In re L.E.M., 372 N.C. 396 (2019)

  • Procedural history: Respondent father appealed an order terminating his parental rights. Pursuant to Rule 3.1(d) (now Rule 3.1(e), which is substantially similar), Respondent’s attorney filed a no-merit brief and raised 3 issues for review. Respondent did not file a pro se brief. The court of appeals dismissed the appeal based on a previously published opinion, In re L.V., 814 S.E.2d 928 (2018), that held the court lacked authority to consider the appeal because there were no issues raised for review since the respondent had not filed a pro se brief. There was a dissent and a concurrence in result only that both addressed the erroneous holding of In re L.V. An appeal by right was made to the NC Supreme Court.
  • Holding: Appellate “Rule 3.1 mandates an independent review on appeal of the issues contained in a no-merit brief….” Sl. Op. at 1. In re L.V. is overruled.
  • The origin of the no merit brief stems from the U.S. Supreme Court rule that allows for an Anders review in criminal cases. After the court of appeals previously held such a review does not apply to termination of parental rights cases, the N.C. Supreme Court adopted Appellate Rule 3.1(d), which authorizes a no-merit brief for appeals of TPR and abuse, neglect, or dependency orders. In interpreting Rule 3.1(d), the court is “mindful of the fundamental interests implicated in a proceeding involving a termination of parental rights. The United States Court has recognized that ‘[w]hen the State initiates a parental rights termination proceeding…. [a] parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is …. a commanding one.’ “ Sl. Op. at 8. (citations omitted). Rule 3.1 suggests that briefs will be considered and an independent review will be conducted without stating or implying that the review is contingent on whether a pro se brief is actually filed.
  • Rather than remand for an independent review, in the furtherance of the goals of the Juvenile Code to expeditiously resolve cases and obtain permanency for the juvenile, the supreme court conducted its own review of the issues raised in the no-merit brief. After considering those issues and the record, the supreme court affirmed the trial court’s order as being supported by competent evidence and based on proper legal grounds.
Termination of Parental Rights
No Merit Brief
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