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NO. COA98-1528
NORTH CAROLINA COURT OF APPEALS
Filed:                                                                19 October  1999
BRENDA PENLAND and
DAVID PENLAND
v.                                                                    Iredell County
No.  98 CVD  682
ANGELA AUSTIN HARRIS
Appeal by plaintiffs from order entered  25 June  1998 by
Judge Samuel A. Cathey in Iredell County District Court.    Heard
in the Court of Appeals  20 September  1999.
Parker, Setzer & Howes, L.L.P., by David P. Parker, for
plaintiff-appellants.
Pope, McMillan, Kutteh, Simon & Baker, P.A., by Pamela H.
Simon, for defendant-appellee.
MARTIN, Judge.
Plaintiffs filed this action on  20 April  1998 seeking joint
custody of defendant’s minor child.    In their complaint,
plaintiffs alleged that plaintiff, Brenda Penland, is defendant’s
mother and the natural maternal grandmother of the minor child;
plaintiff David Penland is Brenda Penland’s husband.    Plaintiffs
alleged that the minor child was born to defendant out of wedlock
on  15 July  1992 and that the child’s natural father is not named
on the birth certificate.    Plaintiffs alleged that defendant and
the minor child lived in plaintiffs’ home from the child’s birth
until  3 April  1998, when defendant married Andrew Harris and took
the child to live with her in Harris’ apartment.    During the time
when the minor child lived with plaintiffs, they alleged that




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they assumed parental roles and provided the child with food,
health care, private schooling, and an overall healthy and stable
environment while defendant earned a nursing degree.    Since
defendant’s marriage to Harris, however, plaintiffs have been
allowed only very limited contact and visitation with the minor
child, to the detriment of the child’s well being.    Plaintiffs
asserted that it was in the best interests of the child that they
be awarded joint custody and  “that her care, custody, and control
be with the Plaintiffs at least  50% of the time.”    Plaintiffs
also sought an ex parte order awarding them custody pending a
hearing on the merits.
Defendant’s motion to dismiss the complaint was granted by
the trial court.    Plaintiffs appeal.
There are four statutes in North Carolina which permit a
grandparent to maintain an action for custody or visitation of a
minor child.    Plaintiffs do not specify under which statute they
proceed, however, it is clear that plaintiffs have no right to
proceed under any of these statutes.    Accordingly, we affirm the
order dismissing their complaint.
G.S.  §  50-13.2(b1) permits a grandparent to intervene in an
ongoing custody dispute and request visitation with their
grandchild.    Hill v. Newman,  131 N.C. App.  793,  509 S.E.2d  226
(1998).    G.S.  §  50-13.5(j) permits a grandparent to petition for
custody or visitation due to changed circumstances in those
actions where custody has previously been determined.    Id. at




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797,  509 S.E.2d at  229, citing    McIntyre v. McIntyre,  341 N.C.
629,  633,  461 S.E.2d  745,  748-49  (1995).    Because neither
situation contemplated by these statutes is present in this case,
they are inapplicable to establish plaintiffs’ standing to
maintain this action.
A third statute, G.S.  §  50-13.2A, permits a biological
grandparent to institute an action for visitation rights where
the minor child has been adopted by a step-parent or relative of
the child, and a substantial relationship exists between the
grandparents and the child.    There is no allegation in the
complaint before us in this case that Andrew Harris has adopted
the minor child and, therefore, plaintiffs may not proceed under
this statute.
Finally, G.S.  §  50-13.1(a) permits  “[a]ny parent, relative,
or other person, agency, organization or institution claiming the
right to custody of a minor child  [to] institute an action or
proceeding for the custody of such child, as hereinafter
provided.”    In McIntyre, our Supreme Court held this statute does
not grant grandparents standing to sue for visitation when no
custody proceeding is ongoing and the minor’s family is intact.
McIntyre,  341 N.C. at  635,  461 S.E.2d at  750.    In Fisher v.
Gaydon,  124 N.C. App.  442,  477 S.E.2d  251  (1996), disc. review
denied,  345 N.C.  640,  483 S.E.2d  706  (1997), this Court denied
standing to grandparents to maintain an action for visitation
where the grandchildren lived with their single mother, holding
“that a single parent living with his or her child is an  ‘intact




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family’ within the meaning of McIntyre.”    Id. at  445,  477 S.E.2d
at  253.    Similarly, we believe the term  “intact family” should
certainly include a married natural parent, step-parent and child
living in a single residence.
More recently, in Price v. Howard,  346 N.C.  68,  484 S.E.2d
528  (1997), our Supreme Court, interpreting G.S.  §  50-13.2(a),
considered the rights of natural parents, both biological and
adoptive, against the rights of third parties.    The Court held
that a natural parent has a constitutionally protected paramount
right in the care, custody, and control of his or her children
which rises to the level of a liberty interest and is protected
by the Due Process Clause of the Fourteenth Amendment.    Id.    The
right is not absolute, however, and there is a corollary
obligation on the part of the parent to care for his or her child
and act in the child’s best interest.    Where a parent has acted
in a manner inconsistent with his or her constitutionally
protected custody right, that right must give way to a  “best
interest of the child” analysis under G.S.  §  50-13.2(a).    Id.
There is no bright line rule to determine what conduct on
the part of a natural parent will result in a forfeiture of the
constitutionally protected status and trigger application of a
“best interest” analysis.    Unfitness, abandonment, and neglect
are certainly so egregious that a parent who engages in such
behavior forfeits constitutional protections.    Price,  346 N.C. at
79,  484 S.E.2d at  534,    McIntyre,  341 N.C. at  632,  461 S.E.2d at
748, Hill,  131 N.C. App. at  796,  509 S.E.2d at  228.    On the other




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hand, raising a child out of wedlock does not constitute such
behavior.    Peterson v. Rogers,  337 N.C.  397,  445 S.E.2d  901
(1994).    The fact that the third party is able to offer the minor
child a higher standard of living does not overcome a natural
parent’s paramount interest in the custody and control of the
child.    Id.    And, parental control over a child’s associations is
not behavior inconsistent with parental responsibilities; it is
instead a fundamental part of the parent’s right to custody.
Hill,  131 N.C. App. at  799,  509 S.E.2d at  230, citing Petersen,
337 N.C. at  403,  445 S.E.2d at  904-05.
We read Price as broadening the rule of McIntyre by
requiring that a third party, including a grandparent, who seeks
custody of a minor child as against the child’s natural parent,
must allege facts sufficient to show that the natural parent has
acted in a manner inconsistent with his or her constitutionally
protected status.                                                       “If a natural parent’s conduct has not been
inconsistent with his or her constitutionally protected status,
application of the  ‘best interest of the child’ standard in a
custody dispute with a nonparent would offend the Due Process
Clause.”    Price,  346 N.C. at  79,  484 S.E.2d at  534.
The complaint in the present case falls far short of that
requirement.    Plaintiffs allege virtually no facts which would
support a finding that defendant has engaged in conduct
inconsistent with her parental responsibility.    Plaintiffs allege
their disapproval of defendant’s choice of spouse, place of
residence, and babysitters, and their fear that defendant will




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not permit the child to attend the school and church which
plaintiffs desire that she attend.    The primary focus of the
complaint is upon plaintiffs’ loving relationship with the minor
child and their ability to provide her with a higher standard of
living if she were in their custody.
Plaintiffs’ dissatisfaction with defendant’s husband and the
couple’s residence does not allege conduct so egregious as to be
inconsistent with defendant’s parental duties and
responsibilities.    Their assertion that they would be able to
afford the minor child a higher standard of living is not
relevant to the issue of defendant’s constitutionally protected
parental interest.    Nor are plaintiffs’ concerns as to
defendant’s decisions regarding which school and church the child
will attend; decisions regarding the child’s associations,
education and religious upbringing are squarely within parental
rights and responsibilities. See, e.g., Hill,  131 N.C. App. at
799,  509 S.E.2d at  230, citing Peterson,  337 N.C. at  403,  445
S.E.2d at  904-05  (finding that control over a child’s
associations is one of the penumbra of constitutionally protected
parental rights).    Thus, we hold the complaint in the present
case insufficient to state a claim under G.S.  §  50-13.1(a) on
behalf of plaintiffs for custody of the minor child of defendant.
In their brief, plaintiffs assert that they moved to amend
their complaint prior to the hearing of defendant’s motion to
dismiss and they have assigned error to the denial of the motion.
However, neither plaintiffs’ motion to amend nor any ruling by




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the court with respect thereto are contained in the record on
appeal, having been excluded by the trial court’s order settling
the record on appeal.    N.C.R. App. P.  9(a)(1)j requires that the
record contain  “copies of all other papers filed and statements
of all other proceedings had in the trial court which are
necessary to an understanding of all errors assigned  .  .  .           .”
Although plaintiffs have attempted to place the motion to amend
before this Court by attaching it as an appendix to their brief,
Rule  9 limits our review to the record on appeal; matters argued
in the brief but not contained in the record will not be
considered.    Hudson v. Game World, Inc.,  126 N.C. App.  139,  484
S.E.2d  435  (1997).
Plaintiffs also assign error to the rulings of the trial
court settling the record on appeal.    A trial court’s order
settling the record on appeal is final and will not be reviewed
on appeal.    State v. Johnson,  298 N.C.  355,  259 S.E.2d  752
(1979).    Review of an order settling the record on appeal is
available, if at all, only by way of certiorari.    Id.    Plaintiffs
have not applied for certiorari and we decline to consider their
assignments of error directed to the trial court’s order settling
the record on appeal.
The order of the trial court is affirmed.
Affirmed.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.

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