In re T.S., III, ___ N.C. App. ___ (May 7, 2025)
Held:
Dismissed
- Facts and procedural history: This case is on remand from the supreme court and arises from a permanency planning order granting guardianship of Mother’s two children to their paternal grandmother. At the permanency planning hearing, Mother specifically argued that the trial court’s consideration of guardianship was premature given her progress on her case plan in the recent months and would prohibit reunification with her children. The trial court’s order ultimately found by clear and convincing evidence that Mother was unfit and was acting inconsistently with her constitutionally protected status as a parent and granted guardianship of the children to their paternal grandmother. On Mother’s initial appeal, the court of appeals vacated and remanded the PPO. In re T.S., III., ___ N.C. App. ___ (2024); summarized here. The court of appeals determined the trial court’s findings of fact did not support its determination that Mother was unfit or acted inconsistently with her constitutionally protected status as a parent such that guardianship was in the children’s best interests. DSS and the GAL petitioned the supreme court for discretionary review. The supreme court allowed the petition without opinion “for the limited purpose of vacating the Court of Appeals decision below, . . . , and remanding the matter to that court for reconsideration in light of In re K.C., [386 N.C. 690 (2024)].” Sl. Op. at 5. The issue on remand is whether Mother waived appellate review of her constitutional argument.
- Parents have a “constitutionally-protected paramount interest in the companionship, custody, care, and control of his or her child” and are presumed to be fit and to act in their child’s best interests. Sl. Op. at 8 (citations omitted). Interference with their constitutionally protected status requires a third-party to overcome this presumption by the requisite burden of proof. A parent’s argument as to their constitutional right to the custody of their child may be waived on review if the issue is not raised at the trial court first. In In re K.C., 386 N.C. 690 (2024), the supreme court reviewed its prior holding in In re J.N., 381 N.C. 131 (2022). In re K.C., 386 N.C. 690; summarized here. Supreme court precedent states that a parent who merely argues against placement and for reunification does not adequately preserve the issue. Instead, “the parent must inform the trial court and the opposing parties that the parent is challenging the removal on constitutional grounds and [to] articulate the basis for the constitutional claim.” Sl. Op. at 9, quoting In re K.C., 386 N.C. at 697. These preservation requirements apply even if the trial court considers a parent’s constitutional claim on its own initiative in the order.
- Note: In re K.C. reversed the court of appeals preservation analysis in In re B.R.W., 278 N.C. App. 382 (2021), and all subsequent holdings relying thereon.
- Mother waived appellate review of her constitutional argument. Mother had notice of the recommendations of DSS and the GAL to the court to grant guardianship of her children to their paternal grandmother. At the permanency planning hearing Mother argued against the guardianship, specifically stating it was premature considering her recent progress on her case plan and that awarding guardianship would prohibit her reunification with the children. Mother failed to specifically argue that the disposition violated her constitutionally protected status as a parent, as required under the supreme court’s precedent in In re J.N. Mother cannot raise the issue for the first time on appeal and therefore Mother’s unpreserved constitutional challenges are dismissed.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights