{ "id": 8916897, "name": "IN THE MATTER OF: ADOPTION OF DAVID LEE SHULER, Minor Child", "name_abbreviation": "In re Adoption of Shuler", "decision_date": "2004-01-20", "docket_number": "No. COA02-1607", "first_page": "328", "last_page": "333", "citations": [ { "type": "official", "cite": "162 N.C. App. 328" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "292 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525570 ], "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0650-01" ] }, { "cite": "455 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "454", "parenthetical": "quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918942 ], "year": 1995, "pin_cites": [ { "page": "446", "parenthetical": "quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0444-01" ] }, { "cite": "567 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249089 ], "year": 2002, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0144-01" ] }, { "cite": "510 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659716, 1659848, 1659950, 1659903, 1659679 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0498-01", "/nc/348/0498-02", "/nc/348/0498-03", "/nc/348/0498-05", "/nc/348/0498-04" ] }, { "cite": "497 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "706" }, { "page": "706" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 142", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648764 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "150" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0142-01" ] }, { "cite": "552 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 2001, "pin_cites": [ { "page": "146", "parenthetical": "emphasis added" }, { "page": "198" }, { "page": "149" }, { "page": "194" }, { "page": "147" }, { "page": "195" }, { "page": "147" }, { "page": "198" }, { "page": "149" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "354 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138551 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "194", "parenthetical": "emphasis added" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0188-01" ] }, { "cite": "529 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "137 N.C. App. 623", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095285 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/137/0623-01" ] }, { "cite": "315 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400561, 2399698, 2394071, 2398716, 2396287 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0744-03", "/nc/310/0744-04", "/nc/310/0744-01", "/nc/310/0744-02", "/nc/310/0744-05" ] }, { "cite": "310 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523394 ], "year": 1983, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0269-01" ] }, { "cite": "567 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "155", "parenthetical": "quoting In re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984)" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 410", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080539 ], "year": 2002, "pin_cites": [ { "page": "412-13", "parenthetical": "quoting In re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0410-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 48-2-202", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "579 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "357 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491798 ], "year": 2003, "pin_cites": [ { "page": "144" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0142-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-279.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 48-2-607", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 48-3-601", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 2003, "pin_cites": [ { "page": "(2)(b)(4)(II)" }, { "page": "(2)(b)(4)" }, { "page": "(2)(b)(4)" }, { "page": "(2)", "parenthetical": "b" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 561, "char_count": 11931, "ocr_confidence": 0.773, "pagerank": { "raw": 4.297924175684826e-07, "percentile": 0.9166212006954846 }, "sha256": "aa871d0792346f338c7554111a7137f8e1c911ede74147c364e9b148a459ddbd", "simhash": "1:d9ee5603bdef2e64", "word_count": 1976 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge HUNTER concur." ], "parties": [ "IN THE MATTER OF: ADOPTION OF DAVID LEE SHULER, Minor Child" ], "opinions": [ { "text": "GEER, Judge.\nRespondent James Burgess appeals the trial court\u2019s order denying his motion to dismiss the petition of Christopher and Talenna Tipton for adoption of Mr. Burgess\u2019 son, David Lee Shuler, and finding that Mr. Burgess\u2019 consent was not required for the adoption to proceed. Because competent evidence in the record supports a finding that Mr. Burgess failed to unconditionally acknowledge paternity prior to the filing of the adoption petition, we affirm.\nMr. Burgess, the child\u2019s biological father, and Judith Shuler Nelson, the biological mother, entered into an intimate relationship sometime prior to February 2001. Ms. Nelson learned she was pregnant in March 2001. Although Ms. Nelson was married to another man, she was not living with her husband at that point.\nThe evidence is disputed as to whether Mr. Burgess and Ms. Nelson lived together during the first part of her pregnancy. They broke off their relationship in June 2001 and Mr. Burgess had little or no contact with Ms. Nelson until shortly before their child was bom on 30 October 2001.\nMr. Burgess was present at David\u2019s birth, but he told nurses and a hospital worker completing the birth certificate that he was only \u201ca friend\u201d of Ms. Nelson. The word \u201crefused\u201d appears in the space on David\u2019s birth certificate where the father\u2019s name is supposed to be listed. When Ms. Nelson was asked who had \u201crefused,\u201d she testified that it was Mr. Burgess \u201cbecause when they filled the birth certificate out, they wanted to know ... if he was the father about putting his name on it.\u201d\nOn 14 November 2001, Ms. Nelson gave David to Christopher and Talenna Tipton. Ms. Tipton is Ms. Nelson\u2019s cousin. Ms. Nelson informed Mr. Burgess that she had given their child away, although the evidence is disputed as to what precisely she told him.\nThe Tiptons filed a petition for adoption in Buncombe County on 13 December 2001. On 28 February 2002, Mr. Burgess filed an answer and motion to dismiss the adoption petition based on his refusal to consent to the adoption.\nOn 30 April 2002, the court held a hearing on Mr. Burgess\u2019 motion to dismiss at which the parties offered evidence on the issue whether Mr. Burgess\u2019 consent was required under N.C. Gen. Stat. \u00a7 48-3-601 (2003). The trial court found that Mr. Burgess had failed to acknowledge paternity prior to the filing of the petition for adoption, had failed to prove that he provided reasonable and consistent support within his financial means before the filing of the petition, and had failed to establish that he regularly visited or communicated, or attempted to visit or communicate, with Ms. Nelson or David during her pregnancy and after David\u2019s birth. Based on these findings, the court denied Mr. Burgess\u2019 motion to dismiss and ordered that \u201cthe Petition for Adoption may proceed and be finalized.\u201d Mr. Burgess appeals from that order.\nContrary to Rule 28 of the Rules of Appellate Procedure, Mr. Burgess has not included in his brief a statement of the grounds for appellate review. While under N.C. Gen. Stat. \u00a7 48-2-607(b) (2003) (allowing parties to adoption proceedings to appeal by filing notice pursuant to N.C. Gen. Stat. \u00a7 1-279.1), Mr. Burgess has the right to appeal the order denying his motion to dismiss, this appeal is from an interlocutory order. Because, however, the decision below eliminates \u201cthe fundamental right\u201d of Mr. Burgess, as a parent, \u201cto make decisions concerning the care, custody, and control of [his] children,\u201d Owenby v. Young, 357 N.C. 142, 144, 579 S.E.2d 264, 266 (2003), the order affects a substantial right and Mr. Burgess\u2019 appeal from that order is properly before this Court pursuant to N.C. Gen. Stat. \u00a7 l-277(a) (2003).\nAdoption proceedings are heard by the court without a jury. N.C. Gen. Stat. \u00a7 48-2-202 (2003). \u201c \u2018Our scope of review, when the Court plays such a dual role, is to determine whether there was competent evidence to support its findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d In re Adoption of Cunningham, 151 N.C. App. 410, 412-13, 567 S.E.2d 153, 155 (2002) (quoting In re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983), cert. denied, 310 N.C. 744, 315 S.E.2d 703 (1984)). This Court is bound to uphold the trial court\u2019s findings of fact if they are supported by competent evidence, even if there is evidence to the contrary. In re Adoption of Byrd, 137 N.C. App. 623, 529 S.E.2d 465 (2000), aff\u2019d on other grounds, 354 N.C. 188, 552 S.E.2d 142 (2001). Finally, in reviewing the evidence, we defer to the trial court\u2019s determination of witnesses\u2019 credibility and the weight to be given their testimony. Leak v. Leak, 129 N.C. App. 142,150, 497 S.E.2d 702, 706, disc. review denied, 348 N.C. 498, 510 S.E.2d 385 (1998).\nWe note that Mr. Burgess specifically assigned error only to the trial court\u2019s findings of fact 2, 4, and 7. Although Mr. Burgess does include an assignment of error stating that \u201c[t]he findings of fact as set forth in the trial court\u2019s Judgment were inconsistent with the evidence presented at trial[,]\u201d such a broadside assignment of error is not sufficient to comply with N.C.R. App. P. 10(c)(1) and preserve for review objections to the unspecified findings of fact. Anthony v. City of Shelby, 152 N.C. App. 144, 146, 567 S.E.2d 222, 224 (2002).\nAs a result, the findings of fact not specifically assigned as error are \u201c \u2018presumed to be supported by competent evidence and are binding on appeal.\u2019 \u201d First Union Nat\u2019l Bank v. Bob Dunn Ford, Inc., 118 N.C. App. 444, 446, 455 S.E.2d 453, 454 (1995) (quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)). Those findings of fact are sufficient to support the trial court\u2019s conclusion of law that Mr. Burgess\u2019 \u201cconsent to the adoption is not required.\u201d Nevertheless, we choose to suspend our rules and review the arguments presented in Mr. Burgess\u2019 brief.\nN.C. Gen. Stat. \u00a7 48-3-601 specifies the individuals whose consent is required prior to the granting of a petition to adopt a minor child. The parties agree that subsection (2)(b)(4)(II) of N.C. Gen. Stat. \u00a7 48-3-601 governs this case. Under that subsection, the consent of \u201c[a]ny man who may or may not be the biological father of the minor\u201d is required if he:\n4. Before the earlier of the filing of the petition or the date of a hearing under G.S. 48-2-206, has acknowledged his paternity of the minor and\nII. Has provided, 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 ....\nN.C. Gen. Stat. \u00a7 48-3-601(2)(b)(4)(II). A putative father \u201cmust have satisfied the three prerequisites stated, prior to the filing of the adoption petition, in order for his consent to be required. . . . Under the mandate of the statute, a putative father\u2019s failure to satisfy any of these requirements before the filing of the adoption petition would render his consent to the adoption unnecessary.\u201d In re Adoption of Byrd, 354 N.C. 188, 194, 552 S.E.2d 142, 146 (2001) (emphasis added).\nMr. Burgess therefore bore the burden of proving, id. at 198, 552 S.E.2d at 149, that before the Tiptons filed the petition, he (1) acknowledged paternity of David, (2) provided reasonable and consistent support for Ms. Nelson during or after pregnancy, or support for David, or both, commensurate with his financial means, and (3) regularly visited or communicated, or attempted to visit or communicate, with Ms. Nelson and David. Although we do not believe the trial court made adequate findings of fact regarding the issues of reasonable and consistent support and regular communication, we affirm the trial court\u2019s judgment because the record contains competent evidence supporting the trial court\u2019s finding that Mr. Burgess failed to acknowledge paternity prior to the filing of the petition for adoption. That finding standing alone is sufficient to support the court\u2019s conclusion of law that Mr. Burgess\u2019 consent was not required.\nThe Supreme Court held in Byrd that a putative father\u2019s acknowledgment of paternity may be verbal or written, or demonstrated by the putative father\u2019s conduct. Id. at 194, 552 S.E.2d at 147. Regardless of how paternity is acknowledged, that acknowledgment must, under Byrd, be made \u201cunconditionally\u201d and the putative father must \u201cunequivocally express [] his desire to be the child\u2019s father and a part of [the child\u2019s] life.\u201d Id. at 195, 552 S.E.2d at 147. As the Supreme Court held, \u201c[t]he interests of the child and all other parties are best served by an objective test that requires unconditional acknowledgment _\u201d Id. at 198, 552 S.E.2d at 149.\nIn this case, although Mr. Burgess signed an affidavit acknowledging his paternity on 15 December 2001, that document is irrelevant to this appeal because it was signed after the petition for adoption was filed. Under N.C. Gen. Stat. \u00a7 48-3-601(2)(b)(4), Mr. Burgess\u2019 acknowledgment must have occurred prior to the filing of the petition for adoption.\nWith respect to Mr. Burgess\u2019 actions prior to the filing of the petition, petitioners offered evidence that Mr. Burgess declined to acknowledge paternity at the hospital immediately after David\u2019s birth by falsely stating that he was merely \u201ca friend\u201d and by refusing to be listed as the child\u2019s father on the birth certificate. Despite evidence that Mr. Burgess did, on other occasions, acknowledge paternity verbally, this denial \u2014 at the time of the child\u2019s birth and at a point when Mr. Burgess believed himself to in fact be the father of the child\u2014 demonstrates that Mr. Burgess\u2019 acknowledgment was not unconditional and unequivocal. Mr. Burgess\u2019 arguments regarding the credibility of this evidence, including evidence as to why he did not acknowledge paternity at the hospital, were issues for the trial court to determine. Leak, 129 N.C. App. at 150, 497 S.E.2d at 706. Competent evidence therefore exists to support the trial court\u2019s finding that Mr. Burgess failed to acknowledge paternity within the meaning of N.C. Gen. Stat. \u00a7 48-3-601(2)(b)(4).\nThe trial court\u2019s finding of a lack of acknowledgment of paternity is sufficient to support that court\u2019s conclusion that Mr. Burgess\u2019 consent was not required. Byrd, 354 N.C. at 198, 552 S.E.2d at 149 (affirming decision that consent not required when father failed to satisfy one of the specific requirements of N.C. Gen. Stat. \u00a7 48-3-601(2) (b)(4) (II)). Because of this conclusion, we need not address Mr. Burgess\u2019 remaining arguments on appeal.\nAffirmed.\nChief Judge EAGLES and Judge HUNTER concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Michael E. Ciochina, for petitioner-appellee.", "Kay S. Murray, for respondent-appellant.", "No brief filed on behalf of Judith Shuler Nelson, respondent-appellee." ], "corrections": "", "head_matter": "IN THE MATTER OF: ADOPTION OF DAVID LEE SHULER, Minor Child\nNo. COA02-1607\n(Filed 20 January 2004)\n1. Appeal and Error\u2014 interlocutory appeal \u2014 adoption proceeding \u2014 substantial right\nAn interlocutory appeal arising from an adoption was properly before the Court of Appeals because the decision affected the fundamental rights of petitioner as a parent.\n2. Adoption\u2014 consent of father not required \u2014 ambiguous acknowledgment of paternity\nPetitioner\u2019s failure to unambiguously acknowledge paternity of his son prior to the filing of an adoption petition was sufficient to support the trial court\u2019s conclusion that petitioner\u2019s consent was not required for the adoption. N.C.G.S. \u00a7 48-3-601(2)(b)(4).\nAppeal by respondent from judgment entered 31 June 2002 by Judge Peter L. Roda in Buncombe County District Court. Heard in the Court of Appeals 13 October 2003.\nMichael E. Ciochina, for petitioner-appellee.\nKay S. Murray, for respondent-appellant.\nNo brief filed on behalf of Judith Shuler Nelson, respondent-appellee." }, "file_name": "0328-01", "first_page_order": 356, "last_page_order": 361 }