Opinion
No. COA10-1515
Filed 19 July 2011 This case not for publication
Appeal by petitioners from order entered 21 July 2010 by Judge C. Thomas Edwards in Catawba County District Court. Heard in the Court of Appeals 25 April 2011.
Carolyn Crouch for petitioners. Sigmon, Clark, Mackie, Hutton, Hanvey Farrell, PA, by Matthew J. Middleton, for respondent. Lauren Vaughan, for amicus curiae Catawba County Department of Social Services.
Catawba County No. 09 SP 714.
Nolan and Melissa Nance (petitioners) filed a petition to adopt the minor child in this case, Steven. Steven's biological mother, Carrie Godwin, executed a relinquishment for adoption, specifying petitioners as the adoptive parents. Steven's biological father, Herbert Wiley Sigmon, IV (respondent), moved to request a hearing on whether his consent was required for the adoption to proceed. Petitioners moved the trial court to allow the adoption to proceed without the biological father's consent. After a hearing, the trial court granted respondent's motion in a written order, holding that respondent's consent "shall be necessary to any adoption involving the minor child[.]" Petitioners now appeal. After careful consideration, we vacate the order of the trial court and remand.
All of the minor children involved in this case have been given pseudonyms to protect their identities.
The following facts are undisputed: Steven's biological parents, Godwin and respondent, lived together from November 2008 to August 2009 with their two biological children, Kara and Ella, and Godwin's third daughter by a different father. Although Godwin and respondent had cohabited for more than nine years, they never married. Their relationship "was punctuated by chronic episodes of domestic violence, substance abuse, and `out of relationship' affairs." One of these "out of relationship" affairs occurred approximately nine months before Steven's birth when Godwin had "intercourse with an unknown man at an auto race in Charlotte, N.C."
Godwin learned that she was pregnant in December 2008, but she chose to conceal the pregnancy from respondent, even though they were living together in the same home. When Godwin's weight gain became obvious, she repeatedly denied being pregnant to respondent, explaining that she was just "gaining weight" and "express[ing] outrage when questioned about [her] weight gain." When respondent's mother, Penny Dellinger, asked Godwin if she was pregnant, Godwin again expressed outrage and "feign[ed] offense at people asking about her `gaining weight.'" By May and June 2009, Godwin was telling people that she had been diagnosed with a tumor, which had caused her weight gain, and for which she was receiving treatment.
Godwin sought help at the Catawba County Department of Social Services (DSS), explaining that respondent "would be irate and that domestic violence would likely ensue if he learned that she had been impregnated by a race fan in the Fall of 2008." DSS arranged for out-of-county medical services from 28 May 2009 forward; Godwin was afraid that respondent's relatives might be working at Catawba County Hospital and thereby learn of her pregnancy. On 11 July 2009, Godwin went to a hospital in Iredell County to give birth to Steven. She returned home later that day, without Steven. As the trial court noted, "Although inconceivable at first blush, Carrie Godwin successfully concealed her pregnancy (through `weight gain,' tumor and other subterfuge) and [Steven's] birth from [respondent.]"
Godwin successfully kept her secret until 18 August 2009, when respondent discovered photos of Steven and the relinquishment for adoption that Godwin had signed on 13 July 2009. He found these items in Godwin's car when he searched it for drugs after Godwin "passed out" from a combination of Xanax and wine.
Respondent testified that the child in the photos looked just like Kara and Ella at their births, and he told his mother and stepmother that the baby was his child. As it turned out, respondent was correct; DNA testing confirmed that respondent was Steven's biological father, though the trial court rightly found that this determination was not relevant to the issue of respondent's consent to the adoption.
Respondent's mother called DSS on 19 August 2009 to ask what respondent should do, but DSS, bound by confidentiality, only suggested that respondent seek legal counsel. Coincidentally, respondent was arrested for firearms violations early in the morning on 20 August 2009. Later that same day, petitioners filed their petition to adopt Steven.
On 23 December 2009, after respondent learned the results of Steven's DNA test, he filed an affidavit of paternity with the juvenile clerk of court in Catawba County. On 8 January 2010, respondent filed an affidavit of paternity with the N.C. Department of Health and Human Services in Raleigh. On 11 January 2010, the trial court dismissed a termination of parental rights judgment that had terminated the parental rights of Steven's "unknown father." On 1 March 2010, respondent filed a motion to dismiss the adoption petition and to request a hearing on the necessity of his consent to the adoption. Following a hearing, the trial court entered the order from which petitioners now appeal. The trial court concluded that respondent's consent was required because he had acknowledged his paternity before the adoption petition was filed.
On 30 July 2010, petitioners gave notice of appeal and moved for a stay of execution of the order pending the outcome of the appeal. It appears that Steven has remained in the physical custody of petitioners for the duration of the appeal; DSS maintains legal custody of Steven.
On appeal, petitioners argue that the trial court improperly concluded as a matter of law that respondent "acknowledged his paternity of the minor child within the meaning of N.C. Gen. Stat. 48-3-601 prior to the filing of the Petition to Adopt [Steven]." We disagree.
Adoption proceedings are "heard by the court without a jury." N.C. Gen. Stat. § 48-2-202 (2009). Our scope of review, when the Court plays such a dual role, is to determine whether there was competent evidence to support its findings of fact and whether its conclusions of law were proper in light of such facts. This Court is bound to uphold the trial court's findings of fact if they are supported by competent evidence, even if there is evidence to the contrary. Finally, in reviewing the evidence, we defer to the trial court's determination of witnesses' credibility and the weight to be given their testimony.
In re Adoption of K.A.R., ___ N.C. App. ___, ___, 696 S.E.2d 757, 759-60 (2010) (quotations and citations omitted).
This case is governed by N.C. Gen. Stat. § 48-3-601, which requires the consent of certain individuals before a trial court may grant an adoption petition. It states, in relevant part, that an adoption petition may only be granted if consent to a direct placement adoption has been executed by:
b. Any man who may or may not be the biological father of the minor but who:
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4. Before the earlier of the filing of the petition or the date of a hearing under G.S. 48-2-206, has acknowledged his paternity of the minor and
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II. Has 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(2) (2009) (emphases added). Unlike most of the cases interpreting section 48-3-601(2), which turn on the support prong, this case turns on whether the trial court correctly concluded that respondent acknowledged his paternity of Steven before petitioners filed their adoption petition on 20 August 2009.
The statute contains
no specific requirements as to the manner of acknowledgment. . . . In regard to paternity actions, the term "acknowledgment" generally has been held to mean the recognition of a parental relation, either by written agreement, verbal declarations or statements, by the life, acts, and conduct of the parties, or any other satisfactory evidence that the relation was recognized and admitted. Thus, . . . "acknowledgment" may be made orally or in writing, or may be demonstrated by the conduct of the putative father.
In re Adoption of Byrd, 354 N.C. 188, 194-95, 552 S.E.2d 142, 147 (2001) (quotations and citations omitted).
Here, on the acknowledgment issue, the trial court made multiple findings of fact. Though petitioners appear to question the credibility of the evidence supporting these findings and to argue that other evidence is more persuasive, petitioners do not deny that there is testimony supporting them. It is, however, for the trial court to determine the "witnesses' credibility and the weight to be given their testimony." In re Adoption of Shuler, 162 N.C. App. 328, 331, 590 S.E.2d 458, 460 (2004) (citation omitted).
The trial court found that although respondent and other family members questioned respondent's live-in girlfriend regarding whether she was pregnant, she repeatedly lied about her pregnancy and hid the fact that she had given birth. Respondent did not actually learn that Godwin had given birth to her son until the evening of 18 August 2009, when he discovered pictures of Steven and a relinquishment for adoption form signed by Godwin. On 19 August 2009, he told first his mother and then his stepmother that the baby was his child. Respondent's mother called DSS on 19 August 2009 and "inquir[ed] on her son's behalf as to `what to do.'" On 20 August 2009, petitioners filed their petition for adoption. These findings are supported by competent evience and are, therefore, binding on appeal. Id. at 330, 590 S.E.2d at 460 ("This Court is bound to uphold the trial court's findings of fact if they are supported by competent evidence, even if there is evidence to the contrary.").
The trial court also found that respondent "contacted and thereafter hired a local attorney[,] Gene Sigmon[,] contemporaneously with the discovery of the Relinquishment for Adoption and birth pictures of [Steven]." It is undisputed that this finding of fact is not supported by the evidence. The evidence indicated that respondent contacted and hired an attorney only after the petition was filed and not contemporaneously with discovering the existence of Steven.
The trial court found:
28. That the putative father's declaration to his mother Penny Dellinger on August 19, 2009 that [Steven] was his child; the putative father's declaration to his stepmother Darlene Sigmon on August 19, 2009 that [Steven] was his child; Penny Dellinger's contacting the Catawba County Department of Social Services/Family Builders of Catawba County on August 19, 2009 on [respondent]'s behalf inquiring as to [Steven]; and the putative father's contemporaneously engaging an attorney are sufficient to establish that the putative father "acknowledged" paternity of [Steven] between 11:00 p.m. on August 18, 2009 and August 20, 2009, consistent with Byrd. The relinquishment [ sic] was "unequivocal" and "unconditional" during this brief approximately forty hour period. The Supreme Court and the Court of Appeals have analyzed "acknowledgment" as a function of time — the time the putative father knew of the mother's pregnancy and the filing of the Petition to Adopt. This case involved a condensed time period of less than forty-eight hours.
This finding of fact indicates that the trial court based its determination that respondent acknowledged paternity on respondent's statements to his mother and stepmother, his mother's call to DSS on his behalf, and respondent engaging an attorney. Because there is no competent evidence to support the trial court's finding of fact that respondent contacted an attorney during the pertinent time, the trial court erred by considering that fact in deciding whether respondent had acknowledged paternity.
We hold that the trial court could determine that respondent's two separate declarations to his mother and his stepmother, combined with his mother's call to DSS on his behalf, are sufficient to establish an acknowledgement under N.C. Gen. Stat. § 48-3-601(2). Respondent made verbal declarations or statements that he was the father, telling his mother and stepmother, Steven is "my child." The trial court could find that these statements were unconditional and unequivocal, and that they recognized and admitted his relationship with Steven. See Shuler, 162 N.C. App. at 332, 590 S.E.2d at 461 ("The Supreme Court held in Byrd that a putative father's acknowledgment of paternity may be verbal or written, or demonstrated by the putative father's conduct.").
Although the trial court could have properly concluded that respondent's declaration to his mother and stepmother, in addition to the call to DSS, were sufficient to demonstrate acknowledgment under N.C. Gen. Stat. § 48-3-601(2), we must vacate and remand to the trial court because it also based its decisions on respondent's engagement of an attorney, a "fact" not supported by the evidence. The trial court improperly considered that fact in addition to the proper facts and we cannot conclude from the order that the trial court would have still ruled for respondent without considering that fact. Accordingly, we vacate the order and remand for a determination of whether the declarations and phone call were sufficient, on their own, to constitute an acknowledgment of paternity.
Vacated.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).