In re: L.E.M.
In re: L.E.M.
Opinion of the Court
*645Respondent appeals from an order terminating his parental rights to his minor child, L.E.M. ("Landon").
*646I. Factual and Procedural Background
On 4 January 2016, the Gaston County Department of Social Services ("DSS") obtained non-secure custody of Landon and his older sibling B.E.M. ("Brett") and filed a petition alleging both to be neglected and dependent juveniles.
On 17 February 2016, Respondent entered into a mediation agreement with DSS, wherein he accepted Landon would be adjudicated as neglected and dependent, entered into a case plan with DSS, and agreed to work with DSS toward reunification with Landon. On 19 April 2016, the trial court entered an order adjudicating Landon as a neglected and dependent juvenile. The court continued custody of Landon with DSS. The court ordered Respondent comply with the terms of his mediated case plan, including: (1) obtain a substance abuse assessment, follow recommendations of the assessment, and submit to random drug screens; (2) obtain a mental health assessment and follow recommendations of the assessment; (3) attend the juveniles' medical appointments; (4) obtain safe and appropriate housing; (5) obtain employment; and (6) complete a parenting class and utilize skills learned during visits with Landon.
In May and September 2016, the trial court conducted review and permanency planning hearings. The court established Landon's primary permanent plan as reunification, with guardianship as the secondary plan.
On 29 November 2016, the court held another review and permanency planning hearing. In an order entered 28 March 2017, the trial court found Respondent failed to make sufficient progress on his case plan and was incarcerated in West Virginia. The court changed Landon's primary permanent plan to adoption, with a secondary plan of reunification In an order entered 11 April 2017, the court continued Landon's primary permanent plan as adoption, but changed the secondary plan to guardianship.
*647On 12 April 2017, DSS filed a petition to terminate Respondent's parental rights to Landon. DSS alleged grounds existed for termination of Respondent's parental rights based on: (1) neglect; (2) failure to correct the conditions that led to Landon's removal from his care; and (3) dependency. See N.C. Gen. Stat. § 7B-1111(a)(1)-(2), (6) (2017).
On 13 November 2017, the trial court held a termination of parental rights hearing. DSS called Respondent. Respondent entered into a case plan with DSS, following Landon's adjudication as a neglected and dependent juvenile. Pursuant to the plan, Respondent agreed to resolve substance abuse issues, attend counseling, attend parenting classes, and visit Landon. However, he failed to participate in a substance abuse assessment or complete any substance abuse treatment.
In June 2015, authorities in Harrison County arrested Respondent for a parole violation. On 1 August 2015, authorities "shipped" him to jail in West Virginia. In West Virginia, he did not complete any progress on his case plan, because "[t]hey don't provide that stuff in the West Virginia department."
While Respondent was incarcerated, Hannah Crawford, a DSS social worker regularly contacted Respondent. He wrote her one letter in December 2015. In his letter, he did not tell Crawford about the lack of resources available to him. Following his release in late May or early June 2017, the court and DSS refused to allow him to see Landon and Brett.
DSS next called Hannah Crawford. From the time DSS took custody of Landon on 4 January 2016 to the date of the hearing, Crawford was the social worker assigned to Landon's case. Crawford asserted Respondent failed to make "significant progress" on his case plan, even prior to his incarceration on 1 June 2015. Respondent attended visitation with Landon but did not demonstrate "appropriate" parenting skills. Respondent failed to obtain a substance abuse assessment, engage in any substance abuse treatment, or obtain a mental health assessment. Respondent also did not complete parenting classes, obtain employment, or obtain safe housing. On 26 May 2016, a doctor performed *579a parental capacity evaluation, concluding Respondent possessed "rather marginal parenting capability."
Following another arrest in June 2016 and Respondent's incarceration until May 2017, Crawford "attempted" to maintain contact *648with Respondent. Respondent did not contact Crawford "regularly", inquire about Landon's placement, or send any "cards, gifts, letters ...." Respondent replied to Crawford only once, in December 2016, acknowledging the case plan Crawford sent to him and that he received her letters. In the letter, it seemed "along the line that he'd be able to complete parenting classes[.]"
Following his subsequent release in April 2017, Respondent called Crawford in May 2017.
Since 31 May 2016, Respondent did not write or call Crawford to ask about Landon or have any contact with Landon. As of the day of the hearing, Respondent failed to submit proof of stable employment or appropriate housing.
On 5 January 2018, the trial court entered an order terminating Respondent's parental rights on the grounds of neglect and failure to make reasonable progress. See N.C. Gen. Stat. § 7B-1111(a)(1), (2). The court concluded termination of Respondent's parental rights was in Landon's best interests. Respondent filed timely notice of appeal.
II. Analysis
Appellate counsel for Respondent filed a no-merit brief on Respondent's behalf in which counsel states she made a conscientious and thorough review of the record on appeal and concluded there is no issue of merit on which to base an argument for relief. Pursuant to North Carolina Rule of Appellate Procedure 3.1(d), appellate counsel requests this Court conduct an independent examination of the case. N.C. R. App. P. 3.1(d) (2017). In accordance with Rule 3.1(d), counsel wrote a letter to Respondent on 26 April 2018, advising Respondent of counsel's inability to find error, of counsel's request for this Court to conduct an independent review of the record, and of Respondent's right to file his own arguments directly with this Court. Counsel also avers she provided Respondent with copies of all relevant documents so that he may file his own arguments with this Court. Respondent did not file written arguments with this Court, and a reasonable time for him to have done so *649has passed. Thus, "[n]o issues have been argued or preserved for review in accordance with our Rules of Appellate Procedure." In re L.V. , --- N.C. App. ----, ----,
III. Conclusion
For the foregoing reasons, we dismiss Respondent's appeal.
DISMISSED.
Judge ARROWOOD concurs in result only in separate opinion.
Chief Judge McGEE dissents in a separate opinion.
ARROWOOD, Judge, concurring in result only.
We are dismissing respondent's appeal because we are bound by In re L.V. , --- N.C. App. ----,
The concept of a no-merit brief, also referred to as an Anders brief, comes from the United States Supreme Court's decision in Anders v. California ,
*650Our Court initially denied extending Anders procedures to termination of parental rights cases. See In re N.B. ,
In an appeal taken pursuant to [N.C. Gen. Stat.] § 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 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).
Rule 3.1(d) provides for the filing of "no-merit briefs" and allowing an Anders -like procedure for appeals taken pursuant to N.C. Gen. Stat. § 7B-1001, including from termination of parent rights orders. See id . A parent may file a pro se brief when counsel files a no-merit brief, but nothing in the rule appears to require a parent to file a pro se brief in order for our Court to review the appeal. See
*651In re O.M.B. ,
In re L.V. disavowed this routine procedure, and signaled a significant shift in our jurisprudence of cases arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure. In In re L.V. , our Court held for the first time that "[n]o issues have been argued or preserved for review in accordance with our Rules of Appellate Procedure" when *581a respondent's appellate counsel files a no-merit brief that complied with Rule 3.1(d) and respondent fails to "exercise her right under Rule 3.1(d) to file a pro se brief."
I believe that In re L.V. 's interpretation of Rule 3.1(d) affects parents' interest in the accuracy and justice of a decision to terminate their parental rights, and is inconsistent with the purposes of our juvenile code. See Little v. Little ,
We use pseudonyms throughout the opinion for ease of reading and to protect the juveniles' identities.
Respondent is not the father of Brett, and Brett is not a party to this appeal.
The juveniles' mother is not a party to this appeal.
DSS presented Respondent with a June 2017 court order, stating it would "reinstat[e] respondent father's visitation provided he is able to provide a clean drug screen."
The date of Respondent's release is not clear from the testimony; however, the trial court found as fact the West Virginia Department of Corrections released Respondent in May 2017.
Dissenting Opinion
*652I respectfully dissent from the majority opinion's holding that this Court, pursuant to In re L.V. , --- N.C. App. ----,
As the concurring opinion notes, "our Court 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." I also agree that " In re L.V. is an anomaly in our case law[.]" Rule 3.1(d) does not require a parent to file a pro se brief.
Rule 3.1(d) states:
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 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 *582thirty 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) (emphasis added).
*653In In re L.V. , this Court dismissed Respondent's no-merit appeal based on the following reasoning:
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.6 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.7
In re L.V. , --- N.C. App. at ----,
The majority opinion holds that we are bound by In re L.V. and must dismiss Respondent's appeal. However, this Court has continually conducted the Anders -type review provided for in Rule 3.1(d), absent any accompanying pro se briefs from the respondents, both before and after In re L.V. was filed on 3 July 2018.
In the present matter, the concurring opinion, relying on N.C. R. App. P. 28, argues that we should not address the Anders issue in this opinion because it was not first brought up and argued in Defendant's brief. We believe the fact that Defendant's attorney filed an Anders brief is sufficient to raise the issue and present it for appellate review.
Velasquez-Cardenas , --- N.C. App. at ----,
However, if we follow In re L.V. , upon a Rule 3.1(d) appeal, this Court will be limited to review of only those issues included in a respondent's pro se brief-should respondent chose to file one.
The majority opinion in this case holds, based upon In re Civil Penalty ,
This Court has held that one panel of the Court of Appeals may not overrule the decision of another panel on the same question in the same case. The situation is different here since this case and N.C. Private Protective Services Board v. Gray , do not arise from the same facts. In Virginia Carolina Builders , however, we indicated that the Court will examine the effect of the subsequent decision, rather than whether the term "overrule" was actually employed . We conclude that the effect of the majority's decision here was to overrule [a prior opinion of the Court of Appeals]. This it may not do. Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.
We hold ... that a panel of the Court of Appeals is bound by a prior decision of another panel of the same court addressing the same question, but in a different case, unless overturned by an intervening decision from a higher court.
Id. at 384,
*656In re O.D.S. , --- N.C. App. ----, ----,
The change proposed by In re L.V. can only be adopted if this Court rejects nearly a decade of appellate practice and precedent set following the 2009 enactment of Rule 3.1(d) by our Supreme Court. I believe the "effect" of the holding in In re L.V. is to overrule the precedent set by the prior opinions of this Court, which it cannot do. In re O.D.S. , --- N.C. App. at ----,
This Court conducted full Anders -type reviews pursuant to Rule 3.1(d) in all seventy-five appeals it decided prior to In re L.V. In only one out of the seventy-five appeals- In re A.L.W. -did the respondent-parent exercise "the option of filing a pro se brief" as allowed by Rule 3.1(d). N.C. R. App. P. 3.1(d); In re A.L.W. , --- N.C. App. ----,
It is presumed that this Court acts correctly. This Court is required to dismiss an appeal, even sua sponte , whenever it is without jurisdiction or authority to act.
In a published opinion filed on 20 March 2018, this Court conducted the following review of the respondent-father's appeal:
Counsel for Respondent-Father filed a no-merit brief on his behalf, pursuant to N.C. R. App. P. 3.1(d), stating "[t]he undersigned counsel has made a conscientious and thorough review of the [r]ecord on [a]ppeal .... Counsel has concluded that there is no issue of merit on which to base an argument for relief and that this appeal would be frivolous." Counsel asks this Court to "[r]eview the case to determine whether counsel overlooked a valid issue that requires reversal." Additionally, counsel demonstrated that he advised Respondent-Father of his right to file written arguments with this Court and provided him with the information necessary to do so. Respondent-Father failed to file his own written arguments .
Consistent with the requirements of Rule 3.1(d), counsel directs our attention to two issues: (1) whether the trial court erred in concluding that grounds existed to terminate Respondent-Father's parental rights and (2) whether the trial court abused its discretion in determining that it was in the children's best interests to terminate Respondent-Father's parental rights. However, counsel acknowledges he cannot make a non-frivolous argument that no grounds existed sufficient to terminate Respondent-Father's parental rights or that it was not in the children's best interests to terminate his parental rights.
We do not find any possible error by the trial court . The 25 April 2017 order includes sufficient findings of fact, supported by clear, cogent, and convincing evidence to conclude that at least one statutory ground for termination existed under N.C.G.S. § 7B-1111(a)(1). Moreover, the trial court made appropriate findings on each of the relevant dispositional factors and did not abuse its discretion in assessing the children's best interests. Accordingly, we affirm the trial court's order as to the termination of Respondent-Father's parental rights.
*659In re A.A.S. , --- N.C. App. at ----,
In the present case, as required by Rule 3.1(d), Respondent's attorney compiled and filed the 279 page record; composed and filed a twenty-four page no-merit brief that "identif[ied] issues in the record on appeal that might arguably support the appeal and [ ] state[d] why those issues lack merit or would not alter the ultimate result[;]" provided notice *586to Respondent and provided Respondent with the required materials; and attached evidence of compliance with the requirements of Rule 3.1(d) to the no-merit brief. DSS and the child's guardian ad litem also filed appellee briefs. Respondent did not avail himself of "the option of filing a pro se brief" as permitted by Rule 3.1(d).
Respondent's attorney complied with the requirements of Rule 3.1(d) for requesting an Anders -type review of the no-merit brief by this Court. Because I believe we are bound by the precedent set in In re M.S., and subsequently followed by In re A.A.S. and In re M.J.S.M., I believe In re Civil Penalty and its progeny require that we disregard the conflicting holding in In re L.V. , and conduct the requested Rule 3.1(d) Anders -type review.
Upon conducting the appropriate review, I would agree with Respondent's counsel and hold that the trial court's findings of fact support its conclusions that grounds existed to terminate Respondent's parental rights pursuant to N.C. Gen. Stat. §§ 7B-1111(a)(1) and 7B-1111(a)(2) (2017), and that termination of Respondent's parental rights was in the best interest of the child. I would further agree that review of the record reveals no errors occurred at trial that would warrant reversal. I would therefore affirm.
"In accordance with Rule 3.1(d), appellate counsel provided Respondent with copies of the no-merit brief, trial transcript, and record on appeal and advised her of her right to file a brief with this Court pro se on 11 April 2018."
" 'Rule 3.1(d) does not explicitly grant indigent parents the right to receive an Anders -type review of the record by our Court, which would allow our Court to consider issues not explicitly raised on appeal.' State v. Velasquez-Cardenas , --- N.C. App. ----, ----,
I join the concurring opinion in pointing out that the sole "authority" cited by In re L.V. is dicta obtained from a concurring opinion in a criminal matter, devoid of precedential value. The holding of In re L.V. is therefore supported by no legal authority.
Anders v. California ,
As noted below, since the adoption of Rule 3.1(d) only a single respondent has chosen to file any sort of pro se response.
Respondents perhaps receive some benefit by their attorney's work in compiling and filing the record, and by performing some other ministerial actions.
The 2016 amendment of N.C. Gen. Stat. § 7A-16 created a procedure for en banc review by this Court of its own decisions, but In re Civil Penalty is still the law with respect to the decisions of three judge panels of this Court.
By definition, no-merit appeals are likely to be decided without great difficulty, and are unlikely to include novel issues of law.
Had the reasoning in In re L.V. been applied to all no-merit appeals since the adoption of Rule 3.1(d), this Court would still be waiting to conduct its first review of an appeal pursuant to Rule 3.1(d), because only one pro se "brief" has been filed since 2009, and that "brief" was not even considered due to Rule 28(b)(6) violations.
Unless it applies an authorized discretionary writ or rule to allow review.
If, for example, this Court determines that it has been operating in ignorance of contrary holdings of prior opinions of this Court, or of our Supreme Court, it must acknowledge and adhere to that prior binding precedent-in effect "correct course" and disavow the prior incorrect holdings. In re O.D.S. , --- N.C. App. at ----,
Both the respondent-father and the respondent-mother appealed termination of their parental rights. Only the respondent-father's appeal was pursuant to Rule 3.1(d).
Reference
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- In the MATTER OF: L.E.M.
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- Termination of Parental Rights.