FAMILY APPEALS COURT

Decision questions validity of “constellation of injuries,” need for parents to admit guilt

An Illinois family fighting for custody of their children has received a refreshing decision from a state appeals court, which reviewed testimony from both the child-protection team and the family’s experts and concluded:

As vexing as this case appears, after a thorough, painstaking examination of the entire record, and in particular a detailed analysis of the expert testimony, we conclude that the trial judge’s finding of abuse and neglect cannot stand, and K. S. and Teresa G. have been thrust into a nightmare by well-intentioned, but misguided doctors and child protection specialists.

Like so many of these cases, this story started with a difficult birth:  The infant Y. entered the world precipitously, with the umbilical cord wrapped around his neck, on May 1, 2011. He was immediately whisked off for six hours of stabilization before being returned to his parents’ care.
Y.’s father took the month off work to be home with the family after Y’s birth. Both parents noticed that their son’s behavior was much different from that of his older sister two years earlier: He occasionally gave out “yelps” that lasted for several seconds, and he exhibited unusual facial expressions. From the court opinion:

On May 9, [the father's] sister came to stay with the family for a week. She too observed Y.’s unusual expressions, where he would look dazed with his eyes rolling up and side-to-side, which the family referred to as “drunk old man expression” or “dazed and confused.”

The parents reported their concerns at Y.’s well-baby appointment three weeks after his birth, and were advised to give him gripe water to fight indigestion.
When the child began vomiting during feedings at the age of four-and-half weeks, his mother called their doctor’s office, and at the advice of the on-call physician, she made an appointment for the following morning. The parents kept a close eye on him that afternoon, and they noticed slight twitching of his left hand and leg during a nap.
The twitching recurred the next day in the doctor’s office, where it was identified as seizure activity. The doctor sent the child and his parents by ambulance to the local children’s hospital, where his admission examinations reported no bruising, contusions, or other external injuries. All of his extremities showed a full range of motion, with no apparent pain.
A CT scan and MRI of the boy’s brain, however, revealed subdural hematoma and possible subarachnoid bleeding, as well as evidence of “restricted diffusion,” possibly reflecting a shortage of oxygen to the brain. A skeletal exam noted an abnormality on his left femur, near the knee, that might represent a healing fracture, for which the parents had no explanation.
During 9 days of hospitalization, Y. had a number of retinal examinations, with conflicting reports. For example:

On June 14, CMH resident Dr. Grace Wu examined Y. and found his retina to be attached and flat, with scattered retinal hemorrhages bilaterally and one small preretinal hemorrhage to his right eye. Dr. Wu also noted that the hemorrhages were greater in Y.’s right eye than his left. Supervising attending physician Dr. Yoon examined Y. immediately after Dr. Wu and noted bilateral, multilayer, retinal hemorrhages. Dr. Yoon noted the hemorrhages were too many to count and greater in the left eye than the right.

None of the ophthalmologists recorded either diagrams or photographs of Y.’s retinas, ordinarily a standard practice, making reconciliation of the different reports especially difficult.
Based on Y.’s “constellation of injuries,” the hospital contacted child protective services, who placed restrictions on the parents’ access to both children. Convinced that their son had an underlying medical condition, the parents arranged blood tests in July that measured the mother’s Vitamin D levels as “insufficient” (25 on a reference range of 30 to 100) and Y.’s levels as “deficient” (13 on a reference range of 30 to 100). Not only is Vitamin D essential for the formation of healthy bones, but lack of Vitamin D can also lead to clotting disorders:  The deficiency could explain both the bone abnormality and the subdural hematoma. These findings had no impact on the custody situation, however, or on the opinions of the doctors from the children’s hospital.
The parents brought in Stanford University neuroradiologist Dr. Patrick Barnes, who concluded from Y.’s imaging that his skeleton showed signs of rickets, the weakening of bones most often caused by a lack of Vitamin D. He also noted that Y. had more space than usual between his brain and his skull, a condition known as “benign external hydrocephalus” (BEH), which is commonly believed to make subdural bleeding more likely.
A second outside expert, neurosurgeon Dr. David M. Frim from the University of Chicago, concluded that both the subdural bleeding and the retinal hemorrhages could have resulted from the BEH:

After reviewing Y.’s brain images and medical records, Dr. Frim opined that Y. was born with BEH, that he likely sustained a hemorrhage during birth that caused him to be even more susceptible to additional hemorrhages and that these hemorrhages caused the seizures he exhibited when he was admitted to [the children's hospital] on June 6, 2011. Dr. Frim explained that blood from the subarachnoid space surrounding the brain can travel to the retinas causing retinal hemorrhaging.

Based on the opinion of the child protection team, however, the state pursued its efforts to strip the parents of custody. The Public Guardian’s office, appointed to represent the children, asked for a judicial declaration of abuse and neglect of both Y. and his older sister.
At the evidentiary hearing, Dr. Kristine Fortin, one of the first pediatricians in the country to pass the new “child protection” specialty exam, rejected the rickets diagnosis and said that low Vitamin D levels do not necessarily lead to rickets. She accepted the BEH diagnosis but not its relevance:

Dr. Fortin acknowledged that Dr. Frim diagnosed Y. with BEH, but opined that even though some of the medical community believes BEH predisposes children to subdural hemorrhages, BEH could not account for all of Y.’s injuries.

The “proponents” in the case (the state’s attorney and the Public Guardians) called a total of seven medical witnesses, including a pediatric neurologist, a pediatric radiologist, a pediatric neuroradiologist, a pediatric ophthalmologist, a hematologist, and a pediatric orthopedist, all of whom attributed Y’s injuries to abuse. While conceding that no one at the hospital had considered the BEH diagnosis, one doctor said he had never diagnosed a case in his career, and another disputed Frim’s definition of the condition. One of the two doctors who rejected the rickets diagnosis had seen only the initial set of x-rays, which were of poor quality.
Dr. Barnes and Dr. Frim testified for the parents, repeating their earlier diagnoses of BEH and rickets. Pediatric orthopedic surgeon Dr. Christopher Sullivan also testified, saying that the abnormality on Y.’s left leg was “a classic finding for irregular calcification of normal bone growth, or rickets,” and adding that an actual fracture would have caused the child pain, which should have been noticeable to the treating physicians.
The parents also called a number of lay witnesses who testified that the two of them had been responsible, loving parents to both children.
The trial judge in 2012 reached a hybrid conclusion, declaring the parents to be “fit, willing, and able to care for their children” but also finding that abuse had occurred. The court held that “to conclude that all three of these infrequent to rare conditions came together at the same time to explain the minor’s condition was not reasonable.”
Despite the abuse finding, the court returned the children to their parents, but the Public Guardian’s office appealed the decision. Then the parents cross appealed, which resulted in last week’s ruling.
The appellate court’s decision includes two promising points:  A challenge to the “constellation of injuries” theory, and an objection to the requirement by social services that the parents admit to abuse before the family could be reunited.
Regarding the constellation of injuries, the court wrote:

¶ 146 The expert witnesses called by the proponents testified that each of Y.’s injuries could occur from trauma. Instead of evaluating and weighing the evidence and expert testimony as to each alleged injury, the trial court allowed the proponents to elude their burden of proof by claiming that the “constellation” of Y.’s injuries created a preponderance of evidence that he was abused. This “constellation” of injuries theory allowed the trial court to conclude that Y. had been abused even though not one of his individual injuries within the constellation had been proven to be by abuse and where highly experienced and credentialed, nationally recognized doctors provided well-reasoned medical explanations, albeit rare ones, to explain each of his injuries.
¶ 147 The proponents offered no evidence that an injury is more likely to be caused by abuse merely because a second injury is alleged to exist, particularly where there are reasonable nonabuse explanations offered for each of the individual conditions. Not only did the proponents fail to provide authority supporting their “constellation” of injuries theory, but they failed to identify any specific facts showing it should apply to Y. The “constellation” theory invited the proponents’ experts to improperly rely on assumptions about injuries outside their respective specialties to rule out nonabuse explanations for the injury under their direct evaluation. In contrast, the parents offered nonabuse medical explanations supported by expert testimony from nationally recognized, highly qualified doctors in specific fields of expertise to explain the individual conditions suffered by Y. Accordingly, the trial court erred in disregarding the parents’ medical experts’ diagnoses because a single, uniform medical condition could not explain every medical finding Y. presented.

And on the subject of admitting to the abuse:

¶ 153 The proponents fail to present any persuasive evidence supporting their conclusion that “meaningful therapy” cannot and did not occur in light of the parents’ unwavering claims of innocence of the abuse allegations. The proponents offer no support for their suggestion that an acknowledgment of abuse is a per se requirement for therapy to be considered meaningful. To require that the parents must “acknowledge” the truth of a trial court’s nonfinal findings of fact to be deemed to have had “meaningful therapy” has no precedent. Instead, we find the support offered for the proponents’ position to be a misreading of case law in which parents failed to make actual progress in therapy and, thus, were deemed unable to care for their children as a result of having not participated in meaningful therapy, a significantly different factual scenario from the one presented here. We completely reject any notion that parents should be declared unable to care for their children merely because they persist in their own belief of innocence of wrongdoing, particularly here where their insistence is supported by the evidence.

The family in this case had the resources to bring in their own experts and hire a private attorney for the initial trial. The appeal was handled by the Family Defense Center (FDC), a non-profit organization based in Chicago that advocates for families in the child welfare system. FDC Executive Director Diane Redleaf credited both trial attorney Ellen Domph and lead appellate attorney Melissa Staas with “outstanding lawyering” in this case, noting, “While we are delighted by the results in this case and hope it will serve as a strong precedent for other families, we realize that many wrongly accused parents do not have the same access to the resources necessary to demonstrate their innocence.”
For the full appellate court opinion: In re Yohan K. & Marika K., 2013 IL App (1st) 123472 (June 19, 2013)

SOURCE:  http://onsbs.com/2013/06/24/a-family-appeals-court-gets-it-right/