Severe, Unexplained Abuse Supports Sibling Neglect; Appellate Courts Cannot Raise Unpreserved Theories in Juvenile Cases — In re E.H. (N.C. 2025)

Introduction

In In re E.H., the Supreme Court of North Carolina (per Justice Dietz) reaffirmed and sharpened two bedrock principles in the law of abuse, neglect, and dependency—principles the Court characterized as “again” needing emphasis. First, when a child in a home suffers severe abuse while in the exclusive care of the parents, and the parents offer no plausible explanation for the injuries and no credible assurance that such harm will not recur, a trial court may adjudicate a sibling as “neglected” based on the substantial risk of similar harm and the existence of an injurious environment. Second, apart from jurisdictional defects, appellate courts may not manufacture and decide unpreserved issues that the parties neither raised nor briefed; doing so risks doctrinal error and undermines adversarial process. The Court further clarified that marital privilege does not apply in juvenile abuse, neglect, and dependency proceedings.

The case arose after a three-week-old infant (E.H.) presented with multiple acute fractures—findings the medical evidence described as “virtually pathognomonic of nonaccidental trauma.” The parents, the infant’s sole caregivers, offered an implausible “diaper change” account and refused to accept responsibility. The trial court adjudicated E.H. abused and neglected, and his older brother R.H. neglected. A divided Court of Appeals affirmed the adjudication as to E.H. but vacated as to R.H., remanding for additional findings and invoking unpreserved theories including marital privilege and a supposed “confess or lose your children” ultimatum. The Supreme Court allowed discretionary review on R.H., denied review as to E.H., and reversed the Court of Appeals in part.

Summary of the Opinion

The Court held that the trial court’s detailed, record-supported findings—especially that the parents could not plausibly explain the infant’s severe, nonaccidental injuries, failed to accept responsibility, and offered no factual basis to assure safety going forward—amply support the neglect adjudication of the sibling, R.H., under N.C.G.S. § 7B-101(15) and controlling precedents (In re D.W.P.; In re A.W.; In re A.J.L.H.).
The Court rejected the Court of Appeals’ view that the trial court relied “solely” on E.H.’s abuse or lacked “predictive” findings of future neglect. In cases of severe, unexplained abuse, parents’ failure to acknowledge, explain, or remediate the injurious conditions itself constitutes the “other factors” supporting a sibling’s neglect adjudication.
The Court admonished the Court of Appeals for addressing unpreserved issues, including marital privilege and an asserted “presumption of fitness,” which respondents did not raise below or on appeal. The Court underscored that, outside jurisdictional questions, appellate review is confined to issues raised and preserved by the parties.
The Court further clarified that marital privilege does not apply in juvenile abuse/neglect proceedings by virtue of N.C.G.S. § 7B-310 and § 8-57.1; the only privilege that may exclude evidence in such proceedings is the attorney–client privilege.
Disposition: Reversed in part. The trial court’s neglect adjudication of R.H. is reinstated. The Court left undisturbed the Court of Appeals’ affirmance of the abuse/neglect adjudication as to E.H. (not before the Court on discretionary review).

Case Background

E.H. was born healthy and discharged with no medical concerns. Three weeks later, after a delayed presentation to the emergency department following a claimed “pop” during a diaper change, imaging discovered an acute arm fracture and additional acute fractures to the shin and thigh, all occurring within roughly ten days and not related to birth trauma. Radiology and treating physicians characterized the injuries as “virtually pathognomonic of nonaccidental trauma,” consistent with blunt force, shearing, twisting, or shaking, and opined caregivers would have been aware of the trauma necessary to cause them.

The parents, E.H.’s sole caretakers, denied any trauma, repeated the “diaper change” account in demonstrations that did not explain the injuries, and reported that E.H. was never out of the mother’s sight. The Department of Social Services (DSS) obtained nonsecure custody of E.H. and his 4-year-old brother, R.H. After hearing, the district court adjudicated E.H. abused and neglected and R.H. neglected, finding that the parents’ failure to acknowledge and inability to plausibly explain the injuries, coupled with the children’s tender ages and the parents’ sole caregiving, created an injurious environment and substantial risk of similar harm to R.H.

On appeal, a divided Court of Appeals affirmed as to E.H. but vacated as to R.H., characterizing the trial court’s findings as “solely” reliant on E.H.’s abuse and identifying no additional predictive findings. It also discussed unpreserved theories regarding marital privilege and an alleged coercive “ultimatum.” The dissent would have affirmed, emphasizing that the trial court’s extensive findings satisfied controlling law and criticizing the majority’s unpreserved-issue analysis.

Detailed Analysis

1) Precedents and Authorities Driving the Court’s Decision

The opinion synthesizes a line of North Carolina cases interpreting § 7B-101(15) and the “relevance” of abuse/neglect of one child to the neglect adjudication of a sibling:

In re J.A.M., 372 N.C. 1 (2019): A court may not adjudicate a juvenile as neglected solely based on prior DSS involvement or the abuse/neglect of another child. There must be “other factors” indicating the neglect will recur. The Supreme Court here reiterates that point but clarifies what qualifies as “other factors.”
In re D.W.P., 373 N.C. 327 (2020): Upheld neglect adjudication of an older sibling when the mother failed to acknowledge responsibility and could not identify the cause of the younger child’s injuries, supporting the prediction of recurrence if the children returned home.
In re A.W., 377 N.C. 238 (2021): Sustained neglect findings where a sibling died in the mother’s care, the mother persisted in an implausible explanation, and the court could not determine the cause. Without acknowledging and addressing the causal factors, the injurious environment remained unremedied.
In re A.J.L.H., 384 N.C. 45 (2023): Affirmed neglect adjudications where parents admitted the conduct but refused to recognize it as abuse, thus could not commit to non-repetition; the younger siblings faced similar harm.

On the appellate conduct issue, the Court relied on:

In re R.A.F., 384 N.C. 505 (2023): Appellate courts may not address issues not raised or argued by the respondent; courts do not create appeals for appellants.
State ex rel. Comm’r of Ins. v. N.C. Auto. Rate Admin. Off., 293 N.C. 365 (1977): Legal issues should be resolved after full adversarial briefing; appellate courts risk error when they decide unbriefed theories.
In re J.N., 381 N.C. 131 (2022): Preservation rules apply to constitutional and privilege arguments in juvenile cases.
In re A.J.L.H., 386 N.C. 305 (2024): The Supreme Court recently chastised a Court of Appeals panel for addressing an unpreserved issue contrary to instructions; this opinion warns that pattern “needs to end.”

The governing statutes and rules are central:

N.C.G.S. § 7B-101(15): Defines “neglected juvenile,” including lack of proper care, supervision, or discipline, or a living environment injurious to welfare, and states it is “relevant” whether the juvenile lives in a home where another juvenile has been abused or neglected by an adult who regularly lives in the home.
N.C.G.S. § 7B-310; § 8-57.1: No privilege—except attorney–client—excludes evidence of abuse, neglect, or dependency in juvenile proceedings; the husband–wife privilege does not exclude evidence regarding child abuse/neglect in these proceedings.
N.C. R. App. P. 10 and 28(b)(6): Preservation and briefing rules apply in juvenile appeals; unpreserved issues are not reviewed (absent jurisdictional exceptions).
N.C. R. App. P. 34(a)(1): Cited to emphasize the seriousness of misrepresenting law; the Court labeled the majority’s authorities “borderline sanctionable” if cited for such propositions.

2) The Court’s Legal Reasoning

The Court rearticulates the proper use of § 7B-101(15)’s “relevance” clause in sibling-risk cases:

Abuse/neglect of one child is not, standing alone, sufficient to adjudicate a sibling neglected. However, the “other factors” need not be wholly independent of the abuse; they include circumstances surrounding the abuse that show risk to other children—e.g., the severity and nature of injuries; parents’ exclusive custody; parents’ implausible accounts; refusal to acknowledge abuse; and inability to assure safety or remediate the injurious environment.
Trial courts need not identify a specific “pattern” of past abuse or predict a precise future event. Where severe, nonaccidental harm occurs and is unexplained by those exclusively in control of the child, and the parents deny responsibility, the law permits a reasonable inference of substantial risk to siblings—particularly of tender age—constituting an injurious environment.
The trial court’s findings here—drawn from extensive medical evidence, the parents’ status as sole caretakers, their repeated implausible explanations, and their refusal to accept responsibility—satisfy the “clear, cogent, and convincing” standard. The court expressly found these conditions created an injurious environment for “any juvenile” in the home and that the children would be at risk if returned.
A cautionary footnote underscores that trial courts are not required to make a neglect finding in every sibling case of unexplained abuse. There are circumstances, such as a large age gap or other differentiating factors, that could reasonably mitigate risk to a sibling. The core point is that the factors found in this record can, as a matter of law, support a neglect adjudication.

On appellate process, the Court’s reasoning is equally direct:

Outside of jurisdictional defects, appellate courts are limited to the issues preserved and presented by the parties. Addressing unpreserved issues deprives courts of adversarial briefing, increases the risk of doctrinal error, and contravenes binding preservation and briefing rules—particularly consequential in juvenile cases given their urgency and the need for correctness.
The Court condemns the Court of Appeals’ sua sponte reliance on marital privilege and an asserted constitutional presumption of fitness: (a) the theories were unpreserved; (b) they were unbriefed; and (c) they were wrong on the merits because statutes abrogate marital privilege in juvenile abuse/neglect proceedings. The opinion warns future panels to acknowledge and follow these constraints.

3) Impact and Practical Consequences

This decision carries significant implications across child-welfare litigation and appellate practice.

a) Sibling Neglect Adjudications

Trial courts: When a child suffers severe, nonaccidental injuries while under parents’ exclusive care, and parents cannot plausibly explain the harm or credibly commit to preventing recurrence, the court may find a sibling neglected based on an injurious environment. Courts should make detailed findings on injury severity, timing, caretaking exclusivity, plausibility of explanations, parental acknowledgment or lack thereof, and child-specific vulnerability (e.g., tender age).
Agencies (DSS/GAL): Build robust records that include medical expert testimony on causation and timing; document caretaking exclusivity; capture parents’ explanations and demonstrations; and address the parents’ willingness or unwillingness to acknowledge and remediate risks. This opinion validates that such circumstances may suffice—no separate “pattern” or specific future scenario is required.
Respondent-parents and counsel: While the Court does not require a “confession,” the refusal to acknowledge abuse or offer a plausible account and safety assurances can be decisive. Parents can mitigate risk findings by timely engaging in services, acknowledging safety concerns, developing concrete safety plans, and offering credible, evidence-based explanations consistent with medical findings. Silence, blanket denials, or implausible accounts will weigh heavily against reunification.
Nuance preserved: The Court’s footnote reminds that sibling neglect is not automatic. Where material differences exist (e.g., older sibling with different caregiving arrangements), courts retain discretion to find no substantial risk notwithstanding serious harm to another child.

b) Appellate Practice in Juvenile Cases

Preservation is paramount: Privilege and constitutional arguments must be timely raised in the trial court and briefed on appeal. Appellate courts will not rescue unpreserved claims and may not invent theories sua sponte.
Marital privilege is inapplicable: By statute, spousal privileges do not bar evidence regarding child abuse/neglect in juvenile proceedings; only attorney–client privilege remains a ground to exclude such evidence. Counsel should neither rely on spousal privileges nor predicate litigation strategy on their applicability in these cases.
Institutional signal to the Court of Appeals: The Supreme Court’s admonition—citing a recent similar episode—portends stricter enforcement of preservation/briefing norms and less tolerance for unpreserved, policy-inflected theorizing in published opinions.

Complex Concepts Simplified

Neglected juvenile (N.C.G.S. § 7B-101(15)): A child whose parent fails to provide proper care/supervision/discipline or creates an injurious living environment. Abuse/neglect of another child in the home is “relevant” but not dispositive; courts look to whether circumstances show risk of recurrence and an unremedied injurious environment.
“Injurious environment”: Conditions in the home that place the child at substantial risk of harm, even if no new injury has yet occurred. Severe, unexplained abuse of a sibling coupled with parental denial can establish such an environment.
“Clear, cogent, and convincing” evidence: A heightened civil standard requiring evidence that is strong, persuasive, and credible—more than a preponderance but less than beyond a reasonable doubt.
“Virtually pathognomonic”: A medical term meaning the finding is so characteristic of a condition (here, nonaccidental trauma) that it strongly points to that diagnosis.
Unpreserved issues on appeal: Legal theories not raised at trial and not argued on appeal; courts generally will not consider them, except for jurisdictional questions.
Marital privilege in juvenile cases: Abrogated by statute for the purpose of admitting evidence of child abuse/neglect; it cannot be used to exclude such evidence. Only the attorney–client privilege remains as a bar to evidence in these proceedings.

Why the Court of Appeals Majority Was Wrong Under Existing Law

The Supreme Court characterizes the Court of Appeals’ approach as inconsistent with binding precedent. The majority’s insistence on “prior abuse of R.H.” or “other evidence predictive of probable neglect” misunderstands that the “other factors” can be the very circumstances of the abuse of E.H.—severity, exclusivity of care, implausible explanations, and refusal to acknowledge responsibility—that indicate ongoing risk. These were all present and extensively found by the trial court. Moreover, the majority’s venture into unpreserved marital privilege and a supposed “ultimatum” strayed beyond both preservation rules and statutory text—leading to doctrinal error about privileges in juvenile proceedings.

Practice Pointers

For Trial Judges

Make granular findings on: nature and severity of injuries, timeframe/medical causation, caretaking exclusivity, plausibility of parental explanations, acknowledgment or denial, and concrete safety assurances or lack thereof. Tie these facts explicitly to the risk to each sibling and the concept of an injurious environment.
Note differentiating factors (age differences, distinct caregiving arrangements) when declining to find sibling neglect, to create a clear record showing reasoned discretion.

For DSS and GAL

Secure expert testimony and detailed medical records addressing causation and timing; document parental demonstrations and statements; and memorialize efforts to obtain safety commitments or explanations consistent with medical evidence.

For Parents’ Counsel

Preserve constitutional and privilege arguments at the earliest opportunity; be mindful that marital privilege does not exclude evidence in these proceedings.
Counsel clients on the legal significance of acknowledgment and credible safety planning. While no “confession” is required, courts must be able to determine what went wrong or that it will not recur; implausible denials often defeat reunification efforts.

Conclusion

In re E.H. reinforces two clear guideposts. Substantively, the decision confirms that in sibling-risk cases, the combination of severe, nonaccidental injuries to one child; exclusive parental care; implausible explanations; and refusal to accept responsibility can establish an injurious environment and justify a neglect adjudication as to siblings—without requiring a prior pattern or clairvoyant prediction of future harm. Procedurally, the opinion sends a strong institutional message: appellate courts must confine themselves to preserved and briefed issues (aside from jurisdiction) and avoid untested, unbriefed theories—especially where statutes squarely foreclose them, as with marital privilege in juvenile proceedings.

The ruling will streamline trial-level analysis in sibling cases, promote rigorous record-making tied to the “injurious environment” construct, and tighten appellate practice by re-centering adversarial presentation and preservation. Its bottom line is protective but measured: courts need not wait for a second child to be injured where severe, unexplained harm has already occurred and parents offer no credible assurance that it will not happen again.