In Re Adoption of Shuler

590 S.E.2d 458, 162 N.C. App. 328, 2004 N.C. App. LEXIS 115
CourtCourt of Appeals of North Carolina
DecidedJanuary 20, 2004
DocketCOA02-1607
StatusPublished
Cited by18 cases

This text of 590 S.E.2d 458 (In Re Adoption of Shuler) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Adoption of Shuler, 590 S.E.2d 458, 162 N.C. App. 328, 2004 N.C. App. LEXIS 115 (N.C. Ct. App. 2004).

Opinion

GEER, Judge.

Respondent James Burgess appeals the trial court’s order denying his motion to dismiss the petition of Christopher and Talenna Tipton for adoption of Mr. Burgess’ son, David Lee Shuler, and finding that Mr. Burgess’ consent was not required for the adoption to proceed. Because competent evidence in the record supports a finding that Mr. Burgess failed to unconditionally acknowledge paternity prior to the filing of the adoption petition, we affirm.

Mr. Burgess, the child’s biological father, and Judith Shuler Nelson, the biological mother, entered into an intimate relationship sometime prior to February 2001. Ms. Nelson learned she was pregnant in March 2001. Although Ms. Nelson was married to another man, she was not living with her husband at that point.

The evidence is disputed as to whether Mr. Burgess and Ms. Nelson lived together during the first part of her pregnancy. They broke off their relationship in June 2001 and Mr. Burgess had little or no contact with Ms. Nelson until shortly before their child was bom on 30 October 2001.

Mr. Burgess was present at David’s birth, but he told nurses and a hospital worker completing the birth certificate that he was only “a friend” of Ms. Nelson. The word “refused” appears in the space on David’s birth certificate where the father’s name is supposed to be listed. When Ms. Nelson was asked who had “refused,” she testified that it was Mr. Burgess “because when they filled the birth certificate out, they wanted to know ... if he was the father about putting his name on it.”

On 14 November 2001, Ms. Nelson gave David to Christopher and Talenna Tipton. Ms. Tipton is Ms. Nelson’s cousin. Ms. Nelson informed Mr. Burgess that she had given their child away, although the evidence is disputed as to what precisely she told him.

*330 The Tiptons filed a petition for adoption in Buncombe County on 13 December 2001. On 28 February 2002, Mr. Burgess filed an answer and motion to dismiss the adoption petition based on his refusal to consent to the adoption.

On 30 April 2002, the court held a hearing on Mr. Burgess’ motion to dismiss at which the parties offered evidence on the issue whether Mr. Burgess’ consent was required under N.C. Gen. Stat. § 48-3-601 (2003). The trial court found that Mr. Burgess had failed to acknowledge paternity prior to the filing of the petition for adoption, had failed to prove that he provided reasonable and consistent support within his financial means before the filing of the petition, and had failed to establish that he regularly visited or communicated, or attempted to visit or communicate, with Ms. Nelson or David during her pregnancy and after David’s birth. Based on these findings, the court denied Mr. Burgess’ motion to dismiss and ordered that “the Petition for Adoption may proceed and be finalized.” Mr. Burgess appeals from that order.

Contrary to Rule 28 of the Rules of Appellate Procedure, Mr. Burgess has not included in his brief a statement of the grounds for appellate review. While under N.C. Gen. Stat. § 48-2-607(b) (2003) (allowing parties to adoption proceedings to appeal by filing notice pursuant to N.C. Gen. Stat. § 1-279.1), Mr. Burgess has the right to appeal the order denying his motion to dismiss, this appeal is from an interlocutory order. Because, however, the decision below eliminates “the fundamental right” of Mr. Burgess, as a parent, “to make decisions concerning the care, custody, and control of [his] children,” Owenby v. Young, 357 N.C. 142, 144, 579 S.E.2d 264, 266 (2003), the order affects a substantial right and Mr. Burgess’ appeal from that order is properly before this Court pursuant to N.C. Gen. Stat. § l-277(a) (2003).

Adoption proceedings are heard by the court without a jury. N.C. Gen. Stat. § 48-2-202 (2003). “ ‘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.’ ” In re Adoption of Cunningham, 151 N.C. App. 410, 412-13, 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)). 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. In re *331 Adoption of Byrd, 137 N.C. App. 623, 529 S.E.2d 465 (2000), aff’d on other grounds, 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. Leak v. Leak, 129 N.C. App. 142,150, 497 S.E.2d 702, 706, disc. review denied, 348 N.C. 498, 510 S.E.2d 385 (1998).

We note that Mr. Burgess specifically assigned error only to the trial court’s findings of fact 2, 4, and 7. Although Mr. Burgess does include an assignment of error stating that “[t]he findings of fact as set forth in the trial court’s Judgment were inconsistent with the evidence presented at trial[,]” such a broadside assignment of error is not sufficient to comply with N.C.R. App. P. 10(c)(1) and preserve for review objections to the unspecified findings of fact. Anthony v. City of Shelby, 152 N.C. App. 144, 146, 567 S.E.2d 222, 224 (2002).

As a result, the findings of fact not specifically assigned as error are “ ‘presumed to be supported by competent evidence and are binding on appeal.’ ” First Union Nat’l Bank v. Bob Dunn Ford, Inc., 118 N.C. App. 444, 446, 455 S.E.2d 453, 454 (1995) (quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)). Those findings of fact are sufficient to support the trial court’s conclusion of law that Mr. Burgess’ “consent to the adoption is not required.” Nevertheless, we choose to suspend our rules and review the arguments presented in Mr. Burgess’ brief.

N.C. Gen. Stat. § 48-3-601 specifies the individuals whose consent is required prior to the granting of a petition to adopt a minor child. The parties agree that subsection (2)(b)(4)(II) of N.C. Gen. Stat. § 48-3-601 governs this case. Under that subsection, the consent of “[a]ny man who may or may not be the biological father of the minor” is required if he:

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
II.

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Bluebook (online)
590 S.E.2d 458, 162 N.C. App. 328, 2004 N.C. App. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-shuler-ncctapp-2004.