CARIE FRANCIS MCDUFFIE,
Plaintiff,
v
.
MAURICE MITCHELL
Defendant.
James, McElroy & Diehl, P.A., by Richard A. Elkins and Preston
O. Odom, III, for plaintiff-appellant.
Richard L. McClerin for defendant-appellee.
THOMAS, Judge.
Plaintiff, Carie McDuffie, appeals the trial court's dismissal
of her complaint seeking visitation and custody of her two
grandchildren. For the reasons herein, we affirm.
Plaintiff is the maternal grandmother of Maurice Mitchell III
and Ayanna Mitchell. Maurice was born on 10 July 1991 and Ayanna
was born on 29 May 1993, both during the marriage of their mother
and father, the late Sharon McDuffie (formerly Mitchell) and
defendant, Maurice Mitchell. After the parents were divorced in
1997, the Superior Court of New Jersey, Chancery Division, entered
an order giving custody of the children to Sharon and visitation
rights to defendant.
Sharon and the children moved to North Carolina later that
year. The New Jersey court order was registered in MecklenburgCounty District Court in 98 CVD 15717. In July 2000, defendant
filed a Motion to Modify Custody, alleging that he had been denied
visitation by Sharon and her boyfriend, James Brown. A trial was
held on 11 September 2000. On 27 November 2000, the court entered
an order awarding continued custody to Sharon and visitation to
defendant.
In early October 2000, however, Sharon suffered a medical
emergency and went into a coma from which she was not expected to
recover. Defendant filed an Emergency Motion to Modify Custody on
17 October 2000. Sharon died on 20 October 2000, prior to a
hearing on that motion. On 27 October 2000, plaintiff filed a
Motion to Intervene in what had been the custody case between
Sharon and defendant. James Brown filed a Motion to Intervene on
30 October 2000. The children resided with plaintiff immediately
after Sharon's death.
While those motions were pending, plaintiff instituted the
present action by filing a complaint on the morning of 8 December
2000 seeking custody and injunctive relief. By notice pleading and
later, by consent, visitation was sought as well. On the afternoon
of 8 December 2000, defendant obtained an order authorizing him to
take physical custody of the children.
On 5 January 2001, in the original case, the trial court
denied the motions of plaintiff and Brown to intervene on the basis
that there was no longer an ongoing custody action and that Brown
had violated Rule 24 of the North Carolina Rules of Civil
Procedure. The trial court then dismissed the motions tointervene, defendant's motion to modify custody, the 27 November
2000 order granting custody to Sharon, and an 11 August 1999 child
support order. It ruled that the court's subject matter
jurisdiction had ceased in the case and terminated the custody
proceedings between Sharon and defendant.
On 17 January 2001, in the instant case, defendant filed an
answer and a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Rule 12(b)(6). On 2 March
2001, defendant filed a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1). Plaintiff then filed a
Motion in the Cause pursuant to N.C. Gen. Stat. § 50-13.5(j) on 6
March 2001. Section 50-13.5(j) provides, in pertinent part:
In any action in which the custody of a minor
child has been determined, upon a motion in
the cause and a showing of changed
circumstances pursuant to G.S. 50-13.7, the
grandparents of the child are entitled to such
custody or visitation rights as the court, in
its discretion, deems appropriate. As used in
this subsection, “grandparent” includes a
biological grandparent of a child adopted by a
stepparent or a relative of the child where a
substantial relationship exists between the
grandparent and the child.
N.C. Gen. Stat. § 50-13.5(j) (2001).
On 1 June 2001, the trial court denied and dismissed
plaintiff's claims for visitation, custody and injunctive relief
and dismissed her motion in the cause.
By plaintiff's first assignment of error, she contends the
trial court erred in dismissing her visitation claim under Rule
12(b)(6) because genuine issues of material fact existed regarding
whether defendant and the children were an “intact family.” Wedisagree.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6),
the trial court must take all of the allegations of the complaint
as true. Affordable Care, Inc. v. North Carolina State Bd. of
Dental Examiners, ___ N.C. App. ___, 571 S.E.2d 52 (2002).
However, the trial court must also draw its own legal conclusions
from the facts, which may differ from those advocated by plaintiff.
Id. at 57.
We note that where one parent is deceased, the surviving
parent has a natural and legal right to custody and control of the
minor children. Comer v. Comer, 61 N.C. App. 324, 300 S.E.2d 457
(1983). This right is not absolute, but it may be interfered with
or denied “only for the most substantial and sufficient reasons,
and is subject to judicial control only when the interests and
welfare of the children clearly require it.” Id. at 327, 300 S.E.2d
at 459 (citing James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759,
761 (1955)). See also Price v. Howard, 346 N.C. 68, 484 S.E.2d 528
(1997).
Section 50-13.1(a) provides:
Any parent, relative, or other person, agency,
organization or institution claiming the right
to custody of a minor child may institute an
action or proceeding for the custody of such
child, as hereinafter provided. Unless a
contrary intent is clear, the word “custody”
shall be deemed to include custody or
visitation or both.
N.C. Gen. Stat. § 50-13.1(a) (2001). Pursuant to this section, a
grandparent may institute an action for custody of his or hergrandchild, but the statute does not grant grandparents the right
to sue for visitation when no custody proceeding is ongoing and the
minor children's family is intact. McIntyre v. McIntyre, 341 N.C.
629, 635, 461 S.E.2d 745, 750 (1995).
Plaintiff argues that the circumstances here sufficiently
diverge from those in McIntyre, Price v. Howard, 346 N.C. 68, 484
S.E.2d 528 (1997); Montgomery v. Montgomery, 136 N.C. App. 435, 524
S.E.2d 360 (2000); and Fisher v. Gaydon, 124 N.C. App. 442, 477
S.E.2d 251 (1996), rev. denied, 345 N.C. 640, 483 S.E.2d 706 (1997)
so as to warrant a different result. In that line of cases, the
non-custodial parent was the one who died. Here, it is the
custodial parent who died, with the non-custodial parent not having
the children in his physical control either immediately before or
after the death. While we may sympathize with the distinction, and
however harsh the result, the precise wording in those cases does
not even allow us to reach the issue of whether the family here was
intact.
Grandparents' right to visitation is dependent on there either
being an ongoing case where custody is an issue between the parents
or a finding that the parent or parents are unfit. Price v.
Breedlove, 138 N.C. App. 149, 530 S.E.2d 559, rev. denied, 353 N.C.
268, 546 S.E.2d 111 (2000). Upon the death of the mother in the
instant case, the ongoing case between the mother and father ended.
McIntyre v. McIntyre, supra. Consequently, there was no on-going
custody action when plaintiff filed her motion to intervene.
Plaintiff argues a further distinction by noting she did notappeal the dismissal of her motion to intervene in Case Number 98
CVD 15717. However, by filing a new complaint requesting custody,
and through notice pleading and agreement also asking for
visitation, she claims a right to visitation where the family is
not intact or where a parent is shown to be unfit. Nonetheless, as
aforementioned, whether a family is intact, standing alone, is an
irrelevant issue for this claim. The fact that the trial court
specifically stated that its jurisdiction in the original action
ended 5 January 2001, after the filing of plaintiff's complaint, in
no way relieves plaintiff of her burden to allege and prove
unfitness. See Price v. Breedlove, supra; McIntyre v. McIntyre,
supra.
By her second assignment of error, plaintiff contends the
trial court erred in dismissing her custody claim pursuant to Rule
12(b)(6). Specifically, she insists she has alleged types of
conduct which are inconsistent with defendant's status as a parent.
We disagree.
Our courts recognize “the general principle that because of
the strength and importance of the parents' constitutionally
protected interests, those interests must prevail against a third
party unless the court finds that the parents are unfit or have
neglected the welfare of their children.” Price v. Howard, supra.
This Court stated in Penland v. Harris, 135 N.C. App. 359, 362, 520
S.E.2d 105, 107 (1999):
We read Price as broadening the rule of
McIntyre by requiring that a third party,
including a grandparent, who seeks custody of
a minor child as against the child's naturalparent, must allege facts sufficient to show
that the natural parent has acted in a manner
inconsistent with his or her constitutionally
protected status.
The complaint here fails to sufficiently allege acts that would
constitute “unfitness, neglect, [or] abandonment,” or any other
type of conduct so egregious as to result in defendant's forfeiture
of his constitutionally protected status as a parent. Price v.
Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997). It merely
alleges that defendant has been “estranged from the children for
some time and currently only enjoys limited visitation with the
minor children.” The rest of the complaint focuses on plaintiff's
role in the children's lives, and asserts that remaining with her
is in their best interests. Such allegations fall short of
establishing that defendant acted in a manner inconsistent with his
protected status. A best interests analysis is not appropriate
absent such a finding. See N.C. Gen. Stat. § 50-13.2(a); Price v.
Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).
In fact, defendant pursued a modification in custody after he
claimed he was denied visitation by Sharon and her boyfriend. The
trial court in 98 CVD 15717 made several findings of fact that the
mother and her boyfriend had denied defendant visitation. Further,
defendant sought custody of the children immediately after Sharon
went into a coma.
The complaint here is insufficient to state a claim under N.C.
Gen. Stat. § 50-13.1(a) on behalf of plaintiff for custody of
defendant's minor children. We therefore affirm the trial court'sorder dismissing plaintiff's visitation and custody claims.
AFFIRMED.
Judges WALKER and MCGEE concur.
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