Appeal by plaintiff from an order entered 28 February 2003 by
Judge Lee W. Gavin in Randolph County Superior Court. Heard in the
Court of Appeals 2 September 2004.
Jon W. Myers, for plaintiff-appellant.
Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for
defendant-appellee.
STEELMAN, Judge.
Shawn Cooper (Cooper) and Sandra Gail Dean (Dean) lived
together, but were never married. While living together, Dean gave
birth to Cooper's daughter (child)(their only child together) on 3
March 1993. Dean and Cooper subsequently separated, and Dean and
the child moved in with plaintiff on 6 May 1994. Dean and
plaintiff were engaged in a romantic relationship for part of the
time that they were living together. The relationship ended, and
Dean and the child moved out in 1996. The child later requested to
be allowed to resume residency with plaintiff, and around November
1996, with Dean's approval, the child did resume residing with
plaintiff. Dean lived apart from plaintiff and the child. Plaintiff raised the child for the next three years, taking care of
her and paying all her expenses. Cooper visited the child
irregularly; for a period of over a year Cooper did not visit the
child at all. On 11 June 1999, Dean took the child from
plaintiff's care and resumed custody. On 17 November 1999
plaintiff filed a complaint seeking custody of the child, and on
that same date an emergency temporary custody order was issued
granting temporary custody of the child to plaintiff. At a 30
November 1999 hearing on the temporary custody of the child, Dean
and Cooper entered into a consent order with plaintiff, which
granted temporary custody to plaintiff. Neither Cooper nor Dean
filed an answer or counterclaim seeking primary custody of the
child. The custody hearing took place on 15, 20, and 28 December
1999. The trial court dismissed plaintiff's custody action on 30
March 2000 holding that Cooper had not relinquished his
constitutionally protected rights as a parent. Plaintiff appealed
to this Court. In an unpublished opinion, Hardister v. Dean, 146
N.C. App. 306, 553 S.E.2d 447 (2001), this Court held that the
trial court's findings of fact were insufficient to support a
conclusion that Cooper was entitled to constitutional protection as
a parent of the child. The order of the trial court was vacated
and remanded for further proceedings. On 28 February 2003, a
second order was entered by the trial court, again holding that
plaintiff had failed to establish by clear and convincing evidence
that Cooper had relinquished his constitutionally protected rightsin the child, and dismissing the plaintiff's action for custody.
Plaintiff appeals.
In plaintiff's assignments of error three through eight she
argues that the trial court erred by finding facts that were not
supported by the evidence. We agree in part.
Plaintiff contends that there is no evidence to support the
trial court's findings of fact nos. 15, 16, 18, 19, 20, 21, 22, 23,
24 and 25 from the 28 February 2003 order. The 28 February 2003
order incorporated the findings of fact of the 30 March 2000 order
by reference. After a thorough review of the record, we hold that
the following relevant findings of fact are either supported by the
evidence or have not been contested by plaintiff:
Cooper is the biological father of the child, born 3 March 1993;
Cooper was never married to the child's mother Dean, but he lived
with Dean and the child for the first one and one half years of the
child's life; from late 1994 to early 1997 Cooper had sporadic
contact with the child, including “extensive periods of time with
no contact;” on 22 May 1997 Cooper filed an action against Dean
seeking visitation, but after acceptance of service by Dean, the
file reflects no further activity; after acceptance of service by
Dean, Dean and Cooper reached an agreement on visitation and child
support to be paid by Cooper; from July of 1997 through December
1999 Cooper exercised visitation and paid $33.00 per week in child
support to Dean; from June 1999 until November 1999 Social Services
received five referrals regarding the child, who was in Dean'scustody at the time. The first four referrals were
unsubstantiated, the fifth was substantiated as to neglect by Dean.
Social Services filed no petition, but entered into an agreement
with Dean; in 1997 or 1998 Cooper informed Social Services that he
desired custody of the child if custody was removed from Dean, but
that he was not financially able to assume custody at that time.
Cooper asked Social Services to do a home study on his parent's
house, but this was never performed; in June of 1999 plaintiff
wanted Cooper to file an action seeking custody of the child from
Dean, but there is no evidence Cooper took any legal action.
Cooper hired an attorney to represent him in the custody
proceeding, and personally participated in the proceeding; Dean did
not object to Cooper having visitation rights; Cooper contacted
Social Services about concerns he had of the child's care by Dean;
Cooper cooperated with Social Services in its investigations of
Dean; Cooper and the child have a good relationship; Cooper
testified that he loved his daughter and wanted custody of her.
There were further findings of fact made by the trial court
and challenged by respondent. We find that these findings are not
supported by the evidence in the record, and they have not been
recited. We find that the findings above are sufficient to support
our rulings set forth below.
In her second assignment of error plaintiff argues that the
trial court erred in making the conclusion of law that Cooper hadnot relinquished his constitutionally protected status as a natural
parent.
The rights to conceive and to raise one's
children have been deemed “essential,” “basic
civil rights of man,” and “rights far more
precious . . . than property rights[.]” “
It is
cardinal with us that the custody, care and
nurture of the child reside first in the
parents, whose primary function and freedom
include preparation for obligations the state
can neither supply nor hinder.” The integrity
of the family unit has found protection in the
Due Process Clause of the Fourteenth
Amendment, the Equal Protection Clause of the
Fourteenth Amendment, and the Ninth
Amendment[.]
Petersen v. Rogers, 337 N.C. 397, 400-01, 445 S.E.2d 901, 903
(1994)(citations omitted),
quoting Stanley v. Illinois, 405 U.S.
645, 651, 31 L. Ed. 2d 551 (1972)(emphasis added).
A natural parent's constitutionally protected
paramount interest in the companionship,
custody, care, and control of his or her child
is a counterpart of the parental
responsibilities the parent has assumed and is
based on a presumption that he or she will act
in the best interest of the child. Therefore,
the parent may no longer enjoy a paramount
status if his or her conduct is inconsistent
with this presumption or if he or she fails to
shoulder the responsibilities that are
attendant to rearing a child. If a natural
parent's conduct has not been inconsistent
with his or her constitutionally protected
status, application of the “best interest of
the child” standard in a custody dispute with
a nonparent would offend the Due Process
Clause.
Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997).
Thus, in order for a non-parent to assume custody of a child over
a natural parent, the non-parent petitioner must first prove by
clear, cogent and convincing evidence that the parent has forfeitedhis constitutionally protected status, then, second, the non-parent
must prevail against the parent at trial under the “best interest
of the child” standard.
Cantrell v. Wishon, 141 N.C. App. 340, 342-
43, 540 S.E.2d 804, 806 (2000).
When this matter was first before this Court, we held that the
trial court's findings of fact were inadequate to support its
conclusion that Cooper had not relinquished his protected status as
a natural parent and we remanded the case for further findings.
The case is again before us, and the additional relevant and
supported findings are outlined in our discussion of plaintiff's
assignments of error three through eight above. We must again
determine if the trial court has provided us with sufficient
findings to support its conclusion that Cooper has not forfeited
his constitutionally protected status as a natural parent. We hold
that the trial court's findings of fact do support its conclusion
that Cooper has not relinquished his protected status.
We first note that “in 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).
The
question of whether a parent has relinquished his or her protected
status must be reviewed on a case by case basis.
Owenby v. Young,357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003). Only after a non-
parent movant has proven by clear and convincing evidence that the
parent has forfeited his constitutionally protected status may the
trial court apply the 'best interest of the child' standard to
determine who, the parent or non-parent movant, shall be awarded
custody of the child.
Id.
The relevant findings of fact, supported by the record, show
that Cooper is the child's biological father; that he lived with
and helped raise the child for the first year and a half of the
child's life; that, though sporadic, he maintained contact with the
child for the following two years; that in May of 1997 he filed an
action against Dean seeking visitation, then worked out a voluntary
visitation and child support agreement; that he exercised his
visitation rights and paid his child support from July of 1997 up
until the 30 March 2000 order gave him physical custody of the
child; that he indicated his desire for custody in late 1997 or
early 1998, but felt he was not financially able to take custody at
that time; that he contacted Social Services to voice his concern
for how Dean was caring for the child, and that he cooperated with
Social Services in their investigations of Dean; that he hired an
attorney to assist him in his attempt to attain sole custody of the
child, and that he participated in the custody proceeding; that he
has a good relationship with the child, and he loves and desires
custody of her.
Based on these findings of fact, we cannot say that respondent
has met her burden of proving by clear, cogent and convincingevidence that Cooper has forfeited his constitutionally protected
status as a natural parent. Having failed in her burden, the
respondent was not entitled to have her action for custody
evaluated on a best interest of the child standard. Therefore, the
trial court properly dismissed plaintiff's action for custody.
This assignment of error is without merit.
Respondent makes further arguments in her first, ninth, tenth,
eleventh, twelfth and thirteenth assignments of error. Based on
our holdings above, we hold that respondent's ninth, tenth and
eleventh assignments of error are without merit, and that it is not
necessary for us to address respondent's first, twelfth and
thirteenth assignments of error.
Because respondent has not argued her other assignments of
error in her brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
AFFIRMED.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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