In re Adoption of C.H.M.

IN THE SUPREME COURT OF NORTH CAROLINA

No. 297PA16

Filed 11 May 2018

IN THE MATTER OF THE ADOPTION OF C.H.M., a minor child

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 788 S.E.2d 594 (2016), affirming an order

entered on 9 February 2015 by Judge Debra Sasser in District Court, Wake County.

Heard in the Supreme Court on 9 October 2017.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for petitioner-
appellants.

Marshall & Taylor, PLLC, by Travis R. Taylor; and Robert A. Smith for
respondent-appellee.

NEWBY, Justice.

In this case we consider whether the evidence was sufficient as a matter of law

to support the trial court’s order requiring respondent father’s consent before

proceeding with the adoption of minor child C.H.M. To protect the significant

interests of the child, biological parents, and adoptive parents, Chapter 48 of our

General Statutes, governing adoption procedures in North Carolina, establishes

clear, objective tests to determine whose consent is required before a court may grant

an adoption petition. Under section 48-3-601, a putative father may unilaterally

protect his paternal rights if he establishes that he has acknowledged his paternity,
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regularly communicated or attempted to communicate with the biological mother or

minor child, and provided reasonable and consistent payments for the support of the

biological mother, minor, or both, in accordance with his financial means. All of these

measures must be accomplished no later than the filing of the adoption petition. As

a matter of law respondent’s evidence does not establish that he made reasonable and

consistent payments for the support of the biological mother or minor child before the

filing of the adoption petition. Because respondent failed to meet his burden of

proving that he provided such support within the relevant statutory period, we

conclude that the evidence is legally insufficient to support the trial court’s order

requiring respondent’s consent. Accordingly, we reverse the decision of the Court of

Appeals that affirmed the trial court’s order.

From 2009 through 2012, respondent and the biological mother (Wood) had an

“on and off” intimate relationship while they both lived in Illinois. In November 2012,

Wood ended her relationship with respondent to resume a relationship with another

man, whom she married shortly thereafter in January 2013. As respondent was

aware, Wood’s husband worked and resided in North Carolina, though she continued

to stay in Illinois for several months. After Wood’s marriage, respondent and Wood

continued to communicate primarily through Facebook.

On 11 February 2013, Wood informed respondent that she was twenty weeks

pregnant (or halfway through her pregnancy) with his child, but immediately told

respondent to keep everything “as secret as possible.” Upon learning he was the

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child’s father, respondent told Wood he intended to “start setting money aside” for

the child, but provided neither support at that time nor any details of his plan.

In March, respondent accompanied Wood to her first medical appointment and

sonogram. The sonogram confirmed respondent’s understanding of the timing of

Wood’s pregnancy, showing she was between her second and third trimesters. While

respondent expressed his enthusiasm for becoming a father and offered to pay for the

office visit, Wood refused respondent’s offer because her husband’s insurance covered

the appointment cost. Out of concern that people in their small hometown would

suspect something, respondent did not buy any baby items for C.H.M. during the

pregnancy. In their Facebook messages between February and July 2013, respondent

and Wood’s primary method of communication, respondent offered Wood his

emotional support but never stated that he was actually saving money for the child.

Respondent did not give Wood any monetary payments for the minor child’s support,

and Wood rejected respondent’s various offers of financial assistance.

After consistent communication between the two throughout February and

March, on 9 April 2013, Wood falsely told respondent the child might not be his,

contending she had been sexually assaulted around the time of conception.

Thereafter, Wood refused respondent’s requests for a paternity test.

Sometime in June, Wood moved to North Carolina to join her husband, and

near the end of June (around her due date), Wood stopped communicating with

respondent. On 28 June 2013, Wood gave birth to C.H.M. After C.H.M.’s birth, Wood

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contacted an adoption agency through a social worker and thereafter provided her

affidavit that the pregnancy resulted from a sexual assault by an unknown assailant.

Wood and her husband, the legally presumed father, signed relinquishments placing

C.H.M. with the adoption agency. Knowing nothing about the possible involvement

of respondent, the agency and petitioners, who wished to adopt C.H.M., proceeded

with plans to establish a home for the child. On 9 July 2013, petitioners filed the

adoption petition and received eleven-day-old C.H.M. into their home, where the child

has been cared for during the almost five years of her life.

Though he was aware of Wood’s approximate delivery date, respondent did not

attempt to contact Wood via Facebook until the end of July, a month after C.H.M.’s

birth and following the adoption petition’s filing. Several days later, Wood replied

and met respondent during one of her return trips to Illinois, at which point he

observed she was no longer pregnant. Later that evening, Wood told respondent that

she had given birth to the child but that C.H.M. was still at the hospital. Finally, in

September 2013, respondent contacted legal counsel about his potential paternal

rights and the possibility of a paternity test. Wood told respondent in mid-November

about C.H.M.’s adoption, at which time she first informed the adoption agency about

respondent. The adoption agency contacted respondent and requested a paternity

test. On 4 December 2013, respondent took a paternity test, which confirmed he is

the biological father.

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On 23 December 2013, more than five months after the adoption petition had

been filed, respondent filed his formal objection to the adoption. At the hearing on

the matter in April 2014, respondent offered evidence attempting to prove that he

met all the statutory requirements for his consent to be necessary, including that he

had made reasonable and consistent payments for the support of the minor child,

thereby entitling him to object to the adoption. Respondent testified that he had set

aside money for C.H.M. in a special location in his room, a “lockbox,” in which he

placed funds withdrawn from ATM transactions or obtained via “cash back”

purchases from Walmart. Respondent provided bank statements from 2012 and

2013, which showed some sporadic withdrawals and general purchases from

Walmart, though he provided no records showing the purpose of the withdrawals.

Respondent produced no receipts indicating that he received cash back from any

Walmart purchases within the statutorily relevant time frame, providing only two

Walmart receipts from 2014, more than six months after the statutory deadline.

Throughout the hearing, respondent offered no definitive testimony on the timing of

his placement of any funds, before or after the adoption petition’s filing on July 9,

which may have resulted in cash for the lockbox.

The lockbox that respondent produced at the April 2014 hearing then

contained $3260. Respondent admitted that the placement of funds in the lockbox

was sporadic and was not comprised of an “exact amount each time,” as the lockbox

contained “just whatever [he] could afford here and there.” Because respondent did

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not “keep[ ] records [he did not] really know” how much he was placing in the lockbox,

though he thought it was somewhere around $100 to $140 per month. Respondent

did not provide any records indicating the dates of any deposits or the amount of

money in the lockbox before the statutorily relevant date, 9 July 2013. Respondent

stated that he made no specific designation “on paper” or elsewhere regarding the

money’s purpose nor did he confide in anyone about his plan or the lockbox’s

existence. Though respondent subpoenaed Wood, who was then back in Illinois, so

she could testify, Wood did not appear at the hearing, and respondent did not present

any witnesses to confirm that he had placed money in the lockbox before the adoption

petition was filed.

The trial court noted that whether respondent met the statutory requirements

depended on its resolution of what it deemed to be the major factual dispute in the

case, “whether Respondent/Father’s testimony regarding putting money aside for the

minor child and Mrs. Wood is credible.” Based on respondent’s evidence, the trial

court made the following findings:

7(h). During Mrs. Wood’s pregnancy and after the child’s
birth Respondent/Father saved money on a consistent and
regular basis and designated this money for the minor
child. Respondent/Father also testified that he disclosed to
Mrs. Wood that he was saving money for the minor child.
....

13(e)(1). Respondent/Father never provided any actual
financial payments to Mrs. Wood or to the minor child
either prior to the filing of the petition or since the filing of
the petition.

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....

13(e)(9). From the time Mrs. Wood told him that she was
pregnant with his child and continuing through the time of
the instant hearing, Respondent/Father made regular and
consistent payments into his lock box/safe for the support
of the minor child. These payments were made on a
monthly (and sometimes more frequent) basis. While these
funds were not deposited into a bank or other financial
institution, they were deposited into a safe, and these
funds were earmarked for the minor child. No other funds
were deposited into this safe.

13(e)(10). At the time of the instant hearing,
Respondent/Father had $3,260 in the safe.

13(e)(11). . . . Prior to the filing of the petition,
Respondent/Father earned $32,000 a year from [his]
employment. His annual earnings are now around
$35,000. . . .

13(e)(12). Respondent/Father deposited at least
$100 - $140 a month into the safe for the benefit of Ms.
Wood and the child, and on average, paid approximately
$225 per month in support for the minor child.

Ultimately, the trial court concluded that

Respondent/Father’s regular and consistent deposits into
the safe were a reasonable method of providing support for
the minor child and Mrs. Wood. His testimony regarding
monthly deposits into his safe of at least $100 - $140 per
month, from the time he learned of Ms. Wood’s pregnancy
through the instant trial is credible.

Thus, considering evidence of events both before and after the petition filing date of

9 July 2013, the trial court concluded that respondent’s “reasonable method” of saving

met the requirements of section 48-3-601(2)(b)(4)(II). Moreover, the trial court

deemed respondent’s lump sum $3260 presented at trial, his uncorroborated

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testimony, and his production of general bank statements as having created “a legally

sufficient payment record of his efforts to provide support.” As such, the trial court

determined that respondent’s consent was required to proceed with the adoption.

The Court of Appeals affirmed, In re Adoption of C.H.M., ___ N.C. App. ___,

___, 788 S.E.2d 594, 601 (2016), opining that this Court’s opinion in In re Adoption of

Anderson, 360 N.C. 271, 624 S.E.2d 626 (2006), “did not purport to provide an

exhaustive list of ways for a father to [comply with the statute], nor did it explicitly

impose any sort of specific accounting requirements,” In re C.H.M., ___ N.C. App. at

___, 788 S.E.2d at 600. The court also determined that whether respondent had

presented adequate evidence to meet the payment prong of the statute is a factual

finding as opposed to a legal conclusion, making that ruling subject to a deferential

standard of review on appeal. Id. at ___, 788 S.E.2d at 600 (citing In re Adoption of

Shuler, 162 N.C. App. 328, 330-31, 590 S.E.2d 458, 460 (2004)). Thus, the court

concluded that by considering all of respondent’s evidence, in the form of his bank

records, Facebook messages, and uncorroborated testimony about events before and

after the adoption petition’s filing, respondent produced sufficient evidence showing

that he complied with the statutory requirements. Id. at ___, 788 S.E.2d at 600. We

allowed the adoptive parents’ petition for discretionary review to determine whether

the trial court correctly concluded that respondent complied with the support

payment requirement of section 48-3-601.

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Because of a pregnancy’s natural timetable and the need of a newborn to have

a home, the adoption statutes provide a related window of time by which a putative

father must meet clear statutory requirements that establish his paternal rights and

make his consent to the adoption necessary. These statutory requirements

enumerate objective tests to ensure that all parties involved, including the biological

mother, adoptive parents, adoption agency, and the courts, receive adequate notice of

the father’s intent to assert his paternal rights. One requirement is that a putative

father provide reasonable and consistent payments for the support of the biological

mother or minor child before, at the latest, the date the adoption petition is filed.

Thus, by imposing objective criteria to be met by a deadline consistent with the needs

of a newborn child, the statute achieves its overall purpose of providing a final and

uninterrupted placement for the child.

It is undisputed that respondent had the burden of proof to establish his

compliance with the statutory requirements. Even assuming, without deciding, that

respondent’s method of placing funds subjectively intended for the minor child in a

special location in his home constitutes a statutory “payment,” respondent

nonetheless failed to prove that such payments met the other statutory criteria. As

a matter of law, respondent’s evidence was insufficient to establish that he made such

payments before the statutory deadline or that each payment was reasonable and

consistent in accord with his financial means during the statutory time frame.

In a trial without a jury, a trial court’s findings of fact “are conclusive on appeal

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if there is competent evidence to support them,” though “[f]indings not supported by

competent evidence are not conclusive and will be set aside on appeal.” In re Estate

of Skinner, 370 N.C. 126, 139, 804 S.E.2d 449, 457-58 (2017) (alteration in original)

(first quoting Bailey v. State, 348 N.C. 130, 146, 500 S.E.2d 54, 63 (1998); and then

quoting Penland v. Bird Coal Co., 246 N.C. 26, 30, 97 S.E.2d 432, 436 (1957)).

“Conclusions of law drawn by the trial court from its findings of fact are reviewable

de novo on appeal.” In re Foreclosure of Bass, 366 N.C. 464, 467, 738 S.E.2d 173, 175

(2013) (quoting Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 517,

597 S.E.2d 717, 721 (2004)).

“In distinguishing between findings of fact and conclusions of law, ‘[a]s a

general rule, . . . any determination requiring the exercise of judgment or the

application of legal principles is more properly classified a conclusion of law.’ ” State

v. Sparks, 362 N.C. 181, 185, 657 S.E.2d 655, 658 (2008) (alterations in original)

(quoting In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (internal

citations omitted)). “[F]indings of fact [which] are essentially conclusions of law . . .

will be treated as such on appeal.” Sparks, 362 N.C. at 185, 657 S.E.2d at 658 (second

and third alterations in original) (quoting Harris v. Harris, 51 N.C. App. 103, 107,

275 S.E.2d 273, 276, disc. rev. denied, 303 N.C. 180, 280 S.E.2d 452 (1981)).

Moreover, determining whether sufficient evidence supports a judgment is a

conclusion of law and will be reviewed as such. See Styers v. Phillips, 277 N.C. 460,

464, 178 S.E.2d 583, 586 (1971) (“Whether there is enough evidence to support a

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material issue is always a question of law for the court.”); Rountree v. Fountain, 203

N.C. 381, 382, 166 S.E. 329, 330 (1932) (“Whether there is enough evidence to support

a material issue is a matter of law.”).

Chapter 48 of our General Statutes, governing adoption procedures in North

Carolina, seeks

to establish a clear judicial process for adoptions, to
promote the integrity and finality of adoptions, to
encourage prompt, conclusive disposition of adoption
proceedings, and to structure services to adopted children,
biological parents, and adoptive parents that will provide
for the needs and protect the interests of all parties to an
adoption, particularly adopted minors.

N.C.G.S. § 48-1-100(a) (2017). Relevant here, section 48-3-601 requires a man who

“may or may not be the biological father” to consent to the adoption of the child if he

4. Before the . . . filing of the petition . . . has acknowledged
his paternity of the minor and
....

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 . . . .

Id. § 48-3-601(2)(b)(4)(II) (2017) (emphases added). Thus, based on the statutorily

prescribed test, the putative father has the burden of proof to show, by the earlier

date of a prebirth hearing or the adoption petition’s filing, in addition to the other

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statutory requirements, that: (1) he provided payments for the support of the

biological mother, minor child, or both; (2) such payments were reasonable in light of

his financial means; and (3) such payments were made consistently.

A putative father must present competent evidence showing he complied with

each requirement of the statute. If he presents competent evidence that he met some

but not all of the statutory requirements, his consent to the adoption is not required.1

To protect his rights under the objective statutory test, a putative father must fulfill

all statutory requirements no later than the filing of the adoption petition. Id. § 48-

3-601(2)(b)(4) (2017). Any evidence of actions occurring after the adoption petition is

filed is irrelevant, and a trial court errs as a matter of law in considering such

evidence. See In re Adoption of Byrd, 354 N.C. 188, 197-98, 552 S.E.2d 142, 148-49

(2001).

Among the statute’s support requirements, first a putative father must present

evidence that he has made “payments for the support of the biological

mother . . . or . . . the minor, or both.” N.C.G.S. § 48-3-601(2)(b)(4)(II). Thus, a

putative father must show he has provided real, tangible support through an

adequate payment method. See In re Byrd, 354 N.C. at 196, 552 S.E.2d at 148; see

1 This case did not involve a prebirth hearing under section 48-2-206. Given the facts
of this case, this opinion will refer to the relevant deadline as the date the adoption petition
was filed. In a case involving a prebirth hearing, however, the statute recognizes the deadline
as “the earlier of the filing of the petition or the date of a hearing under G.S. 48-2-206.”
N.C.G.S. § 48-3-601(2)(b)(4) (2017). Furthermore, the statutory requirements of
acknowledgement of paternity and visiting or communicating, or attempting to do so, are not
at issue in this appeal.

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also Payment, Black’s Law Dictionary (10th ed. 2014) (defining payment as

“[p]erformance of an obligation by the delivery of money or some other valuable thing

accepted in partial or full discharge of the obligation”). Importantly, a putative father

may unilaterally protect his rights, in that the “legislature’s deliberate use of ‘for’

rather than ‘to’ suggests the payments contemplated by the [support provision] need

not always go directly to the mother. So long as the father makes reasonable and

consistent payments for the support of mother or child, the mother’s refusal to accept

assistance cannot defeat his paternal interest.” In re Anderson, 360 N.C. at 279, 624

S.E.2d at 630.

Second, a putative father must present evidence that, during the relevant time

period, he has made reasonable payments for the support of the biological mother,

minor child, or both. Id. § 48-3-601(2)(b)(4)(II); see Reasonable, Black’s Law

Dictionary (10th ed. 2014) (defining reasonable as “[f]air, proper, or moderate under

the circumstances”). A reasonable payment is calculated based upon the earnings or

financial resources of the putative father before the date of the adoption petition’s

filing.

Third, the statute requires that the putative father demonstrate he has made

consistent payments. N.C.G.S. § 48-3-601(2)(b)(4)(II). To establish that his payments

are consistent under the statute, the putative father must present an objectively

verifiable record showing that he consistently made reasonable payments before the

statutory deadline. See The American Heritage Dictionary 313 (2d coll. ed. 1985)

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(defining “consistent” as “[c]onforming to the same principles or course of action;

uniform”); see also In re Anderson, 360 N.C. at 279, 624 S.E.2d at 631 (noting that, if

the respondent had opened a bank account or established a trust fund, the biological

mother’s “intransigence would not have prevented him from creating a payment

record through regular deposits into the account or trust fund in accordance with his

financial resources” (emphasis added)).

Our cases recognize these express statutory requirements, as well as the need

for a precise payment record to demonstrate that a putative father consistently made

reasonable payments before the statutory deadline. In In re Byrd the respondent

father delivered a $100 money order and baby clothes to a third party for the benefit

of the biological mother and child, but the biological mother did not receive the items

until after the adoption petition had been filed. 354 N.C. at 191, 552 S.E.2d at 145.

The Court recognized that, as evident from the statutory requirements, “[t]he

interests of the child and all other parties are best served by an objective test.” Id. at

198, 552 S.E.2d at 149. Thus, the Court determined that “ ‘support’ is best understood

within the context of the statute as actual, real and tangible support,

and . . . attempts or offers of support do not suffice.” Id. at 196, 552 S.E.2d at 148.

Moreover, noting the importance of the statutorily imposed deadline, the Court

acknowledged that “the statute is clear in its requirements, and respondent must

have satisfied the . . . prerequisites . . . prior to the filing of the adoption petition.”

Id. at 194, 552 S.E.2d at 146. The Court concluded that the respondent need not

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consent to the adoption proceeding because “the money order and clothes sent to [the

biological mother] by respondent . . . arrived too late, as the statute specifically

provides for the relevant time period to end at the filing of the adoption petition.” Id.

at 197, 552 S.E.2d at 149.

In In re Anderson this Court emphasized the importance of a verifiable

payment record to establish that a putative father made reasonable and consistent

payments. There the respondent father presented evidence that he saved money and

made various offers of support, including offers of cash to the expectant mother at

school and an unsuccessful attempt to deliver an envelope containing $100 to her

home. 360 N.C. at 273-74, 624 S.E.2d at 627-28. The respondent also hired an

attorney who sent a letter to the expectant mother explicitly offering the respondent’s

financial support, indicating that the respondent had accumulated money to provide

assistance to the mother and child. Id. at 274, 624 S.E.2d at 628. Despite the

respondent’s efforts, the Court concluded that, without an objectively verifiable,

independent record showing that he had provided real, tangible support payments,

the respondent could not establish that any alleged payments were “reasonable and

consistent [as] required under the [statute].” Id. at 278, 624 S.E.2d at 630. The Court

noted that

[h]ere, respondent could have supplied the requisite
support any number of ways, such as opening a bank
account or establishing a trust fund for the benefit of [the
biological mother] or their child. Had he done so, [the
biological mother’s] intransigence would not have
prevented him from creating a payment record through

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regular deposits into the account or trust fund in
accordance with his financial resources. By doing nothing
more than sporadically offering support to [the biological
mother], respondent left the support prong of
N.C.G.S. § 48-3-601 unsatisfied and himself without
standing to obstruct the adoption of [the minor child].

Id. at 279, 624 S.E.2d at 630-31 (emphasis added) (citing N.C.G.S. § 48-3-

601(2)(b)(4)(II)).

Here respondent’s evidence was insufficient as a matter of law to support the

trial court’s conclusion that respondent complied with the statutory support payment

requirements. Assuming, without deciding, that respondent’s actions constituted a

“payment for the benefit of” the minor child, respondent failed to present any evidence

that could show that, before the statutory deadline of 9 July 2013, he made reasonable

and consistent payments. Respondent even admitted that any alleged deposits were

not “an exact amount,” and the lockbox contained “just whatever [he] could afford

here and there.” Respondent conceded that he did not “keep[ ] records [so he did not]

really know” how much money he placed in the lockbox at any relevant time, instead,

simply estimating the average amount of money he may have placed in the lockbox

during a given month. Thus, respondent’s evidence is insufficient as a matter of law

to demonstrate that any payments were reasonable based on his income during the

relevant statutory time frame.

Moreover, neither respondent’s general bank statements nor the lump sum

presented at trial in April 2014 provides an objectively verifiable record showing that

he consistently made reasonable payments within the statutorily relevant time

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period. Because respondent presented no objectively verifiable, independent record

to demonstrate his compliance with the statute, the trial court erred as a matter of

law in concluding that respondent was required to consent to the adoption.

Significantly, at the hearing, respondent presented comingled financial

evidence, which impaired the trial court’s ability to identify only the statutorily

relevant evidence, namely, that between 11 February 2013, when he was informed of

the pregnancy, and 9 July 2013, when the petition was filed. By considering

irrelevant evidence, for example, the lump sum of $3260 in the lockbox at the time of

the hearing and respondent’s earnings, bank records, and receipts spanning the years

2012 to 2014 as a whole, the trial court erred as a matter of law. The Court of Appeals

compounded this fundamental error by affirming the trial court’s order based on a

deferential standard of review, which assumed that respondent’s compliance with the

statute constituted a purely factual matter, as opposed to a matter of law. That court

likewise overlooked the trial court’s error in failing to differentiate between relevant

and irrelevant evidence in light of the statutory deadline.

The unusual facts of this case cannot overshadow respondent’s failure to

comply with the statutory requirements to establish his legal rights before the

adoption petition was filed. Respondent received undisputed notice that Wood was

twenty weeks pregnant with his child in February 2013 and even accompanied her to

the first medical appointment which confirmed the timing of the pregnancy and likely

date of delivery. Respondent knew Wood was married to another man in a different

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state, likely moving to that state, using her husband’s insurance for medical care,

acting in a deceptive and secretive manner, and denying respondent’s requests for a

paternity test. Given this knowledge, respondent should have recognized the

pressing need to protect his paternal interest and acted accordingly. See Eubanks v.

Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968) (“When a child is born in

wedlock, the law presumes it to be legitimate.”).

Respondent’s evidence here failed to demonstrate through an objectively

verifiable record that he made the statutorily required reasonable and consistent

payments for the support of the minor child before the adoption petition was filed.

Because respondent’s evidence cannot show he complied with the objective statutory

requirements, the adoption should proceed without his consent. Thus, the decision

of the Court of Appeals is reversed and this case is remanded to that court for further

remand to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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Beasley, J., dissenting

Justice BEASLEY dissenting.

The majority erroneously holds that the evidence in the record is insufficient

to support the trial court’s ruling that respondent’s consent was required before

proceeding with the adoption of C.H.M. because of respondent’s supposed failure to

demonstrate he provided reasonable support within the statutory period. See

N.C.G.S. § 48-3-601(2)(b)(4)(II) (2017). This conclusion is in direct contradiction of

the applicable standard of review: that this Court must defer to the trial court’s

findings of fact when those findings are based on competent evidence. Here, the trial

court made voluminous factual findings establishing that respondent provided the

support necessary to protect his parental rights before the filing of the adoption

petition. Because there is sufficient evidence in the record to support the trial court’s

findings of fact and because those findings of fact support its conclusion of law that

respondent provided statutorily adequate support prior to the filing of the petition, I

respectfully dissent.

Before addressing the substance of the majority’s opinion, I provide a more

complete recitation of the facts of this case, as well as a description of the trial court’s

extensive findings, to better characterize respondent’s efforts to protect his parental

rights and the deception the birth mother inflicted on respondent during her

pregnancy and after the birth of C.H.M.

The District Court, Wake County found that respondent, Venson Allen

Westgate, the biological father of a child whom petitioners sought to adopt, had a

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Beasley, J., dissenting

legal right to require that petitioners obtain his consent to the adoption. Petitioners,

Michael and Carolyn Morris, appealed to the Court of Appeals, which unanimously

affirmed the trial court.

Respondent, a resident of Illinois, is the biological father of C.H.M.,1 a child

born in North Carolina on 28 June 2013. Respondent and the mother had an on-

again, off-again relationship in Illinois, before the mother moved to North Carolina.

The mother, who declined to marry respondent, consented to the child’s adoption

through an agency. Respondent did not consent to the adoption. Petitioners, a Wake

County couple, wish to adopt the child. To that end, on 9 July 2013, they filed a

Petition for Adoption of a Minor Child in District Court, Wake County. On 23

December 2013, respondent filed a response stating his objection to the adoption.

According to respondent’s filing and the trial court’s findings, the mother

initially told respondent she had been a victim of sexual assault and that she became

pregnant as a result. Later, around 25 November 2013, the mother finally told

respondent that she had lied about her sexual assault claim. Respondent contended

that, although the biological mother finally agreed to respondent’s request for a DNA

test in November 2013, she told him she had given the child up for adoption without

his knowledge. Further, respondent explained that the mother deliberately omitted

respondent’s name from C.H.M.’s birth certificate, as well as this adoption action,

1 C.H.M. is a pseudonym to protect the identity of the juvenile pursuant to N.C. Rule
of Appellate Procedure 3.1.

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until approximately 24 November 2013. On 27 November 2013, respondent was

served by the adoption agency with a Notice of Pendency of Adoption Proceedings and

informed of his right to file a response to the Petition. Later, a DNA test paid for by

the adoption agency confirmed that respondent is C.H.M.’s biological father.

Respondent’s filing included a motion to dismiss the Petition for Adoption, in

which he contended that his “lack of custody of the minor child was unknowing and

involuntary” and that he “desires to become involved as the parent to the minor

child.” Respondent asked the court to find that his consent is required for the

adoption and dismiss the Petition for Adoption. After respondent filed his response

to the Petition, the matter was transferred from the clerk of court to the district court

to determine if respondent’s consent is necessary.

The trial court heard the matter from 23 to 25 April 2014 and entered an order

in District Court, Wake County on 9 February 2015 finding that respondent’s

“consent is required to proceed with the adoption.” The trial court’s order contained

extensive findings of fact relating to the nature of the relationship between

respondent and the birth mother and respondent’s actions during the pregnancy and

after the birth of C.H.M.

The court’s findings of fact relay that the entire relationship between

respondent and the mother remained sporadic and that the mother effectively

“controlled the relationship and was the only one to initiate break ups.” Respondent

did not learn that the mother had given birth until almost one month after C.H.M.

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was born. At the mother’s request, respondent met with her in Illinois and he then

realized the mother was no longer pregnant. The meeting between respondent and

the mother happened “over two weeks after the adoption petition was filed and almost

one month after [the mother] placed the minor child for adoption.”

The trial court also found that “[o]n November 15, 2013 [the mother] . . . finally

told [respondent] about the [pending] adoption,” at which point he “did everything he

was asked to do in order to get a DNA test.” At no point did the mother tell respondent

that she had placed the child for adoption until she finally agreed to respondent’s

request for a DNA test in late November 2013. Before this time, she made

misrepresentations to respondent that she had been the victim of sexual assault, that

“she was raising the minor child with her husband,” and that “the baby was in the

hospital.” The adoption agency did not learn that respondent might be the biological

father until the mother confessed to the agency and respondent that she had lied

about being sexually assaulted. The agency contacted respondent on 26 November

2013 to advise him of his right to have a paternity test.

In its order, the trial court stated that N.C.G.S. § 48-3-601 sets conditions that,

if met, require a putative father’s consent to an adoption. That statute reads, in

pertinent part, that

a petition to adopt a minor may be granted only if consent
to the adoption has been executed by . . . the biological
father of the minor . . . who . . . [1] [b]efore the . . . filing of
the petition . . . has acknowledged his paternity of the
minor and . . . [2] [h]as provided, in accordance with his

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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 [3] 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.G.S. § 48-3-601(2)(b)(4) (2017).

The trial court found “that the major fact in dispute is whether [respondent’s]

testimony regarding putting money aside for the minor child and [the mother] is

credible.” The court then made findings of fact on the three statutory conditions set

out above, correctly concluding as a matter of law that respondent has met the

conditions of section 48-3-601 and thus, his consent for adoption is required.

Specifically, on the second issue, the court found that respondent “provided, in

accordance with his financial means, reasonable and consistent payments for the

support of the biological mother during or after the term of the 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.” The court found that during the

mother’s “pregnancy and after the child’s birth [respondent] saved money on a

consistent and regular basis and designated this money for the minor child.”

(Emphasis added.) Moreover, respondent told the mother “that he was saving money

for the minor child.” The court reasoned that respondent’s “never [having] provided

any actual financial payments to” the mother or child, was due to the mother’s

continued refusal to accept such payments; in fact, respondent “wanted to buy items

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Beasley, J., dissenting

for the minor child,” but the mother “demanded that he not tell anyone about the

baby.”

In direct contradiction of the majority’s conclusion that there was insufficient

evidence showing respondent fulfilled the support prong before the filing of the

adoption petition, the trial court found that “[f]rom the time [the mother] told him

that she was pregnant with his child and continuing through the time of the instant

hearing, [respondent] made regular and consistent payments into his lock box/safe

for the support of the minor child.” The payments of around $100 to $140 “were made

on a monthly (and sometimes more frequent) basis.” Although respondent did not

deposit the funds in a financial institution, he deposited them in a safe and

“earmarked [them] for the minor child”; moreover, “[n]o other funds were deposited

into this safe.” In assessing the credibility of respondent’s testimony regarding

saving money for the benefit of the mother and C.H.M., the court stated it “gave due

regard to all evidence adduced at trial” and that “[n]one of the money [respondent]

deposited into the safe prior to the filing of the adoption petition was for legal fees or

a DNA test.” The court further found that because the mother refused to accept

respondent’s offers of financial support, his “regular and consistent deposits into the

safe were a reasonable method of providing support for the minor child and [the

mother].”

Finally, the trial court made additional findings of fact that the mother

“intentionally misrepresented to the adoption agency . . . many important facts

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relating to the conception of this child,” including that “[f]or over four months, [she]

intentionally failed to disclose to the agency that [respondent] was a possible father

of the child.” The court found that all these actions by the mother “prevented

[respondent] from having the opportunity to fully exercise his parental rights and

obligations.” Moreover, the court said that “because of [the mother’s] fraudulent and

deceptive conduct, [respondent] was prevented from gathering the information

necessary to file a custody action prior to the filing of the adoption petition.”

On 5 July 2016, the Court of Appeals issued a unanimous opinion affirming

the district court. The panel addressed petitioners’ specific contention that

respondent “failed to satisfy the statutory support requirement imposed by section

48-3-601.” In re Adoption of C.H.M., ___ N.C. App. ___, 788 S.E.2d 594, 597 (2016).

The panel concluded that, giving due deference to the trial court’s determinations of

witness credibility and the weight to be given such testimony, “ample evidence . . .

support[s] the district court’s determination that [respondent] provided reasonable

and consistent payments for the support of C.H.M. before the filing of the adoption

petition.” Id. at ___, 788 S.E.2d at 600. Moreover, the panel concluded that the trial

court’s “determination that [respondent’s] regular and consistent deposits into his

lockbox were reasonable in accordance with his financial means was adequately

supported by competent evidence.” Id. at ___, 788 S.E.2d at 601. For these reasons,

the panel affirmed the district court’s order. Id., at ___, 788 S.E.2d at 601. This Court

granted discretionary review on 16 March 2017.

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The Court of Appeals correctly affirmed the trial court’s ruling that

respondent’s consent was required to adopt C.H.M. “All proceedings under this

Chapter must be heard by the court without a jury.” N.C.G.S. § 48-2-202 (2017).

Therefore, when the trial court acts as fact finder and judge, it must 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.” In re Adoption of Shuler,

162 N.C. App. 328, 330, 590 S.E.2d 458, 460 (2004) (quoting In re Adoption of

Cunningham, 151 N.C. App. 410, 413, 567 S.E.2d 153, 155 (2002) (quoting In re

Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983), cert. denied, 310 N.C. 744,

315 S.E.2d 703 (1984))). “[E]ven if there is evidence to the contrary,” this Court is

bound by the trial court’s findings of fact when they are supported by competent

evidence. Id., at 330, 590 S.E.2d at 460 (citing In re Adoption of Byrd, 137 N.C. App.

623, 529 S.E.2d 465 (2000), aff’d, 354 N.C. 188, 552 S.E.2d 142 (2001)). “Finally, in

reviewing the evidence, we defer to the trial court’s determination of witnesses’

credibility and the weight to be given their testimony.” Id. at 331, 590 S.E.2d at 460

(citing Leak v. Leak, 129 N.C. App. 142, 150, 497 S.E.2d 702, 706, disc. rev.

denied, 348 N.C. 498, 510 S.E.2d 385 (1998)); see State v. Williams, 362 N.C. 628,

632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d

618, 619 (1982)) (“In reviewing a trial judge’s findings of fact, we are ‘strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

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Beasley, J., dissenting

whether those factual findings in turn support the judge’s ultimate conclusions of

law.’ ”); see also Sisk v. Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“[F]indings of fact made by the trial judge are conclusive on appeal

if supported by competent evidence, even if . . . there is evidence to the contrary.”

(first alteration in original) (quoting Tillman v. Commercial Credit Loans, Inc., 362

N.C. 93, 100-01, 655 S.E.2d 362, 369 (2008) (ellipsis in original))).

The majority holds that the trial court erred in its decision by finding that

respondent has met the support prong of N.C.G.S. § 48-3-601. I would hold that the

Court of Appeals was correct to reject petitioners’ argument and uphold the trial

court’s ruling. In order to satisfy the three prongs of the adoption consent statute,

N.C.G.S. § 48-3-601,

[r]espondent must have acknowledged paternity, made
reasonable and consistent support payments for the mother
or child or both in accordance with his financial means, and
regularly communicated or attempted to communicate
with the mother and child. Under the mandate of the
statute, a putative father’s failure to satisfy any of these
requirements before the filing of the adoption petition
would render his consent to the adoption unnecessary.

In re Byrd, 354 N.C. 188, 194, 552 S.E.2d 142, 146 (2001) (emphasis added).2

“The ‘support’ required under N.C.G.S. § 48-3-601(2)(b)(4)(II) is not specifically

defined”; “however, [such] ‘support’ is best understood within the context of the

statute as actual, real and tangible support, and . . . attempts or offers of support do

2 In this case, the only part of the consent statute at issue is the “support” prong.

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not suffice.” Id. at 196, 552 S.E.2d at 148 (emphasis added). For instance, as

recognized by this Court five years later, the following facts in In re Byrd, this Court’s

seminal case on this issue, were insufficient to establish actual, real, and tangible

support:

[T]he paternal grandmother [in In re Byrd] offered
O’Donnell, the expectant mother, a place to live and help
with medical bills and other costs, all of which O’Donnell
declined. On the day O’Donnell gave birth, the putative
father purchased a $100 money order for her; however, the
money order did not reach O’Donnell until after the
petitioners had filed for adoption.

In re Adoption of Anderson, 360 N.C. 271, 276-77, 624 S.E.2d 626, 629 (2006)

(discussing and citing In re Byrd, 354 N.C. at 190-91, 552 S.E.2d at 144-45). This

Court has stated that “attempts or offers of support, made by the putative father or

another on his behalf, are not sufficient for purposes of the statute.” In re Byrd, 354

N.C. at 197, 552 S.E.2d at 148.

Similarly, in In re Adoption of Anderson this Court held that numerous offers

of support by the father were insufficient to show support under the adoption consent

statute. 360 N.C. at 278-79, 624 S.E.2d at 630-31. Furthermore, In re Anderson

presented additional facts showing that the putative father hired an attorney to send

a letter offering financial support to the birth mother. Id. at 279, 624 S.E.2d at 630.

In these circumstances, this Court held that the father in In re Anderson had not

satisfied the support prong. Id. at 278-79, 624 S.E.2d at 630-31. In doing so, the

Court in In re Anderson stated that “our resolution of the instant case does not grant

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biological mothers the power to thwart the rights of putative fathers.” Id. at 279, 624

S.E.2d at 630. Rather, the Court upheld the legislative purpose of requiring “putative

fathers to demonstrate parental responsibility with reasonable and consistent

payments ‘for the support of the biological mother.’ ” Id. at 279, 624 S.E.2d at 630

(quoting N.C.G.S. § 48-3-601(2)(b)(4)(II) (2005)). Going on to explain the meaning of

“for” in the context of the case, the Court concluded that

respondent could have supplied the requisite support any
number of ways, such as opening a bank account or
establishing a trust fund for the benefit of [the mother] or
their child. Had he done so, [the mother’s] intransigence
would not have prevented him from creating a payment
record through regular deposits into the account or trust
fund in accordance with his financial resources.

Id. at 279, 624 S.E.2d at 630-31 (emphasis added).

In contrast, the Court of Appeals upheld a trial court’s finding that the father’s

consent was required in In re Adoption of K.A.R., and this Court denied review. 205

N.C. App. 611, 613, 696 S.E.2d 757, 759 (2010), disc. rev. denied, 365 N.C. 75, 706

S.E.2d 236 (2011). In that case, the birth mother was eighteen years old, and the

father was twenty years old. Id. at 612, 696 S.E.2d at 759. The father continually

expressed a desire to participate in the birth mother’s and child’s lives, even

attending prenatal classes and doctor visits until the birth mother requested that he

not accompany her any longer. Id. at 612-13, 696 S.E.2d at 759. When the birth

mother became pregnant, the father was unemployed and was living with his parents.

Id. at 612-13, 696 S.E.2d at 759. Before the child was born, the father found a job,

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and once he had an income, he purchased items for the baby “such as: a car seat, a

baby crib mattress, and clothing worth over $200.00.” Id. at 613, 696 S.E.2d at 759.

The trial court concluded that the father provided reasonable and consistent support

in accordance with his financial means as required under the statute, and the Court

of Appeals affirmed the trial court’s conclusion. Id. at 613, 696 S.E.2d at 759.

In upholding the trial court’s ruling in In re K.A.R., the Court of Appeals

discussed the significance of the language in N.C.G.S. § 48-3-601(2)(b)(4)(II) that

“obliges putative fathers to demonstrate parental responsibility with reasonable and

consistent payments ‘for the support of the biological mother [ . . . or the support of

the minor, or both, which may include . . . other tangible means of support].’ ” Id. at

617, 696 S.E.2d at 761 (alterations in original) (quoting In re Anderson, 360 N.C. at

273, 624 S.E.2d at 627(quoting N.C.G.S. § 48-3-601(2)(b)(4)(II) (2005))). The Court of

Appeals concluded that the deliberate “use of the word ‘for’ rather than ‘to’ suggests

the legislature wanted to ensure that a putative father, who makes reasonable,

consistent payments of support, could preserve his parental rights even where the

biological mother refuses direct assistance.” Id. at 617, 696 S.E.2d at 761. The Court

of Appeals further explained that, in codifying N.C.G.S. § 48-3-601(2)(b)(4)(II), “the

General Assembly sought ‘to protect the interests and rights of men who have

demonstrated paternal responsibility and to facilitate the adoption process in

situations where a putative father for all intents and purposes has walked away from

his responsibilities to mother and child . . . .’ ” Id. at 615, 696 S.E.2d at 760 (alteration

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in original) (quoting In re Byrd, 354 N.C. at 194, 552 S.E.2d at 146). The statute

strikes a balance between these competing interests by ensuring a putative father

can maintain his parental interest and by preventing a mother from unilaterally

controlling the adoption process, while also allowing for certainty when a child is put

up for adoption. See id. at 615, 696 S.E.2d at 760 (“ ‘[A]n objective test that requires

unconditional acknowledgment and tangible support’ best serves the interests of all

parties as well as the child.”) (alteration in original) (quoting In re Byrd, 354 N.C. at

198, 552 S.E.2d at 149)).

As distinguished from the fathers in In re Byrd and In re Anderson, the Court

of Appeals reasoned that the father in In re K.A.R. “independently provided items of

support for the child, even after his efforts to provide support and assistance directly

to the mother were rebuffed.” Id. at 617, 696 S.E.2d at 761. By obtaining tangible

items, like clothing and a car seat, the father offered reasonable support based on his

financial means, in compliance with N.C.G.S. § 48-3-601(2)(b)(4)(II). The Court of

Appeals explained that this Court in “In re Anderson suggested one way a father

could provide support independently of the mother; the father in the instant case, as

determined by the trial court, has shown another.” Id. at 617, 696 S.E.2d at 762.

Turning to this case, In re K.A.R. helps to support the trial court’s conclusion

that respondent provided the requisite support under N.C.G.S. § 48-3-601(2)(b)(4)(II).

In fact, it is hard to distinguish the present facts from those of In re K.A.R. Unlike

In re Byrd and In re Anderson, in which the respondents only made offers or

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attempted offers, here the trial court found that respondent actually set aside money

for the benefit of C.H.M., similar to the father in In re K.A.R. who actually purchased

items for the baby. While the majority in this case discounts respondent’s evidence

as “insufficient to establish the [respondent] made such payments before the

statutory deadline,” it is clear from the trial court’s findings and this Court’s

precedent that respondent has indeed fulfilled the statutory requirement.

Specifically, the majority finds respondent’s evidence incompetent to show both that

he fulfilled the support requirement before the deadline and that respondent made

reasonable payments as required by N.C.G.S. § 48-3-601(2)(b)(4)(II). The majority is

able to come to this conclusion not because respondent’s evidence was in fact

incompetent or insufficient, but because the majority takes issue with the type of

support respondent provided—namely, saving cash in a lockbox. This is evident from

the majority’s requirement that respondent provide a “precise payment record.” The

majority makes much ado about respondent’s inability to recall the exact amounts

placed in the lockbox, respondent’s lack of records, and respondent’s lack of

knowledge as to specific dates of his deposits. Ultimately, however, as already

addressed earlier in this opinion, all of the majority’s contentions are directly

addressed and disproved by the trial court’s competent findings of fact based on

respondent’s own testimony, bank statements, and cash back withdrawal receipts.

Furthermore, there are no specific requirements in the consent statute relating

to the form that “support” must take. While the father’s actions in In re K.A.R. are

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similar in kind to respondent’s actions of saving money in a lockbox for the benefit of

the child, our case law demonstrates a number of ways to satisfy the support

requirement. While the In re Anderson opinion specifically referred to bank accounts

and trust funds—which surely are methods that would provide a “precise payment

record”—these were only examples of possible ways to provide support. See In re

Anderson, 360 N.C. at 279, 624 S.E.2d at 630-31. Specifically, this Court stated in In

re Anderson that

respondent could have supplied the requisite support any
number of ways, such as opening a bank account or
establishing a trust fund for the benefit of [the mother] or
their child. Had he done so, [the mother’s] intransigence
would not have prevented him from creating a payment
record through regular deposits into the account or trust
fund in accordance with his financial resources.

Id. at 279, 624 S.E.2d at 630-31 (emphasis added). Therefore, the statute

contemplates that some putative fathers, because of factors such as limited financial

means, type of employment, and lack of access to banks, will not necessarily have the

ability to establish bank accounts or trust funds.

Moreover, the plain language of N.C.G.S. § 48-3-601(2)(b)(4)(II) requires only

that the putative father “[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.” No language

indicates what form a “payment” must take to satisfy the support prong, what method

of recordkeeping (if any) must be used, or if certain forms of payment are required

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over others. Rather, this Court has determined that to satisfy the support prong, the

putative father must provide “actual, real and tangible support, and . . . attempts or

offers of support do not suffice.” In re Byrd, 354 N.C. at 196, 552 S.E.2d at 148. As

this Court has not defined the form that “actual, real and tangible support” must

take, the assessment of what qualifies as actual support is a question for the trial

court to determine when considering all the evidence. It is not the business of this

Court to reweigh the factual evidence in the record, and that is exactly what the

majority has done here.

Consequently, based on the specific evidence presented in this case, I would

hold that the act of saving money in a lockbox, just as purchasing baby items in In re

K.A.R., is a valid method of providing support to the birth mother or child. In

addition, unlike what the majority contends, the actions by respondent here, as well

as those of the respondent in In re K.A.R., establish reasonable support

commensurate with their financial means as contemplated by N.C.G.S. § 48-3-

601(2)(b)(4)(II). Possibly, the only distinguishing characteristic between the father’s

actions in In re K.A.R. and respondent’s actions here is that the purchased baby items

are more readily targeted to directly benefit the child, whereas cash in a lockbox could

be used for a myriad of purposes. Yet, despite the differing characteristics between

the contributions made on behalf of the child, applying the proper standard of

appellate review, this Court must defer to the trial court’s findings of fact when those

facts are based on competent evidence. Here, the trial court made extensive findings

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of fact,3 ultimately finding that respondent made reasonable and consistent payments

based on his financial means and earmarked the savings for the benefit of the child.4

Finally, this Court has been careful to stress that a birth mother should not be

able to completely control the adoption process. See In re Byrd, 354 N.C. at 196, 552

S.E.2d at 148 (“We also believe that the General Assembly did not intend to place the

mother in total control of the adoption to the exclusion of any inherent rights of the

biological father.”); see also In re Anderson, 360 N.C. at 279, 624 S.E.2d at 630 (“So

long as the father makes reasonable and consistent payments for the support of

mother or child, the mother’s refusal to accept assistance cannot defeat his paternal

interest.”). This Court’s decisions in In re Byrd and In re Anderson recognize that

North Carolina’s adoption consent statute is flexible enough to allow for a putative

father to maintain his parental rights despite the birth mother’s intransigence. In

the present case, the birth mother essentially attempted to “thwart” respondent’s

efforts to provide support. As the trial court found in this case, respondent provided

adequate support commensurate with his financial means. The majority’s decision—

reading into the statute additional requirements of record-keeping or formal

accounting—is simply not supported by statute or case law. Accordingly, I would

3 The trial court relied on, inter alia, respondent’s own testimony, copies of
conversations via social media between respondent and the birth mother, bank statements
and receipts, and testimony from the adoption agency’s personnel.
4 The trial court noted that its findings were limited by the mother’s failure to respond

to a subpoena to appear at the hearing. The court noted that the mother was then living out
of state and was not subject to the court’s power to enforce the subpoena.

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affirm the decision of the Court of Appeals, which affirmed the trial court’s order

requiring the father’s consent for C.H.M.’s adoption.

Justices HUDSON and MORGAN join in this dissenting opinion.

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