IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-185
Filed: 7 January 2020
Buncombe County, No. 12 CVD 2858
JOSHUA D. PAYNICH, Plaintiff,
v.
HOLLY B. VESTAL,1 Defendant.
Appeal by Defendant from order entered 13 August 2018 by Judge Andrea F.
Dray in Buncombe County District Court. Heard in the Court of Appeals 1 October
2019.
Siemens Family Law Group, by Jim Siemens, for Plaintiff-Appellee.
Michael E. Casterline for Defendant-Appellant.
COLLINS, Judge.
Defendant Holly B. Vestal appeals the trial court’s 13 August 2018 child
custody modification order allowing her certain visitation with her child and denying
her access to the child’s school, medical, and counseling records. Defendant argues
that the trial court erred in awarding her unreasonable visitation without finding her
1 The caption in the order on appeal erroneously lists DEFENDANT B. VESTAL, Defendant. All other orders and motions in the Record on Appeal before this Court reference HOLLY B. VESTAL, Defendant. PAYNICH V. VESTAL
Opinion of the Court
unfit, and erred in denying her access to the child’s records. We affirm the order for
visitation and reverse the order denying her access to the child’s records.
I. Procedural History and Factual Background
Plaintiff Joshua D. Paynich and Defendant Holly B. Vestal were married in
1997. Their daughter was born in March 2011, and the parties separated a year later.
In June 2012, Plaintiff filed a complaint for child custody, seeking joint custody.
Defendant filed an answer and counterclaim, seeking primary custody. The parties
divorced in May 2013. The trial court found this case to be one of high conflict, and
appointed Linda Shamblin, PhD, to act as parenting coordinator on 23 September
2013. The parties shared custody of the child until 18 June 2014, when the trial court
entered an emergency custody order, placing sole care, custody, and control of the
child with Plaintiff. On 16 September 2014, the Court entered an order for a
parenting capacity evaluation. Pursuant to this order, Defendant was awarded
supervised visitation. Smith Goodrum, PhD, was appointed to conduct the parenting
capacity evaluation.
After a custody hearing on 15 January 2015, the trial court entered a child
custody order on 30 January 2015, finding and concluding that Plaintiff is a fit parent;
Defendant is “not presently fit to parent, except under supervised conditions[;]”
awarding Plaintiff sole care, custody, and control of the child; and awarding
Defendant four hours of supervised visitation with the child two times per week, as
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well as opportunities for supervised visits on special days. Defendant was ordered to
undergo additional mental health evaluation and engage in therapy two times per
week. Both parents were allowed access to the child’s medical, dental, and
educational records.
In 2016, pursuant to a motion to modify custody filed by Defendant, the court
conducted another custody hearing. The court found a substantial change of
circumstances in that Defendant appeared to be parenting appropriately within the
confines of periodic supervised visitation; Ms. Georgia Pressman, MA, LPC, was
providing therapy for the child and should “be in a position to report to the parenting
coordinator if the Defendant’s visitation with the minor child is compromising the
minor child’s proper development[;]” and the child was then five years old. The trial
court maintained the child’s sole care, custody, and control with Plaintiff. Defendant
was allowed unsupervised visits with the child on Tuesdays from 3 p.m. to 7 p.m.,
and every other Saturday from 10 a.m. to 6 p.m. Beginning in January 2017, absent
a contrary recommendation from Ms. Pressman, Defendant could also have
unsupervised visits on alternate Thursdays from 3 p.m. to 7 p.m. Defendant could
request additional daytime visits on special occasions through the parenting
coordinator. Defendant was also allowed to request supervised, extended visits of up
to five overnights during the Thanksgiving and Christmas holidays.
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In January 2018, Defendant filed an amended motion to modify custody. The
hearing on Defendant’s motion was conducted over four days in June 2018. On 13
August 2018, the trial court entered a child custody modification order. The trial
court made numerous findings of fact, including that “Defendant’s conduct and the
minor child’s deterioration since entry of the August 11, 2016 Order are causally
related, and constitute substantial changes of circumstance adversely and
substantially affecting and pertaining to the minor child.” The trial court continued
sole care, custody, and control of the child with Plaintiff. The trial court concluded
that the child’s visitation with Defendant should be restructured. Defendant was
allowed unsupervised, overnight visitation with the child on alternate weekends from
11 a.m. on Saturday to 3 p.m. on Sunday. The court ordered that holidays would
continue to be shared as set out in the August 2016 order, which allowed Defendant
unsupervised, daytime visits on special days, such as the child’s birthday and
Mother’s Day, and during school recesses for Thanksgiving and Christmas, but
required Defendant to request such visits from the parenting coordinator at least
three weeks in advance. Extended holiday visits of up to five overnights would still
require that Defendant be supervised.
The order denied Defendant access to the child’s school, medical, and
counseling records. It further denied her the right to attend school events and
performances; to participate in making medical decisions involving the child; and to
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participate in the child’s counseling, unless requested by the child’s treatment
provider. From the 13 August 2018 order, Defendant appeals.
II. Discussion
A. Visitation
Defendant first argues that the trial court erred by denying her reasonable
visitation without finding that she was an unfit person to have reasonable visitation,
thus violating the mandate of N.C. Gen. Stat. § 50-13.5(i).
“The guiding principle to be used by the court in a custody hearing is the
welfare of the child or children involved.” Brooks v. Brooks, 12 N.C. App. 626, 630,
184 S.E.2d 417, 420 (1971). “While this guiding principle is clear, decision in
particular cases is often difficult and necessarily a wide discretion is vested in the
trial [court].” Id. The trial court “has the opportunity to see the parties in person
and to hear the witnesses, and [its] decision ought not to be upset on appeal absent a
clear showing of abuse of discretion.” Id. (citation omitted). 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 have been the result of a reasoned decision.” Barton v.
Sutton, 152 N.C. App. 706, 710, 568 S.E.2d 264, 266 (2002) (internal quotation marks
and citation omitted).
“A noncustodial parent’s right of visitation is a natural and legal right which
should not be denied ‘unless the parent has by conduct forfeited the right or unless
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the exercise of the right would be detrimental to the best interest and welfare of the
child.’” Johnson v. Johnson, 45 N.C. App. 644, 646-47, 263 S.E.2d 822, 824 (1980)
(quoting In re Custody of Stancil, 10 N.C. App. 545, 551, 179 S.E.2d 844, 849 (1971)).
“In awarding visitation privileges the court should be controlled by the same principle
which governs the award of primary custody, that is, that the best interest and
welfare of the child is the paramount consideration.” Johnson, 45 N.C. App. at 647,
263 S.E.2d at 824 (citation omitted).
“However, a trial court’s discretionary authority is not unfettered.” Hinkle v.
Hartsell, 131 N.C. App. 833, 838, 509 S.E.2d 455, 459 (1998). N.C. Gen. Stat. § 50-
13.5(i) provides, “In any case in which an award of child custody is made in a district
court, the 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) (2018). Thus, before the trial court
may completely deprive a custodial parent of visitation, the statute requires a specific
finding either (1) that the parent is an unfit person to visit the child or (2) that such
visitation rights are not in the best interest of the child. Johnson, 45 N.C. App. at
647, 263 S.E.2d at 824 (citing King v. Demo, 40 N.C. App. 661, 253 S.E.2d 616 (1979)).
This Court in Johnson “construe[d] the statute to require a similar finding when the
right of reasonable visitation is denied. Thus, where severe restrictions are placed on
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the right, there should be some finding of fact, supported by competent evidence in
the record, warranting such restrictions.” Johnson, 45 N.C. App. at 647, 263 S.E.2d
at 824.
This Court has consistently held that limiting a parent to supervised visitation
is a severe restriction which effectively denies a parent the right to reasonable
visitation, and thus requires a finding of fact supporting such restriction. See Hinkle,
131 N.C. App. at 838-39, 509 S.E.2d at 459 (defendant awarded only supervised
visitation every other Saturday and Sunday from 9:00 a.m. to 3:00 p.m., and specified
times on holidays, and “the trial court’s findings [were] insufficient to support these
severe restrictions on defendant’s visitation rights”); Brewington v. Serrato, 77 N.C.
App. 726, 733, 336 S.E.2d 444, 449 (1985) (defendant awarded visitation privileges in
North Carolina at plaintiff’s home with others present; these “severe restrictions”
were supported by the trial court’s findings of fact); Johnson, 45 N.C. App. at 647,
263 S.E.2d at 824 (respondent awarded only supervised visitation one weekend a
month and the trial court failed to make sufficient finding to support such restriction);
Holmberg v. Holmberg, No. COA19-52, 2019 WL 4453850, at *3 (N.C. Ct. App. Sept.
17, 2019) (unpublished) (plaintiff awarded only occasional supervised visitation and
the trial court’s findings failed to satisfy the statutory mandate).
In this case, Defendant was allowed unsupervised, overnight visits every other
weekend from Saturday at 11 a.m. to Sunday at 3 p.m. She was also allowed
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unsupervised, daytime visits on special days, such as the child’s birthday and
Mother’s Day, and during school recesses for Thanksgiving and Christmas.
Defendant was additionally allowed supervised, extended visits of up to five
overnights during school recesses for Thanksgiving and Christmas. Although
Defendant’s extended overnight visits during school recesses for Thanksgiving and
Christmas must be supervised, the vast majority of her time with the child is
unsupervised.
Defendant argues that absent a finding that Defendant is unfit, “she should be
receiving far more time with her daughter, even if the time is confined to weekends[,]”
and “it is unreasonable and unlawful, under Johnson v. Johnson, . . . to require
supervision of any of [Defendant’s] visits with her daughter.” However, we conclude
that the parameters placed on Defendant’s visitation are not the type of “severe
restrictions” our case law has determined effectively deny the right of reasonable
visitation. Accordingly, N.C. Gen. Stat. § 50-13.5(i)’s mandate, as interpreted by
Johnson, is not applicable here, and the trial court did not err by entering the
visitation order without finding that Defendant was an unfit person to have
reasonable visitation.
Defendant also argues that the supervised visitation ordered during
Defendant’s extended visits with the child is unsupported by the findings or the
evidence. Defendant argues, “Having concluded that regular, unsupervised
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overnight weekend visits with [Defendant] are beneficial to the minor child, it is
irrational for the trial court to require extended holiday visits – visits which are
limited to five nights, by the previous order – to be supervised.”
The trial court made the following relevant findings of fact:
11. The Court received testimony from Georgia Pressman, the minor child’s therapist. . . . With respect to Ms. Pressman’s testimony, the Court finds[:] a. Ms. Pressman’s therapy with the minor child began in June of 2015 and has continued until recently. b. The minor child was 4 years old when therapy began. Ms. Pressman described that at the beginning of therapy, the minor child was “integrated” which the Court takes to mean developing appropriately. c. Ms. Pressman has seen, over the course of her treatment of the minor child, a gradual decline in the minor child’s well-being. . . . .... g. The minor child commenced Kindergarten and commenced unsupervised visits with the Defendant in August of 2016. The Plaintiff shared with Ms. Pressman that the minor child was pushing limits and behaving aggressively following unsupervised contact with the Defendant. The Court finds the Plaintiff’s report credible. .... l. On December 16, 2016, the Plaintiff advised Ms. Pressman that the minor child was soiling her underpants several times a day, since visitation with the Defendant over the 2016 Thanksgiving holiday. Prior to the holiday, these accidents were happening only 1-2 times per month. The Court finds the Plaintiff’s report to Ms. Pressman to be credible.
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.... o. On August 2, 2017, the minor child met with Ms. Pressman after an extended visit with the Defendant and maternal grandparents. In private session, Ms. Pressman noted the minor child’s dollhouse play was aggressive and Ms. Pressman noted that play between imaginary children and Defendant was aggressive. .... x. Ms. Pressman stated that the minor child is traumatized by . . . Defendant’s behaviors such as those witnessed by the minor child on February 1, 2018, more particularly described below. .... 12. The minor child was developing appropriately, relatively healthy, and happy, and integrated, as testified to by Georgia Pressman, when the order of August 11, 2016 was entered. At the time of this hearing, the credible and competent evidence suggests that the minor child is struggling developmentally, mentally, emotionally, and physically. .... 20. The Defendant was called as her own witness in this proceeding. From her testimony, the Court finds that: .... c. The Defendant has unnecessarily complicated the minor child’s life and caused the minor child stress. d. The Defendant admits that she played a game with the minor child that involved the child touching her breast, that it was funny to her and that the minor child laughed to the point that she wet herself. The Defendant is unwilling or unable to acknowledge that this degree of stimulation for the minor child is not healthy for the minor child and compromises the minor child to [sic] return to homeostasis following visits.
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e. That the Defendant did testify that she respects the Plaintiff’s religious beliefs and has no objection to the minor child being raised in a Christian home, however, she believes that her education should be separate and apart from that, as a considerable amount of school time is devoted to such studies and the child should be exposed to religion, but ultimately able to choose her own path. f. The Defendant is unable or unwilling to follow the court Order with respect to picking up the minor child, dropping off the minor child and has consistent difficulty maintaining boundaries with the Plaintiff and others. Specific incidences of this behavior include, but are not limited to, the following: i. On June 20, 2017, the Defendant vandalized the Plaintiff’s truck during an exchange of [the child]; ii. On September 12, 2017, the Defendant was unable to follow directions in a car pick up line. The Defendant’s behavior was angry and irrational and on full display to the minor child. This incident was unnecessary and confusing for the minor child. iii. On February 1, 2018, the Defendant caused a scene in Ms. Dowdy’s classroom in front of the minor child. At an exchange that night, the Defendant admits leaning against the Plaintiff’s vehicle. The vehicle was again scratched, though the Defendant denies scratching the vehicle. The Defendant left the place of exchange and drove to the Plaintiff’s house, parking in proximity to the Plaintiff’s driveway. As the Plaintiff returned from the exchange to his home, with the minor child in the car, the Defendant stood between the Plaintiff’s vehicle and the Plaintiff’s driveway. The Defendant stood in the headlights, in plain view of the minor child,
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and struck a pose, patting her posterior. The Defendant appears not to understand that this strange behavior traumatizes the minor child, who was traumatized. This incident was unnecessary and confusing for the minor child. .... v. On March 28, 2018, the Defendant refused to exchange the minor child on time and refused to exchange in the typical place of exchange. The Defendant and her friend Maria Curran hid the minor child from the Plaintiff, causing him to run back and forth between the typical place of exchange, and Hickory Tavern where the Defendant claimed to be. The Plaintiff ultimately found the Defendant and minor child on the street in vicinity to Hickory Tavern. This incident was unnecessary and confusing for the minor child. vi. On April 1, 2018, the Defendant dropped the minor child off at the Plaintiff’s house while the Plaintiff was waiting at the usual place of exchange. No one was at the Plaintiff’s house, though the Defendant assumed otherwise. The Plaintiff left the place of exchange, returned to his home, and found the minor child walking on his driveway. This incident was unnecessary. This incident was unnecessary and confusing for the minor child. .... viii. All the foregoing incidents have occurred while the Defendant has been in regular therapy with Dr. Katy Flagler. Despite therapy, the Defendant has been unable to regulate her behavior in order to avoid unnecessary incidents that are confusing for
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the minor child. These behaviors appear to be overlooked by the Defendant’s own therapist. ix. All the 2018 incidents recited above have occurred since the Defendant filed her Motion to Modify custody, seeking additional time with the minor child. Despite knowing that her conduct would be explored in the course of a hearing on her motion to modify custody, the Defendant has persisted in unnecessary incidents that are confusing for the minor child. .... 24. While there have been several events in the minor child’s life that have been unsettling to her since August 11, 2016, the Court finds that the minor child’s relationship with the Defendant, and her visitations doing [sic] the school week, with the Defendant, have been deleterious to the minor child’s well-being developmentally, mentally, emotionally, and physically. 25. In finding that the minor child’s well-being has declined since August 11, 2016, the Court relies heavily on testimony received from Georgia Pressman, the minor child’s therapist during the relevant period; testimony from Melanie Dowdy, the minor child’s 1st grade teacher at Asheville Christian Academy; testimony from Susan Montgomery, Head of the Lower School at Asheville Christian Academy; and, from Dr. Deidre Christy, who performed the Psychoeducational Evaluation. 29. The Court finds that the Defendant has disrupted the minor child’s education, and increased the minor child’s stress level, unnecessarily. 30. The stress the Defendant has caused the minor child is evident in the records of Ms. Pressman, and a part of the environmental stress identified by Dr. Christy. 31. The stress the Defendant causes the minor child must be mitigated so that the minor child can learn, and so that any learning difference or disorder, if any, can be properly
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identified and so that further interventions, if any are required, can be implemented. .... 35. That the child would benefit from having her time with the Defendant normalized and be able to spend an overnight at in [sic] the home of the Defendant, provided the Defendant can engage with the minor child in a manner that does not cause the minor child psychological harm. .... 38. The Defendant’s conduct and the minor child’s deterioration since entry of the August 11, 2016 Order are casually [sic] related, and constitute substantial changes of circumstance adversely and substantially affecting and pertaining to the minor child.
“In a child custody case, the trial court’s findings of fact are conclusive on
appeal if supported by substantial evidence, even if there is sufficient evidence to
support contrary findings.” Cox v. Cox, 238 N.C. App. 22, 26, 768 S.E.2d 308, 311
(2014) (citation omitted). Any unchallenged findings are binding on appeal. Koufman
v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Although Defendant asserts that “[t]here is no evidence that [Defendant] is
engaged in any behavior which would create any risk to her daughter[,]” Defendant
does not specifically challenge any findings of fact as unsupported by the evidence;
they are thus binding on this Court. Koufman, 330 N.C. at 97, 408 S.E.2d at 731.
Moreover, the findings are supported by record evidence, including the testimony of
Ms. Pressman, Melanie Dowdy, Susan Montgomery, and Defendant herself. These
findings specifically indicate that the child’s well-being has declined since August 11,
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2016; Defendant’s behavior has caused the child stress; the child’s relationship with
Defendant has been deleterious to the child’s well-being; numerous incidents of
Defendant’s misbehavior have occurred since Defendant filed her motion to modify
custody, seeking additional time with the child, despite knowing that her conduct
would be explored in the course of a hearing on her motion to modify custody;
Defendant has been unable to regulate her behavior in order to avoid unnecessary
incidents that are confusing for the child; Defendant has persisted in unnecessary
incidents that are confusing for the child; the child behaved aggressively following
unsupervised contact with Defendant; after an extended visit with Defendant, the
child’s play was aggressive; the child would benefit from being able to spend an
overnight in the home of Defendant, provided that Defendant can engage with the
child in a manner that does not cause the child psychological harm. These findings
amply support the trial court’s conclusion and decree that it is in the best interest of
the child that Defendant be supervised for extended visits.
B. Access to Records
Defendant next argues that the trial court erred by denying her access to her
daughter’s medical, educational, and counseling records, when there was no
determination that her access to those records would negatively impact her
daughter’s welfare.
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We review a trial court’s order denying a parent access to a child’s records
involving the health, education, and welfare of the child under an abuse of discretion
standard. Brooks, 12 N.C. App. at 630, 184 S.E.2d at 420 (a trial court’s decision in
a child custody matter “ought not to be upset on appeal absent a clear showing of
abuse of discretion”).
Pursuant to N.C. Gen. Stat. § 50-13.2(b), “each parent shall have equal access
to the records of the minor child involving the health, education, and welfare of the
child[,]” “[a]bsent an order of the court to the contrary[.]” N.C. Gen. Stat. § 50-13.2(b)
(2018). It is well established that the fundamental principle underlying North
Carolina’s approach to controversies involving child custody is that “the best interest
of the child is the polar star.” In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246,
251 (1984).
In Huml v. Huml, 826 S.E.2d 532 (N.C. Ct. App. 2019), this Court affirmed the
trial court’s order prohibiting defendant from obtaining “any information concerning
the minor child including, but not limited to, requesting information through third
party care givers, teachers, medical professionals, instructors or coaches[,]” where the
findings of fact supported a determination that such prohibition was in the child’s
best interest. Id. at 540. While “agree[ing] that it is unusual for a parent to have
such limited rights regarding his child,” id. at 548, this Court determined that the
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trial court did not abuse its discretion by eliminating his defendant’s access to
information based upon the specific facts of the case:
In Finding of Fact 68, which has 23 subsections, the trial court noted the factual basis for the restrictions even to obtaining information from third parties. Father’s actions and threats affected many third parties associated with the family, to the detriment of Susan. Mother’s employer required her to “work from home because of safety concerns at her employer’s office.” At the time of the hearing, Mother had been working from home almost a year. Father’s threats and actions made third-party professionals trying to help this family sufficiently concerned about their own safety they would not see him unless another person was present and at one point the child’s pediatrician stopped seeing her because of Father’s actions. The trial court found that Father’s “anger and rage” are disturbing and have “had a detrimental impact on not only the minor child to not feel safe around the Defendant but the Plaintiff, her parents, Plaintiff’s friends, Plaintiff’s co-workers and various professionals involved with this family.” The trial court also made detailed findings regarding Father’s failure to follow the requirements of prior orders. Based upon the trial court’s findings, if Father could continue to contact third parties such as teachers, physicians, and coaches to get information about the child, based upon his past behavior, it is likely that his anger and threats would make them fearful for their own safety, just as the third parties described in the order were. And to protect their own safety and the safety of their workplaces, these third parties may reasonably refuse to work with Susan, continuing to interfere with her ability to lead a normal life. Besides endangering the third parties who deal with Susan, allowing Father to contact them to get information about Susan would endanger Mother and Susan directly. Some of Father’s actions were unusual and disturbing, such as taking the child to sit in a rental car in a parking
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garage with him when he was supposed to be visiting in a public place. Father had a car of his own but rented a car and backed into a parking space for these visits, apparently to avoid detection; this surreptitious behavior raises additional concerns. And if he were allowed to get information from third parties, Father would necessarily learn the addresses and locations where Mother and Susan could be found. For example, if Father were permitted to obtain Susan’s educational information, he would have to know the name and location of her school, and he would learn from the school records which classes Susan attends and her usual daily schedule; he could then easily find Mother’s home simply by following Susan’s school bus or following any person who picks her up from school.
Id. at 548-49. This Court determined that “[u]nder these circumstances, it is in
Susan’s best interest to prevent Father from having access to information about her
education and care because it protects Mother, Susan, and third parties who deal
with them.” Id. at 549. Thus, “[t]he trial court’s detailed and extensive findings of
fact support the decretal provisions, including barring Father from obtaining
information from third parties.” Id.
Although this Court did not tie its analysis to the provisions of N.C. Gen. Stat.
§ 50-13.2(b), we find its analysis instructive here. In the present case, the trial court
made the following findings of fact relevant to its determination to deny Defendant
access to the child’s records:
15. The Court received testimony from Dr. Chris Mulchay, Clinical Psychologist. .... j. Dr. Mulchay did not identify any issues which give him concern as to the Defendant’s risk as a parent.
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.... 17. The Court received testimony from Dr. Linda Shamblin, the parenting coordinator in this case. With respect to Dr. Shamblin’s testimony, the Court finds that: .... c. Dr. Shambling (sic) has encouraged the Defendant to communicate with the school and teachers but not with the minor child’s therapist. That Dr. Shambling did so to protect the child/therapist relationship, with the hope that the child therapist would not get embroiled in the parent’s relationship. d. Dr. Shamblin testified that the information sharing between the parents is not good. . . . .... u. Dr. Shamblin testified about her relationship with [Asheville Christian Academy] and denies having “set it up” in a way that was adverse to the Defendant. That the school asked what the Defendant had done to get such restrictive visitation and whether it involved drugs or criminal behavior. That the school was clearly trying to make sure that it was keeping its other students safe. That Dr. Shamblin did tell the school [Defendant] had mental health issues however, Dr. Shamblin told the school authorities that she felt that the school would be safe and that the Defendant did not pose a threat to the safety of the other students. v. That the Defendant’s animosity toward Dr. Shamblin has compromised Dr. Shamblin’s ability to effectively fulfill her role as the parenting coordinator. w. Dr. Shamblin does not desire to stay in the case, but she is not asking to withdraw. Dr. Shamblin would prefer the Court make a decision to whether or not a new parenting coordinator would be ultimately, in the best interest of the minor child.
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18. The Court received testimony from Melody Dowdy. Melody Dowdy was the minor child’s First Grade Teacher at Asheville Christian Academy. With respect to Ms. Dowdy’s testimony, the Court finds that: .... e. Ms. Dowdy has had conflict with the Defendant in her classroom. On February 1, 2018, the Defendant became visibly agitated in Ms. Dowdy’s classroom, in front of the minor child, classmates and other parents, at pick up time. The Defendant abruptly left the classroom without taking the minor child then was heard to call out for “little Danika” in the hallway. Ms. Dowdy sent the minor child to her Defendant. f. Ms. Dowdy had a second incident with the Defendant in her classroom on February 6, 2018 when the Defendant was expressing frustration related to not receiving information from the school. In front of the minor child, the Defendant advised Ms. Dowdy that she would be returning to Court to address her dissatisfaction with the level of information she was being provided. This second incident also made Ms. Dowdy uncomfortable. This second incident also occurred in front of classmates and other parents. g. Ms. Dowdy has observed other unusual behaviors from the Defendant. These include the Defendant coming in Ms. Dowdy’s classroom while class is in session while Ms. Dowdy is still teaching and sitting in the hallway outside Ms. Dowdy’s class with a raincoat over her head covering her person while Ms. Dowdy’s class is in session. The minor child witnesses these incidents. .... 19. The Court received testimony from Ms. Susan Montgomery who is the Head of the Lower School at Asheville Christian Academy. From Ms. Montgomery’s testimony the Court finds:
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.... b. Ms. Montgomery has had several interactions with the Defendant that have been negative. The first coincided with the beginning of school when the Defendant detected an irregularity on [the child’s] name card, which read Paynich rather than Vestal. c. The second incident occurred in the school pick up line on September 12, 2017 when the Defendant was unable to follow directions. The Defendant became angry during this incident, using profanity to address Ms. Montgomery, in a lo[u]d voice, audible to parents, teachers, staff and students, including the minor child. Ms. Montgomery relayed a credible account of this incident, which could have been avoided by the Defendant. d. After the September 12, 2017 incident, the February 1, 2018 incident and the February 6, 2018 incident, the Defendant was banned from school. .... g. Allowing the minor child to return to Asheville Christian Academy for Second Grade was a difficult choice for the school, but [the minor child] can return for Second Grade. 29. The Court finds that the Defendant has disrupted the minor child’s education, and increased the minor child’s stress level, unnecessarily. Based upon these findings, the trial court ordered, adjudged, and decreed, in
relevant part, as follows:
2. The Defendant shall not have a right to school records, nor shall the Defendant have a right to attend school events or performances at this time. 3. The Defendant shall not have a right to medical records of the minor child and shall not have a right to participate in making medical decisions at this time.
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4. The Defendant shall not have a right to counseling records of the minor child and shall not have a right to participate in the minor child’s counseling unless it is at the request of the minor child’s counselor/treatment care provider.
The findings of fact do not support a conclusion that it was in the best interest
of the child to prevent Defendant from accessing the child’s school, medical, or
counseling records. While the findings indicate that Defendant’s behavior at the
child’s school was disruptive, caused the child unnecessary stress, caused the child’s
teacher discomfort, and resulted in the head of the lower school banning Defendant
from the school property, unlike in Huml, the findings do not indicate that her
behavior “made third-party professionals trying to help this family sufficiently
concerned about their own safety[.]” Huml, 826 S.E.2d at 548. To the contrary, “Dr.
Shamblin told the school authorities that she felt that the school would be safe and
that the Defendant did not pose a threat to the safety of the other students.”
Moreover, the disruption, stress, and discomfort caused by Defendant’s actions at the
school were addressed by the school banning her from its premises and the trial
court’s order prohibiting her from attending school events and performances, and
eliminating her weekday visitation thereby eliminating her responsibility to pick up
her daughter from school.
Additionally, unlike in Huml, the findings do not indicate that Defendant’s
continued ability to contact teachers, physicians, and other third parties to get her
child’s records would make them fearful for their own safety, or have any other direct
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or indirect negative effect on the child. Most significantly, unlike in Huml where the
findings showed that it was in the child’s best interest to prevent Father from having
access to information about her education and care because it protected the child, the
child’s mother, and third parties who dealt with them, no findings in the order before
us show that Defendant’s access to the information contained in the records would
have a dangerous or even negative effect on the child or anyone dealing with the child,
or that preventing Defendant from having access to the information contained in the
records would protect the child or anyone dealing with the child.
As the trial court’s findings of fact do not support a determination that it is in
the child’s best interest to prevent Defendant from having access to the child’s school,
medical, or counseling records, we reverse the decretal provisions denying her such
access.
III. Conclusion
We affirm the 13 August 2018 order as it relates to Defendant’s visitation and
reverse the decretal provisions of the order denying Defendant access to the child’s
school, medical, and counseling records.
AFFIRMED IN PART and REVERSED IN PART.
Chief Judge MCGEE and Judge HAMPSON concur.
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