An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
No. 00 CVD 6405
AUNDREA REA CARROLL,
Appeal by defendant from order entered 19 May 2003 by Judge
Gary S. Cash in Buncombe County District Court. Heard in the Court
of Appeals 10 June 2004.
The Law Firm of Adam W. Bull, by Adam W. Bull, for plaintiff-
Sutton Edmonds & Sutton, by April Burt Sutton, for defendant-
Defendant Aundrea Rea Carroll appeals from the trial court's
order granting primary custody of her son G.L. to plaintiff Betty
Laird _ Ms. Carroll's mother and the child's grandmother. Since
Ms. Carroll has not properly assigned error to the trial court's
findings of fact and since those findings support the trial court's
conclusions of law, we hold that the trial court did not err in
concluding that Ms. Carroll engaged in conduct inconsistent with
her constitutionally protected status as a parent. Based on ourreview of the record and the trial court's order, we further hold
that the court did not abuse its discretion in determining that the
best interests of the child required that custody be awarded to Ms.
Laird. Accordingly, we affirm the trial court's order.
Ordinarily, in child custody proceedings, N.C. Gen. Stat. §
50-13.2(a) (2003) requires that the trial court "award the custody
of [a minor] child to such person, agency, organization or
institution as will best promote the interest and welfare of the
child." When, however, the proceeding involves a dispute between
a parent and a nonparent, the parent has a constitutionally
protected right to the custody, care, and control of his or her
child. Petersen v. Rogers, 337 N.C. 397, 406, 445 S.E.2d 901, 906
(1994). This constitutionally protected interest "must prevail in
a custody dispute with a nonparent, absent a showing of unfitness
or neglect." Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530
A parent's paramount constitutional interest in his or her
child exists hand-in-hand with "the parental responsibilities the
parent has assumed." Id. at 79, 484 S.E.2d at 534. Because of
these responsibilities, courts presume that the parent will act in
the best interest of the child. Id. Accordingly, the parent loses
this paramount status "if his or her conduct is inconsistent withthis presumption or if he or she fails to shoulder the
responsibilities that are attendant to rearing a child." Id. Our
Supreme Court has described the conduct that is inconsistent with
a parent's protected status: "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." Id.,
484 S.E.2d at 534-35. Once the trial court finds such conduct,
"custody should be determined by the 'best interest of the child'
test mandated by statute." Id., 484 S.E.2d at 535.
The trial court's findings of fact as to whether a parent's
conduct is inconsistent with his or her constitutionally protected
status are conclusive on appeal if they are supported by clear and
convincing evidence, even though the evidence might sustain
findings to the contrary. Owenby v. Young, 357 N.C. 142, 147, 579
S.E.2d 264, 268 (2003). The trial court's determination regarding
the best interests of the child will not be disturbed unless there
is "'a clear showing of abuse of discretion.'" Dixon v. Dixon, 67
N.C. App. 73, 76, 312 S.E.2d 669, 672 (1984) (quoting King v. Demo,
40 N.C. App. 661, 668, 253 S.E.2d 616, 621 (1979)). An abuse of
discretion "is shown only when the court's decision 'is manifestly
unsupported by reason or is so arbitrary that it could not havebeen the result of a reasoned decision.'" Barton v. Sutton, 152
N.C. App. 706, 710, 568 S.E.2d 264, 266 (2002) (quoting State v.
McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)).
From the day G.L. was born, 30 December 1991, until he was
about two years old, he lived with Ms. Carroll and her parents,
Betty and Jay Laird, in the Lairds' home in Candler, North
Carolina. Ms. Laird, rather than Ms. Carroll, provided primary
care for G.L.
(See footnote 1)
Although Ms. Carroll moved out of the Lairds' home
when the child was two years old, G.L. continued to live with and
be cared for by the Lairds.
When the child was three years old, Ms. Carroll moved into a
mobile home 150 yards from the Lairds' home. During the next three
years, Ms. Laird continued to care for G.L. while Ms. Carroll
worked; G.L. often spent nights and weekends with the Lairds; and
G.L. went to the Lairds' home when he was upset or afraid because
of fighting between Ms. Carroll and her new husband. Ms. Carroll
often became angry and damaged objects and the mobile home. During
this period, G.L. was in Ms. Laird's care for at least half the
Shortly after G.L. began first grade, Ms. Carroll and herhusband moved to Franklin, North Carolina, leaving G.L. with Ms.
Laird. Although after a few weeks, Ms. Carroll retrieved G.L., she
later returned him to Ms. Laird and Ms. Laird enrolled him in first
grade in Candler. Ms. Carroll visited him on occasional weekends.
While in Franklin, Ms. Carroll continued to experience
episodes of intense, destructive anger. After being evicted from
their Franklin home, the Carrolls returned to the mobile home near
the Lairds, but G.L. stayed with Ms. Laird most nights. The
Carrolls had violent arguments, but Ms. Carroll told G.L. not to
let Ms. Laird know. After several months, the Carrolls separated
and Ms. Carroll moved into the Lairds' home. Even so, Ms. Laird
continued to be the primary caretaker of G.L. In the fall of
G.L.'s second-grade year, however, Ms. Carroll had a dispute with
her mother, moved out with her son, and told Ms. Laird that she
would never see the child again.
Until that point, Ms. Laird had been the primary caregiver for
G.L. for most of his life. She had been primarily responsible for
taking him to doctors and dentists; she, rather than Ms. Carroll,
had been involved in his school activities; she had purchased
almost all of his clothes and school supplies; and she had involved
him in church and church activities.
On 19 December 2000, in response to her daughter's threat to
deprive her of contact with her grandchild, Ms. Laird filed suitseeking custody of and visitation with her grandchild. Over time,
the court entered a series of orders, granting Ms. Carroll custody,
providing Ms. Laird with visitation, ordering Ms. Carroll to
complete a substance-abuse assessment, and directing Ms. Carroll to
enroll her son in therapy.
The court found, based on the testimony of school officials,
that during the time G.L. resided with Ms. Laird, he arrived at
school on time, was calm and prepared, and had his homework
complete. When Ms. Carroll had primary care, G.L.'s attendance was
poor, he was frequently late (receiving more than 100 "tardies" in
the third and fourth grades), he often arrived without having had
breakfast, his grades fell significantly, and he had disciplinary
problems. When school officials attempted to communicate with Ms.
Carroll about the child's unexcused absences and disciplinary
problems, she either did not respond or was rude and hostile.
On 21 December 2001, the court found Ms. Carroll to be in
willful contempt of the prior orders for repeatedly failing to
grant Ms. Laird her visitation. The trial court deferred ruling on
sanctions until a later hearing, but admonished Ms. Carroll to
comply with the prior orders and ordered her to provide
documentation that she and G.L. had been receiving therapy.
Following a hearing on 21 February 2002 that Ms. Carroll chose
not to attend, the trial court found (1) that Ms. Carroll hadfailed to document compliance with the requirement that she provide
G.L. with counseling and that she complete an anger management
program and (2) that Ms. Carroll had continued to violate Ms.
Laird's right to visitation. The court, however, again held open
the issue of sanctions pending further hearing. At the next
hearing on 25 March 2002, Ms. Carroll arrived an hour late. In its
order following the hearing, the court noted that "[it] had serious
concerns over the Defendant's attentiveness to the necessary
details of this case . . . ." The court found that Ms. Carroll had
failed to comply with prior orders regarding G.L.'s counseling and
anger management. The court appointed a guardian ad litem to
investigate Ms. Laird's allegations and assist the court in
determining the best interests of G.L.
The matter was peremptorily set for hearing the week of 5 June
2002 and the court instructed the parties to have their witnesses
available. Following the filing of the guardian ad litem's report,
Ms. Carroll moved for a continuance to obtain witnesses to respond
to that report. At the 5 June 2002 hearing, the parties stipulated
that the guardian ad litem's report would be admitted. Although
granting Ms. Carroll's request for a continuance, the trial court
ordered joint custody between the parties with alternating weekly
placement pending a further hearing. Ms. Carroll, however, failed
to comply with the order, causing Ms. Laird to file a motion toshow cause on 19 December 2002.
In November 2002, the fall of G.L.'s fifth-grade year, Ms.
Carroll remarried. In March 2003, police responded to a domestic
dispute that occurred with G.L. present and while Ms. Carroll's new
husband was intoxicated. During the fifth grade, G.L.'s grades
continued to fall, he was sent to the principal's office six times,
and he had excessive unexcused absences and tardies. The court
found that Ms. Carroll drove G.L. to school on multiple occasions
although she does not have a valid North Carolina driver's license.
The school counselor was concerned that the child's disciplinary
problems were related to Ms. Carroll's remarriage. While Ms.
Carroll did not respond to communications from the school, Ms.
Laird continued to meet with G.L.'s teachers to discuss his school
On 14 February 2003, the trial court found Ms. Carroll in
willful contempt of its prior orders, but _ at the parties' request
_ did not impose sanctions and instead admonished Ms. Carroll to
allow the court-ordered visitation. Immediately following the
hearing, however, Ms. Carroll failed to comply. When it entered
its written order, the court found "that defendant has been found
in willful contempt of the orders of this Court on two occasions
and has continued to make it clear that she will not follow the
orders of this Court." Following an evidentiary hearing in March and April 2003, the
court entered an order on 19 May 2003, concluding "[t]hat there is
convincing evidence that the defendant has neglected her minor
child . . ., such that she should not have custody of him and that
she has thereby waived her paramount constitutional right to
custody and control of said child" and "[t]hat the plaintiff is a
fit and proper person to have custody of [the child] and it is in
his best interest that she have custody of him." The court granted
Ms. Laird primary custody and Ms. Carroll weekend visitation. Ms.
Carroll filed notice of appeal from the court's 19 May 2003 order
on 20 May 2003.
Ms. Carroll's Constitutionally Protected Right
In challenging the trial court's determination that she
engaged in conduct inconsistent with her protected status, Ms.
Carroll first argues that the evidence was inadequate to support
the trial court's findings of fact. Ms. Carroll did not, however,
specifically assign error to any of the trial court's findings of
fact. Instead, her sole pertinent assignment of error states only:
"The court's Finding[s] of Facts are not supported by clear and
convincing evidence and are therefore erroneous."
It is well-established that "[a] single assignment [of error]
generally challenging the sufficiency of the evidence to support
numerous findings of fact, as here, is broadside and ineffective"under N.C.R. App. P. 10. Wade v. Wade
, 72 N.C. App. 372, 375-76,
325 S.E.2d 260, 266, disc. review denied
, 313 N.C. 612, 330 S.E.2d
616 (1985). Because Ms. Carroll has not properly assigned error to
any specific findings of fact, the trial court's findings are
binding on this Court. Koufman v. Koufman
, 330 N.C. 93, 97, 408
S.E.2d 729, 731 (1991) ("Where no exception is taken to a finding
of fact by the trial court, the finding is presumed to be supported
by competent evidence and is binding on appeal.").
and the trial court's other prior unchallenged orders established
the above-recited facts.
In any event, Ms. Carroll acknowledges that the court's
findings of fact were supported by the testimony of Ms. Laird and
her husband and by the guardian ad litem's report. She contends,
however, that the trial court erred in accepting this evidence as
credible and that it was insufficient to overcome her evidence.
Questions of credibility and weight are solely within the
discretion of the trial judge when sitting as the trier of fact.
Westneat v. Westneat
, 113 N.C. App. 247, 250, 437 S.E.2d 899, 900
(1994). The trial court was free to choose to believe the Lairds'
and school officials' testimony over that of Ms. Carroll. With
respect to the guardian ad litem report, Ms. Carroll also complains
that it contains "unsworn, biased statements from a collection of
incompetent, unreliable witnesses" and could not, therefore, forma basis for the trial court's findings of fact. Ms. Carroll,
however, stipulated to the report's admission into evidence and the
trial court accordingly properly relied upon it.
The sole question properly before this Court is whether the
findings of fact support the conclusion of law that Ms. Carroll
neglected G.L. and waived her paramount constitutional right to
custody. Although it is unnecessary for a court to find that a
parent's conduct rose to the level warranting termination of
parental rights, a court's finding of neglect, abandonment, or any
of the other grounds set forth in N.C. Gen. Stat. §7B-1111 may
result in a loss of a parent's protected status. Owenby
, 357 N.C.
at 145, 579 S.E.2d at 267. See also Price
, 346 N.C. at 79, 484
S.E.2d at 534 ("Unfitness, neglect, and abandonment clearly
constitute conduct inconsistent with the protected status parents
may enjoy."). In Speagle v. Seitz
, 354 N.C. 525, 531, 557 S.E.2d
83, 87 (2001), the Supreme Court stressed "that any past
circumstance or conduct which could impact either the present or
the future of a child is relevant, notwithstanding the fact that
such circumstance or conduct did not exist or was not being engaged
in at the time of the custody proceeding."
In this case, the court made detailed findings regarding Ms.
Carroll's conduct. They included (1) leaving G.L. in Ms. Laird's
care for extended periods of time and, even when Ms. Carroll waspresent in Ms. Laird's home, allowing Ms. Laird to be primarily
responsible for G.L.'s care, supervision, and necessities; (2)
exposing the child to substantial domestic violence and emotional
upheaval in his home; (3) failing to ensure that he received
necessary counseling and a proper education; and (4) willfully
violating court orders entered in the best interests of the child.
These findings regarding the child's care are consistent with
the statutory definition of a "[n]eglected juvenile":
A juvenile who does not receive proper care,
supervision, or discipline from the juvenile's
parent, guardian, custodian, or caretaker . .
. or who is not provided necessary remedial
care; or who lives in an environment injurious
to the juvenile's welfare . . . .
N.C. Gen. Stat. § 7B-101(15) (2003). See, e.g., Pratt v. Bishop
257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962) ("Certainly a
continued wilful failure to perform the parental duty to support
and maintain a child would be evidence that a parent had
relinquished his claim to the child."); In re Davis
, 116 N.C. App.
409, 414, 448 S.E.2d 303, 306 (parents' failure to "obtain
continued counseling, a stable home, stable employment, and
[attend] parenting classes" was sufficient to show a probability
that neglect would be repeated if child were returned to the care
of the parents), disc. review denied
, 338 N.C. 516, 452 S.E.2d 808
(1994); In re McMillan,
30 N.C. App. 235, 238, 226 S.E.2d 693, 695(1976)
("It is fundamental that a child who receives proper care
and supervision in modern times is provided a basic education.").
Further, our Supreme Court has observed that a parent's
"failure to maintain personal contact with the child or failure to
resume custody when able" may alone amount to conduct inconsistent
with protected parental interests. Price
, 346 N.C. at 83-84, 484
S.E.2d at 537.
(See footnote 2)
Here, the trial court's findings reveal that, for
much of G.L.'s life, Ms. Carroll abdicated responsibility for her
son to her mother, Ms. Laird. These findings are sufficient to
support the conclusion that Ms. Carroll acted in a manner
inconsistent with her status as a parent. Ellison v. Ramos
N.C. App. 389, 398-99, 502 S.E.2d 891, 897 (allegations that the
father had relinquished custody of his child to others on several
occasions "support a conclusion that [the father] has acted in a
manner inconsistent with his protected status as a parent"), appeal
, 349 N.C. 356, 517 S.E.2d 891 (1998).
Accordingly, we hold that the trial court's findings of fact
supported its conclusion of law that Ms. Carroll's conduct wasinconsistent with the constitutionally protected right of a parent
to custody and control of her child.
The Award of Custody to the Child's Grandmother
Following the trial court's initial determination regarding
the nature of Ms. Carroll's conduct, the court was required to
consider the best interests of the child in deciding whether to
award Ms. Laird custody. Speagle
, 354 N.C. at 531-32, 557 S.E.2d
at 87 ("[W]e note that findings of fact of a parent's conduct
inconsistent with that parent's protected status, whether related
to past or present conduct, do not in and of themselves determine
custody. A finding of inconsistent conduct merely triggers the
best interests of the child analysis."). Ms. Carroll did not
assign error to the trial court's decision regarding the best
interests of the child. That decision, therefore, is not properly
before us. N.C.R. App. P. 10(a) ("[T]he scope of review on appeal
is confined to a consideration of those assignments of error set
out in the record on appeal in accordance with this Rule 10.").
In her brief, however, Ms. Carroll complains that the trial
court did not conduct any additional analysis before making the
"best interests" determination. It is unclear what procedure Ms.
Carroll contends that the trial court should have followed.
Before awarding custody, the trial court must conclude as a
matter of law that the award of custody to a particular party "willbest promote the interest and welfare of the child."
Stat. § 50-13.2(a). The court must make findings as to the
"characteristics of the competing parties," such as physical,
mental, or financial fitness or any other factors brought out by
the evidence and relevant to the issue of the welfare of the child.
Steele v. Steele
, 36 N.C. App. 601, 604, 244 S.E.2d 466, 468
(1978). The findings must be sufficiently detailed so that a
reviewing court may determine whether the award of custody is, in
fact, in the child's best interest. Dixon
, 67 N.C. App. at 76-77,
312 S.E.2d at 672.
Here, the trial court made the necessary findings and
specifically concluded that awarding custody to Ms. Laird was in
the best interests of the child. Based on those findings _
describing G.L.'s significantly better school performance when in
the care of Ms. Laird, the anger and violence surrounding Ms.
Carroll, and Ms. Carroll's unwillingness to follow the court's
orders (including obtaining necessary therapy for her son) _ we
conclude that the trial court did not abuse its discretion in
awarding custody to Ms. Laird.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
The child's father is unknown and was not a party to this
Ms. Carroll has not argued that circumstances required her to
relinquish custody for the benefit of the child. Compare Price
346 N.C. at 83, 484 S.E.2d at 537 ("[T]here are circumstances where
the responsibility of a parent to act in the best interest of his
or her child would require a temporary relinquishment of custody,
such as under a foster-parent agreement or during a period of
service in the military, a period of poor health, or a search for
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