In Re Doe , 11 N.C. App. 560 ( 1971 )

181 S.E.2d 760 (1971) 11 N.C. App. 560

In the Matter of Baby John DOE, or Baby Boy Belton.

No. 7118DC361.

Court of Appeals of North Carolina.

June 23, 1971.

Harry R. Stanley, Greensboro, for petitioner appellant.

Blair L. Daily and Edward L. Murrelle, Greensboro, for respondent appellees.

Richard L. Wharton and Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, of counsel, for respondent appellees.

PARKER, Judge.

This appeal presents the question of the effect of a legitimation proceeding brought under G.S. § 49-10 by the putative father of a child born out of wedlock, wherein the child is declared legitimate, upon the prior written consent to adoption given by the unwed mother under G.S. § 48-6. Appellant contends that since his consent to the adoption would have been required by G.S. § 48-7 had his child been born in wedlock and since G.S. § 49-11 provides that "[t]he effect of legitimation under G.S. 49-10 shall be to impose upon the father and mother all of the lawful parental privileges and rights * * * to the same extent as if said child had been born in wedlock, * * *" it necessarily follows that absent his consent the adoption proceedings must fail and his custodial rights must be recognized. This contention, however, ignores other statutory provisions which in clear and express language answer the question here presented. G.S. § 48-6(a) provides as follows:

"§ 48-6. When consent of father not necessary.—(a) In the case of a child born out of wedlock and when said child has not been legitimated prior to the time of the signing of the consent, the written consent of the mother alone shall be sufficient under this chapter and the father need not be made a party to the proceeding. The legitimation of the child by any means subsequent to the signing of such consent of the mother shall not make such consent invalid nor adversely affect the sufficiency of such consent nor make necessary the consent of the father or his joinder as a party to the proceeding." (Emphasis added.)

The second sentence of G.S. § 48-6(a), italicized above, was added by Section 1 of Chapter 534 of the 1969 Session Laws. Section 2 of the same statute amended Chapter 49, Article 2, of the General Statutes, the Article of the General Statutes under which the child was declared legitimate in the present case, by adding a new section, G.S. § 49-13.1, which reads as follows:

"§ 49-13.1. Effect of legitimation on adoption consent.—Legitimation of a child under the provisions of this article shall not invalidate or adversely affect the sufficiency of the consent to adoption given by the mother alone, nor make necessary the consent of the father or his joinder as a party to the adoption proceeding, when the provisions of G.S. 48-6(a) and amendments thereto are applicable."

Chapter 534 of the 1969 Session Laws became in full force and effect upon and after the date of its ratification on 19 May 1969 and was in effect at all times pertinent to the present case. In Section 4 of that Act, the Legislature stated that the Act "is intended to clarify and express in part the original, as well as the present, purpose and intent of Section 48-6(a) of the General Statutes of North Carolina as related to Chapter 49, Article 2."

Appellant has cited no authority and we know no reason why these very clear statutory provisions should not be given full effect. Appellant's contention that the summary judgment of the District Judge in the habeas corpus proceeding in effect overruled the prior judgment entered by the Superior Court Judge in the legitimation proceeding is without merit; the judgment in the legitimation proceeding expressly provided that no order was made therein with respect to custody of the child. Under the facts presented by this record, The Children's Home Society had legal custody of the child, G.S. § 48-9.1(1), and the District Judge correctly so determined. The judgment appealed from is

Affirmed.

MALLARD, C. J., and VAUGHN, J., concur.