Anticipatory Neglect and the A/N/D cases

 

   North Carolina law has long held that evidence substantiating anticipatory neglect is sufficient to give rise to an adjudication of neglect. The North Carolina appellate courts have in the past found anticipatory neglect in a variety of contexts in initial child welfare cases alleging neglect, including where parents were planning to move a child into a home that would be injurious (In re McClean, 135 N.C. App. 387 (1999)); and exposing a child to the potential of harm from violent behaviour and drug use (In re W.V., 204 N.C. App. 290 (2010). The anticipatory neglect doctrine has also been addressed within the arena of domestic violence ( In re K.J.D.,203 N.C. App. 653 (2010)). A variant on the anticipatory neglect doctrine can also found in the context of the the termination of parental rights case where the North Carolina appellate courts have long stated that neglect can be found as a ground to terminate parental rights where a child would likely suffer from a repetition of receiving improper care, discipline or be exposed to an injurious environment if returned back to the home of a parent. ( See In re Brimm,139 N.C. App. 733 (2000)).   

   The importance of the anticipatory doctrine lies in its divergence from the standard theory that underlies the garden variety neglect case: that an act or omission of a parent, guardian, caretaker or custodian has created a direct impact on a child such that a child receives deficient care, supervision, discipline or in exposed to an injurious environment. To borrow from the parlance of Tort Law, a nexus must typically be established between the parental act or omission and an actual injury to the child, the act or omission being the proximate cause of the injury. (Palsgraf v. Long Island R.R. Co., (248 N.Y. 339, 162 N.E. 99 (1928)). In the case of anticipatory neglect, no damage has occurred but liability still arises for creating the conditions that would likely lead to injury to a child. Thus, one need not establish that a child actually was stuck by a discarded needle tainted with Hepatitis C. Rather, the mere likelihood of such an occurrence is enough if it can be established that a child might reasonably have come across it in the house.The same can be said for parental impairment or domestic violence: the child need not be physically harmed by these acts. Rather, it is enough to show that these acts might overflow (however unintended that might be) to the detriment of the child.

   Of course, the touchstone of child welfare law in North Carolina is that clear, cogent and convincing evidence exist that a child will be harmed by parental acts or omissions. Accordingly, those prosecuting or defending against such claims must bear in mind what the evidence must show. Simply put, there must be a reasonable understanding that the overwhelmingly likely trajectory of events will lead to a child getting hurt or suffering a detrimental lack of care or being exposed to something no child should have to encounter.