parents refused to send children to day care, where they could receive supervision, nutrition, and medical care
How later courts described this case
- parents refused to send children to day care, where they could receive supervision, nutrition, and medical care
Written by the judges who cited it.
The opinion
Chief Judge HEDRICK
dissenting.
As, her second assignment of error respondent contends the trial court committed reversible error in finding that the minor children were neglected. I agree.
The purpose of an adjudicatory hearing is to determine the “existence or nonexistence of any of the conditions alleged in a petition.” G.S. 7A-631. At the hearing, “the allegations in a petition alleging . . . neglect . . . shall be proved by clear and convincing evidence.” G.S. 7A-635. “If the judge finds that the allegations have not been proven, he shall dismiss the petition with prejudice . . . .” G.S. 7A-637.
*572 G.S. 7A-517(21) defines a “neglected juvenile” as follows:
A juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law ....
In the present case, the testimony presented by Mrs. Coley tends to show that the allegations she made in the petition concern conditions which she found existed in respondent’s home at the time she began her investigation in January 1991. Her testimony does not indicate that these conditions existed at the time she filed the petition in April 1991 or at the time of the hearing. In fact, the greater weight of her testimony suggests that through the intervention of DSS, these conditions were being remedied as of the date of the petition.
In his closing argument to the court, counsel for DSS stated:
Your Honor, we would certainly admit that this is not one of the worst neglect cases that we have ever brought, it is a marginal case — its a case where the mother has worked with Social Services to some extent to try [to] improve conditions in the home ....
The trial judge apparently agreed with counsel to a certain extent as is evidenced by his order allowing respondent to retain custody of the children. However, the trial judge did find, by clear and convincing evidence, that the children were “neglected” pursuant to the statute and in so doing, placed respondent in a detrimental position for protecting her parental rights in the future.
I hold the trial judge’s findings that respondent’s children were “neglected” were not supported by clear and convincing evidence in the record. Thus, I vote to reverse the order adjudicating respondent’s minor children to be neglected pursuant to G.S. 7A-517(21).