Document Info

DocketNumber: 22-438

Filed Date: 12/6/2022

Status: Precedential

Modified Date: 12/6/2022

  •                        IN THE COURT OF APPEALS OF NORTH CAROLINA
    2022-NCCOA-781
    No. COA22-438
    Filed 6 December 2022
    Nash County, No. 15CVD6621
    AALIYAH D. FRAZIER, Plaintiff,
    v.
    GARY KENNETH FRAZIER, JR., Defendant.
    Appeal by Aaliyah D. Frazier2 from order entered 7 December 2021 by Judge
    Wayne S. Boyette in District Court, Nash County. Heard in the Court of Appeals 1
    November 2022.
    Dobson Law Firm, PLLC, by John W. Moss, for plaintiff-appellant.
    Etheridge, Hamlett & Murray, LLP, by J. Richard Hamlett, II, for defendant-
    appellee.
    STROUD, Chief Judge.
    ¶1            Plaintiff-mother appeals a custody order granting defendant-father sole legal
    and physical custody of their child and granting Mother visitation. Mother did not
    challenge any of the trial court’s findings of fact but challenges only the trial court’s
    1   The file number on the custody order in our record is illegible, as is much of the record.
    2Aaliyah D. Frazier is noted as the plaintiff on the custody order on appeal and as the
    defendant on her notice of appeal. We refer to her as the plaintiff, per the order.
    FRAZIER V. FRAZIER
    2022-NCCOA-781
    Opinion of the Court
    determination it is in the child’s best interest for Father to have sole legal and
    physical custody. Because the trial court made sufficient findings of fact to support
    its conclusions of law and did not abuse its discretion by granting sole legal and
    physical custody to Father, we affirm the trial court order.
    I.    Deficiencies in the Record on Appeal
    ¶2          Mother timely filed a notice of appeal from a December 2021 child custody
    order granting Father sole legal and physical custody of their child, with Mother
    having visitation. We first note what the record does not include, and then what it
    does include.
    ¶3          Our record does not contain a complaint, a required document on appeal: “The
    printed record in civil actions . . . shall contain . . . copies of the pleadings[.]” N.C.R.
    App. P. 9(a)(1)(d). Further, our record does not contain some of the motions addressed
    in the custody order on appeal. Nor does the record include the prior custody order
    which was being modified. “Plaintiff, as the appellant, bore the burden of ensuring
    that the record on appeal was complete, properly settled, in correct form, and filed.”
    Fox v. Fox, 
    238 N.C. App. 336
    , 2022-NCCOA-334, ¶ 49 (citation, quotation marks,
    ellipses, and brackets omitted).
    ¶4          Unfortunately, Mother did include in the record confidential medical records
    of the child, confidential records of a child abuse investigation by Wake County Child
    Protective Services (“CPS”) and the Nash County Department of Social Services
    FRAZIER V. FRAZIER
    2022-NCCOA-781
    Opinion of the Court
    (“DSS”), and records including voluminous personal identifying information of the
    child and the parties.3 This Court has sua sponte sealed the record to protect the
    personal identifying information and confidential medical information of the child to
    the extent we can.
    ¶5            Under Rule 42 of the North Carolina Rules of Appellate Procedure, documents
    in certain types of cases are sealed by operation of law to protect the identity and
    personal information of minor children. See N.C. R. App. P. 42. Rule 42 specifically
    applies to “appeals filed under” certain statutes:
    (b) Items sealed by operation of rule. By virtue of this
    subsection, items filed with the appellate courts are under
    seal in the following matters:
    (1) Appeals filed under N.C.G.S. § 7B-1001;
    (2) Appeals filed under N.C.G.S. § 7B-2602;
    (3) Appeals filed under N.C.G.S. § 7A-27 that
    involve a sexual offense committed against a minor; and
    (4) Cases in which the right to appeal under one of
    these statutes has been lost.
    In briefs, motions, and petitions filed in these
    matters, counsel must use initials or a pseudonym instead
    of the minor’s name. Counsel for each party must agree on
    the initials or pseudonym and must include a stipulation
    that evidences this agreement in the record on appeal.
    (c) Items sealed by appellate courts. If an item was
    not sealed in the trial tribunal or by operation of rule, then
    counsel may move the appellate court to seal that item.
    Items subject to a motion to seal will be held under seal
    pending the appellate court’s disposition of the motion.
    3   The parties did not use the minor child’s name in their briefs.
    FRAZIER V. FRAZIER
    2022-NCCOA-781
    Opinion of the Court
    Id.
    ¶6         N.C. Gen. Stat. § 7B-1001 addresses appeals filed in abuse, neglect, or
    dependency proceedings under Chapter 7B, Subchapter I. N.C. Gen. Stat. § 7B-2602
    addresses appeals filed in cases dealing with undisciplined and delinquent juveniles
    under Chapter 7B, Subchapter II. N.C. Gen. Stat. § 7A-27 governs appeals of right
    from the courts of the trial divisions in other types of cases, but Rule 42(b)(3), limits
    its application to appeals “involv[ing] a sexual offense committed against a minor.”
    Id.
    ¶7         If the CPS and DSS investigations of alleged abuse of the minor child here had
    resulted in the filing of a petition and an appeal from an order ruling on the petition,
    the medical records and CPS and DSS records filed by Mother in this record on appeal
    would have been sealed by operation of law under Rule 42(b)(1), as the appeal would
    have been “filed under” N.C. Gen. Stat. § 7B-1001(a). See id. But neither CPS nor
    DSS substantiated Mother’s claims of sexual abuse of the child; and no petition
    alleging abuse, neglect, or dependency was filed. The trial court’s order on appeal
    specifically rejects the claim of sexual abuse. The trial court found that “the child
    stated to Nash DSS that she had previously lied when she said she was sexually
    assaulted and that she had lied because her mother had told her to lie.” But the fact
    that the child was not sexually abused does not change anything about the need to
    protect the child’s confidential medical information or her personal identifying
    FRAZIER V. FRAZIER
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    Opinion of the Court
    information.
    ¶8         Rule 42 unfortunately does not cover cases like this one, where there has been
    an investigation of alleged sexual abuse, but the investigation does not find any
    grounds to substantiate the claim or take further action. See generally id. Here, the
    parties simply used the minor child’s medical records and records from the CPS and
    DSS investigations--which would have been protected if the claims of sexual abuse
    were substantiated – in the Chapter 50 custody case and then in the record on appeal.
    Thus, Mother was not technically required by Rule 42 to file the child’s confidential
    medical and investigatory records under seal in this appeal, an appeal under N.C.
    Gen. Stat. § 7A-27, as this appeal does not involve “a sexual offense committed against
    a minor[.]” Id. Instead, it involves an unfounded allegation of a sexual offense
    against a minor.    But the public dissemination of sensitive information in the
    investigatory and medical records of the minor child may be no less harmful to the
    child where the allegations of sexual abuse were unfounded than if they were
    grounded in fact.
    ¶9         Despite this loophole in Rule 42, we encourage parents, trial courts, and
    counsel involved in child custody proceedings to be keenly aware of the need to protect
    the confidentiality of minor children who are the innocent and unfortunate victims of
    disputes between their parents or caregivers. Unless the record, or portions of the
    record, is sealed, all the information in records filed with the Court of Appeals is
    FRAZIER V. FRAZIER
    2022-NCCOA-781
    Opinion of the Court
    available online and disclosure of this sort of personal information of a minor child
    can result in direct harm to the minor child. There is simply no good reason to have
    a minor child’s confidential medical records and personal identifying information
    placed on the permanent public record, available online to the entire world.
    II.     Best Interests of the Child
    ¶ 10         Despite the deficiencies in the record on appeal, we can review Mother’s
    argument because she contends only that the trial court abused its discretion in
    granting sole custody to Father. The custody order on appeal contains 40 findings of
    fact, and Mother did not challenge any of these findings on appeal.         Mother even
    notes she “does not argue that the trial court order lacks findings of fact to support a
    change in circumstances[,]” so she does not challenge the trial court’s modification of
    the prior custody order based upon a substantial change in circumstances affecting
    the best interests of the minor child.
    ¶ 11         “A trial court’s unchallenged findings of fact are presumed to be supported by
    competent evidence and are binding on appeal.” Mussa v. Palmer-Mussa, 
    366 N.C. 185
    , 191, 
    731 S.E.2d 404
    , 409 (2012) (citation, quotation marks, and brackets
    omitted). The only challenge on appeal is the trial court’s determination that it was
    in the child’s best interests for Father to have sole legal and physical custody of the
    child, with Mother having visitation.
    As long as there is competent evidence to support the
    FRAZIER V. FRAZIER
    2022-NCCOA-781
    Opinion of the Court
    trial court’s findings, its determination as to the child’s best
    interests cannot be upset absent a manifest abuse of
    discretion. Under an abuse of discretion standard, we must
    determine whether a decision is manifestly unsupported by
    reason, or so arbitrary that it could not have been the result
    of a reasoned decision.
    Stephens v. Stephens, 
    213 N.C. App. 495
    , 503, 
    715 S.E.2d 168
    , 174 (2011) (citations
    and quotation marks omitted).
    ¶ 12         Mother contends the trial court should have made additional findings of fact
    regarding various factors, such as “the quality of education at Wake County Public
    Schools versus Nash County Public Schools” and “the suitability of each parent to
    provide for the child’s needs, the child’s preferences, or the emotional or physical
    health of the child.” But the trial court has the discretion to weigh the evidence and
    to determine which factors are most important in each case, and the trial court need
    not make detailed evidentiary findings as to every aspect of the child’s life. See
    generally 
    id.
     The question for this Court is simply whether the findings of fact are
    sufficient to show the trial court made a reasoned decision as to the child’s best
    interests, and thus did not abuse its discretion. See generally 
    id.
    ¶ 13         The binding findings of fact establish Mother reported Father’s wife had
    allowed the child to be sexually abused, but DSS found “no evidence of abuse[;]” the
    child’s therapist testified “she had no concerns” regarding the child being cared for
    while in Father’s custody; and Mother repeatedly interfered when a social worker
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    Opinion of the Court
    from CPS attempted to interview the child. Ultimately, the child stated, “she had
    lied because her mother had told her to lie.” Further, the trial court found the parents
    were not able to jointly co-parent the child. Based upon the unchallenged findings of
    fact, we cannot determine the trial court’s decision to grant Father sole legal and
    physical custody was “manifestly unsupported by reason[.]” 
    Id.
    ¶ 14         We therefore affirm the custody order.
    AFFIRMED.
    Judges HAMPSON and JACKSON concur.