{ "id": 4342930, "name": "TIMOTHY SCOTT BOBBITT, by Sasha DeeAnn Bobbitt, his attorney-in-fact, Plaintiff v. KELLIE LYNN EIZENGA, Defendant", "name_abbreviation": "Bobbitt v. Eizenga", "decision_date": "2011-09-06", "docket_number": "No. COA10-1580", "first_page": "378", "last_page": "382", "citations": [ { "type": "official", "cite": "215 N.C. App. 378" } ], "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": "643 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638130 ], "year": 2007, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0604-01" ] }, { "cite": "659 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640731 ], "year": 2008, "pin_cites": [ { "page": "447", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0442-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "unlawful for a sex offender to work \"at any place where a minor is present and the person's responsibilities or activities would include instruction, supervision, or care of a minor or minors\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-208.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)", "parenthetical": "a sex offender \"shall not knowingly reside within 1,000 feet of the property on which any public or nonpublic school or child care center is located\"" } ], "opinion_index": 0 }, { "cite": "183 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8201966 ], "year": 2007, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0126-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "681 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "469", "parenthetical": "citation and quotation marks omitted" }, { "parenthetical": "citation and quotation marks omitted" }, { "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170186 ], "year": 2009, "pin_cites": [ { "page": "33", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0030-01" ] }, { "cite": "189 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157030 ], "year": 2008, "pin_cites": [ { "page": "606", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0601-01" ] } ], "analysis": { "cardinality": 450, "char_count": 9583, "ocr_confidence": 0.756, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.314812562431246 }, "sha256": "26a4e4b2124ffac2712d9dc8317d31d2d0a48523e537525a70d21a6a85f115cd", "simhash": "1:8babda2f362d1ff2", "word_count": 1600 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEPHENS concur." ], "parties": [ "TIMOTHY SCOTT BOBBITT, by Sasha DeeAnn Bobbitt, his attorney-in-fact, Plaintiff v. KELLIE LYNN EIZENGA, Defendant" ], "opinions": [ { "text": "THIGPEN, Judge.\nTimothy Bobbitt was convicted of attempted statutory rape of Kellie Eizenga, an act which resulted in the birth of a child. We must determine whether the trial court erred in dismissing Bobbitt\u2019s claim for visitation because of his conviction and sex offender status. Because there is no law preventing Bobbitt from claiming visitation rights with his child, we reverse and remand.\nIn November 2009, Bobbitt pled guilty to attempted statutory rape of Eizenga. Bobbitt was sentenced to 94 to 122 months in prison and was required to register as a sex offender for 30 years upon release from prison. As a result of the attempted statutory rape, Eizenga gave birth to L.W. in March 2010. Bobbitt was not listed as the biological father on L.W.\u2019s birth certificate, and Eizenga gave L.W. the last name of Eizenga\u2019s boyfriend at the time of L.W.\u2019s birth. However, a paternity test indicated a 99.99% probability that Bobbitt is the father of L.W.\nWhile incarcerated, Bobbitt filed a complaint seeking joint legal custody and reasonable visitation with L.W., a change of L.W.\u2019s last name, and visitation rights for Bobbitt\u2019s parents. On 3 March 2010, Eizenga filed a motion to dismiss for failure to state a claim. After a hearing on 26 July 2010, the trial court filed an order on 27 August 2010 granting Eizenga\u2019s motion to dismiss. Bobbitt appeals.\nOn appeal, Bobbitt contends the trial court erred by (I) dismissing his action for visitation because he was not convicted of a crime that would cause him to lose visitation rights, (II) finding that Bobbitt cannot have any contact with L.W. because of his status as a sex offender, and (III) finding that visitation is impossible.\nI. Effect of Attempted Statutory Rape Conviction\nBobbitt first argues the trial court erred by dismissing his action for visitation because he was not convicted of a crime that limits his right to seek custody or visitation. We agree.\nWe review a motion to dismiss for failure to state a claim de novo. S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 606, 659 S.E.2d 442, 447 (2008) (citation omitted). \u201cThe standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true.\u201d Guyton v. FM Lending Services, Inc., 199 N.C. App. 30, 33, 681 S.E.2d 465, 469 (2009) (citation and quotation marks omitted). \u201cOn a motion to dismiss, the complaint\u2019s material factual allegations are taken as true.\u201d Id. (citation and quotation marks omitted). Dismissal is proper when one of the following three conditions is satisfied: \u201c(1) the complaint on its face reveals that no law supports the plaintiff\u2019s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff\u2019s claim.\u201d Id. (citation and quotation marks omitted).\nPursuant to N.C. Gen. Stat. \u00a7 50-13.1(a) (2009), any parent or relative claiming the right to custody of a minor child may institute an action for custody of or visitation with the child. However, \u201c[a]ny person whose actions resulted in a conviction under G.S. 14-27.2 [first-degree rape] or G.S. 14-27.3 [second-degree rape] and the conception of the minor child may not claim the right to custody [or visitation] of that minor child.\u201d Id.\nIn this case, the trial court found as fact that Bobbitt \u201chad been convicted of attempted statutory rape of [Eizenga] which caused the birth of the minor child\u201d and that Bobbitt \u201cwas given an active sentence of 94 to 122 months in prison and is required to register as a sex offender for 30 years once he is released from prison.\u201d The court concluded Bobbitt \u201cis not entitled to visitation with the minor child as a result of his conviction [of attempted statutory rape] and sex offender status.\u201d Bobbitt correctly contends that a conviction of attempted statutory rape does not preclude him from claiming visitation rights under N.C. Gen. Stat. \u00a7 50-13.1(a).\nPursuant to N.C. Gen. Stat. \u00a7 50-13.1(a), any person whose actions resulted in a conviction of first-degree rape or second-degree rape and the conception of a minor child may not claim the right to custody or visitation of that minor child. Bobbitt, however, was convicted of attempted statutory rape, not first-degree rape or second-degree rape. N.C. Gen. Stat. \u00a7 50-13.1(a) does not prevent a person convicted of attempted statutory rape that resulted in the conception of a child from claiming visitation rights to that child. Similarly, in the context of an adjudication order, this Court has explained that \u201c[ejven if respondent were eventually indicted and convicted of statutory rape . . . such a conviction would not result in respondent losing his parental rights[.]\u201d In re J.L., 183 N.C. App. 126, 131, 643 S.E.2d 604, 607 (2007). Thus, the trial court erred by concluding that Bobbitt is not entitled to visitation as a result of his conviction of attempted statutory rape and by dismissing Bobbitt\u2019s complaint on that basis.\nII. Sex Offender Status\nBobbitt next argues the trial court erred in concluding that he is not entitled to visitation with his child due to his status as a sex offender. We agree.\nAlthough the North Carolina Sex Offender and Public Protection Registration Program prevents sex offenders from certain activities involving minor children, see N.C. Gen. Stat. \u00a7 14-208.16(a) (2009) (a sex offender \u201cshall not knowingly reside within 1,000 feet of the property on which any public or nonpublic school or child care center is located\u201d); N.C. Gen. Stat. \u00a7 14-208.17 (2009) (unlawful for a sex offender to work \u201cat any place where a minor is present and the person\u2019s responsibilities or activities would include instruction, supervision, or care of a minor or minors\u201d), there are no provisions preventing a parent from having contact with their child. In fact, at least one of the statutes contemplates a sex offender having contact with their child. Specifically, N.C. Gen. Stat. \u00a7 14-208.18 (2009) allows a registered sex offender who is a parent or guardian of a minor to be present on certain premises with the minor for the purposes specified in the statute.\nIn this case, the trial court found as fact that \u201cit would be a violation of the current criminal law in the State of North Carolina for [Bobbitt] to be around the minor child which is the subject of this action\u201d and that \u201cvisitation is an impossibility as a result of his conviction and sex offender status as he is not entitled to visitation under the current criminal laws.\u201d The court then concluded Bobbitt \u201cis not entitled to visitation with the minor child as a result of his conviction and sex offender status.\u201d Our review of North Carolina statutes and case law has revealed no law that would prevent a parent from claiming visitation rights with their child on the basis of their status as a sex offender. Therefore, the trial court erred by concluding that Bobbitt is not entitled to visitation as a result of his status as a sex offender.\nAbsent legislation prohibiting a person whose actions resulted in \u2022 a conviction of attempted statutory rape and the conception of a minor child from claiming the right to custody or visitation of that minor child, we find no basis upon which to rule Bobbitt is not enti- \u25a0 tied to claim visitation. Thus, taking Bobbitt\u2019s factual allegations as true, we hold Bobbitt has sufficiently stated a claim for custody and visitation of L.W. As a result, we reverse the trial court\u2019s order granting Eizenga\u2019s motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) and remand this case to the trial court for further proceedings on the merits of Bobbitt\u2019s claims pursuant to the appropriate statutory procedures applicable to custody and visitation disputes.\nBecause we conclude the trial court erred in dismissing Bobbitt\u2019s complaint, we will not address his remaining argument.\nREVERSED AND REMANDED.\nChief Judge MARTIN and Judge STEPHENS concur.\n. In his brief, Bobbitt states he pled guilty to attempted statutory rape. However, the record is void of any explanation of how completion of the elements necessary to constitute the offense of attempted statutory rape resulted in the birth of a child.\n. N.C. Gen. Stat. \u00a7\u00a7 14-27.2(c) and 14-27.3(c) (2009) similarly state that \u201c[u]pon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.\u201d", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "The Dummit Law Firm, by Gerene O. Setliff, for plaintiff", "No brief filed for defendant." ], "corrections": "", "head_matter": "TIMOTHY SCOTT BOBBITT, by Sasha DeeAnn Bobbitt, his attorney-in-fact, Plaintiff v. KELLIE LYNN EIZENGA, Defendant\nNo. COA10-1580\n(File 6 September 2011)\nChild Visitation \u2014 attempted statutory rape \u2014 sex offender registration \u2014 no law against visitation \u2014 dismissal improper\nThe trial court erred by dismissing plaintiff father\u2019s claim for visitation of his child based on his conviction for attempted statutory rape, an act which resulted in the birth of a child, and required registration as a sex offender. No law prevented plaintiff from claiming visitation rights with the child.\nAppeal by plaintiff from order entered 27 August 2010 by Judge B. Carlton Terry in Davie County District Court. Heard in the Court of Appeals 6 June 2011.\nThe Dummit Law Firm, by Gerene O. Setliff, for plaintiff\nNo brief filed for defendant." }, "file_name": "0378-01", "first_page_order": 388, "last_page_order": 392 }