Social Services; Adoptions; Juveniles; Notice to Putative Fathers

Subject:

Social Services; Adoptions; Juveniles; Notice to Putative Fathers.

Requested By:

Sarah T. Morrow, M.D., M.P.H. Secretary North Carolina Department of Human Resources

Questions:

1. In light of the 6/27/83 decision by the U.S. Supreme Court in the case of Jonathan Lehr v. Lorraine Robertson, et al., and while giving consideration to the 1983 amendment to G.S. 486(a)(3), under what circumstances, if any, in adoption cases may North Carolina adoption courts dispense with:

(a)

notice to biological fathers of children born out-of-wedlock; and

(b)

an order that the adoption may proceed without the father’s consent?

2. In light of this same decision, under what circumstances, if any, may public and licensed private child-placing agencies dispense with notice of a subsequent termination of parental rights action against biological fathers of children born out-of-wedlock?

Conclusions:

In light of G.S. 48-6(a)(3), North Carolina courts may not under any circumstances dispense (a) with notice to the biological father of a child born out of wedlock or (b) with an order that the adoption may proceed without the father’s consent.

2. In light of the notice provisions in the termination of parental rights law, G.S. 7A-289.22, et seq., public and private child-placing agencies may not under any circumstances dispense with notice of termination proceedings to putative fathers.

Except in special circumstances, all parents are necessary parties to adoptions.

"Except as provided in G.S. 48-5, 48-6 or 7A-288, and if they are living and have not released all rights to the child and consented generally to adoption as provided in G.S. 48-9, the parents or surviving parent or guardian of the person of the child must be a party or parties of record to the proceeding and must be filed with the petition."

G.S. 48-7(a).

Prior to May 11, 1983, G.S. 48-6(a) provided as follows:

"(a) The court shall determine whether the parent or parents of a child must give written consent to adoption of said child in accordance with the following provisions:

(1)

If a parent who has been served with notice pursuant ot G.S. 48-7 fails to appear at the hearing by the date and time specified in the notice, and has not given a written consent to adoption, the clerk shall enter an order with supporting findings of fact allowing the adoption to proceed without the said parent’s consent.

(2)

If a putative father appears at the hearing and cannot establish a parental right in accordance with subsection (3) below as to why his consent should be necessary, the court shall enter an order with supporting findings of fact allowing the adoption to proceed without the said putative father’s consent.

(3)

In 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:

a.

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’s certified reply; or

b.

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

c.

The putative father has provided substantial financial support or consistent care with respect to the child and mother."

Effective May 11, the General Assembly adopted the following provisions as new final sentences to subdivision (a)(3) of G.S. 48-6:

"Determination under G.S. 48-6(a)(3) that the adoption may proceed without the putative father’s 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."

1983 Session Laws, c.292, s.1 (emphasis added).

This amendment to G.S. 48-6(a) says that there must always be notice to a putative father before an adoption can proceed without his consent. The statute contains no exceptions.

Interestingly, the notice is required even in situations where the facts affecting the need for consent could be determined by an ex parte administrative inquiry. See, eg., G.S. 48-6(a)(3)a. This suggests that the notice is required for other reasons in addition to notifying the putative father about the court’s inquiry into the need for his consent. One such reason is the fact that no adoption order can be entered unless it is in the child’s best interests. G.S. 48-17 and G.S. 48-22. Irrespective of the putative father’s rights to consent, a particular putative father might be able to show a court that adoption is not in his child’s best interests.

In reaching our conclusions we are aware of Lehr v. Robertson, ___U.S.___ , 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). That case was decided by the United States Supreme Court on June 27, 1983, shortly after G.S. 48-6(a)(3) was amended. It holds that a putative father’s constitutionally protected liberty interest in his child arises "[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child. . . ."" Id., ___U.S.___ at , 103 S.Ct. at 2993, 77 L.Ed.2d at 626. The "mere existence of a biological link" does not create a paternal interest which automatically deserves the constitutional protection of prior notice and an opportunity to be heard. Id.

As a matter of both analytical and perspective and historical interest, the Lehr decision deviates from the reasoning in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208,31 L.Ed.2d 551 (1972), Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) and Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). These cases all held or suggested in dicta that a putative father’s liberty interest in his children arose out of the biological fact of paternity. See, also, Lehr v. Robertson, ___U.S. at ___ , 103 S.Ct. at 2999, 77 L.Ed.2d at 633 (White, J., dissenting). Thus, at the time G.S. 48-6(a)(3) was amended, the Supreme Court decisions were generally understood to say that a putative father had a constitutional right to notice of an adoption proceeding concerning his child.

Now that Lehr has been decided, a putative father’s constitutional rights are more narrowly defined. However, in North Carolina, G.S. 48-6(a)(3) unambiguously creates a statutory right to notice. Lehr has no effect on the statute.

In sum, under G.S. 48-6(a)(3) neither a court nor a public or private adoption agency may dispense with putative father’s notice of the adoption proceedings concerning his child. Only after giving notice can the court issue orders dispensing with the father’s consent. See, G.S. 48-6(a)(1) and (2). Lehr is simply irrelevant to these present statutory rights.

Turning to the termination of parental rights statute, G.S. 7A-289.22, et seq., we find that there is also a requirement that all parents be served with notice of the proceedings, even those parents whose identities or whereabouts are unknown. G.S. 7A-289.26 and G.S. 7A-289.27. For the reasons stated above in the discussion of G.S. 48-6(a)(3), it is also necessary to give notice of termination of parental rights proceedings to putative fathers. Again, as a matter of historical interest and analytical perspective, we note that the termination statute was adopted five years after Stanley v. Illinois, supra, was decided. Of course, Lehr v. Robertson, supra, does not repeal state statutory rights created by the termination of parental rights law any more than it nullifies rights created by the adoptions statute.

Finally, we note that there is no requirement that a putative father’s parental rights be terminated under G.S. 7A-289.22, et seq., before adoption proceedings are started. We understand that this is often done as a matter of tactics, see G.S. 48-5, and we understand that the State Division of Social Services urges that this be done as a matter of policy in cases where a public agency is responsible for the adoptive placement; but it is not an indispensible legal step. Therefore, agencies may proceed directly with adoptions whenever it seems best to them and their counsel to do so. Lehr has no effect on this decision.

RUFUS L. EDMISTEN Attorney General

Steven Mansfield Shaber Assistant Attorney General