Child Support, Custody, and Visitation--custody--action between
natural mother and uncle and aunt--findings
In a child custody action between the natural mother and a
paternal aunt and uncle in which the mother was awarded custody,
the trial court erred by failing to consider the long-term
relationship between the mother and her children; failing to make
findings on the effect, if any, of the document that the mother
signed relinquishing custody of her children to the paternal aunt
and uncle; and failing to make findings on the mother's role in
building the relationship between her children and the aunt and
uncle. The court's findings are not detailed enough to determine
whether they are supported by competent evidence, the court
specifically refused to hear evidence on the mother's past
conduct, and the court explicitly found that Price v. Howard, 346
N.C. 68, was a narrow exception to Peterson v. Rogers, 337 N.C.
397. The case was remanded for findings on whether the mother
acted inconsistently with her constitutionally protected status
and, if so, for application of the “best interests of the child”
test to determine which party should have custody.
Jackson & Jackson, by Phillip T. Jackson, for plaintiffs-
appellants.
No brief filed for defendant-appellee.
WYNN, Judge.
This appeal challenges our Supreme Court's holding that a
parent may lose the constitutionally protected right to child
custody if the parent's conduct is inconsistent with the parental
presumption of acting in the best interests of the child. See
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). Beca
use we hold that
the trial court failed to make findings as to whether the mother in
this case acted inconsistently with her constitutionally protected
status as a parent, we remand this matter to the trial court.
The parent in this case is the mother of two minor children.
The children's father died in 1996 in a truck accident when one
child was one year old and the other was unborn. The nonparents in
this case are the paternal aunt and uncle of the children--Steve
Cantrell and his wife, Deborah Cantrell.
The record shows the following facts: Before the father's
death, the father, mother and their older child lived with the
Cantrells. After his death, the mother gave birth to the second
child and lived with the children's paternal grandparents until
December 1996, at which time she moved back in with the Cantrells.
While residing with the Cantrells, the mother signed a document
stating that she wanted them to act as her children's parents “in
all matters pertaining to there [sic] welfare.” Thereafter, on 18
May 1997, she checked herself into an inpatient drug rehabilitation
program where she stayed until 15 June 1997.
When the mother returned to the Cantrells' home on about 15
June, she stayed for one week. During that time, she avoided her
children. Afterwards, she voluntarily moved out again, leaving her
children with the Cantrells. The Cantrells cared for the children
for the next five months, during which time the mother visited them
infrequently. The mother returned to the Cantrells' home in
November 1997 for another one week stay, then again voluntarily
left. In January 1998, the Cantrells filed a motion for custody of
the children. That day, the trial court granted them temporary
custody. One week later, the trial court ordered that the younger
child remain with the Cantrells, but that the mother receive
temporary custody of the older child. The mother filed a motion
seeking visitation with the younger child, which was granted by the
trial court on 22 September 1998. Between 14 January and 14 April
1999, the trial court heard evidence on the issue of permanent
custody of the children. On 28 April 1999, the trial court awarded
permanent custody of both children to the mother. The Cantrells
appealed to this Court.
The Cantrells argue that the trial court erred in failing to
make findings of fact and give consideration to the evidence
presented by them that the mother had acted inconsistently with her
constitutionally protected status of a parent. We agree.
The trial court made nine findings of fact, only one of which
had any bearing on the mother's fitness as a parent. The trial
court found:
That the [mother] is a fit and proper person
to have the permanent custody, care, and
control of the aforenamed minor children and
has neither abused said children nor neglected
their welfare, and as the natural mother has a
constitutionally protected paramount right to
the custody, care, and control of the
aforenamed minor children.
Thereafter, the trial court concluded:
That the [mother] has a constitutionally
protected paramount right to custody, care,
and control of her natural children, which are
the subject of this action.
In a child custody case, the trial court's findings of factare binding on this Court if they are supported by compe
tent
evidence, and its conclusions of law must be supported by its
findings of fact. See Sain v. Sain, 134 N.C. App. 460, 464, 517
S.E.2d 921, 925 (1999). However, the findings of fact and
conclusions of law must be sufficient for this Court to determine
whether the judgment is adequately supported by competent evidence.
See Buckingham v. Buckingham, 134 N.C. App. 82, 88-89, 516 S.E.2d
869, 874 (1999). And the findings and conclusions of the trial
court must comport with our case law regarding child custody
matters.
In Petersen v. Rogers, supra, our Supreme Court recognized
that parents have a constitutionally protected right to the
custody, care and control of their child, absent a showing of
unfitness to care for the child. Accord Bivens v. Cottle, 120 N.C.
App. 467, 462 S.E.2d 829 (1995), appeal dismissed, 346 N.C. 270,
485 S.E.2d 296 (1997). After Petersen, our Supreme Court in Price
v. Howard, supra, held that the “protection of the parent's
interest is not absolute” and “'the rights of the parents are a
counterpart of the responsibilities they have assumed.'” Price,
346 N.C. at 76, 484 S.E.2d at 533 (quoting Lehr v. Robertson, 463
U.S. 248, 257, 77 L. Ed. 2d 614, 624 (1983)). The Court reasoned
that a parent's right to child custody is also based on the
presumption that the parent will act in the best interests of the
child. See Price, 346 N.C. at 79, 484 S.E.2d at 534. Thus, the
Court held that a parent may lose the constitutionally protectedparamount right to child custody if the parent's conduct is
inconsistent with this presumption or if the parent fails to
shoulder the responsibilities that are attendant to rearing a
child. See id. If a parent does indeed act inconsistently with
the protected status, a court should apply the “best interests of
the child” test in resolving a custody dispute between that parent
and a nonparent. See id.
In Price, the Supreme Court pointed out the type of conduct
that could result in the loss of a parent's protected status. For
example, unfitness, neglect and abandonment may constitute conduct
inconsistent with a parent's protected status. See id. Further,
other types of conduct, viewed on a case-by-case basis, may also
prove to be inconsistent with a parent's protected status. See id.
at 79, 484 S.E.2d at 534-35. The Court in Price considered one
type of conduct in particular which may show that a parent acted
inconsistently with her protected status--voluntary abandonment of
a child. A summary of that discussion is instructive in the case
at bar.
In Price, the mother lived for a time with her child and the
plaintiff, who erroneously thought he was the father of the child.
After the parties in Price separated, the mother voluntarily gave
custody of the child to the plaintiff, visiting her child only
sporadically. In determining whether the mother acted
inconsistently with her protected status, the Court considered a
number of other issues: Whether her relinquishment of custody was
intended to be temporary or permanent; whether her behavior hadcreated the family unit that existed between the plaintiff and the
child; and the degree of custodial, personal and financial contact
between her and her child. See id. at 83-84, 484 S.E.2d at 537.
Of particular significance to our decision in this case, our
Supreme Court in Price did not limit consideration of the mother's
relationship with the child to the recent past, but rather, it
focused on her conduct over a number of years.
In the case at bar, we first note that the trial court's
findings of fact are not detailed enough to determine whether they
are supported by competent evidence. See Buckingham, supra. For
instance, in determining that the mother was a fit and proper
person to care for the children, the trial court failed to point to
any evidence to support its finding.
But more compelling in this case, the trial court specifically
refused to hear evidence on the mother's past conduct. Indeed, the
record indicates that the trial court made the following statement:
If you show her to have been evil, cannibalistic, demon
worshipping in 1996 but it develops that she has
graduated to a candidate for sainthood day, then the
modern evidence is relevant and the old evidence is
history.
This statement reveals that the trial court erroneously placed no
emphasis on the mother's past behavior, however inconsistent with
her rights and responsibilities as a parent.
Further, the trial court explicitly addressed the Price case
and found that its holding was a narrow exception to the rules set
forth in Petersen. We disagree. Price was not limited to the
facts of that particular case, but rather, its broadened holding ofPetersen applies to all child custody disputes. See, e
.g., Penland
v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999)
(holding that Price requires a nonparent who seeks custody of a
child to show that a parent acted inconsistently with her protected
status).
In this case, the record shows that the trial court failed to
consider the long-term relationship between the mother and her
children; failed to make findings on the effect, if any, of the
document that the mother signed relinquishing custody of her
children to the Cantrells; and failed to make findings on the
mother's role in building the relationship between her children and
the Cantrells.
As in Price, we remand this case to the district court to make
findings of fact on whether the mother acted inconsistently with
her constitutionally protected status, and if so, to then apply the
“best interests of the child” test to determine which party should
have custody of the children.
Reversed and remanded.
Judges McGEE and TIMMONS-GOODSON concur.
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