In re: I.B.

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-608
Filed: 20 November 2018
Orange County, No. 16 JT 56
IN THE MATTER OF: I.B.
Appeal by respondent-mother from order entered 22 March 2018 by Judge
Beverly Scarlett in Orange County District Court. Heard in the Court of Appeals 11
October 2018.
Stephenson & Fleming, LLP, by Deana K. Fleming, for petitioner-appellee
Orange County Department of Social Services.
Mary McCullers Reece for respondent-appellant mother.
Doughton Blancato, PLLC, by William A. Blancato, for guardian ad litem.
DIETZ, Judge.
Respondent appeals the trial court’s order terminating her parental rights. Her
court-appointed counsel filed a “no-merit” brief indicating that there are no non-
frivolous issues on appeal. We have conducted an independent review of the record
and agree that any arguments Respondent might advance on appeal are frivolous.
We therefore affirm the trial court’s order.
We could end our analysis here. But because this Court has found itself so
divided over whether we must conduct an independent review in these cases, we take
the time to provide a thorough legal analysis.
IN RE: I.B.
Opinion of the Court
As explained below, the root of this issue is the language in Anders v. State of
California, 386 U.S. 738 (1967). In Anders, the U.S. Supreme Court created a multi-
step process to handle cases in which a criminal defendant has a constitutional right
to counsel, but the defendant’s appointed lawyer concludes that any arguments on
appeal would be frivolous. The final step in that process is the appellate court’s
independent review of the record to confirm the appeal is “wholly frivolous.” Id. at
744.
When our state Supreme Court created an Anders-like process for juvenile
cases (civil cases to which Anders does not apply) through Rule 3.1(d) of the Rules of
Appellate Procedure, the Court adopted most of the steps in the Anders process, often
copying the language of the Anders opinion verbatim. But the Supreme Court did not
include the language concerning counsel’s obligation to withdraw and the court’s
independent review of the record, both of which lie at the heart of the Anders process.
This could have been an oversight. But even if we concluded that it was, this
Court has no authority to insert language into the text of procedural rules because
the Court thinks the authors would have wanted it there. Moreover, as explained
below, there are sound reasons why the Supreme Court might have omitted this
language to broaden indigent litigants’ access to justice, not diminish it. Faced with
this reality, until otherwise instructed by our Supreme Court, we will follow the plain
language of Rule 3.1(d). That language, in conjunction with our existing precedent,
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IN RE: I.B.
Opinion of the Court
permits but does not require this Court to conduct an independent review of the
record in these cases.
Facts and Procedural History
When Respondent’s son Ike1 was born, his blood tested positive for illegal
drugs. At a check-up while eighteen months old, healthcare providers discovered that
Ike had gained only slightly more than a pound of weight during the last year. They
diagnosed Ike with failure to thrive, indicating abnormal growth and development.
Respondent later was arrested on drug charges, was diagnosed with several mental
illnesses including bipolar disorder and schizophrenia, and was found to be living in
a relationship involving domestic violence.
Ultimately, the Orange County Department of Social Services petitioned to
terminate Respondent’s parental rights based on neglect and dependency. After a
hearing, the trial court terminated Respondent’s parental rights on both grounds.
Respondent timely appealed.
Respondent’s court-appointed counsel filed a “no-merit” brief indicating that
there were no non-frivolous issues to assert in this appeal. That brief provided an
outline of issues that “might arguably support the appeal” and an explanation of why
those issues were frivolous, as required by Rule 3.1(d) of the Rules of Appellate
Procedure. Counsel provided a copy of the brief to Respondent along with the record
1 We use a pseudonym to protect the identity of the juvenile.
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IN RE: I.B.
Opinion of the Court
on appeal and accompanying transcripts, and a letter advising Respondent of her
right to file her own brief and the timeframe for doing so. Respondent did not file a
separate brief.
Analysis
This Court is no one’s lawyer. Our role is to remain impartial, to review the
litigants’ issues on appeal, and to render a judgment on those issues. Thus, ordinarily,
this Court will not comb through the appellate record searching for possible
arguments no one else had thought to raise. Our review is confined to the issues that
the litigants choose to assert on appeal.
But the Sixth and Fourteenth Amendments alter this rule (slightly) in certain
criminal cases. In Anders v. State of California, 386 U.S. 738 (1967), the Supreme
Court established a special procedure to handle cases in which a criminal defendant
has a constitutional right to counsel, but the defendant’s appointed counsel concludes
that any arguments on appeal would be “wholly frivolous.” Id. at 744. When this
occurs, the Anders process begins, and it works as follows:
First, counsel must “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.” Id. Second, “[a] copy of counsel’s brief should
be furnished the indigent and time allowed him to raise any points that he chooses.”
Id. Third, “the court—not counsel—then proceeds, after a full examination of all the
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IN RE: I.B.
Opinion of the Court
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.” Id. “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.
Importantly, the Anders process is designed around counsel’s request to
withdraw. The entire purpose of the Anders brief and the court’s “independent
review” of the record (the Anders opinion doesn’t actually call it that) is to assist the
court “in making the critical determination whether the appeal is indeed so frivolous
that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of
Wisconsin, 486 U.S. 429, 439 (1988).
For this reason, the court’s Anders review does not entail an independent
adjudication of potentially non-frivolous arguments identified during the court’s
review of the record. The independent review under Anders is limited to confirming
that the appeal is “wholly frivolous.” 386 U.S. at 744. If the court agrees that it is—
meaning the court sees no potentially non-frivolous arguments—the court grants
counsel’s motion to withdraw and dismisses the appeal as frivolous. Id. On the other
hand, if the court spots any issues of arguable merit, its independent review ends and
it either rejects counsel’s motion to withdraw or, more typically, grants that motion
but appoints new, substitute counsel and orders counsel to file a brief on the merits.
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IN RE: I.B.
Opinion of the Court
See, e.g., United States v. Estevez Antonio, 311 F. App’x 679, 681 (4th Cir. 2009). The
case then proceeds like any other appeal.
In criminal cases in our State courts, we must follow the Anders procedure
because it arises from the protections guaranteed by the Sixth and Fourteenth
Amendments. But there are other categories of cases in North Carolina where
litigants have a statutory right to counsel but not a constitutional one. A decade ago,
this Court examined whether Anders applies to a case like this one, concerning the
termination of parental rights, where the right to counsel was provided by statute,
not by the state or federal constitution. In re N.B., 183 N.C. App. 114, 117, 644 S.E.2d
22, 24 (2007). We held that Anders did not apply. Id. This meant that “counsel for a
parent appealing an order terminating parental rights did not have a right to file an
Anders brief.” Id. But we “urge[d] our Supreme Court or the General Assembly to
reconsider this issue.” Id.
Our Supreme Court did. The Court amended Rule 3.1 of the North Carolina
Rules of Appellate Procedure to add a section titled “No-Merit Briefs.” N.C. R. App.
P. 3.1(d). That section adopted most of the requirements of Anders, often by copying
verbatim from the language of Justice Clark’s majority opinion in the case. But the
Supreme Court’s amendment to Rule 3.1 left out two prominent parts of the Anders
process: (1) the requirement that counsel move to withdraw; and (2) the court’s
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IN RE: I.B.
Opinion of the Court
obligation to review the record and confirm the appeal is wholly frivolous before
granting the motion to withdraw and dismissing the appeal.
Why? When our Supreme Court drafted Rule 3.1(d), Anders had been around
for forty years and its multi-step procedure was well-settled. So why leave out these
two critical steps of the Anders process?
To be sure, it could have been an oversight. But it is also possible that this
omission was intended—that our Supreme Court chose an alternative approach
different from the withdrawal-focused approach in Anders. After all, as the U.S.
Supreme Court has acknowledged, “public defenders making withdrawal decisions
are viewed by indigent prisoners as hostile state actors.” Polk County v. Dodson, 454
U.S. 312, 324 (1981). The Supreme Court emphasized that there is “little justification
for this view,” but it nonetheless exists among many indigent defendants. Id. And
although it may be inaccurate, this view is not irrational—when your lawyer asks the
court for permission to quit, it’s not unreasonable to conclude your lawyer isn’t on
your side anymore.
What our Supreme Court might have intended with Rule 3.1(d) was to avoid
the tension that results when counsel seeks to terminate the attorney-client
relationship when submitting an Anders brief. Rule 3.1(d) provides the following:
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, appellate counsel concludes that the record contains no
issue of merit on which to base an argument for relief and that
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IN RE: I.B.
Opinion of the Court
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).
The rule does not anticipate that counsel will seek to terminate the attorney-
client relationship and, indeed, counsel in these cases do not do so. Instead, Rule
3.1(d) permits the attorney to continue advising the client about the allegations in
the case, the standards of review on appeal, the rules of appellate procedure, and
other legal complexities of an appeal. The attorney’s continued service assures that
the client will be able to file a brief raising the arguments she believes the court
should address (which, because the client is not bound by ethical rules concerning
frivolous arguments, may include issues the lawyer could not assert).
Examining this procedure in light of the Anders process, one can see that it
anticipates a slightly different set of submissions to the Court: (1) a no-merit brief
from counsel, which must “identify any issues in the record on appeal that might
arguably support the appeal”; (2) the client’s pro se principal brief and reply brief,
prepared with access to counsel to assist with procedural and substantive legal
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Opinion of the Court
questions; and (3) the briefs of the other parties in the appeal. N.C. R. App. P 3.1(d).
With this information in hand, this Court can then adjudicate the appeal as it would
any other—by addressing the issues raised in the briefs and treating issues not raised
as abandoned. N.C. R. App. P. 28(b)(6). Through this process, there is no need for the
Court to conduct an independent review of the record, as would be necessary under
Anders where the Court’s focus is whether to permit counsel to withdraw from the
case.
Is this what the Supreme Court intended? Or did the Court intend to include
the independent review requirement under Anders despite not saying so in the text
of the rule? We have no way to know, and that’s the point. “This Court is an error-
correcting body, not a policy-making or law-making one.” Davis v. Craven County
ABC Board, __ N.C. App. __, __, 814 S.E.2d 602, 605 (2018). When asked to interpret
a procedural rule, we look not to what we would have done as drafters of the rule, but
instead to the text and to principles of textual interpretation. These tools lead us to
conclude that an independent review by the Court is not a requirement of Rule 3.1(d).
First, there is no ambiguity in the text; the rule simply does not require the
Court to conduct an independent review. Because the text itself is clear and
unambiguous, “there is no room for judicial construction.” Wilkie v. City of Boiling
Spring Lakes, 370 N.C. 540, 547, 809 S.E.2d 853, 858 (2018).
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IN RE: I.B.
Opinion of the Court
Second, canons of interpretation support this plain-language approach. The
Supreme Court knew Anders required an independent review in criminal cases,
copied much of Anders into Rule 3.1(d), but left out the independent review language.
The decision to exclude that language is presumed to be purposeful. See Comstock v.
Comstock, 244 N.C. App. 20, 24, 780 S.E.2d 183, 186 (2015). Moreover, by departing
from the settled language of Anders and instead adopting a different rule, we must
presume that the Supreme Court intended something different than what Anders
requires. See Wells Fargo Bank, N.A. v. American Nat’l Bank & Tr. Co., __ N.C. App.
__, __, 791 S.E.2d 906, 910 (2016).
Third, as explained above, there are sound reasons why the Supreme Court
might have left out this independent review requirement, in order to avoid the tension
created by counsel seeking to withdraw from the case. Thus, our plain-text
interpretation is a reasonable one and certainly not the type of “absurd result” that
permits us to disregard the text. Mazda Motors of Am., Inc. v. Sw. Motors, Inc., 296
N.C. 357, 361–62, 250 S.E.2d 250, 253 (1979).
These settled rules of interpretation support a conclusion that we are not
required to conduct an independent review of the record under the text of Rule 3.1(d)
as it is written. And even if we thought otherwise, we are not permitted to depart
from this Court’s recent holding in In re L.V., __ N.C. App. __, __, 814 S.E.2d 928, 929
n.2 (2018), that “Rule 3.1(d) does not explicitly grant indigent parents the right to
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IN RE: I.B.
Opinion of the Court
receive an Anders-type review of the record by our Court, which would allow our
Court to consider issues not explicitly raised on appeal.” In re Civil Penalty, 324 N.C.
373, 384, 379 S.E.2d 30, 37 (1989).
Of course, holding that an independent review is not required does not mean
we cannot conduct one. Even before Rule 3.1(d) existed, in juvenile cases where court-
appointed counsel believed the appeal was wholly frivolous, this Court acknowledged
that it had the discretion to “review the record to determine whether the evidence
supports the trial court’s findings of fact and conclusions of law.” N.B., 183 N.C. App.
at 119, 644 S.E.2d at 25 (citing N.C. R. App. P. 2). As our Supreme Court later
emphasized, when a litigant has lost the right to argue an issue due to a rules
violation unrelated to jurisdiction in the trial court, “[t]he imperative to correct
fundamental error, however, may necessitate appellate review of the merits despite
the occurrence of default.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp.
Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). Moreover, this Court always has
authority under Rule 2 to suspend our procedural rules entirely in extraordinary
cases to prevent “manifest injustice.” N.C. R. App. P. 2. We can use these forms of
discretionary authority to conduct an independent review, where appropriate, to
ensure justice is done in these important cases. What we cannot do is rewrite our
State’s procedural rules to impose requirements that simply aren’t there.
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IN RE: I.B.
Opinion of the Court
With these principles in mind, we have reviewed the submissions of the parties
in this case, conducted our own review of the record in our discretion, and determined
that the trial court’s findings of fact are supported by competent evidence and those
findings, in turn, support the court’s conclusions of law. We therefore affirm the trial
court’s order.
AFFIRMED.
Judges BRYANT and INMAN concur.
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