Archive

• The Rights of the Parent Who Does Not Execute a Relinquishment

  This entry was contributed by Sara DePasquale on December 8, 2022 at 4:59 pm and is filed under Adoptions.

  This blog post builds on my last post: A Guide to Relinquishments and Post-Relinquishment Review Hearings. If you remember, relinquishments involve the voluntary transfer of physical and legal custody of a minor child to an agency (a department of social services (DSS) or licensed private child-placing agency) that accepts the relinquishment for the purposes of the child’s adoption. See G.S. 48-1-101(15); 48-3-705(b). A relinquishment is executed by a parent or by a guardian of the person appointed by the clerk of superior court under a G.S. Chapter 35A proceeding.

  What happens when one parent executes a relinquishment but the other parent wants custody of their child? North Carolina statutes are silent; however, case law recognizes that the non-relinquishing parent has rights. Continue Reading

• Extra! Extra! Read All About It! New Juvenile Law Bulletin – Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work?

  This entry was contributed by Sara DePasquale on June 12, 2019 at 10:59 am and is filed under Child Welfare Law, Juvenile Justice, Juvenile Law.

  Did you know that in a juvenile delinquency court case the juvenile may be placed in the custody of a county’s child welfare department (usually a department of social services (DSS))? A DSS placement through a delinquency action may happen in one of three ways:

  • a nonsecure custody order (G.S. 7B-1902 through -1907),
  • a dispositional order after the juvenile has been adjudicated delinquent (G.S. 7B-2506(1)c.), and/or
  • an order appointing DSS as the juvenile’s guardian of the person (G.S. 7B-2001).

  With each of these types of delinquency orders, there is not an allegation, substantiation, or adjudication that the juvenile is abused, neglected, or dependent (see my last blog post, here, discussing  delinquency as it relates to abuse, neglect, or dependency). Instead, the juvenile’s court involvement is a result of his or her alleged acts of delinquency rather than circumstances created by a parent, guardian, custodian, or caretaker. Each of these three custody orders is a type of delinquency order and not an order related to a juvenile’s abuse, neglect, or dependency. However, at times, as a result of the order placing the juvenile in DSS custody, pieces of abuse, neglect, and dependency law apply in the delinquency case.

  The legal implications of placing a juvenile into DSS custody and resulting foster care as part of a delinquency mat­ter are complex – so complex, that a blog post will not do. Instead, my colleague, Jacquelyn (Jacqui) Greene and I wrote a new extensive juvenile law bulletin discussing these orders and the issues that arise with each type of order. You can access the bulletin, Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work? here. Continue Reading

• Third Party Custody: Does a parent lose constitutionally protected status by signing a consent custody order granting custody rights to a non-parent?

  This entry was contributed by Cheryl Howell on July 15, 2016 at 6:00 am and is filed under Family Law.

  It is now well established that a parent has a constitutional right to exclusive care, custody and control of his or her child. This constitutional right protects a parent against claims for custody by non-parents. A court cannot apply the best interest of the child test to determine whether a non-parent should have custody of a child unless the court first concludes that the parent has waived her constitutional right to exclusive custody. A parent waives her constitutional right by being unfit, neglecting the welfare of the child, or by conduct otherwise inconsistent with the parent’s protected status. There is no precise definition of conduct inconsistent with protected status and our appellate courts have provided no comprehensive list of actions that will result in a parent’s loss of constitutional rights. Instead, whether a parent’s conduct has been inconsistent with protected status is an issue that must be determined on a case-by-case basis. The non-parent seeking custody has the burden of proving the parent’s inconsistent conduct by clear, cogent and convincing evidence. For more detail on this law, see Family Law Bulletin, Third Party Custody and Visitation Actions.

  What if a parent signs a consent custody order that grants custody rights to a non-parent third party? Does the parent lose the ability to assert her constitutional right to custody in subsequent custody proceedings? For example, if a parent agrees to a court order granting custody to grandmother, does the parent have the constitutional right to regain custody from grandmother in the future? Or, if another non-parent wants custody or visitation after parent has entered into a consent custody order with grandmother, does the other non-parent still need to prove parent has waived her constitutional right to custody and, if so, can the non-parent rely on the fact that parent voluntarily gave custody to the grandmother to establish that the parent acted inconsistent with her protected status?

  Continue Reading