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Termination of Parental Rights

“Termination of parental rights” can be a scary phrase for any parent to hear. Sometimes a parent has to fight to retain his or her parental rights because certain circumstances have caused removal of the child from the parent’s home. Other times a parent will voluntarily relinquish parental rights to a child because it is in the child’s best interests. Termination of parental rights also frequently comes up in cases of adoption in North Carolina.

A birth parent’s consent to an outside person or couple adopting his or her child is usually required here because the birth parent’s rights will be terminated as soon as a judge enters the adoption decree. In addition, one way around the consent requirement is if that parent’s rights have already been terminated.

North Carolina law provides 11 primary instances that can cause a court to grant a petition to terminate parental rights, regardless of who brings it. However, the primary consideration in a court’s granting or denying a petition for termination of parental rights is whether to do so would be in the best interests of the child. This inquiry is the standard for almost every child custody issue in North Carolina. If the child’s interests conflict with those of the adult, the child’s interests control. But, the following factors do help inform a court of whether or not terminating a parent’s rights is in the child’s best interests.

If the court finds one or more of the following occurred before the filing of the petition to terminate a parent’s rights, they may grant it:

  • The parent neglected or abused the child within 7B-101(1) or (15)

  • The parent knowingly and intentionally left the child in foster care or other placement outside of the home for over 12 months (these months do not have to be continuous) without showing to the court that they have made reasonable progress towards correcting the circumstances that led to the child being removed from the home. This does NOT include situations where poverty is the sole reason parents cannot take care of their child.

  • The child is in the custody of a foster home, child placement agency, the county department of social services or other childcare institution and the parent has knowingly and intentionally failed to pay a reasonable portion of the child’s cost of care for a continuous period of six months, even though they are financially and physically able to do so.

  • The parent has knowingly and intentionally failed without justification to pay for the child’s care, education and support as required by court order or agreement for a year or more while the other parent has custody of the child.

  • The child is born outside of marriage and the father has not established paternity or otherwise legitimized the child, or given substantial, consistent care to the mother and child.

  • The parent is incapable of caring for and supervising the child because of physical or psychiatric illness, substance abuse, mental handicap or a similar condition

  • The parent has knowingly and intentionally abandoned the child for the past six consecutive months or more, OR

    1. The parent voluntarily abandoned an infant for at least 60 consecutive days

  • The parent has committed one of the following against the child, one of the parent’s other children, or another child in the home:

    1. Felony assault resulting in serious bodily injury

    2. The aiding, abetting, attempting, conspiring, or soliciting to commit murder or voluntary manslaughter

    3. Or if the parent is convicted of the voluntary manslaughter or murder of the child’s other parent. The court considers self-defense or other justifications in this instance.

  • The parent has had his or her parental rights involuntarily terminated before with respect to another child, and still lacks the willingness or ability to establish a safe home for the child.

  • The parent has relinquished their parental rights to the child in an adoption, if it is in a jurisdiction that requires termination of parental rights.

    1. Courts very rarely consider undoing or revoking a parent’s relinquishing their child to adoption but it is usually in cases involving fraud, duress, or if the parent and prospective adoptive parent mutually agree in writing to set the adoption aside.

  • The child is the conception of a sexually related offense for which the parent was convicted.

Effects of the Termination of Parental Rights

If the child was in the custody of a licensed child placement agency or the local county’s department of social services when the petition was filed, that agency maintains custody of them after the judge terminates parental rights. The agency will also have the right to then give consent to the child’s adoption in lieu of the terminated parent.

If the child is not in agency custody, the court can award custody of the child to the petitioner, guardian ad litem, relative or foster parent with whom the child has lived for more than two years, or some other party in the child’s best interests, including the county department of social services if none else are available.

An order terminating a parent’s rights permanently and completely severs the child’s and parent’s rights and obligations to each other. The one exception to this is the child’s right to inherit from the parent, which exists until the child is adopted.

Appealing a Termination of Parental Rights

Any parent, guardian, child, custodian or agency who was a party to a termination proceeding can appeal a judge’s decision if they give notice of their intent to appeal within ten (10) days after the order. The court can make temporary custody orders for the child’s placement while an appeal is pending according to what is in the child’s best interests.

Motions to modify or vacate a termination order brought by either party are not guaranteed a hearing or review by the court.

If you are facing a situation involving the termination of parental rights it is important to have the help of a skilled family law attorney during this confusing and challenging process. The Family Law Practice Group at Arnold & Smith, PLLC has experienced and dedicated attorneys who stand at the ready to help you understand your options and how to make them happen. Contact us today for a consultation.