In Re McMillan

205 S.E.2d 541 (1974) 21 N.C. App. 712

In the Matter of Elsie McMILLAN et al.

No. 7416DC217.

Court of Appeals of North Carolina.

June 5, 1974.

Atty. Gen. Robert Morgan by Associate Attorney William Woodward Webb and Asst. Atty. Gen. Ann Reed, Raleigh, for the State, appellee.

Rena K. Uviller, New York City, Philip A. Diehl, Raeford, and Norman B. Smith, Greensboro, for appellants.

PARKER, Judge.

The record does not reveal what conduct on the part of appellants' parents prompted the authorities to arrest the parents while they were at the County School Board office, and in this proceeding we are not concerned with any charge against the parents. We are here concerned, only with the juvenile proceeding in which the children were found to be "undisciplined" children and in which the court ordered the children placed on probation. The question for our decision is whether the evidence presented supports the court's finding and the orders entered thereon. We hold that it does not.

For purposes of Article 23 of G.S. Chapter 7A, entitled "Jurisdiction and Procedure Applicable to Children," and "undisciplined child" is defined by G.S. § 7A278(5) as follows:

"`Undisciplined child' includes any child who is unlawfully absent from school, or who is regularly disobedient to his parents or guardian or custodian and beyond their disciplinary control, or who is regularly found in places where it is unlawful for a child to be, or who has run away from home."

In this proceeding no charge was made and no evidence was presented to show that any of the children here involved had ever been disobedient to their parents and beyond their disciplinary control, had ever been found in any place where it is unlawful for a child to be, or had ever run away from home. The sole charge against them is that they were "undisciplined" because they were unlawfully absent from school on 17 September 1973.

All of the evidence presented to support the single charge made against these children establishes that they were absent from school on only one occasion and that they were then absent only because they were obedient to express instructions from their parents. We hold this evidence insufficient to support the court's finding and adjudication that these children were "undisciplined" within the definition of G. S. § 7A-278(5). Among the purposes which our Legislature sought to accomplish by enactment of Article 23 of G.S. Chap. 7A, as stated in G.S. § 7A-277, was "to strengthen the child's family relationships." When this and the other legislatively stated purposes are kept in mind, we cannot believe that the Legislature intended that G.S. § 7A-278(5) be so construed as to permit a child who, obedient to its parents' commands, is absent from school on one single occasion, to be adjudicated an "undisciplined child."

The orders appealed from, being unsupported by the evidence, are

Vacated.

VAUGHN and CARSON, JJ., concur.