Weideman v. SheltonÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-772
Filed: 7 June 2016
Buncombe County, No. 12 CVD 903
DAWN WEIDEMAN, Plaintiff
v.
ERIN ATALIE SHELTON, Defendant
v.
ANNETTE WISE, Intervenor
Appeal by intervenor from order entered 3 November 2014 by Judge Ward D.
Scott in Buncombe County District Court. Heard in the Court of Appeals 2 December
2015.
Bidwell & Walters, PA, by Paul Louis Bidwell and Law Offices of Douglas A.
Ruley, PLLC, by Douglas A. Ruley, for intervenor-appellant.
No brief for defendant-appellee.
No brief for plaintiff-appellee.
CALABRIA, Judge.
Annette Wise (“Wise”), intervenor, appeals from an amended custody order
that recognized intervenor as a party, but dismissed intervenor’s motions for custody
and visitation without prejudice. The trial court concluded that the initial custody
order awarding Dawn Weideman (“Weideman”), plaintiff, the biological maternal
grandmother, custody of Chris1 remained in full force and effect. Erin Atalie Shelton
1 A pseudonym is used to protect the minor’s identity.
WEIDEMAN V. SHELTON
Opinion of the Court
(“Shelton”), defendant, is Weideman’s biological daughter and Chris’s biological
mother. We affirm.
I. Background
Weideman and Wise were domestic partners beginning in 1991 when Shelton
was approximately two years old. Wise, Weideman, and Shelton resided together in
Wise’s house as a family unit. When Shelton was around ages thirteen or fourteen,
she exhibited outbursts of anger and frustration, or symptoms of a mental health
disorder, and was treated with various medications. Around the age of fourteen,
Shelton began drinking alcohol and using drugs. At age seventeen, Shelton became
pregnant while still using alcohol and drugs, was uncertain as to the father’s identity,
and dropped out of high school.
In December 2006, Shelton gave birth to Chris. Wise and Weideman were
excited to assist Shelton in her role as a new mother. For the first few weeks, Shelton
actively cared for Chris by feeding and nurturing him, and Wise and Weideman
assisted with routine care of Chris. A few weeks later, Shelton began to suffer from
the emotional swings of her untreated mental health disorder and exhibited
symptoms suggestive of postpartum depression. Subsequently, Shelton told
Weideman that she needed help caring for Chris because she was depressed and
struggling. Following this discussion, Weideman and Wise, rather than Shelton,
spent more time caring for Chris.
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In August 2007, without Shelton’s knowledge, Wise and Weideman approached
an attorney and requested a document allowing them to care for Chris. Subsequently,
Wise, Weideman, and Shelton executed an appointment of guardianship (“2007
guardianship appointment”) that purported to grant Weideman and Wise legal
guardianship of Chris. Shelton requested an addendum to the 2007 guardianship
appointment that stated “the parties agree that the appointment is temporary.”
After executing this document, Wise and Weideman continued caring for Chris
just as they had done prior to signing the document. Shelton continued to live with
Weideman and Wise on an ongoing basis and later lived with them with her boyfriend
on a part-time basis until Wise demanded that Shelton leave the residence and not
return. When Shelton returned, she drove her vehicle into the gate, and Wise called
law enforcement. Subsequently, although Shelton spent some time in a
rehabilitation center, her mental health issues continued for the next few years.
Specifically, she exhibited erratic behaviors consistent with bipolar disorder, which
remained untreated except through self-medication with prescription narcotics,
drugs, and alcohol. Shelton continued to live part-time with Weideman and Wise,
but sometime in 2009, Wise again banned Shelton from the residence.
In late 2009, although Wise and Weideman separated and Weideman relocated
from Wise’s home, Wise and Weideman continued to care for Chris, and Chris split
time between the two residences. Following the separation, Shelton spent time at
Weideman’s new residence and continued to stay with Wise on a part-time basis, until
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Opinion of the Court
Wise made Shelton relocate from her house in January 2010. Wise banned Shelton
from returning to her house, even when Chris was staying there. Wise also attempted
to prohibit Shelton from seeing Chris when he stayed at Weideman’s residence. Wise
told Shelton that she was not entitled to care for Chris and that she intended to
supervise any contact between Shelton and Chris. However, Shelton was able to
exercise visitation with Chris through Weideman. In May 2010, Shelton gave birth
to another child, Charlie,2 whose rights are not at issue in this appeal. Around
August 2010, Shelton relapsed and was admitted into another rehabilitation center.
By the fall of 2011, Shelton’s life improved. She secured her own housing and
regularly attended therapy classes. She also discovered a medication regime that
worked, and, except for one minor relapse in 2011 when she smoked marijuana, she
remained sober. Following Weideman and Wise’s separation, Chris began splitting
time between the two, and Shelton exercised visitation with Chris through
Weideman. During this time, Shelton attempted to assert parental control over Chris
and act in the role of his parent.
In 2012, Shelton and Weideman agreed that Weideman should have custody
of Chris. Subsequently, Weideman filed a complaint for custody of Chris, Shelton
consented, and the trial court entered an initial child custody consent order on 1
March 2012 (“2012 custody order”) granting Weideman custody of Chris. In June
2 A pseudonym is used to protect the minor’s identity.
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Opinion of the Court
2012, Weideman exercised her exclusive custody of Chris by prohibiting contact
between Wise and Chris.
On 31 August 2012, Wise filed motions to intervene and to set aside the custody
order, as well as a motion for custody and visitation and for breach of the 2007
guardianship appointment. Wise alleged, inter alia, that Shelton had abdicated her
protected parental status. Weideman filed a response and a motion to dismiss. After
a hearing, the trial court denied Weideman’s motion to dismiss, determined Wise’s
pleadings were sufficient to allege an action for abrogation of Shelton’s protected
parental status, and granted Wise’s motion to intervene.
After additional motion hearings, the trial court entered an order on 15 August
2014 (“initial 2014 custody order”) that was amended on 3 November 2014 (“amended
2014 custody order”) to add, inter alia, findings that Shelton did not intend to abdicate
complete responsibility for Chris or that the care Weideman or Wise provided for
Chris was intended to be permanent. To the contrary, the court found that Shelton
intended the care to be temporary. The trial court also amended its conclusions of
law, stating that “[Wise] has a relationship with [Chris] in the nature of a parent-
child relationship[]” and had standing to intervene. However, the trial court repeated
its conclusion that Wise failed to meet her burden of proving by clear, cogent, and
convincing evidence that Shelton had abdicated her constitutionally protected
parental rights. In addition, although the trial court again dismissed Wise’s motions
for custody and visitation, it omitted the words “with prejudice” from the amended
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Opinion of the Court
2014 custody order. However, the decretal portion of the amended 2014 custody order
similarly upheld the custodial arrangement outlined in the 2012 custody order, and
similarly concluded that the 2012 custody order remained in full force and effect.
Wise appeals the amended 2014 custody order.
II. Analysis
Wise’s arguments on appeal can be consolidated into two issues: whether the
trial court erred by (1) concluding Wise failed to establish by clear and convincing
evidence that Shelton acted inconsistently with her constitutionally protected
parental status; and (2) dismissing Wise’s motions for custody of and visitation with
Chris.
As an initial matter, we note that “in custody cases, the trial court sees the
parties in person and listens to all the witnesses.” Adams v. Tessener, 354 N.C. 57,
63, 550 S.E.2d 499, 503 (2001) (citation omitted). With this perspective, the trial
court is able “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)
(citation omitted). This opportunity of observation “allows the trial court to detect
tenors, tones and flavors that are lost in the bare printed record read months later by
appellate judges.” Adams, 354 N.C. at 63, 550 S.E.2d at 503 (citations and quotation
marks omitted).
A. Conduct Inconsistent with Protected Parental Status
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Opinion of the Court
Wise contends the trial court erred by concluding that Shelton did not act
inconsistently with her constitutionally protected parental status. We disagree.
Parents have a fundamental right to make decisions
concerning the care, custody, and control of their children.
As long as a parent maintains his or her paramount
interest, a custody dispute with a nonparent regarding
those children may not be determined by the application of
the ‘best interest of the child’ standard. However, the
paramount status of parents may be lost . . . where the
natural parent’s conduct is inconsistent with his or her
constitutionally protected status.
Rodriguez v. Rodriguez, 211 N.C. App. 267, 276-77, 710 S.E.2d 235, 242 (2011)
(internal citations and some quotation marks omitted).
Our review of “[w]hether . . . conduct constitutes conduct inconsistent with the
parents’ protected status” is de novo. Id. at 276, 710 S.E.2d at 242 (citation omitted)
(alteration in original). Under this review, we “consider[] the matter anew and freely
substitute[] [our] own judgment for that of the lower tribunal.” State v. Williams, 362
N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations and quotation marks omitted).
Our analysis is a “fact-sensitive inquiry,” Boseman v. Jarrell, 364 N.C. 537, 550, 704
S.E.2d 494, 503 (2010), and this determination “must be viewed on a case-by-case
basis.” Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003) (citation
omitted). We are bound by the unchallenged findings of a trial court. See, e.g., Peters
v. Pennington, 210 N.C. App. 1, 13, 707 S.E.2d 724, 733 (2011) (“Unchallenged
findings of fact are binding on appeal.”) (citation omitted). A trial court must
determine by “clear and convincing evidence” that a parent’s conduct is inconsistent
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with his or her protected status. Adams, 354 N.C. at 63, 550 S.E.2d at 503 (citation
omitted). Therefore, Wise’s burden on appeal is to establish by clear and convincing
evidence that Shelton acted inconsistently with her protected parental status.
1. Custody Order
Wise first contends that Shelton’s consent to the 2012 custody order, which led
to the trial court granting primary custody of Chris to Weideman, was clear and
convincing evidence that Shelton acted inconsistently with her protected parental
status. We disagree.
“[I]f a parent cedes paramount decision-making authority, then, so long as he
or she creates no expectation that the arrangement is for only a temporary period,
that parent has acted inconsistently with his or her paramount parental status.”
Boseman, 364 N.C. at 552, 704 S.E.2d at 504 (citation omitted). In the instant case,
Shelton, as Chris’s mother, made temporary arrangements for Chris’s care first when
she executed the 2007 guardianship appointment, which stated explicitly that the
appointment was temporary, and next when she consented to the 2012 custody order.
At the custody hearings, Shelton testified that she never told Wise that the
2007 guardianship appointment would be permanent or that Wise would be Chris’s
parent, and that she never intended to mislead Weideman or Wise into thinking that
they would parent Chris until he was an adult. Shelton testified that for a few
months in 2007, she was not receiving treatment for her feelings of anxiety and
depression, nor was she receiving prescription medications for other mental health
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Opinion of the Court
issues. This struggle prompted her to seek help from Wise and Weideman to care for
Chris, which triggered Wise and Weideman to discuss having an attorney draft the
2007 guardianship appointment. Shelton further testified that after the 2007
guardianship appointment was executed, she remained involved in Chris’s life. When
Shelton was doing well, she would be involved in Chris’s life, holding him and playing
with him and trying to help with caring for him. But when Shelton was not doing
well, she would try to avoid Chris, so as to prevent Chris from seeing her under the
influence of narcotics or exhibiting symptoms of her mental health issues. Weideman
testified that Shelton agreed to sign the 2007 guardianship appointment “only if it
were temporary because one day she hoped to be able to raise [Chris].” Indeed, Wise
concedes that the 2007 guardianship appointment provided explicitly that “the
parties agree that the appointment is temporary.”
Regarding the 2012 custody order, Wise contends that Shelton failed to
indicate that she intended the custodial arrangement to be temporary. However,
Wise is mistaken. The transcript of the custody hearings indicate that Shelton and
Weideman intended a temporary arrangement. Shelton testified that she did not
understand that the 2012 custody order would strip her of her right to parent Chris.
Rather, Shelton understood that Weideman, unlike Wise, was willing to allow
Shelton to undertake more of a parenting role for Chris at a time when she would be
able to do so. Indeed, Weideman testified that “[Shelton] knew that [by] giving me
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legal custody [of Chris], [Shelton] would still be able to be a part of his life and
hopefully some day be his parent[.]”
Shelton’s decision to consent to the 2012 custody order was based, in part, on
her understanding that legally placing Chris in Weideman’s care would allow Shelton
to continue to be an active participant in Chris’s life and provide her the opportunity
to assert her role as Chris’s parent to a progressively greater degree. The trial court
made the following unchallenged findings of fact, which are binding on appeal:
54. . . . This decision [to execute the 2012 custody order]
was based in part upon the desire of [Shelton] to be actively
involved in [Chris’s] life . . . , and that by legally placing
[Chris] in the care of [Weideman,] [Shelton] would continue
to have the opportunity to be an active participant in
[Chris’s] life[.]
....
58. . . . [Shelton’s] election to grant [Weideman] custody of
[Chris] pursuant to the Order of 1 March 2012 was . . . not
inconsistent with her parental role for the following
reasons:
a. Prior to this time, while [Chris] was in the care of
[Wise], [Shelton] was unable to assert her rights as
a parent and was unable to have any real interaction
with [Chris];
b. [Weideman] had not interfered with [Shelton]’s
ability to see [Chris] and represented a safe place for
[Chris] to live on an ongoing basis while [Shelton]
attempted to place herself in the position where she
was able to assert her rights as a parent;
c. [U]nder [Weideman]’s care, [Chris] was able to
maintain a relationship with [Shelton,] and
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Opinion of the Court
[Shelton] was able to provide care for [Chris];
d. [Weideman] has always allowed [Shelton] access
to and the ability to care for [Chris] in the best
interest of [Chris;]
e. [W]hen [Chris] was placed with [Weideman] on a
primary basis, [Shelton] had access to and was able
to provide care for [Chris], as well as providing a
relationship for [Chris] with his sibling, including
teaching [Chris] sign language in order to be able to
communicate with his younger sibling.
The trial court’s findings illustrate that Shelton’s execution of the 2012 custody
order was not conduct inconsistent with her protected parental status. Rather than
demonstrate that Shelton intended the 2012 custody order to further relinquish her
parental authority, the findings illustrate that Shelton intended for the 2012 custody
order to enable her to assert her right to parent Chris and to assume her role as
Chris’s mother to a progressively greater degree. The findings demonstrate that Wise
purposefully impeded Shelton from exercising her right to parent Chris, and that
executing the 2012 custody order that granted Weideman sole custody of Chris was
one of the very limited ways by which Shelton would be able to assert her role as
Chris’s parent. Therefore, the findings demonstrate not that Shelton intended for the
2012 custody order to grant Weideman permanent custody of Chris, but that she
intended for the 2012 custody order to provide her with the opportunity to assume
her role as Chris’ mother in the future.
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Opinion of the Court
Wise has failed to establish by clear and convincing evidence that Shelton’s
execution of the 2007 guardianship appointment or the 2012 custody order conduct
inconsistent with her protected parent status. Therefore, we overrule Wise’s
challenge.
2. Responsibilities Attendant to Rearing Chris
Wise next contends that the trial court erred by concluding Shelton did not act
inconsistently with her protected status, because Wise presented clear and
convincing evidence that Shelton failed to shoulder the responsibilities attendant to
rearing a child. We disagree.
Although Wise cites to Price v. Howard for the proposition that “the parent
may no longer enjoy a paramount status if . . . she fails to shoulder the responsibilities
that are attendant to rearing a child,” 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997),
she has failed to apply that case or any other authority to the facts of this case. Moss
Creek Homeowners Ass'n, Inc. v. Bissette, 202 N.C. App. 222, 231, 689 S.E.2d 180, 186
(2010) (“[T]he [party] appl[ied] no facts from the record to the case law cited.
Accordingly, this argument is deemed abandoned. N.C. R. App. P. 28(b)(6) (2009).”).
In support of her argument, Wise cited only to an unpublished opinion from this
Court, but failed to apply facts from the record to the case cited. Moreover, she failed
to include a copy of this opinion at the end of her brief. Rule 30 of the North Carolina
Rules of Appellate Procedure provides:
(3) An unpublished decision of the North Carolina Court of
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Appeals does not constitute controlling legal authority.
Accordingly, citation of unpublished opinions in briefs,
memoranda, and oral arguments in the trial and appellate
divisions is disfavored, except for the purpose of
establishing claim preclusion, issue preclusion, or the law
of the case. If a party believes, nevertheless, that an
unpublished opinion has precedential value to a material
issue in the case and that there is no published opinion that
would serve as well, the party may cite the unpublished
opinion if that party serves a copy thereof on all other
parties in the case and on the court to which the citation is
offered. This service may be accomplished by including the
copy of the unpublished opinion in an addendum to a brief
or memorandum.
N.C.R. App. P. 30(3)(e)(3).
Nonetheless, we conclude that Wise has failed to carry her burden of proving
by clear and convincing evidence that Shelton failed to shoulder the responsibilities
attendant to rearing Chris. Wise contends that the 2007 guardianship appointment,
Wise and Weideman co-parenting Chris for five-and-one-half years, and Shelton
using drugs and disappearing for days, are clear and convincing evidence that
Shelton failed to shoulder the responsibilities attendant to raising Chris. We
disagree.
The trial court made the following unchallenged findings:
31. Based upon a reading of [the 2007 guardianship
appointment] and all the competent evidence in this
matter, the Court does not find that the intent of [Shelton]
was to abdicate complete responsibility for her child, or
that any intent to allow [Weideman] or [Wise] to provide
care for her child was intended to be permanent. Rather,
and to the contrary, the Court finds that this assignment
by [Shelton] was intended by [Shelton] to be temporary in
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nature.
....
38. That [Shelton’s] admittance into Copestone in 2005,
relapse in 2007, and Neil Dobbins in 2010[, rehabilitation
centers,] are all indicative of the struggles [Shelton] faced
at the intersection of untreated mental health issues and
self-medicating that turns into addiction. That given
[Shelton’s] long journey towards seeking professional help,
and then subsequent journey of discovering a medication
regiment that worked to treat these issues, and later
behavioral therapies and remedies to assist [Shelton]
realize that she has choices where before all of these
treatments [Shelton] testified she would only feel trapped
by her illness and react in anger, that given all of these
journeys coupled with the fact that [Shelton] is a high
school drop-out with very limited economical means, that
temporary guardianship and custody must give a birth
mother the time and space to learn how to take care of
herself so that she can be a fully present mother for her
son. The Court notes that [Shelton] has made and is
making progress in this journey and that [Shelton’s]
progress can be tracked with her involvement and
increased parenting role in [Chris’s] life as described by
[Weideman], [Shelton], and [Shelton’s] biological
grandmother[.]
39. [Wise] testified that [Shelton] did not take care of
[Chris] and would often be upset with [Chris] if [he] cried
or made noise at night. [Wise] further testified that she
and [Weideman] would ask [Shelton] to leave the residence
if it was upsetting [Chris]. The Court notes that on these
occasions [Shelton] would leave the residence. The Court
cannot find that the request to have [Shelton] leave the
residence, or compliance by [Shelton] with this request, is
an act contrary to the parental responsibility and rights of
[Shelton] when the evidence supports that this was an
appropriate decision.
40. While [Wise] testified that [Shelton] never took
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parenting responsibilities, the Court does not find this to
be credible; when considering the competent testimony of
[Weideman], [Shelton,] and [Wise], the Court finds that
[Shelton] did assume certain parenting responsibilities for
[Chris], [but] did also rely upon both [Weideman] and
[Wise] to care for [Chris].
....
42. That [Shelton] never expressed any desire or intention
for [Weideman] and [Wise] to provide for the sole and
exclusive care for [Chris]; in fact, the Court finds [to] the
contrary, that the guardianship papers and other
statements made were raised initially by [Wise], and that
[Shelton], in fact, objected to the supposition that
[Weideman] and [Wise] would be awarded the care for
[Chris].
....
47. That [Wise] attempted to keep Shelton away from
[Chris] when [he] was staying at [Wise’s] respective
residence; that the intent of [Wise] to prevent [Shelton]
from staying at her residence when [Chris] was living in
that home, and to even prevent [Shelton] from seeing
[Chris] when [he] was at [Weideman’s] residence. To which
[Weideman] testified that she simply would not tell [Wise]
when [Shelton] was present at her home with [Chris].
48. That the intentional acts of [Wise] to prevent [Shelton]
from being in the presence of [Chris] was not the intent or
desire of [Shelton], and that [Shelton] lacked the ability,
self-esteem, and resources to undertake any real act or
actions to establish her role as a parent in [Chris’s] life. . .
. Accordingly, the Court finds that [Wise] cannot
simultaneously attempt to prevent [Shelton] from having a
relationship with her child, and then hold this against
[Shelton.]
....
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50. The Court further finds, based upon the testimony of
[Wise] that [Wise] never agreed, and would not have
agreed, to let [Shelton] take [Chris] or have a parental role
over [Chris]. [Wise] further testified that she wanted
[Chris] to view his own biological mother, [Shelton], as a
big sister, and went further stating, “I believe [Chris] is
mine. . . or at least half mine.” The Court believes [Wise’s]
response when asked if between 2006 to 2012, at no time
would [Wise] have allowed [Shelton] to take on a parenting
role, to which [Wise] responded, “Correct.”
These unchallenged findings demonstrate that Shelton was suffering from
untreated mental health issues for the majority of Chris’s life, but that she made
qualitative progress toward resolving these issues that previously hindered her from
asserting her role as Chris’s parent. We agree with the trial court that Wise cannot
simultaneously intentionally prevent Shelton from having a relationship with Chris,
and then argue that Shelton has failed to shoulder her burden to care for Chris. The
evidence indicates that Shelton recognized that she needed to relinquish some of her
parental authority to Weideman and Wise while she sought treatment for her mental
health issues and her problems of addiction, until she was able to care for Chris. Wise
has failed to establish by clear and convincing evidence that Shelton failed to shoulder
the responsibilities attendant to raising Chris, such that she has abdicated her
protected parent status. Therefore, we overrule Wise’s challenge.
B. Validity of Custody Order
Wise contends the trial court erred by upholding the 1 March 2012 custody order,
because it was entered in violation of N.C. Gen. Stat. §§ 50A–205(a) and 50A–209.
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Specifically, Wise contends the custody order was invalid and unenforceable, because
the initial custody complaint failed to disclose Wise’s custodial and parental
relationship to Chris, Wise was not joined in the initial custody complaint as a
necessary party under Rule 19 of the North Carolina Rules of Civil Procedure, and
the initial complaint failed to disclose any potential putative fathers. We disagree.
“N.C. Gen. Stat. § 50A–205 provides that notice and an opportunity to be heard
must be provided to all interested parties before a child custody determination can be
made.” Mitchell v. Mitchell (now Norwich), 199 N.C. App. 392, 398, 681 S.E.2d 520,
525 (2009) (citation omitted). This includes “any person having physical custody of
the child.” N.C. Gen. Stat. § 50A-205(a) (2015). In this case, Wise had physical
custody of Chris. Therefore, she had a right to notice of the initial custody hearing.
Although Wise was not given notice of the initial custody hearing, the trial court
granted her motion to intervene in the matter, and Wise was subsequently joined as
a party to the custody proceedings. After multiple days of hearings, in which Wise
participated, the trial court determined that, even though Wise had a relationship
with Chris, the custodial arrangement of the initial custody order was appropriate.
In addition, the trial court dismissed Wise’s motions for custody and visitation
without prejudice.
Assuming, arguendo, that the custody order was initially entered in error
because Wise was not given proper notice of the initial custody hearing, this error
was resolved when the trial court allowed Wise to intervene and participate in the
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custody proceedings. Although Wise appealed the amended custody order, not the
initial custody order, the amended custody order not only references the initial
custody order, but also incorporates the trial court’s conclusion of law that the
custodial arrangement outlined in the initial custody order awarding Weideman
custody of Chris was a proper initial custody determination.
This same rationale, that any error arising from Weideman and Shelton’s
failure to give Wise notice of the initial custody proceeding was resolved after Wise
was joined as a party to the custody proceedings, also applies to Wise’s challenge that
initially she was not joined as a necessary party. Therefore, we overrule these
challenges.
As to Wise’s challenge that Weideman’s “fraudulent exclusion of the likely
biological fathers[] render[ed] the [consent order] invalid and unenforceable,” we note
that, once again, Wise has failed to apply any authority to the facts of this case. See
N.C.R. App. P. 28(b)(6). Nonetheless, we note that the trial court found the following
unchallenged facts:
8. . . . The father of [Chris], as of the date of the hearing,
was not known; there was no service on the father or
putative father at the time of the filing of the Complaint,
nor was evidence presented by any person or party to this
action during this trial that paternity had been established
concerning [Chris].
....
33. That [Chris’s] father had yet to make an appearance or
be present in the life of the child, in any way, shape or form
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[from Chris’s birth until execution of the 2007
guardianship appointment].
We recognize that the record does contain an affidavit from Greg Clinkscales
(“Clinkscales”), the father of Shelton’s other minor child, Charlie, which was attached
to Wise’s Rule 59 and 60 motions after the trial court entered its custody order on 15
August 2014. The affidavit states in pertinent part:
3. [Shelton] and I have one child together, that I am certain
of, [Charlie], born May 31, 2010. I have had physical
custody of [Charlie] since two (2) months after he was born.
4. [Shelton] told me that [Chris] is my child and that there
was no doubt about it; she told me this prior to May 2013.
However, the record contains no evidence that Clinkscales or any other
putative father contested notice of the initial custody hearing or of the subsequent
custody proceedings. Clinkscales was not joined as a party to this appeal pursuant
to N.C.R. App. P. 5(a). Therefore, this issue is not properly before us, and we dismiss
this challenge.
C. Trial Court’s Failure to Address Visitation
Wise’s next argument pertains to the trial court’s failure to address visitation.
Specifically, Wise contends: “The trial court’s Order noted that visitation was an
issue, but, failed to enter any findings or conclusions that addressed visitation, and
the Order specifically failed to address whether visitation with Wise is in the child’s
best interests.” However, “[a]s we have concluded that defendant did not act
inconsistently with her status as a parent, and the trial court did not make a finding
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WEIDEMAN V. SHELTON
Opinion of the Court
that defendant was unfit, there was no basis for the trial court to grant visitation to
[Wise].” Rodriguez, 211 N.C. App. at 279, 710 S.E.2d at 244 (citation omitted). The
trial court did not err by dismissing Wise’s motion for visitation of Chris. We overrule
this challenge.
Because the trial court concluded that Wise failed to establish that Shelton
acted inconsistently with her constitutionally protected parental status, we do not
address Wise’s additional challenges on appeal.
III. Conclusion
Since the trial court did not err by concluding Wise failed to establish by clear
and convincing evidence that Shelton had acted inconsistently with her
constitutionally protected parental status, the trial court also did not err in
dismissing Wise’s motions for custody and visitation. Accordingly, we affirm the trial
court’s order.
AFFIRMED.
Judges ELMORE and ZACHARY concur.
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