__S.E.2d__ (N.C. App. March 7, 2017), the Court of Appeals confronted this very issue where a trial court awarded custody of a minor in a juvenile case to a third party relative.
In its opinion affirming the trial court's order, the appellate court noted the trial court's findings that the mother had made some significant, if late breaking progress in her case correcting issues that led to the involvement of the Mecklenburg County Department of Youth and Family Services. Nevertheless, despite these findings, the trial court concluded that the best interest of the juvenile would be served by conferral of custody upon a third party relative. Curiously, the Respondent Mother, whose custodial rights were further compromised by conferral of custody to this third party, made no objection to the fact that the trial court failed to make an affirmative finding of unfitness or behavior inconsistent with the parent's protected status. The Court of Appeals surely noted this and when the Respondent Mother raised this issue for the first time on appeal, the reviewing panel refused to consider the argument, noting merely that a parent who failed to object to a trial court's failure to make a determination of his or her constitutionally protected status waives that right if the parent does not raise the issue before the trial court. See In re T.P., 217 N.C. App.181, 186, 718 S.E.2d 716, 719 (2011).
But the fact remains that the trial court may not have had to make such a finding even if the issue had been raised.
Unlike in a North Carolina Chapter 50 case, a Chapter 7B case requires an adjudication of a child as being either abused, neglected, or dependent. While certainly an argument exists that the dependency of a child may have little to nothing to do with a culpable parent, the same cannot be said for neglect or abuse which at their heart require either tortious or criminal conduct (in the case of abuse) or conduct which either actively hostile to a child's well-being (i.e. failure to provide adequate case, supervision, or discipline) or passively so (i.e. creating an injurious environment). In either case, depending upon the parent's level of culpability, an adjudication or either abuse or neglect, could it would seem, amount to per se unfitness in the case of abuse or per se inconsistent behavior in the case of neglect.
Protection of the family unit is an absolute right guaranteed by the due process and equal protection clauses, a protection which will remain undisturbed "absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children[.]" Petersen v. Rogers, 37 N.C. 397, 445 S.E.2d 901 (1994). "Th[is] protected liberty interest complements the responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child." Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003). However, this presumption is erased where a parent "fails to shoulder the responsibilities that are attendant to rearing a child." Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).
As the Supreme Court noted in Owenby, a finding under any of the provisions in section 7B-1111 will result in a parent "forfeit[ing] his or her constitutionally protected status." Owenby, 357 N.C. at 145, 529 S.E.2d at 267. When the protection of the parental presumption is lost, the trial court may then ask the lower threshold question of what is the "best interest of the child." Id. at 146, 579 S.E.2d at 267. A court making a finding that abuse or neglect has transpired affecting a child as it is defined by North Carolina General Statute 7B-101, invokes the same definitions that inform the grounds for termination found at North Carolina 7B-1001, the same grounds the North Carolina Supreme Court has clearly held lead to a forfeiture of parental rights.
As the Supreme Court noted in Owenby, a finding under any of the provisions in section 7B-1111 will result in a parent "forfeit[ing] his or her constitutionally protected status." Owenby, 357 N.C. at 145, 529 S.E.2d at 267. When the protection of the parental presumption is lost, the trial court may then ask the lower threshold question of what is the "best interest of the child." Id. at 146, 579 S.E.2d at 267. A court making a finding that abuse or neglect has transpired affecting a child as it is defined by North Carolina General Statute 7B-101, invokes the same definitions that inform the grounds for termination found at North Carolina 7B-1001, the same grounds the North Carolina Supreme Court has clearly held lead to a forfeiture of parental rights.
With all the above having been said, consider this: the legislature has recently provided an immediate ability to cease reunification efforts following adjudication pursuant to North Carolina General Statute 7B-901 (e.g., sexual abuse, chronic physical or emotional abuse, torture, abandonment, chronic or toxic exposure to alcohol or controlled substances). Given the holding of Owenby and these new statutes which deeply impact a parent's ability to work a DSS case plan or take make any effort to reunify with their child, a strong case exists to suggest that a judicial finding that 7B-901 factors of abuse or neglect exist in a case is tantamount to a finding of parental unfitness or parental actions inconsistent with constitutionally protected parental status. Thus, the C.P. trial court's failure to find unfitness may have been fatal if the issue had been raised by the parent on the trial level, it may not always be so in cases where the neglect or abuse is of a more elevated and profound character.
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