Domestic Relations – Parent & Child – Termination of Parental Rights Petition – Paternity – Legitimation – Amended Birth Certificates – Presumption – First Impression

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In re J.K.C. (Lawyers Weekly No. 12-07-0053, 34 pp.) (Donna S. Stroud, J.) Appealed from Guilford County District Court. (Polly D. Sizemore, J.) N.C. App. Click here for the full-text opinion.

Holding: The respondent-father’s name on the children’s amended birth certificates creates a rebuttable presumption that he has legitimated them. Since the guardian ad litem failed to rebut that presumption, respondent’s parental rights were not subject to termination based on a failure to legitimate.

We affirm the trial court’s dismissal of the petition to terminate respondent’s parental rights.

Legitimation

Respondent’s name appears on both children’s amended birth certificates.

Respondent’s name could not have been placed on the birth certificate when it was originally issued unless both parents completed “an affidavit acknowledging paternity” in a format and containing the information as required by G.S. § 130A-101(f).

Although the birth certificates do not state how they were amended, it appears that the amendments were made to add respondent’s name as the father of the children.

A guardian ad litem (GAL) report showed that respondent took a paternity test and could not be excluded as the father of J.K.C. (“Jack”). A DSS court summary noted that paternity had been established for Jack. The trial court found, “No court order was introduced as evidence which included a judicial finding of paternity [as to Jack], but the parties agree that this did occur at some point in some case.”

Regarding J.D.K. (“Jasmine”), several DSS summaries name respondent as Jasmine’s “biological” – as opposed to putative – father, and the summaries state that paternity had been established “by civil adjudication.”

Thus, the evidence as to both Jack and Jasmine indicates that there was a judicial determination of paternity, which resulted in the amendments to their birth certificates.

Respondent could not have been listed as the “father” of either child unless his name was placed on the certificates in accordance with either G.S. § 130A-101(f) (by affidavit of paternity) or G.S. § 130A-118(b) (by amendment based upon a judicial determination of parentage.)

In the context of a proceeding for termination of parental rights, where the petitioner has the burden of proving by clear, cogent, and convincing evidence that a respondent has not established paternity of a child, the practical effect of a birth certificate bearing the respondent’s name as father of the child is the creation of a rebuttable presumption that the respondent has in fact established paternity of the child either judicially or by affidavit as required by G.S. § 7B-

1111(a)(5)(a). Although our courts have not previously identified this as a rebuttable presumption, G.S. §§ 130A-101, 130A-118, and 130A-119, taken together, create a rebuttable presumption that the respondent has taken the legal steps necessary to establish paternity; otherwise, his name logically could not appear on the birth certificate.

This presumption is consistent with the long-recognized presumption of legitimacy of a child born in wedlock. If a child born to a marriage is presumed to be legitimate, we see no reason why a similar presumption should not arise where a child’s birth certificate identifies its father, as our statutory scheme requires a determination of paternity by affidavit or judicially before the father’s name can be shown on the birth certificate.

In this case, there is no evidence to rebut the presumption raised by the birth certificates.

The trial court properly concluded that the GAL had not met its burden and respondent’s parental rights as to Jack could not be terminated based on G.S. § 7B-1111(a)(5).

However, the trial court found that respondent “has not legitimated [Jasmine] either judicially or by affidavit; has not filed a petition to legitimate [Jasmine] and has not legitimated the child by marriage to the mother.”

Where the trial court failed to address whether respondent “provided substantial financial support or consistent care with respect to the juvenile and mother,” the trial court’s findings do not support a conclusion that respondent’s parental rights should be terminated pursuant to § 7B-1111(a)(5).

Jasmine’s birth certificate raised a rebuttable presumption that respondent had established paternity judicially. This presumption was not rebutted.

In addition to the evidence discussed above, the mother testified at a prior hearing that no one else could be Jasmine’s father. There is also no suggestion in any of the documentation in the record that respondent was required to establish paternity of Jasmine as part of a case plan or requiring respondent to take a paternity test to establish paternity for Jasmine. Therefore, the trial court’s finding that respondent had “not legitimated [Jasmine] judicially” is not supported by the clear, cogent, and convincing evidence required for termination of parental rights.

We need not remand this case for additional findings, and we hold that the trial court did not err in dismissing the petition to terminate respondent’s parental rights pursuant to G.S. § 7B-1111(a)(5), as the GAL did not meet its burden to show by clear, cogent and convincing evidence that respondent had not  established paternity judicially.

Other Issues

Where the trial court found that no anger management classes were offered in the prisons in which respondent had been placed, that respondent was in compliance with the substance abuse component of his case plan, that respondent sent letters to the social worker inquiring about his children, and that respondent sent letters, cards and gifts to the children via his mother, these findings support the trial court’s determination that the GAL did not present clear and convincing evidence of respondent’s neglect of the children.

Where the trial court found that respondent maintained contact with DSS, attended on-going substance abuse treatment, completed the only parenting class offered by the Department of Correction, completed “Basic Employability Skills Training, Thinking for a Change, Masonry, Office Practice, and Character Education Training,” and was in substantial compliance with his case plan, these findings support the trial court’s conclusion that the GAL did not present clear and convincing evidence that respondent willfully left the children in foster care without making reasonable progress to correct the conditions which led to their removal.

Even though the trial court found that respondent had “not paid anything toward the care of the children since his incarceration,” the court further found that respondent had written to DSS about providing support but “was informed that it could not be arranged at this time” as “he was earning less than minimum wage, [and] the agency could not establish a child support case.” Therefore, respondent’s failure to pay was not based on stubborn resistance, but on DSS’ inability to receive any support from him at that time. Accordingly, the trial court correctly did not terminate respondent’s parental rights pursuant to G.S. § 7B-

1111(a)(3).

Affirmed.