in the Court of Appeals 11 July 2017.
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.
Frost Honeycutt for petitioner-appellee Buncombe County
Department of Health and Human Services.
Armstrong for guardian ad litem.
Wood for respondent-appellant father.
("Floyd")  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
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."
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.
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.
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
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
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.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.
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] ...