Respondents Brief — Courtney J., Petitioner v. Beaufort County Department of Social Services, et al.

No. 22-6481

In The

Supreme Court of the United States

COURTNEY J.,

Petitioner,

v.

BEAUFORT COUNTY DEPARTMENT OF

SOCIAL SERVICES, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Supreme Court of North Carolina

______________

BRIEF IN OPPOSITION

______________

J. Edward Yeager, Jr.

Counsel of Record

ATTORNEY AT LAW

P. O. Box 1656

Cornelius, NC 28031

(704) 490-1518 – Telephone

(866) 805-6191 – Facsimile

yeager@ncappeals.net

Counsel for Respondents

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ P.O. Box 1460 (23218) ♦ Richmond, VA

804-249-7770 ♦ www.gibsonmoore.net

23219

QUESTION PRESENTED

Whether the Supreme Court of North Carolina correctly found constitutional

N.C. Gen. Stat. § 7B-1111(a)(3) providing that a parent’s parental rights might be

terminated when a child has been placed in the custody of the department of social

services and that parent has for six months failed to pay a reasonable portion of the

cost of care although physically and financially able to do so.

i

PARTIES TO THE PROCEEDING

Petitioner herein, Courtney Johnson, was the appellant below and the former

respondent mother of the minor children.

Respondents herein, are: the Beaufort County (North Carolina) Department

of Social Services, an agency of locally government statutorily mandated to “assess

reports of child abuse and neglect and to take appropriate action to protect such

children.” N.C. Gen. Stat. § 108A-14(a)(11); the Guardian ad Litem for the children,

a statutorily-established program whose responsibilities, in part, are “to protect and

promote the best interests of the juvenile.” N.C. Gen. Stat. § 7B-601(a); and Jeremy

Johnson, the former respondent father of the children.

ii

TABLE OF CONTENTS

Page:

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

OPINIONS BELOW ...................................................................................................... 1

JURISDICTIONAL STATEMENT ............................................................................... 2

STATEMENT OF THE CASE....................................................................................... 3

I.

Overview of terminations of parental rights in North Carolina

based on the willful nonpayment of a reasonable portion of the cost

of care ............................................................................................................. 3

A.

Statutory framework .......................................................................... 3

B.

The “inherent duty to support” interpretation of N.C. Gen.

Stat. § 7B-1111(a)(3) ........................................................................... 3

II.

The trial court proceedings ........................................................................... 5

III.

The direct appeal to the Supreme Court of North Carolina ........................ 6

REASONS FOR DENYING THE PETITION .............................................................. 8

I.

It violated neither the due process nor equal protection rights of the

Petitioner for her parental rights to be terminated after her

children were removed from her custody due to neglect and she

failed to pay a reasonable portion of the cost of care ................................... 8

II.

The question presented is moot because the minor children’s

adoption was finalized prior to the initiation of this action. The

Petitioner is not entitled to any relief from this Court .............................. 16

iii

III.

The Petitioner failed to raise any Constitutional concerns before the

trial court and, hence, lost her right to argue such for the first time

on appeal ...................................................................................................... 17

CONCLUSION............................................................................................................. 19

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Dep’t of Transp. v. Haywood Oil Co.,

195 N.C. App. 668, 673 S.E.2d 712 (2009) ....................................................... 18

Dunn v. Blumstein,

405 U.S. 330, 92 S. Ct. 995, 31 L.Ed.2d 274 (1972) ......................................... 11

In re J.C.J. & J.R.J.,

2022-NCSC-86, 381 N.C. 783, 874 S.E.2d 888 (2022) ......................... 1, 6, 7, 15

Matter of J.N.,

2022-NCSC-52, 381 N.C. 131, 871 S.E.2d 495 (2002) ..................................... 18

Martinez-Cedillo v. Barr,

923 F.3d 1163 (2019) ......................................................................................... 16

Martinez-Cedillo v. Sessions,

896 F.3d 979 (9th Cir. 2018) ............................................................................. 16

In re Moore,

306 N.C. 394, 293 S.E.2d 127 (1982) ............................................................ 7, 15

Murphy v. Hunt,

455 U.S. 478, 102 S. Ct. 1181, 71 L.Ed.2d 353 (1982) ..................................... 17

Richardson v. Ramirez,

418 U.S. 24, 94 S. Ct. 2655, 41 L.Ed.2d 551 (1974) ......................................... 11

In re S.E.,

373 N.C. 360, 838 S.E.2d 328 (2020) .................................................................. 7

State v. Cook,

207 N.C. 261, 176 S.E. 757 (1934) .................................................................... 12

State v. Fernandez,

346 N.C. 1, 484 S.E.2d 350 (1997) .................................................................... 18

State v. Gainey,

355 N.C. 73, 558 S.E.2d 463 (2002) .................................................................. 17

State v. Hayden,

224 N.C. 779, 32 S.E.2d 333 (1944) .................................................................. 12

v

State v. Lloyd,

354 N.C. 76, 552 S.E.2d 596 (2001) .................................................................. 18

State v. Mason,

268 N.C. 423, 150 S.E.2d 753 (1996) ................................................................ 12

State v. Wiley,

355 N.C. 592, 565 S.E.2d 22 (2002) .................................................................. 18

In re T.D.P.,

164 N.C. App. 287, 595 S.E.2d 735 (2004) ......................................................... 4

United States Parole Comm’n v. Geraghty,

445 U.S. 388, 100 S. Ct. 1202, 63 L.Ed.2d 479 (1980) ..................................... 17

Wilkes County By and Through Child Support Enforcement

Agency ex rel Nations v. Gentry,

311 N.C. 580, 319 S.E.2d 224 (1984) ................................................................ 13

In re Wright,

64 N.C. App. 135, 306 S.E.2d 825 (1983) ........................................................... 4

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 2

N.C. Gen. Stat. § 7B-100(3) ........................................................................................... 9

N.C. Gen. Stat. § 7B-100(5) ........................................................................................... 9

N.C. Gen. Stat. § 7B-101(9) ..................................................................................... 6, 10

N.C. Gen. Stat. § 7B-101(18) ....................................................................................... 15

N.C. Gen. Stat. § 7B-1111 ............................................................................................. 3

N.C. Gen. Stat. § 7B-1111(a)(1) ................................................................................. 6, 9

N.C. Gen. Stat. § 7B-1111(a)(2) ......................................................................... 6, 10, 11

N.C. Gen. Stat. § 7B-1111(a)(3) ........................................................................... 3, 6, 10

N.C. Gen. Stat. § 7B-1111(a)(4) ............................................................................... 3, 10

N.C. Gen. Stat. § 7B-1111(a)(6) ............................................................................... 6, 10

N.C. Gen. Stat. § 14-326.1 ........................................................................................... 12

vi

N.C. Gen Stat. § 48-1-106(c) ................................................................................ 2, 8, 16

N.C. Gen. Stat. § 49-2 .................................................................................................. 12

N.C. Gen. Stat. § 110-135 ............................................................................................ 13

N.C. Gen. Stat. § 110-139(f) ........................................................................................ 14

Constitutional Provisions

Const N.C.. ................................................................................................................... 18

U.S. Const. amend XIV ...................................................................................... 7, 11, 18

U.S. Const. amend. XIV § 2 ......................................................................................... 11

Rules

N.C. App. R. 39(b) .......................................................................................................... 2

Other Authorities

Orders of the appellate courts of North Carolina available at:

https://appellate.nccourts.org/dockets.php?court=1&docket=1-20210288-001&pdf=1&a=0&dev=1

(last visited May 4, 2023).................................................................................... 1

Orders of the appellate courts of North Carolina available at:

https://appellate.nccourts.org/dockets.php?court=1&docket=1-20210288-002&pdf=1&a=0&dev=1

(last visited May 4, 2023).................................................................................... 2

vii

OPINIONS BELOW

Following a two-day hearing, the Beaufort County (North Carolina) district

court entered an adjudicatory order on October 22, 2020 finding that grounds

existed to terminate the parental rights of the Petitioner and father of her children.

After a subsequent hearing considering whether termination was in the children’s

best interest, the court entered a dispositional hearing order finding best interests

and directing termination.

Those orders were appealed to the Supreme Court of North Carolina which

unanimously affirmed the termination order on July 15, 2022. In re J.C.J. & J.R.J.,

2022-NCSC-86, 381 N.C. 783, 874 S.E.2d 888. The Petitioner filed a petition for

rehearing on August 19, 2022 which was denied on August 23, 2022. Orders of the

appellate courts of North Carolina are typically not published but are maintained

by the Clerk pursuant to N.C. App. R. 39(b). This order is noted on the docket sheet

available at: https://appellate.nccourts.org/dockets.php?court=1&docket=1-20210288-001&pdf=1&a=0&dev=1.

With the Petitioner’s exhaustion of remedies, the children’s foster parents

moved forward with their adoption proceeding and an Adoption Decree was entered

on September 22, 2022 in Beaufort County file 22 SP 128 and 129. Records in

connection with an adoption – other than the decree of adoption and entry in the

special proceedings index – are confidential and sealed and maintained by the

Beaufort County Clerk of Court.

1

The Petitioner herein then filed a Petition for a writ of supersedeas and

application for a temporary stay with the Supreme Court of North Carolina on

December 9, 2022. The Court denied the writ and motion on December 13, 2022.

Orders of the appellate courts of North Carolina are typically not published but are

maintained by the Clerk pursuant to N.C. App. R. 39(b). This order is noted on the

docket sheet available at:

https://appellate.nccourts.org/dockets.php?court=1&docket=1-2021-0288002&pdf=1&a=0&dev=1.

JURISDICTIONAL STATEMENT

The Supreme Court of North Carolina affirmed the termination of parental

rights order on July 15, 2022. The Petitioner subsequently filed both a petition for

rehearing and a petition for writ of supersedeas. Both petitions were denied. At

the same time, the adoption proceeding moved forward and a final decree of

adoption was entered on September 22, 2022. One of the legal effects of a decree of

adoption is that it “severs the relationship of parent and child between the

individual adopted and that individual’s biological or previous adoptive parents.”

N.C. Gen Stat. § 48-1-106(c). As such, the Petitioner was without standing to file

this petition and the question raised by the petition is moot.

Aside from the question of mootness, the Respondent would agree with

Petitioner’s invocation that 28 U.S.C. § 1257(a) would be the only basis for this

Court’s jurisdiction.

2

STATEMENT OF THE CASE

I.

Overview of terminations of parental rights in North Carolina based

on the willful nonpayment of a reasonable portion of the cost of care.

A.

Statutory framework.

Cases involving abused and neglected children in North Carolina are

governed by the Juvenile Code found in Chapter 7B of the North Carolina General

Statutes and cases are presided over by the district court division of the General

Court of Justice. The legislature has restricted the ability of the court to terminate

parental rights to certain enumerated grounds found in N.C. Gen. Stat. § 7B-1111.

Four of those grounds were alleged in the motion to terminate parental rights and

the district court found all four of those grounds were found to have been

established.

B.

The “inherent duty to support” interpretation of N.C. Gen. Stat.

§ 7B-1111(a)(3).

Of the eleven grounds for termination of parental rights found in N.C. Gen.

Stat. § 7B-1111, two separate grounds involve the failure of a parent to support

their child. N.C. Gen. Stat. § 7B-1111(a)(4) involves situations in which one parent

has custody of the child and the other parent has failed to provide support. These

involve actions solely between parents and are typically referred to as private

TPR’s.

Separately, the ground involved in this case is found at N.C. Gen. Stat. § 7B1111(a)(3) and applies when a child has been in the custody of a county department

of social services and “the parent has for a continuous period of six months

3

immediately preceding the filing of the petition or motion willfully failed to pay a

reasonable portion of the cost of care for the juvenile although physically and

financially able to do so.” In cases of a child placed in the custody of a department

of social services the cost of care for the child has been assumed by an agency of

government and funded by tax dollars.

Although both grounds have the similarity of involving financial assistance,

the two grounds are distinct. In cases involving a department of social services,

there is not a statutory requirement that support have been “required by the decree

or custody agreement.” Rather, the law has long held parents responsible for the

cost of care for their children in foster care.

In In re Wright, the North Carolina Court of Appeals considered the appeal of

an order terminating parental rights. The department of social services filed a

petition “alleging neglect in and failure to pay any amount toward the costs of

caring for the child.” On appeal, the father argued the statute unconstitutional as

applied to him because “the statute does not require notice that payment is due, no

notice was received by him, and because he had received public assistance all of his

life, he was unaware that anything was expected or required of him.” In re Wright,

64 N.C. App. 135, 139, 306 S.E.2d 825 (1983). The Court of Appeals held that:

Though this argument is novel, it is unavailing. Very early in

our jurisprudence, it was recognized that there could be no law

if knowledge of it was the test of its application. Too, that

respondent did not know that fatherhood carries with it

financial duties does not excuse his failings as a parent; it

compounds them.

Id. See also, In re T.D.P., 164 N.C. App. 287, 595 S.E.2d 735 (2004).

4

The Supreme Court of North Carolina followed this long-standing precedent

in the case at bar rejecting the Petitioner’s argument that she was not accountable

for supporting her children unless and until she was duly served with a child

support order.

II.

The trial court proceedings.

The Beaufort County Department of Social Services filed a Juvenile Petition

on October 22, 2017 alleging that the Petitioner’s children were neglected because

they did not receive proper care, supervision, or discipline from her and that they

lived in an environment injurious to their welfare. Specifically, the department

recited a lengthy history of involvement with the family (including siblings who

were not part of the termination of parental rights’ action) including sexual abuse

of a sibling, the mother’s substance abuse and domestic violence in the home. The

judge presiding over juvenile court in Beaufort County conducted an adjudication

hearing on 11 April 2018 and made findings consistent with the allegations, also

ordering, in part, that the children remain in the legal and physical custody of

DSS and that the Petitioner herein engage with certain services designed to allow

the children to be reunified with her. There followed a series of hearings at which

the court reviewed the Petitioner’s progress. Ultimately, however, DSS filed a

motion to terminate the parents’ parental rights because there was very little

progress.

The motion to terminate parental rights alleged four separate and

independent grounds for termination of the rights of the Petitioner:

5

•

That the mother neglected the children, N.C. Gen. Stat. § 7B-1111(a)(1);

•

That the mother willfully left the children in foster care for more than 12

months without making reasonable progress toward correcting the conditions

which led to the removal of the children, N.C. Gen. Stat. § 7B-1111(a)(2);

•

That the mother willfully failed for six months prior to the filing of the

motion to pay a reasonable portion of the cost of care although physically and

financially able to do so, N.C. Gen. Stat. § 7B-1111(a)(3); and

•

That the mother was incapable of providing for the proper care and

supervision of the children such that they were dependent (as defined by N.C.

Gen. Stat. § 7B-101(9)), N.C. Gen. Stat. § 7B-1111(a)(6).

At the adjudicatory hearing, evidence was presented as to each of the

grounds. Although Petitioner focuses on the failure to support ground, the trial

court considered all of the evidence and agreed that all grounds were found by clear,

cogent, and convincing evidence.

III.

The direct appeal to the Supreme Court of North Carolina.

Petitioner challenged all four grounds for termination in her direct appeal to

the Supreme Court of North Carolina. The Court gave “careful consideration of the

parents’ challenges to the trial court’s termination orders” and concluded that the

orders should be affirmed. In the Matter of: J.C.J. and J.R.J., 2022-NCSC-86, 1,

381 N.C. 783, 874 S.E.2d 888 (2022).

It is well established law in North Carolina that even a single ground for

termination is sufficient to affirm a trial court’s decision. See, for example,

6

In re Moore, 306 N.C. 394, 404, 293 S.E.2d 127 (1982). The Supreme Court began

its analysis by looking at the failure to pay ground and stated that,

In view of the fact that the trial court’s unchallenged findings of fact

show that, even though respondent-mother had the physical ability to

work, she elected not to do so and the fact that the undisputed record

evidence shows that respondent-mother failed to make any monetary

payments to DSS or the foster parents for the purpose of assisting in

the provision of care for the twins, we hold that respondent-mother’s

challenge…lacks merit.

Id, at ¶ 15.

The Court also rejected her challenge based on not being served with a child

support order citing In re S.E., 373 N.C. 360, 838 S.E.2d 328 (2020) that mother

“had an inherent duty to support the twins.” The Court also noted the trial court’s

unchallenged findings that the “respondent-mother had been aware as early as

2018 that a referral had been made to the child support enforcement agency…, she

had failed to investigate the referral or to attempt to ascertain the amount of child

support that she needed to pay.” In Re J.C.J. and J.R.J., supra, at ¶ 17. The Court

specifically addressed Petitioner’s Fourteenth Amendment challenge refusing to

address it for the first time on appeal.

Because the Court found that the trial court did not err in finding the failure

to support ground for termination, the Court did not need to address the remaining

grounds.

Following the Court’s decision, the Petitioner filed a petition for rehearing

which the Court denied. Given that the Supreme Court of North Carolina had twice

ruled in finality that the respondent-mother’s parental rights were terminated, the

7

adoption case proceeded. A final decree of adoption was entered on 22 September

2022 in Beaufort County special proceeding 22 SP 128 and 129. The adoption

decree had the effect, in part, of severing the relationship of the Petitioner to her

biological children. N.C. Gen Stat. § 48-1-106(c). Given that the respondentmother’s parental rights had been officially and finally severed she was not notified

of the confidential adoption proceeding.

Petitioner then tried to have another bite at the apple by filing on 9

December 2022 with the Supreme Court of North Carolina a petition for writ of

supersedeas and application for temporary stay purporting to ask the Court to stay

the termination of parental rights order pending resolution before this Court. The

Supreme Court of North Carolina denied that motion on 13 December 2022.

REASONS FOR DENYING THE PETITION

I.

It violated neither the due process nor equal protection rights of the

Petitioner for her parental rights to be terminated after her children

were removed from her custody due to neglect and she failed to pay

a reasonable portion of the cost of care.

The Petitioner’s two children 1 were removed from her physical and legal

custody after years of involvement with the Beaufort County Department of Social

Services. The final referral which led to the children’s removal and ultimately the

termination of parental rights involved allegations of child-on-child sexual abuse

occurring in the home between two half siblings. One of the purposes of the North

Carolina Juvenile Code is to provide services for the “protection of juveniles by

means that respect both the right to family autonomy and the juveniles’ needs for

1 As well as five half-siblings who were not part of the termination of parental rights action.

8

safety.” N.C. Gen. Stat. § 7B-100(3). The Code also provides “standards

consistent with the Adoption and Safe Families Act…for ensuring that the best

interests of the juvenile are of paramount consideration by the court and that

when it is not in the juvenile’s best interest to be returned home, the juvenile will

be placed in a safe, permanent home within a reasonable amount of time.” N.C.

Gen. Stat. § 7B-100(5).

Toward that end, the Department of Social Services – under court

supervision – worked toward reunification with the Petitioner from when the

children were removed on October 23, 2017 until the Department filed a motion to

terminate parental rights on April 6, 2020. In fact, DSS had provided services to

the family from the time the first referral was made – before these children were

born – on March 21, 2013. Those services included linking the family to Medicaid

transportation, parenting education, and safety planning. Once the children were

brought into custody, additional services were provided and the Department

developed a case plan – approved by the court – designed to address the conditions

such that the children could be reunified with the Petitioner. The case plan was not

designed to avoid grounds for termination of parental rights but to avoid every

moving to the termination stage. Unfortunately, those efforts were fruitless.

The Juvenile Code also requires permanence within a reasonable time. The

Department filed a motion to terminate parental rights on April 6, 2020. In that

motion, the DSS alleged four of the eleven statutory grounds for termination:

•

That the mother neglected the children, N.C. Gen. Stat. § 7B-1111(a)(1);

9

•

That the mother willfully left the children in foster care for more than 12

months without making reasonable progress toward correcting the conditions

which led to the removal of the children, N.C. Gen. Stat. § 7B-1111(a)(2);

•

That the mother willfully failed for six months prior to the filing of the

motion to pay a reasonable portion of the cost of care although physically and

financially able to do so, N.C. Gen. Stat. § 7B-1111(a)(3); and

•

That the mother was incapable of providing for the proper care and

supervision of the children such that they were dependent (as defined by N.C.

Gen. Stat. § 7B-101(9)), N.C. Gen. Stat. § 7B-1111(a)(6).

Following hearing on the motion, Judge Regina Parker made extensive

findings of fact and concluded that all four grounds had been established by clear,

cogent, and convincing evidence.

N.C. Gen. Stat. § 7B-1111(a)(3) provides that a ground for termination of

parental rights exists if a parent “willfully failed to pay a reasonable portion of the

cost of care for the juvenile although physically and financially able to do so.”

Application of this ground to the Petitioner’s case was neither a violation of her

equal protection rights not her due process rights.

Petitioner’s equal protection argument is based on the statutory distinction

between N.C. Gen. Stat. § 7B-1111(a)(3) and (a)(4). Section (a)(4) references child

support payment “as required by the decree or custody agreement.” This

distinction is logical based on the difference between private TPRs involving a

dispute brought by a custodial parent against a noncustodial parent as opposed to

10

one in which the State had to remove a child due to child neglect and provide

services toward reunification. Petitioner’s reference to Richardson v. Ramirez,

418 U.S. 24, 94 S. Ct. 2655, 41 L.Ed.2d 551 (1974) is misplaced and unconvincing.

In Richardson this Court considered provisions of law in California regarding the

voting rights of convicted felons. Much of the argument centered on section 2 of

the Fourteenth Amendment and the Court held that the distinction was allowed.

Justice Marshall did write in dissent that in considering the difference in voting

rights “’the Court must determine whether the exclusions are necessary to

promote a compelling state interest.’” Id. 418 U.S. at 78, quoting, Dunn v.

Blumstein, 405 U.S. 330, 337, 92 S. Ct. 995, 1000, 31 L.Ed.2d 274 (1972).

However, the majority disagreed saying that “the exclusion of felons has an

affirmative sanction in [section] 2 of the Fourteenth Amendment.”

Richardson, supra, 418 U.S. at 54.

In the case at bar, the distinction between private termination actions and

those involving the public child welfare system are significant. Private termination

actions are fought between estranged parents and often disgruntled litigants. It is

reasonable and, in fact, required that grounds would differ. Other grounds for

termination are also inapplicable to those of private TPR’s. For example, N.C. Gen.

Stat. § 7B-1111(a)(2) provides for termination when a parent “has willfully left a

juvenile in foster care or placement outside the home for more than 12 months

without showing to the satisfaction of the court that reasonable progress under the

circumstances has been made in correcting those conditions which led to the

11

removal of the juvenile.” This ground is frequently asserted by departments of

social services in TPR cases but is not applicable to private TPR’s.

Furthermore, it is reasonable to place a responsibility of the parents of

children placed into the foster care system – and cared for by state institutions and

resources – to provide for their support. Custodial parents in private TPR’s might

have made the decision to forego child support to avoid contact with the

noncustodial parent. But the North Carolina General Assembly has enacted a

requirement that parents in TPR’s involving DSS must pay a reasonable portion of

the cost of care if able to do so. The Petitioner’s citation of State v. Mason, 268 N.C.

423, 150 S.E.2d 753 (1996) is not controlling. Mason dealt with N.C. Gen. Stat. §

49-2, “nonsupport of child born out of wedlock by parent made misdemeanor.” The

Court’s requirement of a “demand” for payment to use Petitioner’s phrase was based

on a requirement of willfulness, “that is [an act] intentionally done, ‘without just

cause, excuse or justification,’ after notice and request for support.’” State v.

Hayden, 224 N.C. 779, 781, 32 S.E.2d 333 (1944), quoting, State v. Cook, 207 N.C.

261, 176 S.E. 757 (1934). This requirement in N.C. Gen. Stat. § 49-2 of willfulness

in nonsupport for children born out of wedlock differs from that of N.C. Gen. Stat. §

14-326.1 in which a person has not provided for “his or her own immediate family.”

Just as it is reasonable for the State to require that a defendant know that a child is

his before being criminally responsible for nonsupport it is a rational distinction

that a parent know they have an obligation to support a child in the government’s

custody.

12

In the same way, N.C. Gen. Stat. § 110-135 provides that when the State

provides public assistance on behalf of a child, this “creates a debt, in the amount of

public assistance paid, due and owing the State by the responsible parent or

parents of the child.” This debt applies regardless of whether there was a child

support order although the presence of an order limits the responsibility. See, for

example, Wilkes County By and Through Child Support Enforcement Agency ex rel

Nations v. Gentry, 311 N.C. 580, 319 S.E.2d 224 (1984). Just as parents can be held

responsible for past paid public assistance it is reasonable for the State to require

parents to support their children in DSS custody regardless of the presence of a

child support order. In fact, the system of child support enforcement is consistent

with a parent having an inherent duty to support their child.

Affirmation of a termination of parental rights order for failure to provide

support is also not a violation of due process. This case did not involve the

“arbitrary action of government.” See, Petition, page 14. Rather, it was a slow and

deliberative action which was thoroughly considered by the trial court and has been

considered twice by the Supreme Court of North Carolina.

Petitioner’s recitation of “relevant facts” is incomplete. When the Juvenile

Petition was filed the Department was given nonsecure custody of the children. The

Petitioner stipulated that she was aware from that time that the children were in

foster care. The trial court also found as a fact that “the parents were aware as

early as 2018 (by their own statement) that a referral had been made to the child

support agency; and, neither parent attempted to look into the referral or the

13

amount of child support that would need to be paid.” The court found that “both

parents were aware they had the obligation to support their children” and “decided

to take no step to address the issue until they were sued for failure to pay child

support.” Also, while the Petitioner claimed to have provided money for field trips

or boxes of diapers, she testified that she gave it to the foster care provider rather

than providing to the agency charged with the children’s care and custody.

Petitioner’s footnote 4 notes that the record does not address “that Beaufort

County DSS has the ability to accept such direct payments.” Petitioner cites N.C.

Gen. Stat. § 110-139(f) which established “the State Child Support Collection and

Disbursement Unit” which has the duty of “collection and disbursement of

payments under support orders for all [Child Support Enforcement] cases.”

However, section 110-139(f) does not prohibit individual agencies from accepting

payments made by parents on behalf of their children, and there was no evidence

presented at trial that the Petitioner attempted to pay support to DSS and refused.

It is clear from the record that the Petitioner received all the due process

which could be provided. From the beginning of the underlying juvenile process,

she was represented by counsel and given notice of each hearing. Before the case

moved to the termination of parental rights’ stage there were numerous review

hearings at which the court reviewed the case progress. During the termination

phase, the Petitioner was again represented by counsel and stipulated to many of

the facts. The trial court did not base termination solely on the nonsupport ground

but found all four of the grounds alleged. On direct appeal, the Supreme Court of

14

North Carolina was briefed on each of the grounds for termination. The Court gave

“careful consideration of the parents’ challenges to the trial court’s termination

orders” and concluded that the orders should be affirmed. In the Matter of: J.C.J.

and J.R.J., 2022-NCSC-86, 1, 381 N.C. 783, 874 S.E.2d 888 (2022).

Regardless of the number of termination grounds alleged and proven, it is the

practice of the appellate court conducting review to address only one ground given

that a single ground is sufficient to affirm the termination. In re Moore, 306 N.C.

394, 404. 293 S.E.2d 127 (1982). That practice was followed in the case at bar.

Lastly, the Petitioner argues it is “shocking to the conscience” because of the

duty of DSS to make reasonable efforts to help parents achieve reunification with

their children. Reasonable efforts are defined in N.C. Gen. Stat. § 7B-101(18), in

part, as “reunification services by a department of social services when a juvenile’s

remaining at home or returning home is consistent with achieving a safe,

permanent home for the juvenile within a reasonable period of time.” Toward that

end DSS entered into a case plan with the Petitioner for DSS to partner with her in

the completion of services which might address the reasons keeping the children

from safely returning home. Payment of child support or the lack of payment was

not an issue regarding reunification and was irrelevant to its existence as a ground

for termination of parental rights.

15

II.

The question presented is moot because the minor children’s

adoption was finalized prior to the initiation of this action. The

Petitioner is not entitled to any relief from this Court.

The Petitioner states that “the unquestionably high stakes involved” are the

equivalent of the “civil death penalty.” See, Martinez-Cedillo v. Sessions, 896 F.3d

979, 989 (9th Cir. 2018). However, the Martinez-Cedillo panel took that phrase

from several state court decisions dealing with termination cases. The MartinezCedillo case actually dealt with a Mexican citizen with lawful permanent resident

status who was ordered removed by the Board of Immigration Appeals after he was

criminally convicted of felony child endangerment. The majority of the panel denied

the petition for review. Subsequently, the Circuit Court granted a motion to

dismiss the appeal as moot. Martinez-Cedillo v. Barr, 923 F.3d 1163 (2019).

Similarly, the issue which the Petitioner raised to the Supreme Court of

North Carolina is now moot. The Court filed an opinion affirming the termination

order on July 15, 2022. The Petitioner filed a petition for rehearing on August 19,

2022 which was denied on August 23, 2022.

After those proceedings, the adoptive parents moved forward. The Clerk of

Court – which serves as the court of adoption in North Carolina – entered final

decrees of adoption on both children on September 22, 2023 in Beaufort County

special proceeding 22 SP 128 and 129. N.C. Gen. Stat. § 48-1-106(c) provides, in

part, that an adoption decree severs the relationship of the Petitioner to her

biological children.

16

This Court has said that “[i]n general a case becomes moot ‘”when the issues

presented are no long “live” or the parties lack a legally cognizable interest in the

outcome.”’” Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 71 L.Ed.2d 353

(1982), quoting, United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100

S. Ct. 1202, 63 L.Ed.2d 479 (1980). While there is an exception for cases “capable of

repetition, yet evading review” that exception only applies when the challenged

action was of short duration such that it couldn’t be litigated and “there was a

reasonable expectation that the same complaining party would be subjected to the

same action again.” Id., Murphy, 455 U.S. at 482. Given the finalization of the

adoption proceeding it is entirely implausible that the Petitioner would be subjected

to the same action again.

III.

The Petitioner failed to raise any Constitutional concerns before the

trial court and, hence, lost her right to argue such for the first time

on appeal.

The Petitioner asserts that the Supreme Court of North Carolina was

attempting to evade thorough review of her due process and/or equal protection

claims by following the rule of State v. Gainey, 355 N.C. 73, 558 S.E.2d 463 (2002).

The Gainey Court ruled that “Constitutional issues not raised and passed upon at

trial will not be considered for the first time on appeal.” Id., 355 N.C. at 87. During

the trial proceedings the Petitioner never made any allegations that her

Constitutional rights were violated because she was treated differently from a

hypothetical respondent-mother in a private termination case. Instead, her position

was that she would have paid child support had she been ordered to do so and, in

17

any event, she provided some limited support to the foster parents which should be

sufficient.

That a party may not raise Constitutional issues for the first time on appeal

is well settled law in North Carolina.

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 the 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.”).

Matter of J.N., 2022-NCSC-52, 381 N.C. 131, 133, 871 S.E.2d 495 (2002).

Petitioner correctly cites precedent that a federal court has the authority to

determine whether a federal question was sufficiently raised in the state court.

Regardless of whether this Court could hear the case, this Court should not hear

the case. As argued herein, there is not even a facial argument that the Petitioner’s

due process or equal protection rights were violated. Furthermore, the issue was

rendered moot by the final adoption of the minor children and the Petitioner is

entitled to no relief from this Court.

18

CONCLUSION

The Court should deny the petition for a writ of certiorari.

Respectfully submitted.

/s/ J. Edward Yeager, Jr.

J. Edward Yeager, Jr.

P. O. Box 1656

Cornelius, NC 28031

Yeager@NCAppeals.net

May 5, 2023

19