In re K.B.C., ___ N.C. App. ___ (September 17, 2024)
Held:
Affirmed
- Facts: Father’s parental rights for his three children were terminated. At the TPR hearing, Father called the children’s GAL as a witness. The GAL testified that the GAL visited Father while incarcerated to inform Father that the children’s foster family intended to adopt the children. Father signed a statement written by the GAL stating the children were well cared for by the foster family, remaining with the foster family was in their best interest, and that he had no intention to oppose a court order to achieve their adoption. Father’s counsel was not present during the GAL’s visit with Father nor contacted by the GAL. The signed statement was admitted as evidence without objection. After entry of the TPR orders, Father was not served for fourteen days. Father filed notice of appeal eighteen days after service. Father challenges admission of his signed statement, arguing his rights to counsel and fundamentally fair procedures were violated at the time he signed the statement. Father also filed a petition for writ of certiorari to address defects in his appeal, including designating the appeal to the NC Supreme Court and failing to include the correct statute providing his right to appeal.
- G.S. 7B-1001(b) requires notice of appeal to be made “within 30 days after entry and service of an order in accordance with G.S. 1A-1, Rule 58.” Sl. Op. at 6, quoting G.S. 7B-1001(b) (emphasis added in original). Rule 58 of the Rules of Civil Procedure tolls the time periods within which other parties must act when a party fails to serve a copy of the judgment within three days of entry. The time period is tolled “for the duration of any period of noncompliance with this service requirement.” N.C. R. Civ. P. 58. Father timely filed his notice of appeal. Father was served fourteen days after entry of the TPR order at which time the thirty-day period under G.S. 7B-1001(b) began, and filed his appeal within thirty days from the date of service.
- “[A] defendant’s failure to designate [the court of appeals] in a notice of appeal does not warrant dismissal of the appeal where [the court of appeals] is the only court possessing jurisdiction to hear the matter and the [opposing party] has not suggested that it was misled by the defendant’s flawed notice of appeals.” Sl. Op. at 6-7 (citations omitted). The court of appeals has heard appeals despite a party’s failure to include the correct statute providing their right to appeal. Father’s defects in his notice of appeal are non-jurisdictional. The court determined it had jurisdiction to hear Father’s appeal and dismissed Father’s PWC.
- “A party is not entitled to seek relief on appeal from a trial court action the party invited.” Sl. Op. at 8 (citation omitted). Father called the GAL to testify and elicited testimony showing that Father signed a statement that he would not oppose an order allowing for the children’s adoption. Father is not entitled to relief on appeal, even if it the evidence was admitted in error, as Father invited the error.
- Appellate Rule 10(a)(1) provides that “a party must have presented the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make . . .[and] obtain a ruling upon the party’s request, objection, or motion.” Father failed to preserve his argument regarding the GAL’s testimony or the signed statement for appellate review. The transcript shows Father did not make an objection, motion, or request at the hearing as to the GAL’s testimony or the admission of the signed statement.
Category:
Termination of Parental RightsStage:
AppealTopic: