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Domestic Relations – Parent & Child – Termination of Parental Rights – Standing – Grandmother & Custodian

S.A.U. v. Horton (In re J.A.U.) (Lawyers Weekly No. 15-07-0813, 11 pp.) (Martha Geer, J.) Appealed from Wilkes County District Court (William Brooks, J.) N.C. App.

Holding: Having had custody of her grandchild for only a year, petitioner lacked standing to seek the termination of the respondent-father’s parental rights.

We vacate the trial court’s order terminating respondent’s parental rights.

Petitioner is not a parent of “Jeffrey,” a county department of social services, or a guardian ad litem, and she had not filed a petition to adopt Jeffrey at the time she filed the termination of parental rights (TPR) petition. Therefore, the only possible bases for petitioner’s standing arise under G.S. § 7B-1103(a)(2), as a “person who has been judicially appointed as the guardian of the person of the juvenile,” or (a)(5), as a “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.”

When she filed the petition, petitioner had not been judicially appointed as Jeffrey’s guardian. In 2013, the General Assembly changed the former definition of custodian – the “person or agency that has been awarded legal custody of a juvenile by a court or a person, other than parents or legal guardian, who has assumed the status and obligation of a parent without being awarded the legal custody of a juvenile by a court” – to the “person or agency that has been awarded legal custody of a juvenile by a court.” G.S. § 7B-101(8).

Although custodians and guardians are both designated by a court, petitioner cites no authority for her proposition that the two are now identical or that the definitional change overruled In re B.O., 199 N.C. App. 600, 681 S.E.2d 854 (2009), in which we rejected the same argument, noting that our Juvenile Code recognizes a distinction between “custodians” and “guardians.” Guardians clearly have far greater powers over their wards than do custodians. We see no reason to revisit our holding in In re B.O., and we hold that petitioner did not have standing as a judicially appointed guardian to file a TPR petition.

Jeffrey had been living with petitioner for slightly less than a year when she filed the TPR petition. Although the trial court found that Jeffrey “has resided with Petitioner all of the child’s life with the exception of a few days when the child resided with his biological mother,” this finding is unsupported by the evidence. For example, there was evidence that Jeffrey and his mother (“Kayla”) lived in Virginia during 2007 or 2008, that they lived with the father of Kayla’s other child for about two years, and that Jeffrey lived in a group home from November 2012 until May 2013.

Petitioner did not have standing to file a TPR petition.

Vacated.


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