NO. COA13-947
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF:
Wilson County
No. 12 JA 66
R.R.N.
Appeal by respondent from order entered 22 July 2013 by
Judge Pell C. Cooper in Wilson County District Court. Heard in
the Court of Appeals 27 March 2014.
Stephen L. Beaman for petitioner-appellee Wilson County
Department of Social Services.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Annick Lenoir-Peek for respondent-
appellant.
Administrative Office of the Courts, by Appellate Counsel
Tawanda N. Foster, for guardian ad litem.
ELMORE, Judge.
Respondent, the mother of the juvenile, appeals from an
order adjudicating R.R.N. an abused and neglected juvenile.
After careful review, we reverse.
I. Background
On 30 November 2012, the Wilson County Department of Social
Services (“DSS”) filed a petition alleging that R.R.N. was an
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abused and neglected juvenile. DSS amended the petition on 11
December 2012. DSS stated that it received a Child Protective
Services report on 20 August 2012 claiming that R.R.N. had been
sexually abused. R.R.N. had visited the home of her alleged
abuser [“Mr. B.”], who was her stepfather’s cousin, on 18 August
2012. Following the visit, the juvenile disclosed to respondent
that she had been having a relationship with Mr. B., which
included him fondling her breasts and kissing her. Respondent
reported the alleged abuse to DSS. Subsequently, during an
interview with a social worker, the juvenile stated that she had
performed oral sex on Mr. B., he had digitally penetrated her,
and she and Mr. B. had originally planned to have sexual
intercourse during her visit on 18 August 2012. DSS alleged
that Mr. B. and his wife had been “acting as caretakers for
[R.R.N.] that evening and were providing care to her in their
home.” After the disclosure of the abuse, respondent and the
juvenile’s stepfather did not allow any further contact between
R.R.N. and Mr. B. and sought counseling for the juvenile.
R.R.N. underwent a Child Medical Evaluation on 10 September
2012. The juvenile’s statements during the interview were
consistent with the disclosures made to the social worker.
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On 30 January 2013, respondent moved to dismiss DSS’
petition pursuant to Rule 12(b)(6). Specifically, respondent
argued that the Juvenile Code did not apply because Mr. B. was
not a parent, guardian, custodian, or caretaker for the juvenile
as defined by the Juvenile Code. The trial court denied the
motion.
Adjudicatory hearings were held on 13, 14, 15, and 29 March
2013. The trial court found as fact that the juvenile had (1)
performed oral sex on Mr. B., (2) they had engaged in kissing,
(3) Mr. B. had touched the juvenile’s breasts and digitally
penetrated her, and (4) that Mr. B. acted as a caretaker for the
juvenile on 18 August 2012. Accordingly, the trial court
adjudicated R.R.N. as an abused and neglected juvenile. The
court ordered that custody of R.R.N. should remain with
respondent, closed the case and terminated further review.
Respondent appeals.
II. Analysis
Respondent argues that R.R.N. was not an abused or
neglected juvenile because Mr. B. was not a caretaker. More
specifically, respondent contends that the trial court erred in
finding that Mr. B. was “entrusted” with R.R.N.’s care as
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required by N.C. Gen. Stat. § 7B-101(3). We agree and note that
this issue is one of first impression for our courts.
“The role of this Court in reviewing a trial court’s
adjudication of neglect and abuse [and dependency] is to
determine (1) whether the findings of fact are supported by
clear and convincing evidence, and (2) whether the legal
conclusions are supported by the findings of fact[.]” In re
T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007)
(internal quotations and citation omitted). “If such evidence
exists, the findings of the trial court are binding on appeal,
even if the evidence would support a finding to the contrary.”
Id. (citation omitted). “The trial court’s ‘conclusions of law
are reviewable de novo on appeal.’” In re D.H., 177 N.C. App.
700, 703, 629 S.E.2d 920, 922 (2006).
The Juvenile Code includes in its definition of abuse and
neglect those juveniles who have been abused or neglected by a
“caretaker.” N.C. Gen. Stat. § 7B-101(1) (2013).
Caretaker is defined as:
Any person other than a parent, guardian, or
custodian who has responsibility for the
health and welfare of a juvenile in a
residential setting. A person responsible
for a juvenile’s health and welfare means a
stepparent, foster parent, an adult member
of the juvenile’s household, [or] an adult
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relative entrusted with the juvenile’s
care[.]
N.C. Gen. Stat. § 7B-101(3) (2013).
The primary purpose of the “caretaker” statute, N.C. Gen.
Stat. § 7B-101(3), is to protect the juvenile from abuse and
neglect inflicted by an adult member of the juvenile’s
household. In addition, the statute serves to protect the
juvenile from abuse and neglect inflicted by an adult relative
who has been entrusted with responsibility for the health and
welfare of the child. These relatives include persons related
to the juvenile by blood as well as marriage, including step-
parents and extended step-relatives.1 The trial court must
consider the totality of the circumstances to discern whether
the relative has been “entrusted” with the juvenile’s care under
N.C. Gen. Stat. § 7B-101(3).
Generally, an adult relative is not “entrusted” with a
juvenile’s care for the purposes of being a caretaker unless an
extended-care situation is in play. Such situations may include
a prolonged visit by the juvenile to a relative’s residence
during which time the relative gains apparent or actual
authority over the juvenile’s health and welfare.
1
See North Carolina DSS On-line Manuel, Chapter VIII: Protective
Services 1407. http://info.dhhs.state.nc.us/olm/manuals/dss/csm-
60/man/CS1407-01.htm.
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Alternatively, a relative may inadvertently become entrusted
with the child’s care. For example, and assuming this issue was
presented in In re P.L.P, we would support a determination that
P.L.P’s uncle became her caretaker when P.L.P’s mother left her
in the uncle’s care “for the night and had not returned for a
few weeks.” 173 N.C. App. 1, 3, 618 S.E.2d 241, 243 (2005)
aff’d, 360 N.C. 360, 625 S.E.2d 779 (2006). By the mother’s
extended absence, the uncle became entrusted with P.L.P’s care.
However, had P.L.P’s mother returned the following day, the
uncle would have been responsible for P.L.P’s temporary
supervision.
Here, the basis of the petition filed by DSS was that Mr.
B. satisfied the definition of “caretaker” because: (1) he was a
step-cousin, and (2) he was entrusted with the juvenile’s care
when her parents permitted her to sleep over at his home on 18
August 2012. Specifically, the petition alleges that R.R.N. is
an abused juvenile because her “parent, guardian or caretaker”
“created or allowed to be created serious emotional damage” to
the juvenile on 18 August 2012. The petition also alleges that
R.R.N. is a neglected juvenile because she “lived” in an
environment injurious to her welfare on 18 August 2012, the
evening that R.R.N. slept at Mr. B.’s residence. The trial
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court concluded that Mr. B. was the juvenile’s “caretaker,”
finding: (1) Mr. B. and the juvenile’s stepfather were first
cousins; (2) Mr. B. “acknowledged that he and his wife . . .
were responsible for the care and supervision of [R.R.N.] when
she was left with them overnight on August 18, 2012;” and (3)
the sexual contact occurring between Mr. B. and the juvenile
occurred at Mr. B.’s residence.
We disagree with the trial court’s interpretation of the
term “caretaker” on these facts. The situation before us did
not come within the purview of the Juvenile Code until R.R.N.
spent the night at Mr. B.’s residence. Had Mr. B. simply been
the father of the juvenile’s friend, the Juvenile Code would not
apply. Alternatively, had the abuse occurred absent the
sleepover situation, the Juvenile Code would similarly not
apply. Regardless, and despite a familial relationship, Mr. B.
was not R.R.N.’s caretaker because he was not “entrusted” with
her care by virtue of supervising the sleepover.
When a parent or guardian allows a child to attend a
sleepover, the parent does not relinquish responsibility over
the child’s health and welfare. This is evidenced by the
following two situations. First, should R.R.N. have needed
medical treatment during the night, it would be respondent, not
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Mr. B., who would have had the authority to make R.R.N.’s
health-related decisions. Respondent was in town and could
easily have been contacted by physicians or by Mr. B. Second,
if R.R.N. became scared to sleep away from home, R.R.N. would
likely have been returned to respondent’s care that same
evening. As such, and given the temporary nature of a
sleepover, the adult supervisor, whether a relative or not, is
not “entrusted” with the child’s care as contemplated by N.C.
Gen. Stat. § 7B-101(c). The adult supervisor must only attempt
to ensure the visiting child’s safety. Respondent, not Mr. B.,
was responsible for R.R.N.’s health and welfare on 18 August
2012.
In its petition, DSS does not allege that respondent or
R.R.N.’s stepfather, the two adults with whom R.R.N. resided,
were aware of or contributed to R.R.N.’s abuse or neglect. In
fact, the petition provides that respondent insured R.R.N.’s
safety “by not allowing any further contact with Mr. and Mrs.
[B.]” and by “making sure [R.R.N.] attends counseling on a
consistent basis.” Further, there is no indication that the
trial court was concerned for R.R.N.’s safety in respondent’s
home. This is evidenced by the fact that the trial court
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released R.R.N. into respondent’s custody after adjudicating her
abused and neglected.
One intended purpose of juvenile proceedings for abuse,
neglect, and dependency as expressed in N.C. Gen. Stat. § 7B-
100(3), is “[t]o provide for services for the protection of
juveniles by means that respect both the right to family
autonomy and the juveniles’ needs for safety, continuity, and
permanence[.]” In adjudicating R.R.N. abused and neglected on
these facts, the trial court failed to account for the intention
of the Juvenile Code to respect family autonomy. R.R.N.’s needs
for safety, continuity, and permanence were at all relevant
times sufficiently met by respondent.
III. Conclusion
In concluding that Mr. B. was R.R.N.’s caretaker, the trial
court stretched N.C. Gen. Stat. § 7B-101(3) beyond its intended
scope. Mr. B. was simply a relative who sexually assaulted
R.R.N. while she was under his temporary supervision. At no
time was Mr. B. responsible for R.R.N.’s health and welfare.
Further, not every child who is the victim of a crime where the
perpetrator is a family member requires the protection of the
Juvenile Code. Our legal system has appropriate mechanisms in
place to handle perpetrators of such crimes. In sum, the trial
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court erred in applying the Juvenile Code on these facts and in
subsequently adjudicating R.R.N. abused and neglected.
Accordingly, we reverse. Respondent’s remaining argument is now
moot.
Reversed.
Judges CALABRIA and STEPHENS concur.