In re: L.E.M. , 261 N.C. App. 645 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-380
Filed: 2 October 2018
Gaston County, No. 16-JT-03
IN THE MATTER OF: L.E.M.
Appeal by Respondent-Father from order entered 5 January 2018 by Judge
John K. Greenlee in Gaston County District Court. Heard in the Court of Appeals 23
August 2018.
Elizabeth Myrick Boone for petitioner-appellee Gaston County Department of
Social Services.
Assistant Appellate Defender Annick Lenoir-Peek for respondent-appellant
father.
Nelson Mullins Riley & Scarborough LLP, by Reed J. Hollander, for guardian
ad litem.
HUNTER, JR., Robert N., Judge.
Respondent appeals from an order terminating his parental rights to his minor
child, L.E.M. (“Landon”).1 Respondent’s counsel filed a no-merit brief, pursuant to
North Carolina Rule of Appellate Procedure 3.1(d). We dismiss.
I. Factual and Procedural Background
1 We use pseudonyms throughout the opinion for ease of reading and to protect the juveniles’
identities.
IN RE: L.E.M.
Opinion of the Court
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.2 DSS alleged it was
involved with the family since September 2015, due to allegations of substance abuse
and medical neglect of Brett. Following a recent arrest, both parents3 were being
held in the Gaston County Jail. DSS further alleged the following: (1) the children
did not receive proper care, supervision, or discipline from their parents; (2) the
children lived in an environment injurious to their welfare; and (3) the parents were
unable to provide for the children’s care and supervision.
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’
2 Respondent is not the father of Brett, and Brett is not a party to this appeal.
3 The juveniles’ mother is not a party to this appeal.
-2-
IN RE: L.E.M.
Opinion of the Court
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.
On 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,
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IN RE: L.E.M.
Opinion of the Court
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.4
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
4 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.”
-4-
IN RE: L.E.M.
Opinion of the Court
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 a 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 with 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 2017.5 Crawford asked Respondent to meet with DSS to go over the case plan.
DSS and Respondent met on 5 June 2017. Following the meeting, Respondent failed
to attend a mental health assessment, failed to obtain a substance abuse assessment,
did not comply with two drug screens, and tested positive for drugs.
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.
5 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.
-5-
IN RE: L.E.M.
Opinion of the Court
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 has 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. ___, ___, ___ S.E.2d ___, 2018
-6-
IN RE: L.E.M.
Opinion of the Court
WL 3232738 (N.C. Ct. App. July 3, 2018). Accordingly, we must dismiss Respondent’s
appeal. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citation
omitted) (“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.”).
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.
-7-
No. COA18-380 – In the Matter of: L.E.M.
ARROWOOD, Judge, concurring in result only.
We are dismissing respondent’s appeal because we are bound by In re L.V., __
N.C. App. __, 814 S.E.2d 928, 2018 WL 3232738 (N.C. Ct. App. July 3, 2018). I agree
that In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989) requires our Court to
follow In re L.V., however, I concur in the result only because I believe In re L.V.
erroneously altered the jurisprudence of cases arising under Rule 3.1 of the North
Carolina Rules of Appellate Procedure. Furthermore, this change significantly
impacts the constitutional rights of North Carolinians, such as the respondent in this
case, whose fundamental right to a parental relationship with his child should only
be terminated as contemplated by law. Therefore, I write separately to address this
shift in our precedent.
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, 386 U.S. 738, 18
L. Ed. 2d 493 (1967). Anders held that an attorney representing a criminal defendant
in a case the attorney finds without legal merit can request permission to withdraw
as counsel for this reason, but the request must “be accompanied by a brief referring
to anything in the record that might arguably support the appeal.” Anders, 386 U.S.
at 744, 18 L. Ed. 2d at 498. “[T]he court—not counsel—then proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly frivolous.”
Id.IN RE: L.E.M.
ARROWOOD, J., concurring in result only
Our Court initially denied extending Anders procedures to termination of
parental rights cases. See In re N.B., 183 N.C. App. 114, 117, 644 S.E.2d 22, 24 (2007)
(citation omitted). However, the In re N.B. court “urge[d] our Supreme Court or the
General Assembly to reconsider this issue[,]” noting that “permitting such review
furthers the stated purposes of our juvenile code.” Id. at 117-19, 644 S.E.2d at 24-25.
Thereafter, our Supreme Court adopted Rule 3.1(d) of the North Carolina Rules of
Appellate Procedure, which states:
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
2
IN RE: L.E.M.
ARROWOOD, J., concurring in result only
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 id. Indeed, 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. See, e.g., In re
A.A.S., __ N.C. App. __, __, 812 S.E.2d 875, 879 (2018); In re M.S., 247 N.C. App. 89,
94, 785 S.E.2d 590, 594 (2016); In re D.M.G., 235 N.C. App. 217, 763 S.E.2d 339, 2014
WL 3511008 at *1, slip op. at *3 (2014) (unpublished); In re D.M.H., 234 N.C. App.
477, 762 S.E.2d 531, 2014 WL 2795916 at *1, slip op. at *2 (2014) (unpublished); In
re O.M.B., 204 N.C. App. 369, 696 S.E.2d 201, 2010 WL 2163793 at *1, slip op. at *3
(2010) (unpublished); In re R.A.M., 228 N.C. App. 568, 749 S.E.2d 110, 2013 WL
4005847 at *1-2, slip op. at *3-6 (2013) (unpublished); In re P.R.B., Jr., III, 204 N.C.
App. 595, 696 S.E.2d 925, 2010 WL 2367236 at *5, slip op. at *10-11 (2010)
(unpublished); In re S.N.W., 207 N.C. App. 377, 699 S.E.2d 685, 2010 WL 3860906 at
*1-2, slip op. at *3-5 (2010) (unpublished).
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 a respondent’s appellate counsel files a no-merit brief that complied
3
IN RE: L.E.M.
ARROWOOD, J., concurring in result only
with Rule 3.1(d) and respondent fails to “exercise her right under Rule 3.1(d) to file a
pro se brief.” Id. at __, 814 S.E.2d at 928-29, slip op. at *2. To support its decision,
the In re L.V. court cites Judge Dillon’s recent concurrence in State v. Velasquez-
Cardenas, __ N.C. App. __, 815 S.E.2d 9 (2018) (Dillon, J., concurring): “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.” Velasquez-Cardenas, __ N.C. App. at __, 815 S.E.2d at
20 (italics in original). I note that a concurring opinion is not binding on our Court,
and also that the cited quotation was dicta, and therefore not controlling authority.
See Trustees of Rowan Tech. College v. J. Hyatt Hammond Assocs., 313 N.C. 230, 242,
328 S.E.2d 274, 281 (1985) (“Language in an opinion not necessary to the decision is
obiter dictum and later decisions are not bound thereby.”) (citations omitted). The In
re L.V. court did not address our Court’s previous case law, which consistently
conducted an Anders review of the record when appellate counsel complies with Rule
3.1(d), even if the appellant does not 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, 127 N.C. App.
191, 192, 487 S.E.2d 823, 824 (1997) (“A parent’s interest in the accuracy and justice
4
IN RE: L.E.M.
ARROWOOD, J., concurring in result only
of the decision to terminate his or her parental rights is a commanding one.”)
(citation, quotation marks, and alteration omitted). Therefore, I believe In re L.V. is
an anomaly in our case law that must be corrected to ensure that the fundamental
right to a parental relationship is not terminated other than as permitted by law.
However, I concur in the result only because In re Civil Penalty requires me to follow
the divergent path that the Court has taken. In re Civil Penalty, 324 N.C. at 384, 379
S.E.2d at 37.
5
No. COA18-380 – In the Matter of: L.E.M.
McGEE, Chief Judge, dissenting.
I respectfully dissent from the majority opinion’s holding that this Court,
pursuant to In re L.V., __ N.C. App. __, 814 S.E.2d 928 (2018), must dismiss
Respondent’s Rule 3.1(d) appeal. I agree with the analysis of the concurring opinion,
and adopt that analysis, excepting its ultimate conclusion that we are bound by In re
L.V., and must therefore dismiss Respondent’s appeal. I agree with the concurring
opinion that In re L.V. was not correctly decided. As noted by both the majority and
concurring opinions, we would normally be bound by In re L.V.; however, I believe
the holding in In re L.V. is contrary to settled law from prior opinions of this Court.
Therefore, this Court in In re L.V. was without the authority to “overrule” the prior
opinions of this Court, and those prior opinions remain controlling in the present
matter.
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
IN RE: L.E.M.
McGEE, C.J., dissenting
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) (emphasis added).
In 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
6 “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.”
7 “‘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
2
IN RE: L.E.M.
McGEE, C.J., dissenting
In re L.V., __ N.C. App. at __, 814 S.E.2d at 928-29 (footnotes in original).8
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 2018.9 Rule 3.1(d)
requires a respondent’s counsel who appeals pursuant to Rule 3.1(d) to file an
appellate brief, which must include issues identified by counsel “that might arguably
support the appeal and [counsel] shall state [in the no-merit brief] why those issues
lack merit or would not alter the ultimate result.” N.C. R. App. P. 3.1(d). Though not
explicitly stated in Rule 3.1(d), it seems clear that the purpose in allowing attorneys
to file no-merit briefs is to allow a respondent’s counsel to request review by this
Court of the respondent’s record for potential error even though counsel has not been
able to identify any error counsel believes warrants relief on appeal. Pursuant to the
reasoning implicit in In re L.V., the actual no-merit brief required to be filed by a
respondent’s counsel is itself unreviewable – i.e. appellate counsel’s request to this
Court to conduct the review as argued in the no-merit brief does not constitute an
on appeal.’ State v. Velasquez-Cardenas, ___N.C. App. ___, ___, 815 S.E.2d 9, 20 (2018) (Dillon, J.,
concurring).”
8 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.
9 Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967).
3
IN RE: L.E.M.
McGEE, C.J., dissenting
issue preserved for appellate review. This Court considered the same reasoning in
Velasquez-Cardenas, where we rejected the dicta now relied upon in In re L.V.:
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 __, 815 S.E.2d at 18 (some emphasis added); see
also State v. Chance, 347 N.C. 566, 568, 495 S.E.2d 355, 356 (1998) (Finding “no error”
because “[i]n accordance with our duty under Anders, we have examined the record
and the transcript of the trial. From this examination, we find the appeal to be wholly
frivolous.”). Because the defendant in Velasquez-Cardenas did not have any
constitutional right to Anders review, the question of whether an Anders-type brief
preserved any issues for appellate review had to be decided. This Court rejected the
reasoning of the concurring opinion, and held that the brief requesting Anders-type
review did present appropriate issues for appellate review, Rule 28(b)(6)
notwithstanding. Id. In Velasquez-Cardenas we also factored into our analysis that
this Court had a long, uninterrupted history of conducting full Anders-type review
from denials of motions requesting post-conviction DNA testing, and our authority to
conduct that review had never before been questioned. Id. at __, 815 S.E.2d at 11–
12. In part of the analysis, this Court also recognized that review pursuant to Rule
4
IN RE: L.E.M.
McGEE, C.J., dissenting
3.1(d) was an Anders-type review: “Our Supreme Court added a provision to our Rules
of Appellate Procedure, effective for all cases appealed after 1 October 2009, allowing
an Anders-like procedure for appeals taken pursuant to N.C. Gen. Stat. § 7B-1001,
including from TPR orders. N.C. R. App. P. 3.1(d).” Id. at __, 815 S.E.2d at 16.
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.10 Nothing prior to the adoption of Rule 3.1(d) prevented
a respondent from filing a pro se appeal. Therefore, assuming the holding in In re
L.V. to be correct, I do not see how the adoption of Rule 3.1(d) has materially
benefitted respondents, or expanded the scope of appellate review, in any manner.11
The majority opinion in this case holds, based upon In re Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (citations omitted) (“[w]here 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”), that we are bound by In re L.V. The concurring opinion agrees. I
agree that In re Civil Penalty controls the outcome, but would reach a different result.
In In re Civil Penalty, our Supreme Court reasoned and held as follows:
This Court has held that one panel of the Court of Appeals
may not overrule the decision of another panel on the same
10 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.
11 Respondents perhaps receive some benefit by their attorney’s work in compiling and filing
the record, and by performing some other ministerial actions.
5
IN RE: L.E.M.
McGEE, C.J., dissenting
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, 379 S.E.2d at 36–37 (citations omitted) (emphasis added).12 As this Court
held in a recent opinion affirming the termination of a father’s parental rights: “To
the extent that J.C. is in conflict with prior holdings of this Court, . . . we are bound
by the prior holdings.” In re O.D.S., __ N.C. App. __, __, 786 S.E.2d 410, 417, disc.
review denied, 369 N.C. 43, 792 S.E.2d 504 (2016). “[P]recisely because of In re Civil
Penalty, when there are conflicting lines of opinions from this Court, we generally
look to our earliest relevant opinion in order to resolve the conflict.” State v.
Meadows, __ N.C. App. __, __, 806 S.E.2d 682, 693 (2017), disc. review allowed, __
N.C. __, 812 S.E.2d 847 (2018).; see also State v. Jones, 358 N.C. 473, 487, 598 S.E.2d
12The 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.
6
IN RE: L.E.M.
McGEE, C.J., dissenting
125, 134 (2004); State v. Alonzo, __ N.C. App. __, __, __ S.E.2d __, __, 2018 WL
3977546, *2 (2018) (this Court is bound to follow an earlier decision of this Court, not
a later decision that is in conflict with the earlier decision); Boyd v. Robeson Cty., 169
N.C. App. 460, 470 and 477, 621 S.E.2d 1, 7 and 12 (2005) (citation omitted) (certain
of this Court’s “decisions . . . effectively overrule [a prior decision of this Court]. It is,
however, axiomatic that an appellate panel may not interpret North Carolina law in
a manner that overrules a decision reached by another panel in an earlier opinion.”
Therefore, we held that the later opinion was without precedential effect.).
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 __, 786 S.E.2d at 417. Since the enactment of Rule
3.1(d), I have been able to locate seventy-six opinions, published and unpublished,
filed prior to In re L.V., in which one or both respondent-parents’ counsel have sought
review pursuant to the no-merit provisions of Rule 3.1(d). One of those opinions was
dismissed because no proper notice of appeal was filed. In re D.L.M., 208 N.C. App.
281, 702 S.E.2d 555, 2010 WL 5135556, *2–3 (2010) (unpublished). Of the remaining
seventy-five opinions involving no-merit appeals, unsurprisingly, only three are
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IN RE: L.E.M.
McGEE, C.J., dissenting
published.13 In re A.A.S., __ N.C. App. __, __, 812 S.E.2d 875, 879 (2018); In re
M.J.S.M., __ N.C. App. __, __, 810 S.E.2d 370, 374–75 (2018); and In re M.S., 247 N.C.
App. 89, 94, 785 S.E.2d 590, 593–94 (2016).
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.
__, 803 S.E.2d 665 (2017) (unpublished) (“Respondent-mother filed pro se arguments
with this Court challenging the trial court’s decision to terminate her rights. Her pro
se brief, however, contains no ‘citations of the authorities upon which the appellant
relies,’ N.C. R. App. P. 28(b)(6), and provides no basis to disturb the trial court’s
orders.”). Nonetheless, this Court in In re A.L.W. still conducted the full Rule 3.1(d)
Anders-type review based upon the respondent’s attorney’s no-merit brief. Id. In the
remaining seventy-four opinions, this Court conducted a full Anders-type no-merit
review pursuant to Rule 3.1(d) even though none of the respondents in those appeals
filed pro se briefs to accompany their attorneys’ no-merit briefs.14 I cannot find any
case prior to In re L.V. in which this Court indicated any necessity that a respondent-
13 By definition, no-merit appeals are likely to be decided without great difficulty, and are
unlikely to include novel issues of law.
14 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.
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IN RE: L.E.M.
McGEE, C.J., dissenting
parent file a pro se brief in order to activate this Court’s jurisdiction or authority to
consider the no-merit brief filed by the respondent’s attorney. Following the filing of
In re L.V., this Court has conducted full Anders-type review, absent any pro se filings
from the respondents, in four out of the five appeals it has decided. Out of eighty
opinions filed by this Court involving no-merit briefs, only two – In re L.V. and In re
A.S., __ N.C. App. __, __ S.E.2d __, 2018 WL 4201062 (2018) (unpublished) – have
declined to conduct the Anders-type review requested in the no-merit briefs filed by
the respondents’ attorneys.
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.15
This duty is not in any manner diminished when this Court decides not to publish an
opinion. This Court impliedly holds that it has the jurisdiction and authority to act
whenever it considers the merits of an appeal. Though this Court may, in certain
circumstances, recognize that is has been acting without authority and correct that
error,16 it may not do so lightly, nor without citation to the earlier precedent that
served to invalidate the later holdings. I believe this Court’s three published opinions
that predate In re L.V. – and which are in complete accord with every one of this
15 Unless it applies an authorized discretionary writ or rule to allow review.
16 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 __, 786 S.E.2d at 417.
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IN RE: L.E.M.
McGEE, C.J., dissenting
Court’s relevant unpublished opinions filed before In re L.V., have thoroughly
established the appropriate requirements of Rule 3.1(d) – including the consequences
of the failure of a respondent to file a pro se brief.
In a published opinion filed on 20 March 2018, this Court conducted the
following review of the respondent-father’s appeal:17
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,
17 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).
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IN RE: L.E.M.
McGEE, C.J., dissenting
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.
In re A.A.S., __ N.C. App. at __, 812 S.E.2d at 879 (citations omitted) (emphasis
added); see also In re M.J.S.M., __ N.C. App. at __, 810 S.E.2d at 374–75; In re M.S.,
247 N.C. App. at 94, 785 S.E.2d at 593–94. I believe this Court’s prior published
opinions – In re A.A.S., In re M.J.S.M. and In re M.S. – constitute controlling
precedent, and mandate that this Court conduct a full Anders-type review whenever
a respondent’s attorney files a no-merit brief and complies with the requirements of
Rule 3.1(d). In re L.V. could not have “overruled” these prior opinions. In re O.D.S.,
__ N.C. App. at __, 786 S.E.2d at 417.
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 to 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.
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IN RE: L.E.M.
McGEE, C.J., dissenting
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.
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