Today we have another Lolita story, and unfortunately, this kind of story is more common than you might think. The second question concerns an aging parent who is perhaps incompetent.
I am in a book club with a group of women. One of the women in the book club has a 13-year-old daughter, and she asked me to write to you about this situation with her daughter. The daughter and mother do not live in Guilford County. The 13-year-old daughter has an uncle, the brother of her father. Unbeknownst to the mother, this uncle was apparently grooming the 13-year-old for a sexual relationship. There apparently were a couple of encounters of oral sex and breast fondling, as disgusting as that is.
Then her daughter asked her to spend one overnight at the uncle’s house with the uncle’s wife present and his two teenage daughters. The 13-year-old is friends with the other two girls. After everyone went to sleep, the 13-year-old and the uncle got together in a spare bedroom. Then the 13-year-old girl found out that the uncle had not only a wife, but also a girlfriend. It made the 13-year-old very angry and she told her mother what happened. Her mother called law enforcement. Now DSS, the Department of Health and Human Services, has filed a petition for abuse and neglect. This mother was taking care of the situation, so why is DSS involved in this case?
Carolyn Answers …
In this particular situation, the DSS (Department of Social Services) should not have filed an abuse and neglect petition because the uncle does not fit into the “caretaker” classification. DSS can only step into a family’s rights if the abuse or neglect is by some person who is entrusted with the child’s care – a parent, guardian, custodian or caretaker. A temporary arrangement is not the equivalent of “entrusted with” the child’s care.
DSS acts under the juvenile code, which allegedly tries to strike a balance between the constitutional rights of a parent and the best interests of a child. Only when a family fails to provide proper care is DSS empowered to intervene. See In re L.M.T.
Abuse and neglect petitions by DSS can only be filed against a parent, guardian, custodian or caretaker, NCGS section 7b-101(1)(15). The only remote category for the uncle is caretaker, and under your facts, he is not a caretaker.
In the determination of whether or not a person has been “entrusted with the juvenile’s care,” the court looks at the totality of circumstances. Some of the factors included in the totality of circumstances are duration; frequency of care provided by the adult; location in which that care is provided; and the decision-making authority granted to the adult.
The bottom line is that while the uncle, along with his wife, may have been responsible for the short-term safety of the 13-year-old, the mother retained the primary and ultimate decision-making authority. Therefore, this case would not be appropriate for DSS intervention into the family. See In the matter of R.R.N. for a very similar case.
If parents act to protect the best interests of a child, their constitutional right to rear that child is paramount. See Troxel v. Granville 530 US 57 (2000).
I have an elderly parent. My sister and I do not get along, and my parent has rather substantial resources. I am concerned that my sister will take advantage of my parent, and I am wondering if I can have a guardian appointed. What happens if a guardian for my parent is appointed?
Carolyn Answers …
Family troubles are more common than you think, particularly with aging parents. The law has a definition of an “incompetent adult.” An incompetent adult is defined as one who lacks sufficient capacity to manage the adult’s own affairs or make or communicate, important decisions concerning the adult’s person, family or property. The lack of capacity can be due to many reasons, such as mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriation and alcoholism, senility, disease, injury or any similar cause or condition. See North Carolina General Statutes section 35A-110(7) (2015).
Essentially what you will need to do if your parent falls into the category of an incompetent adult is to file a special proceeding in the special proceedings division of the clerk of court in the county in which your parent resides. A guardian ad litem will be appointed for your parent to investigate the situation. A lot of the situation on whether or not your parent is an incompetent adult will be based upon what the parent’s doctors are saying. There will be a hearing, and the judge will look at the litigant’s (the alleged incompetent person’s) behavior, lucidity of expression, understanding of the situation and the ability to assist the counsel.
If the judge agrees that your relative is incompetent, a guardian of the person (personal care) and a guardian of the estate (money, spending and assets) will be appointed. Subsequently, reports of the guardians have to be filed with the court.
Good luck with your family situation. I know these are tough times, particularly when there’s sibling warfare.
Send your questions on family law and divorce matters to Ask Carolyn at firstname.lastname@example.org, or 216 W. Market St., GSO, 27401. “Like” Ask Carolyn on Facebook and follow on Instagram and Twitter at “Ask_Carolyn.” Post questions for consideration for this column. Please do not put identifying information in your questions. Note that the answers in Ask Carolyn are intended to provide general legal information, and the answers are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need in your individual case. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.