Hill v. Newman

• Decision Date: 29 December 1998
• Docket Number: No. COA97-1498.,COA97-1498.
• Citation: 509 S.E.2d 226,131 NC App. 793
• Court: North Carolina Court of Appeals
• Parties: Joyce Carson HILL, Plaintiff-Appellant, v. James Harvey NEWMAN and Peggy Joyce Hill Newman, Defendants-Appellees.

509 S.E.2d 226

131 NC App. 793

Joyce Carson HILL, Plaintiff-Appellant, v. James Harvey NEWMAN and Peggy Joyce Hill Newman, Defendants-Appellees.

No. COA97-1498.

Court of Appeals of North Carolina.

December 29, 1998.

Staton, Perkinson, Doster, Post, Silverman, Adcock & Boone, P.A., by Jonathan Silverman and Michelle A. Cummins, Sanford, for plaintiff-appellant.

Harrington, Ward, Gilleland & Winstead, by Susan M. Feindel, Sanford, for defendants-appellees.

HUNTER, Judge.

Joyce Carson Hill (plaintiff) is the natural and adoptive maternal grandmother of two minor children. Defendant Peggy Newman (Peggy) is plaintiff's daughter, and the natural aunt of the two minor children, and James Harvey Newman is her husband (collectively referred to as defendants). On 30 June 1995, Crystal Helms (Crystal), Peggy's sister and the biological mother of the two minor children, signed a consent to adoption form permitting the defendants to adopt the two minor children. The final adoption order was entered on 18 August 1995. However, on 5 March 1996, Crystal filed a motion in the cause to set aside the final adoption order, which was denied by the trial court on 5 August 1996.

At some point, plaintiff became dissatisfied with the amount of time she was able to spend with her grandchildren. Therefore, on 5 March 1996, plaintiff filed an action wherein she sought visitation with her two grandchildren pursuant to N.C.Gen.Stat. § 48-23(2a), which provides that "a biological grandparent is entitled to visitation rights with the adopted child as provided in [N.C.Gen.Stat. §§] 50-13.2(b1), 50-13.2A, and 50-13.5(j)." N.C.Gen.Stat. § 48-23(2a) (1991) (replaced by N.C.Gen.Stat. § 48-4-105 effective 1 July 1996). At the time plaintiff filed her request for visitation, defendants' family was intact and no custody proceeding was ongoing.

On 12 March 1996, defendants filed a motion to dismiss plaintiff's action pursuant to Rule 12(b)(6) of the N.C. Rules of Civil Procedure for failure to state a claim for which relief can be granted, which was denied by the trial court. Defendants subsequently filed a motion for summary judgment pursuant to Rule 56(c), which the trial court reserved ruling upon pending the parties participation in a psychological evaluation. Finally, the trial court entered an order on 26 June 1997 in which it concluded "[t]hat the parties do not get along and will probably never get along and therefore it is not in the best interest of the minor children for the Plaintiff to have any visitation with the minor children."

On appeal, plaintiff contends the trial court abused its discretion in denying her visitation with the two minor children because such visitation was in the best interests of the children, and because the trial court's conclusion was not supported by competent evidence. Defendants, on the other hand, contend first that plaintiff did not have standing to sue for visitation rights; and second, that even if plaintiff did have such standing, the trial court's conclusions were supported by competent evidence and should be affirmed. Before addressing plaintiff's claims, we will first address defendants' contention that plaintiff did not have standing to file a claim seeking visitation.

I. Plaintiff's Standing to Seek Greater Visitation Rights With Her Minor Grandchildren

There are essentially four N.C. General Statutes that deal with the visitation rights of grandparents: N.C.Gen.Stat. §§ 50-13.1(a), 50-13.2(b1), 50-13.5(j) and 50-13.2A. For purposes of clarity, we will address each of these four statutes separately to determine if any one of them is sufficient to grant standing to plaintiff in this case.

A. N.C.Gen.Stat. § 50-13.1(a):

N.C.Gen.Stat. § 50-13.1(a) is "a broad statute, covering a myriad of situations in which custody disputes are involved." McIntyre v. McIntyre, 341 N.C. 629, 631, 461 S.E.2d 745, 747 (1995) (citation omitted). It is a general statute, and therefore must be read in harmony with the more specific statutes dealing with grandparent visitation. In general, it states:

Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Unless a contrary intent is clear, the word "custody" shall be deemed to include custody or visitation or both.

N.C.Gen.Stat. § 50-13.1(a) (1995). In McIntyre, our Supreme Court concluded that this statute was available for grandparents who sought visitation rights in two situations: (1) when the parents are unfit, have abandoned or neglected the child, or have died; or, (2) when, by reason of separation or divorce, custody is at issue between the parents. McIntyre v. McIntyre, 341 N.C. at 632, 461 S.E.2d at 748. Here, since neither of these situations is present, N.C.Gen.Stat. § 50-13.1(a) is not applicable and may not be used to establish standing for plaintiff.

B. N.C.Gen.Stat. § 50-13.2(b1):

Next, N.C.Gen.Stat. § 50-13.2(b1) provides:

An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exits between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.

N.C.Gen.Stat. § 50-13.2(b1) (1995). By its very language, this is a special statute which applies in situations where the trial court is involved in an ongoing custody dispute and the grandparents intervene in the matter in order to assert their right to visitation with the grandchildren. However, since no custody dispute is involved in this case, this statute is not applicable and may not be used by plaintiff to assert her standing in this case.

C. N.C.Gen.Stat. § 50-13.5(j):

Next, N.C.Gen.Stat. § 50-13.5(j) states:

In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to [N.C.Gen.Stat. §] 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.

N.C.Gen.Stat. § 50-13.5(j) (1995). In enacting this special statute, the legislature sought to protect the rights of grandparents by enabling them to make a motion in the cause for custody or visitation after the custody of the minor child had already been determined. See McIntyre v. McIntyre, 341 N.C. at 633, 461 S.E.2d at 748-749. However, again, since this case does not involve a custody dispute, this statute is not applicable and may not be used to establish plaintiff's standing in this case.

D. N.C.Gen.Stat. § 50-13.2A:

Finally, N.C.Gen.Stat. § 50-13.2A was enacted by the legislature in order to "allow[ ] grandparents of a minor child who has been adopted by a stepparent or a relative of the child to institute an action for visitation." Id. at 633, 461 S.E.2d at 749. This statute provides, in pertinent part:

A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child....

N.C.Gen.Stat. § 50-13.2A (1995). Under the explicit language of this special statute, a grandparent seeking greater visitation rights with his/her minor grandchildren would have standing to bring such an action under this statute so long as "a substantial relationship exists between the grandparent and the child." Id. In this case, there is competent evidence in the record to support a finding that a substantial relationship existed between plaintiff and her two minor grandchildren, in that at all relevant times, plaintiff lived in close proximity to her grandchildren, and in fact had helped raise the grandchildren from birth. Further, prior to the adoption taking place in June 1995, the grandchildren had resided at plaintiff's home for approximately eight months. Therefore, since there is competent evidence in the record that a substantial relationship existed, the trial court properly exercised jurisdiction under N.C.Gen.Stat. § 50-13.2A to decide the case on its merits.

II. The Trial Court's Conclusion Denying Visitation to Plaintiff

Next, we address whether the trial court erred in denying plaintiff's request for visitation pursuant to N.C.Gen.Stat. §§ 48-23(2a) and 50-13.2A. As N.C.Gen.Stat. § 50-13.2A notes, the trial court has the authority to grant visitation to grandparents if "it determines that visitation is in the best interest of the child[ren]." N.C.Gen.Stat. § 50-13.2A. Here, it is apparent from the extensive findings made by the trial court that it carefully weighed all of the evidence, and in its opinion, it was in the best interest of the children, at that time, to deny plaintiff...