In Re the Adoption of P. E. P.

395 S.E.2d 133, 100 N.C. App. 191, 1990 N.C. App. LEXIS 923

• Court: Court of Appeals of North Carolina
• Decided: September 4, 1990
• Docket: 8915SC1182
• Status: Published

Opinions

WELLS, Judge.

A petition for the adoption of the child PEP was instituted in Orange County and an interlocutory decree allowing the adoption by the PEPs was entered on 17 November 1988. On 27 December 1988, Pamela Rogers and William Rowe, plaintiffs-intervenors (plaintiffs hereinafter in this case), petitioned the court to have the interlocutory decree vacated and for the petition for adoption to be dismissed. Following a hearing on the Rogers-Rowe motion, on 25 May 1989 the trial court entered an order denying the Rogers-Rowe motion, affirmed the entry of the interlocutory decree, and remanded the matter to the Clerk for further proceedings in the adoption. Plaintiffs appealed.

Pamela Rogers is the biological mother of the infant PEP. William Rowe asserts that he is the child’s biological father. In December 1987, PEP was conceived by Rogers who was then living in Michigan with Rowe, her daughter from a former marriage, and an infant son who was fathered by Rowe. Rogers and Rowe were experiencing financial and other difficulties during this period and in late May 1988, Rogers left Rowe and moved in with her mother. It was at this point that Rogers first contemplated giving up her unborn child for adoption and made preliminary contact with an adoption agency in Michigan.

When Sheryl Piccirillo, a friend of Rogers, learned that Rogers was considering placing her child up for adoption, Piccirillo suggested to Rogers that placement could be arranged through The Way International, a religious organization. A few days later, Doug Hargrave, an attorney from Orange County, North Carolina, flew to Michigan to meet with Rogers. This meeting, which took place 4 June 1988, was held to discuss the possible adoption of Rogers’ unborn child by a couple in North Carolina. The couple, the PEPs, lived in Orange County, North Carolina. The PEPs had hired Hargrave to represent them in the adoption after being contacted by a representative of The Way International. The PEPs had been told by the representative that a woman in Michigan wanted to put her child up for adoption.

On 11 June 1988, a process server tried to serve Rogers with a summons in connection with a custody action being instituted by Rowe. Rogers called Hargrave and told him about the process server. Hargrave arranged for Rogers and her two children to fly to North Carolina on 12 June 1988. Rogers remained in North Carolina until September 14 or 15 of 1988.

After spending two days at the home of Hargrave, Rogers spent the remainder of her time in North Carolina in the home of Laura Smith, a nurse and acquaintance of Hargrave. Over the course of the summer, Smith was paid approximately $900 by Hargrave to cover room and board for Rogers and her two children. Rogers did not work while she was in North Carolina. Her financial needs, including any prenatal care and delivery expenses at North Carolina Memorial Hospital which were not covered by Medicaid, were met by Hargrave. Hargrave sometimes used his personal funds and sometimes used funds given him by the PEPs in order to effectuate the adoption. After Rogers returned to Michigan in September, Hargrave arranged for her to rent an apartment and paid for the first two months’ rent.

While Rogers was in North Carolina her family did not know her exact whereabouts. In early August, Rogers allowed her daughter to return to Michigan in order to avoid a custody battle with her ex-husband. The airfare for this flight was also taken care of by Hargrave.

Rogers was interviewed by a social worker from the Orange County Department of Social Services on 29 August 1988. The same social worker interviewed the PEPs, both together and separately. The social worker visited the PEPs at home after the baby was placed with them.

After the birth of the child on 9 September 1988, Rogers returned to Michigan. An interlocutory decree was entered in the adoption on 17 November 1988. In late November or early December 1988, Rogers saw a television show which had as its theme destructive and religious cults. On the show, The Way International was portrayed as a cult. On 27 December 1988, Rogers filed her Motion for Relief From Interlocutory Decree on grounds that fraud had been committed upon her, and that she had signed the Consent to Adoption under undue influence and duress. Other facts appear in the opinion as necessary.

The order entered in this case contains sixty-two findings of fact and six conclusions of law. Plaintiffs except to thirteen of these findings and one conclusion. The findings of fact not excepted to are therefore binding on this court. Harris v. Walden, 314 N.C. , 333 S.E.2d 254 (1985). When a judge sits without a jury it is presumed that the court disregards incompetent evidence, and if the court’s findings are supported by competent evidence, they will be sustained. Murchak Corp. v. Caldwell, 301 N.C. 689, 273 S.E.2d 281 (1981):

In their first assignment of error plaintiffs contend that the trial court erred in finding that Rogers willingly and voluntarily consented to the adoption of her child and in concluding that her consent was not procured by fraud, undue influence or duress. Plaintiffs also assert that the trial court erred in finding that Rogers was aware that she could not revoke her consent to the adoption after the entry of the interlocutory decree and in finding that the decision to place the child with the PEPs was made after months of consideration, thought, and reflection. Finally, plaintiffs contend that the trial court erred in excluding testimony about The Way International, the religious organization to which Hargrave, the PEPs, Smith and Piccirillo belong and to which Rogers belonged at one time, and in sustaining an objection to testimony concerning who paid for an airline ticket for Rogers’ daughter to fly back to Michigan in August 1988.

Plaintiffs first contend that Rogers was “defrauded” into signing a consent form allowing defendants to adopt her child; therefore, the trial court’s findings and conclusions to the contrary are erroneous.

Our appellate courts are bound by the trial court’s findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary. In re Montgomery, 311 N.C. 100, 316 S.E.2d 246 (1984). (Emphasis ours.) In addition, N.C. Gen. Stat. § 48-ll(a) in part provides that consent to adoption cannot be revoked after three months from the date of the giving of consent or after the entry of an interlocutory decree. Either the entry of an interlocutory decree or the passage of three months, whichever comes first, cuts off the time period for revoking consent. After the statutory period to revoke consent terminates, consent to adopt may only be revoked upon a showing of fraud in obtaining the consent. See In re Shamp, 82 N.C. App. 606, 347 S.E.2d 848 (1986).

Plaintiff specifically excepts to the following findings:

52.

Pamela Rogers willingly and voluntarily consented to the adoption of the child by the [PEPs].

53.

That even though there was an error in the length of time set forth on the Consent to Adoption form, Rogers was aware upon the filing of the Interlocutory Decree that she could [not] revoke her consent.

54.

That the decision made by Pamela Rogers to place her child with the PEPs was not a hurried one, but was one made after months of consideration, thought and reflection.

Plaintiffs also excepted to the following conclusion by the court:

1. Pamela Rogers knowingly and voluntarily consented to the adoption of her child by Mr. W. PEP and Mrs. P. PEP, and there was no fraud, undue influence or duress by anyone to induce her to give her consent to the adoption.

Our review of the record shows that there is competent evidence to support each disputed finding. For example, Rogers testified at the hearing that she told Hargrave that it was fine with her for the PEPs to leave the hospital with the child; this was so noted by the trial court in an uncontested finding of fact. In addition, Jane Maskey, a social worker with Orange County DSS, testified that when she interviewed Rogers in August 1988, Rogers told her she was not being forced to place the child for adoption. Rogers also testified that it was in May 1988, after leaving Rowe, that she first told Piccirillo that she wanted to place the baby for adoption. After coming to North Carolina, Rogers repeatedly denied that she knew who was the father of her child. Rogers also testified that after returning to Michigan in September 1988, she contacted Hargrave’s office several times regarding the progress of the adoption; however, the first time she raised the issue of not going through with the adoption was in November or December 1988, after seeing the television show on cults and after the interlocutory decree had been entered.

Also before the trial court was a consent to adoption form signed by Rogers and filed in Orange County on 13 September 1988. The paragraph immediately above Rogers’ signature contained the following language:

I understand and agree that my Consent to Adoption may not be revoked after whichever of the following comes first: (1) entry or an interlocutory decree of final order of adoption, regardless of whether or not an interlocutory decree has been entered; or (2) three months from the giving of this Consent.

The phrase “three months” had been marked through and “30 days” inserted in its place. While the facts are in dispute as to whether the phrase “three months” was crossed out before or after Rogers signed the consent form, Rogers testified that she had read the consent form before signing it on 12 September 1988.

Because these findings are sufficiently supported by competent evidence we overrule this assignment of error.

We also hold that these findings, coupled with the uncontested findings, support the trial court’s “conclusion” that Rogers’ consent was not obtained by fraud, undue influence, or duress. Plaintiffs contend that Hargrave defrauded Rogers by: (1) telling her that she must be present in North Carolina in order to effectuate the adoption of her child in North Carolina; (2) telling her that it was alright for him to pay for, or arrange for payment of, most of her expenses while she was in North Carolina; and (3) failing to suggest that Rogers seek independent legal advice regarding the adoption since he was retained by the PEPs, whose interest might be in conflict with that of Rogers. Because of these alleged misrepresentations and failure to advise, Rogers contends that her consent to adoption was obtained by fraud. We disagree. First, Hargrave’s testimony at the hearing contests these allegations. Secondly, even if plaintiffs’ allegations are accepted as true, Hargrave’s conduct, while questionable, and arguably in violation of N.C. Gen. Stat. § 48-37 (1984), did not constitute fraud in obtaining her consent. In addition, Rogers does not indicate that any of these factors induced her to consider placing her child for adoption. Indeed, Rogers’ own testimony and behavior show the contrary. For example, it was Rogers who first raised the idea of adoption prior to ever having met Hargrave. After her initial meeting with Hargrave, it was Rogers who next contacted Hargrave after a process server appeared at her door.

Plaintiffs’ argument that Rogers was placed under duress and undue influence is similarly unpersuasive. While we agree with plaintiffs that it would have been preferable for Rogers to have interacted with a social worker from DSS on more than one occasion, this is not required by statute. There was sufficient evidence to support the trial court’s finding that Rogers willingly and voluntarily consented to the adoption. There is no evidence in the record to the effect that while she was in North Carolina Rogers ever expressed dissatisfaction with any aspect of the adoption. This assignment is therefore overruled.

In their next assignment of error plaintiffs contend that , the trial court erred by refusing to accept Cynthia Kisser as an expert in the area of destructive cults and behavioral modification. We disagree. The competency of a witness to testify as an expert is within the sound discretion of the trial court, and its determination will not ordinarily be disturbed by a reviewing court. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980). A finding that a witness is not qualified as an expert is not reversible error, unless there was abuse of discretion or the ruling was based on an erroneous view of the law. 1 Brandis on North Carolina Evidence § 133 (3d Ed. 1988). The witness gave her professional and academic background which included bachelors and masters degrees in American studies; her current position as executive director of The Cult Awareness Network, a national, nonprofit organization which acts as a clearinghouse for information on destructive cults; and a previous position as director of an agency that did research in the areas of mind control and destructive cults. Plaintiffs made no effort to establish that Ms. Kisser’s purported area of expertise has received general acceptance in relevant academic or scientific communities or that it conformed to a generally accepted theory of specialized knowledge. Based on this record, we find that the court did not abuse its discretion in refusing to qualify Kisser as an expert in the area of destructive cults and mind control.

Plaintiffs next assign as error the trial court’s “conclusion of law” that it is in the best interest of the child to remain in the custody of the PEPs. The exception plaintiffs actually note in the record and reference in their brief is finding of fact number 62; however, because this finding is more properly labelled a conclusion of law and because the trial court also concluded that it would be in the best interest of the child to remain in the care, custody and control of the PEPs, we proceed to review whether the trial court’s conclusion is supported by the findings in this case.

As in child custody and support cases, the trial court in an adoption case is given wide discretion. See In re Spinks, 32 N.C. App. 422, 232 S.E.2d 479 (1977). The trial court is in the best position to determine what is in the best interest of the child. White v. White, 90 N.C. App. 553, 369 S.E.2d 92 (1988). It is often a difficult determination and the trial court is in the best position to observe the parties and evaluate the evidence. Id.; see also Wehlau v. Witek, 75 N.C. App. 596, 331 S.E.2d 223 (1985). The determination as to what is in the best interest of the child should be made by weighing the totality of the circumstances. Spinks, supra.

As we have previously stated, findings of fact not challenged on appeal are presumed to be supported by competent evidence and are binding on this court. Harris, supra. Among the unchallenged findings in the present case are the following:

48.

Mr. [PEP] is employed ... and makes $46,000 per year income.

49.

Mrs. [PEP] is a homemaker and stays at home with the child. The child is being well cared for by the [PEPs].

50.

The PEPs are fit and proper persons to have the care, custody and control of the minor child.

51.

Pamela Rogers and William Rowe have had a difficult relationship. Rogers decided to move from their joint residence and took their child, Benjamin, with her. Rowe tried to find her and tried to serve a summons on her in a court action. Rogers left Michigan to avoid the service of the summons and kept her whereabouts secret from him while she was in North Carolina. After she returned to Michigan, they engaged in a court action over Benjamin until they reached the aforementioned consent order.

These uncontested findings alone adequately support the trial court’s conclusion that it was in the child’s best interest to remain with the PEPs. Our review of the trial court’s findings and conclusions and of the transcript of the hearing persuades us that Judge Ellis properly considered all of the circumstances pertinent to reaching his conclusion that it was in the best interest of this child to remain in the custody of the PEPs. See Spinks, supra.

In addition to their assertion that the conclusion was not supported by the evidence, plaintiffs also contend that the trial court erred in failing to find that Rogers and Rowe were unfit parents and by refusing to admit testimony about The Way International by Kisser and Rogers and Mr. PEP. We do not agree. First, plaintiffs offer no support for their argument that biological parents must be found unfit in order to reach the conclusion that an adoption is in the best interest of the child. Rather, the adoption statute, Chapter 48, and our case law precedents make it clear that while the trial court must be guided by a balancing of interests, these in turn must always be resolved in favor of what is in the best interest of the child under the circumstances of a particular case. Secondly, there was no basis on which Kisser’s testimony could be admitted. The trial court had refused to qualify her as an expert. She had no other connection with any of the parties in this case beyond a telephone conversation with Rogers after the Cult Awareness Network’s telephone number was flashed on the screen during the Geraldo Rivera show on cults and a brief meeting with Rogers the night before the hearing. Finally, the trial court’s ruling on the admission of testimony by Rogers and Mr. PEP concerning practices of The Way International, even if error, was harmless in this context.

Plaintiffs also assign as error the trial court’s finding that Rowe should be estopped from attacking the interlocutory decree because he had actual notice of the proceedings and had failed to take any action prior to the entry of the order. Plaintiffs assert that failure to serve Rowe with notice of the adoption pursuant to N.C. Gen. Stat. § 1A-1, Rule 4 (1983) requires that the interlocutory decree be set aside and the adoption proceeding dismissed.

The trial court’s findings clearly indicate that the court carefully considered the question of whether Rowe was the father of the child and that the court was not persuaded that he was the father. Under these circumstances it is not clear that Rowe had any rights under the adoption statute, including the right to notice. Even if he was entitled to notice pursuant to Rule 4, Rowe’s actual notice of the proceeding renders the defect procedural in nature and does not automatically require that the proceeding be set aside. This procedural defect aspect of this case must be resolved against plaintiffs consistently with the discussion and reasoning on plaintiffs’ final assignment, next following.

In their final assignment of error plaintiffs contend that “irregularities” in this adoption proceeding require that the adoption petition be dismissed and the minor child returned to them. Plaintiffs specifically argue that the interlocutory decree should be dismissed for the following reasons: (1) Hargrave told Rogers that if she wanted to place the baby for adoption in North Carolina she would have to come to North Carolina when in fact there is no such requirement in Chapter 48. (2) Rowe never consented to the adoption. (3) At some point the time period on the consent to adoption form was altered from “90 days” to “30 days.” (4) G.S. § 48-37, which addresses the prohibition against compensation for placing or arranging placement of a child for adoption, may have been violated.

This court has previously addressed the issue of procedural defects in an adoption proceeding. See, e.g., In re Kasim, 58 N.C. App. 36, 293 S.E.2d 247, disc. rev. denied, 306 N.C. 742, 295 S.E.2d 478 (1982) (trial court dismissed adoption proceeding after concluding that insufficient consent rendered the proceeding procedurally defective — reversed and remanded for determination of whether it was in best interest of the child to dismiss or continue the proceeding). Based on the language of G.S. § 48-1 and the discretion granted to the trial court by G.S. § 48-20(a) regarding the dismissal of an adoption proceeding, the court in Kasim concluded that the child’s best interests should be paramount in the court’s consideration of a motion to dismiss. Thus, in considering all the factors which might bear on the question of dismissal, procedural defects become one of many factors to be considered. All factors considered by the trial court should relate to the legislative policy stated in G.S. § 48-1:

(1) The primary purpose of this Chapter is to protect children from unnecessary separation from parents who might give them good homes and loving care, to protect them from adoption by person unfit to have the responsibility of their care and rearing, and to protect them from interference, long after they have become properly adjusted in their adoptive homes by biological parents who may have some legal claim because of a defect in the adoption procedure.

(3) When the interest of a child and those of an adult are in conflict, such conflict should be resolved in favor of the child; and to that end this Chapter should be liberally construed.

In making his conclusions the trial court in this case was properly guided by the clear legislative policy of this state which places the interests of the child above procedural defects. While we do not condone any procedural defects in adoption proceedings, we agree with the trial court that the best interest of the minor child comes before the interest of Rowe in procedural exactitude. The procedural defects present here, and any alleged unprotected rights that may exist in Rowe’s favor, should be resolved in favor of the minor child. In this case such a resolution requires that the adoption proceeding be allowed to continue. We are aware of our Supreme Court’s opinion in In re The Adoption of Clark, 327 N.C. 61, 393 S.E.2d 791 (1990), where the court held that an unwed biological father not be bound by an order terminating his parental rights. There, the father was not served with notice of the termination proceedings, nor was he aware of the proposed adoption of his child. Our facts are clearly distinguishable. In this case, plaintiff Rowe had actual notice of the adoption proceedings, but failed to timely act on that notice. We therefore affirm the order of the trial court. We nevertheless admonish members of the bar who attempt to arrange adoptions that strict adherence to established procedures always is the better rule. When pitted against the welfare of an innocent child, procedural defects may not always mandate dismissal of an adoption proceeding; however, disregard of required procedures can result in dismissal of an adoption proceeding, with possible tragic consequences.

Affirmed.

Judge Parker concurs. Judge DUNCAN dissents.