In re Williamson

PHILLIPS, Judge.

When this case was last here, In re Williamson, 67 N.C. App. 184, 312 S.E. 2d 239 (1984), it was intimated that the various orders issued by the court below after appeal was taken were without either authority or effect because of the “long standing general rule that an appeal removes a case from the jurisdiction of the trial court. . . .” Bowen v. Hodge Motor Co., 292 N.C. 633, 635, 234 S.E. 2d 748, 749 (1977). Whether this case is governed by the general rule —(or by G.S. 7A-668, which authorizes the trial judge pending the appeal of a juvenile case “[f]or compelling reasons . . . [to] enter a temporary order affecting the custody or placement of the juvenile” when the best interest of the juvenile or the state so requires) — need not be determined, however, because we prefer to decide the other questions that the appeal raises on their merit, lest they be the subject of still more motions, hearings and orders in the court below, of which there has already been a surfeit.

The main question that the appeal raises is whether the order transferring custody of the child from the Clarks to the Britts is supported by evidence and findings that circumstances had substantially changed since the child was placed with the Clarks. It is fundamental that before an order may be entered modifying a custody decree that there must be a finding of fact of changed conditions. This is because:

A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order.

Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E. 2d 357, 361 (1968). No such finding was made here by the trial court and if such a finding had been made there is nothing in the record to support it. The court in its order merely stated that it had “conducted reviews” and “received additional evidence concerning matters and things which have occurred and transpired requiring the Court to reexamine the ‘Special Considerations’ [of the 10 September 1983 order] and also to consider additional factors. . . .” But the additional reviews conducted were of matters that existed when the first determination was made and the “additional factors” listed by the trial court either are not supported by competent evidence or concern facts or conditions that existed when custody was awarded to the Clarks, and have not changed since then. The only purported fact found by the court that did not exist in September 1983 when the child was placed with the Clarks was their inability or unwillingness to cooperate in the visitations of the Britts —a minor matter, in our view, that does not bear materially on the child’s welfare. Even so, the finding is unsupported by evidénce. The court’s ex parte order filed 16 December 1983 directing further visitations found that the visitations already made had “been satisfactorily carried out” and the record indicates the court’s conditions in regard to those visits were fully met by both parties. That the visitation preemptorily ordered on 16 December 1983 for the next day was not carried out is irrelevant, as the court later recognized, since the Clarks had no notice of the court’s order.

But the other circumstances that were deemed to support a change of custody had not changed since custody was given to the Clarks several months earlier; the only change was in the court’s evaluation of them. At both times the Britts were close blood relatives of the child and lived in Columbus County where it is generally known that the child’s father murdered her mother. At both times the child’s father, Mrs. Britt’s brother, was in prison and the likelihood of him being a disruptive influence upon his eventual release from prison if she is then living with the Britts was the same. At both times it was important for the child to maintain contact with her two half-sisters, who would not visit her if she was living with the Britts, but do visit her at the Clarks. And both times it was of paramount importance that the child have a permanent, stable, tension free home environment. When these matters were first considered the court soundly and necessarily concluded, it seems to us, that the best interests of the child required that she not be placed “in the same community wherein those tragic events . . . occurred,” and the Clarks were made both custodians and legal guardians of the child because they were deemed capable of establishing and maintaining “a cordial and stable relationship” with the child and her half-sisters and of dealing “with the problems which might arise in the event Charles Fred Williamson is released from custody and seeks to establish some relationship with his child.” Yet when these same concerns or circumstances were reconsidered a few months later, even though the child had “received excellent care” at the hands of the Clarks during the interim, as the court found and all the evidence shows, and even though it was recognized that taking the child from the Clarks “would cause considerable emotional trauma to the child for the immediate short term,” the court concluded that it would be in the “permanent best interest of the child” to return her to Columbus County in the custody of the Britts. The only bases stated for this step, and the record suggests no others, are the court’s assumptions that some years from now after he is paroled from prison the child’s father will assert his parental right to custody, and that placing the child with the Britts “would probably result in a permanent placement with blood relatives.” (Emphasis by the trial court.) Manifestly, these conditions do not now exist and are therefore no basis whatever for the order entered, since a change of custody must be based upon conditions that exist at the time, rather than upon conditions that it is assumed will exist at some future time. Stanback v. Stanback, 266 N.C. 72, 145 S.E. 2d 332 (1965).

But even apart from their anticipatory nature the purported findings do not support the court’s conclusion that changing custody to the Britts would be in the child’s best interests. Circumstances determine custody cases as all others. There is nothing miraculous about the blood of close relatives and being reared by them is not necessarily beneficial to children either in the long or short run; and though cultivating family ties and tradition is usually wise and a stabilizing blessing to children, under some circumstances it could be an overwhelming burden that it would be folly to incur. In the context of the circumstances of this case, there is simply no basis at all for concluding that this child’s best interests would be served by requiring her to live with people who will be a daily reminder of her mother’s murder. Furthermore, the child’s family heritage is not limited to the paternal line; she has other family ties and traditions, which are free of any burdensome taint, that are being strengthened under the order first entered.

The other important question raised by this appeal is whether the order removing the Clarks as legal guardians of the child’s person and appointing the Britts in their stead is also invalid. It is invalid, though not for precisely the same reason as the custody order. A legal guardian of a child’s person, unlike a mere custodian, is not removable for a mere change of circumstances. Unfitness or neglect of duty must be shown. G.S. 33-9. Our rule is in accord with the general American rule on this point. See, 39 Am. Jur. 2d Guardian and Ward Secs. 57, 58 (1968). A guardian “may not be removed at the mere caprice of the court or the complaining party.” 39 C.J.S. Guardian and Ward Sec. 42, p. 84 (1976). Since there was no showing, and the court did not find, that the guardians had either neglected their guardianship duties or were unfit to continue serving in that capacity, the order of removal cannot stand.

Thus, we vacate the order entered on 24 January 1984 and also the orders entered to implement it on 16 March 1984 and 21 March 1984. The ex parte order entered 16 December 1983 regarding visitations, which is now moot, is also vacated.

Vacated.

Judges Webb and Martin concur.