In re L.E.M.

• Decision Date: 16 August 2019
• Docket Number: No. 383A18,383A18
• Citation: 831 S.E.2d 341,372 N.C. 396
• Parties: In the MATTER OF L.E.M.
• Court: North Carolina Supreme Court

372 N.C. 396
831 S.E.2d 341

In the MATTER OF L.E.M.

No. 383A18

Supreme Court of North Carolina.

Filed August 16, 2019

Elizabeth Myrick Boone for petitioner-appellee Gaston County Department of Social Services.

Nelson Mullins Riley & Scarborough LLP, Raleigh, by Reed J. Hollander, for appellee Guardian ad Litem.

Wendy C. Sotolongo, Parent Defender, by Annick Lenoir-Peek, Deputy Parent Defender, for respondent-appellant father.

DAVIS, Justice.

372 N.C. 397

In this case we consider whether Rule 3.1 of the North Carolina Rules of Appellate Procedure requires our appellate courts to independently review the issues presented in a "no-merit" brief filed in an appeal from an order terminating a respondent's parental rights. Based on our determination that Rule 3.1 mandates an independent review on appeal of the issues contained in a no-merit brief, we vacate the decision of the Court of Appeals.

Factual and Procedural Background

In September 2015, the Gaston County Department of Social Services (DSS) became involved with respondent-father (respondent) and his family in order to assist with the medical care of one of respondent's two children. As of 4 January 2016, both respondent and the mother of the children were incarcerated, and the children were placed in foster care. An adjudication hearing was held on 23 February 2016 in District Court, Gaston County before the Honorable John K. Greenlee. Following the hearing, both of the children were adjudicated neglected and dependent. The court awarded DSS continued custody of the juveniles and directed respondent to comply with the terms of his DSS case plan as a condition of regaining custody. Respondent was able to satisfy some of the conditions of the case plan, but on 1 June 2016, he was arrested and subsequently extradited to West Virginia.

On 11 April 2017, the trial court entered an order ceasing reunification efforts with respondent. The following day, DSS filed a petition to terminate the parental rights of respondent as to his son, L.E.M. The petition alleged that respondent's parental rights should be terminated based upon three separate grounds: (1) neglect, (2) failure to make

372 N.C. 398

reasonable progress to correct the conditions that led to the removal of the juvenile, and (3) dependency. See N.C.G.S. § 7B-1111(a)(1), (2), (6) (2017). A termination of parental rights hearing was held on 13 November 2017, and on 5 January 2018, the trial court entered an order terminating respondent's parental rights on the basis of neglect and failure to make reasonable progress. Respondent appealed the trial court's order to the Court of Appeals.

At the Court of Appeals, respondent's attorney filed a no-merit brief pursuant to North Carolina Rule of Appellate Procedure 3.1(d). In this brief, counsel conceded that, based upon her review of the record, she did not believe any meritorious issues existed that could support respondent's appeal. Nevertheless, the brief identified three issues for appellate review.

Despite acknowledging that the no-merit brief was in compliance with Rule 3.1(d), the Court of Appeals dismissed respondent's appeal. Citing the Court of Appeals’ decision in

831 S.E.2d 343

In re L.V. , ––– N.C.App. ––––, 814 S.E.2d 928 (2018), the majority held that it lacked the authority to consider respondent's appeal because "[n]o issues have been argued or preserved for review in accordance with our Rules of Appellate Procedure." In re L.E.M. , ––– N.C.App. ––––, 820 S.E.2d 577, 579 (2018) (alteration in original) (quoting In re L.V. , 814 S.E.2d at 929 ).

In an opinion concurring in the result only, Judge Arrowood agreed with the majority that the panel was required to dismiss the appeal based on In re L.V. but expressed his belief that In re L.V. "erroneously altered the jurisprudence of cases arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure." Id. (Arrowood, J., concurring). Judge Arrowood observed that the Court of Appeals "has consistently interpreted Rule 3.1(d) to require our Court to conduct an independent review in termination of parental rights cases in which counsel filed a no-merit brief and the respondent-parent did not file a pro se brief." Id . at 580.

Chief Judge McGee issued a dissenting opinion, stating her belief that the Court of Appeals was not bound by In re L.V. because that opinion is "contrary to settled law from prior opinions of this Court." Id. at 581 (McGee, C.J., dissenting). Respondent appealed to this Court as of right based upon the dissent.

Analysis

In this appeal respondent contends that the Court of Appeals erred in dismissing his appeal instead of conducting an independent review of

372 N.C. 399

the issues identified in his counsel's no-merit brief. In analyzing respondent's argument, it is helpful to first examine the origin of no-merit briefs in North Carolina.

The concept of the no-merit brief originated in the United States Supreme Court's decision in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967). In Anders , an indigent defendant was convicted of felony possession of marijuana and sought to appeal. After determining that there was no legitimate basis upon which to appeal the conviction, the defendant's attorney wrote a letter to the appellate court stating that his review of the record did not reveal the existence of any meritorious appellate issues and seeking leave to withdraw from the case. Id. at 739–40, 87 S.Ct. at 1397–98, 742, 18 L. Ed. 2d at 495, 497.

Based on its desire to ensure that a criminal defendant's right to counsel was appropriately safeguarded while simultaneously seeking to prevent the filing of frivolous appeals, the Supreme Court adopted the following rule:

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might

...