In re E.B., ___ N.C. App. ___ (Oct. 15, 2019)

There is a dissent.
  • Facts: In 2016, mother executed relinquishment to DSS the day after the child was born. A putative father was named and paternity testing confirmed he is the child’s father. Father entered into an out of home family services agreement with DSS. Child was placed in foster care and from 2016‒Jan. 2018, the court held 6 permanency planning and review hearings resulting in 6 orders placing requirements on father. In April 2018, DSS filed a TPR petition, which was granted. Father timely appealed. Father also filed a petition for writ of certiorari, which was granted, for a review of the 6 permanency planning orders arguing lack of subject matter jurisdiction.
  • Subject matter jurisdiction and permanency planning orders: Father argues and DSS concedes the trial court lacked subject matter jurisdiction to conduct review and permanency planning hearings because a petition alleging abuse, neglect, or dependency pursuant to G.S. 7B-402 and -403 was never filed with the court. Without the filing of an abuse, neglect, or dependency petition, no action was commenced and therefore the court lacked subject matter jurisdiction. As a result, each of the 6 permanency planning orders is void, and the requirements that those orders placed on the father must be disregarded.
    • Author’s note: This opinion does not address G.S. 7B-909 hearings, “review of agency’s plan for placement,” when there has been a relinquishment and a child has not been adopted within 6 months. That statute does require a petition be filed but it is not a petition alleging abuse, neglect, or dependency.
  • TPR - Abandonment: G.S. 7B-1111(a)(7) consists of a ground to TPR based on willful abandonment. Willfulness is a question of fact that must be supported by clear, cogent, and convincing evidence that shows “conduct on the part of the parent which manifests a willful determination to [forego] all parental duties and relinquish all parental claims to the child.” Sl.Op. at 9. Relevant factors include financial support and emotional contributions displaying love, care, and affection. The determinative period is the 6 months preceding the filing of the petition, which in this case was Oct. 10, 2017 – April 10, 2018. The unchallenged findings support the trial court’s conclusion of abandonment. Father allowed his sister to handling the child’s care and placement, moved out of state without telling DSS, failed to attend the permanency planning hearings and a child support hearing, did not request visits despite being authorized to do so, and did not make any Skype calls to the child despite having that opportunity.
  • Dissent: “because the ground for termination alleged by DSS and adjudged by the  trial court are inextricable intertwined with the invalid review hearing process, I would conclude the trial court erred in adjudicating grounds upon which to terminate Respondent-Father’s parental rights.” Sl.Op. at 1 (dissent)
Termination of Parental Rights
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