Preserving Constitutional Challenges in Juvenile Removal Proceedings: The Requirement to Raise As-Applied Claims Under North Carolina’s Juvenile Code

Introduction

In In re K.C., 381 N.C. 1 (2024), the Supreme Court of North Carolina confronted the tension between parents’ deeply rooted due-process rights and the State’s responsibility to protect children under the Juvenile Code (N.C.G.S. § 7B-100 et seq.). Four-year-old “Katy” tested positive for substances at birth and was eventually placed first with her father (the respondent) and then, after her father’s arrest for alleged assault on a female, with her paternal aunt and uncle. In the trial court’s disposition order, the judge—on her own initiative—found that both parents had “acted inconsistent with their constitutional rights as parents.” Neither parent, however, had ever raised a constitutional challenge below. On appeal, a divided Court of Appeals majority revived the father's custody claim, concluding the removal violated his parental right; the dissent urged a best-interests review and no waiver finding. On discretionary review, the Supreme Court was asked to resolve, among other things, whether a parent must explicitly invoke their due-process right in the trial court to preserve an “as-applied” constitutional challenge to removal under the Juvenile Code.

Summary of the Judgment

The unanimous majority, authored by Justice Dietz, reaffirmed that parents hold a “constitutionally protected paramount interest” in the care and custody of their children (see Quilloin v. Walcott, 434 U.S. 246 (1978); Price v. Howard, 346 N.C. 68 (1997)), and that removal under the Juvenile Code is generally “constitutional” when statutory grounds of abuse, neglect, or dependency satisfy both statutory and constitutional criteria. Yet in “rare” instances, even a statutorily valid removal can run afoul of the Due Process Clause if the statutory scheme is unconstitutional as applied. The Court held that an as‐applied challenge to removal must be affirmatively raised in the trial court—informing the judge and opposing parties of the constitutional basis—so that evidence and findings can be developed. Because respondent father never expressly asserted his due‐process objection below, that issue was waived. The Court of Appeals majority therefore erred in reaching the constitutional claim. The Supreme Court reversed the Court of Appeals and reinstated the trial court’s disposition order without addressing the merits of the constitutional issue.

Analysis

1. Precedents Cited

• Quilloin v. Walcott (434 U.S. 246 (1978)) – Established that the Due Process Clause protects “freedom of personal choice in matters of family life,” and forbids State-ordered breakup of the natural family absent a showing of parental unfitness.
• Price v. Howard (346 N.C. 68 (1997)) – Applied Quilloin to North Carolina law, recognizing a natural parent’s “paramount interest in the companionship, custody, care, and control” of their child, and held that custody may pass to a nonparent only when the parent has “acted inconsistent with [their] protected status.”
• Petersen v. Rogers (337 N.C. 397 (1994)) – Articulated presumptions that parents will care for their children and have a prior right to custody, but did not discuss how those presumptions interact with the Juvenile Code.
• In re B.R.W. (381 N.C. 61 (2022)) – A Court of Appeals case (later affirmed on other grounds) in which the preservation principle was first called into question; the majority below in K.C. explicitly overruled its preservation analysis.
• In re J.N. (381 N.C. 131 (2022)) – Held that parents must preserve an as-applied constitutional challenge in the trial court to secure appellate review; mere opposition to removal is insufficient.

2. Legal Reasoning

The Court’s reasoning unfolds in three steps:

1. Constitutional Right to Parent: The Fourteenth Amendment secures a parent’s liberty interest in the care, custody, and control of their child. Any State action removing a child over parental objection must be supported by a showing of parental unfitness or conduct inconsistent with the parental role (Price at 79).
2. Application to Juvenile Code: North Carolina’s Juvenile Code provides detailed procedures for addressing abuse, neglect, or dependency, and ordinarily implicates the same underlying risk factors that would satisfy Price’s “inconsistent conduct” standard. However, in “rare” cases, the Code—as applied—could fail to protect a specific parent’s due-process rights (In re B.R.W. at 77).
3. Waiver/Preservation Rule: Because an as-applied challenge effectively asserts the Juvenile Code is unconstitutional in a particular context, the parent must notify the trial court and opposing parties of that challenge and articulate specific legal grounds (In re J.N. at 133–34). Without such notice, the opposing parties lack an opportunity to marshal evidence responsive to a constitutional claim—evidence that may differ from the statutory proof of abuse or neglect. Thus the Court overruled the contrary preservation precedent in In re B.R.W. and held respondent’s constitutional argument waived.

3. Impact

This decision clarifies and consolidates North Carolina law regarding the interplay of parental liberty and the statutory child-protection framework:

• Uniform Preservation Standard: Trial courts and parties now know that an as-applied constitutional challenge to removal must be expressly raised and briefed at the disposition stage. Mere opposition to removal or placement is no longer sufficient to secure appellate review of due-process objections.
• Procedural Safeguards: Opposing parties (e.g., DSS, guardians ad litem) will have clear notice of constitutional objections and can introduce targeted evidence on parental fitness or fundamental-rights considerations—avoiding appellate surprises and promoting fairness in juvenile adjudications.
• Future Litigation: Appellate courts will apply a uniform de novo review to preserved due-process claims, while unpreserved claims will be barred, reducing conflicting lines of Court of Appeals decisions and promoting predictability.
• Legislative Considerations: The General Assembly may consider amending the Juvenile Code to require explicit constitutional challenge language in petitions, notices, or dispositional hearing orders—ensuring parents’ awareness of preservation requirements.

Complex Concepts Simplified

• As-Applied Unconstitutionality: A challenge that a validly enacted statute violates constitutional rights when enforced against a particular person or under particular facts, as opposed to facial challenges, which claim a law is invalid in all applications.
• Constitutionally Protected Paramount Interest: Parents have a fundamental liberty interest—rooted in the Due Process Clause—in raising their children without undue State interference.
• Waiver vs. Best-Interests Review: “Waiver” means a legal issue cannot be reviewed on appeal if not timely raised below. “Best-interests” refers to the standard normally used to decide custody disputes between parents and non-parents—but cannot substitute for a proper as-applied constitutional inquiry.
• Clear and Convincing Evidence: A mid-level proof standard requiring the factfinder to be firmly convinced of a fact’s truth, used in determining parental unfitness or inconsistent conduct.

Conclusion

In re K.C. underscores the dual duty of juvenile courts: to protect children’s safety and to safeguard parents’ fundamental liberty interests. By reaffirming that as-applied Due Process challenges to removal must be expressly raised below, the Supreme Court of North Carolina has achieved three key objectives:

1. It reinforces the primacy of parental due process rights even within child-protective proceedings.
2. It establishes a clear preservation requirement that fosters procedural fairness and evidentiary clarity.
3. It resolves conflicting appellate precedent and charts a consistent path for future juvenile cases.

As a result, practitioners, trial judges, and appellate courts will have a definitive roadmap: when parents believe that the Juvenile Code’s removal procedures infringe their constitutional liberty, they must articulate that claim at the disposition stage and develop the supporting record—ensuring both children’s welfare and parents’ fundamental rights receive full judicial consideration.