In Re Byrd Ex Rel. Adoption of Byrd

529 S.E.2d 465, 137 N.C. App. 623, 2000 N.C. App. LEXIS 502

• Court: Court of Appeals of North Carolina
• Decided: May 2, 2000
• Docket: COA99-887
• Status: Published

Opinions

WYNN, Judge.

Under N.C. Gen. Stat. § 48-3-601, the consent of a man who may or may not be the father of a child must be obtained in an adoption proceeding except where the potential father failed to acknowledge his paternity or provide support for the biological mother and the child. N.C.G.S. § 48-3-601 (2)(b)(4)(II) (1999). In this case, the potential father contends that his level of acknowledgment and support provided for an unborn child should be considered in light of the biological mother’s uncertainty of his paternity. Because the potential father neither adequately acknowledged paternity nor provided the financial support required under N.C.G.S. § 48-3-601(2)(b)(4)(II), we must affirm the trial court’s holding that his consent was not required in the adoption proceeding of the child.

The facts of this case culminate in an emotional confrontation of families regarding the status of a minor child. In September 1997 eighteen-year-old Shelly Dawn O’Donnell informed seventeen-year-old Michael Thomas Gilmartin¹ of her pregnancy and revealed that the date of birth derived from an ultrasound indicated that he fathered her child. But a later ultrasound indicated a different due date which in turn indicated that Michael may not have fathered her child.

Shelly decided to give her child up for adoption. Working through an adoption network, she developed a relationship with Steve Byrd and his wife Sandra who desired to adopt her child. Shelly contacted Michael to request his consent to the private placement adoption; however, he refused stating that he wanted his baby.

To resolve this difference, Shelly petitioned the District Court in Chowan County to make a “Prebirth Determination of Right” stating that there “is more than one possible biological father” and requesting the court to determine whether “the consent of Respondent Michael Gilmartin [was] required for the adoption of. . . the child.” Shelly served that petition upon Michael along with a notice stating:

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 15 days from the date you received this notice that you believe your consent is required.

Indeed, Michael responded stating:

5. . . . the 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.

8. That the [respondent] 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 child’s father.

In short, Michael requested that “no adoption of the said child be approved by the [c]ourt until it is determined that [he] is not the biological father of the said child.”

About a month later, on 4 March 1998, Shelly gave birth to a baby girl. The next day, unbeknownst to Michael, the Byrds filed a Petition for Adoption in the District Court in Wake County. On the same day, unbeknownst to the Byrds, Michael filed a complaint and petition in the District Court in Chowan County. In his complaint, Michael requested: (I) the court to order a blood test to determine parentage of the baby, (2) all other proceedings in the cause be stayed until the test results were available and (3) custody should be granted in his favor or in the alternative, visitation rights be granted if he was determined to be the father of the child. The District Court in Chowan County, however, denied his motion for a blood test in April 1998.

In the interim, Michael received service of the Byrds’ adoption petition and responded by requesting custody or visitation with the child “should it be determined by blood test, that he is the natural father of said minor child.” On 28 July 1998, Michael moved for a blood test under N.C. Gen. Stat. § 8-60.1 in the District Court in Wake County. The trial court granted his motion; and, the resulting test showed a probability of 99.99% that Michael fathered the child.

Notwithstanding the results of the blood test, at an adoption hearing in October 1998, the trial court concluded that Michael’s consent was not required under N.C. Gen. Stat. § 48-3-601 because before filing the adoption petition Michael failed to: (1) acknowledge the child and (2) provide “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.”

From this order, the respondent — Michael Thomas Gilmartin— appeals.

I.

The respondent first contends that his consent to the adoption was required under N.C.G.S. § 48-3-601 because he adequately complied -with the statute’s acknowledgment requirement. We must disagree.

Under N.C.G.S. § 48-3-601, a petition to adopt may be granted only if consent to the adoption has been executed by:

b. Any man who may or may not be the biological father of the minor. . . .

N.C.G.S. § 48-3-601(2)(b).

But that statute also requires that before “the earlier of the filing of the petition or the date of the hearing,” the man must have “acknowledged his paternity of the minor.” N.C.G.S. § 48-3-601(2)(b)(4).

In construing statutes, such as N.C.G.S. § 48-3-601, our primary task is to determine the legislative intent. See Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 396 (1988). To ascertain this legislative intent “resort must first be had to the language used.” Nance v. Southern Ry. Co., 149 N.C. 366, 371, 63 S.E. 116, 118 (1908). “In other words, the statute must, if possible, be made to speak for itself.” Id. Therefore, where “the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it plain and definite meaning.” Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980).

Under the plain language of N.C.G.S. § 48-3-601, to assert the right to consent to an adoption, an alleged father must first acknowledge his paternity of the child before the earlier of the filing of the adoption petition or the date of the hearing. See N.C.G.S. § 48-3-601(2) (b)(4). The term “acknowledgment” for purposes of paternity actions means “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.” Carpenter v. Tony E. Hawley, Contractors, 53 N.C. App. 715, 720, 281 S.E.2d. 783, 786 (1981).

In this case, the biological mother revealed that during her child’s conception period, she engaged in sexual relations with more than one man including the respondent. She revealed her uncertainty of the paternity of her child to the respondent. Nonetheless, to preserve his consent rights for adoption, N.C.G.S. § 48-3-601(2)(b)(4) required the respondent to “acknowledge” the unborn child as his own.

The respondent asserts that the following actions were sufficient to constitute acknowledgment of his paternity: (1) offering to provide the biological mother with a place to live during her pregnancy, (2) obtaining various jobs to provide support for the child, and (3) filing several court documents requesting custody of the child upon a determination that he was the child’s biological father.

Indeed, the record on appeal shows that the respondent offered the biological mother a place to live during her pregnancy. The record also shows that the respondent attempted various jobs during the biological mother’s pregnancy. But those actions fall short of the requirements under our case law to show that he acknowledged the paternity of the unborn child.

In essence, the respondent argues that it was reasonable for him to condition his acknowledgment or acceptance of responsibility for the child on a determination that he was the child’s biological father. Yet, N.C.G.S. § 48-3-601 does not allow a potential father’s acknowledgment of his paternity to be conditioned on establishing a biological link with the child. In fact, that statute removes any requirement of a biological link by stating that “any man who may or may not be the biological father of the minor.” N.C.G.S. § 48-3-601 (emphasis supplied).

We recognize that under a plain reading of the statute, the respondent faced a difficult dilemma — to acknowledge paternity of a child that he may not have fathered, or face the possibility that the child would be adopted by third parties without his consent. However, his equitable challenge must yield to our judicial stricture to follow the statutory law, not make it. When the constitutionally affirmed laws of the General Assembly provide unambiguous language, we must follow it even though the facts of a particular case may cry out for fairness, or a different result. And in instances where the General Assembly plainly speaks, we must infer that under its policy-making authority it understood the consequences of its enactment. Thus, where an unambiguous law of the legislature presents a situation that appeals for a different result, our restrained role as jurists empowers us only to point out this anomaly. So, that in light of that circumstance, the legislature may be moved to further reflect on its words to determine if in fact they intended such a result.²

The statute in this case, N.C.G.S. § 48-3-601, plainly and unambiguously requires a man who “may or may not” be the biological father, to acknowledge paternity to preserve the right to consent to an adoption of that child. Because the evidence in the record supports a finding that the respondent did not acknowledge his paternity of the child, we must conclude that the trial court properly determined that his consent to the child’s adoption was not required.

II.

A second reason supporting the trial court’s determination that the respondent’s consent was not required for the adoption is that he failed to provide the support required under N.C.G.S. § 48-3-601. The respondent contends that he (1) provided support in accordance with his financial means, and (2) was not required to comply with the statute’s support requirement.

N.C.G.S. § 48-3-601 provides that to preserve consent rights for adoption, a man who may or may not be the father of the child, must have 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. ...”

N.C.G.S. § 48-3-601 (2)(b)(4)(II).

In this case, the trial court made the following findings of fact regarding the respondent’s compliance with N.C.G.S. § 48-3-601’s support requirement:

14. At no time during September-October, 1997 time period did the respondent provide any financial support to O’Donnell. On one occasion in mid-October, 1997, the respondent and his mother, Patricia Gilmartin took O’Donnell to a local restaurant in Edenton where Patricia Gilmartin offered O’Donnell a free room in Patricia Gilmartin’s resident during the term of O’Donnell’s pregnancy so that O’Donnell could mitigate certain expenses. O’Donnell refused this offer. O’Donnell afterwards took the respondent and Ms. Gilmartin to the William’s home, where respondent and Ms. Gilmartin looked at ultrasound pictures of the baby on the porch of the William’s house.

15. Around the 1st of November, 1997, the respondent went to Nags Head to secure full-time employment in order to save money for the child. O’Donnell acknowledged that the respondent was working to save money for the child. The respondent worked two different full time jobs (one for several weeks, the other for approximately six weeks) until he returned to his grandparent’s residence just before the holidays in December, 1997. The respondent rented an apartment with two other individuals where he paid $75.00 a week in order to have a bedroom the total rent on the apartment was $650.00 a month. (The respondent could have slept on a sofa and paid rent of $30.00 per week, but he did not) The respondent had $50.00 a week left over after paying all of his expenses for living in Nags Head. During this time period, the respondent did not provide any financial support to O’Donnell.

19. Upon respondent’s return to his grandparents residence in Pea Ridge in late December, 1997, he again began working around his grandparents’ residence earning approximately $90.00 per week. He did this through the date of [the child’s] birth, March 4, 1998. He was not charged any expense for room, board, or other items during any time when he resided with his grandparents. He did not provide any financial support to O’Donnell from late December 1997 through the date of [the child’s] birth, March 4, 1998. The respondent claimed that he did not have much money to send O’Donnell, particularly in light of the fact that “She told me on and off that I was the father.”

25. On the date of [the child’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. The money order was not mailed to O’Donnell until March 9, 1998.

Based on these findings of fact, the trial court concluded that the respondent failed to comply with the statute’s support requirement.

The respondent argues that the trial court’s finding of fact number 15 that he “had $50.00 a week left over after paying all of his expenses for living in Nags Head” was unsupported by the evidence in the record. And he argues that the evidence supports a finding that he did not have the financial means to provide monetary support to the biological mother during her pregnancy.

However, testimonial evidence in the record showed that he had over $50 left over when he worked in Nags Head. In fact, during the adoption hearing the respondent stated that:

Q. Okay Now you’ve testified that you made — you really saved, at the end of each week, $50 a week-—

A. Around.

Q. —after you had paid your expenses. And you had a checking account and you could have sent it couldn’t you? Isn’t that right.

A. Yes, but there was a chance—

A. Yes, I could have sent it, but there was a chance that would ruin my chances of staying at the beach to work because some weeks it would rain and we wouldn’t get a full week in. So I’d have to take that $50 I saved and put toward rent.

While the evidence showing that the respondent earned money above his living expenses appears equivocal, we are bound to uphold the trial court’s findings in the face of competence evidence that support those findings. See Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980) (holding that if the trial court’s findings of fact are supported by the evidence, they are binding on appeal even though there may be evidence to the contrary). Since the record contains evidence to support the trial court’s findings, we must uphold the trial court’s determination that the respondent failed to comply with the statute’s support requirement.

Still, the respondent argues that he was not required to comply with the statute’s support requirement because the circumstances present in this case made it impossible for him to do so. He contends that (1) the biological mother made it “clear that she did not want, nor would she accept, any financial support” from him, and (2) the filing of the adoption petition just one day after the birth of the child prevented him from providing support to the child.

As stated, in construing N.C.G.S. § 48-3-601, we must apply its plain meaning. Under the statute’s plain meaning, a man must before the earlier of the filing of the adoption petition or the date of the hearing provide reasonable and consistent payments for the support of (1) the biological mother during her pregnancy, (2) the minor, or (3) both the biological mother and the minor. N.C.G.S. § 48-3-601(b)(4)(II). Reasonable is defined as “[f]air, proper, or moderate under the circumstances . . . .” BLACK’S LAW DICTIONARY 1272 (7th ed. 1999). Consistent means to be “reliable [or] steady.” AMERICAN HERITAGE COLLEGE DICTIONARY 297 (3rd ed. 1997).

Significantly, N.C.G.S. § 48-3-601 does not — as the respondent suggests — condition the requirement of consistent and reasonable support on either (1) the biological mother’s acceptance of a place to live as support, or (2) sufficient time between the child’s birth, and the filing of the petition to allow the man to provide support for the child.

Again, we are mindful of the respondent’s dilemma since there is evidence in the record that the mother, in fact, did refuse the offer to stay with his mother during her pregnancy, and the adoption petition was filed just one day after the child’s birth. Nonetheless, the statute makes no exceptions for the support requirement, and we will read no such requirements into the General Assembly’s clear language.

We are also mindful that the unanswered question of the child’s parentage may have fueled the respondent’s reluctance to take more affirmative steps to comply with the statute’s support requirement. But N.C.G.S. § 48-3-601 does not allow a potential father’s support obligation to be conditioned on establishing a biological link with the child. As with the acknowledgment requirement, the respondent was given the choice under the statute to provide support for a biological mother who was uncertain as to whether he fathered the child, or face the possibility that the child could be adopted by third parties without his consent. Because the evidence in the record supports a finding that the respondent chose not to provide reasonable and consistent support in accordance with his means, we must conclude that the trial court properly determined that his consent to the child’s adoption was not required.

The trial court’s order is,

Affirmed.

Judge MARTIN concurs. Judge HUNTER dissents in a separate opinion.

1 . Michael currently serves in the United States Coast Guard.

2 . The dissenting opinion states: “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 the plain reading of N.C. Gen. Stat. § 48-3-601, but also against logic.” While we can agree that such an outcome appears illogical, our role as jurists is not to challenge with our own logic the plain words of the legislature under N.C. Gen. Stat. § 48-3-601 which explicitly states that it applies to any man who may or may not be the biological father of the minor. The dissent also suggests that any man who has been so informed, need only acknowledge that he may or may not be the father. Nonetheless, the unambiguous language of N.C. Gen. Stat. § 48-3-601 requires the man to have “acknowledged his paternity of the minor.” To read in an amendment that the father be allowed to acknowledge that he may or may not be' the father of the child would be to rewrite N.C. Gen. Stat. § 48-3-601. That’s a legislative function, not a judicial function.