In re K.L., 272 N.C. App. 30 (2020)
Held:
Reversed and Remanded
- Facts: This case involves an appeal of an adjudication of an abused and neglected infant and an adjudication of a neglected juvenile, the infant’s 8-year old sibling who was living in the home with the infant. Mother sought medical treatment for the infant, which included x-rays. It was discovered that the infant had 6 fractures in his legs but no other injuries or marks. The cause of infant’s injuries were unknown to the parents. The parents were cooperative in seeking treatment for the child and in working with DSS. Mother raised concerns about the infant having rickets because of her family history. The infant has a Vitamin D deficiency but does not have rickets. The father stated two weeks prior to mother seeking medical attention for the infant, the child had fallen off the couch but did not appear injured. A medical provider testified that it was highly probable the injuries were caused by non-accidental trauma and not a fall from the couch.
- Standard of review of an adjudication is whether clear and convincing evidence supports the findings and whether the findings support the conclusion of law. An abuse or neglect adjudication is a conclusion of law that is reviewed de novo. A de novo review is when the appellate “[c]ourt ‘considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.’ ” Sl.Op. at 10.
- Sufficiency of Notice regarding Neglect: The petition alleging abuse, neglect, or dependency must contain “allegations of facts sufficient to invoke jurisdiction over the juvenile.” G.S. 7B-402(a). “If the allegations are insufficient to put the party on notice as to which alleged grounds are at issue, then the trial court lacks subject matter jurisdiction over the action.” Sl.Op. at 26. But, the petition is adequate if it contains factual allegations that are sufficient to put the party on notice as to each alleged ground for adjudication, even if DSS forgets to check the box on the form petition of the ground. In this case, DSS alleged abuse, both by checking the abuse box, by its allegations, and by tracking the language of the abuse statute. There was no separate claim for or reference to neglect or the statutory language of the definition of neglect in the petition. Respondents did not have notice of the neglect ground for the infant.
- Neglect of Sibling:The definition of neglect under G.S. 7B-101(15) states it is relevant whether the juvenile lives in the home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home. Although the trial judge has discretion in determining the weight to give to that factor, prior abuse in and of itself is insufficient to support a neglect adjudication. Other factors are required – factors that suggest the abuse or neglect will be repeated, such as domestic violence or substance abuse issues, an unwillingness to engage in services or work with DSS about the prior abuse or neglect; or the failure to accept responsibility for the prior adjudications. Here, the sibling’s adjudication as neglected is based on the abuse adjudication without any of the additional factors. The findings do not support the conclusion of neglect.
Category:
Abuse, Neglect, DependencyStage:
AdjudicationTopic:
Neglect