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IN RE ADOPTION OF BABY GIRL ANDERSON
FILED: 27 JANUARY 2006
Adoption--father's consent--not required--support offered but not accepted
Respondent's consent to adoption of his biological daughter was not required
because his attempts to offer financial support were rejected by the mother. The bright line rule
of In re Adoption of Byrd, 354 N.C. 188, is not modified; attempts or offers of support will not
suffice. However, the mother's refusal to accept assistance cannot defeat the father's paternal
interest as long as the father makes reasonable and consistent payments for the support of the
child, such as to a bank account or trust fund. N.C.G.S. § 48-3-601.
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous decision of the Court of Appeals, 165 N.C. App. 413,
598 S.E.2d 638 (2004), reversing and remanding an order entered
on 7 March 2003 by Judge Alice C. Stubbs in District Court, Wake
County. On 3 March 2005, the Supreme Court allowed respondent's
conditional petition for discretionary review as to additional
issues. Heard in the Supreme Court 15 November 2005.
Herring, McBennett, Mills & Finkelstein, P.L.L.C., by
Bobby D. Mills, E. Parker Herring, and Stephen W.
Petersen, for petitioner-appellants/appellees.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell,
The issue is whether the consent of respondent Michael
Avery must be obtained before petitioners' adoption of his
biological daughter may proceed. 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.
In autumn of 2001, Kristine Anderson and respondent
began a monogamous relationship while enrolled at Onslow County's
Northside High School. Anderson conceived respondent's child
sometime in the spring of 2002 and confirmed her pregnancy in
June or July. During July or August of 2002, Anderson informed
respondent of her plan to place the baby for adoption. Although
respondent initially agreed to this course of action, he withdrew
his consent after discussing the matter with his mother. On 18
September 2002, respondent quit high school. Anderson
subsequently gave birth to N.A. on 6 January 2003.
On 9 or 10 January 2003, respondent received notice of
petitioners' petition to adopt N.A.
(See footnote 1)
On 10 January 2003,
petitioners filed a motion asking the Wake County Clerk of Court
to determine whether respondent's consent to the adoption was
necessary under N.C.G.S. § 48-3-601 (permitting adoptions to
proceed without the consent of putative fathers who fail to meet
its requirements). Petitioners submitted an affidavit from
Anderson, who asserted
she and respondent were unwed and that
respondent had never provided financial or in-kind assistance
to her or their child. Respondent timely filed an opposition to
the proposed adoption. In an order dated 27 January 2003, the
Clerk of Court decided the adoption could proceed withoutrespondent's consent. Respondent thereafter filed a notice of
appeal to the district court for review de novo
During its 17 February 2003 session, the district court
conducted a hearing on the matter. Most of the evidence
concerned whether respondent had complied with the support prong
of N.C.G.S. § 48-3-601, which directs putative fathers who desire
a role in the adoption process to provide, in accordance with
[their] financial means, reasonable and consistent payments for
the support of the biological mother during or after the term of
§ 48-3-601(2)(b)(4)(II) (2005). The
evidence showed respondent had an employment history going back
to 1999, with stints at Food Lion, Little Caesars, and Citgo. At
the time of hearing, respondent worked for the International
House of Pancakes. Respondent lived with his parents while
Anderson was pregnant and paid nothing for rent, utilities, food,
or clothing. Following testimony from Anderson, respondent,
respondent's sister, and four of respondent's former classmates,
the trial court entered the below findings of fact concerning
respondent's efforts to furnish support to Anderson during her
15. The Respondent acknowledges that he never provided
any actual financial support to Ms. Anderson
he and four high school students testified that he
offered her money at school during . . . September,
October, and November of 2002 but that she rejected his
offers. The [testimony of] witnesses at trial . . .
ranged from offers of support having been made between
three or four times up to six to eight times. The
Respondent testified that he offered her money six to
seven times at school. Ms. Anderson testified that he
never offered her money at school. All the testimonyregarding offers made at school is not consistent with
the Respondent['s] having dropped out on September 18,
16. Considering the school calendar, the attendance
records of the student witnesses and the Respondent,
and the Respondent's withdrawal from school on
September 18, 2002, it is unlikely that the Respondent
made as many as six to eight offers at school. The
Respondent may have offered Ms. Anderson cash at school
on more than one occasion; however, . . . he failed to
ever provide Ms. Anderson with any tangible or actual
17. Some time during the late summer of 2002, prior to
September 22, 2002, the Respondent's mother told Ms.
Anderson that she would be welcome to come stay with
the Respondent's family . . . ; however, Ms. Anderson
did not accept that offer. . . .
18. On September 22, 2002, the Respondent, Ms.
Anderson, and their parents conducted a family
meeting to discuss the pregnancy. At no time during
this meeting did the Respondent or his parents make any
offers to provide financial support to Ms. Anderson or
19. During the term of the pregnancy, the Respondent
had the ability to provide financial support or other
tangible support to Ms. Anderson; however, he failed to
The Respondent did manage to purchase a car in
the amount of $1,000 for himself during the fall of
20. The Respondent did make some effort to provide
support to Ms. Anderson. In December of 2002, the
Respondent and his sister drove to the Andersons'
residence. The Respondent went to the front door and
attempted to hand deliver an envelope containing a
letter and a check in the amount of $100.00. Ms.
Anderson's father answered the door and refused to
accept the envelope. The Respondent offered no
documentary evidence of the check or letter at trial.
21. On December 22, 2002, the Respondent's attorney
sent a letter to Ms. Anderson in which the Respondent
acknowledged paternity, offered financial assistance to
Ms. Anderson and the baby, and gave notice that he was
not willing to consent to the adoption. . . .
(Emphasis added.) Based on its findings of fact, the trial court
concluded respondent's consent to adoption was not required under
N.C.G.S. § 48-3-601 since respondent had fail[ed] to provide
actual support to Ms. Anderson or the baby. The court cited In
re Adoption of Byrd
, 354 N.C. 188, 552 S.E.2d 142 (2001) as
. According to the trial court, Byrd
that [mere] offers of support by [the putative father] or by
third parties are not sufficient. The court dismissed
respondent's opposition with prejudice.
The Court of Appeals reversed. In re Adoption of
, 165 N.C. App. 413, 598 S.E.2d 638 (2004). In so doing,
the court distinguished between the offers of support at issue
and respondent's tenders of support to Anderson. Id
at 419 n.1, 598 S.E.2d 642 n.1 (We use the word 'tender' . . .
with great deliberateness. The tenders [by respondent] are
distinguishable from . . . the alleged 'offers' made in
].). In the opinion of the Court of Appeals, while the
offers of the Byrd
putative father fell short of tangible
support, the alleged tenders of respondent could meet Byrd's
requirement of tangible support. Id.
at 417, 598 S.E.2d at 641.
, all of [respondent's] attempts to
impart support were made before N.A. was born. . . .
[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
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. . . .
. at 419-20, 598 S.E.2d at 642 (citations omitted). The Court
of Appeals remanded to the trial court for additional findings of
fact regarding respondent's alleged schoolhouse tenders and a
fresh determination of whether respondent's tenders constituted
reasonable and consistent payments in fulfillment of N.C.G.S. §
. at 421, 598 S.E.2d at 643. We allowed
petitioners' petition for discretionary review.
Petitioners argue the Court of Appeals' distinction
between tenders and offers conflicts with this Court's decision
. Petitioners contend respondent never provided the
actual, tangible support Byrd
requires. Respondent maintains he
proffered tangible support to Anderson in compliance with
N.C.G.S. § 48-3-601 and Byrd
. Holding to the contrary,
respondent warns, would permit mothers to thwart the rights of
putative fathers simply by declining to accept support.
Chapter 48 of our General Statutes governs adoption
procedures in North Carolina. In enacting the Chapter, the
General Assembly recognized the public interest in
establish[ing] a clear judicial process for adoptions, . . .
promot[ing] the integrity and finality of adoptions, [and]
structur[ing] 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. N.C.G.S. 48-1-100(a) (2005). Section 48-3-601 makes
mandatory the consent of certain individuals before a trial courtmay grant an adoption petition. These individuals include the
minor himself whenever he is twelve or more years of age, as well
as the mother of the minor and the mother's husband at the time
of the minor's birth. Id
. The consent of an unwed putative
father in circumstances such as those of the instant case is not
obligatory unless he has assumed some of the burdens of
parenthood. Specifically, the putative father has rights under
N.C.G.S. . 48-3-601 if he:
4. Before . . . the filing of the [adoption] petition
. . . acknowledge[s] his paternity of the minor
. . . .
II. [P]rovide[s], 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 . . . .
N.C.G.S. . 48-3-601(2)(b)(4)(II) (emphasis added).
(See footnote 2)
Our Court construed N.C.G.S. . 48-3-601(2)(b)(4)(II)
(the subsection) in Byrd. There the paternal grandmother
offered O'Donnell, the expectant mother, a place to live and help
with medical bills and other costs, all of which O'Donnell
declined. 354 N.C. at 190, 552 S.E.2d at 144. On the day
O'Donnell gave birth, the putative father purchased a $100 money
order for her; however, the money order did not reach O'Donnell
until after the petitioners had filed for adoption. Id. at 191,
552 S.E.2d at 145. Holding the adoption could proceed without
the father's consent, the Court opined that attempts or offers
of support, made by the putative father or another on his behalf,
are not sufficient for purposes of the statute; it further
observed that the money order arrived too late, as the statute .
. . provides for the relevant time period to end at the filing of
the adoption petition. Id. at 197, 552 S.E.2d at 148-49. In
arriving at the outcome of Byrd, the Court explained what the
subsection demands of putative fathers:
[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
Id. at 194, 552 S.E.2d at 146 (emphases added).
In the case sub judice, respondent's acknowledgment of
paternity and communication with Anderson are not at issue. The
sole dispute before us is whether respondent made reasonable and
consistent support payments . . . in accordance with his
financial means. Id. If he did not, then petitioners may adopt
N.A. without his consent. Id.
After careful consideration, we deem the Court of
Appeals' distinction between offers and tenders unconvincing. A
tender in this context is nothing more than [a] valid or
sufficient offer of performance. Black's Law Dictionary 1507
(8th ed. 2004) (emphasis added). Thus, the analysis of the Court
of Appeals begs the question of whether mere offers can satisfy
the subsection's support prong. This Court addressed precisely
that question in Byrd:
The support required under N.C.G.S. §
48-3-601(2)(b)(4)(II) is not specifically defined. 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. Statutory language supports
this conclusion. While attempted communication [with
mother and child] satisfies the statute, there is no
such language used to describe the support requirement.
N.C.G.S. § 48-3-601(2)(b)(4)(II). Presumably, the
General Assembly intended a different meaning for the
support prong of the test because of the differing
language--one that excludes attempt to provide support.
The statute also states that support may include the
payment of medical expenses, living expenses, or other
tangible means of support, thus reflecting actual
support provided. Id.
Id. at 196, 552 S.E.2d at 148 (first emphasis added).
We see no reason to modify Byrd's bright-line rule.
The rule comports with the language of the subsection andreflects the importance of a clear judicial process for
adoptions. N.C.G.S. § 48-1-100(a). See also Byrd, 354 N.C. at
198, 552 S.E.2d at 149 (The interests of the child and all
other parties are best served by an objective test that requires
. . . tangible support.) The Court of Appeals' offer/tender
approach represents a departure from Byrd, and we reject it.
Having reaffirmed that mere offers of support are
insufficient under N.C.G.S. § 48-3-601(2)(b)(4)(II), we next
determine whether the record permits a conclusion concerning
respondent's compliance with the subsection's support prong. Our
examination of the record shows the trial court relied on an
abundance of competent evidence when making its findings of fact
(something no party challenges), and consequently, those findings
are binding on appeal. Lumbee River Elec. Membership Corp. v.
City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219
(1983). Quoted above, the court's findings indicate respondent
could have provided support for Anderson during her pregnancy,
but instead spent $1,000 on an automobile for himself. According
to his own testimony, respondent made approximately $240 per week
in the fall of 2002 and had practically no expenses apart from
the $100 he paid each month for automobile insurance. In other
words, despite possessing adequate wherewithal, respondent never
provided any actual financial [payments] to Ms. Anderson, much
less the reasonable and consistent payments required under the
subsection. The trial court did find that respondent offered
Anderson support on several occasions towards the end of her
pregnancy. In December of 2002, respondent went to the Anderson
residence in an unsuccessful effort to deliver an envelope
containing a check for $100; he likewise had his attorney send
Anderson a letter declaring his willingness to furnish financial
assistance to her and the baby. Additionally, respondent may
have offered Anderson cash at school more than once during the
fall of 2002. Though the Court of Appeals characterized the
envelope and the letter as tangible provisions of support, we
hold that respondent's offers complied with neither the text of
N.C.G.S. § 48-3-601 nor Byrd's interpretation of the same.
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. N.C.G.S. . 48-3-
601(2)(b)(4)(II) (emphasis added). 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 forthe 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.
Pursuant to N.C.G.S. . 48-3-601, respondent's consent
to petitioners' adoption of N.A. is not required. We therefore
reverse the decision of the Court of Appeals and instruct that
court to reinstate the judgment of the trial court. Respondent's
conditional petition for discretionary review is dismissed as
REVERSED; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN
Footnote: 1 Section 48-9-104 of the General Statutes protects
petitioners' identities from disclosure. Petitioners have had
physical custody of N.A. since on or about 14 January 2003.
Footnote: 2 Section 48-3-601 also requires the consent of a putative
father in other situations. For example, a putative father
acquires the right to consent if he timely acknowledges paternity
and either (1) [i]s obligated to support the minor under written
agreement or by court order or (2) [a]fter 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 be declared
invalid. N.C.G.S. . 48-3-601(2)(b)(4)(I)&(III) (2005).
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