Adoption of P.E.P., Matter of

• Decision Date: 05 September 1991
• Docket Number: No. 509A90,509A90
• Citation: 329 N.C. 692,407 S.E.2d 505
• Parties: , 60 USLW 2251 In the Matter of the Adoption of P.E.P.
• Court: North Carolina Supreme Court

Page 505

407 S.E.2d 505

329 N.C. 692, 60 USLW 2251

In the Matter of the Adoption of P.E.P.

No. 509A90.

Supreme Court of North Carolina.

Sept. 5, 1991.

Appeal by plaintiffs pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 100 N.C.App. 191, 395 S.E.2d 133 (1990), affirming a judgment entered 25 May 1989 by Ellis, J., in Superior Court, Orange County. Heard in the Supreme Court 13 March 1991.

Levine and Stewart by Donna Ambler Davis, Chapel Hill, for appellants.

Coleman, Bernholz, Bernholz, Gledhill & Hargrave by G. Nicholas Herman, Chapel Hill, for appellees.

Heidi G. Chapman, Chapel Hill, for North Carolina Ass'n, of Women Attorneys, amicus curiae.

FRYE, Justice.

We are again faced with making a difficult decision concerning the adoption of a newborn child. This action involves the natural parents' attempt to set aside an Interlocutory Decree of Adoption, to prevent the entry of a Final Order of Adoption, to dismiss the Petition for Adoption, and to regain custody of their son, P.E.P. The trial judge denied all relief, and the Court of Appeals affirmed with one judge dissenting.

Procedurally the case arose in the following manner. On 13 September 1988, defendants, Mr. and Mrs. PEP (the PEPs), filed a Petition for Adoption in the Superior Court, Orange County. On 17 November 1988, an interlocutory decree allowing the adoption by the defendants was entered. On 27 December 1988, the plaintiffs, Pamela Rogers (Rogers) and William Rowe (Rowe), filed and served a notice of motion for relief from the interlocutory decree, pursuant to N.C.R.Civ.P. 60(b)(6), together with supporting affidavits, on the grounds of insufficiency of process, fraud, undue influence, and duress. Following action by the clerk of superior court as to various matters, the entire action was removed from the clerk and placed on the superior court trial calendar.

On 8 May 1989, plaintiffs filed and served a notice of amended motion and an amended motion for relief from the interlocutory decree pursuant to Rule 15(a) and Rule 24(a) of the North Carolina Rules of Civil Procedure. On the same day, defendants filed and served a motion for hearings to be closed and for change in caption, a motion in limine, and a response to plaintiffs' Rule 60(b)(6) motion. The motion for hearings to be closed and for change in caption was granted and the plaintiffs' amendment to their Rule 60(b)(6) motion was allowed. Plaintiffs were also permitted to intervene in the adoption proceeding and to request relief from the interlocutory decree. The hearing was held before Judge Ellis.

On 25 May 1989, Judge Ellis entered the final order of the trial court, denying plaintiffs' motion for relief from the interlocutory decree, and plaintiffs appealed. The Court of Appeals affirmed the trial court's judgment. Judge Duncan dissented, and plaintiffs appealed to this Court as a matter of right based on the dissenting opinion. In the Matter of the Adoption of P.E.P., 100 N.C.App. 191, 395 S.E.2d 133 (1990).

The evidence presented by the plaintiffs at the hearing before Judge Ellis tended to show that Rogers and Rowe are the biological parents of P.E.P. P.E.P. was conceived in December of 1987, while Rogers was living with Rowe in Michigan. Rogers and Rowe were not married to each other at the time of P.E.P.'s conception or birth.

In late 1987, Rogers became friends with Sheryl Piccirillo (Piccirillo), and Piccirillo introduced Rogers to an organization known as "The Way International" (the Way). In February of 1988, Rogers began working with Piccirillo cleaning houses and began spending most of her time with Piccirillo. Rogers soon became distanced from persons who did not believe in the Way. She no longer saw her former friends and did not spend much time with her mother.

Piccirillo convinced Rogers that Rowe was cheating on her and that he was questioning whether he was the father of her unborn child. On 28 May 1988, Rogers moved from Rowe's house and moved in with her mother. She did not leave any information with Rowe as to where she had moved. Rowe called Rogers' mother, Rogers' ex-husband, and Piccirillo trying to find out where Rogers was living, but no one would give him any information. On 31 May 1988, Rowe contacted an attorney in Michigan, Richard Spruit (Spruit), and arranged to meet with him three days later to try to find Rogers. Rowe soon found out that Rogers was at her mother's house because on one occasion when he telephoned Rogers' mother, Rogers answered the telephone.

After leaving Rowe, Rogers contemplated placing P.E.P. for adoption. Rogers discussed the possibility of adoption with Piccirillo, and Piccirillo told Rogers that the Way had a lot of people who would like to adopt a child. Piccirillo called a member of the Way to let him know of the possible adoption and that person contacted the PEPs who lived in North Carolina. The PEPs then employed an attorney, Douglas Hargrave (Hargrave), a follower of the Way living in Hillsborough, North Carolina, to handle the possible adoption. The PEPs agreed to pay Hargrave $3,500 to assist them in the adoption proceeding. Hargrave called Piccirillo and told her that he wanted to meet with Rogers.

Hargrave flew to Michigan and met with Rogers and Piccirillo on 4 June 1988. During this meeting, according to Rogers, Hargrave took Rogers and Piccirillo to lunch and told Rogers that "[she] had to be in the same state as the adoptive parents" if she was going to place her child for adoption. Hargrave testified that he "told [Rogers] if she wanted to place the baby in North Carolina, I figured she'd have to come to North Carolina." Rogers also testified that she informed Hargrave during the meeting that Rowe was the father of her unborn child. Hargrave testified that Rogers did tell him that she had been living with Rowe, but when he asked her if Rowe was the baby's father, "she just really didn't really want to talk about that and sort of lowered her voice and said no."

One week later, on 11 June 1988, a process server tried to serve a summons on Rogers at her mother's house. Rogers testified that she called Hargrave and told him about the process server, and Hargrave arranged and paid for Rogers and her two children to fly to North Carolina the next day. However, according to Hargrave's testimony, he arranged and paid for Rogers' transportation to North Carolina, not to help her avoid the process server, but because she wanted to leave Michigan before her family and friends found out about her pregnancy. Rogers also testified that at the time the trip was arranged, she had no intention of remaining in North Carolina.

On 12 June 1988, Hargrave met Rogers and her children at the Raleigh-Durham Airport and took them to his house where they remained for two days. On their third day in North Carolina, Hargrave arranged for Rogers and her children to move in with Laura Smith (Smith), another follower of the Way. Rogers lived with Smith until after the baby was born and never paid for her accommodations. Hargrave testified that he used his personal funds and funds from the PEPs to pay Smith and to provide funds for Rogers.

Rogers testified that no one in her family knew where she was while she was in North Carolina. However, her mother had Hargrave's telephone number and address in case she wanted to contact Rogers. While staying in North Carolina, Rogers' days were spent only with followers of the Way. She would read books from the Way given to her by Smith, and Smith would play the Way's teaching tapes and music tapes every day. Smith also discussed the philosophy of the Way with Rogers.

In early August 1988, Rogers' ex-husband threatened to bring a custody suit against Rogers because she had taken their daughter, Crystal, out of Michigan and he was unable to visit with his child. Hargrave retained Nanna Carpenter (Carpenter), a lawyer in Michigan, to handle the matter for Rogers. Hargrave paid Carpenter's $500 retainer out of his personal funds, and he was not reimbursed. Crystal was sent back to Michigan before the birth of P.E.P.; Hargrave paid her airfare, and Mr. PEP reimbursed him.

On 29 August 1988, Rogers met with Jane Maskey (Maskey), a social worker for the Orange County Department of Social Services. Maskey had handled adoptions exclusively for the last fourteen years. Hargrave's office had arranged the meeting, and prior to the interview with Maskey, according to Rogers, Hargrave counseled her on what to say. Maskey was allowed to testify at trial as an expert in adoption procedures in North Carolina. Maskey testified that when she met with Rogers she told her that "it's illegal for any money to change hands with a private adoption. I asked her how she was supporting herself; and she said that her family was helping her to support herself." Maskey also testified that the interview was approximately thirty-five minutes, shorter than her usual interviews because Rogers "was having contractions and she was uncomfortable. And I didn't think it was the appropriate time to give counseling or anything else."

Rogers had not met the PEPs prior to the birth of her child. Hargrave told Rogers that she could meet the adoptive parents but he advised against meeting them. Hargrave also did not permit Rogers to attend the local Twig meetings, the weekly gatherings of the local followers of the Way, because the PEPs attended the meetings. The PEPs had been involved with the Way since 1974.

Hargrave transported Rogers to the hospital, and P.E.P. was born on 9 September 1988, at North Carolina Memorial Hospital (Hospital) in Chapel Hill. On 10 September 1988, a nurse brought P.E.P. to Rogers, and according to Rogers, she "only spent about two minutes with [the baby] because I felt like [Hargrave] was mad at me; and I did not want him mad at me." Rogers signed a release form prepared by Hargrave and left the Hospital. A nurse delivered the baby to the...