Jacqueline Blakey, Jerry Blakey v. Javonda Jones, Gina Alexander, ...

STATE OF MINNESOTA

IN SUPREME COURT

A22-0098

Court of Appeals Anderson, J.
Dissenting, McKeig, Moore, III, JJ.
Took no part, Procaccini, J.
Jacqueline Blakey,

Appellant,

Jerry Blakey,
Filed: November 1, 2023
Appellant, Office of Appellate Courts

vs.

Javonda Jones,

Respondent,

Gina Alexander, et al.,

Respondents.

________________________

Bruce Jones, Elle E. Ottaviani, Faegre Drinker Biddle & Reath LLP, Minneapolis,
Minnesota, for appellants.

Erik F. Hansen, Elizabeth M. Cadem, Burns & Hansen, P.A., Minneapolis, Minnesota; and

Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota, for respondents Gina
Alexander, et al.

________________________

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 SYLLABUS

To perfect their appeal, appellants were not required to serve a notice of appeal on

a guardian ad litem who was a party in the third-party custody proceeding in the district

court but was discharged before the appeal, because the discharged guardian ad litem was

no longer a “party” within the meaning of Rule 103.01 of the Minnesota Rules of Civil

Appellate Procedure and the guardian ad litem’s discharge was not itself the subject of the

appeal.

Reversed and remanded; appeal reinstated.

OPINION

ANDERSON, Justice.

The issue presented here is whether Rule 103.01, subdivision 1, of the Minnesota

Rules of Civil Appellate Procedure requires service of a notice of appeal on a guardian ad

litem who was discharged after the district court issued the order from which the appeal

was taken. In April 2020, appellants Jacqueline and Jerry Blakey filed a petition for

permanent third-party custody of their great niece, K.J. Respondent Javonda Jones, K.J.’s

mother, requested that the district court deny the Blakeys’ petition. The district court

appointed a guardian ad litem. After a hearing and separate paternity proceeding, a referee

approved a stipulation of shared joint legal and physical custody of K.J. by Jones and K.J.’s

father, and the court later dismissed the Blakeys’ petition for third-party custody after an

evidentiary hearing. After dismissing the Blakeys’ petition for third-party custody, the

district court discharged the guardian ad litem, after which the Blakeys appealed the

dismissal of their petition. The court of appeals dismissed the Blakeys’ appeal for failure

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to timely serve the guardian ad litem with a notice of appeal under Rule 103.01,

subdivision 1, of the Minnesota Rules of Civil Appellate Procedure. Because we conclude

that the guardian ad litem was no longer a party to the action once discharged by the district

court, and Rule 103.01, subdivision 1, does not require service of a notice of appeal on a

former party whose dismissal or discharge is not itself the subject of the appeal, we reverse.

FACTS

K.J. was born to Javonda Jones on January 17, 2017. Andrew Alexander was

adjudicated as K.J.’s father in a separate paternity action in 2019.

In April 2020, the Blakeys—K.J.’s paternal great aunt and uncle—filed an ex parte

petition for temporary third-party custody of K.J. based on their concern that Jones had

neglected K.J.’s special needs and severe medical conditions. The Blakeys named Jones

as the sole respondent in the action. The district court granted the Blakeys’ ex parte

petition, awarded the Blakeys temporary sole physical and legal custody of K.J., and

granted Jones parenting time with K.J. twice per week.

The Blakeys filed a petition for permanent third-party custody of K.J. in April 2020

based on the same allegations in their ex parte motion. Alexander and his parents, Larry

and Gina Alexander—K.J.’s paternal grandparents—intervened in the action in May 2020.

The district court appointed a guardian ad litem in May 2020 to represent the interests

of K.J., ordering that the guardian ad litem “shall” be a party. The order naming the

guardian ad litem stated that the “appointment in this case shall automatically expire” after

6 months but could be extended. The district court later extended the guardian ad litem’s

3
appointment, stating that the “appointment w[ould] expire pursuant to further order of the

Court.”

In July 2020, after a hearing, the district court granted Jones sole legal and physical

custody of K.J., granted the Blakeys unsupervised visitation with K.J. every weekend, and

granted both the Blakeys and the Alexanders access to K.J.’s medical records. The district

court also determined that there was a sufficient basis to proceed, based on the facts the

Blakeys alleged in their custody petition, and determined that a full evidentiary hearing

was necessary.

The guardian ad litem issued a report in September 2020 and recommended that

Jones retain sole legal and physical custody of K.J. In February 2021, a referee approved

a stipulation between the parents modifying custody, after which Jones and K.J.’s father

each shared joint legal and physical custody. The guardian ad litem issued an updated

report in August 2021 and recommended that K.J.’s parents continue to share joint legal

and physical custody, reporting that they were administering K.J.’s medications as

prescribed and that K.J.’s medical conditions had greatly improved. Shortly after issuing

the updated report, the guardian ad litem informed the parties that she would “no longer be

with the Guardian ad Litem Program” when the litigation proceeded to the evidentiary

hearing, so her supervisor, Laura Miles, would attend in her place.

An evidentiary hearing took place in September 2021, and all parties were present,

including Miles on behalf of the Guardian ad Litem Program. On November 24, 2021, the

district court dismissed the Blakeys’ petition for third-party custody, concluding that they

“failed to establish” any of the statutory factors required to grant third-party custody.

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 In December 2021, the district court discharged the Guardian ad Litem Program and

the assigned guardian ad litem. The district court stated that the guardian ad litem had

“fulfilled the duties and obligations assigned by the Court.”

The Blakeys filed a timely pro se appeal of the dismissal of their custody petition in

January 2022. The court of appeals stayed the appeal pending mediation, but mediation

failed to resolve the parties’ dispute. The stay was lifted in June 2022. On September 8,

2022, the Blakeys, still appearing pro se, served the Guardian ad Litem Program and Miles

with a notice of appeal.

The Alexanders moved to dismiss the Blakeys’ appeal on the ground that they failed

to timely serve the guardian ad litem with the notice of appeal within the 60-day appeal

period. See Minn. R. Civ. App. P. 104.01, subd. 1. The Alexanders argued that the

guardian ad litem was an adverse party, and consequently, the guardian ad litem must be

served with the notice of appeal under Rule 103.01, subdivision 1, of the Rules of Civil

Appellate Procedure. The Blakeys filed a pro se response to the motion to dismiss, arguing

that the guardian ad litem was not an adverse party because she served in an advisory role,

she did not participate in many hearings, and she did not weigh in on all decisions. The

Blakeys conceded, however, that “there are several legal issues identified in [their] appeal

that[] specifically relate to the guardian ad litem,” such as her failure to certify written

reports and fulfill discovery requests, including after the district court ordered her to

procure discovery documents.

The court of appeals dismissed the Blakeys’ appeal. Blakey v. Jones, No. A22-0098,

Order (Minn. App. filed Nov. 1, 2022). The court of appeals explained that, under

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Rule 103.01 of the Rules of Civil Appellate Procedure, an appeal is made by filing a notice

of appeal and serving the notice of appeal on all adverse parties within the appeal period.

Blakey, Order at 2. The court of appeals concluded that the guardian ad litem was a “party”

because her appointment in this case was mandatory, the district court specifically made

the guardian ad litem a party to the litigation, and the district court’s discharge of the

guardian ad litem after dismissing the Blakeys’ petition “d[id] not affect the [guardian ad

litem]’s party status on appeal.” Id. at 3. The court of appeals also concluded that the

guardian ad litem was an adverse party under Rule 103.01, subdivision 1, because she had

recommended that K.J.’s parents share custody, which conflicted with the Blakeys’ request

for third-party custody, and reversing the district court’s order would prejudice the position

of the guardian ad litem. Id. at 4. Consequently, because it was undisputed that the Blakeys

did not serve the guardian ad litem before the appeal period expired and because timely

service of a notice of appeal on adverse parties is a jurisdictional requirement, the court of

appeals dismissed the appeal. Id. at 4–5.

The Blakeys retained counsel and filed a petition for review, and we granted the

petition. 1

ANALYSIS

At issue here is whether Rule 103.01, subdivision 1, of the Minnesota Rules of Civil

Appellate Procedure requires service of a notice of appeal on a guardian ad litem who was

a party in the district court but was discharged after the district court issued the order from

1
Jones did not file a brief before our court.

6
which the appeal was taken. The Blakeys contend that the discharged guardian ad litem is

not a “party” for purposes of Rule 103.01, subdivision 1, and that they were not required

to serve the guardian ad litem with a notice of appeal. The relevant facts are not in dispute,

and this case presents a question regarding the interpretation of the Minnesota Rules of

Civil Appellate Procedure, which we review de novo. See Stern 1011 First St. S., LLC v.

Gere, 979 N.W.2d 216, 220 (Minn. 2022).

A.

We first address an argument by respondents that the Blakeys forfeited their

argument before our court. The Alexanders assert that the Blakeys only argued before the

court of appeals that the guardian ad litem was not adverse to the Blakeys, but the Blakeys

now argue that the guardian ad litem was not a party at the time of their appeal. The

Alexanders therefore argue that the Blakeys’ argument is forfeited, because the reliance on

the district court’s discharge of the guardian ad litem is a new argument not made in the

court of appeals. The Blakeys contend that they did raise the party status of the guardian

ad litem in the court of appeals. Alternatively, the Blakeys argue that we can review

forfeited issues in the interests of justice if neither party will be prejudiced by our review.

In the Blakeys’ responsive memorandum before the court of appeals, the Blakeys

stated that “it is disputable whether the guardian ad litem assigned to the district court case

is an actual party to the action,” but also explained that “the most prevailing question is

whether or not the guardian ad litem is an adverse party to the Appellant’s appeal case.”

The remainder of the Blakeys’ memorandum focused on whether the guardian ad litem

qualified as adverse. The Blakeys’ argument here, however, focuses almost exclusively

7
on whether the guardian ad litem is a party to the appeal. Consequently, the Blakeys’

argument before our court presents a new question not adequately argued and explained

before the court of appeals. See State v. Myhre, 875 N.W.2d 799, 806 (Minn. 2016) (stating

that an appellate court may deem issues raised in a brief, but “not adequately argued or

explained,” forfeited on appeal).

Generally, issues not raised in the court of appeals are forfeited before our court.

See Annis v. Annis, 84 N.W.2d 256, 261–63 (Minn. 1957) (“The general rule . . . is that

litigants are bound in this court by the theory or theories, however erroneous or

improvident, upon which the action was actually tried below.”). This rule, however, is not

ironclad, and we have “the authority to take any action ‘as the interest of justice may

require.’ ” Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (quoting Minn. R. Civ. App.

P. 103.04). Our court “may base its decision upon a theory not presented to or considered”

by the court of appeals when “the question raised for the first time on appeal is plainly

decisive of the entire controversy on its merits, and where, as in [a case] involving

undisputed facts, there is no possible advantage or disadvantage to either party in

not having had a prior ruling.” Holen v. Minneapolis-St. Paul Metro. Airport Comm’n,

84 N.W.2d 282, 286 (Minn. 1957) (emphasis omitted). “Factors favoring review

include: the issue is a novel legal issue of first impression; the issue was raised prominently

in briefing; the issue was ‘implicit in’ or ‘closely akin to’ the arguments below; and the

issue is not dependent on any new or controverted facts.” Watson v. United Servs. Auto.

Ass’n, 566 N.W.2d 683, 688 (Minn. 1997).

8
 These factors favor our review of the Blakeys’ argument regarding the discharge of

the guardian ad litem. Notably, we are presented here with an issue of first impression.

Although we have held that a guardian ad litem who is a party must be served with a notice

of appeal in termination-of-parental-rights litigation, In re Welfare of J.R., Jr., 655 N.W.2d

1, 6 (Minn. 2003), we have not extended that precedent to custody appeals. Moreover, the

facts in J.R., Jr. did not present us with the question we consider here—whether a guardian

ad litem who was a party before the district court but was discharged before appeal must

be served with a notice of appeal as an “adverse party” under Rule 103.01, subdivision 1.

The Blakeys raised the issue of whether the guardian ad litem is a party in their petition for

review and in both their principal and reply briefs to our court. The Alexanders also

addressed the issue in their brief to our court. Furthermore, the overarching issue before

the court of appeals—whether the Blakeys were required to serve the guardian ad litem to

perfect their appeal—is the same issue now before us. The Blakeys’ argument that the

guardian ad litem is not a party at all is “closely akin to” their argument to the court of

appeals that the guardian ad litem was not an “adverse” party. Finally, there are no disputed

facts that must be resolved to decide the legal issue here. The parties agree that the guardian

ad litem was a party when the district court issued its order, that the district court later

discharged the guardian ad litem, and that the Blakeys did not serve the guardian ad litem

with notice of their appeal within the required time period. Accordingly, we proceed to

address the merits of this appeal.

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 B.

We now turn to the question of whether Rule 103.01, subdivision 1, of the

Minnesota Rules of Civil Appellate Procedure requires service of a notice of appeal on a

guardian ad litem who was discharged after the district court issued the order from which

the appeal was taken.

“When construing procedural rules, we look to the plain language of the rule and its

purpose.” In re Welfare of S.M.E., 725 N.W.2d 740, 742 (Minn. 2007). Rules are read as

a whole, and each section is interpreted “in light of the surrounding sections.” State v.

Underdahl, 767 N.W.2d 677, 682 (Minn. 2009) (internal quotation marks omitted)

(quoting Am. Fam. Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000)). In

interpreting procedural rules, we also have a policy “to preserve the right to appeal,

simplify practice, and lessen confusion.” S.M.E., 725 N.W.2d at 742; see also Huntsman

v. Huntsman, 633 N.W.2d 852, 855 (Minn. 2001). But our court applies “the plain

language of the rule unless we determine that the language is subject to multiple reasonable

interpretations and therefore is ambiguous.” City of Waconia v. Dock, 961 N.W.2d 220,

225 (Minn. 2021).

Rule 103.01, subdivision 1, provides that “[a]n appeal shall be 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.” As we have previously explained, “failure to

abide by the rules of procedure deprives this court of jurisdiction to hear the appeal.” J.R.,

Jr., 655 N.W.2d at 3. There is no dispute that the Blakeys did not serve the guardian ad

litem within the appeal period. Accordingly, the Blakeys’ appeal was perfected only if the

10
guardian ad litem was not an “adverse party” within the meaning of Rule 103.01,

subdivision 1.

1.

We begin by considering the guardian ad litem’s appointment in the case and the

effect of the discharge order on the guardian ad litem’s status here. To participate in

litigation under the circumstances presented here, a guardian ad litem must be appointed

by the district court, and a guardian ad litem has no authority beyond that prescribed by the

order of the court. See Minn. Gen. R. Prac. 903.03 (stating that a guardian ad litem shall

only be appointed and serve “upon [a] written order of the court” setting forth the specific

duties to be performed). The guardian ad litem must, in some instances, be made a party

to an action, as the district court found here. See Minn. Stat. § 518.165, subd. 2 (2022). A

guardian ad litem may be removed only by order of the court, Minn. Gen. R. Prac. 904.02,

after which the guardian ad litem has no further right or duty to participate in the

action. The Blakeys argue that a discharge is the functional equivalent of dismissal from

the litigation as a party. According to the Alexanders, however, a discharge does not affect

the guardian ad litem’s party status on appeal.

The Alexanders argue that the guardian ad litem remained an adverse party at the

time of the appeal despite the dismissal of the guardian ad litem from the litigation by the

district court. Relying on a prior court of appeals decision, the court of appeals likewise

concluded that “whether the district court discharges the [guardian ad litem] after issuing

a decision does not affect the [guardian ad litem]’s party status on appeal.” Blakey, Order

at 3–4 (citing Banal-Shepherd v. Shepherd, 829 N.W.2d 426, 428 (Minn. App. 2013)

11
(concluding that the guardian ad litem who was discharged after the district court issues its

decision was a party), rev. denied (Minn. May 21, 2013)).

We disagree. We decline to adopt the reasoning of Banal-Shepherd. In

Banal-Shepherd, the court of appeals did not consider the threshold question of whether

the guardian ad litem remained a party to the litigation at the time of appeal.

The district court dismissed the Blakeys’ third-party custody petition. The next

week, the district court issued an order that “dischare[d] the Guardian ad Litem

Program . . . and the assigned Guardian ad Litem . . . in this matter.” Consequently, when

the Blakeys filed their January 2022 notice of appeal, the guardian ad litem had no further

role in the litigation. The district court determined when it discharged the guardian ad

litem that she had “fulfilled the duties and obligations assigned by the Court.” Nowhere in

its order did the district court preserve for the guardian ad litem or the Guardian ad Litem

Program any rights or duties to participate in the litigation. Accordingly, the guardian ad

litem no longer had “a right to control the proceedings, make a defense,” or “control the

lawsuit,” and she was no longer a party to the lawsuit. Party, Black’s Law Dictionary (11th

ed. 2019). 2 Any legal interest of the guardian ad litem in this dispute was extinguished.

2
We recognize that the definitions of “discharge” and “dismissal” differ in some
respects. See, e.g., Dismissal, Black’s Law Dictionary (11th ed. 2019) (defining
“dismissal” as “[t]ermination of an action, claim, or charge without further hearing”);
Discharge, Black’s Law Dictionary (11th ed. 2019) (defining “discharge” as “[a]ny method
by which a legal duty is extinguished”). The distinction here, however, is immaterial. We
conclude that a discharged guardian ad litem with no further legal duty in the case is, for
purposes of appeal, removed from the action. Consequently, a discharged guardian ad
litem has no further role in controlling the lawsuit and is no longer a party to the litigation.
See Party, Black’s Law Dictionary (11th ed. 2019).

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 2.

Having determined that the guardian ad litem was no longer a party to the litigation,

we turn to whether the requirement in Rule 103.01, subdivision 1, of the Minnesota Rules

of Civil Appellate Procedure, for service of the notice of appeal “on the adverse party or

parties,” includes service upon the discharged guardian ad litem. We hold, under the plain

language of Rule 103.01, subdivision 1, that under the circumstances here, the Blakeys

were not required to serve the notice of appeal on the discharged guardian ad litem, because

the guardian ad litem was no longer a party to the litigation. It is not enough to assert that

some previously advanced position held by the guardian ad litem is imperiled by an appeal;

Rule 103.01, subdivision 1, requires service of a notice of appeal on adverse parties.

Because the guardian ad litem had no further rights or duties, the guardian ad litem was no

longer a party to the litigation after discharge, and the Blakeys were not required to serve

the guardian ad litem with a notice of appeal. 3

The Alexanders also argue that, even if the guardian ad litem no longer was a party

at the time of the Blakeys’ appeal, Rule 103.01, subdivision 1, required the Blakeys to

serve the guardian ad litem with a notice of appeal because the guardian ad litem was

formerly a party. It is undisputed that the guardian ad litem was a party at the time the

district court issued the order that is central to this appeal, but the district court had

3
We recognize the important role that a guardian ad litem plays in ensuring that the
voice of the child is heard and the best interests of the child are protected and advanced. A
district court may certainly decide that the guardian ad litem will not be discharged until
the appeal is over, see J.R., Jr., 655 N.W.2d at 1–2, or to modify its appointment order to
remove all obligations of the guardian ad litem except to the extent that the guardian ad
litem may intervene in appellate proceedings. That did not happen here.

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discharged the guardian ad litem by the time the Blakeys appealed the district court’s

order. According to the Alexanders, the plain language of Rule 103.01, subdivision 1, does

not limit the parties that must be served to only current adverse parties to the litigation, so

the Blakeys’ failure to serve the guardian ad litem, a former party, with a notice of appeal

was fatal to their appeal. In contrast, the Blakeys insist that—setting aside circumstances

“when the appeal addresses the propriety of a party’s dismissal”—only current parties at

the time of appeal must be served with a notice of appeal under Rule 103.01, subdivision 1.

We agree with the Blakeys.

The plain language of Rule 103.01, subdivision 1, requires service “on the adverse

party or parties within the appeal period.” Although the rule does not specify whether it

refers to only current parties or all parties at any time during the district court proceedings,

we conclude that it is clear from the purpose of the rule that it encompasses only those

parties that remain in the action on appeal. S.M.E., 725 N.W.2d at 742 (“When construing

procedural rules, we look to the plain language of the rule and its purpose.”). Generally,

that will be limited to current parties, or former parties whose dismissal is being challenged

on appeal. We have long held that the purpose of giving notice of an appeal is to alert

“every party whose interest in the subject of the appeal is in direct conflict with an

affirmance, reversal, or modification of the judgment or order appealed from.” Thayer v.

Duffy, 63 N.W.2d 28, 40 (Minn. 1953). Given this purpose, it would be superfluous to

require service on former parties with no legal role in the appeal. Such a requirement

would fail to further the purpose of providing notice to persons or entities with a

prospective interest in the outcome of an appeal and would unnecessarily run counter to

14
our goal “to preserve the right to appeal, simplify practice, and lessen confusion.” S.M.E.,

725 N.W.2d at 742. Consequently, this broad reading of the rule is inconsistent with our

precedent, and we decline to adopt it. Here, when the guardian ad litem was no longer a

party and the guardian ad litem’s discharge was not itself being appealed, the guardian ad

litem was not among “the adverse party or parties” upon which service was required under

Rule 103.01, subdivision 1, of the Minnesota Rules of Civil Appellate Procedure.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals.

Reversed and remanded; appeal reinstated.

PROCACCINI, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.

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 DISSENT

McKEIG, Justice (dissenting).

Because the majority’s opinion has the effect of depriving children of a voice and

an advocate on appeal of child custody cases, I respectfully dissent.

Guardians ad litem (GALs) fulfill an integral role in our court system—they protect

children’s best interests and speak to the court on behalf of children. In re Welfare of J.R.,

Jr., 655 N.W.2d 1, 5–6 (Minn. 2003). GALs are a voice for the voiceless and advocate for

one of our most vulnerable populations—children who have been neglected and abused.

GALs protect and advocate for children by representing children’s best interests and

advising the court by conducting investigations into the child’s and family’s situation,

participating in the case and advocating for appropriate community services, maintaining

confidentiality, monitoring the child’s best interests through the judicial proceedings, and

presenting the court with written reports on the child’s best interests that include

conclusions and recommendations. Minn. Stat. § 518.165, subd. 2a (2022).

In J.R., this court held that failing to timely serve a GAL in a

termination-of-parental-rights appeal was a jurisdictional defect that required dismissal of

the appeal. 655 N.W.2d. at 6. We recognized that strict application of the procedural rules

“may result in some cases not being heard on appeal,” but held that “failure to serve [a

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 (internal quotation marks

omitted) (emphasis added). We explained that “[i]t seems axiomatic that if we are to arrive

at a just result in any particular case, the voices of the children must be heard.” Id. at 6.

D-1
 The court of appeals extended our rationale from J.R. to custody cases under the

Minnesota Rules of Civil Appellate Procedure in Banal-Shepherd v. Shepherd.

829 N.W.2d 426 (Minn. 2013), rev. denied (Minn. May 21, 2013). Banal-Shepherd

involved a custody dispute between unmarried parents who had joint legal and physical

custody of their child. Id. at 427. The district court appointed a GAL, who became a party

to the case and made custody recommendations to the court. Id. The district court followed

part of the GAL’s recommendation, and ordered that the parents share legal custody, but

granted physical custody to only one parent. Id. Then, the district court discharged the

GAL and the GAL program. Id. One parent appealed but failed to serve a notice of appeal

on the GAL or the GAL program. Id. The court of appeals held that failure to serve the

GAL was a jurisdiction-depriving defect because the GAL was an adverse party under

Minn. R. Civ. App. P. 103.01, subd. 1, which meant the parent was required to serve the

GAL with a notice of appeal to perfect the appeal. Banal-Shepherd, 829 N.W.2d at 428.

The court of appeals explained that the role of a GAL “is to represent the best interests of

the child, as determined by the guardian.” Id. Banal-Shepherd, which is procedurally

identical to this case, has been authoritative law in Minnesota for 10 years.

Minnesota Rule of Civil Appellate Procedure 103.01 requires service on the

“adverse party or parties” to perfect an appeal. See also Minn. R. Civ. App. P. 104.01,

subd. 1 (requiring an appeal to be taken within 60 days of the entry of the judgment or

within 60 days of service of notice of the filing of an appealable order). We have explained

that an “adverse party” within the meaning of the rule “means the party whose interest in

relation to the subject of the appeal is in direct conflict with a reversal or modification of

D-2
the order or judgment from which the appeal is taken.” Peterson v. Joint. Indep. Consol.

Sch. Dist. No. 116 & No. 136, 58 N.W.2d 465, 467 (Minn. 1953); see also Larson v. Le

Mere, 18 N.W.2d 696, 698 (Minn. 1945) (“Any party who would be prejudiced by a

reversal or modification of an order, award, or judgment is an adverse party on whom a

writ of certiorari or notice of appeal must be served.”).

The facts here demonstrate that ruling in line with Banal-Shepherd and J.R. is the

correct result because the GAL in this case was certainly an adverse party to the Blakeys’

appeal. When this custody litigation commenced, K.J. was only three years old and was

diagnosed with Eosinophilic Esophagitis, Eosinophilic Gastritis, and Gastroesophageal

Reflux Disease, all of which made her throw up often and required multiple surgical

procedures for observation of her esophagus and stomach lining. The third-party custody

petition arose because K.J.’s paternal great aunt and uncle believed K.J.’s mother was

medically neglecting K.J., causing her conditions to worsen. Ultimately the case involved

four competing groups: K.J.’s paternal great aunt and uncle, the Blakeys; K.J.’s paternal

grandparents, the Alexanders; K.J.’s father, Andrew Alexander; and K.J.’s mother,

Jovanda Jones. The case was litigated heavily before the district court, involving many

motions, cross-motions, hearings, and deteriorating relationships amongst the parties over

the course of a year and a half.

The GAL was the only person tasked with advocating for K.J.’s best interests

throughout this contentious litigation process. The GAL initially recommended that Jones

get sole legal and physical custody of K.J., but later updated her report to recommend that

Jones and Alexander share joint legal and physical custody of K.J., noting that the parents

D-3
were administering K.J.’s medications as prescribed and that her medical conditions had

greatly improved. 1 Meaning, the GAL’s recommendations were at odds with the Blakeys’

request for third-party custody of K.J.

The district court ultimately followed the GAL’s recommendation and dismissed

the Blakeys’ petition for third-party custody. The Blakeys appealed, seeking reversal of

the denial of their petition for third-party custody. In their statement of the case to the court

of appeals, the Blakeys listed 18 questions on which they sought review, including whether

the district court abused its discretion when it accepted and relied upon the GAL’s report

while simultaneously denying the Blakeys’ request for a hearing to “address

misinformation, incomplete information and materially false allegations extremely

prejudicial to [the Blakeys] that were replete throughout the [GAL’s] report”; and whether

the district court erred and abused its discretion by failing to order a continuance after the

Blakeys informed the court the GAL was not cooperating with the discovery process. The

Blakeys admitted in their motion to the court of appeals opposing respondent’s motion to

dismiss that “there are several legal issues identified in the appeal that, [sic] specifically

1
The GAL was concerned about “the level of animosity within the Alexander/Blakey
family” because of the strained relationships between the Alexanders and Blakeys “that
have spilled over into these proceedings.” The GAL explained that the Blakeys’ claim that
their concern is about K.J.’s medical needs, “however, there it [sic] has also been expressed
by multiple family members and [the] Blakey[s] themselves, that they are more able to
provide K[.J.] with a good life,” so it seems like “their intentions with respect to filing for
custody may go beyond concerns regarding medical neglect.” The GAL was also
concerned that the Blakeys “may be unable or unwilling to encourage and support a
relationship between K[.J.] and her parents and . . . her paternal grandparents.” The GAL
noted that she did “not recommend[] a Court-ordered visitation schedule for [the]
Blakey[s]. There continues to be a very high level of family conflict that puts K.[J.] in the
middle and is not in her best interests.”

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relate to the [GAL],” but claimed that the GAL could not be considered a party because

she was not truly interested in K.J.’s best interests and did not fulfill all her legally required

duties and responsibilities.

In sum, the Blakeys’ arguments on appeal directly involved and challenged the

GAL’s recommendations to the district court. Moreso, the Blakeys’ allegations about the

GAL’s actions, or lack thereof, on appeal could have colored the court of appeals’

consideration of the GAL’s ultimate recommendation to the district court and thus

prejudiced the GAL’s position. Consequently, the GAL is an adverse party within the

meaning of Rule 103.01. See Le Mere, 18 N.W.2d at 698 (“Any party who would be

prejudiced by a reversal or modification of an order, award, or judgment is an adverse party

on whom a writ of certiorari or notice of appeal must be served.”). Not requiring service

of the appeal on the GAL leaves the GAL without notice of the Blakeys’ allegations and

without the ability or chance to respond. Given that the GAL’s sole purpose in these

proceedings was to act as K.J.’s voice and advocate on her behalf, depriving the GAL from

knowing about and participating in the appeal, which directly challenges her

recommendations on K.J’s behalf, does not serve the best interests of K.J. because it

renders her voiceless on appeal.

The district court’s appointment of the GAL in this case was mandatory under Minn.

Stat. § 518.165, subd. 2 (2022) because the court had “reason to believe that the minor

child [was] a victim of domestic child abuse or neglect.” This mandatory appointment

required the GAL to conduct an independent investigation to determine the facts relevant

to the child’s and family’s situation—this investigation “must include . . . reviewing

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relevant documents; meeting with and observing the child in the home setting and

considering the child's wishes, as appropriate; and interviewing parents, caregivers, and

others with knowledge relevant to the case.” Minn. Stat. § 518.165, subd. 2a(1) (2022).

Additionally, after appointing the GAL, the district court ordered that the GAL “shall” be

a party to the case. The district court later extended the GAL’s appointment, stating that

the “appointment w[ould] expire pursuant to further order of the Court.” When a GAL is

made a party to case, as here, their role is unique given the statutes and rules defining their

obligations and rights in these proceedings. The GAL’s primary obligation is to advocate

for the best interests of a child throughout the proceedings by “advocat[ing] for the best

interests of the child,” sharing information to “promote cooperative solutions that are in

the best interests of the child,” “monitor[ing] the best interests of the child,” and

“present[ing] written reports on the best interests of the child.” Minn. Gen. R. Prac.

905.01(b)–(e); see also Minn. Stat. § 518.165, subd. 2 (requiring a GAL to “represent the

interests of the child and advise the court with respect to custody and parenting time” when

appointment of a GAL is required).

The majority contends that the district court’s discharge of the GAL had the same

legal effect as dismissing a party. This contention fails to recognize the reality of a GAL’s

role and the district court’s language in this case. When the district court discharged the

GAL in December 2021, after dismissing the custody petition, it did so because the GAL

“ha[d] fulfilled the duties and obligations assigned by the Court.” Consequently, this

discharge is most logically understood as relieving the GAL from continuing to investigate

and issue reports on K.J.’s best interests because the district court viewed the proceeding

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as over. This discharge order does not explicitly state that the GAL was dismissed as a

party to the case. And, as a party, the GAL has a number of rights, including the right to

bring post-trial motions and to appeal court orders. See Minn. R. Gen. Prac. 907.02(l)–

(m). 2 In order for the GAL to meaningfully use this right to participate in an appeal, the

GAL must, at a minimum, have notice of an appeal.

Additionally, there are no rules, statutes, or precedent from our court that describe

the legal effect of discharging a GAL, and certainly no authority states that a discharge of

a GAL has the same legal effect as dismissing a party. Dismissal is defined as

“[t]ermination of an action, claim, or charge without further hearing,” Dismissal, Black’s

Law Dictionary (11th ed. 2019), and “to put out of judicial consideration.” Merriam

Webster’s Collegiate Dictionary 360 (11th ed. 2003). Discharge is defined as “[a]ny

method by which a legal duty is extinguished,” Discharge, Black’s Law Dictionary (11th

ed. 2019), and “to release from an obligation,” Merriam Webster’s Collegiate Dictionary

356 (11th ed. 2003).

These definitions not only differ from each other, but also describe distinct legal

situations. Dismissal from a case, in the context of a party dismissal, conjures an image of

a party that settles out of litigation before it proceeds to trial, meaning its involvement in

the case is completely resolved before trial happens. That dismissed party has no remaining

2
These rights also include the right to legal representation, be present at all hearings,
conduct discovery, bring motions before the court, participate in settlement agreements,
subpoena witnesses, make arguments in support of or against the petition, present evidence,
cross-examine witnesses, request review of findings and recommended orders, and request
review of a disposition upon a showing of substantial change or that the disposition was
inappropriate. Minn. R. Gen. Prac. 907.02(a)–(k).

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interest in the litigation moving forward because it has already fully and completely

resolved its portion of the case. Discharge, however, conjures a different image of someone

who was appointed to fulfill a specific role and, upon completing their duties, is released

from a continuing obligation. These differences are magnified when considered in the

context of a GAL’s duties and purpose—to constantly advocate for a child’s best interests

throughout proceedings and act as the child’s voice before the court.

Moreso, the GAL program is overworked and underfunded. Office of the

Legislative Auditor, State of Minnesota, Evaluation Report: Guardian ad Litem Program

41–45 (2018). Even when the GAL program prioritizes assigning GALs to cases where

the appointment of a GAL is mandated by statute, the program has historically “been

unable to meet the court’s demand for [GAL] services.” Id. at 42–43. This inability to

produce GALs when needed “slow[s] down the court process” and causes “children’s

voices [to be] lost.” Id. at 44. Many GAL Program district managers explain that “the

principal reason for delays in assigning [GALs] to cases is that the program does not have

enough staff or resources to handle all of the cases.” Id. at 45. Despite setting an internal

goal that full time employee GALs would not carry more than 30 cases at once, the median

GAL caseload in 2017 was 40 cases, with some GALs carrying as many as 100 cases. Id.

at 46. Carrying caseloads this high resulted in a majority of the full time GALs feeling as

though they did not have sufficient time to complete their duties in each case, leading to

fewer consistent investigations and delayed reporting. Id. at 47–48. High caseloads

preventing thorough investigations can have “serious consequences” and cause “long term

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ramifications” for a child because it means there may be no one presenting an accurate

representation of the child’s best interests to the court. Id. at 48.

Given how strained the GAL program is, district courts choosing to discharge a

GAL’s duties after issuing final orders is a logical way to reduce caseloads and reduce

strain on GALs; this is because discharge releases the GAL from having to continuously

carry out statutory duties after a case has resolved before the district court. Construing this

discharge to be a release from active duties rather than a dismissal from a case as a party

is the most efficient way to ensure children’s best interests are advocated for on appeal

without creating an additional burden on the GAL program in the interim between a district

court’s final order and an appeal.

The practical consequences of the majority’s holding cannot be understated. Not

including a discharged GAL as an adverse party within the meaning of Rule 103.01 means

that the best interests of children—which are the central focus of custody

proceedings—will be left without representation on appeal. Preventing a GAL’s

participation on appeal is paradoxical given our holding that a child’s best interests remain

the guiding principle on appeal of custody cases. See Pikula v. Pikula, 374 N.W.2d 705,

711 (Minn. 1985) (“The guiding principle in all custody cases is the best interest of the

child.”); see also Minn. Stat. § 257C.04, subd. 1 (2022) (containing the best interests

factors that the court must consider (and the GAL advises on) in custody cases, including

but not limited to the child’s preference, interactions between the child and the parties, and

the parties’ capacity to give the child love).

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 The GAL Board website quotes former chief justice of this court, the Honorable

Kathleen Blatz, who stated that “[j]ustice for children cannot be sought, let alone achieved,

if their voice is not represented in the hearings that determine their fate. Guardians ad

Litem are that voice.” What is a GAL?, Minn. Guardian Ad Litem Bd. (last accessed

July 18, 2023), https://mn.gov/guardian-ad-litem/program-information/what-is-a-gal.jsp

[opinion attachment]. The unfortunate consequence of the majority’s opinion is that

children will be completely voiceless in the appellate hearings that will determine their fate

in child custody cases. Moreso, the majority opinion also has the result of minimizing and

deemphasizing the imperative work that GALs do in these cases. Because I believe this

outcome is not supported by the rules, statutes, or caselaw, and because this outcome is

inconsistent with the requirement that a child’s best interests be the central concern in

custody cases, I respectfully dissent.

MOORE, III, Justice (dissenting).

I join in the dissent of Justice McKeig.

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