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 ofvenue 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 byOCDSS, 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.
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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, atWalker'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 shedid 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 thechild.” 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, 5
th 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 theevidence. 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).