IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-484
Filed: 19 March 2019
Wake County, No. 08 CVD 14141
APRIL J. HUML, Plaintiff,
v.
KEVIN C. HUML, Defendant.
Appeal by defendant from order entered on or about 20 November 2017 by
Judge Lori Christian in District Court, Wake County. Heard in the Court of Appeals
31 October 2018.
Marshall & Taylor, PLLC, by Travis R. Taylor, for plaintiff-appellee.
Schiller & Schiller, PLLC, by Jaime L. Williams, for defendant-appellant.
STROUD, Judge.
Defendant-father appeals from a permanent custody order which grants sole
custody of the parties’ daughter to plaintiff-mother and eliminates his visitation
privileges. The trial court made extensive findings of fact regarding the many
reasons it determined in its discretion that continuing visitation is not in the child’s
best interest. The order on appeal is the last in a series of orders in which the trial
court used every possible method to help and encourage Father to address his mental
health and domestic violence problems and provided visitation with various
conditions to protect the child. All of these attempts have failed because Father has
consistently refused to take advantage of any opportunity ordered by the trial court
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Opinion of the Court
to allow Father to resume visitation. Father has repeatedly failed to participate in
counseling as ordered, to take medication as prescribed, to comply with the trial
court’s orders regarding public visitation and with the rules governing supervised
visitation, and to protect the child from exposure to domestic violence in his
relationship with his current wife. We affirm.
I. Background
Mother and Father were married in February of 2006 and are the parents of
Susan,1 who was born in September of 2006. The parties separated in 2008 and later
divorced. Since the parties separated in 2008, the trial court entered several orders
regarding custody and visitation. The trial court entered a temporary custody order
in January of 2009, when Susan was two years old. The trial court found that Susan
was having difficulty transitioning between the parties’ homes and noted that Mother
had consulted a child psychologist, but Father had not participated. The trial court
found Father had been “overly emotional” when dropping Susan off at day care,
making it difficult for her to transition. In addition, Susan’s regular pediatrician had
refused to see her because of an incident in the office with Father. Susan had some
significant chronic health problems, so continuity of her medical care was particularly
important. The trial court also found that Father had been “unable to appropriately
control his anger and other emotions” in front of Susan. The temporary order
1 We will use a pseudonym to protect the privacy of the minor child.
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required Father to have a psychological evaluation with Dr. Reid Whiteside and to
comply with any recommendations, including taking medication as prescribed.
After the psychological evaluation was done, the trial court entered a
permanent custody order by consent on 5 October 2009 which gave Mother and
Father joint legal custody of Susan; Mother had primary physical custody, and Father
had about six overnight visits in every two week period. Father was required to follow
Dr. Whiteside’s recommendations, including treatment with his personal therapist
for at least two years and thereafter unless he was released from therapy. Father
was ordered to continue to take his medication as prescribed and to continue to
participate in family therapy. The consent order also provided for appointment of a
parenting coordinator who was also a psychologist or psychiatrist to monitor any
psychological issues relating to the parties’ co-parenting; Dr. Alan Bloom was
appointed.
On 31 July 2015, Mother filed a motion to modify custody based upon a
substantial change in circumstances; she alleged, in part, that Father had willfully
ignored the requirements of the consent order; refused to communicate with her;
interfered with her custodial time; failed to provide proper care and supervision of
the child; slept in the same bed with the child on a regular basis; failed to follow
instructions from the child’s physicians and dietician; and that he had been arrested
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for assault on a female on 1 June 2015. Mother also requested appointment of
another parenting coordinator as Dr. Bloom’s term had expired.
Before the motion for modification was heard, on 4 October 2015, Father’s
girlfriend, whom he later married, Karen Huml, contacted Mother and told her she
“was in fear of” Father. Karen did not want Father to know she had contacted
Mother, and she informed Mother of domestic violence in Father’s home while Susan
was present. On 7 October 2015, Mother filed a motion for emergency custody based
upon the information that Susan had been uncontrollably crying when exposed to
domestic violence in Father’s home. The trial court entered an emergency custody
order and set a return hearing for 12 October 2015. The emergency order limited
Father’s visitation to three hours, two days a week, in a public place such as a
museum or mall, until a return hearing scheduled for 12 October 2015. Mother
subpoenaed Karen for the 12 October 2015 hearing, and both she and Father
requested a continuance, so the return hearing was set for 23 October 2015. On 23
October, Father did not appear for the hearing on time, and the trial court had
resolved the matter before he arrived. The trial court entered a temporary order with
the same visitation as in the emergency order.
On Thanksgiving night, 2015, Karen again contacted Mother “with photo
attachments and messages that [Father] had injured” her. A few days later, Mother
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asked Father about the incident; he did not deny it, but Karen then said that Father
had not injured her.
Father continued to bring Karen to his public visits with Susan, despite the
domestic violence between them. On 10 December 2015, Father and Karen got
married, but Mother did not learn of the marriage until she “received an anonymous
email” on Christmas Eve. Mother allowed Susan to go to Father’s home to open gifts
on 26 December 2015. That night, back at her Mother’s home, Susan wet the bed,
although she had not had this problem in several years.
In January of 2016, Father “‘weaned’ himself off his medication” because he
felt “‘it takes away my life-I’ll take the little ups and downs.’” On 3 April 2016, Father
informed Mother that Karen had texted him “photographs of her forearms sliced up.”
Father called the police, and they discovered Karen was intoxicated. Karen made
claims to the police that Father “was sexually inappropriate while in the presence of”
Susan; she was then placed under a mental commitment. Hearing on Mother’s
pending motion to modify custody was scheduled for the next day, 4 April 2016.
At calendar call on 4 April 2016, Father informed the trial court he would be
seeking a domestic violence protective order (“DVPO”) against Karen. With the
consent of the parties, the trial court entered a temporary custody consent order; this
order appointed Dr. Cynthia Sortisio as a reunification therapist for Father and
Susan; appointed a new parenting coordinator, Helen O’Shaunessy; and set up a
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three-tiered plan for gradually increasing Father’s visitation. Father was also
required to have another psychological evaluation; to comply with all
recommendations, including any prescribed medication; and to continue attending
and to complete the DOSE domestic violence program.2
Father did not comply with the temporary custody consent order and never
moved past the first tier of visitation, so his visits continued to be public. Further,
Father did not timely pay the parenting coordinator; failed to engage in any of the
required therapy for over a year; and did not timely complete the parenting classes.
Father also did not obtain a DVPO against Karen, but instead allowed her to
“facetime” with Susan from his car during his public visits. In January 2017, Father
completed the psychological evaluation ordered in April 2016.
In August of 2016, Mother hired an investigator because she was concerned
that Father was not complying with the terms of the order regarding public visitation.
The investigator confirmed that Father was removing Susan from the public locations
where he was supposed to be visiting with Susan. Mother informed the reunification
therapist and parenting coordinator, who notified Father this was not appropriate.
On 8 September 2016, Father was arrested again for assault on a female,
against Karen. Karen sent the parenting coordinator voice recordings she claimed
2 DOSE is the acronym for “Developing Opportunities for a Safe Environment,” a domestic violence
intervention and education program.
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were of Father “making threats to kill” Mother. Karen also sent text messages she
claimed were from Father threatening Judge Denning, the judge who entered the
temporary custody consent order. The parenting coordinator informed the police of
the threats, and they advised Mother to leave home and stay at an undisclosed
location, which she and Susan did for about a week. On 21 November 2016, Mother
also got an ex parte DVPO which extended into a permanent DVPO by consent. Judge
Denning recused because of the threats, and a new family court judge was assigned.
Because of safety concerns, neither the parenting coordinator nor Susan’s therapist
would meet with Father alone.
Because of the DVPO, Father could no longer exercise his public visits, and on
19 May 2017, Father began supervised visitation with Susan at Time Together. After
Susan visited with Father, she “became withdrawn, cried uncontrollably, began to
experience stomach pains, showed signed of anxiety and stress,” to the extent that
she missed school on 22 May 2017. At the June visit at Time Together, staff had to
redirect Father for whispering to Susan. Susan again experienced extreme emotional
distress after this visit. On 15 June 2017, Mother filed a motion to suspend Father’s
visitation.
The hearing on modification of custody was held on 19 July and 20 July 2017,
and on 17 November of 2017, the trial court entered an “ORDER MODIFYING
PERMANENT CUSTODY AND CHILD SUPPORT ORDER[;]” the order at issue on
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appeal. The trial court made extensive and detailed findings of fact, just a few of
which we have summarized above. The trial court concluded there had been many
substantial changes in circumstances affecting the best interest of Susan; the trial
court found these circumstances and detrimental changes in detail. Regarding
violence the trial court found:
c. As a result of Defendant’s actions since the entry of
the prior Permanent Custody Order the Plaintiff is
terrified of the Defendant and she has good cause to
be afraid of the Defendant.
d. Since the entry of the prior Permanent Custody
Order, at least on four separate occasions the
Defendant made threatening statements about the
Plaintiff which included statements regarding a
murder/suicide, blowing her head wide open,
snapping her neck and putting a strangle around her
neck. These statements were laced with profanity
and made explicit comments about having to take
DOSE classes for 26 weeks, showing that Defendant
took no responsibility for his own actions and
emphasizing that Defendant has anger issues that
he has never adequately addressed even after
completing his DOSE classes in 2016.
....
f. Defendant took a deferral plea for Assault on a
Female related to [Karen] Huml in Wake County file
no. 15 CR 212182 that was subsequently expunged,
and as part of that deferral plea the Defendant was
required to complete a DOSE program. The
Defendant’s anger and rage as heard by this Court
in the voice recordings of the Defendant are
disturbing; and Defendant’s anger issues and
refusal to appropriately address his anger have had
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a detrimental impact on not only the minor child to
not feel safe around the Defendant but the Plaintiff,
her parents, Plaintiff’s friends, Plaintiff’s co-workers
and various professionals involved with this family.
....
s. Since the entry of the prior Permanent Custody
Order, and starting around December 2014,
Defendant was not transparent or forthcoming
regarding the well-being of the minor child when she
was in his care, including, but limited [(sic)] to
failing to inform the Plaintiff of the domestic
violence in his home while their child was present,
misrepresenting his location during public
visitations, denying that he was still in a
relationship with [Karen] Huml and such other
matters set forth in these findings of fact.
Defendant’s actions related to these issues have had
a detrimental impact on the minor child.
t. The Defendant has shown a consistent pattern of
making poor parenting decisions including those
referenced in the above findings of fact.
u. Defendant downplays and ignores the minor child’s
anxiety and/or stress. Defendant has been angry
around the minor child and the child has
experienced significant trauma related to the
Defendant’s actions.
v. Since the entry of the prior Permanent Custody
Order and starting around December 2014
Defendant has exhibited inconsistent, unstable, and
erratic behavior while providing care for the minor
child.
The trial court also determined that Father “should not have any further
contact with” Susan as a “direct result of his actions and his failure to take steps that
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could have improved his relationship with his daughter.” The trial court also set out
detailed findings regarding why Father should not have any custodial rights or
visitation with Susan:
a. The April Temporary Order entered in 2016 gave the
Defendant liberal visitation with the minor child
and established a three tier visitation schedule.
Defendant failed to take advantage of this
opportunity to repair and rehabilitate his
relationship with his daughter. There was a
reunification therapist that was available to the
Defendant for over a full calendar year (April 2016
to July 2017) and other than two initial phone calls
in June 2016 and one meeting in July 2017 the
Defendant did absolutely nothing to work with the
reunification therapist to improve his relationship
with his daughter. Defendant first met together with
the reunification therapist and the minor child’s
therapist on July 17, 2017 two days before this
hearing.
b. The communication that the Defendant did have
with the child’s therapist was not productive.
Defendant ignored recommendations that
Defendant write a letter taking responsibility for
everything in December 2016 in response to
Defendant’s attempt to send Christmas
cards/correspondence to the minor child. In
December 2016, Dr. Meisburger advised Defendant
that he would need to send her written
correspondence via postal mail and await her reply
the same. After December 2016 until July 2017,
there was no further contact between Dr.
Meisburger and Defendant. Defendant failed to
grasp that the recommendations from the child’s
therapist were based [on] the needs of the minor
child. Defendant has continuously put his needs
above the minor child’s needs without concern for
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the detrimental impact his own actions had on the
minor child.
c. Even after the DVPO was entered in November 2016
the Defendant had the ability to reach out to the
reunification therapist and the child’s therapist to
maintain a role in [Susan’s] life. Defendant made
the choice to do nothing.
d. Since July 2016 until his deposition in June 2017,
Defendant paid no child support to the Plaintiff
despite having an agreement to make payments to
her. Defendant made a $400 payment in June 2017.
Defendant ignored all medical bills, therapy bills,
and healthcare related items for the minor child
from July 2016 through the date of this hearing.
Defendant was not concerned about anyone’s well-
being but his own.
e. Defendant’s threats against the Plaintiff put the
Plaintiff in a real fear of her life. Defendant’s threats
against the Plaintiff resulted in the Plaintiff and
minor child having to go in hiding at hotels for a
period of time. The threats from Defendant against
Plaintiff resulted in Plaintiff’s employer requiring
her to work from home because of safety concerns at
her employer’s office. She was not allowed to return
to work at her office from September 2016 through
the date of this hearing. These threats by Defendant
also resulted in the minor child being restricted to
be supervised by an adult while outside at her home.
The minor child had to be advised of how to respond
if Defendant appeared at her home at her mother’s
house, or school or any public location.
f. Under the DVPO the Defendant’s visitation with the
minor child was to be supervised at Time Together.
Once Defendant started supervised visits at Time
Together, Defendant’s supervised visitation at Time
Together had to stop as the result of the minor
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child’s extremely negative reaction and behavior
after these visits.
g. Defendant violated the supervised visitation rules
that are imposed by Time Together. During his
second visit Defendant whispered to the minor child
and had to be redirected by the staff at Time
Together. Defendant objected to Time Together
visits because it was not “natural” and didn’t allow
him to be himself with his daughter.
This Court is not able to rule out that the Defendant
has had inappropriate sexual contact with the minor
child or rule out that Defendant has engaged
[in] sexualized behavior in the minor child’s
presence.
h. Defendant has willfully ignored the Court Orders in
his case regarding public visitation with the minor
child. Plaintiff had to hire a private investigator to
follow the Defendant during his public visitations
because of Plaintiff's concerns that the Defendant
was not following the requirement that Defendant’s
visit occur in a public location as most recently set
forth in this Court’s April Temporary Order. The
private investigator observed the Defendant
remov[ing] the minor child from specific public
locations where he told the Plaintiff that he would
be exercising his public visitation with the minor
child. The Plaintiff’s private investigator, Michael
Flowers with Cat’s Eye Investigations, found that
the Defendant removed the minor child from these
locations. On one such occasion as soon as Plaintiff
dropped off the minor child for a visit the Defendant
took the minor child and immediately exited the
location through a side door and walked through an
adjacent building to ultimately take the minor child
to a[] parking garage. During multiple visits, once
the Defendant entered in the parking garage, the
Defendant would get into rental car or truck.
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Defendant would have already backed the rental car
into a parking space[]. By removing the child from
his public visitation this allowed the Defendant to be
alone with the minor child. The private investigator
could not determine that Defendant was facetiming,
only that the minor child was looking at an iPad or
mobile phone. This also allowed Defendant to have
the minor child facetime with [Karen] Huml--
another violation of the April Temporary Order. It is
concerning that Defendant was removing the minor
child from public and taking her to locations where
she was isolated and sitting in the back seat of a
rental car with the Defendant. Defendant’s
explanation about backing into parking spaces,
using a rental car instead of his personal vehicle,
and insisting that Defendant and the minor child
had to eat food that he prepared at home in the back
seat of a vehicle rather than at the public location
was not credible. The private investigator also
observed an angry outburst by the Defendant while
he was with the minor child at the IMAX movie
theater in Raleigh which was directed toward an
employee working at the IMAX theater. On another
occasion, the private investigator observed the
minor child crying while she was walking with the
Defendant in public.
i. Based on the foregoing findings of fact the
Defendant cannot put the needs of the minor child
first. Defendant blames everyone but himself.
Defendant does not take responsibility for his
actions. Defendant is very smart. Defendant took
steps during his public visits with the minor child to
do what he wanted to do while ignoring restrictions
that were in place to protect the minor child. It is
impossible to believe that Defendant did not know
that his actions would have a detrimental impact on
the minor child.
j. It is in the child’s best interests and welfare of the
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minor child that she have no further contact with the
Defendant. The minor child’s anxiety and stress
level decreases when the child has no contact with
Defendant. The minor child’s physical symptoms
such as stomach pains also are eliminated when she
does not have contact with Defendant. The minor
child performed exceptionally well in school,
including being accepted to the Duke University
TIPS program.
k. The Plaintiff and minor child have reasons to fear
the Defendant.
l. For almost two years the Defendant has failed to
take opportunities to change his behavior and to be
a positive influence in his daughter’s life. Defendant
has failed to take the opportunity to exercise
visitations with his child, and when he did take
those visits he repeatedly violated court orders
concerning the restrictions placed on him to
including, but not limited to, removing the minor
child from public visits, exposing the child to [Karen]
Huml, and failing to follow the clear rules
established at Time Together.
m. As the direct result of his actions, confrontational
attitude and failure to act in a manner consistent
with his parental responsibilities to provide support,
love, and guidance, the Defendant has had a
detrimental influence on his daughter since at least
July 2015.
The trial court concluded:
4. There has been a substantial change in
circumstances warranting a modification of custody
as set forth herein.
5. Plaintiff is a fit and proper person to have sole legal
and exclusive physical custody of the minor child as
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set forth herein.
6. Defendant is a not a fit and proper person to have
any visitation or contact with the minor child as set
forth herein.
7. This Order is in the best interests and welfare of the
minor child.
The trial court decreed:
2. Defendant shall not have any custodial time with
the minor child.
3. Defendant shall have no contact with the minor
child. Defendant shall not be allowed to speak with
the minor child. Defendant shall not be allowed to
communicate to the minor child in any format,
including, but not limited to, no letters, no email, no
text messaging, no face-to-face communication, and
no telephone calls.
4. Defendant shall not have any access to the minor
child. Defendant shall not have the ability to obtain
any information concerning the minor child
including, but not limited to, requesting information
through third party care givers, teachers, medical
professionals, instructors or coaches.
5. Defendant shall have no contact with the Plaintiff.
Defendant shall not be allowed to speak with the
Plaintiff. Defendant shall not be allowed to
communicate with the Plaintiff in any format,
including, but not limited to, no letters, no email, no
text messaging, no face-to-face communication, and
no telephone calls.
Father timely filed notice of appeal from this order.
II. Standard of Review
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In Shipman v. Shipman, our Supreme Court set forth the requirements for
modification of a custody order, and this Court’s standard of review of an order
modifying custody. See Shipman v. Shipman, 357 N.C. 471, 473-75, 586 S.E.2d 250,
253-54 (2003).
It is well established in this jurisdiction that a trial
court may order a modification of an existing child custody
order between two natural parents if the party moving for
modification shows that a substantial change of
circumstances affecting the welfare of the child warrants a
change in custody. The party seeking to modify a custody
order need not allege that the change in circumstances had
an adverse effect on the child. While allegations concerning
adversity are acceptable factors for the trial court to
consider and will support modification, a showing of a
change in circumstances that is, or is likely to be, beneficial
to the child may also warrant a change in custody.
As in most child custody proceedings, a trial court’s
principal objective is to measure whether a change in
custody will serve to promote the child’s best interests.
Therefore, if the trial court does indeed determine that a
substantial change in circumstances affects the welfare of
the child, it may only modify the existing custody order if
it further concludes that a change in custody is in the
child’s best interests.
The trial court’s examination of whether to modify
an existing child custody order is twofold. The trial court
must determine whether there was a change in
circumstances and then must examine whether such a
change affected the minor child. If the trial court concludes
either that a substantial change has not occurred or that a
substantial change did occur but that it did not affect the
minor child’s welfare, the court’s examination ends, and no
modification can be ordered. If, however, the trial court
determines that there has been a substantial change in
circumstances and that the change affected the welfare of
the child, the court must then examine whether a change
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Opinion of the Court
in custody is in the child’s best interests. If the trial court
concludes that modification is in the child’s best interests,
only then may the court order a modification of the original
custody order.
When reviewing a trial court’s decision to grant or
deny a motion for the modification of an existing child
custody order, the appellate courts must examine the trial
court’s findings of fact to determine whether they are
supported by substantial evidence. Substantial evidence is
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Our trial courts are vested with broad discretion in
child custody matters. This discretion is based upon the
trial courts’ opportunity to see the parties; to hear the
witnesses; and to detect tenors, tones, and flavors that are
lost in the bare printed record read months later by
appellate judges. Accordingly, should we conclude that
there is substantial evidence in the record to support the
trial court’s findings of fact, such findings are conclusive on
appeal, even if record evidence might sustain findings to
the contrary.
In addition to evaluating whether a trial court’s
findings of fact are supported by substantial evidence, this
Court must determine if the trial court’s factual findings
support its conclusions of law. With regard to the trial
court’s conclusions of law, our case law indicates that the
trial court must determine whether there has been a
substantial change in circumstances and whether that
change affected the minor child. Upon concluding that such
a change affects the child’s welfare, the trial court must
then decide whether a modification of custody was in the
child’s best interests. If we determine that the trial court
has properly concluded that the facts show that a
substantial change of circumstances has affected the
welfare of the minor child and that modification was in the
child’s best interests, we will defer to the trial court’s
judgment and not disturb its decision to modify an existing
custody agreement.
Id. (citations, quotation marks, and brackets omitted).
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III. Issues and Analysis
Father first argues “the trial court erred in failing to make sufficient factual
findings regarding the best interest of the child[,]” (original in all caps), but Father’s
approximately one-page argument on this issue does not address best interests at
all.3 Instead, Father contends two portions of findings of fact regarding possible
inappropriate sexual contact between Father and Susan are not supported by the
evidence.
A. Findings of Fact
The two challenged portions of the findings are, “Plaintiff was alerted to the
fact that Defendant was exhibiting ‘grooming’ behaviors toward his daughter” and
“[t]his Court is not able to rule out that the Defendant has had inappropriate sexual
contact with the minor child or rule out that Defendant has engaged in sexualized
behavior in the minor child’s presence.”
But the trial court did not find that any inappropriate sexual contact or
behavior actually happened. Also, while Father claims that the “grooming” finding
is “a bare recitation of Appellee’s testimony” it is more properly characterized as the
trial court’s summary of Mother’s extensive testimony regarding her concerns about
Father’s actions toward Susan. And Father contends the “inappropriate sexual
3 Father attempts to raise other issues in his reply brief, but he has waived these arguments. See
State v. Triplett, ___ N.C. App. ___, ___, 810 S.E.2d 404, 407–08 (2018) (“Defendant may not use his
reply brief to make new arguments on appeal. A reply brief is not an avenue to correct the deficiencies
contained in the original brief.” (citation, quotation marks, and brackets omitted)).
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contact” finding “fails to acknowledge the conflicting testimony of the therapist or the
CPS investigation,” but the finding actually notes the conflict by stating that the trial
court “cannot rule out” the behavior. In other words, the trial court was concerned
about the possibility of inappropriate sexual behavior but the evidence was not
sufficient for the trial court to make a finding it had occurred or had not occurred.
Furthermore, even if these two portions of findings were omitted, the trial
court’s conclusions of law would still be supported by the remaining abundant and
detailed findings of fact. Thus, this argument is overruled. But Father challenges a
few other findings of fact, and his challenge is based only upon the admission of the
recordings of phone conversations, so we will next address that issue.
B. Admission of Recordings
Defendant argues that “[t]he trial court erred in admitting the recorded
conversations submitted as Plaintiff-Appellee’s exhibits #1-4 as the recordings were
insufficiently authenticated and the admission of the evidence was prejudicial to
Appellant.” The recordings were mentioned many times during the testimony of
witnesses. Dr. Diane Meisburger, Susan’s therapist, testified about her reasons for
concern about Susan’s safety; one reason for her concern was Father’s statements in
the recordings threatening to kill Mother and his cursing about being required to go
to an anger management program. At this point, the recordings themselves were not
played or introduced but were discussed only as part of the information Dr.
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Meisburger had considered. Father’s attorney objected, “We haven’t heard this
recording. Again, we are talking about something that has not been entered into
evidence, hasn’t been offered. There is no foundation. I don’t think it is appropriate
for her to speak to it.” Mother’s attorney responded that Father’s attorney had
“opened the door” for it when she asked about the basis for Dr. Meisburger’s
testimony about concern for Susan’s safety. The trial court allowed this line of
questioning without further objection.
Later in the trial, other witnesses also testified about hearing the recordings
and their responses to the recordings; Father did not object. For example, Mother
first learned about the recordings when the parenting coordinator was notified by
Karen that Father “had threatened to kill [Mother] three different” ways. Based upon
these threats, Mother contacted the police and “went into hiding,” staying out of town
at a hotel in an undisclosed location. Mother actually heard the recordings a few days
later at her attorney’s office. Based upon these threats, Mother filed for a Domestic
Violence Protective Order on 14 September 2016. Mother had also learned that
Father was arrested for assault on a female involving Karen on 8 September 2016;
this was his second arrest for assaulting Karen.
Mother testified that she could recognize the voice on the recordings as Father.
Mother’s counsel then presented the recordings themselves as exhibits and moved for
admission into evidence, noting that “Mr. Huml has heard this. He has heard the
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recordings. Any authentication issue, if he is saying it is not him, then he can testify
to that, but she is able to ident – authenticate his voice and identify it.” Father’s
counsel did not dispute she had heard the recordings and did not raise any further
question regarding authentication or any other objection. The recordings were then
played, and Mother testified about each one.
Father has waived his argument regarding admission of the recordings as he
did not object to the admission of any of the recordings.
In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. App. P. 10(a)(1); see Hoover v. Hoover, ___ N.C. App. ___, ___, 788 S.E.2d 615,
618, disc. review denied, 369 N.C. 187, 794 S.E.2d 519 (2016) (“As a general rule, the
failure to raise an alleged error in the trial court waives the right to raise it for the
first time on appeal.” (citation and quotation marks omitted)). Father does not argue
that the findings of fact based upon the recordings are not supported by that evidence.
Therefore, the trial court did not err in allowing the recordings to be admitted as
evidence, and all of the trial court’s findings of fact were supported by the evidence.
This argument is without merit.
C. Denial of Contact with the Child
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Father next contends “the trial court erred in denying [him] access to any
contact with or information concerning” Susan. (Original in all caps.) Father argues
that he “has been barred from access to any information which would allow him to
seek modification of the Order in the future.” Specifically, Father claims these
paragraphs of the decree “remove[] all of [Father’s] remaining parental rights with
respect to access to any information concerning” Susan:
2. Defendant shall not have any custodial time with
the minor child.
3. Defendant shall have no contact with the minor
child. Defendant shall not be allowed to speak with
the minor child. Defendant shall not be allowed to
communicate to the minor child in any format,
including, but not limited to, no letters, no email, no
text messaging, no face-to-face communication, and
no telephone calls.
4. Defendant shall not have any access to the minor
child. Defendant shall not have the ability to obtain
any information concerning the minor child
including, but not limited to, requesting information
through third party care givers, teachers, medical
professionals, instructors or coaches.
5. Defendant shall have no contact with the Plaintiff.
Defendant shall not be allowed to speak with the
Plaintiff. Defendant shall not be allowed to
communicate with the Plaintiff in any format,
including, but not limited to, no letters, no email, no
text messaging, no face-to-face communication, and
no telephone calls.
....
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11. Should the Plaintiff desire to relocate with the minor
child, she shall not be required to provide any
information to the Defendant. Plaintiff shall be
allowed to pursue any additional privacy protections
as allowed for victims of domestic violence.
Father also argues that the order is “the functional equivalent of the termination of
his parental rights.” Father cites only “Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d
898, 900 (1998) . . . . and N.C.G. S. § 50-13.7(a)” in support of his argument, though
it is not entirely clear how they relate to his argument; Father seems to be contending
that without access to information about Susan he would never be able to seek
modification of custody, so his parental rights have been effectively terminated.
We first note that after briefs in this case were filed and the case was heard,
this Court issued an opinion, Routten v. Routten, ___ N.C. App. ___, 822 S.E.2d 436
(2018) (COA17-1360), which appears to establish a different standard for denial of
visitation to a parent than prescribed by well-established North Carolina Supreme
Court and Court of Appeals precedent.4 See, e.g., Owenby v. Young, 357 N.C. 142, 579
S.E.2d 264 (2003); Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001); Price v.
Howard, 346 N.C. 68, 484 S.E.2d 528 (1997); Petersen v. Rogers, 337 N.C. 397, 445
S.E.2d 901 (1994). Throughout the opinion and in its conclusion, Routten relies on
Owenby, see Routten N.C. App. at ___, 822 S.E.2d at ___, but fails to note that Owenby
4 There was a dissent in Routten, and the case was appealed to the North Carolina Supreme Court;
that appeal is still pending.
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Opinion of the Court
involved a dispute between a parent and a non-parent third party, and that the
Supreme Court explicitly stated that “the protected right is irrelevant in a custody
proceeding between two natural parents, whether biological or adoptive, or between
two parties who are not natural parents. In such instances, the trial court must
determine custody using the best interest of the child test.” Owenby, 357 N.C. at 142-
45, 579 S.E.2d at 265-67 (emphasis added) (citation and quotation marks omitted).
Other Supreme Court cases cited by Routten, see generally Routten, ___ N.C. App.
___, 822 S.E.2d 436, unlike Routten itself, also distinguish between the standards
applicable to custody disputes between two parents (or two non-parents) and a parent
versus a non-parent. See Adams, 354 N.C. at 58-61, 550 S.E.2d at 500-02 (involving
a custody dispute between parents and grandparents and providing that “[i]n a
custody proceeding between two natural parents (including biological or adoptive
parents), or between two parties who are not natural parents, the trial court must
determine custody based on the best interest of the child test. Price, however, involved
a custody dispute between a natural parent and a third party who is not a natural
parent. After acknowledging the Petersen presumption—that natural parents have a
constitutionally protected, paramount right to custody of their children—we
conducted a due-process analysis in which the parent’s well-established paramount
interest in the custody and care of the child is balanced against the State’s well-
established interest in protecting the welfare of children”) (emphasis added) (citations
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and quotation marks omitted)); see also Price, 346 N.C. at 71-72, 484 S.E.2d at 529-
30 (involving a custody dispute between a parent and a non-parent and noting, “[t]he
General Assembly has prescribed the standard to be applied in a custody proceeding
in North Carolina in N.C.G.S. § 50–13.2, which provides that an order for custody of
a minor child entered pursuant to this section shall award the custody of such child
to such person, agency, organization or institution as will best promote the interest
and welfare of the child. Therefore, in a custody dispute between two natural parents
(we intend this phrase to include both biological and adoptive parents) or between two
parties who are not natural parents, this best interest of the child test must be applied.
The case now before us, however, is between a natural parent and a third party who is
not a natural parent”) (emphasis added) (citation and quotation marks omitted);
Petersen, 337 N.C. at 399-404, 445 S.E.2d at 902-05 (involving a custody dispute
between adoptive parents and natural parents after adoption was declared void and
stating, “[f]urther, plaintiffs argue that as to parents’ custodial rights, our law
recognizes no more than a higher evidentiary standard which must apply in custody
disputes between parents and those who are not natural parents; but the welfare of
the child is paramount to all common law preferential rights of the parents. In light
of Flores, Stanley, and the principles enunciated in Jolly and Hughes, we explicitly
reject these arguments. We hold that absent a finding that parents (i) are unfit or (ii)
have neglected the welfare of their children, the constitutionally-protected
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Opinion of the Court
paramount right of parents to custody, care, and control of their children must
prevail. Language to the contrary in Best v. Best, 81 N.C. App. at 342, 344 S.E.2d at
367, is hereby expressly disavowed.” (quotation marks omitted)).
Further, recent publication of Routten exacerbates the quandary presented by
In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), as noted by the dissent in
Routten:
At first glance, this approach might seem appropriate.
After all, In re Civil Penalty tells us that one panel cannot
overrule another on the same issue. If it appears a second
panel did precisely that by refusing to follow the precedent
set by the first panel, should the third panel faced with the
issue not ignore the second and follow the first? But, what
if a fourth panel comes along and concludes that the second
panel properly distinguished or limited the first panel?
That fourth panel could refuse to follow the third panel on
the ground that it improperly overruled the second.
Routten, ___ N.C. App. at ___, 822 S.E.2d at 449 (Inman, J., dissenting) (citation
omitted).5 “Where a panel of the Court of Appeals has decided the same issue, albeit
in a different case, a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. at 384,
379 S.E.2d at 37. The dilemma of In Re Civil penalty arises when panels of this Court
have decided the same issue two different ways, since we are theoretically bound by
two opposing precedents or lines of precedent. And the Court may have a double
5 Routten includes an extensive discussion of In Re Civil Penalty due to the conflict in prior cases
issued by this Court. See Routten, ___ N.C. App. at ___, 822 S.E.2d at 444-47. Fortunately, the North
Carolina Supreme Court now has the opportunity to resolve this conflict in the appeal of Routten.
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Opinion of the Court
dilemma where a prior panel of this Court has addressed not only the underlying
issue but also the effect of In Re Civil Penalty on the same issue in different ways.
See Routten, ___ N.C. App. at ___, 822 S.E.2d at 449 (Berger, J., concurring) (“As the
case before us here demonstrates, this Court can be trapped in a chaotic loop as
different panels disagree, not only on the interpretation of the law, but also on what
law appropriately controls the issue.”). We have that double dilemma here, since this
Court addressed the same issue and application of In re Civil Penalty in Respess, see
Respess v. Respess, 232 N.C. App. 611, 754 S.E.2d 691 (2014), coming to one
conclusion in 2014, and in Routten, coming to the opposite conclusion, in 2018. See
Routten, ___ N.C. App. ___, 822 S.E.2d 436.
Yet we must resolve this double dilemma, and we conclude Respess is the
precedent which must be followed. Where there is a conflict in cases issued by this
Court addressing an issue, we are bound to follow the “earliest relevant opinion” to
resolve the conflict:
Where a panel of the Court of Appeals has decided
the same issue, albeit in a different case, a subsequent
panel of the same court is bound by that precedent, unless
it has been overturned by a higher court. Further, our
Supreme Court has clarified that, where there is a
conflicting line of cases, a panel of this Court should follow
the older of those two lines. With that in mind, we find
Skipper and Vaughn are irreconcilable on this point of law
and, as such, constitute a conflicting line of cases. Because
Vaughn is the older of those two cases, we employ its
reasoning here.
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Opinion of the Court
State v. Gardner, 225 N.C. App. 161, 169, 736 S.E.2d 826, 832 (2013) (citations and
quotation marks omitted). Thus, we turn to Respess. See Respess, 232 N.C. App. 611,
754 S.E.2d 691.
In 2014, this Court addressed the same issue as to the required standard of
proof in a custody dispute between two parents and findings necessary to deny
visitation in Respess:
Although courts seldom deny visitation rights to a
noncustodial parent, a trial court may do so if it is in the
best interests of the child:
The welfare of a child is always to be treated
as the paramount consideration. Courts are
generally reluctant to deny all visitation
rights to the divorced parent of a child of
tender age, but it is generally agreed that
visitation rights should not be permitted to
jeopardize a child’s welfare.
This principle is codified in N.C. Gen. Stat. § 50–13.5(i),
which provides that:
In any case in which an award of child custody
is made in a district court, the trial judge,
prior to denying a parent the right of
reasonable visitation, shall make a written
finding of fact that the parent being denied
visitation rights is an unfit person to visit the
child or that such visitation rights are not in
the best interest of the child.
The statutory language is straightforward and
unambiguous and requires that if a trial court does not
grant reasonable visitation to a parent, its order must
include a finding either that the parent is an unfit person
to visit the child or that visitation with the parent is not in
the best interest of the child. Although our Supreme Court
has not issued an opinion discussing this statute, during
the past 30 years this Court has issued numerous opinions
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Opinion of the Court
applying N.C. Gen. Stat. § 50–13.5(i). For example, in King
v. Demo, 40 N.C. App. 661, 666–667, 253 S.E.2d 616, 620
(1979), we stated that:
Unless the child’s welfare would be
jeopardized, courts should be generally
reluctant to deny all visitation rights to the
divorced parent of a child of tender age.
Moreover, G.S. 50–13.5(i) provides that prior
to denying a parent the right of reasonable
visitation, the trial court shall make a written
finding of fact that the parent being denied
visitation rights is an unfit person to visit the
child or that such visitation rights are not in
the best interest of the child.
And, in Johnson v. Johnson, 45 N.C. App. 644, 647, 263
S.E.2d 822, 824 (1980), we held that:
In awarding visitation privileges the court
should be controlled by the same principle
which governs the award of primary custody,
that is, that the best interest and welfare of
the child is the paramount consideration. G.S.
50–13.5(i) provides that in any case in which
an award of child custody is made in a district
court, the trial judge, prior to denying a
parent the right of reasonable visitation, shall
make a written finding of fact that the parent
being denied visitation rights is an unfit
person to visit the child or that such visitation
rights are not in the best interest of the child.
During the 33 years since Johnson was decided, we have
consistently followed both its application of the best
interests standard to disputes between parents regarding
child custody and visitation, and its acceptance of the plain
language of N.C. Gen. Stat. § 50–13.5(i).
Id. at 615–17, 754 S.E.2d at 696–97 (citations, quotation marks, ellipses, and brackets
omitted).
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Opinion of the Court
The Respess court addressed the same issue arguably presented here based
upon a conflict in the cases created by Moore v. Moore and determined that under In
Re Civil Penalty it was bound to follow the consistent precedents prior to Moore and
the plain language of North Carolina General Statute § 50-13.5(i). See id. at 615-17,
754 S.E.2d at 695-97. We are likewise bound to follow Respess, since it addressed the
same underlying issue and analysis of a conflict in the cases under In Re Civil Penalty
as we do here, see id., 232 N.C. App. 611, 754 S.E.2d 691, since it was decided in 2014
and Routten in 2018. See Routten, ___ N.C. App. ___, 822 S.E.2d 436.
Addressing Father’s argument and our dissenting colleague’s position that the
order on appeal effectively terminates his parental rights, we first note that a custody
proceeding under Chapter 50 is neither functionally nor legally the equivalent of a
proceeding for termination of parental rights. Contrast with N.C. Gen. Stat. Chap.
50; Chap. 7B (2017). Custody proceedings under Chapter 50 differ procedurally and
substantively from a proceeding to terminate parental rights under Article 11 of
Chapter 7B, from the initiation of the actions to the end results. Contrast with N.C.
Gen. Stat. Chap. 50; Chap. 7B (2017). Further, the procedures set forth by Chapter
7B control over any conflicting procedures set out by the Rules of Civil Procedure.
See Matter of Peirce, 53 N.C. App. 373, 380, 281 S.E.2d 198, 203 (1981) (“Due to the
legislature’s prefatory statement in G.S. 7A-289.22 with regard to its intent to
establish judicial procedures for the termination of parental rights, and due to the
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Opinion of the Court
specificity of the procedural rules set out in the article, we think the legislative intent
was that G.S., Chap. 7A, Art. 24-B, exclusively control the procedure to be followed
in the termination of parental rights. It was not the intent that the requirements of
the basic rules of civil procedure of G.S. 1A-1 be superimposed upon the requirements
of G.S., Chap. 7A, Art. 24-B.”).
Before ordering termination of parental rights, the trial court must find
specific grounds as provided by North Carolina General Statute § 7B-1111 by clear,
cogent, and convincing evidence and must find that termination is in the child’s best
interest. See In re C.C., 173 N.C. App. 375, 380, 618 S.E.2d 813, 817 (2005) (“A
proceeding to terminate parental rights is a two step process with an adjudicatory
stage and a dispositional stage. A different standard of review applies to each stage.
In the adjudicatory stage, the burden is on the petitioner to prove by clear, cogent,
and convincing evidence that one of the grounds for termination of parental rights set
forth in N.C. Gen. Stat. § 7B–1111(a) exists. . . . If the petitioner meets its burden of
proving at least one ground for termination of parental rights exists under N.C. Gen.
Stat. § 7B-1111(a), the court proceeds to the dispositional phase and determines
whether termination of parental rights is in the best interests of the child.”).
Termination of parental rights “completely and permanently terminates all rights
and obligations of the parent to the juvenile and of the juvenile to the parent arising
from the parental relationship, except that the juvenile’s right of inheritance from
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Opinion of the Court
the juvenile’s parent shall not terminate until a final order of adoption is issued.”
N.C. Gen. Stat. § 7B-1112 (2017). Termination of parental rights makes a child
available for adoption by another person, rendering the child a legal stranger to the
biological parent. See In re Estate of Edwards, 316 N.C. 698, 706, 343 S.E.2d 913,
918 (1986) (“Adoption effects a complete substitution of families and makes the child
legally a stranger to the bloodline of his natural parents.”). Termination cuts off the
obligation of the parent to pay child support. See In re Tate, 67 N.C. App. 89, 95–96,
312 S.E.2d 535, 540 (1984) (“A parent retains an obligation to pay support up to the
actual adjudication of termination of parental rights.”).
But the most crucial difference in this case is that a Chapter 50 custody order
can always be modified based upon a substantial change in circumstances affecting
the best interest of the child, see Shipman, 357 N.C. at 473, 586 S.E.2d at 253, while
an order terminating parental rights is permanent and ends all legal rights to the
child. See N.C. Gen. Stat. § 7B-1112. After termination, parental rights cannot be
restored, no matter what changes may occur in the lives of the parent or the child
after the order is entered. See id. In fact, a parent whose rights have been terminated
has no standing to legitimate a child, even with the consent of the other parent. See
Gorsuch v. Dees, 173 N.C. App. 223, 227, 618 S.E.2d 747, 750 (2005) (“We find
unconvincing Petitioner’s argument that ‘permanent’ as used in North Carolina
General Statutes section 7B–1112 should be construed as temporary and modifiable
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Opinion of the Court
to be without merit. Where the statutory language is clear and unambiguous, the
Court does not engage in judicial construction but must apply the statute to give effect
to the plain and definite meaning of the language. Dictionaries may be used to
determine the plain meaning of language. Permanent means ‘continuing or enduring
(as in the same state, status, place) without fundamental or marked change; not
subject to fluctuation or alteration.’ We find Petitioner’s argument that the
‘permanent’ termination of his parental rights could allow for modification and
restoration to be without merit. In sum, we find Petitioner’s argument that the trial
court erred in concluding that Petitioner had no standing or right under the law to
legitimate A.B.D. because his parental rights had been terminated to be without
merit.” (citations and quotation marks omitted)). In contrast to termination of
parental rights, child custody orders are modifiable “at any time” until the child is 18
years old. See N.C. Gen. Stat. § 50-13.7 (2017) (“Except as otherwise provided in G.S.
50-13.7A, an order of a court of this State for support of a minor child may be modified
or vacated at any time, upon motion in the cause and a showing of changed
circumstances by either party or anyone interested subject to the limitations of G.S.
50-13.10.” (emphasis added)).
Our courts have long recognized that sometimes, a custody order denying a
parent all visitation or contact with a child may be in the child’s best interest:
Although courts seldom deny visitation rights to a
noncustodial parent, a trial court may do so if it is in the
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Opinion of the Court
best interests of the child:
[T]he welfare of a child is always to be treated
as the paramount consideration[.] . . . Courts
are generally reluctant to deny all visitation
rights to the divorced parent of a child of
tender age, but it is generally agreed that
visitation rights should not be permitted to
jeopardize a child’s welfare.
Swicegood v. Swicegood, 270 N.C. 278, 282, 154 S.E.2d 324,
327 (1967) (citing Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d
133 (1953)). See also, In re Custody of Stancil, 10 N.C. App.
545, 551, 179 S.E.2d 844, 848–49 (1971) (“‘The rule is well
established in all jurisdictions that the right of access to
one’s child should not be denied unless the court is
convinced such visitations are detrimental to the best
interests of the child.’”) (quoting Willey v. Willey, 253 Iowa
1294, 1302, 115 N.W.2d 833, 838 (1962)). This principle is
codified in N.C. Gen. Stat. § 50–13.5(i), which provides
that:
In any case in which an award of child custody
is made in a district court, the trial judge,
prior to denying a parent the right of
reasonable visitation, shall make a written
finding of fact that the parent being denied
visitation rights is an unfit person to visit the
child or that such visitation rights are not in
the best interest of the child.
Respess v. Respess, 232 N.C. App. 611, 615–16, 754 S.E.2d 691, 696 (2014). The trial
court’s findings of fact support its conclusion that Father should have no direct
contact with Susan. In addition, because of Father’s threats to kill Mother, failure to
engage in therapy, complete failure to benefit from the DOSE program, and repeated
domestic violence with Karen, the trial court did not abuse its discretion in allowing
Mother not to inform Father of her and Susan’s address.
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Opinion of the Court
Father also contends there is no need for the trial court’s complete bar of his
access to information about Susan, even from third parties such as “teachers, medical
professionals, instructors or coaches.” While we agree that it is unusual for a parent
to have such limited rights regarding his child, the trial court did not abuse its
discretion by eliminating his access to information. This restriction of access to
information is based upon the specific facts of this case and the trial court described
its rationale in detail. In fact, the order on appeal is exceptionally detailed, well-
organized, and thorough.
In Finding of Fact 68, which has 23 subsections, the trial court noted the
factual basis for the restrictions even to obtaining information from third parties.
Father’s actions and threats affected many third parties associated with the family,
to the detriment of Susan. Mother’s employer required her to “work from home
because of safety concerns at her employer’s office.” At the time of the hearing,
Mother had been working from home almost a year. Father’s threats and actions
made third-party professionals trying to help this family sufficiently concerned about
their own safety they would not see him unless another person was present and at
one point the child’s pediatrician stopped seeing her because of Father’s actions. The
trial court found that Father’s “anger and rage” are disturbing and have “had a
detrimental impact on not only the minor child to not feel safe around the Defendant
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Opinion of the Court
but the Plaintiff, her parents, Plaintiff’s friends, Plaintiff’s co-workers and various
professionals involved with this family.”
The trial court also made detailed findings regarding Father’s failure to follow
the requirements of prior orders. Based upon the trial court’s findings, if Father could
continue to contact third parties such as teachers, physicians, and coaches to get
information about the child, based upon his past behavior, it is likely that his anger
and threats would make them fearful for their own safety, just as the third parties
described in the order were. And to protect their own safety and the safety of their
workplaces, these third parties may reasonably refuse to work with Susan,
continuing to interfere with her ability to lead a normal life.
Besides endangering the third parties who deal with Susan, allowing Father
to contact them to get information about Susan would endanger Mother and Susan
directly. Some of Father’s actions were unusual and disturbing, such as taking the
child to sit in a rental car in a parking garage with him when he was supposed to be
visiting in a public place. Father had a car of his own but rented a car and backed
into a parking space for these visits, apparently to avoid detection; this surreptitious
behavior raises additional concerns. And if he were allowed to get information from
third parties, Father would necessarily learn the addresses and locations where
Mother and Susan could be found. For example, if Father were permitted to obtain
Susan’s educational information, he would have to know the name and location of her
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Opinion of the Court
school, and he would learn from the school records which classes Susan attends and
her usual daily schedule; he could then easily find Mother’s home simply by following
Susan’s school bus or following any person who picks her up from school. Under these
circumstances, it is in Susan’s best interest to prevent Father from having access to
information about her education and care because it protects Mother, Susan, and
third parties who deal with them. The trial court’s detailed and extensive findings of
fact support the decretal provisions, including barring Father from obtaining
information from third parties.
Father’s argument that he would be unable to seek future modification of
custody without access to information about Susan is also without merit. Father fails
to recognize that the substantial changes which need to occur for him to resume a
relationship with Susan are changes that only he can make. We addressed a similar
situation in Walsh v. Jones, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 15, 2019) (COA18-
496), where several years after a custody order which “immediately and permanently
suspended and terminated” all visitation and contact of any sort with defendant-
father, the trial court later modified its custody order, allowing the father to resume
visitation, although he had not seen or had contact with the child for several years.
Id. at ___, ___ S.E.2d at ___. The trial court modified his visitation based upon the
defendant-father’s changes in his own life which addressed the problems which led to
the termination of his visitation, finding that the father
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Opinion of the Court
completed the [Drug Abuse Research Treatment] program;
took various educational classes; consistently passed drug
tests; stopped consuming drugs and alcohol; regularly
attended church and participated in community service
projects; became a member of a volunteer fire department;
paid child support from his disability payment; did not
have any dealings with any of his pre-incarceration
associates; and lives with his mother who is a registered
nurse.
Id. at ___, ___ S.E.2d at ___ (quotation marks and brackets omitted). Here, as in
Walsh, see id., ___ N.C. App. ___, ___ S.E.2d ___, Father’s lack of access to information
about Susan’s care does not prevent him from taking the steps he needs to take to
have the opportunity to change the custodial arrangement in the future. The order
does not prevent Father from taking his medication as prescribed, seeking treatment
and counseling to control his anger, ceasing his acts of violence against Karen, and
ceasing his threats of violence against Plaintiff and others involved in this case. If
Father does the things the trial court has repeatedly ordered him to do throughout
this case and can show he has changed and can provide a safe and loving environment
for Susan, he has the same opportunity as any parent to request a change in custody
based upon a substantial change in circumstances which would positively affect the
minor child; his positive behavior could be such a change. See Shipman, 357 N.C. at
473-74, 586 S.E.2d at 253. (“While allegations concerning adversity are acceptable
factors for the trial court to consider and will support modification, a showing of a
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Opinion of the Court
change in circumstances that is, or is likely to be, beneficial to the child may also
warrant a change in custody.”) This argument is overruled.
IV. Conclusion
We affirm.
AFFIRMED.
Judge DILLON concurs with separate opinion.
Judge BERGER dissents with separate opinion.
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No. COA 18-484 – HUML v. HUML
DILLON, Judge, concurring.
I fully concur in the majority opinion.
In this Chapter 50 custody case between two natural parents, the trial court
granted sole legal and physical custody of the child to Mother, and further prohibited
Father from any visitation with and access to information about the child. The trial
court based its order on its determination that this arrangement was in the best
interest of the child. And there was evidence to support this order.
The main disagreement between the majority and the dissent concerns
whether the trial court used the correct standard in weighing the evidence:
The majority states that the trial court correctly applied the “preponderance of
the evidence” standard.
The dissent, however, relies on two cases from our Court which suggest that
where a trial court orders that one parent is not allowed any custody, visitation, or
the right to information in a Chapter 50 custody dispute with the other parent, the
trial court must use a heightened “clear, cogent, and convincing” standard. Routten
v. Routten, ___ N.C. App. ___, ___, 822 S.E.2d 436, 444 (2018); Moore v. Moore, 160
N.C. App. 569, 573-74, 587 S.E.2d 74, 76 (2003).
I agree with the majority that our law does not require this heightened
standard in a Chapter 50 custody dispute between parents. See Owenby v. Young,
357 N.C. 142, 145, 579 S.E.2d 264, 267 (2003) (holding that making a determination
HUML V. HUML
DILLON, J., concurring
based on the heightened standard “is irrelevant in a [Chapter 50] custody proceeding
between two natural parents[.]”).
The dissent correctly notes that the Due Process Clause protects the
fundamental right of natural and adoptive parents to make decisions concerning the
care, custody, and control of their children. And it is well-settled that where a
parent’s rights are completely stripped in a Chapter 7B termination case – whether
in an action brought by the other parent or by a third party – the trial court must
apply the heightened “clear, cogent, and convincing” standard. In re Oghenekevebe,
123 N.C. App. 434, 437, 473 S.E.2d 393, 396 (1996). It is also well-settled that this
heightened standard must be applied in a Chapter 50 custody action where a parent’s
rights are abrogated in favor of a non-parent; e.g., granting visitation rights to a
grandparent, because such orders affect the “constitutionally protected paramount
right of parents” to their children. Owenby, 357 N.C. at 145, 579 S.E.2d at 266.
However, with the exception of the two cases cited by our dissenting colleague,
our courts have uniformly recognized that, in a Chapter 50 custody dispute between
two parents, a trial court may abrogate a parent’s right to care, custody, and control
in favor of the other parent without using the heightened “clear, cogent, and
convincing” standard. Owenby, 357 N.C. at 145, 579 S.E.2d at 267. Indeed, every
Chapter 50 order which does not grant equal, joint custody to both parents effectively
is taking away some of the care, custody, and control rights previously enjoyed by one
2
HUML V. HUML
DILLON, J., concurring
of the parents.6 For example, a Chapter 50 order may limit one parent’s rights to
supervised visitation, based on findings that the parent is not presently fit for
unsupervised visits.
But a Chapter 50 custody order dividing the rights between two parents – no
matter the severity – is never as invasive of a parent’s fundamental right to care,
custody, and control as a Chapter 7B termination order. Under this Chapter 50 order,
Father retains the ability and right to move for reinstatement of some or all of his
previously-enjoyed rights by showing that he has changed his ways.7 But if his rights
were to be terminated under Chapter 7B, Father would have no opportunity to do so,
which is why a heightened standard is required in such cases.
6 And it could be argued that even Chapter 50 orders that grant joint custody abrogate some
of the rights of each parent, by giving exclusive custody to each parent during different periods to the
exclusion of the other parent.
7 I believe that the “best interest of the child” standard applied in Chapter 50 custody cases is
in harmony with protecting the Due Process rights of each parent to be involved with his child.
Specifically, I believe that there is a strong presumption that it is in the best interest of any child to
have a relationship with each parent, though, of course, this presumption can be overcome under the
right facts: A trial judge should view the best interest of the child issue at least partially through a
“constitutional lens” of considering the right of each parent to remain involved, as such involvement
is presumptively in the child’s best interest. So, in this case, if Father truly changes his ways and his
rights have not otherwise been terminated under Chapter 7B, there would be a strong argument that
the trial court would be de facto terminating Father’s rights if it refused to allow Father some
involvement in the life of his child, even if the child may be thriving at that time. But such is not the
case currently in this matter.
3
No. COA18-484 – Huml v. Huml
BERGER, Judge, dissenting in separate opinion.
Because clarity is needed in this area of the law as it relates to custody disputes
between parents when the trial court denies one parent all visitation and contact, I
respectfully dissent.
Based upon the evidence in the record and the findings of the trial court,
Defendant-father clearly has issues that he needs to address. Because of these issues,
the trial court concluded as a matter of law that the father is “not a fit and proper
person to have any visitation or contact with the minor child . . . [and] [t]his order is
in the best interests and welfare of the minor child.” The trial court, in addition to
denying Defendant-father any physical custody or contact with the minor child,
denied Defendant-father all rights and responsibilities of parentage. The trial court
precluded Defendant-father from obtaining “any information concerning the minor
child,” (emphasis added) from teachers, medical professionals, third-party caregivers,
and other similar individuals. Upon entry of this order, there existed the very real
possibility that Defendant-father would not see his daughter again and would never
know anything about her. The practical effect of this custody order, which the
majority admits is “unusual,” is the termination of Defendant-father’s parental
rights.
This order is far different from the situation in which visitation is denied.
Here, all contact is prohibited, as is the Defendant-father’s ability to obtain any
HUML V. HUML
BERGER, J., dissenting
information about the child. This may be the correct result, but there is case law
which requires a higher burden of proof before a parent can be deemed “unfit” and
thereafter cut off entirely from their biological child. This Court has previously held
that when a custody order is the functional equivalent of a termination of parental
rights, a parent must prove the other parent’s unfitness by clear, cogent, and
convincing evidence. Moore v. Moore, 160 N.C. App. 569, 573, 587 S.E.2d 74, 76
(2003).
In Moore v. Moore, the biological parents engaged in a custody dispute over
their minor child. The father filed a motion to reinstate visitation after his visitation
rights had been suspended pending an investigation. The trial court determined that
it was in the best interests of the minor child that the order suspending visitation
remain in effect. This Court stated that, because the practical effect of the trial
court’s order was the termination of father’s parental rights, the standard of proof
required in termination proceedings was to be applied. Moore, 160 N.C. App. at 573,
587 S.E.2d at 76. Moore also noted that
The “Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children.” Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed.
2d 49, 57 (2000). “[A]bsent a finding that parents (i) are
unfit or (ii) have neglected the welfare of their children, the
constitutionally-protected paramount right of parents to
custody, care, and control of their children must prevail.”
Petersen v. Rogers, 337 N.C. 397, 403-404, 445 S.E.2d 901,
905 (1994). N.C. Gen. Stat. § 50-13.5(i) states:
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HUML V. HUML
BERGER, J., dissenting
[T]he trial judge, prior to denying a parent the
right of reasonable visitation, shall make a
written finding of fact that the parent being
denied visitation rights is an unfit person to
visit the child or that such visitation rights
are not in the best interest of the child.
N.C. Gen. Stat. § 50-13.5(i) (2001). North Carolina courts
have held that unless the child’s welfare would be
jeopardized, courts generally should be reluctant to deny
all visitation rights to the divorced parent of a child of
tender age. Swicegood v. Swicegood, 270 N.C. 278, 154
S.E.2d 324 (1967). “In the absence of extraordinary
circumstances, a parent should not be denied the right of
visitation.” In re Custody of Stancil, 10 N.C. App. 545, 551,
179 S.E.2d 844, 849 (1971), (quoting Willey v. Willey, 253
Iowa 1294, 115 N.W.2d 833 (1962)). North Carolina case
law also states that when severe restrictions are placed on
the right of visitation, N.C. Gen. Stat. § 50-13.5(i) requires
the trial judge to make findings of fact supported by
competent evidence of unfitness of the parent or the judge
must find that the restrictions are in the best interest of
the child. Falls v. Falls, 52 N.C. App. 203, 208, 278 S.E.2d
546, 551 (1981); see also Johnson v. Johnson, 45 N.C. App.
644, 263 S.E.2d 822 (1980).
It is presumed that fit parents act in the best
interest of their children. Troxel, 530 U.S. at 69, 147 L. Ed.
2d at 59. A parent’s right to a relationship with his child
is constitutionally protected. See Quilloin v. Walcott, 434
U.S. 246, 255, 54 L. Ed. 2d 511, 519 (1978). Once conduct
that is inconsistent with a parent’s protected status is
proven, the “best interest of the child” test is applied. Price
v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997).
Without proof of inconsistent conduct, the “best interest”
test does not apply and the trial court is limited to finding
that the natural parent is unfit in order to prohibit all
visitation or contact with his or her child.
The burden of proof rests upon the person seeking to
show by clear, cogent, and convincing evidence the
3
HUML V. HUML
BERGER, J., dissenting
unfitness of a natural parent to overcome his
constitutionally protected rights. N.C. Gen. Stat. § 7B-
1111(b) (2001). Here, in effect, the trial court terminated
plaintiff’s right to visitation and any contact with his
daughter without terminating his obligations as a parent.
The proper evidentiary standard of proof in termination of
parental rights proceedings is clear and convincing
evidence. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d
246, 252 (1984). In termination proceedings “the burden ...
shall be upon the petitioner or movant to prove the facts
justifying such termination by clear and convincing
evidence.” N.C. Gen. Stat. § 7B-1111(b).
Plaintiff was prohibited from all visitation rights or
any contact whatsoever with his child. To sustain this total
prohibition of visitation or contact, defendant must prove
plaintiff’s unfitness. The trial court did not find the
plaintiff to be an unfit parent based upon clear, cogent, and
convincing evidence.
Moore, 160 N.C. App. at 572-74, 587 S.E.2d at 76-77.
Here, the trial court effectively terminated Defendant-father’s parental rights
without findings by clear, cogent, and convincing evidence that Defendant-father was
an unfit parent. Under Moore, the trial court’s order is insufficient.
4