In re B.M.T., ___ N.C. App. ___ (January 2, 2024)
Held:
Affirmed
- Procedural history: This is an appeal of a district court order concluding Father’s consent was required for adoption of the child. The court of appeals previously found no error in the district court’s determination, concluding that the criteria of G.S. 48-3-601(2)b.4.II. had been met to require Father’s consent. Father had provided reasonable and consistent payments for the support of the child and Mother in accordance with his financial means and had communicated with and visited with Mother while pregnant and the child after birth. The supreme court granted a PDR and issued an order that reversed and remanded to the court of appeals for “consideration of any outstanding issues on appeal.” In this opinion, the court of appeals affirmed the district court’s conclusion that father’s consent was required on a different basis.
- Facts: Mother directly placed the child with the prospective adoptive parents without Father’s knowledge or consent. Prior to the prospective adoptive parents filing a petition for adoption of the child in North Carolina, Father and Mother executed a Voluntary Acknowledgement of Paternity (VAP) with the State of Tennessee, which was the child’s home state. In his Appellee’s Brief, Father argues that the VAP executed prior to the filing of the adoption served as legitimation under TN law, requiring his consent to adoption of the child under G.S. 48-3-601(2)b.3.
- Under G.S. 48-3-601(2)b.3., “[i]n a direct placement, consent is required of a man who may or may not be the biological father but who ‘[b]efore the filing of the [adoption] petition, has legitimated the minor under the law of any state[.]’ ” Sl. Op. at 3. Tennessee law provides that (1) a legally executed VAP constitutes a legal finding of paternity on the individual named, and (2) that establishing paternity equates to establishing legitimation (unlike in NC).
- Unchallenged findings include that before the adoption petition was filed in NC, Father filed a VAP in Tennessee, which included notarized signatures of both Mother and Father; a certified copy of the VAP was an exhibit in the adoption proceeding; and that Tennessee was the home state of the child and under TN law a VAP requires a father’s consent to adoption.
- Father’s consent was required under G.S. 48-3-601(2)b.3. The VAP filed in TN constitutes legitimation under TN law, and this legitimation occurred prior to the filing of the adoption petition.
Category:
Adoption of a Minor ChildStage:
ConsentTopic: