In re H.S.F.

• Decision Date: 18 April 2006
• Docket Number: No. COA05-1157.,COA05-1157.
• Court: North Carolina Court of Appeals
• Parties: In the Matter of H.S.F., Minor Child.

628 S.E.2d 416

In the Matter of H.S.F., Minor Child.

No. COA05-1157.

Court of Appeals of North Carolina.

April 18, 2006.

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., Shelby, for petitioner-appellee.

Rebekah W. Davis, Raleigh, 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 of domestic 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 mother and 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., ___ 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 resolution of 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 custody back 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 visit with 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

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...