{ "id": 2499085, "name": "IN RE THE ADOPTION OF DANIEL JAMES CLARK", "name_abbreviation": "In re the Adoption of Clark", "decision_date": "1990-07-26", "docket_number": "No. 395A89", "first_page": "61", "last_page": "74", "citations": [ { "type": "official", "cite": "327 N.C. 61" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "381 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": -1 }, { "cite": "95 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519300 ], "year": 1989, "opinion_index": -1, "case_paths": [ "/nc-app/95/0001-01" ] }, { "cite": "310 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402735 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0075-01" ] }, { "cite": "187 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573820 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0091-01" ] }, { "cite": "340 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "400", "parenthetical": "citing Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972)" }, { "page": "400" } ], "opinion_index": 0 }, { "cite": "316 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694487 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "72", "parenthetical": "citing Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972)" }, { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0067-01" ] }, { "cite": "335 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4690817, 4688041, 4690990, 4689238, 4688571 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0665-02", "/nc/314/0665-01", "/nc/314/0665-04", "/nc/314/0665-05", "/nc/314/0665-03" ] }, { "cite": "332 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "199-200" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526628 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "87-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0083-01" ] }, { "cite": "381 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "841", "parenthetical": "Cozort, J., dissenting" }, { "page": "840" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519300 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0001-01" ] }, { "cite": "265 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "234" } ], "opinion_index": 1 }, { "cite": "300 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559759 ], "year": 1980, "pin_cites": [ { "page": "68" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0057-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "167" } ], "opinion_index": 1 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 1, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "327 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "317" } ], "opinion_index": 1 }, { "cite": "74 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522709 ], "year": 1985, "pin_cites": [ { "page": "64" } ], "opinion_index": 1, "case_paths": [ "/nc-app/74/0061-01" ] }, { "cite": "381 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "839" } ], "opinion_index": 1 }, { "cite": "95 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519300 ], "year": 1989, "pin_cites": [ { "page": "7" } ], "opinion_index": 1, "case_paths": [ "/nc-app/95/0001-01" ] } ], "analysis": { "cardinality": 988, "char_count": 31154, "ocr_confidence": 0.774, "pagerank": { "raw": 3.509804563385035e-07, "percentile": 0.8832455096802941 }, "sha256": "c81a8ffd29c2d96b0571b5a748599b9239b73263b9e7d91e3ea078e3b79bf930", "simhash": "1:240bf677041c9052", "word_count": 5237 }, "last_updated": "2023-07-14T20:39:47.348264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices MITCHELL and Webb join in this dissenting opinion." ], "parties": [ "IN RE THE ADOPTION OF DANIEL JAMES CLARK" ], "opinions": [ { "text": "FRYE, Justice.\nThe issues in this case are whether the Court of Appeals erred in reversing the trial court\u2019s order: (1) dismissing the adoption proceeding involving Daniel James Clark; and (2) holding that the adoption proceeding cannot proceed without the consent of the biological father of the child. We find no error or abuse of discretion in the trial court\u2019s order dismissing the adoption petition without prejudice to its refiling and finding that Mr. Lampe\u2019s consent was necessary before the adoption proceeding could continue. We, therefore, reverse the Court of Appeals which held to the contrary.\nThe undisputed facts of this case are both heart rending and unique. They concern the efforts of the biological father of Daniel James Clark to assert his paternal rights and responsibilities over a period of more than six years of litigation during which time his child has been tentatively placed in an adoptive home, apparently unaware of his father\u2019s efforts to establish contact with him.\nDaniel James Clark was born to Stephanie Ann Clark on 25 August 1983. Ms. Clark had been dating Christian Paul Lampe from October 1982 until April 1983. During this period they had sexual relations, and Ms. Clark told Mr. Lampe that she was using some form of contraceptive when she was in actuality not using any form of birth control. In April 1983, Ms. Clark told Mr. Lampe that she did not want to see him again. At that time she knew that she was pregnant, but she did not tell Mr. Lampe. Ms. Clark carried the baby to full term without anyone in her family or Mr. Lampe\u2019s family ever being aware of the pregnancy.\nAfter giving birth to the child, Ms. Clark contacted Family Services, Inc., which is a non-profit, child-placing agency, and told its representative that she wished to give the child up for adoption. On 31 August 1983, Ms. Clark executed and delivered to Family Services a \u201cParent\u2019s Release, Surrender and Consent to Adoption\u201d in which she gave up rights to the child and consented to his adoption. Ms. Clark did this without ever telling Mr. Lampe about the birth. Before releasing her rights to the child, she told Family Services that Mr. Lampe was the father of the child. The record indicates th\u00e1t Family Services knew that the child\u2019s father was unaware of Ms. Clark\u2019s pregnancy or the birth of his child. During the pre-adoption interviews, Ms. Clark was evasive about Mr. Lampe\u2019s whereabouts and later gave Family Services an incorrect telephone number for him.\nArmed with the knowledge that the father\u2019s name was Christian Paul Lampe and that he had at least recently lived in the Winston-Salem area, Family Services made only one unsuccessful attempt to contact Mr. Lampe by telephone. While the local telephone directory had two listings for \u201cLampe,\u201d Family Services called only one of them. This number had been disconnected, and Family Services made no attempt to call the second number which was that of Mr. Lampe\u2019s parents, the number and address which Mr. Lampe used as his permanent address while away at college. The record reflects that Family Services made no other attempt to contact Mr. Lampe prior to initiating a termination proceeding even though: (1) Mr. Lampe had a North Carolina driver\u2019s license since 1982 listing his parents\u2019 home address as his permanent address; (2) Mr. Lampe paid personal property taxes in Forsyth County listing his parents\u2019 home address as his permanent address; and (3) Mr. Lampe was registered to vote in Forsyth County again listing his parents\u2019 address as his permanent home address. Family Services did not consult any of these public records in an attempt to locate Mr. Lampe but instead relied on the incomplete and inaccurate information which Ms. Clark provided.\nOn 1 December 1983, Family Services filed a petition to terminate Mr. Lampe\u2019s parental rights. This petition was based on N.C.G.S. \u00a7 7A-289.32(6) which sets out when parental rights of the father of a child born out of wedlock may be terminated. Claiming that it was unable to locate Mr. Lampe, Family Services requested a preliminary hearing pursuant to N.C.G.S. \u00a7 7A-289.26. On 8 December 1983, the trial judge concluded, \u201c[t]he father of the above-named child, not having been served with notice due to his exact whereabouts being unknown, must be served with notice by publication.\u201d A notice of service by publication was published in a local newspaper. An order terminating Mr. Lampe\u2019s parental rights was issued on 18 January 1984. The child was then placed with the adoptive parents who filed a petition for adoption on 16 February 1984. With the petition for adoption, the adoptive parents filed a copy of the termination order rather than the affidavit required by N.C.G.S. \u00a7 48-13.\nWhile it had told the trial judge during the termination proceeding that it was unable to locate Mr. Lampe, Family Services sent him a letter at his parents\u2019 address on 27 March 1984, after the termination order was entered and after the adoption petition was filed. This letter asked Mr. Lampe to contact the agency in order to provide information about his background and family medical history. Upon receipt of this letter in early April, Mr. Lampe immediately called Family Services and found out for the first time that Ms. Clark had a child in August 1983, that she had given the child up for adoption, and that she had named him as the father of the child. On 2 May 1984, Mr. Lampe filed a motion to set aside the termination order on the grounds that service upon him by publication was invalid because Family Services failed to use due diligence in attempting to locate him. On 14 June 1984, the district court set aside the termination order issued 18 January 1984 on the grounds that Family Services did not exercise a diligent effort at the time of the preliminary hearing to locate Mr. Lampe. The Court of Appeals affirmed the district court\u2019s order, and this Court denied discretionary review. In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, disc. rev. denied, 314 N.C. 665, 335 S.E.2d 322 (1985).\nAfter he filed the motion to set aside the termination order, Mr. Lampe, on 4 May 1984, filed a special proceeding to legitimate the child and, on 23 July 1984, filed a motion for a restraining order prohibiting the clerk of superior court from proceeding with the adoption proceedings. The restraining order was issued on 29 August 1984.\nAfter this Court denied discretionary review of the Court of Appeals\u2019 decision affirming the setting aside of the termination order, Family Services voluntarily dismissed the petition for the termination order and filed a motion on 24 October 1985 to dismiss the restraining order which had prevented the adoption from proceeding. This motion was granted on 12 December 1985, and the order dismissing the restraining order further instructed the clerk of superior court to cause notice to be issued and served on Mr. Lampe, pursuant to N.C.G.S. \u00a7 48-6(a)(3), to show cause as to why his consent to the adoption of the child was necessary or required. This notice was filed on 4 February 1986. Included with this notice was a copy of an affidavit by the Director of Family Services. The affidavit, dated 2 January 1986, stated that prior to the filing of the adoption petition on 16 February 1984, Mr. Lampe had taken none of the steps enumerated in N.C.G.S. \u00a7 48-6(a)(3) which would make his consent necessary. The affidavit made no reference to the legitimation proceeding instituted by Mr. Lampe on 4 May 1984.\nThe assistant clerk of the superior court held a hearing on this matter and allowed Mr. Lampe to offer evidence as to why his consent was necessary before the adoption could proceed. On 9 June 1986, the assistant clerk filed an order which, based on findings of fact and conclusions of law, ordered among other things:\n1. The consent of Christian Paul Lampe to the adoption of Daniel James Clark by the adoptive parents is not and shall not be necessary nor required; and\n2. The adoption proceeding for the adoption of Daniel James Clark shall proceed without the consent of Christian Paul Lanipe\nMr. Lampe gave notice of appeal from this order on 13 June 1986. A de novo hearing was begun in the superior court on 27 January 1988. The trial judge made findings of fact and conclusions of law and issued an order on 16 May 1988. This order provided:\n1. That the adoption petition is hereby dismissed without prejudice as to its refiling.\n2. That the consent of the biological father is necessary before the adoption of the minor child, Daniel James Clark, may continue.\nFamily Services and the adoptive parents appealed from this order to the Court of Appeals. The Court of Appeals reversed the order of the trial judge and remanded the case to the superior court. In re Adoption of Clark, 95 N.C. App. 1, 381 S.E.2d 835 (1989). Mr. Lampe appealed to this Court as a matter of right based on the dissenting opinion in the Court of Appeals.\nIn his dissenting opinion, Judge Cozort said:\nThe majority\u2019s opinion has the effect of overturning this Court\u2019s 1985 decision .... To allow the petitioners to go forward with the adoption, without the father\u2019s consent, makes meaningless our opinion overturning the termination order. In effect, we would allow the petitioners to terminate the father\u2019s rights through the adoption process.\nId. at 13, 381 S.E.2d at 841 (Cozort, J., dissenting).\nIn N.C.G.S. \u00a7\u00a7 48-13 and 48-15 our statutes set out what is necessary for a valid adoption \u201cproceeding\u201d when the child is born out of wedlock. Section 48-15 provides a form to be used for the petition which must be filed. In addition to the filing of the petition, N.C.G.S. \u00a7 48-13 provides:\nNo reference shall be made in any petition, interlocutory decree, or final order of adoption to the marital status of the biological parents of the child sought to be adopted, to their fitness for the care and custody of such child, nor shall any reference be made therein to any child being born out of wedlock.\nIn the case of a child born out of wedlock and not legitimated prior to the time of the signing of the consent, an affidavit setting forth such facts sufficient to show that only the consent required under G.S. 48-6 is necessary shall be filed with the petition for adoption.\nN.C.G.S. \u00a7 48-13 (1984) (emphasis added). Thus our statutes clearly provide that, in the case of a child born out of wedlock, both the petition set out in N.C.G.S. \u00a7 48-15 and an affidavit conforming to the requirements of N.C.G.S. \u00a7 48-13 must be filed before a valid adoption proceeding has been instituted.\nIn the present case, the evidence is undisputed that the petition for adoption was filed, but the termination order, rather than the affidavit required by statute, was filed with the petition. This termination order was invalid because the service by publication was void since due diligence was not used to determine Mr. Lampe\u2019s address'. In re Clark, 76 N.C. App. at 87-88, 332 S.E.2d at 199-200. Therefore, there was no valid adoption proceeding begun on 16 February 1984 since only the petition was filed, and the petition by itself is not enough.\nFamily Services and the adoptive parents argue that the filing of the affidavit is a mere technicality and the failure to file the affidavit by itself is not enough to keep this from being a valid adoption proceeding. We disagree. The statute provides that the petition shall make no reference to the status of the biological parents when the child has been born out of wedlock. N.C.G.S. \u00a7 48-13 (1984). The statute then goes on to provide that the information about whether the parent\u2019s consent is necessary must be included in an affidavit which shall be filed with the petition. Id. The purpose of the filing of this affidavit is to allow the clerk of superior court to determine whether the adoption proceeding is properly filed so as to meet the essential requirements of the adoption statutes. This affidavit provides the basis for the clerk to determine if the father is a necessary party to the proceeding. Therefore, failure to file this affidavit is not a mere technicality; it goes to the heart of a valid adoption proceeding.\nSince this proceeding was not a valid adoption proceeding, Mr. Lampe\u2019s parental rights have not been cut off by the provisions of N.C.G.S. \u00a7 48-6(a)(3). This statute provides:\nIn the case of a child born out of wedlock the consent of the putative father shall not be required unless prior to the filing of the adoption petition:\na. Paternity has been judicially established or acknowledged by affidavit which has been filed in a central registry maintained by the Department of Human Resources; provided, the court shall inquire of the Department of Human Resources as to whether such an affidavit has been so filed and shall incorporate into the case record the Department\u2019s certified reply; or\nb. The child has been legitimated either by marriage to the mother or in accordance with provisions of G.S. 49-10, a petition for legitimation has been filed; or\nc. The putative father has provided substantial support or consistent care with respect to the child and mother. Determination under G.S. 48-6(a)(3) that the adoption may proceed without the putative father\u2019s consent shall be made only after notice to him pursuant to G.S. 1A-1, Rule 4. This notice shall be titled in the biological name of the child.\nN.C.G.S. \u00a7 48-6(a)(3) (1984). Mr. Lampe filed a special proceeding in the superior court on 4 May 1984 to legitimate the child. This legitimation proceeding was filed before a valid adoption proceeding was filed. Therefore, the provisions of N.C.G.S. \u00a7 48-6(a)(3) do not take effect to keep Mr. Lampe from being a necessary party to an adoption proceeding involving his son.\nWe thus come to the crucial question in this case: when a termination order, later held to be invalid for failure to use due diligence in ascertaining the putative father\u2019s address, is filed with an adoption petition in lieu of the affidavit required by N.C.G.S. \u00a7 48-13, may a subsequently filed affidavit relate back to the original filing date of the petition so as to cut off the rights of a putative father who filed a legitimation petition pursuant to N.C.G.S. \u00a7 49-10 before the affidavit was filed? The trial judge, in effect, gave a negative answer to the question, and the Court of Appeals reversed.\nThe Court of Appeals concluded that Family Services and the adoptive parents should be allowed under Rule 15 of the Rules of Civil Procedure to amend the adoption petition by filing the necessary affidavit. In re Adoption of Clark, 95 N.C. App. at 10, 381 S.E.2d at 840. Rule 15(a) provides that leave to amend \u201cshall be freely given when justice so requires,\u201d N.C.G.S. \u00a7 1A-1, Rule 15(a) (1983), \u201cunless some material prejudice to the other party is demonstrated.\u201d Mauney v. Morris, 316 N.C. 67, 72, 340 S.E.2d 397, 400 (1982) (citing Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972)). The decision to permit or deny an amendment rests within the sound discretion of the trial judge and should not be disturbed on appeal absent a showing of an abuse of that discretion. Mauney v. Morris, 316 N.C. at 72, 340 S.E.2d at 400; Henry v. Deen, 310 N.C. 75, 310 S.E.2d 326 (1984).\nClearly, in this case where Mr. Lampe could lose his parental rights, and where he has taken action to avoid that very outcome by filing a petition for legitimation after he learned about the birth of his child, Mr. Lampe would be prejudiced by any attempt to relate a filing back to a time when he had no notice of this fact. Mr. Lampe took appropriate action to avoid losing his parental rights after he found out about the child, and allowing the affidavit to relate back to the time when he did not know about the child would materially prejudice him. Under these circumstances, the trial judge did not abuse his discretion in not treating the affidavit, submitted two years after the adoption petition, as having been filed with the adoption petition.\nMr. Lampe argued in his brief that his due process and equal protection rights are violated by these adoption statutes which could allow a biological father to lose parental rights to a child when he did not know he had a child. However, since Mr. Lampe\u2019s consent is necessary for the adoption in this case to proceed, we need not address these constitutional issues.\nFor thei reasons stated herein, the decision of the Court of Appeals is reversed, and the order of the trial court is reinstated.\nReversed.", "type": "majority", "author": "FRYE, Justice." }, { "text": "Justice WHICHARD\ndissenting.\nI am convinced that the majority in the Court of Appeals correctly held that the adoption proceeding was improperly dismissed and could have gone forward without the consent of the child\u2019s putative father. In holding that the trial court did not err in dismissing the adoption petition instead of allowing the affidavit required by N.C.G.S. \u00a7 48-13 to relate back to the date the petition was first filed with a copy of the termination order, the majority has mistaken evidence for pleadings, and it has ignored the strong expression of legislative intent set out in the statute. While the machinations of Family Services and of the child\u2019s mother to avoid meaningful notification of the putative father are not laudable, in view of the plain language and express purpose of the controlling statutory provisions, neither are they determinative. What ought to determine this case and others like it is the clear, simple, legislative purpose to put the rights and welfare of the adoptive child above the rights of his absent or incapable biological parent.\nThe statutory scheme for the transfer of parental responsibilities from biological to adoptive parents includes a means of terminating the rights and duties of the former in order to assure that the rights and duties of the latter will be exclusive with regard to the adoptive child. The legislative intent underlying this scheme reflects the following priorities:\n[T]he primary purpose of this chapter is to protect children from unnecessary separation from parents who might give them good homes and loving care, . . . and to protect them from interference, long after they have become properly adjusted in their adoptive homes[,] by biological parents who may have some legal claim because of a defect in the adoption procedure. . . . The secondary purpose of this Chapter is ... to prevent later disturbance of [the adoptive parents\u2019] relationship to the child by biological parents whose legal rights have not been fully protected.\nN.C.G.S. \u00a7 48-1(1), (2) (1984). This provision concludes with guidance as to how the chapter is to be read and applied: \u201cWhen the interests of a child and those of an adult are in conflict, such conflict should be resolved in favor of the child; and to that end this Chapter should be liberally construed.\u201d N.C.G.S. \u00a7 48-1(3) (1984).\nAt the time Family Services filed its adoption petition, the parental rights of the biological parents of an illegitimate child could be foreclosed in one of three general ways: by consent under N.C.G.S. \u00a7 48-7(a) or \u00a7 48-9(a)(l); by \u201ctermination\u201d under Article 23 (now repealed) or Article 24B of Chapter 7A; or by adjudication of abandonment under Article 24B of Chapter 48. Family Services initially filed a copy of a termination order with its adoption petition on 16 February 1984. As the culmination of the action to terminate parental rights under Article 24B of Chapter 7A, the order established the facts that Family Services had complied in good faith with all pertinent provisions of the statute, including a preliminary hearing to ascertain whether notice was to be served by publication, court-sanctioned notice by publication, and an adjudicatory hearing prior to the issuance of the order itself on 18 January 1984. See N.C.G.S. \u00a7\u00a7 7A-289.26(a), (d), 7A-289.30(a), (d), 7A-289.32(6), and 7A-289.33 (1989). The order specified as grounds for terminating the parental rights of the putative father that the father had \u201cnot done any of the acts listed in G.S. 7A-289.32(6).\u201d In addition to the termination order, Family Services attached a consent form signed by the agency itself and a \u201cParent\u2019s Release, Surrender, and Consent\u201d form signed by the child\u2019s mother, in compliance with N.C.G.S. \u00a7\u00a7 48-7(b) and 48-9(a)(3). When an order terminating parental rights has been filed with the adoption petition, a licensed child-placing agency such as Family Services has the right to give written consent to the adoption of a child in its custody. N.C.G.S. \u00a7\u00a7 48-5(f), 48-9(a)(3) (1984 & Cum. Supp. 1989). Such consent, filed with the petition for adoption, is sufficient for purposes of making such an agency a party to the adoption proceeding. N.C.G.S. \u00a7 48-9(a) (1984 & Cum. Supp. 1989).\nUnder the provisions of N.C.G.S. \u00a7 7A-289.32(6), the circumstances under which the parental rights of a putative father may be foreclosed are \u201cvirtually identical\u201d to those under which an adoption may proceed without the consent of the putative father, in effect terminating his parental rights. In re Adoption of Clark, 95 N.C. App. 1, 7, 381 S.E.2d 835, 839 (1989). See also N.C.G.S. \u00a7\u00a7 48-5 (1984 & Cum. Supp. 1989), 48-6(a)(3) (1984). Among the enumerated acts, the nonfeasance of which may result in the termination of a putative father\u2019s rights, is the circumstance whether he has \u201c[l]egitimated the child pursuant to provisions of G.S. 49-10, or filed a petition for that specific purpose.\u201d N.C.G.S. \u00a7 7A-289.32(6)(b) (1989). Cf. N.C.G.S. \u00a7 48-6(a)(3) (1984) (\u201cThe child has been legitimated either by marriage to the mother or in accordance with provisions of G.S. 49-10, a petition for legitimation has been filed.\u201d). By filing a petition to legitimate Daniel James Clark on 4 May 1984, the putative father clearly intended belatedly to nullify such a finding in the termination order and to preclude any subsequent finding under N.C.G.S. \u00a7 48-6(a) that he had not performed any act that would have made his consent necessary to the child\u2019s adoption. The holding of the majority gives the putative father\u2019s belated filing the effect he desires because it affirms the trial court\u2019s decision not to allow the affidavit to be substituted for the termination order filed with the adoption petition. In this the majority misapplies the Rules of Civil Procedure and misconstrues the letter and spirit of the adoption statute.\nAlthough the Rules of Civil Procedure generally apply to adoption proceedings, see In re Adoption of Searle, 74 N.C. App. 61, 64, 327 S.E.2d 315, 317 (1985), the termination order or affidavit required to obviate a putative father\u2019s consent to adoption is not, properly considered, a pleading. A pleading setting forth a claim for relief is \u201ca short and plain statement of the claim sufficiently particular to give the parties and the court notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved.\u201d N.C.G.S. \u00a7 1A-1, Rule 8(a)(1) (1983 & Cum. Supp. 1989). Detailed fact pleading is neither required nor prohibited under our \u201cnotice theory\u201d of pleading. Sutton v. Duke, 277 N.C. 94, 104-05, 176 S.E.2d 161, 167 (1970). However, the facts underlying a party\u2019s statement of its claim should not be confused with the pleading itself, particularly in a case such as this where the evidence underlying the particular averment, attached as a \u201cconsent form\u201d to the petition for adoption, was identical in the termination order and the later affidavit.\nProperly considered, the pleading involved is the allegation in the petition for adoption that \u201call necessary parties to this proceeding are properly before the court; and there has been full compliance with the law in regard to the Consent to Adoption filed with this Petition . . . .\u201d The affidavit is not a pleading, but statutorily required evidence supporting the foregoing allegation. The majority thus goes astray in viewing introduction of the affidavit as an amendment to pleadings, which is discretionary with the trial court.\nIn general, \u201call relevant evidence is admissible.\u201d N.C.G.S. \u00a7 8C-1, Rule 402 (1988). The only issue before the trial court here was whether the putative father\u2019s consent to the adoption was required. Thus, an affidavit averring that the putative father had performed none of the acts set forth in N.C.G.S. \u00a7 7A-289.32(6) that would make his consent to the adoption necessary was clearly relevant and admissible. Ordinarily, a court order terminating the putative father\u2019s parental rights for failure to perform any of the acts set forth in N.C.G.S. \u00a7 7A-289.32(6) would constitute even more persuasive evidence than a mere affidavit to the same effect. Thus, in attaching the termination order to the petition for adoption, rather than an affidavit, petitioners were offering the evidence required by the statute, but in a more persuasive form.\nThe termination order, while ruled invalid on procedural grounds, was not invalidated as to its evidentiary substance, to wit, that the putative father had failed to perform in any of the ways necessary to require his consent to the adoption. The affidavit and the contents of the termination order were evidentiary underpinnings to the same averment in the petition for adoption and consent form accompanying it: that the putative father had taken none of the steps described by statute prior to the filing of either the termination or the adoption petition that would indicate an interest in the child or in the corporeal consequences of his amorous liaison. The substance of the averment did not vary from one document (the termination order) to its proffered substitute (the affidavit): the latter was merely evidence in an admissible form (the affidavit) substituted for the same evidence in a form rendered inadmissible by the invalidation of the termination order. Admitting the substituted evidence in no way would have altered the legal status of the proceeding. The adoption petition, filed on 16 January 1984, was still before the court, as was the consent form signed by the agency in accordance with N.C.G.S. \u00a7 48-9(a)(3). The affidavit simply repeated for the record the reason the father\u2019s consent was not required: that prior to the filing of the adoption petition, he had not taken any of the steps enumerated in N.C.G.S. \u00a7 48-6(a)(3). This evidence was relevant and admissible, and in dismissing the adoption petition for improper filing where the same admissible, relevant evidence in a form different from the invalidated order was before the court, the trial court \u201ctruly exalt[ed] form over substance.\u201d Power Co. v. Winebarger, 300 N.C. 57, 68, 265 S.E.2d 227, 234 (1980). In light of the clear legislative mandate that the adoption statutes are to be construed liberally in favor of the child and its stability in its adoptive home, N.C.G.S. \u00a7 48-1, I would hold that it erred in doing so.\nThe legislature has expressly stated that in adoption proceedings under Chapter 48, the child\u2019s interests are to take precedence over the conflicting interests of an adult and the intervention of a biological parent in the child\u2019s relationship with his adoptive parents is to be prevented, even when the legal rights of that biological parent may \u201cnot have been fully protected.\u201d N.C.G.S. \u00a7 48-1(1), (2) (1984). The majority\u2019s view that relation back of the affidavit was precluded by potential prejudice to the putative father inaccurately characterizes evidence supporting averments as to parental consent as pleadings and exalts form over substance in allowing the exclusion of relevant and admissible evidence. More important, it ignores the stated purpose of the adoption statute, which clearly favors the child\u2019s interests over those of his putative parent and promotes the stability of the child in his adoptive home. The child in this case approaches his seventh birthday ignorant of the efforts of his putative father to sever the child\u2019s lifelong bond with his adoptive parents and to assume custody. The result reached by the majority does not place the child\u2019s interests over the conflicting interests of his biological parent and undermines the stability of the child in his adoptive home, contrary to clear legislative intent. \u201c[T]he primary purpose of [the adoption statute] is to protect children . . . from interference, long after they have become properly adjusted in their adoptive homesf,] by biological parents who may have some legal claim because of a defect in the adoption procedure.\u201d N.C.G.S. \u00a7 48-1(1), (2) (1984).\nFor the foregoing reasons, I respectfully dissent.\nJustices MITCHELL and Webb join in this dissenting opinion.\n. In holding that the adoption petition had been improperly filed and dismissing it without prejudice, the trial court erroneously stated that the adoption statute was to be strictly construed. The statute prescribes that it is to be liberally construed in favor of the child and in favor of the stability of the child in its adoptive home.", "type": "dissent", "author": "Justice WHICHARD" } ], "attorneys": [ "Wilson, DeGraw, Johnson & Ruthledge, by Daniel S. Johnson and David F. Tamer, for appellant.", "Roy G. Hall, Jr. for appellee." ], "corrections": "", "head_matter": "IN RE THE ADOPTION OF DANIEL JAMES CLARK\nNo. 395A89\n(Filed 26 July 1990)\nAdoption \u00a7 13 (NCI4th)\u2014 statutorily required affidavit \u2014 rights of father\nThe trial court did not abuse its discretion in an adoption proceeding by not allowing the affidavit required by N.C.G.S. \u00a7 48-13, filed two years after the adoption petition, to relate back to the original adoption petition where the child was born out of wedlock; the father was unaware of the birth of the child; the adoption agency filed a petition to terminate the father\u2019s parental rights; notice of service by publication was published in a local newspaper and the order terminating parental rights was issued; the child was then placed with adoptive parents who filed a petition for adoption; and the petition for adoption included a copy of the termination order rather than the affidavit required by N.C.G.S. \u00a7 48-13. The affidavit provides the basis for the clerk to determine if the father is a necessary party to the proceeding and is therefore not a mere technicality; moreover, the termination order filed here was invalid because the service by publication was void since due diligence was not used to determine the father\u2019s address. Although the adoption agency subsequently filed an affidavit, the father would be prejudiced by any attempt to relate a filing back to a time when he had no notice of the birth of his child in that he could lose his parental rights after taking action to avoid that outcome by filing a petition for legitimation after learning of the birth of his child. The father\u2019s consent is necessary for the adoption to proceed in this case. N.C.G.S. \u00a7 48-6(a)(3).\nAm Jur 2d, Adoption \u00a7\u00a7 26, 49, 55.\nJustice WHICHARD dissenting.\nJustices MITCHELL and Webb join in the dissenting opinion.\nAPPEAL by respondent pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 95 N.C. App. 1, 381 S.E.2d 835 (1989), reversing the order of Seay, J., entered in Superior Court, FORSYTH County, on 16 May 1988. Heard in the Supreme Court 12 March 1990.\nWilson, DeGraw, Johnson & Ruthledge, by Daniel S. Johnson and David F. Tamer, for appellant.\nRoy G. Hall, Jr. for appellee." }, "file_name": "0061-01", "first_page_order": 99, "last_page_order": 112 }