In re K.C., ___ N.C. ___ (December 13, 2024)
Held:
Reversed
There is a dissent
by Riggs, J., joined by Earls, J.
- Facts and procedural history: This case arises from Father’s appeal of an initial disposition order temporarily placing his child with their paternal aunt and uncle after the child was adjudicated neglected based on circumstances created by Mother in Mother’s home. At the disposition hearing, neither Father nor Mother objected to the child’s temporary placement based on constitutional grounds. The trial court’s order examined the issue on its own and found both parents had acted inconsistently with their constitutional rights as parents. Father appealed, challenging the trial court’s determination that he had acted inconsistently with his parental status. The court of appeals held that Father, who was the “non-offending parent,” had preserved his constitutional argument for appellate review by opposing DSS’s recommendation of the placement and arguing for his ability to care for the child during the hearing. Sl. Op. at 5. In vacating the disposition order and remanding for a new hearing, the court of appeals determined the trial court’s findings did not support a conclusion that Father had forfeited his constitutionally-protected status as a parent such that trial court was required to place the child with father. DSS filed a notice of appeal based on the dissenting opinion, which determined “findings concerning the constitutional standard were ‘premature and unnecessary to the trial court’s disposition decision awarding temporary custody to relatives.’ ” Sl. Op. at 6 (citation omitted). DSS also petitioned for discretionary review of additional issues concerning the scope of the constitutional right to parent and the applicable legal test for that right at initial stages of juvenile proceedings. The supreme court allowed the PDR and later entered a special order allowing review of whether Father properly preserved the constitutional issue for review.
- Parents have a “constitutionally protected paramount interest in the companionship, custody, care and control of his or her child.” Sl. Op. at 7-8 (citation omitted). Custody may be awarded to a nonparent only when the parent has acted inconsistently with their constitutionally-protected status as a parent. “[I]n most juvenile cases, the underlying facts that support the adjudication of abuse, neglect, or dependency also will satisfy the constitutional criteria.” Sl. Op. at 9. However there are rare cases where the Juvenile Code authorizes removal of the child from their parent that would be unconstitutional as applied to a particular parent. “[A] parent’s argument concerning his or her paramount interest to the custody of his or her child, although afforded constitutional protection, may be waived on review if the issue is not first raised in the trial court.” Sl. Op. at 10, citing In re J.N., 381 N.C. 131, 133 (2022). “[A] parent who merely argues against a child’s removal, or against the child’s placement with someone else, does not adequately preserve the constitutional issue. To preserve it, the parent must inform the trial court and the opposing parties that the parent is challenging the removal on constitutional grounds and articulate the basis for the constitutional claim.” Sl. Op. at 12 (emphasis in original). The “waiver principle applies even if the trial court addresses the issue on its own initiative in its order.” Sl. Op. at 2.
- Note: The supreme court expressly overruled the preservation holdings of the court of appeals in In re B.R.W., 278 N.C. App. 382 (2021), aff’d on other grounds, 381 N.C. 61 (2022) and all resulting court of appeals holdings that followed, holding the issue was preserved when the parent opposed the child’s removal on any grounds without expressly making a constitutional argument.
- Father did not preserve the constitutional claim for appellate review. Father concedes he did not argue the relative placement would violate his constitutional right as a parent to the trial court. Father’s appeal was solely based on the trial court’s determination as to his constitutional status as a parent, and since the issue is waived as a matter of law and not subject to appellate review, the court of appeals erred by addressing the constitutional issue.
- The supreme court addressed the propriety of ruling on the preservation issue when the issue was not presented in DSS’s notice of appeal, PDR, or brief, referencing that precedent does not require the court to rule on an issue not properly raised and determined in the trial court. The court further reasoned that the supreme court is tasked with allowing discretionary review on its own motion pursuant to G.S. 7A-31(a) when the court of appeals’ decision appears to be in likely conflict with a supreme court decision such that the supreme court has the “responsibility to ensure the consistency of the State’s jurisprudence and prevent competing lines of precedent . . .” Sl. Op .at 14.
- Dissent: The issue of preservation was not properly before the court and the court should have addressed the merits of Father’s appeal. Even if Father waived his constitutional argument, the court could have invoked Appellate Rule 2 to reach the merits of the case. The decision of the court of appeals should be affirmed and the case remanded to the trial court for further findings as to the effect of Father’s parenting on the child, specifically regarding Father’s criminal history, the pending domestic violence charge against Father, and Father’s home. Other findings relating to Father’s clothing, employment, and tendency to move are impermissible as they relate to Father’s socioeconomic status.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights