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Domestic Relations – Parent & Child – Termination of Parental Rights – Abandonment – Custody Order

Domestic Relations – Parent & Child – Termination of Parental Rights – Abandonment – Custody Order

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In 2017, with two-year-old “Alice” and her brother unsecured in the back seat, the respondent-Father overdosed on heroin and passed out in traffic. Although a 2020 custody order disallowed visitation between Father and Alice, it did not prohibit contact entirely. Though Father presented testimony that the petitioner-Mother had frustrated his attempts to contact Alice and that he had contributed to gifts his parents gave to Alice, the trial court found Mother’s evidence of abandonment more credible. Moreover, Father had the option to seek modification of the 2020 custody order but failed to do so.

We affirm the trial court’s termination of Father’s parental rights on the basis of willful abandonment.

Father failed to serve his notice of appeal on Alice’s guardian ad litem. We cannot locate a published case from this court interpreting the service provision of N.C. R. App. P. 3.1(b).

However, there is a line of cases from our appellate courts holding a party’s failure to serve their notice of appeal on all parties in technical compliance with Rule 3 is a non-jurisdictional defect, and the party’s noncompliance with the Rules of Appellate Procedure must instead be assessed for whether the party’s noncompliance is a “substantial or gross violation of the appellate rules.” MNC Holdings, LLC v. Town of Matthews, 223 N.C. App. 442, 735 S.E.2d 364 (2012). The same rule has been applied in the criminal context, under N.C. R. App. P. 4. In State v. Golder, 257 N.C. App. 803, 809 S.E.2d 502 (2018), aff’d as modified, 374 N.C. 238, 839 S.E.2d 782 (2020), this court saw no need to grant a defendant’s petition for writ of certiorari because “[i]t is the filing of the notice of appeal that confers jurisdiction upon this Court, not the service of the notice of appeal.”

Here, the GAL appears to have actual notice of Father’s appeal; the GAL has not raised any issue before this court regarding service of Father’s notice of appeal, response to Father’s petition for writ of certiorari, or motion to dismiss the appeal; thus, there is no indication in the record that any party would be prejudiced should we hear Father’s appeal. Consistent with MNC Holdings (Rule 3) and Golder (Rule 4), we see no reason why the same standard should not apply under Rule 3.1. Therefore any error in service made by Father is nonjurisdictional and is not a substantial or gross violation of the appellate rules. We deny Father’s PWC because it is superfluous.


In re A.N.B. (Lawyers Weekly No. 011-145-23, 28 pp.) (Donna Stroud, C.J.) Appealed from Craven County District Court (Paul Delamar, J.) Michael Spivey for respondent; Carolyn Peacock for petitioner; no brief for guardian ad litem. North Carolina Court of Appeals

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