An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                               NO. COA13-1341
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


IN THE MATTER OF:

E.I.O.                                        Mitchell County
                                              No. 13 JT 07




       Appeal by respondent-father from order entered 27 August

2013   by    Judge    Alexander    Lyerly     in   Mitchell      County   District

Court.      Heard in the Court of Appeals 28 April 2014.


       No brief filed for mother, petitioner-appellee.

       Mary McCullers Reece for father, respondent-appellant.


       HUNTER, Robert C., Judge.


       Respondent-father       appeals    from     the   trial    court’s     order

terminating     his    parental    rights     to   the   minor    child,    E.I.O.

(“Ethan”).1     Because the trial court failed to appoint a guardian

ad litem for the minor child, we reverse the trial court’s order

and remand the matter for a new termination hearing.2


1
  A pseudonym is used to protect the identity of the juvenile.
2
   We note that petitioner filed with this Court a copy of a
“Notice of Voluntary Dismissal” it filed in Mitchell County
                                     -2-
                                  Background

    Respondent and petitioner-mother were married in 2008 and

divorced    in   2012.     One    child,    Ethan,   was   born   during   the

marriage.    On 11 February 2013, petitioner filed a petition to

terminate respondent’s parental rights alleging as grounds that

respondent willfully abandoned Ethan.             The matter came on for

hearing on 5 August 2013, after which the trial court found the

existence   of   the     ground   alleged    by   petitioner.      The   court

determined that termination of respondent’s parental rights was

in the best interests of Ethan, and on 27 August 2013, entered

an order terminating respondent’s rights.            Respondent appeals.

                             Notice of Appeal

    We first address whether the Court has jurisdiction over

respondent’s appeal.        Rule 3.1 of the North Carolina Rules of

Appellate Procedure requires trial counsel and the appellant to

sign the notice of appeal.          In this case, trial counsel signed

the notice of appeal, but respondent did not.              Respondent filed

a second notice with the proper signatures on 2 October 2013;


District Court on 23 April 2014. Under Rule 41(a), a plaintiff
may voluntarily dismiss an action without order of the court “at
any time before the plaintiff rests his case.”     However, here,
petitioner filed its “Notice of Voluntary Dismissal” after it
had rested its case; it was even after the trial court had
entered a final judgment. Therefore, petitioner did not have a
legal right to file a voluntary dismissal, and petitioner’s
purported dismissal of its petition has no legal effect.
                                          -3-
however,   this    was     more    than      thirty   days    after    entry      of   the

termination order.          See N.C. Gen. Stat. § 7B-1001(b) (2013)

(written notice of appeal “shall be made within 30 days after

entry and service of the order”).

      Rule 3.1 is “jurisdictional, and if not complied with, the

appeal must be dismissed.”             In re L.B., 187 N.C. App. 326, 332,

653 S.E.2d 240, 244 (2007), aff’d per curiam, 362 N.C. 507, 666

S.E.2d 751 (2008).          Respondent, however, has filed a petition

for writ of certiorari.            Under the circumstances, we believe it

is   appropriate     for    us    to    exercise      our    discretion      to    grant

respondent’s petition and review the merits of his appeal.                             See

In re I.T.P-L., 194 N.C. App. 453, 460, 670 S.E.2d 282, 285

(2008)   (allowing       petition      for    writ    of    certiorari      “to   permit

consideration of their appeals on the merits so as to avoid

penalizing Respondents for their attorneys’ errors”).

                                       Arguments

      While respondent raises three issues on appeal, we find the

dispositive issue is whether the trial court erred by failing to

appoint a guardian ad litem for Ethan pursuant to N.C. Gen.

Stat. § 7B-1108.           We note that respondent did not raise the

guardian ad litem issue in the trial court and this Court has

previously   held        that     in   order     to    preserve       the    issue,     a
                                         -4-
respondent must object at the trial level.                           See In re Fuller,

144 N.C. App. 620, 623, 548 S.E.2d 569, 571 (2001) (discussing

“respondent’s       noncompliance       with            our   rules”      by   failing   to

object to lack of GAL at trial level); In re Barnes, 97 N.C.

App. 325, 326, 388 S.E.2d 237, 238 (1990) (holding “respondent

failed to comply with our Rules of Appellate Procedure” because

“there   was   no    objection     or    exception            made   at    trial   to    the

court’s failure to appoint a guardian ad litem” for the child).

However, in Barnes and Fuller, the Court invoked Rule 2 of the

North Carolina Rules of Appellate Procedure in order to address

the issue and reversed the termination orders.                             The Court in

Fuller noted that section 7B-1108(b) was “intended to preserve

the best interest of the minor child,” and that the minor child

was “the intended beneficiary” of the statute.                         Fuller, 144 N.C.

App. at 623, 548 S.E.2d at 571; see also Barnes, 97 N.C. App. at

327,   388   S.E.2d    at   238.        In       this    case,   we    conclude     it    is

appropriate     to    invoke     Rule        2    and     address      the     merits    of

respondent’s argument.

       The Juvenile Code provides that:

             If an answer or response denies any material
             allegation of the petition or motion, the
             court shall appoint a guardian ad litem for
             the juvenile to represent the best interests
             of the juvenile, unless the petition or
             motion was filed by the guardian ad litem
                                         -5-
            pursuant to G.S. 7B-1103, or a guardian ad
            litem has already been appointed pursuant to
            G.S. 7B-601.

N.C. Gen. Stat. § 7B-1108(b) (2013).                This Court has held that

failure to appoint a guardian ad litem pursuant to section 7B-

1108(b) is reversible error.             In re J.L.S., 168 N.C. App. 721,

723, 608 S.E.2d 823, 824 (2005).                   In J.L.S., the respondent

filed a response to the termination petition on the day of the

termination hearing, more than thirty days after the petition

was filed.        This Court reasoned that the best interests of the

minor   child     must   be   protected,       “especially     in    light    of   the

nature of these proceedings where one natural parent is seeking

to terminate the parental rights of the other natural parent.”

Id.   at   723,    608   S.E.2d   at     825.      This     Court    “refuse[d]     to

penalize the minor child” for the late filing of the response.

Id.

      In the present case, although respondent filed an answer to

the   petition      to   terminate     his      parental    rights    denying      the

material allegations contained in the petition, the trial court

failed to appoint a guardian ad litem to represent the best

interests    of     Ethan.        Even    though      the    answer     was     filed

approximately three months after the petition was filed, the

trial court was not relieved of its duty to appoint a guardian
                                       -6-
ad litem for Ethan.         In accordance with our holding in J.L.S.,

we   conclude    the   trial   court    erred   in    failing    to   appoint    a

guardian ad litem pursuant to section 7B-1108(b).                      Thus, we

reverse the order terminating respondent’s parental rights and

remand for appointment of a guardian ad litem for the minor

child and a new termination hearing.            Id.

                                 Conclusion

      Based     on   the   foregoing    reasons,      we    reverse   the   order

terminating     parental    rights     and   remand   for    appointment    of   a

guardian ad litem and new termination hearing.



      REVERSED AND REMANDED.

      Judges GEER and McCULLOUGH concur.

      Report per Rule 30(e).
