In re E.B., 375 N.C. 310

Background

Infant Ella born Feb. 18, 2016; mother immediately relinquished parental rights and transferred custody to Rowan County DSS, which placed Ella in foster care.
Respondent (putative father) confirmed by paternity test Apr. 19, 2016; he entered a voluntary out-of-home family services agreement, expressed consistent intent to parent Ella, and identified his sister in California as an alternative guardian.
DSS never filed a juvenile petition under N.C.G.S. §§ 7B-402/403; nevertheless the trial court held six permanency planning/review hearings (May 2016–Jan 2018) and entered orders imposing conditions on respondent—proceedings the Court later deemed void ab initio for lack of jurisdiction.
Respondent completed some services, had uneven compliance and visitation, and moved to California Jan. 2018 (without timely notice to DSS); his last in-person visit with Ella was Sept. 5, 2017. DSS filed a termination petition Apr. 10, 2018 alleging neglect, failure to make reasonable progress, willful abandonment, and failure to pay support.
Trial court terminated respondent’s parental rights Nov. 30, 2018; Court of Appeals affirmed on willful abandonment; the North Carolina Supreme Court reversed, holding petitioners failed to prove any statutory ground by clear, cogent, and convincing evidence independent of the void permanency proceedings.

Issues

Issue	Plaintiff's Argument (DSS)	Defendant's Argument (Respondent)	Held
Whether permanency planning/review orders were legally effective	Orders and hearings supported factual findings used to justify termination	DSS never filed proper juvenile petition; hearings lacked jurisdiction and are void	Permanency hearings were void for lack of subject-matter jurisdiction; findings arising from them cannot support termination
Whether respondent willfully abandoned the child (N.C.G.S. § 7B-1111(a)(7))	Failure to attend hearings/visits and post-move noncommunication show willful abandonment during the six-month window	Father consistently sought custody, intended reunification/transfer to sister, and nonattendance was tied to void orders and other explanations	Willful abandonment not proven by clear, cogent, and convincing evidence independent of void proceedings; reversal on this ground
Whether respondent neglected the child (N.C.G.S. § 7B-1111(a)(1))	Trial-court findings of instability, substance use, and noncompliance show past and likely future neglect	Ella was never in his custody; no adjudication of neglect; father cared for three other children and identified alternative guardian	Insufficient evidence of past neglect or likelihood of future neglect; ground not proved
Whether respondent failed to make reasonable progress (N.C.G.S. § 7B-1111(a)(2))	Noncompliance with services and conditions in the case plan shows lack of reasonable progress	No court order ever removed Ella from respondent; voluntary agreement cannot be the predicate for § 7B-1111(a)(2)	Ground inapplicable because removal requires a court order; voluntary out-of-home agreement insufficient

Key Cases Cited

In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006) (trial court lacks subject-matter jurisdiction when no properly verified juvenile petition is filed; orders are void ab initio)
Santosky v. Kramer, 455 U.S. 745 (1982) (parents have a fundamental liberty interest in the custody of their children requiring due process protections)
Troxel v. Granville, 530 U.S. 57 (2000) (Due Process protects parental decisions from undue state interference)
Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003) (a fit biological parent who seeks involvement enjoys a paramount constitutional right to custody and care)
In re N.D.A., 373 N.C. 71, 833 S.E.2d 768 (2019) (willful abandonment adjudication focuses on the six months immediately preceding filing)
In re A.G.D., 374 N.C. 317, 841 S.E.2d 238 (2020) (abandonment requires a purposeful, deliberative relinquishment of all parental duties)
In re J.S., 374 N.C. 811, 845 S.E.2d 66 (2020) (for § 7B-1111(a)(2), "removal" requires a court order placing the child outside the home)
In re B.O.A., 372 N.C. 372, 831 S.E.2d 305 (2019) (reasonable-progress termination requires nexus between case-plan components and conditions that led to removal)
In re Montgomery, 311 N.C. 101, 316 S.E.2d 246 (1984) (standard of review: appellate court reviews whether findings are supported by clear, cogent, and convincing evidence and reviews conclusions of law de novo)
In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997) (abandonment implies a willful determination to forego all parental duties)