Are you a single parent who’s co-parent has been absent from the life of your child? Have you given thought to what happens to your children if you pass away or are unable to care for them? Do you want to protect your child from the other parent who has been physically or sexually abusive to one of your children? Are you a grandparent who cares for a child in which one of the parents seriously assaulted or murders the other parent. Have you recently been served with a termination of parental rights action and wish to fight to establish or reestablish a relationship with your minor children? Learn about the law surrounding TPRs and prepare for your case by reviewing our TPR guide written by our child welfare law specialists.
We’ve divided this guide up into frequently asked questions and answers in order to address specific concerns posed by clients. We hope you find it helpful.
Who can terminate a parent’s rights?
In order to terminate a parent’s parental rights, you must have legal standing. In North Carolina the following persons can file a petition to terminate a parent’s parental rights:
- A biological parent
- A person that has been judicially appointed as the guardian of the person of the juvenile
- Any DSS agency or licensed child-care placing agency, like an adoption agency, who has been awarded custody of the minor child or
- Any DSS agency or licensed child-care placing agency, like an adoption agency, which the minor child has been surrendered to by a parent or the guardian of a parent
- A person whom the minor child has lived with for at least two continuous years prior to filing the TPR petition
- Any guardian ad litem appointed to represent the minor child
- Any person that has filed an adoption petition
Unless you satisfy one of these conditions, your TPR action should be dismissed for lack of standing.
Do parents get a right to a court appointed attorney?
Yes on a preliminary basis if your rights are in jeopardy.
All parents are appointed attorneys when a TPR petition is filed. However, if the court determines that a parent can afford to hire an attorney, the appointed attorney will be released. If the parent is indigent then the court will appoint an attorney to represent the parent for the termination of parental rights action. The petitioner, the person filing the TPR action, does not have the right to appointed counsel. The petitioner can hire an attorney or represent himself or herself.
How long does it take to terminate a parent’s parental rights?
Generally speaking a hearing should be scheduled within 90 days from the time that the TPR petition is filed. However, the hearing can be continued or scheduled outside of 90 days if good cause exists. In some counties it make take several months before the TPR hearing is held because many counties do not meet on a weekly basis. Also, DSS cases where children are in foster care typically take priority over private TPR actions. Nevertheless, the judge should prioritize scheduling the TPR hearing as soon as possible.
Do you have to terminate the parental rights of both parents or can you terminate the rights to just one parent?
There is no requirement that both parents’ rights be terminated. Depending on the situation, it is not necessary to terminate the parental rights of both parents. For instance, it may be in the child’s best interest to terminate the parental rights to a parent that sexually or physically abused his or her child. In other cases, one parent may have consented to an adoption while the other parent did not. In that situation the person would have to terminate the parental rights of one parent in order to complete the adoption process.
What reasons will someone’s rights be terminated?
The grounds for termination of parental rights actions are specifically defined by law. In North Carolina, there are eleven grounds to terminate a parent’s rights.
In order to terminate a parent’s rights the Petitioner must prove by clear and convincing evidence that at least one ground to terminate the parent’s rights exist and that it is in the child’s best interest to terminate the parent’s rights. While there may be various grounds to terminate a parent’s rights, the trial court only needs to find one ground to terminate before the trial court can consider if it is in the child’s best interest to terminate his parent’s rights.
The primary TPR grounds are as follows:
1. The parent has neglected or abused his child and it is likely that the abuse/neglect will continue in the future.
2. The parent has willfully left a child in foster care or outside the home for more than 12 months and has failed to make reasonable progress to correct the reasons the minor child was removed from the parent’s custody.
3. The child is in DSS’ custody or licensed child-placing agency/foster home and the parent has willfully failed to pay a reasonable portion of the child’s care for a continuous six-month period prior to the TPR petition being filed.
4. One parent has custody of the child by court order or agreement and the other parent willfully failed to pay child support for a period of one year or more prior to the termination of parental rights petition being filed.
5. The father has failed to establish paternity or provide consistent care and financial support to the child and the mother
6. The parent is incapable of providing proper care and supervision to the child and that there is a reasonable probability that the parent’s incapability will continue for the foreseeable future and the parent lacks an appropriate alternative child care arrangement
7. The parent has willfully abandoned the child for at least six consecutive months immediately prior to the filing of the TPR petition.
8. Various criminal convictions like murder, voluntary manslaughter, felony assault resulting in serious bodily injury involving the sibling of the minor child, another child of the parent, or the murder or voluntary manslaughter of the child’s parent.
9. The parent’s rights have been terminated to another child.
10. The parent has been convicted of a sexually related offense that resulted in the birth of the minor child.
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How does the court determine if it is in the child’s best interest for the parent’s parental rights be terminated to the minor child?
If the trial court finds that there is one ground to terminate the parent’s parental rights, then the trial court receives evidence about whether the parent’s rights should be terminated. While a judge may terminate a parent’s rights after receiving testimony about what is in the child’s best interest, the judge does not have to terminate the parent’s rights.
There are several factors a judge should consider when deciding whether a parent’s rights should be terminated. In general, the judge will listen to testimony from the parent(s), caregivers, the Guardian ad Litem attorney, and other witnesses about what is best for the minor child. The judge should consider the following factors:
1. The age of the child.
2. The bond between the child and the parent(s)
3. The likelihood of adoption
4. The relationship between the child and the prospective adoptive parent/caretaker
5. Whether terminating the parent’s rights will assist in accomplishing the permanent plan for the child
6. If the child has any special needs.
7. Any other relevant information
The petitioner and the parent(s) gets to present evidence on what they believe the judge should know about the child and what is best for the child. The rules of evidence are not strictly enforced at this stage of the hearing so statements by the children and other persons are usually considered by the judge. It is after the presentation of this evidence that the judge determines if it is in the child’s best interest to terminate his or her parent(s)’ rights
Can I give up my parental rights?
This is a very frequent question posed by clients who have not been involved or do not wish to be involved in the lives of one of their biological children. It is also frequently asked by parents who wish to allow a step-parent or other non-parent to adopt their child as they feel it is in the child’s best interest.
There are very few situations where a parent can give up their parental rights. If there is a pending adoption the parent can relinquish their parental rights by consenting to the adoption. For instance, if a father wants to allow for the stepfather of his child to adopt, the biological father can consent to the adoption. By consenting to the adoption, the parent effectively gives up his parental rights.
A parent may relinquish her parental rights to DSS or an adoption agency if the adoption agency/DSS has custody of the child AND the agency accepts the relinquishment. However, if the agency does not accept the relinquishment, there is that the parent can do at that point.
The parent can also choose not to contest a TPR that is filed against them. Therefore, if the parent wants their parental rights terminated, they can decide not to participate in the TPR hearing.
Under no circumstances is this a remedy that a parent can avail themselves to avoid responsibility for the needs of the minor child, such as to avoid paying child support.
If the parent does not show up to contest the TPR trial, do I still have to present evidence and have a hearing?
Yes. North Carolina does not allow default judgments against parents who do not show up to contest the termination of their parental rights. The Petitioner still has the legal burden of proving that grounds exist to terminate the parent’s rights and that it is in the child’s best interest to terminate the parent’s rights. It will be necessary to present evidence and call witness(es) for the trial.
Can I appeal the termination of my parental rights?
Yes. You have thirty days from the time you are served with the TPR order. Your appeal must contain specific language that identifies the order that you are appealing. You must sign the Notice of Appeal, file it with the court that terminated your rights and serve it on all the parties. If a parent fails to properly appeal the TPR order, the termination of the parent’s parental rights becomes permanent.
If you wish to file a termination of parental rights action or fight an action filed against you, our attorneys stand ready. Our child welfare specialists are among the most experienced TPR attorneys in North Carolina, having filed and defended numerous TPR actions throughout North Carolina for court-appointed and private clients. We also handle a substantial volume of termination of parental rights appeals.
Termination of parental rights actions take place in juvenile court and have specialized rules and procedures that an attorney who does not focus heavily in these cases may not be aware of. An attorney who is not abreast of case law updates, rules and procedures can cause you to incur additional fees and in some cases can lose your case. Contact us today if you seek professional, experienced, and specialized representation in your termination of parental rights claim or defense.