IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-52 No. 132PA21
Filed 6 May 2022 IN THE MATTER OF: J.N. & L.N.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 276 N.C. App. 275, 2021-NCCOA-76, vacating and remanding
an order entered on 8 January 2020 by Judge Lisa V. Menefee in District Court,
Forsyth County. Heard in the Supreme Court on 22 March 2022.
Theresa A. Boucher for petitioner-appellee Forsyth County Department of Social Services.
Rosenwood, Rose & Litwak, PLLC, by Nancy S. Litwak, for appellee Guardian ad Litem.
Troy Shelton and R. Daniel Gibson for appellees juveniles’ guardians.
Benjamin J. Kull 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)
1 The mother of the juveniles is deceased. IN RE J.N. & L.N.
2022-NCSC-52
Opinion of the Court
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
2 Pseudonyms are used to protect the identity of the juveniles and for ease of reading. IN RE J.N. & L.N.
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. 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 IN RE J.N. & L.N.
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. IN RE J.N. & L.N.
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
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IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-52 No. 132PA21
Filed 6 May 2022 IN THE MATTER OF: J.N. & L.N.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, 276 N.C. App. 275, 2021-NCCOA-76, vacating and remanding
an order entered on 8 January 2020 by Judge Lisa V. Menefee in District Court,
Forsyth County. Heard in the Supreme Court on 22 March 2022.
Theresa A. Boucher for petitioner-appellee Forsyth County Department of Social Services.
Rosenwood, Rose & Litwak, PLLC, by Nancy S. Litwak, for appellee Guardian ad Litem.
Troy Shelton and R. Daniel Gibson for appellees juveniles’ guardians.
Benjamin J. Kull 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)
1 The mother of the juveniles is deceased. IN RE J.N. & L.N.
2022-NCSC-52
Opinion of the Court
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
2 Pseudonyms are used to protect the identity of the juveniles and for ease of reading. IN RE J.N. & L.N.
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. 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 IN RE J.N. & L.N.
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. IN RE J.N. & L.N.
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 (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 (1994), Price v. Howard, 346 N.C. 68, 79 (1997), Adams v. Tessener, 354 N.C.
57, 62 (2001), and Owenby v. Young, 357 N.C. 142, 148 (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; (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; 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. IN RE J.N. & L.N.
Earls, J., concurring
Routten, 374 N.C. 571, 576 (quoting Routten v. Routten, 262 N.C. App. 436, 459 (2018)
(Inman, J., concurring in part)), cert. denied, 141 S. Ct. 958 (2020), reh’g denied, 141
S. Ct. 1456 (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
1 While state statutory schemes are distinct, most other states that have addressed whether a parent waives constitutional arguments in these circumstances by not raising them below follow this rule. See, e.g., In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003) (holding that in termination of parental rights cases, constitutional due process rights must be raised in the trial court in order to be considered on appeal); In re Doe, 454 P.3d 1140, 1146 (Idaho 2019) (same); In re Zanaya W., 291 Neb. 20, 31, 863 N.W.2d 803, 812 (2015) (holding that a trial court cannot be found to have committed error regarding an issue never presented to it for disposition). The states that do appear to allow parents to raise these issues for the first time on appeal hold that an appellate court has a duty to sua sponte consider violations of fundamental constitutional rights. See, e.g., In re S.S., 2004 OK CIV APP 33, ¶ 7, 90 P.3d 571, 574–75; Monica C. v. Ariz. Dep’t of Econ. Sec., 211 Ariz. 89, ¶ 23, 118 P.3d 37, 42 (2005); In re B.A., 2014 VT 76, 197 Vt. 169, 101 A.3d 168; In re H.Q., 182 Wash. App. 541, 330 P.3d. 195, 200 (2014). IN RE J.N. & L.N.
constitutional issue before the trial court. See, e.g., In re R.P., 252 N.C. App. 301, 305
(2017) (holding that although a parent’s right to findings regarding his or her
constitutionally-protected status is waived if the parent does not raise the issue
before the trial court, no waiver occurred when the parent was not afforded the
opportunity to raise an objection at the permanency planning review hearing). In
such circumstances the parent has not waived their right to findings regarding their
constitutional status because there was no opportunity to raise an objection at the
hearing.
¶ 14 Second, there are no “magic words” such as “constitutionally-protected status
as a parent” that must be uttered by counsel, nor is the parent’s counsel required to
object to certain evidence or specific findings of fact to preserve the constitutional
issue. DSS may present evidence that a parent is unfit or otherwise has acted
inconsistently with their constitutionally-protected status. Unless the parent
presents no evidence and makes no arguments, the parent has raised the
constitutional issue by responding to DSS’s arguments. See In re B.R.W., 2021-
NCCOA-343, ¶ 40, aff’d, No. 310A21 (N.C. May 6, 2022).
¶ 15 Third, when a parent is on notice that the trial court is considering awarding
guardianship to a nonparent and DSS has not offered evidence that the parent is
unfit or has acted inconsistently with their constitutionally-protected status, the
parent still must raise the constitutional issue in the trial court, and failure to do so IN RE J.N. & L.N.
constitutes a waiver. See, e.g., In re C.P., 258 N.C. App. 241, 246 (2018). The trial
court must be on notice that the parent is contesting the loss of their constitutional
rights and their arguments for why the evidence does not overcome that presumption.
The trial court must then make the factual findings necessary to support its legal
determination of whether the parent is unfit or has acted inconsistently with his or
her constitutionally-protected parental status, with the burden of proof remaining
with the petitioner. See Price, 346 N.C. at 84.
¶ 16 It remains the law in North Carolina that a trial court cannot proceed to
evaluate the best interests of the child “[u]ntil, and unless, the [petitioner] establishes
by clear and convincing evidence that a natural parent’s behavior, viewed
cumulatively, has been inconsistent with his or her protected status.” Owenby, 357
N.C. at 148. Moreover, the “clear and convincing standard requires evidence that
should fully convince.” In re I.K., 377 N.C. 417, 2021-NCSC-60, ¶ 19 (quoting
Scarborough v. Dillard’s, Inc., 363 N.C. 715, 721 (2009)). “This burden is more
exacting than the preponderance of the evidence standard[.]” Id. (quoting
Scarborough, 363 N.C. at 721).
¶ 17 Finally, as a matter of issue preservation, it remains true that while “a
constitutional question which is not raised and passed upon in the trial court will not
ordinarily be considered on appeal[,]” State v. Benson, 323 N.C. 318, 322 (1988)
(quoting State v. Hunter, 305 N.C. 106, 112 (1982)), this does not mean that IN RE J.N. & L.N.
constitutional issues may never be raised in the first instance on appeal. As our rules
explicitly recognize, some issues are deemed preserved by rule or law. See N.C. R.
App. P. 10(a); N.C.G.S. § 15A-1446(d) (2021). Moreover, “[t]his Court may exercise its
supervisory power to consider constitutional questions not properly raised in the trial
court, but only in exceptional circumstances.” Anderson v. Assimos, 356 N.C. 415, 416
(2002). Such exceptional circumstances are not present in this case. Therefore, I
concur that the constitutional issues were not properly preserved for appeal.