IN THE SUPREME COURT OF NORTH CAROLINA
No. 142A23
Filed 13 December 2024
IN THE MATTER OF: K.C.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 288 N.C. App. 543 (2023), vacating and remanding an order
entered on 8 February 2022 by Judge Doretta L. Walker in District Court, Durham
County. On 1 September 2023, the Supreme Court allowed petitioner’s petition for
discretionary review as to additional issues. Heard in the Supreme Court on 20
February 2024.
Patrick A. Kuchyt for petitioner-appellant Durham County Department of Social Services.
Alston & Bird LLP, by Kelsey L. Kingsbery for appellee Guardian ad Litem.
Richard Croutharmel for respondent-appellee father.
DIETZ, Justice.
Parents have a constitutional right to care for their children and guide their
upbringing. Sadly, there are times when the State’s own compelling interest in
protecting children forces the State to step in and remove children from their parents.
In our juvenile system, a complex series of statutes governs the removal of
children from their parents’ care. See N.C.G.S. § 7B-100 et seq. These statutes, known
as the Juvenile Code, are designed to ensure that the rights of both parents and IN RE K.C.
Opinion of the Court
children are protected, while also prioritizing the children’s need for a safe,
permanent home during childhood.
In most juvenile cases, these statutory safeguards also ensure that the State’s
actions do not violate the parents’ constitutional rights. But there can be rare cases
in which—although the provisions of the Juvenile Code are satisfied—removing a
child from the parent’s care would violate the parent’s constitutionally protected
status. Put another way, there can be rare cases in which, as applied to a particular
parent, the Juvenile Code is unconstitutional because its protections of a parent’s
interests are not strong enough. See generally In re B.R.W., 381 N.C. 61, 77 (2022).
Importantly, this constitutional claim must be preserved for appellate review
like any other. See In re J.N., 381 N.C. 131, 133 (2022). To do so, a parent must inform
the trial court and the opposing parties that the parent is asserting a challenge on
constitutional grounds and articulate the basis for that constitutional claim. Id. at
133–34. If the parent fails to do so, the claim cannot be reviewed on appeal.
This waiver principle applies even if the trial court addresses the issue on its
own initiative in its order. In that circumstance, waiver is compelled not only by the
principles articulated in cases such as In re J.N., but also from the doctrinal
requirement that trial courts base their rulings on the evidence in the record. If a
parent does not raise this constitutional claim, the opposing parties will not have
notice that they must present evidence to rebut it—evidence that, by its nature, may
be different from what is needed to satisfy the statutory criteria in the Juvenile Code.
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In this case, the trial court examined and rejected the constitutional issue on
its own initiative in its order. But respondent concedes that he did not raise this
constitutional claim in the trial court. Because this unpreserved constitutional issue
was the sole basis for respondent’s appeal, the Court of Appeals erred by addressing
it. We reverse the decision of the Court of Appeals.
Facts and Procedural History
I. Petition, Adjudication, and Disposition
Respondent is the father of four-year-old Katy.1 Respondent and Katy’s mother
do not live together and Katy’s mother had physical custody of the child, although
respondent visited Katy at various times after she was born.
Shortly after Katy was born, the Alamance County Department of Social
Services received a report that Katy tested positive for marijuana. During the
investigation, Katy’s mother also admitted to using cocaine while pregnant. Katy’s
mother later moved to Durham to reside with Katy’s maternal grandmother. The
Durham County Department of Social Services then took over the case. DSS
attempted to offer services to Katy’s mother to address her mental health, drug abuse,
and anger management issues, but the mother declined to participate.
While Katy was still an infant, her mother caused an automobile accident
while under the influence of alcohol and fled the scene. Following that incident, DSS
1 Pursuant to N.C. R. App. P. 42(b), the parties stipulated to use of this pseudonym to
refer to the juvenile.
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established a safety plan for Katy and placed Katy with respondent. Several days
later, DSS filed a petition alleging that Katy was a neglected juvenile. At the time,
DSS believed respondent was a suitable placement for Katy and saw no issue with
respondent caring for Katy.
Social workers handling the matter later learned that respondent had a
lengthy criminal history which included convictions for driving while license revoked,
assault on a female, possession of marijuana, and possession of a firearm.
Before the initial disposition hearing, respondent was arrested again, this time
for assault on a female. The assault allegedly occurred outside respondent’s home
while Katy was nearby. After learning of this arrest, DSS changed its dispositional
recommendation and requested that Katy be placed with her paternal aunt and uncle.
The trial court held a disposition hearing and, after hearing evidence, ordered
that Katy be placed with her paternal aunt and uncle, with a review hearing
scheduled for two weeks later.
In its disposition order, the trial court found that respondent had a “significant
criminal history,” including charges of assault on a female, and that he had a pending
charge for assaulting his ex-girlfriend. The court also found that respondent’s
“description and downplay of the domestic violence incident” that led to his most
recent arrest was not credible. The court further found that a video the trial court
viewed of the interior of respondent’s home raised concerns about respondent’s living
environment. The court also found that respondent “would tote his daughter around
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in the car while delivering his product for his business” in a manner that was
“inappropriate” for a child of that age.
Based on these findings, the trial court determined that it was in Katy’s best
interest to be placed temporarily with the paternal aunt and uncle, at least until the
review hearing scheduled for two weeks later.
The trial court’s disposition order also contained a statement that both
respondent and Katy’s mother “acted inconsistent with their constitutional rights as
parents.” It is undisputed on appeal that neither respondent nor Katy’s mother ever
asserted a claim on constitutional grounds in the trial court.
II. Court of Appeals review
On appeal to the Court of Appeals, respondent challenged the trial court’s
determination that he acted inconsistent with his constitutionally protected parental
status. In a divided opinion, the Court of Appeals reversed the disposition order and
remanded for a new hearing. The Court of Appeals majority reviewed the findings of
fact in the disposition order and concluded that there “were no allegations in the
petition or findings in the adjudication order that Respondent, the non-offending
parent, has neglected the child, is unfit, or has acted inconsistently with his
paramount constitutional right to custody of his child.” In re K.C., 288 N.C. App. 543,
551 (2023). The majority therefore held that the trial court lacked authority to place
Katy with anyone other than respondent. Id. at 550–51.
The majority also held that this issue was properly preserved for appellate
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review because respondent “opposed DSS’s recommendation” to place Katy with the
paternal aunt and uncle and instead argued that he had the ability to care for Katy.
Id. at 545. Importantly, respondent concedes that in the trial court he “did not argue
this issue as a violation of a constitutional right.” To support its preservation ruling,
the Court of Appeals cited its decision in In re B.R.W., 278 N.C. App. 382, 399 (2021),
aff’d on other grounds, 381 N.C. 61 (2022).
The dissent asserted that the trial court’s findings concerning the
constitutional standard were “premature and unnecessary to the trial court’s
dispositional decision awarding temporary custody to relatives.” In re K.C., 288 N.C.
App. at 552 (Carpenter, J., dissenting). Relying on a series of unpublished Court of
Appeals decisions, the dissent reasoned that, during the initial, temporary stages of
these juvenile proceedings, the constitutional right was not yet implicated. Thus, the
dissent reasoned, the sole appropriate question for appellate review was whether the
trial court’s best interests analysis was an abuse of discretion. Id. at 552–53. The
dissent did not address the preservation issue.
DSS filed a notice of appeal based on the dissent and also petitioned for
discretionary review of three additional issues that concerned the scope of the
constitutional right to parent and the applicable legal test for that right at the initial
stages of a juvenile proceeding. We allowed the petition for discretionary review of
these additional issues.
We later entered a special order informing the parties that we were allowing
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discretionary review on an additional issue: “In addition to the issues addressed in
this Court’s order allowing the petition for discretionary review on additional issues,
the Court intends to address the following issue: Whether respondent properly
preserved this constitutional issue for appellate review.” In re K.C., No. 142A23, ___
N.C. ___ (July 9, 2024).
We also instructed the parties to submit supplemental briefs on this additional
issue, including “whether the Court of Appeals’ reliance on its decision in In re
B.R.W., 278 N.C. App. 382, 399 (2021), conflicts with this Court’s holding in In re
J.N., 381 N.C. 131, 133 (2022).”
Analysis
I. The constitutionally protected status of a parent
The Supreme Court of the United States has held it “firmly established that
freedom of personal choice in matters of family life is one of the liberties protected by
the Due Process Clause of the Fourteenth Amendment.” Quilloin v. Walcott, 434 U.S.
246, 255 (1978) (cleaned up). Thus, there is “little doubt that the Due Process Clause
would be offended if a State were to attempt to force the breakup of a natural family,
over the objections of the parents and their children, without some showing of
unfitness and for the sole reason that to do so was thought to be in the children’s best
interest.” Id. (cleaned up).
This Court, applying this federal precedent, has long acknowledged a parent’s
“constitutionally protected paramount interest in the companionship, custody, care,
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and control of his or her child.” Price v. Howard, 346 N.C. 68, 79 (1997). Because of
this right, we held in Price that custody can be awarded to a non-parent in a family
law proceeding, based on the best interests of the child, only when the parent engages
in “conduct inconsistent with the parent’s protected status.” Id. We further held that
“unfitness, neglect, and abandonment clearly constitute conduct inconsistent with
the protected status parents may enjoy” and that “other types of conduct, which must
be viewed on a case-by-case basis, can also rise to this level so as to be inconsistent
with the protected status of natural parents.” Id.
II. Application of this constitutional right in juvenile cases
Because cases like Quilloin and Price concerned private parties seeking
permanent custody or guardianship of a child, they did not address how the
constitutional right of parents applies in juvenile cases in which the State seeks to
remove a child because of abuse, neglect, or dependency.
Abuse, neglect, and dependency cases are governed by a lengthy set of statutes
known as the Juvenile Code. See N.C.G.S. §§ 7B-100 et seq. One core purpose of these
statutes is to “provide procedures for the hearing of juvenile cases that assure fairness
and equity and that protect the constitutional rights of juveniles and parents.” Id.
§ 7B-100(1).
In nearly all cases in which a trial court adjudicates a child abused, neglected,
or dependent, the trial court’s resulting disposition, even if it removes the child from
the parent, will be constitutional. This is because, as we explained in Price,
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“unfitness, neglect, and abandonment clearly constitute conduct inconsistent with
the protected status parents may enjoy” and many other types of conduct “also rise
to this level so as to be inconsistent with the protected status of natural parents.” 346
N.C. at 79. Thus, in most juvenile cases, the underlying facts that support the
adjudication of abuse, neglect, or dependency also will satisfy the constitutional
criteria.
Nevertheless, in the years since we decided Price, we have recognized that
there might be rare circumstances in which the provisions of the Juvenile Code are
insufficient to protect the constitutional rights of parents. See, e.g., In re B.R.W., 381
N.C. at 77. In other words, there are rare cases in which, as applied to a particular
parent, the Juvenile Code is unconstitutional because it does not provide sufficient
protection of the parent’s rights. In these rare cases, even if the Juvenile Code
authorizes the trial court to remove a child from a parent, the court may not do so
because the United States Constitution prohibits it. Id.
III. Preservation of the constitutional argument
The recognition that the constitutional right to parent could be implicated in
these rare juvenile cases created a preservation question that confounded the Court
of Appeals for a number of years. Some of our case law observed that “the law
presumes parents will perform their obligations to their children” and also “presumes
their prior right to custody.” Petersen v. Rogers, 337 N.C. 397, 403 (1994). Relying on
this precedent, parents began to assert that the presumption of parental fitness
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meant the trial court must assess the constitutionality of a child’s removal in every
case. As a result, the parents argued, the issue always was preserved for appellate
review, even if the parent never raised it.
Ultimately, we rejected this argument and held that Petersen did not “negate
our rules on the preservation of constitutional issues.” In re J.N., 381 N.C. at 133.
“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.” Id.
At the same time, a line of cases developed in the Court of Appeals holding that
this constitutional argument was preserved so long as the parent opposed removal of
the child on any grounds, even if the parent never expressly asserted a constitutional
argument. See In re B.R.W., 278 N.C. App. at 397; In re X.D.P-S., No. COA21-109,
slip op. at 4 (N.C. Ct. App. Oct. 19, 2021) (unpublished) (citing In re B.R.W. for the
proposition that “when a parent presents evidence opposing a recommendation of
guardianship, the parent sufficiently preserves the constitutional issue”); In re A.N.,
No. 22-498, slip op. at 8 (N.C. Ct. App. June 6, 2023) (unpublished) (citing In re B.R.W.
for the proposition that the constitutional issue was preserved because the parent
“requested the trial court reject the recommendation of guardianship”).
This line of cases began with In re B.R.W., in which the Court of Appeals
acknowledged that the parent did not expressly raise an argument on constitutional
grounds. Nevertheless, the trial court made a finding that the parent was “unfit” and
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“acted in a manner inconsistent with [the parent’s] constitutionally protected status.”
278 N.C. App. at 395. In the lead opinion, a single Court of Appeals judge stated that
the parent had preserved the issue because she “presented evidence regarding her
ability to care for the children, opposed the recommendation of guardianship, and
requested that the trial court reject the recommendation of guardianship and allow a
trial home placement.” Id. at 399.
A second judge concurred in the judgment but questioned the preservation
discussion, noting that it appeared to conflict with other Court of Appeals case law
“concerning when and how the constitutional issue of whether parents have acted
inconsistently with their constitutionally protected rights must be raised and
preserved in the trial court.” Id. at 410 (Dietz, J., concurring). A third judge dissented
on other issues and did not address the preservation issue. Id. at 410–16. (Carpenter,
J., dissenting).
The parent filed a notice of appeal based on the dissent, but no party sought
discretionary review on the preservation issue. This Court affirmed the Court of
Appeals without addressing preservation. In re B.R.W., 381 N.C. at 93.
But on the same day that this Court issued its decision in In re B.R.W., we also
issued the decision in In re J.N. which, as noted above, squarely addressed the
preservation issue that divided the Court of Appeals in In re B.R.W. and many other
cases.
In In re J.N., we held that parents must raise the constitutional issue in the
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trial court to preserve it for appellate review. 381 N.C. at 133. Importantly, as in In
re B.R.W., the parent in In re J.N. had opposed DSS’s recommendation of
guardianship in the trial court and argued that “reunification would be a more
appropriate plan.” Id. at 134. But, we noted, the parent never argued that the
guardianship “would be inappropriate on constitutional grounds.” Id. (emphasis
added). We therefore held that “respondent waived the argument for appellate
review.” Id.
Thus, under In re J.N., 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.
This preservation requirement is necessary for a crucial reason. As noted
above, the argument is essentially a claim that the Juvenile Code is unconstitutional
as applied to that parent. After all, the argument applies only when the Juvenile Code
authorizes the removal of the child from the parent’s care, but the Constitution
nevertheless prohibits it. Thus, the parties opposing the parent’s argument must be
given notice of the constitutional challenge so that they can present evidence to rebut
it. Price, 346 N.C. at 79. This evidence, by its nature, may be different from the
evidence those parties present to establish grounds for removal under the Juvenile
Code—after all, the constitutional claim can prevail only in rare cases where the
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evidence that is sufficient to satisfy the Juvenile Code nevertheless is insufficient to
comply with the constitutional criteria.
Moreover, because of this need to provide notice to the opposing parties, the
preservation requirement applies even if the trial court addresses the constitutional
claim on its own initiative in its order. A trial court’s findings are limited to evidence
in the record. In re L.N.H., 382 N.C. 536, 546 (2022). Without notice that the parent
is asserting a constitutional claim, the opposing parties will not know that they must
present evidence that would support the necessary findings to reject the claim. Price,
346 N.C. at 79.
In sum, the Court of Appeals’ preservation analysis in In re B.R.W. did not
survive our holding in In re J.N. To prevent further confusion, we expressly overrule
the preservation holding of the Court of Appeals decision in In re B.R.W. and the
holdings of the resulting Court of Appeals case law that followed it.
Having reaffirmed the applicable preservation standard, we turn to the facts
of this case. Here, respondent concedes that he “did not argue this issue as a violation
of a constitutional right.” Thus, under In re J.N., the constitutional claim is not
preserved for appellate review. Because this was the sole issue raised by respondent
in the Court of Appeals, and because the issue is waived as a matter of law and not
subject to appellate review, we reverse the decision of the Court of Appeals. As a
result, we do not reach the remaining arguments presented to us in this appeal.
Finally, some words about the dissent. The dissent accuses us of “advocating”
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rather than objectively deciding this appeal. This is so, the dissent argues, because
we examined whether the key constitutional issue in the case was preserved for
appellate review. The parties raised that issue in their Court of Appeals briefing but
did not do so in their filings with this Court. The dissent therefore asserts that it was
improper for us to consider it.
This is a flawed argument for several reasons. First, it is well-settled from
precedent dating back nearly a century that “this Court is not required to pass upon
a constitutional issue unless it affirmatively appears that the issue was raised and
determined in the trial court.” State v. Creason, 313 N.C. 122, 127 (1985) (collecting
cases). This rule applies regardless of whether the opposing party asserts in its
appellate briefing that the constitutional issue was waived. See City of Durham v.
Manson, 285 N.C. 741, 743 (1974). As we have repeatedly explained, when a
constitutional issue “was not raised in the trial court but was injected for the first
time on appeal to the Court of Appeals” that issue “was not properly before the Court
of Appeals” and therefore is “not properly before us.” Id.
Even putting this precedent aside, we are the court of last resort in our State.
This Court is tasked with allowing discretionary review “on its own motion” when a
“decision of the Court of Appeals appears likely to be in conflict with a decision of the
Supreme Court.” N.C.G.S. § 7A-31(a). We do this because it is our responsibility to
ensure the consistency of the State’s jurisprudence and prevent competing lines of
precedent from lingering and causing confusion in the lower courts. As explained
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above, the Court of Appeals decision in this case, and the line of cases it followed,
conflicts with our holding in In re J.N.
We therefore entered a unanimous order (joined by our dissenting colleagues)
accepting discretionary review of this issue. In re K.C., No. 142A23, ___ N.C. ___ (July
9, 2024). Addressing this lingering conflict in our jurisprudence is not advocacy; it is
this Court performing its central role as the Supreme Court of North Carolina.
Conclusion
We reverse the decision of the Court of Appeals.
REVERSED.
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Riggs, J., dissenting
Justice RIGGS dissenting.
In a case where, until supplemental briefing requested by this Court, no party
argued to this Court that Father waived his constitutional challenge and contrary to
our settled practice, the majority steps into the role of advocate and makes a “better”
argument for a party. Here, the majority intervenes as such to rule that a parent
may only preserve a constitutional challenge in a juvenile proceeding by informing
the trial court and the opposing parties of such a challenge and providing an
articulable basis for that constitutional challenge. In an improper vehicle, the
majority delivers on a request from the Court of Appeals three years ago in In re
B.R.W., 278 N.C. App. 382, 410 (2021) (Dietz, J., concurring) (“[T]his Court could
benefit from the guidance of our Supreme Court concerning when and how the
constitutional issue of whether parents have acted inconsistently with their
constitutionally protected rights must be raised and preserved in the trial court.”).
The majority then steps in to answer its own posed question by adopting a harsh,
unforgiving procedural rule for constitutional claims argued in juvenile court.
I respectfully dissent.
I. Appellate Review Under Rule 16
Our appellate review is limited “to consideration of the issues stated in . . . the
petition for discretionary review and the response thereto . . . and properly presented
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in the new briefs.” N.C. R. App. P. 16(a). And for appeals based on dissents, this
Court’s review is “limited to consideration of those issues that are (1) specifically set
out in the dissenting opinion as the basis for that dissent, (2) stated in the notice of
appeal, and (3) properly presented in the new briefs.”1 N.C. R. App. P. 16(b). Here,
as the majority points out, we are reviewing DSS’s dissent-based appeal as well as
additional issues on which we allowed discretionary review. But until this Court
requested supplemental briefing, issue preservation had not been properly raised
before this Court. Issue preservation was not addressed in the dissent, not addressed
in the notice of appeal, not addressed in the petition for discretionary review, and not
addressed in the new briefs. We are jurists, not advocates. Because no party argued
that Father failed to preserve his constitutional claim, this Court should have
addressed the merits of this appeal.
Even if Father did not preserve his constitutional claim, though, the majority
ignores that we can nevertheless address the merits of this appeal under Rule 2. See
N.C. R. App. P. 2 (“To prevent manifest injustice to a party, or to expedite decision in
the public interest, either court of the appellate division may . . . suspend or vary the
1 The majority claims that precedent and statutory law say otherwise, but those arguments are not compelling here. Neither of the cases cited, State v. Creason, 313 N.C. 122 (1985), or City of Durham v. Manson, 285 N.C. 741 (1974), speak to the situation here, when a party fails to properly submit an issue for consideration by this Court. As explained in this dissent, Rule 16(a) and (b) dictate the outcome here. Moreover, Section 7A-31 merely addresses when this Court may certify a cause, i.e., a case, for review rather than when this Court may consider an issue for review. See Cause, Garner’s Dictionary of Legal Usage 142 (3d ed. 2011) (“Case is more commonly used, to be sure, but cause (= lawsuit) has long been current in the speech and writing of lawyers.”).
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requirements or provisions of any of these rules . . . .”). Our precedent recognizes that
we may consider unpreserved issues in the interest of justice. See Clifford v. River
Bend Plantation, Inc., 312 N.C. 460, 463 (1984) (“However, in the interest of justice
we will consider this issue and the other issues raised by plaintiffs’ brief and
argument [that were not properly raised at trial].”).
Notwithstanding the ruling in this case, Appellate Rule 2 still allows for this
Court to “suspend the appellate rules either upon application of a party or upon its
own initiative.” Bailey v. State, 353 N.C. 142, 157 (2000) (cleaned up). Rule 2
specifically “relates to the residual power of our appellate courts to consider, in
exceptional circumstances, significant issues of importance in the public interest, or
to prevent injustice which appears manifest to the Court and only in such instances.”
Steingress v. Steingress, 350 N.C. 64, 66 (1999) (citing Blumenthal v. Lynch, 315 N.C.
571, 578 (1986)). “[W]hether an appellant has demonstrated that [their] matter is
the rare case meriting suspension of our appellate rules is always a discretionary
determination to be made on a case-by-case basis.” State v. Campbell, 369 N.C. 599,
603 (2017) (citing Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191,
196 (2008)). While I believe the parties waived issue preservation questions, even if
the question was not waived, addressing Father’s constitutional claim would
certainly prevent an injustice—being stripped of his parental right to custody without
due process. If Rule 2 needed to be invoked, I believe Father presents “the rare case
meriting suspension” of our preservation requirement. Id.
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II. Father’s Constitutional Right to Parent
In his principal brief, Father argued that the trial court’s decision to deprive
him of custody of Katy in favor of nonparents violated Father’s constitutionally
protected rights as a parent. Because no party nor the dissenting judge at the Court
of Appeals contended that Father failed to preserve his constitutional claim, this
Court should have addressed the merits of that argument. I do so below and conclude
that we should have affirmed the Court of Appeals’ decision and remanded this case
to the trial court for more findings as to whether the Father’s parenting negatively
affected Katy.
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution prohibits this State from “depriv[ing] any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, cl. 1. According to
the Supreme Court of the United States, “perhaps the oldest of the fundamental
liberty interests” triggering due process protections are “the interests of parents in
the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65
(2000); see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is cardinal with
us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can
neither supply nor hinder.”). This Court has expressed similar sentiments. See
Petersen v. Rogers, 337 N.C. 397, 402 (1994) (“North Carolina’s recognition of the
paramount right of parents to custody, care, and nurture of their children antedates
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the constitutional protections set forth [by the Supreme Court of the United States].”).
Because these constitutional lodestars warrant due process protections, they
“do[ ] not evaporate simply because [parents] have not been [flawless] or have lost
temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S. 745, 753
(1982); see also Owenby v. Young, 357 N.C. 142, 146 (2003) (“[The] Due Process Clause
of the Fourteenth Amendment ensures that the government does not impermissibly
infringe upon a natural parent’s paramount right to custody solely to obtain a better
result for the child.”). This legal principle is further bolstered by the presumption
that if “parents [ ] perform their obligations to their children,” they possess a “prior
right to custody.” Petersen, 337 N.C. at 403 (quoting In re Hughes, 254 N.C. 434, 436–
37 (1961)). Under this presumption, “the constitutionally-protected paramount right
of parents to custody, care, and control of their children must prevail.” Petersen, 337
N.C. at 403–04 (emphasis added). This presumption especially “favor[s] a parent in
a custody dispute with a non-parent.” Routten v. Routten, 374 N.C. 571, 576 (2020)
(emphasis removed).
Yet that presumption “is not absolute.” In re R.T.W., 359 N.C. 539, 543 (2005)
(citing David N. v. Jason N., 359 N.C. 303, 305 (2005)). This Court has long
acknowledged “parental rights and parental responsibilities as two sides of the same
coin.” Id. (citing 1 Blackstone, Commentaries 434–40); see also David N., 359 N.C. at
305 (“[W]hile a fit and suitable parent is entitled to the custody of his child, it is
equally true that where fitness and suitability are absent he loses this right.”). Thus,
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the State may take a parent’s child away by “showing that the parent is unfit to have
custody or where the parent’s conduct is inconsistent with his or her constitutionally
protected status.” In re E.B., 375 N.C. 310, 315 (2020) (quoting Adams v. Tessener,
354 N.C. 57, 62 (2001)). While “unfitness, neglect, and abandonment” facially
undermine the parent’s status, “other types of conduct . . . can also rise to this level
so as to be inconsistent with the protected status of natural parents.” Boseman v.
Jarrell, 364 N.C. 537, 549 (2010) (cleaned up) (quoting Price, 346 N.C. at 79).
Notably, though, that is the only way a parent may lose their child to the State.
Id. (emphasis added); see also Becca Pearson, The Price to Parent, 102 N.C. L. Rev.
1299, 1309 (2024) (“There must be a very substantial reason before parental custody
can be terminated by the State.” (cleaned up)). And because “there is no bright line
beyond which a parent’s conduct meets this standard,” Boseman, 364 N.C. at 549, all
allegedly inconsistent conduct “must be viewed on a case-by-case basis.” Owenby, 357
N.C. at 147 (quoting Price, 346 N.C. at 79). Indeed, we must “examine each case
individually in light of all of the relevant facts and circumstances and the applicable
legal precedent.” In re B.R.W., 381 N.C. 61, 82 (2022); see also id. at 83 (“In
conducting the required analysis, ‘evidence of a parent’s conduct should be viewed
cumulatively.’ ” (quoting Owenby, 357 N.C. at 147)). Only after a trial court concludes
that a parent has acted in a manner inconsistent with their parental status may the
“best interest of the child test . . . be applied without offending the Due Process
Clause.” Owenby, 357 N.C. at 146 (internal citation omitted); see also Price v.
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Howard, 346 N.C. 68, 79 (1997) (“If a natural parent’s conduct has not been
inconsistent with his or her constitutionally protected status, application of the ‘best
interest of the child’ standard in a custody dispute with a nonparent would offend the
Due Process Clause.”).
Further, “a trial court’s determination that a natural parent has acted in a
way inconsistent with his constitutionally protected status must be supported by
clear and convincing evidence.” David N., 359 N.C. at 307 (quoting Adams, 354 N.C.
at 63). The clear and convincing standard “is more exacting than the preponderance
of the evidence standard generally applied in civil cases” and “requires evidence that
should fully convince.” In re I.K., 377 N.C. 417, 421 (2021) (emphasis added) (quoting
Scarborough v. Dillard’s, Inc., 363 N.C. 715, 721 (2009)). If a finding is “unsupported
by the record,” we “simply disregard[ ] [that] finding[ ] and examine[ ] whether the
remaining findings support the trial court’s determination.” In re A.J.L.H., 384 N.C.
45, 48 (2023).
The trial court adjudicated Katy a neglected child on 15 October 2021, but as
Father correctly explains, that adjudication only addressed Mother’s neglect of Katy.
But even the existing findings in the trial court’s disposition order on 8 February 2022
are insufficient to demonstrate that Father is unfit or that his conduct was
inconsistent with his constitutionally protected status.2 Thus, the majority
2 We note that the trial court also incorrectly labeled Finding 61—that Father “acted
inconsistent with [his] constitutional right as [a] parent[ ]”—a finding of fact. See In re B.R.W. at 77 (“A trial court’s determination that a parent has acted inconsistently with his or her
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implicates significant Due Process Clause concerns by even reaching the “best
interest of the child” standard.
Only a fraction of the trial court’s findings of fact in the disposition order
address Father or his conduct. The trial court found that Father was formerly
convicted “for drug-related crimes and assault on a female” and was charged with
multiple offenses while the instant petition was pending, including “communicating
threats and larceny of a firearm” and “assault on a female,” but no evidence was
specifically developed on these matters. No one testified at trial about any of Father’s
convictions or charges, nor were any details included in the DSS court report or any
addendums.
Also, while Father was arrested for domestic violence charges against a woman
in November 2021, this kind of alleged incident is insufficient to undermine Father’s
constitutionally protected status. See Price, 346 N.C. at 79 (holding that a parent’s
behavior is inconsistent with their right to parent “if he or she fails to shoulder the
responsibilities that are attendant to rearing a child”). As the Court of Appeals noted,
Father’s charge was still pending at the disposition hearing, and Father consistently
maintained his innocence. See In re K.C., 288 N.C. App. 543, 551 (2023) (“[W]e are
unable to say that . . . the existence of an unproven domestic violence charge
warrant[s] forfeiture of [Father’s] constitutionally protected status.”). Further, there
constitutionally protected status as the parent is [a conclusion of law] subject to de novo review.”).
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was no evidence that Katy witnessed the incident. According to Father, the incident
occurred outside, and Katy was inside the back room of the house. Family court
cannot be a place where the presumption of innocence in criminal matters falls by the
wayside.
Besides Father’s alleged criminal history, the trial court also considered the
condition of Father’s home and the nature of his job. Yet neither of these findings
support a conclusion that Father was unfit to parent Katy. First, the trial court made
no finding of fact concerning the impact of the condition of Father’s home on Katy.
See N.C.G.S. § 7B-101(15) (2023) (defining a neglecting parent as one who “[c]reates
or allows to be created a living environment that is injurious to the juvenile’s
welfare”); see also In re C.L., No. COA11-98, slip op. at 7 (N.C. Ct. App. July 19, 2011)
(unpublished) (“The trial court did not make any findings about specific risks that
might result from the condition of the home, nor did the court find that the condition
of the home contributed to any particular impairment or risk of impairment to the
children.”). For example, as Father explains, “[t]here was no reported filth or bug
infestations or other problems . . . that would have subjected Katy to a dangerous
environment.” In particular, Finding 56 states that “[t]he [c]ourt was disturbed by
what she saw at [Father’s] house during the video testimony,” but does not provide
any additional detail. In comparison to other cases from this Court, this finding is
plainly insufficient to support a conclusion of unfitness. See In re I.K., 377 N.C. 417,
426–28 (2021) (agreeing that clear and convincing evidence existed supporting a
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finding of unsafe living conditions where “the clutter in the home was piled to the
ceiling in some areas and there were holes in the floor of the home covered with
plywood”). Further, the DSS social worker testified that the Father always secured
housing for Katy that was approved by DSS.
Second, the trial court’s findings about the Father’s clothing, employment, and
tendency to move should not have been considered because they all relate to the
Father’s socioeconomic status. See Dunn v. Covington, 272 N.C. App. 252, 265 (2020)
(“[S]ocioeconomic factors such as the quality of a parent’s residence, job history, or
other aspects of their financial situation . . . have no bearing on the question of
fitness.”); see also Raynor v. Odom, 124 N.C. App. 724, 731 (1996) (“[S]ocioeconomic
status is irrelevant to a fitness determination . . . .” (citing Jolly v. Queen, 264 N.C.
711, 713–14 (1965))). Refraining from such considerations is critical to protecting the
interests of “honest, industrious parents,” regardless of their income status. Jolly,
264 N.C. at 715; see also Bost v. Van Nortwick, 117 N.C. App. 1, 8–9 (1994) (“[T]he
finding that [a non-parent] could provide a more stable environment and better
financial situation . . . does not mandate that respondent’s rights as the natural father
. . . be terminated.”). Thus, these findings were impermissible for the trial court to
rely on in concluding that Father was unfit to parent Katy.
III. Conclusion
At bottom, under the umbrella of rights that parents enjoy is the right to
temporarily entrust their child to the care of trusted family and friends. The
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majority’s failure to address the merits is particularly pernicious here. As a society,
we should want to encourage parents getting the help they need, whether it be for
addiction or mental health treatment or the ability to regain financial footing. If this
Court punishes a parent’s thoughtful decision to make temporary, informal custody
arrangements in order to advance the wellbeing of the entire family unit, we will
disincentivize that kind of good parenting. Parents will not get the help they need if
they will lose custody of their child because of those thoughtful decisions.
This is not to say that, upon proper investigation and substantiation, Father’s
criminal history and housing conditions could not be considered in relation to his
constitutional right to parent. See In re A.J., 386 N.C. 409, 417 (2024) (“[W]hen an
appellate court determines that the trial court’s findings of fact are insufficient, the
court must examine whether there is sufficient evidence in the record that could
support the necessary findings.” (citing In re K.N., 373 N.C. 274, 284 (2020)). Thus, I
would affirm the Court of Appeals’ judgment and remand this matter back to the trial
court to “decide whether to enter a new order with sufficient findings based on the
record or to change its conclusions of law because the court cannot make the
necessary findings.” Id. (citing In re K.N., 373 N.C. at 284–85).
Justice EARLS joins in this dissenting opinion.
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