In Re Adoption of "Baby Boy" , 233 N.C. App. 493 ( 2014 )

NO. COA13-912
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
IN RE ADOPTION OF:
“BABY BOY”
BORN APRIL 10, 2012
Wake County
12 SP 1911
Appeal by respondents from order entered 15 February 2013
by Judge Debra Sasser in Wake County District Court. Heard in
the Court of Appeals 21 January 2014.
WAKE FAMILY LAW GROUP, by Katherine Hardersen King, for
respondent-appellee.
Cheri C. Patrick for petitioner-appellants Laura and
Richard Zug, Jr.
MANNING, FULTON & SKINNER, P.A., by Michael S. Harrell, for
petitioner-appellant Amazing Grace Adoptions.
ELMORE, Judge.
Laura Catherine Zug and Richard Charles Zug, Jr. (the Zugs)
and Amazing Grace Adoptions (the Agency) appeal Judge Sasser’s
order entered 15 February 2013 declaring Amy Marie Costin’s
relinquishment void. After careful consideration, we reverse.
I. Background
-2-
The facts in this case are largely undisputed. Amy Marie
Costin (the birth mother) is the biological mother of a baby boy
(Baby Boy) born 10 April 2012 at WakeMed Cary Hospital. The
biological father of the minor child signed a relinquishment
placing “Baby Boy” in the care of the Agency and has made no
attempt to revoke. The birth mother contacted the agency prior
to Baby Boy’s birth to discuss the possibility of placing the
baby for adoption. Her primary contact at the Agency was social
worker Hayley Walston (Ms. Walston). On 13 December 2011,
approximately halfway through her pregnancy, the birth mother
officially contracted for services with the Agency. The birth
mother indicated to Ms. Walston that she wanted a closed
adoption and did not want the baby to be placed nearby.
Thereafter, the birth mother and Ms. Walston were in frequent
communication regarding her desire to relinquish the child for
adoption. On 6 February 2012, Ms. Walston informed the birth
mother that the agency had identified a family who would agree
to her terms.
One day after Baby Boy’s birth, Ms. Walston went to the
hospital to obtain the birth mother’s relinquishment of Baby Boy
to the Agency. Under N.C. Gen. Stat. § 48-3-701(a), a birth
parent “may relinquish all parental rights or guardianship
-3-
powers, including the right to consent to adoption, to an
agency.” To complete the relinquishment process, Ms. Walston
asked a notary employed by WakeMed, Ms. Darlene Durbin (“Ms.
Durbin” or “the notary”), to notarize the “Relinquishment of
Minor for Adoption by Parent or Guardian” (the relinquishment).
Ms. Durbin had been a notary for approximately three years and
agreed to notarize the relinquishment, although she had never
notarized an adoption form before and was unfamiliar with the
legalities of the adoption process.
Ms. Durbin accompanied Ms. Walston to the birth mother’s
hospital room to witness the relinquishment. Ms. Durban
testified that she stayed for “at least 30 minutes” as Ms.
Walston completed the relinquishment procedure. As part of this
procedure, Ms. Walston read aloud the relinquishment form and
reviewed a twenty-six-question questionnaire with the birth
mother that addressed all aspects of the relinquishment. The
relinquishment begins, “I, Amy Marie Costin, being duly sworn,
declare . . .” It also states, “I understand that my
Relinquishment to Adoption of the minor may be revoked within 7
days following the day on which it is executed,” and “I
understand that to revoke my Relinquishment for Adoption, as
provided in G.S. 48-3-706, the revocation must be made by giving
-4-
written notice to the agency to which the Relinquishment was
given.”
The questionnaire begins with an acknowledgement: “All
forms were read aloud by the staff member and were signed in the
presence of Darlene Durbin, notary, and the following questions
were asked in their presence.” The birth mother’s responses to
the questions were recorded and included the following:
Q. Do you feel that your mind is perfectly
clear?
A. Yes.
Q. Has anyone told you that you must sign
these papers?
A. No.
Q. Has anyone coerced you in any way or
applied pressure or unduly influenced you to
make an adoption plan for your child(ren)?
A. No.
Q. Did I persuade or coerce you in any way
to sign a relinquishment, or has any of the
Amazing Grace Adoptions staff members done
so?
A. No.
Q. Do you understand you may revoke your
decision within 7 days of signing this
document?
A. Yes.
Q. Do you understand that if within 7 days
-5-
you decide to revoke your release you must
make your revocation in writing and deliver
it to the director of the agency?
A. Yes.
Q. Do you understand that when you sign
these documents you are giving up all legal
rights to this child(ren)?
A. Yes.
Q. Have you read and do you fully understand
all the documents you are signing?
A. Yes.
Q. Do you need more time to think about your
decision?
A. No.
It was not until after all of the forms were read to the
birth mother that she signed the relinquishment and the
questionnaire. Ms. Durbin then completed the notary certificate.
The birth mother received a copy of the relinquishment. Ms.
Walston testified that she had previously reviewed the
relinquishment form with the birth mother several months prior.
On 18 April 2012, the seventh day after signing her
relinquishment, the birth mother testified that she texted Ms.
Walston sometime between 10:00 p.m. and 11:00 p.m. and asked,
“is today the last day?” Ms. Walston confirmed that it was in
-6-
fact the last day that she could revoke her relinquishment. The
birth mother did not attempt to revoke at that time.
The following morning (day eight), the birth mother texted
Ms. Walston to indicate that she had changed her mind. Later
that day, the birth mother met with Ms. Walston and the director
of the Agency to discuss the situation. There is no record
evidence that the birth mother ever provided the Agency with
written notice of her intent to revoke her relinquishment.
Ultimately, the Agency informed the birth mother that her
relinquishment would not be revoked because she did not give
notice of her revocation within the statutorily prescribed
seven-day period. As such, the Agency proceeded with the
adoption and placed Baby Boy with the Zugs on 23 April 2012.
The Zugs filed their petition to adopt Baby Boy that same day.
Baby Boy has since remained in the Zugs’ custody.
On 11 June 2012, the birth mother filed a motion to dismiss
the adoption petition and motion to declare her relinquishment
void, alleging that the purported relinquishment was void for
“lack of compliance with a mandatory statutory requirement[.]”
The trial court took the case under advisement and, in an order
filed 15 February 2013, made the following pertinent findings of
fact:
-7-
6. Ms. Darlene Durbin, an employee of
WakeMed Cary Hospital, was asked to notarize
the documents. Ms. Durbin was not familiar
with adoption forms and did not review the
forms before undertaking to notarize them.
Ms. Durbin was present for over a half hour
while Ms. Walston went through a twenty-six
question questionnaire dealing with various
aspects of the relinquishment before having
the [the birth mother] sign the purported
relinquishment[].
7. The uncontroverted evidence and Ms.
Durbin's own testimony indicates that Ms.
Durbin did not put either biological parent
under oath before or after signing the
relinquishment forms, nor did she ask them
to “swear,” “affirm” or any words to that
effect. No Bible or other Holy Scriptures
were used by Ms. Durbin during the notary
process, and no oaths or affirmations were
administered prior to the purported
relinquishments being signed or at any time
since.
11. Pursuant to N.C.G.S. 48-3-702(a) “A
relinquishment executed by a parent or
guardian must conform substantially to the
requirements in this Part and must be signed
and acknowledged under oath before an
individual authorized to administer oaths or
take acknowledgments.” [emphasis in
original]
12. The language regarding “under oath” in
N.C.G.S. 48-3-702 is not mere surplus, as
language regarding “under oath” is included
in some sections of Chapter 48 for types of
consents/relinquishments and not in others.
It is precise and purposeful language.
Being a parent is a fundamental right that
must be protected, and while the adoption
statutes should be construed liberally in
many instances, the biological parents’
-8-
rights are protected by the U.S.
Constitution. The child’s rights to be with
the biological parent(s) also must be
protected. The “under oath” language in
N.C.G.S. 48-3-702 is meant to prevent
biological parents from claiming that they
didn't understand what they were signing or
didn't know what they were doing to prevent
future litigation.
The trial court then made the following conclusions of law:
2. Under N.C.G.S. 48-3-702, the sex of the
baby was a mandatory provision in the
relinquishment but was not completed in the
purported relinquishment. Additionally,
under 48-3-702, the signature of Movant had
to be obtained while she was under oath.
4. The purported relinquishment signed by
Movant on April 11, 2012 is not a valid
relinquishment in that it does not conform
to the mandatory statutory requirements of a
relinquishment as set out in N.C.G.S. 48-3-
702 and is void to operate as a
relinquishment.
5. There is no valid relinquishment by the
Movant in this matter.
6. Because there was never a valid
relinquishment signed by Movant, no
revocation of her relinquishment was
required, and the revocation statutes don’t
apply.
8. There was no constructive fraud or actual
fraud by the [A]gency in the procurement of
the relinquishment.
9. This matter should not be remanded back
to the Clerk of Superior Court at this time
and should remain with District Court for a
-9-
later hearing on Movant’s request to dismiss
the adoption petition.
The trial court thereafter granted the birth mother’s
petition to declare her relinquishment void. The Zugs and the
Agency (collectively petitioners) now appeal.
II. Interlocutory Appeal
In the instant case, the trial court entered an
interlocutory order voiding the birth mother’s relinquishment,
which effectively nullified the birth mother’s purported consent
to the adoption. As our Courts have previously addressed the
merits of interlocutory appeals concerning a putative father’s
consent to adoption, we see no reason not to afford the birth
mother the same protection. See In re Adoption of Anderson, 165
N.C. App. 413, 598 S.E.2d 638, 639 (2004), rev'd on other
grounds, 360 N.C. 271, 624 S.E.2d 626 (2006); In re Byrd, 137
N.C. App. 623, 529 S.E.2d 465 (2000), aff'd sub nom., 354 N.C.
188, 552 S.E.2d 142 (2001).
III. Analysis
The primary issue presented on appeal is whether the birth
mother’s consent to relinquish her parental rights to the Agency
was valid. Petitioners argue that the trial court erred in
voiding the relinquishment on the basis that the birth mother
-10-
did not execute it while “under oath” as mandated by N.C. Gen.
Stat. § 48-3-702. We agree.
We note that petitioners did not assign error to any of the
trial court’s findings of fact. As such, all of the trial
court’s findings of fact are deemed conclusive on appeal.
Fakhoury v. Fakhoury, 171 N.C. App. 104, 108, 613 S.E.2d 729,
732 (2005). We review the trial court’s conclusions of law de
novo. Boseman v. Jarrell, 364 N.C. 537, 549, 704 S.E.2d 494,
502 (2010).
The laws governing adoptions in North Carolina are
creatures of statutory construction as set forth in Chapter 48
of our general statutes. Our legislature requires that Chapter
48 “be liberally construed and applied to promote its underlying
purposes and policies.” N.C. Gen. Stat. § 48-1-100(d) (2013).
“[T]he 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.”
N.C. Gen. Stat. § 48-1-100(c) (2013). Here, the trial court
relied on N.C. Gen. Stat. § 48-3-702(a) in voiding the birth
mother’s relinquishment. The statute provides that “[a]
relinquishment executed by a parent or guardian must conform
substantially to the requirements in this Part and must be
-11-
signed and acknowledged under oath before an individual
authorized to administer oaths or take acknowledgments.” N.C.
Gen. Stat. 48-3-702(a) (2013).
This is not a case where the birth mother argues that her
consent to relinquish Baby Boy was not given knowingly and
voluntarily. In fact, the birth mother admits that she signed
her relinquishment before a notary public, that she knew what
she was signing, and the consequences, that she signed knowing
the time limits for revocation, and that she contacted Ms.
Walston to confirm that it was her last day to revoke prior to
the expiration of the seven-day period. Further, the birth
mother admits that Ms. Walston asked her a series of questions,
which she answered truthfully before the notary. In “the
absence of evidence of fraud on the part of the notary, or
evidence of a knowing and deliberate violation,” we recognize a
presumption of regularity to notarial acts. N.C. Gen. Stat. §
10B-99 (2013). This presumption of regularity allows notarial
acts to be upheld, “provided there has been substantial
compliance with the law.” N.C. Gen. Stat. § 10B-99. Thus, the
presumption of regularity acts to impute a “substantial
compliance” component to notarial acts, including the
administration of oaths.
-12-
We turn now to the pertinent issue before us—whether the
birth mother was under oath when she signed her relinquishment.
See N.C. Gen. Stat. § 48-3-702(a). Our Supreme Court has
maintained that statutes should be read and understood according
to the natural and most obvious import of the language without
resorting to subtle and forced construction for the purpose of
either limiting or extending their operation. State v.
Carpenter, 173 N.C. 767, 92 S.E. 373, 374 (1917). “If the
language of a statute is clear and unambiguous, there is no room
for judicial construction and the courts must give the statute
its plain and definite meaning[.] . . . This is especially true
in the context of adoption, which is purely a creation of
statute.” Boseman at 545, 704 S.E.2d at 500 (citations and
quotation marks omitted).
We read N.C. Gen. Stat. 48-3-702(a) to require both (1)
substantial performance of the requirements set out in Chapter
48, and (2) that the relinquishment must be signed and
acknowledged under oath before an individual authorized to
administer oaths or take acknowledgments. From its plain
language, we hold that the legislature intended for the
“substantial compliance” component of N.C. Gen. Stat. 48-3-
702(a) to apply only to the requirements set out in Chapter 48.
-13-
There is no “substantial compliance” component concerning the
oath requirement on the face of N.C. Gen. Stat. 48-3-702(a).
An oath is administered to a document signer (the
principal) when the principal is required to make a sworn
statement about certain facts. An oath is defined as:
A notarial act which is legally equivalent
to an affirmation and in which a notary
certifies that at a single time and place
all of the following occurred:
a. An individual appeared in person before
the notary.
b. The individual was personally known to
the notary or identified by the notary
through satisfactory evidence.
c. The individual made a vow of truthfulness
on penalty of perjury while invoking a deity
or using any form of the word “swear.”
N.C. Gen. Stat. § 10B-3(14) (2013).
An acknowledgment is a notarial act that occurs when a
notary certifies that at a single time and place:
a. An individual appeared in person
before the notary and presented a record.
b. The individual was personally known
to the notary or identified by the notary
through satisfactory evidence.
c. The individual did either of the
following:
i. Indicated to the notary that the
signature on the record was the individual’s
signature.
-14-
ii. Signed the record while in the
physical presence of the notary and while
being personally observed signing the record
by the notary.
N.C. Gen. Stat. § 10B-3(1) (2013). There is no oath requirement
for an acknowledgment. When an oath is administered in
conjunction with a principal’s signing, the notarization
functions as a verification or proof, not an acknowledgment.
N.C. Gen. Stat. § 10B-3(28).
A. Notary to Administer an Oath
In the instant case, there is no real issue about the
Agency’s compliance with subparagraphs (a) and (b) of N.C. Gen.
Stat. § 10B-3(14). However, the trial court found that
subparagraph (c) was not satisfied, in part, because Ms. Durbin
“did not put [the birth mother] under oath before or after
signing the relinquishment forms[.]” By the trial court’s
reasoning, the notary or certifying officer is the only
individual with authority to administer an oath to a document
signor. Again, we disagree.
Initially, we would like to discuss the role of a notary
when administering oaths and affirmations, particularly given
that the case law on this topic is fairly sparse. It is the
primary function of a notary to serve as an impartial witness
-15-
when authenticating legal documents and administering oaths or
affirmations. A notarization that requires the signor to be
placed under oath begins with the administration of an oath or
affirmation. A traditional jurat notarization recites that a
document has been “subscribed and sworn to” before a notary.
BLACK’S LAW DICTIONARY 866 (8th ed. 2004). By its administration,
an oath or affirmation gives weight to the truthfulness of the
document’s substance. The failure to administer an oath or
affirmation as required may result in a defective notarization.
Should this occur, the document bearing the defective
notarization may be invalidated and the underlying transaction
voided. The “consequence of the failure of notaries to []
administer such oaths or affirmations constitutes a disservice
to document signers, to the third parties who rely upon
notarized signatures, and to the office of notary public.”
Michael L. Closen, To Swear . . . or Not to Swear Document
Signers: The Default of Notaries Public and A Proposal to
Abolish Oral Notarial Oaths, 50 Buff. L. Rev. 613, 617 (2002).
Accordingly, we cannot stress enough the seriousness of properly
administering oaths and affirmations, and we urge notaries to be
diligent in performing this duty.
-16-
Neither statutory nor common law clearly sets forth the
formalities of oath administration. For example, North
Carolina’s “oath” statute, N.C. Gen. Stat. § 10B-3(14), does not
specifically require that the notary orally administer the oath.
By its plain language, the notary need only certify that the
notary witnessed the signor make a vow of truthfulness by using
any form of the word “swear.” In fact, none of our notarial
statutes specify by their plain language that the notary is
required to administer an oral oath to the principal prior to
notarization. Nevertheless, the trial court in the instant case
voided the birth mother’s relinquishment on this basis.
The case law pertaining to this issue supports an
alternative outcome. First, we look to State v. Knight, an
early North Carolina Supreme Court case, for the proposition
that a notary (or other authorized individual) may delegate the
administration of an oath to a third party who is not vested
with authority to administer oaths. 84 N.C. 789 (1881). In
Knight, the Martin County coroner, J.H. Ellison, had sole
authority to administer an oath to certain witnesses. However,
he allowed justice of the peace, J.L. Ewell, to place the
witnesses under oath in his presence and before the court. Id.
at 791-92. The defendant moved to arrest judgment on grounds
-17-
that the witnesses were not properly administered the oath. Our
Supreme Court disagreed on the basis that it “sufficiently
appear[ed] that the administration of the oath was the act of
the coroner.” Id. at 793. Our Supreme Court concluded that the
administration of an oath is a ministerial act and it
may be administered by any one [sic] in the
presence and by the direction of the
court[.] . . . It was just as competent for
the coroner to have called upon any
unofficial bystander to administer the oath
for him, as upon a justice of the peace. It
was therefore immaterial whether in this
case the justice had the authority to
administer the oath or not.
Id.Relying in part on Knight, the Alabama Supreme Court
addressed a similar issue in Walker v. State, 107 Ala. 5, 18 So.
393 (1895). In Walker, the defendant was prosecuted for perjury
after making a false affidavit attesting to a certain conveyance
of land. In executing the affidavit, Elbert Holt, a deputy
clerk without authority to administer an oath, “in point of
actual, physical fact, administered the oath to the
defendant[.]” Id. at 9, 18 So. at 394. The Alabama Supreme
Court held that Elbert Holt’s administration satisfied the oath
requirement because E.R. Holt, the clerk with authority, “was
present at the time, knew what was going on, and directed or
-18-
assented to the administering of the oath, which was done in his
name as such clerk, and the evidence of which—the jurat—was made
out and stands in his name[.]” Id. at 9-10, 18 So at 394. The
Alabama Supreme Court opined:
[T]his actual administration by Elbert Holt
was, under the circumstances, in legal
contemplation the official act of E.R. Holt,
the de jure clerk of the court, is fully
settled by the authorities (State v. Knight,
84 N.C. 789, 793; Stephens v. State, 1 Swan,
157; Oaks v. Rodgers, 48 Cal. 197); and this
upon the general principle that a
ministerial act done by one under the
authority, and by the direction, or with the
knowledge and assent, and especially in the
presence, of an officer duly authorized to
perform that act, is the act of the officer
himself.
Id. at 10, 18 So. at 394.
More recently, in Gargan v. State, 805 P.2d 998 (Alaska
App. 1991), the Alaska Court of Appeals considered an argument
similar to the one advanced by the birth mother in the instant
case. Gargan concerned the defendant’s perjury conviction
involving an affidavit that purported on its face to be sworn
before a notary. Evidence at trial established that the notary
had not actually administered an oath prior to notarizing the
affidavit. Id. at 1004. Nevertheless, the trial judge allowed
the jurors to consider the statement during their deliberations.
-19-
The Alaska Court opined that the crucial issue was not
whether an oath was actually administered, but whether the
signed statement constituted “a verification on its face of the
truthfulness of the facts contained therein.”1 Id. at 1005. The
Alaska Court concluded that the document satisfied the
substantial requirements of a verification given that the
defendant: (1) was properly identified, (2) knowingly signed the
document in the notary’s presence, (3) the document contained
the language “duly sworn,” and (4) the notary actually notarized
the document. Id. As such, the Alaska Court held that the oath
requirement was satisfied upon notarization. Id.We find Gargan noteworthy for the proposition that an oath
is considered administered when an individual signs a document
in a notary’s presence that contains the language “duly sworn”
or its equivalent. The Alaska Court essentially held that the
“duly sworn” language in a document is equivalent to the
delivery of a verbal oath, provided certain other factors are
satisfied. In the instant case, respondents advance the same
proposition—they contend that because the birth mother (1)
1
A verification is defined as (1) a formal declaration made
under oath by the principal swearing to the truthfulness of the
statements in a document, or (2) an oath or affirmation that an
authorized officer administers to an affiant or deponent, or (3)
any act of notarizing. BLACK’S LAW DICTIONARY 1593 (8th ed. 2004).
-20-
knowingly signed the document in the notary’s presence, (2) the
document contained the language “duly sworn,” and (3) the notary
verified the swearing, the “oath was administered by the
certifying official at the time [the birth mother] signed the
relinquishment.” At present we express no opinion on the merits
of respondent’s argument or the Gargan decision, namely because
the facts of the case before us show that an oath was
administered to the birth mother by Ms. Walston.
On appeal, counsel for the birth mother argues that the
notary herself was required to deliver the oath for it to be
effective. Counsel reasons: It “is part of the notary’s
training to know how to administer an oath” and “if we somehow
take away the requirement that the notary have to administer an
oath, we have negated the entire notarial act. We have taken
away something that the notary is required to do.” Counsel
applies this logic to the notarization of affidavits—arguing
that any party who executes an affidavit should be permitted at
a later time to withdraw it on the basis that it was not given
under oath. Alternately, petitioners argue that an oath was
effectively administered when Ms. Walston read the
relinquishment to the birth mother stating, “I, Amy Marie Costin
being duly sworn, declare . . . [.]”
-21-
We agree with petitioners. In the instant case, the birth
mother advances a purely technical argument and has failed to
present sufficient evidence to overcome the presumption of
regularity created in favor of the validity of notarial acts.
See Moore v. Moore, 108 N.C. App. 656, 658, 424 S.E.2d 673, 674,
aff'd, 334 N.C. 684, 435 S.E.2d 71 (1993) (holding that the
plaintiff-husband failed to overcome the presumption in favor of
the legality of an acknowledgment when it was undisputed that he
signed the separation agreement, but advanced the technical
argument that the agreement was void because the notary did not
witness his signature since she walked “in and out of the
conference room”). Here, it is undisputed that the birth mother
signed the relinquishment in the notary’s presence. The notary
testified that she witnessed the birth mother’s signature and
verified the document. In doing so, the notary attested by her
seal that the document was “sworn to (or affirmed) and
subscribed” before her. Nothing in the record impeaches her
certification, including the notary’s testimony that she did not
place the birth mother under oath.
The administration of an oath is a ministerial duty and it
may be delivered by persons who lack official authority,
provided that a certifying officer is present and directs or
-22-
assents to the administration. Here, in substance and legal
effect, the requirement that the birth mother be placed “under
oath” was satisfied when Ms. Walston read the relinquishment to
her. The notary was physically present when the oath was
administered, aware of the circumstances, and thereby implicitly
assented to its administration, which was done in her name. By
these facts, it sufficiently appears that the administration of
the oath was the act of the notary. See Knight, supra.Further, the plain language of N.C. Gen. Stat. § 10B-
3(14)(c) requires the principal to make a vow of truthfulness
“while invoking a deity or using any form of the word ‘swear.’”
Again, “any form” of the word “swear” may be utilized—the
statute does not mandate that the signor orally repeat the word
“swear.” Here, the birth mother stated in writing that she had
been “duly sworn” when she signed the document. The notary’s
verification recites that the birth mother had sworn to the
document before the notary. Additionally, Ms. Walston read the
word “swear” aloud in administering the oath. We hold that N.C.
Gen. Stat. § 10B-3(14)(c) was satisfied. Accordingly, we
conclude that the trial court erred in entering an order
declaring the birth mother’s relinquishment void. There was a
-23-
valid relinquishment in this matter, which the birth mother
failed to timely revoke.
B. Statutory Grounds to Void Relinquishment
As we have held that the relinquishment was not void ab
initio, the birth mother was limited to challenging her
relinquishment on the express grounds established by the
legislature to void relinquishments. N.C. Gen. Stat. § 48-3-
707. Absent the consent of the parties, the only applicable
grounds for voiding the relinquishment in the instant case
requires the birth mother to prove by clear and convincing
evidence that her relinquishment was obtained by fraud or
duress. N.C. Gen. Stat. § 48-3-707(a)(1).
In its order, the trial court concluded: “There was no
constructive fraud or actual fraud by the [A]gency in the
procurement of the relinquishment.” Upon conducting a de novo
review of the record, we agree. The Agency made every effort to
ensure that the birth mother was apprised of the complexity of
the situation and the legalities of the adoption process. Ms.
Walston testified that she reviewed the relinquishment with the
birth mother prior to Baby Boy’s birth, she read the
relinquishment aloud, and the birth mother was given a copy of
the form. Again, this is not a case where the birth mother
-24-
argues that her consent to relinquish Baby Boy was not given
knowingly and voluntarily.
C. Designation of Baby Boy’s Sex on Relinquishment Form
Finally, we recognize that for a relinquishment to be
complete, it must disclose the “date of birth or the expected
delivery date, the sex, and the name of the minor, if known[.]”
N.C. Gen. Stat. 48-3-703. Here, the relinquishment omitted Baby
Boy’s gender. In Finding #4, the trial court found: “There was
no evidence that [the birth mother] requested this omission or
why this information was omitted.” We disagree. Ms. Walston
testified that the birth mother requested a closed adoption and
“did not plan to see the child or even want to know the sex of
the child[.]” The birth mother testified: “I never wanted an
open adoption. . . . We never discussed an open adoption.”
Accordingly, there is evidence that the Agency omitted the sex
of Baby Boy based on what it perceived to be the birth mother’s
request. Regardless, N.C. Gen. Stat. § 48-3-702(a) provides
that a relinquishment only needs to be executed in substantial
compliance with the law, and this was accomplished.
IV. Conclusion
In sum, the trial court erred in entering an order voiding
the birth mother’s relinquishment. The relinquishment is valid
-25-
and conforms to the mandatory statutory requirements as set out
in N.C. Gen. Stat. § 48-3-702. Accordingly, we reverse the
trial court’s order.
Reversed.
Judges McGEE and HUNTER, Robert C., concur.