North Carolina Court of Appeals Grants En Banc Review for First Time

Pursuant to authority given it by the General Assembly, our state Court of Appeals has had the power to sit as a full 15-judge en banc court, in addition to its typical three-judge panels, since December 2016. One could have been forgiven for wondering if it was a power that the Court was interested in exercising as nearly five years passed and dozens of motions for en banc review were denied.

But now the wait is over. On Friday, the Court granted en banc review of a three-judge panel decision for the first time in the case of In re A.C. The case is an appeal of a trial court decision that a juvenile child’s father had acted inconsistently with his constitutional right to parent. As a consequence, the trial court determined that it was in the child’s “best interest and welfare for guardianship to be granted to” his foster parents.

At the three-judge panel stage, Judge Hunter Murphy, joined by Judges John Tyson and Fred Gore, found that the “juvenile’s father failed to object, present argument or otherwise raise the issue of his constitutionally protected parental status at the permanency planning hearing[.]” Accordingly, the panel held that the father “waived appellate review of the trial court’s determination he acted inconsistently with his constitutionally protected parental rights.”

At first blush, In re A.C. might seem an unlikely candidate for en banc review. First, as a unanimous decision, the odds of securing review by the full court are daunting. Assuming the three panelists voted against further review (not necessarily a given should a member of the panel, for instance, have felt bound to follow prior Court of Appeals precedent that he disagreed with), then eight of the remaining 12 judges on the Court would have had to vote to hear the case to supply the requisite majority. Second, the panel opinion is unpublished, meaning it does not have precedential value. While, of course consequential to the father, the child, and the foster parents, the impact of In re A.C. stops there.

But these same factors may have pushed the Court of Appeals to grant further review. There is no appeal of right to the North Carolina Supreme Court from a unanimous Court of Appeals panel decision. And a unanimous, unpublished decision may not stand out as one meriting discretionary review from our increasingly busy Supreme Court. Long story short: without en banc review, the father in In re A.C. may have reached the end of the line with the arguments he advanced on appeal.

Moreover, and though the General Assembly briefly steered them away from it, the Court of Appeals has a great deal of experience in juvenile cases governed by Rule 3.1 of the North Carolina Rules of Appellate Procedure. For instance, new Chief Judge Donna Stroud has heard Rule 3.1 cases for more than a decade as an appellate judge. She also served as a district court judge prior to her election to the Court of Appeals; Rule 3.1 cases originate from the district court. (Three other Court of Appeals judges, including Judge Gore, also have district court judicial experience.)

And, at the risk of stating the obvious, decisions pertaining to a parent’s custody of his or her child are weighty. Not only this but also, as Beth Scherer of Fox Rothschild neatly summarizes here, whether parents like the father in In re A.C. must preserve in the trial court arguments as to the constitutional presumption that they have paramount right to child custody is unclear. Indeed, three lines of Court of Appeals decision answer that question with a “yes,” a “yes, in certain circumstances,” and a “no.” In re A.C. thus implicates one of the stated purposes for en banc review: securing uniformity in decisions by the Court of Appeals.

One final note: the Court of Appeals recently indicated it would more fully return to in- person oral argument in August (while retaining the option for remote oral argument if desired by counsel). As anyone who has attended a swearing in at the Court of Appeals knows, getting 15 judges behind the bench requires some creativity in the best of circumstances (and even when not each of the judges is speaking). The ongoing COVID-19 public health crisis is not the best of circumstances (and I would expect plenty of questions in the first-ever en banc argument). Suffice it to say, pulling off an in-person full court argument will pose its share of logistical challenges.