Under 7B-1111(5), the Respondent Father of a child could have his parental rights terminated if it could be shown that (a) he failed to establish paternity judicially or by affidavit; (b) he failed to legitimate the child by filing a civil complaint or petition; (c) he failed to legitimate the child by marriage to the child's mother; and (d) he failed to provide substantial financial support or consistent care with respect to the juvenile and the juvenile's mother. N.C. Gen Stat. 7B-1111(5). To successfully terminate parental rights under this statute, the petitioner or movant would have to establish that all the negatives referenced in the statute were true (despite the disjunctive "or" which connected each clause of the statute suggesting that the burden of proof was to establish that only one of the negatives happened).See Matter of Harris, 87 N.C,. App. 179, 360 S.E.2d 485 (1987).
One of the sticking points has always been establishing that the father had not legitimated a child in light of affidavits of paternity that might have been signed seeming to do just this. All along there has been some concern (from some quarters, any way) about the legitimacy of establishing paternity by affidavits (as opposed to filing a civil complaint or petition). The Court of Appeals first encountered this problem in In re A.R.H.B.,, a case in which the Court affirmed the trial court's order terminating a father's parental rights for failure to legitimise the child despite the fact that the father's paternity was established by DSS after the termination action was commenced but before the hearing on the merits. In re A.R.H.B., 186 N.C. App. 211, 217, 651 S.E.2d 247, 253 (2007).
The Court, in affirming the trial court, seemed to rely on the tardiness and involuntariness of the action. This same result was reached again in In re S.C.R., 198 N.C. App. 525, 532-533, 679 S.E.2d 905, 909-910 (2009) when the same facts presented:the father sought to legitimate his child by filing an affidavit of parentage after the termination action was initiated.
Most recently, the Court of Appeals in In re J.K.C, __N.C. App.__,__S.E.2d__(January 17, 2012) has looked at the same issue again. This time the facts are different. Prior to the termination action being commenced, the Respondent Father's name appeared on the birth certificates of both of his children. The Court acknowledged no evidence had ever been presented that the father had ever married the mother and that the issuance of the birth certificate had to come as a result of the operation of N.C. Gen. Stat. 130A-101( f), providing a basis to assign paternity upon affidavit of both the mother and the father. The Court further found that the trial court hearing the termination action had already judicially determined the fact of the father's paternity by adopting court reports which listed the Respondent of the father of both children. Based on these facts, the Court held that ". . .the practical effect of a birth certificate bearing the respondent's name as father of the child is the creation of a rebuttable presumption that the respondent has in fact established paternity of the child judicially or by affidavit."
What this appears to mean is that the Court of Appeals true concern about affidavits in the past hasn't been about their efficacy as a means to establish paternity. To the contrary, properly and timely executed affidavits of paternity can serve not only as an appropriate vehicle for establishing paternity but also for defeating a claim to terminate parental rights pursuant to N.C. Gen. Stat. 7B-1111(5). Thus it from now on behoves those who expect to defend parents against termination actions to assure that their clients have properly executed affidavits for any children that they want to claim prior to getting served with a termination action. In short, sign (and swear it out) now, or fore ever hold your peace. . .
