In re Adoption of B.J.R.
| Citation | 238 N.C.App. 308,767 S.E.2d 395 |
| Decision Date | 31 December 2014 |
| Docket Number | No. COA14–327.,COA14–327. |
| Court | North Carolina Court of Appeals |
| Parties | Garry Martinous Robinson and Anita Jo Robinson, Petitioners, For the ADOPTION OF B.J.R., A Minor Child. William Phelan Pate, Plaintiff, v. Shaunasie Unique Perkins, Garry Martinous Robinson, and Anita Jo Robinson, Defendants. |
Crowe & Davis, P.A., Conover, by H. Kent Crowe, for the Plaintiff–Appellant, William Phelan Pate.
Thomas B. Kakassy, for the Third–Party Defendant–Appellees, Garry Martinous Robinson and Anita Jo Robinson.
William Phelan Pate ("Plaintiff") appeals from an order adjudicating that his consent to his daughter's adoption was not required. For the reasons stated below, we affirm.
Plaintiff and Shaunasie Unique Perkins ("Ms. Perkins") dated for about seven months from late 2011 to mid–2012, while both were attending high school and into the summer. The two engaged in sexual intercourse on a number of occasions. At some point during their relationship, Ms. Perkins became pregnant. She informed Plaintiff of her pregnancy.
In August of 2012, their relationship began to deteriorate when Ms. Perkins moved away to attend college and Plaintiff remained in high school.
On 7 January 2013, Ms. Perkins gave birth to a baby girl without informing Plaintiff. She authorized a direct discharge of the child to Garry and Anita Robinson, the prospective adoptive parents, and signed a consent form. The Robinsons took the child home with them the following day.
On 13 January 2013, after discovering that Ms. Perkins had given birth, Plaintiff filed an action for child custody, child support and genetic testing.
On 13 February 2013, the Robinsons filed a petition for adoption. On 21 February 2013, Plaintiff filed an objection to the adoption, contending that as the biological father his consent was required.
On 7 June 2013, the trial court entered an order for genetic testing. In early July of 2013, Plaintiff learned that the results from the testing proved him to be the father of the child.
On 26 August 2013, the trial court entered an order denying Plaintiff's motion to dismiss the adoption proceeding, concluding that Plaintiff's consent was not required. Plaintiff timely appealed from this order.
An order determining that a putative father's consent to an adoption is unnecessary is immediately appealable because a father's right to make decisions concerning the care, custody, and control of his children is fundamental, and the denial of his right to consent to an adoption deprives him of this fundamental right. In re Adoption of Shuler, 162 N.C.App. 328, 330, 590 S.E.2d 458, 459–60 (2004). Accordingly, we proceed to address the merits of Plaintiff's arguments.
Plaintiff makes two arguments on appeal: He contends that his consent is required to allow the adoption of his child by the Robinsons to proceed pursuant to the General Statutes and, alternatively, pursuant to the State and federal Constitutions. We address each argument in turn.
In re Adoption of Anderson, 360 N.C. 271, 275–76, 624 S.E.2d 626, 628–29 (2006) (internal marks and citations omitted).
Chapter 48 designates the class of unwed putative fathers whose consent to an adoption is required under the statutory scheme. In relevant part, Chapter 48 provides that an adoption petition may not be granted without the consent of any man who—prior to the earlier of the filing of the adoption petition or the date of hearing under N.C. Gen.Stat. § 48–3–601 —has done three things: (1) acknowledge paternity; (2) communicate or attempt to communicate with the mother regularly; and (3) make reasonable and consistent support payments within his financial means for the mother or child or both. N.C. Gen.Stat. § 48–3–601(2)(b)(4)(II) (2013) ; In re Byrd, 354 N.C. 188, 194, 552 S.E.2d 142, 146 (2001).
In the present case, the trial court, relying on our Supreme Court's opinion in Byrd, ruled that Plaintiff failed to meet the third prong under this portion of the statute, concluding that Plaintiff " prior to the filing of the adoption petition, which occurred on 13 February 2013. Specifically, the district court found as follows: Plaintiff lived with his parents and worked part-time between February and August of 2012. He had a joint checking account with his father where he deposited the money he earned, and this account always had at least $1,000.00 on deposit. His basic needs were provided for by his parents, so the money in the bank account was his to spend. Though he spent money on dates with Ms. Perkins and did offer on occasion to provide financial resources to her, he never actually provided money or any other tangible support. Likewise, he never offered any support to the Robinsons for the child prior to the filing of the adoption petition. Finally, though the trial court found that Plaintiff purchased two packages of infant diapers after the child's birth, the court also found that these packages were never delivered to the Robinsons. Plaintiff fails to challenge any of these findings. Thus, they are binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97–98, 408 S.E.2d 729, 731 (1991).
We conclude that the trial court's findings support its conclusion that Plaintiff did not provide "reasonable and consistent" payments of support commensurate with his ability to provide such payments. As our Supreme Court has held, the statute requires "actual, real and tangible support, and that attempts or offers of support do not suffice." Byrd, 354 N.C. at 196, 552 S.E.2d at 148. Accordingly, this portion of Respondent's argument is overruled.
Plaintiff next contends that his substantive due process rights supplied by the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution were violated by the district court's determination that his consent to adoption was not required and that Chapter 48 is therefore unconstitutional as applied to him. Again, we disagree.
Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). The issue presented by this case is whether Plaintiff, as an unwed biological father, enjoys that constitutionally paramount status.
At common law, a child born out of wedlock "was said to be a filius nullius, the child of nobody." State v. Robinson, 245 N.C. 10, 13, 95 S.E.2d 126, 128 (1956). An unwed father had no legal obligation to support the child or its mother, see State v. Tickle, 238 N.C. 206, 209, 77 S.E.2d 632, 634 (1953) ; however, his right to the care, custody, and control of that illegitimate child was generally subjugated to the mother's paramount right. Jolly v. Queen, 264 N.C. 711, 713–14, 142 S.E.2d 592, 595 (1965).
Today, the state of the law is considerably different. See, e.g., Rosero v. Blake, 357 N.C. 193, 199, 581 S.E.2d 41, 45 (2003). Unwed fathers and mothers are no longer on unequal footing with respect to their parental rights and obligations. See id. at 199–204, 581 S.E.2d at 45–48. Both parents owe their children a duty of support, and the law protects their rights because it presumes that they will fulfill their obligations. In re Hughes, 254 N.C. 434, 436–37, 119 S.E.2d 189, 191 (1961).
The United States Supreme Court, however, has held that not all biological fathers are entitled to the same substantive due process protections. Lehr v. Robertson, 463 U.S. 248, 263–64, 103 S.Ct. 2985, 2994–95, 77 L.Ed.2d 614, 627–28 (1983). Id. at 260, 103 S.Ct. at 2992, 77 L.Ed.2d at 626. The Lehr Court was careful to distinguish the interest of fathers in developed parent-child relationships from the merely "inchoate" interest of fathers in potential parent-child relationships. The Lehr Court described the inchoate interest of a biological father who did not have a developed relationship with his child as follows:
The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the...
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