In re E.H., _ N.C. App. _ (June 4, 2024)

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Stay granted

July 15, 2024

Held:

Affirmed in Part; Vacated in Part; and Remanded

There is a dissent

by Stroud, J.

Facts: Mother and Father appeal the adjudication of their two children, one of whom was adjudicated abused and neglected and the other of whom was adjudicated neglected. DSS filed a petition and obtained nonsecure custody of the juveniles following Mother taking the three-week old infant to the ER for what she described as a pop in his arm while changing his diaper. Medical screenings showed the child suffered several acute bone fractures, including the humerus, ribs, and metaphysis. Mother and Father denied any abuse or events that would cause the infant’s injuries both at the hospital and when interviewed by DSS and stated the juvenile was always under mother’s supervision. During the adjudication hearing that spanned several months, DSS presented expert testimony to show the child’s injuries would have required significant force to inflict and are highly indicative of child abuse in a three-week old, nonambulatory child. Mother and Father argue that the court’s findings do not support the adjudication of either child as neglected. The court of appeals affirmed the adjudication of the infant as an abused juvenile, summarized separately.
“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.” Sl. Op. at 8 (citation omitted).
“A ‘[n]eglected’ juvenile is one ‘whose parent, guardian, custodian, or 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.’ ” Sl. Op. at 14-15, quoting G.S. 7B101(15)(a), (e). G.S. 7B-805 mandates that DSS carry “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 . . .” Sl. Op. at 16. “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.” Sl. Op. at 16, quoting G.S. 7B-101(15) (emphasis in original). Appellate courts have generally required that other factors beyond evidence of prior abuse are needed to conclude neglect or abuse will be repeated. “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.’ ” Sl. Op. at 17.
The court made sufficient findings to support the conclusion that the infant is a neglected juvenile. In addition to the findings of the infant’s serious injuries suffered while in the sole care of Mother and Father for which neither parent has taken responsibility or given a plausible explanation, the court found that the home was an injurious environment and there are no reasonable means to protect a juvenile from similar injuries occurring until the perpetrator responsible for the injuries is established.
The court did not make sufficient findings to conclude that the older sibling is a neglected juvenile. The court’s findings regarding Mother and Father being the sole caretakers of the infant, the nonaccidental injuries to the infant sibling while under their care, and the absence of explanation for the injuries are insufficient to support the neglect adjudication of the older sibling without any further findings regarding abuse of the older child or the probability of future neglect. “The transcripts and record appear devoid of any clear and convincing evidence of neglect of [the older child], other than the ipso facto application of non-confessed and unexplained injuries to [the infant child] 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.” Sl. Op. at 18. The portion of the order adjudicating the older sibling as neglected is remanded for the court to make further findings of the probability of future neglect “in the absence of a compelled confession by either parent or violation of the marital privilege”. Sl. Op. at 20.
Dissent: The court made sufficient supported findings to conclude the older sibling is a neglected juvenile. Thought the majority of the findings focus on the infant’s injuries, other findings provide for Mother and Father’s behavior with medical staff and social workers, Father’s absence from the ER visit, and both Mother and Father’s continued denial of abuse or proffer of any reasonable explanation for the infant’s injuries. Appellate courts have upheld neglect adjudications of another child in the home where parents cannot explain serious injury to an infant and there is no other person who might have caused the injuries. “[O]ther 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.” Dissent at 6. The majority seems to be barring the court from drawing logical inferences based on Mother and Father’s inability to explain the infant’s serious injuries, relying on their Fifth amendment right against self-incrimination and marital privilege to require the trial court to make further findings that may not exist. The marital privilege does not apply in these cases. See G.S. 7B-310, -1109(f). In a civil action, a party’s silence allows the court to draw a negative inference regarding the Fifth Amendment because the purpose of the proceeding is to protect the child’s best interests. “[H]ere 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.” Dissent at 14 (citing and quoting In re J.M., 384 N.C. 584, 604 (2023)).