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Williams v. Chaney

Court of Appeals of North Carolina

July 18, 2017

KRISTIE LEA WILLIAMS, Plaintiff,
v.
JAMES MARION CHANEY, Defendant.

          Heard in the Court of Appeals 6 February 2017.

         Appeal by defendant from order entered 31 May 2016 by Judge Larry J. Wilson in District Court, Lincoln County.

          No brief filed on behalf of plaintiff-appellee.

          James M. Chaney, Jr., pro se.

          STROUD, Judge.

         Blake[1] is now almost 16 years old, and this custody battle has lasted most of his life. The primary issue on appeal is whether the trial court should have ordered continuation of reunification counseling efforts, where the trial court found that prior reunification efforts have caused him "intense psychological stress" and that more reunification counseling would "re-traumatize" the child. We remand for entry of an order denying any modification to the prior custody order since no other result is supported by the trial court's unchallenged findings of fact.

         Defendant James Marion Chaney ("Father") appeals from the trial court's order modifying an earlier permanent child custody order entered 10 October 2013. On appeal, Father argues that the trial court erred by concluding there was a substantial change in circumstances justifying a modification of the custody order because the findings of fact do not support this conclusion. Because the trial court's ultimate modifications to the custody order are not supported by the court's findings, we vacate and remand to the trial court for entry of a new order.

         Facts

         This appeal arises in a long and highly contentious custody battle with four prior appeals.[2] We will briefly summarize the background of this case and then primarily focus on the facts necessary to address the sole issue raised in the present appeal. Father and plaintiff Kristie Lea Williams ("Mother") were formerly married and are now divorced. They had one child during the course of the marriage, Blake, born in August 2001. Mother was given primary physical legal custody of Blake on 11 June 2002 in a Consent Order for Permanent Custody and Visitation, with Father having secondary physical custody.

         The trial court entered an Order for Temporary Modification of Child Custody in January 2006 after Father filed a motion to modify, in which the court noted examples of Mother's inappropriate behavior in Blake's presence. The trial court concluded that a substantial change of circumstances had occurred justifying modification of the custody order, granted Father temporary physical and legal custody of Blake, and appointed a parenting coordinator. On 3 December 2007, the trial court entered an order for permanent child custody which noted that the parties consented to Father having primary physical custody of Blake. Mother was granted secondary custody, and the order set forth a specific custodial schedule.

         In 2009 and 2010, both parties filed several motions and the trial court entered several orders, culminating in another order modifying the custodial schedule entered on 18 August 2010; this order was affirmed in a prior appeal. See Williams, 213 N.C.App. 425');">213 N.C.App. 425, 714 S.E.2d 275, 2011 WL 2848846, 2011 N.C.App. LEXIS 1543.

         The series of events leading up to this appeal actually started all the way back in January 2011, when the trial court entered the order which suspended Mother's visitation entirely after finding that she had been evasive about her address. Mother's visitation was suspended until she appeared before the trial court and presented satisfactory evidence of her living situation and her compliance with prior orders to obtain counseling. Specifically, Mother could seek to have her visitation rights reinstated if she provided satisfactory information to the trial court regarding her residence address, living conditions, persons who lived with her, and documentation that she was receiving psychological counseling as ordered in 2010. Mother did not see Blake at all from November 2010 until 2013 other than at one counseling session.

         On 30 January 2013, after Mother requested a "Status Hearing, " the trial court entered a permanent child custody order concluding that there had been a substantial change in circumstances since prior custody orders entered in 2010. This order was intended to assist in restoring Mother's relationship with Blake, since she had been absent from his life since 2010. The trial court found that

visitation and modification of custody is in the best interests of the minor child in order for the child to establish and maintain a relationship with his mother however, the circumstances require a more limited visitation schedule in order to provide stability and predictability for the minor child in his primary home with his father.

         The court granted Mother limited but gradually increasing visitation with Blake under a specific schedule that was laid out in the order and required counseling for Mother and Blake.

         Mother filed a "Motion for Contempt, Motion to Review and Enforce Order, and Motion for Attorney's Fees" on 17 April 2013. In her motion, Mother argued that Father had "failed to adhere to the terms of the Court's Order" on numerous occasions and she asked for the trial court to hold Father in contempt. Mother also asked the trial court to review the visitation provisions in the 30 January 2013 order and "if necessary pronounce clarification, guidance and direction to the counselor as to the appropriate role of the counselor in the reunification process." On 23 April 2013, Father filed his own motion to modify custody, asserting that Mother had acted inappropriately in front of the minor child on multiple occasions. He asked that the trial court modify visitation in accordance with the recommendations of the child's counselor and that the court allow Blake to decide if he wanted to visit with Mother.

         A series of at least five temporary and supplemental orders followed in response to the parties' competing motions for modification filed in April 2013. Aside from addressing various motions for contempt and other issues not directly relevant to this appeal, these orders generally addressed issues regarding the ongoing reunification counseling efforts and parenting coordinators. But on 10 October 2013, the trial court entered the order which this Court's prior opinion determined was the most recent permanent order subject to modification. Some of the findings of fact from this long and detailed order are instructive regarding the reunification efforts:

40. Although the court is disappointed Mr. Feasel [the child's counselor] refuses to work with the mother toward reunification, the court respects his professional opinion regarding the counseling provided for the child individually and the parties in the joint counseling sessions. The court understands his recommendations were made considering the child's mental health.
41. The mother was ordered to obtain counseling in paragraph 2R of the August 17, 2010 Order of the court. She was ordered again to comply with the order as a means to reinstate her visitation in the Order Suspending Visitation entered on December 17, 2010.
42. There have been two assigned parent coordinators throughout the history of this case. Judge Foster made findings about the most recent parent coordinators concerns in her order dated August 17, 2010. Findings #40 and #41 refer to the mother's need for "counseling or therapy. This is necessary in order for the mother to gain a better perspective on handling her emotions."
43. Following the entry of Judge Foster's court order in January 2013, where the court relied on the opinion of Counselor Connie Zmijewski, the mother sought some individual counseling from the same therapist. Ms. Zmijewski was also qualified as an expert in family counseling. She testified she has counseled the mother about her visits with the child and regarding parenting issues. Ms. Zmijewski encouraged the mother to meet with reunification counselor. She counseled the mother approximately six times. This counseling was prior to [Blake's] reluctance to attend overnight visitation and prior to the mother's efforts to involve law enforcement to obtain physical custody of the child.
44. The parties have been regularly engaged in litigation since this case was transferred from Mecklenburg County. The current Lincoln County file consists of ten separate files and is approximately 14" thick. This court has observed the behavior of the Plaintiff/Mother since 2009 over the course of at least four contested hearings, of which three of those hearings lasted over three days.
45.The court is concerned that the mother has some type of personality disorder preventing her from participating in meaningful therapy to address her behavior and act in the best interest of the child. The court is concerned the mother does not have the capacity to accept any responsibility for the present quality of the relationship between herself and her son, as well as the capacity to acknowledge or respect her son's opinions and beliefs.
46. There has been a substantial change in circumstances from the entry of the prior order in that the child "exhibits emotions that mimic Post Traumatic Stress Disorder". (Defendant's Exhibit #2) The child has experienced panic attacks, nausea, fear and dread during the days prior to his scheduled visitation.

         The court found that Mother had failed to comply with the terms of the court's prior orders and ordered that Mother complete a psychological evaluation. The trial court also suspended Mother's visitation privileges with Blake except that she was allowed to talk to him by telephone twice a week on Monday and Thursday evenings and to attend one extracurricular activity a week of her choosing.

         On 19 November 2013, after receiving the report from Mother's psychological evaluation, the trial court entered a supplemental order which noted that Mother was not diagnosed with any mental or personality disorders. The November 2013 order concluded that it would be in Blake's best interest for Mother and Father to participate in a "Child and Family Treatment Team" meeting with two therapists who have a relationship with the family. The trial court ordered that all parties participate in therapy for a minimum of four months and then the court would "review the progress of the therapeutic treatment upon notice of either party." The trial court entered an additional order in Febraury 2014 amending the 19 November 2013 supplemental order to substitute a counselor for the Child and Family Treatment Team meeting. On 10 September 2014, the trial court entered another order following a hearing in May 2014 regarding the appointment of a replacement counselor, allowing Mother to select a substitute counselor as her individual counselor.

         In February 2015, Mother filed a notice of hearing to "review" the trial court's 19 November 2013 order as well as an order filed 10 September 2014 that was initially entered on 20 May 2014 "regarding restoration of the mother/child relationship[.]" After a hearing in March 2015, the trial court entered an order on 18 May 2015 suspending Mother's visitation with Blake except for the two telephone calls a week and one extracurricular activity a week. Mother appealed, and this Court vacated the May 2015 order because it did not include any findings of fact to support a permanent modification of custody or any conclusion that substantial changes in circumstances had occurred and remanded the matter to the trial court for entry of a new order. See Williams, ___ N.C.App. ___, 782 S.E.2d 122, 2016 WL 409901, 2016 N.C.App. LEXIS 124.

         Following this Court's opinion, without hearing any additional evidence, the trial court entered a new order on 31 May 2016. The court made the following relevant findings:

10. Following the entry of the Permanent Order of January 30, 2013, the child began visiting his mother in January and February, 2013. He expressed his concern with some behaviors of his mother during the first few visits which were concerning to the Court. In March, 2013, as the visits were to progress to overnight, the minor child started complaining about stomach pain or nausea several days before the visits and he would not visit, or the child just flat refused to go with [Mother], expressing fear. During this time Justin Feasel, the child's therapist, was meeting with the child to address these issues.
11. Mr. Feasel testified that mother contacted him via email on two occasions asking what he recommended for her to do to help improve her relationship with her son. Mr. Feasel recommended to the mother that she ...

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