Saturday, June 29, 2013

In re Yohan K. and Marika K., 2013 IL App (1st) 123472 (June 19, 2013)

In re Yohan K. and Marika K., 2013 IL App (1st) 123472 (June 19, 2013)

The Family Defense Center has been appellate counsel for parents who had been subject to separation from their children based upon the claims of a child abuse pediatrician that the "most likely" explanation for their infant son's medical findings was abusive causation. On June 19, 2013, the Illinois Appellate Court issued a ruling finding in favor of the parents on all points! Our analysis of the Appellate Court's holdings (which, as a published opinion, should have a huge impact for families in Illinois once it becomes final, and can also serve as persuasive authority in other jurisdictions) can be found below. The full 49-page opinion -- which is truly impressive for the Appellate Court's mastery of the complicated facts -- can be found here:

 On June 19, 2013, after a two-year-long ordeal battling allegations that their infant son had been abused, Family Defense Center clients Teresa G. and K.S. finally received vindication from the Illinois Appellate Court. The unanimous opinion exonerates Teresa and K., holding that an accusation of child abuse cannot be sustained based solely on a claim that the child’s “constellation of injuries” (*i.e*., the mere existence of a certain type or number of injuries) is indicative of abusive causation. This ruling has the potential for far-ranging impact not just in Illinois, but in jurisdictions across the country where parents and caretakers are forced to defend themselves from speculative and vague accusations of child abuse lodged by the State under the guise of “medical opinion.”

 Teresa and K. had been targeted with allegations of child abuse when their then-4-week-old son Yohan experienced seizures and was taken to Children’s Memorial Hospital of Chicago (“CMH,” now the Ann and Robert H. Lurie Children’s Hospital) on June 6, 2011. Exams identified intracranial and retinal hemorrhages and skeletal imaging revealed an abnormality at his left knee, later mis-diagnosed by CMH doctors as a fracture (the appellate court concludes that there never was a fracture). The CMH child abuse pediatrician declared the injuries suspicious for abuse and called the DCFS hotline, ultimately causing the parents to lose temporary custody of Yohan and his older sister Marika for a period of 15 months.

 In formulating opinions about the cause of Yohan’s medical findings, CMH physicians failed to give any consideration to: (1) rickets as a potential explanation for the skeletal irregularity or (2) benign enlarged intracranial spaces as a potential explanation for the intracranial bleeding and retinal hemorrhages. At trial, where the parents were represented by outstanding private trial counsel Ellen R. Domph, three highly-credentialed and nationally-recognized physicians testified that Yohan did, in fact, have both of these pre-existing medical conditions, which are known to mimic signs of abuse. In finding that the children had been abused and neglected, however, the trial court deferred to the medical witnesses of the State and the Public Guardian appointed to represent Yohan and Marika as guardian *ad litem* (“GAL”)—among the total eleven medical experts who testified at the hearing, the State and GAL witnesses included a child abuse pediatrician, pediatric neurologist, pediatric orthopedist, and pediatric ophthalmologist—and their theory that the so-called “constellation of injuries” is sufficient to sustain a conclusion of abusive causation. The trial court, however, declined to name a perpetrator of abuse despite Teresa and K. having been Yohan’s only caretakers. At the subsequent dispositional hearing, the court returned the children to the custody of K. and Teresa over the objections of the GAL and State’s Attorney. The GAL and State’s Attorney maintained that because the parents refused to accept the “abuse” conclusions of the trial court and continued to assert their innocence (and not accuse each other of being an abuse perpetrator), they therefore had failed to engage in “meaningful therapy” which, according to them, required an “acknowledgement that Yohan was abused.”

Not content with the judicial finding of abuse it had obtained in the trial court, the GAL filed an appeal of the trial court’s decision to return the children to their parents, asking the Appellate Court to vacate the order returning the children home and, instead, to place Yohan and Marika in the guardianship of the State child welfare agency. Teresa and K. filed a cross-appeal challenging the trial court’s finding of abuse as unsupported by either fact or law.

 In its June 19 ruling, the Appellate Court of Illinois, First District, resoundingly rejects the theories pressed by the State and GAL. Instead, the Appellate Court concludes that the trial court’s findings of abuse were erroneous and contrary to the manifest weight of the evidence, acknowledging that the parents had been “thrust into a nightmare.” The Appellate Court directs that a determination of abusive causation cannot be inferred from the “constellation” of alleged injuries and, moreover, that where the State has failed to prove by a preponderance of the evidence that any single injury was caused by abuse, the State has not satisfied its burden of proof (Paragraphs 144-47):

 The [State and GAL] experts testified using the “constellation” of injuries theory and, therefore, speculated and generalized about the possible mechanisms causing the injuries in areas outside of their expertise [and] assumed there must have been a connection between Yohan’s head-related findings and the suspected fracture even though there was no basis in evidence or law for this conclusion . . . . 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 Yohan’s injuries created a preponderance of evidence that he was abused.

This “constellation” of injuries theory allowed the trial court to conclude that Yohan 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. The [State and GAL] 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 [State and GAL] fail to provide any authority for their “constellation” of injuries theory, but they failed to identify any specific facts showing it should apply to Yohan. The “constellation” theory invited the [State and GAL] experts to improperly rely on assumptions about injuries outside their respective specialties . . . .

 The Appellate Court faults the trial court for ignoring many critical facts that could not be reconciled with the theories offered by the State and GAL experts, and for deferring to experts who were less experienced, less qualified, and less credentialed than the parents’ experts in the relevant areas of medicine. The Appellate Court also confronts key factual errors the trial court had made in its ruling and the deficiencies in the evaluation CMH had performed during Yohan’s hospitalization. This effort by the reviewing court, which no doubt required a meticulous and thorough review of the entire record, is notable given the density of the technical medical testimony and evidence submitted during trial.

Independent of the trial court’s error in entering findings of abuse and neglect, the Appellate Court denies the GAL’s claim that the trial court erred in returning the children home to Teresa and K.S. where the lower court’s ruling was consistent with all of the evidence at the dispositional hearing. Specifically, the Appellate Court squarely rejects the GAL’s notion that when there has been an adjudication of abuse, a parent’s therapy is not “meaningful” unless the parent acknowledges that her child was a victim of abuse:

 The [State and GAL] offer no support for their suggestion that an acknowledgement 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. . . . We complete 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.

This decision is subject still to a potential petition for rehearing and/or potential petition for leave to appeal to the Illinois Supreme Court. Given Appellate Court’s unanimous, well-reasoned, and factually-supported opinion, however, the Family Defense Center is cautiously optimistic that the opinion will stand as a very useful precedent for advocates for wrongly-accused caretakers in complex medical cases.

Melissa L. Staas
Staff Attorney The Family Defense Center
*70 East Lake Street, Suite 1100*
*Chicago, Illinois 60601*
312-251-9800 x12 (t.)
312-251-9801 (f.)

*The Family Defense Center is the 2010 winner of the "Excellent Emerging Organization" Award, by the Axelson Center for Non-Profit Management.*

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