Comment by:
Jordan M. Spanner

40 Campbell L. Rev. 265 (2018)

INTRODUCTION

North Carolina, like most states, defines child abuse and neglect as maltreatment caused by a “parent, guardian, custodian, or caretaker” of the child.1  This means that the jurisdiction of North Carolina’s child welfare agencies2 does not encompass every situation in which a child is harmed.  Situations involving maltreatment by someone other than a person responsible for the child’s care are either addressed by another agency—usually law enforcement—or not at all.3

In the fall of 2015, the North Carolina Supreme Court announced a decision interpreting the definition of who may be considered a “caretaker” in child welfare cases.4  The case involved the sexual abuse of a twelve-year-old girl during an overnight visit at an adult relative’s home.5  The court ultimately reversed the trial court’s determination that the girl was an abused and neglected juvenile.6  The court held that an overnight visit was not sufficient to qualify the adult relative as a person “entrusted with the juvenile’s care” under North Carolina’s definition of caretaker.7 This holding presented questions and policy implications for North Carolina’s child welfare system: What exactly are the parameters for determining whether a person is a caretaker?  Does the court’s holding further narrow the jurisdiction of child welfare agencies, thus increasing the number of cases in which redress is limited or nonexistent?  What can be done to ensure that North Carolina has a cohesive policy in this area that protects both children’s safety and parents’ rights?  This Comment seeks to answer these questions.

Part I of this Comment first provides a brief history of child welfare services, a synopsis of the training and expertise required of child welfare social workers, and a summary of the life of a typical Child Protective Services (CPS) case.  Part I then examines the details of the case that led North Carolina courts to interpret the definition of caretaker.  Part II addresses the new interpretation of caretaker and its impact on the scope of child welfare services and child safety in North Carolina.  Particularly, Part II discusses how the courts have made caretaker equivalent to in loco parentis, which results in a heightened standard likely not intended by the legislature.  By raising the standard of who may be a caretaker under the law, the courts have reduced CPS’s jurisdiction and increased the number of child maltreatment cases for which there is no recourse.  Part III offers suggestions for ways that the North Carolina General Assembly and the North Carolina Department of Health and Human Services can rectify the courts’ decisions and improve service provision to families in this state.       

 

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