In re: C.S.L.B. & S.M.B.

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-399
Filed: 15 September 2015
Iredell County, Nos. 12 JT 47, 48, 49
IN THE MATTER OF: X.G.M., C.S.L.B., S.M.B., JR., Minor Children.
Appeal by respondent from order entered 7 November 2014 by Judge H.
Thomas Church in Iredell County District Court. Heard in the Court of Appeals 17
August 2015.
Lauren Vaughan for petitioner-appellee.
Blackburn & Tanner, by James E. Tanner III, for respondent-appellant.
Melanie Stewart Cranford for guardian ad litem-appellee.
GEER, Judge.
Respondent father appeals from an order terminating his parental rights as to
juveniles C.S.L.B. (“Carl,” born March 2009) and S.M.B., Jr. (“Sam,” born February
2008).1 Although the trial court also terminated the parental rights of the juveniles’
mother, she is not a party to this appeal. Because, however, respondent father failed
to file a timely and proper notice of appeal, we are without jurisdiction over the appeal
and must dismiss it.
1The pseudonyms “Carl” and “Sam” are used to protect the identities of the minor children and
for ease of reading.
IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
Facts
On 13 March 2012, the Iredell County Department of Social Services (“DSS”)
obtained nonsecure custody of Carl, Sam, and their newborn brother X.M.2 and filed
petitions alleging that they were neglected juveniles. The children’s mother and
respondent father were both detained in Rowan County Jail. Respondent father had
pending charges of felony obtaining property by false pretenses and multiple drug
offenses. Following a hearing on 17 April 2012, the juveniles were adjudicated
neglected pursuant to an order entered on 27 June 2012, based on respondent
parents’ substance abuse and related criminal activity, as well as issues of domestic
violence and lack of stable housing.
After the juveniles came into DSS’ custody, respondent father refused to
disclose his whereabouts to DSS and continued to use drugs and accrue criminal
charges. The trial court’s initial “Disposition Order” entered 18 July 2012 required
respondent father to enter into and comply with a DSS case plan; cooperate with DSS
and the guardian ad litem; complete substance abuse and domestic violence
assessments and comply with any recommended treatment; submit to random drug
screens and refrain from illegal drug use; not incur any additional criminal charges;
and maintain stable, appropriate housing. DSS was ordered to make reasonable
reunification efforts.
2A paternity test requested by respondent father revealed that X.M. was not his child.
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IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
After a hearing held 4 December 2012, however, the trial court ceased DSS’
reunification efforts and established a permanent plan of adoption for the juveniles
based on findings that included the following:
11. That the Respondent Father . . . is currently residing
in Rowan County, but has not disclosed his address.
...
12. That the Respondent Father . . . completed a
substance abuse assessment but has not followed up
with treatment. He continues to admit he smokes
marijuana on a regular basis.
13. That the Respondent Father . . . has numerous
pending felony criminal charges.
14. That the Respondent Father . . . is unemployed.
The trial court held a permanency planning hearing on 30 April 2013 and
found that respondent father had been out of contact with DSS since the previous
hearing and had been sentenced to prison for 44 to 56 months on 22 February 2013.
After a hearing held 30 July 2013, the court found that respondent father remained
incarcerated and had “not contacted [DSS] to inquire about the juveniles’ well-being
or to request visitation or other contact with them.”
DSS filed petitions for termination of respondent father’s parental rights on 22
October 2013. After a hearing on 15 and 16 July 2014, the trial court concluded that
grounds existed to terminate respondent father’s parental rights based on (1) neglect,
(2) failure to make reasonable progress to eliminate the conditions that led to the
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IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
juveniles’ removal from the home, and (3) dependency. See N.C. Gen. Stat. § 7B-
1111(a)(1), (2), (6) (2013). The court further determined that termination of
respondent father’s parental rights was in the juveniles’ best interests.
Although counsel for respondent father filed a notice of appeal on 2 December
2014, the notice did not include respondent father’s signature. On 17 December 2014,
DSS filed with the trial court a motion to dismiss respondent father’s appeal on the
basis that it lacked respondent father’s signature. That same day, counsel for
respondent father filed an amended notice of appeal that included respondent father’s
signature. On 4 February 2015, DSS voluntarily dismissed its motion to dismiss.
Discussion
We must first address whether respondent father’s appeal is properly before
this Court. DSS’ motion to dismiss in the trial court was based on a violation of Rule
3.1 of the Rules of Appellate Procedure. Although DSS voluntarily dismissed its
motion to dismiss, “ ‘[s]ubject matter jurisdiction may not be waived, and this Court
has the power and the duty to determine issues of jurisdiction ex mero motu[.]’ ” In
re C.N.C.B., 197 N.C. App. 553, 555, 678 S.E.2d 240, 241 (2009) (quoting In re Will of
Harts, 191 N.C. App. 807, 809, 664 S.E.2d 411, 413 (2008)).
As our Supreme Court has explained, “[c]ompliance with the [R]ules [of
Appellate Procedure] . . . is mandatory.” Dogwood Dev. & Mgmt. Co. v. White Oak
Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 362 (2008). Further, “[a]
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IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
jurisdictional default . . . precludes the appellate court from acting in any manner
other than to dismiss the appeal.” Id. at 197, 657 S.E.2d at 365. “The appellant’s
compliance with the jurisdictional rules governing the taking of an appeal is the
linchpin that connects the appellate division with the trial division and confers upon
the appellate court the authority to act in a particular case.” Id., 657 S.E.2d at 364-
65.
The taking of an appeal from an order terminating parental rights is governed
by Rule 3.1(a) of the Rules of Appellate Procedure:
Any party entitled by law to appeal from a trial court
judgment or order rendered in a case involving termination
of parental rights and issues of juvenile dependency or
juvenile abuse and/or neglect, appealable pursuant to [N.C.
Gen. Stat. §] 7B-1001, may take appeal by filing notice of
appeal with the clerk of superior court and serving copies
thereof upon all other parties in the time and manner set
out in Chapter 7B of the General Statutes of North
Carolina. Trial counsel or an appellant not represented by
counsel shall be responsible for filing and serving the notice
of appeal in the time and manner required. If the appellant
is represented by counsel, both the trial counsel and
appellant must sign the notice of appeal, and the appellant
shall cooperate with counsel throughout the appeal.
As respondent father failed to affix his signature to the initial notice of appeal,
respondent father failed to comply with Rule 3.1(a). See In re I.T.P-L., 194 N.C. App.
453, 460, 670 S.E.2d 282, 285 (2008) (noting notice of appeal by respondent from order
terminating parental rights was “incomplete” when it lacked respondent’s signature).
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IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
We note that this Court recognized in Stephenson v. Bartlett, 177 N.C. App.
239, 241, 628 S.E.2d 442, 443 (2006) (quoting Von Ramm v. Von Ramm, 99 N.C. App.
153, 156, 392 S.E.2d 422, 424 (1990)), that “ ‘[w]e may liberally construe a notice of
appeal . . . to determine whether it provides jurisdiction.’ ” Thus, “ ‘if a party
technically fails to comply with procedural requirements in filing papers with the
court, the court may determine that the party complied with the rule [governing the
manner for taking appeal] if the party accomplishes the “functional equivalent” of the
requirement.’ ” Id., 628 S.E.2d at 443-44 (quoting Von Ramm, 99 N.C. App. at 157,
392 S.E.2d at 424). The question then is whether, despite respondent father’s failure
to sign the initial notice of appeal, this Court may liberally construe that purported
notice as the functional equivalent of a notice of appeal, or whether respondent
father’s default was jurisdictional.
In its motion to dismiss, DSS argues that respondent father’s failure to sign
the initial notice of appeal was a jurisdictional default, citing In re L.B., 187 N.C.
App. 326, 653 S.E.2d 240 (2007), aff’d per curiam, 362 N.C. 507, 666 S.E.2d 751 (2008)
in support of its position. In In re L.B., the respondents appealed a decision
terminating their parental rights, and their trial counsel filed timely notices of appeal
for them. Id. at 328, 653 S.E.2d at 242. The respondents’ trial counsel, as well as the
respondents’ guardians ad litem that the trial court had appointed for them, signed
the notices of appeal, although the respondents did not. Id. The petitioner filed a
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IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
motion to dismiss, arguing that the respondents had violated Rule 3A(a) of the Rules
of Appellate Procedure, which at the time governed the taking of appeals from orders
terminating parental rights and required that “ ‘both the trial counsel and appellant
must sign the notice of appeal[,]’ ” despite the signatures of the guardians ad litem
on the notices of appeal. 187 N.C. App. at 328, 653 S.E.2d at 242 (quoting N.C.R.
App. P. 3A(a)). This Court held that the respondents’ failure to sign their notices of
appeal violated Rule 3A, and, moreover, the signature of the guardian ad litem “on
the notice of appeal is not sufficient to grant this Court jurisdiction[.]” Id. at 328,
332, 653 S.E.2d at 242, 244. This Court dismissed the appeal, id. at 332, 653 S.E.2d
at 244, and the Supreme Court affirmed the dismissal without discussion, 362 N.C.
at 507, 666 S.E.2d at 751.
In re L.B. controls how we construe respondent father’s 2 December 2014 notice
of appeal. Here, as in that case, the rule governing taking appeals from orders
terminating parental rights, Rule 3.1(a), provides that “both the trial counsel and
appellant must sign the notice of appeal[.]” The failure of respondent father to sign
the notice of appeal is, pursuant to In re L.B., a jurisdictional default. See also In re
I.T.P-L., 194 N.C. App. at 459, 670 S.E.2d at 285 (dismissing timely but improper
appeal that violated requirement that respondent parent sign notice of appeal).
Given that respondent subsequently filed an amended notice of appeal on 17
December 2014 that complied with the signature requirement, the question remains
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IN RE: X.G.M., C.S.L.B., S.M.B., JR.
Opinion of the Court
whether the second notice of appeal was timely. The Supreme Court has “final
authority” over “question[s] of appellate procedure,” Duke Power Co. v. Winebarger,
300 N.C. 57, 69, 265 S.E.2d 227, 234 (1980), and through Rule 3.1(a), the Supreme
Court has expressly recognized the authority of the legislature to govern the manner
of taking appeal from orders terminating parental rights through Chapter 7B of the
General Statutes, including the time for taking appeal.
Under N.C. Gen. Stat. § 7B-1001(b) (2013), respondent had “30 days after entry
and service of the order” terminating his parental rights to file a timely appeal. See
also In re E.M., 202 N.C. App. 761, 763, 692 S.E.2d 629, 630 (2010) (“[F]or notice of
appeal in this case [appealing from a termination of parental rights order] to have
been timely, it must have been filed and served within 30 days after service of the
order[.]”). As the record indicates that respondent father was served the order on 14
November 2014, respondent father had until the end of the day on 15 December 2014
to file an amended notice of appeal. See N.C.R. App. P. 27(a). Respondent father’s
amended notice of appeal filed 17 December 2014 was, therefore, untimely. “As
proper and timely notice of appeal is jurisdictional, we must dismiss [respondent’s]
appeal.” In re I.T.P-L., 194 N.C. App. at 459, 670 S.E.2d at 285.
DISMISSED.
Judges STROUD and TYSON concur.
Report per Rule 30(e).
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