In Re Adoption Of S.D.W.

758 S.E.2d 374 (2014)

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Nature of the Case

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Facts

Welker and Johns acknowledge that they are the biological parents of the minor child 'S.D.W.' They neither married nor cohabited. Johns and Welker were involved in an intimate relationship from approximately May 2009 to February or March 2010. The couple 'had sex 10 to 20 times a week.' Welker used an 'IUD band,' and Johns did not wear condoms during intercourse with Welker. Welker became pregnant, and she and Johns decided that she would have an abortion. After that pregnancy was terminated, Welker told Johns that she was using another form of birth control. In January 2010, Johns broke up with Welker. Until early March 2010, they engaged in additional acts of sexual intercourse. Thereafter, Welker cut off all contact with Johns, and except for Johns's birthday on 26 November 2010 when Welker stopped by his home to mark the occasion with another act of sexual intercourse, there was no further communication between them until late April 2011. Welker gave birth to S.D.W. on 10 October 2010. On 11 October, she executed an 'Affidavit of Parentage' incorrectly naming 'Gregory Thomas James' as the father and leaving blank the line for the father's last known address. She also executed a Department of Social Services form relinquishing custody of S.D.W. to adoption agency Christian Adoption Services, Inc. On 12 October, the infant was placed in their custody, where he has remained. On 27 October, Welker signed a form provided by the agency titled 'Birth Father Information,' in which she again misidentified the father as 'Gregory Thomas James.' The Joneses filed a petition to adopt S.D.W. on 2 November 2010. The agency attempted to locate the biological father. On 16 November 2010, the agency filed a petition to terminate the parental rights of the absent father, an action that resulted in a stay in the adoption proceedings. In late April 2011, Johns first heard that Welker had given birth. Johns took steps to assert his intention to obtain custodial rights of S.D.W. and to prevent the adoption from proceeding. Welker also contacted the agency in late April to disclose Johns's correct identity, leading counsel for the agency on 2 May 2011 to voluntarily dismiss without prejudice the action to terminate parental rights. On 17 May 2011, a Notice of Pendency of Adoption Proceedings was served on Johns's brother. On 24 May 2011, acting pro se, Johns sent letters to the Clerk of Court of Mecklenburg County and to counsel for the agency, introducing himself, requesting DNA testing, asking that the adoption be terminated, and advising that he would not surrender his parental rights over S.D.W. On 15 August 2011, Johns filed verified motions in the District Court seeking to intervene in the adoption proceeding, to dismiss the adoption petition, to secure child custody, and to obtain related relief. Petitioners filed their and a Motion for Summary Judgment. A hearing was held on 6 January 2012, and the judge entered an order allowing the adoption to proceed without Johns's consent. Johns appealed to the Court of Appeals, which reversed. It held that a biological father, who prior to the filing of the petition was unaware that the mother was pregnant and had no reason to know [of the pregnancy], promptly takes steps to assume parental responsibility upon discovering the existence of the child has developed a constitutionally protected interest sufficient to require his consent where the adoption proceeding is still pending. Petitioners appealed.