Child Support, Custody, and Visitation_-custody--nonparent--clear and convincing
evidentiary standard--constitutionally protected status as natural parent
The trial court erred in a child custody case by awarding joint legal custody to plaintiff
mother, defendant father, and intervenor paternal grandparents, and by placing primary physical
custody of the child with the grandparents without applying the clear and convincing evidentiary
standard to its decision that plaintiff's conduct was inconsistent with her constitutionally
protected status as a natural parent, and the case is remanded for the pertinent findings of fact.
Gus L. Donnelly for the plaintiff.
Karen Adams for the defendant.
Sarah Stevens for the intervenors.
TIMMONS-GOODSON, Judge.
Nicole Bennett (“plaintiff”) appeals an order of the trial
court awarding joint legal custody of her daughter, Brittany Hawks
(“Brittany”), to plaintiff, Wesley Hawks (“defendant”), and Carlene
and Dennis Hawks (“intervenors”), and placing primary physical
custody of Brittany with intervenors. Because the trial court
failed to apply the clear and convincing evidentiary standard in
making its decision, we reverse and remand the case for findings of
fact consistent with this standard of evidence. The factual and procedural history of this case is as follows:
Plaintiff and defendant were married from August 1994 to March
2000. Brittany was born 27 June 1995. At the time of their
separation in 1996, plaintiff and defendant placed Brittany in the
care of defendant's parents while they dealt with the dissolution
of their marriage. The parties agreed that the grandparents would
keep Brittany until plaintiff could “get on her feet.” The period
after the divorce was a transitional time for plaintiff as she
changed residences and employment quite often.
On 13 June 2001, plaintiff filed the underlying complaint
seeking permanent primary custody of Brittany, and child support
from defendant. The grandparents filed a motion to intervene in
the custody suit, seeking legal and physical custody of Brittany.
They alleged and plaintiff denied, inter alia, that plaintiff had
not had sufficient contact with Brittany or provided financial
support for Brittany since Brittany began living with them.
Plaintiff and defendant consented to the grandparents joining the
custody action as intervenors. Upon hearing the evidence presented
at trial, the trial court issued an order containing several
findings of fact and the following pertinent conclusions of law:
2. All parties are fit and proper persons to
exercise legal custody of the minor
child. The Plaintiff and Defendant have
acted inconsistently with their
constitutionally protected status as
parents.
3. The best interest of the minor child will
be served by residing primarily with the
Intervenors.
The trial court therefore ordered joint legal custody of Brittany
to all parties, and granted primary physical custody to intervenors
with liberal visitation rights for plaintiff. It is from the trial
court's order that plaintiff appeals.
The dispositive issue in this case is whether the trial court
applied the clear and convincing standard of proof in deciding that
plaintiff's conduct was inconsistent with her constitutionally
protected status as a natural parent. Because the trial court's
order is unclear about the standard of proof, we reverse and remand
the trial court's order.
“[N]atural parents have a constitutionally protected interest
in the companionship, custody, care, and control of their
children.” Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530
(1997). This “constitutionally protected paramount interest . . .
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.” Price, 346 N.C. at 79, 484 S.E.2d
at 534 (citing Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614
(1983) and In re Hughes, 254 N.C. 434, 119 S.E.2d 189 (1961)). The
parent's interest “rises to the level of a liberty interest and is
protected by the Due Process Clause of the Fourteenth Amendment.”
Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107
(1999) (citing Price). However, “the parent may no longer enjoy a
paramount status if his or her conduct is inconsistent with thispresumption or if he or she fails to shoulder the responsibilities
that are attendant to rearing a child.” Price, 346 N.C. at 79, 484
S.E.2d at 534. Conduct inconsistent with the presumption includes,
but is not limited to, unfit behavior, neglect and abandonment.
Price, 346 N.C. at 79, 484 S.E.2d at 534.
In the recent case of David N. v. Jason N., 359 N.C. 303, 608
S.E.2d 751 (2005), our Supreme Court held as follows:
It is clear from the holdings of Petersen [v.
Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994)],
Price, and Adams [v. Tessener, 354 N.C. 57,
550 S.E.2d 499 (2001)] that a natural parent
may lose his constitutionally protected right
to the control of his children in one of two
ways: (1) by a finding of unfitness of the
natural parent, or (2) where the natural
parent's conduct is inconsistent with his or
her constitutionally protected status.
359 N.C. at 307, 608 S.E.2d at 753. Therefore, where the trial
court finds that a parent is fit to have custody, it does not
preclude the trial court from granting joint or paramount custody
to a nonparent where the trial court finds that the parent's
conduct was inconsistent with her constitutionally protected
status. Id.
“[T]he decision to remove a child from the custody of a
natural parent must not be lightly undertaken. Accordingly, a
trial court's determination that a parent's conduct is inconsistent
with his or her constitutionally protected status must be supported
by clear and convincing evidence.” Adams, 354 N.C. at 63, 550
S.E.2d at 503 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71
L. Ed. 2d 599, 603 (1982)). Our Supreme Court reaffirmed in David
N. that “a determination that a natural parent has acted in a wayinconsistent with his constitutionally protected status must be
supported by clear and convincing evidence.” 359 N.C. at 307, 608
S.E.2d at 753. Ultimately, the Court reversed the order in David
N. granting custody to a nonparent, and remanded the case because
the trial court “failed to apply the clear and convincing evidence
standard as set forth in Adams.” 359 N.C. at 307, 608 S.E.2d at
754.
The order in the instant case does not indicate which standard
of proof the trial court applied in consideration of plaintiff's
constitutionally protected status as a natural parent. This is
critical because while the general standard of proof in child
custody cases is by a preponderance of the evidence, Speagle v.
Seitz, 354 N.C. 525, 533, 557 S.E.2d 83, 88 (2001), our Supreme
Court announced in Adams and reiterated in David N. that where the
natural parent's constitutionally protected status is at issue, the
standard of proof is clear and convincing evidence.
In light of Adams and David N., we hold that the trial court
must apply the clear and convincing standard of proof in
determining plaintiff's constitutionally protected status as a
natural parent. Absent an indication that the trial court applied
the clear and convincing standard in this case, we reverse the
order of the trial court and remand this case for findings of fact
consistent therewith.
REVERSED and REMANDED.
Judges HUDSON and STEELMAN concur.
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