Matter of Thompson

306 S.E.2d 792 (1983)

In the Matter of Catherine Diane THOMPSON.

No. 8321DC370.

Court of Appeals of North Carolina.

September 20, 1983.

*794 Connolly, O'Toole & Sherman by Daniel E. O'Toole, Winston-Salem, for juvenile appellant.

No brief filed, for respondent-appellee.

JOHNSON, Judge.

It is unchallenged, and the court found, that the five year old child Catherine was struck with a belt by her mother and then scrubbed until she bled into her bath water, as a disciplinary measure against what her mother viewed, correctly or incorrectly, as her child's improper sexual conduct. Ms. Hynes, the child's mother, stated that she felt this was an appropriate disciplinary measure, and the court found that the child bled from this rough handling on at least three occasions. The results of these disciplinary measures were multiple bruises and abrasions. The child's examining pediatrician, guardian ad litem, and the petitioner DSS all recommended that the child be evaluated by the Child Guidance Clinic of Forsyth County to determine if the child was developing normally and to have the child treated if necessary and the respondent mother, after being so advised, failed to take the child to be evaluated. However, the court concluded that Catherine was not a neglected child as defined by G.S. 7A-517(21).

The issue presented in this appeal is whether a child who is found to have been disciplined so severely that bruises and internal abrasions result is a "neglected" juvenile within the meaning of G.S. 7A-517(21). A neglected child is defined by that statute, in pertinent part, as a "juvenile who does not receive proper care, supervision, or discipline from his parent ... 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 ..." We conclude that Catherine is a neglected juvenile under this definition and hold that, on the facts found, the court erred by dismissing the petition.

At the outset, it must be noted that this is not a petition seeking termination of the respondent mother's parental rights. It appears from the juvenile petition and the court's order that the Department of Social Services sought an order primarily directing the respondent mother to accept and cooperate with the petitioner's Protective Services for Children and to have the child evaluated by the County's Child Guidance Clinic.

The district court's findings of fact establish that the respondent mother struck her child with a belt and, on at least three occasions while bathing the child, inserted her finger or a washcloth into the child's vagina and washed with sufficient force to cause the child to bleed. Under G.S. 7A-517(21), a child who does not receive proper care, supervision or discipline is a neglected juvenile. In general, treatment of a child which falls below the normative standards imposed upon parents by our society is considered neglectful. See In re Huber, 57 N.C.App. 453, 291 S.E.2d 916, disc. rev. denied, 306 N.C. 557, 294 S.E.2d 223 (1982); In re Cusson, 43 N.C.App. 333, 258 S.E.2d 858 (1979); In re McMillan, 30 N.C. *795 App. 235, 226 S.E.2d 693 (1976) (willful failure and refusal to send children to school constitutes neglect). Should the mistreatment rise to the level of an injury which creates a substantial risk of impairing the health of the child, it would constitute abuse under G.S. 7A-517(1). The injuries sustained by Catherine Thompson were not found by the court to have been of a serious nature. However, the bruises and abrasions resulting from Ms. Hynes' disciplining of her five year old child against what she perceived as her child's improper sexual conduct show methods of care and discipline which are below normal standards, and therefore establish neglect under G.S. 7A-517(21).

Moreover, decisions of courts in other jurisdictions support the view that "neglect" does not necessarily require a finding of nonfeasance by a parent; malfeasance just as readily qualifies as improper care or discipline. See In re Jackson, 81 Ill.App.3d 136, 36 Ill.Dec. 507, 400 N.E.2d 1087 (1980) (physical abuse alone would have supported the finding of neglect); In Interest of Jones, 59 Ill.App.3d 412, 17 Ill.Dec. 156, 376 N.E.2d 49 (1978) (a conclusion of neglect sustained upon findings that child had burns on his feet inconsistent with his parents' explanation); In Interest of S.W., 290 N.W.2d 675 (N.D.1980) (child found to be "deprived" rather than abused as a result of sustaining multiple bruises from her father's excessive punishment; such punishment falling below minimum standards of care tolerable by the community); see generally 17 Ariz.L.Rev. 1055 (1975).

Furthermore, the facts as found by the district court establish that a physician and social worker found the child in need of evaluation and that her mother refused to cooperate. Based upon the testimony of Dr. Lawless, the court found that the doctor examined the child, discussed her condition with her mother and recommended that the child be evaluated by the Child Guidance Clinic. The testimony indicates that the doctor's concern was twofold. First, the mother reported what she considered to be excessive self-manipulation by the child. Second, Ms. Hynes told Dr. Lawless that she had been abused as a child and he expressed his concern that the mother was overreacting to her five year old child's normal curiosity. He then suggested that she accompany the child to counseling and made a referral to the Clinic. The social worker, Ms. Hayes, attempted to facilitate the pair's visit to the Clinic, however, despite these efforts Ms. Hynes did not take Catherine to be evaluated.

This Court, in In re Cusson, supra, found that a mother's keeping of her son from therapeutic daycare would constitute a finding that the child was neglected under G.S. 7A-278(4), [predecessor to G.S. 7A-517(21)], in that the child did not receive proper care or discipline or was not provided necessary medical care. 43 N.C.App. at 336, 258 S.E.2d at 860. Similarly, in In re Huber, supra, a child was held to be a "neglected child" within the meaning of G.S. 7A-517(21) where the child had a severe speech defect which was treatable, but the mother refused to allow the child to receive the necessary medical and remedial care that would allow the child to develop to her full educational and emotional potential. In Huber this Court observed that to "deprive a child of the opportunity for normal growth and development is perhaps the greatest neglect a parent can impose upon a child." 57 N.C.App. at 458, 291 S.E.2d at 919. See also In the Matter of Ray, 95 Misc.2d 1026, 408 N.Y.S.2d 737 (1978) (a mother's failure to follow through on plans for psychological treatment for her child's hyperactivity as recommended by health officials constituted neglect).

The court's findings regarding the pediatrician and social worker's recommendations that Catherine be evaluated to determine if she is developing normally and be treated if necessary, and the respondent mother's failure to seek the recommended treatment for her child support the conclusion of neglect by reason of the respondent's failure to provide necessary medical care which would consequently deprive the child of the opportunity for normal growth and development. While they are certainly *796 important, findings that the child's home is clean and that she is well fed and clothed are not dispositive on the issue of neglect. Any child whose physical, mental or emotional condition has been impaired or is in danger of becoming impaired as a result of the failure of his or her parent to exercise that degree of care consistent with the "normative standards imposed upon parents by our society," In re Huber, supra, may be considered neglected under G.S. 7A-517(21).

Accordingly, the district court erred by concluding as a matter of law, upon the facts found, that Catherine was not a neglected juvenile, and the order entered must be vacated. This cause is remanded to the district court for further proceedings not inconsistent with this decision.

Vacated and remanded.

WHICHARD and EAGLES, JJ., concur.