Matter of Shue ( 1984 )

Justice MEYER

concurring in result.

I concur in the result reached by the majority. I desire to add the following: The facts of this case represent an unusual and complex hybrid situation not easily reconciled under either our North Carolina Juvenile Code or under our Domestic Relations statutes. It is a case involving a custody dispute between the two natural parents of a neglected child. Temporary placements of néglected children are made pursuant to the North Carolina Juvenile Code, particularly G.S. § 7A-516, -640, -646, -647 and -657 (1981). Custody contests between natural parents are determined in a custody proceeding pursuant to G.S. § 50-13.1, et seq.

By failing to recognize the unusual nature of the facts so presented, the majority has fashioned a confusing remedy which serves to cloud the distinction between temporary placement proceedings and the Juvenile Code, and custody proceedings between parents.

In order to support its analysis under the North Carolina Juvenile Code, the majority opinion treats the natural father here as if he were a non-parent. The majority’s reasoning throughout the opinion is valid only if the father is so treated.

I would submit that the more appropriate approach under these facts would be to admit of an unusual situation and fashion a remedy to meet the exigency.

Here, when the DSS placed temporary custody in the natural father and the father sought permanent custody, the proceeding should have been converted to a Chapter 50 proceeding upon proper notice to the parties. This could have been done upon motion of the father or by the trial judge ex mero motu. Or, under G.S. § 7A-657 the trial judge could have perhaps terminated the temporary placement hearings and awarded custody to the father. That statute specifically so provides.