An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-453
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
DEBORAH J. TONEY,
Plaintiff,
v. Rutherford County
No. 12 CVD 864
LEE ANNA EDGERTON,
Defendant.
Appeal by Plaintiff from an amended order entered 11
October 2013 by Judge Dennis Redwing in Rutherford County
District Court. Heard in the Court of Appeals 7 October 2014.
Cerwin Law Firm, P.C., by Brittany N. Waters, for
Plaintiff-Appellant.
Aaron G. Walker, P.A., by Aaron G. Walker, and Roberts &
Stevens, P.A., by Phillip T. Jackson, for Defendant-
Appellee.
DILLON, Judge.
Deborah J. Toney (“Plaintiff”) appeals from an order
dismissing her claim for custody of the adoptive daughter of Lee
Anna Edgerton (“Mother”), her former partner, for lack of
standing. We affirm.
I. Background
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The parties to this custody action were partners for a
number of years, during which Mother adopted a child from
Guatemala. The parties began experiencing difficulties in their
relationship, culminating eventually in Mother obtaining a
domestic violence protective order against Plaintiff and forcing
Plaintiff to leave her home.
In June of 2012, following a hearing, the trial court
entered a temporary consent order awarding primary physical
custody of the child to Mother and granting Plaintiff visitation
privileges.
Two months later, on the date the temporary consent order
expired, Plaintiff arrived at Mother’s home to pick up the
child, only to find that nobody was home. As a result,
Plaintiff filed this action seeking custody of the child.
Mother filed a timely answer.
In October of 2012, following a hearing, the trial court
entered another temporary consent order granting Mother primary
physical custody and allowing Plaintiff visitation pending the
outcome of the trial.
Over the next year, the trial court conducted hearings and
presided over a two-day trial, all of which led to the entry of
a number of orders. Ultimately, however, in October of 2013,
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the court entered an order determining that Plaintiff lacked
standing to proceed in the matter and dismissing her claim for
custody. Plaintiff timely filed written notice of appeal of
several orders, but only argues error arising from the October
2013 order dismissing her claim for lack of standing, so we
review only that order in this appeal.
II. Standard of Review
In custody proceedings, “the trial court’s findings of fact
are conclusive on appeal if there is evidence to support them,
even though the evidence might sustain findings to the
contrary.” Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264,
268 (2003). We review de novo whether the findings support the
conclusions of law. Hall v. Hall, 188 N.C. App. 527, 530, 655
S.E.2d 901, 904 (2008).
III. Analysis
Plaintiff argues that the trial court erred in concluding
that she had not demonstrated by clear, cogent, and convincing
evidence that Mother acted inconsistently with her
constitutionally protected paramount status as legal parent of
her adoptive child. We disagree.
A. Standing
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At the outset, we note, as we did in Mason v. Dwinnell, 190
N.C. App. 209, 660 S.E.2d 58 (2008), “that the factual context
of this case — involving same sex domestic partners — is
immaterial to the proper analysis of the legal issues involved.”
Id. at 211, 660 S.E.2d at 60. A third party has no standing
under the United States Constitution or the North Carolina
Constitution to assert a claim for custody against a legal
parent “unless the evidence establishes that the legal parent
acted in a manner inconsistent with his or her constitutionally-
protected status as a parent.” Estroff v. Chatterjee, 190 N.C.
App. 61, 63-64, 660 S.E.2d 73, 75 (2008). “By looking at both
the legal parent’s conduct and his or her intentions, we ensure
that the situation is not one in which the third party has
assumed a parent-like status on his or her own without that
being the goal of the legal parent.” Id. at 70, 660 S.E.2d at
78-79. Simply put, the question in such cases is this: “Did
the legal parent act inconsistently with her fundamental right
to custody, care, and control of her child and her right to make
decisions concerning the care, custody, and control of that
child?” Mason, 190 N.C. App. at 222, 660 S.E.2d at 67.
Plaintiff contends that this case is analogous to Mason,
where we held that, through the performance of various
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affirmative acts, a constitutionally protected relationship in
the nature of a parent-child relationship had been created
between a child and the former partner of the child’s biological
mother. See 190 N.C. App. at 225-26, 660 S.E.2d at 68-69. In
Mason, the biological mother and her partner raised a child
together, jointly supporting the child and making decisions
regarding the child’s upbringing and executing an agreement in
the third year of the child’s life wherein they stipulated that
the mother’s partner occupied a relationship of de facto
parentage with the child. Id. at 212, 660 S.E.2d at 60-61.
Based on our Supreme Court’s decision in Price v. Howard, 346
N.C. 68, 484 S.E.2d 528 (1997), we identified as the central
issue in the case whether the biological mother, as the legal
parent of the child, both created the family unit of which her
partner claimed to be a part and induced her partner to
participate in that family unit, thereby “allow[ing] that family
unit to flourish in a relationship of love and duty with no
expectations that it would be terminated.” Id. at 225, 660
S.E.2d at 68 (quoting Price, 346 N.C. at 83, 484 S.E.2d at 537)
(emphasis removed). We reasoned that the biological mother had
created such a family unit and induced her partner to
participate in it through various acts, not least of which
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included the execution of the parenting agreement, creating a
constitutionally protected relationship between her partner and
the child by ceding her own paramount status as against her
partner. Id. at 225-26, 660 S.E.2d at 68-69. We concluded that
the biological mother could not unilaterally exclude her then-
former partner from the child’s life after voluntarily allowing
a constitutionally protected relationship between her former
partner and the child to develop even though her former partner
did not possess full rights of legal parentage. Id. at 227-28,
660 S.E.2d at 70.
On the same day we filed our decision in Mason, we also
filed our decision in Estroff, applying the same constitutional
principles to similar, albeit crucially distinct, facts, and
reaching the opposite result. See 190 N.C. App. at 63-64, 660
S.E.2d at 74-75. We find the present case far more closely
analogous to Estroff than Mason. In Estroff, we affirmed the
trial court’s dismissal of a former partner’s action for custody
of children born during her relationship with the children’s
mother for lack of standing. Id. Specifically, we concluded
that there was competent evidence to support the trial court’s
findings establishing that the mother neither voluntarily chose
to create the requisite family unit nor induced her partner to
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participate in it. Id. at 73-74, 660 S.E.2d at 81. In
pertinent part, the trial court based its conclusion on findings
that while the partner “played a unique and special role in the
lives of [the mother’s] children,” she was not a biological
parent, adoptive parent, parent by estoppel, or de facto parent,
never entered an agreement with the mother granting her legal
status as a parent, custodian, or legal guardian, never
discussed entering into such an agreement with the mother, never
filed a friendly lawsuit or otherwise attempted to establish
parental or custodial rights to the children during the
relationship, and furthermore, that the mother “would never have
agreed to bestow on [her partner] or anyone else any parental or
custodial rights with regard to her children.” Id. at 66-67,
660 S.E.2d at 76.
In the present case, the trial court found that Mother
intended the child to be her legal child; that while Plaintiff
was in a relationship with Mother at the time she adopted the
child, Mother intended for Plaintiff’s relationship with the
child to be temporary; that a friendly lawsuit was never filed
to establish Plaintiff’s custodial rights to the child; that
Mother never contacted an attorney about drafting a parenting
agreement to establish Plaintiff’s custodial rights to the
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child; that Mother amended her will to include a clause naming
Plaintiff as the guardian of her child in the event of her death
because she was intimidated by Plaintiff but later removed that
provision without Plaintiff’s knowledge; and finally that these
actions showed that Mother did not intend to form a permanent
relationship between her child and Plaintiff. We believe that
these findings, like the trial court’s findings in Estroff,
establish that Mother neither voluntarily chose to create a
family unit of which Plaintiff claimed to be a part nor induced
Plaintiff to participate in such a family unit. Accordingly,
Plaintiff’s argument that the trial court erred in concluding
that she failed to show by clear, cogent, and convincing
evidence that Mother acted inconsistently with her
constitutionally protected paramount status is overruled.
Plaintiff next argues that the trial court relied
inappropriately on Mother’s intent to create a permanent
relationship between Plaintiff and her child in arriving at the
conclusion that she lacked standing to seek custody of Mother’s
child. Specifically, Plaintiff contends that in focusing solely
on whether Mother intended to create a permanent relationship in
the nature of a parent-child relationship between her child and
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Plaintiff, the court applied the incorrect legal standard. We
disagree.
Plaintiff quotes the following language from our decision
in Estroff in support of her argument:
[T]he court’s focus must be on whether the
legal parent has voluntarily chosen to
create a family unit and to cede to the
third party a sufficiently significant
amount of parental responsibility and
decision-making authority to create a
permanent parent-like relationship with his
or her child.
Id. at 70, 660 S.E.2d at 78. According to Plaintiff, “[t]he
circumstances here are simply summed up in an old English
Proverb[,] ‘actions speak louder than words.’” Plaintiff
conveniently omits the two sentences that follow the above-
quoted passage, wherein we explain:
The parent’s intentions regarding that
relationship are necessarily relevant to
that inquiry. By looking at both the legal
parent’s conduct and his or her intentions,
we ensure that the situation is not one in
which the third party has assumed a parent-
like status on his or her own without that
being the goal of the legal parent.
Id. at 70, 660 S.E.2d at 78-79. Thus, while true that Mother’s
intent was not the only relevant consideration under Price, it
was certainly a relevant consideration to the trial court’s
determination of whether Plaintiff had standing. We note also
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that we rejected essentially the same argument Plaintiff now
makes in Estroff. See id. at 68-69, 660 S.E.2d at 77-78 (“[The
mother’s partner] argues, . . . that Price supports her view
that only manifested intentions are relevant. . . . We disagree
with [this] reading of Price. . . . [B]oth conduct and intent
are relevant.”). Estroff thus cannot bear the weight of
Plaintiff’s assertions.
Plaintiff’s characterization of the trial court’s decision
as based solely on Mother’s intent to form a permanent
relationship between Plaintiff and her child is not even
descriptively accurate. The court found that Mother transported
the child from Guatemala to the United States; that the child
lived in Mother’s home; that Mother adopted the child; that
Mother frequently asked Plaintiff to leave the home and tried to
end their relationship; that after a harrowing episode of
domestic violence, Plaintiff did leave the home after Mother
obtained a domestic violence protective order forcing her to do
so; that Mother amended her will to include a provision granting
Plaintiff custody of her child in the event of her death, but
subsequently amended the will again to remove that provision
without Plaintiff’s knowledge; and that Mother routinely
prepared meals for the child, played with the child, and read to
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the child. These actions all qualified as conduct relevant to
the trial court’s determination of whether Mother acted
inconsistently with her constitutionally paramount status under
Price. See id. at 68-69, 660 S.E.2d at 77-78. We do not
believe that the trial court focused on Mother’s intentions
concerning her child’s relationship with Plaintiff to the
exclusion of her actions. Accordingly, this argument is
overruled.
B. Findings
Plaintiff also contends that certain of the trial court’s
findings were not supported by competent evidence. “Competent
evidence is evidence that a reasonable mind might accept as
adequate to support [a] finding.” City of Asheville v. Aly, ___
N.C. App. ___, ___, 757 S.E.2d 494, 499 (2014). We address the
challenged findings in turn.
In relevant part, finding of fact number four1 states that
Mother began working with an adoption agency to adopt a child
from Guatemala in 2007, and that Mother transported the child
from Guatemala to the United States in 2008. Plaintiff contends
1
As Mother alerted the Court to in her brief, Plaintiff
mistakenly refers to finding of fact number four as finding of
fact number nine. We believe that the issue was properly
preserved for our review despite this error, and will review the
challenged finding using the number from the trial court’s
order.
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that the only evidence related to the finding that Mother began
working with an adoption agency was her testimony that she, and
not Mother, initiated contact with an adoption agency. We
disagree. Mother testified that in 2005 or 2006, she and
Plaintiff encountered a couple who had adopted a child from
Guatemala, prompting her to investigate an international
adoption. She also testified that she informed Plaintiff that
she wanted to be the adoptive parent and further, that Plaintiff
never informed her of a desire to be an adoptive parent.
Plaintiff also asserts that the language in the finding suggests
– without support from the record – that Mother transported the
child from Guatemala by herself. We do not find the language of
the finding impermissibly suggestive in this manner. The
finding merely states that Mother transported the child. Both
parties testified that they were present during the
transportation of the child. We therefore conclude that
competent evidence existed to support the trial court’s finding
as to both Mother’s involvement in working with an adoption
agency and in transporting the child back to the United States.
Plaintiff next challenges finding of fact number five, that
Mother attempted to have children in the early 1990s prior to
her relationship with Plaintiff. However, Mother testified that
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she pursued having children with her then-husband from 1989 to
1991. We therefore conclude that competent evidence existed to
support this finding.
Plaintiff next challenges finding of fact number seven,
regarding her issues with anger management. Plaintiff claims
that there was no evidence of Mother’s concerns about her lack
of anger management. We disagree. The record is replete with
references to Plaintiff’s quick temper and violent behavior.
Specifically, Mother’s account of the events leading up to her
pursuing a domestic violence restraining order against Plaintiff
amply support the trial court’s finding regarding Mother’s
concerns about Plaintiff’s inability to manage her anger. We
therefore conclude that competent evidence existed to support
this finding.
Plaintiff also challenges the portion of finding of fact
number seven which states, in relevant part, that “[Mother] . .
. intended the relationship between the Plaintiff and the child
to be temporary.” However, Plaintiff concedes that Mother
testified that she did not intend to form a permanent
relationship between her child and Plaintiff. As the trier of
fact, the trial court was entitled to credit Mother’s testimony
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regarding her intent. We therefore conclude that competent
evidence supports this finding.
Plaintiff next challenges the language in finding of fact
number eight, that she frequently passed out after consuming
excess amounts of alcohol. Plaintiff claims that the only
evidence of her passing out frequently due to excessive alcohol
consumption was Mother’s testimony. Though Mother’s testimony
is sufficient to support this finding, we note that another
witness testified about an occasion where Plaintiff, in the
presence of the child for parts of the day, consumed four Bloody
Marys in the morning immediately after waking up, continued to
drink beer throughout the day, and then passed out in the
evening after drinking coffee mixed with liqueur while “barely
able to sit up” in a chair in the living room. Plaintiff also
takes issue with the court’s use of the word “frequently” in the
finding. However, Mother’s testimony regarding numerous
specific instances of Plaintiff drinking heavily and then
falling asleep, both at home as well as in public places like
restaurants, describes behavior more than sufficiently
“frequent” to warrant characterization by the court as such.
Plaintiff also challenges finding of fact number eleven,
where the court found that Mother had asked Plaintiff to leave
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the home and communicated her desire to end the relationship
frequently over a four-year period, claiming again that the
characterization of Mother’s communication as “frequent” was not
supported by the record. However, this finding is supported by
Mother’s testimony. Specifically, Mother testified that she
initiated between fifteen and twenty conversations with
Plaintiff about moving out of her home dating back to 2008 and
2009. According to Mother, Plaintiff would behave the next day
as though these conversations never took place, despite
indicating her amenability at the time Mother initiated the
conversations. Mother further testified that the issue was
discussed frequently during the year of 2009. We therefore
conclude that competent evidence supported this finding.
Plaintiff next challenges finding of fact number twelve,
claiming that no competent evidence existed that Mother provided
for Plaintiff’s appointment as guardian of the child in her will
because she was intimidated by Plaintiff into doing so.
However, Mother testified that she felt tremendous pressure to
include the guardianship clause in her will, and that Plaintiff
was very adamant both that she do it and about the manner in
which she did it. We believe this evidence supports the
finding.
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Plaintiff finally challenges the portion of finding of fact
number fourteen, where the court found that Mother was generally
unaware of Plaintiff’s representations of her relationship with
the child to third parties, arguing that no evidence supported
this finding because Mother did not testify about whether she
knew how Plaintiff represented her relationship with the child
to third parties. Plaintiff cites Mother’s apparent
acquiescence to her representations to third parties regarding
her relationship with the child as contrary evidence to the
finding that Mother was unaware of those representations.
However, Mother testified that these representations were made
without her consent. A reasonable mind might accept Mother’s
testimony that such representations were made without her
consent as adequate to support the trial court’s finding that
she was generally unaware of how Plaintiff represented her
relationship with the child to third parties. Accordingly, we
conclude that competent evidence supported this finding.
IV. Conclusion
The trial court correctly concluded based on findings
supported by competent evidence that Plaintiff lacked standing
to seek custody of Mother’s adoptive daughter.
AFFIRMED.
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Judge HUNTER, Robert C. and Judge DAVIS concur.
Report per Rule 30(e).