812 S.E.2d 911
N.C. Ct. App.2018Background
- Eric was born Sept. 15, 2013; neither respondent (putative father) nor petitioner (step‑father) listed on birth certificate. Petitioner and Eric's mother (Heather) married Oct. 28, 2013.
- Respondent and Heather had a brief relationship in late 2012–early 2013; Respondent had limited post‑birth contact and sporadic visits through May 2015.
- Heather filed a petition to terminate Respondent's parental rights Nov. 16, 2015; paternity testing ordered and later showed 99.99% probability Respondent was biological father; Heather voluntarily dismissed the termination petition before Respondent testified.
- Petitioner filed for adoption July 8, 2016; Respondent filed a response Aug. 26, 2016, alleging lack of subject‑matter jurisdiction among other defenses and later appealed the trial court’s order that his consent was not required.
- The trial court found no judicial paternity determination had been made, found Respondent failed to provide support or regularly visit, and concluded Respondent’s consent to the adoption was not required.
- On appeal, Respondent argued the adoption should have been abated under the prior pending action doctrine; the Court of Appeals dismissed the appeal for failure to preserve that argument and because abatement is not a jurisdictional defect.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should have abated the adoption under the prior pending action doctrine | Respondent: adoption should be abated until custody/termination proceedings conclude | Petitioner: no abatement requested below; trial court had power to proceed; prior‑pending is procedural, not jurisdictional | Dismissed appeal for failure to preserve argument; abatement is procedural, not jurisdictional |
| Whether the trial court had subject‑matter jurisdiction over the adoption | Respondent: lack of jurisdiction because paternity/custody matter pending | Petitioner: adoption statute and trial court procedures support jurisdiction | Court: interlocutory order reviewable; but jurisdictional defect was not properly argued below; appeal dismissed |
| Whether Respondent’s consent was required for adoption | Respondent: as putative father, consent required absent proper adjudication or abatement | Petitioner: consent not required due to Respondent’s lack of marriage, failure to support or hold out child, and infrequent contact | Trial court found statutory factors excused consent; appellate review foreclosed by preservation failure |
| Preservation of appellate issues | Respondent: raised jurisdiction in answer but did not move to abate at hearing | Petitioner: asserts Respondent failed to obtain a ruling or file abatement motion | Court: issues not preserved under N.C. R. App. P. 10; appellant cannot raise them first on appeal |
Key Cases Cited
- In re S.D.W., 228 N.C. App. 151 (2013) (interlocutory orders excusing a putative father’s consent to adoption affect substantial rights and are reviewable)
- Johns v. Welker, 228 N.C. App. 177 (2013) (prior pending action doctrine does not deprive trial court of jurisdiction; court may hold related matters in abeyance to avoid conflict)
- Reece v. Reece, 231 N.C. 321 (1949) (prior pending action doctrine is not jurisdictional)
- Houghton v. Harris, 243 N.C. 92 (1955) (prior pending action doctrine is procedural and prevents multiplicity of actions)
- Bethea v. Bethea, 43 N.C. App. 372 (1979) (failure to move for abatement waives prior pending action defense)