How To Get Your Children Back In Juvenile or Family Court
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The legal definition of ‘Harm’:
Harm means any injury, loss or damage. It can also be any material or tangible detriment. There are different types of harm like accidental harm-where the injury or damage is not caused by a tortious act; bodily harm-where there is some physical pain, illness, or impairment to the body.
FEDERAL DEFINITION OF CHILD ABUSE AND NEGLECT
Federal legislation provides guidance to States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum:
- “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or
- “An act or failure to act which presents an imminent risk of serious harm.”
This definition of child abuse and neglect refers specifically to parents and other caregivers. A “child” under this definition generally means a person who is younger than age 18 or who is not an emancipated minor.
While CAPTA provides definitions for sexual abuse and the special cases of neglect related to withholding or failing to provide medically indicated treatment, it does not provide specific definitions for other types of maltreatment such as physical abuse, neglect, or emotional abuse. While Federal legislation sets minimum standards for States that accept CAPTA funding, each State provides its own definitions of maltreatment within civil and criminal statutes.
Did you notice that Federal law states that in order for the state to take your child/ren…..the harm must have been SERIOUS or the harm coming soon must be SERIOUS. The minimum harm done, or will be done to your child/ren MUST be SERIOUS.
North Carolina State Definitions of Child Abuse and Neglect
Current Through February 2016
Physical Abuse
‘Abused juvenile’ means any child younger than age 18 whose parent, guardian, custodian, or caregiver:
- Inflicts or allows to be inflicted upon the child a serious physical injury by other than accidental means
- Creates or allows to be created a substantial risk of serious physical injury to the child by other than accidental means
- Uses or allows to be used upon the child cruel or grossly inappropriate procedures or cruel or grossly inappropriate devices to modify behavior
- Encourages, directs, or approves of delinquent acts involving moral turpitude committed by the juvenile
- Commits or allows to be committed the offense of human trafficking, involuntary servitude, or sexual servitude against the child
Neglect
‘Neglected juvenile’ means a child:
- Who does not receive proper care, supervision, or discipline from his or her parent, guardian, custodian, or caregiver
- Who is not provided necessary medical or remedial care
- Who lives in an environment injurious to his or her welfare
- Who has been placed for care or adoption in violation of law
In determining whether a child is a neglected juvenile, it is relevant whether that child lives in a home where another child has died as a result of suspected abuse or neglect or has been subjected to abuse or neglect by an adult who regularly lives in the home.
‘Serious neglect’ means conduct, behavior, or inaction of the juvenile’s parent, guardian, custodian, or caregiver that evidences a disregard of consequences of such magnitude that the conduct, behavior, or inaction constitutes an unequivocal danger to the juvenile’s health, welfare, or safety, but does not constitute abuse.
Sexual Abuse/Exploitation
The term ‘abused juvenile’ includes any child younger than age 18 whose parent, guardian, custodian, or caregiver commits, permits, or encourages the commission of a violation of the following laws regarding sexual offenses by, with, or upon the child:
- Forcible rape, statutory rape of a child by an adult, or first-degree statutory rape
- A forcible sex offense, statutory sexual offense with a child by an adult, or first-degree statutory sexual offense
- Sexual activity by a substitute parent or custodian
- Sexual activity with a student
- Unlawful sale, surrender, or purchase of a minor
- A crime against nature or incest
- Preparation of obscene photographs, slides, or motion pictures of the juvenile
- Employing or permitting the juvenile to assist in a violation of the obscenity laws
- Dissemination of obscene material to the juvenile
- Displaying or disseminating material harmful to the juvenile
- First- and second-degree sexual exploitation of the juvenile
- Promoting the prostitution of the juvenile
- Taking indecent liberties with the juvenile
Emotional Abuse
The term ‘abused juvenile’ includes any child younger than age 18 whose parent, guardian, custodian, or caregiver creates or allows to be created serious emotional damage to the child. Serious emotional damage is evidenced by a child’s severe anxiety, depression, withdrawal, or aggressive behavior toward himself or others.
Abandonment
Citation: Gen. Stat. § 7B-101
The term ‘neglected juvenile’ includes a child who has been abandoned.
Standards for Reporting
Citation: Gen. Stat. § 7B-301
A report is required when any person has cause to suspect that any juvenile is abused, neglected, or dependent or has died as the result of maltreatment.
Persons Responsible for the Child
‘Responsible individual’ means a parent, guardian, custodian, or caretaker who abuses or seriously neglects a juvenile.
The term ‘caretaker’ means any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting, including:
- A stepparent, foster parent, or an adult member of the juvenile’s household
- An adult relative entrusted with the juvenile’s care
- Any person such as a house parent or cottage parent who has primary responsibility for supervising a juvenile’s health and welfare in a residential child care facility or residential educational facility
- Any employee or volunteer of a division, institution, or school operated by the Department of Health and Human Services
Exceptions
No exceptions are specified in statute.
Definitions of Domestic Violence
Current Through August 2017
Defined in Domestic Violence Civil Laws
‘Domestic violence’ means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:
- Attempting to cause bodily injury or intentionally causing bodily injury
- Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in § 14-277.3A, that rises to such a level as to inflict substantial emotional distress
- Committing a sex offense, as defined in §§ 14-27.21 through 14-27.33
Defined in Child Abuse Reporting and Child Protection Laws
This issue is not addressed in the statutes reviewed.
Defined in Criminal Laws
This issue is not addressed in the statutes reviewed.
Persons Included in the Definition
The term ‘personal relationship’ means a relationship in which the parties involved:
- Are current or former spouses
- Are persons of the opposite sex who live together or have lived together
- Are related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren
- Have a child in common
- Are current or former household members
- Are persons of the opposite sex who are in a dating relationship or have been in a dating relationship
For purposes of this subdivision, a dating relationship is one in which the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.
For purposes of this subdivision, an aggrieved party may not obtain an order of protection against a child or grandchild under age 16.
Child Witnesses to Domestic Violence
Current Through April 2016
Circumstances That Constitute Witnessing
In criminal law: The term ‘in the presence of a minor’ means that the minor was in a position to see or hear the assault.
A minor is any person younger than age 18 who is residing with or is under the care and supervision of, and who has a personal relationship with, the person assaulted or the person committing the assault.
Consequences
Any person who, in the course of an assault, assault and battery, or affray, inflicts serious injury upon another person or uses a deadly weapon on a person with whom the person has a personal relationship, and does so in the presence of a minor, is guilty of a Class A1 misdemeanor. Upon conviction, the person shall be:
- Placed on supervised probation in addition to any other punishment imposed by the court
- Sentenced to an active punishment of no less than 30 days in addition to any other punishment imposed by the court for a second or subsequent violation
Parental Drug Use as Child Abuse
Current Through April 2015
[When imposing a sentence upon conviction of a crime,] the court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.
An aggravated or mitigated sentence is allowed if the jury or the court finds that aggravating factors exist or the court finds that mitigating factors exist. In such case, the court may depart from the presumptive range of sentences specified in § 15A-1340.17(c)(2). If aggravating factors are present and the court determines they are sufficient to outweigh any mitigating factors that are present, it may impose a sentence that is permitted by the aggravated range described in [the chart of punishments in] § 15A-1340.17(c)(4). If the court finds that mitigating factors are present and are sufficient to outweigh any aggravating factors that are present, the court may impose a sentence that is permitted by the mitigated range described in § 15A-1340.17(c)(3). Aggravating factors include:
- The offense involved the sale or delivery of a controlled substance to a minor.
- The offense is the manufacture of methamphetamine and was committed where a person under age 18 lives, was present, or was otherwise endangered by exposure to the drug, its ingredients, its byproducts, or its waste.