from the St. Joseph Probate Court The Honorable James N. Fox,
Judge The Honorable Graham C. Polando, Magistrate Trial Court
Cause No. 71J01-1606-JC-443
ATTORNEYS FOR APPELLANT Curtis T. Hill, Jr. Attorney General
of Indiana Robert J. Henke Deputy Attorney General David E.
Corey Deputy Attorney General Indianapolis, Indiana.
ATTORNEY FOR APPELLEES Amy D. Griner Mishawaka, Indiana.
The Indiana Department of Child Services (DCS) appeals from
the trial court's denial of their petition alleging that
M.B. (Child) was a Child in Need of Services (CHINS). On
appeal, DCS argues that the trial court's order was
contrary to law.
We reverse and remand for further proceedings consistent with
& Procedural History
R.B. (Mother) gave birth to Child on April 19, 2016. J.D-O.
(Father) established his paternity by executing a paternity
affidavit shortly after Child's birth. Mother and Father
were no longer together at the time of Child's birth, and
Child resided with Mother and her boyfriend, L.M.
On the evening of June 24, 2016, DCS received a report that
Child had been seen in the emergency room and found to have
multiple fractures, including several fractured ribs. In
response to the report, DCS Family Case Manager (FCM) Bridget
Murray went to the hospital and spoke to Mother and
Child's doctors. Mother told FCM Murray that Child did
not attend day care and that she, L.M., and Father were the
only adults with access to Child. Mother further stated that
the previous day, Child had fallen asleep in his car seat
during a trip to the grocery store, and when Mother removed
him from the seat after he woke up approximately two hours
later, he cried out in pain. Mother also stated that she
heard a crackling sound coming from Child's chest, his
breathing did not seem normal, and he began to vomit after
feedings. Mother told FCM Murray that after doing some
internet research, she learned that a broken rib was a
potential cause of Child's symptoms. Mother took Child to
his primary care physician the next day and asked that he be
x-rayed. Because Child's x-rays revealed possible rib
fractures, he was transferred to the emergency room for
further testing. A bone survey performed at the emergency
room revealed five fractured ribs, a fractured right tibia,
and a possible fracture to the left radius. A physician
advised FCM Murray that it was not feasible that Child's
injuries could have been the result of simply being removed
from his car seat, and that the pattern of rib fractures was
consistent with Child having been squeezed.
Based on the information FCM Murray gathered, she concluded
that Child's injuries were non-accidental and that it was
necessary to remove Child. Upon his release from the hospital
on June 25, 2016, Child was placed in foster care. A
detention hearing was held on June 27, 2016, at which the
trial court authorized Child's continued placement
outside the home. On the same date, DCS filed its petition
alleging that Child was a CHINS.
A fact-finding hearing was held on August 2 and 16, 2016. At
the hearing, FCM Murray testified concerning the events
leading up to Child's removal and his placement in foster
care. FCM Murray further testified that the foster parent
took Child back to the emergency room on June 28, 2016,
because he was making the same crackling sounds he had
originally presented to the emergency room with prior to his
removal, and she was concerned about his breathing. No
further scans were conducted on that date and Child was
Additionally, three physicians testified and opined that
Child's injuries were non-accidental. Dr. Russell
Midkiff, the radiologist who read Child's bone survey at
the emergency room, testified that he was "very
certain" that Child's injuries were the result of
non-accidental trauma. Transcript at 51.
Specifically, the posterior rib fractures on both sides of
Child's body were indicative of being "picked up and
held very tightly in hands[.]" Id. at
53. Dr. Midkiff also identified four corner
fractures, which he explained are small fractures at the ends
of the bones near the growth plates that are "very
unusual" and consistent with a "whiplash
motion" in a child's extremities caused by being
shaken. Id. at 56. Dr. Midkiff testified that the
posterior rib fractures and the corner fractures "have
very high specificity for non-accidental trauma" and
"almost basically never occur accidentally."
Id. at 47. Dr. Midkiff also explained that he was
"very confident" that Child did not suffer from any
medical condition that could have explained his injuries.
Id. at 48. He noted specifically that children with
osteogenesis imperfecta, also known as brittle bone disease,
have decreased bone density, but Child had normal bone
Dr. Midkiff testified further that he was able to identify
additional fractures in a follow-up bone survey conducted on
July 14, 2016. Dr. Midkiff testified that follow-up scans are
recommended because new fractures "can be quite subtle[,
]" but healing bones are easier to identify.
Id. at 49. Because all bones will start to show
evidence of healing within two weeks, a follow-up scan is
performed at least two weeks after the first "so
you'll be able to see any healing fractures that might
have been not appreciated on the initial bone survey."
Id. Dr. Midkiff had initially identified fractures
of the eleventh and twelfth ribs on the right and the
seventh, eighth, and ninth ribs on the left. On the follow-up
scan, he was able to identify additional fractures of the
ninth and tenth ribs on the right and the tenth rib on the
left, as well as a fracture in the clavicle. Dr. Midkiff
testified that when he went back and reviewed the June 24
bone survey after reading the July 14 follow-up scan, he was
able to see the clavicle fracture and one of the previously
unidentified rib fractures on the right on the earlier scan,
although they were not as easily visible at that time. Dr.
Midkiff testified that Child's fractures were in
different stages of healing, which indicated at least two
separate incidents of trauma.
Dr. Nicole Davis Riordin, the physician who treated Child
when he was seen at the emergency room, also testified at the
fact-finding hearing. Dr. Riordin testified that Mother was
unable to provide an explanation as to how Child was injured.
Mother told Dr. Riordin that Child had not been out of her
care and had not sustained any trauma. Dr. Riordin testified
that it was not possible for Child's injuries to have
been caused by being lifted out of a car seat. Dr. Riordin
acknowledged that some of Child's laboratory tests showed
abnormal results, but testified that those results did not
suggest a metabolic deficiency or bone disorder. Dr. Riordin
testified that she believed Child's injuries were
Dr. Shannon Thompson, a Child Abuse Pediatrician at Riley
Hospital for Children, also testified that she was "very
certain" that Child's injuries were not accidental.
Id. at 88. Dr. Thompson noted that Child's rib
fractures were posterior and there were "multiple rib
fractures and they're all in order." Id. at
87. According to Dr. Thompson, "[t]hat specific pattern
is highly specific to child abuse because there's only
one way that can occur which is . . . front to back
impression." Id. With regard to Child's
fractured clavicle, Dr. Thompson testified that direct force
against the collar bone itself or indirect force, such as
when a toddler trips and extends an arm to stop the fall, was
necessary to produce such an injury. She explained further
that in a very young infant like Child, such indirect force