Foster Parents’ Standing to Petition for Termination

Subject:

Requested By: James W. Swindell Assistant County Attorney Durham County

Question: Do foster parents have standing to petition for termination of parental rights, pursuant to G.S. 7A-289.24(5), if they are agents of their county departments of social services?

Conclusion: Yes, irrespective of their statute vis a vis the county department of social services, foster parents having standing pursuant to G.S. 7A-289.24(5) to petition for termination of parental rights.

Only certain persons may bring a petition to terminate a parent’s right to his child. Among others,

"A petition to terminate the parental rights of either or both parents to his, her, or their minor child may only be filed by: . . . .

"(5) Any person with whom the child has resided for a continuous period of two years or more next preceding the filing of the petition." G.S. 7A-289.24 (1979 Cum. Supp.)

Although no cases construe this statute, patently it confers standing upon any person, including a foster parent, with whom the child has lived continuously during the preceding two years.

The question suggests that foster parents may forfeit their standing by virtue of their alleged status as agents of the county departments of social services. Such agency, if it existed, would not affect the pure standing conferred by G.S. 7A-289.45(5). Even assuming that the foster parents had previously promised the county departments of social services. Such agency, if it existed, would not affect the pure standing conferred by G.S. 7A-289.24(5). Even assuming that the foster parents had previously promised the county department of social services that they would not petition to terminate the natural parents’ parental rights, such a promise would not diminish the foster parents’ "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186 at 204, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962). Their personal stake in the child – born out of two years’ continuous care for it – is the gist of the foster parents’ standing to litigate. Cf., eg., Carolina Environmental Study Group v. United States, 431 F. Supp. 203 at 218-221 (W.D.N.C., 1977) and cases cited therein. G.S. 7A-289.24(5) recognizes their stake in the child. The foster parents’ possible status as county agents does not negate it.

Rufus L. Edmisten Attorney General

Steven Mansfield Shaber Associate Attorney