Opinion
No. COA02-1654
Filed 4 November 2003 This case not for publication
Appeal by respondent from an order of adjudication entered 1 August 2002 by Judge M. Patricia DeVine in Orange County District Court. Heard in the Court of Appeals 17 September 2003.
Northen Blue, L.L.P., by Carol J. Holcomb and Samantha H. Cabe, for petitioner-appellee. M. Victoria Jayne for respondent-appellant.
Orange County No. 02 J 79.
Respondent Rebecca Walker, maternal grandmother of Brittany Riggsbee, appeals from an order adjudicating Brittany a neglected juvenile and granting custody to her paternal grandmother, Betty Smith. We affirm.
The record discloses that Brittany Riggsbee was born on 2 June 1992. Her father was killed in a motorcycle accident shortly after her first birthday, and four months later her mother was murdered. At the time of her parents' deaths, Brittany was living with her great aunt, Ruby Jackson, and her maternal grandmother, respondent Walker. In October 1993, Brittany's paternal grandmother, Betty Smith and her husband, William, were granted emergency custody of Brittany in Lee County. However, in November, after a change of venue to Durham County, the district court in that county granted temporary custody to respondent Walker. Joint legal custody was awarded in March 1994 to Brittany's grandmothers, with primary physical custody to respondent Walker and visitation to the Smiths. In July 1997, Betty Smith filed a motion to modify custody, which was dismissed upon the district court's determination that she had not met her burden of showing a substantial change in circumstances affecting Brittany's welfare. On 6 July 1999, this Court affirmed, so that primary custody of Brittany remained with Walker. Smith v. Jackson, 134 N.C. App. 185, 525 S.E.2d 859 (1999).
Sometime during 2000, Smith became concerned about Brittany's emotional health and arranged for her to see a therapist, Dr. Elizabeth Kelly. Upon the advice of Dr. Kelly, after Brittany had expressed concern about returning to Walker's home after a visitation, Smith did not return Brittany at the appointed time on Sunday, 11 March 2001. Brittany was returned to Walker with the assistance of the sheriff, and Smith's visitation was suspended pending a hearing. In a subsequent order, dated 11 June 2002, the Durham County District Court reinstated visitation, found the Smiths in willful contempt of its previous order, allowed attorneys' fees to Walker and ordered that neither grandmother take the child for therapy without the approval of the other.
In January 2002, and again in April of 2002, Brittany's case was referred to the Orange County Department of Social Services ("OCDSS") upon allegations of domestic violence, alcohol abuse and possible drug use in the Walker home. After an investigation by OCDSS, which included interviewing Brittany and Walker and visiting Walker's home, OCDSS substantiated neglect and filed a petition in the district court of Orange County alleging neglect on 14 June 2002. The petition alleged drug and alcohol abuse in Walker's home and domestic violence between Walker and her husband, Jimmy Joines. The petition also alleged that Brittany wanted to live with Betty Smith. A guardian ad litem was appointed 3 July 2002, and submitted a report to the court at the adjudicatory hearing on 1 August 2002. After making findings of fact and conclusions of law, the Orange County District Court entered an order adjudicating Brittany a neglected child, and awarded sole legal and physical custody to her paternal grandparents, Betty and William Smith. Respondent Walker was denied visitation with Brittany. Respondent Walker appeals.
I.
Respondent first contends the trial court erred in adjudicating Brittany a neglected juvenile and transferring her custody because the evidence was insufficient to support such an adjudication of neglect and change in custody. The standard of proof required to prove allegations of neglect is by clear and convincing evidence. N.C. Gen. Stat. § 7B-805 (2001).
The district court found, inter alia, that Brittany, who testified at the hearing, was a credible witness. The court also found that Walker and her husband, Jimmy Joines, frequently drank to excess; that illicit drugs were kept, and probably used, at Walker's residence; that Walker and Joines fought verbally and physically to the point that law enforcement officers had to be summoned and Walker required medical treatment; and that Brittany was exposed to such conduct. The court also found that Walker minimized the effect that her conduct had on Brittany and did not think Brittany should be in therapy, though other evidence suggested that Brittany had been able to cope with the difficult environment present in the Walker residence through the assistance of counseling at her school. If the trial court's findings of fact are supported by clear and convincing competent evidence, they are deemed conclusive, even if there is some evidence to support contrary findings. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
At the adjudicatory hearing, Brittany testified that she had frequently seen Walker and her husband, Jimmy Joines, drinking to the point where they slurred their words, staggered, and had their eyes half closed. In addition, Brittany described in detail pipes found in the home as well as a bag of marijuana and a small bag of crack cocaine. She also described "fussing and fighting" between Walker and Joines that was, upon occasion, physical including an incident in which Joines burned Walker with a cigarette, and another when Walker had to have stitches. She also said that Walker would yell at her and that she did not feel safe at Walker's house. Other witnesses testified about statements Brittany had made to them, which corroborated her testimony. Notwithstanding respondent's evidence that she had passed a drug test and that she did not have a drinking problem, we hold the trial court's findings of fact are supported by clear and convincing evidence.
Based upon its findings, the trial court concluded Brittany was a neglected juvenile. We must next determine if the findings support that conclusion. In re Helms, supra. A "neglected juvenile" is defined, in part, by N.C. Gen. Stat. § 7B-101(15) (2001) as one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; . . . or who lives in an environment injurious to the juvenile's welfare. . . ." It is also required that there be "some physical, mental, or emotional impairment of the juvenile or a substantial risk of such impairment as a consequence" of the neglect. In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d 898, 901-02 (1993) (decided under former N.C. Gen. Stat. § 7A-517(21)). The trial court's findings of fact support the conclusion that the environment in which Brittany lived, through which she was repeatedly exposed to alcohol abuse, possible drug use, and domestic violence, was injurious to her welfare and, coupled with respondent Walker's minimization of the effects of such environment and opposition to therapy for Brittany, placed her substantially at risk. Therefore, the trial court's findings of fact support the conclusion that Brittany is a neglected juvenile within the meaning of G.S. § 7B-101(15).
Respondent argues further, however, that after adjudicating Brittany to be neglected, the district court failed to hold a dispositional hearing, and did not permit her to offer evidence. Once neglect has been adjudicated, "[t]he essential requirement , at the dispositional hearing . . . is that sufficient evidence be presented to the trial court so that it can determine what is in the best interest of the child." In re Shue, 311 N.C. 586, 597, 319 S.E.2d 567, 574 (1984). Unlike adjudicatory hearings, which must follow the rules of evidence, see N.C. Gen. Stat. § 7B-804 (2001), "[t]he dispositional hearing may be informal and the court may consider written reports or other evidence concerning the needs of the juvenile." N.C. Gen. Stat. § 7B-901 (2001). The statute requires that "the juvenile's parent, guardian, or custodian shall have an opportunity to present evidence." Id.
In this case, the district court clearly stated that it was "going forward on the question of disposition," showing that it was proceeding to the disposition hearing. Though only two reports, one by the guardian ad litem and one by Brittany's therapist, were admitted as evidence, the court did not prevent any party from offering evidence and respondent Walker's counsel did not proffer further evidence. After considering the evidence presented, the trial court reviewed the entire file from the Durham County custody action before concluding that it was in Brittany's best interest to award custody to Betty Smith. We hold the trial court complied with the requirements of N.C. Gen. Stat. § 7B-901.
Finally, respondent Walker argues the trial court erred when it made no provision for her visitation of Brittany, thereby effectively terminating her relationship with Brittany, notwithstanding the goal of the law to "reunite the parent and the child." We reject this argument as well.
Contrary to respondent's argument, the court did not terminate her relationship with Brittany. The court considered the guardian ad litem's report, incorporating it into the order as a finding of fact, which recommended that visitation between Brittany and Walker be suspended pending therapy to determine when, and under what conditions, visitation would be appropriate. The court further ordered a review hearing, pursuant to G.S. § 7B-906, in ninety days to determine if this placement remained in Brittany's best interest. See In re Shue, 63 N.C. App. 76, 303 S.E.2d 636 (1983), modified, 311 N.C. 586, 319 S.E.2d 567 (1984). The findings of fact supported the trial court's decision in this regard.
II.
Respondent next assigns error to the admission of testimony by three witnesses, contending the testimony was hearsay. Hearsay is an out of court statement which is offered at trial to prove the truth of the matter asserted, and is not generally admissible, with certain exceptions. N.C. Gen. Stat. § 8C-1, Rules 801(c) and 802 (2001). However, if the evidence is offered for another purpose, it is not hearsay. Evidence of a witness' prior consistent out of court statement, offered to corroborate the witness' sworn testimony in court, is not hearsay and is admissible. State v. McGraw, 137 N.C. App. 726, 730, 529 S.E.2d 493, 497 (2000). Corroborative evidence "tends to strengthen, confirm or make more certain the testimony of another witness." State v. Adams, 331 N.C. 317, 328-329, 416 S.E.2d 380, 386 (1992).
Respondent points to the testimony of two social workers, Joy Holland and Avis Barnes, who were permitted to testify over her objection concerning statements made to them by Brittany. Similarly, Sharon Lee, a supervisor in the Children Protective Services division of OCDSS, was permitted to testify with respect to the contents of a report made by an employee under her supervision with respect to statements made by Brittany. Their testimony was properly admitted, as it tended to corroborate the testimony given by Brittany at the hearing, and respondent's objections were properly overruled. Respondent also complains that Barnes was permitted to testify that Smith had called her to inquire as to Brittany's progress at school; upon respondent's objection, the trial court limited the testimony to corroboration of Smith's testimony. Smith did not testify and Barnes' testimony, therefore, was not corroborative. However, since the trial court limited the purpose for which it could be considered, there can be no error in its admission, because the trial court is presumed to have disregarded incompetent evidence. See Brandis and Broun on North Carolina Evidence, 5th Ed., § 5, p. 14 (1998). Finally, the court permitted Holland to testify concerning a report made by another social worker, Sandy Norton, concerning what had occurred when she sought to visit respondent. The court, however, declined to consider the testimony to prove the truth of Norton's report, but limited its consideration to an explanation of the steps taken by OCDSS following the visit, a proper non-hearsay purpose of the evidence. Respondent's assignment of error directed to the admission of alleged hearsay testimony is overruled.
III.
Finally, respondent argues that the district court in Orange County did not have jurisdiction to order a change of custody since the district court in Durham County had previously asserted jurisdiction in the prior custody action. In making her argument, respondent misapprehends the holding of In re Greer, 26 N.C. App. 106, 215 S.E.2d 404 (1975), cert. denied, 287 N.C. 664, 216 S.E.2d 910 (1975). In Greer, the Court held that where a custody action was pending in the district court of one county, the district court of another county could not usurp that court's custody jurisdiction where there was no factual basis for the court's conclusion that the juvenile was neglected. Id. at 113, 215 S.E.2d at 409. However, this Court noted that, where justified by reason of delinquency, neglect, undiscipline, or dependence, the district court where a juvenile is found could assume custody jurisdiction under former G.S. § 7A-277 et seq. even when another court had custody jurisdiction under former G.S. § 50-13.1. Id. More recently, in In re Humphrey, 156 N.C. App. 533, 536-37, 577 S.E.2d 421, 425 (2003) , we distinguished Greer and held that where a determination of neglect was supported by findings of fact, the district court in the district where the child is located may assume custody jurisdiction notwithstanding the pendency of a prior child custody proceeding in another county.
At the time this proceeding was initiated, respondent Walker and the juvenile were residents of Orange County. The investigation and proceeding were initiated by the Orange County Department of Social Services. N.C. Gen. Stat. § 7B-200 (2001) places in the district court division the "exclusive, original jurisdiction over any case involving a juvenile who is alleged to be abused, neglected or dependent" and N.C. Gen. Stat. § 7B-400 (2001) places venue "in the district in which the juvenile resides or is present." Thus, the district court of Orange County properly exercised jurisdiction over this juvenile proceeding notwithstanding the pendency of the prior custody proceeding in the district court of Durham County.
Affirmed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).