v. Independent School Dist. No. 16, 293 N.W.2d 26, 29 (Minn.1980); State v. M.A.P., 281 N.W.2d 334, 336-37 (Minn.1979); E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 435-36, 237 N.W.2d 627, 629 (Minn.1976). While the seemingly-conflicting language set forth in our decisions may create some confusion as to the effect of not following the rules, a review of the cases provides some clarity. When the court has deviated frorm the rules or statutes and instead relied on our inherent authority to allow an untimely appeal to go forward, it has been on the basis of peculiar facts, such as recent changes in the law or interpretation issues. See Ruberg, 297 N.W.2d at 749 (involving a recent rules amendment permitting appeals from orders for judgment); Krug, 293 N.W.2d at 29 (involving question of whether amended order raised a new, previously unappeala-ble issue and whether the appeal period ran from the original order or the amended order); E.C.I. Corp., 306 Minn, at 435-36, 237 N.W.2d at 629 (involving issue of whether appeal began to run from the original order or as amended, corrected order). Importantly, in none of the cases allowing an untimely appeal to go forward did this court make a wholesale exception for a class of cases or do so solely on the basis of simple attorney negligence, inadvertence, or oversight. Rather, it is an exceptional case that merits such a departure from the rules that we have recognized as jurisdictional and leads the court to invoke our inherent powers.

Relying on this court’s willingness to make some, albeit rare, exceptions to the rules of procedure, appellant contends that in the instant case such an exception should be made because “[a]t best we have a technical violation of the rules” and because “[t]here is no prejudice to any party by reason of the insignificant delay of notice to the guardian ad litem * * *.” Arguing that dismissal is a harsh result, the appellant urges this court to adopt an analysis similar to Rule 60.02 of the Rules of Civil Procedure, a “good cause” exception to the rules that would excuse the delay and allow the appeal to go forward. We are not persuaded by appellant’s argument.

A good cause exception at the appellate court level would eviscerate the uniform, impartial application of the rules. The rules as a whole are replete with provisions containing definite deadlines specifically “designed to expedite the final resolution of litigation, with due consideration to fairness and certainty of procedure.” E.C.I. Corp., 306 Minn, at 435, 237 N.W.2d at 629. Were we to allow simple failure to follow the rules as a good cause exception, the majority of dismissals for failure to timely file and serve a notice of appeal would be appealed and reversed. Such a result would not only delay final resolution of these cases but would also strip the rules of their important function of providing litigants with clear guidelines in which substantive issues can be pursued. Further, if we wanted to avoid this wholesale result by limiting such an exception to child protection cases, we would be in direct conflict with our own policy, as reflected by the rules, that these cases in particular need to be expeditiously handled. Compare Minn. R. Juv. P. 82.02, subd. 2 (providing 30 days to appeal juvenile protection matters) with Minn. R. Civ. App. P. 104.01, subd. 1 (providing 60 days to appeal in other civil cases).

While it is true that strict application of the rules of procedure may result in some cases not being heard on appeal, equally true is that injustice may result to the children by not enforcing the deadlines set forth in the rules. The dismissal of an untimely appeal does not occur in a vacuum. Each delay in the termination of a parent’s rights equates to a delay in a child’s opportunity to have a permanent home and can seriously affect a child’s chance for permanent placement. National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases 14 (Spring 1995). This simple but alarming truth is widely recognized in literature and has propelled courts across the nation to improve the administration of justice for children. As stated by the National Council of Juvenile and Family Court Judges,

[t]he prolonged uncertainty for children of not knowing whether they will be removed from home, whether and when they will return home, when they might be moved to another foster home, or whether and when they may be placed in a new permanent home is frightening. This uncertainty can seriously and permanently damage a child’s development of trust and security.

National Council of Juvenile and Family Court Judges, Adoption and Permanency Guidelines: Improving Court Practice in Child Abuse and Neglect Cases 5 (Fall 2000). Accordingly, we stand with the appellant in her assertion that these cases are extremely important, but we part company with her singular focus on the parents.

Fundamental to this heightened concern for abused and neglected children is the growing understanding that time for a child is different than time for adults. National Council of Juvenile and Family Court Judges, Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases 14 (Spring 1995). We need to recognize that from a child’s view, a delay is a delay regardless of the reason. To a child, time lost because of innumerable opportunities given to parents to complete a case plan is no different than time lost when courts allow parents more time then is set forth in the rules to perfect an appeal. While we recognize and support due process rights of all parties, we decline the invitation to elevate the parents’ rights at the expense of the child’s.

In addition to our concern about the effect of unnecessary delay on children, we are troubled by the fact that the guardian ad litem was not served. The importance of the guardian ad litem in the child protection system must be underscored. Guardians ad litem are parties, Minn. R. Juv. P. 57.01, appointed by the court “to protect the interests of the minor.” Minn. Stat. § 260C.163, subd. 5 (2000). It is the child’s best interests that are the overriding consideration in any termination of parental rights case, Minn.Stat. § 260C.301, subd. 7 (2000); In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001); In re Welfare of M.D.O., 462 N.W.2d 370, 378 (Minn.1990), and it is the guardian ad litem who speaks for the child, Minn.fit,at. § 260C.163, subd. 5 (2000). It seems axiomatic that if we are to arrive at a just result in any particular case, the voices of the children must be heard. The failure to serve the guardian ad litem is not merely a “technical violation of the rules” but truly compromises the system’s ability to serve the best interests of the children.

Accordingly, we hold that Rule 82.02 of the Rules of Juvenile Procedure is jurisdictional, and because the appeal was not timely served on the guardian ad litem, dismissal is required. The court of appeals order is affirmed.

Concurring in part, dissenting in part, ANDERSON, PAUL H., J., and PAGE, J.

PAUL H. ANDERSON, Justice

(concurring in part, dissenting in part).

I concur in part and dissent in part. I do not conclude that appellant Dena Ro-dacker’s two-week delay in serving the guardian ad litem automatically requires the dismissal of her appeal. The majority has determined that failure to serve one necessary party places this action beyond the jurisdiction of our court. This is a too restrictive interpretation of the law, especially in the context of termination of a natural parent’s parental rights. We have said “[t]he rules of this court are designed to effectuate the orderly administration of justice and do not control its jurisdiction, for [the court] retains the constitutional power to hear and.determine, as a matter of discretion, any appeal in the interest of justice.” E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 435, 237 N.W.2d 627, 629 (1976); see also Krug v. Independent School Dist. No. 16, 293 N.W.2d 26, 29 (Minn.1980); State v. M.A.P., 281 N.W.2d 334, 337 (Minn.1979). There are times when we must be able to look beyond procedural rules in order to act in the interests of justice. This type of case presents an example of such a time.

While I disagree with the majority and conclude that the court should reach the merits of this case, I understand and appreciate both the legal grounds and policy concerns it addresses. I agree with retired Connecticut Superior Court Judge Frederica S. Brenneman who maintains that “[N]o decision concerning child placement and visitation should ever be made without first estimating the probable impact on the particular child involved of what is proposed to be done.” Judge Brenneman said, if decisions do not “minimize the negative impact on that child, they are probably wrong and should not be made.” As the majority indicates, expeditious handling of child protection cases, as provided in the rules, is necessary because undue delay in establishing permanency in a child’s life can have detrimental effects on the child. Delaying eases beyond the dictates of the rules in order to benefit parents may under many circumstances be prejudicial to the rights of children to have their cases timely heard.

Nevertheless, we need to proceed with caution in this area of the law. We must be wary of a broom that sweeps too broadly and rules that are so strictly enforced that justice has the very real potential of being denied. This court must retain the flexibility granted to it under our constitution to do what is right despite statutory proscriptions or presumptions. Minnesota Rule of Juvenile Procedure 57.01 expressly provides that the children’s guardian ad litem is a party to this matter, and here, the guardian ad litem was not timely served. A strict interpretation of the rules requires dismissal, but the interests of justice require that we reach the merits of this case where Rodacker’s attorney timely served notice with the court and the county. Further, unlike the majority, I am not concerned that taking such an approach will open the floodgates. Cases such as this are sufficiently rare to allow us to do our job and address each ease on its relative merits. Moreover, we can do so in an expeditious manner so that any detrimental effects on the child are minimized.

Having determined that this case should be decided on its merits, a more detailed account of the facts is required. Dena Rodacker is 36 years old and the natural mother of six children. She has a lengthy history of mental illness, controlled substance and alcohol abuse, and failed attempts at treatment. Since 1990, she has been diagnosed repeatedly with poly-substance abuse and personality disorders and, as recently as 2001, her psychologist reported that she “continues to be significantly chemically-dependent.” Her psychologist further noted that she “is very resistant towards accepting her mental-illness/chemical-dependency, and is also very resistant to accepting a treatment program.”

Rodacker’s parental rights to her four oldest children were involuntarily terminated in two separate proceedings, one in Wright County in 1996 and one in Kandi-yohi County in 1997. Rodacker’s attorney was present for trial at the Wright County termination proceedings, but Rodacker did not appear. In the Kandiyohi termination proceedings, Rodacker appeared by telephone for pretrial motions only and did not appear at trial. Rodacker’s counsel was at trial, but was allowed to withdraw prior to the trial provided he remained in an advisory capacity, which he did.

Rodacker’s fifth child, J.R., Jr., was born on April 18, 1998, and at the time of birth, both J.R., Jr. and Rodacker tested positive for cocaine. Shortly thereafter, Hennepin County initiated a Child in Need of Protection or Services (CHIPS) action and then a termination of parental rights action. Rodacker’s parental rights were terminated and J.R., Jr. was placed in foster care. Subsequently, the court vacated the first termination order regarding J.R., Jr. and reopened the CHIPS matter. Nevertheless, J.R., Jr. remained in foster care for more than two and a half years until December 2000, when he was returned to Rodacker. Three months before J.R., Jr. was returned to Rodacker, the CHIPS action was transferred from Hen-nepin County to Meeker County.

While the Hennepin County CHIPS action was still pending, Rodacker gave birth to her sixth child, A.I.R., on May 4, 2000. Meeker County filed a CHIPS petition on A.I.R. on May 5, 2000. In November 2000, Meeker County dismissed this CHIPS petition without a trial. Rodacker had custody of A.I.R. from birth to May 29, 2001.

On May 29, 2001, Rodacker voluntarily placed both A.I.R. and J.R., Jr. in foster care. She stated that bad things were happening where she lived, including a claim that the children had been sexually abused and that she could not keep them safe. Rodacker also admitted that she had been using methampthetamines on and off for nine days. After the children were placed in foster care, Rodacker voluntarily placed herself in the Woodland Crisis Center in Willmar, Minnesota. She was then transferred to the Willmar Regional Treatment Center (WRTC). As a result of the May 29 incident, Meeker County filed a petition for Rodacker’s commitment as mentally ill and chemically dependent. On or about June 18, 2001, her psychologist examined Rodacker and submitted a report to the court recommending against commitment. At Rodacker’s commitment hearing on June 29, 2001, the petition was dismissed and Rodacker was later released from the WRTC.

After Rodacker’s release, plans were made to reunify Rodacker with her children. When the foster parents attempted to return both of the children to Rodacker on July 3, 2001, she would accept only A.I.R. and suggested that J.R., Jr. stay with the foster parents. Two days later, Rodacker had a drug-induced psychotic episode and the police were called. The police took Rodacker and A.I.R. to the police station where Rodacker became upset and ran out. She was subsequently located and charged with disorderly conduct. A.I.R. was returned to foster care and Rodacker was transported to the WRTC.

Following this incident, Meeker County filed CHIPS petitions for both children, and at a hearing on July 17, 2001, Rodacker admitted that her children were in need of protection. Meeker County also filed a second petition for commitment of Rodacker as mentally ill and chemically dependent and Rodacker was committed on July 24, 2001. Rodacker remained at the WRTC from July 6, 2001 until August 22, 2001, when she was provisionally discharged. After her release, Rodacker violated a number of her conditions of provisional release, including discontinuing her medications without the consent of her treating psychiatrist, missing appointments with the Tri Star Community Action team, and being discharged from an outpatient chemical dependency treatment program because of her disruptive behavior, consumption of alcohol, and smoking marijuana.

On August 7, 2001, a dispositional hearing was held on the CHIPS petitions and Meeker County filed a petition for termination of parental rights. On August 23, 2001, the district court ordered that the children remain in foster care, Rodacker’s weekly visitation with the children continue, and a mental health examination be completed on the children. The court also ordered that no further reunification efforts by Meeker County Social Services were necessary based on Minn.Stat. § 260.012(a)(l)(ii) (2001), which provides that rehabilitation and reunification efforts are not required if the parental rights of the parent to another child have been terminated involuntarily.

In December 2001, a trial was held on the petition to terminate Rodacker’s parental rights. Sheila Thomas, a licensed psychologist and a state’s witness at the trial, evaluated both children to determine their current functioning, their relationship with their foster family, and their sibling relationship. Thomas testified, and the district court found, that initially A.I.R. was indiscriminately sociable and affectionate, but in later sessions was exercising more appropriate caution with new people and situations. Thomas was concerned that A.I.R. would develop attachment-related problems with additional changes in her primary caregivers. Thomas testified that J.R., Jr. appeared anxious, uncertain, and insecure about having a permanent place to live. She also testified that J.R., Jr. viewed his sister and his foster family as his family and got upset when Rodacker’s name was mentioned. In Thomas’ view, “another disruption in [J.R., Jr.’s] placement will impact on his ability to form trust relationships with adults.” Thomas recommended that both A.I.R. and J.R., Jr. remain with the foster family in an adoptive placement.

The children’s guardian ad litem testified that it would be in the best interests of the children to terminate Rodacker’s parental rights. Rodacker’s own therapist testified that the children should not be returned to Rodacker for at least six months, during which time she would need a number of services. Rodacker testified that she was not “totally mentally [and] emotionally restored from everything that took place” and wanted the children to go to her mother, the children’s maternal grandmother. On February 5, 2002, the court filed its findings, conclusions, and order terminating Rodacker’s parental rights.

Our standard of review in termination cases is “whether the [district] court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn.1990). The best interests of the child must be the paramount consideration in a termination of parental rights case. Minn.Stat. § 260C.301, subd. 7 (2001); Welfare of M.D.O., 462 N.W.2d at 375. “Where the interests of parent and child conflict, the interests of the child are paramount.” Minn.Stat. § 260C.301, subd. 7 (2001).

The statutory criteria for termination of parental rights are found in Minn.Stat. § 260C.301 (2001). Though only one of the statutory grounds must be met, the district court made findings here that termination of parental rights was warranted on three separate grounds set forth in Minn.Stat. § 260C.301, subd. 1(b)(4) and (5). The court further found that termination of parental rights was in the children’s best interests.

The first ground for termination was found under § 260C.301, subd. 1(b)(4), which allows a presumption that the parent is unfit if her rights to other children have previously been involuntarily terminated. Finding that Rodacker had her parental rights to her four oldest children involuntarily terminated in 1996 and 1997, the district court presumed, as a matter of law, that Rodacker was palpably unfit to be a parent. Further, the court found that Rodacker did not rebut that presumption, citing Rodacker’s long history and continued issues with mental illness, chemical dependency, and alcoholism as evidence that Rodacker is unable to care for her own physical, mental, and emotional needs or to care for her children for the reasonably foreseeable future.

Rodacker contends that the termination of parental rights orders from Kandiyohi and Wright Counties were insufficient to raise the presumption of unfitness because she was not represented by counsel at either termination hearing. Records of the termination proceedings indicate, however, that while Rodacker failed to appear in both cases, she was represented at the Wright County termination hearing, and her attorney was allowed to withdraw but was ordered to continue in an advisory capacity at the Kandiyohi hearing. Furthermore, it does not appear that the termination orders were challenged on appeal.

Rodacker also contends that her psychologist stated that “with services she is immediately ready to parent the children as of the date of the hearing below and the months before.” However, at trial the psychologist testified that Rodacker was in need of a number of services and that even if she followed the plan established for her treatment, it would be six months before she could be reunified with her children. Rodacker herself testified that she is not “totally mentally [and] emotionally restored from everything that took place.” Given Rodacker’s continued failures to follow her treatment plans in the past, her psychologist’s testimony, and her own testimony, it was not clearly erroneous for the district court to find that Rodacker would not be able to care appropriately for her children in the reasonably foreseeable future.

The district court next found that Ro-dacker’s parental rights should be terminated under section 260C.301, subd. 1(b)(5), which allows termination when reasonable efforts have failed to correct the reason for the out-of-home placement and presumes failure of these efforts when four factors are shown. Applying the first factor that the child has resided outside the parent’s home for more than 12 of the last 22 months, the court found that reasonable efforts failed to correct the conditions that led to J.R., Jr.’s placement out of the home. The court found that J.R., Jr. had resided out of the parental home for a total of approximately three years at the time of trial and that, therefore, the first presumption that reasonable efforts have failed was met. The court found that Rodacker offered no evidence to rebut that presumption.

In AJ.R.’s case, A.I.R. was in out-of-home placement for five and one-half months, and thus, the first presumption did not apply. The court found, however, that evidence of Rodacker’s continued problems with drug and alcohol use indicated that “the conditions that led to [AJ.R.’s] placement are on-going and unresolved despite reasonable efforts by Hennepin and Meeker County Social Services, law enforcement, psychologists and medical practitioners * * *.” Thus, the court also concluded that reasonable efforts have failed to correct the conditions leading to AJ.R.’s placement.

The district court also determined that reasonable efforts have failed to correct the conditions leading to the children’s placement under the second half of § 260C.301, subd. 1(b)(5) (2001), which presumes reasonable efforts have failed if:

(A) the parent has been diagnosed as chemically dependent by a professional certified to make the diagnosis;
(B) the parent has been required by a case plan to participate in a chemical dependency treatment program;
(C) the treatment programs offered to the parent were culturally, linguistically, and clinically appropriate;
(D) the parent has either failed two or more times to successfully complete a treatment program or has refused at two or more separate meetings with a caseworker to participate in a treatment program; and
(E) the parent continues to abuse chemicals.

Specifically, the district court found that Rodacker has been diagnosed as chemically dependent by many professionals over a period in excess of 10 years, that she was required by case plans to participate in chemical dependency treatment programs, and that she was offered programs that were culturally, linguistically, and clinically appropriate. The court further found that Rodacker failed to successfully complete a program more than ten different times, refused multiple times to participate in treatment programs, and continues to abuse chemicals. Rodacker does not dispute these findings. Based upon the complete record and the district court’s thorough analysis, the court’s finding that reasonable efforts have failed to correct the conditions leading to J.R., Jr. and AJ.R.’s placement is not clearly erroneous.

The district court went on to find that it was in J.R., Jr.’s and AJ.R.’s best interests that Rodacker’s parental rights be terminated. Citing Matter of Welfare of R.T.B., the district court found that it must balance three factors in analyzing the best interests of the children: “(1) the child(ren)’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of the child(ren).” 492 N.W.2d 1, 4 (Minn.App.1992). Applying both statutory and case law, the court noted that the parent’s and children’s interests are not given equal weight and that the best interests of the children are the paramount consideration. Based on Rodacker’s current actions and her history of mental illness and chemical dependency, the court believed that Ro-dacker would continue using drugs and that as a result, her children would be placed in and out of foster care. Accordingly, and in agreement with the children’s psychologist and the guardian ad litem, the court concluded that termination of Ro-dacker’s parental rights was in the best interests of the children. Like the other findings of the court, this finding is not clearly erroneous.

Finally, Rodacker contends that the district court should have ordered the children placed with the children’s maternal grandmother under Minn.Stat. § 260C.201, subd. 11(d)(1) (2001). Section 260C.201, subd. 11(d) provides that if a child is not returned to the home, the court must order one of five dispositions, among them permanent legal and physical custody to a relative or termination of parental rights. The statute does not give preference to one option over the other, but requires that the court act in the best interests of the children. In this case, the court found that the best interests of the children require the termination of Rodacker’s parental rights. Rodacker provides no evidence supporting her claim that placement with the children’s grandmother would be in their best interests.

Based on the reasons articulated by the district court and after reviewing the case on its merits, I would affirm that court’s order terminating Rodacker’s parental rights to J.R., Jr. and A.I.R.

PAGE, Justice

(concurring and dissenting).

I join in the concurrence and dissent of Justice Paul H. Anderson.

      . In its order, the court of appeals also cited to In re Welfare of J.B., Jr., 623 N.W.2d 640, 642 (Minn.App.2001), for the proposition that failure to serve a party who is not an adverse party is not a jurisdictional defect and does not require dismissal of the appeal. In Welfare ofJ.B., Jr., the court of appeals stated that Rule 82.02, subd. 3 did not govern but rather Rule 103.01 of the Rules of Civil Appellate Procedure, as set forth in the statute, controlled. Welfare of J.B., Jr., 623 N.W.2d at 642. Because this is incorrect, we overrule that portion of Welfare of J.B., Jr. that is inconsistent with this decision.

      . Rule 57.01, subd. 1 of the Rules of Juvenile Procedure expressly provides that the child's guardian ad litem is a party to a juvenile protection matter.

      . Rule 60.02 provides that the trial court may relieve a party from a final order, order a new trial, or "grant such other relief as may be just” in the case of "[m]istake, inadvertence, surprise, or excusable neglect.” In determining whether or not a trial court should have . granted relief under Rule 60.02, this court has traditionally employed a four-prong test. Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 490 (Minn.1997). Under the four-prong test, the party seeking relief must demonstrate: "(1) a reasonable defense on the merits; (2) a reasonable excuse for his or her failure to act; (3) that he acted with due diligence after notice of the entry of judgment; and (4) that no substantial prejudice will result to the opposing party if the motion to vacate is granted.” Id. We have serious doubts as to the utility of a Rule 60.02 approach at the appellate level. Rule 60.02 motions are made typically to the trial judge who heard the underlying matter and can evaluate the reasonableness of the excuse, the prejudice to the other party, and whether the party has a reasonable defense. The appellate court is not similarly situated and would not be able to apply a Rule 60.02 analysis without getting into the merits of the case. Further, as noted below, it would be difficult for a party to clear the "prejudice” hurdle in that abused and/or neglected children would have to wait even longer than is required for a permanent home.

      . Frederica S. Brenneman, retired Judge of the Connecticut Superior Court, First Do No Harm: Protecting From the Protectors, Children’s Law Center of Minnesota, October 2, 2002. Judge Brenneman’s daughter, Amy Brenneman, is the creator, producer, and star of the show "Judging Amy,” which is based in part on Judge Brenneman's experiences as a judge.

      . The presumed father's rights to both J.R., Jr. and A.I.R. were terminated and are not an issue in this appeal.

      . While the coin! did not specifically address the other three factors, the findings of fact demonstrate an evidentiary basis to support the conclusion these last three factors were met. As to the second factor, the court's approval of a case plan, Rodacker's social worker testified that Rodacker refused to sign the Meeker County case plans because a “Hennepin County judge had prepared a case plan and she didn't want duplicate plans," thus indicating that there was a court-ordered case plan for J.R., Jr. in Hennepin County. As to the last two factors, failure to correct conditions leading to out-of-home placement and reasonable efforts by the social service agency to reunite family, the court found, while discussing A.I.R.’s situation, that conditions that led to A.I.R.'s out-of-home placement are ongoing and unresolved and that reasonable efforts have been made to rehabilitate Rodacker and reunify her family.

      . The Meeker County social worker assigned to this case testified that she talked with the children's grandmother a number of times about taking the children and that the grandmother indicated that she was 58 years old, did not know if she could handle toddlers, and was not certain that her husband would want the children. The grandmother testified, however, that she never told the social worker that she would not take the children and that she believed that the children should be with Rodacker.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    Debra Jane MILLER, Respondent, v. ONE 2001 PONTIAC AZTEK, # GHS-186 VIN: 3G7DA03E41S500032, Defendant, City of Bloomington, Appellant.
    No. C8-02-613.
    Court of Appeals of Minnesota.
    Dec. 17, 2002.

      David Ornstein, Bloomington City Attorney, Sandra Henkels Johnson, Associate City Attorney, Bloomington, MN, for appellant.
    Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, STONEBURNER, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

After respondent Debra Miller was arrested twice in seven months for gross misdemeanor driving while impaired (DWI), appellant City of Bloomington (Bloomington) commenced forfeiture proceedings pursuant to Minn.Stat. § 169A.63 (2000) against her 2001 Pontiac Aztek. The district court found that forfeiture would be unconstitutionally excessive and ordered Bloomington to sell the vehicle and distribute all but $1,000 of the proceeds to Miller. Bloomington argues that the district court erred when it (1) found that the DWI forfeiture of Miller’s vehicle violated the Excessive Fines Clause of the Eighth Amendment of the United States Constitution and Article I, Section 5 of the Minnesota Constitution; and (2) improperly applied the forfeiture statute. We reverse and remand.

FACTS

The facts of this case are undisputed. On June 6, 2001, Miller was arrested for gross misdemeanor driving while impaired in violation of Minn.Stat. §§ 169A.20, subd. 1(5), .25 (2000). At the time of the arrest, her blood alcohol concentration (BAC) was .29. Approximately seven months earlier, on November 16, 2000, Miller was arrested for gross misdemeanor DWI, having a BAC of .26. On January 25, 2001, Miller was convicted of the November 2000 offense and, on July 11, 2001, Miller was convicted of the June 2001 offense.

Because her first DWI conviction was less than ten years old, and because her BAC was above .20, there were two “aggravating factors” present when Miller committed the June 2001 offense, making it a first-degree DWI. See Minn.Stat. §§ 169A.25, subd. 1 (stating that person is guilty of first-degree DWI if “two or more aggravating factors were present when the violation was committed”), .03, subd. 3 (2000) (aggravating factors include both impaired driving incident within last ten years and having BAC over .20). Miller’s first-degree DWI constituted a “designated offense,” which qualified Miller’s vehicle for forfeiture. See Minn.Stat. §§ 169A.63, subds. 1(d)(1) (stating that “designated offense” includes a violation of section 169A.20, driving while impaired, under circumstances described in section 169A.25, first-degree driving while impaired), 2 (2000) (providing for seizure of motor vehicle involved in designated offense). Bloomington commenced forfeiture proceedings against Miller’s vehicle.

Miller filed a demand for judicial determination regarding the forfeiture. Bloom-ington subsequently moved for summary judgment. The district court denied Bloomington’s motion for summary judgment and ordered an evidentiary hearing.

At the evidentiary hearing, the district court examined. Miller’s financial status. In September 2000, Miller was laid off her job. She used part of her severance package to purchase the 2001 Pontiac Aztek that she was driving when she was arrested in June 2001. At the time of the evi-dentiary hearing, Miller was still unemployed. She was receiving unemployment benefits, which were used to pay living expenses. The district court found that Miller had “little or no assets,” had credit card debt of approximately $2,000, and was indebted to an attorney who represented her in a recent marital dissolution action.

On March 8, 2002, the district court issued an order concluding that the vehicle forfeiture would be “unconstitutionally excessive” because of its impact on Miller. The district court also found that Miller

has suffered substantially due to her conviction i.e. jail, and is presently indigent with little or no savings and her only asset is the 2001 Pontiac Aztek, which the City of Bloomington seeks to have forfeited.

The district court concluded that “the forfeiture of her vehicle will produce a disparate result for [Miller] and it is inequitable to her.” The district court ordered that the vehicle be sold, that Bloomington waive storage fees, and that all the proceeds of the sale above $1,000 be distributed to Miller. This appeal followed.

ISSUES

I. Is the forfeiture of Miller’s vehicle an unconstitutionally excessive fine under the Eighth Amendment of the United States Constitution and Article I, § 5 of the Minnesota Constitution?

II. Did the district court err by ordering Bloomington to distribute all but $1,000 of the proceeds of the forfeited vehicle sale to Miller?

ANALYSIS

I.

The constitutionality of a statute is a question of law that this court reviews de novo. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000). “We exercise the power to declare a statute unconstitutional with extreme caution and only when absolutely necessary.” City of New Brighton v. 2000 Ford Excursion, 622 N.W.2d 364, 368 (Minn.App.2001) (citation omitted), review denied (Minn. Apr. 17, 2001). A person challenging the constitutionality of a statute must overcome every presumption in favor of constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979). “Absent good reason, we will apply federal interpretations to a state constitutional provision with ‘almost identical’ language to the federal.” Hawes v. 1997 Jeep Wrangler, 602 N.W.2d 874, 877 (Minn.App.1999) (quotation omitted).

When a DWI offender has a BAC of more than .20 and has a prior DWI conviction within the past ten years, the offender’s vehicle is subject to forfeiture pursuant to Minn.Stat. § 169A.63, subd. 6 (2000). If the district court finds that a vehicle is subject to forfeiture, the vehicle must be sold or kept for official use by the authority seizing the vehicle. Id., subd. 10(a) (2000).

“The punitive aspects of the primarily remedial vehicle forfeiture statute * ⅜ * place it within the purview of the Eighth Amendment’s Excessive Fines Clause.” Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 807-08 (Minn.App.1999) (citation and footnote omitted), review denied (Minn. May 18, 1999); see New Brighton, 622 N.W.2d at 370; see also U.S. Const, amend. VIII. The Excessive Fines Clause’s counterpart in the Minnesota Constitution is identical. Minn. Const, art. I, § 5. In cases involving DWI-related vehicle forfeiture, we apply the analytical framework used by the Minnesota Supreme Court in Rewitzer to analyze the federal and state excessive fines clauses. New Brighton, 622 N.W.2d at 370 (stating that “we believe the supreme court’s analysis of the excessive fines clause is also applicable to civil in rem forfeitures with both punitive and remedial purposes”). In Rewitzer, the supreme court adopted the standard of “gross disproportionality,” as articulated in Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 3008-09, 77 L.Ed.2d 637 (1983), and found a fine of $273,600 for controlled substance violations to be unconstitutional. Rewitzer, 617 N.W.2d at 413-15. To determine whether a DWI forfeiture is grossly disproportional under Solem, we examine

(1) the gravity of the offense and the harshness of the penalty; (2) [a] comparison of the contested fine with fines imposed for the commission of other crimes in the same jurisdiction; and (3)[a] comparison of the contested fine with fines imposed for commission of the same crime in other jurisdictions.

New Brighton, 622 N.W.2d at 370-71.

Bloomington argues that the forfeiture of Miller’s vehicle was not, as the district court found, an unconstitutionally excessive fine. Although the district court examined only the first Solem factor, we will address all three.

A. Gravity of offense and harshness of penalty

Miller was arrested for gross misdemeanor DWI, just six months after her conviction for a similar offense. At both arrests, her BAC was measured at well above .20. The dangerousness of this conduct provides the type of gravity the forfeiture statute was intended to address. In New Brighton, the DWI offender had two prior DWI offenses when police arrested him for his third within five years. Id. at 367. As a result, the City of New Brighton sought forfeiture of the offender’s $40,000 Ford Excursion. Id. This court agreed with the district court’s assessment that the offender was a “repeat and unreconstructed drunk driver,” and was “exactly the type of driver the vehicle forfeiture law was designed for.” Id. at 371. Here, the gravity of Miller’s offense was at least as great, if not greater, in light of the accumulation of two gross-misdemeanor DWI convictions within little more than a six-month period.

As to the harshness of the penalty, the central issue is whether the district court should have examined Miller’s financial situation in determining whether forfeiture is excessive. Miller argues that there are no clear procedures for determining the harshness of a penalty. She also argues that in applying the first factor of the Solem test, the impact of the forfeiture on the vehicle’s owner must be considered. Both Miller and the district court attempt to distinguish this case' from New Brighton, where the offender was a millionaire. See id. at 367. Bloomington argues that the district court’s examination of Miller’s financial circumstances was improper. We agree.

A careful examination of Solem and Ba-jakajian leads us to conclude that the district court erred in assessing Miller’s financial situation when applying the first factor of Solem’s test for gross dispropor-tionality. The supreme court in Solem clearly articulated that “[w]hen sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized.” Solem, 463 U.S. at 290, 103 S.Ct. at 3010 (emphasis added); see also Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980) (stating that “Eighth Amendment judgments * * * should be mformed by objective factors to the maximum possible extent” (quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion))); United States v. 817 N.E. 29th Drive, Wilton Manors, Florida, 175 F.3d 1304, 1311 (11th Cir.1999) (footnote omitted) (stating that “excessiveness is determined in relation to the characteristics of the offense, not in relation to the characteristics of the offender”).

Although Solem addressed a life sentence, and not a fine or vehicle forfeiture, this language directs courts to conduct an objective evaluation of the harshness of the penalty, not a subjective evaluation of the individual circumstances of the person affected by it. We must, therefore, determine whether it is excessively harsh to remove the instrumentality of the offense from the offender. Our review of Eighth Amendment caselaw reveals no requirement that a court consider an offender’s unique, individual circumstances in determining how a penalty impacts that offender. Nor does our review reveal any precedent for doing so. In Bajakajian, a forfeiture case, the supreme court performed its analysis without considering the offender’s individual financial circumstances. Bajakajian, 524 U.S. at 340, n. 15, 118 S.Ct. at 2039 n. 15 (offender’s wealth neither argued before nor decided by trial court). Likewise, the Eighth Amendment analysis in Rewitzer employed objective factors without consideration of individual financial circumstances. Solem, Bajakajian, and Rewitzer lead us to conclude that a district court must examine harshness objectively and refrain from analyzing the effect of a penalty based on an individual’s particular circumstances.

We conclude that examining Miller’s particular financial circumstances was error. When we objectively evaluate the harshness of the penalty in Miller’s case as required by Solem, we conclude that the forfeiture of a $16,000 vehicle, the instrumentality of the offense, is not excessively harsh in light of the gravity of two gross misdemeanor DWI convictions.

B. Minnesota fines

We next compare the contested forfeiture with fines imposed for other crimes in Minnesota. New Brighton, 622 N.W.2d at 371. Like the appellant in New Brighton, Miller in this case was convicted of a gross misdemeanor, for which the maximum fine is $3,000. Minn.Stat. § 609.02, subd. 4 (2000); see New Brighton, 622 N.W.2d at 371. In Neio Brighton, we held that

a forfeiture is not excessive merely because the value of [the DWI offender’s] car is higher than the maximum fines he might receive for committing similarly classified offenses.

Id. (involving forfeiture of $40,000 vehicle). Similarly, in Lukkason, we held that the forfeiture of a vehicle worth $11,534.92 was not excessive in light of the gross misdemeanor that triggered the forfeiture. 590 N.W.2d at 807-08. Because the value of Miller’s vehicle is not sufficiently distinguishable from the vehicles in these cases, we conclude that forfeiture of a $16,000 vehicle is not excessive when compared to the maximum fine possible for a gross misdemeanor.

C. Forfeitures in other jurisdictions

Finally, the third Solem factor requires a comparison of the contested forfeiture with the forfeitures imposed for the same crime in other jurisdictions. Several other jurisdictions have comparable forfeiture laws. See, e.g., Cal. Veh.Code § 23596 (West 2000) (forfeiture permitted after third or subsequent driving under the influence conviction within seven years); Mich. Comp. Laws Ann. § 257.625n(l)(a) (West 2001) (providing that vehicle may be forfeited if offender has two DWI offenses in seven years or three in ten years); N.D. Cent.Code § 39-08-01.3 (Supp.2001) (permitting forfeiture when offender has two or more convictions for driving under the influence of alcohol within five years); Wis. Stat. § 346.65(6)(a)(l) (West Supp. 2001) (permitting forfeiture of vehicle upon third alcohol-related driving offense). Minnesota’s vehicle forfeiture statute is very similar to other jurisdictions in its application to repeat DWI offenders.

Based on the application of the Solem factors to this case, we conclude that the forfeiture of Miller’s vehicle was not unconstitutionally excessive.

II.

Bloomington also argues that the relief fashioned by the district court was error because it was contrary to the forfeiture statute. We agree. The district court ordered Bloomington to sell the vehicle and distribute all but $1,000 of the proceeds to Miller. The district court’s order results in a de facto forfeiture that is without any legal authority. Application of a statute to the undisputed facts of a case involves a question of law, warranting de novo review. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996).

If a person commits a DWI offense for which a vehicle is subject to forfeiture, “[a]ll right, title, and interest in a vehicle subject to forfeiture * * * vests in the appropriate agency.” Minn.Stat. § 169A.63, subd. 3 (2000). If the district court finds that the vehicle is subject to forfeiture, the vehicle must be sold or kept for official use. Id. subd. 10(a) (2000). After a vehicle has been sold, the proceeds must be distributed in accordance with the statutory scheme in Minn.Stat. § 169A.63, subd. 10(b). Minnesota’s statutory scheme does not provide for distribution of the proceeds to the vehicle’s previous owner. The forfeiture statute provides, in pertinent part:

The proceeds from the sale of forfeited vehicles * ⅜ * must be forwarded to the treasury of the political subdivision that employs the appropriate agency responsible for the forfeiture ⅜ * *. If the appropriate agency is an agency of state government, the net proceeds must be forwarded to the state treasury * * *.

Minn.Stat. § 169A.63, subd. 10(b) (emphasis added).

In light of the explicit language of the statute, there is no legal authority supporting the district court’s de facto forfeiture order requiring distribution of the proceeds from the sale of the vehicle to the DWI offender. The district court, therefore, erred.

DECISION

The forfeiture of Miller’s vehicle was not unconstitutionally excessive. The district court erred by ordering Bloomington to distribute to Miller proceeds of the sale of her forfeited vehicle. We reverse and remand to the district court, with instructions to order Miller’s vehicle to be forfeited pursuant to Minn.Stat. § 169A.63 (2000).

Reversed and remanded.

      . The Rewitzer court based its use of the gross disproportionality standard on the United States Supreme Court's decision in United States v. Bajakajian, 524 U.S. 321, 344, 118 S.Ct. 2028, 2041, 141 L.Ed.2d 314 (1998), where the seizure of $357,144 was held to be an unconstitutionally excessive penalty for the crime of failing to report exported currency in excess of $10,000. Rewitzer, 617 N.W.2d at 413-15.

      . Unlike the DWI-related forfeiture statute, the statutes providing for the application of fines and restitution permit a subjective examination of an offender's financial condition when fines and restitution are ordered. See Minn.Stat. §§ 609.101, subd. 5(b) (stating if court finds defendant qualifies for public defender services, is indigent or immediate payment of the fine would create undue hardship, court may reduce minimum fine); 611.A.045, subd. 1(a)(2) (2000) (requiring a court to consider "the income, resources, and obligations of the defendant" when determining whether to award restitution and setting the amount). The forfeiture statute does not contain similar language authorizing a subjective examination of the individual financial circumstances of the owner of the vehicle to be forfeited. In addition, although the Rewitzer court analyzed the offender’s fine under both Minn.Stat. § 609.101 and the Eighth Amendment, the two analyses were performed separately, and only the latter applies here. Rewitzer, 617 N.W.2d at 411-15; see also 817 N.E. 29th Drive, 175 F.3d at 1311 n. 12 (noting that under federal law, an offender’s characteristics may be used to determine an appropriate fine).

      . In addition to New Brighton, this court in other cases has not looked at the individual impact of the forfeiture when upholding the constitutionality of vehicle forfeitures challenged under the Excessive Fines Clause. See, e.g., Lukkason, 590 N.W.2d at 808 (holding forfeiture of $11,500 vehicle after third DWI offense in ten years was constitutional); 1997 Jeep Wrangler, 602 N.W.2d at 880 (holding forfeiture of vehicle subject to $12,000 loan, after third DWI, was constitutional).


author: MARING, Justice.

text:
    2002 ND 202
    STATE of North Dakota, Plaintiff and Appellee v. Shaun Dean BINGAMAN, Defendant and Appellant.
    No. 20010287.
    Supreme Court of North Dakota.
    Dec. 20, 2002.

      Steven James Simonson, Grand Forks, ND, for defendant and appellant.
    Sonja Clapp (argued), Assistant State’s Attorney, and Michelle Schulz (appeared), third-year law student, Grand Forks, ND, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Shaun Bingaman appeals from the criminal judgment dated November 14, 2001, convicting him of manslaughter. We affirm.

[¶ 2] On October 2, 2000, a homicide occurred outside the Ambassador Motel in Grand Forks, North Dakota. On that day, the victim, Timothy Kingsbury, and his friend, Gary Burnett, went to the Ambassador Motel, which was Bingaman’s residence, to resolve a dispute Kingsbury and Bingaman had over some money. A confrontation between Kingsbury, Burnett, and Bingaman ensued in the parking lot, with punches being thrown and Kingsbury being hit in the face.

[¶ 3] David Lewandowski, who also rented a room at the Ambassador Motel, came out to the parking lot and became involved in the confrontation. Lewandow-ski was under the impression that there were arrest warrants outstanding on Kingsbury and that he should detain Kingsbury until the police arrived to arrest him. Kingsbury and Lewandowski ended up on the ground with Lewandowski holding Kingsbury in a bear hug. In an attempt to get Lewandowski to release Kingsbury, Burnett kicked Lewandowski in the face. Burnett then left the scene. While Lewandowski and Kingsbury were still on the ground, Kingsbury allegedly kicked Bingaman in the leg. Bingaman responded by kicking Kingsbury in the head several times. Lewandowski continued to hold Kingsbury in a bear hug, although the exact position of the bear hug varies in the testimony.

[¶ 4] While Lewandowski had Kings-bury in the bear hug, Bingaman knelt down and placed Kingsbury’s head in a head lock. The bear hug and head lock continued until the Grand Forks Police arrived. When the police arrived, they ordered Lewandowski and Bingaman to release their holds on Kingsbury. Kings-bury was released, but he appeared to be unconscious, having only a faint pulse. Soon, medical technicians arrived and CPR was performed. Kingsbury was transported to the hospital where resuscitation efforts continued. Kingsbury regained a pulse; however, over the next three days, doctors determined that Kingsbury was brain dead. Kingsbury was removed from life support and died on October 6, 2000. An autopsy later listed Kingsbury’s cause of death as lack of oxygen to the brain.

[¶ 5] Bingaman and Lewandowski were each charged with the crime of manslaughter. The State moved to join the two defendants, so both cases would be heard in one trial. Both defendants responded opposing joinder and alleged that joinder would be prejudicial. A hearing was held on the motions, and the trial court granted the State’s motion to join the parties. The trial of Lewandowski and Bingaman began on October 2, 2001. At the close of evidence, Lewandowski was convicted of negligent homicide and sentenced to five years, with all but one year suspended. Bingaman was convicted of manslaughter and sentenced to ten years, with two years suspended. Bingaman appeals from his manslaughter conviction.

[¶ 6] Bingaman argues the trial court erred in granting the State’s motion to join the two defendants for trial because he was prejudiced by the joinder. We disagree.

I.

[¶ 7] The State contends that since Bingaman objected to joinder before trial, but did not make a motion for severance at the close of evidence, the severance issue has not been properly preserved. Our Court has held that a motion for severance must be renewed at the close of evidence in order for the objection to joinder to survive. See State v. Dymowski, 459 N.W.2d 777, 784 (N.D.1990) (holding that a severance motion will be deemed waived if it is not renewed at the end of the evidence).

[¶ 8] Bingaman does not dispute the fact that he failed to bring a motion to sever at the conclusion of the evidence and, therefore, the issue is not properly preserved for appeal. He argues, instead, that the joinder of the parties constituted obvious error under N.D.R.Crim.P. 52(b). See Dymowski, 459 N.W.2d at 780 (concluding that even if the severance motion is not properly preserved, this Court still may reverse the trial court if the joinder of parties constituted obvious error). Binga-man argues on appeal that because he and Lewandowski were joined as defendants, he did not get a fair trial. He contends that the prejudice occurred because: 1) he and Lewandowski had mutually antagonistic defenses; 2) the evidence presented by the State and by Lewandowski created a biased jury against Bingaman and resulted in a “popularity contest” between the two defendants; and 3) it was unfair for the jury to convict him of manslaughter while only convicting Lewandowski of negligent homicide because none of the medical examiners could attribute Kingsbury’s death exclusively to one defendant or the other. Bingaman’s arguments are without merit.

[¶ 9] Generally, issues not properly preserved at the trial court level will not be heard on appeal. See State v. Yineman, 2002 ND 145, ¶21, 651 N.W.2d 648. However, under N.D.R.Crim.P. 52(b), this Court is allowed to notice obvious errors which are revealed in the record. See Yineman, at ¶ 21. “Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” N.D.R.Crim.P. 52(b). Our Court has stated that it will only exercise its power to notice obvious error in “exceptional circumstances where the accused has suffered serious injustice.” State v. Johnson, 2001 ND 184, ¶ 12, 636 N.W.2d 391. We exercise our power to find obvious error cautiously and have very rarely found obvious error under Rule 52(b). See Johnson, at ¶ 12. “An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.” State v. Miller, 2001 ND 132, ¶ 25, 631 N.W.2d 587. In order to prove that obvious error occurred, Bingaman would have the burden of showing: “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. To determine whether an obvious error has been made, this Court will “examine the entire record and the probable effect of the alleged error in light of all the evidence.” Johnson, at ¶ 12.' We have reviewed the record in this case and conclude that Bingaman has not met his burden under N.D.R.Crim.P. 52(b).

II.

Prejudicial Joinder

A.

[¶10] Rule 8(b), N.D.R.Crim.P., provides for two or more defendants to be charged in the “same indictment, information, or complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more offenses.” Rule 13, N.D.R.Crim.P., further gives the court the power to “order two or more indictments, informations, or complaints to be tried together if the offenses and the defendants, if there is more than one, could have been joined in a single indictment, information, or complaint.” Joinder of defendants is proper when the defendants are linked together by their participation in a common transaction or act. See Explanatory Note, N.D.R.Crim.P. 8 (citing United States v. Brennan, 134 F.Supp. 42 (D.Minn.1955)). In this case, it was undisputed that both defendants were present and did participate in the fight with Kingsbury which occurred outside of the Ambassador Motel.

[¶ 11] However, even when Rules 8 and 13, N.D.R.Crim.P., are initially met and joinder is granted, severance of the parties may still be necessary if the court deems the joinder to be substantially prejudicial to one or more of the parties. Rule 14, N.D.R.Crim.P., states that, “[i]f it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever relief justice requires.” See State v. Wamre, 1999 ND 164, ¶29, 599 N.W.2d 268. The trial court’s duty under Rule 14 is a continuing one, and it must continue to assess whether severance is necessary in light of developments during the trial. See Dymowski, 459 N.W.2d at 781. The purpose of Rule 14 is to “promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of defendants to a fair trial.” Dymoioski, at 779.

B.

[¶ 12] Bingaman first contends that the cases should have been severed because he and Lewandowski had mutually antagonistic defenses. Bingaman argues that because the medical experts testifying in the case could not determine which specific act killed the victim, Lewandowski’s mutually antagonistic defense strategy was convincing the jury that it was Bingaman’s head lock and not Lewandowski’s bear hug that caused the victim’s death.

[¶ 13] This Court has stated “the mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another have both been held to be insufficient grounds to require separate, trials.” State v. Erickson, 231 N.W.2d 758, 763 (N.D.1975) (citing Dauer v. United States, 189 F.2d 343 (10th Cir.1951)). Moreover, our Court has said that in order to rise to the level of being mutually antagonistic, defenses must be “antagonistic to the point of being mutually exclusive or irreconcilable.” Dymowski, 459 N.W.2d at 785 (quoting United States v. Berkowitz, 662 F.2d 1127, 1133 (5th Cir.1981)). Bingaman’s defense that it was Lewandow-ski’s bear hug that caused the death of Kingsbury was not precluded by Lewan-dowski’s defense that it was Bingaman’s head lock which caused the death. Although the defenses in this case were to some extent antagonistic, they were clearly not mutually exclusive or irreconcilable, because the jury had the option to, and in fact did, find that both the bear hug and the head lock caused Kingsbury’s death.

[¶ 14] Further, even if the defenses were mutually antagonistic, the United States Supreme Court has held that mutually antagonistic defenses are not prejudicial per se. See Zafiro v. United, States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Rather, severance due to antagonistic defenses should only be granted when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 539, 113 S.Ct. 933. The Court of Appeals for the Eighth Circuit explained:

even blame-shifting on the part of the defendants “is not a sufficient reason for severance,” ... “Co-defendants are often hostile to one another, and one will try frequently to ‘point the finger,’ to shift the blame, or to save himself at the expense of the other.” Such tactics rise to the level of antagonistic defenses requiring severance “only when ‘there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ ”

United States v. Basile, 109 F.3d 1304, 1309-10 (8th Cir.1997) (citations omitted). In order for Bingaman to prove that the trial court made an error by continuing the joinder of the two parties, he would have to demonstrate “severe or compelling prejudice” by showing “that his defense was irreconcilable with that of the codefendant or that the jury was unable to compartmentalize the evidence.” Id. at 1310 (quoting United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir.1996)). Bingaman has not shown he was prejudiced due to antagonistic defenses.

C.

[¶ 15] Bingaman further claims he was prejudiced by the joinder because during trial, Lewandowski’s counsel made personal comparisons of the two defendants, trying to persuade the jury that Binga-man, not Lewandowski, was the “bad guy” and that Lewandowski was just a big, mentally disabled guy trying to do his civic duty. Bingaman claims it was because of these “unfair personal comparisons” that the jury found him more responsible for the crime.

[¶ 16] During trial, Bingaman had both the assistance of his own counsel and a limiting instruction given by the court to assure that the joint trial would not result in any prejudice. Before final arguments, the trial court met with the Assistant State’s Attorney, Bingaman’s attorney, and Lewandowski’s attorney to discuss the proposed jury instructions. At that time, Lewandowski’s attorney raised some concerns about how the jury would handle the two defendants when reaching its verdict. The trial court outlined the safeguards it was including in the jury instructions to try to make it clear to the jury that there were two separate defendants and that the jury needed to consider each one of the defendants separately. These safeguards included separate essential element instructions for each defendant (ie., “Essential Elements of Manslaughter for Shaun Bingaman” and “Essential Elements of Manslaughter for David Lewandowski”); separate captions for each case; and separate jury verdict forms for each defendant. Moreover, the trial court and counsel agreed to an instruction captioned “Separate Cases” which read, “[t]hese are two cases which are being tried at the same time. You should view all the evidence and law and reach a decision as to each Defendant.” It was agreed that the “Separate Cases” instruction along with the ability for counsel to present this distinction to the jury in closing arguments would be sufficient to preserve the separate status of each defendant.

[¶ 17] The trial court went to great lengths, by including specific jury instructions and taking additional safeguards, to limit any prejudicial effect the joinder of parties might have had. The explanatory note to N.D.R.Crim.P. 14 points out that although “a danger of prejudice exists in all trials involving multiple defendants, the general rule is that public policy considerations in the administration of justice require that the severance be denied in the absence of a clear-cut showing of prejudice against which the trial court will not be able to afford protection.” Bingaman has not made such a showing.

D.

[¶ 18] Bingaman’s final contention that the joinder prejudiced him focuses on the fact that the jury handed down disparate verdicts-Bingaman’s for manslaughter and Lewandowski’s for negligent homicide. Bingaman claims that, “[t]he medical experts could not determine that [Bingaman] was any more culpable than [Lewandow-ski] in the death.... ” Bingaman misapplies the medical experts’ testimony because they testified as to causation of the victim’s death and not as to culpability. It is true that the medical evidence was inconclusive as to the cause of the victim’s death. Both Dr. Mizell and Dr. Carter testified that the death could have been caused by Bingaman’s head lock, Lewan-dowski’s bear hug, or a combination of both. However, even though the exact act that led to the victim’s death could not be pinpointed, the jury was not required to acquit both defendants. North Dakota Century Code § 12.1-02-05 states that, “[c]ausation may be found where the result would not have occurred but for the conduct of the accused operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the accused clearly insufficient.” Nor was the jury required to find both defendants guilty of the same crime. See C.T. Dre-chsler, Annotation, Inconsistency of Criminal Verdicts as between two or more Defendants Tried Together, 22 A.L.R.3d 717, § 13 (2002); see also People v. Pickens, 269 Cal.App.2d 844, 75 Cal.Rptr. 352, 357 (1969) (commenting that it is in no way “unusual or improper for a jury to find codefendants in a joint trial guilty of different offenses or different degrees of the same offense”). Conviction of a co-defendant of a lesser crime does not require that the other defendant’s conviction be set aside. See Drechsler, supra § 6 (discussing several cases which stand for the proposition that “verdicts as between two or more criminal defendants tried together will not be held reversibly inconsistent if, upon a consideration of the facts and circumstances of the case, they can be explained or reconciled on any rational basis”). The differing verdicts for Bingaman and Lewandowski could easily be explained away by the jury finding two different levels of culpability and matching up each with its corresponding crime. Under N.D.C.C. § 12.1-16-02, “[a] person is guilty of manslaughter, a class B felony, if he recklessly causes the death of another human being.” (Emphasis added.) In contrast, to be guilty of negligent homicide, N.D.C.C. § 12.1-16-03 requires that a person “negligently causes the death of another human being.” (Emphasis added.)

[¶ 19] The evidence in this case certainly supports the jury finding Binga-man’s level of culpability reckless and Le-wandowski’s negligent. This would result in corresponding convictions of manslaughter and negligent homicide for Bingaman and Lewandowski, respectively. Therefore, Bingaman’s contention that the two verdicts were “not consistent with the objective evidence presented at trial,” is unfounded. As such, Bingaman has not demonstrated any prejudice affecting his substantial rights.

[¶ 20] Therefore, even if Bingaman had made a motion for severance at the close of evidence and properly preserved the issue for appeal, Bingaman has failed to establish any prejudice under N.D.R.Crim.P. 14 or that the trial court abused its discretion by the joinder. See State v. Purdy, 491 N.W.2d 402, 406 (N.D.1992) (establishing that this Court will not overturn a trial court’s refusal to grant a separate trial absent an abuse of discretion).

[¶ 21] We conclude Bingaman did not establish he was prejudiced because he and Lewandowski had defenses that were to some extent antagonistic or because Le-wandowski tried to persuade the jury Bin-gaman was the bad guy. Therefore we conclude, under N.D.R.Crim.P. 52(b), Bin-gaman has not shown that the trial court made an obvious error or that he was in any way prejudiced by the initial joinder or continuing joinder of Lewandowski and him as co-defendants at trial. For these reasons, we affirm the criminal judgment.

[1122] YANDEWALLE, C.J, and NEUMANN and KAPSNER, JJ., concur.

[¶ 23] The Honorable JAMES H. O’KEEFE, Surrogate Judge, sitting in place of SANDSTROM, J., disqualified. The Honorable JAMES H. O’KEEFE participated in the oral argument, but did not participate in this decision.


text:
    2002 ND 210
    STATE of North Dakota, Plaintiff and Appellee, v. Shaun Dean BINGAMAN, Defendant and Appellant.
    No. 20020134.
    Supreme Court of North Dakota.
    Dec. 23, 2002.

      Steven J. Simonson (submitted on brief), Grand Forks, for defendant and appellant.
    Sonja Clapp (submitted on brief), Assistant State’s Attorney, Grand Forks, for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Shaun Bingaman appeals from the Amended Criminal Judgment which sentenced him to pay restitution in the •amount of $16,261.55 to the family of Timothy Kingsbury. We affirm.

[¶ 2] Bingaman and David Lewan-dowski were involved in the homicide of Timothy Kingsbury which occurred on October 2, 2000. At trial, Bingaman was convicted of manslaughter and Lewandow-ski was convicted of negligent homicide. A hearing was held on March 21, 2002, regarding restitution for Kingsbury’s medical bills and funeral expenses. The trial court ordered Bingaman to pay one hundred percent of the restitution in the amount of $16,261.55. Lewandowski was not ordered to pay any restitution.

[¶ 3] Bingaman argues on appeal that the trial court abused its discretion when it ordered him to pay one hundred percent of the restitution. Specifically, he claims the underlying facts do not support making him solely responsible for the entire amount of restitution. We disagree.

[¶ 4] Section 12.1-32-08, N.D.C.C., grants to courts the authority to order a criminal defendant to pay restitution. Our Court’s review of the exercise of this authority is limited to whether the trial court acted within the prescribed limits of the statute. See State v. Vick, 1998 ND 214, ¶ 4, 587 N.W.2d 567. “This standard of review in a similar context has been called the abuse of discretion standard.” Id. (citation omitted). “A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law.” State v. Kensmoe, 2001 ND 190, ¶ 7, 636 N.W.2d 183 (citation omitted).

[¶ 5] The applicable statute, N.D.C.C. § 12.1-32-08(1), provides in pertinent part:

Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence it may impose, shall order that the defendant make restitution to the victim or other recipient as determined by the court, unless the court states on the record, based upon the criteria in this subsection, the reason it does not order restitution or orders only partial restitution. In determining whether to order restitution, the court shall take into account:
a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action....
b. The ability of the defendant to restore the fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property.
c. The likelihood that attaching a condition relating to restitution or reparation will serve a valid rehabilita-tional purpose in the case of the particular offender considered.

[¶ 6] In this case, a restitution hearing was held and the trial court issued its Order for Restitution finding:

There was some evidence presented at the healing that Bingaman may have some interest in some land, which he might have inherited in Benson County. Other than that Bingaman is a manual laborer with virtually no assets.

As to Lewandowski, the trial court found:

He is on medical disability and receives on [sic] $692 per month with his father as the representative payee. He has significant medical and psychological problems. He testified that his medication costs about $200 per month. He also receives food stamps.

The trial court recognized that the jury found Bingaman guilty of manslaughter and Lewandowski guilty of negligent homicide. It also noted the involvement of both defendants in the homicide, albeit at differing degrees.

[¶ 7] At the restitution hearing, none of the parties disputed the total amount of restitution owed to Kingsbury’s family for medical and funeral expenses. The evidence supports that the medical and funeral expenses were a direct result of both defendants’ criminal actions, as required by N.D.C.C. § 12.1 — 32—08(l)(a). See State v. Pippin, 496 N.W.2d 50, 53 (N.D.1993) (holding that “there must exist an immediate and intimate causal connection between the criminal conduct and the damages or expenses for which restitution is ordered”).

[¶ 8] Based on its findings in the Order for Restitution, it is clear that the trial court considered the ability of both parties to “restore the fruits of the criminal action or to pay monetary reparations, ...” N.D.C.C. § 12.1 — 32—08(l)(b). The trial court found that Bingaman would be able to pay the restitution amount, whereas Lewandowski, with his limited income, would not.

[¶ 9] The trial court correctly applied N.D.C.C. § 12.1-32-08 and acted within the limits prescribed by the statute. Therefore, the trial court did not abuse its discretion when it ordered Bingaman to pay all of the restitution damages. We affirm the trial court’s Amended Criminal Judgment ordering restitution.

[¶ 10] JOHN C. McCLINTOCK, Jr., D.J., and GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, and WILLIAM A. NEUMANN, JJ„ concur.

[¶ 11] The Honorable JOHN C. McCLINTOCK, Jr., D.J., sitting in place of SANDSTROM, J., disqualified.

      . This Court has already disposed of Binga-man's arguments regarding the allegedly prejudicial personal comparisons of Bingaman and Lewandowski that took place during the juxy trial and the resulting convictions of manslaughter for Bingaman and negligent homicide for Lewandowski. See State v. Bingaman, 2002 ND 202.