TERMINATION OF PARENTAL RIGHTS

The termination of parental rights statutes provide for a two-stage termination proceeding: an adjudication stage and a disposition stage. In the adjudication stage, the trial court must determine whether there exists one or more grounds for termination of parental rights under N.C. Gen. Stat. § 7B-1111(a). The statute sets forth eleven possible grounds for termination of parental rights. Those grounds are as follows:

(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B 101 or a neglected juvenile within the meaning of G.S. 7B 101.

(2) The parent has willfully left the 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 removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.

(3) The juvenile has been placed in the custody of a county department of social services, a licensed child placing agency, a child caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.

(4) One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement.

(5) The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights, done any of the following:
a. Filed an affidavit of paternity in a central registry maintained by the Department of Health and Human Services; provided, the petitioner or movant shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and the Department’s certified reply shall be submitted to and considered by the court.
b. Legitimated the juvenile pursuant to provisions of G.S. 49 10, G.S. 49 12.1, or filed a petition for this specific purpose.
c. Legitimated the juvenile by marriage to the mother of the juvenile.
d. Provided substantial financial support or consistent care with respect to the juvenile and mother.
e. Established paternity through G.S. 49 14, 110 132, 130A 101, 130A 118, or other judicial proceeding.
(6) That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B 101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other cause or condition that renders the parent unable or unavailable to parent the juvenile and the parent lacks an appropriate alternative child care arrangement.

(7) The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. 7B 500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.

(8) The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home; or has committed murder or voluntary manslaughter of the other parent of the child. The petitioner has the burden of proving any of these offenses in the termination of parental rights hearing by (i) proving the elements of the offense or (ii) offering proof that a court of competent jurisdiction has convicted the parent of the offense, whether or not the conviction was by way of a jury verdict or any kind of plea. If the parent has committed the murder or voluntary manslaughter of the other parent of the child, the court shall consider whether the murder or voluntary manslaughter was committed in self defense or in the defense of others, or whether there was substantial evidence of other justification.

(9) The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home.

(10) Where the juvenile has been relinquished to a county department of social services or a licensed child placing agency for the purpose of adoption or placed with a prospective adoptive parent for adoption; the consent or relinquishment to adoption by the parent has become irrevocable except upon a showing of fraud, duress, or other circumstance as set forth in G.S. 48 3 609 or G.S. 48 3 707; termination of parental rights is a condition precedent to adoption in the jurisdiction where the adoption proceeding is to be filed; and the parent does not contest the termination of parental rights.

(11) The parent has been convicted of a sexually related offense under Chapter 14 of the General Statutes that resulted in the conception of the juvenile

The burden of proof is on the petitioner or movant to prove the existence of any of the above-referenced grounds by clear and convincing evidence. If the trial court determines that at least one ground for termination exists, it then proceeds to the disposition stage where it must determine whether terminating the rights of the parent is in the best interest of the child.

N.C. Gen. Stat. § 7B-1110(a) provides that in determining whether terminating parental rights is in a child’s best interest, “[t]he court may consider any evidence, including hearsay evidence as defined in G.S. 8C-1, Rule 801, that the court finds relevant, reliable and necessary to determine the best interests of the juvenile.” The statute requires that in each case, the court shall consider the following criteria and make written findings regarding any criteria that are relevant:
(1) The age of the juvenile.
(2) The likelihood of adoption of the juvenile.
(3) Whether the termination of parental rights will aid in the accomplishment of the permanent plan for the juvenile.
(4) The bond between the juvenile and the parent.
(5) The quality of the relationship between the juvenile and the proposed adoptive parent, guardian, custodian, or other permanent placement.
(6) Any relevant consideration.

While the language of this statute requires the trial court to “consider” all six of the listed factors, and that any failure to do so would constitute an abuse of discretion, the court must enter written findings in its order concerning only those factors “that are relevant.” This means the court is not required to make findings on all six criteria, but just those criteria relevant to the case at hand. For example, in a case where no one is attempting to adopt the child, a finding of adoptability is not required in order to terminate parental rights.

An action to terminate a person’s parental rights can be brought by filing a petition in the county wherein the child resides. Only the following persons have standing to bring an action to terminate the parental rights of a person:

1. Either parent seeking termination of the right of the other parent. (A parent cannot seek to terminate his or her own parental rights.)
2. A person appointed guardian of the person of the child.
3. A person with whom the child has lived for two continuous years preceding the filing of the petition, or
4. Certain agencies, such as the County Department of Social Services, that have been given custody of the child by the Court, or to which the child has been surrendered for adoption.
5. Any person who has filed a petition for adoption of the child pursuant to Chapter 48 of the General Statutes.

If the name or identity of the parent whose rights are being terminated is not known, the Court will conduct a hearing to determine the name or identity of the parent and decide how the case should proceed.

Court appointed counsel is available for indigent defendants. Counsel may also be appointed to represent the interests the child.

Reference: In the Matter of D.H., et. al., No. COA13-1055, 4 February 2014.