In re J.S.K., 265 N.C. App. 702 (2017)

  • A motion to dismiss under Rule 12(b)(6) of the N.C. Rules of Civil Procedure is reviewed de novo as to whether, as a matter of law, the allegations of the complaint (in this case motion to terminate parental rights (TPR)) is sufficient to state a claim upon which relief may be granted. On review, the allegations in the complaint are considered true and are construed liberally. A denial of a motion to dismiss will only be reversed if the plaintiff is entitled to no relief under any set of facts which could be proven to support the claim.
  • Although a denial of a motion to dismiss is not reviewable on appeal when there is a final judgment on the merits, the court of appeals has previously deviated from this rule in TPR proceedings. Here respondent mother made an oral motion to dismiss the TPR motion at the beginning of the adjudicatory hearing such that the final TPR order is the only written order denying the motion to dismiss from which the respondent mother could appeal.
  • G.S. 7B-1104(6) requires that a TPR motion or petition allege facts that are sufficient to warrant a determination that one or more of the G.S. 7B-1111(a) grounds to TPR exist. There is no distinction between the facts that must be alleged in a TPR petition as opposed to a TPR motion. The alleged facts must “put a party on notice as to what acts, omissions or conditions are at issue” and a “bare recitation . . .  of alleged statutory grounds for termination” is insufficient. See In re Hardesty, 150 N.C. App. 380, 384 (2002); In re Quevedo, 106 N.C. App. 574, 579 (1992).  Here, the TPR motion alleged four grounds: neglect, willfully leaving the child in foster care for more than 12 months without showing reasonable progress, willfully failing to pay a reasonable portion of the cost of care, and dependency. G.S. 7B-1111(a)(1), (2), (3), (6). The allegations consisted of bare recitations of the statutory grounds to TPR. Distinguishing the case from In re Quevedo, the TPR motion did not incorporate any prior orders, and the attached custody order did not contain additional facts that support a TPR ground. The TPR motion was insufficient to put respondent mother on notice as to what acts, omissions, or conditions were at issue.
Termination of Parental Rights
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