Opinion
No. COA10-1040
Filed 15 March 2011 This case not for publication
Appeal by respondent-father from orders entered 20 May 2010 by Judge J. Henry Banks in District Court, Vance County. Heard in the Court of Appeals 16 February 2011.
No brief for petitioner-appellee Vance County Department of Social Services. Robin E. Strickland for respondent-appellant father. Williams Mullen, by John D. Burns and Ada K. Wilson, for the guardian ad litem.
Vance County No. 09 JA 27.
Respondent-father appeals from orders adjudicating his minor child, C.C.S. ("Carl"), to be a neglected juvenile. Because respondent-father did not properly file notice of appeal from the adjudication and disposition orders and did not make a petition for writ of certiorari, we must dismiss his appeal.
We will refer to the minor child C.C.S. by the pseudonym Carl to protect the child's identity and for ease of reading.
The juvenile's mother is not a party to this appeal.
On 4 March 2009, the Franklin County Department of Social Services ("FC DSS") filed a juvenile petition in Franklin County District Court, alleging that Carl was a neglected juvenile because he did not receive proper care, supervision, or discipline from his parents. In the petition, FC DSS alleged that Carl was born prematurely, tested positive at birth for methadone, and then received treatment for methadone withdrawal. FC DSS further alleged that both respondent-father and the juvenile's mother had a history of involvement with Child Protective Services in Vance County and both failed to comply with their prior out-of-home family services agreement, which included treatment for substance abuse and mental health issues. FC DSS obtained non-secure custody of Carl that same day.
FC DSS filed a motion for change of venue on 10 March 2010. FC DSS argued that Vance County was the most convenient venue for this matter because there was a pending juvenile case in Vance County in which the Vance County Department of Social Services ("VC DSS") had custody of Carl's older sibling and had been working with respondent-father and the juvenile's mother for over a year. By order entered 12 March 2010, District Court, Franklin County ordered the juvenile case transferred to Vance County.
Following hearings on 4 December 2009 and 3 March 2010, District Court, Vance County entered separate adjudication and disposition orders on 20 May 2010. In the adjudication order, the trial court found Carl to be a neglected juvenile as defined by N.C. Gen. Stat. § 7B-101(15), due in part to the mother's addiction to methadone and her intention to breast-feed the juvenile against medical advice. The trial court further found that VC DSS had attempted to develop an in-home services plan with the family, but respondent-father and the mother had not signed the plan and had not participated in any offered treatment. The trial court continued custody of Carl with VC DSS and set the plan for the juvenile as reunification with his parents. In the disposition order, the trial court ordered respondent-father to show that he was financially able to care for Carl and ordered the mother to: (1) immediately arrange for outpatient substance abuse therapy and follow all recommendations thereof; (2) submit to random drug screens at the request of VC DSS; (3) obtain a valid driver's license; (4) provide proof that she is financially able to care for Carl; and (5) sign any and all releases needed by VC DSS. Respondent-father filed notice of appeal from both the adjudication and disposition orders on 21 June 2010 and filed an amended notice of appeal on 8 July 2010. Because these notices of appeal are insufficient to preserve respondent-father's right to appeal from the orders at issue, we must dismiss his appeal.
We have noted that "[o]ur Appellate Rules are mandatory, and failure to comply with them subjects an appeal to dismissal." McQuillin v. Perez, 189 N.C. App. 394, 397, 657 S.E.2d 924, 927 (2008) (citation omitted). While not every rules violation requires dismissal of the appeal, "[a] jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal." Dogwood Dev. Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 365 (2008). According to N.C. Gen. Stat. § 7B-1001(b) (2009) "notice of appeal shall be given in writing . . . within 30 days after entry and service of the order. . . .". Rule 3.1 of the North Carolina Rules of Appellate Procedure governs the taking of an appeal from orders entered in cases involving termination of parental rights and issues of juvenile dependency, abuse or neglect. Rule 3.1 provides in relevant part:
Any party entitled by law to appeal from a trial court judgment or order rendered in a case involving termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect, appealable pursuant to N.C.G.S. § 7B-1001, may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties in the time and manner set out in Chapter 7B of the [G]eneral Statutes of North Carolina. Trial counsel or an appellant not represented by counsel shall be responsible for filing and serving the notice of appeal in the time and manner required. If the appellant is represented by counsel, both the trial counsel and appellant must sign the notice of appeal, and the appellant shall cooperate with counsel throughout the appeal.
N.C.R. App. P. 3.1(a). N.C. Gen. Stat. § 7B-1001(a)(3) states that "appeal of a final order of the court in a juvenile matter shall be made directly to the Court of Appeals. Only the following juvenile matters may be appealed: . . . (3) Any initial order of disposition and the adjudication order upon which it is based." North Carolina Rule of Appellate Procedure 3.1 is "jurisdictional, and if not complied with, the appeal must be dismissed." In re L.B., 187 N.C. App. 326, 332, 653 S.E.2d 240, 244 (2007), aff'd per curiam, 362 N.C. 507, 666 S.E.2d 751 (2008).
In the present case, the "initial" adjudication and disposition orders were filed and served on 20 May 2010. See N.C. Gen. Stat. § 7B-1001(a)(3). Respondent-father filed his first notice of appeal on 21 June 2010. Although timely filed, respondent-father did not sign his first notice of appeal. Accordingly, the 21 June 2010 notice of appeal does not comply with N.C.R. App. P. 3.1 and failed to confer jurisdiction on this Court over respondent-father's appeal. See L.B., 187 N.C. App. at 332, 653 S.E.2d at 244. Respondent-father filed an amended notice of appeal on 8 July 2010. This second notice of appeal includes respondent-father's signature and thus complied with the signature mandate of Rule 3.1. However, respondent-father filed his second notice of appeal 49 days after entry and service of the adjudication and disposition orders at issue, in violation of N.C. Gen. Stat. § 7B-1001(b). Respondent-father's second notice of appeal is thus untimely, and we must dismiss his appeal. See In re I.T.P-L., 194 N.C. App. 453, 459, 670 S.E.2d 282, 285 (2008) ("It is well established that `[f]ailure to give timely notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed.'" (quoting In re A.L., 166 N.C. App. 276, 277, 601 S.E.2d 538, 538 (2004)), disc. review denied, 363 N.C. 581, 681 S.E.2d 783 (2009). In I.T.P-L., this Court granted review of a respondents' appeal, even though the respondents failed to properly file notice of appeal, by exercising the Court's discretion "pursuant to N.C.R. App. P. 21(a)(1) and allow[ing] Respondents' petitions for writ of certiorari to permit consideration of their appeals on the merits so as to avoid penalizing Respondents for their attorneys' errors." 194 N.C. App. at 460, 670 S.E.2d at 285. However, as respondent-father did not petition for writ of certiorari, we decline to exercise our discretion pursuant to N.C.R. App. P. 21(a)(1) and, accordingly, dismiss respondent-father's appeal.
DISMISSED.
Judges HUNTER, JR., Robert N. and Judge ERVIN concur.
Report per Rule 30(e).