Writer and futurist Alvin Toffler cautioned, “You’ve got to think about big things while you’re doing small things, so that all the small things go in the right direction.” Today’s batch of Court of Appeals opinions illustrates why thinking about small things is frequently critical to ensuring that big things go in the right direction, too.
Private and Sensitive Information about Minors in Appellate Records
Appellate Rule 42 protects the identity and personal information of minor children in appeals involving juvenile delinquency, child abuse and neglect, and child-victim sex offenses. Subsection (b) of that Rule requires that the appellate records, briefs, and other papers in these cases be filed under seal. In addition, appellate briefs must use pseudonyms, rather than the minors’ names, when referring to individuals covered by this Rule. These provisions are mandatory.
But what about family law appeals where one parent may have made unsubstantiated assertions of sexual abuse against the other parent? Or consider family law appeals in which the children’s names, birthdates, social history, medical records, and other highly sensitive, personal identifying information can be splattered throughout the appellate record. What protections are provided to vulnerable children in those types of appeals?
In Frazier v. Frazier, 2022-NCCOA-781, the Court of Appeals acknowledged that the mandatory provisions of Appellate “Rule 42 unfortunately do not cover cases” like these. Frazier, nevertheless, strongly encourages avoidance of “this loophole in Rule 42”:
[W]e encourage parents, trial courts, and counsel involved in child custody proceedings to be keenly aware of the need to protect the confidentiality of minor children who are the innocent and unfortunate victims of disputes between their parents or caregivers. Unless the record, or portions of the record, is sealed, all the information in records filed with the Court of Appeals is available online and disclosure of this sort of personal information of a minor child can result in direct harm to the minor child. There is simply no good reason to have a minor child’s confidential medical records and personal identifying information placed on the permanent public record, available online to the entire world.
As it turns out, subsection (c) of Appellate Rule 42 contains a mechanism to seal confidential records in cases like these—which is what the Court of Appeals did sua sponte in Frazier.
Frazier, however, has issued a challenge to trial courts, trial counsel, and appellate practitioners to act first to protect the vulnerable. Of course, one good time to think about protecting sensitive and confidential information is during the record-settlement process. The Frazier opinion provides a solid basis for parties to move in the appellate courts under Appellate Rule 42(c) to file confidential and sensitive information about minors under seal.
Bar none, however, the best time to think about sealing is when confidential and sensitive documents are initially submitted in the trial tribunal. When confidential records are sealed by the trial tribunal, there is no need to ask the appellate courts for a separate sealing order. “Items sealed in the trial tribunal remain under seal in the appellate courts.” See N.C. R. App. P. 42(a).
On the other hand, it is not unusual to find highly sensitive information spread throughout public trial court files. Why? As Matt and I have previously noted, parties, counsel, and trial judges tend to “believe that the paper-driven nature of trial-tribunal dockets provides a practical barrier to access that affords adequate protection at that level.” Scherer & Leerberg, North Carolina Appellate Practice and Procedure, § 29.02 [Materials to be Sealed in the First Instance on Appeal] (2022). But as North Carolina quickly approaches the new dawn of electronic trial court filings throughout the State, we must reevaluate those prior assumptions.
At the end of the day, nobody wants predators to have easy online access to the names, ages, addresses, schools, and daily routines of vulnerable children. Nor should we want court records to be a treasure trove for school bullies seeking highly personal or sensitive information about classmates who are caught up in the legal disputes of their parents. Frazier is asking the bench and bar to start thinking about these small things now.
Filed-Stamped Notice of Appeals
Turning to a completely different little detail, I was surprised that the latest batch of opinions involved two separate appeals that were dismissed solely because the appellate records contained non-filed stamped notices of appeals. Braswell v. Monarch Auto Rentals, Inc., 2022-NCCOA-800; Water Damage Experts of Hillsborough, LLC v. Miller, 2022-NCCOA-270. While I hate to shout about small details, please remind your friends: FILED-STAMPED notices of appeal in appellate records are important!
UPDATE: On 22 December 2022, the Court of Appeals in Water Damage Experts of Hillsborough, LLC v. Miller granted appellant’s unopposed motion to amend the record on appeal to add the file-stamped notice of appeal. The December 6, 2022 opinion dismissing the appeal has been withdrawn and the case has been retained by the panel for decision. EBS