IN THE MATTER OF: LORETTA DIANE SHUE
No. 366A83
In the Supreme Court of North Carolina
Filed 28 August 1984
311 N.C. 586
1. Infants § 6— review hearing of temporary placement of child—return of child to parent
2. Infants § 6— review hearing of temporary placement—erroneous use of change of circumstances standard
In a review hearing of a temporary placement of a neglected child with her father after custody was removed from the mother, the trial court erred in using a “change of circumstances” standard and in requiring the mother to show that the child was being inappropriately cared for by the father before custody would be returned to her.
3. Infants § 6— review hearing of temporary placement—failure to hear relevant testimony
In a review hearing of a temporary placement of a neglected child with her father after custody was removed from the mother, the trial court erred in failing to hear and consider the testimony of various witnesses tendered by the mother which tended to disclose relevant facts concerning the mother‘s changed circumstances and the care or lack of care which the father and his wife were then providing for the child.
4. Infants § 6— review hearing of temporary placement—no authority to award permanent custody or terminate jurisdiction
In a review hearing of a temporary placement of a neglected child with her father after custody was removed from the mother, the trial court did not have authority to make an award of permanent custody where the father did not file a motion in the cause pursuant to
Justice MEYER concurring in result.
APPEAL of right, pursuant to
W. Thomas Ray, Guardian ad Litem, for Loretta Diane Shue, a minor.
Richard F. Harris, III, for Omega Lee James, respondent-appellee.
FRYE, Justice.
In this case the two dispositive issues on appeal relate to the review hearing which was conducted by the trial court on 8 June 1981. The dispositive issues are whether the trial court erred by imposing an erroneous burden of proof on the mother, Omega Lee James, in her effort to regain custody of her child, Loretta Shue, and whether the trial court erred in awarding custody of Loretta Shue to Roy Shue without hearing the testimony of various witnesses who were tendered to the trial court by Omega Lee James. The Court of Appeals concluded that the trial court had erred in both respects. After carefully reviewing the record and the applicable statutes, we find that the result reached by the majority panel of the Court of Appeals was correct; however, we modify that opinion in some respects.
On 20 September 1979, the Mecklenburg County Department of Social Services (hereinafter “DSS“) filed a juvenile petition in the District Court, Mecklenburg County, alleging that Loretta Diane Shue, three years of age, was a “dependent child” as defined by
from other sources, DSS discovered that Loretta Shue had “sustained serious and extensive bruises on the front of her abdomen, left side and buttocks.” At that time, the mother, Omega
After the presentation of evidence at an adjudicatory hearing conducted on 26 September 1979 and 8 October 1979, the trial court, Judge William G. Jones presiding, determined that the head injury suffered by Loretta Shue on 15 September 1979 was not the result of an accident. Instead, Judge Jones concluded that the injuries were the result of an assault on the child by either the mother or the mother‘s boyfriend. Thereafter, the trial court adjudged Loretta Shue a “neglected child,” and DSS was awarded temporary custody of Loretta Shue. DSS also was requested to submit to the trial court a plan “and alternative plans” for “permanent placement of Loretta Diane Shue.”
Subsequently, on 7 November 1979, Roger (hereinafter “Roy“) Eugene Shue filed a motion with the trial court in which he stated that he was the natural father of Loretta Shue. Additionally, he stated that it was in the best interest of Loretta Shue that she be placed in his care, custody and control.
At a dispositional hearing conducted on 8 November 1979, DSS submitted to the trial court, Judge William G. Jones presiding, a plan outlining the specific areas which had to be addressed in order for Loretta Shue to be returned to her mother‘s custody. At this hearing, the trial court also determined the respective amounts of child support to be paid to DSS by Omega
Lee and Roy Shue. Additionally, psychological evaluations of Roy Shue, his wife, Marilyn Shue, and Omega Lee were ordered. If deemed appropriate by the psychiatrist, Loretta Shue was also to be examined.
On 28 December 1979 another dispositional hearing was held. At this hearing, the evidence disclosed that Roy and Marilyn Shue were married in February 1967. It was the second marriage for both. Mrs. Shue had three children from a previous marriage, one of whom is Omega Lee, the mother of Loretta Shue. In April or May 1975, Roy and Marilyn Shue separated. In June 1978, the Shues reconciled and re-established their marriage. They have lived together since that time. During the time that Roy and Marilyn Shue were separated, Omega Lee continued to live with Roy Shue. It was during this interval that Roy Shue fathered Omega‘s child, Loretta. After hearing the above evidence and other evidence, the trial court noted that the psychological evaluations of Mr. and Mrs. Roy Shue failed to answer several questions which it considered crucial in order to make a final disposition. Therefore, the trial court ordered that certain specific questions had to be answered by the psychiatrist before any disposition could be made. Custody of Loretta Shue was ordered to remain with DSS.
On 8 February 1980, at the conclusion of the dispositional hearing, the trial court, Judge William G. Jones presiding, entered a Dispositional Order directing that DSS retain legal custody of the child but further directing that Loretta Shue shall “be placed in trial placement with Mr. & Mrs. Roy Eugene Shue,” for one year. Visitation rights were granted to the mother.
At the review hearing held on 8 June 1981, the trial court considered various psychiatric evaluation reports and home studies done by DSS of the putative father‘s household and the mother‘s new household, which was set up after her marriage. Both
I think that unless Mrs. James is able to prove that Omega [sic] is being inappropriately cared for by the Shues that it would be in Loretta‘s best interest to remain with them because that‘s where she‘s lived for the last year and a half, because she is with one of her natural parents, and because she was removed from Mrs. James‘s [sic] custody and placed there on account of Mrs. James‘s [sic] own action or inaction, as the case may be, under circumstances that threatened her child‘s life.
At that time, the attorney for Mrs. Omega James moved for a mistrial on the ground that the trial court had formed an opinion without hearing all the evidence. This motion was denied by the trial court. Thereafter, without hearing all of the evidence tendered by counsel for Mrs. James, the trial court entered an order granting “full legal and physical care, custody and control” of Loretta Shue to Roy Shue. Mrs. James was given visitation rights.
On appeal, the Court of Appeals held that the trial court erred by using, “in effect, a change of circumstance standard” in the instant case and by “requiring the mother to show that it was not in the child‘s best interest for the child to stay with the father.” The Court of Appeals also held that the trial court erred by making its custody decision before hearing all of the evidence which was tendered by the mother.
Other facts necessary to determine the issues raised on appeal will be incorporated in this opinion.
At the review hearing, which is mandated by
COURT: This is a Review hearing, and I have read and considered the report prepared by Dr. Holscher and dated on May 28th or whatever it was and that, in addition to that, I‘ve heard testimony from him and he has been examined and cross-examined by all parties; and that I‘ve heard Mrs. James‘s [sic] testimony; that I‘ve read the report prepared by Ms. Patterson and dated February, and if I understand correctly that‘s still the Department‘s position, and the report attached to that report from the Department of Social Services in Cabarrus County, including the Affidavit by whatever her name was, regarding the marks on the child‘s buttocks and that I‘ve read the report from the Cherokee County Department of Social Services regarding the James’ residence; and that I am willing to have you, Mr. Harris, present whatever evidence you care to present, either through live testimony of witnesses or through your own statements summarizing what their testimony would be; and I‘m willing to give an additional hour in which to do that; and, as far as I think the Statute requires me to base the decision I have to make on the best interest of the child, but I want to express the preliminary opinion that I think that unless Mrs. James is able to prove that Omega [sic] is being inappropriately cared for by the Shues that it would be in Loretta‘s best interest to remain with them because that‘s where she‘s lived for the last year and a half, because she is with one of her natural parents, and because she was removed from Mrs.
After the trial court had made the above comments, Mr. Harris, counsel for the mother, objected to the trial court‘s limitation of one hour for additional testimony from the mother and also made a motion for a mistrial. This motion was denied. Thereafter, the trial court stated that it was inclined to leave Loretta Shue in the custody of her father “in the absence of any proof showing that she is not receiving the appropriate care.” Then, without hearing the additional testimony of the witnesses which the mother had planned to present at trial, the trial court entered an Order granting custody of Loretta Shue to Roy Shue.
Although both of the dispositive issues in the instant case relate to the review hearing, we consider it appropriate to quote pertinent parts of the statutory provisions of the North Carolina Juvenile Code which are applicable to this case. Those statutes are
§ 7A-516. Purpose.
This Article shall be interpreted and construed so as to implement the following purposes and policies:
. . . .
(3) To develop a disposition in each juvenile case that reflects consideration of the facts, the needs and limitations of the child, the strengths and weaknesses of the family, and the protection of the public safety.
§ 7A-640. Dispositional hearing.
The dispositional hearing may be informal, and the judge may consider written reports or other evidence concerning the needs of the juvenile. The juvenile and his parent, guardian, or custodian shall have an opportunity to present evidence, and they may advise the judge concerning the disposition they believe to be in the best interest of the juvenile. The judge may exclude the public from the hearing unless the juvenile moves that the hearing be open, which motion shall be granted.
§ 7A-646. Purpose.
The purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction. If possible, the initial approach should involve working with the juvenile and his family in their own home so that the appropriate community resources may be involved in care, supervision, and treatment according to the needs of the juvenile. Thus, the judge should arrange for appropriate community-level
§ 7A-647. Dispositional alternatives for delinquent, undisciplined, abused, neglected, or dependent juvenile.
The following alternatives for disposition shall be available to any judge exercising jurisdiction, and the judge may combine any of the applicable alternatives when he finds such disposition to be in the best interest of the juvenile:
(1) The judge may dismiss the case, or continue the case in order to allow the juvenile, parent, or others to take appropriate action.
(2) In the case of any juvenile who needs more adequate care or supervision or who needs placement, the judge may:
a. Require that he be supervised in his own home by the Department of Social Services in his county, a court counselor or other personnel as may be available to the court, subject to conditions applicable to the parent or the juvenile as the judge may specify; or
b. Place him in the custody of a parent, relative, private agency offering placement services, or some other suitable person; or
c. Place him in the custody of the Department of Social Services in the county of his residence, or in the case of a juvenile who has legal residence outside the State, in the physical custody of the Department of Social Services in the county where he is found so that agency may return the juvenile to the responsible authorities in his home state. Any department of social services in whose custody or physical custody a juvenile is placed shall have the authority to arrange for and provide medical care as needed for such juvenile.
§ 7A-657. Review of custody order.
In any case where the judge removes custody from a parent or person standing in loco parentis because of dependency, neglect or abuse, the juvenile shall not be returned to the parent or person standing in loco parentis unless the judge finds sufficient facts to show that the juvenile will receive proper care and supervision.
In any case where custody is removed from a parent, the judge shall conduct a review within six months of the date the order was entered, and shall conduct subsequent reviews at least every year thereafter. . . .
The court shall consider information from the Department of Social Services; the juvenile court counselor, the custodian, guardian, the parent or the person standing in loco parentis, the foster-parent, the guardian ad litem; and any public or private agency which will aid it in its review.
In each case the court shall consider the following criteria:
(1) Services which have been offered to reunite the family;
(2) Where the juvenile‘s return home is unlikely, the efforts which have been made to evaluate or plan for other methods of care;
(3) Goals of the foster care placement and the appropriateness of the foster care plan;
(4) A new foster care plan, if continuation of care is sought, that addresses the role the current foster parent will play in the planning for the juvenile;
(5) Reports on the placements the juvenile has had and any services offered to the juvenile and the parent;
(6) When and if termination of parental rights should be considered;
(7) Any other criteria the court deems necessary.
The judge, after making findings of fact, shall enter an order continuing the placement under review or providing for a different placement as is deemed to be in the best interest of the juvenile. If at any time custody is restored to a parent, the court shall be relieved of the duty to conduct periodic judicial reviews of the placement.
N.C. Gen. Stat. § 7A-657 contemplates that a child will be returned to the parent from whose custody it was taken if the trial court finds sufficient facts to show that the child will receive proper care and supervision from that parent. The quintessential purpose of reuniting child and parent is not inconsistent, however, with custody being placed in the father in this case. Removal from one parent to another parent, simply put, does not fit neatly into the language in the first paragraph of the statute. (Footnote omitted.)
....
The burden placed on the mother—to prove a negative—is almost impossible as a practical matter, and more than G.S. § 7A-657 requires as a legal matter. So, we state the principle applicable to this case. In order to have custody restored to her, G.S. § 7A-657 requires the mother to show only that the child “will receive proper care and supervision” and that such “placement . . . is deemed to be in the best interest of the [child].” Consequently, evidence of the mother‘s own changed circumstances and evidence that the child‘s wel-
fare is being adversely affected by the child‘s present environment are both factors in the equation. (Emphases in original.)
In re Shue, 63 N.C. App. 76, 80-82, 303 S.E. 2d 636, 639 (1983).
[1] A careful reading of
It is clear from the statutory framework of the Juvenile Code that one of the essential aims, if not the essential aim, of the dispositional hearing and the review hearing is to reunite the parent(s) and the child, after the child has been taken from the custody of the parent(s). The fact that the eventual return of the child to the parent(s) is in practice a central focus of the dispositional hearing and the review hearing is evidenced in this case by a DSS report entitled, “Disposition Hearing or 30-Day Hearing.” In that report, DSS enumerated the specific areas which had to be addressed by Ms. Omega Lee before Loretta Shue could be returned to her custody. After further stating what was expected of Ms. Omega Lee, DSS stated that the primary plan for Loretta Shue was as follows:
VI. Primary plan for child: Eventual return of Loretta to Ms. Omega Lee once Ms. Lee has met the conditions stated above and any other changes that may occur in the future.
However, in spite of the contents of the above report and in spite of the fact that the trial court knew that “the best interest
of the child” was the “polar star” by which its final decision was to be made, the trial court erroneously employed a change of circumstance standard upon the review hearing, and additionally, the trial court erroneously imposed upon the mother the burden of proving that Loretta Shue
In determining the best interest of the child, the trial court should consider a number of factors, too numerous to be named here. However, those factors would include the changed circumstances of the mother‘s environment and the type of care which the Shues are providing for Loretta Shue. Nevertheless, neither of the above factors would necessarily be controlling nor determinative of the best interest of Loretta Shue.
[2] Whenever the trial court is determining the best interest of a child, any evidence which is competent and relevant to a showing of the best interest of that child must be heard and considered by the trial court, subject to the discretionary powers of the trial court to exclude cumulative testimony. Without hearing and considering such evidence, the trial court cannot make an informed and intelligent decision concerning the best interest of the child. In view of the foregoing, it is clear that the trial court erred by trying this case as a change of circumstance case and by requiring the mother to show that Loretta Shue was being inappropriately cared for by the Shues before custody of Loretta Shue would be returned to her. The commission of the above errors by the trial court was prejudicial to the mother‘s case and entitles her to a new review hearing.
[3] Additionally, as held by the majority panel of the Court of Appeals, the trial court erred by not hearing all of the evidence which the mother was prepared to present to the court.4 This
evidence consisted of the testimony of several witnesses, some of whom resided in South Carolina, who were prepared to testify on behalf of Mrs. Omega James. Their testimony, which was put into the record after the trial judge had left the bench and had stated his decision concerning the future custody of Loretta Shue, tended to disclose, inter alia, relevant facts and circumstances concerning the mother‘s changed circumstances5 and the care or lack of care which Roy and Marilyn Shue were then providing for Loretta Shue. Without hearing and considering this evidence (although the trial court was not required to believe this evidence), the trial court could not intelligently decide what was in the best interest of Loretta Shue. In spite of the fact that all of the psychological reports and the reports prepared by various DSS professionals recommended that it was in the best interest of Loretta Shue for her to remain in the custody of her father, Roy Shue, the trial court was still required to hear and consider all of the evidence tendered to the court by the mother which was competent, relevant and non-cumulative. In failing to do so, the trial court committed prejudicial error.
[4] For the purpose of providing guidance to the trial court upon the rehearing of this case, we note that the trial court entered an Order at the end of the review hearing which stated as follows: “Loretta Diane Shue is hereby placed in the full legal and physical care, custody and control of Roy Eugene Shue.” Additionally, the
In the case sub judice, the trial court was reviewing the trial placement of Loretta Shue with her father, Roy Shue, and his
wife, Marilyn Shue. In accordance with the explicit language of
The trial court would have been authorized to award custody of Loretta Shue to Roy Shue in this neglect proceeding if Roy Shue had filed a motion in the cause pursuant to
§ 7A-524. Retention of jurisdiction.
When the court obtains jurisdiction over a juvenile, jurisdiction shall continue until terminated by order of the court or until he reaches his eighteenth birthday. Any juvenile who is under the jurisdiction of the court and commits a criminal offense after his sixteenth birthday is subject to prosecution as an adult. Any juvenile who is transferred to and sentenced by the superior court for a felony offense shall be prosecuted as an adult for all other crimes alleged to have been committed by him while he is under the active supervision of the superior court. Nothing herein shall be construed to divest the court of jurisdiction in abuse, neglect, or dependency proceedings.
Therefore, since the district court has exclusive original jurisdiction over Loretta Shue, a juvenile as defined in
We are not persuaded by the appellants’ arguments that
We also note that the trial court erroneously terminated its jurisdiction over Loretta Shue and this case. In view of the facts of this case which disclosed that: (1) Loretta Shue had not reached her eighteenth birthday; (2) Neither Roy Shue, Mrs. Omega
In conclusion, we hold that the Court of Appeals correctly held that the mother was entitled to a new review hearing because the trial court erred by conducting this hearing as if it were a “change of circumstances” case, by placing an erroneous burden of proof upon the mother, and by failing to hear and consider the testimony of various witnesses which were tendered to the court by the mother. We also hold that the trial court did not have the authority to make an award of custody in this neglect proceeding under the existing facts nor did the trial court have the authority to terminate its jurisdiction over this case. For the errors committed, the mother, Mrs. Omega James, is entitled to a new review hearing.
Upon the rehearing of this case, the trial court is directed that the best interest of the child is the proper standard which governs its decision in this case. The trial court must consider all of the evidence tendered by the respective parties which tends to show what is in the best interest of Loretta Shue, as long as such evidence is relevant, competent and non-cumulative. An award of custody, as distinguished from a trial placement of custody of Loretta Shue, may not be made during the review hearing unless Mr. Shue, Mrs. Omega James, or some other person, agency, organization or institution claiming the right to custody of Loretta Shue files a motion in the cause pursuant to
For all of the foregoing reasons, the majority opinion of the Court of Appeals, as herein modified, is affirmed.
Modified and affirmed.
Justice MEYER concurring in result.
I concur in the result reached by the majority. I desire to add the following: The facts of this case represent an unusual and complex hybrid situation not easily reconciled under either our North Carolina Juvenile Code or under our Domestic Relations statutes. It is a case involving a custody dispute between the two natural parents of a neglected child. Temporary placements of neglected children are made pursuant to the North Carolina Juvenile Code, particularly
By failing to recognize the unusual nature of the facts so presented, the majority has fashioned a confusing remedy which serves to cloud the distinction between temporary placement proceedings and the Juvenile Code, and custody proceedings between parents.
In order to support its analysis under the North Carolina Juvenile Code, the majority
I would submit that the more appropriate approach under these facts would be to admit of an unusual situation and fashion a remedy to meet the exigency.
Here, when the DSS placed temporary custody in the natural father and the father sought permanent custody, the proceeding should have been converted to a Chapter 50 proceeding upon proper notice to the parties. This could have been done upon motion of the father or by the trial judge ex mero motu. Or, under