{
  "id": 8527142,
  "name": "IN THE MATTER OF ASHLEY NICHOLSON, d.o.b. 12/10/87; IN THE MATTER OF TIFFANY LIZZIE FORD, d.o.b. 02/27/92",
  "name_abbreviation": "In re Nicholson",
  "decision_date": "1994-03-15",
  "docket_number": "No. 9310DC257",
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  "last_updated": "2023-07-14T17:01:59.295429+00:00",
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  "casebody": {
    "judges": [
      "Judges ORR and JOHN concur."
    ],
    "parties": [
      "IN THE MATTER OF ASHLEY NICHOLSON, d.o.b. 12/10/87 IN THE MATTER OF TIFFANY LIZZIE FORD, d.o.b. 02/27/92"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nBy this appeal the Wake County Department of Social Services (hereinafter \u201cDSS\u201d) challenges the trial court\u2019s dismissal of a petition alleging Ashley Nicholson to be a neglected juvenile. Ashley is the daughter of respondent Lois Ford and the step-daughter of respondent Michael Ford.\nThe events leading up to this case began with the November 1990 death of Ashley\u2019s half-brother, Nicholas Ford, due to shaken-baby syndrome. In June 1991, Michael and Lois Ford were arrested on charges of manslaughter for the death of Nicholas. Ashley was placed with a relative until Lois Ford was released from jail in mid-June 1991, when Ashley returned home. One month later Michael Ford was released from jail. When DSS discovered that Michael Ford had returned home, it determined that Ashley was at risk. After unsuccessful attempts to formulate a protective plan with Lois Ford, DSS filed a petition in July 1991 alleging that Ashley was a neglected juvenile.\nTiffany Lizzie Ford, Ashley\u2019s half-sister, was born in February 1992, after Nicholas\u2019 death but before any adjudication as to DSS\u2019 petition regarding Ashley. When DSS learned of Tiffany\u2019s existence, it filed a petition, in June 1992, alleging Tiffany to be neglected also. On 24 March 1992 Michael Ford pled guilty to involuntary manslaughter, and the charges against Lois Ford were dismissed.\nThe district court held hearings on the petitions regarding both Ashley and Tiffany in October and November 1992. The evidence offered showed that Ashley and her mother had lived with Michael Ford since Ashley was one month old, and that Michael Ford was her primary caretaker. Lois Ford expressed no hesitation in allowing her husband to care for Ashley, explaining that Michael\u2019s plea to involuntary manslaughter meant only that Nicholas\u2019 death was accidental and Michael wanted to avoid prison. Both Lois and Michael Ford disagreed with expert medical testimony that Nicholas\u2019 death was caused by some sort of blunt trauma in addition to shaken-baby syndrome.\n\u2022 The court dismissed DSS\u2019 petition as to Ashley, but found neglect as to Tiffany. The court noted that there was no evidence of abuse of Ashley by eith\u00e9r parent and that Ashley was three and a half years old when DSS filed its petition. Tiffany, however, was only three months old when DSS filed its petition. The court noted that shaken-baby syndrome is most deadly to infants under six months of age. Thus, the court determined that although Tiffany was at risk for that type of abuse because of her age, Ashley was not. DSS now appeals the court\u2019s determination regarding Ashley, arguing that the evidence was sufficient to establish neglect.\nDSS first points out that evidence of abuse of one sibling can constitute sufficient evidence of neglect of another. According to the statutory definition of a neglected juvenile,\n[i]n determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of abuse or neglect or lives in a home where another juvenile has been subjected to sexual abuse or severe physical abuse by an adult who regularly lives in the home.\nN.C.G.S. \u00a7 7A-517(21) (Cum. Supp. 1993). By citing cases from other jurisdictions, DSS develops the argument that the fact of abuse of one child should mandate a finding of neglect of any remaining children in the home. DSS also points out that, under North Carolina law, risk of neglect is an important factor in determining whether a child is a neglected juvenile. In re Evans, 81 N.C. App. 449, 344 S.E.2d 325 (1986). DSS notes that at the time of the court\u2019s adjudication, both Michael and Lois Ford were charged with manslaughter, and both rejected the medical conclusions as to the cause of Nicholas\u2019 death. Furthermore, Lois Ford testified that she felt comfortable with Michael as Ashley\u2019s caretaker. DSS emphasizes that, once an abused child is removed from a home, any remaining children may be subject to abuse. See In re Abeena H. and Melik K., 316 N.Y.S.2d 16 (1970).\nDSS further contends that Ashley was in no less danger than Tiffany, who was removed from the home. Although shaken-baby syndrome is most harmful to infants under six months of age, and Ashley was three and a half years old at the time of DSS\u2019 petition, DSS contends that,Ashley is at risk because the medical evidence established that Nicholas\u2019 injuries were the result of a \u201csubstantial degree of force.\u201d Ashley therefore lived in an environment injurious to her welfare. See \u00a7 7A-517(21). Moreover, although Michael Ford had only been charged with manslaughter at the time DSS filed its petition, by the time of the adjudication, he had been convicted of involuntary manslaughter.\nIt is clear from section 7A-517(21) that evidence of abuse of another child in the home is relevant in determining whether a child is a neglected juvenile. However, it is also clear that the statute does not mandate the result requested by DSS. It does not require the removal of all other children from the home once a child has either died or been subjected to sexual or severe physical abuse. Rather, the statute affords the trial judge some discretion in determining the weight to be given such evidence. We believe the trial court in the case at hand complied with the statute and considered the evidence as a relevant factor in determining whether Ashley was a neglected juvenile. In reaching its decision, the court set forth the facts surrounding Nicholas\u2019 death, and noted that there is no threat of shaken-baby syndrome as to Ashley, and that there is no evidence that Ashley was ever abused.\nWe conclude that the trial court did not abuse its discretion in dismissing DSS\u2019 petition as to Ashley Nicholson.\nAffirmed.\nJudges ORR and JOHN concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Anne W. Brill, Assistant Wake County Attorney, for Wake County Department of Social Services, petitioner-appellant.",
      "Kevin Leon Byrd for Lois Ford, respondent-appellee.",
      "Lou A. Newman, Wake County Guardian ad Litem Program, for Guardian ad Litem Suprena Jones, respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF ASHLEY NICHOLSON, d.o.b. 12/10/87 IN THE MATTER OF TIFFANY LIZZIE FORD, d.o.b. 02/27/92\nNo. 9310DC257\n(Filed 15 March 1994)\nParent and Child \u00a7 99 (NCI4th)\u2014 neglected juvenile \u2014abuse of sibling \u2014 relevant, but not conclusive\nThe trial court did not abuse its discretion in dismissing a Department of Social Services petition alleging Ashley Nicholson to be a neglected juvenile where Ashley\u2019s half-brother had died due to shaken baby syndrome; her mother and stepfather had been arrested for manslaughter but returned home; a half-sister, Tiffany Ford, was born; Ashley\u2019s step-father pled guilty to involuntary manslaughter and charges were dismissed against her mother; there was no evidence of abuse of Ashley by either parent; Ashley was three and a half years old and Tiffany three months old when DSS filed its petition; shaken-baby syndrome is most deadly to infants under six months of age; and the court determined that Tiffany was at risk but that Ashley was not and dismissed the petition as to Ashley. While it is clear from N.C.G.S. \u00a7 7A-517\u00cd21) that evidence of abuse of another child in the home is relevant in determining whether a child is a neglected juvenile, the statute does not require the removal of all other children from the home once a child has either died or been subjected to sexual or severe physical abuse.\nAm Jur 2d, Juvenile Courts and Delinquent and Dependent Children \u00a7\u00a7 24, 29.\nAppeal by Wake County Department of Social Services from order entered 10 November 1992, signed 14 December 1992, by Judge Joyce A. Hamilton in Wake County District Court. Heard in the Court of Appeals 6 January \u00cd994.\nAnne W. Brill, Assistant Wake County Attorney, for Wake County Department of Social Services, petitioner-appellant.\nKevin Leon Byrd for Lois Ford, respondent-appellee.\nLou A. Newman, Wake County Guardian ad Litem Program, for Guardian ad Litem Suprena Jones, respondent-appellee."
  },
  "file_name": "0091-01",
  "first_page_order": 119,
  "last_page_order": 122
}