In re E.I.O.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1341
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
IN THE MATTER OF:
E.I.O. Mitchell County
No. 13 JT 07
Appeal by respondent-father from order entered 27 August
2013 by Judge Alexander Lyerly in Mitchell County District
Court. Heard in the Court of Appeals 28 April 2014.
No brief filed for mother, petitioner-appellee.
Mary McCullers Reece for father, respondent-appellant.
HUNTER, Robert C., Judge.
Respondent-father appeals from the trial court’s order
terminating his parental rights to the minor child, E.I.O.
(“Ethan”).1 Because the trial court failed to appoint a guardian
ad litem for the minor child, we reverse the trial court’s order
and remand the matter for a new termination hearing.2
1
A pseudonym is used to protect the identity of the juvenile.
2
We note that petitioner filed with this Court a copy of a
“Notice of Voluntary Dismissal” it filed in Mitchell County
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Background
Respondent and petitioner-mother were married in 2008 and
divorced in 2012. One child, Ethan, was born during the
marriage. On 11 February 2013, petitioner filed a petition to
terminate respondent’s parental rights alleging as grounds that
respondent willfully abandoned Ethan. The matter came on for
hearing on 5 August 2013, after which the trial court found the
existence of the ground alleged by petitioner. The court
determined that termination of respondent’s parental rights was
in the best interests of Ethan, and on 27 August 2013, entered
an order terminating respondent’s rights. Respondent appeals.
Notice of Appeal
We first address whether the Court has jurisdiction over
respondent’s appeal. Rule 3.1 of the North Carolina Rules of
Appellate Procedure requires trial counsel and the appellant to
sign the notice of appeal. In this case, trial counsel signed
the notice of appeal, but respondent did not. Respondent filed
a second notice with the proper signatures on 2 October 2013;
District Court on 23 April 2014. Under Rule 41(a), a plaintiff
may voluntarily dismiss an action without order of the court “at
any time before the plaintiff rests his case.” However, here,
petitioner filed its “Notice of Voluntary Dismissal” after it
had rested its case; it was even after the trial court had
entered a final judgment. Therefore, petitioner did not have a
legal right to file a voluntary dismissal, and petitioner’s
purported dismissal of its petition has no legal effect.
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however, this was more than thirty days after entry of the
termination order. See N.C. Gen. Stat. § 7B-1001(b) (2013)
(written notice of appeal “shall be made within 30 days after
entry and service of the order”).
Rule 3.1 is “jurisdictional, and if not complied with, the
appeal must be dismissed.” In re L.B., 187 N.C. App. 326, 332,
653 S.E.2d 240, 244 (2007), aff’d per curiam, 362 N.C. 507, 666
S.E.2d 751 (2008). Respondent, however, has filed a petition
for writ of certiorari. Under the circumstances, we believe it
is appropriate for us to exercise our discretion to grant
respondent’s petition and review the merits of his appeal. See
In re I.T.P-L., 194 N.C. App. 453, 460, 670 S.E.2d 282, 285
(2008) (allowing petition for writ of certiorari “to permit
consideration of their appeals on the merits so as to avoid
penalizing Respondents for their attorneys’ errors”).
Arguments
While respondent raises three issues on appeal, we find the
dispositive issue is whether the trial court erred by failing to
appoint a guardian ad litem for Ethan pursuant to N.C. Gen.
Stat. § 7B-1108. We note that respondent did not raise the
guardian ad litem issue in the trial court and this Court has
previously held that in order to preserve the issue, a
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respondent must object at the trial level. See In re Fuller,
144 N.C. App. 620, 623, 548 S.E.2d 569, 571 (2001) (discussing
“respondent’s noncompliance with our rules” by failing to
object to lack of GAL at trial level); In re Barnes, 97 N.C.
App. 325, 326, 388 S.E.2d 237, 238 (1990) (holding “respondent
failed to comply with our Rules of Appellate Procedure” because
“there was no objection or exception made at trial to the
court’s failure to appoint a guardian ad litem” for the child).
However, in Barnes and Fuller, the Court invoked Rule 2 of the
North Carolina Rules of Appellate Procedure in order to address
the issue and reversed the termination orders. The Court in
Fuller noted that section 7B-1108(b) was “intended to preserve
the best interest of the minor child,” and that the minor child
was “the intended beneficiary” of the statute. Fuller, 144 N.C.
App. at 623, 548 S.E.2d at 571; see also Barnes, 97 N.C. App. at
327, 388 S.E.2d at 238. In this case, we conclude it is
appropriate to invoke Rule 2 and address the merits of
respondent’s argument.
The Juvenile Code provides that:
If an answer or response denies any material
allegation of the petition or motion, the
court shall appoint a guardian ad litem for
the juvenile to represent the best interests
of the juvenile, unless the petition or
motion was filed by the guardian ad litem
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pursuant to G.S. 7B-1103, or a guardian ad
litem has already been appointed pursuant to
G.S. 7B-601.
N.C. Gen. Stat. § 7B-1108(b) (2013). This Court has held that
failure to appoint a guardian ad litem pursuant to section 7B-
1108(b) is reversible error. In re J.L.S., 168 N.C. App. 721,
723, 608 S.E.2d 823, 824 (2005). In J.L.S., the respondent
filed a response to the termination petition on the day of the
termination hearing, more than thirty days after the petition
was filed. This Court reasoned that the best interests of the
minor child must be protected, “especially in light of the
nature of these proceedings where one natural parent is seeking
to terminate the parental rights of the other natural parent.”
Id. at 723, 608 S.E.2d at 825. This Court “refuse[d] to
penalize the minor child” for the late filing of the response.
Id.In the present case, although respondent filed an answer to
the petition to terminate his parental rights denying the
material allegations contained in the petition, the trial court
failed to appoint a guardian ad litem to represent the best
interests of Ethan. Even though the answer was filed
approximately three months after the petition was filed, the
trial court was not relieved of its duty to appoint a guardian
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ad litem for Ethan. In accordance with our holding in J.L.S.,
we conclude the trial court erred in failing to appoint a
guardian ad litem pursuant to section 7B-1108(b). Thus, we
reverse the order terminating respondent’s parental rights and
remand for appointment of a guardian ad litem for the minor
child and a new termination hearing. Id.Conclusion
Based on the foregoing reasons, we reverse the order
terminating parental rights and remand for appointment of a
guardian ad litem and new termination hearing.
REVERSED AND REMANDED.
Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).