*1 96 IN THE COURT OF APPEALS v.
CHILD’S DOE HOPE, [178N.C. App. (2006)] A CHILD’S Petitioner PERNELL JOHN INGRAM AND ANY HOPE, LLC, DOE, UNKNOWN PARENT OR POSSIBLE PARENT,
No. COA05-679 (Filed 2006) 20 June Rights— illegitimate Termination of Parental child —failure to parenthood show assumed burdens of by denying petitioner The trial erred private licensed agency’s to terminate father’s parental light respondent’s showing evidence failure requirements 7B-llll(a)(5), to meet the N.C.G.S. because: (1) similarity permit- between the statute ting termination the statute requiring the of a consent father of child bom out wedlock to legislature its reflect intent of the not to make an dependent illegitimate puta- child’sfuture welfare on whether the tive father knows of the child’s existence at the time the filed; despite (2) respondent may is the fact that have acted consistently acknowledging paternity, the trial court failed statutory to make fact to indicate met the requirements demonstrating assumed some of the bur- parenthood dens of attempting paternity, such as to establish legitimizing providing support or for the biological infant. Judge dissenting. Jackson by petitioner
Appeal from order entered 3 December 2004 County Judge Morgan Michael R. Wake District Court. Heard in the Appeals May Court
Herring Finkelstein, PLLC, by & Bobby McBennett Mills D. Worley, petitioner-appellant. Mills Anna E. respondent-appellee. No brief filed for MARTIN, Judge. Chief appeals denying
Petitioner from the trial court’s order its respondent’s to terminate rights to the minor child who is subject of this For action. the reasons stated below we reverse order trial court. LLC v. DOE *2 August 2002, petitioner, duly On 19 private adoption a licensed agency, parental filed a pursuant to terminate to N.C.G.S. 7B-1103. to Attached the was the affidavit the biological mother, July who averred on 17 2002, that she surrendered custody petitioner the minor child to an adoptive placement. for She that identity stated she did not know the of the minor child’s father and identity that she could not determine his or whereabouts. explained She party Chapel that she was at a Hill, North Carolina on first heavily weekend October where she drank and “may drugged.” have been According affidavit, to her when she regained consciousness she had a friend drive her home morning party after the she realized that she had been the victim of a rape. police She report, however, did not file a because she went to hospital to be out” showering “checked after and there was no physical rape. evidence of the She further attested that she did not people gave know the who party, she attended with someone she just met, “Tiffany” had and she used the name rather than own. upon affidavit, petitioner published Based notification in the Chapel newspaper starting September Hill on notifying any 8 parent unknown of the termination action and of the birth minor child.
Respondent is the father of the minor child. He testi- began fied that relationship he a romantic biological mother, with the years, whom he August had known for and that when she informed him of her he moved back college home from began jobs working seeking employment. odd full time He explained that he and baby mother had discussed they planned marry. names respondent to When informed the bio- logical ready get married, mother that he was not to relationship their couple stopped deteriorated and seeing February one another of 2002. stated that he made his desire care for the child clear the biological approached mother. When she him about relinquishing child, respondent his testified baby informed her that if she did want the he would for care it. response reportedly The mother’s was that he “would be person last get this child.” Around 3 June baby.” mother informed that “she had no more He was unclear as to whether the mother meant she a had mis- carriage abortion, inquired his but mother and was assured that she had a miscarriage. OF APPEALS IN THE COURT v. DOE January 2003, terminate unknown fathers’
On 8 respond- amended to include parental rights to the minor child was was the April 2003, paternity test showed In ent. Respondent moved to dismiss on child. biological father of minor in November 2003. After the July 2003 and the case was heard following pertinent court entered an order hearing, trial findings of fact: Respondent father was not aware further finds that until in fact and survived said birth the minor child was born
that January 8, peti- along when a summons with a he was served appear to terminate hearing on Petition tion *3 misrepresen- was the result of rights and that said unawareness part biological regarding mother the where- on the tations misrepresentations made to biological of father and abouts the on biological miscarriage alleged the father as to 3, 2002; June that when notified of the
15. The court further finds Respondent the by biological the mother in October Sampson to from school and moved back home father withdrew child; County, care for the minor North Carolina to biological told further never 16. The court finds [the mother] Respondent alleged to an might that he not be the father due the party in October nor did she rape while at occurred may Respondent have the as other men father inform the sex; through consensual Respondent father continued
19. The further finds the court parent maintaining prepare the minor child consistent to to by phone person mother contact progress pregnancy, leaving the school to return regarding the employment, child, maintaining gaining to care for the home caring attending prenatal appointment, [the pre- two children so that she could attend other other mother]’s appointments, regarding the engaging in conversations natal larger transport the naming purchasing car mother, stepfather residing home of his and sis- child while in the Sampson County; ter located Respondent during this time further finds that the
20. court raising had, and, family the minor substantial [sic] IN THE OF APPEALS COURT HOPE, LLC DOE providing respect child and all necessities with care of the child; minor family
21. The court further that said willing- finds provide part Respondent ness to care on the was corrobo- testimony Respondent’s rated . . . and mother Respondent’s aunt . . . and Melissa Williams of the Johnston County Department Services; of Social [respondent] That informed the mother that if she willing was not care for the minor child after it was bom, willing provide primary that he would be care for it. [The response to the father was that mother]’s Respondent person child; would be last to care for the 23. The court further finds that during preg- duration of the nancy, pre- would assert that she was [the mother] disposed ato due to miscarriage proven the stress as during prior pregnancies;
24. That the court 3, 2002, further finds that on or about June informed that she miscarried child”; child and that was “no there 25. That Respondent, upon further finds that the get- ting miscarriage this information to a as on June attempted verify the truthfulness allegations a mis- *4 child; carriage of the minor
30. That the court finds further that the father lo- cated, Internet, newspaper printed via the a article in the June Observer, 2002 News & baby which stated that unidentified was Hospital during abandoned the Johnston Memorial the mother], same weekend that claimed to have had [the a miscarriage;
31. That on in based the information found the June arti- Respondent cle the to was led believe that the child referenced in the article was fact child biological mother], born to [the miscarriage that was no there and that child the was alive rather deceased; than
32. That court Respondent’s the finds that the .. aunt. contacted Hospital Johnston Memorial to if determine [the APPEALS IN THE COURT OF LLC DOE miscarriage, but effort or had a the gave birth to the child mother] confidentiality part on to concerns unsuccessful due was hospital; Respondent biolog- to went That court finds that the 33. [the inquire to as to whether doctor ical [the mother]’s due miscarriage had a but was unsuccessful gave birth or mother] to doctor; part of confidentiality on the concerns Respondent finds went Johnston 34. That the court that the inquire child County Department of Social Services about the agency’s and to obtain the in the June 2002 article referenced may help in a child that have born locating [the mother]; Respondent expressed finds That the court that
35. parent County Department a desire to of Social Services Johnston provide care; locate it so that could the minor child Respondent agreed to That the finds that the take 36. court article, June paternity test the child referenced on were that the results of test but child; be the father of that determined not to County finds the Johnston of So- 37. That court [sic] Respond- time of the initial contact cial Services at the the child in the knew he could not be father of ent identity 4, 2002, the racial of that child June article because of immediately him due to inform of such confiden- but could tiality concerns; Respondent’s report That the finds that based on
38. court mother], the missing possibly born [the County Department Social initiated an Services Johnston investigation investigation possible violation into [sic] law; Melissa Williamsof the That the finds that Ms. Johnston County Department Social Services made contact with [the *5 biological time during which mother] [the mother] Respondent during having intercourse denied sexual Respondent knowledge had conception, denied that the time of already adopted, child been pregnancy, asserted that the had her only, the child could have conceived asserted further that IN THE OF APPEALS COURT LLC v. DOE
. rape, during having and denied that she was consensual sex during conception, stating others the time moreover that family no one in her knowledge pregnancy; had of the 40. during entirety That the court pregnancy finds that concealed her from entire [the mother] family due embarrassment that be having would caused from by a father; third child third different
42. that, mother], That the court finds further in a [the during meeting by Williams, the time the investigation Ms. met Respondent County in gym inquired Johnston local whether agency he contacted the social services about again and she miscarried; asserted that the child was 43. That Ms. adoption agency Williams made contact with the in California and the during Petitioner which time Ms. Williams informed them that she had located the father of the child bom to [the mother]. That the agency California asked Ms. Williams identity Respondent
about the racial and when told that he agency was African American the informed Ms. Williamsthat [the the agency had told that the father of the mother] Hispanic American; child’s father was rather than African [sic] Williams, confidentiality 45. That the court Ms. finds that due to Respondent was to tell the she unable had child, located miscarried, that his child was not the location relating or anything of the child or pending proceeding parental rights; terminate the father’s Respondent party 46. That court finds that became only way Williams, by subpoena the action after Ms. from the presented testimony Petitioner, about the results of the investi- gation identity Respondent, testimony and that said presented 2003; to the court December 48. That paternity finds that the took a test April that he establishing is the father of the child; minor *6 THE COURT OF APPEALS
102 IN HOPE, v. DOE
CHILD’S App. (2006)] N.C. 96 [178 custody filed a That finds that the has 49. the court County care, September gain cus- action in Johnston in 2003 tody child; and control of the minor Respondent filed an action to That finds that the the court the child legitimate minor child after he learned that miscarried; fact born and by prove clear, petitioner court “failed to
The trial concluded convincing grounds and evidence that to terminate the cogent, pursuant exist parental rights of the father N.C.G.S. any parental and and all rela- 7B-1111” ordered § “[t]hat ... tionship father and the minor be main- of parent and tained, obligations to the child including parent parental arising relationship.” form child to [sic] appeals. Petitioner dispositive appeal is the trial
The issue whether by light the termination of uncontroverted denying erred respondent’s to meet of showing evidence failure 7B-llll(a)(5). § N.C.G.S. parental rights proceed a stages
There are two
to termination
by
7B-1109,
adjudication,
disposition,
N.C.G.S.
ing:
governed
§
733,
by
Brim,
App.
741,
7B-1110. In re
139 N.C.
governed
§
N.C.G.S.
adjudication
petitioner
367,
stage,
(2000). During
535 S.E.2d
371
by
proof
clear, cogent,
convincing
burden
evidence
has the
statutory grounds
or
set forth in section 7B-1111
that one more of
(2005).
finding
N.C.
“A
7B-1109(e)-(f)
exists.
Gen. Stat.
one
§
7B-1111],
supported
compe
if
grounds enumerated
section
[in
evidence,
J.L.K.,
In re
165
tent
is sufficient
termination.”
311,
391,
denied, 359
App.
387,
598 S.E.2d
disc. review
N.C.
N.C.
making
After
(2004).
parental rights pursuant 7B-1111(a)(5). N.C.G.S. finding parental rights upon that: authorizes court to terminate LLC DOE juvenile The father of a bom not, prior out of wedlock has of a rights: motion to terminate *7 a. paternity judicially by Established or affidavit which has registry by filed in a central Department maintained of Health and Services; provided, Human inquire the court shall of Department of Health and Human Services as to whether such an affidavit incorporate has been so filed shall into the Department’s case record the reply; certified or juvenile b. Legitimated pursuant provisions of G.S. petition 49-10 specific or filed a purpose; juvenile c. Legitimated marriage to the mother of the juvenile; or
d. Provided substantial financial or consistent care respect juvenile and mother. N.C. Gen. Stat. 7B-1111(a)(5) (2005) § (emphasis added). previously
Our Court
rejected
has
argument
considered and
putative
that a
father “was
steps
unable to take the
set out N.C.
Gen. Stat. 7B-1111(a)(5)
§
because he did not know of’ the existence
T.L.B.,
of the child.
App. 298,
In re
167
302-03,
249,
N.C.
605 S.E.2d
(2004);
Adoption
252
see
Clark,
also In re
App. 1, 8,
95 N.C.
of
835,
S.E.2d
839 (1989) (noting
predecessor
that the
statute to section
7B-llll(a)(5),
predecessor
and the
to N.C.G.S. 48-3-601(2)(b),
con
requirements
tain
the same
to defeat a
for termination or to
putative
render a
father’s consent unnecessary), rev’d on other
grounds,
327 N.C.
393 S.E.2d
(1990).
similarity
requirements between the statute permitting the termination of a
putative
rights
father’s
and thé
requiring
statute
the consent of a
father of a child bom
adoption
out of wedlock to its
reflect the inten
legislature
tion of the
not to make an “illegitimate child’s future wel
dependent
putative
fare
on whether or not the
father knows of the
child’s existence at the time the
Clark,
App.
is filed.”
95 N.C.
unless has assumed putative Supreme father our Court noted that reasonably any virtually expected be did all that could requirements, in its man, [nevertheless, . . . the statute is clear prerequisites three must have satisfied the filing petition, in order for stated, required. statute, . . . Under the mandate of the his consent be satisfy any these father’s failure to adoption petition would render his before the unnecessary. consent to 194, 552 354 N.C. at S.E.2d at day filed the child was born.
In
after
adop
“in
that a mother should not be
total control of
stating
After
father”,
tion to the exclusion of
inherent
*8
despite
putative
acknowledgment of
the Court held that
the
consistently provide
paternity,
tangible
“he
not
the kind of
his
did
petition.
support required
the
to the
under
statute”
Supreme
196-97,
Id. at
These the statute establish line cases and they have fathers to demonstrate that parenthood, enabling of of thus the trial assumed some the burdens rights. their This to make clear factual determinations about paternal rights need to between reflects the balance tensions N.C. at at 147 of the child. See S.E.2d apparent (“We legislature’s desire for fatherhood to be recognize definitively link. We rec- acknowledged regardless also importance parental responsibility early as as fixing ognize the possible child.”). for the benefit of the unique sympathetic portrayal
While
are
we
dissent’s
findings
case,
trial court failed to make
of fact
indi-
facts of this
respondent
statutory requirements demonstrating
met the
cate
parenthood.
upon respond-
Based
assumed some of the burdens
attempts
relationship
testimony recounting
maintain a
ent’s
expressed
caring
and his
interest
for the
LLC DOE
App.-96 (2006)]
findings
regarding
the trial court made numerous
of fact
relationship
respondent
mother,
between the
and the
misrepresentations
surrounding
about both the events
the minor
conception
However, despite
“miscarriage.”
child’s
and her
its
lengthy fact-finding,
the trial court made no
of fact as to
respondent attempted
whether
substantial
for the
biological mother. The trial
finding
court’s
of fact number 19 illus-
respondent acknowledged paternity,
trates that
but it does not
provided
demonstrate that he
“substantial financial
or con-
respect
juvenile
sistent care with
Nor are the find-
mother.”
family support
equivalent
ings that
has substantial
respondent provided
finding
mother with substan-
support. Byrd,
practi-
(“recognizing]
tial
There is no doubt that the mother thwarted lying pregnancy; ent’s about the status of the how- ever, suspicious, requires when became the statute steps protect 7B-1111(a)(5) he undertake the set forth section legal rights. Respondent attempted offered no evidence that he paternity, provide support legitimate establish the child or for the bio- addition, the infant. In contains affi- logical mother or record photocopies Courtsearch.com, indicating davits and of searches from mother, S.G.R., indexed in the no records names respondent, procedure legitimation which would exist had a Department filed. It also contains a letter from the of Health paternity had certifying Human Services that no affidavit of been filed *9 Registry. in its Central respondent may consistently
Despite the fact that have acted require acknowledging paternity, with the statute is clear in its Byrd, ments, as are Andersen and and the trial court made no find respondent, prior filing petition, a) the termination ings that to the juvenile paternity judicially, b) legitimated established either mother, provided through judicial process c) marriage d) or to the or support mother with substantial financial or consistent explicit requirements care. The statute is in its and there was no evi respondent requirements. that met those See 354 N.C. at dence (noting at 149 that of the statute 552 S.E.2d “[a]ll putative adoption to be must be met” for a father’s consent to fact, required). In there was uncontradicted evidence took none of the actions enumerated section v. DOE Thus, support 7B-1111(a)(5). the trial court’s do not its con prove by law, petitioner clear, cogent, “failed to and clusion convincing grounds parental rights evidence that to terminate the pursuant 7B-1111,” father exist to N.C.G.S. and denying we must therefore reverse the order the trial court petition entry case for remand this order consistent opinion. unnecessary any Our decision renders discussion of petitioner’s remaining assignments of error.
Reversed.
Judge LEVINSONconcurs. separate opinion.
Judge JACKSONdissents in a JACKSON,Judge dissenting. below, respectfully
For the reasons stated I dissent from the majority’s clear, cogent, convincing conclusion that evidence support respondent’s parental exists to rights, the termination of thus the trial court’s denial of the must be reversed. by majority, Statutes, As noted North Carolina General sec- provides 7B-llll(a)(5) putative parental tion may that a father’s specific prior be terminated when he has failed to take actions filing parental rights. to terminate his Prior to the petition, putative father must have done one of the following: 1) paternity judicially; juvenile 2) legitimate establish judicial process through marriage mother, either or 3)or mother with substantial financial petitioner seeking consistent care. The to terminate the satisfy heightened clear, must standard of cogent, and convincing finding evidence to show that facts exist to required that the father has failed do one of the actions petition. filing of the case, respondent purposefully
In the instant
deceived
believing
mother into
that she had miscarried his
was,
fact,
baby. Only
physically
there
no
when he was
served
to terminate his
rights to the child did he
actually
have
reason to believe that the
had
given
point
time,
birth to a child. At this
*10
he still did not know that
was,
fact,
Thus, respondent
the child
his.
legiti-
could not have
LLC v. DOE
sought
paternity
mated the child or
establish
the child
petition,
as the
was the first
actual notice
extensively
major-
he had of the existence of the child as noted
in the
ity’s
facts, supra.
recitation of the
majority
holdings
Adoption
relies on the
of In re
(2001)
Adoption Anderson,
354 N.C.
360 N.C.
Respondent’s relationship mother continued couple get married, until the time when the decided not which point he remained contact with the mother. He testified that he multiple cared for the mother’s children on occasions so prenatal that she could attend doctor’s visits. When the mother specifically relinquish asked he adamantly refused, stating Only that he would care for the child. when the mother told that she had miscarried stop did he contacting her. had no reason to doubt the statements, mother’s as her him statements remained consistent to family year. throughout Moreover, and his the remainder of the fairly steps veracity statements, took dramatic to ensure the of those contacting County Department such as the Johnston of Social learning Services after of the abandonment of a child the same week- miscarried, end the mother informed him she had agreeing paternity thereafter to take a test.to conclude whether or not that child was his. *11 IN THE COURT OF APPEALS' HOPE,
CHILD’S
LLC v. DOE
App.
(2006)]
N.C.
[178
Byrd
Anderson,
Supreme
In both
our
Court
held that bio-
logical
permitted
adoption
mother should not be
to control the
process
complete
Byrd
of the biological
exclusion
father. In
the Court held that “fundamental fairness dictates that a man should
produces
not be held to a standard that
illogical
unreasonable or
Assembly
. . .
place
results.
General
did not intend to
[T]he
mother in total control of the
to the exclusion of
inher-
rights
ent
biological
father.”
I with the conclusion that failed comply of North Carolina General Stat utes, 7B-1111(a)(5)(d), provided by section statute, however. As putative may compliance by father achieve providing the mother with substantial financial or consistent care. N.C. Gen. Stat. 7B-1111(a)(5)(d). As noted finding fact, trial court in its respondent maintained by phone person
consistent contact and in regarding progress pregnancy, mother leaving school to child, return home to care for gaining maintaining employment, prenatal attending appointment, caring for [her] prenatal other two children so that she could attend other appointments, engaging regarding conversations naming child, and purchasing larger transport car to the child[.] Moreover, during he informed the provide willing primary that he would be care for the child if she unwilling response proposal to do so. Her to this was that he person would be the last to care for the child. I believe that these satisfy statutory requirement activities are sufficient to that a LLC v. DOE putative father either financial or consistent care clearly mother. The trial court’s also show that even after the father had been informed of the miscar- riage of his child, hampered by continued to search for that prevent mother’s concerted efforts to him from learn- ing of the child’s confidentiality existence and our state’s laws. *12 Only after the engaged in a determined campaign of deception, did cease his efforts to locate his child and provide majority the mother with argue, does, care. To as the respondent should have filed an legitimate illusory affidavit to beyond reasonably may seems the bounds expect of what we man. note, too,
I interpretation that our of North Carolina General Statutes, appears section 7B-1111(a)(5)(d) to be a matter of first impression interpretation phrase as to the “consistent care.” Byrd upheld The Court in puta and Anderson the termination of the parental rights tive fathers’ through our statutes found in Chapter 48 of the North Byrd Carolina General Statutes. In both Anderson, the Court held that due to the fathers’ failure to provide financial biological mothers, to the the fathers’ con adoptions sent required pursuant was not to North Carolina Statutes, General case, petitioner section 48-3-601. In the instant sought respondent’s parental to terminate provisions under the Chapter of the Juvenile Code found 7B of North Carolina General Statutes, not our state’s statutes.
Respondent provided regular and consistent care to the mother throughout pregnancy, intentionally her and was deceived about the petitioner birth of the child. In the instant I case believe has failed to satisfy clear, cogent, the standard of convincing evidence of respondent’s failure to consistent during care to the mother pregnancy. paternity could not have established legitimated petition, the child as he was lead falsely to believe the child had died. I believe the instant case is dis- tinguishable following Byrd from the line of cases Anderson, as purposefully deceived and.was not made aware of the existence of peti- his child until the time he was served with the Therefore, tion. I would affirm the trial court’s denial of the respondent’s parental to terminate rights.