In re J.N., 381 N.C. 131 (2022)
Held:
Affirmed
- Facts: Two juveniles were adjudicated neglected and one was also adjudicated abused. At a permanency planning hearing, DSS recommended guardianship be ordered, while the father argued reunification should be the primary plan. The court ordered guardianship to maternal grandparents and father appealed, arguing there were no findings about him acting inconsistently with his constitutional rights to care, custody, and control or that he was unfit. At the hearing father did not raise his constitutional rights to parent. The court of appeals determined that the father waived his right to argue the court erred by not addressing his constitutional rights. The supreme court granted discretionary review.
- The constitutional protection afforded parents under Petersen v. Rogers, 337 N.C. 397 (1994) to care, custody, and control of their child(ren) “does not obviate the requirement that arguments rooted in the Constitution be preserved for appellate review.” 381 N.C. at 133. A parent waives the issue regarding their paramount constitutional rights for review if they do not first raise the issue in the trial court.
- Respondent waived this issue by not raising it in the trial court. Respondent had notice that guardianship was being recommended by DSS and the GAL through their court reports and the GAL attorney explicitly requested guardianship be ordered in closing arguments. Father focused his arguments on why reunification was more appropriate but did not assert ordering guardianship would be in appropriate on constitutional grounds.
- Concurrence: When child already not in parent’s custody through a court order as in an A/N/D action, a parent is on notice that the court may order permanent guardianship and must raise the objection regarding their constitutional rights. The parent waives the issue if they have an opportunity to make the argument in the trial court. There are no magic words to use. The parent must raise the issue even if DSS does not offer evidence that the parent is unfit or acted inconsistently with their constitutional rights.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights