An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1455
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014

THOMAS LEWIS HUNT,
     Plaintiff,

      v.                                      Columbus County
                                              No. 12 CVD 1501
VELMA LONG,
     Defendant


      Appeal by defendant from order entered 10 September 2013 by

Judge Jerry A. Jolly in Columbus County District Court.                         Heard

in the Court of Appeals 3 June 2014.


      No brief filed for plaintiff-appellee.

      Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson,
      for defendant-appellant.


      HUNTER, Robert C., Judge.


      Velma    Long   (“defendant”)      appeals     from   an   order    granting

sole and exclusive custody of her grandson, L.J.1, with L.J.’s

biological father, Thomas Lewis Hunt (“plaintiff”).                    On appeal,

defendant argues that the trial court’s findings of fact do not

support    its    conclusion     of    law   that    plaintiff     did    not    act


1
  A pseudonym will be used to protect the identity and privacy of
the minor involved in this case.
                                      -2-
inconsistently     with   his   constitutionally     protected    status   as

L.J.’s natural parent, or in the alternative, that the trial

court failed to enter findings of fact or conclusions of law

addressing plaintiff’s fitness to be a parent.

       After careful review, we reverse the trial court’s order

and remand for further proceedings.

                                 Background

       The   following    evidence    was    presented   before   the   trial

court: Defendant’s daughter, Tanya, and plaintiff were involved

in a romantic relationship that resulted in the birth of L.J. in

June 2007.     Tanya and L.J. lived with plaintiff in his home in

Chadbourn, North Carolina.           Around April 2008, Tanya ended the

relationship with plaintiff and moved into defendant’s home with

L.J.    A year later, Tanya and L.J. moved into a mobile home on

defendant’s property.

       Defendant testified that she was L.J.’s primary caretaker

even though he lived with Tanya.             She estimated that L.J. was

with her roughly seventy percent of the time due to Tanya’s work

obligations.       When L.J. was an infant, defendant would bathe

him, feed him, change his diapers, and help potty train him.

L.J.    required    frequent    trips   to    the   doctor,   during    which

defendant would accompany him.          Defendant also took a large role
                                      -3-
in helping to educate L.J. by enrolling him in school and paying

for his uniform, supplies, and transportation costs.

      Throughout this time period, plaintiff would visit L.J. one

or two times per month.         Conflicting testimony was presented

regarding how much plaintiff paid in child support; plaintiff

testified that he provided Tanya with $3,523.09 in support from

2010 to 2012, but the check stubs admitted into evidence as

proof   of   plaintiff’s   payments         amounted    only   to     $1,545.00.

Plaintiff testified that he made repeated efforts to see L.J.,

but Tanya and defendant would ignore his phone calls.

      Defendant    testified   that    she     thought      plaintiff    had   an

alcohol problem, but plaintiff denied that allegation.                  However,

he admitted to being convicted of two DWIs and being charged

with a third, with his         driver’s      license being revoked          after

being convicted of a DWI in 2008.               Jeanne Suggs, defendant’s

niece and an acquaintance of plaintiff and Tanya, testified that

she   frequently   saw   plaintiff     drinking        to   excess,   sometimes

beginning as early as ten o’clock in the morning.                       She also

described an instance where plaintiff drove under the influence

of alcohol after his license was revoked in 2008.                       Defendant

further testified that she stopped L.J. from going fishing with

plaintiff on one occasion because plaintiff had been drinking.
                                              -4-
Plaintiff testified that he did not think he had an alcohol

problem, but he admitted to drinking three or four beers after

work to relieve stress.

    Tanya died in October 2012.                     Defendant testified that after

the funeral, she had a conversation with plaintiff in which he

intimated       a    desire      to    leave       L.J.    in     defendant’s        custody.

Plaintiff    testified        that      he    remembered         having   a    conversation

with defendant at the funeral, and he admitted that he did not

ask defendant to give him custody of L.J. at that time.

    In      December        2012,       plaintiff         filed    suit       to    establish

paternity and obtain full custody of L.J.                            After plaintiff’s

paternity    was      established,           the   trial    court    entered         an   order

giving him temporary physical custody over L.J., with visitation

rights for defendant.                 On 22 January 2013, defendant filed an

answer    and       counterclaim        for    full   custody       over      L.J.        After

conducting a hearing on 11 and 12 June 2013, the trial court

entered    an       order   on    10    September         2013    awarding         sole   legal

custody to plaintiff and dismissing defendant’s counterclaim.

Defendant filed timely notice of appeal.

                                        Discussion

                                      I. Custody Award
                                          -5-
    Defendant’s sole argument on appeal is that the trial court

erred by granting sole and exclusive legal custody over L.J. to

plaintiff.     Because the trial court failed to enter findings of

fact and conclusions of law as to whether plaintiff was fit to

receive custody over L.J., we reverse the trial court’s order

and remand for further proceedings.

    Under N.C. Gen. Stat. § 50-13.2(a) (2013), the trial court

generally must “award the custody of [a] child to such person,

agency, organization or institution as will best promote the

interest   and      welfare   of    the    child.”   See    also   Hedrick    v.

Hedrick, 90 N.C. App. 151, 156, 368 S.E.2d 14, 17 (1988) (“The

best interests of the children are and have always been the

polar   star   in    determining      custody   actions[.]”).      However,    a

parent has an “interest in the companionship, custody, care, and

control of [his or her children that] is protected by the United

States Constitution.”         Price v. Howard, 346 N.C. 68, 73, 484

S.E.2d 528, 531 (1997).            So long as a parent has this paramount

interest, a custody dispute between a parent and a nonparent may

not be determined by the “best interest of the child” test;

rather, the parent benefits from a presumption that he or she

will act in the best interest of the child.                Price, 346 N.C. at

79, 484 S.E.2d at 534.         However, “a natural parent may lose his
                                           -6-
constitutionally protected right to the control of his children

in one of two ways: (1) by a finding of unfitness of the natural

parent,      or    (2)   where       the     natural       parent’s     conduct     is

inconsistent with his or her constitutionally protected status.”

David N. v. Jason N., 359 N.C. 303, 307, 608 S.E.2d 751, 753

(2005).      Because a finding of parental fitness does not preclude

a finding that a parent’s conduct is inconsistent with his or

her constitutionally protected status, David N., 359 N.C. at

307,   608    S.E.2d     at   753,    this       test    has    been   described    as

“disjunctive” by our Courts, Mason v. Dwinnell, 190 N.C. App.

209, 222, 660 S.E.2d 58, 66 (2008).

       Defendant    specifically       alleged      in    her    counterclaim      that

plaintiff was unfit to be a parent.                At the hearing, significant

inquiry was made into defendant’s contention that plaintiff was

an alcoholic.        Plaintiff admitted at the hearing that he had

been convicted on two DWI charges and had been charged with a

third.    His driver’s license was revoked in 2008 as a result of

his second DWI, and as of the date of the hearing on 11 June

2013, he had not renewed his license.                    Plaintiff testified that

he drinks three or four beers after work to relieve stress, but

does not drink every day.             Defendant and a number of witnesses

who took the stand on her behalf testified extensively as to
                                      -7-
various    encounters    they   had     with      plaintiff   during     L.J.’s

lifetime where plaintiff appeared drunk, had passed out due to

excessive alcohol consumption, or had driven under the influence

of alcohol without a license.

    Despite this evidence, the trial court failed to address

the alleged substance abuse issues or plaintiff’s fitness to be

a parent in its order.      Rather, it concluded only that plaintiff

had not acted inconsistently with his constitutionally protected

status as L.J.’s natural parent and therefore declined to use

the “best interest of the child” test in its award of custody to

plaintiff.     This Court has previously held that DWI convictions

and substance abuse are relevant considerations in determining

whether a parent is fit to have custody over a child.                          See

Raynor v. Odom, 124 N.C. App. 724, 731-32, 478 S.E.2d 655, 659-

60 (1996).      We take no position as to whether the evidence

presented here was sufficient to support a finding of unfitness.

However,     because   unfitness   is       one   avenue   through     which    a

nonparent can reach the “best interest of the child” test in a

custody dispute with a natural parent, David N., 359 N.C. at

307, 608 S.E.2d at 753, this issue required determination by the

trial court.     See Cunningham v. Cunningham, 171 N.C. App. 550,

558, 615 S.E.2d 675, 682 (2005) (“[T]he trial court must resolve
                                         -8-
all issues raised by relevant evidence that directly concern the

fitness    of    a   party   to   have   care,      custody    and    control       of   a

child[.]”);      Witherow    v.    Witherow,     99    N.C.    App.    61,    63,    392

S.E.2d    627,   629   (1990)      (“[T]he     trial   court    need    not    make      a

finding as to every fact which arises from the evidence; rather,

the court need only find those facts which are material to the

resolution of the dispute.”).

                                    Conclusion

    Because the trial court failed to address                         in its    order

whether    plaintiff     was      fit   to   have     full    care,    custody,      and

control over L.J., we reverse the trial court’s order and remand

for further proceedings.



    REVERSED AND REMANDED.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
