In re Z.A.N.L.W.C., ___ N.C. App. ___ (February 5, 2025)
Held:
Dismissed
- Facts: This case involves an appeal of a TPR arising from an underlying juvenile case where Mother was appointed a Rule 17 GAL. Mother’s trial counsel and Rule 17 GAL filed a notice of appeal, on behalf of Mother, of the order terminating her parental rights as to her four children. Mother was served with the TPR petition but did not file an answer or appear at the hearing. At the hearing, Mother’s counsel moved to continue the hearing due to not having had any contact with Mother for some time; the motion was denied and ultimately the court entered the TPR order. Mother’s counsel and Rule 17 GAL signed the notice of appeal, but Mother did not.
- Counsel’s brief does not address Mother’s failure to sign the notice; however, matters of jurisdiction “may be raised at any time, even for the first time on appeal or by a court sua sponte.” Sl. Op. at 3 (citations omitted).
- G.S. 7B-1001(c) requires notice of appeal of an order terminating parental rights to be signed by both the appealing party and counsel, if any. Proper parties for appeal include “a parent, a guardian appointed under G.S. 7B-600 or Chapter 35 of the General Statutes, or a custodian . . . who is a nonprevailing party.” G.S. 7B-1002. There is no reference to a GAL for the parent. Although the GAL statute has since been amended, appellate precedent has held that a GAL is not a proper party who may give notice of appeal and also cannot sign a notice of appeal in the place of the parent. The appellate rules governing notice of appeal, Rules 3 and 3A, are jurisdictional. Appeals that fail to comply with Appellate Rules 3 and 3A are insufficient to grant the court jurisdiction to hear the appeal and must be dismissed.
- Author’s Note: This author believes the opinion meant to cite Appellate Rules 3 and 3.1 (3.1 replaced 3A).
- Appellate precedent has found a notice of appeal without father’s signature sufficient to grant the court jurisdiction where father’s counsel attached a letter from father indicating his wish to appeal the TPR order at issue, resulting in “substantial compliance with the signature requirement delineated in N.C.G.S. 7B-1001(c) and N.C.R. App. P. 3.1(b)[.]” Sl. Op. at 7, quoting In re J.L.F., 378 N.C. 445, 448, n.4 (2021). In this case, there was no indication Mother wanted to appeal attached to the notice of appeal.
- Mother’s failure to sign the notice of appeal is a jurisdictional defect requiring dismissal of the appeal. The record indicates Mother was appointed a GAL but the order was not included in the appellate record, so an explanation as to why the GAL was appointed is unknown. The record shows Mother had cognitive limitations and mental health and substance use issues but had not been adjudicated incompetent under G.S. Chapter 35A. The trial court found Mother has the ability to make reasonable progress. The information in the record indicates Mother was not incompetent and her Rule 17 GAL is not a proper party for the appeal. Mother was required to sign the notice.
Category:
Termination of Parental RightsStage:
AppealTopic: