261 N.C. App. 645
N.C. Ct. App.2018Background
- DSS obtained nonsecure custody of Landon (born to respondent and mother) on Jan 4, 2016, alleging neglect/dependency tied to parental substance abuse and medical neglect of the sibling.
- Respondent signed a mediated case plan (Feb 2016) requiring substance‑abuse and mental‑health assessments, parenting classes, stable housing and employment, and visitation participation; Landon was adjudicated neglected/dependent (Apr 2016).
- Respondent failed to complete substance‑abuse or mental‑health assessments, parenting classes, obtain stable housing/employment, or show sustained contact; he had multiple incarcerations (including a West Virginia confinement) that interrupted case‑plan progress.
- DSS changed Landon’s permanent plan from reunification to adoption (2017) and filed a petition to terminate respondent’s parental rights (April 12, 2017) alleging neglect and failure to correct conditions.
- At the termination hearing, DSS presented evidence of respondent’s lack of compliance, positive drug tests, minimal contact, and a parental capacity evaluation finding marginal parenting capability; the trial court terminated respondent’s parental rights under N.C. Gen. Stat. § 7B‑1111(a)(1) and (2) and found termination was in the child’s best interest (Jan 5, 2018).
- On appeal, appellate counsel filed a Rule 3.1(d) no‑merit brief; counsel notified respondent of his right to file a pro se brief but respondent did not. The Court of Appeals dismissed the appeal based on precedent requiring dismissal when only a no‑merit brief is filed and no pro se brief is submitted.
Issues
| Issue | Plaintiff's Argument (DSS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether grounds existed to terminate respondent’s parental rights under § 7B‑1111(a)(1) neglect | DSS: Record shows neglect and failure to remedy conditions; respondent noncompliant with case plan | Respondent: (no preserved pro se arguments filed) | Trial court found grounds; appeal dismissed for procedural reason (no preserved issues) |
| Whether respondent made reasonable progress under § 7B‑1111(a)(2) | DSS: Respondent failed to make sufficient progress or complete required services | Respondent: (no pro se brief) | Trial court found failure to make reasonable progress; appeal dismissed |
| Whether termination was in the child’s best interests | DSS: Termination serves child’s stability and welfare given respondent’s noncompliance and instability | Respondent: (no pro se brief) | Trial court concluded termination was in child’s best interest; appeal dismissed |
| Whether the Court of Appeals must perform independent Anders‑type review when counsel files a Rule 3.1(d) no‑merit brief and the respondent files no pro se brief | Appellate counsel: Requested independent review per Rule 3.1(d) | Respondent: did not file pro se brief to press issues | Majority: Dismissed appeal pursuant to In re L.V.; concurring judge criticized In re L.V. and argued for independent review; dissent would have performed the Anders‑type review and affirmed termination on the merits |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishing counsel’s obligations and court’s independent review when counsel seeks to withdraw on grounds appeal is frivolous)
- In re Civil Penalty, 324 N.C. 373 (1989) (panel of Court of Appeals bound by prior panel’s decision on same issue)
- In re L.V., 814 S.E.2d 928 (N.C. Ct. App. 2018) (holding no issues preserved for review when only a compliant Rule 3.1(d) no‑merit brief is filed and respondent files no pro se brief)
- In re A.A.S., 812 S.E.2d 875 (N.C. Ct. App. 2018) (exemplary opinion where Court conducted independent Anders‑type review after counsel filed a Rule 3.1(d) no‑merit brief)
- State v. Velasquez‑Cardenas, 815 S.E.2d 9 (N.C. Ct. App. 2018) (discussed in concurrence; noted that a concurring opinion’s dicta does not have precedential effect)