Dunn v. Covington

• Decision Date: 07 July 2020
• Docket Number: No. COA18-1177,COA18-1177
• Citation: 846 S.E.2d 557
• Parties: Karla DUNN and Ronald Dunn, Plaintiffs, v. Keir COVINGTON and Courtney Cole, Defendants, Patricia Anne Schweisthal and Thomas B. Schweisthal, Intervenors.
• Court: North Carolina Court of Appeals

846 S.E.2d 557

Karla DUNN and Ronald Dunn, Plaintiffs,

v. Keir COVINGTON and Courtney Cole, Defendants,Patricia Anne Schweisthal and Thomas B. Schweisthal, Intervenors.

No. COA18-1177

Court of Appeals of North Carolina.

Filed: July 7, 2020

Michael Lincoln, P.A., Emerald Isle, by Michael Lincoln, for Plaintiff-Appellees.

Ward, Smith & Norris, P.A., New Bern, by Kirby H. Smith, III, for Defendant-Appellant.

McGEE, Chief Judge.

Courtney Cole ("Defendant" or "Ms. Cole") appeals a final order and judgment awarding full custody of her daughter to Karla Dunn and Ronald Dunn ("Plaintiffs" or "Dunns"), the child's paternal grandparents.

I. Factual and Procedural Background

Ms. Cole is the mother and Keir Covington ("Mr. Covington") is the father of Tracy. Ms. Cole was born in Arizona to Thomas and Patricia Schweisthal ("the Schweisthals"), who still live there. Ms. Cole met Mr. Covington in 2011 and, on 9 October 2012, she gave birth to Tracy in Phoenix, Arizona. Mr. Covington is the son of the Dunns, who reside in Emerald Isle, North Carolina.

Ms. Cole was charged with conspiring to sell firearms without a license in federal court on 27 August 2013, based on an incident that occurred in 2009. As a result of the charge, Ms. Cole was fired from her job. Consequently, she lost her house to foreclosure. While awaiting sentencing, Ms. Cole, Mr. Covington, and Tracy moved into an extended stay motel for about three weeks or a month because, as Ms. Cole testified, "[they] didn't want to sign a lease ... if [she] was going to be sentenced to prison." Ms. Cole was convicted and sentenced to four years of probation, with six months on house arrest, on 28 March 2014.

After Ms. Cole was sentenced, she asked her parents, the Schweisthals, if she, Mr. Covington, and Tracy could move into their home in Arizona. The Schweisthals agreed Ms. Cole and Tracy could reside with them, but refused to allow Mr. Covington to do so. Ms. Cole testified she had a conversation with Ms. Dunn about moving to North Carolina and testified "[the Dunns] offered to ... help ... us to get our feet on the ground ...." Mr. Covington testified the Dunns "[o]ffered [him and Ms. Cole] a place to stay and then they came and helped us move." Ms. Dunn testified Ms. Cole and Mr. Covington had moved into the Dunns’ residence in Emerald Isle by May 2014.

Ms. Cole testified that she began looking for a job once she moved to North Carolina. Ms. Dunn testified Ms. Cole worked cleaning vacation condos for about six weeks from June to July 2014. Ms. Cole testified that two weeks after moving to Emerald Isle, she got a job at Emerald Grill, a restaurant on the island. Ms. Cole testified that, after realizing wages were being withheld unfairly, she began looking for other employment. She looked for another job and soon started working at Santorini's Grill in Swansboro, North Carolina. Ms. Cole stayed at that job from July to late October 2014. Ms. Dunn testified Ms. Cole also worked at a diner called Mike's during this time. Ms. Cole chose to leave food service to seek a more permanent job in the medical field, her profession, and she testified she got a job at an Urgent Care in Jacksonville, North Carolina, and started working there around the end of December 2014. However, after Ms. Cole learned she would have a background check, she revealed her felony conviction to her employer and was terminated from that job after working there for about two and a half weeks.

The Dunns filed a complaint against Ms. Cole and Mr. Covington seeking custody of Tracy on 29 January 2015. They also moved for and obtained an ex parte emergency custody order entered the same day. The complaint was served on Ms. Cole by the Carteret County Sheriff's Department on 30 January 2015. In the complaint, the Dunns alleged Ms. Cole was a felon "convicted ... for selling guns to Mexican Drug Cartel members"; "is also a drug addict and an alcoholic"; she was taking a list of seven prescribed medications "but not as prescribed for the most part and supplements them with extra drugs ..."; she "is not a fit parent, in that she has been unable and unwilling to be the caretaker of the minor child, and upon information and belief, she has expressed a desire to terminate her own life"; and she and Mr. Covington "have not acted, nor are they now acting, consistent with their Constitutional rights as biological parents, in that they have deferred the care and support of the minor child to the Plaintiffs." The Dunns further allege "[they] are preparing to evict [Ms.] Cole because she has made no effort to become gainfully employed or to substantially participate in the care of her daughter." The ex parte emergency custody order merely incorporated the Dunns’ allegations as findings of fact.

Ms. Cole testified she did not learn the Dunns were seeking custody of Tracy until the complaint and the ex parte emergency custody order were served on her. Once the custody order was obtained and served, the Dunns asked Ms. Cole to move out of the house. Ms. Dunn testified Ms. Cole moved out "in the middle of February [2015]" when the Dunns "asked her to leave." Ms. Cole, however, testified the Dunns "didn't ... verbally tell [her] ... themselves"—that she "read it on the paper [ (i.e., the complaint) ] that they wanted [her] out." She testified "as soon as [she] read the Order ... [she] was fairly upset about it[,]" and she packed up her things and moved in with a friend who she had worked with at Santorini's, who had an extra room in the house where she and her husband lived "on base" in Jacksonville. She soon moved into an extended stay motel room in Jacksonville with money from jobs she was working at Golden Corral and Crystal Coast Retina Center.

A hearing was held on 9 March 2015 before Judge Peter Mack, Jr. on whether to grant a temporary custody order in the case. The trial court concluded that Ms. Cole "is an unfit person to have the care, custody and control of the minor child," although the court did not specify which facts supported that conclusion, nor did it indicate the standard of proof by which it found those facts. The trial court awarded temporary custody of Tracy to the Dunns but did not find that Mr. Covington, Tracy's other natural parent, was unfit or had otherwise acted inconsistent with his constitutionally-protected status.¹ The trial court also provided for visitation with Tracy by Ms. Cole and Mr. Covington, "at such times and under such circumstances as set out in a consent agreement between ALL the parties." Ms. Cole filed an answer to the Dunns’ complaint and a counterclaim seeking temporary and permanent custody of Tracy on 31 March 2015, to which the Dunns filed a reply on 6 May 2015.

After the ex parte emergency custody order was entered, Ms. Cole visited with Tracy, attending around seven visitations in a two-month period. After the temporary custody order was entered, the parties reached a written visitation schedule they all consented to, as instructed by the trial court, which was filed with the trial court on 12 May 2015. Ms. Cole abided by the visitation schedule, but on 21 May 2015, the Dunns moved to suspend visitation, alleging that on 19 May 2015, Ms. Cole "was using a controlled substance and/or a narcotic while having visitation with the minor child at the Defendant's room at the extended stay motel at which she resides in Jacksonville, North Carolina." The Dunns also alleged that the Onslow County Department of Social Services ("DSS") "pursuant to a third party report, arrived at the Defendant's room and immediately escorted her to a drug test." The trial court entered an order on 11 June 2015 restricting Ms. Cole's time with Tracy to supervised visitation for two hours on Wednesdays weekly, basing the order on the "positive drug test," "[l]ack of cooperation with Carteret County DSS," and "[r]ecent discharge from the Port Program in Jacksonville, N.C."

Ms. Cole testified that, in early 2015, she was prescribed prescription opiates by a dentist to treat pain stemming from a procedure to treat tooth decay

and she developed a dependency on the prescription opioid medication. She said that, at the end of January 2015, she sought help at Port Human Services ("Port"), a drug addiction rehabilitation hospital in Jacksonville, that included a Suboxone clinic. She also testified she was attending classes at Port when the complaint in this case was filed. She testified she did not successfully complete the Suboxone program, but that she entered the program out of her own volition as "a way to get off prescription opiates ...." On cross-examination of Ms. Dunn, she conceded she had no evidence that Ms. Cole was abusing drugs at the time the Dunns filed the complaint. Ms. Cole also testified that, as part of the court-sanctioned visitation schedule, she had to submit to drug tests once a week, and she complied with those drug tests that showed she was only taking Adderall to treat Attention Deficit Disorder

and the Suboxone prescribed by Port. At some point during Spring of 2015, Ms. Cole went from prescription opiates to heroin. DSS responded to a claim that Ms. Cole was using drugs while visiting with Tracy on 19 May 2015 and DSS required her to take a drug test. Statements from the trial court judge in the transcript indicate the urinalysis performed on Ms. Cole came back positive. Ms. Cole testified her drug addiction soon came to the attention of her parole officer and he had a conversation with her, after which he had her transferred back to Arizona and charged with a probation violation for the drug use. Ms. Cole was flown back to Arizona in August 2015.

In Arizona, Ms. Cole appeared before the district court on her probation violation and the court agreed to permit her to remain on probation if she completed treatment at The Meadows drug rehabilitation center in Wickenburg, Arizona. Ms. Cole subsequently spent forty-five days at The Meadows, successfully completing the rehabilitation...