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Termination of Parental Rights is the legal severing of all rights and obligations of the parent to the child and of the child to the parent (except the child's right to inheritance from the parent, which continues until a final decree of adoption has been issued). This type of court action comes under the jurisdiction of the Juvenile Division of the District Court. The North Carolina General Statutes governing the legal framework for Termination of Parental Rights can be found in the following statutes: N.C.G.S. § 7B-1100; N.C.G.S. § 7B-1101; N.C.G.S. § 7B-1101.1; N.C.G.S. § 7B-1102; N.C.G.S. § 7B-1103; N.C.G.S. § 7B-1104; N.C.G.S. § 7B-1105; N.C.G.S. § 7B-1106; N.C.G.S. § 7B-1106.1; N.C.G.S. § 7B-1107; N.C.G.S. § 7B-1108; N.C.G.S. § 7B-1109; N.C.G.S. § 7B-1110; N.C.G.S. § 7B-1111; N.C.G.S. § 7B-1112. While no court action is to be taken lightly or without due cause, the sheer number of statutes dedicated to this one type of action underscores the seriousness and severity of this action.
As with any other juvenile court action, this particular action is initiated by the filing of a motion or petition for Termination of Parental Rights of the parent or parents whose consents have not been obtained. The Notice of Motion Seeking Termination of Parental Rights (form AOC-J-210) 26 may be used when a TPR action is filed by motion. If a TPR is filed by petition, then the Summons in Proceeding for Termination of Parental Rights (form AOC-J-208)27 must be used. As with other petitions for Juvenile Court action, termination petitions are filed with the Clerk of Court. Due to the complex legal nature of termination proceedings, agencies seeking to have parental rights terminated should coordinate all aspects of this court action in close consultation with their legal counsel.
N.C.G.S. § 7B-1111 provides that the first requirement for terminating the parental rights is a finding by clear, cogent and convincing evidence that one or more of the following conditions exist:
1. The Court has found that the parent has abused or neglected the child in accordance with the definitions of N.C.G.S. § 7B-101;
TPR is a two-part process. First, the agency must show by clear, cogent, and convincing evidence the existence of one or more grounds for TPR. Second, even if these grounds exist, the decision to terminate the parents’ rights must be determined by the court to be in the child’s best interest.
Prior to the filing of a TPR petition, agencies shall thoughtfully consider the following questions. The answers to these questions should be thoroughly discussed with the agency’s legal counsel in consideration of preparing evidence for the court:
The agency must also present evidence that addresses “best interest” issues for the court. The following additional questions will help develop this evidence:
• Which relatives or other kin have been considered for permanent placement? Are there members of the kinship network who are willing and able to adopt the child? Is there an existing emotional attachment between the adult and child? Can the child maintain contact with them if they do not adopt the child? Will they be supportive of an adoptive placement? Will siblings remain together? Should they?
• What is the potential for adoption by non-relatives? Will the foster parents adopt this child? Are there other adoptive parents waiting? Will the agency conduct a child specific recruitment effort?
• Is there a balance between what the child wants against what the child needs? Does the child understand the issues? What has the child said about his/her preferences? Who has talked to the child? Are there conflicting loyalty issues?
• How long has the child been waiting for a permanent home?
• What will happen to this child if TPR is not granted? Who will “parent” this child when he/she is an adult? Who will be his/her “forever” family?
Additionally, N.C.G.S. § 7B-1110(a) requires that the court must consider factors such as:
• the age of the juvenile;
• the likelihood that the juvenile will be adopted;
• whether TRP will aid in accomplishing the juvenile’s permanent plan;
• the bond between the juvenile and the parent;
• the quality of the relationship between the juvenile and any proposed placement and;
• any other relevant consideration
In agency placements, the agency having placement authority has the responsibility for legally clearing the child and directly filing the documents with the Clerk of Court. These documents contain identifying information and shall not be given to the adoptive parents or their attorney. In all other placements, the adoptive parents’ attorney has the responsibility to legally clear the child and file the documents with the Clerk of Court. The agency need not maintain legal clearance documents in their files except for children for whom they have placement authority.
Adoption may become the plan for children whose parents may not be available to give consent or whose parents may be unable or unwilling to care for the children. In these circumstances one method of assuring that the children are legally cleared for adoption is by obtaining a court adjudicated termination of parental rights.
1. Petition for TPR
A petition for termination of parental rights of a child’s parent or parents may be filed by the Director of the county department of social services or by a licensed private child-placing agency, if the agency has court ordered custody of the child or if the child has been relinquished for adoption to the agency by one of the parents or by the guardian of the person of the child. Others who may file a petition include either parent, seeking termination of the other parent’s parental rights; a judicially appointed guardian of the person of the child; any person with whom the child has lived for two or more years; and a Guardian ad Litem appointed to represent the minor child pursuant to N.C.G.S. § 7B-601, who has not been relieved of this responsibility; and any person who has filed a petition for adoption.
The petition must contain information that is specified in N.C.G.S. § 7B-1104, including the facts that are considered sufficient to warrant a determination that one or more of the grounds for terminating parental rights exists. If the identity and/or whereabouts of the parent are unknown, an affidavit should be attached to the petition indicating both this fact and the efforts undertaken to ascertain the identity and whereabouts of the parent. The affidavit is to be that of the petitioner. If the petitioner is not one of the child’s parents, the affidavit should include information furnished to the petitioner by the parent, if available, such as a mother’s sworn statement of circumstances that resulted in her pregnancy without her knowledge of the father’s identity. Alternatively, the affidavit may be based on personal information or absence thereof about the child’s parent or parents.
2. Preliminary Hearing in the Case of Unknown Parent(s)
If it appears to the court before which the petition for Termination of Parental Rights is filed that the identity of the child’s parent or parents is unknown, the court shall, within ten (10) days of the filing of the petition (or during the first available court period), conduct a preliminary hearing in an effort to ascertain the identity of the unknown parent. Though notice of this hearing is required only to the petitioner, the court may summon other persons to the hearing if it is felt that others may be apt to provide the identifying information.
If the identity and whereabouts of the parent are not ascertained, notice of a hearing to terminate parental rights shall be served upon the unknown parent by publication, as set forth in N.C.G.S. § 7B-1105. If the unknown parent served by process of publication fails to answer the petition within the thirty-day time period prescribed in the notice, the statute mandates the court to issue an order terminating the unknown parent’s parental rights.
3. Summons
In cases in which the identity of the parent whose rights are sought to be terminated is known, diligent attempts must be made to provide personal service of summons and petition. If personal service is not possible, the statute provides for alternate methods of service. The summons shall notify the parent (respondent) to file written answer to the petition within thirty (30) days after service of summons and petition. N.C.G.S. § 7B-1106 outlines the parties that should be recipients of the TPR summons. It should be noted that this statute indicates that the juvenile will receive service of the summons but goes on to also say, “Except that the summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed, service of the summons shall be completed as provided under the procedures established by G.S. 1A-1, Rule 4(j).” Recently, several Termination of Parental Rights matters have been vacated by the North Carolina Court of Appeals based on the lack of summons on the juvenile or their appointed Guardian ad Litem.
4. TPR Hearing
After the time prescribed in the summons has expired, and whether or not there has been written answer to the petition from the respondents served with the summons, the court shall conduct a hearing to determine the issues regarding termination of parental rights. N.C.G.S. § 7B-1107 directs that:
Upon the failure of respondent parent to file written answer to the petition or written response to the motion within thirty (30) days after service of the summons and petition or notice and motion, or within the time period established for a defendant’s reply by N.C.G.S. § 1A-1, Rule 4(j1) if service is by publication, the court may issue an order terminating all parental and custodial rights of that parent with respect to the juvenile
The court must appoint a Guardian ad Litem for the child to represent the child’s best interests only if an answer is filed denying material allegations. If a Guardian ad Litem has already been appointed, pursuant to N.C.G.S. § 7B-601, then the GAL and the Attorney Advocate continue to represent the juvenile. The court must also schedule a special hearing to determine the issues raised by the petition and the answer; and must provide notice of that hearing to the petitioner, respondent, and GAL. The hearing shall not be scheduled less than ten (10) days or more than thirty (30) days from the time of serving notice and is often held just before the termination of parental rights hearing (N.C.G.S § 7B-1108).
a. Adjudicatory Portion of Hearing
The burden at this stage is on the petitioning agency to show by clear, cogent and convincing evidence the existence of one or more grounds for termination of parental rights. The court may request additional evidence, reports, and information and may continue the hearing for the time required for the receipt of such information (N.C.G.S. § 7B-1109). In addition, pursuant to this statute, the adjudicatory hearing on termination shall be held no later than ninety (90) days following the filing of the petition or motion unless the court has entered a continuance for up to ninety (90) days for good cause. Continuances beyond ninety (90) days shall only be granted in extraordinary circumstances for the proper administration of justice.
In cases in which an agency petitions the court for termination of parental rights of a child in its care and/or custody, it is essential that the agency case records contain well documented entries that indicate the type and frequency of agency attempts to involve the respondent parent, to correct or better conditions that led to the child’s removal, to establish paternity, to obtain reasonable support for the child, etc. The length of time the child has been in foster care, dates of contacts, kinds of contacts and quality of contacts, and contents of communication with the parent will be essential in establishing the agency’s justification for termination. Agencies are strongly encouraged to discuss with their legal counsel whether the record itself should be taken to the hearing. Regardless of the agency’s decision to take a record to court, accurate notations of factual data, such as dates of visits, etc. should be prepared and provide the basis of the social worker’s sworn testimony at the hearing.
b. Disposition Portion of Hearing
If the court finds, on the basis of clear, cogent, and convincing evidence, that if the court finds that irrespective of grounds that TPR is not in the juvenile’s best interest, then the court shall dismiss the petition or deny the motion after setting forth facts and conclusions for the denial or dismissal. If the court finds that grounds do not exist, the court shall dismiss the petition or deny the motion after making the appropriate facts and conclusions. (N.C.G.S. § 7B-1110) At this stage of the proceeding the petitioner does not have the burden of proof; the court hears all evidence and makes a discretionary determination of best interest. Should the court determine that despite the existence of circumstances warranting termination of parental rights, such action would not be conducive to the child’s best interests, the court may dismiss the petition after first setting forth facts and conclusions upon which the decision for dismissal is based.
5. Appeals
N.C.G.S. § 7B-1001 sets forth the provisions for an appeal of an adjudication or order of disposition by any person who has been a party to a termination of parental rights proceeding. The appeal is made to the North Carolina Court of Appeals.
6. Effects of TPR Order
A termination order has the effect of completely and permanently severing all parent/child rights and obligations between the parent and the child, except that the child’s right to inherit from his parents will not be terminated until a Final Decree of Adoption has been issued. If the child is in the custody of a county department or a licensed private child placing agency at the time the termination is filed, upon entry of the termination order that agency shall have all placement rights to the child, including the right to consent to the adoption. The agency’s consent in such cases should be executed in writing. It is possible for the agency to be vested with consenting authority in some situations in which it was not the petitioner for termination of parental rights, such as if foster parents or a GAL petition for termination in regard to a child in agency custody. In the case of foster parent petitioners, it is anticipated that usually the agency will feel that adoption by such long-term caretakers is in the child’s best interests and will be in agreement for the foster parents to adopt. In cases in which the child had not been in agency custody or relinquished by one parent to an agency for adoptive placement and the petition for termination was filed by someone other than an agency director or representative, the court, upon terminating parental rights, may place custody of the child with the petitioner, or some other suitable person, or with an agency, according to the child’s needs and interests.
7. Post-Termination Reviews
Per N.C.G.S. § 7B-909 reviews are required following termination of parental rights in order to ensure that every reasonable effort is being made to finalize a permanent plan for the child who has been placed in the custody of a county agency or licensed child-placing agency. Placement reviews shall be held no later than six (6) months from the date of the termination of parental rights. Subsequent reviews shall be held every six (6) months until the juvenile is placed for adoption and a final decree of adoption is entered. Additionally, the appointment of the GAL Program continues until the decree of adoption is filed. At each review hearing, the court may consider information from the agency, the licensed child-placing agency, the Guardian ad Litem, the child, the foster parent, and any other person or agency the court determines is likely to aid in the review. The court shall consider at least the following in its review:
The Court shall affirm the agency’s plans or require additional steps that are necessary to accomplish a permanent placement in the best interest of the child.
If the child has been placed for adoption prior to the date scheduled for the review, written notice of placement shall be given to the clerk and placed in the court file. The review hearing shall be cancelled and the clerk shall give notice of the cancellation to all persons previously notified.
The process of selection of specific adoptive parents shall be the responsibility of and within the discretion of the county department of social services or licensed child-placing agency. The Guardian ad Litem may request information from and consult with the agency concerning the selection process. N.C.G.S. § 7B-908(f) provides that if the Guardian ad Litem Program requests information about the selection process, the agency shall provide this information within five (5) days. The county department of social services or the private child placing agency must notify the GAL in writing of the filing of the adoption petition and the GAL has ten (10) days from the receipt of the written notification to raise any concerns about the adoption selection process.
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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26 Refer to Attachment 10 (AOC-J-210)
27 Refer to Attachment 9 (AOC-J-208)