By Jessica B. Heffner

Termination of Parental Rights, COA18-290, Oct. 16, 2018, In re D.A., Forsyth County

Respondent-Mother and Respondent-Father both appealed the trial court’s order terminating their parental rights.  Both parties’ attorneys filed “no-merit” briefs with the Court of Appeals pursuant to Rule 3.1(d).  Respondent-Mother’s attorney complied with all requirements of Rule 3.1(d), including sending Respondent-Mother complete copies of the record on appeal, the trial transcript, and informing Respondent-Mother of her right to file a pro se brief.  Since Respondent-Mother failed to file a pro se brief, her appeal is dismissed.

In his “no-merit” brief, Respondent-Father’s attorney acknowledged his inability to locate or otherwise communicate with Respondent-Father.  Respondent-Father refused to testify to his address at trial, and his attorney was unable to locate him post-trial.  As a result, Respondent-Father’s attorney was unable to fully comply with Rule 3.1(d), including sending Respondent-Father the record on appeal, trial transcript, or informing him of his right to file a pro se brief.  These facts present an issue of first impression for the Court: interpreting the mandatory language of Rule 3.1(d) when a client refuses to inform his attorney of his whereabouts, hindering his attorney’s ability to comply with Rule 3.1(d).  Here, Respondent-Father’s attorney was “constructively discharged”; however, given the constitutional rights at issue in a TPR case, these situations must be analyzed on a case-by-case basis.  Due to the “exhaustive efforts” made by this attorney, it is appropriate to invoke Rule 2 to suspend the mandatory service requirement in Rule 3.1(d).  And, since Respondent-Father did not file a pro se brief, his appeal is dismissed.