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-appellantmother 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 
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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 twentyfour 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 EhlersDanlos 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. § 7B805 (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 threeweek-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?

A: No.

Q: Any red flags at all for any underlying conditions that 

may have been the causation of these fractures?

A: No.

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. § 7B101(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. § 7B101(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
IN RE E.H. & R.H.

Opinion of the Court

- 20 -

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.
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

2

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

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

3

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

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

4

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

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

5

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

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

6

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

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

7

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

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

8

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”). 
IN RE: E.H. & R.H.

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

9

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

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

10

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

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

11

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

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

12

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

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

13

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 

omitted)).

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

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

14

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

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

15

[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.