GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

H	2 

HOUSE BILL 1609*
Committee Substitute Favorable 6/6/00

Short Title:  Clarify Juvenile Procedures.	(Public)

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Sponsors:

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Referred to:  

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May 18, 2000

A BILL TO BE ENTITLED
AN ACT TO AMEND THE PROCEDURES FOR ABUSED, NEGLECTED, AND DEPENDENT JUVENILES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 7B-406(b) reads as rewritten:
"(b)	A summons shall be on a printed form supplied by the Administrative Office of the Courts and shall include:
(1)	Notice of the nature of the proceeding;
(2)	Notice of any right to counsel and information about how to seek the appointment of counsel prior to a hearing;
(3)	Notice that, if the court determines at the hearing that the allegations of the petition are true, the court will conduct a dispositional hearing to consider the needs of the juvenile and enter an order designed to meet those needs and the objectives of the State; and
(4)	Notice that the dispositional order or a subsequent order:
a.	May remove the juvenile from the custody of the parent, guardian, or custodian.
b.	May require that the juvenile receive medical, psychiatric, psychological, or other treatment and that the parent participate in the treatment.
c.	May require the parent to undergo psychiatric, psychological, or other treatment or counseling for the purpose of remedying the behaviors or conditions that are alleged in the petition or that contributed to the removal of the juvenile from the custody of that person.
d.	May order the parent to pay for treatment that is ordered for the juvenile or the parent.
e.	May, upon proper notice and hearing and a finding based on the criteria set out in G.S. 7B-1111, terminate the parental rights of the respondent parent."
Section 2.  G.S. 7B-1101 reads as rewritten:
"§ 7B-1101. Jurisdiction.
The court shall have exclusive original jurisdiction to hear and determine any petition or motion relating to termination of parental rights to any juvenile who resides in, is found in, or is in the legal or actual custody of a county department of social services or licensed child-placing agency in the district at the time of filing of the petition or motion. The court shall have jurisdiction to terminate the parental rights of any parent irrespective of the age of the parent. The parent has the right to counsel and to appointed counsel in cases of indigency unless the parent waives the right. The fees of appointed counsel shall be borne by the Administrative Office of the Courts. In addition to the right to appointed counsel set forth above, a guardian ad litem shall be appointed in accordance with the provisions of G.S. 1A-1, Rule 17, to represent a parent in the following cases:
(1)	Where it is alleged that a parent's rights should be terminated pursuant to G.S. 7B-1111(6); or
(2)	Where the parent is under the age of 18 years.
The fees of the guardian ad litem shall be borne by the Administrative Office of the Courts when the court finds that the respondent is indigent. In other cases the fees of the court-appointed guardian ad litem shall be a proper charge against the respondent if the respondent does not secure private legal counsel. Provided, that before exercising jurisdiction under this Article, the court shall find that it would have jurisdiction to make a child-custody determination under the provisions of G.S. 50A-201, 50A-203, or 50A-204. Provided, further, that the clerk of superior court shall have jurisdiction for adoptions under the provisions of G.S. 48-2-100 and Chapter 48 of the General Statutes generally."
Section 3.  G.S. 7B-1102 reads as rewritten:
"§ 7B-1102.  Pending child abuse, neglect, or dependency proceedings.
(a)	When the district court is exercising jurisdiction over a juvenile and the juvenile's parent in an abuse, neglect, or dependency proceeding, a person or agency specified in G.S. 7B-1103(a) may file in that proceeding a motion for termination of the parent's rights in relation to the juvenile.
(b)	A motion pursuant to subsection (a) of this section and the notice required by G.S. 7B-1106.1 shall be served in accordance with G.S. 1A-1, Rule 5(b), except:
(1)	Service must be in accordance with G.S. 1A-1, Rule 4, if the person or agency to be served was not served originally with summons, or by published notice if service was by publication, that included notice substantially in conformity with the notice required by G.S. 7B-406(b)(4)e.
(2)	In any case, the court may order that service of the motion and notice be made pursuant to G.S. 1A-1, Rule 4.
The parent of the juvenile shall not be deemed to be under disability even though the parent is a minor.
(c)	When a petition for termination of parental rights is filed in the same district in which there is pending an abuse, neglect, or dependency proceeding involving the same juvenile, the court on its own motion or motion of a party may consolidate the action pursuant to G.S. 1A-1, Rule 42."
Section 4.  G.S. 7B-1103 reads as rewritten:
"§ 7B-1103.  Who may file a petition or motion.
(a)	A petition or motion to terminate the parental rights of either or both parents to his, her, or their minor juvenile may only be filed by one or more of the following:
(1)	Either parent seeking termination of the right of the other parent.
(2)	Any person who has been judicially appointed as the guardian of the person of the juvenile.
(3)	Any county department of social services, consolidated county human services agency, or licensed child-placing agency to whom custody of the juvenile has been given by a court of competent jurisdiction.
(4)	Any county department of social services, consolidated county human services agency, or licensed child-placing agency to which the juvenile has been surrendered for adoption by one of the parents or by the guardian of the person of the juvenile, pursuant to G.S. 48-3-701.
(5)	Any person with whom the juvenile has resided for a continuous period of two years or more next preceding the filing of the petition or motion.
(6)	Any guardian ad litem appointed to represent the minor juvenile pursuant to G.S. 7B-601 who has not been relieved of this responsibility.
(7)	Any person who has filed a petition for adoption pursuant to Chapter 48 of the General Statutes.
(b)	Any person or agency that may file a petition under subsection (a) of this section may intervene in a pending abuse, neglect, or dependency proceeding for the purpose of filing a motion to terminate parental rights."
Section 5.  G.S. 7B-1104 reads as rewritten:
"§ 7B-1104. Petition or motion.
The petition, or motion pursuant to G.S. 7B-1102, shall be verified by the petitioner or movant and shall be entitled ‘In Re (last name of juvenile), a minor juvenile'; and shall set forth such of the following facts as are known; and with respect to the facts which are unknown the petitioner or movant shall so state:
(1)	The name of the juvenile as it appears on the juvenile's birth certificate, the date and place of birth, and the county where the juvenile is presently residing.
(2)	The name and address of the petitioner or movant and facts sufficient to identify the petitioner or movant as one authorized by G.S. 7B-1103 to file a petition or motion.
(3)	The name and address of the parents of the juvenile. If the name or address of one or both parents is unknown to the petitioner or movant, the petitioner or movant shall set forth with particularity the petitioner's or movant's efforts to ascertain the identity or whereabouts of the parent or parents. The information may be contained in an affidavit attached to the petition or motion and incorporated therein by reference.
(4)	The name and address of any person who has been judicially appointed as guardian of the person of the juvenile.
(5)	The name and address of any person or agency to whom custody of the juvenile has been given by a court of this or any other state; and a copy of the custody order shall be attached to the petition or motion.
(6)	Facts that are sufficient to warrant a determination that one or more of the grounds for terminating parental rights exist.
(7)	That the petition or motion has not been filed to circumvent the provisions of Article 2 of Chapter 50A of the General Statutes, the Uniform Child-Custody Jurisdiction and Enforcement Act."
Section 6.  Article 11 of Chapter 7B of the General Statutes is amended by adding a new section to read:
"§ 7B-1106.1.  Notice in pending child abuse, neglect, or dependency cases.
(a)	Upon the filing of a motion pursuant to G.S. 7B-1102, the movant shall prepare a notice directed to each of the following persons or agency, not otherwise a movant:
(1)	The parents of the juvenile.
(2)	Any person who has been judicially appointed as guardian of the person of the juvenile.
(3)	The custodian of the juvenile appointed by a court of competent jurisdiction.
(4)	Any county department of social services or licensed child-placing agency to whom a juvenile has been released by one parent pursuant to Part 7 of Article 3 of Chapter 48 of the General Statutes or any county department of social services to whom placement responsibility for the juvenile has been given by a court of competent jurisdiction.
(5)	The juvenile's guardian ad litem if one has been appointed pursuant to G.S. 7B-601 and has not been relieved of responsibility.
(6)	The juvenile, if the juvenile is 12 years of age or older at the time the motion is filed.
Provided, no notice need be directed to or served upon any parent who has previously surrendered the juvenile to a county department of social services or licensed child-placing agency nor to any parent who has consented to the adoption of the juvenile by the movant.  The notice shall notify the person or agency to whom it is directed to file a written response within 30 days after service of the motion and notice.  Service of the motion and notice shall be completed as provided under G.S. 7B-1102(b).
(b)	The notice required by subsection (a) of this section shall include all of the following:
(1)	The name of the minor juvenile.
(2)	Notice that a written response to the motion must be filed with the clerk within 30 days after service of the motion and notice, or the parent's rights may be terminated.
(3)	Notice that any attorney appointed previously to represent the parent in the abuse, neglect, or dependency proceeding will continue to represent the parents unless otherwise ordered by the court.
(4)	Notice that if the parent is indigent, the parent is entitled to appointed counsel and if the parent is not already represented by appointed counsel the parent may contact the clerk immediately to request counsel.
(5)	Notice that the date, time, and place of hearing will be mailed by the clerk upon filing of the response or 30 days from the date of service if no response is filed.
(6)	Notice of the purpose of the hearing and notice that the parents may attend the termination hearing.
(c)	If a county department of social services, not otherwise a movant, is served with a motion seeking termination of a parent's rights, the director shall file a written response and shall be deemed a party to the proceeding."
Section 7.  G.S. 7B-1107 reads as rewritten:
"§ 7B-1107.  Failure of parent to answer or respond.
Upon the failure of a respondent parent to file written answer to the petition or written response to the motion within 30 days after service of the summons and petition or notice and motion, or within the time period established for a defendant's reply by G.S. 1A-1, Rule 4(j1)	if service is by publication, the court shall issue an order terminating all parental and custodial rights of that parent with respect to the juvenile; provided the court shall order a hearing on the petition or motion and may examine the petitioner or movant or others on the facts alleged in the petition or motion."
Section 8.  G.S. 7B-1108 reads as rewritten:
"§ 7B-1108.  Answer or response of parent.
(a)	Any respondent may file a written answer to the petition or written response to the motion. The answer or response shall admit or deny the allegations of the petition or motion and shall set forth the name and address of the answering respondent or the respondent's attorney.
(b)	If an answer or response denies any material allegation of the petition or motion, the court shall appoint a guardian ad litem for the juvenile to represent the best interests of the juvenile, unless the petition or motion was filed by the guardian ad litem pursuant to G.S. 7B-1103, or a guardian ad litem has already been appointed pursuant to G.S. 7B-601. A licensed attorney shall be appointed to assist those guardians ad litem who are not attorneys licensed to practice in North Carolina. The appointment, duties, and payment of the guardian ad litem shall be the same as in G.S. 7B-601 and G.S. 7B-603. The court shall conduct a special hearing after notice of not less than 10 days nor more than 30 days to the petitioner or movant, the respondent who answered or responded, and the guardian ad litem for the juvenile to determine the issues raised by the petition and answer or motion and response.
Notice of the hearing shall be deemed to have been given upon the depositing thereof in the United States mail, first-class postage prepaid, and addressed to the petitioner or movant, respondent, and guardian ad litem or their counsel of record, at the addresses appearing in the petition or motion and responsive pleading.
(c)	In proceedings under this Article, the appointment of a guardian ad litem shall not be required except, as provided above, in cases in which an answer or response is filed denying material allegations, or as required under G.S. 7B-1101; but the court may, in its discretion, appoint a guardian ad litem for a juvenile, either before or after determining the existence of grounds for termination of parental rights, in order to assist the court in determining the best interests of the juvenile.
(d)	If a guardian ad litem has previously been appointed for the juvenile under G.S. 7B-601, and the appointment of a guardian ad litem could also be made under this section, the guardian ad litem appointed under G.S. 7B-601, and any attorney appointed to assist that guardian, shall also represent the juvenile in all proceedings under this Article and shall have the duties and payment of a guardian ad litem appointed under this section, unless the court determines that the best interests of the juvenile require otherwise."
Section 9.  G.S. 7B-1109 (b) and (f) read as rewritten:
	"(b)	The court shall inquire whether the juvenile's parents are present at the hearing and, if so, whether they are represented by counsel. If the parents are not represented by counsel, the court shall inquire whether the parents desire counsel but are indigent. In the event that the parents desire counsel but are indigent as defined in G.S. 7A-450(a) and are unable to obtain counsel to represent them, the court shall appoint counsel to represent them. The court shall grant the parents such an extension of time as is reasonable to permit their appointed counsel to prepare their defense to the termination petition or motion. In the event that the parents do not desire counsel and are present at the hearing, the court shall examine each parent and make findings of fact sufficient to show that the waivers were knowing and voluntary. This examination shall be reported as provided in G.S. 7A-198.
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	(f)  The burden in such proceedings shall be upon the petitioner or movant and all findings of fact shall be based on clear, cogent, and convincing evidence. No privilege, except the attorney-client privilege, shall be grounds for excluding any evidence regarding the existence or nonexistence of any circumstance authorizing the termination of parental rights, both as the privilege relates to the competency of the witness and as it relates to the exclusion of confidential communications."
Section 10.  G.S. 7B-1110 reads as rewritten:
"§ 7B-1110. Disposition.
(a)	Should the court determine that any one or more of the conditions authorizing a termination of the parental rights of a parent exist, the court shall issue an order terminating the parental rights of such parent with respect to the juvenile unless the court shall further determine that the best interests of the juvenile require that the parental rights of the parent not be terminated.
(b)	Should the court conclude that, irrespective of the existence of one or more circumstances authorizing termination of parental rights, the best interests of the juvenile require that rights should not be terminated, the court shall dismiss the petition or deny the motion, but only after setting forth the facts and conclusions upon which the dismissal or denial is based.
(c)	Should the court determine that circumstances authorizing termination of parental rights do not exist, the court shall dismiss the petition or deny the motion, making appropriate findings of fact and conclusions.
(d)	Counsel for the petitioner or movant shall serve a copy of the termination of parental rights order upon the guardian ad litem for the juvenile, if any, and upon the juvenile if the juvenile is 12 years of age or older.
(e)	The court may tax the cost of the proceeding to any party.
(f)	The court is not bound by the usual rules of evidence at disposition."
Section 11.  G.S. 7B-1111 reads as rewritten:
"§ 7B-1111.  Grounds for terminating parental rights.
(a)	The court may terminate the parental rights upon a finding of one or more of the following:
(1)	The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B-101 or a neglected juvenile within the meaning of G.S. 7B-101.
(2)	The parent has willfully left the juvenile in foster care or placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made within 12 months in correcting those conditions which led to the removal of the juvenile. Provided, however, that no parental rights shall be terminated for the sole reason that the parents are unable to care for the juvenile on account of their poverty.
(3)	The juvenile has been placed in the custody of a county department of social services, a licensed child-placing agency, a child-caring institution, or a foster home, and the parent, for a continuous period of six months next preceding the filing of the petition or motion, has willfully failed for such period to pay a reasonable portion of the cost of care for the juvenile although physically and financially able to do so.
(4)	One parent has been awarded custody of the juvenile by judicial decree or has custody by agreement of the parents, and the other parent whose parental rights are sought to be terminated has for a period of one year or more next preceding the filing of the petition or motion willfully failed without justification to pay for the care, support, and education of the juvenile, as required by said decree or custody agreement.
(5)	The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights:
a.	Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services; provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or
b.	Legitimated the juvenile pursuant to provisions of G.S. 49-10 or filed a petition for this specific purpose; or
c.	Legitimated the juvenile by marriage to the mother of the juvenile; or
d.	Provided substantial financial support or consistent care with respect to the juvenile and mother.
(6)	That the parent is incapable of providing for the proper care and supervision of the juvenile, such that the juvenile is a dependent juvenile within the meaning of G.S. 7B-101, and that there is a reasonable probability that such incapability will continue for the foreseeable future. Incapability under this subdivision may be the result of substance abuse, mental retardation, mental illness, organic brain syndrome, or any other similar cause or condition.
(7)	The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion.
(8)	The parent has committed murder or voluntary manslaughter of another child of the parent or other child residing in the home; has aided, abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of the child, another child of the parent, or other child residing in the home; or has committed a felony assault that results in serious bodily injury to the child, another child of the parent, or other child residing in the home.
(9)	The parental rights of the parent with respect to another child of the parent have been terminated involuntarily by a court of competent jurisdiction and the parent lacks the ability or willingness to establish a safe home.
	(b)	The burden in such proceedings shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence."
Section 12.  G.S. 7B-1112 reads as rewritten:
"§ 7B-1112.  Effects of termination order.
An order terminating the parental rights completely and permanently terminates all rights and obligations of the parent to the juvenile and of the juvenile to the parent arising from the parental relationship, except that the juvenile's right of inheritance from the juvenile's parent shall not terminate until a final order of adoption is issued. The parent is not thereafter entitled to notice of proceedings to adopt the juvenile and may not object thereto or otherwise participate therein:
(1)	If the juvenile had been placed in the custody of or released for adoption by one parent to a county department of social services or licensed child-placing agency and is in the custody of the agency at the time of the filing of the petition or motion, including a petition or motion filed pursuant to G.S. 7B-1103(6), that agency shall, upon entry of the order terminating parental rights, acquire all of the rights for placement of the juvenile as the agency would have acquired had the parent whose rights are terminated released the juvenile to that agency pursuant to the provisions of Part 7 of Article 3 of Chapter 48 of the General Statutes, including the right to consent to the adoption of the juvenile.
(2)	Except as provided in subdivision (1) above, upon entering an order terminating the parental rights of one or both parents, the court may place the juvenile in the custody of the petitioner or movant, or some other suitable person, or in the custody of the department of social services or licensed child-placing agency, as may appear to be in the best interests of the juvenile."
Section 13.  This act becomes effective October 1, 2000.