The clock begins ticking for a biological parent to revoke consent to adoption of her child when the parent is provided an original or copy of the signed written consent, not when the consent is actually signed, the state Court of Appeals has ruled.
An unlikely oversight led the appeals court to decide the first-impression issue in In re Ivey, as the plaintiff’s original attorney was uncertain whether she provided her client the required document. The Feb. 6 ruling was unanimous, with the entire panel agreeing on the intent of revocation statutes where the expressed meaning was potentially vague.
“North Carolina statutes clearly contemplate that an original or copy of a signed consent to adoption must be delivered to the consenting parent to commence the time period within which the parent can revoke her consent,” Judge Lucy Inman wrote for the court. “We must vindicate this intention in interpreting and applying these statutes.”
Where do I sign?
In 2015, according to court records, George and Laura Ivey engaged an adoption agency social worker to perform a domestic pre-placement assessment in preparation for a private adoption proceeding. The couple eventually met the pregnant mother, a 15-year-old from Tennessee who agreed to an open adoption with the Iveys. The parties executed an open adoption agreement and a birth plan setting forth visitation, birthing details, and “other provisions establishing the level of care and contact” the parties would exercise toward the baby and each other during birth and following the adoption.
After giving birth, on Sept. 1, 2016, the mother met with an attorney hired by the Iveys to represent her and a notary, signing an affidavit of parentage and consent to adoption, acknowledging that according to Gen. Stat. 48-3-608, she could revoke her consent within seven days — excluding weekends and holidays — of its execution.
The mother’s attorney told the mother to contact her if she had any questions, and the Iveys took the baby home.
On Sept. 9, the mother called her attorney after rethinking her decision to give up her baby. She retained another attorney, Caleb Decker of Asheville, for future attempts to regain custody, and sought to begin the process of revoking her consent. In a letter, the mother informed the Iveys that she was revoking consent and that she had never received a copy of the consent.
On Sept. 29, the mother received a copy of the consent from her medical file. On Oct. 3, the Iveys filed a petition for adoption with the district court. The next day, mother filed a revocation.
When delivered, not signed or sealed
After a Nov. 7 hearing, the court on Nov. 15 dismissed the adoption proceeding, finding that the mother’s original attorney had failed to leave a copy of the consent with the mother.
As such, district court Judge Thomas Foster ruled that mother’s revocation — filed five days after she got her copy of the consent, but more than a month after signing it — was filed within the allowable seven-day period. State law, he found, requires that a copy of the executed consent “be left with the consenting person in order for the consenting person to have notice of how to revoke consent, where to revoke consent, and with whom to give notice of the revoking of consent.”
Foster awarded custody of the baby to the mother and ordered the Iveys to return the baby.
On appeal, the Iveys challenged the trial court’s findings that a consent to adoption is not executed until a signed or original copy is delivered to the consenting party and that the mother filed a valid revocation of the consent within seven days of receiving a copy of the consent.
Judge Inman, who penned the appeals court’s opinion, wrote that while the statute does not expressly require that the person executing the consent to adoption receive an original or copy of the signed consent, it does envision such a receipt. The legislature’s language anticipates such a delivery, she wrote, by requiring the notary to certify that to the best of his or her knowledge, “the consenting party has been given an original or a copy of his or her fully executed consent.” It is further contemplated, the court found, by sections of the law requiring that a written revocation be delivered “to the person specified in the consent” and that consent contain the “name of the person and an address where any notice of revocation may be sent,” so that revocation, if desired, may be accomplished.
“Construing the language of” the revocation and content requirements, the underlying purposes of the adoption regime, Inman wrote, “demonstrates the intent of the legislature that a biological parent consenting to adoption receive, as a matter of fact, an original or copy of the signed consent in order for it to be effectuated.”
All about intent
The court also declined to adopt the Iveys interpretation that a consent is “executed” when it is signed by the consenting parent and notarized, and that the mother’s revocation was time barred because the clock began running on the date of execution, not receipt, of the written consent.
Where a literal interpretation of a statute’s language will lead to absurd results, the court wrote, using recently uttered Supreme Court language, the “reason and purpose of the law” shall control, rather than the strict letter thereof.
“Adopting the strict interpretation of the word ‘executed’ advocated by the Iveys would create just such an absurd result, leaving a consenting parent who never received an original or
copy of the signed consent without written notice as to whom to deliver the necessary written
revocation,” Inman wrote. “Such an interpretation would frustrate the very purpose of the revocation procedure, which is inseparable from the intent of the adoption scheme established by law.”
The court noted one of the statutes’ primary purposes of ensuring the finality of adoption, but held that “multiple” primary purposes should all be respected. It held that requiring actual delivery of the consent to the consenting parent does not run counter to the purpose, but recognizes legislature’s intent that a consenting parent receives the information necessary to revoke consent, and that he or she has seven days to do so once such information is provided.
Here, the mother and her former foster parent, who was with her in the hospital when the consent was signed, testified that the mother did not receive a copy of the consent. The mother’s original attorney testified that she “believed,” based on her general practice, that she left a copy with the mother when it was signed. She could not, however, testify with certainty that she had done so.
Penelope Hefner of Sodoma Law was not involved in the case, but reviewed the decision at Lawyers Weekly’s request. She said it is paramount for an attorney to not only send a copy of the consent to the birth mother, but to have proof that it was done.
“It’s surprising that ‘execution,’ which is what is required by the statute, does not mean the plain meaning of ‘signing,’” Hefner said. “Clearly, implicit in that is the follow-through that many attorneys may not have considered before this case.”
Messages for two of the Iveys appellate attorneys, Frank Queen of Waynesville and Kelly Dempsey of Charlotte, were not returned.
The 16-page decision is In re Ivey (Lawyers Weekly No. 011-034-18). A digest of the opinion is available online at nclawyersweekly.com.
Follow Heath Hamacher on Twitter @NCLWHamacher