In Re Byrd Ex Rel. Adoption of Byrd

Judge Hunter

dissenting.

I respectfully dissent. As applied to the present case, N.C. Gen. Stat. § 48-3-601 provides in pertinent part that:

[A] petition to adopt a minor may be granted only if consent to the adoption has been executed by:
*633b. Any man who may or may not be the biological father of the minor but who:
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
I. Is obligated to support the minor under written agreement or by court order;
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 (1999) (emphasis added). The two issues before this Court are respondent’s acknowledgment and support under this statute.

According to Carpenter v. Tony E. Hawley Contractors, 53 N.C. App. 715, 281 S.E.2d 783, disc. review denied, 304 N.C. 587, 289 S.E.2d 564 (1981),

the word “acknowledged” is not a term of art meaning requiring a formal declaration before an authorized official. 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.

Id. at 720, 281 S.E.2d at 786.1 believe that the respondent’s actions in the present case indicate that he acknowledged the unborn child as required by the statute. It is undisputed that from the time O’Donnell learned she was pregnant in September 1997 until the phone call in November 1997, respondent acknowledged that he was the father of *634the unborn child. The trial court found that respondent met with O’Donnell to discuss issues surrounding the pregnancy during, this time, and, in October 1997, respondent and his mother met with O’Donnell and offered her housing during her pregnancy, which was refused. Therefore, respondent unquestionably met the acknowledgment requirement up until November 1997. Additionally, after the November 1997 phone call, respondent never denied parentage. Rather, he continued to offer support to O’Donnell and the child, and he acknowledged in court documents that the child may or may not be his and requested custody and offered support of the child if he were found to be the biological father. The trial court made the following findings of fact pertinent to this issue:

16. On or around November 14, 1997, O’Donnell was given a different due date for her child which was approximately two weeks earlier than the due date originally given. This new due date could have meant that O’Donnell’s former boyfriend and not the respondent was the biological father of O’Donnell’s child. In a telephone conversation on November 14, 1997, O’Donnell informed the respondent about the changed due date. The parties’ evidence on this specific phone call differed in that the respondent claimed that O’Donnell told him that he was “not” the father of O’Donnell’s baby while petitioners’ evidence indicates that O’Donnell told the respondent that he “may not” be the father of her baby. The evidence is insufficient for either side for the court to make a specific finding of fact concerning the exact content of this telephone call.
22. On January 21, 1998, O’Donnell filed a petition for pre-birth determination of right of consent in Chowan County and served the same upon the respondent. The respondent was also served with a notice of petition which included in part:
You have been identified as one of the possible biological fathers. It is the intention of the biological mother to place the child up for adoption. It is her belief that your consent to the adoption is not required. If you believe your consent to the adoption of this child is required pursuant to G.S. 48-3-601, you must notify the court in writing no later than fifteen (15) days from the date you received this notice that you believe your consent is required.

*635The respondent was served with a copy of this petition and notice, and on February 2, 1998, he timely filed a response which stated in part:

. . . [T]he respondent contends that his consent to adopt is required and believes that he possibly is the biological father of the child. That the petitioner repeatedly told the respondent that he was the biological father of the said child. That the respondent is desirous of having custody of the said child placed with him if it is determined that he is the biological father.

The respondent’s response went on to state:

That the defendant is desirous of assisting with the medical expenses incurred regarding the birth of the child, as well as being interested in paying child support for the care and maintenance of the child, should he be determined to be the father.
23. In February, 1998, the respondent telephoned O’Donnell three times .... Each time, the respondent inquired as to the progress of O’Donnell’s pregnancy and O’Donnell’s well-being. Each time, O’Donnell requested that the respondent sign the papers to allow the adoption to go forward, which the respondent refused to do. O’Donnell told the respondent that she would not notify him when the child was bom, as she would be “busy.”

On the same day petitioners filed the request for adoption of the child, respondent filed a complaint asking that parentage be determined, and if he was the biological father, that he be granted custody and that the support obligations of O’Donnell and respondent be determined by the court.

The majority holds that respondent did not acknowledge that he was the child’s father, and makes no differentiation as to his actions before and after November 1997. As I have stated, it is undisputed that respondent acknowledged the child as his until the 14 November 1997 phone call by O’Donnell that questioned his parentage. To require a man, who has been informed by the biological mother that he “may or may not be” the biological father, to acknowledge that he is the father, not only goes against a plain reading of N.C. Gen. Stat. *636§ 48-3-601, but also goes against logic. Therefore, I believe that when the biological mother has informed a putative father that he may or may not be the father of her child, he is only required under N.C. Gen. Stat. § 48-3-601 to acknowledge just that, i. e., that he may or may not be the father. Competent evidence indicates that the respondent in the present case did so. Accordingly, I believe that respondent met the acknowledgment requirement of this statute both before and after November 1997.

As to the issue of having provided support of the biological mother and/or child during or after the term of pregnancy, I believe the following findings of fact by the trial court, which were not cited by the majority, are instructive:

10. After O’Donnell and respondent’s relationship ceased in early June, the respondent had no employment until early November, 1997 as noted below, other than continuing to work around his grandparents’ house approximately three days a week and making $80-$90 per week. The respondent was involved in an automobile accident in August, 1997 which incapacitated him approximately one month. . . .
13. In September and October, 1997 O’Donnell went to see the respondent approximately once a week at the respondent’s grandparents’ home in Pea Ridge to discuss various issues with him, including issues concerning O’Donnell’s pregnancy. On one occasion, O’Donnell spent the night at respondent’s grandparents’ residence. . . .
17. In late November — early December 1997 . . . O’Donnell contacted respondent and requested that he consent to the private placement adoption. Respondent refused to consent to the adoption and advised O’Donnell that he still wanted to raise the child.
24. On March 4, 1998, O’Donnell gave birth to Rachel. The respondent through his mother found out about the birth, and he went to Chowan County Hospital once on March 4 and once on March 5 while O’Donnell was in the hospital to see O’Donnell and/or Rachel, but he was informed by the *637hospital administrators that he was not on O’Donnell’s approved list for visitors ....
25. On the date of Rachel’s birth, the respondent purchased a $100.00 money order and some baby clothing and gave the same to his mother to forward to O’Donnell. This money order and clothing was not mailed to O’Donnell until March 9, 1998.

Based on these findings, and those cited by the majority, I believe that competent evidence indicates that the respondent provided support to O’Donnell in accordance with his financial means. O’Donnell stayed at respondent’s grandparents’ home on at least one occasion. As the majority recognizes, respondent and his mother offered the biological mother housing throughout her pregnancy, and she refused. The majority points out that respondent had $50.00 left over after covering his living expenses from November to December 1997 and infers that this money should have been paid to O’Donnell; however, the trial court found that O’Donnell acknowledged that respondent was working to “save” money for the child. While the court did not specifically find that respondent saved money for the child, I believe that his working to save money for the child qualifies as providing support for the unborn child in light of his financial means. Such action would not be illogical, or in violation of N.C. Gen. Stat. § 48-3-601, when the putative father has been told that he may very well not be the biological father of the unborn child. Apparently, the respondent had saved money for the child’s support, as the trial court found that respondent purchased a $100.00 money order for the child on the day of its birth. From December 1997 to the time of the child’s birth, respondent only made $90.00 a week doing work around his grandparents’ residence. While the court found that he had no room or board expenses, it did not find nor conclude that respondent had extra money with which to support O’Donnell. The trial court found that respondent and O’Donnell had a volatile relationship after O’Donnell asked respondent to give his consent to the unborn child’s adoption. O’Donnell barely acknowledged respondent during this period. On the day the child was born, respondent was not even allowed to see the child or O’Donnell. The day after the birth, respondent filed suit requesting that parentage be determined, and asked for custody if he were the father, in which case he also indicated his intent to support the child.

I believe that competent evidence indicates that respondent’s support was provided in accordance with his financial means. *638Respondent offered housing to O’Donnell during the pregnancy, which was refused, worked to save money for the child, and purchased a $100.00 money order for the child on the day of the child’s birth. The fact that the mother refused support does not negate the fact that respondent provided it, by the only means within his power, in accordance with the statute. Therefore, I would hold that respondent met the support requirements under N.C. Gen. Stat. § 48-3-601.

Our General Assembly has specifically declared its legislative policy as to the purpose of the adoption statutes. N.C. Gen. Stat; § 48-1-100 states in pertinent part:

(1) The primary purpose of this Chapter is to advance the welfare of minors by (i) protecting minors from unnecessary separation from their original parents, ....

N.C. Gen. Stat. § 48-1-100(b)(1) (1999). In light of this being the first primary purpose listed in N.C. Gen. Stat. § 48-1-100, our courts should be extremely cautious in determining that the consent of a biological father to the adoption of his child is not required. Accordingly, I believe that respondent’s consent to the adoption of the minor child is necessary, and would reverse the order of the trial court.