Summary
holding that Rule 3.1's predecessor, Rule 3A, was "jurisdictional, and if not complied with, the appeal must be dismissed."
Summary of this case from In re C.M.A.Opinion
No. COA07-549.
Filed 4 December 2007.
Appeal and Error — notice of appeal — signed by guardian ad litem instead of parents — lack of jurisdiction
Respondent parents' appeal from the termination of their parental rights is dismissed based on an insufficient notice of appeal signed by trial counsel and the guardian ad litem (GAL) for each respondent, because: (1) the GAL's role is limited to one of assistance and not one of substitution to undertake acts of legal import; (2) the General Assembly could have stated the GAL was authorized to enter consent orders, accept service of process, file pleadings, or otherwise act on a parent's behalf, but it did not; (3) although it is appropriate for the GAL to assure that the notice of appeal, or other pleading or legal document, is filed properly with the parents' signatures as required by N.C. R. App. P. 3A(a), it is not appropriate for the GAL to sign the notice of appeal in place of the parents; (4) nowhere in N.C.G.S. § 7B-1002 is a parent's GAL designated as a proper party who may give written notice of appeal under N.C.G.S. § 7B-1001; and (5) Appellate Rules 3, 3A, and 4 all concern how and when appeals are to be taken, and the appeal must be dismissed if those Rules are not complied with based on lack of jurisdiction.
Judge STEELMAN dissenting.
Appeal by respondents from judgment entered 2 February 2007 by Judge Marvin P. Pope, Jr. in Buncombe County District Court. Heard in the Court of Appeals 4 September 2007.
Matthew J. Middleton, for Buncombe County Department of Social Services, petitioner-appellee. Jerry W. Miller, for guardian ad litem. Richard E. Jester, for mother, respondent-appellant. Hartsell Williams, P.A. by Christy E. Wilhelm, for father, respondent-appellant.
Opal and Ellis B. ("respondents") appeal the termination of their parental rights to their son, L.B., on 2 February 2007. For the reasons stated below, we dismiss the appeal.
On 13 February 2002, the Buncombe County Department of Social Services ("DSS") received a report concerning respondents' first child. Social workers visited respondents' home and found that it was inadequately maintained. The infant was in a drawer on the floor of a cold room, lying in his own urine. Respondent mother could not recall the last time the baby's diaper had been changed. She stated that he had last been fed six hours earlier. The social workers returned to the home the next day and found the doors and windows of the home open. Respondent mother could not remember the last time the baby's diaper had been changed or when he had last been fed. Respondents did not have a facility for bathing the child. The child was adjudicated a neglected child on 7 June 2002.
Respondents underwent psychological evaluations on 26 September 2002. Respondent mother's evaluation indicated she would be unlikely to "effectively raise a child without ongoing external supports present in the home." She was "prone to becoming cognitively confused, socially isolated, and potentially neglectful due to her limitations." Respondent father's evaluation indicated that he was "psychologically disconnected from the needs and feelings of others" and that during the evaluation "there was no expression of affection for his child or concerns for his needs." It concluded that given his psychological makeup, cognitive delays, and past history, there was a high risk of abuse and neglect as a parent, should he be allowed around the child.
Respondent father has an extensive criminal history dating back to 1972. He pled guilty in 1979 to raping a child under the age of twelve. He also has convictions in 1999 of assault on a female and assault on a child under the age of twelve. He violated a domestic violence protective order in 2000.
Respondents' parental rights as to their first child were terminated on 8 October 2003, upon findings that they had neglected the child and willfully left the child in foster care for more than twelve months. Respondents never appealed that order.
DSS obtained non-secure custody of L.B. on 27 October 2005, one day after birth, after receiving a report that respondents were having trouble caring for the infant. Respondents underwent new psychological evaluations on 28 April 2006, which disclosed that little had changed since the 2002 evaluations.
L.B. has special medical needs. He has acid reflux, which impacts his ability to swallow food. He also has poorly developed muscle tone and asthma. L.B. takes several medications that must be administered in precise amounts and at specific times throughout the day. The complexity of the medical care required for L.B. mandates that any person who cares for him must be attentive and able to understand the actions that must be taken to provide adequate care for him.
On 15 August 2006, DSS filed a petition to terminate respondents' parental rights as to L.B. A hearing was held on 6 and 7 December 2006. The trial court concluded that grounds existed to terminate respondents' parental rights in that (1) pursuant to North Carolina General Statutes, section 7B-1111(a)(6) they were incapable of providing the proper care and supervision of the child such that the child was dependent and there was a reasonable probability that such incapability would continue for the foreseeable future; and (2) pursuant to North Carolina General Statutes, section 7B-1111(a)(9) their parental rights to another child had been involuntarily terminated on 8 October 2003, and because of their significant cognitive and intellectual limitations they were unable to provide a safe home for L.B. Additionally, the court concluded that grounds existed to terminate respondent father's parental rights pursuant to North Carolina General Statutes, section 7B-1111(a)(1), in that he had neglected L.B. both before and after he came into DSS custody. The court concluded that termination of respondents' parental rights was in L.B.'s best interests, and ordered respondents' parental rights terminated on 2 February 2007. Both parents appeal.
We first address a motion to dismiss the appeal which is pending before this Court. DSS argues that respondents' notices of appeal are not signed by respondents as required by Appellate Rule 3A(a). This rule governs appeals in juvenile cases and provides that "both the trial counsel and appellant must sign the notice of appeal[.]" N.C. R. App. P. 3A(a) (2007). The notices of appeal in the instant case were signed by trial counsel and the guardian ad litem ("GAL") for each respondent (appellant). The question we must decide is whether the signature of an appellant's GAL is a sufficient signature by the "appellant" as required by Rule 3A(a). We hold that it is not.
Respondents' GALs were appointed pursuant to North Carolina General Statutes, section 7B-1101.1, which permits the appointment of a GAL when a parent is suspected of having diminished capacity. See N.C. Gen. Stat. § 7B-1101.1 (2005). Chapter 35A of the North Carolina General Statutes also governs the appointment of guardians. Pursuant to Chapter 35A, a guardian shall be appointed for a party who has been adjudicated mentally incompetent. See N.C. Gen. Stat. § 35A-1120 (2005).
A GAL appointed pursuant to section 7B-1101.1 does not possess the same authority as a guardian appointed pursuant to Chapter 35A. "The essential purpose of guardianship [appointed pursuant to Chapter 35A] for an incompetent person is to replace the individual's authority to make decisions with the authority of a guardian when the individual does not have adequate capacity to make such decisions. N.C. Gen. Stat. § 35A-1201(a)(3) (2005) (emphasis added). In contrast, a GAL's authority is more limited. Pursuant to North Carolina General Statutes, section 7B-1101.1(e), a GAL "may engage in all of the following practices:" (1) helping the parent to enter consent orders, as opposed to entering consent orders on behalf of the parent; (2) facilitating service of process on the parent, as opposed to accepting service of process on behalf of the parent; (3) assuring that necessary pleadings are filed, as opposed to filing pleadings on behalf of the parent; and (4) assisting the parent, as opposed to acting on the parent's behalf, to ensure that the parent's procedural due process requirements are met. See N.C. Gen. Stat. § 7B-1101.1(e) (2005).
The dissent misconstrues our reading of section 7B-1101.1(e). We do not imply that a GAL's actions are limited to those enumerated in the statute. We acknowledge that prior to the enactment of section 7B-1101.1, a GAL's role in termination cases was unclear. See In re Shepard, 162 N.C. App. 215, 227, 591 S.E.2d 1, 9 (2004) ("North Carolina case law offers little guidance as to . . . any specific duties of a GAL assigned to a parent-ward in a termination proceeding."). This statute serves to clarify the GAL's role in these proceedings. However, the language of the General Assembly is clear that the GAL's role is limited to one of assistance, not one of substitution. The General Assembly could have stated that the GAL was authorized to enter consent orders, accept service of process, file pleadings, or otherwise act on a parent's behalf, but it did not.
In addition, the General Assembly amended the statutes regarding the appointment of GALs in termination proceedings effective 1 October 2005. With those revisions, there no longer is a requirement that parents be adjudicated incompetent pursuant to Chapter 35A in order to have a GAL appointed.
Pursuant to former section 7B-1101, when the termination petition was based on section 7B-1111(6), alleging the parent was incapable of caring for the child, and the incapability was the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or another similar cause or condition, the trial court was required to appoint a GAL in accordance with Rule 17 of the North Carolina Rules of Civil Procedure to represent the parent. See N.C. Gen. Stat. §§ 7B-1101, 7B-1111(6) (2004). "Chapter 35A of the general statutes sets forth the procedure for determining incompetency, which the trial judge must comply with when conducting a competency hearing under Rule 17." In re J.A.A. S.A.A., 175 N.C. App. 66, 73, 623 S.E.2d 45, 49 (2005).
In its 2005 revisions to Chapter 7B, the General Assembly retained the requirement that the appointment of a GAL be in accordance with Rule 17 only when the parent is under the age of eighteen years. See N.C. Gen. Stat. § 7B-1101.1(b) (2005). Pursuant to the current section 7B-1101.1, the court may appoint a GAL to represent a parent having only a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. See N.C. Gen. Stat. § 7B-1101.1(c) (2005). This threshold is significantly lower than that required for appointment of a guardian pursuant to the requirements of Chapter 35A.
A proceeding to declare an individual incompetent and appoint a guardian pursuant to Chapter 35A is much more complex. The party seeking appointment of a guardian and the party for whom the guardian is sought both are entitled to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross-examine witnesses in regard to the party's competence. N.C. Gen. Stat. § 35A-1112(b) (2005). The party for whom the guardian is sought is entitled to be represented by counsel of his own choice or by an appointed GAL. N.C. Gen. Stat. § 35A-1107(a) (2005). Should a GAL be appointed pursuant to North Carolina General Statutes, section 35A-1107(a), the GAL "shall make every reasonable effort to determine the respondent's wishes regarding the incompetency proceeding and any proposed guardianship." N.C. Gen. Stat. § 35A-1107(b) (2005) (emphasis added). The party for whom the guardian is sought is entitled to a trial by jury. N.C. Gen. Stat. § 35A-1110 (2005). He may appeal to the superior court for a hearing de novo. N.C. Gen. Stat. § 35A-1115 (2005).
There is no evidence that the General Assembly intended the GAL — as it did the guardian — to exercise legal rights in lieu of the respondent parents as the dissent attempts to argue. Rather, the language of section 7B-1101.1 plainly indicates the role of the GAL is to assist the parents rather than replace their authority to undertake acts of legal import themselves. See In re Shepard, 162 N.C. App. at 227, 591 S.E.2d at 9 (the role of the GAL is to "assist in explaining and executing" the parent's rights). Therefore, although it is appropriate for the GAL to assure that the notice of appeal — or other pleading or legal document — is filed properly with the parents' signatures as required by North Carolina Rules of Appellate Procedure 3A(a), it is not appropriate for the GAL to sign the notice of appeal in place of the parents.
Furthermore, pursuant to North Carolina General Statutes, section 7B-1001(b), written notice of appeal is to be given "by a proper party as defined in G.S. 7B-1002." N.C. Gen. Stat. § 7B-1001(b) (2005). Such proper parties are (1) a juvenile who is acting through his GAL; (2) a juvenile without a GAL, in which case "the court shall appoint [one] pursuant to G.S. 1A-1, Rule 17 "; (3) DSS; (4) "a parent, a guardian appointed under G.S. 7B-600 [for a juvenile] or Chapter 35A of the General Statutes [for a parent], or a custodian as defined in G.S. 7B-101 who is a nonprevailing party"; and (5) any party who was unsuccessful in obtaining a termination of parental rights. N.C. Gen. Stat. § 7B-1002 (2005). Nowhere in section 7B-1002 is a parent's GAL designated as a "proper party" who may give written notice of appeal pursuant to section 7B-1001.
In Stockton v. Estate of Thompson, 165 N.C. App. 899, 600 S.E.2d 13 (2004), this Court held that a GAL appointed for decedent's two legitimated children had no statutory authority to intervene in a paternity proceeding initiated by the mother of decedent's illegitimate child. Id. at 902, 600 S.E.2d at 16 ("We conclude that the General Assembly, in explicitly listing who may be a party to a paternity proceeding . . ., did not intend for others not set forth in the statute to intervene in such a paternity proceeding. To hold otherwise, would render ineffective the [statute's] clear and unambiguous meaning.") Similarly, by explicitly listing who may give written notice of appeal in Chapter 7B cases, the General Assembly did not intend for those not listed to have the right to perfect an appeal.
Appellate Rule 3A became effective 1 May 2006 and applies to all cases appealed on or after that date. Therefore we are faced with a case of first impression interpreting this new requirement. However, "[a]ppellate Rule 3 [governing notice of appeal for civil cases] is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed." Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, disc. rev. denied, 327 N.C. 633, 399 S.E.2d 326 (1990) (citing Giannitrapani v. Duke University, 30 N.C. App. 667, 670, 228 S.E.2d 46, 48 (1976)). Similarly, "when a [criminal] defendant has not properly given notice of appeal [pursuant to Rule 4 governing notice of appeal for criminal cases], this Court is without jurisdiction to hear the appeal." State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (2005) (citing State v. McMillian, 101 N.C. App. 425, 427, 399 S.E.2d 410, 411, disc. rev. denied, 328 N.C. 335, 402 S.E.2d 842 (1991)). Because Appellate Rules 3, 3A, and 4 all concern how and when appeals are to be taken, Rule 3A is similarly jurisdictional, and if not complied with, the appeal must be dismissed.
Because we hold that a GAL's signature on the notice of appeal is not sufficient to grant this Court jurisdiction, we cannot address the merits of the appeal. Accordingly, we dismiss the matter.
DISMISSED.
Judge STEELMAN dissents in a separate opinion.
Judge STROUD concurs.