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In re R.S.

Court of Appeals of North Carolina

August 1, 2017


          Heard in the Court of Appeals 11 July 2017.

         Appeal by respondent-father from orders entered 23 September and 4 October 2016 by Judge Susan M. Dotson-Smith in Buncombe County Nos. 15 JA 341-43 District Court.

          Hanna Frost Honeycutt for petitioner-appellee Buncombe County Department of Health and Human Services.

          Amanda Armstrong for guardian ad litem.

          Peter Wood for respondent-appellant father.

          MURPHY, Judge.

         Respondent-father ("Floyd") [1] appeals from the trial court's order adjudicating his son "Ryan, " an abused and neglected juvenile and from the resulting dispositional order leaving Ryan in a safety placement with his maternal grandmother. By order entered 5 April 2017, this Court allowed Respondent-mother's ("Emily") motion to withdraw her appeal. We now affirm the orders of the trial court.


         Ryan was born prematurely in late September 2015. After leaving the hospital on 1 October 2015, he lived with Floyd and Emily (collectively "Respondents") and Emily's two older children, "April, " born in March 2008 and "Chris, " born February 2010. April and Chris share a biological father, "Mr. A."

         On 22 October 2015, Buncombe County Department of Health and Human Services ("BCDHHS") received a Child Protective Services ("CPS") report that Ryan, then approximately four weeks old, was admitted to Mission Hospital emergency room with a torn lingual frenulum, the tissue connecting the tongue to the floor of the mouth. Ryan was also diagnosed with failure to thrive, weighing less than he did at birth.

         Dr. Cynthia H. Brown, a pediatrician and child abuse expert, examined Ryan and spoke to Respondents at the hospital. Though confirming they were Ryan's only caretakers, Respondents disclaimed any knowledge of the cause of Ryan's injury and stated that Emily first noticed a dark scab under his tongue the day before his admission. Because Ryan's lingual frenulum tear would have resulted in significant bleeding, Dr. Brown found it unusual that Respondents did not notice his injury. She further noted that "significant force" would be have been required to cause the injury. A skeletal survey and abdominal ultrasound performed on Ryan were negative for additional trauma. Dr. Brown recommended repeating the skeletal survey after two weeks. Ryan was discharged from the hospital on 25 October 2015, having showed consistent weight gain during his stay.

         On 29 October 2015, Respondents brought Ryan to Dr. William L. Chambers, "to evaluate the infant to see if the injury under the tongue could have been self-inflicted." Dr. Chambers advised Respondents it would not be possible for Ryan to have caused the tear in his frenulum. Dr. Chambers scheduled a follow-up appointment for Ryan, which Emily later cancelled.

         BCDHHS received a second CPS report on 9 November 2015 after Ryan's second skeletal survey revealed three healing fractures on his 11th and 12th ribs and a healing fracture on his right tibia. Dr. Burdette Sleight, an expert in pediatric radiology, concluded that the fractures were approximately three weeks old on 9 November 2015 and thus were present when Ryan was admitted to the hospital with the torn frenulum on 22 October 2015. Subsequent calcification had made the fractures more conspicuous on the x-ray at the time of the follow-up survey. Respondents were again unable to explain Ryan's injuries. They refused to allow additional diagnostic tests recommended by Dr. Brown to check Ryan for brain damage or other injuries.

         On 23 November 2015, BCDHHS filed a juvenile petition alleging that Ryan was abused and neglected. After a three-day hearing in July 2016, the trial court entered an order adjudicating Ryan abused and neglected on 23 September 2016.[2]The trial court conducted a separate dispositional hearing on 18 August 2016 and entered its initial disposition on 4 October 2016. The trial court left Ryan in Respondents' custody but sanctioned the child's continued placement with the maternal grandmother. The trial court ordered Floyd to submit to a parenting capacity evaluation and attend a parenting course approved by BCDHHS.

         On appeal, Floyd claims the trial court erred by basing its adjudication of abuse on Respondents' failure to provide an innocent explanation for Ryan's injuries. He contends the trial court improperly shifted the burden of proof from BCDHHS to the Respondent-parents, in violation of N.C. G.S. § 7B-805 (2015). Floyd argues that "[a] ...

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