Shue, Matter of, 366A83

• Decision Date: 28 August 1984
• Docket Number: No. 366A83,366A83
• Citation: 311 N.C. 586,319 S.E.2d 567
• Parties: In the Matter of Loretta Diane SHUE.
• Court: North Carolina Supreme Court

Page 567

319 S.E.2d 567

311 N.C. 586

In the Matter of Loretta Diane SHUE.

No. 366A83.

Supreme Court of North Carolina.

Aug. 28, 1984.

Ruff, Bond, Cobb, Wade & McNair by Moses Luski, Charlotte, for Mecklenburg County Department of Social Services, petitioner-appellant.

W. Thomas Ray, Guardian ad Litem, Charlotte, for Loretta Diane Shue, a Minor.

Richard F. Harris, III, Charlotte, for Omega Lee James, respondent-appellee.

FRYE, Justice.

In this case the two dispositive issues on appeal relate to the review hearing which was conducted by the trial court on 8 June 1981. The dispositive issues are whether the trial court erred by imposing an erroneous burden of proof on the mother, Omega Lee James, in her effort to regain custody of her child, Loretta Shue, and whether the trial court erred in awarding custody of Loretta Shue to Roy Shue without hearing the testimony of various witnesses who were tendered to the trial court by Omega Lee James. The Court of Appeals concluded that the trial court had erred in both respects. After carefully reviewing the record and the applicable statutes, we find that the result reached by the majority panel of the Court of Appeals was correct; however, we modify that opinion in some respects.

On 20 September 1979, the Mecklenburg County Department of Social Services (hereinafter "DSS") filed a juvenile petition in the District Court, Mecklenburg County, alleging that Loretta Diane Shue, three years of age, was a "dependent child" as defined by G.S. 7A-278(3) (1969), ¹ or in the alternative, that she was a "neglected child" as defined by G.S. 7A-278(4) (1969). ² One of the facts relied upon by DSS to support the filing of the juvenile petition was that on or about June 1979, in response to a referral from other sources, DSS discovered that Loretta Shue had "sustained serious and extensive bruises on the front of her abdomen, left side and buttocks." At that time, the mother, Omega Lee ³ explained that the child had been dropped over a hamper by her boyfriend, Tommy Boatwright. Another fact relied upon by DSS was that on 15 September 1979, Loretta Shue was admitted to Presbyterian Hospital "in an unconscious state with a black eye and was diagnosed as having a concussion and a possible bruised kidney." On this occasion, the mother stated that the child was injured when she fell out of her bed. Based upon information and belief, DSS opined that the injuries sustained by the child "were the result of either a failure to supervise or actual physical abuse of the child."

After the presentation of evidence at an adjudicatory hearing conducted on 26 September 1979 and 8 October 1979, the trial court, Judge William G. Jones presiding, determined that the head injury suffered by Loretta Shue on 15 September 1979 was not the result of an accident. Instead, Judge Jones concluded that the injuries were the result of an assault on the child by either the mother or the mother's boyfriend. Thereafter, the trial court adjudged Loretta Shue a "neglected child," and DSS was awarded temporary custody of Loretta Shue. DSS also was requested to submit to the trial court a plan "and alternative plans" for "permanent placement of Loretta Diane Shue."

Subsequently, on 7 November 1979, Roger (hereinafter "Roy") Eugene Shue filed a motion with the trial court in which he stated that he was the natural father of Loretta Shue. Additionally, he stated that it was in the best interest of Loretta Shue that she be placed in his care, custody and control.

At a dispositional hearing conducted on 8 November 1979, DSS submitted to the trial court, Judge William G. Jones presiding, a plan outlining the specific areas which had to be addressed in order for Loretta Shue to be returned to her mother's custody. At this hearing, the trial court also determined the respective amounts of child support to be paid to DSS by Omega Lee and Roy Shue. Additionally, psychological evaluations of Roy Shue, his wife, Marilyn Shue, and Omega Lee were ordered. If deemed appropriate by the psychiatrist, Loretta Shue was also to be examined.

On 28 December 1979 another dispositional hearing was held. At this hearing, the evidence disclosed that Roy and Marilyn Shue were married in February 1967. It was the second marriage for both. Mrs. Shue had three children from a previous marriage, one of whom is Omega Lee, the mother of Loretta Shue. In April or May 1975, Roy and Marilyn Shue separated. In June 1978, the Shue's reconciled and re-established their marriage. They have lived together since that time. During the time that Roy and Marilyn Shue were separated, Omega Lee continued to live with Roy Shue. It was during this interval that Roy Shue fathered Omega's child, Loretta. After hearing the above evidence and other evidence, the trial court noted that the psychological evaluations of Mr. and Mrs. Roy Shue failed to answer several questions which it considered crucial in order to make a final disposition. Therefore, the trial court ordered that certain specific questions had to be answered by the psychiatrist before any disposition could be made. Custody of Loretta Shue was ordered to remain with DSS.

On 8 February 1980, at the conclusion of the dispositional hearing, the trial court, Judge William G. Jones presiding, entered a Dispositional Order directing that DSS retain legal custody of the child but further directing that Loretta Shue shall "be placed in trial placement with Mr. & Mrs. Roy Eugene Shue," for one year. Visitation rights were granted to the mother.

At the review hearing held on 8 June 1981, the trial court considered various psychiatric evaluation reports and home studies done by DSS of the putative father's household and the mother's new household, which was set up after her marriage. Both studies recommended that custody of Loretta Shue remain with her father since she had adjusted well and it was important that she have stability in her life. However, after considering the above evidence and listening to the testimony of Omega Lee James, Roy Shue, and Dr. Edward C. Holscher, the psychiatrist, who examined Roy and Marilyn Shue and Loretta Shue, the trial court limited Mrs. Omega James to one hour to present additional evidence. Additionally, the trial court stated:

I think that unless Mrs. James is able to prove that Omega [sic] is being inappropriately cared for by the Shues that it would be in Loretta's best interest to remain with them because that's where she's lived for the last year and a half, because she is with one of her natural parents, and because she was removed from Mrs. Jame's [sic] custody and placed there on account of Mrs. James's [sic] own action or inaction, as the case may be, under circumstances that threatened her child's life.

At that time, the attorney for Mrs. Omega James moved for a mistrial on the ground that the trial court had formed an opinion without hearing all the evidence. This motion was denied by the trial court. Thereafter, without hearing all of the evidence tendered by counsel for Mrs. James, the trial court entered an order granting "full legal and physical care, custody and control" of Loretta Shue to Roy Shue. Mrs. James was given visitation rights.

On appeal, the Court of Appeals held that the trial court erred by using, "in effect, a change of circumstance standard" in the instant case and by "requiring the mother to show that it was not in the child's best interest for the child to stay with the father." The Court of Appeals also held that the trial court erred by making its custody decision before hearing all of the evidence which was tendered by the mother.

Other facts necessary to determine the issues raised on appeal will be incorporated in this opinion.

II.

At the review hearing, which is mandated by G.S. 7A-657 (1981), and which was conducted on 8 June 1981, Mrs. Omega James was attempting to present evidence to the trial court which would convince the trial court that it was in the best interest of Loretta Shue that custody be restored to her. After hearing the testimony of Mrs. Omega James and Dr. Edward Holscher, a psychiatrist, the trial court announced an hour recess and stated the following:

COURT: This is a Review hearing, and I have read and considered the report prepared by Dr. Holscher and dated on May 28th or whatever it was and that, in addition to that, I've heard testimony from him and he has been examined and cross-examined by all parties; and that I've heard Mrs. James's [sic] testimony; that I've read the report prepared by Ms. Patterson and dated February, and if I understand correctly that's still the Department's position, and the report attached to that report from the Department of Social Services in Cabarrus County, including the Affidavit by whatever her name was, regarding the marks on the child's buttocks and that I've read the report from the Cherokee County Department of Social Services regarding the James' residence; and that I am willing to have you, Mr. Harris, present whatever evidence you care to present, either through live testimony of witnesses or through your own statements summarizing what their testimony would be; and I'm willing to give an additional hour in which to do that; and, as far as I think the Statute requires me to base the decision I have to make on the best interest of the child, but I want to express the preliminary opinion that I think that unless Mrs. James is able to prove that Omega [sic] is being inappropriately cared for by the Shues that it would be in Loretta's best interest to remain with them because that's where she's lived for the last year and a half, because she is with one of her natural parents, and because she was removed from Mrs James's [sic] custody and placed there on account of Mrs. James's [sic] own action or inaction, as the case may be, under circumstances that threatened her child's life. I think that I tried to carefully say what I feel about it, and I think...