In re E.H., ___ N.C. ___ (August 22, 2025)
Held:
Reversed in Part
- Facts and procedural history: This case arises on discretionary review and on writ of certiorari from the divided decision of the court of appeals, 294 N.C. App. 139 (2024), regarding the adjudication of one of two children. The court of appeals affirmed the trial court’s adjudication of the younger child as abused and neglected based on the infant suffering serious, nonaccidental injuries while in the exclusive care of his parents for which the parents offered no plausible explanation. Based on these facts, the trial court rendered the parents’ home “an injurious environment for any juvenile” and adjudicated the infant’s 4-year-old brother neglected. Sl. Op. at 5. The court of appeals vacated the trial court’s adjudication of the older brother, holding the court failed to make sufficient findings regarding either abuse of the older child or the probability of future neglect of the older child and instructed the trial court on remand to make additional findings “in the absence of a compelled confession by either parent or violation of the marital privilege”. 294 N.C. App. at 152. The supreme court reversed the portion of the court of appeals decision vacating the older child’s neglect adjudication, summarized separately. This summary addresses the supreme court’s discussion of appellate review.
- Rule 10 of Appellate Procedure provides that evidentiary privileges and constitutional claims not raised at the trial level are not preserved and waived for appellate review. It is “well-settled rule in juvenile cases that appellate courts ‘may not address an issue not raised or argued by the respondent for it is not the role of the appellate courts to create an appeal for an appellant.’ ” Sl. Op. at 13 (citation omitted), citing N.C. R. App. P. 28(b)(6). Here, the court of appeals raised unpreserved issues and is cautioned against continuing this practice.
- The supreme court rejected the court of appeals analysis of the issues of marital privilege and the constitutional rights of parents which were not raised or preserved by the parties at the trial court or argued on appeal. In vacating the adjudication of the older child as neglected, the court of appeals “asserted that the trial court’s order constituted an ‘ultimatum’ to ‘confess or lose your children’ that violated ‘marital privilege’ and the constitutional ‘presumption of fitness.’ ” Sl. Op. at 12. The supreme court warned that “[a]ddressing issues that the parties never raised, preserved, and asserted on appeal is harmful for several reasons.” Sl. Op. at 13. One of those reasons is risking “that the court is missing something and, as a result, is about to mess up the law.” Sl. Op. at 13. In demonstrating this risk of legal theories not having “been tested in the crucible of adversarial briefing”, the supreme court stated “the marital privilege does not apply in these juvenile proceedings.” Sl. Op. at 13 (citing G.S. 7B-310, 8-57.1).
Category:
Abuse, Neglect, DependencyStage:
AppealTopic:
Preserve Issue