Yurek v. Shaffer

• Decision Date: 07 July 2009
• Docket Number: No. COA08-1410.,COA08-1410.
• Citation: 678 S.E.2d 738
• Parties: Robert G. YUREK and Wife, Susan G. Yurek, Plaintiffs, v. Sara Page SHAFFER and Matthew Christian Boyd, Defendants.
• Court: North Carolina Court of Appeals

678 S.E.2d 738

Robert G. YUREK and Wife, Susan G. Yurek, Plaintiffs, v. Sara Page SHAFFER and Matthew Christian Boyd, Defendants.

No. COA08-1410.

Court of Appeals of North Carolina.

July 7, 2009.

Appeal by defendants from judgment entered 6 June 2008 by Judge Charles W. Wilkinson, Jr. in Granville County District Court. Heard in the Court of Appeals 20 April 2009.

James T. Duckworth, III, Oxford, for defendant-appellant Shaffer.

Michael P. Burnette, Oxford, for plaintiff-appellees.

MARTIN, Chief Judge.

Defendant-appellant Sara Page Shaffer ("Shaffer") appeals from the trial court's 6 June 2008 denial of her Rule 60(b) motion to vacate a consent judgment entered 13 November 2006.

Shaffer and defendant Matthew Christian Boyd ("Boyd") are the natural parents of the minor child J.C.B., who was born on 26 May 2006. Shaffer, Boyd, and J.C.B. lived together in Person and Granville Counties from J.C.B.'s birth until 18 August 2006. Shaffer, who was 19 years old at the time, was dealing with substance abuse issues and was on felony probation for breaking or entering and larceny. Boyd was only 15 years old. During this period, the Person County Department of Social Services ("DSS") initiated an investigation with respect to J.C.B.

On 18 August 2006, J.C.B. went to live with Shaffer's parents, and continued living in their home until 1 November 2006. During that time, the Granville County DSS was managing the case and providing services to Shaffer, Boyd, and J.C.B. under the supervision of In Home Family Services agent Kay Putney ("Putney"). Putney went to Shaffer's parents' home to investigate and insure J.C.B.'s safety. At some point in fall 2006, Shaffer's parents approached DSS and expressed their unwillingness to maintain full-time custody of J.C.B. Putney met with Shaffer and Boyd at Boyd's parents' home, and then, on 17 October 2006, met with all of the parties at the offices of the Granville County DSS to formulate an "In Home Family Services Agreement." The following parties were present at this meeting: Shaffer, Boyd, DSS Supervisor Jonathon Cloud, Foster Care Supervisor Shelia Smith, Shaffer's sister Doris Jacobs, Boyd's mother Joyce Boyd, and Boyd's sister and brother-in-law, Susan and Robert Yurek ("plaintiffs").

The "In Home Family Services Agreement" identified domestic violence and substance abuse as behaviors of concern and listed "decide whether to place [J.C.B.] in foster care or give custody to family members Robert and Susan Yurek" as an activity of the meeting. A subsequent provision of the agreement provided that, if J.C.B.'s safety could no longer be assured, "[a] petition will be filed and the child will be placed in foster care." On 1 November 2006, the parties met in the law offices of Hopper, Hicks, & Wrenn, L.L.P., with attorney N. Kyle Hicks ("Hicks") to discuss the custody of J.C.B. Hicks was paid by and represented the interests of DSS, and also represented plaintiffs privately. Shaffer and Boyd were not represented by counsel at the time of this meeting.

On 13 November 2006, Shaffer, Boyd, and plaintiffs again met with Hicks and were presented with a complaint, summons, and consent judgment. Shaffer and Boyd signed the consent judgment without objection. That same day, plaintiffs filed a complaint for custody, alleging, inter alia, that "plaintiff, Susan Yurek is Boyd's sister, and therefore is an aunt to [J.C.B.]." The complaint also alleged that "[p]laintiffs are fit and proper persons to have custody of the minor child and have discussed the same with [Boyd and Shaffer, who] have consented to the Plaintiffs having custody of the minor child." The consent judgment was entered in Granville County District Court on 1 December 2006 and provided in part:

4. That [Boyd and Shaffer] are the biological parents of the minor child, [J.C.B.] born May 26, 2006.

. . . .

8. That the Plaintiffs are fit and proper persons to exercise the exclusive care, custody and control of the minor child, and that it is in the best interest of said minor child, and would best promote his general welfare, that his exclusive care, custody and control be granted to the Plaintiffs.

9. That the minor child, [J.C.B.], born May 26, 2006, has resided with [Boyd and Shaffer] from his date of birth up to August 17, 2006 at which time the minor child resided with the maternal grandparents. The minor child began to reside with the Plaintiffs on November 1, 2006.

10. That the Plaintiff, Robert Yurek, is employed and the Plaintiff, Susan Yurek, is a stay at home mother, and Plaintiffs have a home with sufficient space and provisions for the minor child, including the child's own bedroom, toys, clothing, food and all of the essential provisions for the minor child.

11. That the Defendants are both currently unemployed and are dealing with substance abuse issues in their own lives and not able at this time to provide for the care of the minor child.

12. That the minor child was born out of wedlock and [Boyd] has not established paternity judicially or by affidavit filed in a central registry maintained by the Department of Health and Human Services, and the father has not legitimated the minor child pursuant to the provisions of N.C.G.S. § 49-10, or filed a Petition for that specific purpose, nor has the respondent father legitimated the minor child by marriage to the mother of the minor child.

13. That [Boyd and Shaffer] have agreed to surrender custody of the minor child to Plaintiffs.

14. That the parties have agreed that [Boyd and Shaffer] will have visitation with the minor child as may be agreed upon between them.

15. That by their signature hereto [Boyd and Shaffer] have waived their rights to further answer or respond to the Complaint herein. In addition, [Boyd and Shaffer] have waived their right to be notified for hearing and consent to this Judgment being entered as soon as possible at any term of the District Court in Granville County by any District Court Judge of the 9th Judicial District.

Based upon these and other findings of fact, the district court concluded as a matter of law that the parties were properly before the district court, and that facts existed justifying the district court to assume jurisdiction to determine the custody of J.C.B. pursuant to N.C.G.S. § 50A-3. The district court further concluded that plaintiffs are fit and proper persons to exercise exclusive care, custody and control of J.C.B. and that "it is in the best interest of [J.C.B.], ... and would promote his general welfare for his exclusive care, custody and control to be granted to plaintiffs." The consent judgment was signed by plaintiffs, Shaffer, Boyd, and Hicks as counsel for plaintiffs.

On 10 May 2007, Shaffer filed a motion to vacate the consent judgment pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure, alleging that she was threatened with termination of her parental rights unless she signed the consent judgment, and that, because there were "insufficient findings of fact to support a divestiture of legal and physical custody" from Shaffer and Boyd, the district court was without jurisdiction to enter the consent judgment. Shaffer asked the district court to find that the "proceedings, procedures and representations made to the Defendant Shaffer constitute fundamental unfairness which violate her constitutionally guaranteed custodial rights as a biological mother, ... substantive (and procedural) due process rights as guaranteed by the 14th Amendment to the United States Constitution and the Constitution of the State of North Carolina, ... that Shaffer did not execute the consent judgment voluntarily, but under threat, coercion and duress," and, accordingly, to vacate the consent judgment as void as a matter of law.

On 6 June 2008, the district court entered an order denying Shaffer's motion to set aside the consent judgment pursuant to Rule 60(b). The district court found that the allegations contained in plaintiffs' complaint and the findings of fact contained in the consent judgment filed 1 December 2006 were true and accurate, and thus adopted them for purposes of the order. The district court also made the following findings of fact:

12. That [at the 17 October 2006 meeting between the parties,] the alternative given to [Shaffer] [sic] decide whether to place [J.C.B.] in foster care or give custody to [plaintiffs].

13. That the matters of [Shaffer]'s substance abuse and domestic violence was [sic] acknowledged by [Shaffer] and taken into consideration.

14. That it was agreed by all parties present that it would be in the best interests of the minor child that custody be placed with the Plaintiffs, ... rather than to begin a[DSS] Petition for Neglect and perhaps place [J.C.B.] in foster care.

15. That [DSS] agreed to effect the transfer to [plaintiffs].

16. That on the 1st day of November 2006, all parties met with and in the office of [Hicks], an attorney with 23 years of legal experience and a partner in the firm of Hopper, Hicks, & Wrenn, L.L.P.

17. That [Hicks] was paid by and represented the interests of [DSS] with the knowledge and consent of [Shaffer and Boyd]. That the Complaint and the Consent Judgment both reflect that [Hicks] also represented [plaintiffs] privately.

18. That neither [Shaffer or Boyd] was represented by counsel during either the investigatory process nor at any time during the legal proceeding.

19. That no conflict existed between any of the parties and in [sic] [Hicks] at the date the above-entitled action was begun.

20. That it was anticipated and expressed by the parties to [Shaffer and Boyd], that when issues of substance abuse and domestic violence and parental responsibility were resolved, that [Shaffer and Boyd] could petition for a change of custody.

21. That on the 13th of November, 2006 [Shaffer and Boyd] and the Plaintiffs prior to November 13, 2006, [sic] the parties again met at the office of [Hicks] and were presented with a...