In re: B.M.T.
Date Filed2022-12-20
Docket22-377
Cited0 times
StatusPublished
Syllabus
Consent for Adoption Biological Father financial support under N.C. Gen. Stat. ç 48-3-601
Full Opinion (html_with_citations)
IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-838
No. COA22-377
Filed 20 December 2022
Guilford County, No. 19 SP 1132
IN THE MATTER OF THE ADOPTION OF:
B.M.T., a minor.
Appeal by Petitioners from Order entered 16 September 2021 by Judge Teresa
H. Vincent in Guilford County Superior Court. Heard in the Court of Appeals 1
November 2022.
Manning, Fulton, & Skinner, P.A., by Michael S. Harrell, for petitioners-
appellants.
Lindley Law Firm, PLLC, by Kathryn S. Lindley, for respondent-appellee.
HAMPSON, Judge.
Factual and Procedural Background
¶1 Petitionersâthe prospective adoptive parents of Layla1âappeal from the trial
courtâs Order entered 16 September 2021, requiring Respondent-Fatherâs
(Respondent) consent for Layla to be adopted by Petitioners. The Record before us
1 A pseudonym is used for the minor child designated in the caption as B.M.T.
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tends to reflect the following:
¶2 Respondent is the biological father of Layla. Respondent and Laylaâs biological
mother (Mother) were involved in a romantic relationship at the time of Laylaâs
conception. Respondent and Mother continued their relationship during Motherâs
pregnancy, and Respondent provided Mother with food, clothing, cash,
transportation, personal items, and housing during the pregnancy. Without
Respondentâs knowledge or consent, Mother placed Layla with Petitioners for the
purpose of adoption on 13 June 2019. On 20 June 2019, Respondent and Mother
executed a Voluntary Acknowledgement of Paternity with the State of Tennessee.
Subsequently, Respondentâs name was added to Laylaâs birth certificate, and Laylaâs
surname was changed to the surname of Respondent.
¶3 Petitioners filed a Petition to adopt Layla on 27 June 2019. Petitioners served
Respondent with a Notice of Filing Petition for Adoption on or about 10 August 2019.
Respondent objected to the adoption on 16 August 2019, requesting custody of Layla
and claiming paternity. Further, Respondent stated he was âable and willing to raise
and care for [his] child in every way possible.â On 27 August 2019, Petitioners filed
a Motion to find Respondentâs consent not required, stating Mother consistently
reported the identity of the biological father as âunknownâ and âthe unknown birth
fatherâs consent is statutorily unnecessary pursuant to [N.C. Gen. Stat.] §§ 48-3-601
and 48-3-603.â On 19 April 2021, the matter proceeded to trial in Guilford County
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District Court. During the trial, Respondent testified Mother often stayed with him
at his home during the pregnancy, and he also provided Mother with food,
transportation, and maternity clothing. Respondent testified he offered Mother
financial support on numerous occasions, which she sometimes accepted and
sometimes refused. Additionally, at trial, Respondent presented a document he
created entitled âPregnancy Care Expense Reportâ. Respondent testified the Report
does not include all of the support he provided to Mother and the minor child, but the
Report was created from the bank statements and receipts in his possession, all of
which pre-dated the 27 June 2019 statutory deadline. The Respondent also presented
itemized receipts detailing baby items and supplies he purchased for Mother and the
minor child.
¶4 On 16 September 2021, the trial court entered an Order concluding
Respondentâs consent to the minor childâs adoption is required pursuant to N.C. Gen.
Stat. § 48-3-601. The trial courtâs Findings of Fact are, in relevant part, as follows:
13. The Respondent father provided reasonable and consistent
support of the minor child by providing the following:
a. Infant car seat for the minor child.
b. Significant number of meals for the biological mother
during her pregnancy.
c. Maternity clothes for the biological mother.
d. Baby clothes and supplies.
e. Diapers.
f. Respondent attended doctorâs visits with the biological
mother[.]
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g. Respondent provided meals for biological mother and
formula for [the] child after the birth of the child.
h. Cash of some amount (sometimes the biological mother
accepted and sometimes she refused it).
....
15. From August 2018 to July 2019, the Respondent spent
$1,698.66 on or in support of the biological mother and the minor
child for transportation, food from a variety of restaurants,
personal items and baby supplies, and Uber and Lyft
transportation.
16. Both Petitioner and Respondent provided child support
worksheets which show that child support would have been
approximately $350.00 per month after the birth of the child
pursuant to N.C. Child Support Guidelines. Between May 17th
and June 1st of 2019, Respondent spent $521.34 at Walmart for
baby formula, a baby crib, car seat, bouncer, diapers, socks, and
other baby supplies.
....
20. Respondent made his home ready for the minor child with
bed, toys, and clothes; further he showed his home and the childâs
items to his sister by video chat.
....
23. At the time the minor child was placed with Petitioners,
Respondent resided at his own apartment and with his mother in
Memphis, Tennessee; further his mother has since died, and he
now lives with his fiancé in Mississippi approximately fifteen . . .
minutes from his prior home.
¶5 Based on these Findings, the trial court made the following Conclusion of Law:
âRespondentâs consent shall be required in order for the minor child . . . to be legally
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adopted.â Petitioners timely filed written Notice of Appeal on 13 October 2021.
Issues
¶6 The dispositive issues on appeal are: (I) whether the trial courtâs Findings of
Fact are supported by competent evidence; and (II) whether the trial court erred in
concluding Respondentâs consent was required for the adoption of the minor child.
Analysis
¶7 Adoption proceedings are âheard by the court without a jury.â N.C. Gen. Stat.
§ 48-2-202 (2021). âOur 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.â In re Adoption of
Cunningham, 151 N.C. App. 410, 412-13,567 S.E.2d 153, 155
(2002) (citation and
quotation marks omitted). âThis Court is bound to uphold the trial courtâs findings
of fact if they are supported by competent evidence, even if there is evidence to the
contrary.â In re Adoption of Shuler, 162 N.C. App. 328, 330,590 S.E.2d 458, 460
(2004) (citing In re Adoption of Byrd, 137 N.C. App. 623,529 S.E.2d 465
(2000), affâd
on other grounds, 354 N.C. 188,552 S.E.2d 142
(2001)). â[I]n reviewing the evidence,
we defer to the trial courtâs determination of witnessesâ credibility and the weight to
be given their testimony.â 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. review denied, 348 N.C.498,510 S.E.2d 385
(1998)).
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I. Challenged Findings of Fact
¶8 Petitioners contend Findings 13, 15, 16, and 23 are not supported by competent
evidence and are, thus, not binding on this Court. We disagree.
¶9 At Petitionersâ request, Respondent produced numerous documents, including
receipts, credit and/or debit card statements, and telephone records in his possession
to demonstrate he provided consistent and reasonable support within his financial
means to both Mother and the minor child. These documents, which were presented
at trial, as well as Respondentâs testimony, support the challenged Findings. As such,
the trial court properly exercised its inherent discretion in weighing and considering
all competent evidence before making its Findings of Fact. Respondent testified as
to the facts found in Findings 13, 15, 16, and 23, and while Petitioners contend
Respondentâs testimony is not credible evidence to support the challenged Findings,
it is not the duty of this Court to reweigh the credibility of Respondentâs testimony.
See In re J.T.C., 273 N.C. App. 66, 70,847 S.E.2d 452
, 456 (2020) (quoting Smith v.
Smith, 89 N.C. App. 232, 235,365 S.E.2d 688, 691
(1988) (citation omitted))
(â âCredibility, contradictions, and discrepancies in the evidence are matters to be
resolved by the trier of fact, here the trial judge, and the trier of fact may accept or
reject the testimony of any witness.â â). Thus, because the Findings are supported by
competent evidence, these Findings are binding on appeal.
II. Respondentâs Reasonable and Consistent Support
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¶ 10 Next, Petitioners contend the trial court erred in finding Respondent provided
âreasonable and consistent paymentsâ, requiring Respondentâs consent to Laylaâs
adoption. Chapter 48 of our General Statutes governs adoption proceedings in North
Carolina. Section 48-3-601 requires a man âwho may or may not be the biological
fatherâ to consent to the adoption of a minor child if he:
4. Before the earlier of 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[.]
N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II) (2021). Because Petitioners concede
Respondent has satisfied both the acknowledgment and communication
requirements, we limit our analysis to whether Respondent provided reasonable and
consistent payments for the support of the Mother, minor child, or both.
¶ 11 Respondent must present competent evidence to demonstrate: â(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.â In re Adoption of C.H.M., 371 N.C. 22, 29-30,812 S.E.2d 804
,
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809-10 (2018).
¶ 12 Petitioners contend the trial court erred in concluding Respondent provided
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. We disagree.
¶ 13 Although âsupportâ required under N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II) is not
expressly defined, our Supreme Court has stated: â âsupportâ is best understood within
the context of the statute as actual, real and tangible support, and that attempts or
offers of support do not suffice.â In re Adoption of Byrd, 354 N.C. 188, 196,552 S.E.2d 142, 148
(2001). However, â â[s]o long as the father makes reasonable and consistent
payments for the support of mother or child, the motherâs refusal to accept assistance
cannot defeat his paternal interest.â â C.H.M., 371 N.C. at 30,812 S.E.2d at 810
(quoting In re Adoption of Anderson, 360 N.C. 271, 279,624 S.E.2d 626, 630
(2006)).
¶ 14 In 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.
Byrd, 354 N.C. at 191,552 S.E.2d at 145
. Further, the Court also emphasized
tangible support is required under N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II).Id.
at 196-
97, 552 S.E.2d at 148. Thus, the Court concluded the respondentâs consent to the
adoption of the minor child was not required because ârespondent never provided
tangible support within his financial means to mother or child at any time during the
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relevant period before the filing of the adoption petition.â Id. at 197,552 S.E.2d at 148
.
¶ 15 In Anderson, the Supreme Court noted the importance of a âpayment recordâ
to establish a putative father made reasonable and consistent payments. 360 N.C. at
279,624 S.E.2d at 630-31
. There, the respondent-father presented evidence he made
various offers of financial support to the biological mother, but the mother refused to
accept his assistance. Id. at 278-79,624 S.E.2d at 630
. As such, the respondent never
actually provided any payments or support to the mother or the minor child. Id. at
279,624 S.E.2d at 630
. Thus, the Court concluded respondentâs consent to the minor
childâs adoption was not required because â[b]y doing nothing more than sporadically
offering support to [mother], respondent left the support prong of N.C. [Gen. Stat. §]
48-3-601 unsatisfied.â Id. at 279, 624 S.E.2d at 631.
¶ 16 In C.H.M., the Supreme Court emphasized âthe importance of a verifiable
payment record to establish that a putative father made reasonable and consistent
payments.â C.H.M., 371 N.C. at 31,812 S.E.2d at 811
(citing Anderson,360 N.C. at 278
,624 S.E.2d at 630
). In that case, the respondent-father neither purchased any
baby items for the minor child nor provided any monetary payments for the minor
childâs support. Id. at 24, 812 S.E.2d at 806. Instead, the respondent presented
evidence of a lockbox where he had placed money âfor the support of the minor child.â
Id. at 25, 812 S.E.2d at 807. However, the Court concluded the respondentâs evidence
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was insufficient to demonstrate the respondent complied with the statutory support
payment requirements. Id. at 32, 812 S.E.2d at 811. In so concluding, the Court
reasoned the respondent failed to demonstrate the money placed in the lockbox
constituted âreasonable and consistent paymentsâ prior to the filing of the petition for
adoption as the ârespondent presented comingled financial evidenceâ and did not
know how much money was placed in the lockbox at any relevant time. Id.
¶ 17 In the case sub judice, Respondent, as distinguished from the respondents in
Byrd, Anderson, and C.H.M., provided actual, tangible support in the form of food,
clothing, transportation, and baby supplies for the benefit of both Mother and Layla,
as opposed to mere offers of support. Further, unlike the respondent in Anderson,
who offered evidence of âsporadicâ offers of support to the biological mother, here,
Respondent provided documentation in the form of receipts, bank statements, and a
self-created âPregnancy Care Expense Reportâ as evidence of the tangible support he
provided Mother and Layla. Here, Respondent provided what the trial court found
to be consistent and reasonable within his financial means: tangible itemsâa car
seat, a crib, baby clothing, diapers, formula, and other baby suppliesâfor the support
of the minor child. Further, Respondent not only provided support to the minor child,
but he also provided support to Mother throughout her pregnancy and after Laylaâs
birth. Moreover, unlike the respondents in Byrd, Anderson, and C.H.M., here,
Respondent also prepared his own home for the minor child with a bed, toys, and baby
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clothing. The Court in Anderson suggested the ârespondent could have supplied the
requisite support [by] . . . opening a bank account or establishing a trust fund . . . in
accordance with his financial resources[,]â 360 N.C. at 279,624 S.E.2d at 630-631
;
however, while opening a bank account or establishing a trust fund may satisfy the
support requirement of N.C. Gen. Stat. § 48-3-601, that is merely one way to satisfy
the statutory requirement.
¶ 18 Indeed, as expressly stated in the statute, the support required by Section 48-
3-601 may include âtangible means of support[.]â N.C. Gen. Stat. § 48-3-601(b)(4)(II).
As such, the instant case is distinguishable from Byrd, Anderson, and C.H.M as
Respondent actually provided tangible support to both the biological mother and the
minor child during and after the pregnancy term. Moreover, Respondent provided
this tangible support prior to the statutory deadlineâ27 June 2019, when the
Petitioners filed the Petition for Laylaâs adoption. See In re Adoption of K.A.R., 205
N.C. App. 611, 617,696 S.E.2d 757, 762
(2010) (â[T]he bright-line requirementâthat
the support contemplated by the statute must be provided prior to the filing of
petitionâfound to absent in Byrd and Anderson, distinguishes this case.â)2.
2 We acknowledge Petitionersâ argument that K.A.R. was overruled sub silentio by our
Supreme Court in C.H.M. However, the applicability of K.A.R. was clearly at issue in C.H.M.,
as illustrated by the dissent in that case. While the majority in C.H.M., by omitting
discussion of our decision in K.A.R. clearly found K.A.R. unpersuasive and inapplicable to the
facts of C.H.M., it also did not expressly overrule K.A.R. despite the opportunity and
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¶ 19 Thus, the trial court did not err in finding Respondent provided, in accordance
with his financial means, reasonable and consistent payments for the support of both
Mother and Layla. Therefore, the trial court also did not err in determining
Respondent satisfied the statutory requirements of N.C. Gen. Stat. § 48-3-
601(2)(b)(4)(II). Consequently, the trial court properly concluded Respondentâs
consent was required in order for Layla to be legally adopted.
Conclusion
¶ 20 Accordingly, for the foregoing reasons, we affirm the trial courtâs Order
concluding Respondentâs consent is required for the minor child to be legally adopted.
AFFIRMED.
Chief Judge STROUD and Judge JACKSON concur.
authority to do so. We further note the Supreme Court denied discretionary review in K.A.R.
As such, we decline to conclude K.A.R. is overruled, and it retains precedential value in this
Court. See also In re Civil Penalty, 324 N.C. 373, 384,379 S.E.2d 30, 37
(1989) (âWhere a
panel of the Court of Appeals has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent, unless it has been overturned
by a higher court.â).