In re S.D.W.

• Decision Date: 02 July 2013
• Docket Number: No. COA12–1362.,COA12–1362.
• Citation: 745 S.E.2d 38
• Parties: In re S.D.W.
• Court: North Carolina Court of Appeals

745 S.E.2d 38

In re S.D.W.

No. COA12–1362.

Court of Appeals of North Carolina.

July 2, 2013.

Appeal by appellant-father from Orders entered 17 February 2012 by Judge Elizabeth T. Trosch in District Court, Mecklenburg County. Heard in the Court of Appeals 8 May 2013.

Thurman, Wilson, Boutwell & Galvin, P.A., Charlotte, by W. David Thurman, for petitioner-appellee.

Jonathan McGirt, for appellant-father Gregory Johns.

STROUD, Judge.

Gregory Johns (“father”) appeals from orders entered 17 February 2012 denying his motion to intervene in the adoption proceedings concerning his biological son, denying his motion to dismiss the adoption petition, and granting the adoptive parents' (“petitioners”) motion for summary judgment on the issue of whether father's consent was required for the adoption.

For the following reasons, we hold that N.C. Gen.Stat. § 48–2–601 may be unconstitutional as applied to father if he can show that he promptly attempted to grasp the opportunity of fatherhood once he discovered his son's existence, but the statute foreclosed that opportunity. We therefore reverse the trial court's orders granting petitioners' motion for summary judgment and denying his motion to intervene. Because there are factual issues that this Court cannot resolve, we remand this case to the trial court with instructions to conduct a hearing on that issue and enter an order with appropriate findings of fact and conclusions of law.

I. Background and Procedural History

Father dated the mother (“mother”) of his biological son from approximately May 2009 to February 2010. During that time, they engaged in sexual intercourse. They broke up around February 2010, but continued engaging in sexual intercourse for several weeks. After about March 2010, mother and father stopped communicating with each other until around 26 November 2010. There is no evidence that either mother or father attempted to communicate with each other during this time period. After they stopped dating, father continued to live and work at the same place at which he had previously lived and worked and his contact information, including his phone number, remained the same.

Mother gave birth to a baby boy (“Sean”) ¹ on 10 October 2010 in New Hanover County. Mother relinquished custody of Sean to Christian Adoption Services (CAS), an adoption agency in Mecklenburg County. The adoption agency interviewed mother and inquired about Sean's biological father. Mother told the agency that she did not know the address or phone number of father and had no way to contact him. She misidentified Sean's father as “Gregory Thomas James,” rather than “Johns.” The agency searched for “Gregory James,” but did not find him.

CAS found a married Mecklenburg County couple interested in adopting Sean. They filed a petition to adopt Sean on 2 November 2010. Along with the adoption petition, the adoptive parents filed an Affidavit of Parentage, which again stated the biological father's name as Gregory James. Because the true identity of Sean's biological father was unknown to CAS and because they could not find “Gregory James,” the agency filed a petition to terminate the father's rights on 16 November 2010 and stayed the adoption proceeding.

Around 20 April 2011, father learned through an acquaintance that mother may have been pregnant and had a baby that she placed for adoption. Father called mother around 25 April 2011 to ask her whether she had been pregnant. After initially denying the pregnancy, mother admitted that she had given birth to a baby and placed him for adoption. Mother gave father the information with which to contact CAS.

After mother called CAS to inform them of father's true identity and father got in contact with CAS, petitioners voluntarily dismissed the petition to terminate the parental rights of “Gregory James” on 2 May 2011 and removed the stay from the adoption proceeding on 5 May.

On 11 May 2011, notice of the adoption proceedings was served on Kyle Johns, Gregory Johns' brother. On 24 May 2011, father, pro se, responded to the notice and sent letters to the Mecklenburg County Clerk of Superior Court and to counsel for petitioners inquiring what he had to do to acquire custody, requesting a DNA test to prove that Sean was his biological son, and asking that once the DNA test showed him to be the biological father the adoption proceeding be terminated.

On 9 June 2011, counsel for petitioners noted their intent to take father's deposition. On 23 June 2011, father, still pro se, was deposed by counsel for petitioners. In his deposition, father described his educational and employment background, his relationship with mother, and how he came to discover Sean's existence. On 24 June 2011, counsel for petitioners sent father the results of his DNA test, which showed that there was a 99.99% probability that he was Sean's biological father.

On 15 August 2011, father, now represented by counsel, moved to intervene, moved for disclosure of the adoption file, moved to dismiss the petition for adoption, petitioned to legitimate the child, and moved for custody.

Petitioners responded to father's motions and moved for summary judgment on the issue of whether his consent was required for the adoption to proceed. The District Court held a hearing on 24 October 2011 where it considered father's motion to intervene and motion for disclosure of the adoption file. On 10 November 2011, the trial court entered an order denying father's motion to intervene and allowing his motion for disclosure of the adoption file, with some limitations.²

The District Court then held a hearing on the remaining motions on 6 January 2012.³ At the hearing, the court heard argument from father and petitioners on the motion for summary judgment, granted the motion, and then heard testimony from father relating to his motion to dismiss. The trial court also denied father's motion to dismiss the adoption petition. On 17 February 2012, the trial court entered one order amending its 10 November order and a second order making findings of fact and conclusions of law about the motions considered at the January hearing. In those orders, the court denied father's motion to intervene and granted petitioner's motion for summary judgment on the basis that father's consent was not required for the adoption to proceed. Father filed timely written notice of appeal from these orders on 14 March 2012.

II. Appellate Jurisdiction

As father acknowledges, this appeal is from an order that is not a final judgment since it does “not dispose of the case, but instead leave[s] it for further action by the trial court in order to settle and determine the entire controversy.” Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citation and quotation marks omitted). Therefore, it is interlocutory. Id. Normally, interlocutory orders are not immediately appealable. Id. Nonetheless, an interlocutory order may be immediately appealed if it affects a substantial right. Id. “Essentially a two-part test has developed [to determine whether an interlocutory order affects a substantial right]—the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [the appellant] if not corrected before appeal from final judgment.” Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citation omitted).

As will be described below, the order deprives father of the right to participate in the adoption proceeding concerning his biological child by concluding that his consent is not required for the adoption to proceed. Such a right is substantial. If the adoption proceeds to a final decree of adoption, any parental rights that father may have had would be terminated. N.C. Gen.Stat. § 48–1–106(c) (2011). Moreover, the adoption statute severely limits the avenues for challenging a final decree of adoption through appeal. N.C. Gen.Stat. § 48–2–607 (2011). Therefore, deprivation of the right to consent in this context could work irreparable damage to father's rights. Indeed, petitioners do not contest this issue. We conclude that the order at issue here affects a substantial right and is immediately appealable. Therefore, we have jurisdiction to consider the present appeal.

III. Standard of Review

Father appeals from orders denying a motion to dismiss, denying a motion to intervene, and granting a motion for summary judgment. The issue on appeal as to all of the motions is whether the trial court properly concluded that father's consent was not required under the adoption statutes and under the state or federal constitutions and whether the trial court properly interpreted the statutes at issue. Thus, the appeal from each order presents solely a question of law, which we review de novo. City of Wilmington v. Hill, 189 N.C.App. 173, 176, 657 S.E.2d 670, 672 (2008).

IV. Intervention

Adoption is a special proceeding before the clerk of superior court. N.C. Gen.Stat. § 48–2–100(a) (2011). Special proceedings are governed by the Rules of Civil Procedure “except as otherwise provided.” N.C. Gen.Stat. § 1–393 (2011). Thus, where the adoption statutes provide a procedure different than that set out in the Rules of Civil Procedure, the adoption statutes govern. SeeN.C. Gen.Stat. § 1A–1, Rule 1 (2011) (stating that the Rules of Civil Procedure apply “except when a differing procedure is prescribed by statute.”).

Intervention of right under N.C. Gen.Stat. § 1A–1, Rule 24, is permitted

(1) When a statute confers an unconditional right to intervene; or (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

N.C. Gen.Stat. § 1A–1, Rule 24(a) (2011). Once an intervenor...