In re: E.H. & R.H.

• Court: Court of Appeals of North Carolina
• Decided: June 4, 2024
• Docket: 23-864
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-864

Filed 4 June 2024

New Hanover County, Nos. 22JA77-78

IN RE E.H. R.H.

Appeal by respondents from order entered 25 May 2023 by Judge J. H.

Corpening, II in New Hanover County District Court. Heard in the Court of Appeals

2 April 2024.

The Law Group, by L. Bryan Smith, Melissa S. Gott, and Christian J.W. Jones, and Godwin Law Firm, by David M. Godwin, for the respondent-appellant- mother and respondent-appellant-father.

New Hanover County DSS, by Jill R. Cairo, and Q. Byrd Law, by Quintin D. Byrd, for the petitioner-appellee and the guardian ad litem.

TYSON, Judge.

Respondent-Mother (“Mother”) and Respondent-Father (“Father”) appeal from

initial adjudication and disposition order entered on 23 May 2023, which adjudicated

their youngest minor child as abused and neglected and their older child as neglected.

We affirm in part, vacate in part, and remand.

I. Background

Mother and Father are married and are the biological parents of E.H. and R.H.

See N.C. R. App. P. 42(b) (pseudonyms used to protect the identity of minors). E.H.

was born on 14 April 2022. He was three weeks old when the New Hanover County IN RE E.H. & R.H.

Opinion of the Court

Department of Social Services (“DSS”) assumed nonsecure custody of E.H. on 9 May

2022. His brother, R.H., was four years old.

The children’s paternal grandfather (“Grandfather”) lives with Mother, Father,

E.H., and R.H. Mother and Grandfather voluntarily brought E.H. to Novant New

Hanover Regional Medical Center (“NHRMC”) around 7:00 p.m. on 8 May 2022 and

presented him to have his right arm examined. Mother explained she had heard a

“pop” in E.H.’s right arm while changing his diaper earlier in the day, between noon

and 1:00 p.m. Mother’s concern deepened when E.H. had stopped using his right arm,

and she sought medical care that afternoon.

A radiologist secured and reviewed x-ray scans of E.H.’s right arm. The scan

revealed E.H.’s right humerus, i.e., the long bone in the arm, was fractured midway.

The fracture was recent or “acute”, showing no signs of healing. The radiologist

concluded the fractures had occurred between seven and ten days prior to the date of

the scans.

Dr. Laura Parente was E.H.’s attending physician from his birth and during

the visit to the emergency room. Dr. Parente noted E.H. was delivered via a

scheduled c-section, with no complications or difficulties causing the injuries.

Following the results of the initial x-ray, a full-body skeletal survey of E.H. was

ordered.

Dr. David Evans, a board-certified pediatric radiologist, reviewed the full

skeletal survey and the earlier x-ray of E.H.’s right arm. Dr. Evans agreed with the

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earlier finding that E.H.’s right humerus was acutely fractured. He also observed

additional metaphyseal fractures, i.e., corner fractures, of E.H.’s distal left tibia,

distal left femur, and proximal left tibia, and possible metaphyseal fractures of E.H.’s

distal right femur, proximal right tibia, and distal left ulna.

All fractures revealed on the skeletal survey were deemed to be acute, as none

of the fractures showed signs of healing, and all had purportedly occurred “no more

than 10 days prior to the skeletal survey.” Dr. Evans noted E.H.’s injuries are

“virtually pathognomonic of nonaccidental trauma” and opined such injuries are

inconsistent with an accident.

Dr. Parente ordered a full medical workup for E.H. after being informed of the

results of Dr. Evans’ skeletal survey. E.H.’s brain MRI, eye examination, bloodwork,

and urine testing were unremarkable, and no other clinical concerns were discovered.

Taylor Antczak, a social worker in the forensics investigation department, met

separately with Mother and Father on 9 May 2022. Mother repeated the same

information she had stated upon arrival at the ER, describing hearing a “pop” during

a diaper change and E.H’s loss of use of his right arm. She indicated the prior twenty-

four hours had been “normal.” Mother offered the baby carrier/stroller could have

caused E.H.’s injury, but she demonstrated proper use of the carrier. She denied any

falls, drops, motor vehicle accidents, abnormal fussing, or abnormal interactions

between four-year-old R.H. and E.H. She also denied sleeping with E.H. and claimed

E.H. had “not been out of her sight” since he was born.

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Antczak visited with Father at the family home. Father repeated the story

regarding Mother hearing a “pop” during a diaper change, but when asked to

demonstrate his interaction with E.H., nothing from the demonstration could have

caused the multiple injuries E.H. had sustained. Father, similar to Mother, denied

the possibility of any accidents, falls, or other events that could have caused E.H.’s

injuries. He confirmed Mother was E.H.’s primary caretaker. Father explained

Mother had suffered from post-partum depression following the birth of R.H. years

earlier, but denied any post-partum depression symptoms following the birth of E.H.

A petition was filed on 9 May 2022, which alleged E.H. to be an abused and

neglected juvenile and asserted R.H. to be a neglected juvenile. An order granting

nonsecure custody of both children to DSS was filed on 10 May 2022.

DSS referred E.H. to the Beacon Team at UNC Hospital in Chapel Hill for

further evaluation. One-third of the cases referred to the Beacon Team clinic are

opined to be of low suspicion for abuse, one-third are indeterminate, and one-third

are opined as high suspicion for abuse.

Dr. Samantha Schilling is a board-certified physician, specializes in child

abuse pediatrics, and is a member of the Beacon Team. Dr. Schilling met with Mother

and Father and inquired about a family history of metabolic disorders, which both

denied. The parents also denied a history of bone fractures for themselves or for their

other son, four-year-old R.H. Mother and Father both have hypermobile Ehlers-

Danlos Syndrome (“EDS”), which is a generalized joint hypermobility syndrome. Dr.

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Schilling opined this syndrome cannot be diagnosed in a child under the age of eight,

and the syndrome is not associated with an increased risk of developing fractures.

Dr. Schilling consulted with Dr. Carolina Guimaeres, the Chief of the Pediatric

Radiology Department at UNC Hospital. Follow-up skeletal surveys and x-rays of

E.H. were conducted on 23 May 2022, 22 June 2022, and 10 August 2022.

Dr. Guimaeres opined the process of dating when fractures actually occur is

difficult. It generally takes between seven and fourteen days before subacute healing,

such as callous formation and the generation of new bone, may be detected on medical

scans. The injuries to E.H.’s right arm and left ankle showed some healing and new

bone formation on the 23 May 2022 scans. Dr. Guimaeres also observed two of E.H.’s

ribs were acutely fractured on the 9 May 2022 scan, although those rib fractures were

not originally visible and noted by NHRMC’s scans. The rib fractures exhibited

subacute signs of healing on the 23 May 2022 scan.

Dr. Guimaeres observed two additional acute injuries to E.H.’s right tibia

(ankle) and right humerus (elbow) on the 23 May 2022 scan, which placed those

injuries at the outer limit of the seven-to-fourteen-day “acute” window before healing

is observable. The Child Medical Evaluation conjectured these previously undetected

fractures to E.H.’s right ankle and elbow may have been present on the initial skeletal

survey conducted on 9 May 2022, but may have been overlooked because of

“suboptimal skeletal survey technique.” The newly-revealed right ankle and elbow

injuries showed no signs of healing on the 23 May 2022 scan, unlike the other acute

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fractures detected on the previous scan on 9 May 2022.

No new or “acute” fractures were detected a month later on the 22 June 2022

or from the 10 August 2022 scans. Dr. Guimaeres opined E.H. possessed normal bone

density on each of his scans, and no observations indicated rickets nor any other

underlying medical condition to cause E.H.’s injuries. Dr. Guimaeres reported her

findings to Dr. Schilling and the Beacon Team. She opined significant force was

needed to cause the fractures E.H. had presented with, and those particular injuries

have a high specificity for child abuse in a non-ambulatory child.

Dr. Schilling testified to the following regarding the origins of E.H.’s fractures:

a fracture of the right humerus is normally the result of blunt force trauma; rib

fractures are typically the result of compression of the chest; and, metaphyseal/corner

fractures are typically the result of indirect force such as shearing, twisting, or

shaking. Dr. Schilling made a tentative diagnosis of physical abuse pending genetic

testing results.

Dr. Clara Hildebrandt, an UNC Assistant Professor of Pediatric Genetics,

performed genetic testing on E.H. After testing and examining genetic variants, Dr.

Hildebrandt opined no underlying genetic condition was present to have caused or

contributed to E.H.’s injuries.

E.H. resides in a licensed foster home in New Hanover County and has been

in an out-of-home placement for over a year since the nonsecure custody order was

filed on 10 May 2022. R.H. lives with his maternal grandmother in the family home,

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as Mother, Father, and the Grandfather had moved out. Mother and Father visit

with both E.H. and R.H. for two hours each week at DSS. Additionally, Mother and

Father visit with R.H. in the community under the maternal grandmother’s

supervision.

Mother was charged with felony child abuse inflicting serious bodily injury on

28 September 2022. The initial adjudication hearing was held across several sessions

on 14-17 November 2022, 12-13 December 2022, and 18 January 2023. An order was

entered five months later on 25 May 2023, adjudicating E.H. as abused and neglected

as defined in N.C. Gen. Stat. §§ 7B-101(1) and (15) (2023). R.H. was adjudicated as

neglected pursuant to N.C. Gen. Stat. § 7B-101(15). As of the time the initial

adjudication order was entered, the felony child abuse charge against Mother

remained pending.

Mother and Father each timely filed notices of appeal on 19 June 2023.

II. Jurisdiction

Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7B-1001(a)(3)

(2023).

III. Issues

Mother and Father first argue the trial court erred by adjudicating E.H. as

abused. They assert no clear and convincing evidence supports the following findings

of facts: (1) E.H. was in the exclusive care of Mother and Father when the injuries

occurred; (2) Mother and Father were responsible for E.H.’s injuries; and (3) E.H.’s

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injuries were inflicted by non-accidental means.

Mother and Father next argue the trial court erred by adjudicating E.H. as

neglected, because no clear and convincing evidence supports a finding of neglect.

They assert “the trial court made no additional findings of fact regarding actual

neglect but simply bootstrapped neglect to the abuse allegations.”

Finally, Mother and Father argue the trial court erred by adjudicating R.H. as

neglected based solely upon the unexplained injuries to E.H.

IV. Abuse and Neglect Adjudication of E.H. and R.H.

A. Standard of Review

In reviewing an adjudication order, this Court must 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 Gleisner, 141 N.C.

App. 475, 480, 539 S.E.2d 362, 365 (2000) (citations and internal quotation marks

omitted).

The “clear and convincing” standard of review “is greater than the

preponderance of the evidence standard required in most civil cases.” In re Smith,

146 N.C. App. 302, 304, 552 S.E.2d 184, 186 (2001) (citation and quotation marks

omitted). Clear and convincing evidence is “evidence which should fully convince.”

Id. (citation and quotation marks omitted).

“In a non-jury neglect adjudication, the trial court’s findings of fact supported

by clear and convincing competent evidence are deemed conclusive, even where some

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evidence supports contrary findings.” In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d

672, 676 (1997) (citations omitted). Unchallenged findings of fact are presumed to be

supported by sufficient evidence and are binding on appeal. Koufman v. Koufman,

330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991) (citations omitted).

B. Abuse Adjudication of E.H.

“The allegations in a petition alleging that a juvenile is abused, neglected, or

dependent shall be proved by clear and convincing evidence.” N.C. Gen. Stat. § 7B-

805 (2023).

An “[a]bused” juvenile is one “whose parent, guardian, or caretaker” either

“[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other

than accidental means.” N.C. Gen. Stat. § 7B-101(1)(a).

Mother and Father argue several of the trial court’s findings of fact and

conclusion of “serious physical injury by other than accidental means” are not

supported “by clear and convincing evidence.” Id. §§ 7B-101(1)(a) and 805. We

address each argument in turn.

1. Finding of Fact 72

Mother and Father first argue Finding of Fact 72, which found Mother and

Father were the only caretakers of E.H., is unsupported.

Social Worker Antczak testified Mother had explained during the investigative

interview that E.H. had been exclusively in her care:

Q: And did you inquire of [Mother] as to any caretakers

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that had provided care anytime for [E.H.] since his birth?

A: She indicated that she was the primary caretaker. She specifically said that he had not left her sight. However, she did say that when grandpa and dad are home, they will help her care for the child.

She also testified the paternal grandfather had never cared for E.H. without

Mother or Father being present:

Q: And did the paternal grandfather also reside in that residence?

A: He did.

Q: And at the time of the investigation, was he employed fulltime?

A: He was.

Q: And did it appear from your investigation that the paternal grandfather had ever cared for [E.H.] separately from one or both parents?

A: No.

Dr. Parente also testified regarding whether anyone other than Mother and

Father had cared for E.H. in the first four weeks of his life:

Q: And as part of taking that history from the parents, did you inquire as to whether [E.H.] had been to daycare or attended by any other caregivers other than the parents?

A: I did. Again, as a standard in any baby, you’re admitting to the hospital with this type of injury, so I did ask about babysitters and daycare and who has been around the child since he has been born, and the answer was that it was the parents only and no other caregivers.

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Mother and Father also argue the portion of Finding of Fact 72, providing

Mother and Father were responsible for E.H.’s injuries, is not supported. This

argument is premised on their first argument. Mother and Father argue: “Since baby

E[.]H[.] was not in the exclusive care of Respondent-parents, the trial court’s

determination of abuse rests solely on baby E[.]H[.]’s unexplained injuries[.]”

Here, the trial court’s finding Mother or Father was responsible for E.H.’s

injuries is not premised solely upon E.H.’s injuries alone. Dr. Evans at NHRMC

testified E.H.’s injuries were “virtually pathognomonic of nonaccidental trauma,” and

explained E.H.’s injuries were not accidental.

Dr. Schilling at UNC Hospital opined E.H.’s injuries resulted from the

following actions: blunt force trauma caused the break in his arm, the compression of

the chest caused the fractures to his ribs, and shearing, twisting, or shaking caused

the metaphyseal/corner fractures of his other bones. Finally, Dr. Guimaeres testified

significant force was needed to cause the fractures E.H. had presented with, and she

explained those injuries are highly indicative of child abuse, especially in a three-

week-old, non-ambulatory child.

Finding of Fact 72 is sufficiently supported. In re Helms, 127 N.C. App. at 511,

491 S.E.2d at 676; In re Gleisner, 141 N.C. App. at 480, 539 S.E.2d at 365. Mother’s

and Father’s argument is overruled.

2. Finding of Fact 78

Mother and Father argue the trial court’s finding E.H.’s injuries were inflicted

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by non-accidental means was not supported by competent evidence. They assert the

two injuries discovered on 23 May 2022, which was fourteen days after Mother and

Father had custody of E.H. and fifteen days after E.H. was taken to NHRMC, indicate

E.H.’s injuries would not have occurred while in their care.

The trial court correctly found the acute fractures to E.H.’s right ankle and

right elbow depicted on the 23 May 2022 scan were “at the outer limit of the 7- to 14-

day window expected for acute injuries” given E.H. had been removed from Mother’s

and Father’s care on 9 May 2022. Dr. Guimaeres opined the fractures “were likely

present on the initial skeletal survey,” but were purportedly “overlooked” by

“suboptimal skeletal survey technique[s]” by a board-certified pediatric radiologist

and the imaging equipment at NHRMC, a teaching hospital, regional referral center,

and Level 2 Trauma Center in New Hanover County. Subsequent skeletal scans

completed in June and August showed no additional acute fractures.

Mother and Father also argue their medical expert witnesses found E.H. may

have suffered from rickets or hypermobile EDS, which presented an alternative

explanation for E.H.’s injuries. Dr. Schilling opined this syndrome cannot be

diagnosed in a child under the age of eight, and the syndrome is not associated with

an increased risk of developing fractures. Further, the trial court found in Finding

of Fact 70:

The Respondent-Parents jointly presented expert testimony from Dr. David Ayoub, testifying as an expert witness in the field of general radiology, Dr. Marvin Miller,

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testifying as an expert witness in the field of genetics, and Dr. Michael Holick, testifying as an expert witness in the fields of internal medicine and metabolic bone disease. In reviewing all of the evidence while the case was under advisement, the Court assigns almost no credibility to the testimony of these witnesses; specifically, the testimony was not grounded in sound medical principles, reflected out-of-date medical theory, and was not reflective of the current prevailing medical knowledge in the area of child physical abuse. Further, the information provided in their respective evaluations and the opinions drawn therefrom are not the product of reliable principles and methods nor did each apply sound scientific principles and methods reliably to the facts of the case.

Mother and Father tendered multiple properly qualified expert witnesses,

which were admitted. The trial court concluded their testimonies were not based on

“sound scientific principles and methods” and lacked “credibility.” The trial court was

presented with contradictory expert witness opinions, and in its wisdom and

discretion found DSS’ more credible.

Dr. Guimaraes opined E.H.’s bone metaphysis is inconsistent with cuffing, as

his bones were smooth and not frayed.

Q: And can you tell us what you would expect to see if an infant was suffering from rickets?

A: So rickets has a few things in the bone. One is the [indiscernible] will be decreased, which is not the case here, but also we’ll have what is called cuffing and fraying of the metaphysis. So the metaphysis, instead of looking smooth like it is here, they look frayed and very typical. They are casuistic. You can also see findings in the ribs called the rachitic rosary where you have an increased size of the anterior portion of the ribs, which we don’t see it here.

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Q: And you didn’t see evidence of any of those symptoms, is that correct?

A: Correct, no.

Q: But other than the fractures, did you see any deformities or anomalies in [E.H.]’s skeletal survey?

Q: Any red flags at all for any underlying conditions that may have been the causation of these fractures?

Dr. Evans explained DSS’ team of physicians ruled out osteogenesis

imperfecta, rickets, and other metabolic bone conditions as a possible explanation for

E.H.’s injuries, testified he treats multiple cases of rickets each year, and opined

E.H.’s bones showed no signs of rickets.

Regarding Mother’s and Father’s hypermobile EDS, Dr. Schilling opined no

studies indicate hypermobile EDS creates an increased risk of fractures in children.

She opined this lack of risk was confirmed by neither parent nor the brother R.H.

having a history of suffering from bone fractures.

Finding of Fact 78 is supported by contradictory expert witnesses’ testimonies.

In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676; In re Gleisner, 141 N.C. App. at

480, 539 S.E.2d at 365. Mother’s and Father’s argument is overruled.

C. Neglect Adjudication of E.H.

A “[n]eglected” juvenile is one “whose parent, guardian, custodian, or

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caretaker” engages in certain statutorily defined criteria, including failing to “provide

proper care, supervision, or discipline” or “[c]reat[ing] or allow[ing] to be created a

living environment that is injurious to the juvenile’s welfare.” N.C. Gen. Stat. § 7B-

101(15)(a), (e).

Mother’s and Father’s argument regarding whether E.H. was neglected is:

“The trial court made no additional findings of fact regarding actual neglect but

simply bootstrapped neglect to the abuse allegations. Give[n] the arguments supra,

there was no clear and convincing evidence that baby E[.]H[.] was abused[,] and thus

the trial court’s finding of neglect should be overturned as well.”

The trial court made other findings regarding E.H.’s neglect. The trial court

explained, until the cause of E.H.’s injuries is established, “their home [is] an

injurious environment for any juvenile as there are no reasonable means to protect

any juvenile from a similar injury occurring in the home.”

Mother’s and Father’s consistent “explanations” for how E.H.’s arm was broken

during a diaper change were challenged by numerous experts and the social worker,

who had observed the parents perform a proper diaper change. The diaper change

account also fails to account for the numerous other fractures discovered on E.H.’s

skeletal survey. Until the perpetrator or perpetrators of E.H.’s injuries are

established, Mother’s and Father’s home presents a potentially injurious

environment for E.H. Mother’s and Father’s argument is without merit.

D. Neglect Adjudication of R.H.

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“In determining whether a juvenile is a neglected juvenile, it is relevant

whether th[e] juvenile lives in a home . . . where another juvenile has been subjected

to abuse or neglect by an adult who regularly lives in the home.” N.C. Gen. Stat.

§ 7B-101(15) (emphasis supplied).

DSS carries the burden to overcome the presumption of fitness and parental

rights to the care, custody, and control of their children and to prove by clear, cogent,

and convincing evidence the existence of neglect, as is defined in the statute. N.C.

Gen. Stat. § 7B-805. See N.C. Gen. Stat. § 7B-1109(f) (2023) (“The burden in such

proceedings shall be upon the petitioner or movant and all findings of fact shall be

based on clear, cogent, and convincing evidence.”); In re Evans, 81 N.C. App. 449, 452,

344 S.E.2d 325, 327 (1986) (“The State then has the burden, at the adjudicatory

hearing stage, to prove neglect and dependency by clear and convincing evidence.”

(citation omitted)).

A finding of “prior abuse, standing alone, is not sufficient to support an

adjudication of neglect.” In re N.G., 186 N.C. App. 1, 9, 650 S.E.2d 45, 51 (2007). In

multiple cases “this Court has generally required the presence of other factors to

suggest that the neglect or abuse will be repeated.” In re J.C.B., 233 N.C. App. 641,

644, 757 S.E.2d 487, 489 (2014) (citing first In re C.M., 198 N.C. App. 53, 66, 678

S.E.2d 794, 801-02 (2009); then In re A.S., 190 N.C. App. 679, 690-91, 661 S.E.2d 313,

320-21 (2008); and then In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d 403, 406

(2005)).

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While the decision of the trial court regarding whether the other children

present in the home are neglected, “must of necessity be predictive in nature, [ ] the

trial court must assess whether there is a substantial risk of future abuse or neglect

of a child based on the historical facts of the case.” In re McLean, 135 N.C. App. 387,

396, 521 S.E.2d 121, 127 (1999).

The trial court found:

71. Given the family’s circumstances and living arrangement from mid-April through May 8, 2022, [R.H.] was necessarily present in the home when the injuries were inflicted on [E.H.] Without either Respondent-parent taking accountability or providing any plausible explanation for [E.H.]’s injuries, there is a substantial risk of both [E.H.] and [R.H.] of being subjected to physical abuse and neglect in that household. Due to his tender years, [R.H.] is at risk for being subjected to the same infliction of injuries as [E.H.]

(emphasis supplied).

The trial court’s findings of fact regarding R.H. rely solely upon E.H.’s abuse

and fail to mention any prior abuse of R.H. or other evidence predictive of probable

neglect of R.H., which “is not sufficient to support an adjudication of neglect.” In re

N.G., 186 N.C. App. at 9, 650 S.E.2d at 51. The trial court’s findings of fact do not

address whether other factors were present “to suggest that the neglect [of R.H] . . .

will be repeated.” In re J.C.B., 233 N.C. App. at 644, 757 S.E.2d at 489 (citations

omitted). The testimony and record show no prior history of neglect or abuse of E.H.

or of R.H.

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The statute does not allow the trial court to rely solely on the abuse or neglect

of E.H. to support the adjudication of R.H. as neglected, only that such evidence is

“relevant” and is not conclusive to relieve DSS of its burden. N.C. Gen. Stat. § 7B-

101(15). See In re A.L., 279 N.C. App. 683, 863 S.E.2d 328, 2021 N.C. App. LEXIS

561, 2021 WL 4535716, at *3 (unpublished) (2021) (remanding an order, which

adjudicated a juvenile neglected, ceased reunification efforts, and established a

permanent plan of guardianship with a court approved caretaker, to the trial court

for further findings because the order “focus[ed] almost entirely on the prior

adjudications of abuse and neglect of Amy’s older sister Jennifer”).

The trial court is mandated to make additional findings of fact and supported

conclusions regarding the purported and probability of future “neglect” of R.H., and

the trial court must determine whether other evidence tends to indicate any abuse or

neglect would likely be repeated against R.H. Id.; In re J.C.B., 233 N.C. App. at 644,

757 S.E.2d at 489 (citations omitted).

The transcripts and record appear devoid of any clear and convincing evidence

of neglect of R.H., other than the ipso facto application of non-confessed and

unexplained injuries to E.H. to overcome the presumption of fitness and primary

parental rights by married parents, who have no prior history of either neglect or

abuse, and with one facing a felony indictment for child abuse. See N.C. Gen. Stat.

§§ 7B-805 and 1109(f); In re Evans, 81 N.C. App. at 452, 344 S.E.2d at 327.

The statutory burden to prove abuse or neglect or any basis for the State to

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interject and interfere with constitutional and natural parental rights always rests

upon the State with proof of clear, cogent, and convincing evidence. Id.

This burden cannot be relieved by the trial court under ultimatum threats to

the parents “to confess or lose your children”, or violating marital privilege,

particularly in the face of pending criminal charges. Id. Nor can these threats

overcome the presumption of fitness and consistent parental conduct. See Adams v.

Tessener, 354 N.C. 57, 62, 550 S.E.2d 499, 503 (2001) (explaining the Due Process

Clause of the Fourteenth Amendment to the United States Constitution and the

North Carolina Constitution protects “a natural parent’s paramount constitutional

right to custody and control of his or her children” and ensures that “the government

may take a child away from his or her natural parent only upon a showing that the

parent is unfit to have custody or where the parent’s conduct is inconsistent with his

or her constitutionally protected status.” (citations omitted)); Owenby v. Young, 357

N.C. 142, 148, 579 S.E.2d 264, 268 (2003) (“Until, and unless, the movant establishes

by clear and convincing evidence that a natural parent’s behavior, viewed

cumulatively, has been inconsistent with his or her protected status, the ‘best interest

of the child’ test is simply not implicated.”); Troxel v. Granville, 530 U.S. 57, 66, 147

L.Ed.2d 49, 57 (2000) (“[W]e have recognized the fundamental right of parents to

make decisions concerning the care, custody, and control of their children.” (citations

omitted)).

V. Conclusion

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The trial court’s findings of fact regarding abuse of E.H. were supported by

clear and convincing evidence. In re Helms, 127 N.C. App. at 511, 491 S.E.2d at 676;

In re Gleisner, 141 N.C. App. at 480, 539 S.E.2d at 365. The portion of the trial court’s

order adjudicating E.H. as abused and neglected is affirmed.

The portion of the trial court’s order adjudicating R.H. as neglected, however,

is remanded for the trial court to make additional findings, in the absence of a

compelled confession by either parent or violation of the marital privilege, regarding

whether statutorily-mandated evidence exists and DSS has carried its burden to

overcome the parental presumption of fitness and parental conduct to support and

adjudicate R.H. as neglected. In re J.C.B., 233 N.C. App. at 644, 757 S.E.2d at 489.

It is so ordered.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED.

Judge GORE concurs.

Judge Stroud concurs in part and dissents in part by separate opinion.

- 20 - No. COA23-864 – In re: E.H. & R.H.

STROUD, Judge, concurring in part and dissenting in part.

I concur with the majority opinion as to the adjudication of E.H. as abused and

neglected, but I dissent as to the adjudication of neglect of R.H. I believe the trial

court’s extensive and detailed findings of fact, all of which are supported by the record

and are binding on appeal, are more than sufficient to support the adjudication of

neglect as to R.H.

Although the majority opinion has addressed the challenged findings of fact

and correctly held each to be supported by the evidence, I would note that the trial

court’s order includes over eleven full pages of findings of fact, with the incorporation

of an additional twelve pages of the Child Medical Evaluation (“CME”) Report from

“the Beacon Team at UNC Hospital in Chapel Hill, North Carolina.” The Beacon

Team “is a group of doctors and social workers who evaluate cases where there may

have been abuse of a child or an elderly person” with the goal of providing “an

objective analysis of all available medical evidence” and “additional diagnostic

testing” as needed “to determine whether other potential causes of injury can be ruled

out.” The trial court heard six days of testimony and received hundreds of pages of

evidence at the hearing. The Beacon Team carefully considered every possible

alternative explanation for E.H.’s injuries but ultimately concluded “the sole

causation for each and every one of [E.H.]’s observed injuries is child physical abuse.”

Most of the findings address E.H.’s injuries and the various alternative

explanations for the injuries which the Beacon Team and the trial court considered IN RE: E.H. & R.H.

STROUD, J., concurring in part and dissenting in part

and rejected, but some of the findings address the behavior of Mother and Father

when E.H.’s injuries were discovered. Mother’s “affect was noted to be ‘flat’ during

the interview” with the social worker on 9 May 2022 just after the report of the

unexplained fractures. Father “did not go to the hospital at any time from May 8 to

May 10, 2022.” The social worker located Father at home on 9 May 2022. He also

denied “any falls, accidents, trauma or other incident which would have caused the

multiple fractures to [E.H.].” Father “repeated the same story as . . . Mother

regarding the diaper change on May 8 and said he did not initially think much about

it.” In contrast, in his “sworn testimony during th[e] hearing,” Father asserted that

“when he heard the ‘pop’ in [E.H.]’s shoulder area during a diaper change on May 8,

2022, that he ‘froze,’ ‘felt ill,’ and wanted to immediately go to the ER.” He said the

diaper change was “around noon or 1:00 p.m.,” but E.H. “was not taken to the ER

until approximately 6 to 7 hours later, during which time, the family went to Walmart

and to visit the paternal great-grandparents.” Moreover, “[w]hen the decision was

made to go to the ER later that evening, . . . Father stayed home with [R.H.] and did

not at any time go to the hospital, even after the right arm fracture was found and

after the multiple fractures were identified.”

Although the primary focus of the order is the cause of E.H.’s injuries, these

findings are still important to consider as the basis for the trial court’s conclusion

R.H. was neglected based upon his presence in the home where E.H.’s abuse occurred.

After fully addressing E.H.’s injuries, the trial court then found:

2 IN RE: E.H. & R.H.

68. As noted in the CME Report, “[c]hildren, and especially young infants, who experience physical abuse or neglect are at risk for future harm or even death if returned to the same environment in which they sustained abuse/neglect.”

69. Dr. Schilling is of the opinion that there is no way that [E.H.] could have experienced the trauma necessary to cause his injuries without his caregivers being aware of it.

....

71. Given the family’s circumstances and living arrangement from mid-April through May 8, 2022, [R.H.] was necessarily present in the home when the injuries were inflicted on [E.H.]. Without either Respondent-Parent taking accountability or providing any plausible explanation for [E.H.]’s injuries, there is a substantial risk of both [E.H.] and [R.H.] of being subjected to physical abuse and neglect in that household. Due to his tender years, [R.H.] is at risk for being subjected to the same infliction of injuries as [E.H.].

72. The parents, as the only caretakers for [E.H.], are responsible for his injuries. The Court cannot determine if a parent does not know what happened, knows what happened and will not tell on the other parent, or is the parent who inflicted the injuries. The Respondent-Parents continue to maintain that they are not responsible for these injuries, and as such, this renders their home an injurious environment for any juvenile as there are no reasonable means to protect any juvenile from a similar injury occurring in the home. The Court currently cannot separate the parents as to culpability and has no way to address the issues as long as each parent maintains his/her current position that he or she did not injure the child and does not know how the child was injured. The Juveniles would be at risk if placed back in the home with Respondent-Mother and/or Respondent-Father.

73. No other reasonable means were available to protect the Juveniles at the time of the filing of the petition other

3 IN RE: E.H. & R.H.

than placement out of the home.

The majority considers the detailed and extensive findings of fact insufficient

to support an adjudication of neglect of R.H. and characterizes the trial court’s order

as an “ipso facto application of non-confessed and unexplained injuries to E.H. by

married parents with no prior history of either neglect or abuse, and with one facing

a felony indictment for child abuse.” I agree it is particularly troubling when two

parents with no apparent prior history of neglect or abuse are accused of causing

serious injury to a baby or of allowing serious injury to occur without taking prompt

action to protect the baby. But this case is no different from many others in this

regard. Cases dealing with serious non-accidental injuries to a baby are some of the

most “challenging and tragic” of abuse, neglect, or dependency cases. See In re M.T.,

285 N.C. App. 305, 306, 877 S.E.2d 732, 736 (2022) (noting that “cases arising from

serious and life-threatening non-accidental injuries to a baby are perhaps the most

challenging and tragic of all”).

This Court addressed a similar situation, including the adjudication of neglect

of an older sibling who was not injured, in In re M.T.:

Here, as in most cases involving life-threatening nonaccidental injuries to a baby, there is no direct evidence of exactly what happened. A baby cannot tell anyone what happened, and no one, other than someone who hurt the baby, saw what happened. Trial courts must often make these difficult and momentous decisions based upon circumstantial evidence and evaluation of credibility and weight of the evidence. In this case, the trial court carefully considered evidence from many witnesses and hundreds of

4 IN RE: E.H. & R.H.

pages of exhibits and reports, including medical records, presented at hearings held over many days.

Id. at 306-07, 877 S.E.2d at 736.

In In re M.T., Mark’s baby brother Ken had serious non-accidental injuries;

both children also lived in a home with their mother and father, with no prior history

of abuse or neglect. Id. at 308, 877 S.E.2d at 737. Later, after DSS’s removal of the

children from the home and further investigation, the father was charged with child

abuse. Id. at 317, 877 S.E.2d at 742. The mother challenged the trial court’s

adjudication of the older child, Mark, who was not injured in any way, as neglected

for the same reasons as Mother and Father in this case:

As to Mark, [the m]other specifically asserts the neglect adjudication “is based on the circumstances relating to Ken’s abuse or neglect in 2017” and “there are no supported findings establishing the presence of other factors with a nexus to Mark or to the likelihood he would be neglected by Mother if his custody was returned to her.”

Id. at 344, 877 S.E.2d at 758 (alterations omitted).

This Court affirmed adjudications of neglect of another child in the home in

cases where the parents are unable to explain serious injury to a baby and there is

no other person who might have harmed the child. Id. at 354-55, 877 S.E.2d at 764-

65. “[T]he trial court need not wait for actual harm to occur to the child if there is a

substantial risk of harm to the child in the home.” In re T.S., 178 N.C. App. 110, 113,

631 S.E.2d 19, 22 (2006). Trial courts must at times draw a reasonable inference

from circumstantial evidence to prevent harm to a child:

5 IN RE: E.H. & R.H.

Caselaw also demonstrates why the lack of explanation can be so important. In a case the Coalition acknowledges is relevant to this consideration, our Supreme Court explained a parent’s “refusal to make a realistic attempt to understand how her child was injured” can help support a “trial court’s conclusion that the neglect is likely to reoccur.” In re D.W.P., 373 N.C. [327,] 340, 838 S.E.2d [396,] 406 [2020]. The In re D.W.P. Court inferred if a parent is not able to explain how their children were harmed before, there is a risk the children will be harmed the same way again if returned to the parent’s custody, and that is a risk our courts are not required to take. See id., 373 N.C. at 339-40, 838 S.E.2d at 406 (explaining the paramount importance of child safety before drawing the conclusion in the previous sentence). The trial court here permissibly drew the same inference explaining in Findings 87 and 88, which we have found support for above, the lack of explanation of Ken’s injuries means there is a continued “risk to both children’s health and safety.”

In re M.T., 285 N.C. App. at 349-50, 877 S.E.2d at 761-62 (brackets omitted).

In some cases, as noted by the majority, there are other facts present, in

addition to the non-accidental injury to a baby, which may also indicate a risk of

abuse or neglect to another child in the home, such as mental health concerns or

substance abuse. But these other factors are not always required for a child who lives

in the home with another child who has been abused and adjudicated as neglected.

The trial court must evaluate the credibility and weight of all the evidence and has

the discretion to make logical inferences which are reasonably based upon the facts

in the case. See In re A.S., 190 N.C. App. 679, 690, 661 S.E.2d 313, 320 (2008) (“Since

the statutory definition of a neglected child includes living with a person who has

abused or neglected other children and since this Court has held that the weight to

6 IN RE: E.H. & R.H.

be given that factor is a question for the trial court, the trial court, in this case, was

permitted, although not required, to conclude that Adam was neglected based on

evidence that respondent had abused Teresa by intentionally burning her.”).

The majority opinion also strongly implies that the trial court is not permitted

to draw a negative inference against a parent from the parent’s silence or failure to

give a plausible explanation of how a child’s injury occurred, apparently based either

upon the Fifth Amendment right against self-incrimination or upon marital privilege,

as one spouse cannot be compelled to testify against the other. I first note that

Mother and Father did not raise any argument on appeal regarding any infringement

of their Fifth Amendment rights against self-incrimination or marital privilege.

Since Chapter 7B specifically precludes them from making these arguments, that is

not surprising. See N.C. Gen. Stat. § 7B-310 (2023); N.C. Gen. Stat. § 7B-1109(f)

(2023). But since the majority has addressed this right and privilege and remanded

to the trial court to make additional findings, I will further note my concerns

regarding this portion of the majority opinion.

First, the majority opinion fails to cite any law supporting its position that

“[t]his burden cannot be relieved by the trial court under ultimatum threats to the

parents ‘to confess or lose your children’, or violating marital privilege, particularly

in the face of pending criminal charges.” It cites statutes noting the standard of proof

of clear, cogent, and convincing evidence; I agree with the majority that the trial

court’s findings of fact are supported by clear, cogent, and convincing evidence and

7 IN RE: E.H. & R.H.

the order so stated. See N.C. Gen. Stat. § 7B-805 (2023). Oddly, the majority also

cites to North Carolina General Statute Section 7B-1109(f), which states the same

requirement of clear, cogent, and convincing evidence in termination of parental

rights adjudications and then provides that “[n]o husband-wife or physician-patient

privilege shall be grounds for excluding any evidence regarding the existence or

nonexistence of any circumstance authorizing the termination of parental rights.”

N.C. Gen. Stat. § 7B-1109(f). The next citation is to In re Evans, 81 N.C. App. 449,

344 S.E.2d 325 (1986). I will not quote from Evans, as it was decided in 1986 based

upon very different statutes regarding abuse and neglect than are now in effect, but

in Evans, I can find nothing to support the majority’s assertions regarding

“ultimatum threats” or marital privilege. See id. at 451, 344 S.E.2d at 326. In Evans,

this Court upheld the trial court’s adjudication of neglect but disapproved of the trial

court’s order for the mother to “provide a separate bed” for the child and “submit to

psychiatric or psychological evaluation or treatment separate and apart from her

‘participation’ in [the child’s] treatment.” Id. at 453, 344 S.E.2d at 328 (emphasis in

original).1

The majority’s remaining citations are to cases addressing a natural parent’s

paramount right to custody. Again, I entirely agree with these statements of law, but

1 North Carolina statutes in effect at that time did not allow the trial court to order this type of

psychiatric or psychological evaluation and treatment; our current statutes do. See N.C. Gen. Stat. § 7B-904 (2023) (“Authority over parents of juvenile adjudicated as abused, neglected, or dependent”).

8 IN RE: E.H. & R.H.

these cases do not address the issues raised in this case. Nor do they tend to support

the majority’s position. In Adams v. Tessener, 354 N.C. 57, 66, 550 S.E.2d 499, 505

(2001), the Supreme Court of North Carolina affirmed the trial court’s order granting

custody to grandparents based upon findings of the parents’ unfitness.2 In Owenby

v. Young, 357 N.C. 142, 148, 579 S.E.2d 264, 268 (2003), the Supreme Court of North

Carolina affirmed the trial court’s dismissal of a custody claim against the child’s

father filed by the maternal grandmother after the death of the child’s mother. This

Court had reversed the trial court’s order, but the Supreme Court disagreed and

reversed this Court based upon the trial court’s findings that the grandmother “failed

to carry her burden of demonstrating that [the] defendant forfeited his protected

status. The evidence of record supports the trial court’s findings of fact, which in turn

support its legal conclusion that [the] defendant’s protected status as parent was not

constitutionally displaced.” Id.

As to the law regarding the Fifth Amendment right against self-incrimination

or the marital privilege, it is well-established that application and operation of these

2 One portion of Adams v. Tessener is instructive here:

Turning to the present case, we first note that in custody cases, the trial court sees the parties in person and listens to all the witnesses. This allows the trial court to detect tenors, tones and flavors that are lost in the bare printed record read months later by appellate judges. Accordingly, the trial court’s findings of fact are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.

Id. at 63, 550 S.E.2d at 503 (citation and quotation marks omitted).

9 IN RE: E.H. & R.H.

protections against testifying is different in a civil proceeding with the primary goal

of protecting the best interest of a minor child than in a criminal prosecution. See In

re L.G.A., 277 N.C. App. 46, 50-51, 857 S.E.2d 761, 766 (2021) (holding the mother

was not entitled to a continuance of the hearing on motion for review in a neglect

proceeding based upon the argument she would be “effectively prevented from

testifying to avoid waiver of her Fifth Amendment rights against self-incrimination”

due to pending criminal charges against her, based upon North Carolina General

Statute Section 7B-803 (2013), which holds that “[r]esolution of a pending criminal

charge against a respondent arising out of the same transaction or occurrence as the

juvenile petition shall not be the sole extraordinary circumstance for granting a

continuance” (quoting N.C. Gen. Stat. § 7B-803 (2013))); see also In re Pittman, 149

N.C. App. 756, 761, 561 S.E.2d 560, 564 (2002) (“Here, the child’s interest in being

protected from abuse and neglect is paramount.”); Qurneh v. Colie, 122 N.C. App. 553,

558-59, 471 S.E.2d 433, 436 (1996) (“The privilege against self-incrimination is

intended to be a shield and not a sword. Here, the plaintiff attempted to assert the

privilege as both a shield and a sword. . . . Due to the plaintiff’s refusal to answer

questions regarding illegal drug use, trafficking and other drug involvement, the trial

court was unable to consider pertinent information in determining plaintiff’s fitness.

As a policy matter, issues such as custody should only be decided after careful

consideration of all pertinent evidence in order to ensure the best interests of the

child are protected. Plaintiff’s decision not to answer certain questions relating to his

10 IN RE: E.H. & R.H.

past illegal drug activity by invoking his fifth amendment privilege prevented the

court from determining his fitness and necessitated the dismissal of his claim.”

(citations and quotation marks omitted)).

In addition to cases recognizing the difference between civil proceedings

involving protection of a child and criminal prosecutions, Chapter 7B explicitly sets

out this difference in proceedings for abuse, neglect, or dependency:

No privilege shall be grounds for any person or institution failing to report that a juvenile may have been abused, neglected, or dependent, even if the knowledge or suspicion is acquired in an official professional capacity, except when the knowledge or suspicion is gained by an attorney from that attorney’s client during representation only in the abuse, neglect, or dependency case. No privilege, except the attorney-client privilege, shall be grounds for excluding evidence of abuse, neglect, or dependency in any judicial proceeding (civil, criminal, or juvenile) in which a juvenile’s abuse, neglect, or dependency is in issue nor in any judicial proceeding resulting from a report submitted under this Article, both as this privilege relates to the competency of the witness and to the exclusion of confidential communications.

N.C. Gen. Stat. § 7B-310. Even in a proceeding for termination of parental rights—

not the case we are considering here—as noted earlier, Chapter 7B sets out the

standard of proof of “clear, cogent, and convincing evidence” and specifically provides

that “[n]o husband-wife or physician-patient privilege shall be grounds for excluding

any evidence regarding the existence or nonexistence of any circumstance authorizing

the termination of parental rights.” N.C. Gen. Stat. § 7B-1109(f).

If one parent has knowledge that the other parent has harmed a child, the

11 IN RE: E.H. & R.H.

parent has an obligation to protect the child by providing information about the

abuse. In a criminal prosecution or a civil proceeding which may result in

imprisonment, a defendant’s silence may not be used against him. See Lowder v. All

Star Mills, Inc., 301 N.C. 561, 584, 273 S.E.2d 247, 260 (1981) (“The fifth amendment

to the United States Constitution provides that no person shall be compelled in any

criminal case to be a witness against himself. Although the fifth amendment

privilege against compulsory testimonial self-incrimination is ordinarily asserted in

criminal proceedings, its protection also extends to civil proceedings where a party

may be subjected to imprisonment.” (citation and quotation marks omitted)). But in

a civil proceeding for abuse or neglect under Chapter 7B, a party’s silence may allow

the trial court to draw a negative inference because the purpose of this proceeding is

to protect the children’s best interests. See In re Pittman, 149 N.C. App. at 760-61,

561 S.E.2d at 564-65 (“We acknowledge the mother’s argument that because an abuse

and neglect proceeding can result in removal of a child from a parent’s custody, a

parent’s constitutionally protected interest is at stake. However, the common thread

running throughout the Juvenile Code, § 7B-100 et seq., is that the court’s primary

concern must be the child’s best interest. When determining the best interest of a

child, any evidence which is competent and relevant to a showing of the best interest

of that child must be heard and considered by the trial court, subject to the

discretionary powers of the trial court to exclude cumulative testimony. Without

hearing and considering such evidence, the trial court cannot make an informed and

12 IN RE: E.H. & R.H.

intelligent decision concerning the best interest of the child. Here, the child’s interest

in being protected from abuse and neglect is paramount. While the mother is not

prevented from attempting to suppress her statement to Officer Batchelor in any

subsequent criminal proceeding, the mother is barred from doing so in this civil

proceeding where the protection of the child’s interests, as distinguished from the

mother’s interests, is the overriding consideration.” (citation and quotation marks

The majority directs the trial court to make additional findings of fact on

remand about circumstances which simply may not exist in this case, but those

findings are not necessary. But of more concern, the majority seems to be barring the

trial court from drawing negative inferences against either parent based upon their

refusal or inability to explain what happened to E.H. In effect, the majority is

directing the trial court to ignore its conviction, formed after considering extensive

evidence and testimony, that R.H. is at risk of abuse by either Mother or Father,

considering the type of trauma which would have been required to cause E.H.’s

injuries, because one parent physically abused E.H., and the other parent is either

protecting the abusing parent or is unable to protect the children from the abusing

parent. But in cases with this sort of fact pattern, the trial court is often compelled

to rely upon logical inferences from the established facts of the case. In In re J.M.,

384 N.C. 584, 604, 887 S.E.2d 823, 836 (2023), our Supreme Court affirmed the trial

court’s order removing “two young children from the custody of their parents after

13 IN RE: E.H. & R.H.

one or both parents inflicted life-threatening injuries on the youngest child, then just

six weeks old.” The youngest child was injured; the older child was not. Id. at 586,

887 S.E.2d at 825. The Supreme Court noted the similarities with In re D.W.P., 373

N.C. 327, 838 S.E.2d 396:

The parallels between In re D.W.P. and this case are obvious and compelling. Each case involves the serious physical abuse of an infant at home and in the care of two adults. In each case, the trial court found that the two caregivers were the only persons who could have inflicted the abuse. Moreover, while the mother in each case suggested that she was elsewhere in the home when the abuse took place, she refused to blame her partner or to supply any other plausible explanation for the infant’s injuries. The explanations that were offered in each case bordered on the absurd, with the mother in In re D.W.P. blaming the family dog or strange sleep positions for the harm to her child and respondent-father in the present case theorizing that a difficult bowel movement accounted for Nellie’s injuries. In each case, the trial court found that parental inability or unwillingness to confront the cause of the abuse prevented the parent(s) from adequately mitigating the risk of further abuse or neglect.

In re J.M., 384 N.C. at 601, 887 S.E.2d at 834. In all of these cases, one or more older

children were also removed from the home based primarily or solely upon serious

nonaccidental injury to an infant sibling in the home. As in In re J.M., here the trial

court was “[f]aced with the gravity of the abuse and the persistent unwillingness of

either parent to admit responsibility or to fault the other” and it concluded that the

children could be protected only by removal from the home. Id. at 604, 887 S.E.2d at

836. And as in In re M.T.,

14 IN RE: E.H. & R.H.

[t]he trial court’s job, ultimately, is to make hard decisions based upon the evidence presented, with the best interests of these two young children, [E.H. and R.H.], as its primary consideration. And our job, as an appellate court, is to determine if the trial court did that job correctly, in accord with the law. Because the trial court did that difficult job correctly, [I would] affirm the trial court’s order.

285 N.C. App. at 307, 877 S.E.2d at 736. I therefore concur in part and dissent in

part.