{ "id": 491798, "name": "PRISCILLA OWENBY v. FRED JOHNSON YOUNG", "name_abbreviation": "Owenby v. Young", "decision_date": "2003-05-02", "docket_number": "No. 286PA02", "first_page": "142", "last_page": "148", "citations": [ { "type": "official", "cite": "357 N.C. 142" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "563 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": -1 }, { "cite": "150 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081376 ], "year": 2002, "opinion_index": -1, "case_paths": [ "/nc-app/150/0412-01" ] }, { "cite": "119 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "254 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627971 ], "year": 1961, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0723-01" ] }, { "cite": "557 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2001, "pin_cites": [ { "page": "85" }, { "page": "87-88" }, { "page": "88" }, { "page": "86" } ], "opinion_index": 0 }, { "cite": "354 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138368 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0525-01" ] }, { "cite": "550 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2001, "pin_cites": [ { "page": "502" }, { "page": "503", "parenthetical": "citations omitted" }, { "page": "504" }, { "page": "504-05" }, { "page": "505" }, { "page": "503" }, { "page": "503" } ], "opinion_index": 0 }, { "cite": "354 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138519 ], "weight": 7, "year": 2001, "pin_cites": [ { "page": "61" }, { "page": "61" }, { "page": "62" }, { "page": "63" }, { "page": "63" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0057-01" ] }, { "cite": "434 U.S. 246", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181961 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "255" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/us/434/0246-01" ] }, { "cite": "463 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6193882 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "257" }, { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/us/463/0248-01" ] }, { "cite": "484 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1997, "pin_cites": [ { "page": "534", "parenthetical": "citing Lehr v. Robertson, 463 U.S. 248, 257, 77 L. Ed. 2d 614, 624 (1983)" }, { "page": "534" }, { "page": "530" }, { "page": "534" }, { "page": "535" }, { "page": "537" }, { "page": "537" }, { "page": "534" } ], "opinion_index": 0 }, { "cite": "346 N.C. 68", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139523 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "79", "parenthetical": "citing Lehr v. Robertson, 463 U.S. 248, 257, 77 L. 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App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081376 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/150/0412-01" ] } ], "analysis": { "cardinality": 796, "char_count": 16986, "ocr_confidence": 0.746, "pagerank": { "raw": 6.753870392492604e-07, "percentile": 0.9633675554057398 }, "sha256": "49a02ea183c4d6e24a07dfcd05332ddad7370143f09d3cdd34a955542df4e6c9", "simhash": "1:814a94262727ced6", "word_count": 2774 }, "last_updated": "2023-07-14T16:54:45.083013+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PRISCILLA OWENBY v. FRED JOHNSON YOUNG" ], "opinions": [ { "text": "MARTIN, Justice.\nFred Johnson Young (defendant) married Priscilla Price Young (decedent) on 13 July 1985. Defendant and the decedent had two children: one bom 12 May 1989 and the other born 11 December 1990. In 1993, defendant and the decedent divorced. The two executed a separation agreement, later incorporated into a court order, granting primary custody of the children to decedent. Defendant was given secondary custody, structured as visitation.\nOn 28 April 2000, the decedent was killed in an airplane crash. The children thereafter resided with defendant for about four weeks until the decedent\u2019s mother, Priscilla Owenby (plaintiff), filed a complaint on 26 May 2000 seeking custody of the minor children and ex parte relief. An order was entered that day granting temporary custody to plaintiff.\nOn 2 June 2000, defendant filed a motion to dissolve the temporary custody order and a motion to change venue. The trial court entered a temporary order on 21 July 2000, which left the children in plaintiffs custody. Defendant filed a motion to dismiss, an answer, and a counterclaim for custody on 28 July 2000. The trial court denied defendant\u2019s motion to change venue on 18 August 2000. On 21 August 2000, defendant filed a motion for a new hearing and for amendment of the previous judgment, and on 28 November 2000, defendant filed a motion for relief from the order. The matter came on for hearing on 7 December 2000 and again on 18 December 2000.\nIn her complaint, plaintiff alleged that defendant was not a fit and proper person to have the care, custody, and control of the minor children. The principal basis of plaintiff\u2019s complaint was her allegation that defendant had a \u201cproblem with alcohol abuse.\u201d To further support her contention that defendant\u2019s conduct was inconsistent with his protected status as natural parent, plaintiff alleged that defendant continued to drive even though his license had been revoked. Plaintiff also alleged that \u201cdefendant [was] a very unstable person.\u201d More specifically, plaintiff asserted that defendant did not have steady employment and that he was economically unstable.\nThe trial court ultimately concluded that plaintiff had not provided the factual basis necessary to override defendant\u2019s constitutionally protected right to the care, custody, and control of his children. The trial court made the following specific findings of fact:\n5. Plaintiff alleges (paragraph 7(a)) that defendant \u201chas a lifelong problem with alcohol abuse,\u201d and that during his marriage to the mother \u201che spent a lot of time drunk.\u201d As to the latter allegation, whatever it means, the evidence offered did not address it. As to plaintiff\u2019s alleged lifelong problem, it is a fact that he was convicted of driving while impaired in December of 1995, and that he was again convicted of it on April 13, 2000 (out of an arrest sometime late in 1999). . . . No evidence was presented as to defendant\u2019s blood alcohol level in either of his DWI arrests . . . and except for those two arguable occasions in a five-year period, there was no evidence that he drinks to the point of intoxication, either regularly or ever. In sum, the court can certainly find that defendant drinks on a fairly frequent basis, but to go beyond that, and in particular to find that defendant has a problem with aleohol abuse (let alone a lifelong problem) exceeds the evidence before the court, even by inference.\n6. ... [P]laintiff alleges .. . that [defendant\u2019s] job history and performance have remained .. . spotty since the parties\u2019 separation. This turns out not to be the case. Defendant has been eight years with the same employer, and has a good record as an employee, working in the office of a mechanical company.\n7. ... It is indeed the case that defendant has filed for bankruptcy, but it was not made to appear, by him or by plaintiff, what the reason for his insolvency was. He says his finances are better now, and nothing rebuts his claim.\n10. Defendant has, to his sons\u2019 knowledge, driven on the public roads after his license was revoked on at least one occasion: the night he drove to plaintiff\u2019s, after learning that the [children\u2019s] mother had died. Other instances of driving were the subject of [the children\u2019s] testimony, but these instances turned out to be not on the public roads. .\nBased on these findings, the trial court dismissed plaintiff\u2019s action and dissolved all temporary orders previously entered.\nOn appeal, the Court of Appeals reversed the decision of the trial court and remanded for reconsideration. Owenby v. Young, 150 N.C. App. 412, 563 S.E.2d 611 (2002). The Court of Appeals concluded that defendant had acted in a manner inconsistent with his constitutionally protected status as the natural parent, and therefore the \u201cbest interest of the child\u201d standard should be applied to determine custody. Id. at 416, 563 S.E.2d at 614. On 15 August 2002, we retained defendant\u2019s notice of appeal based upon a constitutional question and allowed defendant\u2019s petition for discretionary review.\nAt the outset, we note that the \u201cDue Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.\u201d Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000). This parental liberty interest \u201cis perhaps the oldest of the fundamental liberty interests\u201d the United States Supreme Court has recognized. Id. at 65, 147 L. Ed. 2d at 56. This interest includes the right of parents to establish a home and to direct the upbringing and education of their children. Meyer v. Nebraska, 262 U.S. 390, 399-400, 67 L. Ed. 1042, 1045-46 (1923). Indeed, the protection of the family unit is guaranteed not only by the Due Process Clause, but also by the Equal Protection Clause of the Fourteenth Amendment and possibly by the Ninth Amendment. Stanley v. Illinois, 405 U.S. 645, 661, 31 L. Ed. 2d 551, 559 (1972).\nWe acknowledged the importance of this liberty interest nearly a decade ago when this Court held: \u201cabsent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail.\u201d Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994). The protected liberty interest complements the responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997) (citing Lehr v. Robertson, 463 U.S. 248, 257, 77 L. Ed. 2d 614, 624 (1983)). The justification for the paramount status is eviscerated when a parent\u2019s conduct is inconsistent with the presumption or when a parent \u201cfails to shoulder the responsibilities that are attendant to rearing a child.\u201d Id. Therefore, unless a natural parent\u2019s conduct has been inconsistent with his or her constitutionally protected status, application of the \u201cbest interest of the child\u201d standard in a custody dispute with a nonparent offends the Due Process Clause of the United States Constitution. See Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 520 (1978), quoted in Adams v. Tessener, 354 N.C. 57, 61, 550 S.E.2d 499, 502 (2001), and in Price, 346 N.C. at 78, 484 S.E.2d at 534. Furthermore, the protected right is irrelevant in a custody proceeding between two natural parents, whether biological or adoptive, or between two parties who are not natural parents. Adams, 354 N.C. at 61, 550 S.E.2d at 502 (citing Price, 346 N.C. at 72, 484 S.E.2d at 530). In such instances, the trial court must determine custody using the \u201cbest interest of the child\u201d test. Id.\nThere are at least two methods a court may use to find that a natural parent has forfeited his or her constitutionally protected status. First, N.C.G.S. \u00a7 7B-1111 sets forth nine different grounds upon which a court may terminate parental rights. N.C.G.S. \u00a7 7B-1111 (2001). The finding of any one of the grounds is sufficient to order termination. N.C.G.S. \u00a7 7B-llll(a). With the exception of a child\u2019s right to inherit from a parent, a termination of parental rights order completely and permanently severs all rights and obligations of the parent to the child and the child to the parent. Suzanne Reynolds, Lee\u2019s North Carolina Family Law \u00a7 17.44.a (5th ed. 2002). This statutory procedure is not the subject of the present case. Second, when a court finds parental conduct inconsistent with the protected status, the parent\u2019s paramount right to custody may be lost. Price, 346 N.C. at 79, 484 S.E.2d at 534. Once a court determines that a parent has actually engaged in conduct inconsistent with the protected status, the \u201cbest interest of the child test\u201d may be applied without offending the Due Process Clause. Id. In short, \u201cthe government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody, or where the parent\u2019s conduct is inconsistent with his or her constitutionally protected status.\u201d Adams, 354 N.C. at 62, 550 S.E.2d at 503 (citations omitted).\nThe present case is not the first occasion on which this Court has considered whether a parent forfeited his or her constitutionally protected status. An examination of our precedent naturally guides our discussion here. In Price v. Howard, this Court examined whether a period of voluntary nonparent custody constituted conduct inconsistent with the protected status of a natural parent. Price, 346 N.C. at 79, 484 S.E.2d at 535. Evidence in Price indicated that the natural mother of the child had been an active participant in the first three years of her daughter\u2019s life. It was not clear, however, how much contact the mother had with her daughter after that initial three-year period. Moreover, some evidence indicated that the mother had voluntarily relinquished custody to an individual who had essentially functioned as the child\u2019s father for an indefinite period of time without discussion of the anticipated duration of such relinquishment. Id. at 83, 484 S.E.2d at 537. Noting that \u201cfailure to maintain personal contact with the child or failure to resume custody when able\u201d could amount to conduct inconsistent with the protected parental interests, this Court remanded for a determination of the circumstances surrounding the mother\u2019s relinquishment of custody. Id. at 83-84, 484 S.E.2d at 537.\nSimilarly, in Adams v. Tessener we examined a father\u2019s failure to seize the opportunity to become involved as a parent in his child\u2019s life. Adams, 354 N.C. 57, 550 S.E.2d 499. The trial court in Adams found that even though the child\u2019s mother informed the father of the likelihood that he had fathered the child, he \u201celected to do \u2018nothing\u2019 about the pregnancy and impending birth.\u201d Id. at 66, 550 S.E.2d at 504. The trial court found that the father had never inquired about the health and progress of the child, either before or after the mother informed him that he would be contacted by the Department of Social Services concerning child support payments. Id. at 66, 550 S.E.2d at 504-05. This Court held that the father\u2019s conduct was inconsistent with his protected interest in the child and that the trial court appropriately applied the \u201cbest interest of the child\u201d standard in determining custody. Id. at 66, 550 S.E.2d at 505.\nMost recently, in Speagle v. Seitz, 354 N.C. 525, 557 S.E.2d 83 (2001), we emphasized that evidence of a parent\u2019s conduct should be viewed cumulatively. In Speagle, the trial court determined that the mother\u2019s employment as a topless dancer and her \u201c \u2018lifestyle and romantic involvements\u2019 resulted in her \u2018neglect and separation from the child.\u2019 \u201d Id. at 528, 557 S.E.2d at 85. Evidence also suggested that the mother participated in the murder of the child\u2019s father. Id. at 532-33, 557 S.E.2d at 87-88. Concluding that the question of whether one parent had murdered the other was relevant to the constitutional inquiry, this Court held that the trial court had correctly determined that the mother\u2019s actions were inconsistent with her protected status. Id. at 533-34, 557 S.E.2d at 88. Thus, the trial court properly applied the \u201cbest interest of the child\u201d test to determine the child\u2019s custody. Id.\nIn a custody proceeding, the trial court\u2019s findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Adams, 354 N.C. at 63, 550 S.E.2d at 503; In re Custody of Orr, 254 N.C. 723, 726, 119 S.E.2d 880, 882 (1961). Moreover, the trial court\u2019s determination that a parent\u2019s conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence. Adams, 354 N.C. at 63, 550 S.E.2d at 503. Conduct such as that alleged by plaintiff in the present case \u201cmust be viewed on a case-by-case basis.\u201d Price, 346 N.C. at 79, 484 S.E.2d at 534, quoted in Speagle, 354 N.C. at 531, 557 S.E.2d at 86.\nPlaintiff here supported her allegation that defendant had a \u201cproblem with alcohol abuse\u201d by offering evidence that defendant had twice been convicted of driving while impaired. The trial court found, however, that \u201cexcept for those two arguable occasions in a five-year period, there was no evidence that [defendant] drinks to the point of intoxication, either regularly or ever.\u201d The trial court rejected plaintiff\u2019s contention, stating that \u201cto find that defendant has a problem with alcohol abuse (let alone a lifelong problem) exceeds the evidence before the court, even by inference.\u201d We would add that defendant did not have primary custody of the children, nor were they accompanying him, on either of the occasions for which he received a driving while impaired citation.\nThe trial court also carefully considered plaintiffs assertion that defendant often drove without a valid driver\u2019s license. The only evidence of this allegation was the childrens\u2019 testimony that defendant \u201cdrove to plaintiff\u2019s [residence], after learning that the [children\u2019s] mother had died.\u201d The trial court found that other reported instances of driving \u201cturned out to be not on the public roads.\u201d\nWith respect to the allegation that defendant \u201cis a very unstable person,\u201d the trial court did not discern any problem with defendant\u2019s employment or economic situation. In fact, the trial court found that \u201c[defendant has been eight years with the same employer, and has a good record as an employee.\u201d The trial court also found that nothing contradicted defendant\u2019s assertion that he was financially stable.\nAs we stressed in Adams, the Due Process Clause of the Fourteenth Amendment ensures that the government does not impermissibly infringe upon a natural parent\u2019s paramount right to custody solely to obtain a better result for the child. Adams, 354 N.C. at 62, 550 S.E.2d at 503 (citing Troxel, 530 U.S. at 72-73, 147 L. Ed. 2d at 61). Until, and unless, the movant establishes by clear and convincing evidence that a natural parent\u2019s behavior, viewed cumulatively, has been inconsistent with his or her protected status, the \u201cbest interest of the child\u201d test is simply not implicated. In other words, the trial court may employ the \u201cbest interest of the child\u201d test only when the movant first shows, by clear and convincing evidence, that the natural parent has forfeited his or her constitutionally protected status.\nIn the instant case, plaintiff failed to carry her burden of demonstrating that defendant forfeited his protected status. The evidence of record supports the trial court\u2019s findings of fact, which in turn support its legal conclusion that defendant\u2019s protected status as parent was not constitutionally displaced. Accordingly, we reverse the Court of Appeals\u2019 decision and remand this case to that court for further remand to the District Court, McDowell County, for reinstatement of the trial court\u2019s order.\nREVERSED.", "type": "majority", "author": "MARTIN, Justice." } ], "attorneys": [ "LeCroy Ayers & Willcox, PLLC, by M. Alan LeCroy, for plaintiff-appellee.", "C. Gary Triggs, P.A., by C. Gary Triggs, for defendant-appellant." ], "corrections": "", "head_matter": "PRISCILLA OWENBY v. FRED JOHNSON YOUNG\nNo. 286PA02\n(Filed 2 May 2003)\nChild Support, Custody, and Visitation\u2014 custody \u2014 claim by deceased parent\u2019s mother \u2014 unfitness of surviving parent\u2014 evidence insufficient\nThe trial court did not err by dissolving temporary child custody orders where plaintiff-maternal grandmother failed to carry her burden of demonstrating that defendant-father forfeited his constitutionally protected status as a parent, and the best interest of the child test was not implicated.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 and appeal of right of a constitutional question pursuant to N.C.G.S. \u00a7 7A-30(1) to review a unanimous decision of the Court of Appeals, 150 N.C. App. 412, 563 S.E.2d 611 (2002), reversing and remanding an order entered 3 January 2001 by Judge Robert S. Cilley in District Court, McDowell County. Heard in the Supreme Court 5 February 2003.\nLeCroy Ayers & Willcox, PLLC, by M. Alan LeCroy, for plaintiff-appellee.\nC. Gary Triggs, P.A., by C. Gary Triggs, for defendant-appellant." }, "file_name": "0142-01", "first_page_order": 188, "last_page_order": 194 }