Adoption_-stepparent--consent--fraud--constructive fraud--public policy
The trial court did not err by concluding as a matter of law that respondent maternal
grandfather/adoptive father's consent to petitioner stepparent's adoption of the minor child was
not procured by fraud, because: (1) respondent cannot rely on the possibility that petitioner had
accessed Internet divorce sites in establishing that petitioner made a false representation; (2)
respondent was fully aware of the precarious status of the marriage; (3) assuming arguendo
without deciding that a showing of constructive fraud is sufficient to void a consent to adoption,
respondent has failed to show that constructive fraud occurred; and (4) public policy of North
Carolina as expressed in Chapter 48 mandates that respondent's motion to dismiss petitioner's
petition be denied since it encourages the finality of adoptions and the prompt, conclusive
disposition of adoption proceedings, it requires that the interests of the child take precedence
over the interests of anyone else including those who are parties to the marriage, and the minor
child has been raised by petitioner since January 2000 and considers petitioner his mother.
The Sandlin Law Firm, PA, by Deborah Sandlin, V.A. Davidian,
III, and Debra A. Griffiths, for petitioner-appellee.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
respondent-appellant.
McGEE, Judge.
Karem Fakhoury (respondent) is the maternal grandfather and
adoptive father of K.K.F. K.K.F. was born 2 June 1998 to
respondent's daughter, Raisha. In mid-December 1999, Raisha asked
respondent to raise K.K.F. Respondent agreed on the condition that
respondent be permitted to adopt K.K.F. Raisha and K.K.F.'s
biological father consented to the adoption, and respondentpetitioned for the adoption of K.K.F. on 7 January 2000.
At the time respondent petitioned for the adoption of K.K.F.,
respondent and Kimberly Fakhoury (petitioner) were living together
and discussing marriage. However, they did not yet have specific
wedding plans. Respondent and petitioner agreed that petitioner
would adopt K.K.F. pursuant to a stepparent adoption. Respondent
and petitioner agreed to wait for two years after they were married
for petitioner to adopt K.K.F. so that a home study would not need
to be completed. See N.C. Gen. Stat. § 48-2-501(d) (1999).
Respondent and petitioner were married on 27 April 2000.
Respondent signed a consent to the adoption on 19 September
2002, and petitioner filed a petition to adopt K.K.F. on 20
September 2002. Respondent's statutory ability to revoke the
consent expired on 26 September 2002. See N.C. Gen. Stat. § 48-3-
608(a) (2001).
Respondent and petitioner separated on 20 November 2002 when
petitioner left the marital home. Respondent testified that it was
a "total surprise" and that petitioner had not previously indicated
that she was contemplating leaving respondent. However, respondent
testified about several incidents of marital discord that occurred
prior to 20 November 2002. Respondent testified that petitioner
had previously separated from him for three or four nights.
Respondent also testified that he and petitioner had discussed
going to marriage counseling. Respondent testified that in June
2002, he and petitioner disagreed about their vacation plans in
Myrtle Beach, and that while they were in Myrtle Beach, they had adisagreement about respondent's drug use.
Respondent filed a motion to dismiss petitioner's petition to
adopt K.K.F. on 25 February 2003, alleging that respondent's
consent to the adoption was procured by fraud and was therefore
void. The trial court impaneled an advisory jury and the matter
was heard before the trial court and the advisory jury on 13 and 14
August 2003. See N.C. Gen. Stat. § 1A-1, Rule 39(c) (2003).
Respondent requested that the trial court instruct the jury on both
actual fraud and constructive fraud. Petitioner objected to an
instruction based on constructive fraud. The trial court
instructed the jury on actual fraud only.
The advisory jury rendered its verdict on 14 August 2003 and
found that petitioner did not fraudulently induce respondent to
execute the consent to petitioner's adoption of K.K.F. The trial
court took the case under advisement and in an order dated 22
October 2003, nunc pro tunc 14 August 2003, made the following
findings of fact:
18. The parties had separated in May, 2001
for about five days. Petitioner stayed
with her sister, Rhonda Green[,] during
that separation. Despite the fact that
the parties separated, [r]espondent
indicated that it was still his intention
at that time that [p]etitioner adopt
[K.K.F.].
. . . .
22. On June 15, 2002, the parties had a
disagreement that led to [p]etitioner
leaving the residence with the parties'
daughter and spending the night at her
mother's home. . . . Petitioner was very
upset about [r]espondent's use of
marijuana in the home. Petitioner hadrefused to go on vacation to Myrtle Beach
because of [respondent's] marijuana use
and the events that had transpired in
June 2001. [Petitioner] and [r]espondent
had gone to Myrtle Beach in June 2001 and
[r]espondent smoked a significant amount
of marijuana in the presence of
[p]etitioner and [K.K.F.] on that trip.
Petitioner was pregnant at that time and
became very upset and angry at
[r]espondent's refusal to stop smoking
the marijuana. She left the condominium
and took a walk with [K.K.F.] to get away
from the marijuana. [Petitioner] became
so upset that she called her mother.
23. By the spring and summer of 2002,
[r]espondent's drug use had become a very
significant issue to [p]etitioner. The
parties again planned to go to the beach.
Petitioner refused to go to the beach
because of the marijuana use. After
[p]etitioner refused to go to the beach
in 2002, [r]espondent told her that if
she would go to the beach then they could
talk about their problems. Petitioner
agreed to go to the beach and
[r]espondent smoked marijuana on that
vacation. This left [p]etitioner very
stressed and it is not surprising that
she sought medication for anxiety.
Likewise, it is not surprising that
[p]etitioner sought a counselor as it is
evident that the parties were arguing
much of the time about money and drugs.
. . . .
28. Given the arguments and status of the
marriage at the time [r]espondent gave
his consent for the adoption, he knew or
should have known that there was some
possibility that the parties would
separate. Further, given the fact that
[r]espondent had been represented by
Bobby Mills, one of the two members of
the American Academy of Adoption
Attorneys in North Carolina, in the
initial adoption, he should have had a
greater awareness of the consequences of
giving his consent for the adoption.
Evidence showed that [p]etitioner hadindicated many times to [r]espondent that
she had . . . serious concerns and
problems with his drug usage.
. . . .
32. Respondent hired Capital City Consulting
to run an analysis of the hard drive on
the family computer. . . .
33. . . . . Mr. Marcus [Capital City
Consulting employee] found that there had
been two web sites accessed with the
words divorce in them. One web site was
www.divorcecare.com
and the other was
www.fbcla.org. . . .
. . . .
36. No evidence was presented from either the
expert nor any other source regarding the
content of the web sites entitled
www.divorcecare.com
and
www.fbcla.org.
The actual websites were not produced and
[were] not entered. The [trial] court
can draw no conclusions regarding the
contents of the sites or what may have
been accessed. The web sites may very
well have contained information on self
care, comfort, solace, reflections, etc.
To draw any inference regarding the
content of the sites would be purely
speculative.
The trial court then made the following conclusions of law:
3. Respondent has failed to prove by clear
and convincing evidence that [p]etitioner
procured [r]espondent's consent for the
adoption through fraud.
4. Respondent's consent to the adoption of
his adopted son, [K.K.F.][,] was
voluntary and procured without fraud and
duress.
5. Petitioner did not fraudulently conceal
any material fact from [r]espondent in
procuring his consent for the adoption.
6. No good cause exists to delay the entry
of the adoption order.
The trial court thereafter denied respondent's motion to
dismiss petitioner's adoption petition. Respondent appeals.
We first note that respondent has failed to assign error to
any of the trial court's findings of fact. Therefore, all of the
trial court's findings of fact are deemed conclusive on appeal.
Draughon v. Harnett Cty Bd. of Educ., 166 N.C. App. 449, 451, 602
S.E.2d 717, 718 (2004) (citing Koufman v. Koufman, 330 N.C. 93, 97,
408 S.E.2d 729, 731 (1991)).
Respondent assigns error to the trial court's conclusion of
law that respondent's consent to petitioner's adoption of K.K.F.
was not procured by fraud. Conclusions of law are generally upheld
when they are supported by the findings of fact. In re Montgomery,
311 N.C. 101, 111, 316 S.E.2d 246, 253 (1984).
Consent to an adoption is void when "[b]efore the entry of the
adoption decree, the individual who executed the consent
establishes by clear and convincing evidence that [the consent] was
obtained by fraud or duress[.]" N.C. Gen. Stat. § 48-3-609(a)(1)
(2003). The elements of fraud are:
"(1) That [petitioner] made a representation
relating to some material past or existing
fact; (2) that the representation was false;
(3) that when [s]he made it, [petitioner] knew
that the representation was false, or made it
recklessly, without any knowledge of its truth
and as a positive assertion; (4) that
[petitioner] made the representation with
intention that it should be acted upon by
[respondent]; (5) that [respondent] reasonably
relied upon the representation and acted upon
it; and (6) that [respondent] thereby suffered
injury."
In re Baby Boy Shamp, 82 N.C. App. 606, 612, 347 S.E.2d 848, 852(1986), disc. review denied, 318 N.C. 695, 351 S.E.2d 750 (1987)
(quoting Keith v. Wilder, 241 N.C. 672, 675, 86 S.E.2d 444, 446
(1955)).
Respondent argues that petitioner made a false representation
when petitioner failed to reveal that, prior to obtaining
respondent's consent to the adoption, she had accessed "Internet
divorce sites," and she had told a counselor and a physician that
she was planning on separating from respondent. We disagree. We
first find that respondent cannot rely on the possibility that
petitioner had accessed "Internet divorce sites" in establishing
that petitioner made a false representation. The trial court's
finding of fact which, as mentioned earlier, is conclusive and
binding on this Court, states that no evidence was presented
regarding the content of the "Internet divorce sites." Therefore,
assuming arguendo that petitioner did in fact access "Internet
divorce sites," the lack of evidence regarding the content of the
web sites precludes a finding that, by visiting the web sites,
petitioner made any false representations about her intentions or
the status of the marriage.
In addition, the trial court found, and the evidence was
clear, that respondent was fully aware of the precarious status of
the marriage. Petitioner repeatedly indicated to respondent that
she was unhappy in the marriage. Respondent and petitioner had
several arguments about respondent's drug use. Petitioner had left
the marital home and separated from respondent for several days in
May 2001, and again for one night on 15 June 2002. Furthermore,the trial court specifically found that respondent "knew or should
have known that there was some possibility that the parties would
separate." We find that the trial court's findings of fact support
its conclusions of law that petitioner did not fraudulently conceal
any material facts from respondent and that she did not procure
respondent's consent to the adoption through fraud.
Respondent next assigns as error the trial court's failure to
apply a constructive fraud standard in determining whether the
consent to the adoption was procured by fraud. Petitioner contends
that a consent to an adoption is void for fraud only upon a showing
of actual fraud, and that a showing of constructive fraud is
insufficient. Assuming arguendo, without deciding, that a showing
of constructive fraud is sufficient to void a consent to adoption,
we find that respondent has failed to show that constructive fraud
occurred.
A claim for constructive fraud is shown by establishing "(1)
a relationship of trust and confidence, (2) that [petitioner] took
advantage of that position of trust in order to benefit [herself],
and (3) that [respondent] was, as a result, injured." White v.
Consolidated Planning, Inc., 166 N.C. App. 283, 294, 603 S.E.2d
147, 156 (2004), disc. review denied, 359 N.C. 286, 610 S.E.2d 717
(2005). "Put simply, a [respondent] must show (1) the existence of
a fiduciary duty, and (2) a breach of that duty." Keener Lumber
Co. v. Perry, 149 N.C. App. 19, 28, 560 S.E.2d 817, 823, disc.
review denied, 356 N.C. 164, 568 S.E.2d 196 (2002).
Respondent claims that petitioner breached the fiduciary dutybetween spouses when petitioner failed to disclose that she had
told a counselor and a physician that she was separating from
respondent. We disagree. Petitioner had left respondent twice
before and petitioner had confronted respondent numerous times
about her unhappiness with his drug use. Petitioner repeatedly
told respondent that she was unsatisfied in the marriage and
demonstrated, through leaving him twice before, that she was
willing and able to separate from him. Therefore, petitioner did
not breach her fiduciary duty to respondent and did not commit
constructive fraud.
The final assignment of error addressed in respondent's brief
contends that public policy opposes a stepparent adoption when the
stepparent, at the time of filing the petition for adoption, does
not intend to stay in the marriage with the legal parent.
Respondent argues that the public policy of North Carolina is to
"'endeavor[] to maintain the marital state[,]'" Vann v. Vann, 128
N.C. App. 516, 519, 495 S.E.2d 370, 372 (1998) (quoting Bruce v.
Bruce, 79 N.C. App. 579, 583, 339 S.E.2d 855, 858, disc. review
denied, 317 N.C. 701, 347 S.E.2d 36 (1986)), and that this policy
is not served by allowing a stepparent adoption under these facts.
While we acknowledge the State's interest in preserving
marital relations, the State also has a stated public policy
interest in providing children with stable and permanent homes. In
Chapter 48 of the North Carolina General Statutes, our General
Assembly has asserted that:
(a) The General Assembly finds that it is in
the public interest to establish a clearjudicial process for adoptions, to
promote the integrity and finality of
adoptions, to encourage prompt,
conclusive disposition of adoption
proceedings, and to structure services to
adopted children, biological parents, and
adoptive parents that will provide for
the needs and protect the interests of
all parties to an adoption, particularly
adopted minors.
(b) With special regard for the adoption of
minors, the General Assembly declares as
a matter of legislative policy that:
(1) The primary purpose of this Chapter
is to advance the welfare of minors
by (i) protecting minors from
unnecessary separation from their
original parents, (ii) facilitating
the adoption of minors in need of
adoptive placement by persons who
can give them love, care, security,
and support, (iii) protecting minors
from placement with adoptive parents
unfit to have responsibility for
their care and rearing, and (iv)
assuring the finality of the
adoption[.]
. . . .
(c) In construing this Chapter, the needs,
interests, and rights of minor adoptees
are primary. Any conflict between the
interests of a minor adoptee and those of
an adult shall be resolved in favor of
the minor.
(d) This Chapter shall be liberally construed
and applied to promote its underlying
purposes and policies.
N.C. Gen. Stat. § 48-1-100 (2003).
We find that the public policy of North Carolina as expressed
in Chapter 48 mandates that respondent's motion to dismiss
petitioner's petition be denied. Chapter 48 encourages the
finality of adoptions and the "prompt, conclusive disposition ofadoption proceedings[.]" N.C. Gen. Stat. § 48-1-100(a). Chapter
48 also requires that the interests of the child take precedence
over the interests of anyone else, including those who are parties
to the marriage. N.C. Gen. Stat. § 48-1-100(c). In this case,
K.K.F. has been raised by petitioner since January 2000 and
considers petitioner his mother. Furthermore, a decree of adoption
was entered on 30 October 2003 establishing petitioner as K.K.F.'s
adoptive mother. In order to promote the public policy as stated
in Chapter 48, we affirm the trial court's order denying
respondent's motion to dismiss petitioner's petition.
We deem those assignments of error not addressed in
respondent's brief to be abandoned. N.C.R. App. P. 28(b)(6).
Affirmed.
Judges TYSON and GEER concur.
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