What is a Termination of Parental Rights?
A termination of parental rights involves the complete legal removal of a person’s parental rights for a child naturally birthed or legally adopted. Due to constitutional protections of a person’s right to parent, a termination of parental rights is a complicated process. Once completed, a parent essentially has no more influence or rights over a child than a random third party. A person whose rights have been terminated no longer has the right to visitation or custody of the child, not even a phone call. Generally once the termination is granted, it is permanent and irreversible.
A termination of parental rights should not be confused with child custody rights. In contrast, child custody rights automatically attach at the birth or adoption of a child. Therefore, a biological parent or adoptive parent have the right to have both physical custody (the right to spend time with the child) and legal custody (the right to make decisions regarding the child’s welfare). At the child’s birth or date of official adoption, parents will have equal custodial rights to the child. If there is a conflict between said parents and no legally enforceable agreement or Court Order, then the parents may engage in a custodial dispute as to how physical custody and legal custody are to be shared. Even if a parent is granted limited visitation, limited access, or limited decision-making authority over a child, said parent still has a form of custody. Thus, said parent’s parental rights still exist and are not terminated.
What are the steps to move forward with a Termination of Parental Rights?
In a parental rights termination, the first step is filing a petition by the person or agency that currently has custody of the child. Once filed, the Court conducts a preliminary review of the details of the matter in closed proceedings via the Juvenile Courts. In order to protect the privacy of any children involved, closed proceedings are court hearings that are not open to the public media, or general spectators.
Once the matter is ready to move forward, the Court conducts a two-stage analysis during a trial.
Stage 1: Adjudication.
The first stage requires the Judge to hold that a specific ground for termination exists. This The petitioner has the burden to prove that one of the following grounds exists to proceed on a termination pursuant to North Carolina General Statute §7B-1111:
1. The parent has abused or neglected the juvenile [in accordance with North Carolina General Statutes].
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:
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.
6. That the parent is incapable of providing for the proper care and supervision of the juvenile, [in accordance with North Carolina General Statutes], 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 [North Carolina General Statutes] 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 [North Carolina General Statutes]; 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 [North Carolina] General Statutes that resulted in the conception of the juvenile.
Once the Court holds that one of the above-referenced prongs has been met, the Court can move onto the next stage.
Stage 2: Disposition.
The second stage of termination proceedings involves the disposition stage. During this stage, the Court will analyze what is “in the best interests of the child.” The Court will review any and all factors that impact or otherwise influence the welfare of the child. This can include considerations about financial support of the child, whether the child will be adopted by one or two parents, whether the child will have a healthy support system, and many other factors. After a review of all the evidence presented, if the Court finds that it is in the best interest of the child to do so, then the Court can move forward with terminating a parent’s rights.
If you would like to learn more about Termination of Parental Rights, our Modern Legal team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Theresa E. Viera
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