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Termination of Parental Rights--lack of jurisdiction--insufficient notice of motion to terminate rights
The trial court lacked jurisdiction to terminate respondent mother's parental rights, and
the case is remanded for a rehearing based on insufficient notice of the motion to terminate
parental rights, because: (1) N.C.G.S. § 7B-1106.1 provides the requirements for notice served
on respondent, and only the first requirement of the names of the juveniles was included in the
notice served on respondent; and (2) failure to comply with the statutory mandate is reversible
Jeffrey L. Miller, for respondent-appellant.
Alice A. Espenshade, for petitioner-appellee.
Respondent mother appeals from orders of the trial court terminating her parental rights regarding D.A., Q.A., and T.A. Respondent argues, inter alia, that the trial court lacked jurisdiction because notice of the motion to terminate parental rights did not comport with North Carolina General Statutes section 1106.1. After careful review, we vacate the trial court's orders and remand for rehearing.
The procedural and factual history of the instant appeal is as follows: The children's parents had a relationship marked by instability and violence, which was found to pose a risk of harm to the children. On 11 August 2000, Beaufort County Department ofSocial Services (DSS) filed petitions alleging the children to be neglected and dependent. Accordingly, DSS obtained non-secure custody of the children from their father, who had sole custody after he had ejected Respondent from the family home. On 26 January 2001, orders were entered adjudicating the children neglected and dependent. Thereafter, review and permanency planning hearings were held. While, in the context of these review and planning hearings, the trial court admonishe[d] [Respondent] . . . that the next step is cessation of reunification[,] the permanency plan nevertheless remained reunification.
On 11 April 2003, before a scheduled review and planning hearing, DSS filed motions to terminate Respondent's parental rights. Adjudicatory and dispositional hearings were held on 8 and 9 July 2003, and on 22 September 2003, the trial court entered orders terminating Respondent's parental rights. Respondent appeals from these orders.
The notice requirements at issue are part of a
statutory framework intended to safeguard a parent's
fundamental rights to make decisions concerning the
care, custody, and control of their children. Troxel v.
Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147
L.Ed.2d 49, 57 (2000). This parental liberty interest
'is perhaps the oldest of the fundamental liberty
interests[.]' Owenby v. Young, 357 N.C. 142, 144, 579
S.E.2d 264, 266 (2003) (quoting Troxel, 530 U.S. at 65,
120 S.Ct. at 2059, 147 L.Ed.2d at 56)). The notice
requirements in the enacted framework are neitherunnecessary nor overly burdensome. . . . [W]here a
movant fails to give the required notice, prejudicial
error exists, and a new hearing is required.
In re Alexander, 158 N.C. App. at 525-26, 581 S.E.2d at 468-69.
Here, only the first requirement, the names of the juveniles, was included in the notice served on Respondent. All other statutory requirements were omitted. Because DSS failed to give the statutorily required notice, prejudicial error exists and a new hearing is warranted. In re Alexander, 158 N.C. App. at 526, 581 S.E.2d at 469 ([W]here a movant fails to give the required notice, prejudicial error exists, and a new hearing is required.).
Accordingly, we vacate the orders of the trial court and remand this matter for rehearing. Because a new hearing has been granted, we need not address Respondent's other arguments.
Vacated and remanded for rehearing.
Judges McGEE and TYSON concur.
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