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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
IN THE MATTER OF: Harnett County
J.M.E., Nos. 03J75-76,
M.M.M., Minor Children
Appeal by respondent-mother from orders entered 9 November
2005 by Judge Albert A. Corbett, Jr., in Harnett County District
Court. Heard in the Court of Appeals 28 March 2007.
Leslie R. Nydick for respondent-mother appellant.
Elizabeth Boone for Guardian ad litem.
E. Marshall Woodall for Harnett County Department of Social
Respondent-mother appeals from district court orders
terminating her parental rights with regard to two of her children,
and an adjudication and disposition order with regard to a third
child. We dismiss.
M.M.M., E.C.M., and J.M.E. are children of respondent-mother
(respondent). Harnett County Department of Social Services
(DSS) filed petitions for E.C.M. and M.M.M. on 22 May 2003
alleging neglect and dependency. Nonsecure custody, placing the
children in the custody of DSS, was continued until the
adjudication/disposition hearing held on 13 June 2003. Pursuant to
stipulation of the parties, the juveniles were adjudicated to bedependent, and DSS was awarded custody under a plan of
reunification with respondent.
The parties and attorneys agreed to combine the termination of
parental rights actions in E.C.M. and M.M.M.'s cases with the
adjudication of J.M.E. The hearing was held on 23 May 2005, 31 May
2005, 28 July 2005 and 11 October 2005. The trial court terminated
respondent's parental rights to E.C.M. and M.M.M. on the grounds of
neglect, willfully leaving the children in foster care, failure to
pay child support, and dependency on 11 October 2005. J.M.E. was
adjudicated neglected on 11 October 2005. Both termination orders
and the adjudication order were filed on 9 November 2005.
Respondent appeals from all three orders.
It is well settled that the Rules of Appellate Procedure 'are
mandatory and not directory.' State v. Hart, (No. 446A06), ___
N.C. ___, ___, ___ S.E.2d ___, ___ (filed May 4, 2007). Thus,
compliance with the Rules is required. Id. However, every
violation of the rules does not require dismissal of the appeal or
the issue . . .. Id. In the instant case, the appeal is dismissed
because respondent failed to comply with Rule 28(b) and Rule 10(c).
Id. (stating that a violation of the North Carolina Rules of
Appellate Procedure subjects an appeal to dismissal). However,
even if we had decided to exercise our discretion under Rule 2 to
suspend the rules, we still would have affirmed the trial court.
With respect to an appellant's brief, Rule 28 requires the
(6) An argument, to contain the
contentions of the appellant with respect to
each question presented. Each question shall
be separately stated. 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. Assignments of error not set
out in the appellant's brief, or in support of
which no reason or argument is stated or
authority cited, will be taken as abandoned.
N.C. R. App. P. 28(b)(6) (emphasis added). The rule requires the
appellant to reference each assignment of error pertinent to the
particular question presented, along with the page number in the
record where we can find the particular assignment of error. In
the instant case, the appellant did include a reference to the
assignments of error after each question, however, the page numbers
included with the references are not correct. The page numbers in
the brief direct our attention to pages in the record that do not
include the assignments of error.
Rule 9(b) requires the pages of the record on appeal to be
paginated consecutively. N.C. R. App. P. 9(b)(4). In the instant
case, many pages were not paginated, especially in part two of the
As stated above, even if we had decided to exercise our
discretion under Rule 2 to suspend the rules, we still would have
affirmed the trial court. We have reviewed respondent's arguments,
and we determine they are without merit. Below is our reasoning,and it is based on our best efforts to determine which assignments
of error respondent meant to include in the brief since the page
numbers referencing the record did not refer to the page where the
assignments of error were located.
In regard to J.M.E., respondent listed four assignments of
error in her brief. Accordingly, the other seven assignments of
error included in the record for J.M.E. are abandoned. N.C. R. App.
P. 28(b)(6). Of the four assignments included in the brief for
J.M.E., two of them are contesting a trial court order that was not
appealed from in respondent's notice of appeal. Therefore, only
two assignments of error are before this Court regarding J.M.E.
The assignments contend that the trial court erred in finding and
concluding that it was in the best interest of J.M.E. for his
custody to be awarded to DSS with authority to place the child. If
we had exercised our discretion under Rule 2 and not dismissed the
case, we would have agreed with the trial court.
The contentions presented by respondent in regard to E.C.M.
and M.M.M. are similar. First, concerning E.C.M., respondent
listed seven assignments of error in her brief. Accordingly, the
other four assignments of error included in the record for E.C.M.
are abandoned. Id. Next, in regard to M.M.M., respondent listed
four assignments of error in her brief. Accordingly, one
assignment of error included in the record for M.M.M. is abandoned.
Respondent's first contention in her brief concerning E.C.M.
and M.M.M. argues the trial court erred by failing to appoint aguardian ad litem for respondent pursuant to N.C. Gen. Stat. § 7B-
602(b)(1) (2001). The statute, which both respondent and DSS agree
controlled the instant case because of the date of the filing of
the petitions, provides in pertinent part:
In addition to the right to appointed counsel
. . . a guardian ad litem shall be appointed
in accordance with the provisions of G.S. 1A-
1, Rule 17, to represent a parent in the
(1) Where it is alleged that the juvenile is
a dependent juvenile within the meaning
of G.S. 7B-101 in that the parent is
incapable as the result of substance
abuse, mental retardation, mental
illness, organic brain syndrome, or any
other similar cause or condition of
providing for the proper care and
supervision of the juvenile[.]
Id. As we explained in In re H.W., 163 N.C. App. 438, 594 S.E.2d
211, disc. review denied, 358 N.C. 543, 599 S.E.2d 46, disc. review
denied, 358 N.C. 543, 603 S.E.2d 877 (2004), section 7B-602
requires the appointment of a guardian ad litem only in cases
where (1) it is alleged that a juvenile is dependent; and (2) the
juvenile's dependency is alleged to be caused by a parent or
guardian being ' incapable as the result of substance abuse, mental
retardation, mental illness, organic brain syndrome, or any other
similar cause or condition of providing for the proper care and
supervision of the juvenile.' Id. at 447, 594 S.E.2d at 216.
Here, the trial court did not err. First, there is some
evidence in the record that a guardian ad litem was appointed for
respondent. Next, the petition for termination did not allege that
respondent mother was incapable as the result of substance abuse,mental retardation, mental illness, organic brain syndrome, or any
other similar cause or condition of providing for the proper care
and supervision of the juvenile. Rather, E.C.M.'s petition states
that respondent suffers from diabetes and is unable to care for the
child. In addition, the record appears to be missing the second
page of M.M.M.'s petition, so we are not exactly sure what the
petition alleged in M.M.M.'s case. Also, there is not an
assignment of error which even states the words guardian ad
litem. Therefore, we disagree with respondent.
Respondent's next contention concerning E.C.M. and M.M.M. is
that the trial court erred in not giving her an interpreter when
she signed a voluntary placement agreement. First, many of the
findings of fact that are contested by the assignments of error
have nothing to do with respondent's contention. Next, respondent
was not prejudiced by signing the placement agreement because the
day after it was signed, the court entered a non-secure custody
order granting custody of the children to DSS, which negated the
Respondent's last contention concerning E.C.M. and M.M.M. is
that the trial court erred in concluding that DSS exercised
reasonable efforts since the filing of the petition to reunify
respondent with her children. However, there are ample findings of
fact that were not objected to that illustrate that DSS has
exercised reasonable efforts to reunify respondent with her
children. We dismiss the instant case due to violations of the Rules of
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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