UNPUBLISHED OPINION
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
DIETZ, Judge.
The New Hanover County Department of Social Services found two-month-old L.E. ("Levi")1 with Respondent, who is his biological mother, and Respondent's then-boyfriend in a motel room. Both Respondent and her boyfriend were intoxicated, and syringes and illegal drugs were found throughout the room. Respondent and her boyfriend were later arrested.
DSS then obtained custody of Levi. Two months later, Respondent executed a relinquishment of her parental rights so that her aunt and uncle could adopt Levi. The following month, Respondent moved to set aside her relinquishment on several grounds, including that she relinquished her parental rights under duress. The trial court denied the motion, and Respondent appealed. The trial court later adjudicated Levi a neglected and dependent juvenile and authorized his placement with Respondent's aunt and uncle, with Respondent having limited supervised visitation. Respondent also appealed that order.
We affirm the trial court's orders. The trial court's determination that Respondent was not under duress is supported by competent evidence. Respondent's other ground for challenging the relinquishment, concerning her lack of counsel, was not raised below (although she was represented by counsel at that time). That argument is waived. Finally, because we affirm the trial court's order declining to set aside the relinquishment, we need not address Respondent's arguments concerning reunification efforts in the subsequent court orders.
Facts and Procedural History
On 7 February 2014, DSS obtained nonsecure custody of Levi and filed a juvenile petition alleging that he was neglected. Law enforcement found the two-month-old infant with Respondent and her then-boyfriend in a motel room containing multiple syringes and controlled substances, including Xanax, Adderall, and hydrocodone. Both Respondent and her boyfriend were intoxicated. Officers arrested Respondent and her boyfriend and charged them with child abuse and possession of drugs and drug paraphernalia. DSS placed Levi in a foster home. After a negative paternity test excluded Respondent's boyfriend, Respondent named respondent-father A.W. as the putative father. DNA testing later confirmed that A.W. is Levi's father.
Respondent suggested her mother and her maternal aunt and uncle as possible kinship placements for the juvenile. Following a successful home study, DSS placed Levi with Respondent's aunt and uncle on 5 March 2014.
On 8 April 2014, Respondent executed a relinquishment for adoption under N.C. Gen. Stat. § 48-3-703(a)(5) (2013), consenting to the transfer of Levi's legal and physical custody to DSS for the purpose of facilitating his adoption by Respondent's aunt and uncle. DSS accepted the relinquishment on 10 April 2014. See N.C. Gen. Stat. § 48-3-702(c).
On 19 May 2014, Respondent filed a motion to set aside the relinquishment in district court. Her motion raised several grounds for relief, including that the relinquishment was void because "it was obtained by fraud or duress." N.C. Gen. Stat. § 48-3-707(a)(1). Respondent alleged that she "felt enormous pressure from her mother to sign her rights away to her aunt and uncle" and, therefore, executed the relinquishment under duress.
The district court held a hearing on Respondent's motion to set aside the relinquishment on 2 June 2014, and denied the motion by order entered 18 July 2014. Respondent appealed that order on 28 July 2014.
After a hearing on 21 August 2014, the district court entered an "Order on Adjudication/Disposition" on 17 September 2014, finding Levi a neglected and dependent juvenile. The court continued Levi in DSS custody and expressly authorized his continued placement with Respondent's aunt and uncle. While finding that Respondent "has executed consents for adoption specific to [her aunt and uncle]," the court awarded her twice-monthly supervised visitation with Levi. Because he had "expressed some interest in being a part of his son's life . . . [but] is unsure in what capacity," the court ordered Levi's father to enter into a Family Services Agreement with DSS. Respondent also appealed this order.
Analysis
I. Order Denying Motion to Set Aside Relinquishment
Respondent appeals from the district court's order denying her motion to set aside her relinquishment of Levi for adoption. While the order at issue is not final, we have held that an appeal from a motion to set aside the relinquishment of parental rights affects a substantial right and therefore is immediately appealable. In re Baby Boy, ___ N.C. App. ___, ___, 757 S.E.2d 343, 346, disc. rev. denied, ___ N.C. ___, 763 S.E.2d 390 (2014). Accordingly, Respondent's appeal properly is before us.
We review the district court's ruling on the motion for abuse of discretion. See In re Maynard, 116 N.C. App. 616, 621, 448 S.E.2d 871, 874 (1994). "[A]n abuse of discretion is established only upon a showing that a court's action[] [is] manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision." In re E.S., 191 N.C. App. 568, 573, 663 S.E.2d 475, 478 (2008) (internal quotation marks omitted).
A. Violation of Respondent's Right to Counsel
Respondent first claims that her relinquishment is void because it was obtained by DSS in violation of her statutory right to counsel. She notes that she had been appointed counsel in Levi's juvenile proceeding prior to executing the relinquishment. See N.C. Gen. Stat. § 7B-602 (2013). Therefore, citing our decision in Maynard, Respondent asserts that counsel's representation extended to her relinquishment of the child to DSS for adoption under Chapter 48. See Maynard, 116 N.C. App. at 619-20, 448 S.E.2d at 873.
This argument is waived because Respondent (through her counsel) failed to raise it in her motion below. It is well-settled that if "a theory argued on appeal was not raised before the trial court, the appellate court will not consider it." State v. Henry, ___ N.C. App. ___, ___, 765 S.E.2d 94, 99 (2014). "[P]rinciples of fairness to both parties do not permit one party to use the appellate system to advance a new or different argument than it employed at trial simply because that party did not properly prepare or was unable to think of the argument below." Rolan v. N.C. Dep't of Agric. & Consumer Servs., ___ N.C. App. ___, ___, 756 S.E.2d 788, 795 (2014).
Here, Respondent's motion to set aside her relinquishment, which was prepared and filed by her counsel, did not assert that the relinquishment was obtained in violation of her right to counsel. Likewise, counsel for Respondent expressly raised just "two issues" at the motion's hearing, neither of which was the alleged violation of her right to counsel.
Respondent contends that her argument is preserved, notwithstanding her failure to raise it below, because it involved a statutory violation, citing In re Taylor, 97 N.C. App. 57, 61, 387 S.E.2d 230, 232 (1990). We believe the narrow exception announced in In re Taylor is limited to circumstances where the trial court failed to hold a hearing required by statute. This Court repeatedly has applied its ordinary waiver rules in juvenile cases where a party failed to advance a particular statutory argument in the trial court, and we will follow that case law here. See, e.g., In re I.K., ___ N.C. App. ___, ___, 742 S.E.2d 588, 590-91 (2013); In re D.B., 215 N.C. App. 389, 716 S.E.2d 87 (2011) (unpublished); see also, In re J.B., 172 N.C. App. 1, 16-17, 616 S.E.2d 264, 274 (2005) (noting the waiver rule but choosing to review respondent's argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure). Accordingly, this argument is waived.
B. Relinquishment Under Duress
Respondent next argues that the trial court should have set aside her relinquishment because she showed she was under duress by DSS or her mother. Chapter 48 of our General Statutes provides that "[a] relinquishment shall become void if . . . [,] [b]efore the entry of the adoption decree, the individual who executed the relinquishment establishes by clear and convincing evidence that it was obtained by fraud or duress." N.C. Gen. Stat. § 48-3-707(a)(1) (2013).
"Duress exists where one, by the unlawful [or wrongful] act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will." Radford v. Keith, 160 N.C. App. 41, 43-44, 584 S.E.2d 815, 817 (2003) (quotation marks omitted), aff'd per curiam, 358 N.C. 136, 591 S.E.2d 519 (2004). "[T]he act done or threatened may be wrongful even though not unlawful, per se[,] and . . . becomes wrongful, within the meaning of this rule, if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings." Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 705 (1971). As we have repeatedly emphasized, however, "[a]n intentional wrongful act is an essential element of a claim for duress." Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C. App. 581, 586, 664 S.E.2d 8, 12 (2008).
Here, the trial court concluded that Respondent "has not established by clear and convincing evidence that her relinquishment was obtained by fraud or duress." The court found that "there is no evidence that conversation between [Respondent] and the Social Workers, Guardian ad Litem, or her Mother . . . involved duress or rose to any level of duress." The trial court also found that Respondent "was aware of what she was signing" and that she actively initiated conversations with her social workers concerning relinquishment.
These findings are supported by competent evidence. See In re Rholetter, 162 N.C. App. 653, 660-61, 592 S.E.2d 237, 242 (2004) (noting that "[i]t is the trial court's role to assess witness credibility"); In re J.C.S., 164 N.C. App. 96, 106, 595 S.E.2d 155, 161 (2004), overruled on other grounds by In re R.T.W., 359 N.C. 539, 614 S.E.2d 489 (2005) ("Appellate review of a permanency planning order is limited to whether there is competent evidence in the record to support the findings and the findings support the conclusions of law."). Although Respondent testified that she sometimes felt "pressure" from her mother to relinquish Levi for adoption, she also testified that at other times her mother told her "you should fight for [Levi]." Nothing in the record indicates that Respondent's mother engaged in any unlawful or improper act to induce her to put her child up for adoption.
Respondent also presented no evidence of any unlawful or improper act by DSS to induce her to sign the relinquishment against her will. She acknowledged that she "brought up the topic of relinquishments" with a DSS social worker and conceded that the social worker never told her that she must relinquish Levi for adoption. When asked how DSS pressured her, Respondent recalled the social worker saying that "it would most likely be impossible for [Respondent] to get [Levi] back" if she chose to serve her then-suspended jail sentence rather than comply with probation, "because [she] would have to [do] a year's worth of work in six months" upon her release. Such advice, even if discouraging to Respondent, does not constitute duress. Accordingly, we hold that the trial court properly rejected Respondent's duress argument.
II. Order on Adjudication and Disposition
Respondent also appeals from the adjudication and disposition order entered 17 September 2014, arguing that the court should have directed DSS to make efforts to reunify her with Levi. But as Respondent's brief makes clear, this argument is expressly conditioned on a determination by this Court that her relinquishment of Levi is void. Because we conclude that her relinquishment is not void, we do not reach these arguments and affirm the challenged orders.
AFFIRMED.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
