1. Child Support, Custody, and Visitation_findings_mere recitation of testimony
An order denying plaintiff the reinstatement of visitation rights with his daughter was
remanded for further findings where there was directly conflicting evidence and the court merely
recited the testimony of witnesses without resolving the factual disputes.
2. Child Support, Custody, and Visitation_denial of all visitation rights_no finding of
unfitness
The trial court erred by denying plaintiff the reinstatement of visitation rights with his
daughter based on the best interest of the child. The court did not find plaintiff to be an unfit
parent based upon clear, cogent, and convincing evidence, and the matter was remanded for a
determination of plaintiff's fitness.
Ellis & Winters, L.L.P., by Paul K. Sun, Jr., and Davis,
Flanagan, Bibbs & Smith, P.L.L.C., by Mark L. Bibbs, for
plaintiff-appellant.
Thomas R. Sallenger, for defendant-appellee.
TYSON, Judge.
Jason H. Moore (“plaintiff”) appeals from an order denying
reinstatement of his visitation rights with his minor child. We
reverse and remand.
I. Background
Plaintiff and Shelley Moore (now Shelley Platte)(“defendant”)
were married in August 1997 and divorced in August 2000. A
daughter was born of the marriage on 27 February 1998. An order
dated 26 April 2001 was entered awarding defendant legal custody ofthe child and plaintiff was allowed supervised visitation.
On 5 July 2001, defendant filed a motion to suspend
plaintiff's visitation rights pending a sexual abuse investigation
by the Wilson County Department of Social Services and Raleigh
Pediatrics at Wake Memorial Hospital. Defendant alleged that the
three-year old child had been exposed to improper sexual contact
with plaintiff. The allegations arose after the child revealed to
her maternal grandmother that plaintiff had touched her genitals
while she and plaintiff were swimming in his mother's pool during
a scheduled visit. All visitation with plaintiff was suspended on
19 July 2001 and a protective order was entered pending further
investigation.
Plaintiff filed a motion to reinstate visitation on 3 December
2001. The trial court heard testimony from a social worker and
expert witnesses in the field of child sexual abuse, each of whom
had conducted interviews with the child. The psychologist
testified that the child had spontaneously disclosed that plaintiff
had licked her genitals and that she had licked plaintiff's
genitals. The social worker testified that the child disclosed
that plaintiff had touched her genitals while they were in the
pool, and demonstrated the manner in which he purportedly did so,
but did not disclose where any other sexual contact occurred.
There was no physical evidence of sexual abuse.
Plaintiff, plaintiff's mother, and plaintiff's two sisters
testified that plaintiff was never alone with the child in the pool
or at any other time during the supervised visitations and denied
any allegations of sexual abuse. The child did not testify. TheWilson Police Department conducted a criminal investigation, but
did not initiate criminal charges.
The trial court denied plaintiff's motion to reinstate
visitation, finding that it was not in the best interest of the
child that plaintiff's visitation be resumed. The trial court
concluded that the protective order entered 19 July 2001 should
remain in full force and effect in the child's best interest.
II. Issues
Plaintiff contends that the trial court erred by: (1) failing
to make sufficient findings of fact and conclusions of law
necessary to determine the issues raised and (2) applying a best
interest analysis when prohibiting any and all visitation rights of
a parent.
III. Findings of Fact
[1] N.C. Gen. Stat. 1A-1, Rule 52(a)(1) provides: “In all
actions tried upon the facts without a jury . . . the court shall
find the facts specially and state separately its conclusions of
law . . . .” N.C. Gen. Stat. 1A-1, Rule 52(a)(1) (2001).
While Rule 52(a) does not require a recitation
of the evidentiary and subsidiary facts
required to prove the ultimate facts, it does
require specific findings of the ultimate
facts established by the evidence, admissions
and stipulations which are determinative of
the questions involved in the action and
essential to support the conclusions of law
reached.
Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 658 (1982).
“[R]ecitations of the testimony of each witness do not constitute
findings of fact by the trial judge, because they do not reflect a
conscious choice between the conflicting versions of the incidentin question which emerged from all the evidence presented.” In re
Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195 n.1 (1984).
“Where there is directly conflicting evidence on key issues, it is
especially crucial that the trial court make its own determination
as to what pertinent facts are actually established by the
evidence, rather than merely reciting what the evidence may tend to
show.” In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366
(2000).
Here, the trial court merely recited the testimony of
witnesses. “This is indicated by the trial court's repeated
statements that a witness 'testified' to certain facts or other
words of similar import.” Williamson v. Williamson, 140 N.C. App.
362, 364, 536 S.E.2d 337, 339 (2000). There was directly
conflicting evidence regarding the allegations of sexual abuse.
Therapists and social workers testified that the child disclosed
instances of sexual abuse, while plaintiff, his mother, and his two
sisters testified that the alleged conduct did not and could not
have happened. No physical evidence of abuse was presented.
The trial court's recitation of the testimony of witnesses and
findings of fact are insufficient to support its conclusions on the
ultimate facts based on the weight of the evidence. We reverse and
remand to the trial court for further findings of fact supporting
the ruling and to determine the source of the minor child “acting
out things that, at three-years old, she has had to have been
seeing.”
IV. Burden of Proof
[2] The “Due Process Clause of the Fourteenth Amendmentprotects 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:
[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 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)
(2001). 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. We reverse and remand.
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