Adoption

Subject:

Requested By: Robert H. Ward, Director North Carolina Division of Social Services

Question: Is the putative father of a child born out of wedlock entitled to notice prior to a judicial determination as to whether his written consent to the adoption of said child is required?

Conclusion: Yes. The putative father of a child born out of wedlock is entitled to notice prior to a judicial determination as to whether his written consent to the adoption of said child is required.

We note at the outset that Chapter 879 of the 1977 Session Laws amended G.S. 48-2 to include the following definition of "parent":

""Parent" means the biological or legal mother or father of a child."

G.S.

48-2(6) The principal significance to this new definition within G.S. 48-2, in our judgment, is the recognition that as a general rule parents, whether "legitimate" or "illegitimate," possess a primary natural and legal right to their children. See Tucker v. Tucker, 288 N.C. 81, 87, 216 S.E. 2d 1, 5 (1975); Thomas v. Pickard, 18 N.C. App. 1, 4, 195 S.E. 2d 339, 342 (1973); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and Stanley v. Illinois, 405 U.S. 645 (1972). It is by now an unfortunate matter of fact that some parents abdicate their rights and responsibilities with respect to their children. However, on the basis of the following statutory evidence as well as our own interpretation of the rationale behind G.S. 48-2(6), we are of the opinion that the General Assembly of North Carolina has made it the policy of the State to afford every parent an opportunity to demonstrate the necessity of his or her official involvement in any adoption proceeding concerning his or her children.

G.S.

48-5(a) provides that:

"The court shall be authorized to determine whether the parent or parents of a child shall be necessary parties to any proceeding under this chapter, and whether the consent of such parent or parents shall be required in accordance with G.S. 48-6 and G.S. 48-7." (Emphasis supplied)

It is clear from even a cursory review of G.S. 48-7, particularly Subsections (b) and (c), that it is essentially a notice statute. G.S. 48-6(a), on the other hand, reiterates that the court is to determine whether the parent must give consent to the adoption of his child but goes on to add the statutory provisions the court is to apply in arriving at its decision:

"(1) If a parent who has been served with notice pursuant to 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 as been judicially established or acknowledged by affidavit; 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."

(Emphasis supplied)

Surely, the reference to G.S. 48-7 in conjunction with the underscored language in G.S. 48-6(a) above leave little doubt as to the requirement of notice to the putative father prior to a judicial determination of the necessity of his consent to the adoption of his child, even his illegitimate child. For, in the absence of some form of notice could a putative father really be expected to appear at a hearing to "establish a parental right . . . as to why his consent (to the adoption of his illegitimate offspring) should be necessary"? G.S. 48-6(a)(2).

The additional reference to G.S. 48-7(c) within the new amendment to G.S. 48-5, i.e., G.S. 48-5(b), lends further support to the conclusion that the General Assembly has enacted a requirement of notice to the putative father of an illegitimate child prior to any judicial determination as to whether his written consent to the adoption of that child is necessary.

Rufus L. Edmisten Attorney General

William Woodward Webb Assistant Attorney General