                                  NO. COA13-912

                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 15 April 2014


IN RE ADOPTION OF:
“BABY BOY”
BORN APRIL 10, 2012

                                           Wake County
                                           12 SP 1911




    Appeal by respondents from order entered 15 February 2013

by Judge Debra Sasser in Wake County District Court.                Heard in

the Court of Appeals 21 January 2014.


    WAKE FAMILY LAW GROUP, by Katherine Hardersen King, for
    respondent-appellee.

    Cheri C. Patrick          for      petitioner-appellants    Laura    and
    Richard Zug, Jr.

    MANNING, FULTON & SKINNER, P.A., by Michael S. Harrell, for
    petitioner-appellant Amazing Grace Adoptions.


    ELMORE, Judge.


    Laura Catherine Zug and Richard Charles Zug, Jr. (the Zugs)

and Amazing Grace Adoptions (the Agency) appeal Judge Sasser’s

order   entered   15   February    2013   declaring   Amy   Marie   Costin’s

relinquishment void.      After careful consideration, we reverse.

                                  I.    Background
                                      -2-
    The facts in this case are largely undisputed.                      Amy Marie

Costin (the birth mother) is the biological mother of a baby boy

(Baby Boy) born 10 April 2012 at WakeMed Cary Hospital.                            The

biological father of the minor child signed a relinquishment

placing “Baby Boy” in the care of the Agency and has made no

attempt to revoke.       The birth mother contacted the agency prior

to Baby Boy’s birth to discuss the possibility of placing the

baby for adoption.       Her primary contact at the Agency was social

worker   Hayley    Walston     (Ms.   Walston).      On     13    December       2011,

approximately halfway through her pregnancy, the birth mother

officially contracted for services with the Agency.                     The birth

mother   indicated      to   Ms.   Walston    that    she      wanted      a    closed

adoption    and   did    not   want   the    baby    to   be      placed       nearby.

Thereafter, the birth mother and Ms. Walston were in frequent

communication regarding her desire to relinquish the child for

adoption.    On 6 February 2012, Ms. Walston informed the birth

mother that the agency had identified a family who would agree

to her terms.

    One day after Baby Boy’s birth, Ms. Walston went to the

hospital to obtain the birth mother’s relinquishment of Baby Boy

to the Agency.       Under N.C. Gen. Stat. § 48-3-701(a), a birth

parent   “may     relinquish    all   parental      rights       or   guardianship
                                             -3-
powers,    including          the   right     to    consent        to   adoption,      to    an

agency.”        To complete the relinquishment process, Ms. Walston

asked a notary employed by WakeMed, Ms. Darlene Durbin (“Ms.

Durbin” or “the notary”), to notarize the “Relinquishment of

Minor for Adoption by Parent or Guardian” (the relinquishment).

Ms. Durbin had been a notary for approximately three years and

agreed to notarize the relinquishment, although she had never

notarized an adoption form before and was unfamiliar with the

legalities of the adoption process.

       Ms. Durbin accompanied Ms. Walston to the birth mother’s

hospital        room    to    witness       the    relinquishment.             Ms.     Durban

testified       that    she    stayed    for      “at   least      30   minutes”      as    Ms.

Walston completed the relinquishment procedure.                          As part of this

procedure, Ms. Walston read aloud the relinquishment form and

reviewed    a     twenty-six-question              questionnaire        with    the     birth

mother that addressed all aspects of the relinquishment.                                    The

relinquishment begins, “I, Amy Marie Costin, being duly sworn,

declare     .     .    .”      It     also    states,        “I    understand        that    my

Relinquishment to Adoption of the minor may be revoked within 7

days   following        the     day    on    which      it    is    executed,”        and    “I

understand that to revoke my Relinquishment for Adoption, as

provided in G.S. 48-3-706, the revocation must be made by giving
                                   -4-
written notice to the agency to which the Relinquishment was

given.”

    The   questionnaire   begins    with   an   acknowledgement:   “All

forms were read aloud by the staff member and were signed in the

presence of Darlene Durbin, notary, and the following questions

were asked in their presence.”       The birth mother’s responses to

the questions were recorded and included the following:

          Q. Do you feel that your mind is perfectly
          clear?

          A. Yes.

          Q. Has anyone told you that you must sign
          these papers?

          A. No.

          Q. Has anyone coerced you in any way or
          applied pressure or unduly influenced you to
          make an adoption plan for your child(ren)?

          A. No.

          Q. Did I persuade or coerce you in any way
          to sign a relinquishment, or has any of the
          Amazing Grace Adoptions staff members done
          so?

          A. No.

          Q. Do you understand you may revoke            your
          decision within 7 days of signing              this
          document?

          A. Yes.

          Q. Do you understand that if within 7 days
                                        -5-
            you decide to revoke your release you must
            make your revocation in writing and deliver
            it to the director of the agency?

            A. Yes.

            Q. Do you understand that when you sign
            these documents you are giving up all legal
            rights to this child(ren)?

            A. Yes.

            Q. Have you read and do you fully understand
            all the documents you are signing?

            A. Yes.

            Q. Do you need more time to think about your
            decision?

            A. No.

    It was not until after all of the forms were read to the

birth     mother   that    she    signed      the    relinquishment      and   the

questionnaire. Ms. Durbin then completed the notary certificate.

The birth mother received a copy of the relinquishment.                        Ms.

Walston     testified      that   she      had      previously      reviewed   the

relinquishment form with the birth mother several months prior.

    On     18   April     2012,   the   seventh       day   after    signing   her

relinquishment, the birth mother testified that she texted Ms.

Walston sometime between 10:00 p.m. and 11:00 p.m. and asked,

“is today the last day?”          Ms. Walston confirmed that it was in
                                          -6-
fact the last day that she could revoke her relinquishment.                      The

birth mother did not attempt to revoke at that time.

    The following morning (day eight), the birth mother texted

Ms. Walston to indicate that she had changed her mind.                          Later

that day, the birth mother met with Ms. Walston and the director

of the Agency to discuss the situation.                     There is no record

evidence that the birth mother ever provided the Agency with

written   notice       of   her   intent    to    revoke    her   relinquishment.

Ultimately,      the     Agency   informed       the    birth   mother   that    her

relinquishment would not be revoked because she did not give

notice    of    her    revocation    within       the    statutorily     prescribed

seven-day      period.       As   such,    the    Agency    proceeded     with   the

adoption and placed Baby Boy with the Zugs on 23 April 2012.

The Zugs filed their petition to adopt Baby Boy that same day.

Baby Boy has since remained in the Zugs’ custody.

    On 11 June 2012, the birth mother filed a motion to dismiss

the adoption petition and motion to declare her relinquishment

void, alleging that the purported relinquishment was void for

“lack of compliance with a mandatory statutory requirement[.]”

The trial court took the case under advisement and, in an order

filed 15 February 2013, made the following pertinent findings of

fact:
                    -7-
6.    Ms. Darlene Durbin, an employee of
WakeMed Cary Hospital, was asked to notarize
the documents.   Ms. Durbin was not familiar
with adoption forms and did not review the
forms before undertaking to notarize them.
Ms. Durbin was present for over a half hour
while Ms. Walston went through a twenty-six
question questionnaire dealing with various
aspects of the relinquishment before having
the [the birth mother] sign the purported
relinquishment[].

7. The uncontroverted evidence and Ms.
Durbin's own testimony indicates that Ms.
Durbin did not put either biological parent
under oath before or after signing the
relinquishment forms, nor did she ask them
to “swear,” “affirm” or any words to that
effect.   No Bible or other Holy Scriptures
were used by Ms. Durbin during the notary
process, and no oaths or affirmations were
administered   prior   to    the   purported
relinquishments being signed or at any time
since.

11. Pursuant to N.C.G.S. 48-3-702(a) “A
relinquishment executed by a parent or
guardian must conform substantially to the
requirements in this Part and must be signed
and   acknowledged   under oath   before  an
individual authorized to administer oaths or
take     acknowledgments.”   [emphasis    in
original]

12. The language regarding “under oath” in
N.C.G.S. 48-3-702 is not mere surplus, as
language regarding “under oath” is included
in some sections of Chapter 48 for types of
consents/relinquishments and not in others.
It is precise and purposeful language.
Being a parent is a fundamental right that
must be protected, and while the adoption
statutes should be construed liberally in
many instances, the biological     parents’
                          -8-
    rights    are    protected    by    the    U.S.
    Constitution. The child’s rights to be with
    the   biological   parent(s)   also   must   be
    protected.    The “under oath” language in
    N.C.G.S.   48-3-702   is   meant   to   prevent
    biological parents from claiming that they
    didn't understand what they were signing or
    didn't know what they were doing to prevent
    future litigation.


The trial court then made the following conclusions of law:

    2. Under N.C.G.S. 48-3-702, the sex of the
    baby was a mandatory provision in the
    relinquishment but was not completed in the
    purported    relinquishment.    Additionally,
    under 48-3-702, the signature of Movant had
    to be obtained while she was under oath.

    4. The purported relinquishment signed by
    Movant on April 11, 2012 is not a valid
    relinquishment in that it does not conform
    to the mandatory statutory requirements of a
    relinquishment as set out in N.C.G.S. 48-3-
    702   and   is   void  to   operate   as   a
    relinquishment.

    5. There is no valid relinquishment by the
    Movant in this matter.

    6.   Because   there   was   never   a   valid
    relinquishment    signed   by    Movant,    no
    revocation   of    her   relinquishment    was
    required, and the revocation statutes don’t
    apply.

    8. There was no constructive fraud or actual
    fraud by the [A]gency in the procurement of
    the relinquishment.

    9. This matter should not be remanded back
    to the Clerk of Superior Court at this time
    and should remain with District Court for a
                                           -9-
              later hearing on Movant’s request to dismiss
              the adoption petition.


       The    trial    court     thereafter       granted   the    birth   mother’s

petition to declare her relinquishment void.                      The Zugs and the

Agency (collectively petitioners) now appeal.

                                II.   Interlocutory Appeal

       In    the      instant     case,     the     trial    court    entered     an

interlocutory order voiding the birth mother’s relinquishment,

which effectively nullified the birth mother’s purported consent

to the adoption.          As our Courts have previously addressed the

merits of interlocutory appeals concerning a putative father’s

consent to adoption, we see no reason not to afford the birth

mother the same protection.             See In re Adoption of Anderson, 165

N.C.   App.    413,     598    S.E.2d     638,    639   (2004),    rev'd   on   other

grounds, 360 N.C. 271, 624 S.E.2d 626 (2006); In re Byrd, 137

N.C. App. 623, 529 S.E.2d 465 (2000), aff'd sub nom., 354 N.C.

188, 552 S.E.2d 142 (2001).

                                        III. Analysis

       The primary issue presented on appeal is whether the birth

mother’s consent to relinquish her parental rights to the Agency

was valid.         Petitioners argue that the trial court erred in

voiding the relinquishment on the basis that the birth mother
                                         -10-
did not execute it while “under oath” as mandated by N.C. Gen.

Stat. § 48-3-702.         We agree.

     We note that petitioners did not assign error to any of the

trial court’s findings of fact.                  As such, all of the trial

court’s    findings       of   fact    are    deemed        conclusive    on   appeal.

Fakhoury v. Fakhoury, 171 N.C. App. 104, 108, 613 S.E.2d 729,

732 (2005).     We review the trial court’s conclusions of law de

novo.     Boseman v. Jarrell, 364 N.C. 537, 549, 704 S.E.2d 494,

502 (2010).

     The    laws        governing      adoptions       in     North    Carolina       are

creatures of statutory construction as set forth in Chapter 48

of our general statutes.              Our legislature requires that Chapter

48 “be liberally construed and applied to promote its underlying

purposes and policies.”             N.C. Gen. Stat. § 48-1-100(d) (2013).

“[T]he    needs,    interests,        and     rights    of     minor   adoptees       are

primary.    Any conflict between the interests of a minor adoptee

and those of an adult shall be resolved in favor of the minor.”

N.C. Gen. Stat. § 48-1-100(c) (2013).                       Here, the trial court

relied on N.C. Gen. Stat. § 48-3-702(a) in voiding the birth

mother’s    relinquishment.             The     statute       provides     that   “[a]

relinquishment executed by a parent or guardian must conform

substantially      to    the   requirements       in    this    Part     and   must    be
                                            -11-
signed        and     acknowledged        under     oath     before          an     individual

authorized to administer oaths or take acknowledgments.”                                   N.C.

Gen. Stat. 48-3-702(a) (2013).

       This is not a case where the birth mother argues that her

consent       to     relinquish    Baby    Boy     was     not   given       knowingly     and

voluntarily.           In fact, the birth mother admits that she signed

her relinquishment before a notary public, that she knew what

she was signing, and the consequences, that she signed knowing

the    time     limits     for    revocation,       and    that    she       contacted     Ms.

Walston to confirm that it was her last day to revoke prior to

the expiration of the seven-day period.                            Further, the birth

mother admits that Ms. Walston asked her a series of questions,

which    she        answered     truthfully       before    the    notary.            In   “the

absence of evidence of fraud on the part of the notary, or

evidence of a knowing and deliberate violation,”                             we recognize a

presumption of regularity to notarial acts.                          N.C. Gen. Stat. §

10B-99 (2013).            This presumption of regularity allows notarial

acts     to     be     upheld,     “provided       there     has     been          substantial

compliance with the law.”              N.C. Gen. Stat. § 10B-99.                    Thus, the

presumption          of   regularity        acts     to     impute       a        “substantial

compliance”           component      to     notarial         acts,       including         the

administration of oaths.
                                           -12-
       We turn now to the pertinent issue before us—whether the

birth mother was under oath when she signed her relinquishment.

See    N.C.    Gen.     Stat.    §     48-3-702(a).          Our    Supreme     Court    has

maintained that statutes should be read and understood according

to the natural and most obvious import of the language without

resorting to subtle and forced construction for the purpose of

either       limiting     or    extending        their       operation.         State     v.

Carpenter, 173 N.C. 767, 92 S.E. 373, 374 (1917).                                 “If the

language of a statute is clear and unambiguous, there is no room

for judicial construction and the courts must give the statute

its plain and definite meaning[.] . . .                      This is especially true

in    the    context    of     adoption,      which     is    purely    a     creation    of

statute.”       Boseman at 545, 704 S.E.2d at 500 (citations and

quotation marks omitted).

       We read N.C. Gen. Stat. 48-3-702(a) to require both (1)

substantial performance of the requirements set out in Chapter

48,    and     (2)     that     the     relinquishment         must    be     signed     and

acknowledged         under     oath     before    an    individual      authorized       to

administer      oaths     or     take    acknowledgments.              From    its     plain

language,       we    hold      that    the      legislature        intended     for     the

“substantial         compliance”       component       of    N.C.   Gen.      Stat.    48-3-

702(a) to apply only to the requirements set out in Chapter 48.
                                  -13-
There is no “substantial compliance” component concerning the

oath requirement on the face of N.C. Gen. Stat. 48-3-702(a).

    An   oath   is     administered      to    a   document    signer     (the

principal)   when    the   principal    is    required   to   make   a   sworn

statement about certain facts.         An oath is defined as:

         A notarial act which is legally equivalent
         to an affirmation and in which a notary
         certifies that at a single time and place
         all of the following occurred:

         a.   An individual appeared in person before
         the notary.

         b.   The individual was personally known to
         the notary or identified by the notary
         through satisfactory evidence.

         c. The individual made a vow of truthfulness
         on penalty of perjury while invoking a deity
         or using any form of the word “swear.”

N.C. Gen. Stat. § 10B-3(14) (2013).

    An acknowledgment       is a notarial act that            occurs when a

notary certifies that at a single time and place:

               a. An individual appeared in person
         before the notary and presented a record.

               b. The individual was personally known
         to the notary or identified by the notary
         through satisfactory evidence.

               c. The individual did either of the
         following:
                  i. Indicated to the notary that the
         signature on the record was the individual’s
         signature.
                                              -14-
                          ii. Signed the record while in the
                 physical presence of the notary and while
                 being personally observed signing the record
                 by the notary.

N.C. Gen. Stat. § 10B-3(1) (2013).                        There is no oath requirement

for     an      acknowledgment.            When      an     oath      is     administered        in

conjunction            with    a    principal’s           signing,         the     notarization

functions as a verification or proof, not an acknowledgment.

N.C. Gen. Stat. § 10B-3(28).


A. Notary to Administer an Oath

       In       the    instant     case,    there    is     no     real     issue      about    the

Agency’s compliance with subparagraphs (a) and (b) of N.C. Gen.

Stat.       §    10B-3(14).          However,        the     trial         court      found    that

subparagraph (c) was not satisfied, in part, because Ms. Durbin

“did    not      put    [the     birth     mother]    under        oath     before       or   after

signing         the    relinquishment        forms[.]”           By    the       trial    court’s

reasoning,            the   notary    or     certifying          officer         is    the     only

individual with authority to administer an oath to a document

signor.         Again, we disagree.

       Initially, we would like to discuss the role of a notary

when administering oaths and affirmations, particularly given

that the case law on this topic is fairly sparse.                                      It is the

primary function of a notary to serve as an impartial witness
                                     -15-
when authenticating legal documents and administering oaths or

affirmations.      A notarization that requires the signor to be

placed under oath begins with the administration of an oath or

affirmation.      A traditional jurat notarization recites that a

document has been “subscribed and sworn to” before a notary.

BLACK’S LAW DICTIONARY 866 (8th ed. 2004).          By its administration,

an oath or affirmation gives weight to the truthfulness of the

document’s substance.         The failure to administer an               oath or

affirmation as required may result in a defective notarization.

Should     this    occur,    the     document     bearing       the     defective

notarization may be invalidated and the underlying transaction

voided.     The   “consequence      of   the   failure   of    notaries      to   []

administer such oaths or affirmations constitutes a disservice

to   document     signers,   to    the    third   parties      who    rely    upon

notarized    signatures,     and    to   the   office    of    notary    public.”

Michael L. Closen, To Swear . . . or Not to Swear Document

Signers:    The   Default    of    Notaries    Public    and    A    Proposal     to

Abolish Oral Notarial Oaths, 50 Buff. L. Rev. 613, 617 (2002).

Accordingly, we cannot stress enough the seriousness of properly

administering oaths and affirmations, and we urge notaries to be

diligent in performing this duty.
                                         -16-
      Neither statutory nor common law clearly sets forth the

formalities       of    oath      administration.           For   example,      North

Carolina’s “oath” statute, N.C. Gen. Stat. § 10B-3(14), does not

specifically require that the notary orally administer the oath.

By its plain language, the notary need only certify that the

notary witnessed the signor make a vow of truthfulness by using

any form of the word “swear.”               In fact, none of our notarial

statutes specify by their plain language that the notary                            is

required to administer an oral oath to the principal prior to

notarization.       Nevertheless, the trial court in the instant case

voided the birth mother’s relinquishment on this basis.

      The    case      law     pertaining    to     this     issue    supports      an

alternative outcome.              First, we look to State v. Knight, an

early North Carolina Supreme Court case, for the proposition

that a notary (or other authorized individual) may delegate the

administration of an oath to a third party who is not vested

with authority to administer oaths.                 84 N.C. 789 (1881).             In

Knight,     the    Martin      County    coroner,    J.H.    Ellison,     had     sole

authority to administer an oath to certain witnesses.                      However,

he   allowed      justice    of    the   peace,   J.L.     Ewell,    to   place    the

witnesses under oath in his presence and before the court.                         Id.

at 791-92.        The defendant moved to arrest judgment on grounds
                                          -17-
that the witnesses were not properly administered the oath.                        Our

Supreme    Court    disagreed       on    the    basis   that    it    “sufficiently

appear[ed] that the administration of the oath was the act of

the coroner.”       Id. at 793. Our Supreme Court concluded that the

administration of an oath is a ministerial act and it

            may be administered by any one [sic] in the
            presence and by the direction of the
            court[.] . . . It was just as competent for
            the   coroner  to   have   called  upon  any
            unofficial bystander to administer the oath
            for him, as upon a justice of the peace. It
            was therefore immaterial whether in this
            case the justice had the authority to
            administer the oath or not.

Id.

      Relying      in   part   on    Knight,      the    Alabama      Supreme    Court

addressed a similar issue in Walker v. State, 107 Ala. 5, 18 So.

393 (1895).     In Walker, the defendant was prosecuted for perjury

after making a false affidavit attesting to a certain conveyance

of land.      In executing the affidavit, Elbert Holt, a deputy

clerk without authority to administer an oath,                        “in point of

actual,     physical       fact,         administered      the     oath     to    the

defendant[.]”       Id. at 9, 18 So. at 394.                The Alabama Supreme

Court held that Elbert Holt’s administration satisfied the oath

requirement because E.R. Holt, the clerk with authority, “was

present at the time, knew what was going on, and directed or
                                     -18-
assented to the administering of the oath, which was done in his

name as such clerk, and the evidence of which—the jurat—was made

out and stands in his name[.]”           Id. at 9-10, 18 So at 394.      The

Alabama Supreme Court opined:

         [T]his actual administration by Elbert Holt
         was, under the circumstances, in legal
         contemplation the official act of E.R. Holt,
         the de jure clerk of the court, is fully
         settled by the authorities (State v. Knight,
         84 N.C. 789, 793; Stephens v. State, 1 Swan,
         157; Oaks v. Rodgers, 48 Cal. 197); and this
         upon   the    general   principle   that   a
         ministerial act done by one under the
         authority, and by the direction, or with the
         knowledge and assent, and especially in the
         presence, of an officer duly authorized to
         perform that act, is the act of the officer
         himself.


Id. at 10, 18 So. at 394.

    More recently, in Gargan v. State, 805 P.2d 998 (Alaska

App. 1991), the Alaska Court of Appeals considered an argument

similar to the one advanced by the birth mother in the instant

case.        Gargan   concerned    the    defendant’s   perjury   conviction

involving an affidavit that purported on its face to be sworn

before a notary.      Evidence at trial established that the notary

had not actually administered an oath prior to notarizing the

affidavit.     Id. at 1004.       Nevertheless, the trial judge allowed

the jurors to consider the statement during their deliberations.
                                           -19-
     The Alaska Court opined that the crucial issue was not

whether   an   oath       was   actually       administered,      but    whether   the

signed statement constituted “a verification on its face of the

truthfulness of the facts contained therein.”1                    Id. at 1005.     The

Alaska    Court      concluded        that      the    document      satisfied     the

substantial       requirements        of   a      verification    given    that    the

defendant: (1) was properly identified, (2) knowingly signed the

document in the notary’s presence, (3) the document contained

the language “duly sworn,” and (4) the notary actually notarized

the document.       Id.    As such, the Alaska Court held that the oath

requirement was satisfied upon notarization.                   Id.

     We find Gargan noteworthy for the proposition that an oath

is considered administered when an individual signs a document

in a notary’s presence that contains the language “duly sworn”

or its equivalent.          The Alaska Court essentially held that the

“duly    sworn”    language      in    a     document    is    equivalent    to    the

delivery of a verbal oath, provided certain other factors are

satisfied.     In the instant case, respondents advance the same

proposition—they      contend      that        because   the     birth    mother   (1)



1
  A verification is defined as (1) a formal declaration made
under oath by the principal swearing to the truthfulness of the
statements in a document, or (2) an oath or affirmation that an
authorized officer administers to an affiant or deponent, or (3)
any act of notarizing. BLACK’S LAW DICTIONARY 1593 (8th ed. 2004).
                                           -20-
knowingly signed the document in the notary’s presence, (2) the

document contained the language “duly sworn,” and (3) the notary

verified      the    swearing,       the    “oath      was     administered       by   the

certifying official at the time [the birth mother] signed the

relinquishment.”        At present we express no opinion on the merits

of respondent’s argument or the Gargan decision, namely because

the   facts     of    the     case    before      us    show      that    an    oath   was

administered to the birth mother by Ms. Walston.

      On appeal, counsel for the birth mother argues that the

notary herself was required to deliver the oath for it to be

effective.          Counsel    reasons:        It      “is   part    of   the    notary’s

training to know how to administer an oath” and “if we somehow

take away the requirement that the notary have to administer an

oath, we have negated the entire notarial act.                            We have taken

away something that the notary is required to do.”                                Counsel

applies    this      logic    to   the     notarization      of     affidavits—arguing

that any party who executes an affidavit should be permitted at

a later time to withdraw it on the basis that it was not given

under oath.          Alternately, petitioners argue that an oath was

effectively          administered          when     Ms.        Walston         read    the

relinquishment to the birth mother stating, “I, Amy Marie Costin

being duly sworn, declare . . . [.]”
                                       -21-
       We agree with petitioners.             In the instant case, the birth

mother advances a purely technical argument and has failed to

present      sufficient    evidence      to    overcome      the    presumption     of

regularity created in favor of the validity of notarial acts.

See Moore v. Moore, 108 N.C. App. 656, 658, 424 S.E.2d 673, 674,

aff'd, 334 N.C. 684, 435 S.E.2d 71 (1993)                         (holding that the

plaintiff-husband failed to overcome the presumption in favor of

the legality of an acknowledgment when it was undisputed that he

signed      the   separation   agreement,        but   advanced      the    technical

argument that the agreement was void because the notary did not

witness     his    signature   since     she    walked      “in    and   out   of   the

conference room”).        Here, it is undisputed that the birth mother

signed the relinquishment in the notary’s presence.                        The notary

testified that she witnessed the birth mother’s signature and

verified the document.         In doing so, the notary attested by her

seal     that     the   document   was        “sworn   to    (or     affirmed)      and

subscribed” before her.            Nothing in the record impeaches her

certification, including the notary’s testimony that she did not

place the birth mother under oath.

       The administration of an oath is a ministerial duty and it

may    be    delivered    by   persons        who   lack     official      authority,

provided that a certifying officer is present and directs or
                                        -22-
assents to the administration.                 Here, in substance and legal

effect, the requirement that the birth mother be placed “under

oath” was satisfied when Ms. Walston read the relinquishment to

her.     The    notary    was   physically      present       when       the   oath   was

administered, aware of the circumstances, and thereby implicitly

assented to its administration, which was done in her name.                            By

these facts, it sufficiently appears that the administration of

the oath was the act of the notary.              See Knight, supra.

       Further, the plain language of                  N.C. Gen. Stat. § 10B-

3(14)(c) requires the principal to make a vow of truthfulness

“while invoking a deity or using any form of the word ‘swear.’”

Again,   “any    form”    of    the    word    “swear”       may    be    utilized—the

statute does not mandate that the signor orally repeat the word

“swear.”   Here, the birth mother stated in writing that she had

been “duly sworn” when she signed the document.                           The notary’s

verification recites that the birth mother had sworn to the

document before the notary.             Additionally, Ms. Walston read the

word “swear” aloud in administering the oath.                      We hold that N.C.

Gen.   Stat.    §   10B-3(14)(c)        was    satisfied.           Accordingly,       we

conclude   that     the   trial       court    erred    in    entering         an   order

declaring the birth mother’s relinquishment void.                         There was a
                                              -23-
valid   relinquishment        in       this    matter,      which     the    birth    mother

failed to timely revoke.

B. Statutory Grounds to Void Relinquishment

       As we have held that the relinquishment was not void ab

initio,    the     birth     mother        was       limited     to     challenging        her

relinquishment       on    the         express       grounds     established         by    the

legislature to void relinquishments.                        N.C. Gen. Stat. § 48-3-

707.    Absent the consent of the parties, the only applicable

grounds    for     voiding    the       relinquishment          in    the    instant      case

requires    the    birth     mother       to     prove    by    clear     and     convincing

evidence    that     her     relinquishment           was      obtained      by    fraud    or

duress.    N.C. Gen. Stat. § 48-3-707(a)(1).

       In its order,         the trial court concluded:                     “There was no

constructive       fraud     or    actual       fraud     by    the     [A]gency     in    the

procurement of the relinquishment.”                      Upon conducting a de novo

review of the record, we agree.                  The Agency made every effort to

ensure that the birth mother was apprised of the complexity of

the situation and the legalities of the adoption process.                                  Ms.

Walston testified that she reviewed the relinquishment with the

birth     mother     prior        to    Baby      Boy’s        birth,     she     read     the

relinquishment aloud, and the birth mother was given a copy of

the form.        Again, this is not a case where the birth mother
                                 -24-
argues that her consent to relinquish Baby Boy was not given

knowingly and voluntarily.

C. Designation of Baby Boy’s Sex on Relinquishment Form

    Finally,    we   recognize   that   for   a   relinquishment   to   be

complete, it must disclose the “date of birth or the expected

delivery date, the sex, and the name of the minor, if known[.]”

N.C. Gen. Stat. 48-3-703.    Here, the relinquishment omitted Baby

Boy’s gender.   In Finding #4, the trial court found:        “There was

no evidence that [the birth mother] requested this omission or

why this information was omitted.”        We disagree.      Ms. Walston

testified that the birth mother requested a closed adoption and

“did not plan to see the child or even want to know the sex of

the child[.]”   The birth mother testified:         “I never wanted an

open adoption. . . .       We never discussed an open adoption.”

Accordingly, there is evidence that the Agency omitted the sex

of Baby Boy based on what it perceived to be the birth mother’s

request.   Regardless, N.C. Gen. Stat. § 48-3-702(a) provides

that a relinquishment only needs to be executed in substantial

compliance with the law, and this was accomplished.

                             IV.   Conclusion

    In sum, the trial court erred in entering an order voiding

the birth mother’s relinquishment.       The relinquishment is valid
                             -25-
and conforms to the mandatory statutory requirements as set out

in N.C. Gen. Stat. § 48-3-702.      Accordingly, we reverse the

trial court’s order.

    Reversed.

    Judges McGEE and HUNTER, Robert C., concur.
