Adjudicating Neglect Where the Child Lacks Adequate Housing: A Delicate Balance

                Many juvenile cases involve the issue of lack of appropriate housing for children. Whether a parent, guardian, caretaker or custodian is homeless, is intransigent, or the home which they maintain does not meet minimum community standards, where a child lacks access to appropriate and safe housing prior to the filing of a juvenile petition, an allegation of neglect is often appropriate.

                However, not every case where a child lacks access to appropriate housing merits a juvenile petition. It is always important and necessary when evaluating whether a child’s housing needs are being met to ascertain whether there is a nexus between a child’s living situation and decisions made by a parent, guardian, caretaker or custodian regarding that living situation. To this end where the child is forced to live in substandard conditions or in conditions due to poor decisions made by those providing care for child and where the child is expose to perpetual impermanence, homelessness or exposure to household conditions that are below minimum community standards such a nexus will be readily found and a juvenile petition alleging neglect is necessary to protect the child from further bad decision-making.

The situation is altogether different where a child’s poor housing situation is the result of involuntarily circumstances, poverty, or misfortune. North Carolina law is clear that mere poverty (including homelessness) standing alone, is not an appropriate basis for alleging neglect based on improper care or the existence of an injurious environment. (See N.C. Gen. Stat. 7B-1111(a)(2)).  Rather, the Juvenile Code requires, outside of evidence that the child lacks appropriate housing, that there be something more, to wit, that there be evidence that decisions made by those who take care of a child are directly responsible for the child’s lack of appropriate housing resources. (See e.g. In re Black, 76 N.C. App. 106, 332 S.E.2d 85 (1985)). This evidentiary inquiry can take two distinct directions. First, given that the child is living in inappropriate conditions, it must be asked whether a parent, guardian, caretaker or custodian has sought out different accommodations for the child. In such a case, such as where those providing care for a child voluntarily place a child in a relative or kinship placement that is safe and appropriate to meet the child’s needs prior to a juvenile petition being filed, there will not be a basis for a court to find that the child is neglected, at least with regard to the housing issue. S=3 However, if those who provide care for a child refuse to look for an alternative placement for the child while they are homeless, or where the county department of social services is required to locate a relative or kinship placement and where the child is placed in such a home at the behest of the agency, then it is still possible for a Juvenile Court to find the child neglected.

Thus in a case where a mother placed a juvenile in a voluntary kinship arrangement with maternal grandparents prior to a county department of social services filing a juvenile petition at the urging of the DSS and where the conditions of the Mother did not improve but posed a continued risk of harm to the child if the child were to return to her care, the Appellate Court affirmed an adjudication of neglect where the trial court considered the conditions surrounding the child as they exist at the time of the adjudication. (See In re K.J.D., 203 N.C. App. 653, 692 S.E.2d 437 (2010)). However, in another case where a homeless mother placed a child with a third party without input from the DSS, the court reversed a trial court’s adjudication of neglect, noting also that there was no evidence that suggested on-going risk to the child. (See In re B.P., __N.C. App.__, __S.E.2d__(January 16, 2018)).