Thomas v. Oxendine

867 S.E.2d 728

Trina THOMAS and Scotty Thomas, Plaintiffs,

v.Kimberly OXENDINE and Brian A. Thomas, Defendants.

No. COA21-31

Court of Appeals of North Carolina.

Filed December 7, 2021

Kathleen Arundell Jackson, for Plaintiff-Appellees.

Ferguson, Hayes, Hawkins, & DeMay, PLLC, Concord, by James R. DeMay, for Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant Kimberly Oxendine¹ appeals the trial court's orders which culminated in sole legal and physical custody of her minor child being awarded to Plaintiffs, Trina and Scotty Thomas. We affirm the orders of the trial court.

I. Factual and Procedural History

¶ 2 Defendants Kimberly Oxendine ("Mother") and Brian A. Thomas ("Father") are the biological parents of Josie,² born in 2005. Plaintiffs Trina Thomas ("Grandmother") and Scotty Thomas ("Grandfather") (together, "Grandparents") are Josie's paternal grandparents. Mother, Father, Josie, and Skylar–Mother's child from a previous relationship–lived in Grandparents’ home from 2006 to 2007. Father left Grandparents’ home in 2007 while Mother, Josie, and Skylar remained in the home until 2008.

¶ 3 Mother met Stephen Oxendine ("Chip") in 2009. Mother, Josie, and Skylar moved into Chip's home in 2010, and Mother and Chip married in 2014. The couple had two children together, Carson and Diane.

¶ 4 After Mother, Josie, and Skylar moved out of Grandparents’ home in 2008, Josie spent most weekends, parts of each summer, and every spring break with Grandparents. Grandparents picked Josie up from school when she was ill, took her to therapy appointments, and paid for and attended her school sporting events. They also provided her with clothing, school supplies, and other essentials on a regular basis, and had recently purchased her a laptop. Grandparents also paid most child support payments on Father's behalf. Josie has a strong bond with Grandparents. Grandmother has been a "constant emotional resource" for Josie, and Mother relied on Grandmother's guidance and support in parenting Josie.

¶ 5 Josie's relationship with Chip was strained. Chip used unusually harsh punishment methods to discipline Josie, including forcing her to stay in an unairconditioned, unvented upstairs room during the summer, which "was far too hot for healthy living conditions." Chip yelled at her and called her names. He would yell in her face, getting so close he would spew spit on her. Mother and Chip sometimes refused to let Josie stay with Grandparents as punishment. Chip had also threatened to kick Josie out of the house, telling her to "pack her things and leave." Mother did not get involved when Chip was aggressive towards Josie. Josie is afraid of Chip and does not believe that Mother tries to protect her.

¶ 6 After bruises were found on Skylar's buttocks in 2011, Cabarrus County social services³ investigated the Oxendine home. Social services closed the case, instructing Mother and Chip on proper discipline and recommending that they receive parenting and counseling services.

¶ 7 In May 2016, Josie wrote a letter stating she'd "rather kill herself" than live in the home with Chip. Mother had Josie admitted to Brynn Mar Hospital for treatment. Josie was admitted for depression and suicidal ideation and stayed in the hospital for nine days.

¶ 8 While Josie was being treated at Brynn Mar, Grandmother stayed with Josie. Mother visited but did not spend nights at the hospital as she feared Chip would be "mad" at her for leaving the other children. Mother told Grandmother that because of the strained relationship between Josie and Chip, she "knew it would come to this," and that she had tried to talk to Chip but he would not listen.

¶ 9 Upon release from the hospital, Josie was prescribed anti-depressant medication and recommended for outpatient therapy. Mother enrolled Josie in therapy with Daymark Recovery Services and Turning Point Family Services. Josie reported to Daymark that she didn't "feel safe around Chip" and that she was scared Chip would "get mad and hit her mother." Daymark recommended the entire family enroll in in-home, teamwork therapy. No evidence was presented that the family followed through with Daymark's recommendation. Josie only attended one session at Daymark and then stopped; Mother testified that this was due to Medicaid eligibility. Mother testified that Josie was in counseling with Turning Point for "quite a while" and then no longer needed treatment, but did not provide evidence to support her assertion.

¶ 10 On 19 February 2019, Chip discovered that Josie was using a cell phone that she was not permitted to have and confronted her. Chip "grabbed [Josie] by her shoulders, flinging her to the ground." The following day, when Josie arrived home from school, Chip confronted her again and the situation escalated. That day, Mother called Grandmother and asked if Josie could stay with Grandparents because things were "not working with [Josie] and Chip." Grandparents agreed to have Josie stay with them. Josie stayed with Grandparents for about a week.

¶ 11 Following this incident, Cabarrus County social services received a report about the family. Mother suspected the report had been filed by Grandparents and demanded that Josie return home on 24 February 2019. Subsequently, Cabarrus County social services investigated the report, but closed the case with a recommendation that the Oxendine family obtain individual and family counseling services to address any discord present in the home.

¶ 12 Grandparents filed a Complaint for Child Custody and Motion for Emergency Custody on 26 March 2019. The trial court entered an Order for Emergency Custody on that date, awarding temporary emergency custody of Josie to Grandparents and setting the matter for a temporary custody hearing on 3 April 2019. Following the temporary custody hearing, the trial court continued temporary custody of Josie with Grandparents and determined that Mother should have contact with Josie, but that Chip should not. The trial court entered a written Temporary Custody Order on 10 April 2019.

¶ 13 On 9 April 2019, Mother filed an Answer and Motion in the Cause. Mother moved to dismiss Grandparents’ complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted, arguing that Grandparents’ complaint "does not list even one specific fact or allegation regarding [Mother], or her parenting abilities to properly meet their burden under N.C. [ Gen. Stat. §] 50-13.1(a) to show [Mother] has either acted inconsistently with her constitutionally protected right to parent, or that she is an unfit [ ] parent" and that Grandparents "do not have standing to seek custody of the minor child at issue pursuant to N.C. [ Gen. Stat. §] 50-13.1(a)" because Grandparents did not "allege an in loco parentis relationship with the minor child."

¶ 14 The trial court held a hearing on Mother's motion to dismiss on 6 May 2019. By order entered 12 June 2019 ("Order Denying Motion to Dismiss"), it denied Mother's motion, finding and concluding that Grandparents had standing to bring the custody action and that Mother "engaged in conduct inconsistent with her protected status as a parent as demonstrated by clear and convincing evidence."

¶ 15 A hearing was held on 2 December 2019 to address Josie's best interests and determine permanent custody. The trial court entered an Amended Permanent Custody Order on 17 April 2020 wherein it concluded, in relevant part, that "[i]t is in the best interest of the minor child that the [Grandparents] have sole legal and physical custody of the minor child" and that Mother be granted visitation as outlined in the order.

¶ 16 Mother appealed the Order for Emergency Custody, the Temporary Custody Order, the Order Denying Motion to Dismiss, and the Amended Permanent Custody Order. On appeal, Mother's arguments are directed only to the Order Denying Motion to Dismiss and the Amended Permanent Custody Order.

II. Discussion

A. Standing

¶ 17 Mother first argues that the trial court erred by denying her motion to dismiss Grandparents’ complaint for custody because the trial court erroneously determined that Grandparents have standing to bring a custody action under N.C. Gen. Stat. § 50-13.1(a).

¶ 18 Standing is required to confer subject matter jurisdiction. Wellons v. White , 229 N.C. App. 164, 176, 748 S.E.2d 709, 718 (2013). "A [trial] court's subject matter jurisdiction over a particular matter is invoked by the pleading." Boseman v. Jarrell , 364 N.C. 537, 546, 704 S.E.2d 494, 501 (2010). At the motion to dismiss stage, all factual allegations in the pleadings are viewed in the light most favorable to the plaintiff, granting the plaintiff every reasonable inference. Grindstaff v. Byers, 152 N.C. App. 288, 293, 567 S.E.2d 429, 432 (2002). We review de novo whether a plaintiff has standing to bring a claim. Fuller v. Easley , 145 N.C. App. 391, 395, 553 S.E.2d 43, 46 (2001).

¶ 19 N.C. Gen. Stat. § 50-13.1(a) provides that "[a]ny parent, relative, or other person ... claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child." N.C. Gen. Stat. § 50-13.1(a) (2019). The statute "grants grandparents the broad privilege to institute an action for custody ...." Eakett v. Eakett , 157 N.C. App. 550, 552, 579 S.E.2d 486, 488 (2003). "Although grandparents have the right to bring an initial suit for custody, they must still overcome" the parents’ constitutionally protected rights. Sharp v. Sharp , 124 N.C. App. 357, 361, 477 S.E.2d 258, 260 (1996).

¶ 20 To survive a motion to dismiss for lack of standing, grandparents must allege both that they are the grandparents of the minor child and facts sufficient to demonstrate that the minor child's parent is unfit or has engaged in conduct inconsistent with their parental status. See, e.g. , Rodriguez v. Rodriguez , 211 N.C. App. 267, 276, 710 S.E.2d 235, 241-42 (2011) ("[The] plaintiffs had standing to proceed in an action for...