In order for a court to terminate a parent’s parental rights, it must complete 2 stages with 2 different evidentiary standards. The first stage is the adjudication.
There are no default hearings in termination of parental rights cases. Even if the parent does not show up or wish to challenge the termination of parental rights action, the court must hold a hearing in the matter and the petitioner or movant must present clear, cogent and convincing evidence of the grounds alleged and that the TPR is in the child's best interests. The adjudication hearing is held without a jury and is normally held within 90 days of the filing of the TPR (whether its by motion or petition) unless there is good cause to hold it at a later time.
GS 7B-1109The burden of proof at a TPR adjudication hearing is on the petitioner/movant. The evidentiary standard is clear, cogent, and convincing evidence.
GS 7B-1109The Court shall inquire at the beginning whether the parents are present and shall inquire as to whether the parents have counsel representing them. In a termination of parental rights hearing, respondent parents have a right to court appointed counsel, if they qualify for court appointed counsel. They can waive their rights to a court appointed attorney, however. The court must do this on the record and the respondent parent must knowingly waive their right to court appointed counsel, after being advised by the court. If the parent is present without counsel but desires court appointed counsel, and is indigent, the Court must appoint counsel. The Court must continue the hearing to give the parent and counsel time to meet before the hearing.
GS 7B-1109A hearing must be held and the rules of evidence apply. The burden of proof is on the moving party. All parties have the right to present evidence cross-examine witnesses, and make objections.
GS 7B-1109Even though NCGS 7B-1111 lays out 11 potential grounds in which the trial court may find exist, only one needs to be proven by clear, cogent and convincing evidence in order to move to best interests.
Abused juveniles. - Any juvenile (i) who is found to be a minor victim of human trafficking under G.S. 14-43.15 or (ii) whose parent, guardian, custodian, or caretaker:
Inflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means;
Creates or allows to be created a substantial risk of serious physical injury to the juvenile by other than accidental means;
Uses or allows to be used upon the juvenile cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior;
Commits, permits, or encourages the commission of a violation of the following laws by, with, or upon the juvenile: first-degree forcible rape, as provided in G.S. 14-27.21; second-degree forcible rape as provided in G.S. 14-27.22; statutory rape of a child by an adult as provided in G.S. 14-27.23; first-degree statutory rape as provided in G.S. 14-27.24; first-degree forcible sex offense as provided in G.S. 14-27.26; second-degree forcible sex offense as provided in G.S. 14-27.27; statutory sexual offense with a child by an adult as provided in G.S. 14-27.28; first-degree statutory sexual offense as provided in G.S. 14-27.29; sexual activity by a substitute parent or custodian as provided in G.S. 14-27.31; sexual activity with a student as provided in G.S. 14-27.32; unlawful sale, surrender, or purchase of a minor, as provided in G.S. 14-43.14; crime against nature, as provided in G.S. 14-177; incest, as provided in G.S. 14-178; preparation of obscene photographs, slides, or motion pictures of the juvenile, as provided in G.S. 14-190.5; employing or permitting the juvenile to assist in a violation of the obscenity laws as provided in G.S. 14-190.6; dissemination of obscene material to the juvenile as provided in G.S. 14-190.7 and G.S. 14-190.8; displaying or disseminating material harmful to the juvenile as provided in G.S. 14-190.14 and G.S. 14-190.15; first and second degree sexual exploitation of the juvenile as provided in G.S. 14-190.16 and G.S. 14-190.17; promoting the prostitution of the juvenile as provided in G.S. 14-205.3(b); and taking indecent liberties with the juvenile, as provided in G.S. 14-202.1;
Creates or allows to be created serious emotional damage to the juvenile; serious emotional damage is evidenced by a juvenile's severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others;
Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile; or
Commits or allows to be committed an offense under G.S. 14-43.11 (human trafficking), G.S. 14-43.12 (involuntary servitude), or G.S. 14-43.13 (sexual servitude) against the child.
Neglected juvenile. - Any juvenile (i) who is found to be a minor victim of human trafficking under G.S. 14-43.15 or (ii) whose parent, guardian, custodian, or caretaker does any of the following:
Does not provide proper care, supervision, or discipline.
Has abandoned the juvenile.
Has not provided or arranged for the provision of necessary medical or remedial care.
Or whose parent, guardian, or custodian has refused to follow the recommendations of the Juvenile and Family Team made pursuant to Article 27A of this Chapter.
Creates or allows to be created a living environment that is injurious to the juvenile's welfare.
Has participated or attempted to participate in the unlawful transfer of custody of the juvenile under G.S. 14-321.2.
Has placed the juvenile for care or adoption in violation of law.
In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.
Neglect also requires evidence of harm or the risk of substantial harm to the juvenile
Note: If the motion or petition alleges the respondent parents have abused or neglected the child, its important to know a prior adjudication or neglect is not required.
If there is an allegation of neglect, the petitioner must show (1) past neglect and (2) the probability of future neglect. When the child has been outside the home for a significant amount of time case law dictates that the Court must review the respondent parent’s current status as to whether the child would be neglected if returned to the home at the time of the Termination of Parental Rights adjudicatory hearing.
When a petitioner alleges that a respondent parent willfully left a child in foster care, the child must have been in foster care for at least 12 months before the TPR was filed. In addition to alleging a parent willfully left a child in foster care for 12 months or more there also needs to be proof this was without the parent making reasonable progress under the circumstances. Reasonable progress under the circumstances depends on the individual parent’s circumstances. The court must consider the parent's progress up to the time of the TPR adjudicatory hearing.
To prove this ground, the juvenile must have been in DSS custody or a foster home for at least 6 consecutive months immediatley before the TPR was filed. The parent must have willfully failed to pay a reasonable portion of the care even though financially and physically able to do so. A court order of support or notice to pay is not required. If there is a court order or voluntary support agreement, the petitioner does not have to prove the parent had an ability to pay.
When the petition/motion is filed and it alleges G.S. 7B-1111(a)(5) (failure to establish paternity, etc) the petitioner must prove the respondent did not do any of the steps.
To prove this ground, there must be a child custody order or agreement giving custody to a parent and requiring the other parent to pay child support. That parent must have willfully failed to pay child support as required by the order or agreement for at least one year immediately before the TPR petition or motion was filed. The petitioner does not have to prove the parent had an ability to pay but does have to prove nonpayment was willful.
GS 7B-1111(a)(4)Dependency requires meeting a two-pronged burden: that a parent is incapable of providing proper care and supervision and lacks an appropriate alternative childcare arrangement. The inability to provide proper care and supervision must continue for the forseeable future. However, a date certain of when the incapability will end is not required.
GS 7B-1111(a)(6)There are 2 grounds for abandonment: neglect and willful abandonment. If willful abandonment is alleged under G.S. 7B-1111(a)(7), the determinative time period is the 6 consecutive months immediately preceding the filing of the TPR. The court may consider evidence outside that time period to determine the parents's credibility and intentions. Findings must address the 6 month determinative time period.
GS 7B-1111(a)(7), and (a)(1)G.S. 7B-1111(a)(9) is a two-pronged ground. Not only does the petitioner/movant have to prove that there is an existence of a prior TPR but also that the respondent lacks the ability or willingness to establish a safe home. If the petitioner/movant cannot prove both prongs, then the ground is defeated.
GS 7B-1111(a)(9) GS 7B-101(9)