Petersen v. Rogers

• Decision Date: 29 July 1994
• Docket Number: No. 427PA93,427PA93
• Citation: 337 N.C. 397,445 S.E.2d 901
• Court: North Carolina Supreme Court
• Parties: William B. PETERSEN and wife, Patricia T. Petersen v. Pamela A. ROGERS and William J. Rowe.

Page 901

445 S.E.2d 901

337 N.C. 397

William B. PETERSEN and wife, Patricia T. Petersen v. Pamela A. ROGERS and William J. Rowe.

No. 427PA93.

Supreme Court of North Carolina.

July 29, 1994.

Hassell & Baker, P.A. by Robert A. Hassell, for plaintiff-appellees.

Levine, Stewart & Davis by Donna Ambler Davis, for defendant-appellants.

PARKER, Justice.

In In re Adoption of P.E.P., 329 N.C. 692, 407 S.E.2d 505 (1991), this Court voided the adoption of the minor child whose custody is the subject of the instant case. We remanded for dismissal of the adoption proceeding, id. at 704, 407 S.E.2d at 512, subject to N.C.G.S. § 48-20(c). ¹ Placement of the child was originally made by the biological mother, defendant Rogers, with plaintiffs Petersen. Hence, after remand and notice the Orange County Department of Social Services ("DSS") commenced a juvenile proceeding in September 1991 by filing a petition for custody of the child.

In September and October 1991 the trial court entered temporary orders granting custody of the child to DSS, placing him with plaintiffs, and appointing a guardian ad litem. Contemporaneously, plaintiffs filed an action seeking custody of the child. By consent of all parties the temporary orders were continued until trial on the merits of plaintiffs' action for custody. In the meantime plaintiffs also filed in the juvenile proceeding a motion in the cause requesting custody of the child. Later plaintiffs moved that their civil action and the juvenile proceeding be consolidated, and on 7 November 1991 the trial court granted the motion.

The matters were heard beginning 12 November 1991; and on 15 November the court orally ordered return of the child to his biological parents, defendants Rogers and Rowe. By written order entered 11 December 1991 the court denied plaintiffs' request for custody and visitation.

Plaintiffs appealed, and the Court of Appeals limited its discussion to the issue of "the permissible extent of inquiry into religious practices and beliefs of the parties in a child custody proceeding." Petersen v. Rogers, 111 N.C.App. 712, 713, 433 S.E.2d 770, 772 (1993). The court found that plaintiffs' right to freedom of religion, as guaranteed by the federal and state constitutions, was violated by the trial court's extensive inquiry into plaintiffs' religion and remanded "for proceedings free from unwarranted religious inquisition into the beliefs of the parties." Id. at 725, 433 S.E.2d at 778.

Defendants appealed to this Court, contending the judgment of the Court of Appeals involved a substantial question arising under the First Amendment of the United States Constitution and Article I, § 13, of the North Carolina Constitution in that it purported "to protect the rights of religious freedom of the Plaintiffs/Appellees, yet ignores that the religious beliefs and practices of the Plaintiffs/Appellees are extremely different from the beliefs of the biological parents, the Defendants/Appellants." Defendants' second contention was that the judgment involved a substantial question arising under the First and Fourteenth Amendments and Article I, §§ 1 and 19, of the North Carolina Constitution in that it deprived defendants of their right to custody and control of their child, including control over his associations. Defendants argued that this issue, raised in the trial tribunal and in their brief in the Court of Appeals, was erroneously ignored by that court. Plaintiffs moved pursuant to Rule 14(b)(2) to dismiss the appeal for lack of a substantial constitutional question, but this Court denied the motion. Petersen v. Rogers, 335 N.C. 239, 439 S.E.2d 150 (1993). This Court also granted defendants' petition for discretionary review, id., which set forth the same contentions as the notice of appeal.

For reasons which follow, we conclude that defendants' constitutionally-protected paramount right to custody, care, and control of their child, including control over his associations, outweighed plaintiffs' interests, including their right to freedom of religion. Therefore, inquiry into plaintiffs' religious beliefs, if error, was harmless. Consequently, we reverse the decision of the Court of Appeals.

Discussing protection of the family unit, the United States Supreme Court has said:

The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S.Ct. 1110, 1113, 86 L.Ed. 1655] (1942), and "[r]ights far more precious ... than property rights," May v. Anderson, 345 U.S. 528, 533 [73 S.Ct. 840, 843, 97 L.Ed. 1221] (1953). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra [262 U.S.] at 399 the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra [316 U.S.], at 541 , and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 [85 S.Ct. 1678, 1688, 14 L.Ed.2d 510] (1965) (Goldberg, J., concurring).

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551, 558-59 (1972) (emphasis added). In Stanley, the Court found repugnant to the Due Process and Equal Protection Clauses a state's dependency proceeding in which putative fathers were presumed unfit to raise their children. The Court recognized that under Illinois law

legal custody is not parenthood or adoption. A person appointed guardian in an action for custody and control is subject to removal at any time without such cause as must be shown in a neglect proceeding against a parent. He may not take the children out of the jurisdiction without the court's approval. He may be required to report to the court as to his disposition of the children's affairs. Obviously then, even if [the putative father] were a mere step away from "custody and control," to give an unwed father only "custody and control" would still be to leave him seriously prejudiced by reason of his status.

Id. at 648-49, 92 S.Ct. at 1211, 31 L.Ed.2d at 557 (citations omitted). The Court concluded that the interest of the State in caring for children of a putative father is de minimis if the father "is shown to be a fit father." Id. at 657-58, 92 S.Ct. at 1216, 31 L.Ed.2d at 562.

Recently the Court revisited the question of parental rights, stating as follows:

"The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion--much less the sole constitutional criterion--for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. Similarly, "the best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: so long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.

Reno v. Flores, 507 U.S. 292, ----, 113 S.Ct. 1439, 1448, 123 L.Ed.2d 1, 18 (1993) (citation omitted).

North Carolina's recognition of the paramount right of parents to custody, care, and nurture of their children antedates the constitutional protections set forth in Stanley. In cases involving conflict over custody this Court has repeatedly emphasized the strength and importance of the right. In Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965), a mother and putative father disputed who should have custody of their child. The trial court found (i) both parties and their spouses were fit and suitable persons to have care and custody of the child and (ii) it was in the child's best interest that custody be awarded to his putative father for the nine months of the school year and to his mother for the other three months, with visitation privileges for each parent during the other's custody interval. On appeal, speaking for a unanimous court, Justice Sharp said as follows:

"It is well settled law in this State, and it seems to be universally so held, that the mother of an illegitimate child is its natural guardian, and, as such, has the legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child." Browning v. Humphrey, 241 N.C. 285, 287, 84 S.E.2d 917, 918 [ (1955) ]; accord, Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370 [ (1954) ]; In re Cranford, 231 N.C. 91, 56 S.E.2d 35 [ (1949) ]; In re McGraw, 228 N.C. 46, 44 S.E.2d 349 [ (1947) ]; In re Foster, 209 N.C. 489, 183 S.E. 744 [ (1936) ]; In re Shelton, 203 N.C. 75, 164 S.E. 332 [ (1932) ]; In re Jones, 153 N.C. 312, 69 S.E. 217 [ (1910) ]; 10 Am.Jur.2d, Bastards § 60 (1963); 3 Lee, North Carolina Family Law § 224 (3d ed. 1963).

Id. at 713-14, 142 S.E.2d at 595. Justice Sharp also stated that having found the mother fit, the trial court could not award custody to the putative father. Further, "[t]he mother being of good character and able to provide for her child, the finding of the judge that it is in the best interest of the child that he remain in the home of respondents for nine months during the year is not controlling." Id. at 715,...