In re A.N.B., ___ N.C. App. ___ (August 15, 2023)

Held: 
Affirmed
  • Facts: This matter involves a private TPR initiated by mother where father’s parental rights were terminated on the grounds of willful abandonment. Father appealed the adjudication based on insufficient findings. Father failed to serve notice of appeal on the child’s GAL. Father filed a petition for writ of certiorari (PWC) as an alternative ground for review in the event the court of appeals found the potential lack of service to the child’s GAL a jurisdictional issue. This summary discusses the PWC and notice of appeal.
  • Rule of Appellate Procedure 3.1 requires a party seeking appeal under G.S. 7B-1001(a) to file the notice of appeal with the clerk of superior court pursuant to G.S. 7B-1001 and serve copies of the notice of appeal on all other parties. There is no case law addressing whether this failure is a jurisdictional defect under Appellate Rule 3.1.
  • Relying on previous opinions interpreting Appellate Procedure Rules 3 (civil) and 4 (criminal), a party’s failure to serve their notice of appeal on all parties is a non-jurisdictional defect that must be “assessed for whether the party’s noncompliance is a ‘substantial or gross violation of appellate rules.’ ” Sl. Op. at 16 (citation omitted).
  • Father acknowledged in the PWC that notice of appeal was not served on the child’s GAL; however, the court found “there is no indication in the record . . . that any party would be prejudiced” if the court were to hear father’s appeal. Sl. Op. at 17. The GAL appeared to have actual notice of appeal, was present at Father’s hearing on his Rule 60 motion after father filed notice of appeal, and did not raise any issue with the court regarding service in an appellate brief, response to the PWC, or motion to dismiss the appeal.
  • PWC denied as “superfluous” upon the court concluding “that any error in service made by [Father] is non-jurisdictional and is not a substantial or gross violation of the appellate rules.” Sl. Op. at 17 (citation omitted).
Category:
Termination of Parental Rights
Stage:
Appeal
Topic:
Writ of Cert.
Tags:
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petition for writ of certiorari
Notice of appeal