Yow, Matter of
| Citation | 253 S.E.2d 647,40 N.C.App. 688 |
| Court | North Carolina Court of Appeals |
| Decision Date | 14 September 1972 |
| Parties | In the Matter of Zann Xavier YOW, d. o. b |
Wright & Parrish by Carl F. Parrish, Winston-Salem, for Arvil Crater and Lucinda Crater, respondents-appellees.
This proceeding was brought pursuant to Article 23 of Chapter 7A of the General Statutes of North Carolina. This appeal is by a parent who has contested an award of custody under this Article of the General Statutes. The parties in their briefs have cited no cases and we have found none dealing with such a contest. We believe it is a case of first impression. We quote at length some pertinent parts of Article 23.
G.S. 7A-278 says:
* * * * * * (3) "Dependent child" is a child who is in need of placement, special care or treatment because such child has no parent, guardian or custodian to be responsible for his supervision or care, or whose parent, guardian or custodian is unable to provide for his supervision or care.
G.S. 7A-283 says:
The summons and a copy of the petition shall be served upon the parents or either of them or the guardian or custodian, and the child, not less than five days prior to the date scheduled for the hearing . . . .
G.S. 7A-286 says:
The judge shall select the disposition which provides for the protection . . . of the child after considering the factual evidence, the needs of the child, and the available resources, as may be appropriate in each case. . . .
In any case where the court adjudicates the child to be . . . dependent . . . , the jurisdiction of the court to modify any order of disposition made in the case shall continue during the minority of the child or until terminated by order of the court . . . .
* * * * * *
. . . Upon motion in the cause or petition, and after notice as provided in this article, the court may conduct a review hearing to determine whether the order of the court is in the best interest of the child, and the court may modify or vacate the order in light of changes in circumstances or the needs of the child.
The following alternatives for disposition shall be available to any judge exercising juvenile jurisdiction . . .
* * * * * *
(2) In the case of any child . . . who needs placement, the court may:
* * * * * *
b. Place the child in the custody of a parent, relative, private agency offering placement services, or some other suitable person;
* * * * * *
In any case where custody is removed from a parent, the court shall after 10 days' notice to the parent order and conduct periodic reviews, not less frequently than semiannually during the first year after such removal and annually thereafter, to determine if the needs of the child are being met and if the placement is in the child's best interests.
From reading the statute, it can be seen that the General Assembly has provided for a method of having a person found to be a dependent child. A dependent child is one who needs placement because he does not have a parent, guardian, or custodian to be responsible for his supervision or care, or his parent, guardian or custodian is unable to provide for his supervision or care. In order to have a child declared dependent, it is not necessary to serve the petition on both parents, but only on one of them or the guardian or custodian. Upon a finding that the child is dependent, the court may place the child in the custody of a suitable person. The statute provides for review of the status of the placement semiannually for the first year after the initial placement and annually thereafter. It also provides that after a child has been adjudicated to be dependent, the jurisdiction of the court shall continue during the minority of the child or until terminated by order of the court.
The appellant contends we should reverse the district court and award her custody of Zann Xavier Yow. She says this should be done because she was deprived of due process by not being served with any notice before the first hearing and the district court so held. She argues further that since the initial finding that the child was dependent is not binding on her and the court found in its order of 28 November 1978 that she is a fit and proper person to have custody of Zann Xavier Yow, there was no basis for finding as to her that the child is dependent. She concludes that her fundamental right as the natural mother of Zann Xavier Yow requires that she be given custody. We are faced at the outset of this case with the question of whether G.S. 7A-283 is unconstitutional as applied to the appellant. The facts of the case are that in early 1978, Zann Xavier Yow was five years of age; a hearing was held in district court as to his dependency; his father was served with notice; his mother was not served with notice, but it was found as a fact that her address was unknown and no evidence to dispute this finding is in the record. We hold that on these...
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