An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1210
            
                                          &nb sp; 
NORTH CAROLINA COURT OF APPEALS
            

Filed: 17 June 2003

IN THE MATTER OF:

KOURTNEY BRIANNA BURKES and         Guilford County
KAYLA ALEXIS BURKES                 99 J 230 and 231

                    

    Appeal by respondent from judgment entered 28 June 2002 by Judge Wendy M. Enochs in Guilford County Superior Court. Heard in the Court of Appeals on 17 April 2003.

    Lynne G. Shiftan, for petitioner-appellee Guilford County Dept. of Social Services.

    Richard E. Jester, for respondent-appellant.

    Avis Goodson, for Guardian ad Litem.

    LEVINSON, Judge.

    On 5 July 2001, pursuant to a petition filed by the Department of Social Services (DSS), the trial court entered an order terminating the parental rights of respondent, Shannon T. Burkes. Respondent gave timely notice of appeal, and the trial court appointed the appellate defender to perfect her appeal and ordered preparation of the transcript. On 27 November 2001, the transcriptionist returned the trial court's order for preparation of the transcript, noting the audio tapes from which the transcript was to be prepared were “untranscribable.”
    On 7 January 2002, petitioner moved to dismiss respondent's appeal for failure to timely perfect the record on appeal. Respondent's counsel, the appellate defender, filed a reply topetitioner's motion stating it had never received notice of its appointment as counsel. Petitioner declined to proceed on its motion to dismiss, and on 14 January 2002 present counsel, Richard Jester, was appointed to represent respondent.
    On 28 February 2002, the trial court signed a new order authorizing preparation of the transcript. This order was not filed until 27 March 2002. On 31 May 2002, petitioner again filed a motion to dismiss respondent's appeal due to respondent's failure to timely perfect the record on appeal. On 4 June 2002, before a hearing on petitioner's motion to dismiss, respondent filed a motion with the trial court to extend time for preparation of the transcript citing poor sound quality of the recorded audio tapes. That motion was granted on 17 June 2002, extending for thirty days the time respondent had to prepare the transcript. Respondent was unable to obtain a transcript of the termination proceedings, and on 24 June 2002, she filed a motion to “dismiss the case” or for new trial.
    The trial court heard petitioner's motion to dismiss the appeal and respondent's motion to dismiss or for new trial on 28 June 2002. The trial court findings included in pertinent part:
            The Court finds that an Order for a transcript was prepared by the Office of the Appellate Defender and was executed on or about February 20, 2002. Orders were entered on or about February 28, 2002, directing that the tapes be sent to the Appellate Counsel and to a transcriptionist for preparation of a transcript. This order was filed on March 27, 2002. The tapes and order were not mailed to the transcriptionist by the Clerk.

            The Court finds pursuant to Rule 7(b)(1)of the North Carolina Rules of Appellate procedure, the [transcriptionist] has 60 days from the receipt of the Order for a transcript to prepare and deliver the transcript. This time would have expired on or about April 19, 2002 and no transcript was prepared and delivered to the parties within the time frame. Further, there was no Motion for Extension of Time prepared prior to the expiration of that 60-day period, and [a motion] was only prepared, executed and filed on or about June 17, 2002 after the Deputy County Attorney filed a Second Motion to Dismiss the Appeal. The motion for extension of time was mailed to Greensboro on June 4, 2002, executed by the trial judge on June 14, 2002, and filed in the Clerk's office June 17, 2002.

            The Court finds that pursuant to Rule 11(b) of the North Carolina Rules of Appellate Procedure, the Appellant has 35 days from the Notice of Appeal if there is no transcript to serve a Proposed Record on Appeal. This rule has not been complied with.

The trial court dismissed respondent's appeal for failure to comply with the Rules of Appellate Procedure and, without any further findings, denied her motion to dismiss or for new trial. From this order, respondent appeals.

I. MOTION FOR DISMISSAL OR NEW TRIAL
    First, we address whether the trial court erred in denying respondent's motion to “dismiss the case” or for new trial. Respondent contends “[t]he inability of the Court to provide a transcript to the respondent significantly prejudices her constitutional rights.”
    Our Rules of Appellate Procedure permit trial proceedings necessary for appellate review and included in the record on appeal to be presented in narrative, not verbatim, form. N.C.R. App. P.9(c)(1); see Napowsa v. Langston, 95 N.C. App. 14, 19, 381 S.E.2d 882, 885, disc. review denied, 325 N.C. 709, 388 S.E.2d 460 (1989). This Court has previously found the absence of a verbatim transcript not to be a circumstance requiring new trial. See Hunt v. Hunt, 112 N.C. App. 722, 436 S.E.2d 856 (1993). Therefore, the absence of a verbatim transcript does not necessarily require a new trial.
    At this juncture, respondent has not specified, either in her brief or in the record, what substantive assignments of error she will raise on appeal. Rather, respondent has only objected to the lack of a decipherable transcript. We cannot, therefore, conclude a verbatim transcript is “necessary to understand respondent's assignments of error.” See Napowsa v. Langston, 95 N.C. App. at 20, 381 S.E.2d at 885. Further, the record does not indicate that respondent attempted to construct a narrative of the proceedings without a transcript by contacting petitioner, respondent's trial counsel, or other court personnel. The mere absence of the availability of a verbatim transcript does not automatically warrant a new trial or dismissal of the case. This assignment of error is overruled.
II. DISMISSAL OF RESPONDENT'S APPEAL FOR FAILURE
TO COMPLY WITH THE RULES OF APPELLATE PROCEDURE

    Under N.C.R. App. P. 7(a)(1), an appellant has fourteen days from the date of filing of notice of appeal to arrange for transcription of the proceedings. The transcriptionist then has 60 days from the date the appellant “serves the [transcriptionist with] written documentation of the transcript arrangement” in whichto prepare and deliver the transcript. N.C.R. App. P. 7(b)(1). In the instant case, the juvenile proceedings were confidential, and respondent, therefore, was required to obtain an order from the trial court allowing the tapes to be released to the transcriptionist. N.C.G.S. § 7B-3000(d) (2001).
    The appeal in this case has involved significant irregularities, confusion, and error. Many of the problems were caused by circumstances beyond respondent's control. Through no fault of the respondent, the appellate defender was unaware of its involvement in this case, and counsel was not assigned for six months following the order of the trial court terminating her parental rights. Once assigned, respondent's counsel attempted to obtain a transcript, but the trial court's authorization and order allowing the transcript to be prepared was not filed until nearly a month after it was signed. To add further error to the process, the clerk of court failed to provide the transcriptionist with the audio tapes, as directed by the trial court's order. Lastly, the transcriptionist was unable to prepare the transcript because the audio tapes were of poor quality.
    We hold respondent substantially complied with Rule 7 and, therefore, reinstate respondent's appeal. See Pollock v. Parnell, 126 N.C. App. 358, 484 S.E.2d 864 (1997) (holding appellant substantially complied with N.C.R. App. P. 7 where he employed a transcriptionist and obtained a transcript of the proceedings within 60 days but did not contract with a court reporter for production of the transcript); Lockert v. Lockert, 116 N.C. App.73, 81, 446 S.E.2d 606, 610, disc. review allowed on other issues, 338 N.C. 311, 450 S.E.2d 487 (1994) (where appellant substantially complied with Rule 7 this Court refuses to allow delay by court reporter “to determine the rights of litigants to appellate review”). Alternatively, in light of the constitutional implications involved in the termination of parental rights, see e.g., Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997); Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), we conclude the circumstances of this case require suspension of the Rules “to prevent manifest injustice.” N.C.R. App. P. 2.
    Additionally, in conjunction with our power under Rule 2 and upon consideration of the deadlines established by the N.C. Rules of Appellate Procedure, we set out the following time frames for appellant to perfect and file the record on appeal: within 14 days of the date the mandate of this opinion is issued to the clerk of superior court pursuant to N.C.R. App. P. 32(b), the clerk of superior court shall deliver the 27 March 2002 order and copies of the audio tapes to the transcriptionist designated by the respondent. Thereafter, the transcriptionist shall have 60 days from the date of receipt of the order and copies of the audio tapes in which to prepare and certify delivery of a verbatim transcript in accordance with N.C.R. App. P. 7. If the transcriptionist is able to prepare and certify delivery of a verbatim transcript within that time, the respondent shall have 35 days from the date of the transcriptionist's certification of delivery of the transcript in which to either (i) prepare the record on appeal ifprepared in accordance with Rule 11(a); or (ii) serve a proposed record on appeal upon petitioner in accordance with Rule 11(b). If the transcriptionist is unable to prepare and certify delivery of a verbatim transcript within the 60 day period, the transcriptionist shall promptly notify the parties. Thereafter, pursuant to N.C.R. App. P. 9, respondent shall attempt to set out a transcript in narrative form. From the date the transcriptionist notifies the parties that a verbatim transcript cannot be prepared, respondent shall have 35 days to prepare a transcript in narrative form pursuant to Rule 9(c) and to either (i) prepare the record on appeal if prepared in accordance with Rule 11(a); or (ii) serve a proposed record on appeal upon petitioner in accordance with Rule 11(b). If the transcriptionist does not prepare and certify delivery of a verbatim transcript and respondent does not prepare a transcript in narrative form pursuant to Rule 9(c), respondent shall have 35 days from the date the transcriptionist notifies the parties that a verbatim transcript cannot be prepared in which to (i) prepare the record on appeal if prepared in accordance with Rule 11(a); or (ii) serve a proposed record on appeal upon petitioner in accordance with Rule 11(b).
    Additionally, we note the burden of preparing the record on appeal falls to the respondent, and therefore respondent shall confer with the clerk of superior court to ensure the transcriptionist receives the audio tapes pursuant to this order and the Rules of Appellate Procedure. Actions and procedures not specifically directed by this opinion shall conform to the NorthCarolina Rules of Appellate Procedure, except that any motions to extend the time to prepare either a transcript or record on appeal shall be made to this Court.
    Affirmed in part, reversed and remanded with instructions in part.
    Judges MCGEE and MCCULLOUGH concur.
    Report per Rule 30(e).

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