NC COA Case Summary: In the Matter of J.M.K
By Ryan Schultz
Termination of Parental Rights, No. COA18-451, Sept. 4, 2018
In the Matter of J.M.K
Buncombe County
In a termination of parental rights hearing, a court cannot base termination from a ground that has not been pled.
Facts: Mother and Father were in a relationship from February 2014 -September 2014. During their courtship, a daughter was conceived. While still pregnant in October 2014, Mother filed and obtained a domestic violence protective order against Father. In a chapter 50 hearing, Mother was awarded sole legal and sole physical custody of the child. No child support order was ever entered, and finding was ever made that Father was the child’s biological father. Mother filed a private termination of parental rights action, to which the trial court entered an order terminating Father’s parental rights.
The gravamen of the case was Mother pled only the failure to pay child support and failure to legitimate his child as grounds to terminate Father’s parental rights. Yet, the trial court appeared to grant or at least base its ruling terminating Father’s rights on an abandonment ground. The court opined that because the abandonment ground was not pled, and thus Father had no notice of the abandonment ground – termination of parent rights was reversable error.
Unlike other civil causes of action and civil procedure rules that can create a situation where on party implicitly consents to the adding or subtracting of claims, it appears that no waiver or implication is present in a termination action.
