Appeal by respondent father from order entered 17 September
2004 by Judge Charles A. Horn in Cleveland County District Court.
Heard in the Court of Appeals 7 March 2006.
Charles E. Wilson, Jr., for petitioner-appellee.
Rebekah W. Davis for respondent-appellant.
GEER, Judge.
This appeal stems from an order entered by the Cleveland
County District Court, following a review hearing, changing primary
physical custody of the minor child, H.S.F., from her father to her
mother. Because we hold that the trial court's findings of fact do
not support its conclusion of law that this change was in the minor
child's best interests and because the disposition ordered by the
court is not one authorized by statute, we reverse the trial
court's order and remand this case for further proceedings.
Factual and Procedural History
The respondent father and H.S.F.'s mother were married on 14
July 1990. H.S.F. was born on 19 January 1993. The parents
divorced in 1994 or 1995, and the child's mother later remarried.
Subsequent to her parents' separation, the child lived primarily
with her mother, but stayed in contact with her father. On 28
January 2004, the Cleveland County Department of Social Services
("DSS") filed a petition pursuant to N.C. Gen. Stat. § 7B-402
(2005). The petition alleged that the child was a neglected
juvenile under N.C. Gen. Stat. § 7B-101(15) (2005) because she was
living in an environment injurious to her welfare as a result ofdomestic violence occurring between the mother and her second
husband, the child's stepfather.
On 28 January 2004, District Court Judge Larry Wilson signed
a non-secure custody order, pursuant to N.C. Gen. Stat. § 7B-504
(2005), on the grounds that the child was exposed to a substantial
risk of physical injury under N.C. Gen. Stat. § 7B-503(a)(3)
(2005). Pursuant to the seven-day deadline mandated by N.C. Gen.
Stat. § 7B-506 (2005), Judge Wilson signed a second order on the
need for continued non-secure custody on 6 February 2004. This
order continued DSS' non-secure custody over the child and
sanctioned continued placement of the child with her father and her
paternal grandmother. The order found that (1) the mother and
stepfather had refused to cooperate with services offered by DSS,
and (2) the couple's failure to comply with domestic violence
protective orders, the incidents of domestic violence, and the
couple's failure to cooperate with DSS exposed the child to a
substantial risk of injury.
On 14 May 2004, District Court Judge Charles A. Horn entered
an adjudication and dispositional order, following a four-day
hearing that took place at the end of April. The May order found
that (1) the mother had been abusing prescription drugs for more
than 10 years; (2) loaded weapons were kept in the home in an
unsecure location; (3) 99 telephone calls to 911 had been placed
from the residence, mostly for the purpose of protecting the mother
from the stepfather; (4) the stepfather had inflicted three broken
limbs and at least four black eyes on the mother; (5) the motherand the child had planned an escape route for the child, in case
she was caught in the middle of an altercation; and (6) the mother
and stepfather had consistently rejected all of DSS' attempts to
work with the family. Based on these and other findings, the May
order terminated DSS' custody, assigned joint legal custody of the
child to the mother and father, and placed primary physical custody
with the father, "but with the physical placement of the juvenile
to be with her paternal grandmother."
Elsewhere in the May order, the mother and the maternal
grandfather were given visitation rights, but strict parameters
were placed on contact between the child and the stepfather. The
order stated that "this matter shall be reviewed, as a peremptory
setting, on this Court's Civil Domestic Term on Monday, August 2,
2004." The court specified that "further reunification efforts on
the part of [DSS] with the respondent mother and stepfather would
clearly be futile, and [DSS] should be relieved of its duty to make
such continued efforts." Following the mother's appeal, this Court
affirmed the May order.
In re H.S.F., 177 N.C. App. __, 625 S.E.2d
916 (2006) (unpublished).
In June 2004, a month after Judge Horn's initial adjudication
and disposition, the mother and father filed cross motions for
contempt, each alleging that the other was not in compliance with
the May order. At the outset of the August 2004 review hearing
provided for in the May order, the trial judge asked why the matter
was before him, and counsel for the parties explained that it was
coming on for review pursuant to the May order and for resolutionof the two cross-motions for contempt. The trial judge said, "So
we're here on contempt motions," and the father's counsel said,
"Essentially, Your Honor." A few minutes later, however, the trial
court stated, "this matter is going to be reviewed as to the status
of [the child] only this day. . . . And we're not going into any
into any [sic] contempt hearings at all."
At the hearing, counsel for the mother attempted to tender the
child (age 11) as a witness. The guardian ad litem objected.
Counsel for the mother then requested that the court clear the room
except for counsel, "so that [the child] can feel like she can
express what she _ whatever she needs to tell us." The trial judge
declined to do so, stating instead that he would "take [the child]
in chambers alone and discuss the matter with her." The guardian
ad litem and the mother's counsel stated that they had no
objection. Counsel for the father neither consented nor
specifically objected to this procedure.
The trial judge then engaged in a private conference with the
child and her guardian ad litem. The exact contents of this
conversation have never been disclosed. Afterwards, the court
heard testimony from the mother, who was examined by her counsel.
Following the mother's testimony, the trial judge said to counsel
for the father, "[D]o you wish to call a witness? I know you're
shooting in the dark but I'm going to leave you there." When the
father's counsel went to call his first witness _ the paternal
grandmother _ to the stand, the trial court, acting
sua sponte,refused to hear her testimony, stating, "I do not care to hear from
her. I'll hear from your client."
After the father and the maternal grandfather testified, the
following exchange occurred:
THE COURT: The custody's getting ready to
change because . . . I've given [respondent
father] now four months to make a situation
wherein he could come before this Court and
present a situation where he could take this
child into his custody.
. . . .
MR. CERWIN [father's counsel]: . . . Your
Honor, [the father]'s doing what the Court
ordered him to do. He has the same home. His
home is suitable. He's been wanting that
child there since the beginning. It _ his
residence is suitable for that child.
THE COURT: No, it isn't.
MR. CERWIN: What _ what's not suitable
about it?
THE COURT: It's a thing called marriage.
. . . I guess I'm old time.
The court then stated, "the big thing [in the custody
determination] is a little gal who pretty well opened up to me as
we talked." The guardian ad litem, who had been present at the
private conference in the judge's chambers, expressed grave
concerns about a change in custody, because she did not think that
the maternal grandfather could protect both the mother and the
child from the stepfather's aggressiveness and violence.
Towards the end of the hearing, when it became apparent that
the trial judge was planning to change the child's physical custodyback to the mother, counsel for DSS repeated a concern he said he
had already stated at the earlier adjudication hearing in April:
[T]he other concerning issue for me . . . is .
. . that this Court should be bound by the
dispositional alternatives set forth in the
Juvenile Code [N.C. Gen. Stat. § 7B-903
(2005)], and I do not believe that the Court
has the authority to grant custody to a non-
party grandparent in a juvenile court case
brought under _ under the Juvenile Code.
. . . .
Fault and no fault aside, the father in this
case was a non-offending party and should be
entitled by law to custody of this child.
There have no _ been no 50 _ Chapter 50
actions filed. There have been no findings by
the Court under Chapter 50 that he is an unfit
parent. And I just _ I don't think the Court
has the authority . . . .
At that point, the trial judge interrupted him: "I will [have the
authority] when I finish up the order, sir. . . . I'm going to
attempt to make it work."
Following the hearing, the trial court filed a written order
on 17 September 2004 modifying the May 2004 custody order. The
September order provided that the father and mother would continue
to share joint legal custody. It further provided, however, that:
the primary physical custody of the juvenile
shall be with the respondent mother, [C.B.],
but with the physical placement of the
juvenile to be with her maternal grandfather,
[T.A.], provided that the respondent mother is
in the home of [T.A.] all evenings to assist
with the minor child's school preparation from
the time school lets out to the time [the
child] goes to school in the morning.
Respondent father was granted visitation rights every other
weekend, and the order also provided that the child could visitwith her mother and stepfather at their home for two hours at a
time on three separate days of the week. The child's father timely
appealed.
I
[1] The respondent father first contends that the district
court lacked jurisdiction to review the child's custody and
placement. The May order scheduled the August review hearing
pursuant to N.C. Gen. Stat. § 7B-906(a) (2005), which provides that
a court has a duty to conduct periodic review hearings "[i]n any
case where custody is removed from a parent, guardian, custodian,
or caretaker." The father, however, points to N.C. Gen. Stat. §
7B-906(d), which provides: "If at any time custody is restored to
a parent, guardian, custodian, or caretaker the court shall be
relieved of the duty to conduct periodic judicial reviews of the
placement." The father argues on appeal that, under § 7B-906(d),
once DSS ceased to have custody and he was given physical custody
by the May order, the court no longer had jurisdiction to conduct
the statutory periodic hearings. This argument has been rejected
by our Supreme Court.
In
In re Shue, 311 N.C. 586, 319 S.E.2d 567 (1984), the
Supreme Court considered the predecessor statute to N.C. Gen. Stat.
§ 7B-906, which contained essentially identical language to the
current statute: "If 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 (1981). In
Shue, the Court stressed that this language meant only that a trialcourt could terminate its jurisdiction; it was not required to do
so: "If custody had been
restored to [the mother], the trial court
could have, although it was not required to, terminated its
jurisdiction over [the child] and this case." 311 N.C. at 600 n.6,
319 S.E.2d at 576 n.6.
This Court has previously held, in the context of the Juvenile
Code, that "[o]nce the court obtains jurisdiction over a juvenile,
that 'jurisdiction shall continue until terminated by order of the
court or until the juvenile reaches the age of 18 years or is
otherwise emancipated . . . .'"
In re J.S., 165 N.C. App. 509,
513, 598 S.E.2d 658, 661 (2004) (quoting N.C. Gen. Stat. § 7B-201
(2003)).
See also N.C. Gen. Stat. § 7B-1000(b) (2005) ("In any
case where the court finds the juvenile to be abused, neglected, or
dependent, the jurisdiction of the court to modify any order or
disposition made in the case shall continue during the minority of
the juvenile, until terminated by order of the court, or until the
juvenile is otherwise emancipated."). In this case, prior to the
hearing in August, no order had been entered closing the case, and
the child had not yet reached age 18. The court, therefore, still
had jurisdiction.
II
[2] The respondent father next assigns error to the trial
judge's decision to interview the child with her guardian ad litem
outside the presence of the parties. He argues that the interviewwas improper because he never expressly consented to the trial
judge's interview of the child in chambers.
Respondent father is correct that "[i]n custody proceedings,
the trial court may question a child in open court but the court
may question the children privately only with the consent of the
parties."
Cox v. Cox, 133 N.C. App. 221, 227, 515 S.E.2d 61, 65
(1999). If, however, the parties had an opportunity to object to
an
in camera interview of a child and did not do so, the interview
is said to have been conducted with their "informed acquiescence"
and cannot be the basis for an objection on appeal.
Stevens v.
Stevens, 26 N.C. App. 509, 510-11, 215 S.E.2d 881, 881-82,
cert.
denied, 288 N.C. 396, 218 S.E.2d 470 (1975).
In the present case, the transcript of the August hearing
indicates that the mother and the guardian both consented to the
trial judge's interview of the child in chambers, while the father
simply remained silent. Under
Stevens, the father's silence in the
face of an opportunity to object precludes review of this issue on
appeal.
III
[3] The final issue to be addressed regarding the September
order is its conclusion that it was in the child's best interests
to return physical custody to the mother while providing for
"physical placement" with the maternal grandfather. We review a
trial court's conclusions of law to determine whether they are
supported by findings of fact.
In re Helms, 127 N.C. App. 505,
511, 491 S.E.2d 672, 676 (1997). Further, we must determinewhether the disposition adopted by the trial court is one
authorized by statute.
In re Burrus, 275 N.C. 517, 535, 169 S.E.2d
879, 891 (1969),
aff'd, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct.
1976 (1971).
N.C. Gen. Stat. § 7B-906 governs review by district courts of
prior orders entered under the Juvenile Code and was the basis for
the trial court's order in this case. That statute provides:
The court, after making findings of fact, . .
. may make any disposition authorized by G.S.
7B-903, including the authority to place the
juvenile in the custody of either parent or
any relative found by the court to be suitable
and found by the court to be in the best
interests of the juvenile. The court may
enter an order continuing the placement under
review or providing for a different placement
as is deemed to be in the best interests of
the juvenile.
N.C. Gen. Stat. § 7B-906(d). The statute further specifies that
"[i]f the court determines that the juvenile shall be placed in the
custody of an individual other than the parents . . ., the court
shall verify that the person receiving custody . . . understands
the legal significance of the placement or appointment and will
have adequate resources to care appropriately for the juvenile."
N.C. Gen. Stat. § 7B-906(g).
N.C. Gen. Stat. § 7B-903 specifies the "alternatives [that]
shall be available to any court exercising jurisdiction" and
provides that "the court may combine any of the applicable
alternatives when the court finds the disposition to be in the best
interests of the juvenile . . . ." The alternatives are limited to
the following:(1) The court may dismiss the case or
continue the case in order to allow the
parent, guardian, custodian, caretaker 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 court may:
a. Require that the juvenile be
supervised in the juvenile's own
home by the department of social
services in the juvenile's county,
or by other personnel as may be
available to the court, subject to
conditions applicable to the parent,
guardian, custodian, or caretaker as
the court may specify; or
b. Place the juvenile in the custody of
a parent, relative, private agency
offering placement services, or some
other suitable person; or
c. Place the juvenile in the custody of
the department of social services in
the county of the juvenile's
residence . . . .
If a juvenile is
removed from the home and placed in
custody or placement responsibility
of a county department of social
services, the director shall not
allow unsupervised visitation with,
or return physical custody of the
juvenile to, the parent, guardian,
custodian, or caretaker without a
hearing at which the court finds
that the juvenile will receive
proper care and supervision in a
safe home. . . .
(3) In any case, the court may order that the
juvenile be examined by a physician,
psychiatrist, psychologist, or other
qualified expert as may be needed for the
court to determine the needs of the
juvenile . . . .
N.C. Gen. Stat. § 7B-903(a) (emphasis added). The statute
specifies no other dispositional alternatives. It, however,repeats the caveat also contained in N.C. Gen. Stat. § 7B-906(g)
that "[i]f the court determines that the juvenile shall be placed
in the custody of an individual other than the parents . . ., the
court shall verify that the person receiving custody . . . of the
juvenile understands the legal significance of the placement . . .
and will have adequate resources to care appropriately for the
juvenile." N.C. Gen. Stat. § 7B-903(c).
The disposition entered in this case provided:
the primary physical custody of the juvenile
shall be with the respondent mother, [C.B.],
but with the physical placement of the
juvenile to be with her maternal grandfather,
[T.A.], provided that the respondent mother is
in the home of [T.A.] all evenings to assist
with the minor child's school preparation from
the time school lets out to the time [the
child] goes to school in the morning.
This is not a disposition permitted by N.C. Gen. Stat. § 7B-903.
Nothing in that statute permits a court to grant physical custody
to a parent, but order "physical placement" to be with another
person. Except when custody has been granted to DSS, the statute
anticipates that any person with whom the child is "placed" shall
be given custody. Yet, this Court has recently held, in the
Chapter 50 custody context, that approval of physical placement
with a grandparent _ when physical custody has been granted to a
parent _ does not grant the grandparent any custodial rights.
Everette v. Collins, 176 N.C. App. __, __, 625 S.E.2d 796, 799
(2006).
The disposition ordered below is also inconsistent with the
concept of "physical custody." As the leading commentator on NorthCarolina family law has explained, "[t]he law uses the phrase
'physical custody' to refer to the rights and obligations of the
person
with whom the child resides." 3 Suzanne Reynolds,
Lee's
North Carolina Family Law § 13.2, at 13-16 (5th ed. 2002) (emphasis
added). Here, the trial court purported to grant physical custody
to a parent who does not reside with the child. Indeed, the
court's order reflects this inherent inconsistency. While the
child is required to live with the maternal grandfather, the order,
in a nod to physical custody, includes the patently unrealistic
specification that the child's mother spend every night at the
grandfather's home rather than with her husband. Meanwhile, the
maternal grandfather, whatever his good intentions, has no legal
ability to make daily decisions affecting the child's welfare.
Nothing in the Juvenile Code suggests that this type of disposition
is appropriate.
Everette is not to the contrary. It addressed only whether
the trial court, in applying Chapter 50, "violated [the mother's]
constitutional rights by approving of [the child's] physical
placement with the paternal grandmother." 176 N.C. App. at __, 625
S.E.2d at 799. The mother, who was physically incapable of caring
for the child, contended that it was a "backdoor" way to grant the
grandmother custody of the child.
Id. The father, who had
previously been awarded temporary physical custody, was in the
military, had returned from active duty in Iraq, had chosen to
place his child with his mother because of his continuing military
service, and visited with his child every weekend.
Id. at ___, 625S.E.2d at 798. The trial court did not order placement with the
paternal grandmother, but rather approved of the father's decision,
in light of his military commitment, to place the child with the
grandmother.
Everette does not authorize an order under N.C. Gen.
Stat. § 7B-903 granting physical custody to a parent, but ordering
that the child will live elsewhere.
(See footnote 1)
Further, the trial court's findings of fact do not support its
conclusion that physical custody should be awarded to the mother.
N.C. Gen. Stat. § 7B-903(a)(2)(c) prohibits DSS from returning
physical custody to the parent from whose custody the child was
removed without a hearing at which the court "finds that the
juvenile will receive proper care and supervision in a safe home."
A "safe home" is defined as "[a] home in which the juvenile is not
at substantial risk of physical or emotional abuse or neglect."
N.C. Gen. Stat. § 7B-101(19). It is inconceivable that the General
Assembly would preclude DSS from restoring custody to a parent
without this judicial finding, while allowing a court to restore
custody without making the same finding. We, therefore, hold that,
prior to returning a child to the custody of a parent from whose
custody the child was originally taken, a trial court must find
that the child will receive from that parent proper care and
supervision in a safe home.
In this case, the trial court made only a single finding of
fact addressing the mother's fitness to have physical custody:"[S]ince the initial adjudication hearing the mother has had
installed an insulin pump to regulate her medical condition of
diabetes and the Court notes that there is a physical difference in
her appearance and demeanor for the betterment." Nothing in the
order addresses the conduct that resulted in an adjudication of
neglect and a determination that reunification efforts with the
mother and stepfather would "clearly be futile." The court made no
findings suggesting that the longstanding and deep-seated problems
with domestic violence between the mother and stepfather, reflected
in the court's prior orders, had been resolved.
(See footnote 2)
Indeed, the
court's attempt to place the child with the maternal grandfather
implies that it did not think the mother could provide "proper care
and supervision in a safe home."
We also note that the trial court made only one finding of
fact regarding why it was not in the best interests of the child
for physical custody to be continued with her father: "The minor
child is not totally happy in her current physical residence; the
minor child missed her animals, her mother, her grandfather, and
[the stepfather]; and the minor child is glad that her biological
father is in her life now." This finding is not, standing alone,
sufficient. It reflects no specific problem with the current
physical residence. And, the fact that, along with missing her
grandfather and animals, the child misses the two people who wereadjudicated to have neglected her, can hardly support a finding
that it is not in her best interests for custody to remain with her
father.
It appears from the transcript that the principal basis for
the change in custody was the fact that the father was unmarried.
Such reasoning was explicitly rejected by the United States Supreme
Court in 1972. In
Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d
551, 92 S. Ct. 1208 (1972), the Court held that Illinois could not
automatically consider a father unfit as a parent by virtue of the
fact that he was not married; rather, individualized findings of
unfitness must be made. The Court wrote:
It may be, as the State insists, that
most unmarried fathers are unsuitable and
neglectful parents. It may also be that
Stanley [the father in this case] is such a
parent and that his children should be placed
in other hands. But all unmarried fathers are
not in this category; some are wholly suited
to have custody of their children. . . .
[N]othing in this record indicates that
Stanley is or has been a neglectful father who
has not cared for his children. Given the
opportunity to make his case, Stanley may have
been seen to be deserving of custody of his
offspring.
Id. at 654-55, 31 L. Ed. 2d at 560-61, 92 S. Ct. at 1214.
See
also, e.g.,
Davis v. Davis, 78 Ariz. 174, 178, 277 P.2d 261, 264
(1954) ("That Mrs. Davis has remarried does not automatically mean
that Mr. Davis' bachelor residence is unfit. A showing of unfitness
must be made _ which we fail to find.");
In re Guardianship of
Cameron D., 14 Neb. App. 276, 706 N.W.2d 586, 593_94 (2005) ("We
find that the evidence of [the mother's] relationship or marital
status does not support a finding that [the mother] is unfit toperform the duties imposed by her parental relationship. . . .
[There is] merit to [the mother]'s assertion that the court erred
in determining that [the mother] is unfit by reason of her
[non-marital] relationship or living arrangement.").
In sum, we hold that the trial court's conclusion of law that
it is in the child's best interest to place her in the primary
physical custody of her mother is unsupported by the findings of
fact. Further, the disposition ordered by the trial court is not
a disposition authorized by statute. We, therefore, reverse and
remand for further proceedings in accordance with this opinion.
Reversed and remanded.
Judges McGEE and CALABRIA concur.
Footnote: 1