867 S.E.2d 728
N.C. Ct. App.2021Background
- Josie (born 2005) lived with her mother (Kimberly Oxendine), her stepfather (Stephen/“Chip” Oxendine), and siblings; paternal grandparents (Trina and Scotty Thomas) regularly cared for and financially supported Josie for years.
- Chip repeatedly disciplined and intimidated Josie (harsh punishments, yelling, spit in face); social services investigated in 2011 after bruising on a sibling and closed the file with recommendations.
- In May 2016 Josie expressed suicidal ideation and was hospitalized; she reported fear of Chip and lack of maternal protection.
- On 19–20 February 2019 Chip physically grabbed Josie; Mother temporarily placed Josie with grandparents but shortly thereafter demanded her return; grandparents then filed for emergency custody (March 2019).
- Trial court granted emergency and temporary custody to grandparents, denied Mother’s motion to dismiss (finding standing and that Mother engaged in conduct inconsistent with parental status), and after a December 2019 hearing awarded grandparents sole legal and physical custody (April 2020). Mother appealed.
Issues
| Issue | Plaintiff's Argument (Thomas) | Defendant's Argument (Oxendine) | Held |
|---|---|---|---|
| Standing to sue under N.C. Gen. Stat. § 50-13.1(a) | Complaint alleged grandparents and facts showing Mother acted inconsistent with parental status; that suffices to invoke jurisdiction. | Grandparents lacked standing; complaint failed to plead specific allegations against Mother or an in loco parentis relationship. | Affirmed: pleading viewed favorably to plaintiffs; allegations that grandparents are grandparents and that Mother failed to protect child suffice to survive Rule 12(b)(6). |
| Whether Mother engaged in conduct inconsistent with parental status (clear and convincing evidence) | Grandparents: record (unchallenged findings) shows Mother failed to protect Josie, voluntarily relinquished parental responsibility, and exposed Josie to substantial risk of harm. | Mother: the trial court’s findings were unsupported; socioeconomic references improperly considered. | Affirmed: clear and convincing evidence and unchallenged findings support trial court conclusion that Mother acted inconsistently with parental status; any socioeconomic error harmless. |
| Best‑interest custody award to grandparents | Grandparents: custody to them promotes Josie’s safety, stability, improved school performance, and therapeutic progress. | Mother: award was an abuse of discretion; findings unsupported. | Affirmed: substantial evidence and numerous unchallenged findings support that awarding grandparents sole legal and physical custody is in Josie’s best interest. |
| Order requiring Mother to undergo psychological evaluation and follow recommendations (including medication compliance) | Grandparents: evaluation reasonable given Mother’s prior diagnoses, prior suicide attempt, and lack of follow‑through with therapy; court may condition visitation/rehabilitation steps. | Mother: no evidence her mental health affected parenting; court abused discretion and improperly ordered medication. | Affirmed: trial court acted within broad discretion; findings support evaluation and compliance requirement (not a conditioning of custody itself). |
| Orders directing Chip to complete programs and conditioning Mother’s visitation on Chip’s absence | Grandparents: limiting child’s exposure to Chip is necessary for safety; court may restrict visitation presence of specific persons. | Mother: cannot condition custodial/visitation rights on a third party’s actions; raises due process concerns for Chip. | Affirmed: order does not condition Mother’s rights on Chip’s compliance; court permissibly restricted contact with Chip and limited visitation at Oxendine home when Chip present; Mother lacks standing to assert Chip’s constitutional rights. |
Key Cases Cited
- Wellons v. White, 229 N.C. App. 164 (2013) (standing invokes subject‑matter jurisdiction; pleadings tested on motion to dismiss).
- Boseman v. Jarrell, 364 N.C. 537 (2010) (a pleading invokes a trial court’s subject matter jurisdiction).
- Grindstaff v. Byers, 152 N.C. App. 288 (2002) (at motion to dismiss stage, facts are viewed in plaintiff’s favor).
- Eakett v. Eakett, 157 N.C. App. 550 (2003) (grandparents have broad privilege to institute custody actions but must overcome parental constitutional rights).
- Adams v. Tessener, 354 N.C. 57 (2001) (finding that parental conduct inconsistent with protected status must be shown by clear and convincing evidence).
- Petersen v. Rogers, 337 N.C. 397 (1994) (parent’s paramount constitutional right to custody must be overcome by non‑parent).
- Steele v. Steele, 36 N.C. App. 601 (1978) (custody awarded must promote welfare and best interests of child).
- Owenby v. Young, 357 N.C. 142 (2003) (findings of fact in custody cases are conclusive on appeal if evidence supports them).
- Rodriguez v. Rodriguez, 211 N.C. App. 267 (2011) (grandparents alleging parental unfitness may proceed under § 50‑13.1).
- Peters v. Pennington, 210 N.C. App. 1 (2011) (unchallenged findings are binding on appeal; appellate standard for custody findings).
- Hall v. Hall, 188 N.C. App. 527 (2008) (appellate review: whether findings support conclusions of law de novo).
- Maxwell v. Maxwell, 212 N.C. App. 614 (2011) (trial court may order psychological evaluation as condition related to visitation).
- Pass v. Beck, 156 N.C. App. 597 (2003) (trial court may delay visitation decisions pending psychologist’s recommendation).
- Rawls v. Rawls, 94 N.C. App. 670 (1989) (ordering psychiatric consultation before visitation not an abuse of discretion).
- Cox v. Cox, 133 N.C. App. 221 (1999) (trial court has broad discretion to select custodial setting that advances child’s welfare).