Do North Carolina foster parents who have cared for a child for two or more years have legal standing to file a petition to terminate the biological parents' rights, even if the foster parents are working as agents of the county Department of Social Services that placed the child with them?
Plain-English summary
Durham County's assistant county attorney, James Swindell, asked a question that often surfaces in long-term foster placements: a child has been with the same foster family for years, the biological parents are absent or unfit, and the foster family wants to move toward adoption by terminating the biological parents' rights. Could the foster parents file the termination of parental rights (TPR) petition themselves, or did their relationship with the county Department of Social Services that placed the child somehow disqualify them?
Associate Attorney Steven Shaber, for AG Edmisten, answered yes, the foster parents have standing. The TPR statute (G.S. § 7A-289.24(5) at the time) limited who could file a petition to terminate parental rights to a defined set of persons. One of the eligible categories was "Any person with whom the child has resided for a continuous period of two years or more next preceding the filing of the petition." A foster parent who has actually been caring for the child for two continuous years fits that text exactly. The statute does not require the petitioner to be a stranger to DSS, an unrelated adult, or anyone in particular except by the residence test.
The argument against foster-parent standing was that they were really DSS agents, and so DSS (not the foster parents) had the real interest in the child's status. Shaber rejected this on two grounds. First, even if some agency relationship existed, it would not erase the statutory standing the General Assembly conferred on any person meeting the two-year residence test. The statute did not say "any person who is not a DSS agent." Second, even a prior promise by the foster parents to DSS that they would not file a TPR petition would not diminish their "personal stake in the outcome of the controversy" (quoting Baker v. Carr, the federal standing benchmark). Two years of continuous, hands-on care for a child creates exactly the kind of personal stake the standing doctrine is meant to recognize.
The opinion is short, but it settles an important practical question: in NC, the long-term foster family is not a passive bystander in TPR proceedings. They can be the moving party. That matters because DSS sometimes drags its feet on TPR filings (resource constraints, internal disagreements, or hopes of reunification that extend past the point at which the foster family thinks the child should be freed for adoption). The foster family has its own statutory route.
Currency note
This opinion was issued in 1980. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC's juvenile code was rewritten in 1998 (S.L. 1998-202), and the TPR petitioner provisions now appear at G.S. § 7B-1103. The current text still recognizes long-term caregivers as a category of eligible petitioners, but the precise duration thresholds, definitions, and procedural requirements have changed. The federal Adoption and Safe Families Act of 1997 (ASFA) also created new federal timing rules for TPR that interact with state-law procedures. Anyone working a current TPR question must read the current state statutes and consider ASFA's framework.
Background and statutory framework
NC's termination of parental rights statute (then Article 24B of Chapter 7A) was a 1977 enactment that gave the courts a tool to permanently end the legal relationship between a parent and child when statutory grounds were proven. Once parental rights were terminated, the child became free for adoption without the biological parent's consent.
The standing question, who could file the petition, was sensitive. Termination is a drastic remedy. Allowing too broad a class of petitioners would have invited strategic or malicious filings; allowing too narrow a class would have left children in legal limbo when DSS was slow to act. The General Assembly's compromise was a defined list: the other parent (for limited grounds), DSS, licensed child-placing agencies, the guardian of the person of the child, and any person with whom the child had resided for a continuous period of two years or more.
The two-year residence category was the legislative recognition of long-term caregivers as having a legitimate stake. Most often, that category captured foster parents or long-term informal caregivers (a grandparent or aunt who had taken the child in years earlier). The text did not distinguish by formal status; what mattered was the continuous two-year residence.
The agency argument the county attorney raised reflected a real tension in foster care administration. DSS placed the child, paid the foster parents board, supervised the placement, and held the legal custody. From DSS's perspective, the foster parents were carrying out a service under DSS direction. From a TPR-standing perspective, however, the foster parents were the actual day-to-day caregivers; they had the personal relationship and the moral interest. The AG sided with the latter perspective: the General Assembly chose continuous residence as the standing trigger, not the relationship to DSS, and the AG would honor that legislative choice.
The cited cases (Baker v. Carr and Carolina Environmental Study Group) were standing precedents about "personal stake in the outcome." They were not TPR cases. The AG used them to confirm that a personal stake, once established by the statutory criterion, was not defeated by promises or relationships to third parties.
Common questions
Did this opinion give foster parents the right to win the TPR case?
No, only the right to file it. Winning required proving the statutory grounds for termination (abandonment, neglect, willful failure to support, etc.) at the merits hearing. Standing is the threshold question of who may bring the action; the merits are decided separately.
Could DSS object to a foster-parent filing?
DSS could appear in the action and take a position, but DSS could not block the filing on standing grounds. If DSS thought the petition was premature or ill-advised, DSS could argue that the merits should not result in termination. But the filing itself was lawful.
Did the two-year clock include time before the child came to NC?
The opinion did not address that fact pattern. The statute spoke of the child residing "with" the petitioner, not "in NC." A long-term caregiver who had been with the child in another state and continued the care in NC likely had a good argument for aggregating the residence. NC courts would have decided that in a specific case.
What if the foster parents wanted to adopt themselves?
That was the typical reason for the TPR filing. Termination freed the child for adoption. The foster family could then proceed with their own adoption petition after termination was final. The TPR step was a procedural prerequisite to adoption when the biological parents would not consent.
Source
Citations
- N.C. Gen. Stat. § 7A-289.24(5) (1979 Cum. Supp.)
- Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962)
- Carolina Environmental Study Group v. United States, 431 F. Supp. 203 (W.D.N.C. 1977)
Original opinion text
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