In re Adoption S.D.W.

• Decision Date: 12 June 2014
• Docket Number: No. 348PA13.,348PA13.
• Citation: 758 S.E.2d 374
• Court: North Carolina Supreme Court
• Parties: In re ADOPTION OF S.D.W.

758 S.E.2d 374

In re ADOPTION OF S.D.W.

No. 348PA13.

Supreme Court of North Carolina.

June 12, 2014.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 745 S.E.2d 38 (2013), reversing orders entered on 10 November 2011 and 17 February 2012 by Judge Elizabeth T. Trosch in District Court, Mecklenburg County, and remanding for an evidentiary hearing and entry of a revised order. Heard in the Supreme Court on 18 February 2014.

Thurman, Wilson, Boutwell & Galvin, P.A., Charlotte, by W. David Thurman, John D. Boutwell, and Alexander W. Warner, for petitioner-appellants adoptive parents and appellant Christian Adoption Services, Inc.

Jonathan McGirt for respondent-appellee father Gregory Johns.

Claiborne & Fox, PLLC, Charlotte, by Amy Wallas Fox; and Herring & Mills, PLLC, Raleigh, by Bobby Mills, for American Academy of Adoption Attorneys, amicus curiae.

EDMUNDS, Justice.

The issue presented in this case concerns the legal ability of a biological father who is unaware that he has fathered a child to object to the mother's decision to place the child for adoption. Appellee Gregory Johns (“Johns”) contends that his state and federal due process rights were violated because the adoption deprived him of his rights as a father. We conclude that obtaining notice of the pregnancy and birth was not beyond Johns's control and that he had sufficient opportunity to acknowledge paternity and establish himself as a responsible parent within the time set by statute. Because he failed to do so, he falls outside the class of responsible biological fathers who enjoy a constitutionally protected relationship with their natural children. As a result, Johns's due process claim fails. We reverse the decision of the Court of Appeals remanding the matter for additional evidence.

Laura Marshburn Welker (“Welker”) and Johns acknowledge that they are the biological parents of the minor child “S.D.W.” Although they neither married nor cohabited, Johns and Welker were involved in an intimate relationship from approximately May 2009 to February or March 2010. Johns described their involvement as “mostly physical,” adding that the couple “had sex[ ] 10 to 20 times a week.”

During this time, Johns was aware that Welker had given birth about three years previously to a son who was then living with Welker's mother. Understanding that Welker used a form of birth control that he characterized as an “IUD band,” Johns did not wear condoms during intercourse with Welker. In the summer of 2009, Welker became pregnant and she and Johns decided that she would have an abortion. After that pregnancy was terminated, Welker told Johns that she was using another form of birth control. According to Johns: “It's either a shot or a patch. I know she wasn't taking pills every day, that I do know. I don't remember seeing a patch, but I remember we were talking about it, but I'm—I would say it was a shot, a birth control shot.” Johns continued his practice of not wearing a condom.

At some time around the end of January 2010, Johns broke up with Welker. Even so, until early March 2010, they engaged in additional acts of sexual intercourse during three to five visits Welker made to Johns's home. Thereafter, Welker cut off all contact with Johns, and except for Johns's birthday on 26 November 2010 when Welker stopped by his home to mark the occasion with another act of sexual intercourse, there was no further communication between them until late April 2011.

In the interim, Welker gave birth to S.D.W. on 10 October 2010. The next day, 11 October, she executed an “Affidavit of Parentage” incorrectly naming “Gregory Thomas James” as the father and leaving blank the line for the father's last known address. At the same time, she executed a Department of Social Services form relinquishing custody of S.D.W. to adoption agency Christian Adoption Services, Inc. (“the agency”) through its director, James M. Woodward. The agency identified Benjamin Allen Jones and Heather Pitts Jones (“the Joneses” or “petitioners”) as prospective adoptive parents for S.D.W., and on 12 October, the infant was placed in their custody, where he has remained. On 27 October, Welker signed a form provided by the agency titled “Birth Father Information,” in which she again misidentified the father as “Gregory Thomas James.”

The Joneses filed a petition to adopt S.D.W. on 2 November 2010. The agency, relying on the false name provided by Welker, attempted to locate the biological father. On 16 November 2010, after failing to find “Gregory Thomas James,” the agency filed a petition to terminate the parental rights of the absent father, an action that resulted in a stay in the adoption proceedings. N.C.G.S. § 48–2–402 (2013).

In late April 2011, Johns first heard that Welker had given birth. After calling Welker on 25 April 2011 and confirming with her both that the child was his and that she had placed the child for adoption, Johns took steps to assert his intention to obtain custodial rights of S.D.W. and to prevent the adoption from proceeding. Welker also contacted the agency in late April to disclose Johns's correct identity, leading counsel for the agency on 2 May 2011 to voluntarily dismiss without prejudice the action to terminate parental rights.

As a result of the dismissal, the temporary stay was removed on 5 May 2011 and petitioners gave notice of their intention to proceed with the adoption. On 17 May 2011, a Notice of Pendency of Adoption Proceedings was served on Johns's brother. On 24 May 2011, acting pro se, Johns sent letters to the Clerk of Court of Mecklenburg County and to counsel for the agency, introducing himself, requesting DNA testing, asking that the adoption be terminated, and advising that he would not surrender his parental rights over S.D.W. On 15 August 2011, Johns, now represented by counsel, filed verified motions in the District Court, Mecklenburg County, seeking to intervene in the adoption proceeding, to dismiss the adoption petition, to secure child custody, and to obtain related relief.

On 19 September 2011, petitioners filed their Response to Respondent's Motions and Motion for Summary Judgment. In this response, petitioners acknowledged that “[a]n issue of fact and law exists as to whether [Johns's] [c]onsent is required” but opposed Johns's Motion to Intervene, arguing that Johns was not a party and that he lacked standing because “he has not seen the minor child nor has he acted in a way that is consistent with the interests, rights, and duties of a parent.” Petitioners moved for summary judgment, contending that Johns had failed to carry his burden of showing his consent was required under N.C.G.S. §§ 48–3–601 and 48–3–603. The former statute provides, in pertinent part regarding an agency placement:

Unless consent is not required under G.S. 48–3–603, a petition to adopt a minor may be granted only if consent to the adoption has been executed by ... [a]ny man who may or may not be the biological father of the minor but who ... [b]efore the earlier of the filing of the petition or the date of a hearing under G.S. 48–2–206, has acknowledged his paternity of the minor and ... [h]as provided, in accordance with his financial means, reasonable and consistent payments for the support of the biological mother during or after the term of pregnancy, or the support of the minor, or both, which may include the payment of medical expenses, living expenses, or other tangible means of support, and has regularly visited or communicated, or attempted to visit or communicate with the biological mother during or after the term of pregnancy, or with the minor, or with both.

N.C.G.S. § 48–3–601 (2013). The latter statute lists persons whose consent is not required. Id.§ 48–3–603 (2013). The case was transferred from the Assistant Clerk of Court to the district court because of the existence of an issue of fact regarding Johns's consent.

On 19 October 2011, Johns filed his reply to petitioners' response to his motion to intervene and motion to dismiss petitioners' motion for summary judgment. Johns's filing highlighted petitioners' admission that “[a]n issue of fact and law exists as to whether [Johns's] [c]onsent is required” and argued that summary judgment here “is premature and would severely prejudice [his] Constitutionally protected status as the biological parent of the minor child.”

On 10 November 2011, Judge Elizabeth T. Trosch entered an order in the District Court, Mecklenburg County, denying Johns's motion to intervene and setting for hearing the Joneses' motion for summary judgment. Johns filed a motion for relief on 21 November 2011, citing North Carolina Rules of Civil Procedure 52, 59, and 60. In this motion, Johns asserted that the trial court should reopen the matter because the court's findings were insufficient and inadequate, and that the court also should set aside its 10 November 2011 order and relieve him of its directives because he had “obtained newly discovered evidence” proving that the agency and Welker knew his true identity before both the action to terminate his parental rights and the adoption petition were filed. Johns asked the court to set a new trial to determine the merits of his motion to intervene. Later, on 21 December 2011, Johns filed a Motion to Dismiss Petition for Adoption.

A hearing was held on 6 January 2012, at which Judge Trosch heard the Joneses' motion for summary judgment, as well as Johns's motion pursuant to Rules 52, 59, and 60 and his motion to dismiss the petition for adoption. At the conclusion of the hearing, Judge Trosch in open court entered an order allowing the adoption to proceed without Johns's consent and denying all motions made by him. The order was reduced to writing and filed on 17 February 2012.

In its written order, the trial court made numerous findings of fact summarizing the events stated above. It also found that “...