In re L.E.M., 261 N.C. App. 645 (2018), vacated, 372 N.C. 396 (2019)

There is a dissent
There is also a concurrence in result only.
  • Facts: The trial court granted the petition to terminate respondent father’s parental rights, which was initiated by DSS who had custody of the child pursuant to a neglect and dependency action. The TPR was based on the grounds of neglect and failure to make reasonable progress to correct the conditions that led to the child’s removal. G.S. 7B-1111(a)(1)‒(2). Respondent father timely appealed. Respondent father’s counsel filed a no merit brief and requested the appellate court conduct an independent review of the case pursuant to Appellate Rule 3.1(d). Counsel also notified respondent father of his right to file his own arguments directly with the court of appeals, but he did not do so.
  • Opinion: By appellant’s failure to file written arguments (a pro se brief) with the appellate court, “no issues have been argued or preserved for review in accordance with our Rules of Appellate Procedure.” Sl. Op. at 6 quoting In re L.V., ___ N.C. App. ___ (July 3, 2018). Being bound by precedent, respondent’s appeal must be dismissed.
  • Concurrence: Although the court is bound by In re L.V., “I believe [it] erroneously altered the jurisprudence of cases arising under [App.] Rule 3.1…. [and] significantly impacts the constitutional rights of North Carolinians… whose fundamental right to a parental relationship with his child should only be terminated as contemplated by law.” Sl. Op. concurrence at 1. No merit briefs arise from Anders v. California, 386 U.S. 738 (1967), which applies to criminal cases. Although the court of appeals held that Anders procedures involving a full examination of the proceeding by the appellate court to determine whether the case is wholly frivolous do not apply to TPR cases (In re N.B., 183 N.C. App. 114 (2007)), the N.C. Supreme Court then adopted App. Rule 3.1(d). The rule allows for no merit briefs and an Anders-like procedure in appeals of juvenile orders, including a TPR. See G.S. 7B-1001. Although App. Rule 3.1(d) authorizes the parent to file a pro se brief, it does not appear to require a parent to file such a brief for appellate review. Rather than address previous case law that consistently conducted Anders-type reviews under Rule 3.1(d), the holding in In re L.V. was supported by dicta, which is not controlling authority, in a concurrence, which is not binding on the court, and “I believe In re L.V. is an anomaly in our case law that must be corrected....” Sl. Op. concurrence at 5.
  • Dissent: Adopting the analysis of the concurrence, the dissent disagrees with the conclusion that the court is bound by In re L.V. because it is contrary to settled law established in prior opinions that continue to be controlling. App. Rule 3.1 requires appellate counsel to file an appellate brief that includes issues that might support the appeal and state why those issues are without merit or would not change the result, the purpose of which seems to be to allow the counsel to request a review by the appellate court for potential error that counsel has not identified.
Termination of Parental Rights
No Merit Brief
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