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Davis v. McMillian8/6/2002
PUBLISHED
Biological mother Torian Lewis McMillian, presents the following issues on appeal from an order awarding custody of her child to non-parent Sharon Davis: (I) Did the trial court err by taking judicial notice of findings of fact from a prior custody action between the biological parents to support an award of custody in this action between the biological mother and a non-parent? (II) Were the findings of fact which supported the trial court's conclusion of unfitness supported by competent evidence? (III) Were the trial court's conclusions of law resulting in the award of custody to a non-parent supported by findings of fact? We affirm the trial court's award of custody.
Ms. McMillian is the biological mother of a minor child born in 1998; Ms. Davis is the child's second cousin. In a prior custody action during 1999 between Ms. McMillian and the child's biological father, George Ronald Manuel, the trial court found Ms. McMillian unfit to have custody of her minor child; accordingly, the trial court granted custody to Mr. Manuel with visitation by Ms. McMillian. Mr. Manuel died on 16 October 2000; thereafter, his first cousin, Ms. Davis, brought this action and obtained an ex parte order for custody of the minor child who, along with Mr. Manuel, had lived with Ms. Davis for over two years. At the temporary custody hearing, the trial court incorporated the findings of fact on Ms. McMillian's unfitness adjudicated in the 1999 action, and awarded temporary custody to Ms. Davis. On 23 January 2001, the trial court granted Ms. Davis primary care, custody, and control of the minor child, and allowed Ms. McMillian visitation. This appeal followed.
(I)
On appeal, Ms. McMillian argues that the trial court erroneously took judicial notice of findings from a prior custody action between the biological parents to support an award of custody to a non-parent in this action. We must disagree because our Supreme Court recently set forth "that any past circumstance or conduct which could impact either the present or the future of a child is relevant, notwithstanding the fact that such circumstance or conduct did not exist or was not being engaged in at the time of the custody proceeding." Speagle v. Seitz, 354 N.C. 525, 531, 557 S.E.2d 83, 87 (2001), reh'g denied, 355 N.C. 224, 560 S.E.2d 138, cert. denied, 122 S.Ct. 2589, 70 U.S.L.W. 3656 (2002).
Under Rule 201 (b) of the North Carolina Rules of Evidence, "a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." N.C. Gen. Stat. ยง 8C-1, Rule 201(b) (2001). "No decisions in North Carolina specifically indicate that it is improper for a trial court to use orders from temporary hearings or contempt hearings in the same case to support permanent custody orders. This Court has found that it is not improper for a trial court to take judicial notice of earlier proceedings in the same cause." Raynor v. Odom, 124 N.C. App. 724, 728, 478 S.E.2d 655, 657 (1996) (the trial court took judicial notice of earlier proceedings of temporary custody orders, as evidence in awarding custody in the same case between biological parents and intervening grandparents); see also In re Byrd, 72 N.C. App. 277, 324 S.E.2d 273 (1983).
Most recently, in Speagle v. Seitz, our Supreme Court confronted an appeal by grandparents who sought a reversal of this Court's holding that the biological mother of a minor child had not lost her constitutionally protected status as a parent because there existed "no e
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