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Understanding Termination of Parental Rights in North Carolina - Smith Debnam Attorneys at Law

Understanding Termination of Parental Rights in North Carolina

June 28, 2023 Alicia Jurney

Grounds for Termination & Best Interests of the Child

A biological parent’s right to care for and make decisions about their child is afforded great deference. However, some circumstances allow a court to terminate a parent’s rights when doing so is in the child’s best interests. The first issue for the court to resolve is whether a basis for termination exists. Section 7B-1111 of the North Carolina General Statutes sets out the grounds for termination, which include neglect, abuse, abandonment, and failure to provide reasonable financial support. If the party seeking termination establishes the existence of at least one of these grounds, the court moves to the second step, which is considering whether terminating a parent’s rights is in the best interests of the child. To understand this process, consider the Supreme Court’s analysis in In re Ballard, 311 N.C. 708, 319 S.E.2d 227 (1984), and In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984).

In Ballard, a mother contested the court’s decision to terminate her parental rights on the grounds of prior neglect and failure to provide sufficient financial support for the child’s care. The Supreme Court reversed this decision, clarifying that termination cannot be based solely on past conditions. The court held that a current finding of neglect at the hearing was required and that failure to provide support could not be a basis for terminating the mother’s rights unless she had the ability to pay.

In Montgomery, the trial court terminated both the mother and father’s parental rights with respect to their four minor children based on neglect and failure to provide adequate support. The Supreme Court held that, while the parents had made some efforts to better care for and support the children since the petition was filed, termination of their rights was still appropriate. The court concluded, “[W]e must emphasize that it is the child’s best interests which is our guiding beacon. Although courts should balance the parents’ inherent right to maintain their family unit with the welfare of the minor child, it is the latter that should always prevail, if it is determined that the two interests are conflicting.”

A Higher Burden of Proof

A court must find that grounds for terminating a parent’s rights exist by “clear, cogent, and convincing evidence,” which is a higher burden of proof than the “preponderance of the evidence” standard in civil custody actions under Chapter 50 of the North Carolina General Statutes. The cases of In re A.B.C., 374 N.C. 752, 844 S.E.2d 902 (2020), and In re S.R., 283 N.C. App. 149, 872 S.E.2d 406 (2022), demonstrate the heightened burden of proof in termination cases.

In In re A.B.C., the court terminated the parental rights of a mother who had failed to demonstrate reasonable progress towards rectifying the conditions that led to the child’s removal from her custody by the Department of Social Services. The core issue was the mother’s substance abuse problem, and she had declined rehabilitative services at a residential treatment center where she could have lived with her child while receiving treatment, entered a methadone program without any counseling or plan to wean herself off methadone, and offered only her own unsubstantiated testimony as evidence that she was involved in another recovery program. The Supreme Court emphasized that fully satisfying all case plan goals was not required but held that the mother’s inaction regarding her longstanding substance abuse problems justified a finding of failure to make reasonable progress to address this condition by clear, cogent, and convincing evidence.

In In re S.R., the mother sought termination of the father’s parental rights on the basis that he had failed to provide reasonable support for the child. The evidence showed that the father had been ordered to pay child support, that he had paid child support by wage garnishment, and that his child support payments stopped when the child’s mother elected to stop garnishment through North Carolina Centralized Collections. The Court of Appeals held that it was proper for the trial court to conclude that grounds did not exist to terminate the father’s parental rights. The appellate court noted that, even where the trial court finds that grounds for termination exist, such a finding does not require terminating a parent’s right but gives the court discretion to do so.

Concurrent Jurisdiction

In some cases, a termination of parental rights action under Chapter 7B of the North Carolina General Statutes may be filed while a civil action for custody under Chapter 50 is pending. The court has discretion to stay the civil custody action until the court with jurisdiction over the termination case has been resolved, but a stay is not mandatory, and the actions can proceed simultaneously.

In re Humphrey, 156 N.C. App. 533, 577 S.E.2d 421 (2003), involved simultaneous proceedings. In a civil custody action in Wake County between the father and mother, the court entered an order regarding physical and legal custody of the parties’ son. A few years after the custody order was entered, the father filed a petition to terminate the mother’s parental rights in New Hanover County.

The mother challenged the jurisdiction of the New Hanover court because she contended that jurisdiction over all matters related to the child remained in Wake County, where the civil custody order had been entered. The Court of Appeals held that, despite the continuing jurisdiction of the Wake County court over the civil custody proceeding, the New Hanover County court had jurisdiction to terminate the mother’s parental rights because it properly found that the mother had neglected the child.


Termination of parental rights proceedings are complex due to the constitutional rights implicated, heightened burden of proof, and interplay with civil custody actions. To get about these thorny legal issues, contact an experienced family lawyer.

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