{ "id": 9126928, "name": "RICHARD BARGER and MARGARET BARGER, Plaintiffs v. KRISTI LaRAE BARGER and EDWARD McCLOUGH and CATAWBA COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants", "name_abbreviation": "Barger v. Barger", "decision_date": "2002-03-05", "docket_number": "No. COA00-1477", "first_page": "224", "last_page": "227", "citations": [ { "type": "official", "cite": "149 N.C. App. 224" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "517 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "925", "parenthetical": "if the trial court's findings of fact are supported by competent evidence, and they support its conclusion, they are binding on appeal" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 460", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145414 ], "year": 1999, "pin_cites": [ { "page": "464", "parenthetical": "if the trial court's findings of fact are supported by competent evidence, and they support its conclusion, they are binding on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0460-01" ] }, { "cite": "431 U.S. 816", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2109 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "862-63" }, { "page": "46-47" } ], "opinion_index": 0, "case_paths": [ "/us/431/0816-01" ] }, { "cite": "434 U.S. 246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181961 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "255" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/us/434/0246-01" ] }, { "cite": "142 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "596", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "264 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575017 ], "year": 1965, "pin_cites": [ { "page": "715-16", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0711-01" ] }, { "cite": "550 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "354 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138519 ], "year": 2001, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0057-01" ] }, { "cite": "484 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139523 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0068-01" ] }, { "cite": "445 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551903 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0397-01" ] } ], "analysis": { "cardinality": 423, "char_count": 6850, "ocr_confidence": 0.734, "pagerank": { "raw": 6.155461896083572e-08, "percentile": 0.38256303745894066 }, "sha256": "9240f61f4ab10a2be3b422e580233a43dc8d08d56c99656d1acb4f3a8acc36ff", "simhash": "1:01cc642a64dbb8c5", "word_count": 1109 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and HUNTER concur." ], "parties": [ "RICHARD BARGER and MARGARET BARGER, Plaintiffs v. KRISTI LaRAE BARGER and EDWARD McCLOUGH and CATAWBA COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nRichard Barger and Margaret Barger (\u201cplaintiffs\u201d) appeal from an order granting defendant, Edward McClough (\u201cEdward\u201d), custody of his natural child, Darrious Adam Barger (\u201cAdam\u201d), visitation to plaintiffs, and denying plaintiffs\u2019 motion for sole custody. We affirm the trial court\u2019s order.\nI. Facts'\nKristi LeRae Barger (\u201cKristi\u201d) and Edward began a sexual relationship that resulted in Kristi becoming pregnant. Kristi and Edward never married. Adam was born on 27 February 1999 while his mother Kristi served an activated sentence in prison for a probation violation. Plaintiffs, Kristi\u2019s parents, obtained Adam from the prison hospital two days later.\nA \u201cconsolidated order of adjudication and disposition\u201d was entered 21 September 1999 awarding custody of Adam to the Catawba County Department of Social Services (\u201cCatawba DSS\u201d). The order granted Catawba DSS placement discretion, approved the current grandparents custody, required Kristi to obtain substance abuse treatment, required Edward to submit to a paternity test, granted Kristi and Edward supervised visitation, and sought reunification of Adam with Kristi and Edward, if it was later determined that he was the father.\nOn 20 December 1999, plaintiffs filed a complaint seeking custody of their grandchild. Edward filed an answer on 28 February 2000 and a counterclaim and cross claim on 9 March 2000, in which he requested \u201ccare, custody and control\u201d of Adam. Plaintiffs replied requesting Edward recover nothing. Neither Kristi nor Catawba DSS participated in the custody action.\nThe trial court conducted a hearing on 10 May 2000 and granted Edward \u201ccare, custody and control\u201d of Adam and granted plaintiffs visitation rights on 9 August 2000. Plaintiffs appeal.\nII. Issues\nPlaintiffs assign error to the trial court\u2019s (1) refusing to resolve evidentiary conflicts regarding the fitness of the parties and the best interests of the child and (2) failing to properly find facts rather than recite the evidence presented.\nIII. Fitness of t,he Parties and Best Interest, of Child\nPlaintiffs argue that the \u201ccustody order is fatally defective because it fails to make the detailed findings of fact from which [to] determine that [the trial court\u2019s] order is in the best interest of Darrious Adam Barger, \u201d (emphasis suppled) and that \u201cit contains no findings of fact on why Ed McClough could be considered fit and proper.\u201d These arguments misunderstand the constitutionally required analysis required to resolve a custody dispute between a natural parent and a non-parent.\nOur Supreme Court has recently reaffirmed that Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) and Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), \u201cwhen read together, protect a natural parent\u2019s paramount constitutional right to custody and control of his or her children.\u201d Adams v. Tessener, 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001).\n\u201c[T]he government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody . . . .\u201d Id. (citing Jolly v. Queen, 264 N.C. 711, 715-16, 142 S.E.2d 592, 596 (1965) (emphasis supplied)). A parent\u2019s child should not be placed \u201cin the hands of a third person except upon convincing proof that the parent is an unfit person to have custody of the child or for some other extraordinary fact or circumstance.\u201d Id. (citing 3 Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 224 at 22:32 (5th ed. 2000)). \u201cIf a natural parent\u2019s conduct has not been inconsistent with his or her constitutionally protected status, application of the \u2018best interest of the child\u2019 standard in a custody dispute with a nonparent would offend the Due Process Clause.\u201d Price, 346 N.C. at 79, 484 S.E.2d at 534 (citing Petersen, 337 N.C. 397, 445 S.E.2d 901; Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed.2d 511, 520; Smith v. Org. of Foster Families for Equality and Reform, 431 U.S. 816, 862-63, 53 L. Ed. 2d 14, 46-47 (1977)).\nAs between a parent and a non-parent, North Carolina courts cannot perform a \u201cbest interest of the child\u201d analysis to determine child custody until after the natural parents are judicially determined to be unfit. The trial court made extensive findings of fact that Edward \u201cis a fit and proper person to have the care, custody and control of the minor child,\u201d and awarded \u201cthe care, custody and control\u201d of Adam to Edward. The trial court erred by impermissibly stating that \u201c[t]he Court believes that the best interests of the minor child would best be served by leaving custody [of Adam] with the Plaintiffs\u201d after it had found that Edward was not an unfit parent. Edward did not cross appeal that portion of the trial court\u2019s order granting plaintiffs visitation with Adam, and thus that issue is not properly before us. N.C. R. App. P. 10(a) (1999).\nIV. Sufficiency of the Findings\nPlaintiffs contend that the trial court\u2019s findings of fact are mere recitations of the evidence presented. We disagree.\nThe trial court made detailed findings of fact in which it concluded that Edward was a fit and proper person to have custody of Adam. Plaintiffs have failed to produce any evidence that would rebut the finding of fact that Edward is fit to raise his child. After carefully reviewing the entire record, we believe that those findings support the trial court\u2019s conclusion and that the findings are supported by competent evidence. Sain v. Sain, 134 N.C. App. 460, 464, 517 S.E.2d 921, 925 (1999) (if the trial court\u2019s findings of fact are supported by competent evidence, and they support its conclusion, they are binding on appeal). This assignment of error is overruled.\nAffirmed.\nJudges GREENE and HUNTER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Crowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellants.", "Sigmon, Sigmon and Isenhower, by C. Randall Isenhower, for defendant-appellees." ], "corrections": "", "head_matter": "RICHARD BARGER and MARGARET BARGER, Plaintiffs v. KRISTI LaRAE BARGER and EDWARD McCLOUGH and CATAWBA COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants\nNo. COA00-1477\n(Filed 5 March 2002)\nChild Support, Custody, and Visitation\u2014 custody \u2014 natural parent \u2014 grandparents\u2014best interests standard\nThe trial court did not err in a child custody case by granting defendant father custody of his natural child and by denying plaintiff maternal grandparents\u2019 motion for sole custody, because: (1) as between a parent and a non-parent, North Carolina courts cannot perform a best interests of the child analysis to determine child custody until after the natural parents are judicially determined to be unfit; and (2) the trial court made extensive findings of fact that the child\u2019s father is a fit and proper person to have the care, custody, and control of the minor child.\nAppeal by plaintiffs from order entered 6 August 2000 by Judge Nancy Einstein in Catawba County District Court. Heard in the Court of Appeals 29 January 2002.\nCrowe & Davis, P.A., by H. Kent Crowe, for plaintiff-appellants.\nSigmon, Sigmon and Isenhower, by C. Randall Isenhower, for defendant-appellees." }, "file_name": "0224-01", "first_page_order": 258, "last_page_order": 261 }