Opinion
No. 07-202.
Filed June 19, 2007.
Yadkin County Nos. 05 J 36-37.
Appeal by respondent from order entered 20 November 2006 by Judge David V. Byrd in Yadkin County District Court. Heard in the Court of Appeals 4 June 2007.
Robert W. Ewing, for respondent-appellant. Benjamin J. Harding, Jr., for petitioner-appellee. Tracie M. Jordan, for appellee Guardian ad Litem.
Respondent-mother appeals from a custody review order entered by the district court pursuant to N.C.G.S. § 7B-906 (2005), regarding the custody of dependent juveniles C.S.R. and H.M.W. The order transferred legal custody of the minor child C.S.R. from the Yadkin County Department of Social Services (DSS) to the child's father, G.R., and relieved DSS of further efforts to reunify respondent-mother with the minor child H.M.W. Based on respondent-mother's failure to comply with the provisions of N.C.G.S. § 7B-1001 (2006), and N.C.R. App. P. 3A(a), we dismiss her appeal for want of jurisdiction and deny her petition for writ of certiorari. On 8 August 2005, DSS filed a juvenile petition alleging that H.M.W. and C.S.R. were neglected in that they lived in an environment injurious to their welfare. N.C. Gen. Stat. § 7B-101(15) (2005). The petition alleged that respondent-mother had assaulted H.M.W. with a bedpost while under the influence of drugs on the night of 4 August 2005. The petition further alleged respondent-mother had slept for three days after the incident and would not answer her door or telephone when the social worker and police officer attempted to contact her. DSS obtained non-secure custody of the children and placed them with their maternal uncle and aunt.
At the time of the seven-day hearings on non-secure custody on 8 and 15 August 2005, respondent-mother was reportedly hospitalized. The court found reasonable grounds to believe the allegations in DSS's petition and continued the children in the legal custody of DSS. On 14 October 2005, the district court entered a "Juvenile Adjudication Consent Order" reflecting respondent-mother's stipulation that C.S.R. and H.M.W. were dependent juveniles as defined by N.C.G.S. § 7B-101(9). The order further reflected that parental rights of H.M.W.'s father had been previously terminated. The court continued DSS's legal custody of the children and ordered respondent-mother to comply with a case plan developed by DSS and the guardian ad litem.
On motion by DSS, the court held a review hearing on 30 January 2006, in accordance with N.C.G.S. § 7B-906. In its review order entered 10 February 2006, the court found that H.M.W. remained in her placement with her maternal uncle and aunt, and that C.S.R. had been placed with her father. Respondent-mother's substance abuse assessment indicated a need for additional counseling. The court otherwise maintained the children's existing custody arrangement.
The court held a second review hearing on 28 August 2006, and entered its review order on 20 November 2006. Based on the evidence presented by the parties, the court awarded legal and physical custody of C.S.R. to her father, G.R., as serving the best interests of the child. Although the court maintained DSS's custody of H.M.W., the court found that further efforts by DSS to reunify her with respondent-mother would be contrary to the best interest of the child. Therefore, the court ceased reunification efforts and ordered that a permanency planning hearing be held within thirty days of its order, pursuant to N.C.G.S. § 7B-507(c) (2005).
Under the applicable version of N.C.G.S. § 7B-1001, "[n]otice of appeal shall be given in writing within 10 days after entry of the order." "It is well established that `failure to give timely notice of appeal . . . is jurisdictional, and an untimely attempt to appeal must be dismissed.'" In re A.L., 166 N.C. App. 276, 277, 601 S.E.2d 538, 538 (2004) (quoting In re Lynette H., 323 N.C. 598, 602, 374 S.E.2d 272, 274 (1988)). Moreover, Rule 3A of our Rules of Appellate Procedure expressly requires that the trial counsel and appellant sign the notice of appeal and that the appellant cooperate with counsel throughout the appeal. See N.C. R. App. P. 3A(a) (2006). The signature requirement within Rule 3A serves to indicate respondent's participation in an appeal as well as an awareness of the nature of the appeal and cooperation with counsel in the appeal. See Hummer v. Pulley, Watson, King Lischer, P.A., 140 N.C. App. 270, 277, 536 S.E.2d 349, 353 (2000) (noting that defendants' counsel's signature on a notice of appeal from an order granting sanctions indicated participation in the appeal).
Because DSS filed the petition in this cause on 8 August 2005, the 1 October 2005 amendments to N.C.G.S. § 7B-1001 do not apply here. 2005 N.C. Sess. Laws 398, § 10, 19.
Here, counsel for respondent-mother gave oral notice of appeal at the conclusion of the hearing and filed a written notice of appeal on 27 December 2006, 37 days after entry of the order on 20 November 2006, and 30 after the date of service of the order indicated on the notice of appeal, 27 November 2006. Moreover, the notice of appeal was not signed by respondent-mother, as required by Rule 3A(a), but included counsel's representation that she "has been unable to contact respondent mother since the filing of the subject ORDER and therefore files this notice of appeal without the signature of respondent mother." Without respondent-mother's signature, there is no evidence within the record to indicate that she desired to pursue the appeal, understood the nature of the appeal, or cooperated with counsel in filing the notice of appeal. Ultimately, the notice of appeal is both untimely under N.C.G.S. § 7B-1001 and violative of the letter and purpose of Rule 3A(a). Accordingly, we lack jurisdiction to consider the appeal. Counsel for respondent-mother asks this Court to review her appeal by writ of certiorari, in the event that we deem her notice of appeal fatally defective under Rule 3A(a). We note, however, in addition to not signing the notice of appeal, respondent-mother has also not signed the petition for writ of certiorari. It cannot be said that she has lost her right of appeal simply for "failure to take timely action" as contemplated by Rule 21(a). See In re A.C., ___ N.C. App. ___, ___, 643 S.E.2d 470, ___ (2007) (finding no basis for review by writ of certiorari under Rule 21(a)(1) where appeal was dismissed for want of a certificate of service accompanying the notice of appeal). Rather, respondent-mother has failed to comply with Rule 3A(a) in showing no indication of participating with her counsel to pursue this appeal. Therefore, we deny her petition for writ of certiorari. Id.
Appeal dismissed; petition denied.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).