Friday afternoon, my email and text message notification systems were singing.  Why?  For the first time since December 2016 when the Court of Appeals received en banc review authority, an order allowing en banc rehearing was issued.  See Order allowing rehearing en banc.

What issue precipitated this magical unicorn?  I am not 100 percent sure because the en banc order was issued in a Rule 3.1 appeal —where the briefs, records, and motions are sealed.  My best guess is that the issue being reviewed is whether the Petersen presumption is a nonwaiveable, jurisdictional element of a non-parent’s claim for custody.

The Petersen presumption provides as follows: A non-parent seeking to gain custody of a minor child must overcome the constitutional presumption that the natural parents have the right to custody, care, and control of their minor children. Petersen v. Rogers, 337 N.C. 397, 406, 445 S.E.2d 901, 906 (1994).

But what happens when Petersen presumption arguments are not raised in the trial tribunal?  Some Court of Appeals cases indicate that the Petersen presumption is a nonwaiveable, constitutional mandate that may be raised at any time—including for the first time on appeal—because it is akin to standing or subject matter jurisdiction.  Chávez v. Wadlington, 261 N.C. App. 541, 542–43, 821 S.E.2d 289, 291–92 (2018) (affirming for lack of subject matter jurisdiction trial court’s conclusion that non-parent lacked standing to seek custody of the children), aff’d, 373 N.C. 1, 832 S.E.2d 692 (2019); see also Perdue v. Fuqua, 195 N.C. App. 583, 586, 673 S.E.2d 145, 148 (2009) (“[N]on-parents do not have standing to seek custody against a parent unless they overcome the presumption that the parent has the superior right to the care, custody, and control of the minor child.”).

Other cases, however, hold that the Petersen presumption is waived when not raised by the parents in the trial tribunal. E.g., In re C.P., 258 N.C. App. 241, 246, 812 S.E.2d 188, 192 (2018); In re C.P., C.P., J.C., J.T., 252 N.C. App. 118, 121–22, 801 S.E.2d 647, 650 (2017); In re T.P., 217 N.C. 181, 186, 718 S.E.2d 716, 719 (2011). This is the category that the en banc case arose from.  See In re AC, 2021-NCCOA-280, ¶1 (unpublished) (“A parent waives appellate review of a trial court’s determination he acted inconsistently with his constitutionally protected parental status when he fails to raise the issue at a permanency planning hearing that involves a guardianship determination and provides an opportunity to present evidence on that issue.”).

And still a third group of cases hold that the Petersen presumption is theoretically waiveable, but only when parents are afforded a practical opportunity to raise the issue in the trial tribunal.  See, e.g., In re R.P., 252 N.C. App. 301, 304–05, 798 S.E.2d 428, 430–31 (2017).

So what talented attorney lured our en banc unicorn out of hiding? Ben Kull, a roster attorney with the parent appellate defender program.  Congratulation Ben!

Moving forward, it remains unresolved what the en banc procedures will look like.  Per the order granting en banc review, “[d]ecisions on supplemental briefing and scheduling of oral arguments, if determined to be needed by the Court, shall be made in future orders.”

All this makes we wonder: What was it about this unpublished opinion that finally prompt the Court of Appeals, after all these years, to exercise its en banc  authority?   Complete speculation here, but over the past 8 months, the Court of Appeals has changed.  The Court of Appeals has a new chief Judge. The Court of Appeals also has added five new judges to its bench—three of whom have extensive district court experience. And Rule 3.1 cases originate from the district court. Could these changes, along with everyone settling into their new roles, have been the catalyst for the additional votes needed to garner enough votes for en banc review? Or was it something else? Finally, any prediction on how long before we see en banc review again?

This development is too monumental for silence. Let us know your thoughts (or any details I may have missed) in the comments below. And thanks to everyone who email or texted me about this development.

–Beth Scherer