In re F.S.T.Y., ___ N.C. ___ (June 5, 2020)

Held: 
Affirmed
  • This is a case of first impression.
  • Facts: The children were born in South Carolina, and at around 3 years old, moved with their mother to North Carolina. The father remained in South Carolina. Years later, DSS became involved, and the juveniles were adjudicated neglected. Respondent father continued to reside in South Carolina. He was represented by counsel at some of the hearings in the neglect action. After reunification efforts were ceased, DSS filed a TPR petition. Father filed a motion to dismiss for lack of personal jurisdiction based on lack of minimum contacts with North Carolina, which was denied. Father’s parental rights were terminated, and he appeals on the grounds of constitutional due process requirements.
  • Due process requires that a nonresident against whom relief is sought be provided adequate notice of the suit and be subject to the personal jurisdiction of the court.” Sl.Op. at 4 (citations omitted). Generally, due process requires a nonresident to have “…sufficient ‘minimum contacts’ with the forum state so ‘that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ ” Id. (quoting Int’l Shoe Co. 326 U.S. 310, 316 (1945)). However, “due process does not require a nonresident parent to have minimum contacts with the State to establish personal jurisdiction for purposes of termination of parental rights proceedings. Sl.Op. at 15.
  • North Carolina’s long-arm statute provides that personal jurisdiction over nonresidents exists in actions that are brought under North Carolina statutes that specifically confer grounds for personal jurisdiction. G.S. 1-75.4(2). The UCCJEA, which applies to TPR proceedings, states physical presence of or personal jurisdiction over a party or child is not necessary to make a child-custody determination. G.S. 50A-201(c).
  • The status exception to minimum contacts has been recognized by the U.S. Supreme Court and “implies that minimum contacts are not required in status cases (e.g., divorce) because jurisdiction is established by the status of the plaintiff, rather than the location of the defendant. Some state courts have concluded the status exception applies to TPR proceedings as the child’s status to their parent is at issue, while other state courts have determined the exception does not apply to a TPR. In North Carolina, the best interests of the child are the paramount consideration in TPR cases, and when there is a conflict between the interests of children and parent, the child’s best interests prevail. In a TPR, a parent who does not adequately care for their child is involved, and “fairness requires that the State have the power to provide permanence for children living within its borders[,]” which is a matter of state concern. Sl.Op. at 13. The principle of acting in the child’s best interests is contradicted by not favoring the child’s home state when determining jurisdiction. Although minimum contacts are not required due to the status exception related to the child in TPR proceedings, the respondent parent continues to have a right to actively participate in the TPR proceeding. Any burden imposed on the respondent parent is mitigated by the appointment of counsel and right to seek participation through remote technology.
  • The Court of Appeals’ opinions in In re Finnican, 104 N.C. app 157 (1991) and In re Trueman, 99 N.C. App. 579 (1990) are overruled.
Category:
Termination of Parental Rights
Stage:
Personal Jurisdiction
Topic:
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