                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA18-290

                                     Filed: 16 October 2018

Forsyth County, Nos. 15-JT-137-140

IN THE MATTER OF: D.A., A.A., L.A., L.A.


        Appeal by respondents from order entered 1 December 2017 by Judge Lisa V.L.

Menefee in Forsyth County District Court. Heard in the Court of Appeals 12 July

2018.


        Gillette Law Firm, PLLC, by Jeffrey William Gillette, for respondent-appellant
        mother.

        Richard Croutharmel, for respondent-appellant father.

        Assistant County Attorney Theresa A. Boucher, for petitioner-appellee Forsyth
        County Department of Social Services.

        Administrative Office of the Courts, by GAL Appellate Counsel Matthew D.
        Wunsche, for guardian ad litem.


        MURPHY, Judge.


        Respondent-Mother and Respondent-Father appeal from the trial court’s order

terminating their parental rights to D.A., A.A., L.A., and L.A.1 Counsel for both

Respondents filed no-merit briefs in accordance with Rule 3.1(d). N.C. R. App. P.

3.1(d). While we dismiss the appeals of both Respondents, the procedural posture

requires us to address each appeal separately.


        1 Pseudonyms are used throughout this opinion to protect the identity of juveniles and for the
ease of reading. See N.C. R. App. P. 3.1(b).
                              IN RE: D.A., A.A., L.A., L.A.

                                   Opinion of the Court



                      RESPONDENT-MOTHER’S APPEAL

      On 18 April 2018, counsel for Respondent-Mother filed a no-merit brief

pursuant to Rule 3.1(d) certifying that he had “made a conscientious and thorough

review of the record on appeal” and “identified no issue of merit on which to base an

argument for relief.” In full compliance with Rule 3.1(d) counsel for Respondent-

Mother sent a letter dated 18 April 2018 to Respondent-Mother informing her of her

right to file a pro se brief, along with complete copies of the record on appeal and the

trial transcript. “Respondent[-Mother]’s counsel complied with all requirements of

Rule 3.1(d), and Respondent[-Mother] did not exercise her right under Rule 3.1(d) to

file a pro se brief. No issues have been argued or preserved for review in accordance

with our Rules of Appellate Procedure.” In re L.V., A.V., ___ N.C. App. ___, 814 S.E.2d

928, 929 (2018). Respondent-Mother’s appeal is dismissed.

                       RESPONDENT-FATHER’S APPEAL

      On 13 April 2018, counsel for Respondent-Father filed a no-merit brief

pursuant to Rule 3.1(d) stating that “[a]fter a conscientious and thorough review of

the record and the relevant law . . . I am unable to identify any issues with sufficient

merit on which to base an argument for relief on appeal.” However, Respondent-

Father’s counsel was unable to send a copy of the required documents to Respondent-

Father in full compliance with Rule 3.1(d), stating in the no-merit brief:

             I have attempted to send [Respondent-Father] copies of
             this brief, the record on appeal, and the transcript along


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                                   Opinion of the Court



             with a letter indicating he can file his own pro se brief with
             instructions on how to do that. My attempts included
             trying to call his trial attorney at a number listed in the
             record, emailing his trial attorney, and calling
             [Respondent-Father] at a phone number listed in the
             record. However, my attempts to locate [Respondent-
             Father] have been unsuccessful. The trial attorney’s phone
             number is incorrect and she has not emailed me back. I
             left a voicemail for the number listed for [Respondent-
             Father] in the record but I have not received a return call.
             I will continue to make efforts to locate him and provide
             him with the above-listed items. In the meantime, I will
             maintain the packet of items in my file. I have appended a
             copy of the instruction letter to this brief.

Rule 3.1(d) contains mandatory language requiring service on the represented

individual concurrently with the filing of counsel’s no-merit brief:

             Counsel shall provide the appellant with a copy of the no-
             merit brief, the transcript, the record on appeal, and any
             Rule 11(c) supplement or exhibits that have been filed with
             the appellate court. Counsel shall also advise the appellant
             in writing that the appellant has the option of filing a pro
             se brief within thirty days of the date of the filing of the no-
             merit brief and shall attach to the brief evidence of
             compliance with this subsection.

N.C. R. App. P. 3.1(d). After an initial review by this Court and in order to allow for

full compliance with Rule 3.1(d), we requested that counsel for Respondent-Father

attempt to serve him at two physical addresses found in the Record. On 16 July 2018,

counsel certified that he mailed the no-merit letters to the addresses identified.

However, on 3 August 2018, counsel further certified that both packages had been

returned to him, one marked, “insufficient address,” and the other marked, “VTF



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                                 IN RE: D.A., A.A., L.A., L.A.

                                       Opinion of the Court



RTS” (sic).2 Further, at trial, Respondent-Father testified and refused to divulge his

address:

               Petitioner’s Counsel: Where are you living?

               Respondent-Father: Now?

               Petitioner’s Counsel: Yes.

               Respondent-Father: I live in my man cave.

               Petitioner’s Counsel: And what is the address of your man
               cave?

               Respondent-Father: I give you my daddy’s address.

               Petitioner’s Counsel: No. Where is the address of your man
               cave?

               Respondent-Father: I’ m not telling.

               Petitioner’s Counsel: You’re not telling?

               Respondent-Father: I told you that the last time.                No
               disrespect to this Court.

       This case presents us with an issue of first impression in interpreting Rule

3.1(d)’s mandatory provisions when the client’s failure to communicate his current

address to appellant counsel frustrates counsel’s compliance with the Rule. We have

considered guidance from Rule 5(b)(2)(b) of the Rules of Civil Procedure,3 our decision


       2 We take judicial notice that UTF RTS is an often-used postal code for “Unable to Forward –

Return to Sender.”
       3 Respondent-Father’s counsel’s mailings constituted service under Rule 5:




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                                   IN RE: D.A., A.A., L.A., L.A.

                                          Opinion of the Court



in State v. Mayfield, 115 N.C. App. 725, 446 S.E.2d 150 (1994),4 and RPC 223, an

ethics opinion issued by the North Carolina State Bar.5 Even assuming arguendo




               (b) Service -- How made. -- . . .

               Service under this subsection may also be made by one of the following
               methods:

               ....

               (2) Upon a party: . . .
               b. By mailing a copy to the party at the party’s last known address or,
               if no address is known, by filing it with the clerk of court.

N.C.G.S. §1A-1, Rule 5(b).
        Further, Respondent-Father’s counsel’s filing of the documents with the Clerk of this Court,
including a copy of the proposed letter, constituted service and the same was available to Respondent-
Father for inspection at any time. N.C.G.S. § 7B-2901 (2017)(“The [juvenile’s parent] may examine
the juvenile’s record maintained pursuant to this subsection and obtain copies of written parts of the
record without an order of the court[.]”)
        4 In an Anders setting, not subject to the requirements of Rule 3.1(d), we addressed the appeal

without requiring service on the client:

               In this case, defendant’s attorney has used all due diligence in
               attempting to notify defendant of his right to pursue his appeal pro se,
               and the fault of counsel’s failure to so notify defendant must lie with
               defendant. Accordingly, defendant’s counsel has fully complied with
               the holding in Anders, and the appeal is ripe for appellate review upon
               the record and briefs before us.

State v. Mayfield, 115 N.C. App. at 727, 446 S.E.2d at 152. Here, counsel for Respondent-Father used
all due diligence and this case would otherwise be ripe for appellate review.
         5 RPC 223 states:


               When a client stops communicating with his or her lawyer, the lawyer
               must take reasonable steps to locate and communicate with the client.
               In the present inquiry, Attorney A’s efforts to locate Client A were more
               than reasonable. However, if the lawyer is still unable to locate the
               client and the client has made no effort to contact the lawyer, the
               client’s failure to contact the lawyer within a reasonable period of time
               after the lawyer’s last contact with the client must be considered a
               constructive discharge of the lawyer. Rule 2.8(b)(4) of the Rules of
               Professional Conduct requires a lawyer to withdraw from the



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                                      Opinion of the Court



that service was perfected in accordance with Rule 5(b)(2)(b) of the Rules of Civil

Procedure, the appeal is otherwise “ripe for appellate review” and Respondent-

Father’s appellate counsel has been constructively discharged. However, given the

constitutional right at issue in a termination of parental rights case, we hold that

situations such as this must be considered on their own merits on a case-by-case

basis. Due to the exhaustive efforts of counsel for Respondent-Father, and in the

exercise of our independent discretion, we invoke Rule 2 to “expedite a decision in the

public interest” and suspend the mandatory service requirement of Rule 3.1(d).

      “Respondent[-Father] did not exercise [his] right under Rule 3.1(d) to file a pro

se brief. No issues have been argued or preserved for review in accordance with our




             representation of a client if the lawyer is discharged by the client.
             Therefore, Attorney A must withdraw from the representation.

             Attorney A may not file a complaint on behalf of Client A although
             filing suit might stop the running of the statute of limitations. The
             determination of the objective of legal representation is the client’s
             prerogative. As the comment to Rule 7.1 observes, “[t]he client has
             ultimate authority to determine the purposes to be served by legal
             representation within the limits imposed by law and the lawyer’s
             professional obligation.” If a client disappears, the lawyer cannot know
             whether the client wanted to proceed with the lawsuit, who the client
             was prepared to sue, and whether the allegations in the complaint are
             accurate. Therefore, if a client disappears and the lawyer is unable to
             locate the client after reasonable efforts to do so, the lawyer should
             withdraw from the representation without taking further action on
             behalf of the client.

Responsibility to Client Who Has Disappeared, N.C. STATE BAR (adopted 12 Jan. 1996),
https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/rpc-223/.

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                                  Opinion of the Court



Rules of Appellate Procedure.” In re L.V., A.V., N.C. App. at ___, 814 S.E.2d at 929.

Respondent-Father’s appeal is dismissed.

                                   CONCLUSION

      Respondent-Mother did not file a pro se brief after counsel’s full compliance

with Rule 3.1(d) and her appeal is dismissed. After an individual consideration of the

frustration of counsel for Respondent-Father’s ability to fully comply with Rule

3.1(d)’s mandatory service requirement, we invoke Rule 2 to suspend that portion of

Rule 3.1(d). Respondent-Father did not file a pro se brief and his appeal is dismissed.

      DISMISSED.

      Judge TYSON concurs.

      Judge DIETZ concurs in result only.




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