In re: C.H.M.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-126

No. COA21-196

Filed 1 March 2022

Wake County, No. 13 SP 2914

IN THE MATTER OF THE ADOPTION OF: C.H.M., a minor child.

Appeal by respondent from order entered 13 August 2020 by Judge Debra

Sasser in Wake County District Court. Cross-appeal by petitioners from order entered

21 July 2020 by Judge Debra Sasser in Wake County District Court. Heard in the

Court of Appeals 14 December 2021.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for petitioners-

appellees/cross-appellants.

Jonathan McGirt for respondent-appellant/cross-appellee.

TYSON, Judge.

¶1 Venson Westgate (“Respondent”) appeals the trial court’s order denying his

motion to dismiss the adoption petition. We affirm. Carolyn and Michael Morris’

(“Petitioners”) cross-appeal is dismissed as moot.

I. Background

¶2 The factual background of this case is set forth in three previous appellate

opinions: In re C.H.M., 245 N.C. App. 566, 782 S.E.2d 582, 2016 WL 611926 (2016)

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(unpublished) (affirming the dismissal of Petitioners’ petition for termination of

Respondent’s parental rights to his minor daughter, C.H.M.); In re Adoption of

C.H.M., 248 N.C. App. 179, 189, 788 S.E.2d 594, 600 (2016), (affirming trial court’s

order concluding Respondent’s consent is required to proceed with the adoption of his

minor daughter, C.H.M.), rev’d, 371 N.C. 22, 23, 812 S.E.2d 804, 806 (2018) ( holding

“respondent failed to meet his burden of proving that he provided such support within

the relevant statutory period, we conclude that the evidence is legally insufficient to

support the trial court’s order requiring respondent’s consent”).

¶3 The Supreme Court of North Carolina’s 4-3 decision, reversing this Court’s

unanimous opinion that Respondent had complied with N.C. Gen. Stat. § 48-3-

601(2)(b)(4)(II) did not address Respondent’s due process arguments. The Supreme

Court remanded the cause to this Court for further remand to the trial court “for

proceedings consistent with [the] opinion.” Adoption of C.H.M., 371 N.C. at 34, 812

S.E.2d at 812.

¶4 The trial court issued its order upon remand on 15 November 2018. The order

states, “[as] a result of the North Carolina Supreme Court’s holding that

‘[R]espondent’s evidence was insufficient as a matter of law to support the trial court’s

conclusion that respondent [had] complied with the statutory support payment

requirements’ [the court’s] finding is no longer supported by the evidence.”

¶5 The trial court deferred and set for hearing Respondent’s motion to intervene,

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motions to dismiss the adoption petitions pursuant to N.C. Gen. Stat. § 48-2-604 and

asserting federal and state constitutional due process provisions. Prior to this

hearing being held, both parties entered notices of appeal.

¶6 The parties most recently appeared before this Court in January 2020, wherein

this Court issued an order dismissing the parties’ interlocutory appeals and directing

the cause be remanded to the district court for hearing and resolution of the

remaining issues and motions before the court.

¶7 Following a hearing on 10 June 2021, the trial court issued its order (“August

2020 Order”) on 13 August 2020, denying Respondent’s motion in the cause and

motion to dismiss the adoption. The trial court concluded Respondent had a limited

right to intervene in the action for the court to determine whether N.C. Gen. Stat. §

48 was unconstitutional as applied to him. The trial court found and concluded

Respondent “does not qualify for the class of protected fathers whose liberty interests

are such that he would enjoy a constitutionally paramount protected interest to

C.H.M.’s custody.”

¶8 The facts underlying Respondent’s and Petitioners’ dispute over C.H.M. are

well-documented and not in dispute. The parties presently have two additional cases

pending in Wake County district court involving their eight-year-dispute over C.H.M.

The painful saga beginning with the birth mother’s dishonesty regarding

Respondent’s paternity of C.H.M. need not be repeated.

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II. Jurisdiction

¶9 “A party to an adoption proceeding may appeal a judgment or order entered

by a judge of district court by giving notice of appeal as provided in G.S. 1-279.1.”

N.C. Gen. Stat. § 48-2-607(b) (2021). Respondent timely appealed. He asserts his

appeal of right is made pursuant to N.C. Gen. Stat. §§ 1-277(a), 1-278 and 7A-

27(b)(3)(a) & (c) (2021).

¶ 10 Petitioners ask this Court to dismiss Respondent’s appeal. Respondent

acknowledges his appeal may be interlocutory. The August 2020 Order transfers

jurisdiction of the matter to the Wake County Clerk of Court, Division of Special

Proceedings with instructions that the adoption proceeding be resolved in accordance

with the mandate of the North Carolina Supreme Court, this Court, and the

subsequent orders of the trial court.

¶ 11 Respondent asserts a substantial right will be lost if this appeal is not

immediately heard. He shows, and Petitioners do not dispute, the August 2020 Order

resolves all remaining motions and issues. Our appellate courts have recognized that

orders concerning whether a parent’s consent to an adoption is required implicate a

substantial right and are immediately appealable. In re Adoption of Baby Boy, 233

N.C. App. 493, 498, 757 S.E.2d 343, 346 (2014).

¶ 12 Respondent asserts “[if] the adoption proceeds to a final decree of adoption, any

parental rights that [he] may have had would be terminated. Moreover, the adoption

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statute severely limits the avenues for challenging a final decree of adoption through

appeal.” In re S.D.W., 228 N.C. App. 151, 155, 745 S.E.2d 38, 42 (2013) (citations

omitted), rev’d on other grounds sub nom., In re Adoption of S.D.W., 367 N.C. 386,

758 S.E.2d 374 (2014). We agree and address the merits of Respondent’s appeal.

Petitioners’ cross appeal of an unrelated interlocutory order, subsequently stayed by

our Supreme Court, is dismissed by separate order.

III. Issue

¶ 13 Whether the trial court erred by denying Respondent’s motion to dismiss the

adoption petition.

IV. Analysis

¶ 14 Respondent argues the trial court erred by concluding his conduct excluded

him from the constitutionally protected class of fathers, whose liberty interests would

be violated if the adoption petition were allowed. We reject Petitioners’ arguments

that Respondent had not asserted or preserved this argument for appeal. The record

and pleadings clearly show: (1) Respondent repeatedly asserted this argument; (2) it

was not addressed by our Supreme Court; and, (3) was not ripe for our review upon

remand until ruled upon by the trial court upon remand in its August 2020 Order.

¶ 15 Respondent asserts applying Chapter 48 to preclude his consent to the

adoption of C.H.M. violates his due process rights. His challenge is an as-applied

challenge to N.C. Gen. Stat. § 48-3-601 (2021). An as-applied challenge represents a

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party’s “protest against how a statute was applied in the particular context in which

[the party] acted or proposed to act.” Town of Beech Mountain v. Genesis Wildlife

Sanctuary, Inc., 247 N.C. App. 444, 460, 786 S.E.2d 335, 347 (2016) (citation omitted),

aff’d, 369 N.C. 722, 799 S.E.2d 611 (2017).

A. Fundamental Parental Rights

¶ 16 The Supreme Court of the United States “recognized the fundamental right of

parents to make decisions concerning the care, custody, and control of their children.”

Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000).

This parental liberty interest is perhaps the oldest of the

fundamental liberty interests the United States Supreme

Court has recognized. This interest includes the right of

parents to establish a home and to direct the upbringing

and education of their children. Indeed, the protection of

the family unit is guaranteed not only by the Due Process

Clause, but also by the Equal Protection Clause of the

Fourteenth Amendment and possibly by the Ninth

Amendment.

Owenby v. Young, 357 N.C. 142, 144–45, 579 S.E.2d 264, 266 (2003) (citations and

internal quotation marks omitted).

B. Trial Court’s Findings of Fact

¶ 17 Relevant to Respondent’s present appeal, the trial court found:

8. Respondent had no ability to visit C.H.M. nor have

access to her except at the discretion of the Petitioners

and/or Agency.

9. Respondent made no request to the adoption agency

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(Hereinafter the “Agency”) or the Petitioners for any

additional visits with C.H.M. in 2014 after the March 2014

visit. During this time period he continued to purchase

items for the child but did not send those items to the

agency or Petitioners for the remainder of that year.

10. Respondent did not request from either the Agency or

the Petitioners any information as to C.H.M.s well-being or

development for the remainder of 2014.

11. Respondent has never had an email address for the

Petitioners. Respondent was first provided the cell phone

number for Petitioner [] at or around the time the parties

had mediation in October 2016.

12. Petitioners continued to reside for the remainder of

2014 at the address they resided at when the Respondent

and his family visited C.H.M. in March, 2014. (The

Petitioners still reside at this address.)

13. Respondent continued to save money for C.H.M. in his

“lockbox” during the remainder of 2014.

14. There is a dispute in the evidence and evidence proffer

before this Court as to whether Respondent through

counsel offered the existing funds in his lockbox of over

$3260 to Petitioners’ counsel at the conclusion of the

hearing in April, 2014. The Court does not find this dispute

to be material.

15. After the hearing in April 2014 and until January 30,

2015 Respondent paid noting for C.H.M.’s support.

...

23. Respondent after being served with the petition to

terminate his parental rights wrote a letter to A Child’s

Hope dated January 30, 2015. That letter stated

Respondent had saved a total of approximately $5,270 for

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C.H.M. and enclosed a cashier’s check to the agency for

$2,635 for C.H.M.’s benefit. Respondent stated he desired

to send the remaining funds for C.H.M.’s benefit, and he

subsequently did so. That letter requested pictures of

C.H.M. and information about her developmental

milestones and reiterated that he continued to want

custody of C.H.M.

¶ 18 Respondent does not challenge these findings as unsupported by properly

admitted evidence. Instead, he contends an unenumerated category of parental

rights exists that requires his consent for adoption under N.C. Gen. Stat. § 48-3-601.

C. Lehr v. Robertson

¶ 19 Respondent asserts this category has its roots in the Supreme Court of the

United States’ opinion in Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614 (1983).

The significance of the biological connection is that

it offers the natural father an opportunity that no other

male possesses to develop a relationship with his offspring.

If he grasps that opportunity and accepts some measure of

responsibility for the child’s future, he may enjoy the

blessings of the parent-child relationship and make

uniquely valuable contributions to the child’s development.

If he fails to do so, the Federal Constitution will not

automatically compel a state to listen to his opinion of

where the child’s best interests lie.

Id. at 262, 77 L. Ed. 2d at 627 (emphasis supplied).

¶ 20 Respondent asserts his actions fall within an unenumerated category of N.C.

Gen. Stat. § 48-3-601. He argues he had seized all opportunities available to him and

that he has done all that he could possibly do under the circumstances “to grasp[]

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that opportunity” to “develop a relationship with his offspring.” Id.

¶ 21 In Lehr, the putative father “never had any significant custodial, personal, or

financial relationship with [his child], and he did not seek to establish a legal tie until

after she was two years old.” Id. The father asserted he was entitled to an additional

special notice, because the trial court and the mother knew that he had filed an

affiliation action. Id. at 265, 77 L. Ed. 2d at 629.

¶ 22 The question before the Supreme Court was whether New York’s statutory

adoption scheme protected “the unmarried father’s interest in assuming a responsible

role in the future of his child.” Id. at 263, 77 L. Ed. 2d at 627. The Court held the

father’s opportunity to establish a relationship with his child was adequately

protected by the adoption statute “that automatically provide[d] notice to seven

categories of putative fathers who are likely to have assumed some responsibility for

the care of their natural children.” Id. at 263, 77 L. Ed. 2d at 628.

¶ 23 This Court has previously interpreted Lehr. In the case of In re Adoption of

B.J.R., 238 N.C. App. 308, 311, 767 S.E.2d 395, 397 (2014), the father “contend[ed]

that his substantive due process rights supplied by the Fourteenth Amendment to

the United States Constitution and Article I, Section 19 of the North Carolina

Constitution were violated by the district court’s determination that his consent to

adoption was not required[,] and that Chapter 48 [was] therefore unconstitutional as

applied to him.”

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¶ 24 The trial court’s findings in B.J.R., showed the father had “made very few

efforts after the birth of his child to develop a parent-child relationship.” Adoption of

B.J.R., 238 N.C. App. at 315, 767 S.E.2d at 399. The trial court found that the pre-

adoptive parents had provided the father “the opportunity to visit the baby, which he

took advantage of on only one occasion . . . a few weeks after the birth.” Id.

¶ 25 The trial court found the father of B.J.R. had made no further attempts to meet

with his child or to provide support for her during the next five months. Id. The court

found the father had purchased diapers, which he never delivered. This Court noted

“during the child’s first six months of life, besides filing papers with the court, [the

father] largely remained ‘passive’ in developing a relationship with his child.” Id.

¶ 26 Here, in this “as-applied” challenge, Respondent contends the Petitioners and

the private adoption agency violated his constitutional rights in the manner in which

Chapter 48 was applied to him. “[O]nly in as-applied challenges are facts

surrounding the plaintiff’s particular circumstances relevant.” Town of Beech

Mountain, 247 N.C. App. at 460, 786 S.E.2d at 347 (citation omitted).

¶ 27 The relevant conduct to our review is Respondent’s conduct towards C.H.M.,

once he knew she was his child, and any actions the Petitioners or the adoption

agency took to prevent him from acting “to develop a relationship with his offspring.”

Lehr, 463 U.S. at 262, 77 L. Ed. 2d at 627.

D. N.C. Gen. Stat. § 48 - Adoption

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¶ 28 The Supreme Court of the United States has recognized, “[t]wo state interests

are at stake in parental rights termination proceedings—a parens patriae interest in

preserving and promoting the welfare of the child and a fiscal and administrative

interest in reducing the cost and burden of such proceedings.” Santosky v. Kramer,

455 U.S. 745, 766, 71 L. Ed. 2d 599, 615 (1982).

¶ 29 Chapter 48 sets forth our General Assembly’s stated purpose:

(a) . . . it is in the public interest to establish a clear judicial

process for adoptions, to promote the integrity and finality

of adoptions, to encourage prompt, conclusive disposition of

adoption proceedings, and to structure services to adopted

children, biological parents, and adoptive parents that will

provide for the needs and protect the interests of all parties

to an adoption, particularly adopted minors.

(b) With special regard for the adoption of minors, the

General Assembly declares as a matter of legislative policy

that:

(1) The primary purpose of this Chapter is to

advance the welfare of minors by (i) protecting

minors from unnecessary separation from their

original parents, (ii) facilitating the adoption of

minors in need of adoptive placement by persons

who can give them love, care, security, and support,

(iii) protecting minors from placement with adoptive

parents unfit to have responsibility for their care

and rearing, and (iv) assuring the finality of the

adoption[.]

N.C. Gen. Stat. § 48-1-100 (2021).

¶ 30 Our Supreme Court stated: “We believe the General Assembly crafted these

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subsections of this statute primarily to protect the interests and rights of men who

have demonstrated paternal responsibility and to facilitate the adoption process in

situations where a putative father for all intents and purposes has walked away from

his responsibilities to mother and child, but later wishes to intervene and hold up the

adoption process.” In re Adoption of Byrd, 354 N.C. 188, 194, 552 S.E.2d 142, 146

(2001). The trial court’s extensive findings and conclusions set forth herein focus on

the initial and immediate responses of respondent and reveal whether Respondent

“demonstrated paternal responsibility” or his lack thereof. Id.

¶ 31 Here, while being duped and deceived by the child’s mother into initially

believing the child was not his, once he learned C.H.M. was his child, Respondent

remained “passive” in developing a relationship with his child. Respondent testified

he did not know how to contact Petitioners. However, he and his parents had visited

C.H.M. in Petitioners’ home when he was in North Carolina for his deposition in this

matter. He acknowledged he had mailed no notes, cards, nor gifts to C.H.M. after his

one visit with her in 2014. Respondent purchased a crib, which remained in his home

in Illinois, and gifts which he did not send to C.H.M., despite knowing Petitioners’

and the agency’s addresses. Respondent provided no evidence that Petitioners or the

agency thwarted him in contacting them or C.H.M. during this period of time.

¶ 32 Here, the trial court’s findings focus on Respondent’s “demonstrated parental

responsibility” or his lack thereof during the period immediately after Respondent

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learned he was the father of C.H.M and was served with notice of the pendency of the

adoption petition in November 2013. Id. Respondent father timely filed his objection

to the North Carolina adoption petition in December 2013. Respondent made one

visit with C.H.M. in March 2014 while it coincided with a court appearance. Other

than his savings in the lockbox and purchase of a crib and some items in Illinois,

Respondent did not begin any support payments, make or maintain contacts, or make

any other attempts to parent C.H.M. until 30 January 2015 and after Petitioners had

filed their Termination of Parental Rights action in November 2014.

¶ 33 The trial court’s supported and unchallenged findings and conclusions reveal

a father who did not “grasp[] that opportunity and accept[] some measure of

responsibility for the child’s future.” Lehr, 463 U.S. at 262, 77 L. Ed. 2d at 627.

¶ 34 As the trial court found, Respondent’s later conduct, while laudable, does not

remove or excuse his non-actions for nine months in 2014, where “for all intents and

purposes [he]. . . walked away from his responsibilities,” after visiting his child in

Petitioners’ home. In re Byrd, 354 N.C. at 194, 552 S.E.2d at 146. Respondent’s

conduct after the 2014 visit failed to preserve his entitlement to the constitutional

“protection of the family unit” guaranteed by the Due Process Clause” Owenby, 357

N.C. at 144-45, 579 S.E.2d at 266.

V. Conclusion

¶ 35 The trial court properly found and concluded Respondent has no statutory or

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Due Process rights to provide or withhold consent to Petitioners’ adoption of C.H.M.

Further issues involving these parties are not before us and our opinion remands this

matter to the district court and to the clerk of superior court per the trial court’s order

for further proceedings consistent with North Carolina’s adoption laws, N.C. Gen.

Stat. § 48-1-100 et seq. It is so ordered.

AFFIRMED.

Judge CARPENTER concurs.

Judge GORE concurs in part and dissents in part with separate opinion.

No. COA21-196 – In re Adoption of C.H.M.

GORE, Judge, concurring in part and dissenting in part.

¶ 36 I join the majority opinion, except for the portion holding that Respondent’s

has no due process right to withhold consent to the adoption. There is an old adage of

measuring ten times and cutting once. The majority in this opinion was handcuffed

from ever being able to take a proper measurement of the totality of the facts of the

case because of the unfathomable deceit and fraud perpetrated by the biological

mother. The conduct by the birth mother led to a slippery slope of premature cutting

of Respondent’s parental rights, by previous rulings and discretionary reviews, prior

to the case being heard on its merits and a proper review of the denial of Respondent’s

due process rights by the trial court.

¶ 37 The core foundation of a parent’s rights were expressed when the Supreme

Court of the United States “recognized the fundamental right of parents to make

decisions concerning the care, custody, and control of their children.” Troxel v.

Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000) (citations omitted).

This parental liberty interest is perhaps the oldest of the

fundamental liberty interests the United States Supreme

Court has recognized. This interest includes the right of

parents to establish a home and to direct the upbringing

and education of their children. Indeed, the protection of

the family unit is guaranteed not only by the Due Process

Clause, but also by the Equal Protection Clause of the

Fourteenth Amendment and possibly by the Ninth

Amendment.

Owenby v. Young, 357 N.C. 142, 144–45, 579 S.E.2d 264, 266 (2003) (citing Troxel,

530 U.S. at 65, 147 L. Ed. 2d at 56; Meyer v. Nebraska, 262 U.S. 390, 399-400, 67 L.

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Ed. 1042, 1045-46 (1923); Stanley v. Illinois, 405 U.S. 645, 661, 31 L. Ed. 2d 551, 559

(1972)).

¶ 38 The Respondent made efforts prior to the child being born to establish his role

as a biological parent. Prior to the birth of the child, he attended a doctor’s

appointment with the biological mother. After the birth of the child, Respondent

repeatedly requested the biological mother agree to DNA testing to establish his

paternity, which she found excuses to not do. The biological mother also refused offers

by Respondent to provide financial support towards prenatal medical bills and any

support after the child was born. The record is full of efforts and attempts Respondent

made to show he wanted to exercise his right “to establish a home and to direct the

upbringing . . .” of a child that could be his own. Id. at 144, 579 S.E.2d at 266 (citation

omitted).

¶ 39 The record also establishes that the Petitioners in this case at some point

actively prevented Respondent from interacting with C.H.M. after initially allowing

contact. The Petitioners would not let Respondent refer to himself as “daddy” during

the visit he did have, eventually blocked Respondent’s calls, and stopped responding

to requests for or allow any visitation. There was a period from March of 2014 until

January 2015 that Respondent did not contact Petitioners. However, during this time

Respondent took actions to prepare himself to parent C.H.M. and to show that he

wanted to “grasp[] that opportunity [to parent] and accept[] some measure of

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responsibility for the child’s future . . . .” Lehr v. Robertson, 463 U.S. 248, 262, 77 L.

Ed. 2d 614, 627 (1983). In my view the majority’s review of Respondent’s conduct after

he knew C.H.M. was his biological child does not go far enough. It does not scrutinize

the trial court’s order to establish that Petitioners were not culpable for conduct that

impeded Respondent from contacting C.H.M. from March of 2014 until January 2015.

The trial court’s order establishes in its findings of fact:

7. Respondent had no ability to visit C.H.M. nor have

access to her except at the discretion of the Petitioners

and/or Agency.

…

11. Respondent has never had an email address for the

Petitioners. Respondent was first provided the cell phone

number for Petitioner [] at or around the time parties had

mediation in October 2016.

…

17. Petitioner [] testified the Petitioners did not want

support for C.H.M. from Respondent.

These findings along with the uncontroverted findings that Petitioners purposefully

withheld or blocked Respondent from contact require the trial court to inquire into

potential due process violations, and it failed to do so.

¶ 40 My last disagreement with the majority’s opinion about the denial of

Respondent’s due process rights stems from the conduct of the biological mother from

the time C.H.M. was born until she was placed for adoption. It appears from the

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record that C.H.M. was eleven-days old when placed for adoption on or about 9 July

2013. There is an argument that the biological mother’s purposeful denial and refusal

to allow Respondent DNA testing hindered his due process rights to a degree that it

mandates his right to object or withhold his consent to adopt. The facts viewed in the

light most favorable to Respondent, show that if he was on notice that C.H.M. was

his child or allowed to have DNA testing done there was an eleven-day window

between birth and adoption that he could have filed a custody action to preserve his

parental rights. However, Respondent was deliberately denied this opportunity

because of the blatant fraud perpetrated by the biological mother. The question we

must address is how long is too long for a parent to be deprived their parental due

process rights and for a child to be deprived of the opportunity of the love and affection

from said parent.

¶ 41 A biological parent must be afforded an opportunity to assert their

constitutional rights. Here, Respondent attempted to assert his constitutionally

protected rights but was hindered along the way by the fraudulent actions of the

child’s biological mother. Depriving Respondent of his right to raise his biological

child without proper review, especially considering the fact he attempted to assert

his rights and duties as a parent before and immediately after the child was born and

before he knew with any degree of certainty that C.H.M. was his biological child, is

not in line with the paramount rights and protections afforded to biological parents

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by the United States Constitution. See Meyer, 262 U.S. at 399, 67 L. Ed. at 1045

(finding the rights to conceive and raise one’s children have been deemed “essential”);

Skinner v. Oklahoma, 316 U.S. 528, 541, 97 L. Ed. 1655, 1660 (1942) (finding the

right to raise one’s child is a “basic civil right[] of man”); Lehr, 463 U.S. at 262, 77 L.

Ed. 2d at 627 (“The significance of the biological connection is that it offers the natural

father an opportunity that no other male possesses to develop a relationship with his

offspring.”).

¶ 42 While reviewing the totality of the facts of this case the majority is absolutely

right that: “[t]he painful saga beginning with the birth mother’s dishonesty regarding

the Respondent’s paternity of C.H.M. need not be repeated.” For that very reason I

bring out these issues of disagreement with the majority and respectfully concur in

part and dissent in part.