custody given to nancy's family

[SleuthyGal]

I still think it is going to be hard to prove she did not leave the house. The ME's in this case have a very hard job, the burden of many proofs will lay on them. I understand the body was in awful condition and that makes it difficult to determine if there were any struggles or bruises that were indicative of a struggle of some sort. I am not convinced of BC's innocence, the opposite in fact, but I do wholly believe that if he did it, he did not act alone, someone helped him, IMHO.

Did you see the list of items seized from the search warrants? This list is in the legal docs section. If there is any forensic evidence from inside the house, that will tell the story, at least to some degree. They also removed a pair of blue/gray running shoes (we don't know whose, but we think they are Nancy's). They took a pretty long list of items and we do not know what the tests reveal, if anything. Is it possible to totally clean a murder scene and transport vehicle such that no evidence can ever be found? Possible, but not probable; the tests get ever more precise.

 

[justthinking2008]

Yes I have seen the list of items taken in the SW, but I am not sure anything has been determined from these items. For example, I have a rug in bedroom at one time or another I am sure I have cried, sneezed, bled, lost nails, and maybe even something more gross, who knows. So it would be difficult to say without any reasonable doubt that whatever is found on the items removed her home happened the night she may or may not have been killed there. As far as hair in the lid of the trunk, I have on more than one occasion hit my head on the trunk lid while removing groceries or other items from the trunk. The unfortunate thing for NC is that she had Crohn's disease, she could have lost control of herself in a car as well, that is not unusual for people with Crohn's, my mother had it, I know. As I said earlier, forensics has one heck of a hard job ahead of them. If BC did this I want him in jail, I want the girls in Canada, I just hope for the sake of everyone involved some sort of resolution comes, and comes quickly.

 

[ncsu95]

Yes I have seen the list of items taken in the SW, but I am not sure anything has been determined from these items. For example, I have a rug in bedroom at one time or another I am sure I have cried, sneezed, bled, lost nails, and maybe even something more gross, who knows. So it would be difficult to say without any reasonable doubt that whatever is found on the items removed her home happened the night she may or may not have been killed there. As far as hair in the lid of the trunk, I have on more than one occasion hit my head on the trunk lid while removing groceries or other items from the trunk. The unfortunate thing for NC is that she had Crohn's disease, she could have lost control of herself in a car as well, that is not unusual for people with Crohn's, my mother had it, I know. As I said earlier, forensics has one heck of a hard job ahead of them. If BC did this I want him in jail, I want the girls in Canada, I just hope for the sake of everyone involved some sort of resolution comes, and comes quickly.

Is this a case of to much information, cause I'm thinking :Banane59:



(just kidding, I just love that emoticon).

 

[gritguy]

Where does this come from? This is not how I read state statutes or decisions of the NC Supreme Court. Someone (usually the state through DSS) has to prove abuse, neglect, or abandonment with clear and convincing evidence. Only after such a finding is adjudicated does the court consider the best interests of the children in the dispositional phase, which may be to remain with the parent(s) despite abuse, neglect, or abandonment.

Woe to all parents if the state can start deciding what is best for children without first proving an unfit parent.

I just spent a little time reading Adams v. Tessener, and I think your statement is correct. Reading it toward the present case (removal to non-parent custody when a parent is available) a standard "best interests of the child" test cannot be used absent a finding that the parent is unfit or in some way acted inconsistently with his constitutional parental rights (the weight is heavier than the presumption I stated and there must indeed be the finding as you state).

Here is what the North Carolina Supreme Court said:

"Petersen and Price, when read together, protect a natural parent's paramount constitutional right to custody and control of his or her children. The Due Process Clause ensures that the government cannot unconstitutionally infringe upon a parent's paramount right to custody solely to obtain a better result for the child. See Troxel, 530 U.S. at 72-73, 147 L. Ed. 2d at 61 (“the Due Process Clause does not permit a tate to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better' decision could be made”). As a result, the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody, see Jolly v. Queen, 264 N.C. 711, 715-16, 142 S.E.2d 592, 596 (1965), or where the parent's conduct is inconsistent with his or her constitutionally protected status"

I learn something every day. Unfortunately, I forget about two things a day. I'll try to read the cases first before making any more generalized statements about the law!

Anyway, this standard certainly seems fair, and it will be interesting to see how the order reads.

 

[justthinking2008]

Is this a case of to much information, cause I'm thinking :Banane59:



(just kidding, I just love that emoticon).

TMI Maybe

Point I was trying to make is the items removed from her home may or may not prove anything, because anything can happen in your home, things you may not want to talk about, YKWIM.

 

[maconrich]

Those points you and others are making are powerful. But don't forget that the custody case is not decided only on the rights of the parents or grandparents in this case, but also the constitutional rights of the girls. In this case, the judge evaluates the trinity of interests, and they should flow in this priority 1) best interests of the children 2) parent 3) grandparents.

Now, I don't know what the basis for the decision is, and the reluctance to take children away from natural parents should be high (due to the presumption that living with natural parents or a parent is usually in the best interest of the child and also the rights of the parent), but I think it is too early to say the judge made a mistake.

The girls' constitutional rights and welfare are at stake, and some evidence convinced the judge that removal outweighed the ordinary and real benefit of a child living with the natural parent. What that evidence is will be known soon.

:bow:

 

[Star12]

I don't remember anyone saying that BC was an unfit parent. This was not a hearing to terminate parental rights. I did hear Wade Smith say that there was a lot of detail that still had to go into the Order - such as visitation. Visitation is a form of custody. BC is still the father, and he still can have vital input into the lives of Bella and Katie. That's Freedom.

And BC's life has not been taken from him. BC is not in jail, so his liberty is not in question. And property? No property has been taken from him. Well, maybe some possible evidence was taken, but that was taken under due process via the sw. That's Freedom.

No one from LE to the court system is acting in any way prejudicial to BC. The authorities are acting in a methodical, careful manner to make sure that BC's rights are preserved. One life has been lost, by whose hand and for what reason we do not fully know. Our laws, and human decency, say that one person does not have the right to take another person's life. There are also laws preserving personal rights as well. That's Freedom.

And the lives of innocent children should be protected and nurtured and loved unconditionally. And they should be allowed to grow and develop and expand their hearts and minds in safety and appropriately. That's Freedom.

As long as BC is under a cloud of suspicion, as long as he is working his job and trying to work with his attorneys, as long as he is preoccupied with his personal situation (whether or not he is involved in Nancy's death and whether or not any of the other allegations are true) should his children be deprived of their Freedom to grow and live in a situation where their needs can be taken care of consistently, and where they will have an extended family with which they can interact and cherish and be cherished?

 

[Maja]

Wrong. The preponderance of the evidence (i.e., more likely than not) standard is not the standard for this custody case. The standard is clear and convincing evidence, which is a higher standard. The plaintiff has to show through clear and convincing evidence that BC either abused, neglected, or abandoned his children. Abuse might be shown if there is a substantial risk to their safety.

I didn't see evidence to convince me of this. I'm waiting to read what the judge found to be clear and convincing.

I was of the understanding the standard for determination of custody is the "best interest of the child" standard.

When a husband and/or wife verbally or physically abuses the other and the children are exposed, is it possible for that to be considered neglect or abuse?

 

[boxy]

I just spent a little time reading Adams v. Tessener, and I think your statement is correct. Reading it toward the present case (removal to non-parent custody when a parent is available) a standard "best interests of the child" test cannot be used absent a finding that the parent is unfit or in some way acted inconsistently with his constitutional parental rights (the weight is heavier than the presumption I stated and there must indeed be the finding as you state).

Here is what the North Carolina Supreme Court said:

"Petersen and Price, when read together, protect a natural parent's paramount constitutional right to custody and control of his or her children. The Due Process Clause ensures that the government cannot unconstitutionally infringe upon a parent's paramount right to custody solely to obtain a better result for the child. See Troxel, 530 U.S. at 72-73, 147 L. Ed. 2d at 61 (“the Due Process Clause does not permit a tate to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better' decision could be made&#8221. As a result, the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody, see Jolly v. Queen, 264 N.C. 711, 715-16, 142 S.E.2d 592, 596 (1965), or where the parent's conduct is inconsistent with his or her constitutionally protected status"

I learn something every day. Unfortunately, I forget about two things a day. I'll try to read the cases first before making any more generalized statements about the law!

Anyway, this standard certainly seems fair, and it will be interesting to see how the order reads.

I thought this section from the Adams v Tessener decision is also illustrative of the well established judicial principle that the natural parent is presumed to be fit unless proved otherwise.

This Court has recognized that the protection of the family unit is guaranteed by the Ninth and Fourteenth Amendments to the United States Constitution. Petersen v. Rogers, 337 N.C. 397, 401, 445 S.E.2d 901, 903 (1994). The United States Supreme Court has recently reaffirmed that a parent enjoys a fundamental right “to make decisions concerning the care, custody, and control” of his or her children under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000). In Troxel, the United States Supreme Court held that a fit parent is presumed to act in the child's best interest and that there is “normally . . . no reason for the tate to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.” Id. at 68-69, 147 L. Ed. 2d at 58. Similarly, this Court has enunciated the fundamental principle that “absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail.” Petersen, 337 N.C. at 403-04, 445 S.E.2d at 905.
We further elaborated on this principle in Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997). In Price, the defendant gave birth to a child out of wedlock and represented that the plaintiff was the father. Id. at 70-71, 484 S.E.2d at529. When the defendant and the plaintiff separated, the child remained in the plaintiff's physical custody for approximately six additional years. Id. at 71, 484 S.E.2d at 529-30. A court- ordered blood test ultimately excluded the plaintiff as the biological father of the child. Id.
The trial court concluded that both the plaintiff and the defendant were fit and proper to have custody of the child. Id. at 71, 484 S.E.2d at 530. The trial court then determined that the child's best interests would be served by granting primary custody to the plaintiff. Id. The trial court stated, however, that it was precluded from granting custody to the plaintiff under Petersen. Id. Accordingly, the trial court granted custody to the defendant. Id. The Court of Appeals affirmed the custody award. Id. at 71-72, 484 S.E.2d at 530.

 

[Maja]

If your confidential informants have this much strong evidence, may I humbly suggest you contact LE and give them this information so we may arrest the perp. I do not know if BC is guilty or not, believing testimony from eyewitness who claims to have seen NC that morning running, it would make it almost impossible to believe he committed the crime. If he is to be arrested it must be proven beyone the shadow of a doubt that NC never left the house that morning, and I think that is going to be tough.

Even if NC did leave the house that morning, there was a LONG time between 7:00 AM - 1:30 PM, even with the "alleged" morning run.

 

[boxy]

I don't remember anyone saying that BC was an unfit parent.

BC either has to be an unfit parent or act in a manner inconsistent with his constitutionally-protected role as parent for him to not retain custody. In the ex parte order, Sasser indicated the latter but based that decision on facts that we now know are not true.

I did hear Wade Smith say that there was a lot of detail that still had to go into the Order - such as visitation. Visitation is a form of custody. BC is still the father, and he still can have vital input into the lives of Bella and Katie. That's Freedom.

Visitation is not custody. Visitation is just that, visiting. BC can not say where his children will live, where they will go to school, what they should eat, what church they will attend, how they should be disciplined, or any other decision that parents make. At least temporarily, he has none of the rights of a parent.

As long as BC is under a cloud of suspicion, as long as he is working his job and trying to work with his attorneys, as long as he is preoccupied with his personal situation (whether or not he is involved in Nancy's death and whether or not any of the other allegations are true) should his children be deprived of their Freedom to grow and live in a situation where their needs can be taken care of consistently, and where they will have an extended family with which they can interact and cherish and be cherished?

Freedom includes the rule of law. Under the laws of North Carolina and the US, none of the things you mention in this paragraph are sufficient to remove a child, even temporarily, from the custody of a natural parent.

 

[boxy]

I was of the understanding the standard for determination of custody is the "best interest of the child" standard.

That is not my understanding at all. There are two parts to a custody decision. In the first part, called adjudication, a decision is made as to whether there is a reason to remove a child from his/her current custody. I've posted references to statutes and case law listing the possible reasons and "the best interests of the child" are not among them. Gritguy and I have posted from another NC Supreme Court case here again showing that first someone must show the parent is unfit or acting in a manner inconsistent with their constitutionally protected status as a parent.

The second part, called disposition, follows if there is such a finding. In the dispositional stage the best interests of the child are considered.

When a husband and/or wife verbally or physically abuses the other and the children are exposed, is it possible for that to be considered neglect or abuse?

I think this could qualify as an unfit parent, at least the physical abuse part, but I haven't researched that question so don't quote me.

 

[boxy]

I was of the understanding the standard for determination of custody is the "best interest of the child" standard.

When a husband and/or wife verbally or physically abuses the other and the children are exposed, is it possible for that to be considered neglect or abuse?

More from Adams v Tessener

“that the Due Process Clause would be offended 'f a tate were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.' Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 53 L. Ed. 2d 14, [46-47 (1977)] (Stewart, J., concurring in judgment).”

 

[TXredhead178]

To our knowledge, nothing in the original ex-parte emergency order said anything about either of the kids overhearing anything in the house that night/morning. And it does not appear that this is a reason for the temp custody being extended. There was a lot of stuff for the judge to work with, aside from speculating what the kids may have heard on 7/12.

Thanks for the welcome, SleuthyGal!

Yes, I agree there are many things for the judge to work with. I believe it was one of the plaintiffs' pleadings that raised the issue of the girls' ability to feel speak freely about that day, if indeed there's anything to talk about.

I think this issue was raised more in the context of the girls' emotional well-being. I guess it always stood out to me because the thought of BC murdering NC in their home as their little girls slept is so very disturbing. I have to wonder why both girls reportedly seem anxious whenever they speak with their father now via videoconference.

Just more food for thought, I suppose. I really appreciate the intelligent level of discussion on this forum and look forward to reading more posts.

 

[cygnusx1]

I have to wonder why both girls reportedly seem anxious whenever they speak with their father now via videoconference.

Because they are young and they have been away from him for so long he is starting to fade from their memories and it is also an artificial environment.

 

[garner_nc]

I can see why the kids do not want to talk especially when they have not seen their father in months. I'm sure talking to him is a pain when they have all these new toys and environment to play in. Kid in the candy store...Would you want to talk on the webcam or play with a baby-doll....A baby doll is more important to a young child. I'm sure if BC was in the same room with them, they would be in his arms and wanting to go home with him. To those kids, they have lost both of their parents. Do you really think they comprehend daddy on the webcam thing...I have a hard enough time getting my 3 yr old to talk on the phone.

 

[justthinking2008]

Garner,

I have thought about this as well. I can remember as a child going to stay with my aunt, who had no children and was extremely indulgent with me, I did not want to go home to my parents. I wanted to stay with her and my uncle get and play with new toys, go to McDonald's, the park etc, I did not even want to talk to my parents on the phone, so what you are saying is very plausible.

 

[TXredhead178]

Because they are young and they have been away from him for so long he is starting to fade from their memories and it is also an artificial environment.

Possibly, but in my own experience (when my ex-spouse and I lived 1,200 miles apart, my youngest child was about the same age as the C's oldest daughter, and we used videoconferencing to bridge the gaps in parenting time), I don't recall any time that my children were ever anxious about speaking with either my ex-spouse or me over that medium -- even with the emotional trauma of the divorce. I doubt that BC is fading from his children's memories, especially with other forms of contact that have been ongoing. Not sure what is meant by "artificial enviornmnent," but from what I've read it does seem that KL & JL are doing everything they can to make this situation easier on the children, including counseling for all concerned. It sounds like a stable, though at least initially, less familiar, environment for the children.

It will be interesting to see how, if at all, the judge's review of the videotaped phone conferences between the children and the father, has informed her decision to continue the temporary custodial arrangements.

 

[reddress58]

Possibly, but in my own experience (when my ex-spouse and I lived 1,200 miles apart, my youngest child was about the same age as the C's oldest daughter, and we used videoconferencing to bridge the gaps in parenting time), I don't recall any time that my children were ever anxious about speaking with either my ex-spouse or me over that medium -- even with the emotional trauma of the divorce. I doubt that BC is fading from his children's memories, especially with other forms of contact that have been ongoing. Not sure what is meant by "artificial enviornmnent," but from what I've read it does seem that KL & JL are doing everything they can to make this situation easier on the children, including counseling for all concerned. It sounds like a stable, though at least initially, less familiar, environment for the children.

It will be interesting to see how, if at all, the judge's review of the videotaped phone conferences between the children and the father, has informed her decision to continue the temporary custodial arrangements.

Unless BC dresses as Big Bird, I'm not the least surprised he can't keep the girls' attention for 15 minutes straight. Don't think video conferencing with a live human being is age-appropriate for them.

ETA: Not taking away from your own child. She may be exceptional.

 

[cygnusx1]

Not sure what is meant by "artificial enviornmnent," ...

I meant that the web-cam is an artificial environment for him to interact with his kids.