Appeal by respondent from an order entered 28 February 2006 by
Judge A. Elizabeth Keever in Cumberland County District Court.
Heard in the Court of Appeals 11 April 2007.
Elizabeth Kennedy-Gurnee for petitioner-appellee Cumberland
County Department of Social Services; Beth A. Hall for
appellee Guardian ad Litem.
Richard E. Jester for respondent-appellant.
HUNTER, Judge.
Tina Louise L. (“respondent-mother”) appeals from an order
granting a motion to dismiss her appeal of the denial of her motion
to set aside the judgment terminating her parental rights. After
careful review, we affirm.
On 27 April 2004, a Cumberland County district court entered
an order terminating respondent-mother's parental rights to both
J.L. and C.L. On 27 April 2005, respondent-mother filed a motion
pursuant to Rule 60 to set aside the order, arguing that she did
not receive service of process or notice of the trial date.
Respondent-mother's counsel filed a second motion to set aside theorder on 29 July 2005. On 3 August 2005, the court held a hearing
on the motion and entered its order denying the motion on 19
September 2005.
Respondent-mother gave oral notice at that hearing that she
would appeal the court's ruling, then filed written notice of
appeal on 16 August 2005. The court entered a written order to the
same effect as its order given at the 3 August hearing on 12
September 2005.
On 20 January 2006, the guardian ad litem moved the trial
court to dismiss respondent-mother's appeal.
(See footnote 1)
The juvenile court
held a hearing on 1 February 2006 and on 28 February 2006 entered
an order granting the motion on the basis that respondent-mother
“failed to file a written Notice of Appeal within 10 days after the
entry of the Order Denying her Rule 60 Motion as required by
N.C.G.S. 7B-1001.” Respondent-mother appeals this order.
I.
Per N.C. Gen. Stat. . 7B-1001, notice of appeal must be given
“within 10 days of any order of disposition following an order
adjudicating a juvenile as neglected.”
In re Padgett, 156 N.C.
App. 644, 647-48 n.3, 577 S.E.2d 337, 340 n.3 (2003). The question
before this Court is whether respondent-mother's oral notice ofappeal in court on 3 August fulfills this requirement, given that
she did not later give written notice of appeal within ten days of
the court's written order of 19 September.
This issue has arisen previously before this Court. In
Stachlowski v. Stach, 328 N.C. 276, 401 S.E.2d 638 (1991), which
also concerned modification of a child custody order, the trial
court announced its judgment in open court on 17 January and
entered a written order to the same effect on 6 April.
Id. at 277,
401 S.E.2d at 639. Plaintiff did not give oral notice of appeal at
that time, but gave written notice of appeal on 6 April, the same
day the written order was filed.
Id. at 278, 401 S.E.2d at 640.
This Court dismissed the appeal for failure to give notice within
ten days of the oral judgment.
Id. at 277, 401 S.E.2d at 639. The
Supreme Court reversed, stating that:
Rule 3(a)(1) provides that a party may give
oral notice of appeal once judgment is
rendered.
Written notice is also appropriate
once judgment is rendered, N.C.R. App. P.
3(a)(2), but “must be taken within 10 days
after its
entry.” N.C.R. App. P. 3(c)
(emphasis added). Thus, the
rendering of
judgment establishes the point from which a
party
may appeal under Rule 3, and the
entry
of judgment marks the beginning of the period
during which a party
must file written notice
of appeal.
Id. at 278-79, 401 S.E.2d at 640 (emphasis in original and emphasis
added).
Here, respondent-mother gave oral notice of appeal on 3 August
2005, the day the trial court announced its denial of her motion in
court, and written notice on 16 August 2005. The trial courtentered its written order on 12 September 2005. As such,
respondent-mother's notice of appeal was timely under Rule 3.
II.
In its cross-assignments of error, Cumberland County
Department of Social Services (“DSS”) and the guardian ad litem
(“appellees”) in fact admit that dismissing the appeal on the above
basis was error, but argue that because the court could have
properly based its order to dismiss on other grounds, the error was
harmless and the order should be affirmed.
See N.C. Gen. Stat. 1A-
1, Rule 61 (“no error or defect in any ruling or order . . . is
ground for . . . vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action amounts to
the denial of a substantial right”). Specifically, appellees argue
that the trial court could have based its grant of the motion to
dismiss on respondent-mother's failure to issue proper notice of
her appeal to the guardian ad litem attorney advocate. We agree.
Per Rule 25(a) of the North Carolina Rules of Appellate
Procedure, “[i]f after giving notice of appeal from any court,
commission, or commissioner the appellant shall fail within the
times allowed by these rules or by order of court to take any
action required to present the appeal for decision, the appeal may
on motion of any other party be dismissed.” N.C.R. App. P. 25(a).
Respondent-mother does not dispute appellees' assertion that she
failed not only to give them timely notice, but indeed to give them
no notice at all, up to the date of this appeal. The trial courtdismissed the action on the motion of appellees. Thus, Rule 25(a)
provides the authority for the trial court's actions.
Although the trial court used invalid grounds as basis for its
order, because valid grounds exist on which the trial court could
have based its order, the error was harmless and we affirm the
trial court's dismissal of the appeal.
Affirmed.
Judges TYSON and JACKSON concur.
Footnote: 1