Matter of Bell

421 S.E.2d 590, 107 N.C. App. 566, 1992 N.C. App. LEXIS 764
CourtCourt of Appeals of North Carolina
DecidedOctober 6, 1992
Docket918DC843
StatusPublished
Cited by4 cases

This text of 421 S.E.2d 590 (Matter of Bell) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Bell, 421 S.E.2d 590, 107 N.C. App. 566, 1992 N.C. App. LEXIS 764 (N.C. Ct. App. 1992).

Opinions

LEWIS, Judge.

The respondent-appellant, Joyce Tucker, is the mother of four children: Larita Bell, Elizabeth Bell, Kimberly Becton, and Spencer Hill, now aged seven, six, four, and two, respectively. On 25 April 1991 the Lenoir County Department of Social Services [DSS] filed petitions alleging that the children were neglected as defined in N.C.G.S. Section 7A-517(21). On 29 May 1991 the lower court found as a matter of law that they were neglected according to the statute. The court permitted Ms. Tucker to retain custody of her children, but ordered her to take them to day care and otherwise cooperate with the “protective supervision” of DSS. Ms. Tucker appeals from this order.

On appeal Ms. Tucker contends that the lower court erred in denying her motion to dismiss on the basis that DSS did not establish neglect by clear and convincing evidence. She also submits that the court erred in finding neglect, and in ordering her to take her children to day care.

According to the record, DSS began its investigation of the Tucker household in January 1991 upon receiving a report stating that the children had been left alone one night. The social worker, Ms. Coley, described for the court the conditions she found at the house at that time and in the ensuing months. The oldest child, Larita, was in school, but the three younger children stayed at home with their mother. Ms. Coley stated that the two youngest children had never been immunized against any childhood diseases, and Spencer, who was six months old at the time, had never been [568]*568to a doctor at all. Ms. Tucker did not keep an adequate supply of food in the house, and Ms. Coley reported a complete lack of milk, juice, and meat on some occasions. Several times Ms. Coley found Ms. Tucker asleep in the house with the children unsupervised. The children did not have any toys or crayons, and Ms. Tucker admittedly did not talk to the baby.

Ms. Coley made arrangements for the necessary immunizations and for free day care attendance at the Marvin B. Spence Day Care Center, located directly across the street from Ms. Tucker’s residence. Although Ms. Tucker agreed that day care was a good idea, she failed to take her children on a regular basis. Even after Ms. Coley accompanied Ms. Tucker to the grocery store, Ms. Coley reported she would still find less than an adequate supply of food in the house and could get no explanations from Ms. Tucker.

On 25 April 1991 Ms. Coley filed four identical petitions alleging that the children were neglected. Each stated that:

[T]he above-named juvenile is a neglected juvenile as defined in G.S. 7A-517(21) in that: The juvenile does not receive proper care, supervision, or discipline from his/her parent in that: Lenoir Co. DSS is providing Individual and Family Adjustment Services to this family because after completing a thorough assessment of the family it was felt that these children were living in an environment which was considered high risk for neglect. As a preventive measure our agency provides day care services for the three youngest children at Marvin B. Spence Day Care Center. This service was needed in order for the children to receive adequate stimulation and socialization that they were not receiving at home. Ms. Tucker has repeatedly failed to make sure the children attend day care on a regular basis as recommended. The mother has also neglected to assure that the children receive medical attention such as immunizations and/or regular medical follow-up when needed. The mother also has a problem sustaining an adequate supply of food for the children from month to month.

Ms. Tucker first contends that the lower court erred in denying her motion to dismiss at the close of petitioner’s evidence. Upon a motion to dismiss, the court must view the evidence in the light most favorable to the petitioner, giving the petitioner the benefit of any inference. Price v. Tomrich, 275 N.C. 385, 167 S.E.2d 766 (1969). The test is whether there is substantial evidence to support [569]*569petitioner’s allegations. In re Cusson, 43 N.C. App. 333, 258 S.E.2d 858 (1979). In this case, the transcript of the trial reveals that petitioner’s evidence was sufficient to withstand the motion to dismiss. The allegations of Ms. Coley certainly meet the test of substantial evidence. Thus, this Court finds that the lower court properly denied the motion to dismiss.

Ms. Tucker also contends that the lower court erred in finding that the children were neglected. She argues that the court made an impermissible socio-economically based value judgment in deciding that the children were neglected. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986) (socio-economically based value judgments will be overruled). We disagree. The lower court did not base its judgment on the economic status of Ms. Tucker. The finding of neglect stemmed from her reluctance to take advantage of the opportunities available to her for her children. She did not ensure that her children received proper treatment from the county health department, she did not use her food stamps so as to keep an adequate supply of food in the house, and she did not take full advantage of the free day care.

N.C.G.S. Section 7A-517(21) defines a neglected juvenile as:

A juvenile who does not receive proper care, supervision, or discipline from his parent, guardian, custodian, or caretaker, ... or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare. . . .

N.C.G.S. § 7A-517(21) (Supp. 1991). Allegations of neglect must be proven by clear and convincing evidence. N.C.G.S. § 7A-635 (1989). In In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986), the Court noted that the quantum of proof .necessary for termination of parental rights is different from that necessary for removal of the child from the home. Id. at 452, 344 S.E.2d at 327. Logically, then, even less proof would be necessary when the parent is permitted to retain custody.

In In re Devone, 86 N.C. App. 57, 356 S.E.2d 389 (1987), this Court found neglect where a mentally retarded fifteen year old was kept out of public school, and its special education programs, because his father insisted on educating his children at home. The Court noted that the child needed “additional stimulation outside the home,” and that denial of the remedial care available in the [570]*570public schools constituted neglect according to N.C.G.S. section 7A-517(21). Id. at 58, 60, 356 S.E.2d at 390, 391. Importantly, the Court stated that “[t]o deprive a child of the opportunity for normal growth and development is perhaps the greatest neglect a parent can impose upon a child.” Id. at 60, 356 S.E.2d at 391 (quoting In re Huber, 57 N.C. App. 453, 458, 291 S.E.2d 916, 919, disc. rev. denied, 306 N.C. 557, 294 S.E.2d 223 (1982)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re J.D.
809 S.E.2d 924 (Court of Appeals of North Carolina, 2018)
In Re Stumbo
582 S.E.2d 255 (Supreme Court of North Carolina, 2003)
Matter of Bell
421 S.E.2d 590 (Court of Appeals of North Carolina, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
421 S.E.2d 590, 107 N.C. App. 566, 1992 N.C. App. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-bell-ncctapp-1992.