News: CJ Exclusives

Court Overturns Adoption Ruling

Supreme Court clarifies level of support needed from father of child

North Carolina law provides that a biological father has a right to prevent his offspring from being put up for adoption without his consent. To preserve this right, the father must provide actual financial support for the offspring. In a ruling Jan. 27, the state Supreme Court clarified what constitutes the necessary level of support under the law. In doing so, it rejected a lower standard established by the N.C. Court of Appeals.

Kristine Anderson and Michael Avery began a monogamous relationship in the autumn of 2001 while attending Northside High School in Onslow County. Anderson became pregnant in the spring and in the summer told Avery that she would put the child up for adoption after it was born. Avery originally agreed, but changed his mind after talking to his mother. After the child was born Jan. 6, 2003, he contested Anderson’s attempts to place the child up for adoption.

Before the courts, the critical issue was whether Avery had provided adequate financial support to Anderson while she was pregnant or to the child afterward. Avery lived at home and had no real expenses besides car insurance. He worked regularly after dropping out of school.

Avery admitted that he had never provided any actual financial support for Anderson. He had, however, offered Anderson money at school on one or more occasions before he dropped out of school in September 2002. Avery’s mother offered to let the woman move in with her, which Ms. Anderson refused to do. In December 2002, Avery went to her parents’ house and offered her $100, which was rejected.

Avery’s lawyer sent Anderson a letter shortly before the child was born acknowledging Avery’s paternity, offering financial assistance to her and the baby, and giving notice that he would not consent to the adoption.

In a ruling in 2001, In re Adoption of Byrd, the N.C. Supreme Court specified what was required of someone in Anderson’s situation to preserve his right to prevent the mother from placing the child up for adoption:

“[The putative father] must have satisfied… three prerequisites… prior to the filing of the adoption petition, in order for his consent to be required. [He] must have acknowledged paternity, made reasonable and consistent support payments for the mother or child or both in accordance with his financial means, and regularly communicated or attempted to communicate with the mother and child. Under the mandate of the statute, a putative father’s failure to satisfy any of these requirements before the filing of the adoption petition would render his consent to the adoption unnecessary.”

Only the financial support element was at issue in Anderson’s case. Upon hearing Avery’s appeal, the N.C. Court of Appeals held that Anderson’s “tenders” of financial support had been enough to satisfy state law.

“[A]ssuming at least some money was tendered at school, [respondent] provided tangible money and a tangible document expressing a willingness to provide assistance. These provisions were made directly to Ms. Anderson. We hold this falls within the contemplation of Byrd and the statute as requiring the putative father to ‘provide[]’ payments of support. . . . [Respondent] sufficiently tendered support in tangible form such that it had to be directly rebuffed…”

The N.C. Supreme Court was, however, not swayed by the Court of Appeal’s reasoning.

“Because respondent merely offered support but did not provide the actual financial support mandated under N.C.G.S. 48-3-601, we hold his consent to the adoption is not required,” Justice Paul M. Newby wrote for a unanimous Supreme Court in overturning the appeals court.

Newby noted that the wording of Byrd was clear, “We believe, however, that ‘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,” and that the Supreme Court saw no reason to modify it. In doing so, it rejected the Court of Appeals characterization of Anderson’s actions as “tenders” and not “offers.”

The high court also rejected Avery’s contention that to reverse the Court of Appeals decision would undermine the rights of fathers.

“Notwithstanding respondent’s arguments to the contrary, our resolution of the instant case does not grant biological mothers the power to thwart the rights of putative fathers. The subsection obliges putative fathers to demonstrate parental responsibility with reasonable and consistent payments ‘for the support of the biological mother’… The legislature’s deliberate use of ‘for’ rather than ‘to’ suggests the payments contemplated by the subsection need not always go directly to the mother. So 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. Here, respondent could have supplied the requisite support any number of ways, such as opening a bank account or establishing a trust fund for the benefit of Anderson or their child. Had he done so, Anderson’s intransigence would not have prevented him from creating a payment record through regular deposits into the account or trust fund in accordance with his financial resources. By doing nothing more than sporadically offering support to Anderson, respondent left the support prong of N.C.G.S. 48-3- 601 unsatisfied and himself without standing to obstruct the adoption of N.A.” (Emphasis in decision.)

The case is In re Adoption of Anderson, (448PA04).

Michael Lowrey is associate editor of Carolina Journal.