In Re Huber

291 S.E.2d 916 (1982)

In re Bridget Colleen HUBER, Juvenile.

No. 8126DC752.

Court of Appeals of North Carolina.

June 1, 1982.

Ruff, Bond, Cobb, Wade & McNair by Moses Luski, Charlotte, for petitioner-appellee.

Williams & Parker by John J. Parker, III, Charlotte, for guardian ad litem, John J. Parker, III, appellee.

James, McElroy & Diehl by William K. Diehl, Jr., Charlotte, for respondent-appellant.

HARRY C. MARTIN, Judge.

Kathy Huber Hazelwood, mother of Bridget Colleen Huber, raises three basic arguments upon appeal. She first contends that the definition of a "neglected juvenile" as contained in N.C.G.S. 7A-517(21) is unconstitutional on its face and as applied to the facts of this case. We do not agree.

The analysis of the law by Judge Vaughn in In re Biggers, 50 N.C.App. 332, 274 S.E.2d 236 (1981), is applicable. In Biggers, the Court was faced with a constitutional challenge to the definition of "neglected child" within the meaning of N.C. G.S. 7A-289.32(2). That statute refers to N.C.G.S. 7A-278.4 (repealed effective 1 January 1980) for the definition of "neglected child." The definitions in N.C.G.S. 7A-278.4 and 7A-517(21) are substantially identical. In Biggers, we find:

Our Supreme Court has enunciated the principles of the vagueness doctrine as follows:

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.... Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L. Ed. 1877, 67 S. Ct. 1538.

In re Burrus, 275 N.C. 517, 531, 169 S.E.2d 879, 888 (1969), aff'd, 403 U.S. 528, 91 S. Ct. 1976 [29 L. Ed. 2d 647] (1971) (citations omitted). A statute must be examined in light of the circumstances in each case, and respondent has the burden of showing that the statute provides inadequate warning as to the conduct it governs or is incapable of uniform judicial administration. State v. Covington, 34 N.C.App. 457, 238 S.E.2d 794, review denied, 294 N.C. 184, 241 S.E.2d 519 (1977)....

Our Court has not found it difficult to give a precise meaning to this definition of a neglected child in particular cases by analyzing the factual circumstances before it and weighing the compelling interests of the State with those of the parents and child. In re Cusson, 43 N.C.App. 333, 258 S.E.2d 858 (1979); In re McMillan, 30 N.C.App. 235, 226 S.E.2d 693 (1976). See also In re Yow, 40 N.C.App. 688, 253 S.E.2d 647, review denied, 297 N.C. 610, 257 S.E.2d 223 (1979). Viewed in this light, G.S. 7A-289.32(2) is not vague because the terms used in G.S. 7A-278(4) are given a precise and understandable meaning by the normative standards imposed upon parents by our society, and parents are, therefore, given sufficient notice of the types of conduct that constitute child neglect in this State. See 17 Ariz.L.Rev. 1055, 1070 (1975).

50 N.C.App. at 340-41, 274 S.E.2d at 241-42. We hold the statutory definition is not unconstitutional by reason of vagueness. See also In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981).

Nor does it violate constitutional safeguards as to equal protection. Again, Biggers is authority to overcome respondent's challenge on this ground. The classification of neglected children by the statute is founded upon reasonable distinctions, affects all persons similarly situated without discrimination, and has a reasonable relation to the public peace, welfare and safety. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976).

There is substantial competent evidence in the record to support the conclusion of the court that Bridget was a neglected child or juvenile within the meaning of N.C.G.S. 7A-517(21). The statute provides that if a child is not provided necessary medical care, it is neglected. All the evidence shows that Bridget has a severe speech defect which can be treated by medical or other remedial care. She also has a hearing defect. Facilities are available in Mecklenburg County for the treatment and care of Bridget without expense to her or her mother. Although the Department of Social Services has made efforts to have Bridget examined, evaluated and treated at these facilities, her mother refuses to allow her daughter to receive this necessary medical and remedial care. It is not the presence of the defects in the child that cause her to be neglected. It is the failure of the mother to allow Bridget to receive necessary medical and remedial care and treatment. Without treatment Bridget will suffer serious and permanent harm. She will not be educated to her full potential; she will suffer emotionally by being unable to communicate with other persons; she will probably be unable to read. All of these problems may be overcome with proper treatment and therapy. Yet, Bridget's mother refuses to permit her to receive this opportunity to progress toward her full development. Certainly the child is neglected. To deprive a child of the opportunity for normal growth and development is perhaps the greatest neglect a parent can impose upon a child. The facts of this case are well within those of In re McMillan, 30 N.C.App. 235, 226 S.E.2d 693 (1976). McMillan involved charges of neglect for failing to enroll children in public schools. The Court held that children deprived of their opportunity to a basic education were neglected within the meaning of the statute. The statute is not unconstitutional as applied to the facts of this case.

Respondent objects to further proceedings in the district court after notice of appeal was entered in this case. This argument is groundless. The clear language of N.C.G.S. 7A-668 allows temporary orders affecting the custody or placement of the juvenile as the judge determines to be in the best interest of the juvenile or the state. Although N.C.G.S. 1-294 states the general rule regarding jurisdiction of the trial court pending appeal, it is not controlling here, where there is a specific statute addressing the matter in question. See Hughey v. Cloninger, 297 N.C. 86, 91, 253 S.E.2d 898, 906 (1979). Bridget's case falls squarely within the purposes for which the General Assembly adopted N.C.G.S. 7A-668. Without authority of the district court to provide for the treatment of Bridget pending appeal, a recalcitrant party could frustrate the efforts of the court to provide for her best interests by simply entering notice of appeal. The law is not so foolish. In re Craddock, 46 N.C.App. 113, 264 S.E.2d 398 (1980), is sound authority supporting our holding. Our Court held that the district court had authority to enter an order changing custody of a child while an appeal was pending in the case. The statute at that time was N.C.G.S. 7A-289 (which was replaced by N.C.G.S. 7A-668, 1 January 1980), but it was substantially identical to the present act. N.C.G.S. 1-294 and the cases decided thereunder control further action by the trial court in general pending appeal, but with respect to proceedings concerning infants the rule is appropriately different. Infants require, and are entitled to, the uninterrupted protection of the courts.

Respondent's argument on the third issue sought to be presented is not supported by proper assignments of error. The argument is broadside and does not specify in what respects the trial judge erred in the proceeding. See Adams v. Dept. of N.E.R., 295 N.C. 683, 249 S.E.2d 402 (1978). The argument does not comply with either Rule 10(a) or 28(a) of the North Carolina Rules of Appellate Procedure, and the argument is subject to dismissal. Nevertheless, we have carefully reviewed the record as best we could with respect to the matters respondent attempts to argue and find no prejudicial error. The record shows that the court complied with the policy of the juvenile statute by selecting the least restrictive disposition. N.C.Gen.Stat. § 7A-646 (1981). It was only after the abject failure of respondent that the court adopted the only means available to it to promote the best interests of Bridget. In re Hughes, 50 N.C.App. 258, 273 S.E.2d 324 (1981).

Affirmed.

ROBERT M. MARTIN and WHICHARD, JJ., concur.