In re J.O., ___ N.C. App. ___ (May 7, 2024)
Held:
Vacated and Remanded
- Facts: This case involves a child who is a member of the Eastern Band of Cherokee Indians (EBCI) and is an Indian child under ICWA. The child was adjudicated dependent. At initial disposition, custody was ordered to DSS with Mother granted unsupervised weekly visitation. Recurring issues heard at permanency planning hearings centered around Mother’s failure to make progress in improving the safety and cleanliness concerns for her housing and vehicle, and Mother allowing her older son, who has a history of violent and inappropriate behavior, to have contact with the child despite the court ordering no contact. DSS and EBCI submitted reports that recommended changing the child’s primary plan to guardianship. The court ordered guardianship as primary plan, ordered guardianship to the child’s guardians, and provided for no further permanency planning hearings. Mother appealed, raising several issues. This summary focuses on Mother’s arguments that the court failed to conclude she was unfit or acted inconsistently with her constitutionally protected status as a parent and that she did not have the opportunity to raise the issue at the hearing, or alternatively that her testimony and arguments requesting reunification preserved this issue.
- “Parents have a constitutionally protected right to the custody, care and control of their child, absent a showing of unfitness to care for the child.” Sl. Op. at 11 (citation omitted). “Prior to granting guardianship of a child to a nonparent, a district court must clearly address whether the respondent is unfit as a parent or if his conduct has been inconsistent with his constitutionally protected status as a parent.” Sl. Op. at 11 (citation omitted). A reviewing court must determine whether there is clear and convincing evidence to support the court’s conclusion that the natural parent acted inconsistently with their constitutionally protected right. The conclusion of law is reviewed de novo.
- Failure to raise the constitutional argument before the trial court waives the right to raise the issue on appeal. The supreme court has recently held that “where the respondent-parent has notice prior to the hearing that the trial court will be considering a recommendation to grant guardianship of the child, the respondent-parent must make a specific constitutional argument regarding her parental rights before the trial court to preserve a constitutional argument on appeal.” Sl. Op. at 15 (citing In re J.N., 381 N.C. 131, 133-34 (2022); In re J.M., 384 N.C. 584, 603-04 (2023)).
- Mother failed to preserve her argument as to her constitutionally protected status as a parent. Both DSS and EBCI presented summaries and reports prior to the hearing which recommended changing the child’s primary plan to guardianship. At the hearing, Mother testified extensively, presented witnesses, and requested reunification. She had the opportunity to raise her constitutional argument but did not argue that guardianship would be improper on constitutional grounds or that she was fit and a proper parent, despite having notice of the recommendations DSS and EBCI submitted to the court.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Parent’s Rights