MOTIONS

MOTION TO SET ASIDE DOMESTIC VIOLENCE PROTECTIVE ORDER

NOW COMES Pro Se defendant, Ronald Reale (“Ronald”), pursuant to N.C.G.S. § 1A-1, Rule 60(b) (4) the order is void, and hereby asks the court to set aside the Domestic Violence Protective Order (DVPO) issued on May 3, 2010 in 10CVD7386 and the Temporary Custody Order entered on June 8, 2010 in 10CVD5477.   Rule 60(b) (4) of the North Carolina Rules of Civil Procedure allows the court to “relieve a party from a final order” if “the judgment is void,” N.C.G.S §1A-1, Rule 60(b) (4) (2004).  If a judgment is void, it is a nullity and may be attacked at any time.  Rule 60(b) (4) is an appropriate method of challenging such a judgment. See Burton v. Blanton, 107 N.C. App. 615, 616-17, 421 S.E.2d 381, 383 (1992) (internal citations omitted).

 

STATEMENTS OF FACT

 

1.      In support of said motion, Ronald Reale submits the following: Due to marital differences, on March 8, 2010, Debra left the State North Carolina for California with the parties’ seven children.  On March 29, 2010, Ronald applied for, and obtained, an emergency custody order from Judge Christian under docket number 10CVD5477.  On April 5, 2010, an amended ex parte emergency custody order was issued granting Ronald immediate sole temporary physical and legal custody of the minor children, and directing Debra to immediately surrender the minor children to Ronald.

 

2.      In the meantime, Debra applied to a California Court for a restraining order preventing Ronald from exercising his rights under Judge Christian’s order.  In violation of the Uniform Child-Custody Jurisdiction and Enforcement Act (1979, c. 110, s. 1; 1999-223, s. 3; N.C.G.S. chapter 50-A), and the Parental Kidnapping Prevention Act. 28 U.S.C.  Sec. 1738A, a California Commissioner issued a Temporary Restraining Order.  It is not disputed that the California Court lacked personal jurisdiction over Ronald and could not enter any order against him. See Kulko v. Superior Court, 436 U.S. 84 (1978).  A telephone hearing took place between the California and North Carolina Judges on April 15, 2010, and all parties were directed to return to the State of North Carolina and appear before the Judge Christian on May 3, 2010 at 9:00 a.m. for a temporary custody hearing.  “Full Faith and credit” in 18 U.S.C. § 2265 cannot be applied to any protective order issued by the State of California as the statute requires that the issuing state (California) have jurisdiction in the first place to enter such an order.  More specifically, Title 18 U.S.C. § 2265(a) states in part; “Full Faith and Credit – Any protection order issued that is consistent with subsection (b) of this section by the court of one State (the issuing State) shall be accorded full faith and credit by the court of another State (the enforcing State) and enforced by the court and law enforcement personnel of the other State as if it were the order of the enforcing State;”  (b) states in part, “Protection Order – A protection order issued by a State is consistent with this subsection if (1) such court has jurisdiction over the parties and matter under the law of such State.”

 

3.      At the hearing on May 3, 2010, Judge Christian issued a DVPO against Ronald on her own motion, assigning a new Docket Number, 10CVD7386.  Debra never filed a motion for a DVPO pursuant to G.S §50B-2 (a).  The relevant statute makes it clear that a DVPO can only be issued on the application of a party, and that a summons and notice must issue.  N.C.G.S §50B-2 (a) reads as follows: “Any person residing in this State may seek relief under this Chapter by filing a civil action or by filing a motion in any existing action filed under Chapter 50 of the General Statutes alleging acts of domestic violence against himself or herself or a minor child who resides with or is in the custody of such person.  Any aggrieved party entitled to relief under this Chapter may file a civil action and proceed pro se, without the assistance of legal counsel…   Any action for a domestic violence protective order requires that a summons be issued and served.  The summons issued pursuant to this Chapter shall require the defendant to answer within 10 days of the date of service.  Attachments to the summons shall include the complaint, notice of hearing, any temporary or ex parte order that has been issued, and other papers through the appropriate law enforcement agency where the defendant is to be served.  No court costs shall be assessed for the filing, issuance, registration, or service of a protective order or petition for a protective order or witness subpoena in compliance with the Violence Against Women Act, 42 U.S.C. § 3796gg-5” (emphasis added).

 

4.      There was also a final order entered on June 8, 2010 from the May 3, 2010 hearing as to a request for temporary custody and visitation in 10CVD5477, separate and apart from the DVPO.  This is of no moment, as the entire hearing and procedure carried out by Judge Christian was improper and in violation of Rule 18.4 of the Tenth Judicial District Family Court Rules for Domestic Court, which provides that Chapter 50 and 50B cases may not be combined.  Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278. 

 

ARGUMENT

 

1.      The DVPO is void as there is no authority for a court to issue one sua sponte.  The law governing DVPO is purely statutory and was not known to the common law. Thus, as this Court recently held in Boseman v. Jarrell, ___N.C.___, 2010 N.C. LEXIS 1080 (December 10, 2010), the statutory procedure must be followed or the resulting judgment is void for lack of subject matter jurisdiction.  Since no civil action was ever commenced and no summons issued or served, the DVPO is absolutely void and should “be disregarded and treated as a nullity everywhere.”  Monroe v. Niven, 221 N.C. 362, 364, 20 S.E. 2d 311, 312 (1942).  Indeed, as this Court held in Monroe, failure to issue a summons and properly serve it upon the defendant similarly renders the proceedings void.  “Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him.  When a court has no authority to act its acts are void.  It is the service of process in some manner authorized by law that causes the jurisdiction of the court to attach to and give the court control of the party thus brought into court.” 211N.C. at 364.

 

2.      The Temporary Custody Order entered on June 8, 2010 by Judge Christian from the hearing on May 3, 2010 was derived from the Void DVPO; therefore, the Temporary Custody Order is void.  A void judgment, order, article, or amendment is, in legal effect, no judgment.  By it no rights are divested.  From it no rights can be obtained.  Being worthless in itself all proceedings founded upon it are equally worthless. It neither binds nor bars any one. Bennett v. Wilson (1898), 122 Cal. 509, 513-514 [55 P. 390].) (Ibid).  Compromising due process, Judge Christian’s violation of the District Court’s own Family Court Rules equally renders the Temporary Custody Order entered on June 8, 2010 Void ab initio.

 

3.    The hearing on May 3, 2010 and the subsequent entry of orders were a clear violation of the defendant’s Constitutional Rights; specifically violating his rights under the 14th Amendment to the United States Constitution as to both the procedural due process clause and the equal protection clause.  Both the DVPO and Temporary Custody orders must be set aside.  A void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983).

 

WHEREFORE, with regard to this Amended Motion to Set Aside Domestic Violence Protective Order and Temporary Custody Order, the defendant PRAYS the court as follows:

  

ESTABLISH THE FOLLOWING FINDINGS OF FACT:

1.      That the DVPO entered by this court on May 3, 2010 is Void.

2.      That the Temporary Custody Order entered by this court on June 8, 2010 is Void.

AND ORDER THE FOLLOWING:

  1. Vacate and set aside this court’s Domestic Violence Protective Order in 10CVD7386.
  2. Vacate and set aside this court’s Temporary Custody Order in 10CVD5477.

 

MOTION TO SET ASIDE THE ORDER ON ADJUDICATION AND DISPOSITION

NOW COMES Pro Se respondent father, Ronald Reale, pursuant to N.C.G.S. § 1A-1, Rule 60 (b) (3) (4) (6) relief from a judgment or order; N.C.G.S. § 1A-1, Rule 12 (b) (1) the court lacks subject matter jurisdiction; and hereby asks the court to set aside the Order on Adjudication and Disposition entered on September 3, 2010 in 10JA xxx-xxx.  Rule 60 (b) (3) of the North Carolina Rules of Civil Procedure allows the court to “relieve a party from a final order” by reason of fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.  Rule 60(b) (4) of the North Carolina Rules of Civil Procedure allows the court to “relieve a party from a final order” if “the judgment is void.” 

On June 23, 2010 seven minor children TRB, SRR, MRR, HMR, SMR, JRR, & BRR were taken into custody by Wake County Human Services and removed from the custody of the respondent mother, Debra Reale (“Debra”) and the respondent father, Ronald Reale (“Ronald”).  It was alleged that both Debra and Ronald had violated a Domestic Violence Protective Order (“DVPO”) entered on May 3, 2010 in 10CVD7386 by the Honorable Judge Lori Christian.  Alleging neglect, the Order for Non-Secure Custody and Notice entered on June 23, 2010 by the Honorable Judge Eric Chasse granted non-secure custody to the Wake County Department of Human Services (“WCHS”).  This resulted in a finding of neglect in a subsequent adjudication hearing held on August 26, 2010.  An Order on Adjudication and Disposition was entered by Judge Monica Bousman on September 3, 2010.

STATEMENTS OF FACT

  1. On March 8, 2010, due to marital differences, Debra left North Carolina for California with the parties’ seven children.  On March 29, 2010 Ronald applied for, and obtained, an emergency custody order from Judge Christian under docket number 10CVD5477.  On April 5, 2010 an amended ex parte emergency custody order was issued granting Ronald immediate sole temporary physical and legal custody of the minor children, and directing Debra to immediately surrender the minor children to Ronald.
  2. In the meantime, Debra applied to a California Court for a Temporary Restraining Order (TRO) preventing Ronald from exercising his rights under Judge Christian’s order.  In violation of the Uniform Child-Custody Jurisdiction and Enforcement Act (1979, c. 110, s. 1; 1999-223, s. 3; N.C.G.S. chapter 50-A), and the Parental Kidnapping Prevention Act. 28 U.S.C.  Sec. 1738A, a California Commissioner issued a TRO.  It is not disputed that the California Court lacked personal jurisdiction over Ronald and could not enter any order against him. See Kulko v. Superior Court, 436 U.S. 84 (1978).  A telephone hearing took place between the California and North Carolina Judges on April 15, 2010.  Debra was directed to return to the State of North Carolina; and all parties ordered to appear before Judge Christian on May 3, 2010 at 9:00 a.m. in courtroom 8B for a temporary custody hearing Pursuant to Docket Number 10CVD5477.  Full faith and credit in 18 U.S.C. § 2265 cannot be applied to any protective order issued by the State of California as the relevant statute requires that the issuing state (California) have jurisdiction in the first place to enter such an order.  The California TRO is void.At the temporary custody hearing on May 3, 2010, Judge Christian issued a DVPO sua sponte against Ronald, assigning a new Docket Number 10CVD7386.  Debra never filed a motion for a DVPO pursuant to §50B-2 (a).  The relevant statute makes it clear that a DVPO can only be issued on the application of a party, and that a summons and notice must issue.  The DVPO is void as there is no authority for a court to issue one on its own motion.  The Court of Appeals has held that such an order is non-appealable and may only be reviewed on appeal from a final order. See Hensey v. Hennessy, ___ N.C.App.____, 685 S.E. 2d 541,544 (2009).  Since there has been no trial and no final judgment, there can be no appeal. 
  3. The void DVPO in 10CVD7386 was entered at the conclusion of the hearing on May 3, 2010 and was accompanied by a Temporary Child Custody Addendum to Domestic Violence Protective Order (Form AOC-CV-306A) pursuant to §50B-3 (a1).  This too was contrary to the provisions of the statute.  The relevant statute states in part; “Upon the request of either party at a hearing after notice or service of process, the court shall consider and may award temporary custody of minor children and establish temporary visitation rights.”  No such request was made by either party for a protective order much less a request for temporary custody and visitation pursuant to such an order.
  4. There was a final order entered from the May 3, 2010 proceedings pursuant to Ronald’s request for temporary custody in 10CVD5477, separate and apart from the void DVPO in 10CVD7386.  This is of no moment, as the Temporary Custody Order was in fact, derived from the void DVPO.  The Temporary Custody Order in 10CVD5477 was entered on June 8, 2010, several weeks after the DVPO hearing on May 3, 2010 and subsequent to the entry of the void DVPO on May 3, 2010.  There were no further independent hearings to address temporary custody in docket number 10CVD5477.  The findings of fact in 10CVD5477 were established solely from the void DVPO and the hearing on May 3, 2010.
  5. The Temporary Custody Order also specifically refers to the void California TRO throughout the findings of fact; for example Point 12 states; “The court shall comply with the California Ex-Parte Domestic Violence Order until a hearing can be conducted with the parties and the minor children in the State of North Carolina.”  Point 17 acknowledges the entry of the void California TRO as exhibit A in 10CVD5477 and further states; “The Domestic Violence Protective Order (hereto attached as Exhibit A) to this order.  Essentially, the order prevented the plaintiff from having contact with the defendant or the minor children.”
  6. Ultimately, the entire hearing and procedure carried out by Judge Christian on May 3, 2010 was in violation of Rule 18.4 of the Tenth Judicial District Family Court Rules for Domestic Court, which provides that Chapter 50 and Chapter 50B cases may not be combined and specifically states that any hearing shall be limited to those issues raised in the Chapter 50B action.  There was no effort by the court to differentiate the two dockets during the hearing on May 3, 2010, nor were any evidence, testimony or any findings of fact in the two cases, independent of each other.  The combined hearing failed to properly address Ronald’s temporary custody issues in 10CVD5477 due to the court’s decision to conduct a domestic violence hearing at the start of the proceedings.  The record from the hearing reflects the following; “So, I think it is appropriate for this to be both a hearing related to the domestic violence issue… as well as I have to resolve the custody issue as it relates to Wake County.”  These violations of local court rules and other inconsistencies with due process demonstrate that the court also lacked subject matter jurisdiction in 10CVD5477.
  7. The original juvenile petition filed on June 23, 2010 states in part, “The juveniles are neglected juveniles in that the juveniles are in need of placement because they… are exposed to an injurious environment, to wit:  “Judge Christian held a temporary hearing and issued a protective order whereby Mr. Reale and the mother were to have no contact.  Her moving back is a violation of the protective order and has placed the children at risk of immediate harm.”  This points directly to a fatal defect in the original juvenile petition as the DVPO is a void, unenforceable order.  Any alleged violation of, or reference to such an unenforceable order is baseless and unsustainable.  It’s as though it never existed.
  8. The original juvenile petition also states in part, “An initial report was made to WCHS in October 2009, alleging physical and emotional harm to the children.  This was not substantiated.  In January 2010, the agency responded to another report by providing services to the family.  The mother and children cited many instances of domestic violence and abuse of the children that have occurred over the years.”  This is false.  Neither report nor any of the subsequent visits to the home resulted in any services being recommended, offered or needed.  No allegations of abuse or neglect were revealed or substantiated during any visit; more accurately described as perjured testimony.  Each visit resulted in the issuance of two separate safety reports (DSS-5231) deeming the residence and the children were found to be “safe” and all allegations unsubstantiated.  In addition, each case was closed in accordance with the DHHS Manuals, DSS, Chapter VIII, §1408.  These perjured statements in the petition amount to fraudulent testimony under oath, and represent yet another fatal defect of the original juvenile petition.
  9. An amended petition was filed by WCHS on June 24, 2010.  Contrary to the requirements in § 7B‑402(a) the amended petition makes no statement of jurisdiction, contains no dates of birth for any of the minor children, does not contain the current address of the parents nor the minor children, and does not contain a prayer for relief.  Also, the amended petition clearly establishes WCHS’ efforts to solely rely on the findings of fact from the two void orders entered by Judge Christian.  Point 1 of the amended petition states in part; “The father Ronald Reale filed a complaint for Custody (10CVD5477) on or about March 29, 2010, in Wake County Civil District Court…  Judge Lori Christian issued two orders in that matter.”  In keeping with its reference to the two void orders, the entirety of the amended petition goes on to quote findings of fact solely and exclusively from the two void orders entered by Judge Christian on May 3, 2010.  Reference to the two void orders is a fatal defect in the amended juvenile petition.
  10. TRB was in the State of Nevada residing indefinitely with his paternal grandparents at 555 TLC, Las Vegas, NV when the juvenile petition was filed on June 23, 2010 and amended on June 24, 2010.  This information was fraudulently concealed and withheld from the petition, being required expressly by § 7B‑402 (b), “the petition, or an affidavit attached to the petition, shall contain the information required by § 50A‑209; more specifically § 50A‑209 (a) (3) demands that specific information such as the names and addresses of persons not a party to the proceedings who has physical custody of the child be submitted to the court.   Furthermore, efforts to fraudulently conceal TRB’s address resulted in the address of each child being withheld from the petition, pursuant to § 7B‑402, Petition; (a) “the petition shall contain the name, date of birth, address of the juvenile…”  Since TRB was not “residing in or present in the district” when the original and amended juvenile petitions were filed, WCHS did not have the standing to include him in any petition pursuant to § 7B‑400, Venue.  This is yet another fatal defect in both the original and the amended juvenile petitions.  In re D.D.J., the Trial court lacked subject matter jurisdiction because when petition was filed (a) the child was not in DSS custody and was not residing in or found in the district; and (b) DSS, not having custody of the child, did not have standing to file the petition, In re D.D.J., 177 N.C. App. 441, 628 S.E.2d 808 (5/2/06).
  11. After filing the juvenile petition, WCHS authorized it’s agents to travel to the State of Nevada, restrain TRB, and ultimately transport him unlawfully across state lines from the State of Nevada to the State of North Carolina.  This was effectuated by the inappropriate use of local law enforcement in each jurisdiction, including use of the already overwhelmed NCIC (National Crime Information center – Missing Persons) database.  TRB was reported missing by WCHS after Ronald and Debra declined to transport him to North Carolina citing the fact that he was residing with his grandparents in Nevada.  This fatal defect goes well beyond simply not having standing to file a petition, as it broaches the realm of various kidnapping statutes in either jurisdiction and at the federal level, not to mention the misuse of law enforcement, filing a false police report, and the perpetration of fraud in general including but not limited to, withholding the address of each minor child as required when filing a juvenile petition, demonstrating a deliberate effort to conceal the fact that TRB was not present in the district when the juvenile petition was filed.
  12. The findings of fact in the Order on Adjudication and Disposition is littered with references to the void DVPO, the void Temporary Custody Order and derivatives thereof, clearly demonstrating the reliance on these void orders to support a finding of neglect.  The WCHS’ court reports, GAL’s court reports, respondent’s stipulations, and other evidence and testimony introduced to establish neglect of the minor children were derived from the void DVPO, the void Temporary Custody Order and the hearing on May 3, 2010.

LEGAL ARGUMENT

  1. Lacking personal jurisdiction, California could not enter a valid order against Ronald.  See Kulko v. Superior Court, 436 U.S. 84 (1978).  Furthermore, the case was ultimately dismissed by the California Court due to lack of jurisdiction.  The TRO entered by the California Court is void.
  2. In North Carolina, the law governing DVPO is purely statutory and was not known to the common law. Thus, as this Court recently held in Boseman v. Jarrell, ___N.C.___, 2010 N.C. LEXIS 1080 (December 10, 2010), the statutory procedure must be followed or the resulting judgment is void for lack of subject matter jurisdiction.  Since no civil action was ever commenced and no summons issued or served, the DVPO is absolutely void and should “be disregarded and treated as a nullity everywhere.”  Monroe v. Niven, 221 N.C. 362, 364, 20 S.E. 2d 311, 312 (1942).  Indeed, as this Court held in Monroe, failure to issue a summons and properly serve it upon the defendant similarly renders the proceedings void for lack of personal jurisdiction.  “Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him.  When a court has no authority to act its acts are void.  It is the service of process in some manner authorized by law that causes the jurisdiction of the court to attach to and give the court control of the party thus brought into court.” 211N.C. at 364.
  3. The Temporary Custody Order in 10CVD5477 is clearly a product of the void California TRO and the void North Carolina DVPO.  All proceedings founded on a void judgment are themselves regarded as void.  A void judgment is regarded as a nullity, and the situation is the same as it would be if there was no judgment. It is attended by none of the consequences of a valid adjudication. It has no legal or binding force or efficacy for any purpose or at any place… it is not entitled to enforcement. 30A Am Jur Judgments 43, 44, 45.  Henderson v. Henderson, 232 NC 380, 100 SE 2d 227.  In addition, the entire hearing and procedure carried out by Judge Christian was inconsistent with due process as it violated Rule 18.4 of the Tenth Judicial District Family Court Rules for Domestic Court.  The reference to the void orders and the violation of due process clearly establishes the court’s lack of subject matter jurisdiction in 10CVD5477.  The Temporary Custody Order is void.
  4. The fatal defects in the original juvenile petition filed on June 23, 2010 and the amended juvenile petition filed on June 24, 2010 conclude that this court lacked subject matter jurisdiction to conduct an adjudicatory hearing.  Subject matter jurisdiction cannot be conferred by consent, waiver, stipulation, estoppel, or failure to object. The lack of subject matter jurisdiction can be raised at any point in the proceeding, including for the first time on appeal or after judgment,  In re T.R.P., 360 N.C. 588, 636 S.E.2d 787 (2006).  In Re T.R.P., the Department of Social Services (DSS) filed a juvenile petition alleging that respondent mother’s daughter was a neglected juvenile.  The court noted that a trial court’s subject matter jurisdiction over all stages of a juvenile case is only established when the action is initiated with the filing of a properly verified petition.  DSS contended that the mother waived any jurisdictional challenge by submitting to the original adjudicatory and dispositional order of the trial court and, thus, should not have been permitted to challenge the trial court’s subject matter jurisdiction in the instant appeal.  The Court disagreed, noting that the mother could not have waived subject matter jurisdiction, and that the trial court did not have jurisdiction to conduct a review hearing that was independent of its jurisdiction to hear the original petition.  Therefore, lacking subject matter jurisdiction, this court’s Order on Adjudication and Disposition is void ab initio and must be set aside.  The entire referenced proceedings, 10JAxxx-xxx are coram non judice.  Subsequently, the legal status of the 7 minor children and the custodial rights of the parents should revert back to the status prior to the filing of the juvenile petition pursuant to § 7B‑201 (b), retention and termination of jurisdiction.
  5. Regarding legal and physical custody of TRB, there is an existing “Final Judgment of Paternity, Child Support, and visitation” entered on October 28, 2002 by Judge A.C. Soud, Jr. in Duval County, Florida Docket number 01-9387-FM that is still in effect, which in part Ordered and Adjudged; 1) “that the mother Debra Reale, shall have sole parental responsibility for the minor child Timothy Brant,” and 2) “that the respondent father Timothy Griego shall have no visitation with the minor child TRB until further order of this court.”

WHEREFORE, with regard to this Amended Motion to Set Aside the Order on Adjudication and Disposition (Revised 02/22/2011), the respondent father PRAYS the court:

ESTABLISH THE FOLLOWING FINDINGS OF FACT:

  1. That the DVPO entered by Judge Christian on May 3, 2010 is Void.
  2. That the Temporary Custody Order entered by Judge Christian on May 3, 2010 is Void.
  3. That the original juvenile petition filed on June 23, 2010 and the amended juvenile petition filed on June 24, 2010 contain details derived from previous void, unenforceable orders, and perjured testimony, rendering them fatally defective.
  4. That WCHS did not have standing to include TRB in any juvenile petition.  This renders the original juvenile petition filed on June 23, 2010 and the amended juvenile petition filed on June 24, 2010 fatally defective.
  5. This court’s Order on Adjudication and Disposition entered in September 3, 2010 is Void.

AND ORDER THE FOLLOWING:

  1. Vacate and set aside this court’s Order on Adjudication and Disposition and all its previous and subsequent orders derived from the aforementioned Void orders.
  2. Order the return of the six minor children SRR, MRR, HMR, SMR, JRR, & BRR immediately and without delay restoring the legal custody of both parents Debra Reale and Ronald Reale and to the physical custody of Ronald Reale to their family home in North Carolina pursuant to N.C.G.S. § 7B‑201 (b).
  3. Order WCHS cease reunification efforts between TRB and Timothy Griego and terminate all visits and contact between TRB and Timothy Griego pursuant to the prevailing “Final Judgment of Paternity, Child Support, and visitation” entered on October 28, 2002 by Judge A.C. Soud, Jr. in Duval County, Florida Docket number 01-9387-FM.
  4. Order the return of TRB immediately and without delay to the legal and physical custody of his mother, Debra Reale who is currently residing in California, pursuant to the prevailing “Final Judgment of Paternity, Child Support, and visitation” entered on October 28, 2002 by Judge A.C. Soud, Jr. in Duval County, Florida Docket number 01-9387-FM, and pursuant to N.C.G.S. § 7B‑201 (b).

In the alternative, reset the proceedings, whereby the County may take steps pursuant to N.C.G.S. § 7B‑405, Commencement of action, N.C.G.S. § 7B‑503, Criteria for non-secure custody and N.C.G.S. § 7B‑506, Hearing to determine need for continued non-secure custody, excluding TRB pursuant to N.C.G.S. § 7B‑400 Venue.

  

MOTION TO RECUSE AND FOR REASSIGNMENT

NOW COMES Pro Se Respondent Father RONALD REALE and moves to Recuse Judge Monica Bousman from the above entitled matter pursuant to 28 U.S.C. § 455.

 

1.      Under 28 U.S.C. § 455, and Marshall v Jerrico Inc., 446 US 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980); “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.”

 

2.      The above is applicable to this court by application of Article VI of the United States Constitution and Stone v Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); “State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law.” 

3.      The authority of the Court exists so that judges can do the work of the Court that it is mandated to do under Law.  If the Court isn’t doing its mandated work then the Court has no authority. 

4.      The authority of the Court comes from the United States Constitution and the Laws passed by the Legislature.  These documents define the role and authority of the Juvenile Court and the duties of the Judges that serve there.  It is the job of the Court to conduct hearings and to make an honest attempt at a fair and equitable judgment.  It is the duty of the Court to correct a clear and obvious error when brought to the attention of the Court.  And it is the responsibility of the Court to ensure that justice is served in a fair and equitable manner. North Carolina Judges take an oath to uphold the United States Constitution and are expected to abide by the Rules of North Carolina Code of Judicial Conduct.  It absolutely not expected that Judges act as lawyers (taking sides) by vigorously claiming to “protect the interest” of either party exclusively.

 

5.      North Carolina Judicial Code of Conduct, Canon 3 states in part;

A judge should perform the duties of her office impartially and diligently.  The judicial duties of a judge take precedence over all her other activities.  Her judicial duties include all the duties of her office prescribed by law.  In the performance of these duties, the following standards apply.

Adjudicative responsibilities;

  • A judge should be faithful to the law and maintain professional competence in it.  She should be un-swayed by partisan interests, public clamor, or fear of criticism.
  • A judge should maintain order and decorum in proceedings before her.
  • A judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom she deals in her official capacity, and should require similar conduct of lawyers and of her staff, court officials and others subject to her direction and control.
  • A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither knowingly initiate nor knowingly consider ex parte or other communications concerning a pending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before her.
  • A judge should dispose promptly of the business of the court. 

6.      Judge Monica Bousman has in the past deliberately violated personal liberties of the Respondent Father and his six minor children and/or has wantonly refused to provide due process and equal protection to the Respondent Father and his six minor children and/or has behaved in a manner inconsistent with that which is needed for full, fair, impartial hearings.

7.      The Respondent Father will remind the Court that just because he is representing himself Sui Juris doesn’t mean the Court has the right to deny him due process.  The Respondent has the right to make post-adjudicatory motions and the Court has the duty and responsibility to rule on these motions.  And that the Respondent Father expects the Judge to uphold the United States Constitution as she is sworn to do and to protect the fundamental right to due process of his entire family as guaranteed by the 14th Amendment.

8.      As part of these proceedings in late 2010 the Respondent Father filed four post-adjudicatory motions; a motion and order to show cause for WCHS’ failure to produce his minor children for court ordered visits, a motion to set aside the Order on Adjudication and Disposition pursuant to Rule 60 (b) (4) the order is void, a motion to review visitation guidelines, and a motion for discovery.

9.      The court deprived the Respondent Father of his right to due process as to his motions by stalling, delaying, ultimately not scheduling any of his motions to be heard until well past 70 days from the date of filing.  Then granting a total of 1 hour for all four motions.  The Respondent Father had no choice but to withdraw three of the four motions in order to focus on the motion to set aside.  That hearing alone required well over two hours.

10.  This compared to other post-adjudicatory motions filed by opposing attorneys throughout these proceedings which were promptly scheduled in as little as 12 days.

11.  Judge Bousman has engaged in Ex-Parte communication with other parties in this case and specifically with other judges presiding over other matters directly related to this case.  Judge Bousman admits on the record in a hearing held in March, 2011 that she has had inappropriate communication with Judge Lori Christian. The Respondent Father was seeking justice in the form of a motion to set aside a Domestic Violence Protective Order which was unlawfully entered by Judge Christian in May, 2010.  The DVPO was the basis for the current matter before Judge Bousman which began as an alleged violation to the DVPO in June, 2010.  The two judges have discussed the matter at length while both were faced with concurrent motions to set aside their respective orders as VOID. 

12.  These conversations were highly prejudicial in nature and a clear violation of Cannon 3 of the North Carolina Judicial Code of Conduct.  Her individual unconstitutional acts violated the clearly established constitutional rights of the Respondent Father of which a reasonable official would have known, Davis v. Scherer (1984).  Her judicial immunity is defeated when, “though judicial in nature,” her acts were “taken in complete absence of jurisdiction,” Mireles v. Waco (1991).  She did act under the authority or color of state law when she acted in concert with Judge Christian, causing harm to the Respondent father and his family in effecting the deprivation of rights, Dennis v. Sparks (1980).

13.  As a Judge in Juvenile Court it is Judge Bousman’s duty to do the work of a Juvenile Court Judge and only that.  The law does not give the Judges of Juvenile Court the authority to deliberately destroy families and separate spouses.  Such acts would be seen by a reasonable person as coercive, intimidating, and to be acts that are clearly outside all judicial authority.  Clearly a Juvenile Court judge does not have the right under the Law to use her position and immunities to shield her from malicious acts that are clearly outside her scope of authority.

14.  In a Juvenile Order dated May 16, 2011 Judge Bousman specifically ordered redactions of the Respondent Mother’s home address information pursuant to a request made by WCHS Social Worker Julie Riggins.  This request was never made by the Respondent Mother or anyone else on her behalf.  In Fact, this order of withholding such information does not reflect the wishes of the Respondent Mother whatsoever.  Judge Bousman is clearly acting outside her judicial authority and has no jurisdiction with regard to such matters.

15.  In her order following the permanency plan hearings Judge Bousman makes a finding that; “In the event that she (Mrs. Reale) reconciles with Mr. Reale, permanence will be delayed.” This is more coercion and intimidation; and exactly what the Respondent Father has been saying this court and WCHS represent from day one; and it has no place in this already corrupt process.  Such statements attack directly to the heart of the Constitutional Rights of free men and their families.  Once again, Judge Bousman is clearly acting outside her judicial authority and has no jurisdiction with regard to such matters.  She has held over the Respondent Father and his entire family effecting the deprivation of rights by virtue of being a District Court Judge, respectively, of the State of North Carolina, with all the power and apparent authority of the color of state law.

16.  Judge Bousman made various findings in an order at the conclusion of a permanency plan hearing held on April 12, 13, and 27, 2011.  Many of these findings were from Bias and/or many absolutely did not conform to the evidenced produced from these hearings.

17.  Judge Bousman refers to the Respondent Father’s completion of the court ordered ten week Anger Management Class stating in part; “Mr. Reale has Completed Anger management (however, he does not readily demonstrate any skills learned in his interactions in some of his interactions with professionals involved in this case.”  Judge Bousman is clearly referring to her disdain for the Respondent Father’s continued efforts to “stand up” and respond to the repeated false allegations, frivolous petitions and motions filed against him, while these so called “other professionals,” herself included, deliberately deprived him of any contact with his six minor children for well over 200 days; even in direct violation of the court’s own orders specific to the subject of visitation for a period of well over 90 days.  Judge Bousman continues to conspire with WCHS in depriving the Respondent Father of any contact with his oldest son SRR (12 years old), without cause.  Respondent father has not had any contact with his oldest son SRR for a period of well over 340 days.  There are no words to describe this.

18.  On the contrary, the evidence in the form of at least a dozen letters and statements presented by the Respondent Father at the permanency plan hearing demonstrates that the people in the community, his employer and even his own therapist have expressed sentiments of “dedication to his team and customers” as “a leader in the workplace”, “demonstrating a servants heart”, a “man of God”, an “all-around great guy”, “children look up to him” and they “absolutely adore him.”  Each having personal knowledge, experience and direct contact with him for as many as 3+ years.  Not even a hint of ANGER, let alone problems with regard to “anger management” or any other issues.

19.  Judge Bousman further declares the following in her order; “Mr. Reale has not been cooperative with WCHS.  A contentious relationship has developed between Mr. Reale and representatives of WCHS.  He consistently refers to WCHS as “liars,” “deceitful,” and “kidnappers.”  The social worker perceives that he is disrespectful and threatening toward her.  He has readily stated that he “will not rest until each of you is held accountable:” First, there was also testimony by the Social Worker Julie Riggins that she NEVER reported to the court, law enforcement, or any one else that she EVER felt disrespected or threatened throughout these proceedings.  It seems quite convenient to then testify to such feelings and emotions without even a shred of corroboration.

20.  Not cooperative?  The Court concedes in the permanency plan draft order that all items Ordered and Adjudged in the Order on Adjudication and Disposition have been completed by the Respondent Father.  Completion of all the items ordered by the court absolutely required complete cooperation on the part of the Respondent Father.  He attended 45 hours of classes on two separate days of each week for a consecutive ten weeks.  He participated in all meetings and completed the required psychological evaluation. He attended all court dates on time (even early).  Once visits commenced, he has not missed one nor been late (again always early) even ultimately agreeing under protest to the massive, unnecessary fees (amounting to ransom) in the amount of $100 per hour for the visits to even take place.  It seems the facts in evidence prove he was nothing but cooperative. 

21.  Judge Bousman has ultimately denied the Respondent Father reunification with his six minor children yet she clearly states and freely admits on the record; “that she has not even read any of the mental health assessments with regard to ANY of the minor children.”  She goes on to freely state that “she has no knowledge or understanding of the person described as the children’s therapist” and further acknowledges on the record; “but I probably should.”  This gross negligence alone is proof that this judge has failed in her most important mandate with respect to understanding her responsibilities as a Juvenile Court Judge and how her uninformed decisions are impacting the minor children.  Four of the six minor children have been diagnosed with Adjustment Disorder, yet the court has never received any documents in over eight months of so-called therapy from the therapist that might allege or even explain whether or not the Respondent Father has contributed to their symptoms leading to such a diagnosis. 

22.  Pursuant to the Child Welfare Act; “The Juvenile Court is to make “reasonable efforts” findings in each removal case indicating whether the state has, in fact, provided services to eliminate the need for removing the child from the parent.”  It is the responsibility of the Court to hear the case and to bring it to a conclusion. 

23.  Pursuant to the Child Welfare Act; “The Juvenile Court must make certain that WCHS has provided services to prevent removal of children from parental custody and to reunite removed children with a parent or guardian.  In addition, when the child is involuntarily removed from parental custody, the Juvenile Court must make a finding that continued placement of the child with the parent would be contrary to the child’s welfare.”   On the contrary, Judge Bousman has ignored the evidence and the truth while conspiring with others at various times to assist in and to further condone the unlawful removal of the children and to further prevent the return of the children to their parents.  Judge Bousman has ruled from BIAS and with high emotion on more than one occasion.

24.  Pursuant to the Child Welfare Act; “The Juvenile Court must also determine whether the state has made “reasonable efforts” to enable removed children to be reunited with their family.  The Juvenile Court must determine whether WCHS developed a case plan to ensure the children’s placement in the least restrictive, most family-like setting available in close proximity to the parent’s home consistent with the best interest and needs of the children.”  Since June, 2010 the six minor children have been placed by the court in Jacksonville, NC with a 24 year old cousin who had never even met four of the six children (effectively a stranger, hardly a familial setting); a location that is well over 150 miles from the family home.  The court further supported the requirement through written, oral, and implied agreements that the Respondent Mother relocate to California in August, 2010 (over 3,000 miles from her children) where she has since resided, having no substantive contact with her children in over 9 months.

25.  Pursuant to the Child Welfare Act; “The Juvenile Court must review a foster child’s status at least once every six months.  At each review the Court must determine the continuing need for and appropriateness of placement, the extent of compliance with the case plan and the progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care.”  During the permanency plan hearing in April, 2011 Judge Bousman was presented with verification of compliance of both the Respondent Mother and the Respondent Father to all requirements ordered and adjudged from the Order on Adjudication and Disposition.  Ignoring all evidence Judge Bousman has determined the legal custody and placement authority will remain with WCHS and that the children shall remain in foster care until the next hearing in October, 2011.  This determination is unlawful and absolutely unacceptable. 

26.  Judge Bousman has disregarded the testimony revealing that no one from WCHS or the Guardian ad Litem has ever observed the Respondent Father with his children since their abduction in June, 2010.  Judge Bousman did however ignore and omit any mention of the observations made by the independent agency, Time Together, who is currently supervising the visits; submitted by the Respondent Father as part of his Parent’s Report.  The summary of the visits were as follows; “All children have appeared comfortable with Mr. Reale and have appeared to openly engage in conversations during the visitation time.  Upon entering the room all children have gone up and hugged Mr. Reale without prompting, expect JRR.  JRR, during his first two visits instantly began playing with toys in the room but did show affection towards Mr. Reale later in the visits.  Throughout the visits, Mr. Reale maintained appropriate conversations with all children.  When ending the visits all children have hugged Mr. Reale and expressed their love for him.  All children have stated their disappointment with the visits ending and have progressively become clingier with Mr. Reale at the end of the visits.  During the last visit the children attempted to delay the ending of the visiting by continuing to hug Mr. Reale and expressing their desire not to leave.  All children have expressed that they want to stay with Mr. Reale and are excited about the next visit.  HMR, SMR, & MRR have even expressed disappointment with having to wait two weeks for the next visit to occur.  The children’s desire to extend the visits has progressively increased with each additional visit.  It should be noted that the children’s desire to extend the visit appears to be more out of love for Mr. Reale.”

27.  It has clearly been pointed out to the Court in a manner that any reasonable person can understand; that the Court has made obvious errors.  Judge Bousman continues to ignore her responsibility to be accountable for correcting such errors.  In a draft order from the permanency plan hearings in April, 2011 Judge Bousman makes the following finding of fact; “Mr. Reale takes no responsibility for conditions that removed the children from his custody, despite the stipulations he voluntarily entered on August 26, 2010 and now adamantly denies that the stipulations are true.”  Judge Bousman is well aware that the stipulations were based on a prior Domestic Violence Protective Order which, at that time, was considered to be in full force and effect, yet has since been vacated as of March 2011 as Void ab initio, a nullity, as though it never existed by the very same judge who issued the order back in May, 2010.

28.  Judge Bousman also includes in her latest draft order; “Mr. Reale was asked to leave the DOSE program (for Domestic Offenders) when he denied that he was responsible for any acts which might constitute domestic abuse… but successful completion of an abuser treatment program is still required if he desires to reunify with his children.”  Again, Judge Bousman is well aware that the Domestic Violence Protective Order entered prior to the start of these proceedings has since been set aside as void ab initio, a nullity, as though it had never been.  In addition, the six minor children were adjudicated neglected as a result of the alleged violation of the DVPO in question, not abused.  There is no other evidence of Domestic Violence having ever occurred in the family home.  Judge Bousman is absolutely acting outside her judicial authority and has no jurisdiction with regard to such matters.  This is a clear example of her exhorting and abusing her powers as a Juvenile Court Judge.

29.  Judge Bousman makes other statements with regard to the Respondent Father’s individual therapy which can be classified as nothing more than conjecture and innuendo; “It does not appear that Mr. Reale has progressed enough in therapy to be able to benefit from an abuser treatment program.”  There was no evidence presented to this effect.  From where then was she able to draw this conclusion?  In fact, there was evidence presented by the Respondent Father to demonstrate the contrary.  This evidence was ignored and there was little or no mention of its existence in the draft order.  The Respondent Father submitted two letters from his personal therapist (court ordered).  These letters reflected a clear and convincing opinion that progress toward a desire for a more positive relationship with his wife and children exists; “To summarize my work with him in therapy, he is able to see and interpret these aspects of his personality: his belief he can fix anything, his being driven to succeed, his working excessively long hours, and as a result his not paying sufficient attention to his family relationships. I find this self-awareness to be a sign of a change that could lead him to develop a more engaged relationship to his family.  He talks frequently about his wife, and although they have had their differences he has never criticized her.  In this same session he said this about her: “I can’t imagine just how much pain she’s in being separated from her kids and not being in a place she wants to be. I guess I’m willing to accept all that but I still feel a strong desire to protect her and to provide for her emotionally and to support her emotionally.”  Ron is able to explore his feelings and his behavior in a non-defensive way. He is able to talk about how he allowed himself to be so caught up in his work that he neglected family relationships. His descriptions of his interactions with his children and other people demonstrate an ability to empathize with others and to make an effort to see things as they do.  These capacities for introspection and for empathy are characteristics I do not associate with a person who would abuse his children or his spouse.  Once again, there was no mention of this evidence in the final order.  It was simply ignored.

30.  The Respondent Father commissioned and produced for the court an independent and complete psychological evaluation which was conducted by Kraft Psychological Services, PA.  This is an agency certified to perform evaluations for individuals and has also completed evaluations for other county DSS agencies.  The Licensed Psychological Associate who administered all testing and interviews is supervised by Dr. Jack Huber who has over 35 years of experience in the field and was the Department Head of Psychology at Meredith College for 30+ years.  The summary of the evaluation is as follows; Ronald’s profile suggests he is a rule-follower who may have a tendency to minimize any problems he is experiencing.  He may experience feelings of resentment when he does not express his true feelings.  He is not likely to take risks for fear of making mistakes.  He likely behaves in a consistent and socially acceptable manner.  He is likely seen as sociable and easygoing by others.  He may make a good first impression, but may have difficulty forming close relationships with others.  However, he is likely viewed as outgoing and self-confident by others.  He likely has marital problems and may be impatient.  Ronald may not be easily overwhelmed by emotional turmoil.  He does not appear to have a high potential for abuse.  It should be noted that his score for the ego-strength scale indicates that he has the ability to maintain emotional stability.  It should be noted that his Global Assessment of Functioning (GAF=80) score indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors.  Ronald was pleasant and cooperative throughout the assessment process.  He was alert and oriented in all spheres. His mood and affect were congruent.  He appeared forthright when responding to questions.  It is the opinion of this clinician that Ronald does not appear to have impairment in his parenting skills due to psychological symptoms.  It should be noted that he does not appear likely to abuse his children.

31.  The Juvenile Court is society’s designated check to make certain that children are not improperly removed, that parents are provided with due process and that families are fairly treated.  The Court, unlike social services agencies, is more visible and accountable to the public in performing these functions.  In this case however, this premise is clearly not sustained as Judge Bousman has clearly taken things into her own hands and proceeded in a manner that has little to do with the protections of the United States Constitution and more to do with her own personal emotions and desires. 

32.  In light of Judge Bousman’s behavior, the Respondent Father can only conclude that the she is on a mission that has nothing to do with the job the Law mandates her to perform.  And if the Judge is not doing the work of the Court then the Judge doesn’t have the authority or immunities of the Court and her decisions are therefore defective and invalid.  Because of the obvious errors in her decisions, it is the Respondent Father’s position that no decisions have been made. 

33.  Judge Bousman is acting individually and in her official capacity as a District Court Judge under color of state law to deprive and in conspiring to deprive the Respondent Father and his family of their civil rights.  Because she is acting knowingly, recklessly and in disregard of well-established law, with no objectively reasonable basis for her actions, she does not have qualified immunity from damages under the standards set forth by the United States Supreme Court, the United States Fourth Circuit Court of Appeals, or by United States District Court in the Eastern District of North Carolina. 

34.  The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed fundamental.  As a fundamental right, the liberties of the Respondent Father and his family are to be protected by the highest standard of review; the compelling interest test.  As long as Judge Bousman is allowed to have an exaggerated view of her power and is allowed to exploit that power and abuse it against the Respondent Father and his family, they will be continually harmed. The constitution is there for two primary reasons, 1) to restrict the power of the government and 2) to protect the people from the government, not the government from the people.  And the constitution is there to prohibit certain activity from government officials and that prohibition does not apply to one type or kind of official, but to any government official, including and especially from judges. 

35.  The United States Constitution’s Fourteenth Amendment contains a recognized Right to Privacy. This fundamental Right to Privacy encompasses the Privacy Protected Zone of Parenting. The Respondent Father asserts that the North Carolina General Statutes, easily distorted by Judge Bousman, impermissibly infringes on the Federal Right to Privacy to the extent they mandate the Respondent Father to support his children beyond a standard to prevent harm to them. Judge Bousman substitutes her judgment for the Respondent Father’s judgment as to the best interest of his children.

36.  Judge Bousman is not permitted and lacks jurisdiction to determine care and maintenance, i.e. spending, i.e. child discipline, decisions of the Respondent Father based on his income in an intact marriage other than to prevent harm to a child.  Furthermore, Judge Bousman must not so mandate, absent a demonstration that the choice of support provided by the Respondent Father has resulted in harm to his children.

37.  Consequently, Judge Bousman cannot use the “best interest of the child” standard to substitute her judgment for a fit parent and parroting that term is “legally insufficient” to use in the court to force the Respondent Father to follow some arbitrary standard, case plan.  Judge Bousman cannot usurp the Respondent Father’s decision making related to his spending for his children, i.e. child support without either demonstrating the Respondent Father is unfit or there is proven harm to the children.  In other words, Judge Bousman cannot impose a standard of living dealing with the rearing of children. When she violates this fundamental right, she is intruding on the life and liberty interest of the Respondent Father and his family.

38.  The 1st Amendment bars such action because the rearing of children and the best interest of children is often based on one’s religious beliefs, i.e. the separation of church and state.  By Judge Bousman imposing any standard of living or the rearing of children, she is putting forth a religious standard by her actions i.e. how you act, what to feed the child, how to dress the child, whether or not to home school and so on.  Judge Bousman lacks jurisdiction on what goes on in the house even though she may disagree with the choices made by the Respondent Father.  It’s none of Judge Bousman’s business on how the Respondent Father is to raise his children.  In other words, Judge Bousman cannot falsely accuse the Respondent Father of abuse or neglect just because she disagrees with the method of child rearing or the standard in which the Respondent Father and his family live.

39.  State Law provisions seem to mandate that the Courts invade the family, through the judiciary, to examine, evaluate, determine and conclude the terms and nature of the interpersonal relationships, spousal roles, spousal conduct, parental decision making, parenting conduct, parental spending, economic standard of living, occupations, education, savings, assets, charitable contributions and most importantly the intimate emotional, psychological and physical details of the parties and family during their marriage; granting the judiciary a broad range of discretion to apply a property stripping statute with a standard of equity.

40.  This is an abuse of the judicial power and the judicial system to intrude into the lives of the Respondent Father and his family and violates their privacy rights. It is not Judge Bousman’s right or jurisdiction to examine the day to day decisions and choices of the Respondent Father and his family and then sit there in judgment, and then force the Respondent Father to follow conflicting standards with threat of harm for noncompliance i.e. abduction of children and/or to threaten that they will not be returned or that “reunification will be delayed.”  These are coercive statements and tactics of intimidation that have no place in our judicial system.

41.  The United States Constitution guarantees an unbiased Judge who will always provide litigants with full protection of ALL RIGHTS.  Therefore, Respondent Father respectfully demands Judge Bousman recuse herself in light of the aforementioned evidence detailing prior unethical and/or unlawful conduct or conduct which gives Respondent Father good reason to believe Judge Bousman cannot continue to hear the above case in a fair and impartial manner and should be disqualified from further proceedings in this matter.

42.  A Judge who stands in the way of justice and the Law is acting outside of all judicial authority and thereby waives her rights to immunity from civil liability under 42 U.S.C. § 1983 for deprivation of rights.  Once again, her judicial immunity is defeated when, “though judicial in nature,” her acts were “taken in complete absence of jurisdiction,” Mireles v. Waco (1991).  The 14th Amendment guarantees the fundamental rights of citizens to due process and equal protection and such rights require strict scrutiny of the Court.  The Respondent Father therefore puts the Court on notice that he intends to defend his rights and to hold Judge Bousman liable for acts she takes against the Respondent Father and his family that are done in the absence of judicial authority. 

43.  The Respondent Father is currently writing a complaint against Judge Bousman to be filed with the Judicial Standards Commission relative to her violations of the North Carolina Judicial Code of Conduct.  After filing said complaint with the Judicial Standards Commission, said complaint will be filed in the record of 10JA xxx-xxx and published on the internet in the interest of complete public disclosure.

  

WHEREFORE, in light of the fact that Judge Bousman is either unwilling or unable to perform her duties as mandated by the United States Constitution and the Laws of the State of North Carolina, has acted unlawfully and would act to protect her previous unlawful decisions, Respondent Father prays the Judge will recuse herself.

The Respondent Father requests that an order of reassignment of Judge Bousman for cause be issued, and this case be assigned to a judge who knows and complies with the law, who does not have a conflict of interest, and a judge who will act impartially.

 

MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION

Pursuant to NCGS § 1A-1, Rule 65, of the North Carolina Rules of Civil Procedure, RONALD REALE, PRO SE Respondent Father of the six minor children, moves the court as follows:

  1. A preliminary injunction be issued from this court to enjoin Wake County Human Services (“WCHS”) and any person acting in concert or participation with them, from removing any of the children to any other state absent an order of this court, made on notice to all parties, until such time as the allegations of the verified motion and affidavits filed in this matter shall be finally adjudicated.
  2. To issue an immediate Temporary Restraining Order in accordance with North Carolina Rules of Civil Procedure, Rule 65(b), to immediately enjoin WCHS and any person acting in concert or participation with them, from removing any of the children to any other state absent an order of this court, made on notice to all parties, until such time as the allegations of the verified motion and affidavits filed in this matter shall be finally adjudicated.
  3. That a hearing upon this application for preliminary injunction and issuance of temporary restraining order be had within ten (10) days of its filing as required by the North Carolina Rules of Civil Procedure.
  4. In support of this motion, Ronald Reale shows the court as follows: That a verified motion seeking the court to enjoin the removal of the minor children from the State of North Carolina; by him on this date, the contents of which motion are incorporated herein by reference herein as if fully set out.

NOW COMES pro se Respondent Father Ronald Reale (“Ronald” or “movant”) Pursuant to Rule 65 of the North Carolina Rules of Civil Procedure, and moves the court for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction to immediately enjoin Wake County Human Services (“WCHS”) and any person acting in concert or participation with them, from removing any of the Movant’s six minor children from the State of North Carolina to any other state absent an order of this court, made on notice to all parties or violating any of the court’s orders. In support of this motion the Movant shows the court the following:

  1. This is an emergency motion, which is made ex parte because immediate, irreparable injury, loss or damage will result to this Movant and his six minor children before notice can be served and hearing held thereon in that such delay would afford WCHS the opportunity to violate the court’s order to maintain the six minor children in the State of North Carolina and could provide the impetus for removal of the Movant’s six minor children from the State of North Carolina.
  2. A Temporary Restraining Order thus is necessary to restrain and enjoin the removal of the Movant’s six minor children from the State of North Carolina to the State of California or any other state.

FACTS AND PROCEDURAL HISTORY

  1. Due to marital differences, on March 8, 2010 Debra Reale (“Debra”) left the State of North Carolina for California with the parties’ six minor children.
  2. On March 29, 2010 Ronald applied for and obtained an emergency custody order from Judge Lori Christian under docket number 10CVD5477.
  3. On April 5, 2010 an amended ex parte emergency custody order was issued granting Ronald immediate sole temporary physical and legal custody of their six minor children and directed Debra to immediately surrender their minor children to Ronald.
  4. In the meantime, Debra applied to a California Court for a restraining order to prevent Ronald from exercising his rights under Judge Christian’s order.  In violation of the Uniform Child-Custody Jurisdiction and Enforcement Act (1979, c. 110, s. 1; 1999-223, s. 3; N.C.G.S. chapter 50-A), and the Parental Kidnapping Prevention Act. 28 U.S.C.  Sec. 1738A, a California commissioner issued a Temporary Restraining Order.[1] A telephone hearing that took place between the California and North Carolina Judges on April 15, 2010 and all parties were directed to appear before Judge Lori Christian on May 3, 2010 at 9:00 a.m. for a temporary custody hearing.
  5. At that time, Judge Lori Christian issued a Domestic Violence Protective Order (DVPO) against Ronald sua sponte, assigning a new Docket Number 10CVD7386.  Debra did not file a motion for a DVPO pursuant to G.S §50B-2 (a).  On the same day May3, 2010 Debra took the parties’ six minor children to reside in Pennsylvania where they were enrolled in school to complete the school year.
  6. Approximately six weeks later during the week of June 14, 2010, Debra contacted Ronald and the two began the reunification process by re-establishing the family residence in Raleigh, North Carolina and seeking a marriage counselor.  On or about June 22, 2010 WCHS received a call from a disgruntled family member complaining about a violation of the protective order.  Alleging a violation of a protective order, WCHS filed a petition for removal of the minor children from both parties.
  7. Debra recanted all previous allegations in her affidavit titled “why I left my husband” and “How the abuse allegations got out of control,” to no avail.  No other evidence existed nor was any presented.  Subsequently, on June 23, 2010 the minor children were taken into custody by WCHS. The initial petition filed states in part, “The juveniles are neglected juveniles in that the juveniles are in need of placement because they… are exposed to an injurious environment.”
  8. On or about August 26, 2010 the Court entered an Order on Adjudication and Disposition which in part granted legal custody of the six minor children to WCHS.  The six minor children were placed in the physical custody of their 24 year old cousin in Jacksonville, NC over 150 miles from their family home.
  9. Respondent Mother was required by oral, written and implied agreements with WCHS and the court’s orders to depart North Carolina and to relocate to California back in September 2010.
  10. The respondent Mother has not visited with her six minor children in over nine months from September to present due to the geographical distance separating them from her.
  11. The Respondent Mother has since expressed a desire in an email to return to North Carolina and has yet again been coerced by the court as the court continues to hold her children hostage.  In a recent draft order the court has states; “In the event that she (Mrs. Reale) reconciles with Mr. Reale, permanence will be delayed.”
  12. On March 29, 2011 the DVPO entered on May 3, 2010 by Judge Lori Christian was set aside as void ab initio for lack of subject matter and personal jurisdiction.
  13. Movant then made application to set aside the Order on Adjudication and Disposition pursuant to Rule 60(b) of the NCGS, alleging that it was derived from and the result of the DVPO.  The order is void.
  14. The motion to set aside The Order on Adjudication and Disposition was denied. Movant has appealed the denial of that order to the North Carolina Court of Appeals on the grounds that the trial court erred in refusing to vacate its Order on Adjudication and Disposition.
  15. There was a six month Permanency Plan hearing held on April 12, 13, and 27, 2011 to determine the ongoing legal custody of the minor children along with their ongoing physical placement.  It was ordered that all the minor children will remain in the legal custody of WCHS and that the Movant’s six minor children will also remain in the physical custody of the foster care giver Natasha Wilde in Jacksonville, North Carolina.
  16. It has also been ordered that an ICPC request for a home study of the Respondent Mother’s home in California be submitted as the Movant’s six minor children are being prepared for relocation to California with the Respondent Mother Debra Reale within the next few months.
  17. Since March, 2010 the six minor children have been transported from Raleigh, North Carolina to reside in California, back to reside in Raleigh, North Carolina, on to reside in Pennsylvania, and again back to reside in Raleigh, North Carolina until being moved yet again to their current foster care placement in Jacksonville, North Carolina.  WCHS and the court are now proposing to relocate the Movant’s six minor children for the sixth time in less than 15 months, arranging to transport them once again to California with two appeals pending and well prior to the final adjudication of this matter.
  18. The oldest four of the six minor children have been in therapy for “Adjustment Disorder” since October, 2010 due to the frequent relocations involving multiple residences and schools over the past fifteen months.
  19. The Movant has regularly been opposed and has openly objected to the frequent relocation of his minor children by any and all parties, all occurring without his consultation or consent.
  20. That Movant was denied reunification with his six minor children. He intends to immediately appeal that denial upon entry of the final order to the North Carolina Court of Appeals.
  21. Movant has maintained regular bi-weekly visits with his six minor children, since January 2011.  From the beginning the visits have been reported as very positive by the independent agency supervising the visits, Time Together.  The comprehensive 5 page report states in part: “When ending the visits all children have hugged Mr. Reale and expressed their love for him.  All children have stated their disappointment with the visits ending and have progressively become clingier with Mr. Reale at the end of the visits.  During the last visit the children attempted to delay the ending of the visiting by continuing to hug Mr. Reale and expressing their desire not to leave.  All children have expressed that they want to stay with Mr. Reale and are excited about the next visit.  HMR, SMR, & MRR have even expressed disappointment with having to wait two weeks for the next visit to occur.  The children’s desire to extend the visits has progressively increased with each additional visit.  It should be noted that the children’s desire to extend the visit appears to be more out of love for Mr. Reale.”

DISCUSSION

  1. Termination of the visits with the Movant and/or relocation of his six minor children to California or any other state will cause irreparable harm to the children and their relationship with their father.
  2. Permitting a move to California at the present time would essentially operate to nullify the orders of this court currently in effect, which require the minor children to remain in North Carolina and prejudice the Movant should the Court of Appeals reverse the orders of this Court.
  3. More specifically, the Order on Adjudication and Disposition and subsequent orders places the six minor children in the legal custody of WCHS.  It does not provide for custody of any other agency in another state. WCHS could not have any semblance of jurisdiction or authority in the State of California and would perforce transfer any such jurisdiction to an agency of the State of California.
  4. Absent the issuance of an order of this court, made on notice to all parties following a hearing, the children must remain in this state to maintain the status quo and to maintain jurisdiction in this Court.
  5. If the arrangement contemplated is carried out, California would become the new home state of the children and this court would lose jurisdiction of the matter under the Uniform Child-Custody Jurisdiction and Enforcement Act (1979, c. 110, s. 1; 1999-223, s. 3; N.C.G.S. chapter 50-A).
  6. Movant would be compelled to go to California to fight a custody battle that is currently the subject of litigation in this State.

WHEREFORE, the movant prays the Court grant him a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction restraining WCHS and any person acting in concert or participation with them, from removing any of the children from the State of North Carolina to any other State absent an order of this court, made on notice to all parties. Movant also prays that no security be required.

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