In re I.B., ___ N.C. App. ___, 822 S.E.2d 472 (2018)

Held: 
Affirmed

See In re L.E.M., ___ N.C. ___ (Aug. 16, 2019) mandating an independent review

  • Facts: Respondent mother’s parental rights were terminated. In compliance with NC Appellate Rule 3.1(d), her attorney filed a no merit brief and notified respondent mother of her right to file a pro so brief. No pro se brief was filed. The court of appeals conducted an independent review of the appellate record.
  • Anders vs. App. Rule 3.1(d): Through the enactment of NC Appellate Rule 3.1(d), the NC Supreme Court created an Anders-like process for juvenile cases. See Anders v. State of California, 386 U.S. 738 (1967). App. Rule 3.1(d) does not include all the procedures of the Anders process. Specifically excluded from Rule 3.1(d) are the requirements under Anders that (1) appellant’s counsel moves to withdraw from the representation and (2) the appellate court conducts an independent review of the record to confirm whether the appeal is frivolous before granting the motion to withdraw and dismissing the appeal. Under Anders, if the appellate court determines the appeal is not frivolous, it either denies the attorney’s motion to withdraw or grants it and appoints a new attorney and orders the attorney to file a brief on the merits. Under App. Rule 3.1(d), counsel does not seek to withdraw. The attorney may continue to advise the client on procedural and substantive matters, which assures the client will be able to file a pro se brief that raises the arguments the client wants the appellate court to review. The appellate court can then adjudicate the appeal of issues raised in the briefs. When interpreting the procedural rule, the appellate court looks to the text, which here is plain and unambiguous. The language of App. Rule 3.1(d) does not require the appellate court to conduct an independent review of the record. Although not required, the court of appeals has discretion to review conduct the review where appropriate.
Category:
Termination of Parental Rights
Stage:
Appeal
Topic:
No Merit Brief
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