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The Plot Thickens: Differing Opinions on No-Merit Briefs

Back in July, the Court of Appeals issued a published opinion in In re L.V. dismissing an appeal from an order terminating parental rights after the parent’s attorney filed a no-merit brief. The parent filed a motion for en banc rehearing, pursuant to new Appellate Rule 31.1, but the motion was denied. After the rehearing motion was filed, the court did modify the opinion slightly to correct quotation of a previous opinion. However, the court said that the modification “in no way affects [the opinion’s] reasoning or its ruling.”

This was not a one-off decision. In September, the same panel of judges issued an unpublished, per curiam opinion that affirmed the termination of parental rights (rather than dismissing the appeal) and deemed all arguments abandoned due to the filing of a no-merit brief by the parent’s attorney.

But apparently not all judges on the Court of Appeals agree with these decisions. On Tuesday, a different panel of judges issued another published opinion that addresses the issue. Once again, the parent’s appointed appellate attorney filed a no-merit brief. Once again, the parent did not file his own brief. Judge Hunter, writing the principal opinion, followed L.V. and concluded that the appeal was required to be dismissed because no issues were properly argued or presented for appellate review.

Judge Arrowood, concurring in the result only, wrote a separate opinion. He agreed that the court was bound by the published decision in L.V. However, he opined that L.V. “erroneously altered the jurisprudence of cases arising under Rule 3.1 of the North Carolina Rules of Appellate Procedure” and is “inconsistent with the purposes of our juvenile code.”

Chief Judge McGee dissented and opined that L.V. was not binding because it conflicted with previous decisions of the Court of Appeals. According to the dissent, the Court of Appeals “has continually conducted the Anders-type review provided for in Rule 3.1(d).” In fact, the dissent cited 75 appeals in which the court “conducted full Anders-type reviews”—including in three published opinions. According to the dissent, L.V. effectively sought “to overrule the precedent set by the prior opinions of this Court, which it cannot do.”

On Tuesday, the same panel split the same way in a different (published) case that added a new wrinkle: are issues still deemed abandoned when the parent’s attorney files a detailed no-merit brief and the parent then files his own pro se brief? Judge Hunter concluded that the parent “failed to properly bring forth any pro se argument” and, therefore, dismissed the appeal. And once again Judge Arrowood concurred, under protest, with Chief Judge McGee dissenting.

With these two dissenting opinions, there is now a right to appellate review of this issue in the Supreme Court.

Recall, however, that the Supreme Court is facing its own looming deadline regarding the transfer of direct appellate jurisdiction over TPR orders. Will Rule 3.1 no-merit briefs survive? Will the Supreme Court explain its purpose in amending Rule 3.1 to permit no-merit briefs in 2009? Stay tuned for how this drama unfolds.

–Kip Nelson

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