In re L.E.M.

IN THE SUPREME COURT OF NORTH CAROLINA
No. 383A18
Filed 16 August 2019
IN THE MATTER OF L.E.M.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 820 S.E.2d 577 (N.C. Ct. App. 2018), dismissing an appeal from
a termination of parental rights order entered on 5 January 2018 by Judge John K.
Greenlee in District Court, Gaston County. Heard in the Supreme Court on 28 May
2019 in session in the State Capitol Building in the City of Raleigh.
Elizabeth Myrick Boone for petitioner-appellee Gaston County Department of
Social Services.
Nelson Mullins Riley & Scarborough LLP, by Reed J. Hollander, for appellee
Guardian ad Litem.
Wendy C. Sotolongo, Parent Defender, by Annick Lenoir-Peek, Deputy Parent
Defender, for respondent-appellant father.
DAVIS, Justice.
In this case we consider whether Rule 3.1 of the North Carolina Rules of
Appellate Procedure requires our appellate courts to independently review the issues
presented in a “no-merit” brief filed in an appeal from an order terminating a
respondent’s parental rights. Based on our determination that Rule 3.1 mandates an
independent review on appeal of the issues contained in a no-merit brief, we vacate
the decision of the Court of Appeals.
Factual and Procedural Background
IN RE L.E.M.
Opinion of the Court
In September 2015, the Gaston County Department of Social Services (DSS)
became involved with respondent-father (respondent) and his family in order to assist
with the medical care of one of respondent’s two children. As of 4 January 2016, both
respondent and the mother of the children were incarcerated, and the children were
placed in foster care. An adjudication hearing was held on 23 February 2016 in
District Court, Gaston County before the Honorable John K. Greenlee. Following the
hearing, both of the children were adjudicated neglected and dependent. The court
awarded DSS continued custody of the juveniles and directed respondent to comply
with the terms of his DSS case plan as a condition of regaining custody. Respondent
was able to satisfy some of the conditions of the case plan, but on 1 June 2016, he was
arrested and subsequently extradited to West Virginia.
On 11 April 2017, the trial court entered an order ceasing reunification efforts
with respondent. The following day, DSS filed a petition to terminate the parental
rights of respondent as to his son, L.E.M. The petition alleged that respondent’s
parental rights should be terminated based upon three separate grounds: (1) neglect,
(2) failure to make reasonable progress to correct the conditions that led to the
removal of the juvenile, and (3) dependency. See N.C.G.S. § 7B-1111(a)(1), (2), (6)
(2017). A termination of parental rights hearing was held on 13 November 2017, and
on 5 January 2018, the trial court entered an order terminating respondent’s parental
rights on the basis of neglect and failure to make reasonable progress. Respondent
appealed the trial court’s order to the Court of Appeals.
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IN RE L.E.M.
Opinion of the Court
At the Court of Appeals, respondent’s attorney filed a no-merit brief pursuant
to North Carolina Rule of Appellate Procedure 3.1(d). In this brief, counsel conceded
that, based upon her review of the record, she did not believe any meritorious issues
existed that could support respondent’s appeal. Nevertheless, the brief identified
three issues for appellate review.
Despite acknowledging that the no-merit brief was in compliance with Rule
3.1(d), the Court of Appeals dismissed respondent’s appeal. Citing the Court of
Appeals’ decision in In re L.V., 814 S.E.2d 928 (N.C. Ct. App. 2018), the majority held
that it lacked the authority to consider respondent’s appeal because “[n]o issues have
been argued or preserved for review in accordance with our Rules of Appellate
Procedure.” In re L.E.M., 820 S.E.2d 577, 579 (N.C. Ct. App. 2018) (alteration in
original) (quoting In re L.V., 814 S.E.2d at 929).
In an opinion concurring in the result only, Judge Arrowood agreed with the
majority that the panel was required to dismiss the appeal based on In re L.V. but
expressed his belief that In re L.V. “erroneously altered the jurisprudence of cases
arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure.” Id.
(Arrowood, J., concurring). Judge Arrowood observed that the Court of Appeals “has
consistently interpreted Rule 3.1(d) to require our Court to conduct an independent
review in termination of parental rights cases in which counsel filed a no-merit brief
and the respondent-parent did not file a pro se brief.” Id. at 580.
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IN RE L.E.M.
Opinion of the Court
Chief Judge McGee issued a dissenting opinion, stating her belief that the
Court of Appeals was not bound by In re L.V. because that opinion is “contrary to
settled law from prior opinions of this Court.” Id. at 581 (McGee, C.J., dissenting).
Respondent appealed to this Court as of right based upon the dissent.
Analysis
In this appeal respondent contends that the Court of Appeals erred in
dismissing his appeal instead of conducting an independent review of the issues
identified in his counsel’s no-merit brief. In analyzing respondent’s argument, it is
helpful to first examine the origin of no-merit briefs in North Carolina.
The concept of the no-merit brief originated in the United States Supreme
Court’s decision in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967). In
Anders, an indigent defendant was convicted of felony possession of marijuana and
sought to appeal. After determining that there was no legitimate basis upon which to
appeal the conviction, the defendant’s attorney wrote a letter to the appellate court
stating that his review of the record did not reveal the existence of any meritorious
appellate issues and seeking leave to withdraw from the case. Id. at 739–40, 742, 18
L. Ed. 2d at 495, 497.
Based on its desire to ensure that a criminal defendant’s right to counsel was
appropriately safeguarded while simultaneously seeking to prevent the filing of
frivolous appeals, the Supreme Court adopted the following rule:
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IN RE L.E.M.
Opinion of the Court
[I]f counsel finds his case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission
to withdraw. That request must, however, be accompanied by a brief
referring to anything in the record that might arguably support the
appeal. A copy of counsel’s brief should be furnished the indigent and
time allowed him to raise any points that he chooses; the court—not
counsel—then proceeds, after a full examination of all the proceedings,
to decide whether the case is wholly frivolous. If it so finds it may grant
counsel’s request to withdraw and dismiss the appeal insofar as federal
requirements are concerned, or proceed to a decision on the merits, if
state law so requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to
decision, afford the indigent the assistance of counsel to argue the
appeal.
Id. at 744, 18 L. Ed. 2d at 498.
This Court first expressly applied Anders in reviewing a criminal defendant’s
no-merit brief in State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). The Court of
Appeals in 2000 declined to apply Anders-like procedures in appeals from orders
terminating parental rights. See In re Harrison, 136 N.C. App. 831, 833, 526 S.E.2d
502, 503 (2000). Seven years later, the Court of Appeals once again held that, based
on its previous holding in In re Harrison, it lacked authority to extend Anders
protections to the filing of no-merit briefs in termination of parental rights cases. In
re N.B., 183 N.C. App. 114, 117, 644 S.E.2d 22, 24 (2007). In its opinion, however, the
Court of Appeals urged the “Supreme Court or the General Assembly to reconsider
this issue.” Id. at 117, 644 S.E.2d at 24. In 2009, Rule 3.1(d) was adopted, which
stated as follows:
No-Merit Briefs. In an appeal taken pursuant to N.C.G.S. § 7B-1001,
if, after a conscientious and thorough review of the record on appeal,
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IN RE L.E.M.
Opinion of the Court
appellate counsel concludes that the record contains no issue of merit on
which to base an argument for relief and that the appeal would be
frivolous, counsel may file a no-merit brief. In the brief, counsel shall
identify any issues in the record on appeal that might arguably support
the appeal and shall state why those issues lack merit or would not alter
the ultimate result. Counsel shall provide the appellant with a copy of
the no-merit brief, the transcript, the record on appeal, and any Rule
11(c) supplement or exhibits that have been filed with the appellate
court. Counsel shall also advise the appellant in writing that the
appellant has the option of filing a pro se brief within thirty days of the
date of the filing of the no-merit brief and shall attach to the brief
evidence of compliance with this subsection.
N.C. R. App. P. 3.1(d) (2018).1
Between the adoption of Rule 3.1(d) in 2009 and the Court of Appeals’ decision
in In re L.V., the Court of Appeals issued numerous unpublished opinions and three
published decisions reviewing no-merit briefs in termination of parental rights cases
and in other cases arising under our Juvenile Code involving the abuse, neglect, or
dependency of children. See, e.g., In re A.A.S., 812 S.E.2d 875, 879 (N.C. Ct. App.
2018); In re M.J.S.M., 810 S.E.2d 370, 374–75 (N.C. Ct. App. 2018); In re M.S., 247
N.C. App. 89, 94, 785 S.E.2d 590, 593–94 (2016).
In In re L.V., however, the Court of Appeals—for the first time since the
adoption of Rule 3.1(d)—refused to consider the issues raised in a properly filed no-
1 The Rules of Appellate Procedure were amended in December 2018. As of 1 January
2019, the provision authorizing no-merit briefs previously contained in Rule 3.1(d) is now
codified in subsection (e). While the language addressing no-merit briefs as set out in Rule
3.1(e) differs in certain respects from that formerly contained in Rule 3.1(d), the two
provisions are substantially similar.
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IN RE L.E.M.
Opinion of the Court
merit brief on appeal from an order terminating parental rights. In its analysis the
Court of Appeals stated the following:
Respondent appeals from orders terminating her parental rights
to the minor children L.V. and A.V. On appeal, Respondent’s appellate
counsel filed a no-merit brief pursuant to Rule 3.1(d) stating that, after
a conscientious and thorough review of the record on appeal, he has
concluded that the record contains no issue of merit on which to base an
argument for relief. N.C. R. App. P. 3.1(d). Respondent’s counsel
complied with all requirements of Rule 3.1(d), and Respondent did not
exercise her right under Rule 3.1(d) to file a pro se brief. No issues have
been argued or preserved for review in accordance with our Rules of
Appellate Procedure.
In re L.V., 814 S.E.2d at 928–29 (footnotes omitted). The Court of Appeals then
dismissed the respondent’s appeal. Id. at 929.
Since In re L.V. was decided, panels of the Court of Appeals have differed in
their approach to no-merit briefs filed under Rule 3.1(d). See, e.g., In re I.B., 822
S.E.2d 472 (N.C. Ct. App. 2018) (finding no requirement for an independent review
but exercising discretion to review no-merit brief and affirming trial court’s
termination of parental rights order); In re I.P., 820 S.E.2d 586 (N.C. Ct. App. 2018)
(dismissing appeal filed pursuant to Rule 3.1(d)); In re A.S., 817 S.E.2d 798, 2018 WL
4201062 (N.C. Ct. App. 2018) (per curiam) (unpublished) (summarily affirming trial
court’s adjudication of neglect order on basis that all appellate issues had been
abandoned); In re M.V., 817 S.E.2d 507, 2018 WL 3734805 (N.C. Ct. App. 2018)
(unpublished) (conducting an independent review of issues raised in no-merit brief
and affirming trial court’s termination of parental rights order).
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IN RE L.E.M.
Opinion of the Court
In determining the proper interpretation of Rule 3.1(d), we must be mindful of
the fundamental interests implicated in a proceeding involving the termination of
parental rights. The United States Supreme 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.’ ” Santosky v. Kramer, 455 U.S. 745, 759, 71 L. Ed. 2d 599, 610
(1982) (quoting Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27, 68 L. Ed. 2d 640, 650
(1981)); see Atkinson v. Downing, 175 N.C. 244, 246, 95 S.E. 487, 488 (1918) (“It is
fully recognized in this State that parents have prima facie the right of the custody
and control of their . . . children, a natural and substantive right not to be lightly
denied or interfered with except when the good of the child clearly requires it.”).
We conclude that the text of Rule 3.1(d) plainly contemplates appellate review
of the issues contained in a no-merit brief. Rule 3.1(d) expressly authorizes counsel
to file a no-merit brief identifying issues that could potentially support an appeal and
requires an explanation in such briefs as to why counsel believes the identified issues
do not require reversal of the trial court’s order. Rule 3.1(d) further mandates that
counsel provide the parent copies of the no-merit brief along with the record on appeal
and the transcript of the proceedings in the trial court. Counsel are further directed
to inform the parent in writing that he or she is permitted to submit a pro se brief to
the appellate court within thirty days of the filing of the no-merit brief. See N.C. R.
App. P. 3.1(d).
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IN RE L.E.M.
Opinion of the Court
These specific requirements governing the filing of no-merit briefs clearly
suggest that such briefs will, in fact, be considered by the appellate court and that an
independent review will be conducted of the issues identified therein. In our view, it
would be inconsistent with both the language and purpose of Rule 3.1(d) to construe
this provision as either foreclosing independent appellate review of the issues set out
in the no-merit brief entirely or making appellate review of those issues merely
discretionary. Our interpretation of the Rule is further supported by the fact that
while it requires that parents be advised by counsel of their opportunity to file a pro
se brief, Rule 3.1(d) neither states nor implies that appellate review of the issues set
out in the no-merit brief hinges on whether a pro se brief is actually filed by a parent.
Accordingly, we overrule the Court of Appeals’ decision in In re L.V.
Our holding today furthers the significant interest of ensuring that orders
depriving parents of their fundamental right to parenthood are given meaningful
appellate review. We observe that our General Assembly has expressly recognized
the importance of protecting the interests of parents in termination proceedings by
conferring upon them a right to appointed counsel in such cases. See N.C.G.S. § 7B-
1101.1 (2017).
Having determined that the Court of Appeals erred in failing to conduct an
independent review of the issues set out in the no-merit brief filed by respondent’s
counsel, we would normally remand this case to the Court of Appeals with
instructions for it to conduct such a review. But in furtherance of the goals of
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IN RE L.E.M.
Opinion of the Court
expeditiously resolving cases arising under our Juvenile Code and obtaining
permanency for the juvenile in this case, we instead elect to conduct our own review
of the issues raised in the no-merit brief.
In her twenty-five page brief, respondent’s attorney identified three issues that
could arguably support an appeal but stated why she believed each of those issues
lacked merit. Based upon our careful review of the issues identified in the no-merit
brief in light of our consideration of the entire record, we are satisfied that the trial
court’s 5 January 2018 order was supported by competent evidence and based on
proper legal grounds. Accordingly, we affirm the trial court’s order terminating
respondent’s parental rights.
Conclusion
For the reasons set out above, we hereby affirm the trial court’s order
terminating respondent’s parental rights. The opinion of the Court of Appeals
dismissing respondent’s appeal is vacated.
VACATED.
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