IN THE MATTER OF: D.S.W.
Lenoir County &nb
sp;
No. 03 J 73
Griffin & Griffin by Robert W. Griffin, for Petitioner-
Appellee Lenoir County Department of Social Services.
Rebekah W. Davis, for Respondent-Appellant.
Gerrans, Foster & Sargeant, P.A. by Jonathon L. Sargeant, for
third-party-appellees.
STEELMAN, Judge.
D.S.W., a minor child, and his mother (respondent), were found
wandering the streets and homeless in May of 2003. Respondent had
a serious drug addiction. Lenoir County Department of Social
Services assumed custody of the child. D.S.W. subsequently began
to live with his father, but was removed from his father's custody
when his father, who had prior convictions for drug related crimes,
tested positive on two drug screens. D.S.W. was then placed with
third-party petitioners, his paternal grandfather (grandfather) and
his wife, in October of 2003. Respondent did not involve herself
in the matter until her first appearance in court on 2 March 2004.
D.S.W. adjusted well living with his grandfather. The child'smaternal grandmother (grandmother) was involved in the case, and
requested visitation with D.S.W. The grandfather and grandmother
reached an agreement on visitation, which became effective in
January of 2004. Grandfather and grandmother both signed a written
visitation plan prepared by Department of Social Services on 2
March 2004, and this agreement continued in effect through the time
when the order from which respondent appeals was entered. In April
of 2004, the permanent plan for D.S.W. was custody with relatives,
and custody was transferred to grandfather and his wife on 8 June
2004. On 12 October 2004 grandfather and his wife were made
guardians of the child, the visitation schedule agreed to by the
parties was continued in effect, and jurisdiction for issues
involving visitation was transferred from the juvenile division to
the domestic division of district court. This order was entered 10
November 2004. From this order, respondent appeals.
In her first argument, respondent contends that the trial
court erred in refusing to hold a full and fair hearing or to admit
evidence regarding the issues involved in the disposition order,
and therefore the evidence is insufficient to support the trial
court's findings of fact and conclusions of law. We disagree.
The dispositional hearing may be informal and
the court may consider written reports or
other evidence concerning the needs of the
juvenile. The juvenile and the juvenile's
parent, guardian, or custodian shall have an
opportunity to present evidence, and they may
advise the court concerning the disposition
they believe to be in the best interests of
the juvenile. The court may consider any
evidence, including hearsay evidence as
defined in G.S. 8C-1, Rule 801, that the court
finds to be relevant, reliable, and necessaryto determine the needs of the juvenile and the
most appropriate disposition.
N.C. Gen. Stat. § 7B-901. In the instant case, the trial court
incorporated reports from Department of Social Services and the
guardian ad litem into its order. The trial court properly relied
on these reports in support of its findings of fact. In re Ivey,
156 N.C. App. 398, 402, 576 S.E.2d 386, 390 (2003). Further,
counsel for all of the parties presented evidence and arguments.
Respondent's counsel informed the trial court of respondent's
progress, and argued her position in detail to the court.
The dispositional hearing may be informal, the rules of
evidence do not apply, and hearsay statements may be considered by
the trial court. N.C. Gen. Stat. § 7B-901. Department of Social
Services social worker Cynthia Couch, author of the Department of
Social Services report considered by the trial court, was present
at the hearing. She informed the trial court that respondent was
in drug treatment in prison, and that she was currently drug free.
Couch was available for questioning, but respondent's attorney did
not question her. The guardian ad litem supervisor, D.S.W.'s
father, the child's grandfather and his wife, and the child's
grandmother and her husband, were all present and available for
questioning. Respondent was afforded the opportunity to present
evidence, and her attorney elected not to do so. We hold that
respondent received a fair and full hearing.
Respondent further argues that the trial court erred by
failing to indicate in its order that its findings of fact were
supported by clear, cogent, and convincing evidence. Respondentdid not preserve this argument by an assignment of error in the
record, and thus it is deemed abandoned.
Koufman v. Koufman, 330
N.C. 93, 98, 408 S.E.2d 729, 731 (1991)
. Respondent has not
specifically assigned as error any findings of fact, and thus they
are binding on appeal.
In re Beasley, 147 N.C. App. 399, 405, 555
S.E.2d 643, 647 (2001).
Finally, respondent argues that the trial
court erred in refusing to continue the hearing so that she could
be transferred from prison to attend. Respondent has failed to
preserve this issue by assignment of error in the record and has
thus abandoned it.
Koufman, 330 N.C. at 98, 408 S.E.2d at 731
.
This argument is dismissed.
In her second argument, respondent contends that the trial
court erred and exceeded its authority in ordering that any motions
for modification of visitation should be filed in the domestic
division of district court. We disagree.
The district court has “exclusive, original jurisdiction over
any case involving a juvenile who is alleged to be abused,
neglected, or dependent.” N.C. Gen. Stat. § 7B-200; N.C. Gen. Stat.
§ 7B-101(6). The district court retains jurisdiction over these
matters until jurisdiction is terminated by order of the court, or
the juvenile attains the age of majority or is otherwise
emancipated. N.C. Gen. Stat. §§ 7B-201 and 7B-1000(b). The
district court may not, however, terminate its jurisdiction “to
conduct a review hearing if a party files a motion seeking the
review.” N.C. Gen. Stat. § 7B-906.
In the instant case, the trial court ordered: Unless the matter is brought before the court
my a motion for review by any party, the court
terminates its jurisdiction in this matter,
further reviews are waived, and the case is
removed from the active docket of the juvenile
court. Any motions for modification of
visitation shall be filed in domestic court.
The juvenile division and the domestic division are both arms of
the district court. The trial court thus explicitly retained
jurisdiction to conduct review hearings on motion of a party
pursuant to N.C. Gen. Stat. § 7B-906 in the juvenile division and
ordered that any future motions for modification of visitation be
filed in the domestic division. Pursuant to the trial court's
order, the district court retained jurisdiction to hear matters
arising from the instant case. This argument is without merit.
In her third argument, respondent contends that the trial
court abused its discretion in making the grandfather and his wife
guardians because they have not been cooperative in addressing
issues concerning the grandmother's visitation, and further because
the trial court's order prevents the grandmother from filing a
motion for review of the visitation schedule. We disagree.
At the disposition hearing the trial court must make a
determination based on the best interests of the child, and the
trial court's decision will not be overturned absent an abuse of
its discretion. In re Dexter, 147 N.C. App. 110, 114, 553 S.E.2d
922, 924-25 (2001). In the instant case, there is nothing in the
trial court's order supporting respondent's contention that the
grandfather has not been cooperative with respect to visitation
with the grandmother. The record shows, and the order reflects,that the grandfather and the grandmother entered into a visitation
agreement after physical custody of the child was placed with the
grandfather and his wife. This agreement mandates unsupervised
visitation with the grandmother every Wednesday from 8:00 a.m. to
5:00 p.m., every second weekend of each month from 8:00 a.m. Friday
until 5:00 p.m. Sunday, and additional time shared between the
parties around the Christmas, Thanksgiving and Easter holidays.
The trial court ordered that this agreed upon visitation schedule
be continued as the minimum visitation allowed the grandmother
unless and until modified by the consent of the parties or court
order. As held above, the trial court did not err in requiring
motions for modification of visitation to be filed in the domestic
division of district court. Further, the trial court found that
the child was doing well living with the grandfather, that visits
with the grandmother were going well, and that continued placement
with the grandfather was in the child's best interests. The trial
court did not abuse its discretion in making the grandfather and
his wife guardians of D.S.W. This argument is without merit.
AFFIRMED.
Judges HUNTER and TYSON concur.
Report per Rule 30(e).
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