In re. R.A.F., 284 N.C. App. 637 (2022)

Vacated and Remanded
There is a dissent
by Tyson, J.
  • THIS DECISION WAS REVERSED BY THE SUPREME COURT; see ___ N.C. ___ (April 28, 2023).
  • Facts: Mother appeals a TPR through a written notice addressed to the North Carolina Supreme Court. There is no notice of appeal to the NC Court of Appeals.
  • Appellate Procedure Rule 3(d) governs notices of appeal and requires that the notice designate the court to which the appeal is taken. Failure to follow Rule 3 requires a dismissal of the appeal. However, “[m]istakes by appellants in following all the subparts of Appellate Procedure Rule 3(d) have not always been fatal to an appeal.” 284 N.C. App. at 642 (citations omitted). By filing her record of appeal and brief with the court of appeals, it is reasonably inferred that mother sought relief from the court of appeals. There was no prejudice to the other party as they could also infer the appeal was meant to be heard by the court of appeals and filed their brief with the court of appeals. Dismissal is not warranted. Further, Appellate Rule 21(a)(1) allows the court of appeals to treat the appeal as a petition for writ of certiorari, which in its discretion was granted.
  • Dissent: The failure to follow Rule 3(d) is jurisdictional and warrants dismissal. There is no petition for writ of certiorari pending before the court and the defective notice of appeal and brief do not meet the requirements Rule 21(c) requires for a petition for writ of certiorari. To correct the deficiencies with the purported petition for writ of certiorari, the court would have to invoke Appellate Rule 2, which it did not do. This court lacks jurisdiction to hear the appeal.
Termination of Parental Rights
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