In re K.J.M., 288 N.C. App. 332 (2023)
Held:
Affirmed
- Facts: A 6-year-old juvenile was adjudicated neglected. Mother was incarcerated. Father was deceased. Mother left the juvenile with her mother who placed the juvenile with a non-relative. That non-relative caretaker was arrested for possession of methamphetamine while the child was present. There was no one available to care for the juvenile. Although mother identified her brother and sister-in-law as an option, those relatives were not willing to care for the juvenile. The neglect adjudication was based on a lack of proper care, supervision, or discipline, and an injurious environment. Mother appealed after the initial dispositional order was entered challenging the adjudication order only.
- Mother successfully challenged some findings of fact as conclusions of law. Regardless of how they are labeled, the appellate court applies the proper standard of review, which for conclusions of law is a de novo review.
- G.S. 7B-101(15) defines neglect as a parent, guardian, custodian, or caretaker who does not provide proper care, supervision, or discipline to a juvenile or creates an injurious environment to the juvenile’s welfare. Additionally, case law requires there must be a physical, emotional, or mental impairment or substantial risk of such impairment as a result. This requirement results from the State’s “authority … to regulate the parent’s constitutional right to rear their children, Meyer v. Nebraska, 262 U.S. 390 (1923), only when ‘it appears that parental decisions will jeopardize the health or safety of the child.’ ” Sl.Op. at 24 (citation omitted).
- The challenged finding that the juvenile was without a caretaker of any kind after the caretaker’s arrest is supported by the evidence since neither parent was available, the grandmother had placed the child with the caretaker who was arrested, and the brother and sister-in-law were unavailable to provide care. The court logically reasoned there was no other available caretaker. Regardless of whether grandmother was appropriate, grandmother being available as a caretaker was not admitted in evidence. The evidence showed she had given her caretaker role to another person and mother did not identify grandmother as a potential resource when approached by DSS. Mother’s argument on appeal that grandmother was appropriate and available was not argued before the trial court, and mother cannot swap horses on appeal having argued grandmother’s actions led to the child’s removal at the adjudication hearing.
- The findings were supported by clear and convincing evidence, which includes social worker testimony. The statements made by the caretaker, which were included in the allegations in the petition, were excluded as hearsay and were not considered by the court. The statement “the allegations in the Juvenile Petition have been proven by clear, cogent, and convincing evidence” do not mean the trial court concluded that all of the allegations were proved. That is a hypertechnical reading. Further the court’s statement regarding clear, cogent, and convincing evidence complies with G.S. 7B-807, which requires the court recite the standard it relied upon for adjudication.
- The findings support the conclusion of a substantial risk of harm to the child. At six years old, the juvenile did not have caretaker which at the time of DSS intervention appeared to be indefinite. A child that age faces a substantial risk of harm or impairment when without a caretaker for an indefinite period of time. In In re D.C., 183 N.C. App. 344 (2007), a 16 month old was at substantial risk of harm when left alone for more than 30 minutes in a hotel room. This case is not distinguished from In re D.C. because of the difference in age or location. Here, the juvenile would have been “capable of exploring and encountering various hazards” when left alone for an indefinite period of time. Sl. Op. at 26. The court does not have to wait for actual harm to occur.
Category:
Abuse, Neglect, DependencyStage:
AdjudicationTopic:
Neglect