In re L.G.A., 277 N.C. App. 46 (2021)
Held:
Affirmed in Part
Vacated and Remanded in Part
- Facts: The juvenile was adjudicated neglected due to domestic violence between the parents and the case continued through dispositional hearings. In 2019, father filed a motion for review seeking custody of the juvenile, alleging positive changes to his situation. The court awarded full legal and physical custody of the juvenile to father and provided supervised visitation to mother upon her release from jail. Mother appealed. One issue challenges the court’s award of custody to father as mother argued father’s past conduct should have been considered.
- Standard of review of a permanency planning order is whether there is competent evidence to support the findings and whether the findings support the conclusions. The best interests determination is for an abuse of discretion.
- The findings address father’s progress since the last disposition in the action, and other findings are based on competent evidence. The trial court has the discretion as the finder of fact to determine the credibility and weight of the evidence. The findings support the court’s conclusion to award custody to father and is not an abuse of discretion.
- Judicial notice is governed Rule 201 of the Rules of Evidence. A judicially noticed fact must be one that is not subject to reasonable dispute because it is either generally known within the court’s jurisdictional territory or is capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned. Here, the trial court took judicial notice of the widely-known benefits of the service program father participated in. This fact is based on the judge’s personal experience and is not an indisputable matter or a matter of common knowledge as such it is not appropriate for judicial notice. Further, mother did not waive appellate review of this issue by not objecting to this finding when the court rendered it at the conclusion of the hearing. The rendition by the judge is not an order under Rule 58 of the N.C. Civ.P. Rules and is not required to occur at the conclusion of a hearing. There is no legal basis for an objection to the rendered ruling.
Category:
Abuse, Neglect, DependencyStage:
Disposition (All Stages Post-Adjudication)Topic:
Custody Order