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NC COA Case Summary: Termination of Parental Rights, In re D.A.

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.

NC COA Case Summary: In the Matter of J.M.K

By Ryan Schultz

Termination of Parental Rights, No. COA18-451, Sept. 4, 2018
In the Matter of J.M.K
Buncombe County

In a termination of parental rights hearing, a court cannot base termination from a ground that has not been pled.

Facts:  Mother and Father were in a relationship from February 2014 -September 2014. During their courtship, a daughter was conceived. While still pregnant in October 2014, Mother filed and obtained a domestic violence protective order against Father. In a chapter 50 hearing, Mother was awarded sole legal and sole physical custody of the child. No child support order was ever entered, and finding was ever made that Father was the child’s biological father. Mother filed a private termination of parental rights action, to which the trial court entered an order terminating Father’s parental rights.

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Case Summaries

By Rachel BeardA.T. Debnam, Daphne Edwards, Rebecca Poole, Jeff Russell and Jennifer Smith

Equitable Distribution; Appeal After Remand; Value Of Marital Residence; Law Of the Case

Lund v. Lund (Lund II), No. COA16-813 (March 21, 2017)

(related Court of Appeals case: Lund v. Lund, __ N.C. App. __, 779 S.E.2d 175 (2015) (Lund I)

Plaintiff-wife appeals from the trial court’s revised equitable distribution order entered after the Court of Appeals remanded for further findings of fact. The Court of Appeals affirmed the trial court’s decision.

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