1. Adoption_consent_statute_disjunctive
The three parts of N.C.G.S. § 48-3-601(2)(b)(4) (concerning consent to adoption) are to
be read disjunctively, each being an alternative to the other. While the statute is complexly
written, the coordinating conjunction between the phrases falls properly before the last in the
list, and the absence of “or” between the first two sub-parts does not mean that the two are read
together.
2. Adoption_reasonableness of putative father's support_child support guidelines
It was within the trial court's discretion in an adoption case to calculate the putative
father's probable support requirements under the statutory guidelines to use as a baseline for
determining the reasonableness and consistency of the putative father's support payments. A
child support order or written agreement is not the sole measure of reasonableness and
consistency for this determination.
3. Adoption--support provided by putative father--consent of putative father needed
There was no error in the trial court's conclusion that the consent of the putative father
was needed for adoption of a child where defendants did not assign error to the court's findings
regarding support provided by the father, and those findings supported the conclusion that his
payments were reasonable and consistent.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendants-appellants Terence and Cynthia Lillich.
Hedahl & Radtke, by Debra J. Radtke, for plaintiff-appellee
Walter Miller.
ELMORE, Judge.
Defendants appeal from an order determining that plaintiff's
consent was necessary before defendants could adopt theirdaughter's child. After careful review, we affirm the order of the
district court requiring plaintiff's consent before adoption
proceedings could go forth.
The evidence presented before the trial court tended to show
that while defendants' daughter, R.L., was still a minor, she and
Walter Miller (plaintiff) began having a consensual sexual
relationship. After plaintiff and R.L. had been in a monogamous
sexual relationship for approximately six months, the two conceived
a child in May 2001. Although plaintiff and R.L. were “both really
scared,” plaintiff later assured R.L. that “it would be okay.”
Defendants, Terence and Cynthia Lillith, R.L.'s parents,
brought an action in district court to determine whether
plaintiff's consent was necessary for their adoption of the child.
The district court initially determined that it was, but later
granted defendants' motion for a new trial on the basis of newly
discovered evidence regarding plaintiff's wages and payments. At
the new trial, Judge Stiehl determined that plaintiff's consent was
necessary under N.C. Gen. Stat. § 48-3-601 and entered an order
consistent with that determination. Defendants appeal from that
order.
Both parties agree that (1) N.C. Gen. Stat. § 48-3-601 is the
controlling statute; (2) this adoption is a direct placement; (3)
the minor's consent is not required since the child is under the
age of 12; and (4) the mother's consent is necessary. The only
dispute regards the consent of the father, plaintiff. The
controlling statute on determining whether the consent of a
putative father is necessary to an adoption, N.C. Gen. Stat. § 48-3-601 (2003) states in pertinent part:
[A] petition to adopt a minor may be granted
only if consent to the adoption has been
executed by:
(1) . . .
(2) . . .
a. . . .
b. Any man who may or may not be the
biological father of the minor but
who:
1. . . .
2. . . .
3. . . .
4. Before the earlier of the filing
of the petition or the date of a
hearing under G.S. 48-2-206, has
acknowledged his paternity of the
minor and
I. Is obligated to support the minor
under written agreement or by court
order;
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; or
III. After the minor's birth but before
the minor's placement for adoption or the
mother's relinquishment, has married or
attempted to marry the mother of the
minor by a marriage solemnized in
apparent compliance with law, although
the attempted marriage is or could bedeclared invalid; or
5. . . .
Id. (emphasis added)
[1] Defendants first argue that the three sub-parts of N.C.
Gen. Stat. § 48-3-601(2)(b)(4) are to be read conjunctively and not
disjunctively; specifically they argue that the first two sub-parts
must be read together as if connected by the word “and,” leaving
sub-part three as an alternative to one and two together. The
trial court determined that plaintiff met the requirements of N.C.
Gen. Stat. § 48-3-601(2)(b)(4)(II) and ordered his consent
necessary. Defendants argue that while plaintiff may have met sub
section (2)(b)(4)(II), he clearly did not meet sub-part (I) of the
same, i.e., he is not “obligated to support the minor under written
agreement or by court order[.]” N.C. Gen. Stat. § 48-3-
601(2)(b)(4)(I) (2003). Defendants would read sub-parts (I) and
(II) together, and since plaintiff was not bound by an order or
agreement then his consent to the adoption was not required under
the statute.
We cannot agree with this interpretation of the statute. This
is admittedly a complexly written statute, but nonetheless, the
sub-parts of subsection (2)(b)(4) by their plain language suggest
that they should be read disjunctively, each being an alternative
to the other. See, e.g., In re Adoption of Byrd, 354 N.C. 188, 552
S.E.2d 142 (2001); In re Adoption of Shuler, 162 N.C. App. 328, 590
S.E.2d 458 (2004). The absence of “or” between sub-parts (I) and
(II) does not mean the two are read together. To the contrary,
when listing more than two phrases, the coordinating conjunctionbetween them all falls properly before the last phrase in the list;
so that it is “1 . . . ; 2 . . .; or 3 . . . .” A man who has
acknowledged paternity does not need to be both “obligated to
support the minor under written agreement or by court order” and to
make reasonable and consistent payments, just one or the other.
This is the plain language of the statute.
[2] Defendants next argue that without having a written
agreement or child support order the trial court could not
determine whether plaintiff's payments were sporadic or consistent,
nor could it determine whether they were frivolous or reasonable.
This argument is without merit as well. It is not necessary to
determine whether plaintiff “has provided, in accordance with his
financial means, reasonable and consistent payments” of support, as
required by N.C. Gen. Stat. § 48-3-601(2)(b)(4)(II) (2003), solely
by looking at a child support order or agreement. Nonetheless, the
trial court did attempt to calculate plaintiff's probable support
requirements under our statutory guidelines as a baseline for
determining whether the payments made were reasonable and
consistent. Although such a measure is not required by the
statute, it was within the trial court's discretion to make its
determination of reasonableness based on the comparison.
[3] Finally, defendants argue that the trial court erred by
determining that the actual support payments made by plaintiff were
“reasonable and consistent.” Yet, defendants do not assign error
or take exception to any findings of fact in the trial court's
order. Accordingly, the court's findings are deemed conclusive and
binding on this Court. See Shuler, 162 N.C. App. at 331, 590S.E.2d at 460. Considering that, the trial court made numerous
findings that are sufficient to support its conclusions of law,
particularly findings number 10 and 11.
10. The Plaintiff provided financial support
for R.L. during the term of her pregnancy, to
include payment of doctor's bills for the
pregnancy testing and the purchase of
necessary items for the child's future use.
He purchased those items for the child
separately from his family, who provided their
own gifts to the child at two showers hosted
by them for the Defendant mother prior to the
child's birth.
11. Plaintiff has continued to provide support
for both R.L. and the child after the child's
birth through both the payment of cash in the
amount of at least $100.00 per month since the
child's birth, and the continuing provision of
items such as diapers and medicine for the
child. This financial support, in light of the
Plaintiff's limited financial means, is
reasonable and consistent and has been in
excess of that which would be required by the
child support guidelines. If Plaintiff were
employed full time earning minimum wage, his
child support obligation under the statutory
guidelines would be $57.00 per month. R.L.
acknowledged in this hearing that she had
previously testified that Walter Miller had
provided everything she had indicated the
child needed, with the exception of some bibs.
We cannot find error in the trial court's conclusion that
plaintiff's payments were reasonable and consistent, and as such
his consent was necessary to the child's adoption by defendants.
We find no error in the trial court's determination and affirm
its order requiring plaintiff's consent to adoption.
Affirmed.
Judges MARTIN and McCULLOUGH concur.
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