Filed 17 May 2011 This case not for publication
Appeal by plaintiff from judgment entered 2 November 2009 by Judge Jeffrey Evan Noecker in New Hanover County District Court. Heard in the Court of Appeals 12 January 2011.
Lea, Rhine Rosbrugh, PLLC, by James W. Lea, III, Lori W. Rosbrugh and Holli B. Newsome, for Plaintiff/Appellant. Karen Anne Leadman, Pro Se. Wanda K. Terrel, Pro Se.
New Hanover County File No. 08 CVD 0063.
Plaintiff Todd Smith Leadman appeals from an order concluding that he had acted inconsistently with his constitutionally protected right to parent his children, applying the "best interest of the child" standard to determine a custody dispute between Plaintiff and Intervenor Wanda K. Terrel, and awarding primary custody of Plaintiff's children to Intervenor. On appeal, Plaintiff contends that the trial court erred by basing its factual findings on an incorrect standard of proof and by concluding that he had acted inconsistently with his constitutionally protected parental status. After careful consideration of Plaintiff's challenges to the trial court's decision in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.
I. Factual Background
Plaintiff and Defendant Karen Leadman (Defendant) were married on 23 November 2002, separated on 6 November 2007, and divorced on 30 January 2009. By all accounts, the marriage between Plaintiff and Defendant was troubled, with the two of them having separated and reconciled on a number of occasions between 2004 and 2007. The couple's oldest child, a son, was born on 18 April 2003. The couple's younger child, a daughter, was born on 21 May 2006, a time when Plaintiff and Defendant were attempting to reconcile following a period of separation.
Although the circumstances surrounding the couple's final separation appear to be the subject of some dispute, their ultimate parting of the ways stemmed from a violent incident that occurred on July, 2007. Defendant eventually left the marital residence with the children and moved in with Intervenor, who is her mother. In late 2008 and early 2009, Defendant attempted to commit suicide five times; ultimately, Defendant was diagnosed as suffering from bi-polar disorder. In light of her bi-polar disorder, multiple suicide attempts, and continuing mental health issues, all parties appear to agree with the trial court's conclusion that Defendant is unable to care for the children.
On 4 January 2008, Plaintiff filed a complaint requesting that Plaintiff and Defendant be awarded joint custody of the children. On 21 February 2008, Defendant filed an answer in which she requested to be awarded primary custody of the children, child support, post-separation support, permanent alimony, and an equitable distribution of marital property. On 6 June 2008, the trial court entered an order requiring Plaintiff to pay child support, make a delinquent child support payment, and provide post-separation support to Defendant. On 13 October 2008, Plaintiff filed a motion seeking to be relieved of the obligation to pay post-separation support and to have his child support obligation reduced on the grounds that Defendant had obtained full-time employment and that Plaintiff was "in need of financial relief . . . in order to salvage his home from foreclosure." At various points during 2008, Defendant obtained the issuance of orders requiring Plaintiff to show cause why he should not be held in contempt for failing to make required child support payments.
On 11 February 2009, in apparent response to learning that Defendant had been hospitalized on multiple occasions because of her bi-polar disorder, Plaintiff filed a motion seeking to be granted temporary primary custody of the children on an emergency basis. On 27 February 2009, Intervenor sought leave to intervene in the custody proceeding. On 1 April 2009, the trial court entered a consent order finding that Plaintiff and Defendant were not an intact family, that Intervenor was the children's maternal grandmother, that no final custody order had been entered, that Intervenor was "entitled by law to intervene as a party" and should be permitted to intervene, and that she should file a complaint in intervention as authorized by law. On 9 April 2009, Intervenor filed a complaint alleging that Plaintiff "ha[d] acted in a manner inconsistent with his constitutionally protected custody rights and ha[d], therefore, abrogated his paramount right to raise his children;" that Defendant was "not a fit or proper person to exercise primary care, custody, or control of the minor children, [because she was at that time] permanently disabled by mental health disorders that require[d] frequent hospitalization;" and that custody of the children should be awarded to Intervenor.
On 27 April 2009, Plaintiff, Defendant, and Intervenor appeared before the trial court and informed the trial court that they had reached an agreement concerning temporary custody of the children. In light of this agreement, the parties consented to the entry of a temporary custody order that granted temporary primary custody of the children to Intervenor without prejudice to either parent's claim for custody; awarded Plaintiff and Defendant visitation at "such times and places as the parties mutually agree;" and prohibited any party from "operat[ing] a motor vehicle in which the minor children are riding unless they are duly licensed by the State of North Carolina to do so."
On 12 August and 21 August 2009, the parties appeared before the trial court for the purpose of addressing the issue of permanent custody. After hearing the evidence and the arguments presented on behalf of the parties, the trial court announced that "clear and convincing evidence" established that both Plaintiff and Defendant had acted in a manner that was inconsistent with their constitutionally protected parental interests. Based upon that determination, the trial court concluded that the appropriate legal standard for resolving the custody issue that was before him at that time was the "best interest of the child" standard and that the children's interests would be best served by awarding primary physical custody to Intervenor.
On 2 November 2009, the trial court entered a written order that was generally consistent with its oral ruling. In its written order, the trial court concluded that Defendant was unfit to parent the children, that Plaintiff had acted inconsistently with his constitutionally protected right to parent his children, that the "best interest of the child" standard should be utilized to identify the person to whom primary custody should be awarded, and that primary custody of the children should be awarded to Intervenor. Plaintiff noted an appeal to this Court from the trial court's order.
II. Legal Analysis A. Standard of Review
"`The standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.'" Stovall v. Stovall, ___ N.C. App. ___, ___, 698 S.E.2d 680, 683 (2010) (quoting Pegg v. Jones, 187 N.C. App. 355, 358, 653 S.E.2d 229, 231 (2007), aff'd per curiam, 362 N.C. 343, 661 S.E.2d 732 (2008)). A trial court's findings of fact are binding for purposes of appellate review in the event that they are supported by substantial evidence, even if evidence that would support a contrary finding also appears in the record. Id. (quoting Pegg, 187 N.C. App. at 358, 653 S.E.2d at 231). "Substantial evidence" is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pulliam v. Smith, 348 N.C. 616, 625, 501 S.E.2d 898, 903 (1998) (quoting State v. Hill, 347 N.C. 275, 301, 493 S.E.2d 264, 279 (1997), cert. denied, 523 U.S. 1142, 140 L. Ed. 2d 1099, 118 S. Ct. 1850 (1998)). A trial court's conclusions of law, on the other hand, are subject to de novo review. Renner v. Hawk, 125 N.C. App. 483, 491, 481 S.E.2d 370, 375, disc. Review denied, 346 N.C. 283, 487 S.E.2d 553 (1997). As is required by well-established North Carolina law, we will utilize this standard of review for the purpose of examining Plaintiff's challenges to the trial court's order.
B. Applicable Legal Principles
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); see also Adams v. Tessener, 354 N.C. 57, 60, 550 S.E.2d 499, 501 (2001) (stating that "the protection of the family unit is guaranteed by the Ninth and Fourteenth Amendments to the United States Constitution" and that parents "enjoy a fundamental right to make decisions concerning the care, custody, and control of [their] children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution") (internal quotation marks and citations omitted). For that reason, the constitution precludes the use of the "best interest of the child" standard for the purpose of resolving a custody dispute between a parent and a non-parent. Price, 346 N.C. at 79, 484 S.E.2d at 534. In such instances, the parent is generally entitled to either retain or be awarded custody in the face of a challenge from a non-parent, regardless of whether such a result is in the child's best interest. Id.
A parent's right to custody of his or her minor child is not, however, absolute. Adams, 354 N.C. at 61, 550 S.E.2d at 502 (explaining that, in custody disputes between a parent and a non-parent, a "presumption" exists that the parent has "a constitutionally protected, paramount right to custody of th[e child,];" however, in spite of this presumption, the court should conduct a "`due-process analysis in which the parent's well-established paramount interest in the custody and care of the child is balanced against the state's well-established interest in protecting the welfare of children'") (quoting Price, 346 N.C. at 72, 484 S.E.2d at 530). In essence, "`[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.'" Id. at 61-62, 550 S.E.2d at 502 (quoting Price, 346 N.C. at 79, 484 S.E.2d at 534). For that reason, a "`parent may no longer enjoy a paramount status [as compared to a non-parent with respect to custody-related issues] 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.'" Id. (quoting Price, 346 N.C. at 79, 484 S.E.2d at 534). As a result, when forced to resolve a custody dispute between a parent and a non-parent, the trial court must initially determine if the parent is unfit, has neglected the child, or has otherwise acted in a manner inconsistent with his or her parental status. Id. at 62, 559 S.E.2d at 503 (citations omitted). In the event that the court answers this question in the negative, it must award custody to the natural parent regardless of the result that would be reached using a "best interest" analysis. Id. On the other hand, in the event that the trial court determines that the parent is unfit, has neglected the child, or has acted in a manner inconsistent with his or her constitutionally protected status, it is authorized to apply the "best interest of the child" standard in determining whether to award custody to the parent or to the non-parent. Id.
As a result of the "deep and meaningful relationship" existing between parent and child, the preliminary determination required by the relevant constitutional provisions "must not be lightly undertaken" and "must be supported by clear and convincing evidence." Id. At 53, 550 S.E.2d at 503 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71 L. Ed. 2d 599, 603, 102 S. Ct. 1388, 1391-92 (1982)). On the other hand, a parent's conduct "need not rise to the statutory level warranting termination of parental rights" in order for it to be inconsistent with the preservation of his or her constitutionally protected status. Price, 346 N.C. at 79, 484 S.E.2d at 534. Although "[u]nfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status [of natural parents,] . . . [o]ther types of conduct . . . can also . . . be inconsistent with the protected status of natural parents[,]" so that parental conduct alleged to be inconsistent with that parent's constitutionally protected status must be assessed "on a case-by-case basis." Id. at 79, 484 S.E.2d at 534-35. In reviewing a trial court order determining the extent, if any, to which a parent has acted inconsistently with his or her constitutionally protected parental status, we must keep in mind that, "when acting as the finder of fact, the trial court has the opportunity to observe the demeanor of the witnesses and determine their credibility, the weight to be given their testimony and the reasonable inferences to be drawn therefrom." Yurek v. Shaffer, 198 N.C. App. 67, 80, 678 S.E.2d 738, 747 (2009) (citing In re Whisnant, 71 N.C. App. 439, 441, 322 S.E.2d 434, 435 (1984)).
C. Standard of Proof
On appeal, Plaintiff contends that the trial court erred by applying an incorrect standard of proof in determining that Plaintiff had acted inconsistently with his constitutionally protected right to parent his children. According to Plaintiff, the trial court never "indicated [at any point in its order] that [the clear and convincing evidence] standard was applied." We cannot agree with Plaintiff's contention.
In its order, the trial court stated on several occasions that it utilized the "clear and convincing evidence" standard during the fact-finding process. The trial court stated in the first paragraph of its order that, "[f]rom the evidence presented the Court finds the following facts by the greater weight of the evidence, the following facts by clear, cogent and convincing evidence, makes the following conclusions of law and enters the following custody [o]rder." The trial court's order divides its findings of fact into two distinct sections, with headings used to separate one group of findings from the other. As part of that process, the trial court lists the "Facts Found By the Greater Weight of the Evidence" and states that "The Court Finds the Following Facts . . . By Clear, Cogent And Convincing Evidence," clearly indicating which standard the trial court utilized to make each finding of fact. Finally, the trial court only relied upon the sixteen findings of fact it made on the basis of clear, cogent, and convincing evidence in order to support its conclusion that Plaintiff "acted in a manner inconsistent with his constitutionally protected custody rights." As a result, we conclude that Plaintiff's contention that the trial court utilized the wrong standard of proof in determining that he had acted inconsistently with his constitutionally protected status as a parent lacks merit.
D. Sufficiency of the Trial Court's Findings
Finally, Plaintiff contends that, in the event that we reject his challenge to the standard of proof utilized by the trial court during the fact-finding process, we should conclude that the trial court's "findings of fact are insufficient to establish by clear and convincing evidence that [Plaintiff] has acted in a manner inconsistent with his constitutionally protected right to the custody" of his children. We disagree.
Plaintiff has not, in his brief, lodged any specific objections to the trial court's findings of fact. "`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[,]'" even if "`the appellant has offered evidence to the contrary.'" Heatzig v. MacLean, 191 N.C. App. 451, 454, 664 S.E.2d 347, 350 (quoting Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) and Williams v. Williams, 261 N.C. 48, 56, 134 S.E.2d 227, 233 (1964)), disc. review denied, 362 N.C. 681, 670 S.E.2d 564 (2008). As a result of Plaintiff's failure to specifically object to the trial court's findings of fact, we presume that such are supported by competent evidence; thus, the sole remaining issue raised by this component of Plaintiff's argument is whether the trial court's findings of fact address relevant issues and adequately support its legal conclusion that Plaintiff acted in a manner inconsistent with his constitutionally protected parental status. Stovall, ___ N.C. App. at ___, 698 S.E.2d at 683 (explaining that, under the de novo standard or review, we must determine "`whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment'" (quoting Pegg, 187 N.C. App. at 358, 653 S.E.2d at 231).
In its order, the trial court found by clear, cogent, and convincing evidence that:
3. The plaintiff was arrested for DWI on May 13, 2008.
4. The plaintiff's privilege to drive was revoked by the NCDMV on June 13, 2008 for his failure to submit to a chemical test in New Hanover County Case # 08 CR 55862.
5. The plaintiff did not regain his privilege to drive until May 4, 2009. During the period of revocation[,] the plaintiff continued to drive his truck on a daily basis and drive with the minor children in the vehicle almost every time he had visitation with them for the one year period from June, 2008 to May, 2009. The plaintiff had been convicted of Driving While Impaired in 1999. He knew that his license was revoked in 2008/2009 when he drove with the minor children.
6. In addition to the driver's license revocation for refusing to submit to a chemical test, the plaintiff's driver's license was revoked on June 9, 2008 for his failure to appear in New Hanover County Case #08 CR 2692. His license remained revoked until April 30, 2009. During this time, the plaintiff routinely operated his motor vehicle and drove the minor children from place to place knowing that he had a revoked driving privilege.
7. The plaintiff has not paid child support to the defendant or the Intervenor since December, 2008, despite the fact that he was under a Court Order to do so.
. . .
10. The Intervenor, Wanda K. Terrel has been the primary custodian for the minor children herein for most of their lives and specifically since the parties separated in 2007. She has arranged daycare and school placements, provided transportation, food, shelter and emotional support for these children. She acted in all respects as the primary custodian of those children for many years up to the present time. Neither parent has acted in that capacity or is capable of acting in that capacity.
. . .
12. In July of 2007, [Plaintiff and Defendant] had a fight and the police were called. The minor children were present in the house at the time. [P]laintiff voluntarily left the residence to go stay with his father to cool off. [D]efendant sought and obtained a domestic violence protective Order granting her temporary custody of the minor children. [P]laintiff did not see and had little contact with his minor children for 5 months. The Domestic Violence case was dismissed by [D]efendant.
Based upon these findings, the trial court concluded as a matter of law that:
5. . . . . [Plaintiff's] actions when taken as a whole show that[,] during the lifetime of his children, he ha[s] acted in a manner inconsistent with his constitutionally protected custody rights and by his actions as found above, he has abrogated his paramount right to raise his children because [of] his conduct in failing to see his children for 5 months, his failure to pay child support for more than six months, his repeatedly violating the law by driving the children while his license was revoked, and his violent and abusive conduct toward the mother of those children. . . . [Plaintiff's] delegation of the role of primary custodian to the Intervenor is inconsistent with exercising his constitutional[ly] protected right to raise his minor children . . . and he has therefore failed to shoulder the responsibilities that are attendant to raising his children.
As we read the trial court's order, the following facts contributed to its decision that Plaintiff had acted inconsistently with his constitutionally protected parental status: (1) Plaintiff's lack of contact with the children; (2) Plaintiff's failure to provide financial support for his children; (3) Plaintiff's repeated violations of the law in the presence of his children; (4) Plaintiff's violent and abusive conduct towards Defendant; and (5) Plaintiff's "delegation of the role of primary custodian to the Intervenor." On appeal, Plaintiff challenges the validity of the trial court's decision to rely on each of these five factors in order to support its ultimate conclusion that Plaintiff had acted inconsistently with his constitutional right to parent his children.
As we have previously stated, our review on appeal is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether those findings support the trial court's conclusions of law. Stovall, ___ N.C. App. at ___, 698 S.E.2d at 683. The argument advanced in Plaintiff's brief relies, in part, on factual material not contained in the trial court's findings and on assertions that the trial court should have put a more favorable gloss on various events depicted in the trial court's findings. Under the applicable standard of review, we are required to accept the trial court's factual findings, none of which Plaintiff has challenged as lacking in adequate evidentiary support or as failing to adequately address material issues arising on the record, as they are written.
1. Level of Parent-Child Contact
Although Plaintiff attempts to distinguish the lack of parent-child contact discussed in Adams from the five month period during which he had no contact with the children and to argue, based on that distinction, that the trial court inappropriately considered his lack of contact with his children in making its decision, a close reading of Adams reveals the existence of serious flaws in Plaintiff's reasoning. In Adams, the mother gave birth to a child on 15 February 1998 as a result of a single instance of unprotected sexual intercourse that occurred in July 1997. Adams, 354 N.C. at 58, 550 S.E.2d at 500. According to the trial court's findings, the parties met for the first time and engaged in sexual intercourse at a time when they were both intoxicated. Id. at 64, 550 S.E.2d at 503. In the summer of 1998, the father's paternity was confirmed through DNA testing, at which point the parents executed a voluntary support agreement with which the father fully complied. Id. at 59, 550 S.E.2d at 501. In October and November of 1998, the father visited the child several times. Id. On 23 November 1998, less than five months after the confirmation of his paternity, the father sought custody of the child by intervening in an ongoing custody proceeding. Id. On appeal from a decision by this Court reversing a trial court order awarding custody of the child to the child's grandparents, the Supreme Court held that "the evidence of record constitutes clear and convincing proof that [the father's] conduct was inconsistent with his right to custody of the child." Id. at 66, 550 S.E.2d at 505. According to the record developed in this case, Plaintiff had no contact with his children for a period of time similar to that at issue in Adams, so that Adams is, despite Plaintiff's contention to the contrary, relevant to the issue before us in this case.
In his brief, Plaintiff suggests that the trial court should not have considered the five month period during which he had no contact with the children in determining the extent to which he had acted inconsistently with his constitutionally protected status as a parent because his failure to see his children during this interval resulted from factors other than his conscious choice. Instead, Plaintiff argues that his failure to contact his children during this time stemmed from his strained relationship with the Defendant and the existence of a domestic violence protective order issued against him in July 2007. However, we have clearly held that the existence of a problematic relationship between two parents does not render one parent's lack of contact with his or her child irrelevant to the determination of whether that parent acted inconsistently with his or her constitutionally protected parental status. McRoy v. Hodges, 160 N.C. App. 381, 385-87, 585 S.E.2d 441, 444-45 (2003) (upholding a trial court's determination that a father engaged in behavior inconsistent with his constitutionally protected parental status based on the fact that he had "little or no contact" with his child despite also finding that "the mother of the minor child did not allow the [father] to establish a relationship with [the child]"). In addition, despite Plaintiff's insinuation that he was legally prohibited from contacting the children as a result of the issuance of the domestic violence protective order, Plaintiff could, as the trial court noted in announcing its decision in open court, have requested to see the children separate from Defendant. Thus, we are not persuaded by Plaintiff's challenge to the trial court's reliance on Plaintiff's lack of contact with the children as a basis for finding that he had acted inconsistently with his status as a parent.
2. Provision of Financial Support
According to well-established legal principles, a parent's failure to provide financial support for his or her child may appropriately be considered in determining whether that parent has acted inconsistently with his or her constitutionally protected status. Price, 346 N.C. at 84, 484 S.E.2d at 537. Plaintiff does not appear to argue that the trial court's reliance on his failure to provide support for his children was legally inappropriate or rested on a misapprehension of the facts. On the contrary, Plaintiff conceded on cross-examination that, as of the date of hearing, he had not paid child support for the last eight months. Instead, Plaintiff argues that he failed to make required child support payments because of "[t]he . . . economic hardship that started with his being laid off, and the New Hanover Court's failure to hear his Motion in the Cause asking [for] relief from the payments." In addition, Plaintiff contends that he took out-of-state jobs for the purpose of supporting the children. The trial court did not make any factual findings supportive of Plaintiff's contention, and our review of the record does not disclose the existence of any evidence detailing the Plaintiff's financial situation which would have made such findings necessary. As a result, Plaintiff's unsubstantiated explanation for his failure to make required child support payments does not establish that the trial court committed an error of law by considering Plaintiff's failure to make such payments in determining whether he had acted inconsistently with his constitutionally protected parental status.
3. Criminal Conduct Involving the Children
Thirdly, Plaintiff admits that he regularly operated a motor vehicle in which the children were passengers without possessing a valid driver's license between June 2008 and May 2009. Even so, Plaintiff argues that the trial court "should . . . not concern itself with [his] criminal driving record" in assessing his parental conduct. As support for this proposition, Plaintiff insists that the Supreme Court relied on factors other than "the spotted record of a father to rule he had abrogated his constitutional right to  custody" in addressing the extent to which the father acted inconsistently with his constitutionally protected status in Adams. Plaintiff's reasoning is not convincing. Aside from the fact that we are unable to determine the extent to which the Adams court considered the father's "prior criminal convictions for driving an automobile with no insurance or registration [and] driving while his license was revoked" in concluding that he had acted inconsistently with his rights as a parent, Adams provides no indication that conduct such as that in which Plaintiff admits having engaged should not be considered in the course of the required constitutional analysis. Adams, 354 N.C. at 65, 550 S.E.2d at 504. Plaintiff's admitted practice of driving illegally while the children were in his vehicle exposed them to considerable risks, making the conduct at issue here more troubling than the conduct at issue in Adams. As a result, we are unable to discern any error in the manner in which the trial court considered Plaintiff's unlawful driving practices in the course of the required constitutional analysis.
4. Episodes of Domestic Violence
Plaintiff does not appear to disagree with the proposition that parental acts of domestic violence may support a determination that the offending parent has acted inconsistently with his or her constitutionally protected parental status. Yurek, 198 N.C. App. at 77-78, 678 S.E.2d at 745 (stating that the defendant "invariably acted in a manner inconsistent with her paramount interest in the custody, care, and control of [her child, when she] . . . acknowledged substance abuse and domestic violence issues"). Instead, Plaintiff challenges the trial court's consideration of Plaintiff's "violent and abusive conduct toward" Defendant based on a contention that Plaintiff did not treat Defendant in a violent and abusive way and that he continued to visit with the children despite numerous false accusations of abuse advanced by Defendant. At bottom, Plaintiff contends that the trial court erred by "citing a nonexistent pattern of abuse" in the relevant conclusion of law.
The first problem with Plaintiff's argument is that the trial court did not, in its conclusion of law concerning the consistency of Plaintiff's conduct with his constitutionally protected parental status, find that Plaintiff had engaged in a pattern of abusive conduct. Moreover, even if the trial court had made such a finding, it would have had ample record support. At trial, both the Intervenor and Defendant testified concerning multiple incidents in which Plaintiff was allegedly guilty of physically and mentally abusive conduct. In addition, the undisputed information in the record shows that Defendant sought and obtained multiple domestic violence protective orders against Plaintiff and that, in 2008, Plaintiff was charged with breaking into Defendant's home following a disagreement between the couple. Finally, as is noted in Finding of Fact No. 12, Defendant testified that Plaintiff hit her in the face with a wallet in front of one of the children in July 2007. Although Plaintiff claims that Defendant lost her temper and threw plates at him at the time of this incident, leading him to call the authorities, the fact that Plaintiff unsuccessfully offered up a different description of the applicable facts for the trial court's consideration does not deprive the trial court's finding of adequate evidentiary support. Thus, Plaintiff has provided no justification for any conclusion on our part that the trial court erred by considering domestic violence between Plaintiff and Defendant in the course of conducting the required constitutional analysis.
5. Allowing Intervenor to Act as Primary Caretaker
Finally, Plaintiff argues that the trial court erred in concluding that his "delegation of the role of primary custodian to the Intervenor is inconsistent with exercising his constitutionally protected right to raise his minor children" and suggests that, instead, Intervenor inappropriately insinuated herself in to the life of his family. We disagree.
In spite of Plaintiff's argument to the contrary, we are not faced in this instance with a situation in which a parent consistently acted as primary custodian before surrendering that role for a discrete period of time, after which he or she planned to resume the role of primary custodian. On the contrary, the record contains ample evidence tending to show that Intervenor has served as the children's primary caretaker for the majority of their lives and that she began to act in that role well in advance of the issuance of the temporary custody order on 27 April 2009.
According to the evidence contained in the record, Plaintiff temporarily relocated to Illinois for work-related purposes less than two months after the oldest child's birth. Plaintiff remained in Illinois for approximately four months, during which time he only saw Defendant and the child on three occasions. During Plaintiff's absence, Intervenor moved in with Defendant for the purpose of helping her care for the child. Defendant described Plaintiff as something of an absent father who went away on weekend hunting trips without communicating with his family and who did not participate in daily childcare responsibilities with any degree of regularity. According to the Intervenor, Plaintiff did not function as a parent, choosing instead to spend his time engaging in hunting, fishing and other leisure activities. During an extended period of separation in 2004, during which Defendant and the oldest child resided in Intervenor's home, Plaintiff only saw the child on "the occasional weekend." After the couple's 2007 separation, Plaintiff did not see or have any contact with either of the children for a period of approximately five months. Plaintiff eventually resumed having contact with the children in early 2008, spending several hours on Wednesdays and every other weekend with them. Even so, the record suggests that the children stayed with Plaintiff's mother during some portion of the time that he was supposed to be visiting with them and that, on at least one occasion, Plaintiff contacted Intervenor for the purpose of demanding that he be allowed to return the children early. Thus, the record contains ample evidence contradicting Plaintiff's contention that he had consistently been an active part of the children's lives.
In addition, the record contains considerable evidence tending to show that Intervenor served as the primary caretaker for the oldest child beginning at the time of his birth, with the child spending at least three weekends out of every month with Intervenor and with Intervenor having provided the bulk of his food, clothing, and shelter. As Plaintiff admitted, "there [were] a lot of times [during the couple's marriage] when, you know, the kids were gone, always with [Intervenor]." In addition, Plaintiff acknowledged that, "throughout the history of [the] marriage . . . [, Intervenor] kept [the oldest child] and kept [the younger child] after she was born up until the point [of] separat[ion]." At the time of the younger child's birth, Intervenor became even more involved in the children's lives. Since Plaintiff and Defendant separated in 2007, both children have resided with Intervenor. By all accounts, Intervenor has played a significant role in the children's lives. Intervenor provided groceries for the couple and the children for the majority of the couple's marriage. Intervenor has consistently helped the oldest child with his homework, paid for the younger child's daycare, and reorganized her life in order to ensure that the children are properly cared for. On the other hand, the record tends to show that Plaintiff has carried a relatively small portion of the burden of raising his children. Although Plaintiff clearly disputes the validity of the trial court's assessment of this evidence, it is clear that the record contains adequate support for the trial court's conclusion that Plaintiff had essentially acquiesced in Intervenor's decision to undertake primary responsibility for the children's care.
Plaintiff cites Grindstaff v. Byers, 152 N.C. App. 288, 567 S.E.2d 429 (2002), in support of his contention that, "[e]ven if [he] can be seen to have voluntarily relinquished the role of primary caregiver to [Intervenor] . . ., this is an insufficient basis to deny a parent their protected status." In Grindstaff, we overturned a trial court's order determining that the father had acted inconsistently with his constitutionally protected parental status and granting custody of the children to their maternal grandmother. Grindstaff, 152 N.C. App. at 298, 567 S.E.2d at 435. The father whose conduct was at issue in Grindstaff resided in the same household as his children until December 1998, at which time the oldest child was six and the youngest child was two. Id. at 290, 567 S.E.2d at 430. After that point, the children lived with their maternal grandmother for one month and lived with their mother for approximately three months before returning to their grandmother's home. Id. In May 1999, the parties signed a custody agreement that made the maternal grandmother responsible for the children. Id. In support of our Grindstaff decision, we noted that there were no "findings of fact [to] support the legal conclusion that defendant acted inconsistently with his constitutionally protected status," a situation that differs markedly from that before us in this case. Id. at 294, 567 S.E.2d at 433. The father in Grindstaff supported his children financially, visited with the children regularly, accompanied them to medical and dental appointments, paid for their daycare, maintained health insurance for the children, and provided money for school lunches, clothing and medical expenses. Id. at 297-98, 567 S.E.2d at 435. As a result, Grindstaff differs significantly from the present case in that the father in Grindstaff had actively parented his children prior to the change in custody, making that change a true shift in responsibility.
Thus, we are confronted in this case with a large volume of evidence that would suffice, if believed, to show that Plaintiff played little to no role in the lives of his children until early 2008 and that he voluntarily allowed Intervenor to assume primary responsibility for the care of the children. Although the record contains evidence that would tend to support a contrary finding, the trial court simply chose not to credit it, a decision which we are not at liberty to disturb on appeal. As a result, the trial court did not err by concluding that Intervenor has functioned as the children's primary caretaker since their birth or in considering that determination in support of its conclusion that Plaintiff acted inconsistently with his constitutionally protected rights as a parent.
6. Adequacy of Trial Court's Conclusions
In summary, each of the five factors upon which the trial court relied in support of its determination that Plaintiff had engaged in conduct inconsistent with his constitutionally protected parental status was relevant to the inquiry that the trial court was required to conduct and was, when considered in conjunction with the other factors, sufficient to support the trial court's conclusion that Plaintiff had acted inconsistently with his constitutionally protected status as a parent and had, for that reason, lost his right to object to the use of the "best interest of the child" standard in determining to which party primary physical custody should be awarded. Moreover, the trial court did not err by determining that the "best interest of the children" would be served by awarding primary physical custody to Intervenor. In essence, Plaintiff's challenge to the trial court's order amounts to a request that we reweigh the evidence and reach a different conclusion on the facts than that deemed appropriate by the trial court. We are simply not permitted to act in accordance with Plaintiff's request under the applicable standard of review. As a result, we conclude that Plaintiff's final challenge to the trial court's order lacks merit as well.
Thus, for the reasons set forth above, we determine that the trial court did not commit an error of law by concluding that Plaintiff had acted inconsistently with his constitutionally protected right to parent his children and that the best interest of the children would be served by giving primary physical custody to Intervenor. As a result, the trial court's order should be, and hereby is, affirmed.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).