Adams v. Tessener

• Citation: 354 N.C. 57,550 S.E.2d 499
• Parties: Ann ADAMS and husband, Dexter Adams, Plaintiffs, v. Erin Christina TESSENER, Defendant, v. Edward Scott Lackey, Intervenor.
• Decision Date: 17 August 2001
• Court: United States State Supreme Court of North Carolina

550 S.E.2d 499

354 N.C. 57

Ann ADAMS and husband, Dexter Adams, Plaintiffs, v. Erin Christina TESSENER, Defendant, v. Edward Scott Lackey, Intervenor.

No. 3PA01.

Supreme Court of North Carolina.

August 17, 2001.

LeCroy Ayers & Willcox, by M. Alan LeCroy, Morganton, for plaintiff-appellants.

Crowe & Davis, P.A., by H. Kent Crowe, Conover, for intervenor-appellee.

MARTIN, Justice.

This case involves a custody dispute between the mother, father, and maternal grandparents of a minor child, Aaron McLendon Adams (Aaron). Aaron was born on 15 February 1998 as a result of a single instance of unprotected sexual intercourse in July 1997 between defendant, Erin Christina Tessener (Tessener), and intervenor, Edward Scott Lackey (Lackey). In September 1997, Tessener informed Lackey that she was pregnant and that he was likely the father. Lackey took no action at that time.

Aaron was born prematurely and required extended hospitalization after birth. He had health problems and special medical needs in the first ten months of his life which required costly medical visits, daily medication, and constant attachment to a heart monitor. Aaron continues to have developmental difficulties.

After Aaron's birth, Tessener moved in with her parents, plaintiffs Ann and Dexter Adams, Aaron's grandparents. When Aaron was released from the hospital, he also lived with the Adams. Between February and April 1998, Tessener decided to leave the Adams' home. By "Consent Custody Agreement, Order and Confession of Judgment" filed 7 April 1998 (the Consent Judgment), Tessener and the Adams agreed that Tessener was not fit to have primary physical custody of Aaron. They further agreed that the Adams were fit and proper persons to have primary physical custody and that Aaron's best interests would be served thereby. Accordingly, the trial court ordered that Aaron's primary physical custody remain with the Adams.

In June 1998 Tessener informed Lackey that the Department of Social Services (DSS) would contact him about a potential child support obligation. Lackey made no inquiry concerning Aaron. DSS subsequently located Lackey and conducted DNA testing which conclusively determined that Lackey was Aaron's father. Lackey then executed a voluntary support agreement and has provided child support for Aaron since that time.

In October and November 1998, Lackey visited Aaron at the Adams' residence three times and removed him from the residence for one afternoon visit. On 30 October 1998 Tessener filed a motion in the cause seeking modification of the Consent Judgment. On 23 November 1998 Lackey filed a motion to intervene seeking custody of Aaron.

The matter was heard at the 2 February 1999 contested domestic session of District Court, Burke County. The trial court concluded that Tessener was not fit to have custody of Aaron. Tessener has not appealed that determination. The trial court further concluded that "[t]he actions and conduct of the Intervenor [Lackey] have been inconsistent with his protected interest in the minor child. Specifically, the conduct of Intervenor... proves that he is unfit to have the primary and legal care, custody and control of the minor child. Therefore, pursuant to Price v. Howard, 346 N.C. 68, 484 S.E.2d 528, the court must look to the best interests of the child." The trial court determined that the Adams were fit and proper to have custody of Aaron and that Aaron's best interests would be served thereby.

Lackey appealed to the Court of Appeals. The Court of Appeals held that the trial court's findings of fact were insufficient to support the conclusion that Lackey was unfit to have custody of Aaron. Adams v. Tessener, 141 N.C.App. 64, 72, 539 S.E.2d 324, 330 (2000). The Court of Appeals stated that there was "a substantial body of evidence" supporting Lackey's fitness to have custody. Id. The Court of Appeals therefore reversed the trial court's order and remanded with instructions to award custody to Lackey. Id. We reverse the decision of the Court of Appeals.

This Court has recognized that the protection of the family unit is guaranteed by the Ninth and Fourteenth Amendments to the United States Constitution. Petersen v. Rogers, 337 N.C. 397, 401, 445 S.E.2d 901, 903 (1994). The United States Supreme Court has recently reaffirmed that a parent enjoys a fundamental right "to make decisions concerning the care, custody, and control" of his or her children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 57 (2000). In Troxel, the United States Supreme Court held that a fit parent is presumed to act in the child's best interest and that there is "normally ... no reason for the [s]tate to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69, 120 S.Ct. at 2061, 147 L.Ed.2d at 58. Similarly, this Court has enunciated the fundamental principle that "absent 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." Petersen, 337 N.C. at 403-04, 445 S.E.2d at 905.

We further elaborated on this principle in Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997). In Price, the defendant gave birth to a child out of wedlock and represented that the plaintiff was the father. Id. at 70-71, 484 S.E.2d at 529. When the defendant and the plaintiff separated, the child remained in the plaintiff's physical custody for approximately six additional years. Id. at 71, 484 S.E.2d at 529-30. A court-ordered blood test ultimately excluded the plaintiff as the biological father of the child. Id.

The trial court concluded that both the plaintiff and the defendant were fit and proper to have custody of the child. Id. at 71, 484 S.E.2d at 530. The trial court then determined that the child's best interests would be served by granting primary custody to the plaintiff. Id. The trial court stated, however, that it was precluded from granting custody to the plaintiff under Petersen. Id. Accordingly, the trial court granted custody to the defendant. Id. The Court of Appeals affirmed the custody award. Id. at 71-72, 484 S.E.2d at 530.

In a custody proceeding between two natural parents (including biological or adoptive parents), or between two parties who are not natural parents, the trial court must determine custody based on the "best interest of the child" test. Id. at 72, 484 S.E.2d at 530. Price, however, involved a custody dispute "between a natural parent and a third party who is not a natural parent." Id. After acknowledging the Petersen presumption— that natural parents have a constitutionally protected, paramount right to custody of their children—we conducted a "due-process analysis in which the parent's well-established paramount interest in the custody and care of the child is balanced against the state's well-established interest in protecting the welfare of children." Id.

This Court reaffirmed that a natural parent has a constitutionally protected "liberty interest in the companionship, custody, care and control of his or her child." Id. at 74, 484 S.E.2d at 531. The Court noted, however, that while a fit and suitable parent "`is entitled to custody of his [or her] child, it is equally true that where fitness and suitability are absent he [or she] loses this right.'" Id. at 75, 484 S.E.2d at 532 (quoting Wilson v. Wilson, 269 N.C. 676, 677, 153 S.E.2d 349, 351 (1967)). In short, the Court indicated that a parent's right to custody is not absolute. Id. at 76, 484 S.E.2d at 533.

The Court noted

"that the Due Process Clause would be offended `[i]f a[s]tate were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.' Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094 [2119], 53 L.Ed.2d 14, [46-47 (1977) ] (Stewart, J., concurring in judgment)."

Id. at 78, 484 S.E.2d at 534 (quoting Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 520 (1978)). The Court thus determined when the "best interest of the child test" could be applied without violating the parent's constitutional rights:

A natural parent's constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Therefore, the parent may no longer enjoy a paramount status if his or her conduct is inconsistent with this presumption or if he or she fails to shoulder the responsibilities that are attendant to rearing a child. If a natural parent's conduct has not been inconsistent with his or her constitutionally protected status, application of the "best interest of the child" standard in a custody dispute with a nonparent would offend the Due Process Clause. However, conduct inconsistent with the parent's protected status ... would result in application of the "best interest of the child" test without offending the Due Process Clause. Unfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy.

Id. at 79, 484 S.E.2d at 534 (citations omitted).

Finding the situation in Price involved "a period of voluntary nonparent custody rather than unfitness or neglect," id. at 82, 484 S.E.2d at 536, this Court reversed and remanded "for a determination of whether defendant's conduct was inconsistent with the constitutionally protected status of a natural parent," id. at 84, 484 S.E.2d at 537....