Campbell Law Review Volume 23 Article 5 Issue 2 Spring 2001 April 2001 Closing the Window of Opportunity: The Limited Rights of Putative Fathers under N.C. Gen. Stat. § 48-3-601 and In re Byrd Lauren Vaughan Follow this and additional works at: http://scholarship.law.campbell.edu/clr Part of the Family Law Commons Recommended Citation Lauren Vaughan, Closing the Window of Opportunity: The Limited Rights of Putative Fathers under N.C. Gen. Stat. § 48-3-601 and In re Byrd, 23 Campbell L. Rev. 305 (2001). This Note is brought to you for free and open access by Scholarly Repository @ Campbell University School of Law. It has been accepted for inclusion in Campbell Law Review by an authorized administrator of Scholarly Repository @ Campbell University School of Law. Vaughan: Closing the Window of Opportunity: The Limited Rights of Putative NOTE Closing the Window of Opportunity: The Limited Rights of Puta- tive Fathers Under N.C. Gen. Stat. § 48-3-601 and In re Byrd I. INTRODUCTION In September 1997, eighteen-year-old Shelly O'Donnell informed seventeen-year-old Michael Gilmartin that she was pregnant, and that based on her estimated due date, she believed that he was the father of her unborn child.' During the next two months, Shelly went to see Michael often, discussed her pregnancy with him, and showed him ultrasound images of her baby.2 During that time, Michael and his mother offered Shelly the opportunity to alleviate some of her expenses by allowing her to live rent-free in Michael's mother's home during her pregnancy.3 Shelly, however, declined the offer.4 Soon after that, in November 1997, Michael left moved away and began working two full-time jobs in order to save money for the baby.5 Later that month, Shelly contacted Michael and told him that she had received a revised estimated delivery date for the baby that indi- cated that he might not be the father of her child.6 Not long after learning this information, Shelly decided to give up her child for adop- tion and began working through an adoption network. Through this network, she became acquainted with the Byrd family and made the decision to place the child with them.7 She contacted Michael and asked him to consent to the adoption, but he refused, telling her that he "wanted his baby."8 1. In re Adoption of Byrd, 137 N.C.App. 623, 624, 529 S.E.2d 465, 467 (2000). 2. Id. at 635, 529 S.E.2d at 473. 3. Id. at 628, 529 S.E.2d at 469. 4. Id. 5. Id. 6. Id. at 624, 634, 529 S.E.2d at 467, 472 (Hunter, J. dissenting). 7. Id. at 624, 529 S.E.2d at 467. 8. Id. 305 Published by Scholarly Repository @ Campbell University School of Law, 2001 1 Campbell Law Review, Vol. 23, Iss. 2 [2001], Art. 5 306 CAMPBELL LAW REVIEW [Vol. 23:305 Shelly subsequently petitioned the Chowan County District Court to make a "Prebirth Determination of Right" as to whether Michael's consent to the adoption of her child was required.9 After receiving notice of this action, Michael filed a response that read: 5. [T]he respondent contends that his consent to adopt is required and believes that he possibly is the biological father of the child. That the petitioner repeatedly told the respondent that he was the biological father of the said child. That the respondent is desirous of having cus- tody of the said child placed with him if it is determined that he is the biologicalfather.... 8. That the [respondent] is desirous of assisting with the medical expenses incurred regarding the birth of the child, as well as being interested in paying child support for the care and maintenance of the child, should he be determined to be the child's father.' Before the matter was heard by the district court, Shelly gave birth to a baby girl, Rachel, on March 4, 1998.1 That same day, Michael went to the hospital in an attempt to see the baby, but the hospital staff told him that he was not on Shelly's list of approved visitors.' 2 Michael purchased a money order for $100.00 and some baby clothes on the day of Rachel's birth and gave them to his mother so that she could mail them to Shelly. Shelly, however, did not receive them until March 9, 1998, after the Byrds had filed their adoption petition. 13 The next day Michael returned to the hospital, but was again forbidden to see 14 Shelly or the baby. That same day, March 5, 1998, the Byrds, without Michael's knowledge, filed a petition to adopt Rachel in the Wake County Dis- trict Court. 5 On that same day, Michael filed a complaint and peti- tion in Chowan County District Court requesting a court-ordered blood test of the child to determine paternity, a stay of all other pro- ceedings in the cause until paternity was determined, and custody or visitation rights if he was determined to be the father of the child. 16 The district court in Chowan County denied Michael's request. i7 After being served with a copy of the Byrds' adoption petition, Michael filed a response, again requesting custody or visitation with 9. Id. 10. Id. (quoting response filed by Michael Gilmartin)(emphasis added). 11. Id. 12. Id. at 636-37, 529 S.E.2d at 473 (Hunter, J. dissenting). 13. Id. 14. Id. 15. Id. at 625, 529 S.E.2d at 467. 16. Id. 17. Id. http://scholarship.law.campbell.edu/clr/vol23/iss2/5 2 Vaughan: Closing the Window of Opportunity: The Limited Rights of Putative 2001] CLOSING THE WINDOW OF OPPORTUNITY the child if he was determined to be the biological father of the child. 18 In July 1998, Michael moved for a blood test pursuant to N.C. Gen. Stat. § 8-50.1(bl) in district court in Wake County, which was granted. 19 The results of the test indicated that, to a 99.99% certainty, Michael was the father of Shelly O'Donnell's child.2 ° Despite these test results and all of Michael's efforts to become involved to prevent his child's adoption, the trial court in Wake County concluded in an adoption hearing in October 1998 that Michael's consent to the adoption was not required under N.C. Gen. Stat. § 48-3-601.21 The court based its decision on its conclusion that before the filing of the adoption petition by the Byrds, Michael had failed to acknowledge the child and to provide support for the mother and child as required by the statute.22 Michael appealed from that order to the North Carolina Court of Appeals.23 The court of appeals affirmed the order of the district court as a proper-yet harsh-application of N.C. Gen. Stat. § 48-3-601. In addi- tion, the court of appeals did, in fact, acknowledge that Michael faced a "difficult dilemma '24 during the pregnancy and subsequent birth of his child.25 In the majority opinion, which adhered to a strict and lit- eral construction of N.C. Gen. Stat. § 48-3-601, the court of appeals seemed to call on the legislature to remedy the statute because of its potential to produce such an unfair and illogical result.26 This note will discuss whether the court's interpretation of N.C. Gen. Stat. § 48- 3-601 is consistent with legislative intent and with North Carolina case 18. Id. 19. Id. at 626, 529 S.E.2d at 467. N.C. Gen. Stat. § 8-50.1(bl) provides: In the trial of any civil action in which the question of parentage arises, the court shall, on motion of a party, order the mother, the child, and the alleged father-defendant to submit to one or more blood or genetic marker tests, to be performed by a duly certified physician or other expert .... The results of the blood or genetic marker tests shall have the following effect: ... (4) If the experts conclude that the genetic tests show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is ninety-seven percent (97%) or higher, the alleged parent is presumed to be the parent and this evidence shall be admitted. This presumption may be rebutted only by clear, cogent, and convincing evidence. N.C. Gen. Stat. § 8-50.1(bl) (1999). 20. In re Adoption of Byrd, 137 N.C.App. 623, 626, 529 S.E.2d 465, 467 (2000). 21. Id. 22. Id. at 626, 529 S.E.2d at 467-68. 23. Id. at 626, 529 S.E.2d at 468. 24. Id. at 628, 529 S.E.2d at 468-69. 25. Id. 26. See id. at 628, 529 S.E.2d at 469. Published by Scholarly Repository @ Campbell University School of Law, 2001 3 Campbell Law Review, Vol. 23, Iss. 2 [2001], Art. 5 308 CAMPBELL LAW REVIEW [Vol. 23:305 law, and will then address whether this statute adequately protects the constitutional rights of unmarried putative fathers as mandated by the United States Supreme Court. II. NORTH CAROLINA STATUTES AND THE RIGHTS OF UNMARRIED FATHERS The rights of an unmarried putative father to consent (or with- hold his consent) to the adoption of his child are governed by N.C. Gen. Stat. § 48-3-601, which sets out those persons whose consent to an adoption is required.27 The statute reads, in pertinent part: [A] petition to adopt a minor may be granted only if consent to the adoption has been executed by: ..