In re: B.M.T. ( 2022 )


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  •                      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            Petitioners—the prospective adoptive parents of Layla1—appeal from the trial
    court’s    Order    entered    16    September   2021,   requiring    Respondent-Father’s
    (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 Layla’s biological
    mother (Mother) were involved in a romantic relationship at the time of Layla’s
    conception. Respondent and Mother continued their relationship during Mother’s
    pregnancy,    and   Respondent    provided    Mother     with   food,   clothing,   cash,
    transportation, personal items, and housing during the pregnancy.               Without
    Respondent’s 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, Respondent’s name was added to Layla’s birth certificate, and Layla’s
    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 “able and willing to raise
    and care for [his] child in every way possible.” On 27 August 2019, Petitioners filed
    a Motion to find Respondent’s consent not required, stating Mother consistently
    reported the identity of the biological father as “unknown” and “the unknown birth
    father’s consent is statutorily unnecessary pursuant to [N.C. Gen. Stat.] §§ 48-3-601
    and 48-3-603.” 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 “Pregnancy Care Expense Report”. 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
    Respondent’s consent to the minor child’s adoption is required pursuant to 
    N.C. Gen. Stat. § 48-3-601
    . The trial court’s 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 doctor’s 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 child’s
    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:
    “Respondent’s consent shall be required in order for the minor child . . . to be legally
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    adopted.” Petitioners timely filed written Notice of Appeal on 13 October 2021.
    Issues
    ¶6         The dispositive issues on appeal are: (I) whether the trial court’s Findings of
    Fact are supported by competent evidence; and (II) whether the trial court erred in
    concluding Respondent’s consent was required for the adoption of the minor child.
    Analysis
    ¶7         Adoption proceedings are “heard by the court without a jury.” 
    N.C. Gen. Stat. § 48-2-202
     (2021). “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) (citation and
    quotation marks omitted). “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 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), aff’d
    on other grounds, 
    354 N.C. 188
    , 
    552 S.E.2d 142
     (2001)). “[I]n reviewing the evidence,
    we defer to the trial court’s determination of witnesses’ credibility and the weight to
    be given their testimony.” 
    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 Petitioners’ 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 Respondent’s 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
    Respondent’s testimony is not credible evidence to support the challenged Findings,
    it is not the duty of this Court to reweigh the credibility of Respondent’s 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))
    (“ ‘Credibility, 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.’ ”). Thus, because the Findings are supported by
    competent evidence, these Findings are binding on appeal.
    II.   Respondent’s Reasonable and Consistent Support
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    ¶ 10         Next, Petitioners contend the trial court erred in finding Respondent provided
    “reasonable and consistent payments”, requiring Respondent’s consent to Layla’s
    adoption. Chapter 48 of our General Statutes governs adoption proceedings in North
    Carolina. Section 48-3-601 requires a man “who may or may not be the biological
    father” 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: “(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.” 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 “support” required under 
    N.C. Gen. Stat. § 48-3-601
    (2)(b)(4)(II) is not
    expressly defined, our Supreme Court has stated: “ ‘support’ 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.” In re Adoption of Byrd, 
    354 N.C. 188
    , 196, 
    552 S.E.2d 142
    , 148 (2001). However, “ ‘[s]o long as the father makes reasonable and consistent
    payments for the support of mother or child, the mother’s refusal to accept assistance
    cannot defeat his paternal interest.’ ” 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 respondent’s consent to the
    adoption of the minor child was not required because “respondent 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.” 
    Id. at 197
    , 
    552 S.E.2d at 148
    .
    ¶ 15          In Anderson, the Supreme Court noted the importance of a “payment record”
    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 respondent’s consent to the minor
    child’s adoption was not required because “[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.” Id. at 279, 
    624 S.E.2d at 631
    .
    ¶ 16          In C.H.M., the Supreme Court emphasized “the importance of a verifiable
    payment record to establish that a putative father made reasonable and consistent
    payments.” 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
    child’s support. Id. at 24, 
    812 S.E.2d at 806
    . Instead, the respondent presented
    evidence of a lockbox where he had placed money “for the support of the minor child.”
    Id. at 25, 
    812 S.E.2d at 807
    . However, the Court concluded the respondent’s 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 “reasonable and consistent payments” prior to the filing of the petition for
    adoption as the “respondent presented comingled financial evidence” 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 “sporadic” offers of support to the biological mother, here,
    Respondent provided documentation in the form of receipts, bank statements, and a
    self-created “Pregnancy Care Expense Report” 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 items—a car
    seat, a crib, baby clothing, diapers, formula, and other baby supplies—for 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 Layla’s
    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 “respondent could have supplied the
    requisite support [by] . . . opening a bank account or establishing a trust fund . . . in
    accordance with his financial resources[,]” 
    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 “tangible means of support[.]” 
    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 deadline—27 June 2019, when the
    Petitioners filed the Petition for Layla’s adoption. See In re Adoption of K.A.R., 
    205 N.C. App. 611
    , 617, 
    696 S.E.2d 757
    , 762 (2010) (“[T]he bright-line requirement—that
    the support contemplated by the statute must be provided prior to the filing of
    petition—found to absent in Byrd and Anderson, distinguishes this case.”)2.
    2  We acknowledge Petitioners’ 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 Respondent’s
    consent was required in order for Layla to be legally adopted.
    Conclusion
    ¶ 20          Accordingly, for the foregoing reasons, we affirm the trial court’s Order
    concluding Respondent’s 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) (“Where 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.”).