Baby Boy Scearce, Matter of

• Decision Date: 19 November 1983
• Citation: 345 S.E.2d 404,81 N.C.App. 531
• Court: North Carolina Court of Appeals
• Parties: In the Matter of BABY BOY SCEARCE, DOB

Page 404

345 S.E.2d 404

81 N.C.App. 531

In the Matter of BABY BOY SCEARCE, DOB; 11/19/83.

No. 8514DC755.

Court of Appeals of North Carolina.

July 1, 1986.

Thomas Russell Odom, Durham, for Dept. of Social Services, petitioner-appellant; and M. Lynette Hartsell, Durham, for Jeffrey Harmon, respondent-appellant.

Carolyn McAllaster, Durham, for Kelly and Barbara Whitman, intervenors-appellees.

N. Joanne Foil, Durham, guardian ad litem, appellee.

COZORT, Judge.

On 11 December 1984, the District Court of Durham County awarded legal custody of a 13-month-old baby boy to foster parents with whom the baby had been placed by the Durham County Division of Social Services (DSS) when the baby was two days old. DSS instituted this action in February of 1984 by filing a petition asking the court to take jurisdiction for the purposes of terminating the parental rights of the biological father, whose identity was then known only to the biological mother. The unwed 16-year-old biological mother had released the baby to DSS for adoptive placement when the baby was born. When the matter came on for hearing before the district court, DSS took the position that custody should be granted to the 18-year-old biological father who had since been identified, and, despite earlier statements and actions to the contrary, had subsequently requested custody of the baby. DSS appealed the district court's award of custody to the foster parents, alleging, inter alia, a lack of subject matter jurisdiction in the court, error in the trial court's appointing a guardian ad litem for the baby, and error in its allowing the foster parents to intervene. We affirm.

The facts presented below are taken from the detailed findings of fact entered by the district court in its Order of 31 December 1984, which took over 30 pages to reproduce in the record on appeal. No transcript of the evidence or narrative thereof was filed with this Court. Although the record on appeal contains many exceptions to the findings of fact made by the trial court, none of those have been argued in this Court as not being supported by clear, cogent and convincing evidence. Thus, we deem the facts as summarized below to be properly supported by the evidence and undisputed by the parties.

In early 1983, Dawn Scearce began dating a boy known to her as Jeffrey Brown. Dawn and Jeffrey attended junior high school in Rowan County. In the spring of 1983 Dawn became pregnant with Jeffrey's baby. When Dawn told Jeffrey she was pregnant, Jeffrey suggested she get an abortion which he would pay for. Jeffrey also informed Dawn that he could not marry her because he was planning to marry another woman by whom he had also fathered a child. Dawn attempted to get an abortion; however, her pregnancy had progressed past the first trimester, and she was unable to get an abortion.

During her pregnancy Dawn lived with her father and step-mother in Durham. Dawn and her parents approached the Durham County DSS in July of 1983 regarding the possibility of releasing the child for adoption. On 19 November 1983, Baby Boy Scearce was born in Durham County. On 21 November 1983, Dawn released Baby Boy Scearce to the Durham County DSS for adoptive placement. Prior to signing the release, Dawn expressed her concern to DSS officials that the biological father of the child or his parents should not be granted custody of Baby Boy Scearce because she did not feel that they were fit and proper individuals to have custody of the child. On 21 November 1983, Baby Boy Scearce was placed by DSS in the home of Barbara and Kelly Whitman, licensed foster parents.

On 17 February 1984, DSS instituted this action by filing a petition asking the district court to take jurisdiction over this matter for the purposes of terminating the parental rights of the then unknown father. On 17 February 1984, a guardian ad litem was appointed for Baby Boy Scearce. On 27 February 1984, Dawn appeared with her father and mother in district court and stated that she did not desire to divulge the identity of the biological father until she received the advice of counsel. On 26 March 1984, Dawn, through counsel, filed an affidavit in which she identified the child's father as "Jeff Brown." DSS officials soon learned that the boy known to Dawn as "Jeff Brown" was Jeffrey Eugene Harmon.

In early March 1984, Dawn returned to Rowan County, North Carolina, and attempted to locate Jeffrey. Dawn located Jeffrey, and he agreed to sign his consent for the release of the child to DSS. Several days later Marlene Gainey, Jeffrey's mother, informed Dawn that Jeffrey would not sign the consent to release the child for adoption because Mrs. Gainey and her husband wished to adopt the baby. Mrs. Gainey then contacted DSS and informed DSS that she was the paternal grandmother of Baby Boy Scearce and that she and her husband desired custody of the child.

On 1 May 1984, a motion in the cause was filed by Jeffrey Harmon asking the trial court to give exclusive care, custody and control of Baby Boy Scearce to him. On 10 May 1984, the guardian ad litem filed a reply to Harmon's motion in the cause and filed a counterpetition and motion. The counterpetition alleged, among other things, that Baby Boy Scearce was a dependent, neglected, and abandoned child. The guardian ad litem asked the court to deny Harmon's motion in the cause requesting custody of Baby Boy Scearce.

On 28 March 1984, the foster parents of Baby Boy Scearce filed a motion to intervene. The DSS filed an answer to the motion opposing intervention by the foster parents. On 17 April 1984 the trial court allowed the foster parents to intervene; however, on 13 July 1984, the order allowing intervention was vacated because the biological father had not been served with the motion to intervene. On 19 July 1984, after the motion to intervene had been properly served on the father, the trial court allowed the foster parents to intervene pursuant to Rule 24(b) of the North Carolina Rules of Civil Procedure.

On 19 July 1984, DSS filed a petition asking the court to award legal and physical custody of Baby Boy Scearce to his biological father, Jeffrey Harmon. On 2 October 1984, the trial of this matter began and continued intermittently for two and one-half months. On 31 December 1984 the district court entered its 30-page order awarding legal custody of Baby Boy Scearce to the foster parents, subject to Jeffrey Harmon's rights of visitation. The court made 41 findings of fact (constituting 28 pages of the record on appeal), many of which were detailed findings concerning Jeffrey Harmon's history of emotional problems and his inability to adequately and consistently provide for the child's care and supervision. The court found that Jeffrey Harmon had a long history of disruptive and inappropriate behavior in school, including suspensions for fighting and using marijuana. Records from the Rowan County Mental Health Office showed he had been referred for counselling at the age of 12 when he tried to persuade two girls to have sex with him. Harmon was once adjudicated delinquent and placed on probation for vandalism. He was belligerent and hostile and had a problem with stealing. He used marijuana and "speed" on a regular basis. Jeffrey Harmon's biological father had "washed his hands" of Jeffrey because of his inappropriate behavior. Jeffrey had left his mother's home, the home of Tim and Marlene Gainey, because his stepfather, Tim Gainey, had "beaten him to a pulp." He moved back into the Gainey home when his mother learned that Baby Boy Scearce was in the custody of Durham County DSS. Harmon has a sporadic employment history, having on at least two occasions quit full-time employment for no apparent reason. He had been fired from at least one other job and quit several other part-time jobs. Since the birth of Baby Boy Scearce, he has made sporadic support payments. He missed several scheduled visits with Baby Boy Scearce without explanation, testifying that it "caused him no concern that the child might be awakened early from his nap for a visit only to have him not appear."

The trial court further found that, at one point during Dawn's pregnancy, Jeffrey denied being the father of the baby. He offered no financial or other support during the pregnancy. Jeffrey knew the baby had been born by December of 1983, yet he made no effort to make contact with the child until after his mother called the Durham County DSS on 27 March 1984. The court found that Jeffrey was untruthful and that "he would say anything if he thought that particular statement would help convince the Court to grant him custody of Baby Boy Scearce." The court found that Jeffrey Harmon has "serious significant psychiatric problems and would not be able to adequately and consistently provide for the child's care and supervision." Harmon stated to a social worker that he did not feel that he could appropriately care for the child, and he planned to release the baby to Mr. and Mrs. Gainey so that they could adopt him.

The trial court also found that neither Jeffrey Harmon nor his mother Marlene Gainey knew where Baby Boy Scearce would sleep in the Gainey home if they were awarded custody. The Gainey home has three bedrooms, one occupied by Mr. and Mrs. Gainey, one by the two female children, and the third by three of the five male children. The two other boys slept in the small dining area of the home. Mrs. Gainey has been convicted of misdemeanor food stamp fraud and, at the time of the hearing, was under indictment for felony food stamp fraud. Mr. Gainey has been convicted of involuntary manslaughter for which he served a prison sentence.

The trial court found that Baby Boy Scearce has developed normally and is secure and happy in the Whitman home. The Whitmans expected the baby to be placed out of their home by Christmas of 1983; however, when that did not happen, the Whitmans cared for and loved the baby such that "the...