                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA17-270

                                      Filed: 1 August 2017

Buncombe County, Nos. 15 JA 341-43

IN THE MATTER OF: R.S., A.S., C.S.


      Appeal by respondent-father from orders entered 23 September and 4 October

2016 by Judge Susan M. Dotson-Smith in Buncombe County District Court. Heard

in the Court of Appeals 11 July 2017.


      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.



                                           Background


      1   We adopt pseudonyms to protect the juveniles’ identities.
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                                   Opinion of the 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




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                                 Opinion of the Court



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




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                                        Opinion of the 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]

parent is not required to present evidence that shows he or she did not abuse a child.”

                                            Analysis

       We review an adjudication of abuse, neglect, or dependency under N.C.G. S. §

7B-807 (2015) to determine whether the trial court’s findings are supported by “clear

and convincing competent evidence” and whether the findings, in turn, support the

trial court’s conclusions of law. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672,

676 (1997). Uncontested findings of fact are “presumed to be supported by competent

evidence and [are] binding on appeal.” Koufman v. Koufman, 330 N.C. 93, 97, 408



       2  The trial court also adjudicated April and Chris neglected. However, Emily has withdrawn
her appeal in this cause, and Mr. A. did not appeal. Therefore, April and Chris’ cases are not before
us for review.

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                                       Opinion of the Court



S.E.2d 729, 731 (1991). We review a trial court’s conclusions of law de novo. In re

J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).

       “Abused juvenile” is defined, inter alia, as one whose parent or caretaker

“[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other

than accidental means.” N.C.G.S. § 7B-101(1) (2015). The determination that a child

meets the statutory definition of an abused juvenile is a conclusion of law. In re Ellis,

135 N.C. App. 338, 340, 520 S.E.2d 118, 120 (1999); In re Hughes, 74 N.C. App. 751,

759-60, 330 S.E.2d 213, 219 (1985).

       The trial court made detailed findings of fact regarding the nature and causes

of Ryan’s injuries, based on the expert testimony of Drs. Chambers, Sleight, and

Brown.3 Among these findings are the following:

               19. The injury to [Ryan]’s lingual frenulum would have
               been a very painful injury and would have resulted in a
               significant amount of bleeding . . . The Respondent
               parents’ statement that they did not observe any
               substantial bleeding or pain associated with [Ryan]’s torn
               frenulum is not credible.

               ....

               23. The injury to [Ryan]’s frenulum would have taken a lot
               of force to cause, and could not have been caused by [Ryan].
               The injury to [Ryan]’s frenulum was caused by some object
               being inserted into [his] mouth with considerable force.

       3   Respondents adduced the expert testimony of Dr. John Kelly, a family physician whom
respondents chose as Ryan’s primary care doctor beginning on 15 November 2015. The trial court
found that “[t]he testimony of Dr. Chambers, Dr. Sleight and Dr. Brown was more credible and
consistent than Dr. Kelly’s testimony about the non-accidental nature of [Ryan]’s injuries, and the
failure to thrive.”

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                     Opinion of the Court



There is no medical condition that would have caused [his]
frenulum to tear spontaneously. [Respondents] failed to
provide an explanation for [Ryan]’s torn frenulum.

24. The injury to [Ryan]’s lingual frenulum was inflicted.

....

31. [Ryan]’s rib fractures are consistent with injuries
caused by squeezing forcibly. Significant force was applied
to cause [his] rib fractures. This would have been painful
for [Ryan]. [Ryan]’s rib fractures are inflicted injuries.

32. The November 9, 2015 skeletal survey also revealed a
healing corner fracture on [Ryan]’s tibia. Based on the
stage of healing, the tibia fracture was approximately three
weeks old.

33. Moderate to significant force would have been required
to cause the corner fracture to [Ryan]’s tibia. The injury
would have been painful initially . . . . The corner fracture
was caused by violent shaking or grabbing and jerking.
Normal handling of [Ryan] would not have caused the
corner fracture to [Ryan]’s tibia. The corner fracture is an
inflicted injury.

34. [Ryan]’s bone scan did not reveal any issues with bone
density, and it is unlikely that an underlying medical
condition, such as osteogenesis imperfecta, contributed to
[his] injuries.

35. . . . [Respondents] had no reasonable explanation of
causation for [Ryan]’s broken bones.

....

47. [Respondents] delayed meetings between the social
worker and the [older] children, delayed and limited
medical tests, and appear to have omitted information.



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                                   Opinion of the Court



             48. [Respondents] still have not provided explanations for
             [Ryan]’s numerous, serious injuries.

             49. A torn lingual frenulum, rib fractures and tibia
             fracture are all serious injuries. These serious injuries
             occurred by other than accidental means.

             50. [Ryan] could not have caused the injuries to his
             frenulum, ribs or tibia . . .

             51. [Ryan]’s injuries are consistent with child abuse in a
             pre-mobile infant.

             52. These serious injuries occurred while [Respondents]
             were the only caretakers for [Ryan].

             53. [Respondents] are jointly and individually responsible
             for [Ryan]’s injuries.

             ....

             58.   [Ryan] has been subjected to abuse . . . by
             [Respondents] . . . , who are adults who regularly live in the
             home.

As Floyd does not contest the evidentiary support for any of the trial court’s findings

of fact, they are binding on appeal. See Koufman, 330 N.C. at 97, 408 S.E.2d at 731.

      The trial court found Ryan sustained a torn lingual frenulum and multiple

bone fractures, all of which are “serious injuries” and were “inflicted” upon the infant

child “by other than accidental means.” It further found that Respondents are adults

who live in the home and are responsible for his injuries. These findings support a

conclusion that Ryan is abused under N.C.G.S. § 7B-101(1). In re Y.Y.E.T., 205 N.C.




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                                  Opinion of the Court



App. 120, 128-29, 695 S.E.2d 517, 522-23, disc. review denied, 364 N.C. 434, 703

S.E.2d 150 (2010); Hughes, 74 N.C. App. 751, 758-59, 330 S.E.2d 213, 218 (1985).

       We find no merit to Floyd’s claim that the trial court’s adjudication of abuse

amounts to an improper shifting of the burden of proof to Respondents.            The

circumstances surrounding Ryan’s injuries, as proved by BCDHHS and recounted in

the trial court’s findings, support a reasonable inference that Ryan sustained his

injuries at the hands of Respondents, his only caretakers.          Where “different

inference[s] may be drawn from the evidence, [the trial court] alone determines which

inferences to draw and which to reject.” Hughes, 74 N.C. App. at 759, 330 S.E.2d at

218.    Moreover, “[a]s the child’s sole care providers, it necessarily follows that

Respondents were jointly and individually responsible for the child’s injury. Whether

each Respondent directly caused the injury by inflicting the abuse or indirectly

caused the injury by failing to prevent it, each Respondent is responsible.” Y.Y.E.T.,

205 N.C. App. at 129, 695 S.E.2d at 522-23. Here, following the holding in Y.Y.E.T.,

Ryan’s parents were the sole caretakers of a pre-mobile infant who suffered serious,

yet unexplained injuries, and the trial court’s finding that the parents were

responsible for those injuries was entirely appropriate.

       Further, Floyd’s claims that this case is comparable to In re J.A.M., ___ N.C.

App. ___, 795 S.E.2d 262 (2016) come from an incorrect reading of that case and its

holdings. In re J.A.M. speaks to a very different set of facts, in which the child was



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                                  Opinion of the Court



removed from the home and then adjudicated based on past domestic violence without

any evidence of ongoing domestic violence. In this case, there are clearly, as found

by the trial court and recorded above, findings of current and ongoing domestic

violence.

                                    Conclusion

      As the trial court properly concluded that Ryan was an abused individual and

that the parents were responsible for those injuries, we affirm the court’s orders.

      AFFIRMED.

      Judges Bryant and Hunter, Jr. concur.




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