An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA01-1588

NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2003


IN THE MATTER OF:
                                        Davidson County
JUSTIN DAVIS                                Nos. 01 J 68-69
TERRY DAVIS

    Appeal by respondent mother from an order entered 24 July 2001 by Judge Wayne L. Michael in Davidson County District Court. Heard in the Court of Appeals 17 September 2002.

    David A. Perez for petitioner-appellee Davidson County Department of Social Services; Laura B. Beck, Guardian Ad Litem.

    Jeffrey J. Berg for respondent-appellee Stephen Henry King.

    C. Roland Krueger for respondent-appellee Hubert Allen Beeson
.

    Scott B. Lewis for respondent-appellant.

    HUNTER, Judge.

    Respondent-appellant Dixie Ann Davis (“Davis”) appeals a dispositional order granting Respondent-appellee Stephen Henry King (“King”) unsupervised visitation with their son and their son's half-brother. We affirm.
    Davis is the mother of two minor children: Justin Davis (“Justin”) and Terry Davis (“Terry”). The children do not have thesame father. Justin's father is King. Terry's father is Respondent-appellant Hubert Alan Beeson (“Beeson”).   (See footnote 1)  Davis was never married to either man, and the children only resided with her prior to the events leading up to the present action.
    In February of 2001, the Davidson County Department of Social Services (“DSS”) learned that Davis had a personality disorder, as well as a history of depression, drug and alcohol abuse, and numerous instances involving domestic violence and civil disputes. DSS ultimately filed a juvenile petition on 12 March 2001 that alleged Justin and Terry were neglected, emotionally abused, and dependent children. The children were immediately taken into the custody of DSS.
    Prior to DSS' involvement, King had little contact with his son, Justin, and a limited acquaintance with Terry. After DSS assumed custody of the children however, King began exercising supervised visitation with Justin. King's wife attended each of the visits and King's stepdaughter attended every other visit. The visits went very well, and Justin appeared interested in developing a better relationship with his father.    King subsequently petitioned the court for custody of Justin. King also expressed an interest in providing a home for Terry so that the two siblings could remain together. Thus, following a 13 March 2001 court order, a home study was conducted of King's home as a possible placement option. As a result of the study, the Kings were recommended as “very appropriate to provide a loving, caring home for Justin.”
    As a part of a Family Services Case Plan (“Plan”) to further establish his suitability as a parent, King submitted to a mental health assessment on 26 March 2001. The psychologist that performed the evaluation concluded, in part, that King needed to (1) “demonstrate maturity and stability in relationships with other people before [undertaking] responsibility for the care of his child[;]” and (2) “demonstrate financial responsibility by obtaining remunerative employment, and working for the same employer for at least six months.”
    Also as a part of the Plan, King submitted to a substance abuse evaluation on 18 April 2001. The evaluation indicated low range marijuana usage despite King's earlier claim of non-drug use. DSS recommended he undergo forty hours of substance abuse treatment. King stated his willingness to undergo the recommended treatment in order to gain custody of Justin.    An adjudication hearing was held on 23 April 2001. At the hearing, the parties entered into a stipulation that the children were neglected and dependent. The presiding judge filed a Summary of Order on that same day indicating that Justin and Terry were adjudicated neglected and dependent, their physical custody remaining with DSS. The order also granted King unsupervised visitation with Justin. Several months later, on 6 December 2001 (after the initiation of this appeal), a formal adjudication order was filed.
    The disposition hearing was held on 21 May 2001. In an order filed on 24 July 2001, the court received into evidence and incorporated into its findings of fact the reports from social workers and the guardian ad litem, as well as all other documents presented to the court by DSS. Based upon these findings, the court concluded, inter alia:
            1.    That legal and physical custody of the minor children shall remain with [DSS] . . . .

            2.    That visitation with Respondent/Mother Dixie Davis shall take place for one hour one time per week to be supervised by [DSS] or person approved by the agency.

            3.    That the Respondent Stephen King is allowed unsupervised visitation with the minor child, Justin Davis, including overnight visits and that such visitations may includethe other minor child, Terry Davis, in the discretion of the [DSS].

Davis appeals.

I.

    On appeal, Davis assigns error to the trial court entering a dispositional order prior to the filing of a formal adjudication order. Specifically, Davis contends Judge Michael did not have sufficient knowledge of all the facts before he entered the dispositional order because (1) a formal adjudication order containing sufficient findings of fact, conclusions of law, and a specific adjudication of neglect and dependency had not been previously filed by the court, and (2) Judge Michael was not the same judge that presided over the adjudication hearing. We conclude there was no error.
    There are “two phases in juvenile hearings -- adjudication and disposition.” In re Eades, 143 N.C. App. 712, 713, 547 S.E.2d 146, 147 (2001). In an adjudication hearing, “[t]he allegations in a petition alleging abuse, neglect, or dependency shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-805 (2001). “Absent an adjudication . . . , a trial court has no authority to order disposition.” Eades, 143 N.C. App. at 714, 547 S.E.2d at 148.    In the case sub judice, the parties stipulated at the adjudication hearing that the children were neglected and dependent. That stipulation, as well as other evidence presented by DSS that Davis was unwilling to accept assistance or provide a safe environment for her children, supported the court's adjudication of Justin and Terry as neglected and dependent. No formal adjudication order was filed following the hearing and, at that time, there was no requirement as to when such a filing had to be done. See N.C. Gen. Stat. § 7B-807(b) (2001) (which is applicable to actions pending or filed after 1 January 2002 and states an adjudication order “shall be reduced to writing, signed, and entered no later than 30 days following the completion of the hearing”). However, a Summary of Order was immediately filed and available at the disposition hearing which provided competent evidence of the children's adjudication as neglected and dependent for disposition purposes. The formal adjudication order, despite being filed after the dispositional order, further validated the adjudication.
    Moreover, although Judge Michael did not preside over the adjudication hearing, he had access to all of the necessary documents that had also been before the court at that hearing. Further, a Report to the Court Dispositional Report was received into evidence at the disposition hearing and contained a“Procedural History” section detailing all the relevant facts leading up to the children being adjudicated neglected and dependent. The court considered and incorporated the written report and all the other evidence pertaining to the needs of the juveniles before determining King's visitation rights in the dispositional order. See N.C. Gen. Stat. § 7B-901 (2001) (stating that during a disposition hearing, “the court may consider written reports or other evidence concerning the needs of the juvenile”).     Thus, the court did not err in filing the dispositional order before the formal adjudication order even though both hearings were presided over by different judges.
II.

    Additionally, Davis assigns error to the trial court allowing King's unsupervised visitation with Terry to be determined at DSS' discretion. Davis primarily contends King lacks standing to pursue visitation with a juvenile that is not his son and cites case law in support of this contention in her brief. However, the issue is not whether King has standing to seek visitation, but rather, whether a trial court may authorize a governmental agency, such as DSS, discretion in allowing unsupervised visitation between a non- relative and a juvenile adjudicated neglected and dependent. We hold a trial court does have such authority.    Section 7B-905 of the North Carolina General Statutes clearly states that if a “juvenile is placed in the custody or placement responsibility of a county department of social services, the court may order the director to arrange, facilitate, and supervise a visitation plan expressly approved by the court.” N.C. Gen. Stat. § 7B-905(c) (2001). In the present case, both children were in the legal custody of DSS at the time of the disposition hearing. Thus, pursuant to Section 7B-905, the court, after awarding visitation rights to King, may then defer development of a visitation plan to that agency. Moreover, Section 7B-903 states, inter alia, “[i]n the case of any juvenile who needs more adequate care or supervision or who needs placement, the court may . . . [p]lace the juvenile in the custody of a parent, relative, private agency offering placement services, or some other suitable person[.]” N.C. Gen. Stat. § 7B-903(a)(2)b (2001) (emphasis added). If the court properly determined King was a “suitable person” with whom the children could be placed for visitation purposes, there was no error.
    The court's determination regarding King's suitability presents this Court with Davis' next argument. Davis argues that even if the trial court had the authority to authorize King visitation rights with the children, the evidence did not supporthe was a “suitable person” to be granted unsupervised visitation with Justin and Terry. We disagree.
    Visitation is a “subset of custody.” Jones v. Patience, 121 N.C. App. 434, 441, 466 S.E.2d 720, 724 (1996). Thus, like an order awarding custody, a trial court's order awarding visitation rights “must include findings of fact which support the determination of what is in the best interest of the child.” N.C. Gen. Stat. § 50-13.2(a) (2001). See also Jones, 121 N.C. App. at 441, 466 S.E.2d at 724. “In addition, when awarding visitation the trial court must also include findings to support its determination the party awarded visitation is a 'fit' person.” Id. All “the trial court's findings of fact are binding on this Court if they are supported by competent evidence, and its conclusions of law must be supported by its findings of fact.” Cantrell v. Wishon, 141 N.C. App. 340, 342, 540 S.E.2d 804, 805 (2000). A trial court's findings of fact are deemed conclusive, even where some evidence supports contrary findings, if they are supported by clear and convincing competent evidence. See In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997).
    As previously stated, the court incorporated numerous written documents from DSS and other evidence into the findings of fact of the dispositional order. Admittedly, we note some of the documents reflect negatively on whether King is a “suitable person” forvisitation purposes by containing (1) evidence King tested positive for marijuana usage, (2) a doctor's recommendation that King “needs to demonstrate maturity and stability in relationships,” and (3) evidence of King's lack of full-time employment. Nevertheless, the documents also contained clear and convincing competent evidence from which to conclude that these issues were being addressed.
    The home study report and the dispositional report provided evidence that King was willing and had made attempts to address his substance abuse problem. Also, these documents indicated King had shown “maturity and stability” in his ability to provide for his family as a husband and step-father, and abide by the visitation schedules when visiting Justin as established prior to the dispositional order. Finally, King had submitted several applications in an effort to gain full-time employment. Nevertheless, there was evidence that the Kings appeared financially stable and able to provide for Justin until such employment could be obtained because King made what income was necessary to support his family by performing odd jobs. Therefore, the court had competent evidence to conclude King was a suitable person to whom unsupervised visitation with the children could be granted.
    Accordingly, we affirm the trial court's dispositional order granting King unsupervised visitation with Justin and Terry.    Affirmed.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).


Footnote: 1
     Respondent Mitchell Dockery (“Dockery”), Davis' current boyfriend, was originally believed to be Terry's biological father. However, after a paternity test revealed Beeson was actually the child's biological father, Dockery was removed from this action.

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