Prenatal Abandonment

By Jessica Wollum

While my last post focused on pregnancy support, this post focuses on what occurs when fathers fail to provide support, or at least fail to meet the court’s support definitions. Under prenatal abandonment theory, birth fathers lose “parental rights to newborn[s] by neglecting parental responsibilities during” pregnancy.[1] However, this theory can be more than a sword to terminate rights, but also a shield to protect rights via laws that 1) require fathers to “pay prenatal support or waive parental” rights and that 2) protect rights for fathers who provide such support.[2]

North Carolina statutes imply a duty of support by nonmarital fathers and that such support can preserve rights. Termination of parental rights (TPR) can occur for multiple reasons, but fathers can preserve their rights and avoid TPRs by meeting statutory criteria such as “[p]rovid[ing] substantial financial support or consistent care with respect to the juvenile and mother.” Additionally, one prong for whether a nonmarital father’s consent to adoption is required is if he provided “reasonable and consistent payments for the support of the biological mother [or minor] during or after” pregnancy. Together, these statutes could lead to an inference that fathers are required to provide pregnancy support or waive their rights, and if fathers do provide pregnancy support, these statutes protect fathers’ rights in TPR and adoption proceedings.

In interpreting these statutes, North Carolina case law clearly uses the lack of or existence of prenatal support to cut off rights and preserve rights. For example, the North Carolina Supreme Court stated in Byrd that the adoption statute was enacted “to facilitate” adoptions when absent fathers try “to intervene and hold [them] up,” but also emphasized that the statute was enacted “to protect the interests and rights of men who have demonstrated paternal responsibility.”[3]

While the Court in Byrd emphasizes preserving paternal rights, it seems that sword cases are voluminous. For example, a teenage father’s consent for adoption was not required in Anderson, even though he offered financial support, because the North Carolina Supreme Court held that an offer was not enough.[4] Another teenage father had his rights terminated because he failed to provide “direct support” to the mother or child during the pregnancy in In re A.C.V., even though he saved money, bought baby supplies, attended an appointment and parenting classes, and, through his parents, arranged for a larger home with room for the baby.[5] Therefore, these teenage father cases show the cutting sword of prenatal abandonment theory in North Carolina case law.

Even though Byrd emphasizes a commitment to making sure women do not freeze out fathers,[6] North Carolina courts’ stringent statutory interpretations seem to have done just that, especially for teenage fathers. As such, many of these TPR cases include strong dissents that reveal North Carolina’s failure to robustly use prenatal abandonment theory as a shield. The dissent in Byrd argues that the teenage father’s support attempts should have preserved his rights, since he was rebuffed by the mother, and views the majority’s suggestion of creating a fund as no different than an attempt because setting up a fund would not actually provide support until someone accesses the funds.[7] Additionally, the Court of Appeals, in dicta from In re A.C.V., admits to the unfairness of stripping a teenage father’s parental rights away before he can demonstrate his ability to parent, even though he has gone to great lengths to prepare for his baby’s birth.[8]

Overall, North Carolina courts seem to apply prenatal abandonment theory as a sword to terminate rights via high thresholds for what qualifies as sufficient prenatal support to preserve rights. This threshold seems quite high when considering the attempts that some teenage fathers have made and the absolute bar placed on fathers’ abilities to use the theory as a shield. The dissents critique this stringent interpretation, providing persuasive justifications for reducing such a high bar.