This blog post builds on my last post:
A Guide to Relinquishments and Post-Relinquishment Review Hearings. If you remember, relinquishments involve the voluntary transfer of physical and legal custody of a minor child to an agency (a department of social services (DSS) or licensed private child-placing agency) that accepts the relinquishment for the purposes of the child’s adoption.
See G.S. 48-1-101(15); 48-3-705(b). A relinquishment is executed by a parent or by a guardian of the person appointed by the clerk of superior court under a G.S. Chapter 35A proceeding.
What happens when one parent executes a relinquishment but the other parent wants custody of their child? North Carolina statutes are silent; however, case law recognizes that the non-relinquishing parent has rights.
What Are a Parent’s Constitutional Rights?
It is long been held by the U.S. Supreme Court and North Carolina appellate courts that a parent has a paramount constitutional right to the exclusive care, custody, and control of their child(ren).
See, e.g., Troxel v. Granville, 530 U.S. 57 (2000);
Santosky v. Kramer, 455 U.S. 742 (1982);
Price v. Howard, 346 N.C. 68 (1997);
Petersen v. Rogers, 337 N.C. 397 (1994). The case law is clear that only parents have a paramount constitutional right to care, custody, and control of their children. This paramount constitutional right does not apply to others.
See Graham v. Jones, 270 N.C. App. 674 (2020);
Eakett v. Eakett, 157 N.C. App. 550 (2003).
A parent’s rights, however, are not absolute, and “the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody or where the parent’s conduct is inconsistent with his or her constitutionally protected status.”
In re E.B., 375 N.C. 310, 315 (2020) (quoting
Adams v. Tessener, 354 N.C. 57, 62 (2001)). Further, a putative father must grasp the opportunity the biological link to the child provides by developing a relationship with and accepting parental responsibility for their child before the paramount constitutional right of a parent applies.
Lehr v. Roberston, 463 U.S. 248 (1983);
In re S.D.W., 367 N.C. 386 (2014).
One Parent Can Relinquish
Unless both parents are married and live together, North Carolina law allows one parent to execute a relinquishment of all parental rights to an agency. G.S. 48-3-701(a). The mother must wait until the child is born; a man whose consent is required for the child’s adoption may execute a relinquishment before or after the child is born. G.S. 48-3-701(b). The effect of an executed relinquishment “vests legal and physical custody of the minor in the agency; and empowers the agency to place the minor for adoption….” G.S. 48-3-705(b).
What Happens with Notice and Consent after One Parent Relinquishes the Child?
Notice of the Relinquishment
When a parent executes a relinquishment, that parent must receive a copy or original of the relinquishment. G.S. 48-3-702(b1)(3). The agency that accepts the relinquishment must give the parent who executed the relinquishment something in writing that indicates the agency is willing to accept the parent’s relinquishment of the child to it. G.S. 48-3-702(c). For the non-relinquishing parent, North Carolina law is silent on what, if any, notice must be provided to that parent when a relinquishment has been executed.
Notice of the Adoption Proceeding
The parent who executed the relinquishment and does not timely revoke the relinquishment is not entitled to notice when an adoption petition for their child has been filed with the clerk of superior court. G.S. 48-2-401(b)(3), (c)(3); 48-3-703(a)(10). In contrast, the non-relinquishing parent (including a possible biological father) must be served with notice when an adoption petition has been filed. G.S. 48-2-401(c)(3). This notice provision implies that the non-relinquishing parent has rights to the child that are at issue.
Consent to the Adoption Proceeding
Generally, a parent must consent to the child’s adoption unless
- their rights are terminated by court order;
- they execute a relinquishment to the agency; or
- they are served with notice of the adoption petition being filed and they do not respond within 30 days of service or if service was made by publication, within 40 days from the first publication.
G.S. 48-3-603(a)(1), (4), (7).
This means that the parent who executed the relinquishment and does not timely revoke the relinquishment is not required to give consent and loses their right to participate in the adoption proceeding. G.S. 48-3-603(a)(4); 48-3-705(c)(2). The non-relinquishing parent must consent if the above exceptions do not apply. This consent provision recognizes that the non-relinquishing parent has rights to the child that are at issue.
For a father or possible biological father who is not married to the mother at any time from the child’s conception through birth, the determination of whether his consent is required or whether a ground to terminate his parental rights exists is based on actions he took or did not take prior to the filing of the adoption and/or TPR petition. Those actions include legitimation; establishing paternity; or acknowledging, communicating with, and supporting the child.
See G.S. 48-3-601(2)b. (consent to adoption); 7B-1111(a)(5) (one of 11 TPR grounds). A father who is unaware of the child’s birth and does not receive notice that the mother has executed a relinquishment will not receive notice of the child’s potential adoption until the adoption petition is filed, making it unlikely that he has the opportunity to assert his parental rights prior to an adoption petition being filed.
See G.S. 48-3-603(2)b.;
see also Lehr v. Robertson, 463 U.S. 248 (1983);
In re S.D.W., 367 N.C. 386 (2014).
What if the Non-Relinquishing Parent Wants Custody of Their Child after the Relinquishment Is Executed?
North Carolina Adoption Statutes
That question is not directly answered in the North Carolina adoption statutes. The language of G.S. 48-3-705(b) that states an executed relinquishment “vests legal and physical custody of the minor in the agency; and empowers the agency to place the minor for adoption…” does not have a qualifier. Is it all custodial rights to the child for both parents that transfer to the agency, meaning one parent acting alone transfers the rights of both parents to the agency? Or, are the custodial rights that vest with the agency limited to the relinquishing parent’s rights only? When reading the statute as a whole, it appears the custodial rights that vest with the agency accepting the relinquishment is limited to the transfer of custodial rights that the relinquishing parent has: “[a] relinquishment terminates (1) [a]ny right and duty
of the individual who executed the relinquishment with respect to the legal and physical custody of the minor.” G.S. 48-3-705(c)(1) (emphasis added). Although this language implies the non-relinquishing parent’s rights are not affected, other adoption statutes refer to the transfer of legal and physical custody without limitation. For example, the mandatory provision of a relinquishment requires that the parent executing the relinquishment “voluntarily consents to the permanent transfer of legal and physical custody of the minor to the agency for the purposes of adoption….” G.S. 48-3-703(a)(5).
Case Law and Constitutional Parental Rights
Although the North Carolina adoption statutes do not directly address the non-relinquishing parent’s rights, case law recognizes a parent’s paramount constitutional right to exclusive care, custody, and control of their child (as discussed above). In one opinion, the North Carolina Supreme Court discussed the issue of a non-relinquishing parent’s paramount constitutional rights to care, custody, and control of their child when reversing a TPR order of that parent’s rights.
See In re E.B., 375 N.C. 310 (2020),
What Happened in In re E.B.?
E.B.’s unmarried mother executed a relinquishment to DSS the day after E.B. was born, which gave DSS legal and physical custody. Mother identified E.B.’s father, and DSS contacted him. The putative father expressed his excitement about being a father and his desire to parent his child, and he agreed to paternity testing. Paternity testing confirmed he was E.B.’s father just two months after E.B. was born. DSS maintained custody of E.B. but did not file a petition with the district court. Nevertheless, DSS asked the district court to set conditions for father to comply with to obtain custody of his daughter. Over the course of 2 years, permanency planning hearings were held in district court, with the court ordering father to comply with various conditions in its permanency planning orders before father and his child could be reunited. Father did not comply with all the conditions. DSS filed a TPR petition, which was granted, and father appealed. The TPR was reversed because DSS did not file a verified petition before it asked the district court to impose conditions before father could obtain custody such that the district court lacked subject matter jurisdiction to enter any permanency planning orders. In reversing the TPR order, the supreme court held that the facts found by the trial court to support the termination of father’s rights were “inextricably intertwined with a legally void proceeding” and, therefore, were insufficient.
In re E.B., 375 N.C. at 318.
What Did the NC Supreme Court Say about Father’s Rights?
While the supreme court reversed the TPR order due to lack of subject matter jurisdiction, it both explicitly and implicitly recognized father’s constitutional right to his child. The court did so explicitly by identifying when DSS lost the right to exclusive legal and physical custody of the child. The supreme court stated that until father “was confirmed as [child’s] biological parent, DSS possessed sole legal custody of [child].”
In re E.B., 375 N.C. at 313. This statement recognizes father’s right to custody of his child – whether it was a joint right with DSS or the sole right is not stated.
The supreme court also stated that “DSS’s and the trial court’s actions repeatedly infringed upon the respondent’s [father’s] constitutional parental rights.”
In re E.B., 375 N.C. at 315. The court noted that the biological father “seize[d] the opportunity to become involved as a parent in his child’s life … [and] enjoyed a constitutionally protected right to the ‘care, custody, and nurture’ of his child.”
Id. (citations omitted). This constitutionally protected right involves “ ‘fundamental liberty interests’ which warrants due process protections.”
In re E.B., 375 N.C. at 316 (citations omitted). Here, father was denied those due process protections and was impermissibly precluded from interacting with his daughter without interference from the trial court and in the way that father determined was appropriate.
How Could Father Have Obtained Custody after Mother Relinquished Her Rights?
The decision in
In re E.B. makes it clear that the non-relinquishing parent’s constitutional right to care, custody, and control of their child is paramount to the custodial rights granted by statute to the agency after a relinquishment by the other parent has been executed. Therefore, the agency should place the child with the non-relinquishing parent when that parent asserts their constitutional right to care, custody, and control of their child. As a result of the child being placed with the non-relinquishing parent, the adoption would not occur. The agency could seek a mutual rescission of the relinquishment from the parent who relinquished or an order from the district court that voids the relinquishment.
See G.S. 48-3-707(a)(2), (a)(3) (rescind relinquishment); 7B-909(b1) (void relinquishment). When a relinquishment is revoked, rescinded, or voided, DSS is divested of its right to legal and physical custody of the child. G.S. 48-3-706(b).
If DSS does not place custody of the child with the non-relinquishing parent who is asserting their constitutional right, that parent can request that the court order DSS to do so. Court action is authorized by the adoption laws when issues about custody of the child arise. Although the statutes do not focus on the non-relinquishing parent, they support the ability of a parent to take custody of their child. Specifically, the court in an adoption proceeding may return the child to a parent who (1) executed and rescinded a relinquishment, (2) had a relinquishment set aside for fraud or duress, or (3) had a relinquishment voided under G.S. 7B-909(b1), and dismiss the adoption proceeding. G.S. 48-3-707(c). Additionally, if the child is placed with a prospective adoptive parent who refuses to return the child to a parent who has revoked their relinquishment, that parent may seek reasonable attorney’s fees from the prospective adoptive parent and the agency if the agency does not cooperate with returning the child to the parent in a “subsequent proceeding.” G.S. 48-3-706(b). Although the type of proceeding is not specified, a court action for a non-relinquishing parent should also be available.
For a non-relinquishing parent who is asserting their parental rights, if the agency the child was relinquished to refuses to return the child and fails to file a court action (like an abuse, neglect, dependency, TPR, or post-relinquishment review action), that parent may need to file a Chapter 50 custody action and seek a temporary and ultimately permanent custody order.
See G.S. 50-13.1; -13.5. Absent a finding by clear, cogent, and convincing evidence that the parent is unfit, has neglected the child, or has acted inconsistently with their constitutionally protected parental rights, the court must grant custody to the non-relinquishing parent.
Of course, if the agency has cause to suspect that the juvenile would be abused, neglected, or dependent in the non-relinquishing parent’s custody, it must make a report to DSS. G.S. 7B-301. After conducting an assessment, DSS may file a petition alleging abuse, neglect, or dependency.
See G.S. 7B-302(a), (c), (d). If appropriate, the agency with custody may also file a petition to terminate the non-relinquishing parent’s parental rights. G.S. 7B-1103(a)(4).
