A Subtle Point to Consider in a Case Where a Juvenile has been Alleged to be Neglected and/or Dependent

Can a child be neglected or dependent when the child, at the time of the adjudication, hasn’t being immediately impacted by neglectful parental behavior or is in a safe, alternative care-giving arrangement?

Surprisingly, the answer is both “yes” and “no”.

On the negative side of the equation, where a parent of a child has engaged in behavior which might be questionable but there is no impact on the child and no likelihood of an impact in the future as of the date of the adjudication hearing, an adjudication of neglect is inappropriate. The reason is that that to sustain an adjudication of neglect, the alleged neglectful conditions must cause the juvenile “some physical, mental, or emotional impairment” or create a substantial risk of such impairment. In re Safriet, 112 N.C. App. 747, 436 S.E.2d 898 (1993). Likewise, where that parent of a child is unable to provide appropriate care and supervision for a child but makes their own arrangement for the child to receive such care and supervision, then the child cannot be dependent. In re B.M., 183 N.C. App. 84, 643 S.E.2d 644 (2007); In re B.P., __N.C. App.__,__S.E.2d__(January 18, 2018).

On the positive side of the equation, where a parent’s acts or omissions create a reasonable likelihood of injury or impairment as of the time of the adjudication hearing, even when that injury or impairment has not transpired, an adjudication of neglect is appropriate. “The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the [adjudication] proceeding” which requires the trial court to “. . . consider the conditions [in the home] as they exist at the time of the adjudication as well as the risk of harm to the child from return to a parent[.]” See In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010).

Additionally, even when a juvenile has been placed in an appropriate home and is no longer immediately affected by a parent’s inability to provide for the child’s care or supervision, the critical inquiry is whether the parent created the alternative care arrangement or whether the parents is merely acquiescing to a plan developed by a county DSS. In the latter case, “. . .it is not enough that the parent merely goes along with a plan created by DSS” and doing so continues to make the child’s status dependent. See In re L.H., 210 N.C. App. 355, 366, 708 S.E.2d 191, 198 (2011); In re B.P.,__N.C. App.__, __S.E.2d__(January 16, 2018).

Thus in such circumstances where neglect or dependency are alleged with regard to a juvenile, the critical inquiry is always with reference to the facts and circumstances surrounding the child as of the time of the adjudication. However, when assessing the evidence of such facts and circumstances for a time period up to the time of the adjudication, it is not enough for the trial court to assess only what acts and/or omissions have been undertaken by a parent. Rather, the court must find a nexus between those acts and present injury or impact on the child (or the imminent likelihood of the same) and, in those cases where the child has been placed with a third party, pay particular attention to who arranged the placement.