In re J.N.

• Decision Date: 06 May 2022
• Docket Number: 132PA21
• Citation: 871 S.E.2d 495
• Parties: In the MATTER OF: J.N. & L.N.
• Court: North Carolina Supreme Court

871 S.E.2d 495

In the MATTER OF: J.N. & L.N.

No. 132PA21

Supreme Court of North Carolina.

Filed May 6, 2022

Theresa A. Boucher, Winston-Salem, for petitioner-appellee Forsyth County Department of Social Services.

Rosenwood, Rose & Litwak, PLLC, by Nancy S. Litwak, Charlotte, for appellee Guardian ad Litem.

Troy Shelton, Raleigh, and R. Daniel Gibson, Apex, for appellees juveniles’ guardians.

Benjamin J. Kull, Raleigh, for respondent-appellant father.

BERGER, Justice.

¶ 1 Respondent-father petitioned the Court for discretionary review of a Court of Appeals decision vacating the trial court's permanency planning order and remanding the case for additional findings.¹ We affirm.

I. Background

¶ 2 On April 10, 2018, the Forsyth County Department of Social Services (DSS) filed juvenile petitions alleging that J.N. (Jimmy) was an abused and neglected juvenile and L.N. (Lola) was a neglected juvenile.² The trial court granted nonsecure custody to DSS on the same day. On May 8, 2019, the trial court adjudicated Jimmy to be an abused and neglected juvenile and Lola to be a neglected juvenile.

¶ 3 The trial court held a permanency planning hearing on September 9, 2019. At the hearing, DSS sought to change the primary plan from reunification to guardianship with an approved caregiver. Respondent's sole argument to the trial court was that reunification should remain the primary plan. Respondent did not argue or otherwise contend that the evidence failed to demonstrate he was an unfit parent or that his constitutionally-protected right to parent his children had been violated. As a result of the evidence presented at the hearing, the trial court granted guardianship of the children to the maternal grandparents. Respondent appealed.

¶ 4 In the Court of Appeals, respondent argued that the trial court erred in granting guardianship to the maternal grandparents without first finding that he was an unfit parent or he had acted inconsistently with his constitutional right to parent. In addition, respondent asserted that the trial court erred by failing to make required findings under N.C.G.S. § 7B-906.1(n) in the permanency planning order before ceasing further permanency planning review hearings.

¶ 5 On March 16, 2021, the Court of Appeals vacated the trial court's permanency planning order and remanded the case to the trial court for additional findings. In re J.N. & L.N. , 276 N.C. App. 275, 2021-NCCOA-76, ¶ 15, 855 S.E.2d 303. The Court of Appeals agreed with respondent that the trial court erred by failing to make necessary findings under N.C.G.S. § 7B-906.1(n). Id. ¶ 10. However, the Court of Appeals concluded that respondent had waived his argument that the trial court erred by granting guardianship without first concluding that respondent was an unfit parent or had acted inconsistently with his constitutional right to parent. Id. ¶ 9. Respondent petitioned this Court for discretionary review, arguing that the Court of Appeals erred by holding that respondent failed to preserve his constitutional argument.

II. Analysis

¶ 6 Respondent contends that his constitutional argument is automatically preserved under N.C. R. App. P. 10(a)(1) by our holding in Petersen v. Rogers , 337 N.C. 397, 445 S.E.2d 901 (1994). There, this Court stated that "the law presumes parents will perform their obligations to their children, [and] presumes their prior right to custody." Id. at 403, 445 S.E.2d at 904 (quoting In re Hughes , 254 N.C. 434, 436–37, 119 S.E.2d 189, 191 (1961) ). "[A]bsent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail." Id. at 403–04, 445 S.E.2d at 905.

¶ 7 But the existence of a constitutional protection does not obviate the requirement that arguments rooted in the Constitution be preserved for appellate review. Our appellate courts have consistently found that unpreserved constitutional arguments are waived on appeal. See State v. Lloyd, 354 N.C. 76, 86–87, 552 S.E.2d 596, 607 (2001) ("Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal."); State v. Fernandez , 346 N.C. 1, 18, 484 S.E.2d 350, 361 (1997) (holding that defendant waived confrontation and due process arguments by not first raising the issues in the trial court); Dep't of Transp. v. Haywood Oil Co. , 195 N.C. App. 668, 677–78, 673 S.E.2d 712, 718 (2009) (holding that arguments pertaining to Fourteenth Amendment to the United States Constitution and law of the land clause of the North Carolina Constitution, although constitutional issues, were not raised before the trial court and therefore not properly preserved for appeal); State v. Wiley , 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002) ("It is well settled that an error, even one of constitutional magnitude, that [is not brought] to the trial court's attention is waived and will not be considered on appeal.").

¶ 8 Nothing in Petersen serves to negate our rules on the preservation of constitutional issues. Thus, 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.

¶ 9 Here, respondent failed to assert his constitutional argument in the trial court. Respondent was on notice that DSS and the guardian ad litem were recommending that the trial court change the primary permanent plan in this case from reunification to guardianship. Prior to the hearing, DSS filed a court report in which it stated that reunification was not possible due to the minimal progress respondent had made and because respondent was unable to provide for the safety and well-being of Jimmy and Lola. DSS, therefore, recommended that guardianship be granted to the maternal grandparents. Further, the guardian ad litem also filed a court report recommending that guardianship be granted to the maternal grandparents. Moreover, during closing arguments at the hearing, the guardian ad litem attorney specifically stated, "Your Honor, at this point, we feel and would respectfully request that you allow guardianship to be given to [the maternal grandparents]."

¶ 10 In turn, respondent's argument focused on the reasons reunification would be a more appropriate plan. Despite having the opportunity to argue or otherwise assert that awarding guardianship to the maternal grandparents would be inappropriate on constitutional grounds, respondent failed to do so. Therefore, respondent waived the argument for appellate review.

III. Conclusion

¶ 11 The Court of Appeals did not err in concluding that respondent waived his constitutional argument by not first raising the issue before the trial court.

AFFIRMED.

Justice EARLS concurring.

¶ 12 I concur with the majority that in the context of an abuse and neglect proceeding in juvenile court, the potential issue that a trial court's order may infringe upon a parent's constitutional right under the substantive Due Process Clause of the Fourteenth Amendment to the custody, care, and control of their child is subject to the general rule that the issue must first be raised by the parent in the trial court. See, e.g., State v. Creason , 313 N.C. 122, 127, 326 S.E.2d 24 (1985) (explaining that the Court is not required to rule on a constitutional issue that was not raised and determined in the trial court). At the same time, nothing in the Court's decision today in any way compromises or negates the principles established in Petersen v. Rogers , 337 N.C. 397, 403–04, 445 S.E.2d 901 (1994), Price v. Howard , 346 N.C. 68, 79, 484 S.E.2d 528 (1997), Adams v. Tessener , 354 N.C. 57, 62, 550 S.E.2d 499 (2001), and Owenby v. Young , 357 N.C. 142, 148, 579 S.E.2d 264 (2003), that (1) a parent has a "constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child," Price , 346 N.C. at 79, 484 S.E.2d 528 ; (2) before awarding custody of a parent's child to a nonparent, the trial court must first determine, based on clear and convincing evidence, that the natural parent has forfeited their constitutionally-protected status, Owenby, 357 N.C. at 148, 579 S.E.2d 264 ; and (3) a parent forfeits this paramount interest by either being unfit to have custody or when the parent's behavior "viewed cumulatively" has been inconsistent with the parent's constitutionally-protected parental status, id. Limited to the narrow facts of this case, we hold today that while a parent's rights are protected by "a constitutionally based presumption," Routten v. Routten , 374 N.C. 571, 576, 843 S.E.2d 154 (quoting Routten v. Routten , 262 N.C. App. 436, 459, 822 S.E.2d 436 (2018) (Inman, J., concurring in part)), cert. denied , ––– U.S. ––––, 141 S. Ct. 958, 208 L.Ed.2d 495 (2020), reh'g denied , ––– U.S. ––––, 141 S. Ct. 1456, 209 L.Ed.2d 175 (2021), when a child is already in the custody of a nonparent by valid court order, as in these juvenile court proceedings, a parent on notice that a court may enter a permanent order of guardianship must raise the objection that the constitutionally-required findings are not present in order to preserve that issue for appeal.¹

¶ 13 As recent decisions illustrate, several propositions also follow from this conclusion. First, a parent must actually have an opportunity to make the argument in the court below. For example, if the procedural posture of the case is such that the Department of Social Services (DSS) has noticed a hearing to determine visitation and does not present any evidence that the parent is unfit or has acted inconsistently with their parental rights, but after the hearing the parent receives an order in which the trial court has imposed guardianship, the parent has had no chance to raise the constitutional issue before the trial court. See, e.g., In re R.P. , 252 N.C. App. 301, 305, 798...