IN THE MATTER OF: Buncombe County
B.B., C.B., & N.B. No. 97 J 416
Matthew J. Middleton for petitioner-appellee, Buncombe County
Department of Social Services.
Hall & Hall, Attorneys at Law, P.C., by Douglas L. Hall for
respondent-appellant.
Michael N. Tousey for Guardian ad Litem.
CALABRIA, Judge.
DeAnn B. (“respondent”) appeals from an order of the trial
court, adjudicating B.B., C.B., and N.B. (“the minor children”)
neglected and dependent, granting Mr. and Mrs. Belock guardianship
of B.B., and granting the Buncombe County Department of Social
Services (“D.S.S.”) continued custody of C.B. and N.B. We dismiss
respondent's appeal due to her failure to comply with the North
Carolina Rules of Appellate Procedure.
In the challenged adjudication and dispositional order, the
trial court made, inter alia, the following findings of fact:
5. [Respondent] is the mother of the minor
children. The respondent mother was presentat this hearing and was represented by
counsel.
6. The respondent mother previously stated to
the Court that the putative biological father
of the minor child, [C.B.] is Jose Alicea. . .
.
7. The respondent mother previously stated to
the Court that the putative biological father
of the minor child, [N.B.] is Oscar Jijon. . .
.
8. Zien Duong is the father of the minor
child, [B.B.].
. . .
10. The respondent mother stipulated that the
minor children are neglected and dependent
children based on the allegations as contained
in the juvenile petitions. Based upon these
stipulations and the verified juvenile
petitions, which were entered into evidence by
[D.S.S.] without objection by any party, the
court makes the following findings of fact.
11. On October 29, 2004, [D.S.S.] became
aware that the minor children, [C.B. and N.B.]
were . . . home alone with their sister,
[B.B.] and the respondent mother's whereabouts
were unknown since October 27, 2004. The
respondent mother told her daughter, [B.B.],
that she was going to run to the grocery store
to buy some Hamburger Helper. She did not
return to the home that night and the three
children were left alone from Wednesday,
October 27, 2004, to the morning of Saturday,
October 30, 2004, in the home with no
supervision, without any knowledge of their
mother's whereabouts, and with no means by
which they might contact their mother. . . .
12. [D.S.S.] has a history with this family
dating back to March of 1992, which includes
one substantiation of neglect. On September
10, 1997, the Department found that the
respondent mother regularly left the children
alone with no knowledge of her whereabouts for
indefinite periods of time. The respondent
mother had dropped off her two daughters [B.B.
and W.B] with relatives to run some errands on
a particular night, but did not return. The
respondent mother was in fact in the Emergency
Room at St. Joseph's Hospital that evening
being treated for an overdose. The following
morning, the respondent mother threatened to
kill herself and her children if she lost
custody of her daughters. Subsequently, therespondent mother was to begin a twelve-week
intensive care substance abuse program . . .
which . . . the Department learned she was not
attending. On December 29, 1997, the
respondent mother stole a vehicle and a
checkbook, and could not be located. She was
arrested and charged with auto theft and
twenty-one counts of forgery on January 14,
1998. The custody of [B.B.] was then
transferred . . . to her maternal
grandparents. Custody of . . . [W.B.] was
awarded to Ronnie Parker[.]
. . .
14. [D.S.S.] has obtained information that the
respondent mother leaves [B.B.] alone in the
home to care for [C.B.] and [N.B.] overnight
at least two to three times a week. [B.B.]
has missed eight days of school this school
year due to the fact that she was at home
taking care of her younger siblings. . . .
15. On October 30, 2004, the respondent mother
told social worker Lewis that she had met a
man that lived in Lake [Junaluska], and that
she was staying with him in his trailer from
October 27, 2004 to October 30, 2004. She
stated that she was so drunk during that stay
that she had decided not to attempt to drive
home. . . . The respondent mother stated that
she was clean for about four years, but has
been abusing crack cocaine again for the last
year.
Based on these and other findings, the trial court adjudicated the
minor children neglected and dependent within the meaning of N.C.
Gen. Stat. §§ 7B-101(15)(9) (2005). The trial court then entered
the dispositional phase and determined that it was in the best
interests of the minor children that Mr. and Mrs. Belock be granted
guardianship of [B.B.] and that [C.B.] and [N.B.] remain in the
custody of D.S.S. Respondent appeals.
On appeal, respondent raises nine assignments of error. We
initially note that respondent has withdrawn her third assignment
of error; therefore, we need not address it. In her assignments oferror 1, 2, and 5-7, respondent fails to list “clear and specific
record or transcript references” as required by N.C. R. App. P.
10(c)(1) (2006). Also, in her briefed argument, respondent fails
to comply with the requirement of N.C. R. App. P. 28(b)(6) (2006)
that “Immediately following each question shall be a reference to
the assignments of error pertinent to the question, identified by
their numbers and by the pages at which they appear in the printed
record on appeal.” Respondent additionally fails to include in her
appellate brief a “full and complete statement of the facts” as
required by N.C. R. App. P. 28(b)(5) (2006).
In Viar v. North Carolina Department of Transportation, our
Supreme Court held, “The North Carolina Rules of Appellate
Procedure are mandatory and failure to follow these rules will
subject an appeal to dismissal.” Id., 359 N.C. 400, 401, 610
S.E.2d 360, 360 (2005). In Munn v. North Carolina State
University, our Supreme Court further clarified that dismissal is
warranted “even though such violations neither impede our
comprehension of the issues nor frustrate the appellate process.”
Id., __ N.C. __, 626 S.E.2d 270 (2006), rev'g per curiam for the
reasons in __ N.C. App. __, __, 617 S.E.2d 335, 339 (2005)
(Jackson, J. dissenting). Our Supreme Court has recognized that
violations of the North Carolina Rules of Appellate Procedure
similar to the violations in the case sub judice warrant dismissal
of an appeal. See Munn, supra; Viar, supra. Accordingly, we
dismiss respondent's appeal based on the aforementioned rule
violations. Dismissed.
Judge McCULLOUGH concurs.
Judge STEELMAN concurs with a separate opinion.
Report per Rule 30(e).
IN THE MATTER OF: Buncombe County
B.B., C.B., & N.B. No. 97 J 416
STEELMAN, Judge concurring.
I fully concur in the majority opinion, but write separately
because of the “Statement of Facts” contained in the brief. This
portion of the brief, in its entirety reads as follows:
The Respondent Mother has been robbed of the
right to parent her children. After less than
three months in the custody of the Buncombe
County Department of Social Services, the
trial court ceased reunification efforts with
the mother, ended her visits, and made
adoption the plan for the two youngest
children. The Mother had no notice that a
permanent plan would be entered at this, the
initial adjudication and dispositional
hearing.
The petitioner then took almost three months
to file the written order from the hearing, so
the Mother's right to appeal was impermissibly
delayed. It took the trial court over a month
more to enter appellate entries and deliver
the tapes to the transcriptionist. In the
meantime, almost four months of time that the
mother could have been working towards
reunification has been lost. This court must
use this case as a benchmark to end not only
the delay caused by Petitioners and the trial
court system in these cases, but also to show
Departments and trial judges that ceasing
reunification and making adoption a permanent
plan, three months into a case, without notice
to a parent, will not be tolerated.
Rule 28(b)(5) states that this portion of the brief “should be
a non-argumentative summary of all material facts underlying thematter in controversy which are necessary to understand all
questions presented for review, supported by references to pages in
the transcript of proceedings, the record on appeal, or exhibits,
as the case may be.” N.C. R. App. P. Rule 28(b)(5) (2005).
The bombast which appellant labels as “Statement of Facts”
meets none of the stated requirements for that portion of the
brief, and is deficient in each of the following respects:
1) It is argumentative in tone and content
throughout;
2) It fails to summarize material facts of the
cases which are necessary to this Court's
understanding of the controversy; and
3) It is not supported by any references to
pages in the transcript or record on appeal.
See Consol. Elec. Distribs., Inc. v. Dorsey, 170 N.C. App. 684, 613
S.E.2d 518 (2005); Northwood Homeowners Ass'n v. Town of Chapel
Hill, 112 N.C. App. 630, 436 S.E.2d 282 (1993); State v. Hopkins,
296 N.C. 673, 682, 252 S.E.2d 755, 761 (1979).
Much of what is contained in the “Statement of Facts” should
have been in either the “Statement of the Case” or the “Argument”
section of the brief. Counsel for appellant appears to believe
that in order to “get the attention” of this Court that one must
use outrageous language and contentions. This Court carefully
reviews each case presented to it, and applies the appropriate
standard of review to ascertain whether error was committed in the
trial court. Counsel should understand that the purpose of the
brief is to assist this Court in this task, not to obscure the
facts and the law. Counsel for the appellant should be personally sanctioned for
the brief submitted in this matter. N.C. R. App. P. Rule 25(b)
(2005).
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