EARL THIERRY BROWN,
Plaintiff,
v
.
Wake County
No. 01 CVD 6280
CAMELLIA BROWN,
Defendant.
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).
*** Converted from WordPerfect ***