PR 01315.036 North Carolina

A. PR 81-003 Effective Date Of Amended Final Order Of Adoption - North Carolina - DWE, Levart S~, SSN ~ C2 - Ronald M~

DATE: February 12, 1981

1. SYLLABUS

In the absence of evidence to show that a 1978 Final Order for Adoption was void or that it was judically vacated, it must be accorded full legal effect. The 1980 Amended Final Order for Adoption only modified the 1978 Final Order to the extent of specifying the manner of compliance with the pa- rental consent requirement; the 1980 Amended Final Order did not alter the effectiveness of finality of the 1978 Final Order. Further, North Carolina, law prohibits attack on an adoption proceeding by a natural parent or guardian who was a party to the adoption proceeding.

2. OPINION

You have requested our opinion as to whether, under the laws of North Carolina, the adoption of Ronald M~ was effective as of the date of the Final Order for Adoption (December 2, 1978) or as of the date of the Amended Final Order for Adoption (July 18, 1980).

The pertinent facts contained in the file are as follows. The wage earner, Leveart S~, died fully insured on April 26, 1979; he was domiciled in the State of Alabama. On June 4, 1979, Elaine M~ filed application on behalf of Ronald M~ as the legitimate, natural child of the deceased wage earner who had not been adopted by another. Ronald M~ was awarded benefits based on this application. On November 30, 1979, Mrs. M~ submitted a North Carolina Final Order for the adoption of Ronald by his stepfather, G. W. M~, effective December 12, 1978. In a letter dated April 30, 1980, the North Carolina Department of Human Resources (NCDHR) advised the Clerk of the Superior Court in Roxboro, North Carolina, that they had reviewed the District Court Order Declaring Proposed Adopted Child Abandoned By His Natural Father in the adoption proceeding of Ronald M~. The NCDHR letter states there is no provision in the adoption statutes for the District Court to make a finding of abandonment, and that the Order, as entered, fails to meet the requirements of the termination statute in that it does not provide for the termination of the parental rights of the father. An Amended Final Order For Adoption was issued by the Superior Court of Person County, North Carolina, on July 18, 1980. It differed from the earlier Final Order only in the inclusion of the following statement: "The natural father's parental rights have been terminated in 78 CVD 172 and accordingly, the natural father's consent is no longer necessary."

The file contains no evidence indicating that the 1978 Order was void or has been vacated or set aside or in any way invalidated; it has only been amended or modified. Apparently, the 1978 Order was amended only to include mention of 78 CVD 172 which made the natural father's consent unnecessary. The file contains no information as to the substance of 78 CVD 172; it would appear to be the civil action number of a 1978 judicial proceeding. In all probability, 78 CVD 172 was a proceeding contemporaneous with the adoption proceeding which culminated in the 1978 Final Order Of Adoption.

The April 30, 1980, letter from the North Carolina Department of Human Resources to the Clerk of the Superior Court mentions an Order Declaring Proposed Adopted Child Abandoned By His Natural Father and the appointment of a guardian ad litem. The file does not contain said Order or any documents relating to said appointment, so our knowledge of the facts is limited.

With regard to the Order Of Abandonment, the NCDHS letter stated that the action was taken in District Court, that there was no provision in the North Carolina statutes for the District Court to make a finding of abandonment, and that the Order did not meet the requirements of the statutes relating to the termination of parental rights as it did not provide for the termination of the father's parental rights. The NCDHS recommended amendment of the Order to include the termination of the father's parental rights. We are unable to comment on the analysis of the NCDHS as we do not have a copy of said Order Of Abandonment.

It is noted that the General Statutes of North Carolina at Section 7A-288 provide that where a court has adjudicated a child to be neglected or dependent, the court shall have authority to enter an order terminating parental rights. The General Statutes of North Carolina at Section 48-5(a) provide that where a district court has entered an order pursuant to General Statutes Section 7A-288 terminating parental rights, the parent whose rights with respect to such child have been terminated, shall not be a necessary party to an adoption proceeding nor shall consent of such parent be required. General Statutes Section 48-5(b) provides that, "In the event that a district court has not heretofore entered an order terminating parental rights as provided for in General Statutes Section 7A-288, then on written notice of not less than 10 days to the parent, parents, or guardian of the person, the court in the adoption proceeding is hereby authorized to determine whether an abandonment . . . has taken place." Section 48-5(d) provides that, "A copy of the order terminating parental rights or a copy of the order declaring a child abandoned . . . must be filed in the proceeding with the petition . . ." Thus, if it is determined that a child has been abandoned, the consent of the parent guilty of abandonment of such child need not be obtained. Similarly, a parent declared guilty of abandonment is not a necessary party to an adoption proceeding. Hicks v. Russell, 256 N.C. 34, 123 S.E.2d 214 (1961).

Having no facts before us with regard to the appointment of the guardian ad litem, we will again, only refer to relevant North Carolina law. Section 48-9(a)(2) provides, "If the court finds as a fact that . . . the child has been abandoned by one or both parents . . ., the court shall appoint some suitable person . . . to act in the proceeding as guardian ad litem of the child to give or withhold such consent. The court may make the appointment immediately upon such determination and forthwith may make such further orders as to the court may seem proper." Except as provided for in General Statutes Sections 48-5, 48-6 (putative father), or 7A-28, if living and having not consented generally to adoption, the parents must be parties of record to an adoption proceeding and must give written consent to adoption. General Statutes Section 48-7.

The contents of the 1978 Final Order appear to meet the requirements of law contained in General Statutes Section 48-22. From the recital of fact and law contained in the 1978 Final Order, all necessary parties were properly before the court and proper consent had been given. The claimant has presented no facts to the contrary. Although the final order was amended in 1980, there is no information to indicate that the 1980 Amended Final Order does more than clarify the contents of the 1978 Final Order. A judgment which is, or may be, erroneous, irregular, or voidable must be distinguished from a void judgment. Pruitt v. Taylor, 247 N.C. 380, 100 S.E.2d 841 (1975); Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958). The 1978 Final Order Of Adoption has not been shown to be void nor is there any indication that it has been vacated or set aside; thus, it must be accorded full legal effect.

Section 48-23 discusses the legal effects of the final order. Under this section (the former Section 48-6), it was held that adoption proceedings are conclusive as to persons who are parties thereto, and as to their privies, notwithstanding a defect as to a party who would be entitled to disregard them as not binding on him, but who does not complain. Locke v. Merrick, 223 N.C. 799, 28 S.E.2d 523 (1944). An older line of cases indicates that where there was no finding of abandonment of a child and parents were not made parties to adoption proceedings and did not give consent to the adoption in the manner contemplated by statute, an adoption proceeding was void for want of jurisdiction of subject matter. In re H~, 218 N.C. 136, 10 S.E.2d 620 (1940); Ward v. Howard, 217 N.C. 201, 7 S.E.2d 675 (1940); Truelove v. Parker, 191 N.C. .. , 132 S.E. 295 (1926). However, current statutes warrant a contrary conclusion:

Section 48-28. Questioning validity of adoption proceeding. — (a) After the final order of adoption is signed, no party to an adoption proceeding nor anyone claiming under such a party may later question the validity of the adoption proceeding by reason of any defect or irregularity therein, jurisdictional or otherwise, but shall be fully bound thereby, save for such appeal as may be allowed by law. No adoption may be questioned by reason of any procedural or other defect by anyone not injured by such defect, nor may any adoption proceeding be attacked either directly or collaterally by any person other than a natural parent or guardian of the person or the child. The failure on the part of the clerk of the superior court, the county director of social services, or the executive head of a licensed child-placing agency to perform any of the duties or acts within the time required by the provisions of this section shall not affect the validity of any adoption proceeding.

(b) The final order of adoption shall have the force and effect of, and shall be entitled to, all the presumptions attached to a judgment rendered by a court of general jurisdiction. (1949, c. 300; 1961, c. 186; 1969, c. 982.)

The provision in this section which permits a direct or collateral attack on an adoption proceeding by a natural parent or guardian of the person or the child is limited to such natural parent or guardian of the person or the child who was not a party to the adoption proceeding. Hicks v. Russell, supra. General Statutes Section 48-28 would appear to preclude an attack on the validity of the 1978 Final Order Of Adoption by either Elaine or G. W. M~ as they both were parties to the 1978 adoption proceeding.

Thus, it is our opinion that the 1978 Final Order Of Adoption was effective December 2, 1978. In the absence of information to show that the 1978 judgment was void or that it has been judicially vacated, it must be accorded full legal effect. The 1978 Amended Final Order modifies the 1978 Final Order only to the extent of specifying compliance with the consent requirement; it does not detract from the effectiveness and finality of the 1978 Final Order for the adoption of Ronald M~.


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PR 01315.036 - North Carolina - 02/13/2008
Batch run: 01/27/2009
Rev:02/13/2008