In re: C.S.L.B. & S.M.B.

• Court: Court of Appeals of North Carolina
• Decided: September 15, 2015
• Docket: 15-399
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-399

Filed: 15 September 2015

Iredell County, Nos. 12 JT 47, 48, 49

IN THE MATTER OF: X.G.M., C.S.L.B., S.M.B., JR., Minor Children.

Appeal by respondent from order entered 7 November 2014 by Judge H.

Thomas Church in Iredell County District Court. Heard in the Court of Appeals 17

August 2015.

Lauren Vaughan for petitioner-appellee.

Blackburn & Tanner, by James E. Tanner III, for respondent-appellant.

Melanie Stewart Cranford for guardian ad litem-appellee.

GEER, Judge.

Respondent father appeals from an order terminating his parental rights as to

juveniles C.S.L.B. (“Carl,” born March 2009) and S.M.B., Jr. (“Sam,” born February

2008).1 Although the trial court also terminated the parental rights of the juveniles’

mother, she is not a party to this appeal. Because, however, respondent father failed

to file a timely and proper notice of appeal, we are without jurisdiction over the appeal

and must dismiss it.

1The pseudonyms “Carl” and “Sam” are used to protect the identities of the minor children and for ease of reading. IN RE: X.G.M., C.S.L.B., S.M.B., JR.

Opinion of the Court

Facts

On 13 March 2012, the Iredell County Department of Social Services (“DSS”)

obtained nonsecure custody of Carl, Sam, and their newborn brother X.M.2 and filed

petitions alleging that they were neglected juveniles. The children’s mother and

respondent father were both detained in Rowan County Jail. Respondent father had

pending charges of felony obtaining property by false pretenses and multiple drug

offenses. Following a hearing on 17 April 2012, the juveniles were adjudicated

neglected pursuant to an order entered on 27 June 2012, based on respondent

parents’ substance abuse and related criminal activity, as well as issues of domestic

violence and lack of stable housing.

After the juveniles came into DSS’ custody, respondent father refused to

disclose his whereabouts to DSS and continued to use drugs and accrue criminal

charges. The trial court’s initial “Disposition Order” entered 18 July 2012 required

respondent father to enter into and comply with a DSS case plan; cooperate with DSS

and the guardian ad litem; complete substance abuse and domestic violence

assessments and comply with any recommended treatment; submit to random drug

screens and refrain from illegal drug use; not incur any additional criminal charges;

and maintain stable, appropriate housing. DSS was ordered to make reasonable

reunification efforts.

2A paternity test requested by respondent father revealed that X.M. was not his child.

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After a hearing held 4 December 2012, however, the trial court ceased DSS’

reunification efforts and established a permanent plan of adoption for the juveniles

based on findings that included the following:

11. That the Respondent Father . . . is currently residing in Rowan County, but has not disclosed his address. ...

12. That the Respondent Father . . . completed a substance abuse assessment but has not followed up with treatment. He continues to admit he smokes marijuana on a regular basis.

13. That the Respondent Father . . . has numerous pending felony criminal charges.

14. That the Respondent Father . . . is unemployed.

The trial court held a permanency planning hearing on 30 April 2013 and

found that respondent father had been out of contact with DSS since the previous

hearing and had been sentenced to prison for 44 to 56 months on 22 February 2013.

After a hearing held 30 July 2013, the court found that respondent father remained

incarcerated and had “not contacted [DSS] to inquire about the juveniles’ well-being

or to request visitation or other contact with them.”

DSS filed petitions for termination of respondent father’s parental rights on 22

October 2013. After a hearing on 15 and 16 July 2014, the trial court concluded that

grounds existed to terminate respondent father’s parental rights based on (1) neglect,

(2) failure to make reasonable progress to eliminate the conditions that led to the

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juveniles’ removal from the home, and (3) dependency. See N.C. Gen. Stat. § 7B-

1111(a)(1), (2), (6) (2013). The court further determined that termination of

respondent father’s parental rights was in the juveniles’ best interests.

Although counsel for respondent father filed a notice of appeal on 2 December

2014, the notice did not include respondent father’s signature. On 17 December 2014,

DSS filed with the trial court a motion to dismiss respondent father’s appeal on the

basis that it lacked respondent father’s signature. That same day, counsel for

respondent father filed an amended notice of appeal that included respondent father’s

signature. On 4 February 2015, DSS voluntarily dismissed its motion to dismiss.

Discussion

We must first address whether respondent father’s appeal is properly before

this Court. DSS’ motion to dismiss in the trial court was based on a violation of Rule

3.1 of the Rules of Appellate Procedure. Although DSS voluntarily dismissed its

motion to dismiss, “ ‘[s]ubject matter jurisdiction may not be waived, and this Court

has the power and the duty to determine issues of jurisdiction ex mero motu[.]’ ” In

re C.N.C.B., 197 N.C. App. 553, 555, 678 S.E.2d 240, 241 (2009) (quoting In re Will of

Harts, 191 N.C. App. 807, 809, 664 S.E.2d 411, 413 (2008)).

As our Supreme Court has explained, “[c]ompliance with the [R]ules [of

Appellate Procedure] . . . is mandatory.” Dogwood Dev. & Mgmt. Co. v. White Oak

Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 362 (2008). Further, “[a]

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jurisdictional default . . . precludes the appellate court from acting in any manner

other than to dismiss the appeal.” Id. at 197, 657 S.E.2d at 365. “The appellant’s

compliance with the jurisdictional rules governing the taking of an appeal is the

linchpin that connects the appellate division with the trial division and confers upon

the appellate court the authority to act in a particular case.” Id., 657 S.E.2d at 364-

65.

The taking of an appeal from an order terminating parental rights is governed

by Rule 3.1(a) of the Rules of Appellate Procedure:

Any party entitled by law to appeal from a trial court judgment or order rendered in a case involving termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect, appealable pursuant to [N.C. Gen. Stat. §] 7B-1001, may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties in the time and manner set out in Chapter 7B of the General Statutes of North Carolina. Trial counsel or an appellant not represented by counsel shall be responsible for filing and serving the notice of appeal in the time and manner required. If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal.

As respondent father failed to affix his signature to the initial notice of appeal,

respondent father failed to comply with Rule 3.1(a). See In re I.T.P-L., 194 N.C. App.

453, 460, 670 S.E.2d 282, 285 (2008) (noting notice of appeal by respondent from order

terminating parental rights was “incomplete” when it lacked respondent’s signature).

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We note that this Court recognized in Stephenson v. Bartlett, 177 N.C. App.

239, 241, 628 S.E.2d 442, 443 (2006) (quoting Von Ramm v. Von Ramm, 99 N.C. App.

153, 156, 392 S.E.2d 422, 424 (1990)), that “ ‘[w]e may liberally construe a notice of

appeal . . . to determine whether it provides jurisdiction.’ ” Thus, “ ‘if a party

technically fails to comply with procedural requirements in filing papers with the

court, the court may determine that the party complied with the rule [governing the

manner for taking appeal] if the party accomplishes the “functional equivalent” of the

requirement.’ ” Id., 628 S.E.2d at 443-44 (quoting Von Ramm, 99 N.C. App. at 157,

392 S.E.2d at 424). The question then is whether, despite respondent father’s failure

to sign the initial notice of appeal, this Court may liberally construe that purported

notice as the functional equivalent of a notice of appeal, or whether respondent

father’s default was jurisdictional.

In its motion to dismiss, DSS argues that respondent father’s failure to sign

the initial notice of appeal was a jurisdictional default, citing In re L.B., 187 N.C.

App. 326, 653 S.E.2d 240 (2007), aff’d per curiam, 362 N.C. 507, 666 S.E.2d 751 (2008)

in support of its position. In In re L.B., the respondents appealed a decision

terminating their parental rights, and their trial counsel filed timely notices of appeal

for them. Id. at 328, 653 S.E.2d at 242. The respondents’ trial counsel, as well as the

respondents’ guardians ad litem that the trial court had appointed for them, signed

the notices of appeal, although the respondents did not. Id. The petitioner filed a

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motion to dismiss, arguing that the respondents had violated Rule 3A(a) of the Rules

of Appellate Procedure, which at the time governed the taking of appeals from orders

terminating parental rights and required that “ ‘both the trial counsel and appellant

must sign the notice of appeal[,]’ ” despite the signatures of the guardians ad litem

on the notices of appeal. 187 N.C. App. at 328, 653 S.E.2d at 242 (quoting N.C.R.

App. P. 3A(a)). This Court held that the respondents’ failure to sign their notices of

appeal violated Rule 3A, and, moreover, the signature of the guardian ad litem “on

the notice of appeal is not sufficient to grant this Court jurisdiction[.]” Id. at 328,

332, 653 S.E.2d at 242, 244. This Court dismissed the appeal, id. at 332, 653 S.E.2d

at 244, and the Supreme Court affirmed the dismissal without discussion, 362 N.C.

at 507, 666 S.E.2d at 751.

In re L.B. controls how we construe respondent father’s 2 December 2014 notice

of appeal. Here, as in that case, the rule governing taking appeals from orders

terminating parental rights, Rule 3.1(a), provides that “both the trial counsel and

appellant must sign the notice of appeal[.]” The failure of respondent father to sign

the notice of appeal is, pursuant to In re L.B., a jurisdictional default. See also In re

I.T.P-L., 194 N.C. App. at 459, 670 S.E.2d at 285 (dismissing timely but improper

appeal that violated requirement that respondent parent sign notice of appeal).

Given that respondent subsequently filed an amended notice of appeal on 17

December 2014 that complied with the signature requirement, the question remains

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whether the second notice of appeal was timely. The Supreme Court has “final

authority” over “question[s] of appellate procedure,” Duke Power Co. v. Winebarger,

300 N.C. 57, 69, 265 S.E.2d 227, 234 (1980), and through Rule 3.1(a), the Supreme

Court has expressly recognized the authority of the legislature to govern the manner

of taking appeal from orders terminating parental rights through Chapter 7B of the

General Statutes, including the time for taking appeal.

Under N.C. Gen. Stat. § 7B-1001(b) (2013), respondent had “30 days after entry

and service of the order” terminating his parental rights to file a timely appeal. See

also In re E.M., 202 N.C. App. 761, 763, 692 S.E.2d 629, 630 (2010) (“[F]or notice of

appeal in this case [appealing from a termination of parental rights order] to have

been timely, it must have been filed and served within 30 days after service of the

order[.]”). As the record indicates that respondent father was served the order on 14

November 2014, respondent father had until the end of the day on 15 December 2014

to file an amended notice of appeal. See N.C.R. App. P. 27(a). Respondent father’s

amended notice of appeal filed 17 December 2014 was, therefore, untimely. “As

proper and timely notice of appeal is jurisdictional, we must dismiss [respondent’s]

appeal.” In re I.T.P-L., 194 N.C. App. at 459, 670 S.E.2d at 285.

DISMISSED.

Judges STROUD and TYSON concur.

Report per Rule 30(e).

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