In re D.S., 286 N.C. App. 1 (2022)

  • Facts: Infant was born and tested positive for THC and was also placed in NICU due to low blood sugar. Report to DSS was made and based on mother’s prior history with DSS involving substance use and unstable housing, agreement was made where infant was discharged from hospital to father’s home. Two weeks later, DSS and law enforcement did a courtesy check, where father was not present for approximately 5 minutes. When father arrived, social worker and law enforcement officer entered home with father and found infant sleeping in his room; no one else was present in the home. DSS filed a neglect and dependency petition. The juvenile was adjudicated neglected and dependent based on stipulations and father appealed.
  • Under G.S. 7B-101(15), neglect involves the lack of proper care, supervision, or discipline and/or an environment that is injurious to the juvenile’s welfare. There must be some physical, emotional, or mental impairment, or substantial risk of such impairment, to the juvenile as a result.
  • Prior involvement with DSS standing alone is insufficient to support an adjudication of neglect. The court must find other factors that suggest the neglect will be repeated. In reviewing the conclusion of law (neglect) de novo, the unchallenged findings do not support the conclusion. The stipulations do not address when and why mother had a past DSS history, other than general references to substance use and unstable housing, and do not address the presence of any factors that would suggest the neglect from mother’s prior DSS case would be repeated. There were no findings addressing the relationship between THC and the infant’s low blood sugar levels. The infant was placed with father, who had no prior DSS history.  There is no findings or evidence of harm or substantial risk of harm to the juvenile.
  • There were no findings that leaving the child briefly unattended caused harm or a substantial risk of harm. This case is distinguishable from  In re D.C., 183 N.C. App. 344 (2007), where the child was left alone in a motel room for 30 minutes and was in distress. Here, the  infant was sleeping in his crib when left briefly alone and was in no apparent distress. There is no indication that the child was more at risk than what he would have been if his father were sleeping in another room.
  • The argument of DSS that the court should look to criminal statutes, specifically G.S. 14-318, for neglect and adopt a per se rule that a violation of the criminal statute is neglect is rejected. Neglect is defined in the Juvenile Code, which has a purpose of preventing the unnecessary separation of juveniles from their parents. The Juvenile Code “is not intended to punish parents; it is intended to ensure the wellbeing of juveniles.”  286 N.C. App. at 19.  “We see no reason to link two distinct Chapters of our General Statutes when our legislature intentionally drafted § 7B-101(15) without reference to Chapter 14 when it easily could have chosen to….” 286 N.C. App. at 18. There were no findings that father’s home was inappropriate.
  • Dependency under G.S. 7B-101(9) requires findings that both parents lack the ability to provide care or supervision and lack an appropriate alternative child care arrangement. Although the findings show mother was incapable of providing proper care, mother had father as an appropriate alternative childcare arrangement. The minimal facts that the child was left alone for 5 minutes does not establish both parents were unable to provide proper care or supervision and lacked appropriate alternative childcare arrangements.
Abuse, Neglect, Dependency
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