Gray v. Holliday

INMAN, Judge.

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. New Hanover County, No. 18 CVD 3579 Appeal by Defendant from order entered 15 October 2019 by Judge Robin W. Robinson in New Hanover County District Court. Heard in the Court of Appeals 23 March 2021. J. Albert Clyburn for Plaintiff-Appellee. John M. Kirby for Defendant-Appellant. INMAN, Judge. ¶ 1 Defendant-Appellant Nigel Holliday ("Father"), the biological father of Nakia, appeals from a permanent custody order awarding joint legal and sole physical custody of Nakia to Plaintiff-Appellee Terri Gray ("Grandmother"), Nakia's maternal grandmother, and granting Father joint legal custody and visitation rights. After careful review, we affirm the trial court's denial of Father's motion to dismiss for lack of standing and its reliance on findings from the Domestic Violence Protective Order ("DVPO"). We remand this matter to the trial court to enter a finding regarding the standard of proof it employed in determining that Father's conduct was inconsistent with his parental status.

¶ 2 Evidence presented before the trial court tends to show the following: ¶ 3 Father met Nakia's biological mother ("Mother") in 2009. Nakia was born about five years later, in November 2014. Mother, Nakia, and Nakia's half-brother lived with Grandmother for all but ten months of Nakia's life, during which time Nakia lived with Mother in Southport, NC. Father and Mother did not live together. Father, by his account, visited Nakia "sporadic[ally]." Nakia sometimes stayed overnight in Father's home. ¶ 4 In June 2018, Mother filed a complaint for a DVPO against Father. The complaint alleged the following: (1) Father had threatened to bring "artillery" to his next child custody exchange with Mother and (2) Father grabbed Nakia from Mother during a scheduled custody exchange, placed Nakia on his lap in the front seat of a car, and instructed the driver to speed off without securing Nakia in a car seat. Father did not attend a noticed DVPO hearing. The trial court issued a DVPO forbidding Father to "assault, threaten, abuse, follow, harass (by telephone, visiting the home or workplace, or other means) or interfere with" Mother, Nakia, and any member of their household. It also required that he stay away from Nakia's home and daycare. Father did not visit with Nakia during the term of the DVPO. ¶ 5 In October 2018, while the DVPO was still in effect, Mother passed away suddenly from an unexpected illness. Grandmother did not contact Father to inform him of Mother's illness or death. Three days after Mother died, Grandmother filed a complaint seeking legal custody of Nakia. The trial court granted the emergency custody of Nakia to her at the ex parte hearing. In November 2018, at Father's request, the DVPO was set aside due to Mother's death. Nakia remained in Grandmother's physical custody. ¶ 6 After the DVPO was set aside, Grandmother amended her complaint for custody, adding allegations that Father had acted inconsistently with his constitutional parental rights. Specifically, she alleged that Father repeatedly abused Mother, and that prior to October 2018 Father had not tried to establish a visitation schedule with Nakia. Father filed a motion to dismiss the action. The trial court issued an ex parte custody order granting full legal custody to Grandmother and formal visitation rights to Father. ¶ 7 In January 2019, because of the trauma of her mother's sudden death and allegations regarding abuse, Nakia began seeing a therapist, Tiffany Salter ("Ms. Salter"). Ms. Salter strongly recommended that Nakia continue her treatment and that her caregivers also participate in family therapy to help Nakia continue to process her trauma. Father attended the majority of family therapy sessions to which he was invited, but he stopped attending sessions six weeks before the custody hearing from which this appeal arises. ¶ 8 The Department of Social Services ("DSS") had also recommended, and the trial court emphasized to Father and his counsel in a prior hearing, that Father participate in parenting classes. Father did not participate in parenting classes. ¶ 9 At the permanent custody hearing, Grandmother testified that Father, inconsistent with his parental status, had long failed to provide financial support for Nakia. As of December 2018, Father had paid a total of $26 and was $660 in arrears in his child support obligation. In addition, after Mother's death, Father received and cashed about $5,000 in Social Security benefits intended for Nakia, even though Grandmother had legal custody of Nakia per the previous ex parte order from October 2018. ¶ 10 Following the custody hearing, the trial court made the following findings of fact:

a. [Father's] involvement with the minor child has been sporadic and inconsistent throughout the minor child's life;

b. Prior to the filing of this action, [Father] went (6) six months without having contact with the minor child;

c. [Father] has never provided the minor child's day to-day necessities;

d. [Father] has never actively participated in any of the minor child's medical, dental, or vision appointments;

e. [Father] has rarely participated in the minor child's schooling;

f. [Father] actually missed the minor child's graduation from pre-school, which occurred during the pendency of this case, and was made aware of the same;

g. [Father] has never actively participated in the minor child's extracurriculars;

h. [Father] failed to follow this Court's Order without just cause or excuse, as well as failed to follow the recommendations provided by Ms. Salter to engage in joint therapy with this minor child;

i. [Father] failed to participate in parenting classes;

j. [Father] failed to participate in co-parenting classes;

k. [Father] has flagrantly disregarded his court ordered child support obligation to the plaintiff. The Child Support Order at the time of hearing had been in effect for (9) nine months, and [Father] has provided approximately $13.00 for the support of his minor child;

l. [Father] fraudulently benefitted from the minor child by applying to become the beneficiary of the minor child's Social Security death benefits, as well as the beneficiary of the minor child's WIC assistance. [Father] was able to receive said benefits as [Father] listed himself as the primary custodian of the minor child, contrary to the Order of this Court that granted [Grandmother] sole custody of the minor child. [Father] financially gained upwards of $5,000.00 from the minor child's death benefits;

m. [Father] has acted hostile and aggressively since the onset of this action;

n. [Father]'s aggressive and hostile behavior is not only directed towards [Grandmother] and [Grandmother]'sht an order setting aside the DVPO during Mother's lifetime. ¶ 34 We also reject Father's argument that the trial court could not consider findings in the DVPO because it was ultimately set aside. Father concedes that no precedent supports his position. The DVPO was set aside only after Mother died. We hold that Mother's death did not render the DVPO inadmissible, and we will not re-weigh the evidence heard by the trial court at the custody hearing on appeal. We conclude that the trial court did not err in considering the findings of the DVPO. ¶ 35 Father further argues that the trial court's findings of fact 30(a)-(e), (g), (q) and (r) related to Grandmother's complaint are unsupported by clear and convincing evidence and require reversal. We cannot consider the merits of this issue because the trial court failed to state the standard of proof it applied. For the same reason, we cannot review the trial court's conclusions of law.

¶ 36 For the foregoing reasons, we affirm the trial court's denial of Father's motion to dismiss Grandmother's complaint, and we hold that the trial court properly considered in evidence findings in the prior DVPO. We remand the case for the trial court to state what standard of proof it applied and make such findings and conclusions consistent with this opinion.

AFFIRMED IN PART; REMANDED IN PART.

Judges Wood and Griffin concur.

Report per Rule 30(e).