Barber v Myers, (02-1235) 08/05/2003

Appeal by defendant from order entered 28 January 2002 by Judge Laura J. Bridges in District Court, Rutherford County. Heard in the Court of Appeals 5 June 2003.

J. Christopher Callahan for plaintiff-appellee.

Horn, Pack & Brown, P.A., by Becky J. Brown, for defendant- appellant.

    McGEE, Judge.

    Crystal G. Barber (plaintiff) is the mother of Brandon Jonathon Mark Barber (the child), born 17 February 1992. Plaintiff was unmarried at the time of the birth of the child. Plaintiff signed a consent to adoption on 27 February 1992, consenting to adoption of the child by her mother. Plaintiff named Jerry Wayne Dunaway (Dunaway) as the biological father of the child in an affidavit signed on 27 February 1992. Plaintiff's mother filed a petition to adopt the minor child on 2 March 1992. A final order of adoption was filed on 19 August 1992, declaring the child to be adopted by plaintiff's mother.
    Plaintiff filed a complaint dated 2 November 2000 againstSamineo Dee Myers (defendant) seeking child support, medical insurance, and one-half of all uninsured medical expenses of the child. Plaintiff did not allege that paternity of the child had been established; however, she attached, as an exhibit to her complaint, the results of a DNA parentage test indicating defendant was the father of the child. Defendant filed an answer and motion to dismiss, denying that he was the biological father of the child, and alleging that the child had been previously adopted. Defendant also moved for sanctions under N.C. Gen. Stat. § 1A-1, Rule 11.
    The trial court held a hearing on defendant's motion to dismiss and filed an order denying defendant's motion on 28 January 2002. The trial court stated it considered the pleadings, the adoption file of the child, and arguments of counsel in making its findings of fact that: plaintiff and defendant were never married, the child was born of plaintiff and defendant, the DNA parentage test determined that defendant was the biological father of the child, the adoption proceeding by plaintiff's mother did not terminate the parental rights of defendant as the biological father of the child, and defendant was still the father of the child. The trial court concluded, inter alia, that defendant still had all of the rights and duties of a parent to the child, including a duty to pay child support, and a right to petition the court for visitation with the child. Defendant appeals the trial court's order.
    Defendant argues that the trial court erred in denying his motion to dismiss. We note as a preliminary matter thatdefendant's appeal is interlocutory. However, this Court may issue a writ of certiorari to review a trial court's order when no right of appeal from an interlocutory order exists. N.C.R. App. P. 21(a)(1). The order from which defendant appeals imposed paternity on defendant, leaving only the determination of any child support that defendant would be required to provide the child. Given the unique facts of the present case, we choose to treat defendant's interlocutory appeal as a petition for writ of certiorari and address this case on the merits.
    Defendant's primary argument is that because the child was adopted in August 1992 by plaintiff's mother, the adoption terminated defendant's legal relationship with the child and any duties and obligations of defendant toward the child. The trial court found that the adoption proceeding did not terminate the parental rights and duties of defendant, the biological father of the child. Since the adoption occurred in August 1992, we analyze this case under the adoption provisions of Chapter 48 in effect at that time, being N.C. Gen. Stat. § 48-1 et seq., which was superceded on 1 July 1996 by a new Chapter 48. The prior N.C. Gen. Stat. § 48-23(2) provided that, upon the entry of a final order of adoption,
        [t]he biological parents of the person adopted, if living, shall, from and after the entry of the final order of adoption, be relieved of all legal duties and obligations due from them to the person adopted, and shall be divested of all rights with respect to such person.

N.C. Gen. Stat. § 48-23(2) (Cum. Supp. 1991). Therefore, "afterthe entry of the final order of adoption, the natural parents 'shall be divested of all rights' with respect to such child. By adoption, the adopted child becomes legally the child of the adoptive parents." Acker v. Barnes, 33 N.C. App. 750, 751, 236 S.E.2d 715, 716, (citation omitted), disc. review denied, 293 N.C. 360, 238 S.E.2d 149 (1977). In the case before us, the 1992 adoption of the child by plaintiff's mother divested defendant of all legal duties and obligations toward the child under the statute then in effect.   (See footnote 1)
    The prior N.C. Gen. Stat. § 48-28(a) in effect at the time of the adoption also provided that:
            After the final order of adoption is signed, no party to an adoption proceeding nor anyone claiming under such a party may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound thereby, save for such appeal as may be allowed by law. No adoption may be questioned by reason of any procedural or other defect by anyone not injured by such defect, nor may any adoption proceeding be attacked either directly or collaterally by any person other than a biological parent or guardian of the person of the child.

N.C. Gen. Stat. § 48-28(a) (Cum. Supp. 1991). Our Supreme Court held "that the provision in G.S. 48-28, which permits a direct or collateral attack on an adoption proceeding by a natural parent orguardian of the person of the child, is limited to such natural parent or guardian of the person of the child who was not a party to the adoption proceeding." Hicks v. Russell, 256 N.C. 34, 41, 123 S.E.2d 214, 219 (1961); see also Andrews v. Andrews, 79 N.C. App. 228, 230, 338 S.E.2d 809, 811 (1986) ("the provisions of G.S. 48-28 would prevent a collateral attack by defendant on the adoption, since he was a party to the proceeding"); In re Kasim, 58 N.C. App. 36, 43, 293 S.E.2d 247, 252 (1982) ("under G.S. 48-28, . . . a party to the adoption proceedings . . . may not, after the final order, question the validity of the adoption proceeding by reason of any defect therein").
    Plaintiff was a party to the adoption proceeding in 1992 and she may not question the validity of the adoption proceeding "by reason of any defect or irregularity therein, jurisdictional or otherwise." See N.C.G.S. § 48-28(a). Defendant asserted in his answer that the 1992 adoption was valid. He affirmatively defended against plaintiff's complaint for support, based on the 1992 adoption being "still a valid adoption." Plaintiff is barred by the prior statute from asserting, in effect, a collateral attack on the validity of the final adoption decree. Hicks, 256 N.C. at 41, 123 S.E.2d at 219. Therefore, the trial court erred in denying defendant's motion to dismiss.
    We reverse the trial court's order denying defendant's motion to dismiss and remand the case to the trial court for dismissal of plaintiff's complaint and for determination of defendant's motion for sanctions.    Reversed and remanded.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

Footnote: 1