In re C.H.M.

• Citation: 871 S.E.2d 136
• Decision Date: 01 March 2022
• Docket Number: COA21-196
• Parties: In the MATTER OF the ADOPTION OF: C.H.M., a minor child.
• Court: Court of Appeal of North Carolina (US)

871 S.E.2d 136

In the MATTER OF the ADOPTION OF: C.H.M., a minor child.

No. COA21-196

Court of Appeals of North Carolina.

Filed March 1, 2022

Manning, Fulton & Skinner, P.A., Raleigh, by Michael S. Harrell, for petitioners-appellees/cross-appellants.

Jonathan McGirt, for respondent-appellant/cross-appellee.

TYSON, Judge.

¶ 1 Venson Westgate ("Respondent") appeals the trial court's order denying his motion to dismiss the adoption petition. We affirm. Carolyn and Michael Morris’ ("Petitioners") cross-appeal is dismissed as moot.

I. Background

¶ 2 The factual background of this case is set forth in three previous appellate opinions: In re C.H.M. , 245 N.C. App. 566, 782 S.E.2d 582, 2016 WL 611926 (2016) (unpublished) (affirming the dismissal of Petitioners’ petition for termination of Respondent's parental rights to his minor daughter, C.H.M.); In re Adoption of C.H.M. , 248 N.C. App. 179, 189, 788 S.E.2d 594, 600 (2016), (affirming trial court's order concluding Respondent's consent is required to proceed with the adoption of his minor daughter, C.H.M.), rev'd , 371 N.C. 22, 23, 812 S.E.2d 804, 806 (2018) (holding "respondent failed to meet his burden of proving that he provided such support within the relevant statutory period, we conclude that the evidence is legally insufficient to support the trial court's order requiring respondent's consent").

¶ 3 The Supreme Court of North Carolina's 4-3 decision, reversing this Court's unanimous opinion that Respondent had complied with N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II) did not address Respondent's due process arguments. The Supreme Court remanded the cause to this Court for further remand to the trial court "for proceedings consistent with [the] opinion." Adoption of C.H.M. , 371 N.C. at 34, 812 S.E.2d at 812.

¶ 4 The trial court issued its order upon remand on 15 November 2018. The order states, "[as] a result of the North Carolina Supreme Court's holding that ‘[R]espondent's evidence was insufficient as a matter of law to support the trial court's conclusion that respondent [had] complied with the statutory support payment requirements’ [the court's] finding is no longer supported by the evidence."

¶ 5 The trial court deferred and set for hearing Respondent's motion to intervene, motions to dismiss the adoption petitions pursuant to N.C. Gen. Stat. § 48-2-604 and asserting federal and state constitutional due process provisions. Prior to this hearing being held, both parties entered notices of appeal.

¶ 6 The parties most recently appeared before this Court in January 2020, wherein this Court issued an order dismissing the parties’ interlocutory appeals and directing the cause be remanded to the district court for hearing and resolution of the remaining issues and motions before the court.

¶ 7 Following a hearing on 10 June 2020, the trial court issued its order ("August 2020 Order") on 13 August 2020, denying Respondent's motion in the cause and motion to dismiss the adoption. The trial court concluded Respondent had a limited right to intervene in the action for the court to determine whether N.C. Gen. Stat. § 48 was unconstitutional as applied to him. The trial court found and concluded Respondent "does not qualify for the class of protected fathers whose liberty interests are such that he would enjoy a constitutionally paramount protected interest to C.H.M.’s custody."

¶ 8 The facts underlying Respondent's and Petitioners’ dispute over C.H.M. are well-documented and not in dispute. The parties presently have two additional cases pending in Wake County district court involving their eight-year-dispute over C.H.M. The painful saga beginning with the birth mother's dishonesty regarding Respondent's paternity of C.H.M. need not be repeated.

II. Jurisdiction

¶ 9 "A party to an adoption proceeding may appeal a judgment or order entered by a judge of district court by giving notice of appeal as provided in G.S. 1-279.1." N.C. Gen. Stat. § 48-2-607(b) (2021). Respondent timely appealed. He asserts his appeal of right is made pursuant to N.C. Gen. Stat. §§ 1-277(a), 1-278 and 7A-27(b)(3)(a) & (c) (2021).

¶ 10 Petitioners ask this Court to dismiss Respondent's appeal. Respondent acknowledges his appeal may be interlocutory. The August 2020 Order transfers jurisdiction of the matter to the Wake County Clerk of Court, Division of Special Proceedings with instructions that the adoption proceeding be resolved in accordance with the mandate of the North Carolina Supreme Court, this Court, and the subsequent orders of the trial court.

¶ 11 Respondent asserts a substantial right will be lost if this appeal is not immediately heard. He shows, and Petitioners do not dispute, the August 2020 Order resolves all remaining motions and issues. Our appellate courts have recognized that orders concerning whether a parent's consent to an adoption is required implicate a substantial right and are immediately appealable. In re Adoption of Baby Boy , 233 N.C. App. 493, 498, 757 S.E.2d 343, 346 (2014).

¶ 12 Respondent asserts "[if] the adoption proceeds to a final decree of adoption, any parental rights that [he] may have had would be terminated. Moreover, the adoption statute severely limits the avenues for challenging a final decree of adoption through appeal." In re S.D.W. , 228 N.C. App. 151, 155, 745 S.E.2d 38, 42 (2013) (citations omitted), rev'd on other grounds sub nom., In re Adoption of S.D.W. , 367 N.C. 386, 758 S.E.2d 374 (2014). We agree and address the merits of Respondent's appeal. Petitioners’ cross appeal of an unrelated interlocutory order, subsequently stayed by our Supreme Court, is dismissed by separate order.

III. Issue

¶ 13 Whether the trial court erred by denying Respondent's motion to dismiss the adoption petition.

IV. Analysis

¶ 14 Respondent argues the trial court erred by concluding his conduct excluded him from the constitutionally protected class of fathers, whose liberty interests would be violated if the adoption petition were allowed. We reject Petitioners’ arguments that Respondent had not asserted or preserved this argument for appeal. The record and pleadings clearly show: (1) Respondent repeatedly asserted this argument; (2) it was not addressed by our Supreme Court; and, (3) was not ripe for our review upon remand until ruled upon by the trial court upon remand in its August 2020 Order.

¶ 15 Respondent asserts applying Chapter 48 to preclude his consent to the adoption of C.H.M. violates his due process rights. His challenge is an as-applied challenge to N.C. Gen. Stat. § 48-3-601 (2021). An as-applied challenge represents a party's "protest against how a statute was applied in the particular context in which [the party] acted or proposed to act." Town of Beech Mountain v. Genesis Wildlife Sanctuary, Inc. , 247 N.C. App. 444, 460, 786 S.E.2d 335, 347 (2016) (citation omitted), aff'd, 369 N.C. 722, 799 S.E.2d 611 (2017).

A. Fundamental Parental Rights

¶ 16 The Supreme Court of the United States "recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L. Ed. 2d 49, 57 (2000).

This parental liberty interest is perhaps the oldest of the fundamental liberty interests the United States Supreme Court has recognized. This interest includes the right of parents to establish a home and to direct the upbringing and education of their children. Indeed, the protection of the family unit is guaranteed not only by the Due Process Clause, but also by the Equal Protection Clause of the Fourteenth Amendment and possibly by the Ninth Amendment.

Owenby v. Young , 357 N.C. 142, 144–45, 579 S.E.2d 264, 266 (2003) (citations and internal quotation marks omitted).

B. Trial Court's Findings of Fact

¶ 17 Relevant to Respondent's present appeal, the trial court found:

8. Respondent had no ability to visit C.H.M. nor have access to her except at the discretion of the Petitioners and/or Agency.

9. Respondent made no request to the adoption agency (Hereinafter the "Agency") or the Petitioners for any additional visits with C.H.M. in 2014 after the March 2014 visit. During this time period he continued to purchase items for the child but did not send those items to the agency or Petitioners for the remainder of that year.

10. Respondent did not request from either the Agency or the Petitioners any information as to C.H.M.s well-being or development for the remainder of 2014.

11. Respondent has never had an email address for the Petitioners. Respondent was first provided the cell phone number for Petitioner [ ] at or around the time the parties had mediation in October 2016.

12. Petitioners continued to reside for the remainder of 2014 at the address they resided at when the Respondent and his family visited C.H.M. in March, 2014. (The Petitioners still reside at this address.)

13. Respondent continued to save money for C.H.M. in his "lockbox" during the remainder of 2014.

14. There is a dispute in the evidence and evidence proffer before this Court as to whether Respondent through counsel offered the existing funds in his lockbox of over $3260 to Petitioners’ counsel at the conclusion of the hearing in April, 2014.

The Court does not find this dispute to be material.

15. After the hearing in April 2014 and until January 30, 2015 Respondent paid noting for C.H.M.’s support.

...

23. Respondent after being served with the petition to terminate his parental rights wrote a letter to A Child's Hope dated January 30, 2015. That letter stated Respondent had saved a total of approximately $5,270 for C.H.M. and enclosed a cashier's check to the agency for $2,635 for C.H.M.’s benefit. Respondent stated he desired to send the remaining funds for C.H.M.’s benefit, and he subsequently did so. That letter requested pictures of C.H.M. and information about her developmental milestones and reiterated that he continued to want custody of C.H.M.

¶ 18 Respondent does not challenge these findings as...