In re S.K.G.

• Decision Date: 16 January 2018
• Docket Number: No. COA17-638,COA17-638
• Citation: 808 S.E.2d 926 (Table)
• Court: North Carolina Court of Appeals
• Parties: IN RE: the ADOPTION OF S.K.G., a Minor Child

808 S.E.2d 926 (Table)

IN RE: the ADOPTION OF S.K.G., a Minor Child

No. COA17-638

Court of Appeals of North Carolina.

Filed: January 16, 2018

Herring & Mills, PLLC, Raleigh, by E. Parker Herring, for petitioner-appellees.

Carless Law, by Stacey Carless, for respondent-appellant.

ARROWOOD, Judge.

Respondent, the putative father of S.K.G.¹ , appeals from the interlocutory order of the trial court determining respondent's consent is not necessary to proceed with petitioners' adoption of S.K.G. For the following reasons, we affirm.

I. Background

Prior to the birth of S.K.G., the birth mother (the "mother") and her boyfriend (the "boyfriend") began making preparations for the adoption of S.K.G. Those preparations included meeting with an adoption counselor supervisor (the "counselor") from A Child's Hope, LLC, a licensed child-placing agency (the "Agency"), on 25 May 2016. At that time, the boyfriend executed an affidavit of parentage and a relinquishment of minor for adoption, and the mother selected petitioners from profiles of prospective adoptive parents. The mother then attended a "match meeting" with petitioners on 1 June 2016.

However, upon the birth of S.K.G. on 4 June 2016, it became clear that the boyfriend was not the father of S.K.G. At that time, the mother notified respondent that he may be the father and respondent agreed to provide a DNA sample. On 5 June 2016, the mother proceeded with the adoption process by executing a relinquishment of minor for adoption. Pursuant to the relinquishment, the mother surrendered custody of S.K.G. to the Agency for adoption by petitioners. On 6 June 2016, the mother executed an affidavit of parentage, on which she listed respondent as a possible biological father.

The counselor from the Agency met with respondent at his home on 6 June 2016. At that time, respondent would not consent to the adoption of S.K.G. until the results of the DNA analysis were returned. The subsequent analysis of a DNA sample provided by respondent showed that respondent was the biological father of S.K.G.

Before the analysis of respondent's DNA was completed, petitioners initiated the present action on 14 June 2016 by filing a petition for the adoption of S.K.G. Respondent was served with notice of the adoption proceeding on 1 July 2016. On 15 July 2016, respondent filed a response indicating he did not want to give S.K.G. up for adoption. As a result of respondent's desire to raise S.K.G., on 19 July 2016, an assistant clerk filed an order transferring the matter to the Wake County District Court Division for a determination of whether respondent's consent was necessary to proceed with the adoption. See N.C. Gen. Stat. § 48-2-601(a1) (2015).

The matter was heard in Wake County District Court before the Honorable Ned Mangum on 3 and 4 November 2016. On 23 November 2016, the trial court filed an "Order Finding that the Consent of Biological Parent is Not Necessary." In the order, the trial court found that respondent is not married to the birth mother and has not attempted to marry the birth mother, has not legitimated the child, has not received the child in his home and held the child out as his own, and is not obligated to support the child under a written agreement or court order. See N.C. Gen. Stat. § 48-3-601(2)(b). Consequently, the trial court concluded that, in order for respondent's consent to be necessary, respondent must meet the requirements of N.C. Gen. Stat. § 48-3-601(2)(b)(4). The trial court made findings supporting its determination that respondent failed to meet those requirements and, therefore, concluded that respondent's consent to the adoption of S.K.G. was not required. Respondent filed notice of appeal on 21 December 2016.

II. Appealability

"Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citations omitted). "[I]mmediate appeal is available[, however] from an interlocutory order or judgment which affects a ‘substantial right.’ " Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (citing N.C. Gen. Stat. § 1-277(a) ). "[W]hen an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review ‘sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.’ " Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (quoting N.C. R. App. P., Rule 28(b)(4) ), aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005).

In this case, respondent acknowledges that this is an interlocutory appeal. Nevertheless, respondent contends immediate appellate review is proper because the trial court's order infringes on his substantial right to participate in the adoption proceedings of his child. We agree.

This Court has held that an interlocutory order that eliminates the fundamental right of a parent to make decisions concerning the care, custody, and control of their child affects a substantial right and is therefore immediately appealable. See In re Adoption of Shuler, 162 N.C. App. 328, 330, 590 S.E.2d 458, 460 (2004) (allowing immediate appeal of an order denying a putative father's motion to dismiss an adoption petition); see also In re Adoption of Anderson, 165 N.C. App. 413, 415, 598 S.E.2d 638, 640 (2004) (acknowledging that "this Court and our Supreme Court have addressed the merits of trial court orders concerning a putative father's consent" and allowing immediate review of the trial court's determination that the putative father's consent was not necessary in adoption proceedings), rev'd on other grounds, 360 N.C. 271, 624 S.E.2d 626 (2006). Respondent's rights in this case are no different than those rights at issue in Shuler and Anderson, in which this Court allowed immediate review. Immediate review is also proper in this case to protect respondent's substantial right.

III. Discussion

On appeal, respondent argues the trial court erred in determining his consent was not necessary to the adoption proceedings for S.K.G.

N.C. Gen. Stat. § 48-3-601 governs whose consent to adoption is required. At issue in this case, subsection (2)(b) provides when "[a]ny man who may or may not be the biological father of the minor" must consent to the adoption in a direct placement. The trial court's analysis in this case focused on N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II), as it was clear from the evidence that the other sections requiring consent were not pertinent in this case. N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II) provides that consent is required if, before the filing of the petition for adoption, the man 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. Gen. Stat. § 48-3-601(b)(4)(II) (2015). As stated above, in this case, the trial court issued findings supporting the conclusion that respondent did not meet the requirements of N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II).

On appeal, respondent does not challenge the trial court's findings or the trial court's conclusion that he failed to meet the requirements of N.C. Gen. Stat. § 48-3-601. Instead, respondent argues this Court should recognize limited circumstances in which a putative father should be excused from strictly complying with the requirements of N.C. Gen. Stat. § 48-3-601 in order to protect a putative father's inchoate rights and to satisfy due process. Respondent contends those limited circumstances should include this case, where "a putative father takes prompt action and initiates good faith efforts to take responsibility for his illegitimate child and assert his inchoate rights in an effort to support a relationship with his illegitimate child." We are not persuaded this case should be an exception.

Because respondent's argument concerns his constitutional rights to parent his child and to due process, de novo review is appropriate. See Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) ("[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.").

We are guided in our de novo review by our Supreme Court's decision in In re Adoption of S.D.W., 367 N.C. 386, 758 S.E.2d 374 (2014). In In re Adoption of S.D.W., "[t]he issue presented ... concern[ed] 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." Id. at 387, 758 S.E.2d at 375. In that case, the respondent and the mother were involved in an intimate relationship for a period of months during which they "had sex[ ] 10 to 20 times a week." Id. After the respondent ended the relationship, they occasionally engaged in additional acts of sexual intercourse. Id. at 387, 758 S.E.2d at 376. Without the knowledge of the respondent, the mother gave birth to their child, S.D.W., and relinquished custody of S.D.W. to an adoption agency. Id. at 388, 758 S.E.2d at 376. After a petition for S.D.W.'s adoption was filed, the respondent learned of S.D.W. and sought to intervene in the adoption proceedings and to dismiss the adoption petition. Id. The trial court first denied the respondent's motion to...