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Huml v. Huml

Court of Appeals of North Carolina

March 19, 2019

APRIL J. HUML, Plaintiff,
v.
KEVIN C. HUML, Defendant.

          Heard in the Court of Appeals 31 October 2018.

          Appeal by defendant from order entered on or about 20 November 2017 by Judge Lori Christian in District Court, Wake County No. 08 CVD 14141.

          Marshall & Taylor, PLLC, by Travis R. Taylor, for plaintiff-appellee.

          Schiller & Schiller, PLLC, by Jaime L. Williams, for defendant-appellant.

          STROUD, JUDGE

         Defendant-father appeals from a permanent custody order which grants sole custody of the parties' daughter to plaintiff-mother and eliminates his visitation privileges. The trial court made extensive findings of fact regarding the many reasons it determined in its discretion that continuing visitation is not in the child's best interest. The order on appeal is the last in a series of orders in which the trial court used every possible method to help and encourage Father to address his mental health and domestic violence problems and provided visitation with various conditions to protect the child. All of these attempts have failed because Father has consistently refused to take advantage of any opportunity ordered by the trial court to allow Father to resume visitation. Father has repeatedly failed to participate in counseling as ordered, to take medication as prescribed, to comply with the trial court's orders regarding public visitation and with the rules governing supervised visitation, and to protect the child from exposure to domestic violence in his relationship with his current wife. We affirm.

         I. Background

         Mother and Father were married in February of 2006 and are the parents of Susan, [1] who was born in September of 2006. The parties separated in 2008 and later divorced. Since the parties separated in 2008, the trial court entered several orders regarding custody and visitation. The trial court entered a temporary custody order in January of 2009, when Susan was two years old. The trial court found that Susan was having difficulty transitioning between the parties' homes and noted that Mother had consulted a child psychologist, but Father had not participated. The trial court found Father had been "overly emotional" when dropping Susan off at day care, making it difficult for her to transition. In addition, Susan's regular pediatrician had refused to see her because of an incident in the office with Father. Susan had some significant chronic health problems, so continuity of her medical care was particularly important. The trial court also found that Father had been "unable to appropriately control his anger and other emotions" in front of Susan. The temporary order required Father to have a psychological evaluation with Dr. Reid Whiteside and to comply with any recommendations, including taking medication as prescribed.

         After the psychological evaluation was done, the trial court entered a permanent custody order by consent on 5 October 2009 which gave Mother and Father joint legal custody of Susan; Mother had primary physical custody, and Father had about six overnight visits in every two week period. Father was required to follow Dr. Whiteside's recommendations, including treatment with his personal therapist for at least two years and thereafter unless he was released from therapy. Father was ordered to continue to take his medication as prescribed and to continue to participate in family therapy. The consent order also provided for appointment of a parenting coordinator who was also a psychologist or psychiatrist to monitor any psychological issues relating to the parties' co-parenting; Dr. Alan Bloom was appointed.

         On 31 July 2015, Mother filed a motion to modify custody based upon a substantial change in circumstances; she alleged, in part, that Father had willfully ignored the requirements of the consent order; refused to communicate with her; interfered with her custodial time; failed to provide proper care and supervision of the child; slept in the same bed with the child on a regular basis; failed to follow instructions from the child's physicians and dietician; and that he had been arrested for assault on a female on 1 June 2015. Mother also requested appointment of another parenting coordinator as Dr. Bloom's term had expired.

         Before the motion for modification was heard, on 4 October 2015, Father's girlfriend, whom he later married, Karen Huml, contacted Mother and told her she "was in fear of" Father. Karen did not want Father to know she had contacted Mother, and she informed Mother of domestic violence in Father's home while Susan was present. On 7 October 2015, Mother filed a motion for emergency custody based upon the information that Susan had been uncontrollably crying when exposed to domestic violence in Father's home. The trial court entered an emergency custody order and set a return hearing for 12 October 2015. The emergency order limited Father's visitation to three hours, two days a week, in a public place such as a museum or mall, until a return hearing scheduled for 12 October 2015. Mother subpoenaed Karen for the 12 October 2015 hearing, and both she and Father requested a continuance, so the return hearing was set for 23 October 2015. On 23 October, Father did not appear for the hearing on time, and the trial court had resolved the matter before he arrived. The trial court entered a temporary order with the same visitation as in the emergency order.

         On Thanksgiving night, 2015, Karen again contacted Mother "with photo attachments and messages that [Father] had injured" her. A few days later, Mother asked Father about the incident; he did not deny it, but Karen then said that Father had not injured her.

         Father continued to bring Karen to his public visits with Susan, despite the domestic violence between them. On 10 December 2015, Father and Karen got married, but Mother did not learn of the marriage until she "received an anonymous email" on Christmas Eve. Mother allowed Susan to go to Father's home to open gifts on 26 December 2015. That night, back at her Mother's home, Susan wet the bed, although she had not had this problem in several years.

         In January of 2016, Father "'weaned' himself off his medication" because he felt "'it takes away my life-I'll take the little ups and downs.'" On 3 April 2016, Father informed Mother that Karen had texted him "photographs of her forearms sliced up." Father called the police, and they discovered Karen was intoxicated. Karen made claims to the police that Father "was sexually inappropriate while in the presence of" Susan; she was then placed under a mental commitment. Hearing on Mother's pending motion to modify custody was scheduled for the next day, 4 April 2016.

         At calendar call on 4 April 2016, Father informed the trial court he would be seeking a domestic violence protective order ("DVPO") against Karen. With the consent of the parties, the trial court entered a temporary custody consent order; this order appointed Dr. Cynthia Sortisio as a reunification therapist for Father and Susan; appointed a new parenting coordinator, Helen O'Shaunessy; and set up a three-tiered plan for gradually increasing Father's visitation. Father was also required to have another psychological evaluation; to comply with all recommendations, including any prescribed medication; and to continue attending and to complete the DOSE domestic violence program.[2]

         Father did not comply with the temporary custody consent order and never moved past the first tier of visitation, so his visits continued to be public. Further, Father did not timely pay the parenting coordinator; failed to engage in any of the required therapy for over a year; and did not timely complete the parenting classes. Father also did not obtain a DVPO against Karen, but instead allowed her to "facetime" with Susan from his car during his public visits. In January 2017, Father completed the psychological evaluation ordered in April 2016.

         In August of 2016, Mother hired an investigator because she was concerned that Father was not complying with the terms of the order regarding public visitation. The investigator confirmed that Father was removing Susan from the public locations where he was supposed to be visiting with Susan. Mother informed the reunification therapist and parenting coordinator, who notified Father this was not appropriate.

         On 8 September 2016, Father was arrested again for assault on a female, against Karen. Karen sent the parenting coordinator voice recordings she claimed were of Father "making threats to kill" Mother. Karen also sent text messages she claimed were from Father threatening Judge Denning, the judge who entered the temporary custody consent order. The parenting coordinator informed the police of the threats, and they advised Mother to leave home and stay at an undisclosed location, which she and Susan did for about a week. On 21 November 2016, Mother also got an ex parte DVPO which extended into a permanent DVPO by consent. Judge Denning recused because of the threats, and a new family court judge was assigned. Because of safety concerns, neither the parenting coordinator nor Susan's therapist would meet with Father alone.

         Because of the DVPO, Father could no longer exercise his public visits, and on 19 May 2017, Father began supervised visitation with Susan at Time Together. After Susan visited with Father, she "became withdrawn, cried uncontrollably, began to experience stomach pains, showed signed of anxiety and stress," to the extent that she missed school on 22 May 2017. At the June visit at Time Together, staff had to redirect Father for whispering to Susan. Susan again experienced extreme emotional distress after this visit. On 15 June 2017, Mother filed a motion to suspend Father's visitation.

         The hearing on modification of custody was held on 19 July and 20 July 2017, and on 17 November of 2017, the trial court entered an "ORDER MODIFYING PERMANENT CUSTODY AND CHILD SUPPORT ORDER[;]" the order at issue on appeal. The trial court made extensive and detailed findings of fact, just a few of which we have summarized above. The trial court concluded there had been many substantial changes in circumstances affecting the best interest of Susan; the trial court found these circumstances and detrimental changes in detail. Regarding violence the trial court found:

c. As a result of Defendant's actions since the entry of the prior Permanent Custody Order the Plaintiff is terrified of the Defendant and she has good cause to be afraid of the Defendant.
d. Since the entry of the prior Permanent Custody Order, at least on four separate occasions the Defendant made threatening statements about the Plaintiff which included statements regarding a murder/suicide, blowing her head wide open, snapping her neck and putting a strangle around her neck. These statements were laced with profanity and made explicit comments about having to take DOSE classes for 26 weeks, showing that Defendant took no responsibility for his own actions and emphasizing that Defendant has anger issues that he has never adequately addressed even after completing his DOSE classes in 2016.
f. Defendant took a deferral plea for Assault on a Female related to [Karen] Huml in Wake County file no. 15 CR 212182 that was subsequently expunged, and as part of that deferral plea the Defendant was required to complete a DOSE program. The Defendant's anger and rage as heard by this Court in the voice recordings of the Defendant are disturbing; and Defendant's anger issues and refusal to appropriately address his anger have had a detrimental impact on not only the minor child to not feel safe around the Defendant but the Plaintiff, her parents, Plaintiff's friends, Plaintiff's co-workers and various professionals involved with this family.
s. Since the entry of the prior Permanent Custody Order, and starting around December 2014, Defendant was not transparent or forthcoming regarding the well-being of the minor child when she was in his care, including, but limited [(sic)] to failing to inform the Plaintiff of the domestic violence in his home while their child was present, misrepresenting his location during public visitations, denying that he was still in a relationship with [Karen] Huml and such other matters set forth in these findings of fact. Defendant's actions related to these issues have had a detrimental impact on the minor child.
t. The Defendant has shown a consistent pattern of making poor parenting decisions including those referenced in the above findings of fact.
u. Defendant downplays and ignores the minor child's anxiety and/or stress. Defendant has been angry around the minor child and the child has experienced significant trauma related to the Defendant's actions.
v. Since the entry of the prior Permanent Custody Order and starting around December 2014 Defendant has exhibited inconsistent, unstable, and erratic behavior while providing care for the minor child.

         The trial court also determined that Father "should not have any further contact with" Susan as a "direct result of his actions and his failure to take steps that could have improved his relationship with his daughter." The trial court also set out detailed findings regarding why Father should not have any custodial rights or visitation with Susan:

a. The April Temporary Order entered in 2016 gave the Defendant liberal visitation with the minor child and established a three tier visitation schedule. Defendant failed to take advantage of this opportunity to repair and rehabilitate his relationship with his daughter. There was a reunification therapist that was available to the Defendant for over a full calendar year (April 2016 to July 2017) and other than two initial phone calls in June 2016 and one meeting in July 2017 the Defendant did absolutely nothing to work with the reunification therapist to improve his relationship with his daughter. Defendant first met together with the reunification therapist and the minor child's therapist on July 17, 2017 two days before this hearing.
b. The communication that the Defendant did have with the child's therapist was not productive. Defendant ignored recommendations that Defendant write a letter taking responsibility for everything in December 2016 in response to Defendant's attempt to send Christmas cards/correspondence to the minor child. In December 2016, Dr. Meisburger advised Defendant that he would need to send her written correspondence via postal mail and await her reply the same. After December 2016 until July 2017, there was no further contact between Dr. Meisburger and Defendant. Defendant failed to grasp that the recommendations from the child's therapist were based [on] the needs of the minor child. Defendant has continuously put his needs above the minor child's needs without concern for the detrimental impact his own actions had on the minor child.
c. Even after the DVPO was entered in November 2016 the Defendant had the ability to reach out to the reunification therapist and the child's therapist to maintain a role in [Susan's] life. Defendant made the choice to do nothing.
d. Since July 2016 until his deposition in June 2017, Defendant paid no child support to the Plaintiff despite having an agreement to make payments to her. Defendant made a $400 payment in June 2017. Defendant ignored all medical bills, therapy bills, and healthcare related items for the minor child from July 2016 through the date of this hearing. Defendant was not concerned about anyone's well-being but his own.
e. Defendant's threats against the Plaintiff put the Plaintiff in a real fear of her life. Defendant's threats against the Plaintiff resulted in the Plaintiff and minor child having to go in hiding at hotels for a period of time. The threats from Defendant against Plaintiff resulted in Plaintiff's employer requiring her to work from home because of safety concerns at her employer's office. She was not allowed to return to work at her office from September 2016 through the date of this hearing. These threats by Defendant also resulted in the minor child being restricted to be supervised by an adult while outside at her home. The minor child had to be advised of how to respond if Defendant appeared at her home at her mother's house, or school or any public location.
f. Under the DVPO the Defendant's visitation with the minor child was to be supervised at Time Together. Once Defendant started supervised visits at Time Together, Defendant's supervised visitation at Time Together had to stop as the result of the minor child's extremely negative reaction and behavior after these visits.
g. Defendant violated the supervised visitation rules that are imposed by Time Together. During his second visit Defendant whispered to the minor child and had to be redirected by the staff at Time Together. Defendant objected to Time Together visits because it was not "natural" and didn't allow him to be himself with his daughter.
This Court is not able to rule out that the Defendant has had inappropriate sexual contact with the minor child or rule out that Defendant has engaged [in] sexualized behavior in the minor child's presence.
h. Defendant has willfully ignored the Court Orders in his case regarding public visitation with the minor child. Plaintiff had to hire a private investigator to follow the Defendant during his public visitations because of Plaintiff's concerns that the Defendant was not following the requirement that Defendant's visit occur in a public location as most recently set forth in this Court's April Temporary Order. The private investigator observed the Defendant remov[ing] the minor child from specific public locations where he told the Plaintiff that he would be exercising his public visitation with the minor child. The Plaintiff's private investigator, Michael Flowers with Cat's Eye Investigations, found that the Defendant removed the minor child from these locations. On one such occasion as soon as Plaintiff dropped off the minor child for a visit the Defendant took the minor child and immediately exited the location through a side door and walked through an adjacent building to ultimately take the minor child to a[] parking garage. During multiple visits, once the Defendant entered in the parking garage, the Defendant would get into rental car or truck.
Defendant would have already backed the rental car into a parking space[]. By removing the child from his public visitation this allowed the Defendant to be alone with the minor child. The private investigator could not determine that Defendant was facetiming, only that the minor child was looking at an iPad or mobile phone. This also allowed Defendant to have the minor child facetime with [Karen] Huml--another violation of the April Temporary Order. It is concerning that Defendant was removing the minor child from public and taking her to locations where she was isolated and sitting in the back seat of a rental car with the Defendant. Defendant's explanation about backing into parking spaces, using a rental car instead of his personal vehicle, and insisting that Defendant and the minor child had to eat food that he prepared at home in the back seat of a vehicle rather than at the public location was not credible. The private investigator also observed an angry outburst by the Defendant while he was with the minor child at the IMAX movie theater in Raleigh which was directed toward an employee working at the IMAX theater. On another occasion, the private investigator observed the minor child crying while she was walking with the Defendant in public.
i. Based on the foregoing findings of fact the Defendant cannot put the needs of the minor child first. Defendant blames everyone but himself. Defendant does not take responsibility for his actions. Defendant is very smart. Defendant took steps during his public visits with the minor child to do what he wanted to do while ignoring restrictions that were in place to protect the minor child. It is impossible to believe that Defendant did not know that his actions would have a detrimental impact on the minor child.
j. It is in the child's best interests and welfare of the minor child that she have no further contact with the Defendant. The minor child's anxiety and stress level decreases when the child has no contact with Defendant. The minor child's physical symptoms such as stomach pains also are eliminated when she does not have contact with Defendant. The minor child performed exceptionally well in school, including being accepted to the Duke University TIPS program.
k. The Plaintiff and minor child have reasons to fear the Defendant.
l. For almost two years the Defendant has failed to take opportunities to change his behavior and to be a positive influence in his daughter's life. Defendant has failed to take the opportunity to exercise visitations with his child, and when he did take those visits he repeatedly violated court orders concerning the restrictions placed on him to including, but not limited to, removing the minor child from public visits, exposing the child to [Karen] Huml, and failing to follow the clear rules established at Time Together.
m. As the direct result of his actions, confrontational attitude and failure to act in a manner consistent with his parental responsibilities to provide support, love, and guidance, the Defendant has had a detrimental influence on his daughter since at least July 2015.

         The trial court concluded:

4. There has been a substantial change in circumstances warranting a modification of custody as set forth herein.
5. Plaintiff is a fit and proper person to have sole legal and exclusive physical custody of the minor child ...

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