{ "id": 8526628, "name": "IN RE: DANIEL JAMES CLARK", "name_abbreviation": "In re Clark", "decision_date": "1985-07-16", "docket_number": "No. 8421DC1121", "first_page": "83", "last_page": "88", "citations": [ { "type": "official", "cite": "76 N.C. App. 83" } ], "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": "261 S.E. 2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "44 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554432 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/44/0584-01" ] }, { "cite": "301 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561450, 8561516, 8561493, 8561467, 8561533 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0087-01", "/nc/301/0087-04", "/nc/301/0087-03", "/nc/301/0087-02", "/nc/301/0087-05" ] }, { "cite": "267 S.E. 2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549460 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0340-01" ] }, { "cite": "322 S.E. 2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751333, 4759813, 4759654, 4754447, 4756432 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0492-05", "/nc/312/0492-04", "/nc/312/0492-01", "/nc/312/0492-02", "/nc/312/0492-03" ] }, { "cite": "316 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527833 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0676-01" ] }, { "cite": "316 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "196 S.E. 2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1973, "pin_cites": [ { "page": "70" }, { "page": "62" } ], "opinion_index": 0 }, { "cite": "18 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547167 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0065-01" ] }, { "cite": "293 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "58 N.C. App. 322", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524858 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0322-01" ] } ], "analysis": { "cardinality": 567, "char_count": 11803, "ocr_confidence": 0.846, "pagerank": { "raw": 3.0208101190480205e-07, "percentile": 0.8538754576038989 }, "sha256": "dc95f12fb021f5ced8089254dfd0df03ffa6376476443723a2c2bbb2f9a54324", "simhash": "1:1db2320a82a3ac1e", "word_count": 1899 }, "last_updated": "2023-07-14T20:46:57.071049+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Martin concur." ], "parties": [ "IN RE: DANIEL JAMES CLARK" ], "opinions": [ { "text": "PARKER, Judge.\nIn October 1982, Stephanie Ann Clark and Christian Paul Lampe began dating. In February 1983, Clark learned she was pregnant and, without revealing this information to Lampe, terminated their relationship. On 25 August 1983, Clark gave birth to Daniel James Clark. That day, Rebecca Lawhon, a child counselor from Family Services, Inc. (hereinafter petitioner), a licensed child placing agency in Forsyth County, contacted Clark about placing her son for adoption. Clark indicated to Lawhon at that time that Lampe was the father of her child and that he lived with his family in Winston-Salem, although she thought he might have subsequently moved to Florida. On 31 August 1983, Clark surrendered her son to petitioner for adoption pursuant to G.S. 48-9(a)(l).\nOn 1 December 1983, petitioner filed a petition to terminate Lampe\u2019s parental rights. Unable to locate Lampe, petitioner requested a preliminary hearing pursuant to G.S. 7A-289.26. At the hearing, Clark was evasive and indicated she was unsure of the spelling of Lampe\u2019s last name. The court concluded that because Lampe\u2019s \u201cwhereabouts\u201d were unknown, he must be served with notice by publication.\nNotice by publication was thereafter completed, and respondent failed to file answer. On 18 January 1984, an Order terminating Lampe\u2019s parental rights was entered.\nOn 2 May 1984, Lampe filed a motion to set aside the termination Order, alleging that on 6 April 1984, he received a letter from petitioner eliciting medical information regarding his son. Lampe alleged that prior to this letter, he had no knowledge that he had a son, or that any legal proceedings were taking place in regard to his son. Lampe alleged that although he was a college student, he had maintained the same permanent home address in Forsyth County for the past six years.\nLampe\u2019s motion came on for hearing, and the court concluded that \u201cpetitioner did not exercise a diligent effort at the time of the preliminary hearing ... to locate the father of Daniel James Clark\u201d and \u201c[t]hat ithe name of the purported father of the minor child was known at the time of the preliminary hearing. . . .\u201d The court granted respondent\u2019s motion and set aside the previous termination Order.\nThe central questions presented on this appeal are (i) whether, prior to using notice by publication, petitioner was required to use due diligence in locating respondent, and (ii) whether in fact petitioner met this requirement. We conclude due diligence is required in all parental rights termination cases before notice by publication can properly be used, and that petitioner failed to meet this requirement. Accordingly, we affirm the Order which set aside the prior termination Order.\nGeneral Statute 7A-289.1, et seq., governs the termination of parental rights. Although this Court has held that these statutes govern the procedure to be used in these cases, this Court has also held that the Rules of Civil Procedure are not to be ignored. In re Allen, 58 N.C. App. 322, 293 S.E. 2d 607 (1982).\nPetitioner contends that G.S. 7A-289.26 does not contain a due diligence requirement after a preliminary hearing has been held for the purpose of establishing the \u201cidentity/whereabouts\u201d of the respondent. We disagree. General Statute 7A-289.26 contains no provision to determine the \u201cwhereabouts\u201d of the respondent. Rather, that statute authorizes a preliminary hearing \u201cto ascertain the name or identity of such parent.\u201d We reject petitioner\u2019s contention that the term \u201cidentity\u201d as contemplated by G.S. 7A-289.26 is synonymous with \u201cwhereabouts.\u201d Nowhere in Black\u2019s Law Dictionary, or in Burton\u2019s Legal Thesaurus, are these words used interchangeably. In our view, the sole purpose of the preliminary hearing so authorized is to ascertain the name or identity of such parent, not to ascertain his or her whereabouts.\nAlthough the record reveals that Clark was evasive concerning Lampe\u2019s whereabouts, it is equally clear that she told everyone involved that the father\u2019s 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.\nHaving determined that G.S. 7A-289.26 contains no provision for serving a known, but unbeatable parent, we must examine G.S. 7A-289.27 and the Rules of Civil Procedure for guidance. General Statute 7A-289.27 provides that \u201c[e]xcept as provided in G.S. 7A-289.26, upon the filing of the petition, the court shall cause a summons to be issued. . . .\u201d This statute further provides that \u201c[sjervice of the summons shall be completed as provided under the procedures established by G.S. 1A-1, Rule 4(j).\u201d General Statute 1A-1, Rule 4 (jl) states: \u201cA party that cannot with due diligence be served by personal delivery or registered or certified mail may be served by publication.\u201d This statute is appropriate only where a civil litigant\u2019s whereabouts are unknown, and the due diligence requirement contained therein is clear.\nThe case of In re Phillips, 18 N.C. App. 65, 196 S.E. 2d 59 (1973), although decided under the former termination statute, is factually similar and instructive on this point. In that case, petitioner knew the respondents\u2019 names, but not their whereabouts. A preliminary hearing was held, and upon the court\u2019s determination \u201cthat it was impractical to obtain personal service\u201d upon either parent, service by publication was ordered. The respondent-father subsequently moved to have the termination order set aside based on insufficiency of service of process, which was denied. On appeal, this Court imposed the due diligence requirement of Rule 4(jl) onto that termination statute, even though it contained no such requirement, and held that the termination Order should have been set aside because of petitioner\u2019s failure to comply with the publication requirements contained in Rule 4. Id. at 70, 196 S.E. 2d at 62.\nAlthough we recognize that former G.S. 7A-288 provided that the parent shall be notified by personal service of the summons and petition or \u201cunder the procedures established by Rule 4 of the Rules of Civil Procedure . . . ,\u201d G.S. 7A-289.27 also provides for service of the summons \u201cas provided under the procedures established by G.S. 1A-1, Rule 4(j). . . .\u201d We find the reasoning of Phillips persuasive since the procedural language contained in the former statute and in current G.S. 7A-289.27 are substantially similar. We conclude, therefore, that where, as here, the \u201cname or identity\u201d of a respondent parent is known, but his or her whereabouts are unknown, that the petitioner in a parental rights termination case must proceed under G.S. 7A-289.27 and must comply with Rule 4(jl) as regards service by publication, and specifically, with the due diligence requirement contained therein.\nNext, petitioner asserts that prior to using notice by publication, they exercised due diligence in attempting to ascertain the identity and whereabouts of the respondent father.\nAs we noted earlier, the trial court concluded as a matter of law that \u201cpetitioner did not exercise a diligent effort at the time of the preliminary hearing\u201d in locating Lampe. It is well established that while findings of fact, if supported by competent evidence, are conclusive on appeal, Matter of Montgomery, 311 N.C. 101, 316 S.E. 2d 246 (1984), the trial court\u2019s conclusions of law arising from these facts are always reviewable de novo on appeal. City v. Engineering Co., 68 N.C. App. 676, 316 S.E. 2d 115, disc. rev. denied, 312 N.C. 492, 322 S.E. 2d 554 (1984).\nIn this case, petitioner knew respondent\u2019s 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 \u201cLampe\u201d 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\u2019s 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.\nWe find the following findings of fact most persuasive:\n12. That since 1982, Christian Paul Lampe has had a North Carolina driver\u2019s license with the address of 101 Wad-dington 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 the 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 Wad-dington Road and continue to reside there at this time.\n13. 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.\nPetitioner contends that this case is controlled by Emanuel v. Fellows, 47 N.C. App. 340, 267 S.E. 2d 368, disc. rev. denied, 301 N.C. 87 (1980), in which this Court concluded that \u201cwe do not wish to make a restrictive mandatory checklist for what constitutes due diligence .... Rather, a case by case analysis is more appropriate.\u201d Id. at 347, 267 S.E. 2d at 372. We agree with this language, and conclude that under the facts of this particular case, petitioner failed to act with due diligence in attempting to determine respondent\u2019s whereabouts. Service by publication is void where the plaintiff did not use due diligence in ascertaining defendant\u2019s address. Fountain v. Patrick, 44 N.C. App. 584, 261 S.E. 2d 514 (1980).\nIn view of our disposition of the first two assignments of error, we need not decide whether petitioner\u2019s late filing of the attorney\u2019s affidavit was prejudicial to respondent.\nThe Order appealed from is\nAffirmed.\nJudges Arnold and Martin concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Meyressa H. Schoonmaker for petitioner-appellant.", "Dan S. Johnson for respondent-appellee." ], "corrections": "", "head_matter": "IN RE: DANIEL JAMES CLARK\nNo. 8421DC1121\n(Filed 16 July 1985)\n1. Parent and Child 8 1.5\u2014 termination of parental rights \u2014purpose of preliminary hearing\nThe sole purpose of the preliminary hearing authorized by G.S. 7A-289.26 in a proceeding to terminate parental rights is to ascertain the name or identity of an unknown parent, not to ascertain his or her whereabouts.\n2. Parent and Child \u00a7 1.5; Rules of Civil Procedure 8 4.1\u2014 termination of parental rights \u2014 service by publication \u2014due diligence requirement\nWhere the name or identity of respondent parent in a proceeding to terminate parental rights is known but his or her whereabouts are unknown, the petitioner must proceed under G.S. 7A-289.27 and, with regard to service of process by publication, must comply with the requirements of G.S. 1A-1, Rule 4(jl), including the requirement of due diligence.\n3. Parent and Child 8 1.5; Rules of Civil Procedure 8 4.1\u2014 termination of parental rights \u2014service of process by publication \u2014failure to use due diligence\nService of process by publication on respondent father in a proceeding to terminate parental rights was void where petitioner failed to use due diligence in attempting to locate the father in that petitioner relied solely on information supplied by the mother and failed to check public records which would have revealed the father\u2019s address.\nAppeal by petitioner from Gatto, Judge. Order entered 14 June 1984 in District Court, FORSYTH County. Heard in the Court of Appeals 14 May 1985.\nPetitioner appeals from the granting of respondent\u2019s motion to have an order terminating his parental rights set aside.\nMeyressa H. Schoonmaker for petitioner-appellant.\nDan S. Johnson for respondent-appellee." }, "file_name": "0083-01", "first_page_order": 117, "last_page_order": 122 }