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Termination of Parental Rights and the Status Exception

In re F.S.T.Y. and A.A.L.Y., ____NC______ No.129A19 (2020).

Termination of parental rights cases are complicated and difficult. Even more so when one parent is out of state and having to litigate in North Carolina. In the case below, we discuss how the North Carolina Supreme Court upheld a termination of parental rights for an out of state parent that had no ties to North Carolina whatsoever.

1. Facts: Florence and Abigail[1] are sisters born in South Carolina and were later brought to North Carolina as minors following the arrest and incarceration of the father for burglary. Davidson County Department of Social Services (DSS) had been involved with the minor children due to the mother’s substance abuse, homelessness, and improper care of the children. Later, when the mother was arrested on drug charges, DSS entered petitions for neglect and the Juvenile court adjudicated them neglected. After reunification efforts with the father stalled, DSS sought to terminate the father’s parental rights. The father argued that North Carolina lacked personal jurisdiction. His argument was not persuasive, and the trial court terminated his parental rights. The father appealed.

2. Issue: Whether or not due process requires a nonresident parent to establish minimum contacts with the State for the court to have personal jurisdiction over him or her for termination of parental rights.

3. Holding: The nonresident parent need not have sufficient minimum contacts due to the status exception.

4. Rationale: In a case of first impression, the North Carolina Supreme Court held that the status exception applies, and that a nonresident parent can have his or her parental rights terminated without sufficient minimum contacts with the state. In doing so, the Court cited Supreme Court cases setting precedent for personal status exceptions in cases where the “personal status of the plaintiff establishes jurisdiction rather than the location of the defendant.” This exception was borrowed from cases such as divorce, where an out of state defendant could not be served, and a court of the plaintiff’s jurisdiction could adjudicate the claim. The purpose of termination of parental rights again points to the polar star that controls almost all cases involving minor children: that the state does what is in the best interest of the children. To have a lengthy and contentious battle of personal jurisdiction, while the children may be in perilous conditions, would be counter to that fundamental principle. Furthermore, protections are in place, as the father had an appointed attorney and could have sought to participate in the trial proceedings.

5. Lessons and Observations:

a. The Court has now held that North Carolina courts may adjudicate claims to terminate parental rights based on the location and status of the petitioners and not whether the defendant has assented to the state’s jurisdiction. This means that if children are brought to the state, the state may commence a petition to terminate parental rights even though the parent has never set foot in the state or has no business with the state.

b. The policy is understood that it is in the best interest of the children that petitions involving termination of parental rights be addressed quickly. Yet, this case may set a high watermark for how strong the policy is: carving out an exception to constitutional rules of due process and personal jurisdiction.

[1] Pseudonyms used by the Court