Gibson v. Lopez

849 S.E.2d 302

Jennifer GIBSON, Plaintiff,

v.Francisco C. LOPEZ, Defendant.

No. COA20-151

Court of Appeals of North Carolina.

Filed: October 6, 2020

Legal Aid of North Carolina, by Rachel Ann Gessouroun, Allison Young, Heather Seals Bankert, Larissa Mañón Mervin, Gina Reyman, TeAndra M. Miller, Cary, and Celia Pistolis, Raleigh, for Plaintiff.

Edward Eldred, for Defendant.

BROOK, Judge.

Francisco C. Lopez ("Defendant") appeals from the entry of a domestic violence protective order ("DVPO") against him. On appeal, Defendant argues that the trial court erroneously concluded as a matter of law that Jennifer Gibson ("Plaintiff") had never acted in loco parentis to Defendant, her 14-year-old stepson, and therefore erred in issuing the DVPO. For the following reasons, we vacate the order of the trial court.

I. Factual and Procedural History

In early July of 2015, Plaintiff and Philippe Lopez ("Mr. Lopez") as well as Plaintiff's mother¹ and Mr. Lopez's two children from a prior relationship, Defendant and Nan,² began living together. Defendant and Nan were 10 and 12, respectively, at the time. Plaintiff testified that Mr. Lopez did not want her to work so she quit her job to "take care of the children[.]" The family moved from Kentucky to North Carolina shortly thereafter. Plaintiff and Mr. Lopez married on 9 February 2018.

Plaintiff and Mr. Lopez lived together from July 2015 until the filing of this action against Defendant on 18 July 2019. On one occasion in 2015, Plaintiff cared for Defendant alone for approximately a week while Mr. Lopez was away on work. Defendant resided in court-ordered treatment facilities from 2016 to 2018, but, otherwise, lived with Plaintiff and his father until Plaintiff filed for a DVPO.

Plaintiff testified that she had "[n]ever parented a teenager before ... [she] got with [Mr. Lopez]." Plaintiff cared for Defendant and Nan by cooking, cleaning, taking them to appointments and school, and breaking up their fights; she also participated in therapy to help set boundaries for Defendant. According to Plaintiff, Defendant repeatedly told her that she was not his mother, and she responded, per Mr. Lopez's instruction, "No. I'm here."

Plaintiff testified that she knew that Defendant suffered from mental health and anger issues, but she did not know their full extent until they moved to North Carolina. She testified that she witnessed an escalation in violence and anger from Defendant over the years, which included Defendant threatening to kill her dog in 2015 and breaking into her bedroom in 2016 and then looking for a knife in the kitchen, presumably to use against her, when she took away his iPod as punishment for getting in trouble at school. After this incident, Mr. Lopez installed a latch on their bedroom door. Defendant then spent two years in several court-ordered treatment facilities and returned home in 2018 in a "bad condition[,]" according to his father.

Defendant threatened to kill Plaintiff and made other threats in December 2018. Plaintiff responded by filing criminal charges against Defendant for communicating threats. The threats continued, however. For instance, on 11 July 2019, Defendant broke into Plaintiff's bedroom after she had locked herself in it, turned the power off to the room, and threatened her.

On 18 July 2019, Plaintiff filed for and received an ex parte DVPO against Defendant and Mr. Lopez. Plaintiff and Mr. Lopez separated on the same date. Plaintiff stayed in the home she had shared with Mr. Lopez and Defendant; they moved out.

The trial court conducted a hearing on the complaint on 7, 21, and 23 August 2019. At both the beginning of the hearing and the close of all evidence, Defendant argued that the trial court could not enter a permanent order against him because Plaintiff was acting in loco parentis to Defendant, and he was under 16 years old. The trial court disagreed and entered a DVPO against Defendant, finding, in part:

3. Due to the threatens [sic] and angry actions of the defendant toward the plaintiff, the defendant being out of the home for two years, and the defendant's anger toward the plaintiff worsening after his return, plaintiff was not ever able to act in loco parentis for the defendant.

Defendant timely noticed appeal.

II. Analysis

On appeal, Defendant argues that the trial court could not issue a DVPO in favor of Plaintiff because she stood in loco parentis to Defendant, who was 14 years old at the time of the filing of the complaint and motion for a DVPO.³

A. Standard of Review

When reviewing a domestic violence protective order, our task is to determine whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.

Martin v. Martin , 266 N.C. App. 296, 832 S.E.2d 191, 197 (2019) (internal marks and citation omitted). "While findings of fact by the trial court in a non-jury case are conclusive on appeal if there is evidence to support those findings, conclusions of law are reviewable de novo. " Tyll v. Willets , 229 N.C. App. 155, 158, 748 S.E.2d 329, 331 (2013) (citation omitted). "Under a de novo review, th[is C]ourt considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Williams , 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal marks and citation omitted).

B. Merits

An "aggrieved party" may seek a DVPO against "a person with whom" he or she "has or has had a personal relationship[.]" N.C. Gen. Stat. § 50B-1(a) (2019). The term "personal relationship" includes those where the parties

(1) Are current or former spouses;

(2) Are persons of opposite sex who live together or have lived together;

(3) Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren. For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under the age of 16 ;

(4) Have a child in common;

(5) Are current or former household members;

(6) Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship. For purposes of this subdivision, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.

Id. § 50B-1(b) (emphasis added).

We first note that § 50B-1(b)(3) excludes only three types of relationships: (1) parents and children; (2) others acting in loco parentis to a child; and (3) grandparents and grandchildren. Id. § 50B-1(b)(3). The statute does not include an automatic exclusion for a stepparent. In instances such as this case, the focus is on whether stepparents or others are "acting in loco parentis[.]" Id.

At issue in this appeal is whether Plaintiff was "acting in loco parentis" to Defendant, who was 14 years old at the time Plaintiff filed for a DVPO, rendering her unable to obtain an order against Defendant per N.C. Gen. Stat. § 50B-1(b)(3). We review this issue de novo.⁴

While N.C. Gen. Stat. § 50B-1 does not define "in loco parentis," the term has been defined by our Court to "mean[ ] in the place of a parent, and a ‘person in loco parentis’ ... [is] one who has assumed the status and obligations of a parent without a formal adoption." Shook v. Peavy , 23 N.C. App. 230, 232, 208 S.E.2d 433, 435 (1974) (citation omitted).

A person does not stand in loco parentis from the mere placing of a child in the temporary care of other persons by a parent or guardian of such child. This relationship is established only when the person with whom the child is placed intends to assume the status of a parent—by taking on the obligations incidental to the parental relationship, particularly that of support and maintenance.

Liner v. Brown , 117 N.C. App. 44, 49, 449 S.E.2d 905, 907 (1994) (internal marks and citation omitted). Our Court has further elaborated that whether a person stands in loco parentis "is a question of intent to assume parental status and depends on all the facts and circumstances of th[e] case." Id. (internal marks and citation omitted).

While our appellate courts have not analyzed in loco parentis status under N.C. Gen. Stat. § 50B-1(b)(3), this Court has examined whether the evidence does or does not support concluding the status has been established in other contexts. We review three instructive instances below.

First, our Court has held that "[t]ypically, the status of in loco parentis terminates [for a stepparent] upon divorce." Duffey v. Duffey , 113 N.C. App. 382, 385, 438 S.E.2d 445, 447 (1994). A stepparent can, however, "voluntarily extend[ ] his [or her] status beyond the termination of the marriage" by, for example, agreeing to continue to financially support the child in question. Id. at 385, 438 S.E.2d at 447-48. Pertinent to this case, Duffey further stands for the proposition that a change in circumstances can impact the assessment of whether an in loco parentis relationship continues.⁵

Our Court has also assessed whether grandparents, who had previously served as kinship placements for their grandchildren, stand in loco parentis such that they have standing to appeal permanency planning orders related to their minor grandchildren. Where the evidence indicates that the placement was temporary, we have held that these respondent grandparents do not stand in loco parentis to their grandchildren. See In re A.P. , 165 N.C. App. at 846-47, 600 S.E.2d at 12-13 (noting several factors, including: (1) that the child's parents were involved and were attempting to remain involved in the child's life, and (2) that placement with the respondent step-grandfather had lasted for eight months); see also In re T.B. , 200 N.C. App. at 745, 685 S.E.2d at 534 (concluding there was insufficient evidence as to whether maternal grandmother...