In re K.G., 260 N.C. App. 373 (2018)

note, because DSS has custody through the delinquency order, the holding does not require custody be returned to the parents

• Facts: The juvenile was placed in DSS custody through an order entered in a delinquency action. DSS initiated a dependency action, alleging the juvenile was incarcerated, had stolen money from his parents (respondents), repeatedly ran away from home and refused to go home, and the parents reported to law enforcement when the juvenile ran away and have sought services from DJJ to help manage the juvenile’s behavior.
• Issue: Whether the trial court erred in denying the respondent’s 12(b)(6) motion to dismiss DSS’s petition alleging dependency based on a failure to state a claim for which relief may be granted.
• Standard of review: The appellate court reviews de novo whether the allegations in the complaint are, as a matter of law, sufficient to state a claim upon which relief may be granted. The allegations are treated as true and are construed liberally. A denial of a motion to dismiss will be reversed only when the “plaintiff is entitled to no relief under any set of facts which could be proven to support the claim.” Sl. Op. at 4.
• In a dependency petition, the allegations must address the respondents’ inability to provide for the child’s care or supervision and lacked an appropriate alternative child care arrangement. Here, the allegations in the petition if taken as true do not address either prong for a dependency adjudication and instead “at best establish that [the juvenile] is a delinquent or undisciplined juvenile,… matters to be addressed in his pending juvenile delinquency court cases, and that Respondents were working with juvenile justice officials to obtain services for [the juvenile].” Sl. Op. at 5-6. Respondents are willing and able to care for and supervise the child, and the child’s willful acts (e.g., his behavior and refusal to go home) do not determine the  parent’s ability to care for the juvenile.