An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-453
                            NORTH CAROLINA COURT OF APPEALS

                                Filed: 31 December 2014


DEBORAH J. TONEY,
     Plaintiff,

       v.                                            Rutherford County
                                                     No. 12 CVD 864
LEE ANNA EDGERTON,
     Defendant.


       Appeal    by        Plaintiff     from   an     amended    order    entered       11

October     2013      by    Judge      Dennis   Redwing     in    Rutherford         County

District Court.            Heard in the Court of Appeals 7 October 2014.


       Cerwin Law Firm, P.C.,                   by     Brittany    N.     Waters,       for
       Plaintiff-Appellant.

       Aaron G. Walker, P.A., by Aaron G. Walker, and Roberts &
       Stevens, P.A., by Phillip T. Jackson, for Defendant-
       Appellee.


       DILLON, Judge.


       Deborah     J.       Toney   (“Plaintiff”)        appeals    from        an   order

dismissing her claim for custody of the adoptive daughter of Lee

Anna   Edgerton       (“Mother”),         her   former     partner,       for    lack    of

standing.       We affirm.

                                       I. Background
                                         -2-
    The parties to this custody action were partners                                      for a

number    of   years,    during    which        Mother      adopted         a    child        from

Guatemala.       The parties began experiencing difficulties in their

relationship,      culminating         eventually          in    Mother         obtaining       a

domestic violence protective order against Plaintiff and forcing

Plaintiff to leave her home.

    In     June    of   2012,    following       a    hearing,         the       trial    court

entered    a   temporary       consent       order   awarding          primary         physical

custody of the child to Mother and granting Plaintiff visitation

privileges.

    Two months later, on the date the temporary consent order

expired,    Plaintiff     arrived       at    Mother’s          home   to       pick     up    the

child,    only    to    find    that    nobody       was    home.           As    a     result,

Plaintiff      filed    this    action       seeking       custody      of       the     child.

Mother filed a timely answer.

    In October of 2012, following a hearing, the trial court

entered another temporary consent order granting Mother primary

physical custody and allowing Plaintiff visitation pending the

outcome of the trial.

    Over the next year, the trial court conducted hearings and

presided over a two-day trial, all of which led to the entry of

a number of orders.            Ultimately, however, in October of 2013,
                                       -3-
the court entered an order determining that Plaintiff lacked

standing to proceed in the matter and dismissing her claim for

custody.     Plaintiff timely filed written notice of appeal of

several orders, but only argues error arising from the October

2013 order dismissing her claim for lack of standing, so we

review only that order in this appeal.

                           II. Standard of Review

       In custody proceedings, “the trial court’s findings of fact

are conclusive on appeal if there is evidence to support them,

even    though     the    evidence    might   sustain   findings   to   the

contrary.”       Owenby v. Young, 357 N.C. 142, 147, 579 S.E.2d 264,

268 (2003).       We review de novo whether the findings support the

conclusions of law.         Hall v. Hall, 188 N.C. App. 527, 530, 655

S.E.2d 901, 904 (2008).

                                  III. Analysis

       Plaintiff argues that the trial court erred in concluding

that she had not demonstrated by clear, cogent, and convincing

evidence      that       Mother      acted    inconsistently   with     her

constitutionally protected paramount status as legal parent of

her adoptive child.        We disagree.

                                  A. Standing
                                          -4-
      At the outset, we note, as we did in Mason v. Dwinnell, 190

N.C. App. 209, 660 S.E.2d 58 (2008), “that the factual context

of   this      case   —    involving     same    sex   domestic      partners      —   is

immaterial to the proper analysis of the legal issues involved.”

Id. at 211, 660 S.E.2d at 60.                   A third party has no standing

under    the    United      States     Constitution     or    the    North    Carolina

Constitution      to      assert   a   claim    for    custody      against   a    legal

parent “unless the evidence establishes that the legal parent

acted in a manner inconsistent with his or her constitutionally-

protected status as a parent.”                 Estroff v. Chatterjee, 190 N.C.

App. 61, 63-64, 660 S.E.2d 73, 75 (2008).                     “By looking at both

the legal parent’s conduct and his or her intentions, we ensure

that the situation is not one in which the third party has

assumed a parent-like status on his or her own without that

being the goal of the legal parent.”                   Id. at 70, 660 S.E.2d at

78-79.      Simply put, the question in such cases is this:                        “Did

the legal parent act inconsistently with her fundamental right

to custody, care, and control of her child and her right to make

decisions      concerning     the      care,    custody,     and    control   of   that

child?”     Mason, 190 N.C. App. at 222, 660 S.E.2d at 67.

      Plaintiff contends that this case is analogous to Mason,

where     we    held      that,    through      the    performance       of   various
                                            -5-
affirmative acts, a constitutionally protected relationship in

the   nature   of    a    parent-child           relationship          had    been       created

between a child and the former partner of the child’s biological

mother.     See 190 N.C. App. at 225-26, 660 S.E.2d at 68-69.                                 In

Mason, the     biological mother                and    her partner       raised a child

together,    jointly      supporting            the    child    and    making        decisions

regarding the child’s upbringing and executing an agreement in

the third year of the child’s life wherein they stipulated that

the   mother’s      partner         occupied      a     relationship          of    de    facto

parentage with the child.                  Id. at 212, 660 S.E.2d at 60-61.

Based on our Supreme Court’s decision in Price v. Howard, 346

N.C. 68, 484 S.E.2d 528 (1997), we identified as the central

issue in the case whether the biological mother, as the legal

parent of the child, both created the family unit of which her

partner   claimed        to    be    a    part        and    induced    her        partner    to

participate in that family unit, thereby “allow[ing] that family

unit to flourish in a relationship of love and duty with no

expectations that it would be terminated.”                             Id. at 225, 660

S.E.2d at 68 (quoting Price, 346 N.C. at 83, 484 S.E.2d at 537)

(emphasis removed).            We reasoned that the biological mother had

created     such    a     family         unit     and       induced     her    partner        to

participate    in    it       through     various       acts,    not     least       of    which
                                    -6-
included the execution of the parenting agreement, creating a

constitutionally protected relationship between her partner and

the child by ceding her own paramount status as against her

partner.     Id. at 225-26, 660 S.E.2d at 68-69.          We concluded that

the biological mother could not unilaterally exclude her then-

former partner from the child’s life after voluntarily allowing

a   constitutionally    protected      relationship    between    her   former

partner and the child to develop even though her former partner

did not possess full rights of legal parentage.              Id. at 227-28,

660 S.E.2d at 70.

      On the same day we filed our decision in Mason, we also

filed our decision in Estroff, applying the same constitutional

principles    to   similar,   albeit    crucially     distinct,   facts,   and

reaching the opposite result.          See 190 N.C. App. at 63-64, 660

S.E.2d at 74-75.       We find the present case far more closely

analogous to Estroff than Mason.             In Estroff, we affirmed the

trial court’s dismissal of a former partner’s action for custody

of children born during her relationship with the children’s

mother for lack of standing.           Id.    Specifically, we concluded

that there was competent evidence to support the trial court’s

findings establishing that the mother neither voluntarily chose

to create the requisite family unit nor induced her partner to
                                                 -7-
participate          in    it.      Id.     at   73-74,      660    S.E.2d    at   81.     In

pertinent part, the trial court based its conclusion on findings

that while the partner “played a unique and special role in the

lives of [the              mother’s] children,” she was not a biological

parent, adoptive parent, parent by estoppel, or de facto parent,

never entered an agreement with the mother granting her legal

status     as        a    parent,     custodian,        or      legal   guardian,        never

discussed entering into such an agreement with the mother, never

filed a friendly lawsuit or otherwise attempted to establish

parental        or       custodial    rights       to     the      children    during     the

relationship, and furthermore, that the mother “would never have

agreed to bestow on [her partner] or anyone else any parental or

custodial rights with regard to her children.”                               Id. at 66-67,

660 S.E.2d at 76.

    In the present case,                    the trial court found that               Mother

intended the child to be her legal child; that while Plaintiff

was in a relationship with Mother at the time she adopted the

child,   Mother           intended    for    Plaintiff’s         relationship      with   the

child to be temporary; that a friendly lawsuit was never filed

to establish Plaintiff’s custodial rights to the child; that

Mother never contacted an attorney about drafting a parenting

agreement       to        establish    Plaintiff’s        custodial      rights     to    the
                                           -8-
child; that Mother amended her will to include a clause naming

Plaintiff as the guardian of her child in the event of her death

because she was intimidated by Plaintiff but later removed that

provision without Plaintiff’s knowledge; and finally that these

actions showed that Mother did not intend to form a permanent

relationship between her child and Plaintiff.                      We believe that

these    findings,     like    the    trial      court’s   findings      in    Estroff,

establish     that   Mother     neither       voluntarily    chose    to      create   a

family unit of which Plaintiff claimed to be a part nor induced

Plaintiff to participate in such a family unit.                          Accordingly,

Plaintiff’s argument that the trial court erred in concluding

that    she   failed    to     show   by    clear,     cogent,     and     convincing

evidence      that      Mother        acted        inconsistently         with      her

constitutionally protected paramount status is overruled.

       Plaintiff     next      argues      that     the    trial     court       relied

inappropriately        on     Mother’s     intent     to    create    a       permanent

relationship between Plaintiff and her child in arriving at the

conclusion that she lacked standing to seek custody of Mother’s

child.     Specifically, Plaintiff contends that in focusing solely

on whether Mother intended to create a permanent relationship in

the nature of a parent-child relationship between her child and
                                       -9-
Plaintiff, the court applied the incorrect legal standard.                         We

disagree.

      Plaintiff quotes the following language from our decision

in Estroff in support of her argument:

            [T]he court’s focus must be on whether the
            legal parent has voluntarily chosen to
            create a family unit and to cede to the
            third   party   a  sufficiently   significant
            amount   of   parental   responsibility   and
            decision-making   authority   to   create   a
            permanent parent-like relationship with his
            or her child.

Id. at 70, 660 S.E.2d at 78.              According to Plaintiff, “[t]he

circumstances     here    are   simply    summed   up       in   an    old    English

Proverb[,]     ‘actions    speak      louder    than    words.’”          Plaintiff

conveniently    omits     the   two   sentences    that      follow     the    above-

quoted passage, wherein we explain:

            The   parent’s   intentions  regarding  that
            relationship are necessarily relevant to
            that inquiry.   By looking at both the legal
            parent’s conduct and his or her intentions,
            we ensure that the situation is not one in
            which the third party has assumed a parent-
            like status on his or her own without that
            being the goal of the legal parent.

Id. at 70, 660 S.E.2d at 78-79.              Thus, while true that Mother’s

intent was not the only relevant consideration under Price, it

was   certainly   a   relevant     consideration       to    the      trial   court’s

determination of whether Plaintiff had standing.                       We note also
                                      -10-
that we rejected essentially the same argument Plaintiff now

makes in Estroff.       See id. at 68-69, 660 S.E.2d at 77-78 (“[The

mother’s partner] argues, . . . that Price supports her view

that only manifested intentions are relevant. . . .                        We disagree

with [this] reading of Price. . . .                 [B]oth conduct and intent

are   relevant.”).          Estroff   thus    cannot       bear      the    weight   of

Plaintiff’s assertions.

      Plaintiff’s characterization of the trial court’s decision

as    based    solely   on    Mother’s       intent     to    form     a     permanent

relationship      between     Plaintiff      and    her      child    is    not   even

descriptively accurate.         The court found that Mother transported

the child from Guatemala to the United States; that the child

lived in      Mother’s home; that         Mother    adopted the child; that

Mother frequently asked Plaintiff to leave the home and tried to

end   their     relationship;    that     after     a     harrowing        episode   of

domestic violence, Plaintiff did leave the home after Mother

obtained a domestic violence protective order forcing her to do

so; that Mother amended her will to include a provision granting

Plaintiff custody of her child in the event of her death, but

subsequently amended the will again to remove that provision

without       Plaintiff’s    knowledge;       and     that     Mother        routinely

prepared meals for the child, played with the child, and read to
                                       -11-
the child.       These actions all qualified as conduct relevant to

the   trial      court’s      determination     of    whether       Mother        acted

inconsistently with her constitutionally paramount status under

Price.      See id. at 68-69, 660 S.E.2d at 77-78.                     We do not

believe   that     the     trial   court   focused   on     Mother’s   intentions

concerning     her     child’s     relationship      with    Plaintiff       to    the

exclusion     of     her    actions.       Accordingly,      this    argument       is

overruled.

                                    B. Findings

      Plaintiff also contends that certain of the trial court’s

findings were not supported by competent evidence.                     “Competent

evidence is evidence that a reasonable mind might accept as

adequate to support [a] finding.”             City of Asheville v. Aly, ___

N.C. App. ___, ___, 757 S.E.2d 494, 499 (2014).                  We address the

challenged findings in turn.

      In relevant part, finding of fact number four1 states that

Mother began working with an adoption agency to adopt a child

from Guatemala in 2007, and that Mother transported the child

from Guatemala to the United States in 2008.                 Plaintiff contends

1
   As Mother alerted the Court to in her brief, Plaintiff
mistakenly refers to finding of fact number four as finding of
fact number nine.     We believe that the issue was properly
preserved for our review despite this error, and will review the
challenged finding using the number from the trial court’s
order.
                                         -12-
that the only evidence related to the finding that Mother began

working with an adoption agency was her testimony that she, and

not   Mother,    initiated       contact      with    an     adoption       agency.       We

disagree.       Mother    testified      that     in    2005         or   2006,   she    and

Plaintiff encountered a couple who had adopted a child from

Guatemala,      prompting        her   to     investigate            an    international

adoption.    She also testified that she informed Plaintiff that

she wanted to be the adoptive parent and further, that Plaintiff

never   informed    her     of    a    desire    to     be      an    adoptive      parent.

Plaintiff also asserts that the language in the finding suggests

– without support from the record – that Mother transported the

child from Guatemala by herself.               We do not find the language of

the   finding    impermissibly         suggestive          in   this      manner.       The

finding merely states that Mother transported the child.                                Both

parties     testified       that       they      were        present        during       the

transportation     of     the     child.        We     therefore          conclude      that

competent evidence existed to support the trial court’s finding

as to both      Mother’s involvement in working with an adoption

agency and in transporting the child back to the United States.

      Plaintiff next challenges finding of fact number five, that

Mother attempted to have children in the early 1990s prior to

her relationship with Plaintiff.                However, Mother testified that
                                         -13-
she pursued having children with her then-husband from 1989 to

1991.     We therefore conclude that competent evidence existed to

support this finding.

      Plaintiff      next    challenges    finding       of   fact    number   seven,

regarding her issues with anger management.                      Plaintiff claims

that there was no evidence of Mother’s concerns about her lack

of anger management.           We disagree.        The record is replete with

references    to     Plaintiff’s     quick      temper   and    violent    behavior.

Specifically, Mother’s account of the events leading up to her

pursuing a domestic violence restraining order against Plaintiff

amply     support    the     trial   court’s      finding      regarding    Mother’s

concerns about Plaintiff’s inability to manage her anger.                          We

therefore conclude that competent evidence existed to support

this finding.

      Plaintiff also challenges the portion of finding of fact

number seven which states, in relevant part, that “[Mother] . .

. intended the relationship between the Plaintiff and the child

to   be   temporary.”         However,     Plaintiff      concedes     that    Mother

testified     that     she     did   not     intend      to    form    a   permanent

relationship between her child and Plaintiff.                     As the trier of

fact, the trial court was entitled to credit Mother’s testimony
                                         -14-
regarding   her     intent.       We    therefore      conclude        that   competent

evidence supports this finding.

    Plaintiff next challenges the language in finding of fact

number eight, that she frequently passed out after consuming

excess    amounts    of   alcohol.         Plaintiff         claims    that   the     only

evidence of her passing out frequently due to excessive alcohol

consumption was Mother’s testimony.                   Though Mother’s testimony

is sufficient to support this finding, we note that another

witness    testified      about   an    occasion       where    Plaintiff,       in    the

presence of the child for parts of the day, consumed four Bloody

Marys in the morning immediately after waking up, continued to

drink    beer   throughout      the    day,     and    then    passed     out    in   the

evening after drinking coffee mixed with liqueur while “barely

able to sit up” in a chair in the living room.                         Plaintiff also

takes issue with the court’s use of the word “frequently” in the

finding.        However,        Mother’s      testimony        regarding        numerous

specific    instances      of     Plaintiff      drinking        heavily      and     then

falling asleep, both at home as well as in public places like

restaurants,        describes         behavior        more      than     sufficiently

“frequent” to warrant characterization by the court as such.

    Plaintiff also challenges finding of fact number eleven,

where the court found that Mother had asked Plaintiff to leave
                                          -15-
the home and communicated her desire to end the relationship

frequently    over       a   four-year     period,     claiming      again     that    the

characterization of Mother’s communication as “frequent” was not

supported by the record.             However, this finding is supported by

Mother’s    testimony.          Specifically,        Mother    testified       that    she

initiated     between         fifteen      and      twenty     conversations          with

Plaintiff about moving out of her home dating back to 2008 and

2009.     According to Mother, Plaintiff would behave the next day

as   though       these      conversations         never     took     place,    despite

indicating    her    amenability         at   the    time    Mother    initiated       the

conversations.           Mother   further        testified    that     the   issue     was

discussed frequently during the year of 2009.                           We therefore

conclude that competent evidence supported this finding.

     Plaintiff next challenges finding of fact number twelve,

claiming that no competent evidence existed that Mother provided

for Plaintiff’s appointment as guardian of the child in her will

because     she    was       intimidated      by    Plaintiff       into     doing     so.

However, Mother testified that she felt tremendous pressure to

include the guardianship clause in her will, and that Plaintiff

was very adamant both that she do it and about the manner in

which   she   did    it.        We   believe        this    evidence    supports       the

finding.
                                      -16-
      Plaintiff finally challenges the portion of finding of fact

number fourteen, where the court found that Mother was generally

unaware of Plaintiff’s representations of her relationship with

the child to third parties, arguing that no evidence supported

this finding because Mother did not testify about whether she

knew how Plaintiff represented her relationship with the child

to    third     parties.         Plaintiff       cites       Mother’s     apparent

acquiescence to her representations to third parties regarding

her relationship with the child as contrary evidence to the

finding     that      Mother   was   unaware     of    those    representations.

However, Mother testified that these representations were made

without her consent.           A reasonable mind might accept Mother’s

testimony      that     such   representations        were   made    without   her

consent as adequate to support the trial court’s finding that

she   was   generally      unaware   of    how   Plaintiff      represented    her

relationship with the child to third parties.                   Accordingly, we

conclude that competent evidence supported this finding.

                                 IV. Conclusion

      The     trial    court   correctly     concluded       based   on   findings

supported by competent evidence that Plaintiff lacked standing

to seek custody of Mother’s adoptive daughter.

      AFFIRMED.
                         -17-
Judge HUNTER, Robert C. and Judge DAVIS concur.

Report per Rule 30(e).
