Evans, Matter of
| Decision Date | 17 June 1986 |
| Docket Number | No. 8514DC1020,8514DC1020 |
| Parties | In the Matter of Natasha EVANS, Juvenile. |
| Court | North Carolina Court of Appeals |
Thomas J. Andrews, Durham, for respondent-appellant.
No brief for petitioner-appellee, Durham County Dept. of Social Services.
No brief for guardian-ad-litem.
Respondent Helen Evans seeks the reversal of a district court order finding her seven-year-old daughter, Natasha Evans, to be dependent and neglected within the meaning of N.C.Gen.Stat.Sec. 7A-517 (1981), removing the child from the mother's care and placing legal and physical custody of Natasha in the Durham County Department of Social Services (DSS). We vacate and remand.
On 12 July 1984, the DSS filed a petition alleging that Natasha was dependent and neglected and obtained a non-secure custody order. On 26 February 1985, a full hearing on the merits was held. The district court made findings of fact which are outlined below.
On 11 July 1984, Helen Evans went to the DSS seeking food and housing assistance for herself and Natasha. DSS personnel observed that Natasha was "dirty, her hair had not been combed for a while and [Helen] Evans was also observed to be in a similar unkempt condition." The DSS found Helen and Natasha Evans a place in a rooming house, but the mother and child returned to the DSS the next day. Helen Evans told the DSS that her AFDC check had been stolen and asked for assistance in finding another place to live. Helen Evans had requested housing assistance from the DSS on other occasions; the last time prior to 11 July 1984 was in February of 1984.
Helen Evans is now living with her sixteen-year-old son in a rooming house. According to the district court,
[she] sees nothing inappropriate with her and her 16-yr. old son living in a single room. This is also the living arrangement which she has available for her child Natasha if the court grants her request to return her to her custody.
A psychologist, Dr. Shannon Van Wey, testified at this hearing about his evaluation of Helen Evans. The district court found that this evaluation "[did] not reveal any serious pathology although [the psychologist] has grave concerns about [Helen Evans'] lack of impulse control which is reflected in her history of instability and lack of responsibility." Helen Evans had missed and failed to re-schedule appointments with the psychologist in September and October of 1984.
The court found that although Helen Evans loves Natasha, she "is very limited in her ability to be a proper parent for her," and that she does not have a "suitable" place for Natasha to live. Natasha had missed school from mid-April 1984 to the end of that school year, but now she is "thriving in foster care and doing well both socially and academically in school."
The district court concluded that Natasha is dependent and neglected as defined by G.S. Sec. 7A-517 and that it is in her best interest for her legal and physical custody to be placed with the DSS. The court also concluded that reasonable efforts would be made by the DSS to return Natasha to Helen Evans' custody providing Evans gets a permanent job, secures "suitable housing," including separate beds for herself and each of her two children, and participates in "any recommended treatment plan" prescribed by Dr. Harold T. Harris.
Helen Evans contends that the district court erred when it concluded that Natasha was dependent and neglected within the meaning of G.S. Sec. 7A-517 because there was insufficient evidence as a matter of law to support that conclusion. This is an unusual appeal in which this Court is being asked to pass upon the sufficiency of evidence to support findings of dependency and neglect at the removal, rather than at the termination, stage. Respondent makes a very forceful argument, citing the termination cases, that the evidence is so scanty in this case that it does not rise to the level necessary to support the conclusion of neglect and dependency. While we would be inclined to agree with respondent's position if this were a termination case, we believe that a different standard applies at the removal stage and that the removal was therefore proper.
N.C.Gen.Stat. Sec. 7A-517(3) authorizes the DSS to take a juvenile into immediate temporary custody if there are reasonable grounds to believe that the juvenile is abused, neglected, or dependent and that she would be injured or could not be taken into custody if it were first necessary to obtain a court order. A dependent juvenile is one whose parent, guardian, or custodian is unable to provide for her care or supervision. See G.S. Sec. 7A-517(13) (emphasis added). A neglected juvenile is one who, among other things, does not receive proper care, supervision, or discipline from her parent or who lives in an environment injurious to her welfare. See G.S. Sec. 7A-517(21).
When a juvenile is alleged to be neglected or dependent and is taken into temporary custody, the DSS must petition a court for secure or non-secure custody. An order for non-secure custody will be made only when there is a reasonable factual basis to believe that the matters alleged by the DSS in its petition for non-secure custody are true and that the juvenile is exposed to a substantial risk of physical injury because the parent has created the conditions likely to cause injury or has failed to provide, or is unable to provide adequate supervision or protection. See N.C.Gen.Stat. Sec. 7A-574(a)(3) (1985 Cum.Supp.) (emphasis added).
The State then has the burden, at the adjudicatory hearing stage, to prove neglect and dependency by clear and convincing evidence. See N.C.Gen.Stat. Sec. 7A-635 (1981). Respondent points out that our courts have...
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...467 N.E.2d 866, 869 (1984) (discussing "the settled distinction between custody and termination proceedings"); Matter of Evans, 81 N.C.App. 449, 344 S.E.2d 325, 327 (1986) (different standards apply to removal rather than termination proceedings); and State in Interest of Alexander, 384 So.......
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