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In re Wharton

Filed: November 3, 1981.

IN THE MATTER OF PHILLIP WHARTON, JUVENILE


Appeal by Guilford County from Pfaff, Judge. Order filed 3 November 1980 in District Court, Guilford County. Heard in the Court of Appeals 20 October 1981.

Martin (Harry C.), Judge. Judges Hedrick and Clark concur.

Martin

This appeal is subject to dismissal. Our Supreme Court has recently stated the law with respect to the right of a county to

take an appeal in a juvenile proceeding. In re Brownlee, 301 N.C. 532, 272 S.E.2d 861 (1981). Here, as in Brownlee, the county is not a party to the proceeding. Although the Guilford County Department of Social Services was before the trial court, Guilford County was not. "One who is not a party to an action or who is not privy to the record is not entitled to appeal from the judgment of a lower court." Id. at 546, 272 S.E.2d at 869. See N.C. Gen. Stat. § 1-271 (1969). As stated in Brownlee, even if Guilford County were a party, it would not have a right of appeal. N.C. Gen. Stat. § 7A-667 (Supp. 1979). The county is not a "county agency" within the meaning of the statute. Brownlee, supra.

We hold that Guilford County did not have the right to appeal from the challenged orders. A close reading of the record on appeal discloses that Frank W. Wilson did not enter notice of appeal or seek appellate review of the court's order of contempt filed 3 November 1980. Moreover, no brief was filed by him or on his behalf.

Nevertheless, this Court is authorized to exercise its power under our constitution and review questions which are not presented in accordance with the North Carolina Rules of Appellate Procedure. N.C. Const. art. IV, § 12(1); Brownlee, supra. We therefore elect, in our discretion, to treat the papers filed before us as a motion requesting the Court to exercise its constitutional powers to enable it to review the order of the trial court, dated 12 September 1980, requiring Guilford County to pay a part of the counsel fees for the juvenile's appointed attorney. We allow the motion for the sole purpose of reviewing the order of 12 September 1980.

The trial court based its order of 12 September 1980 upon N.C.G.S. 7A-646 and -647. In this, the trial court erred. N.C.G.S. 7A-647 allows the judge to charge the county with the "cost of care" of a juvenile if the parent is unable to pay such cost. "Cost of care" does not include counsel fees for the juvenile. Counsel fees for the juvenile are governed by N.C.G.S. 7A-588. Under this section, counsel are to be paid reasonable fees in the same manner as fees for attorneys appointed in cases of indigency. Article 36 of Chapter 7A sets out the procedures for payment of such counsel fees. Juvenile proceedings are specifically included in section 451(a)(8) of article 36. Fees of assigned counsel for indigents,

including indigent juveniles, shall be borne by the state. N.C. Gen. Stat. § 7A-452(b) (1969).

The trial court was without authority to enter the order of 12 September 1980 requiring Guilford County to pay part of the counsel fees for the juvenile, Phillip Wharton, and the order is hereby vacated.

Except as to the review of the order of 12 September 1980, the appeal is dismissed.

Order of 12 September 1980 vacated and appeal dismissed. Costs of appeal are to be ...


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