In Re the Adoption of Clark ( 1989 )

Judge COZORT

dissenting.

I do not agree with the majority’s conclusion that the trial court erred in dismissing the adoption petition, and I must dissent, even though further appeals and legal proceedings will make even more difficult the already formidable task of deciding what is best for this child who is now six years old and apparently knows nothing of his purported father or that man’s efforts to legitimate him and win his custody.

The majority opinion makes virtually no reference to the trial court’s findings and conclusions dealing with petitioners’ making no attempt to contact Mr. Lampe until after the petition for adoption had been filed, a failing the trial court characterized as willful and negligent. Likewise, the majority appears to have been unaffected by this Court’s opinion of 1985 upholding the setting aside of the 1984 Order terminating Mr. Lampe’s parental rights. In that case, this Court stated:

Although the record reveals that Clark was evasive concerning Lampe’s whereabouts, it is equally clear that she told everyone involved that the father’s name was Christian Paul Lampe. We are not persuaded that the two possible spellings of his last name (Lamp or Lampe) given by Clark created any genuine doubt about the name or identity of the respondent.

* * * *

As we noted earlier, the trial court concluded as a matter of law that “petitioner did not exercise a diligent effort at the time of the preliminary hearing” in locating Lampe. . . .

In this case, petitioner knew respondent’s name and the county in which he resided. The court found as a fact that the Forsyth County telephone directory contained only two listings under the name of “Lampe” during the time of the petition. Petitioner called only one of these numbers and found it to be disconnected. The other listing had belonged to respondent’s father since August 1978. The court also found that the petitioner issued a subpoena to Appalachian State University for records relating to Lampe, but that no further check was made in regard to these records until after the termination order was signed.

We find the following findings of fact most persuasive:

12. That since 1982, Christian Paul Lampe has had a North Carolina driver’s license with the address of 101 Waddington Road, Clemmons, North Carolina; further that Christian Paul Lampe pays personal property taxes in Forsyth County with his address listed as 101 Waddington Road, Clemmons, North Carolina; further, that he is registered to vote in Forsyth County with his address for his draft recorded as 101 Waddington Road, Clemmons, North Carolina; further, at the time of the birth of the child, the movant had enrolled at Elon College and his parents lived at 101 Waddington Road and continue to reside there at this time.

13. That the petitioner in this matter checked no public records to determine the location and identity of the father of the minor child but instead relied solely on the information supplied by Stephanie Ann Clark.

. . . We . . . conclude that under the facts of this particular case, petitioner failed to act with due diligence in attempting to determine respondent’s whereabouts.

In re Clark, 76 N.C. App. 83, 85-87, 332 S.E.2d 196, 198-200, disc. rev. denied and appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985).

The majority’s opinion has the effect of overturning this Court’s 1985 decision. The majority holds that the putative father’s consent is not required because the adoption petition was filed before the putative father initiated proceedings to legitimate the child. This holding ignores the fact that the father, could not have attempted to legitimate the child because he had no knowledge of the child; and he had no knowledge due to the petitioners’ lack of diligence, as this Court has previously affirmed, which lack the trial court characterized as willful and negligent. To allow the petitioners to go forward with the adoption, without the father’s consent, makes meaningless our opinion overturning the termination order. In effect, we would allow the petitioners to terminate the father’s rights through the adoption process. I do not believe we should be a party to such flaunting of the father’s rights and the rules of law.

I agree with the trial court’s decision that, on the facts of this case, petitioners cannot proceed with adoption without the father’s consent. I vote to affirm.