In re: I.B.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-608

Filed: 20 November 2018

Orange County, No. 16 JT 56

IN THE MATTER OF: I.B.

Appeal by respondent-mother from order entered 22 March 2018 by Judge

Beverly Scarlett in Orange County District Court. Heard in the Court of Appeals 11

October 2018.

Stephenson & Fleming, LLP, by Deana K. Fleming, for petitioner-appellee

Orange County Department of Social Services.

Mary McCullers Reece for respondent-appellant mother.

Doughton Blancato, PLLC, by William A. Blancato, for guardian ad litem.

DIETZ, Judge.

Respondent appeals the trial court’s order terminating her parental rights. Her

court-appointed counsel filed a “no-merit” brief indicating that there are no non-

frivolous issues on appeal. We have conducted an independent review of the record

and agree that any arguments Respondent might advance on appeal are frivolous.

We therefore affirm the trial court’s order.

We could end our analysis here. But because this Court has found itself so

divided over whether we must conduct an independent review in these cases, we take

the time to provide a thorough legal analysis.

IN RE: I.B.

Opinion of the Court

As explained below, the root of this issue is the language in Anders v. State of

California, 386 U.S. 738 (1967). In Anders, the U.S. Supreme Court created a multi-

step process to handle cases in which a criminal defendant has a constitutional right

to counsel, but the defendant’s appointed lawyer concludes that any arguments on

appeal would be frivolous. The final step in that process is the appellate court’s

independent review of the record to confirm the appeal is “wholly frivolous.” Id. at

744.

When our state Supreme Court created an Anders-like process for juvenile

cases (civil cases to which Anders does not apply) through Rule 3.1(d) of the Rules of

Appellate Procedure, the Court adopted most of the steps in the Anders process, often

copying the language of the Anders opinion verbatim. But the Supreme Court did not

include the language concerning counsel’s obligation to withdraw and the court’s

independent review of the record, both of which lie at the heart of the Anders process.

This could have been an oversight. But even if we concluded that it was, this

Court has no authority to insert language into the text of procedural rules because

the Court thinks the authors would have wanted it there. Moreover, as explained

below, there are sound reasons why the Supreme Court might have omitted this

language to broaden indigent litigants’ access to justice, not diminish it. Faced with

this reality, until otherwise instructed by our Supreme Court, we will follow the plain

language of Rule 3.1(d). That language, in conjunction with our existing precedent,

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Opinion of the Court

permits but does not require this Court to conduct an independent review of the

record in these cases.

Facts and Procedural History

When Respondent’s son Ike1 was born, his blood tested positive for illegal

drugs. At a check-up while eighteen months old, healthcare providers discovered that

Ike had gained only slightly more than a pound of weight during the last year. They

diagnosed Ike with failure to thrive, indicating abnormal growth and development.

Respondent later was arrested on drug charges, was diagnosed with several mental

illnesses including bipolar disorder and schizophrenia, and was found to be living in

a relationship involving domestic violence.

Ultimately, the Orange County Department of Social Services petitioned to

terminate Respondent’s parental rights based on neglect and dependency. After a

hearing, the trial court terminated Respondent’s parental rights on both grounds.

Respondent timely appealed.

Respondent’s court-appointed counsel filed a “no-merit” brief indicating that

there were no non-frivolous issues to assert in this appeal. That brief provided an

outline of issues that “might arguably support the appeal” and an explanation of why

those issues were frivolous, as required by Rule 3.1(d) of the Rules of Appellate

Procedure. Counsel provided a copy of the brief to Respondent along with the record

1 We use a pseudonym to protect the identity of the juvenile.

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Opinion of the Court

on appeal and accompanying transcripts, and a letter advising Respondent of her

right to file her own brief and the timeframe for doing so. Respondent did not file a

separate brief.

Analysis

This Court is no one’s lawyer. Our role is to remain impartial, to review the

litigants’ issues on appeal, and to render a judgment on those issues. Thus, ordinarily,

this Court will not comb through the appellate record searching for possible

arguments no one else had thought to raise. Our review is confined to the issues that

the litigants choose to assert on appeal.

But the Sixth and Fourteenth Amendments alter this rule (slightly) in certain

criminal cases. In Anders v. State of California, 386 U.S. 738 (1967), the Supreme

Court established a special procedure to handle cases in which a criminal defendant

has a constitutional right to counsel, but the defendant’s appointed counsel concludes

that any arguments on appeal would be “wholly frivolous.” Id. at 744. When this

occurs, the Anders process begins, and it works as follows:

First, counsel must “advise the court and request permission to withdraw. That

request must, however, be accompanied by a brief referring to anything in the record

that might arguably support the appeal.” Id. Second, “[a] copy of counsel’s brief should

be furnished the indigent and time allowed him to raise any points that he chooses.”

Id. Third, “the court—not counsel—then proceeds, after a full examination of all the

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IN RE: I.B.

Opinion of the Court

proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant

counsel’s request to withdraw and dismiss the appeal.” Id. “On the other hand, if it

finds any of the legal points arguable on their merits (and therefore not frivolous) it

must, prior to decision, afford the indigent the assistance of counsel to argue the

appeal.” Id.

Importantly, the Anders process is designed around counsel’s request to

withdraw. The entire purpose of the Anders brief and the court’s “independent

review” of the record (the Anders opinion doesn’t actually call it that) is to assist the

court “in making the critical determination whether the appeal is indeed so frivolous

that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of

Wisconsin, 486 U.S. 429, 439 (1988).

For this reason, the court’s Anders review does not entail an independent

adjudication of potentially non-frivolous arguments identified during the court’s

review of the record. The independent review under Anders is limited to confirming

that the appeal is “wholly frivolous.” 386 U.S. at 744. If the court agrees that it is—

meaning the court sees no potentially non-frivolous arguments—the court grants

counsel’s motion to withdraw and dismisses the appeal as frivolous. Id. On the other

hand, if the court spots any issues of arguable merit, its independent review ends and

it either rejects counsel’s motion to withdraw or, more typically, grants that motion

but appoints new, substitute counsel and orders counsel to file a brief on the merits.

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IN RE: I.B.

Opinion of the Court

See, e.g., United States v. Estevez Antonio, 311 F. App’x 679, 681 (4th Cir. 2009). The

case then proceeds like any other appeal.

In criminal cases in our State courts, we must follow the Anders procedure

because it arises from the protections guaranteed by the Sixth and Fourteenth

Amendments. But there are other categories of cases in North Carolina where

litigants have a statutory right to counsel but not a constitutional one. A decade ago,

this Court examined whether Anders applies to a case like this one, concerning the

termination of parental rights, where the right to counsel was provided by statute,

not by the state or federal constitution. In re N.B., 183 N.C. App. 114, 117, 644 S.E.2d

22, 24 (2007). We held that Anders did not apply. Id. This meant that “counsel for a

parent appealing an order terminating parental rights did not have a right to file an

Anders brief.” Id. But we “urge[d] our Supreme Court or the General Assembly to

reconsider this issue.” Id.

Our Supreme Court did. The Court amended Rule 3.1 of the North Carolina

Rules of Appellate Procedure to add a section titled “No-Merit Briefs.” N.C. R. App.

P. 3.1(d). That section adopted most of the requirements of Anders, often by copying

verbatim from the language of Justice Clark’s majority opinion in the case. But the

Supreme Court’s amendment to Rule 3.1 left out two prominent parts of the Anders

process: (1) the requirement that counsel move to withdraw; and (2) the court’s

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Opinion of the Court

obligation to review the record and confirm the appeal is wholly frivolous before

granting the motion to withdraw and dismissing the appeal.

Why? When our Supreme Court drafted Rule 3.1(d), Anders had been around

for forty years and its multi-step procedure was well-settled. So why leave out these

two critical steps of the Anders process?

To be sure, it could have been an oversight. But it is also possible that this

omission was intended—that our Supreme Court chose an alternative approach

different from the withdrawal-focused approach in Anders. After all, as the U.S.

Supreme Court has acknowledged, “public defenders making withdrawal decisions

are viewed by indigent prisoners as hostile state actors.” Polk County v. Dodson, 454

U.S. 312, 324 (1981). The Supreme Court emphasized that there is “little justification

for this view,” but it nonetheless exists among many indigent defendants. Id. And

although it may be inaccurate, this view is not irrational—when your lawyer asks the

court for permission to quit, it’s not unreasonable to conclude your lawyer isn’t on

your side anymore.

What our Supreme Court might have intended with Rule 3.1(d) was to avoid

the tension that results when counsel seeks to terminate the attorney-client

relationship when submitting an Anders brief. Rule 3.1(d) provides the following:

No-Merit Briefs. In an appeal taken pursuant to N.C.G.S. § 7B-

1001, 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

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IN RE: I.B.

Opinion of the Court

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.

N.C. R. App. P. 3.1(d).

The rule does not anticipate that counsel will seek to terminate the attorney-

client relationship and, indeed, counsel in these cases do not do so. Instead, Rule

3.1(d) permits the attorney to continue advising the client about the allegations in

the case, the standards of review on appeal, the rules of appellate procedure, and

other legal complexities of an appeal. The attorney’s continued service assures that

the client will be able to file a brief raising the arguments she believes the court

should address (which, because the client is not bound by ethical rules concerning

frivolous arguments, may include issues the lawyer could not assert).

Examining this procedure in light of the Anders process, one can see that it

anticipates a slightly different set of submissions to the Court: (1) a no-merit brief

from counsel, which must “identify any issues in the record on appeal that might

arguably support the appeal”; (2) the client’s pro se principal brief and reply brief,

prepared with access to counsel to assist with procedural and substantive legal

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IN RE: I.B.

Opinion of the Court

questions; and (3) the briefs of the other parties in the appeal. N.C. R. App. P 3.1(d).

With this information in hand, this Court can then adjudicate the appeal as it would

any other—by addressing the issues raised in the briefs and treating issues not raised

as abandoned. N.C. R. App. P. 28(b)(6). Through this process, there is no need for the

Court to conduct an independent review of the record, as would be necessary under

Anders where the Court’s focus is whether to permit counsel to withdraw from the

case.

Is this what the Supreme Court intended? Or did the Court intend to include

the independent review requirement under Anders despite not saying so in the text

of the rule? We have no way to know, and that’s the point. “This Court is an error-

correcting body, not a policy-making or law-making one.” Davis v. Craven County

ABC Board, __ N.C. App. __, __, 814 S.E.2d 602, 605 (2018). When asked to interpret

a procedural rule, we look not to what we would have done as drafters of the rule, but

instead to the text and to principles of textual interpretation. These tools lead us to

conclude that an independent review by the Court is not a requirement of Rule 3.1(d).

First, there is no ambiguity in the text; the rule simply does not require the

Court to conduct an independent review. Because the text itself is clear and

unambiguous, “there is no room for judicial construction.” Wilkie v. City of Boiling

Spring Lakes, 370 N.C. 540, 547, 809 S.E.2d 853, 858 (2018).

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IN RE: I.B.

Opinion of the Court

Second, canons of interpretation support this plain-language approach. The

Supreme Court knew Anders required an independent review in criminal cases,

copied much of Anders into Rule 3.1(d), but left out the independent review language.

The decision to exclude that language is presumed to be purposeful. See Comstock v.

Comstock, 244 N.C. App. 20, 24, 780 S.E.2d 183, 186 (2015). Moreover, by departing

from the settled language of Anders and instead adopting a different rule, we must

presume that the Supreme Court intended something different than what Anders

requires. See Wells Fargo Bank, N.A. v. American Nat’l Bank & Tr. Co., __ N.C. App.

__, __, 791 S.E.2d 906, 910 (2016).

Third, as explained above, there are sound reasons why the Supreme Court

might have left out this independent review requirement, in order to avoid the tension

created by counsel seeking to withdraw from the case. Thus, our plain-text

interpretation is a reasonable one and certainly not the type of “absurd result” that

permits us to disregard the text. Mazda Motors of Am., Inc. v. Sw. Motors, Inc., 296

N.C. 357, 361–62, 250 S.E.2d 250, 253 (1979).

These settled rules of interpretation support a conclusion that we are not

required to conduct an independent review of the record under the text of Rule 3.1(d)

as it is written. And even if we thought otherwise, we are not permitted to depart

from this Court’s recent holding in In re L.V., __ N.C. App. __, __, 814 S.E.2d 928, 929

n.2 (2018), that “Rule 3.1(d) does not explicitly grant indigent parents the right to

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Opinion of the Court

receive an Anders-type review of the record by our Court, which would allow our

Court to consider issues not explicitly raised on appeal.” In re Civil Penalty, 324 N.C.

373, 384, 379 S.E.2d 30, 37 (1989).

Of course, holding that an independent review is not required does not mean

we cannot conduct one. Even before Rule 3.1(d) existed, in juvenile cases where court-

appointed counsel believed the appeal was wholly frivolous, this Court acknowledged

that it had the discretion to “review the record to determine whether the evidence

supports the trial court’s findings of fact and conclusions of law.” N.B., 183 N.C. App.

at 119, 644 S.E.2d at 25 (citing N.C. R. App. P. 2). As our Supreme Court later

emphasized, when a litigant has lost the right to argue an issue due to a rules

violation unrelated to jurisdiction in the trial court, “[t]he imperative to correct

fundamental error, however, may necessitate appellate review of the merits despite

the occurrence of default.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp.

Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). Moreover, this Court always has

authority under Rule 2 to suspend our procedural rules entirely in extraordinary

cases to prevent “manifest injustice.” N.C. R. App. P. 2. We can use these forms of

discretionary authority to conduct an independent review, where appropriate, to

ensure justice is done in these important cases. What we cannot do is rewrite our

State’s procedural rules to impose requirements that simply aren’t there.

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IN RE: I.B.

Opinion of the Court

With these principles in mind, we have reviewed the submissions of the parties

in this case, conducted our own review of the record in our discretion, and determined

that the trial court’s findings of fact are supported by competent evidence and those

findings, in turn, support the court’s conclusions of law. We therefore affirm the trial

court’s order.

AFFIRMED.

Judges BRYANT and INMAN concur.

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