NO. COA13-947

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

IN THE MATTER OF:

Wilson County

No. 12 JA 66

R.R.N.

Appeal by respondent from order entered 22 July 2013 by 

Judge Pell C. Cooper in Wilson County District Court. Heard in 

the Court of Appeals 27 March 2014.

Stephen L. Beaman for petitioner-appellee Wilson County 

Department of Social Services.

Appellate Defender Staples S. Hughes, by Assistant 

Appellate Defender Annick Lenoir-Peek for respondentappellant.

Administrative Office of the Courts, by Appellate Counsel 

Tawanda N. Foster, for guardian ad litem.

ELMORE, Judge.

Respondent, the mother of the juvenile, appeals from an 

order adjudicating R.R.N. an abused and neglected juvenile. 

After careful review, we reverse.

I. Background

On 30 November 2012, the Wilson County Department of Social 

Services (“DSS”) filed a petition alleging that R.R.N. was an 
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abused and neglected juvenile. DSS amended the petition on 11 

December 2012. DSS stated that it received a Child Protective 

Services report on 20 August 2012 claiming that R.R.N. had been 

sexually abused. R.R.N. had visited the home of her alleged 

abuser [“Mr. B.”], who was her stepfather’s cousin, on 18 August 

2012. Following the visit, the juvenile disclosed to respondent

that she had been having a relationship with Mr. B., which 

included him fondling her breasts and kissing her. Respondent

reported the alleged abuse to DSS. Subsequently, during an 

interview with a social worker, the juvenile stated that she had 

performed oral sex on Mr. B., he had digitally penetrated her, 

and she and Mr. B. had originally planned to have sexual 

intercourse during her visit on 18 August 2012. DSS alleged 

that Mr. B. and his wife had been “acting as caretakers for 

[R.R.N.] that evening and were providing care to her in their 

home.” After the disclosure of the abuse, respondent and the 

juvenile’s stepfather did not allow any further contact between

R.R.N. and Mr. B. and sought counseling for the juvenile. 

R.R.N. underwent a Child Medical Evaluation on 10 September 

2012. The juvenile’s statements during the interview were 

consistent with the disclosures made to the social worker. 
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On 30 January 2013, respondent moved to dismiss DSS’

petition pursuant to Rule 12(b)(6). Specifically, respondent 

argued that the Juvenile Code did not apply because Mr. B. was 

not a parent, guardian, custodian, or caretaker for the juvenile 

as defined by the Juvenile Code. The trial court denied the 

motion.

Adjudicatory hearings were held on 13, 14, 15, and 29 March 

2013. The trial court found as fact that the juvenile had (1) 

performed oral sex on Mr. B., (2) they had engaged in kissing, 

(3) Mr. B. had touched the juvenile’s breasts and digitally 

penetrated her, and (4) that Mr. B. acted as a caretaker for the 

juvenile on 18 August 2012. Accordingly, the trial court 

adjudicated R.R.N. as an abused and neglected juvenile. The 

court ordered that custody of R.R.N. should remain with 

respondent, closed the case and terminated further review. 

Respondent appeals.

II. Analysis

Respondent argues that R.R.N. was not an abused or 

neglected juvenile because Mr. B. was not a caretaker. More 

specifically, respondent contends that the trial court erred in 

finding that Mr. B. was “entrusted” with R.R.N.’s care as 
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required by N.C. Gen. Stat. § 7B-101(3). We agree and note that

this issue is one of first impression for our courts.

“The role of this Court in reviewing a trial court’s 

adjudication of neglect and abuse [and dependency] is to 

determine (1) whether the findings of fact are supported by 

clear and convincing evidence, and (2) whether the legal 

conclusions are supported by the findings of fact[.]” In re 

T.H.T., 185 N.C. App. 337, 343, 648 S.E.2d 519, 523 (2007) 

(internal quotations and citation omitted). “If such evidence 

exists, the findings of the trial court are binding on appeal, 

even if the evidence would support a finding to the contrary.” 

Id. (citation omitted). “The trial court’s ‘conclusions of law 

are reviewable de novo on appeal.’” In re D.H., 177 N.C. App. 

700, 703, 629 S.E.2d 920, 922 (2006).

The Juvenile Code includes in its definition of abuse and 

neglect those juveniles who have been abused or neglected by a 

“caretaker.” N.C. Gen. Stat. § 7B-101(1) (2013).

Caretaker is defined as:

Any person other than a parent, guardian, or 

custodian who has responsibility for the 

health and welfare of a juvenile in a 

residential setting. A person responsible 

for a juvenile’s health and welfare means a 

stepparent, foster parent, an adult member 

of the juvenile’s household, [or] an adult 
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relative entrusted with the juvenile’s 

care[.]

N.C. Gen. Stat. § 7B-101(3) (2013).

The primary purpose of the “caretaker” statute, N.C. Gen. 

Stat. § 7B-101(3), is to protect the juvenile from abuse and 

neglect inflicted by an adult member of the juvenile’s 

household. In addition, the statute serves to protect the

juvenile from abuse and neglect inflicted by an adult relative 

who has been entrusted with responsibility for the health and 

welfare of the child. These relatives include persons related 

to the juvenile by blood as well as marriage, including stepparents and extended step-relatives.

1 The trial court must 

consider the totality of the circumstances to discern whether 

the relative has been “entrusted” with the juvenile’s care under 

N.C. Gen. Stat. § 7B-101(3).

Generally, an adult relative is not “entrusted” with a

juvenile’s care for the purposes of being a caretaker unless an

extended-care situation is in play. Such situations may include 

a prolonged visit by the juvenile to a relative’s residence

during which time the relative gains apparent or actual 

authority over the juvenile’s health and welfare. 

 

1 See North Carolina DSS On-line Manuel, Chapter VIII: Protective 

Services 1407. http://info.dhhs.state.nc.us/olm/manuals/dss/csm60/man/CS1407-01.htm.
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Alternatively, a relative may inadvertently become entrusted 

with the child’s care. For example, and assuming this issue was 

presented in In re P.L.P, we would support a determination that 

P.L.P’s uncle became her caretaker when P.L.P’s mother left her 

in the uncle’s care “for the night and had not returned for a 

few weeks.” 173 N.C. App. 1, 3, 618 S.E.2d 241, 243 (2005) 

aff’d, 360 N.C. 360, 625 S.E.2d 779 (2006). By the mother’s 

extended absence, the uncle became entrusted with P.L.P’s care.

However, had P.L.P’s mother returned the following day, the 

uncle would have been responsible for P.L.P’s temporary 

supervision.

Here, the basis of the petition filed by DSS was that Mr. 

B. satisfied the definition of “caretaker” because: (1) he was a 

step-cousin, and (2) he was entrusted with the juvenile’s care 

when her parents permitted her to sleep over at his home on 18 

August 2012. Specifically, the petition alleges that R.R.N. is 

an abused juvenile because her “parent, guardian or caretaker”

“created or allowed to be created serious emotional damage” to

the juvenile on 18 August 2012. The petition also alleges that 

R.R.N. is a neglected juvenile because she “lived” in an 

environment injurious to her welfare on 18 August 2012, the 

evening that R.R.N. slept at Mr. B.’s residence. The trial 
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court concluded that Mr. B. was the juvenile’s “caretaker,” 

finding: (1) Mr. B. and the juvenile’s stepfather were first 

cousins; (2) Mr. B. “acknowledged that he and his wife . . . 

were responsible for the care and supervision of [R.R.N.] when 

she was left with them overnight on August 18, 2012;” and (3) 

the sexual contact occurring between Mr. B. and the juvenile 

occurred at Mr. B.’s residence.

We disagree with the trial court’s interpretation of the 

term “caretaker” on these facts. The situation before us did 

not come within the purview of the Juvenile Code until R.R.N. 

spent the night at Mr. B.’s residence. Had Mr. B. simply been 

the father of the juvenile’s friend, the Juvenile Code would not 

apply. Alternatively, had the abuse occurred absent the 

sleepover situation, the Juvenile Code would similarly not 

apply. Regardless, and despite a familial relationship, Mr. B.

was not R.R.N.’s caretaker because he was not “entrusted” with 

her care by virtue of supervising the sleepover.

When a parent or guardian allows a child to attend a 

sleepover, the parent does not relinquish responsibility over 

the child’s health and welfare. This is evidenced by the 

following two situations. First, should R.R.N. have needed 

medical treatment during the night, it would be respondent, not 
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Mr. B., who would have had the authority to make R.R.N.’s 

health-related decisions. Respondent was in town and could 

easily have been contacted by physicians or by Mr. B. Second, 

if R.R.N. became scared to sleep away from home, R.R.N. would

likely have been returned to respondent’s care that same 

evening. As such, and given the temporary nature of a 

sleepover, the adult supervisor, whether a relative or not, is 

not “entrusted” with the child’s care as contemplated by N.C. 

Gen. Stat. § 7B-101(c). The adult supervisor must only attempt 

to ensure the visiting child’s safety. Respondent, not Mr. B.,

was responsible for R.R.N.’s health and welfare on 18 August 

2012.

In its petition, DSS does not allege that respondent or 

R.R.N.’s stepfather, the two adults with whom R.R.N. resided, 

were aware of or contributed to R.R.N.’s abuse or neglect. In 

fact, the petition provides that respondent insured R.R.N.’s 

safety “by not allowing any further contact with Mr. and Mrs. 

[B.]” and by “making sure [R.R.N.] attends counseling on a 

consistent basis.” Further, there is no indication that the 

trial court was concerned for R.R.N.’s safety in respondent’s 

home. This is evidenced by the fact that the trial court 
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released R.R.N. into respondent’s custody after adjudicating her 

abused and neglected.

One intended purpose of juvenile proceedings for abuse, 

neglect, and dependency as expressed in N.C. Gen. Stat. § 7B100(3), is “[t]o provide for services for the protection of 

juveniles by means that respect both the right to family 

autonomy and the juveniles’ needs for safety, continuity, and 

permanence[.]” In adjudicating R.R.N. abused and neglected on 

these facts, the trial court failed to account for the intention 

of the Juvenile Code to respect family autonomy. R.R.N.’s needs 

for safety, continuity, and permanence were at all relevant

times sufficiently met by respondent.

III. Conclusion

In concluding that Mr. B. was R.R.N.’s caretaker, the trial 

court stretched N.C. Gen. Stat. § 7B-101(3) beyond its intended 

scope. Mr. B. was simply a relative who sexually assaulted

R.R.N. while she was under his temporary supervision. At no 

time was Mr. B. responsible for R.R.N.’s health and welfare. 

Further, not every child who is the victim of a crime where the 

perpetrator is a family member requires the protection of the 

Juvenile Code. Our legal system has appropriate mechanisms in 

place to handle perpetrators of such crimes. In sum, the trial 
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court erred in applying the Juvenile Code on these facts and in

subsequently adjudicating R.R.N. abused and neglected. 

Accordingly, we reverse. Respondent’s remaining argument is now 

moot.

Reversed.

Judges CALABRIA and STEPHENS concur.