In Re Adoption of Daughtridge

212 S.E.2d 519 (1975) 25 N.C. App. 141

In re ADOPTION OF Thomas Cameron DAUGHTRIDGE.

No. 747SC1055.

Court of Appeals of North Carolina.

March 19, 1975.

Cleveland P. Cherry, by Will H. Lassiter, III, Rocky Mount, for petitioners-appellants.

Taylor, Brinson & Aycock, by William W. Aycock, Jr., Tarboro, for respondent-appellee.

MORRIS, Judge.

The adoption of children is purely a statutory procedure and "[t]he only procedure for the adoption of minors is that prescribed by G.S. Chapter 48. ``Adoption shall be by a special proceeding before the clerk of the superior court.' G.S. 48-12. A superior court judge has no jurisdiction in adoption proceedings except upon appeal from the clerk. See G.S. 48-21 and G.S. 48-27." In Re Custody of Simpson, 262 N.C. 206, 210, 136 S.E.2d 647, 650 (1964).

Appellant raises certain procedural questions on appeal. Among other things, he contends that the Superior Court could only hear the matter in its appellate capacity and erred in considering the matter de novo. The parties concede that respondent did not except to any particular finding of fact on its appeal to the Superior Court but entered only a general exception. The record contains a stipulation by the parties that "at the time this cause was heard before Judge John Webb, counsel for each of the parties stipulated orally in open court to Judge Webb that the findings of fact set forth in paragraphs 1 through 18, paragraph 20 and paragraphs 22 through 32 of the order of Don Gilliam, Jr., dated October 16, 1974, were agreed to by the parties and were not in dispute and could be accepted by the court as fully supported by the evidence received at the hearing before Don Gilliam, Jr., Clerk of Superior Court of Edgecombe County." As to findings of fact 19 and 21, Judge Webb heard evidence in the form of the sworn testimony of Claudia Edwards, Director of the Edgecombe County Department of Social Services. The record contains no objection to this testimony, nor do petitioners except to the modified findings of fact made by the court. The net effect is that the facts were agreed facts and the court reached a different conclusion as a matter of law. In this procedure, we find no error. In Re Estate of Moore, N.C.App., 212 S.E.2d 184 (filed 5 March 1975). See also In Re Holder, 218 N.C. 136, 10 S.E.2d 620 (1940), where the hearing in superior court on appeal from the clerk was, by agreement of counsel, de novo and upon the record and the evidence taken before the clerk. It thus appears that whether the court heard the matter de novo or in its appellate capacity is not determinative of this appeal. The question whether the Clerk should have transferred the cause to the civil issue docket for trial in the Superior Court is presented in appellee's brief. True, respondent's answer to the petition requested this, because the answer raised issues of law and of fact. See G.S. § 1-273. However, any issues of fact were resolved by agreement of the parties, and the question, while an intriguing one, is not raised by appellant and is not before us on this appeal.

The question before us is whether the respondent may withhold its consent to an adoption and, if so, was the refusal in this case warranted and in the best interests of the child.

An analysis of the pertinent adoption statutes and such case law as is available is necessary. In In Re Adoption of Hoose, 243 N.C. 589, 593, 594, 91 S.E.2d 555, 557, 558 (1956), Justice Denny, later Chief Justice, said: "Consent is essential to an order of adoption.", and further:

"Under our statute G.S. 48-7, except as provided in G.S. 48-5 and G.S. 48-6, before a child can be adopted, the written consent of the parents, or surviving parent, or guardian of the person of the child must be obtained."

G.S. § 48-5 provides for procedure where a child has been found to be an abandoned child by a court of competent jurisdiction, and G.S. § 48-6 makes provisions for situations in which the consent of the father is not necessary.

G.S. § 48-9 is entitled "When consent may be given by persons other than parents". Section (b) thereof provides:

"The surrender of the child and consent for the child to be adopted given by the parent or guardian of the person to the director of public welfare or to the licensed child placing agency shall be filed with the petition along with the consent of the director of public welfare or of the executive head of the agency to the adoption prayed for in the petition." (Emphasis supplied.)

Section (c) provides that if the child has been surrendered to an agency operating in another state which is authorized by that state to place children for adoption, the written consent of that agency shall be sufficient. Section (d) provides that if one or both parents has or have been found incompetent to give valid consent because one has or both have been adjudged mentally incompetent, the court may appoint a person or the director of social services to act as next friend for the child "to give or withhold such consent". (Emphasis supplied.)

It seems clear that the General Assembly recognizes and follows the court's admonition that consent is essential to an order of adoption. It also seems clear that the General Assembly recognizes that there are cases in which consent might be and sometimes should be withheld by the person or agency qualified to give consent. This is further evidenced by the provisions of G.S. § 48-9.1(1) as follows:

"The county department of social services which the director represents, or the child-placing agency, to whom surrender and consent has been given, shall have legal custody of the child and the rights of the consenting parties, except inheritance rights, until entry of the interlocutory decree provided for in G.S. 48-17, or until the final order of adoption is entered if the interlocutory decree is waived by the court in accordance with G.S. 48-21, or until consent is revoked within the time permitted by law, or unless otherwise ordered by a court of competent jurisdiction. . . ." (Emphasis supplied.)

We think the pertinent sections of Chapter 48 support and require the conclusions of Judge Webb "that the consent of the respondent to the adoption sought by petitioners is required by virtue of G.S. 48-9(b) unless otherwise ordered by a court of competent jurisdiction as provided for in GS 48-9.1(1)" and we note that petitioners do not except to this conclusion.

Should the court find that the agency has unreasonably withheld its consent, we think the court has the right to order that the adoption proceed without the written consent of the agency—resulting, as a practical matter, in the adoption of the child proceeding with the consent of the court substituted for the consent of the agency. Or, as the Minnesota Court put it, "proceeding as if the consent which ought to have been given had been given." In re McKenzie, 197 Minn. 234, 266 N.W. 746, 748 (1936). That case is similar in many respects to the one before us. There the petitioners, as foster parents for the Minnesota Board of Control, had been given the care of the child when it was four months old and had kept it for three years. They were non-Catholic, and the child's parents were Catholic, but petitioners had agreed to rear the child in the Catholic faith and had faithfully adhered to that agreement. The child's mother had been confined in the State Hospital for the Feeble Minded since shortly after the child's birth and the father, who was unable to care for the child, had petitioned the juvenile court of St. Louis County to commit it to the care of the State. There was no dispute about the ability of petitioners to care for the child nor the fact that they were of good moral character. Nevertheless, the board of control withheld its consent to the adoption by the petitioners. The sole reason therefor was that it had a rule prohibiting the adoption of a child by parties of a different religious faith than that of the child's natural parents. The court noted that the consent of parents, not otherwise incapacitated, must be obtained before a valid adoption of their child could be effected, and, where the parents are incapacitated, the consent of a guardian must be obtained. Where a child has been placed in the custody and care of the State, the inherent rights of parenthood are not transferred, said the court; but the welfare of the child is the chief concern of the State. Therefore, the court concluded that the board could not withhold its consent and thereby defeat the petition for adoption when the best interests of the child would compel a finding that a failure to grant the petition for adoption would be inimical to the best interests of the child. "Jurisdiction is complete in the court, and it may proceed with the sole view to the best interests of the child. It need not dismiss on motion of the board, and it may disregard the board's refusal to consent in case that refusal is unreasonable." In re McKenzie, supra, at 747 of 266 N.W. The court found that the consent had been unreasonably withheld and reversed the judgment of the District Court denying the petition.

Our General Assembly, in furtherance of the State's desire to protect the welfare of dependent children, has provided for the consent of the Board of Social Services or person appointed by the court to consent to its adoption. The consent of those in custody of the child under statutory provisions, unlike the absolute required consent of competent natural parents, is simply an additional safeguard to the welfare and best interests of the child. We agree with the Minnesota court that that consent may not be unreasonably and unjustly withheld. If the court shall find that a failure to grant the petition for adoption would be inimical to the best interests and welfare of the child, it may proceed as if the consent which it finds ought to have been given has been given.

Left for determination then, is whether the withholding of consent by respondent was unjust and unreasonable and not in the best interests of the child. We do not think so. The undisputed findings of fact show that the child's natural mother lives and works in the same city as do petitioners, as do the natural mother's father, and stepmother; that the petitioners know the name of the child given him by his natural mother; that it is an unusual name in that there are very few other families with that name in the city; that the natural mother had had the child with her for two periods of several months' duration prior to 27 September 1973, when he was placed with petitioners; that although the parents of the natural mother, who were distressed over the birth of an illegitimate child, continually encouraged the natural mother to allow the child to be adopted, the natural mother was firm in her desire to keep the child and, on 15 August 1974, had the child baptized in a church of her choice; that though the child was born on 12 September 1972, the natural mother did not give consent to adoption until 19 August 1974; that during the months that petitioners had the child in their home, the natural mother and maternal grandparents of the child visited with the child in the office of respondent; that they waited in respondent's office while a representative went to get the child which took only a short while; that the decision of the natural mother to give the child up for adoption was contrary to all her previous actions and statements; that the respondent has at all times maintained confidentiality as to natural parents' names with prospective adoptive parents in another county with whom respondent has been in contact; that the adoption by these prospective parents has the tentative approval of both respondent and the prospective parents; that respondent has made no investigation as to petitioners but as to the prospective adoptive parents in another county, full investigation has been made and detailed background information about the child has been disclosed to them; that although it is against the policy of respondent to place children for adoption with their foster parents, this has been done in a few cases where the children were older and knew their natural parents and other members of their family.

We think that the best interests of the child would not be served by placing him in a home in the same community where his natural mother lives under circumstances which indicate a real possibility that the natural mother or other members of her family might successfully pierce the veil of confidentiality which should be maintained for the best interests of the child. We think the facts clearly indicate that the respondent's fear of lack of confidentiality is well founded and justifies its withholding of consent, because of the strong likelihood of interference with the orderly and proper adjustment of the child in the home of petitioners.

For the reasons stated herein, we conclude that the order entered by Judge Webb should be and is

Affirmed.

BRITT and ARNOLD, JJ., concur.