An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1154


Filed: 5 July 2005


v .                             Wake County
                                No. 01 CVD 6280

    Appeal by defendant from order entered 19 December 2003 by Judge Monica Bousman in Wake County District Court. Heard in the Court of Appeals 13 April 2005.

    Earl Thierry Brown, pro se plaintiff-appellee.

    Hall & Hall, by Susan P. Hall, for defendant-appellant.

    LEVINSON, Judge.

    Camellia Brown (defendant) appeals from an order granting custody of the parties' two minor children to plaintiff. In addition to several court orders, pleadings, social/mental health reports and a three-page narrative of the 7 November 2003 custody hearing, this Court does not have anything else at its disposal to review this matter.
    The parties were married in 1996 and separated in 2000. Two children were born to the marriage, the first in 1997 and the second in 1999. On 22 May 2001 Earl Thierry Brown (plaintiff) filed a complaint seeking sole custody of the children, child support, divorce from bed and board, and equitable distribution. Defendant mother counterclaimed for custody, child support, post-separation support, alimony, and equitable distribution. Allegations of abuse and neglect against both parents were investigated by the Wake County Department of Human Services. On 27 July 2002, the court placed the children in the legal and physical custody of the Wake County Department of Human Services. The court held hearings to review custody of the children on 4 November 2002, 21 April 2003, and 1 August 2003. At the 1 August 2003 hearing, the court continued the children's legal custody in the Wake County Department of Human Services but transferred their physical custody to plaintiff. The court suspended defendant's visitation, setting a subsequent custody hearing for 7 November 2003.
    At the 7 November 2003 custody hearing, plaintiff was present and represented by counsel, Thomas J. Dimmock; defendant appeared pro se. Juanita Hart, Wake County attorney, and Al Dauphinais, a caseworker with Wake County Department of Human Services, were also present. The trial court heard oral arguments, admitted a letter from defendant's therapist, and reviewed a report from the team of professionals at the UNC School of Medicine who were treating the minor children.
    Following the argument presented by Dimmock, and statements made by Dauphinais, defendant addressed the court. She requested a continuance to obtain counsel. The trial court denied defendant's request. According to defendant's narrative in the record, she informed the court that she had three witnesses with her who were ready to testify and, further, that:        [Defendant] was not given the opportunity to have her witnesses testify[.] Then Judge Bousman made [an] announcement stating that [defendant] was not to see the children, was to get another evaluation by Dr. Yak, that [defendant] was to send gifts/cards to children via team, team was to approve, and the other provisions as set forth in the Order[.] . . . [Defendant] interrupted the Judge and asked why she could not see her children. Judge Bousman said that this had been discussed in chambers, and your attorney Hope White was present, and “I can't remember the reason.” “I think it had something to do with spacing.” . . . Judge Bousman responded that it was up to the team as to when [defendant] saw her children.

    Following the 7 November 2003 hearing, the trial court entered the order that is the subject of this appeal. The trial court concluded plaintiff was a fit and proper person to have custody, and that it was in the children's best interests that he be awarded custody. The Wake County Department of Human Services was divested of legal responsibility for the children, and, after concluding “it [was] not in the best interest of the children to be around the Defendant in her condition,” directed that defendant have no further contact with the children. Her visitation was indefinitely suspended “until [she] present[ed] competent evidence to the Court that it is in the best interests of the children that she have some contact with the children.” From this order, defendant appeals.
    Defendant argues the trial court erred by refusing to allow her to offer evidence in support of her claim for custody. We agree.    A custody order is a temporary order and therefore interlocutory “only if the trial court: (1) stated a clear and specific reconvening time in the order; and (2) the time interval between the two hearings was reasonably brief . . . [and] the trial court does not determine all issues prior to appeal.” Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546 (2000) (citing Cox v. Cox, 133 N.C. App. 221, 233, 515 S.E.2d 61, 69 (1999)). In the instant case, the order from which defendant appeals set no reconvening time and determined all issues pertaining to custody. Therefore, the instant order is a permanent custody order, and defendant's appeal is properly before this Court.
    According to our Supreme Court, “[w]henever 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.” In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984). In Shue, the mother of a child in foster care appealed from a dispositional order entered pursuant to a review hearing under former N.C.G.S. § 7A-657 (now codified as N.C.G.S. § 7B-906 (2003)). In that case, the trial court prevented the mother from offering witness testimony regarding the best interests of her child. Id. Our Supreme Court held this was error requiring reversal of the court's dispositional order. Id. at 601, 319 S.E.2d at 576.    More recently, in In re O'Neal, 140 N.C. App. 254, 535 S.E.2d 620 (2000), the paternal grandfather and the maternal grandparents had filed, under Chapter 50 of the North Carolina General Statutes, claims for custody of their minor grandchild, who had been placed in the custody of the Edgecombe County Department of Social Services. In O'Neal, the paternal grandfather:
        attempted to offer evidence at the 13 April 1999 review hearing, and informed the trial court of the names of the witnesses he wished to call. The trial court heard the statements of counsel, declined to hear further evidence, and announced that it was making a retroactive return of custody to the parents effective 16 February 1999.

Id. at 257, 535 S.E.2d at 622. The O'Neal panel held that “the trial court erred in refusing to allow appellant to offer his evidence on the question of the best interest of this minor child.” Id. This Court quoted at length from Shue:
        “Without hearing and considering [testimony from witnesses offered by mother] . . . the trial court could not intelligently decide what was in the best interest of [the minor child]. . . . [T]he 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.”

O'Neal, 140 N.C. App at 257, 535 S.E.2d at 622 (quoting In re Shue, 311 N.C. at 598, 319 S.E.2d at 574). In O'Neal, “the trial court did not exclude appellant's evidence because it was incompetent, irrelevant, or cumulative, but simply declined to 'hear anything else about this thing today.' That the court could not do.” Id. at 257, 535 S.E.2d at 622.    In the instant case, the narrative summary of the proceedings in the record states: “[Defendant] had three witnesses there to testify. . . . [Defendant] was not given the opportunity to have her witnesses testify[.]” Moreover, the introductory paragraph of the order on appeal itself confirms that defendant was not afforded the opportunity to present witnesses on her behalf. The order states, “[t]he court, after reviewing the report of the treatment team and hearing arguments, makes the following: Findings of Fact[.]”
    For purposes of appellate review we are bound by the record on appeal. Jeffreys v. Jeffreys, 213 N.C. 531, 533, 197 S.E. 8, 9 (1938) (“The record imports verity and we are bound by its contents.”). In a custody hearing pursuant to Chapter 50, a party has the right to present evidence pertaining to the best interests of the child. See N.C.G.S. § 50-13.2(a) (2003) (“An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person . . . as will best promote the interest and welfare of the child.”). As the trial court did not find that the testimony of defendant's witnesses would be incompetent, irrelevant, or cumulative, it was prejudicial error for the court to deny her the opportunity to have them testify. See Shue, 311 N.C. at 598, 319 S.E.2d at 574; see also O'Neal, 140 N.C. App. at 257, 535 S.E.2d at 622.
    Though not essential to our holding, we observe that our review has been hampered by the absence of a transcription of the 7 November 2003 proceedings. While the inclusion of a transcriptis not always required, see N.C.R. App. P. 9, it would have been helpful in the present matter because of the nature of the legal arguments made on appeal. Though we cannot be certain, the record reveals that a tape of the proceedings may have been available. We note that all reasonable means, including writs of mandamus, should be considered by trial counsel when they prepare records on appeal. While we have not done so, the failure to include a transcription of the 7 November 2003 proceedings could have subjected this appeal to dismissal.
    We reverse and remand for proceedings not inconsistent with this opinion, and urge the trial court to bring closure to the custody matter after a trial on the merits and by means of the entry of a new order on permanent custody.
    Reversed and remanded.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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