Matter of Shue

303 S.E.2d 636, 63 N.C. App. 76, 1983 N.C. App. LEXIS 3017
CourtCourt of Appeals of North Carolina
DecidedJuly 5, 1983
Docket8226DC132
StatusPublished
Cited by12 cases

This text of 303 S.E.2d 636 (Matter of Shue) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Shue, 303 S.E.2d 636, 63 N.C. App. 76, 1983 N.C. App. LEXIS 3017 (N.C. Ct. App. 1983).

Opinions

[77]*77BECTON, Judge.

This case involves a “neglected child” as defined by N.C. Gen. Stat. § 7A-278(4) (1979), repealed by 1979 N.C. Sess. Laws c. 815 § 1, replaced by N.C. Gen. Stat. § 7A-517Í22) (1981). Following an adjudicatory hearing in October 1979 and dispositional hearings in December 1979 and February 1980, a review hearing was held on 8 June 1981 in the Mecklenburg County District Court. After hearing evidence and after considering psychiatric evaluation reports and home studies done by the Mecklenburg County Department of Social Services (DSS), the trial court entered an order granting custody of the child to Roy Shue, the child’s father. The mother, Omega Lee James, appeals from the order granting custody to Roy Shue.

I

Procedural History

On 20 September 1979, DSS filed a juvenile petition alleging physical abuse of Loretta Shue, age three years. Following an adjudicatory hearing on 22 October 1979, the trial court determined that Loretta had suffered a nearly fatal head injury which was not an accident but was the result of an assault upon the child by either the mother or the mother’s boyfriend. The trial court granted DSS custody pending final disposition.

On 7 November 1979, Roy Shue filed a motion in which he acknowledged that he was the natural father of Loretta and requested that he be given custody of the child. At the first disposi-tional hearing on 28 December 1979, the evidence disclosed that Roy and Marilyn Shue were married in 1967. It was the second marriage for both. Mrs. Shue had three children by a previous marriage, one of whom is Omega Lee, the mother of Loretta. In April or May 1975, the Shues separated; they reconciled in June 1978 and have lived together since that time. During the time they were separated, Omega lived with Mr. Shue who fathered her child, Loretta. Upon hearing this and other evidence, the trial court ordered that psychological evaluations be done of Mr. and Mrs. Shue, and that custody remain with DSS.

The second dispositional hearing was concluded on 8 February 1980, and the trial court entered an order directing that DSS retain legal custody of the child, but ordering trial placement [78]*78for a year with Mr. and Mrs. Shue. At a review hearing on 8 June 1981, the trial court considered psychiatric evaluation reports and home studies done by DSS of the father’s household and the mother’s household, both of which recommended that custody remain with the father since the child had adjusted well and it was important that the child have stability in her life. The trial court then stated that, unless the mother could prove that the child was not being properly cared for by the Shues, it would be in the child’s best interest to remain where she had lived for a year and a half. Counsel for the mother moved for a mistrial on the grounds that the trial court had formed an opinion without hearing all the evidence. The court, however, denied the motion and, without hearing all of the evidence tendered by counsel for the mother, entered an order granting custody of the child to the father. The mother was given liberal visitation rights.

II

Analysis

Although the mother-appellant makes 29 separate arguments on appeal, the essential, ultimate and dispositive issue to be resolved is whether the trial court erroneously awarded custody of the minor child to Roy Shue, who acknowledged that he was the child’s father. To resolve that issue, we must consider some of the assignments of error relating to evidentiary matters, conclusions of law, and the denial of the mother’s motion for mistrial. Because we hold that the trial court imposed an erroneous burden of proof on the mother and further erred by not considering all of the evidence in determining what was in the best interest of the child, it is not necessary to address all of the remaining assignments of error.

A. Evidentiary Matters and Burden of Proof

Contending that the trial court had no evidentiary basis to support its order awarding custody to Roy Shue, the mother specifically argues the following:

(i) The trial court erred in its reliance upon DSS reports because the reports contained hearsay and other objectionable matters and afforded the mother no real opportunity to cross examine one of the witnesses who prepared one of the reports;
[79]*79(ii) The trial court erred in requiring the mother to show that the father had either abused or was not appropriately caring for the child during the trial placement before the court would consider returning the child to the custody of its mother;
(iii) The trial court erroneously excluded evidence of the mother’s changed circumstances which would have shown that the child could have received proper care and supervision in her home.

We consider the mother’s arguments seriatim.

1. Non-testimonial evidence.

The written reports of social workers and psychiatrists, and other written material in the court’s file are competent evidence in a dispositional or review hearing in juvenile cases. N.C. Gen. Stat. § 7A-640 (1981) states: “The dispositional hearing may be informal, and the judge may consider written reports or other evidence concerning the needs of the juvenile.” (Emphasis added.) With regard to review hearings, N.C. Gen. Stat. § 7A-657 (1981) is even more specific: “The court shall consider information from the Department of Social Services; the juvenile court counselor, the custodian, guardian, the parent or the person standing in loco parentis, the foster-parent, the guardian ad litem; and any public or private agency which will aid it in its review.” The statutes lead to but one conclusion: In juvenile proceedings, trial courts may properly consider all written reports and materials submitted in connection with said proceedings.

2. Applicable standard and burden of proof under G.S. § 7A-657.

(a) Under the review hearing statute, G.S. § 7A-657, the trial court in this case was required to determine whether the child, previously adjudged neglected by the mother, should remain in the custody of her father, or whether the child should be placed elsewhere “as is deemed to be in the best interest of the [child].” G.S. § 7A-657(7). The trial court erred by using, in effect, a change of circumstance standard 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. Interestingly enough, the trial court did not intend, initially, to place such a burden on the mother.

[80]*80In scheduling the review hearing for 8 June 1981, Judge W. H. Bennett, Jr., by order dated 27 April 1981, stated:

(4) That the primary burden of proof, initially, paticularly because of the past history and custodial determinations in this case, shall lie with Mrs. Omega Lee James, but there shall also rest with all of the parties, including Roy Eugene Shue, the burden of proof to show the court hearing this case what is in the “best interests” of the child, with reference to custody, as more particularly set forth in G.S. § 7A-657.

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Matter of Shue
303 S.E.2d 636 (Court of Appeals of North Carolina, 1983)

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Bluebook (online)
303 S.E.2d 636, 63 N.C. App. 76, 1983 N.C. App. LEXIS 3017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-shue-ncctapp-1983.