“Unexplained Severe Abuse = Predictive Neglect” & “No Sua Sponte Review”:
A Comprehensive Commentary on In re E.H. & R.H., Supreme Court of North Carolina (2025)

1. Introduction

The Supreme Court of North Carolina’s August 2025 opinion in In re E.H. & R.H. (“the Decision”) is both a sharp rebuke to a divided Court of Appeals panel and a doctrinal clarifier in two recurring areas of juvenile law:

1. Predictive neglect after sibling abuse – reaffirming that when a parent cannot plausibly explain severe, non-accidental injuries to one child, a trial court may find the child’s siblings “neglected” because they reside in an injurious environment.
2. Limitations on appellate courts – reiterating that appellate courts may not create or decide issues the parties failed to preserve or brief, absent jurisdictional defects.

The matter arose from catastrophic, medically-unexplained fractures suffered by three-week-old E.H. The New Hanover County Department of Social Services (“DSS”) successfully secured adjudications that E.H. was abused and neglected and that his four-year-old brother R.H. was neglected. A split Court of Appeals vacated the latter ruling, prompting discretionary review. Justice Dietz, writing for a unanimous Supreme Court, reversed, restoring the trial court’s finding and issuing stern guidance for both trial and appellate courts.

2. Summary of the Judgment

The Supreme Court held:

• The trial court’s detailed findings—particularly the parents’ inability to give any plausible explanation for E.H.’s acute, non-accidental injuries—amply support the conclusion that R.H. faced a substantial risk of similar abuse and therefore was a “neglected juvenile” under N.C.G.S. § 7B-101(15).
• The Court of Appeals wrongly insisted on “prior abuse of R.H.” or other “predictive evidence” beyond the unexplained sibling abuse, contrary to Supreme Court precedent (In re A.W.; In re A.J.L.H.; In re D.W.P.).
• The Court of Appeals erred a second time by raising unpreserved arguments (marital privilege, constitutional presumption of parental fitness) sua sponte; such issues were never argued, are meritless, and addressing them without adversarial briefing risks doctrinal error.
• Accordingly, the Court of Appeals is reversed in part; the adjudication of R.H. as neglected stands, and no remand is required.

3. Analysis

3.1 Precedents Cited and Their Influence

• In re J.A.M., 372 N.C. 1 (2019) & In re D.W.P., 373 N.C. 327 (2020) – established that sibling abuse is “relevant” but cannot be the sole basis for neglect; additional factors must show a risk of repetition. E.H. relies on these cases for the two-step analysis: (i) abuse occurred; (ii) circumstances show risk to other children.
• In re A.W., 377 N.C. 238 (2021) – permitted neglect findings where a parent offered an implausible explanation for sibling death; cited heavily as analogous because the parents in E.H. denied responsibility and provided no plausible explanation for multiple fractures.
• In re A.J.L.H., 384 N.C. 45 (2023) – confirmed that refusal to acknowledge abuse (even after stipulated facts) is itself evidence the environment remains injurious; applied to show respondents’ refusal to accept responsibility endangered R.H.
• In re R.A.F., 384 N.C. 505 (2023); N.C. R. App. P. 28 & 10 – cited to bar appellate courts from inventing unpreserved arguments.
• Statutes: N.C.G.S. § 7B-101(15) (definition of “neglected juvenile”); § 7B-310 & § 8-57.1 (abrogation of marital privilege in child-protection proceedings) – used to dismantle the Court of Appeals’ sua sponte privilege analysis.
• N.C.G.S. § 7A-31, § 7A-32(b) – procedural posture (discretionary review, certiorari).

3.2 The Court’s Legal Reasoning

1. Step One – Establishing Severe, Unexplained Abuse
   Medical experts deemed E.H.’s fractures “pathognomonic of non-accidental trauma.” Parents were the exclusive caregivers; no history of bone disease, no plausible accident. This satisfied the definition of abused juvenile for E.H.
2. Step Two – From Abuse to Predictive Neglect of a Sibling
   Under § 7B-101(15), sibling abuse is merely “relevant.” The court must assess whether other factors show a risk of repetition. Here, the factors were:
   • Parents’ collective silence/denial (non-confessed and unexplained injuries).
   • Parents’ refusal to offer safeguards or acknowledge wrongdoing.
   • Close ages and shared household: R.H. was present when injuries occurred and was similarly vulnerable.
   These satisfy the “other factors” requirement, aligning with A.W. and A.J.L.H.
3. Step Three – Appellate Scope of Review
   The Court reiterates that only issues preserved and briefed are reviewable. Without the benefit of briefing, courts risk … announcing a legal rule that is simply wrong. The Court of Appeals’ discussion of marital privilege violated § 7B-310 and § 8-57.1 and ignored preservation rules.

3.3 Impact on Future Cases

• Trial Courts – gain explicit confirmation that unexplained, severe, non-accidental injuries to one child can, standing alone with parental denial, justify a neglect finding for siblings. Detailed findings remain critical.
• Appellate Practice – panels are cautioned against sua sponte excursions; the Decision will likely be cited to confine the Court of Appeals to issues briefed.
• Child Protective Agencies – DSS entities may rely on E.H. to streamline cases involving unexplained injuries: proving non-accidental harm + incriminating silence suffices to establish risk to siblings.
• Parents’ Counsel – must promptly present privilege or constitutional arguments at trial; failure to do so waives them.
• Legislative Confirmation – the opinion underscores that the General Assembly has expressly abrogated most privileges in Chapter 7B abuse-neglect hearings.

4. Complex Concepts Simplified

• Neglected Juvenile (§ 7B-101(15)) – a child whose care is inadequate or whose living environment endangers welfare. The statute says sibling abuse is relevant—not conclusive—evidence of neglect.
• Predictive Neglect – courts may remove a child based on the likelihood of future harm, not just past harm. Severe, unexplained injuries to a sibling are a predictive red flag.
• Clear, Cogent & Convincing Evidence – a medium-high burden of proof in juvenile cases, requiring evidence that fully convinces the fact-finder.
• Marital Privilege – ordinarily protects confidential spousal communications, but Chapter 7B waives it in abuse/neglect proceedings.
• Sua Sponte Review – when a court raises issues neither party presented. The Supreme Court discourages this practice except for jurisdictional matters.

5. Conclusion

In re E.H. & R.H. fortifies two principles:

1. When an infant suffers severe, unexplained, non-accidental injuries, a sibling living in the same home may be adjudicated neglected—without additional predictive evidence—if parents refuse to offer a credible explanation or accept responsibility.
2. North Carolina appellate courts are bound by party presentation; addressing unpreserved issues risks doctrinal error and contravenes the adversarial system.

These twin doctrines protect vulnerable children while maintaining procedural integrity. Trial courts now have clearer authority to act decisively where parental silence masks abuse, and appellate courts are reminded to respect the contours of issues framed by litigants. For child-welfare practitioners, E.H. is a must-cite precedent at both trial and appellate levels.