Having ones parental rights terminated has been referred to as the “death penalty” of family law cases. When a petition for the termination of parental rights is granted, all rights that arise from the parental relationship end. The parent has no rights whatsoever to visit with or communicate with his or her minor child.
Filing the Petition
A termination for parental rights proceeding begins with the filing of a petition. The party that files the petition is referred to as the petitioner. North Carolina General Statute code section 7B-1103 provides a detailed explanation of who is eligible to file a petition. Typically, one parent files the petition for termination of parental rights against the other parent. Under certain circumstances, statute allows a non-parent to file a petition for termination of parental rights against one or both parents. If an individual has lived with the child for two or more years, has been appointed by the courts as the guardian for the child, or has filed a petition to adopt the juvenile, then that individual may be able to file a petition for termination of parental rights. If the Department of Social Services is awarded custody of the minor child, they may also file a petition for termination of parental rights.
A parent cannot file a petition to have his or her own parental rights terminated. Occasionally, a parent desires to have his or her parental rights terminated in an effort to avoid paying child support. There are a multitude of options available for a parent that is unable to pay child support in accordance with a court order. Unilaterally deciding to terminate your rights and obligations to your child, however, is not an option.
Responding to the Petition
The parent whose parental rights are being challenged is referred to as the respondent. After a petition has been filed, the respondent can hire an attorney, or if he or she cannot afford an attorney, the court may appoint an attorney. The respondent has thirty days to file an answer to the petition for termination of parental rights. If the respondent fails to provide an answer, the court may, in its discretion, issue an order terminating his or her rights to the juvenile.
If the respondent files an answer alleging that his or her parental rights should not be terminated, the petitioner must overcome a two-part test. The first step is to prove that there are grounds to terminate his or her parental fights, and the second step is to prove that terminating the parental rights is in the best interest of the minor child. At this stage, the court will appoint a guardian ad litem. It will be the responsibility of the guardian ad litem to determine what is in the best interest of the juvenile.
Burden of Proof
North Carolina General Statute 7B-1111 provides that the petitioner must prove grounds by “clear and convincing evidence”. This is a higher burden of proof than one will typically encounter in a civil proceeding.
Grounds for Termination of Parental Rights
To prove that there are grounds to terminate parental rights, the petitioner must prove any one of the following:
(1) The parent has abused or neglected the juvenile;
(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than twelve months without making reasonable progress to rectify the conditions that led to the removal of the juvenile;
(3) The minor child has been placed in the custody of the department of social services and for six months prior to the filing of the petition, the parent has willfully failed to pay for the support of the juvenile;
(4) One parent has received custody of the minor child and the other parent has 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 the minor child, born out of wedlock, has not made any attempt to establish paternity of the minor child;
(6) The parent is incapable of providing for the care and supervision of the juvenile, and the incapacity will continue fore the foreseeable future;
(7) The parent has willfully abandoned the juvenile for six consecutive months prior to the filing of the petition, or the parent has willfully abandoned an infant for sixty consecutive days prior the filing of the petition;
(8) The parent murdered, attempted to murder, or seriously harmed another child of the parent or another child residing in the home with the minor child;
(9) The parent’s rights have previously been involuntarily terminated and the parent continues to lack the ability or willingness to establish a safe home;
(10) the parent relinquished the juvenile to the department of social services for the purpose of adoption; or
(11) the parent has been convicted of a sexually violent offense that resulted in the conception of parental rights.
Best Interest of the Juvenile
If any of the grounds mentioned above are satisfied, the petitioner must next prove that termination of parental rights is in the best interest of the minor child. At this stage, the court can consider any relevant evidence, including hearsay, in order to determine that which is in the best interest of the juvenile. The court will consider the age of the juvenile, the likelihood that someone else will adopt the juvenile, whether or not terminating the parent’s rights will in some way improve or facilitate a permanent plan for the juvenile, the bond between the parent and the juvenile, the relationship between the parent and the juvenile, and any other relevant considerations. At this stage, the opinion of the guardian ad litem is often critical in determining that which is in the best interest of the juvenile.
Effect of Termination of Parental Rights
If the petitioner is successful in proving by clear and cogent evidence that grounds exist to terminate the mother or father’s parental rights, and the court finds that termination of parental rights is in the best interest of the juvenile, all rights and obligations of the parent to the juvenile arising from the paternal relationship end. The parent no longer has the right to contact or visit with the juvenile, and the parent no longer has an obligation to pay child support for the juvenile. The parent may appeal the decision, or under limited circumstances, the parent’s rights may be reinstated.
At Zach Jackson Law, we have successfully represented both petitioners and respondents in termination of parental rights proceedings. Due to the severity of these proceedings, it is absolutely critical that you have experienced and competent legal counsel. If you or someone you know desires to terminate the parental rights of a parent, or if your parental rights are being challenged, do not hesitate to contact Zach Jackson Law.