TPR-Procedural Issues

The general purpose of this module is to provide judicial procedures for terminating the legal relationship between the juvenile and the juvenile’s biological or legal parents when the parents have demonstrated that they will not provide the degree of care that promotes the healthy and orderly physical and emotional well-being of the juveniles.

It is the further purpose of this module to recognize the necessity for any juvenile to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all juveniles from the unnecessary severance of a relationship with biological or legal parents.

Action that is in the best interests of the juvenile should be taken in all cases where the interests of the juvenile and those of the juvenile’s parents or other persons are in conflict.

The district court has exclusive jurisdiction to hear and determine any petition or motion related to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of DSS or licensed child-placing agency in the district at the time of the filing of the TPR petition or motion.

• The Court can terminate the rights of a parent regardless of the parent's age.

There are two ways one can file a termination of parental rights action:

• By motion
• By petition

• A motion may only be done if there is an underlying petition A/N/D action.
• A petition must be filed when there is no A/N/D action. Some DSS agencies prefer to file a petition, although it is not necessary if an A/N/D action is pending.

The following people/agencies have standing to file a TPR petition or motion:

• a parent that hasn’t had their rights terminated,
• a child’s guardian of the person,
• a DSS or child-placing agency with custody of the child,
• a DSS or child-placing agency to whom the child was surrendered (relinquished) for adoption,
• a person with whom the child has continuously resided for 18 months or more immediately preceding the filing of the TPR petition or motion,
• a child’s guardian ad litem (GAL) who has not been relieved of their duties as the child’s GAL, or
• a person who has filed a petition to adopt the minor child.

Certain components must be included in a TPR petition or motion in order to invoke the court’s jurisdiction over the matter and allow the Court to proceed to adjudication. These components are:

1. A caption, “In Re (last name of child), a minor juvenile.” G.S. 7B-1104.
2. The child’s name as it appears on the birth certificate, the date and place of the child’s birth, and county of the child’s residence or it must state that the information is unknown.
3. The petitioner’s or movant’s name and address and facts sufficient to show that the petitioner or movant has standing to initiate the action.
4. The name and address of any court-appointed guardian of the child’s person and of any person or agency to whom a court of any state has given custody of the child. A copy of any related court order must be attached.
5. A statement that it has not been filed to circumvent the Uniform Child-Custody Jurisdiction and Enforcement Act.
6. Facts sufficient to support a determination that one or more grounds for terminating parental rights exist.
7. A verification, and failure to verify deprives the court of subject matter jurisdiction.
8. A prayer for relief and request the entry of an order.

Key Factors in Determining Subject Matter Jurisdiction in a TPR

1. Proper petitioner (standing)
2. Proper initiation of proceedings
3. Verification of petition or motion
4. Compliance with the UCCJEA
5. Location of child

Establishing Personal Jurisdiction for both methods of initiating a TPR:

1. In proceedings initiated by petition, a summons to the parent is required. Use the AOC summons form.
2. In proceedings initiated by motion, a specific form of notice is required by GS 7B-1106.1.
3. The requirements for the summons and the notice are similar but not identical.

When a summons is issued the summons will name provisionally appointed attn. if notice is issued the notice will advise parent to call clerk of court for the provisionally appointed attorney.

Regardless of how a TPR is initiated, if an attorney is appointed to the parent in the underlying A/N/D case, that attorney automatically is the confirmed attorney for the parent in the TPR. The attorney is not provisionally appointed.

At this hearing, after the Court determines the parent has been served, the Court will determine whether a parent receives court-appointed counsel going forward. If the parent qualifies for court-appointed counsel, then their provisional attorney is confirmed as their court-appointed attorney.

If a parent is not indigent, then the Court will release provisional counsel. The parent either has to represent themselves or hire their own attorney. The Court shall dismiss the provisional counsel at the hearing if a parent, who has been served, does not show up for the hearing, does not qualify for court-appointed counsel, has retained an attorney, or waives the right to counsel.

The Court may reconsider a parent’s eligibility and desire for appointed counsel at any stage of the proceeding. The parent will need to ask the Court to appoint an attorney, tell the court why one is needed and fill out another affidavit of indigency to be considered by the Judge. At the adjudicatory hearing, the court must ask if the parent is present and represented by counsel. If the parent wants an attorney and doesn’t have one, the court must appoint an attorney if the parent is indigent.

A parent can always chose to represent themselves and waive a court-appointed attorney. Before the Court allows one to represent themselves, a hearing must be held where the Court examines the parent and makes sufficient findings of fact in an Order that the parent chooses to represent themselves and this waiver of a court-appointed attorney is done knowingly and voluntarily.

Whether filed by motion or petition, the parent has the right to file an answer within 30 days. An answer does not have to be filed, although it is best practice to file one. If a parent files an answer that includes a denial of a material allegation, the court must appoint a GAL for the juvenile if one is not already appointed.

If the parent is a minor (under the age of 18 themselves), a rule 17 GAL for the respondent parent must be appointed until the minor child is 18, unless the minor child is married or emancipated. If the parent is over the age of 18 and the issue of competency is raised (this issue can be raised at any time by anyone, including the Court on its own motion), then the Court may hold a hearing to determine whether the parent is incompetent pursuant to rule 17. If the parent is incompetent, then the trial judge must appoint a rule 17 GAL. The court has substantial discretion in determining whether there is a question as to competency and whether the parent is incompetent.

If there is a GAL appointed for the respondent parent, the communications between the GAL and the parent and the communications between the GAL and the parent's counsel are privileged.

When the court may or must appoint a GAL for the child:

If the parent files an answer that materially denies any of the allegations in the termination of parental rights petition or motion, then the Court must appoint a GAL for the minor child. If there is an underlying A/N/D action the child has a GAL, that GAL represents the child's interests in the TPR. In its discretion, the court may appoint a GAL to the child.

If the parent’s identity or name is not known, then 10 days after the filing of the petition or motion, the Court must hold a preliminary hearing to determine the name or identity of the parent. If the Court is unable to determine the identity of a parent, then it must allow service on an unknown parent by publication in a newspaper qualified for legal advertising.

A summons is not required for a parent whose name or identity unknown. Provisional counsel is not appointed for an unknown parent. Neither should provisional counsel be appointed.

The pre-trial hearing can be combined with the termination of parental rights hearing, although typically they are not. At the pre-trial hearing the Court must address the following:

1. Whether provisional counsel shall be confirmed by the Court or released
2. Whether a GAL should be appointed for the child, if not previously appointed
3. Whether all summons, service of process, and notice requirements have been met
4. Any pre-trial motions
5. Any issues raised by a responsive pleading, including any affirmative defenses
6. Any other issue which can be properly addressed as a preliminary matter (such as discovery issues, etc.)