Parental Rights

In America the United States Supreme Court has found and held that all parents have the right to the care, custody, control, and companionship of their children unless they are proven unfit.  “the interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel vs Granville 530 US 57 (2000)

Furthermore, North Carolina’s own courts have found, “`[i]n order to justify depriving a parent of the custody of a child in favor of third persons there must be substantial reasons or, as various courts have put it, the reasons must be real, cogent, weighty, strong, powerful, serious, or grave.’ 67 C.J.S. Parent and Child § 12, page 651.” James v. Pretlow, supra. Nor is the fact that a parent or parents seeking to retain custody of their child, or to obtain custody of their child, may not be as able financially to take care of the child as the party seeking to defeat their custody sufficient to justify the court’s depriving the parents of custody and awarding it to some third person. 2 Nelson, Divorce & Annulment, § 15.15, p. 245 (2d ed. rev. 1961).

As a result of the “deep and meaningful relationship” existing between parent and child, the preliminary determination required by the relevant constitutional provisions “must not be lightly undertaken” and “must be supported by clear and convincing evidence.” Id. At 53, 550 S.E.2d at 503 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71 L. Ed. 2d 599, 603, 102 S. Ct. 1388, 1391-92 (1982)).

The grounds for terminating parental rights in North Carolina are:

§ 7B‑1111.  Grounds for terminating parental rights.

The court may terminate the parental rights upon a finding of one or more of the following:

(1)        The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B‑101 or a neglected juvenile within the meaning of G.S. 7B‑101.

     (1)            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.

     (1)            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.

     (1)            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.

     (1)            The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights:

a.         Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department’s certified reply; or

b.         Legitimated the juvenile pursuant to provisions of G.S. 49‑10 or filed a petition for this specific purpose; or

c.         Legitimated the juvenile by marriage to the mother of the juvenile; or

d.         Provided substantial financial support or consistent care with respect to the juvenile and mother.

     (1)            That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B‑101, 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 to G.S. 7B‑500 for at least 60 consecutive days immediately preceding the filing of the petition or motion.

     (1)            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.

     (1)            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 G.S. 48‑3‑609 or G.S. 48‑3‑707; 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.

The burden in such proceedings shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence. (1977, c. 879, s. 8; 1979, c. 669, s. 2; 1979, 2nd Sess., c. 1088, s. 2; c. 1206, s. 2; 1983, c. 89, s. 2; c. 512; 1985, c. 758, ss. 2, 3; c. 784; 1991 (Reg. Sess., 1992), c. 941, s. 1; 1997‑390, ss. 1, 2; 1997‑443, s. 11A.118(a); 1998‑202, s. 6; 1998‑229, ss. 11, 28; 1999‑456, s. 60; 2000‑183, s. 11; 2001‑208, s. 6; 2001‑291, s. 3; 2001‑487, s. 101; 2003‑140, s. 3; 2005‑146, s. 1; 2007‑151, s. 1; 2007‑484, s. 26(a).)