Grindstaff v. Byers

THOMAS, Judge,

dissenting.

Because there is sufficient evidence for the trial court to find that defendant’s actions were inconsistent with his constitutionally protected status as a natural parent, thus properly allowing a “best interest” analysis, I respectfully dissent.

Our Supreme Court has recognized that temporary relinquishment of custody by a parent in the best interest of a child may at times be necessary and does not constitute abandonment by the parent. Price v. Howard, 346 N.C. 68, 83-84, 484 S.E.2d 528, 537 (1997). Examples may include foster parent agreements and searches for employment. Id. However, the. Court further noted that to preserve parental interests, the natural parent must inform the custodian that such custody is temporary and must avoid conduct inconsistent with the protected parental interest. Id. This determination is made on a case-by-case basis, but two specific examples of inconsistent conduct cited by the Court include failure to maintain personal contact with the child and failure to resume custody when able. Id.

Further, the constitutionally protected rights of a parent are closely connected to the responsibilities of parenthood. Speagle v. Seitz, 354 N.C. 525, 530, 557 S.E.2d 83, 86 (2001), reh’g denied, 355 N.C. 224, 560 S.E.2d 138, cert. denied, — U.S. -, — L. Ed. 2d — (2002). Failure to undertake such responsibilities may deprive an individual of the protection of parental rights.

[C]onduct inconsistent with the parent’s protected status, which need not rise to the statutory level warranting termination of parental rights . . . would result in application of the “best interest of the child” test without offending the Due Process Clause. Unfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy. Other types of conduct, which must be viewed on a case-by-case basis, can also rise to this level so as to be inconsistent with the protected status of natural parents. Where such conduct is properly found by the trier of fact, based on evidence in the record, cus*300tody should be determined by the “best interest of the child” test mandated by statute.

Price, 346 N.C. at 79, 484 S.E.2d at 534-35. Deprivation of personal contact and support by the parent are factors for the trial court’s consideration. “It has been held that if a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wil-fully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.” Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962). Supporting its decision by the evidence in the record, the trial court determines what is inconsistent conduct. “There is no bright line rule to determine what conduct on the part of a natural parent will result in a forfeiture of the constitutionally protected status and trigger application of a ‘best interest’ analysis.” Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999). Properly supported findings by the trial court are conclusive in custody cases even where the evidence may appear in conflict.

[I]n custody cases, the trial court sees the parties in person and listens to all the witnesses. This allows the trial court to “detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges.” Accordingly, 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.’ ”

Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) (citations omitted).

In the present case, the trial court specifically determined that defendant’s actions and conduct were inconsistent with the best interests of his minor children. There are findings of domestic violence over the course of many years by defendant in the presence of the children, there are findings that such indefensible conduct emotionally harmed the children. There are findings that defendant was financially able to maintain custody of the children, but chose not to, and findings he could have supported the children while they were with plaintiff, but chose not to. There are findings the children were actually in plaintiff’s custody well before any custody agreement, and findings that defendant did precious little to visit the children for months at a time. There are findings that defendant eventually whisked the children to live with him in Charlotte, not only disrupting the children’s school and activities without notice or planning but *301also without telling his own parents and girlfriend, who were left to supervise them. The trial court’s findings of fact include:

8. There were several instances throughout the relationship and marriage of the parties where babysitters or family friends would call the plaintiff ... to come to the home of [defendant mother and father] in order to pick up [the children], because there were acts of domestic violence and fighting going on between [defendant mother and father] in the presence of the children .... [Incidents occurred] in 1993, . . . 1995, [and] . . . 1996 .... In September 1998, there was an incident of domestic violence where [defendant father] shoved [defendant mother] and law enforcement was called to the residence. [Defendant father] called the plaintiff, . . . and he told her he had hit [defendant mother] and that [plaintiff] needed to come and pick up [his daughter].... There was an incident described where [the daughter] was hitting [defendant father] with her Barbie doll telling him to let go of her mother, who was pinned up against the wall.... In January 1999 there was an incident where the parents got in to [sic] an argument over the telephone. [Defendant mother] testified that [defendant father] made seventy-two telephone calls to her house that evening and came over to the house uninvited and was beating on the door.
9. The domestic violence between the parties began in the Spring of 1992 and continued throughout the relationship and marriage and subsequent to the divorce of the parties. Many of these instances were in the presence of the children and were detrimental to the welfare of the children. The parents were advised by family friends and by their parents to stop the acts of domestic violence. They were encouraged to attend counseling and referrals were made for counseling. The defendant parents did not stop committing acts of domestic violence in the presence of the children.
10. The testimony is overwhelming that the acts of domestic violence had a detrimental effect on the children and that it caused them significant emotional upset in every occasion of domestic violence between their parents in their presence.
11. From 1993 through May of 1999 the time that [the children] would spend with the [plaintiff] increased on a regular basis. The children began to spend more and more overnights in the home of the [plaintiff]. The parents would come to the home to visit the *302children or to pick them up for the afternoon or sometimes an overnight visit. By December 1998, the children were living primarily in the home of the [plaintiff] maternal grandmother with the consent of both [defendant] parents. When the parties separated in October of 1998, the [defendant] father moved in with a friend and did not have adequate accommodations for the children. The children did not have overnight visits at that time. In January of 1999, the [defendant] father was unavailable to parent the children on a regular basis .... This schedule continued from January 1999 through June 1999.
13. The parties agreed to a custody agreement that was entered on May 18, 1999[.] . . . There was no dispute by either parent that [plaintiff] had been the primary caregiver for a significant period of the children’s lives and that the children were well-bonded and comfortable and safe in her home.
14. The Child Support Enforcement Agency did make efforts for the parents to enter into voluntary support agreements contemplated in the custody agreement executed May 18,1999 .... When the father was contacted by the Child Support Enforcement Agency he stated he wanted paternity testing done before he entered into the voluntary support agreement. A complaint was filed by the Buncombe County Child Support Enforcement Agency on October 7, 1999[.] . . . When the issue of paternity was made known to [plaintiff] by the Child Support Enforcement Agency she became very angry with [defendant father]. The plaintiffs statements to [defendant father] were “how could you possibly do this to these children?” ... The [defendant] father had no visits with the children at all through the fall of 1999. The [defendant] father had telephone contact with the children when he would call the residence but he did not speak to [plaintiff]. Frequently the father spoke to Melanie Grindstaff, the sister of [defendant mother], [who] was in the home during that period of time. Melanie would encourage [defendant father] to talk to [plaintiff] and encouraged him to visit the children but [defendant father] did not do either at that time.
15. In December of 1999, [plaintiff] took [daughter] to a cheer-leading competition in Charlotte, North Carolina. [Plaintiff] called Melanie ... to get the phone number of [defendant father] so that she could invite [him] to visit with [his daughter] while she was at that competition in Charlotte. Melanie contacted [defendant father] and told him where [plaintiff] and [his daughter] were *303in Charlotte. [Defendant father] did go to that location and visited [his daughter] and [plaintiff] at the cheerleading competition. [Plaintiff] felt that her presence was creating some tension for [daughter] so she voluntarily left the facility for the afternoon in order to give [daughter] time to visit with her [defendant] father. [Defendant father] had the opportunity to discuss with [plaintiff] resumption of this visitation in Charlotte but he did not do so. [Defendant father] provided no explanation why he had not visited the children in such a long time and there was no discussion about what he would like to do in the future. During the fall of 1999 the relationship between the plaintiff grandmother and [defendant father] was strained because the [plaintiff] grandmother was so upset that the [defendant] father requested paternity testing. However, it was not to the point that it would have interfered in any way with his coming to her home to exercise visitation the way he had in the past. The [defendant] father’s conduct in not visiting his children in the fall of 1999 was contrary to the best interest of his children and was inconsistent with his exercise of parental responsibilities and rights.
16. The next time [plaintiff] had any contact from [defendant father] was in February of 2000, when [defendant father] called and indicated he wanted to have visitation the weekend around February 22, 2000, because it was [his son’s] birthday. [Plaintiff] told [defendant father] the visitation would be fine but [his daughter] had a national cheerleading competition in Atlanta that weekend. [Plaintiff] asked [defendant father] if he could have his visitation on the following weekend so [his daughter] could participate in the cheerleading competition in Atlanta. [Defendant father] agreed].] . . . [Defendant father] was living in his parent’s home at the time that he picked the children up in February 2000 and took them back to Charlotte. He did not tell his mother or his stepfather that he was going to bring the children back to their home to live with him fulltime. There were no arrangements made in advance for the children to live in the paternal grandparent’s home. The children had not visited in that home in a long time. [Defendant father] was dating a woman named Adrian who also lived in Charlotte. From Saturday night, until the following Tuesday when the children were picked up, the children spent part of the time at the paternal grandparent’s home and part of the time in Adrian’s apartment. At the time the Sheriff’s Department picked up the children they were at Adrian’s resi*304dence but [defendant father] was not with them. Adrian was not told by [defendant father] after he had picked up the children from the [plaintiff] grandmother that they were returning to Charlotte to live with him. Adrian had no idea of his plans to keep the children in advance .... In that the [defendant] father had not exercised any visitation with the children from July of 1999 until February of 2000 (except for the one visit arranged by the [plaintiff] grandmother for the afternoon with [his daughter] in Charlotte in December of 1999) it was very inappropriate and irresponsible of him to take the children without any notice to the children or to the [plaintiff] grandmother or [defendant] mother or his mother or his girlfriend and attempt to relocate the children to Charlotte. This situation caused the children tremendous upsetf.] ... It was more difficult for [his daughter] because she was enrolled in school and there were no arrangements made for her to be enrolled in another school. [His daughter] had her cheerleading activities that were missed. [His daughter] was given no opportunity to make any kind of closure on her life in Buncombe County. The circumstances wherein law enforcement picked the children up from the girlfriends [sic] home when the father wasn’t present was also very upsetting to the children and contrary to their best interests. It is the position of [defendant father] that he was their legal father and therefore he had the right to revoke his agreement to place custody with [plaintiff] at any time because he has a paramount right to the custody of his children as their natural parent.
23. Melanie spoke to [defendant father] several times after the paternity issue was raised and told [defendant father] that he needed to be seeing the children and told him specifically “Mom will let you see those kids if you want to.”
25. [Defendant mother] acknowledges that [her daughter] began to spend approximately one to two overnights per week when she ■was an infant with [plaintiff] and that over the years that increased until the children were spending five to six nights[.]

The court also concluded:

4. The issue was not poverty that prevented the parents from parenting full-time because both parents were employed and both parents could have provided an adequate home on the monies that they were earning .... While the parents conduct was not neglect or abandonment in the sense that they did not walk away *305from their children without making sure they were in a suitable place it was an act inconsistent with their obligation to parent their children and to be involved on a daily basis with the responsibilities and obligations of parenthood.
5. The conduct of the parents and their actions throughout the lives of these children has been inconsistent with their constitutionally protected status[.]

Based on these and other findings, the trial court concluded that both parents willfully and intentionally left the children in the primary care of plaintiff, an act inconsistent with their obligation to parent the children considering the parents’ circumstances and abilities. The trial court further concluded that defendants father and mother failed to be involved on a daily basis with the children, and despite their capability to do so, failed in their responsibilities and obligations of parenthood. The findings of fact are more than merely sufficient to support this conclusion by the court. The trial court properly proceeded to determine the children’s best interests.

Additionally, much is made of the May 1999 Custody Agreement stating that the agreement did not constitute abandonment by the parents. While the trial court did not find abandonment “in the sense that they did not walk away from their children without making sure they were in a suitable place,” it should be emphasized that such an agreement in itself fails to establish there was no abandonment as a matter of law. Determination of abandonment is a factual issue which the trial court must make based upon the evidence presented at trial. A disclaimer by a parent to the effect that granting custody to a third party is not abandonment is insufficient to prevent the trial court from determining that, in fact, the minors had been willfully abandoned by their parents. For example, this Court has held that leaving children in foster care for an extended time period can constitute willful abandonment on the part of the parents, regardless of their good intentions in recognizing that the children were better off in such a situation. In re Bishop, 92 N.C. App. 662, 669, 375 S.E.2d 676, 681 (1989). A custody agreement alone cannot be appropriately utilized to show the parents’ actions were not inconsistent with their constitutionally protected status, particularly where, as here, the parents actually forfeited custody to plaintiff well before the agreement.

I further dissent as to the majority’s award of custody to defendant father. The trial court made the following finding:

*30626. [Defendant mother] and [plaintiff] agree that [defendant mother’s] circumstances have greatly improved and that she is capable of providing care for her children at this time. [Defendant mother] believes that she can provide for her children’s care and wants to provide for her children’s care but she expressed to the court that her children are in the home where they feel safe, protected, and comfortable and have spent the majority of their life. For that reason, although she wants the children to live with her, she is willing to allow them to stay in the grandmother’s home if that is what they want to do. All reports are that when the children are with [defendant mother] and [defendant mother’s fiancee] the visitations go well and that there are no problems.

The preceding is not structured as a finding of ultimate facts, but as between the parents, the issue of custody clearly remains viable. Although the mother failed to submit pleadings and, indeed, testified that her mother should have custody, this does not preclude the court’s consideration of her as the proper custodian as opposed to defendant father. Under section 50-13.2(a), the court is authorized to award custody to such a “person ... as will best promote the interest and welfare of the child.” N.C. Gen. Stat. § 50-13.2(a) (2001). “In a custody proceeding between two natural parents . . . the trial court must determine custody based on the ‘best interest of the child’ test.” Adams, 354 N.C. at 61, 550 S.E.2d at 502.

In In re Branch, the paternal grandparents filed for custody of their grandchildren, naming the maternal grandparents and father as respondents. Branch, 16 N.C. App. 413, 414, 192 S.E.2d 43, 44 (1972). The petition was answered by the maternal grandparents only. Id. The court awarded custody of the children to the respondent father, who had appeared at the custody hearing and was subject to the court’s orders. Id. at 416, 192 S.E.2d at 45. On appeal, this Court upheld the award, noting, “that the court was fully authorized to award him custody of the children although he had filed no pleading asking for their custody.” Id.

As with the respondent in Branch, the mother here was named as a defendant, appeared and testified at the hearing. She is subject to the orders of the court. As between the two natural parents in this case, the trial court has not yet determined best interests.

Accordingly, I respectfully dissent and vote to affirm the trial court’s award of custody to plaintiff.