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What Type of Review Is Triggered by a “No-Merit” Brief?

At first blush, it might not seem surprising that the Court of Appeals would dismiss an appeal if “[n]o issues have been argued or preserved for review.” But what is surprising is the fact that the Court reached that conclusion in a published opinion and, in doing so, made a significant change to the jurisprudence of cases arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure (which governs appeals in certain types of cases involving juveniles including terminations of parental rights). In In re L.V., the Court stated in a footnote that “Rule 3.1(d) does not grant indigent parents the right to receive an Anders-type review of the record by our Court.”  That footnote cites a concurring opinion in a criminal case as its authority.

Criminal practitioners are intimately familiar with the concept of an “Anders brief,” which comes from the U.S. Supreme Court’s 1967 decision in Anders v. California. In that case, the Supreme Court held that an attorney representing a criminal defendant can request permission to withdraw from an appeal in which he finds no legal merit, but the request must “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Following such a request, “the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.” Thus, even when appointed counsel is permitted to withdraw, federal appellate courts still engage in their own thorough examinations of the record to ensure that defendants’ rights are protected. See, e.g., United States v. Oliver, 878 F.3d 120 (4th Cir. 2017). Occasionally, the court might even appoint new counsel to address a particular issue. See, e.g., United States v. Lewis, 633 F.3d 262, 267 (4th Cir. 2011).

In 2009, the Supreme Court of North Carolina adopted Rule 3.1(d) of the North Carolina Rules of Appellate Procedure. The Rule provides:

In an appeal taken pursuant to N.C.G.S. § 7B-1001 [regarding certain decisions under the Juvenile Code], 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.

This change in the Rules was significant because the controlling law at the time was that attorneys appealing from an order terminating parental rights did not have a right to file an Anders brief. In re N.B., 183 N.C. App. 114, 117, 644 S.E.2d 22, 24 (2007); In re Harrison, 136 N.C. App. 831, 833, 526 S.E.2d 502, 503 (2000). Based on language in opinions like those, many practitioners assumed that the new Rule 3.1(d) offered the equivalent of an Anders brief in the juvenile setting.

Previous panels of the Court of Appeals also suggested that the judges did conduct some sort of analysis similar to an Anders review when a parent’s attorney filed a no-merit brief. See, e.g., In re E.M.S., No. COA17-1078, 2018 WL 1598626, at *2 (N.C. Ct. App. Apr. 3, 2018) (affirming termination of parental rights “[a]fter careful review of the transcript and record”); In re M.S., 785 S.E.2d 590, 594 (N.C. Ct. App. 2016) (“After reviewing the record on appeal, we are unable to find anything to support an argument for meaningful relief on appeal.”); In re J.K.L., No. COA16-127, 2016 WL 3896153, at *1 (N.C. Ct. App. July 19, 2016) (“Counsel asks this Court to conduct an independent review of the record for possible error. . . . After careful review, we are unable to find any possible prejudicial error by the trial court.”).

In In re L.V., the appealing mother’s attorney “complied with all requirements of Rule 3.1(d),” and the mother did not file her own brief. Rather than affirming the judgment below, however, the Court dismissed the appeal on the basis that no issues were “argued or preserved for review.” The decision appears to be based on a strict reading of Rule 3.1(d), as the plain language of the Rule does not explicitly state that the Court will conduct any type of review upon the filing of a no-merit brief. Notably, though, the previous concurring opinion on which the L.V. Court relied stated that Rule 3.1(d) created “a right to certain Anders-type procedures.”

Given these decisions, is there a space between “full review” and “no review” that may still be appropriate in these cases? After all, Rule 3.1(d) does not allow appellate counsel to file no brief. Instead, counsel must “identify any issues in the record on appeal that might arguably support the appeal and . . . state why those issues lack merit or would not alter the ultimate result.” Should the appellate court review those issues? Or does it lack jurisdiction to do so?

The briefs in In re L.V. are sealed, so we do not know how detailed the “no-merit brief” was in that case. More generally, though, what is the right level of review when a “no-merit brief” is filed in a Rule 3.1 case? Is it “no review,” as suggested in In re L.V.? Is it “full review,” as is the Anders practice in criminal cases? Or is it “some review”—review of at least the issues identified in a brief that complies with Rule 3.1(d)?

It will be fascinating to see how the Supreme Court treats this conundrum next year, when it starts hearing direct appeals of these cases.

Let us know your thoughts in the comments below.

–Kip Nelson

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2 Responses to "What Type of Review Is Triggered by a “No-Merit” Brief?"

  • Mike Spivey
    July 23, 2018 - 5:08 pm Reply

    I represent the appellant-mother in In re L.V. The no-merit brief I filed was 21 pages and discussed three issues. A motion for en banc rehearing has been filed. The Office of Parent Representation moved to be permitted to file an amicus brief. The motion was denied. Appellate Counsel for the appellee guardian ad litem filed a response asking that the court hear the matter en banc. Appellee DSS has not yet filed a response.

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