1. Termination of Parental Rights_paternity_full hearing_due process rights of parent
The trial court erred in a termination of parental rights proceeding by not holding a full
hearing on paternity even though a paternity test showed a zero probability that respondent was
the father. The right of a named respondent to offer evidence is inherent in the due process
rights of parents.
2. Termination of Parental Rights_findings_lack of evidence_court's observations not
sufficient
There was insufficient evidence to support the court's findings in a termination of
parental rights proceeding where no evidence was presented at the hearing and paternity test
results which the court had seen were not entered into evidence. A fact finder's observation does
not constitute evidence and cannot provide the basis for a finding.
3. Paternity_admissibility of test results_rebuttable presumption not applicable
The rebuttable presumption of admissibility of paternity test results created by N.C.G.S.
§ 8-50.1(b1) did not apply where the test results had been seen by the court but never actually
offered or received into evidence. The statute creates a rebuttable presumption, but the court
here refused to give respondent an opportunity to rebut the presumption.
4. Termination of Parental Rights_father excluded by paternity test_standing_service
A respondent in a termination of parental rights case who was excluded by a paternity
test lacked standing to raise any issue concerning service on a John Doe father, but the court
erred by excluding respondent from the proceeding because he was the only potential father
served, and the proceeding could only have concerned his parental rights.
Thurman, Wilson & Boutwell, by W. David Thurman, for
petitioner-appellee.
Rebekah W. Davis, for respondent-appellant.
HUDSON, Judge.
Respondent Mungo appeals the trial court's order terminatingparental rights of minor child L.D.B. For the reasons set forth
below, we reverse the decision of the trial court.
Minor child L.D.B. was born in August of 2001, at which time
her mother surrendered parental rights and put her up for adoption.
At that time, the mother refused to give the adoption agency the
father's name. Within a couple of weeks, though, the mother named
respondent Mungo as L.D.B.'s father, and he acknowledged that he
could be the father. Respondent Mungo and petitioner, the adoption
agency (hereinafter “the agency”), discussed paternity testing, but
could not agree where the test would be performed or who would pay
for it. The record reveals nothing further on this case until the
agency filed the petition for termination of parental rights (TPR)
on 22 July 2002. The petition named Mungo as the father and the
sole respondent, alleging as grounds failure to support the child.
Mungo asserts that the parties were unable to agree on a cost
effective paternity test, while the agency argues that respondent
agreed to pay for half but did not follow through. The agency
filed a motion for a paternity test on 8 November 2002 and on 7
January 2003 the court entered an order for Mungo to submit to the
test.
Mungo missed two court-imposed deadlines for the test and was
sanctioned by the court on 31 March 2003. Also on that date, the
court again ordered him to arrange for the test and notify the
court once it was completed. The test was completed on or about 10
April 2003. Mungo asserts that the test results were not delivered
to the court or the parties' attorneys, but were held by the Child
Support Enforcement Agency until his attorney went to the agencyoffice and got a copy of the top page of the test on 6 May 2003.
His attorney then transmitted a copy of the paternity test to the
agency's counsel, who sent it directly to the court. The test
showed a zero percent probability that Mungo is L.D.B.'s father.
In a 6 May 2003 letter to the agency's counsel, Mungo's
attorney stated, “if I hear nothing from my client, I do not plan
to be at the next hearing which will enable you to proceed in
whatever manner you wish.” Eight days later, on 14 May 2003, the
TPR hearing was held. Mungo and his attorney attended and
attempted to proffer evidence, but the court did not allow them to
introduce any evidence, declaring that Mungo had no standing, based
on the results of the paternity test. On 29 May 2003, the court
entered orders excluding Mungo as the father of the child and
terminating the parental rights of the father.
[1] Respondent Mungo first argues that the trial court erred
in refusing to hold a full and fair hearing or take any evidence
regarding the issue of paternity. We agree. It is well-
established that a termination of parental rights must comply with
the requisites of the Due Process Clause. Santosky v. Kramer, 455
U.S. 745, 753, 71 L. Ed. 2d 599, 606 (1982). “The fundamental
premise of procedural due process protection is notice and the
opportunity to be heard.” Peace v. Employment Sec. Comm'n, 349
N.C. 315, 322, 507 S.E.2d 272, 278 (1998).
Here, the TPR petition alleges that “[t]he identified father
of the child in this action is” Mungo and that sufficient grounds
exist to terminate his parental rights pursuant to N.C. Gen. Stat.
§ 7B-111(a)(1), (3), (5) and (7) (2003). Although Mungo was dulyserved with the petition to terminate his parental rights and was
present at the hearing, the trial court nevertheless chose not to
hear any argument or receive any evidence from Mungo. The judge
told Mungo's attorney:
At the stage we are in these proceedings, I think it's most
appropriate that your client be excluded from any opportunity
to offer evidence at this point . . . . According to the
official result of the paternity test ordered by the Court,
it's this Court's ruling that he does not have standing to
participate in this hearing and that as to his interest, this
hearing is complete (emphasis added).
The court holds a hearing in order to determine the existence
or nonexistence of the grounds alleged in the TPR petition.
N.C.G.S. § 7B-1109 (2003). Our Supreme Court has recognized that
the “parental liberty interest 'is perhaps the oldest of the
fundamental liberty interests.'” Owenby v. Young, 357 N.C. 142,
144, 579 S.E.2d 264, 266 (2003). Similarly, this Court has
previously concluded that, at an adjudication of neglect hearing,
“the trial court must protect the due process rights not only of
the child, but also of the parent.” Thrift v. Buncombe County
Dep't of Soc. Servs. 137 N.C. App. 559, 561, 528 S.E.2d 394, 395
(2000). We conclude that these due process rights also extend to
the parent during a termination proceeding. We further conclude
that the right of a named respondent to offer evidence regarding
the petition's allegations, including whether the respondent is
actually a parent of the minor child, is inherent in the protection
of due process. Thus, having properly been made a party to the
proceedings, Mungo was entitled to an adequate opportunity to be
heard regarding the termination of his parental rights, unless and
until the trial court either dismissed him as a party or dismissedthe underlying petition. The trial court's subsequent exclusion of
Mungo for lack of standing did not amount to his dismissal from the
hearing, after which the trial court terminated “the parental
rights of the father of” L.D.B. We conclude that the trial court
erred in refusing to consider evidence and arguments from Mungo.
[2] Mungo also argues that there was insufficient evidence to
support the court's findings of fact and conclusions of law, as no
evidence was presented at the hearing and the test results were not
entered into evidence. Again, we agree. There must be competent
evidence to support the court's findings of fact and conclusions of
law. Shear v. Stevens Building Co., 107 N.C. App. 154, 418 S.E. 2d
841 (1992). The court found that Mungo was not the father based
solely on the results of the paternity test, which the judge had
seen before the hearing when the agency's counsel sent a copy of
the results to the court. A copy of the test results was in the
court file, but the original was missing and neither the results,
nor any other evidence, were introduced. Mungo's attorney informed
the trial court that “both [Mungo] and the biological mother are
convinced that he's the father and the tests don't bear that out,
so something is askewed [sic] from their point of view,” and that
he intended to call witnesses regarding the circumstances of the
paternity test. However, as discussed, the court refused to take
this evidence and based its findings solely on the paternity test
results the judge had viewed before the hearing. A fact-finder's
observation “does not constitute evidence and cannot provide the
basis for any finding of fact.” Carrington v. Housing Authority of
the City of Durham, 54 N.C. App. 158, 160, 282 S.E.2d 541, 542(1981) (citing Weidle v. Cloverdale Ford, 50 N.C. App. 555, 557,
247 S.E.2d 263, 264 (1981)). As Mungo correctly asserts, without
any evidence, the court is unable to make proper findings of fact
or conclusions of law based solely on a copy of the test results
viewed prior to the hearing.
[3] Both parties devote considerable argument to N.C. Gen.
Stat. § 8-50.1 (b1) (2003) in their respective briefs. G.S. § 8-
50.1 (b1) provides for admission of paternity tests in civil
actions. In relevant part, it states:
In the trial of any civil action in which the question of
parentage arises, the court shall, on motion of a party, order
the mother, the child, and the alleged father-defendant to
submit to one or more blood or genetic marker tests . . . .
Verified documentary evidence of the chain of custody of the
blood specimens obtained pursuant to this subsection shall be
competent evidence to establish the chain of custody. Any
party objecting to or contesting the procedures or results of
the blood or genetic marker tests shall file with the court
written objections setting forth the basis for the objections
and shall serve copies thereof upon all other parties not less
than 10 days prior to any hearing at which the results may be
introduced into evidence . . . . If no objections are filed
within the time and manner prescribed, the test results are
admissible as evidence of paternity without the need for
foundation testimony or other proof of authenticity or
accuracy. The results of the blood or genetic marker tests
shall have the following effect:
(1) If the court finds that the conclusion of all the experts,
as disclosed by the evidence based upon the test, is that the
probability of the alleged parent's parentage is less than
eighty-five percent (85%), the alleged parent is presumed not
to be the parent and the evidence shall be admitted. This
presumption may be rebutted only by clear, cogent, and
convincing evidence. G.S. § 8-50.1(b1).
Here, it is undisputed that Mungo was ordered to submit to the
DNA test and thus the test falls within the ambit of this statute.
Mungo contends that the test did not meet the statutory
requirements because there was no verified documentary evidence of
the chain of custody. He also argues that he did not have enoughtime before the hearing to file a written objection. The agency
contends that the test results did meet the statutory requirements
and could thus not be challenged by Mungo at the hearing, as he had
not filed a written objection to the test results prior to the
trial. Without deciding the merits of these arguments, we conclude
that even if the document were properly verified and even if Mungo
failed to file written objections before the hearing, the trial
court still erred by precluding Mungo from participating, since the
presumption created by the test is, according to this statute,
rebuttable. G.S. § 8-50.1(b1)(1).
First, the statute clearly states that if the test meets the
statutory requirements, the results are merely “admissible as
evidence of paternity without the need for foundation testimony or
other proof of authenticity or accuracy.” G.S. § 8-
50.1(b1)(emphasis added). The test results, while admissible,
were never actually offered or received into evidence. Admissible
is not the same as admitted into evidence.
Furthermore, even if the test results met the statutory
requirements and had been properly admitted into evidence, they
only create a rebuttable presumption. A rebuttable presumption is
not “an irrebutable conclusion of law. It is a mere inference of
fact.” In Re: Will of Wall, 223 N.C. 591, 595, 27 S.E.2d 728, 731
(1943) (internal quotes and citation omitted). A rebuttable
presumption has
no weight as evidence. It serves to establish a prima facie
case, but if challenged by rebutting evidence, the presumption
cannot be weighed against the evidence. Supporting evidence
must be introduced, without giving any evidential weight to
the presumption itself. Id. at 596, 27 S.E.2d at 731.
(emphasis added; internal citations and quotes omitted).
As discussed, the court refused to give Mungo an opportunity to
rebut the presumption. The agency argues that because the test
showed a zero percent probability of Mungo's paternity, no evidence
could have been presented which would rebut the presumption by
“clear, cogent, and convincing evidence,” as required by the
statute. G.S. § 8-50.1(b1)(1). However, this Court has affirmed
cases in which testimony overcame the paternity test results. For
example, this Court held that a putative father's testimony that he
did not know the mother nor recall meeting her was sufficient to
establish that he was not the father, even though a paternity test
showed a 99.96% probability of parentage. Nash County Dep't of
Soc. Servs. v. Beamon, 126 N.C. App. 536, 538, 485 S.E.2d 851, 852
(1997) (holding that testimony rebutted the presumption created by
G.S. § 8-50.1(b1) (4), which creates a presumption of parenthood
where the paternity test shows a probability of parentage 97% or
greater that “may be rebutted only by clear, cogent, and convincing
evidence”). Thus, the court erred in not allowing Mungo to attempt
to rebut the statutory presumption created by the test results.
[4] Respondent Mungo also argues that the trial court erred by
entering a TPR order because there was no service on any
prospective father other than him, and he was not allowed to
participate in the TPR hearing. Petitioner asserts that Mungo
lacks standing to raise this argument. We agree that Mungo lacks
standing to raise any issue regarding the court's lack of service
on a potential John Doe father, but he has properly raised the
issue regarding the court's failure to allow him to participate in
the TPR hearing. Although the court first found that Mungo was not the father,
it then proceeded to hold the TPR hearing, but denied Mungo the
opportunity to participate. The TPR hearing could only have
concerned termination of Mungo's parental rights, as the entire
proceeding was based on a petition to terminate his rights.
Although the court concluded as law that “the father has been
properly served,” Mungo was the only potential father served. The
court had no authority to proceed as to any potential father except
for Mungo; thus, the court improperly excluded Mungo from the TPR
hearing about his parental rights.
For the above reasons, we reverse the trial court's orders
regarding paternity and termination of parental rights.
Reversed.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
*** Converted from WordPerfect ***