Toney v. Edgerton

• Court: Court of Appeals of North Carolina
• Decided: December 31, 2014
• Docket: 14-453
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA14-453 NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

DEBORAH J. TONEY, Plaintiff,

v. Rutherford County No. 12 CVD 864 LEE ANNA EDGERTON, Defendant.

Appeal by Plaintiff from an amended order entered 11

October 2013 by Judge Dennis Redwing in Rutherford County

District Court. Heard in the Court of Appeals 7 October 2014.

Cerwin Law Firm, P.C., by Brittany N. Waters, for Plaintiff-Appellant.

Aaron G. Walker, P.A., by Aaron G. Walker, and Roberts & Stevens, P.A., by Phillip T. Jackson, for Defendant- Appellee.

DILLON, Judge.

Deborah J. Toney (“Plaintiff”) appeals from an order

dismissing her claim for custody of the adoptive daughter of Lee

Anna Edgerton (“Mother”), her former partner, for lack of

standing. We affirm.

I. Background -2- The parties to this custody action were partners for a

number of years, during which Mother adopted a child from

Guatemala. The parties began experiencing difficulties in their

relationship, culminating eventually in Mother obtaining a

domestic violence protective order against Plaintiff and forcing

Plaintiff to leave her home.

In June of 2012, following a hearing, the trial court

entered a temporary consent order awarding primary physical

custody of the child to Mother and granting Plaintiff visitation

privileges.

Two months later, on the date the temporary consent order

expired, Plaintiff arrived at Mother’s home to pick up the

child, only to find that nobody was home. As a result,

Plaintiff filed this action seeking custody of the child.

Mother filed a timely answer.

In October of 2012, following a hearing, the trial court

entered another temporary consent order granting Mother primary

physical custody and allowing Plaintiff visitation pending the

outcome of the trial.

Over the next year, the trial court conducted hearings and

presided over a two-day trial, all of which led to the entry of

a number of orders. Ultimately, however, in October of 2013, -3- the court entered an order determining that Plaintiff lacked

standing to proceed in the matter and dismissing her claim for

custody. Plaintiff timely filed written notice of appeal of

several orders, but only argues error arising from the October

2013 order dismissing her claim for lack of standing, so we

review only that order in this appeal.

II. Standard of Review

In custody proceedings, “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.” Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264,

268 (2003). We review de novo whether the findings support the

conclusions of law. Hall v. Hall, 188 N.C. App. 527, 530, 655

S.E.2d 901, 904 (2008).

III. Analysis

Plaintiff argues that the trial court erred in concluding

that she had not demonstrated by clear, cogent, and convincing

evidence that Mother acted inconsistently with her

constitutionally protected paramount status as legal parent of

her adoptive child. We disagree.

A. Standing -4- At the outset, we note, as we did in Mason v. Dwinnell, 190

N.C. App. 209, 660 S.E.2d 58 (2008), “that the factual context

of this case — involving same sex domestic partners — is

immaterial to the proper analysis of the legal issues involved.”

Id. at 211, 660 S.E.2d at 60. A third party has no standing

under the United States Constitution or the North Carolina

Constitution to assert a claim for custody against a legal

parent “unless the evidence establishes that the legal parent

acted in a manner inconsistent with his or her constitutionally-

protected status as a parent.” Estroff v. Chatterjee, 190 N.C.

App. 61, 63-64, 660 S.E.2d 73, 75 (2008). “By looking at both

the legal parent’s conduct and his or her intentions, we ensure

that the situation is not one in which the third party has

assumed a parent-like status on his or her own without that

being the goal of the legal parent.” Id. at 70, 660 S.E.2d at

78-79. Simply put, the question in such cases is this: “Did

the legal parent act inconsistently with her fundamental right

to custody, care, and control of her child and her right to make

decisions concerning the care, custody, and control of that

child?” Mason, 190 N.C. App. at 222, 660 S.E.2d at 67.

Plaintiff contends that this case is analogous to Mason,

where we held that, through the performance of various -5- affirmative acts, a constitutionally protected relationship in

the nature of a parent-child relationship had been created

between a child and the former partner of the child’s biological

mother. See 190 N.C. App. at 225-26, 660 S.E.2d at 68-69. In

Mason, the biological mother and her partner raised a child

together, jointly supporting the child and making decisions

regarding the child’s upbringing and executing an agreement in

the third year of the child’s life wherein they stipulated that

the mother’s partner occupied a relationship of de facto

parentage with the child. Id. at 212, 660 S.E.2d at 60-61.

Based on our Supreme Court’s decision in Price v. Howard, 346

N.C. 68, 484 S.E.2d 528 (1997), we identified as the central

issue in the case whether the biological mother, as the legal

parent of the child, both created the family unit of which her

partner claimed to be a part and induced her partner to

participate in that family unit, thereby “allow[ing] that family

unit to flourish in a relationship of love and duty with no

expectations that it would be terminated.” Id. at 225, 660

S.E.2d at 68 (quoting Price, 346 N.C. at 83, 484 S.E.2d at 537)

(emphasis removed). We reasoned that the biological mother had

created such a family unit and induced her partner to

participate in it through various acts, not least of which -6- included the execution of the parenting agreement, creating a

constitutionally protected relationship between her partner and

the child by ceding her own paramount status as against her

partner. Id. at 225-26, 660 S.E.2d at 68-69. We concluded that

the biological mother could not unilaterally exclude her then-

former partner from the child’s life after voluntarily allowing

a constitutionally protected relationship between her former

partner and the child to develop even though her former partner

did not possess full rights of legal parentage. Id. at 227-28,

660 S.E.2d at 70.

On the same day we filed our decision in Mason, we also

filed our decision in Estroff, applying the same constitutional

principles to similar, albeit crucially distinct, facts, and

reaching the opposite result. See 190 N.C. App. at 63-64, 660

S.E.2d at 74-75. We find the present case far more closely

analogous to Estroff than Mason. In Estroff, we affirmed the

trial court’s dismissal of a former partner’s action for custody

of children born during her relationship with the children’s

mother for lack of standing. Id. Specifically, we concluded

that there was competent evidence to support the trial court’s

findings establishing that the mother neither voluntarily chose

to create the requisite family unit nor induced her partner to -7- participate in it. Id. at 73-74, 660 S.E.2d at 81. In

pertinent part, the trial court based its conclusion on findings

that while the partner “played a unique and special role in the

lives of [the mother’s] children,” she was not a biological

parent, adoptive parent, parent by estoppel, or de facto parent,

never entered an agreement with the mother granting her legal

status as a parent, custodian, or legal guardian, never

discussed entering into such an agreement with the mother, never

filed a friendly lawsuit or otherwise attempted to establish

parental or custodial rights to the children during the

relationship, and furthermore, that the mother “would never have

agreed to bestow on [her partner] or anyone else any parental or

custodial rights with regard to her children.” Id. at 66-67,

660 S.E.2d at 76.

In the present case, the trial court found that Mother

intended the child to be her legal child; that while Plaintiff

was in a relationship with Mother at the time she adopted the

child, Mother intended for Plaintiff’s relationship with the

child to be temporary; that a friendly lawsuit was never filed

to establish Plaintiff’s custodial rights to the child; that

Mother never contacted an attorney about drafting a parenting

agreement to establish Plaintiff’s custodial rights to the -8- child; that Mother amended her will to include a clause naming

Plaintiff as the guardian of her child in the event of her death

because she was intimidated by Plaintiff but later removed that

provision without Plaintiff’s knowledge; and finally that these

actions showed that Mother did not intend to form a permanent

relationship between her child and Plaintiff. We believe that

these findings, like the trial court’s findings in Estroff,

establish that Mother neither voluntarily chose to create a

family unit of which Plaintiff claimed to be a part nor induced

Plaintiff to participate in such a family unit. Accordingly,

Plaintiff’s argument that the trial court erred in concluding

that she failed to show by clear, cogent, and convincing

constitutionally protected paramount status is overruled.

Plaintiff next argues that the trial court relied

inappropriately on Mother’s intent to create a permanent

relationship between Plaintiff and her child in arriving at the

conclusion that she lacked standing to seek custody of Mother’s

child. Specifically, Plaintiff contends that in focusing solely

on whether Mother intended to create a permanent relationship in

the nature of a parent-child relationship between her child and -9- Plaintiff, the court applied the incorrect legal standard. We

disagree.

Plaintiff quotes the following language from our decision

in Estroff in support of her argument:

[T]he court’s focus must be on whether the legal parent has voluntarily chosen to create a family unit and to cede to the third party a sufficiently significant amount of parental responsibility and decision-making authority to create a permanent parent-like relationship with his or her child.

Id. at 70, 660 S.E.2d at 78. According to Plaintiff, “[t]he

circumstances here are simply summed up in an old English

Proverb[,] ‘actions speak louder than words.’” Plaintiff

conveniently omits the two sentences that follow the above-

quoted passage, wherein we explain:

The parent’s intentions regarding that relationship are necessarily relevant to that inquiry. By looking at both the legal parent’s conduct and his or her intentions, we ensure that the situation is not one in which the third party has assumed a parent- like status on his or her own without that being the goal of the legal parent.

Id. at 70, 660 S.E.2d at 78-79. Thus, while true that Mother’s

intent was not the only relevant consideration under Price, it

was certainly a relevant consideration to the trial court’s

determination of whether Plaintiff had standing. We note also -10- that we rejected essentially the same argument Plaintiff now

makes in Estroff. See id. at 68-69, 660 S.E.2d at 77-78 (“[The

mother’s partner] argues, . . . that Price supports her view

that only manifested intentions are relevant. . . . We disagree

with [this] reading of Price. . . . [B]oth conduct and intent

are relevant.”). Estroff thus cannot bear the weight of

Plaintiff’s assertions.

Plaintiff’s characterization of the trial court’s decision

as based solely on Mother’s intent to form a permanent

relationship between Plaintiff and her child is not even

descriptively accurate. The court found that Mother transported

the child from Guatemala to the United States; that the child

lived in Mother’s home; that Mother adopted the child; that

Mother frequently asked Plaintiff to leave the home and tried to

end their relationship; that after a harrowing episode of

domestic violence, Plaintiff did leave the home after Mother

obtained a domestic violence protective order forcing her to do

so; that Mother amended her will to include a provision granting

Plaintiff custody of her child in the event of her death, but

subsequently amended the will again to remove that provision

without Plaintiff’s knowledge; and that Mother routinely

prepared meals for the child, played with the child, and read to -11- the child. These actions all qualified as conduct relevant to

the trial court’s determination of whether Mother acted

inconsistently with her constitutionally paramount status under

Price. See id. at 68-69, 660 S.E.2d at 77-78. We do not

believe that the trial court focused on Mother’s intentions

concerning her child’s relationship with Plaintiff to the

exclusion of her actions. Accordingly, this argument is

overruled.

B. Findings

Plaintiff also contends that certain of the trial court’s

findings were not supported by competent evidence. “Competent

evidence is evidence that a reasonable mind might accept as

adequate to support [a] finding.” City of Asheville v. Aly, ___

N.C. App. ___, ___, 757 S.E.2d 494, 499 (2014). We address the

challenged findings in turn.

In relevant part, finding of fact number four1 states that

Mother began working with an adoption agency to adopt a child

from Guatemala in 2007, and that Mother transported the child

from Guatemala to the United States in 2008. Plaintiff contends

1 As Mother alerted the Court to in her brief, Plaintiff mistakenly refers to finding of fact number four as finding of fact number nine. We believe that the issue was properly preserved for our review despite this error, and will review the challenged finding using the number from the trial court’s order. -12- that the only evidence related to the finding that Mother began

working with an adoption agency was her testimony that she, and

not Mother, initiated contact with an adoption agency. We

disagree. Mother testified that in 2005 or 2006, she and

Plaintiff encountered a couple who had adopted a child from

Guatemala, prompting her to investigate an international

adoption. She also testified that she informed Plaintiff that

she wanted to be the adoptive parent and further, that Plaintiff

never informed her of a desire to be an adoptive parent.

Plaintiff also asserts that the language in the finding suggests

– without support from the record – that Mother transported the

child from Guatemala by herself. We do not find the language of

the finding impermissibly suggestive in this manner. The

finding merely states that Mother transported the child. Both

parties testified that they were present during the

transportation of the child. We therefore conclude that

competent evidence existed to support the trial court’s finding

as to both Mother’s involvement in working with an adoption

agency and in transporting the child back to the United States.

Plaintiff next challenges finding of fact number five, that

Mother attempted to have children in the early 1990s prior to

her relationship with Plaintiff. However, Mother testified that -13- she pursued having children with her then-husband from 1989 to

1991. We therefore conclude that competent evidence existed to

support this finding.

Plaintiff next challenges finding of fact number seven,

regarding her issues with anger management. Plaintiff claims

that there was no evidence of Mother’s concerns about her lack

of anger management. We disagree. The record is replete with

references to Plaintiff’s quick temper and violent behavior.

Specifically, Mother’s account of the events leading up to her

pursuing a domestic violence restraining order against Plaintiff

amply support the trial court’s finding regarding Mother’s

concerns about Plaintiff’s inability to manage her anger. We

therefore conclude that competent evidence existed to support

this finding.

Plaintiff also challenges the portion of finding of fact

number seven which states, in relevant part, that “[Mother] . .

. intended the relationship between the Plaintiff and the child

to be temporary.” However, Plaintiff concedes that Mother

testified that she did not intend to form a permanent

relationship between her child and Plaintiff. As the trier of

fact, the trial court was entitled to credit Mother’s testimony -14- regarding her intent. We therefore conclude that competent

evidence supports this finding.

Plaintiff next challenges the language in finding of fact

number eight, that she frequently passed out after consuming

excess amounts of alcohol. Plaintiff claims that the only

evidence of her passing out frequently due to excessive alcohol

consumption was Mother’s testimony. Though Mother’s testimony

is sufficient to support this finding, we note that another

witness testified about an occasion where Plaintiff, in the

presence of the child for parts of the day, consumed four Bloody

Marys in the morning immediately after waking up, continued to

drink beer throughout the day, and then passed out in the

evening after drinking coffee mixed with liqueur while “barely

able to sit up” in a chair in the living room. Plaintiff also

takes issue with the court’s use of the word “frequently” in the

finding. However, Mother’s testimony regarding numerous

specific instances of Plaintiff drinking heavily and then

falling asleep, both at home as well as in public places like

restaurants, describes behavior more than sufficiently

“frequent” to warrant characterization by the court as such.

Plaintiff also challenges finding of fact number eleven,

where the court found that Mother had asked Plaintiff to leave -15- the home and communicated her desire to end the relationship

frequently over a four-year period, claiming again that the

characterization of Mother’s communication as “frequent” was not

supported by the record. However, this finding is supported by

Mother’s testimony. Specifically, Mother testified that she

initiated between fifteen and twenty conversations with

Plaintiff about moving out of her home dating back to 2008 and

2009. According to Mother, Plaintiff would behave the next day

as though these conversations never took place, despite

indicating her amenability at the time Mother initiated the

conversations. Mother further testified that the issue was

discussed frequently during the year of 2009. We therefore

conclude that competent evidence supported this finding.

Plaintiff next challenges finding of fact number twelve,

claiming that no competent evidence existed that Mother provided

for Plaintiff’s appointment as guardian of the child in her will

because she was intimidated by Plaintiff into doing so.

However, Mother testified that she felt tremendous pressure to

include the guardianship clause in her will, and that Plaintiff

was very adamant both that she do it and about the manner in

which she did it. We believe this evidence supports the

finding. -16- Plaintiff finally challenges the portion of finding of fact

number fourteen, where the court found that Mother was generally

unaware of Plaintiff’s representations of her relationship with

the child to third parties, arguing that no evidence supported

this finding because Mother did not testify about whether she

knew how Plaintiff represented her relationship with the child

to third parties. Plaintiff cites Mother’s apparent

acquiescence to her representations to third parties regarding

her relationship with the child as contrary evidence to the

finding that Mother was unaware of those representations.

However, Mother testified that these representations were made

without her consent. A reasonable mind might accept Mother’s

testimony that such representations were made without her

consent as adequate to support the trial court’s finding that

she was generally unaware of how Plaintiff represented her

relationship with the child to third parties. Accordingly, we

IV. Conclusion

The trial court correctly concluded based on findings

supported by competent evidence that Plaintiff lacked standing

to seek custody of Mother’s adoptive daughter.

AFFIRMED. -17- Judge HUNTER, Robert C. and Judge DAVIS concur.

Report per Rule 30(e).