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Indiana Department of Child Services v. J.D.

Court of Appeals of Indiana

May 26, 2017

Indiana Department of Child Services, Appellant-Defendant,
v.
J.D., R.B., et al., Appellees-Plaintiffs

         Appeal 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.

          ALTICE, JUDGE.

         Case Summary

         [¶1] 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.

         [¶2] We reverse and remand for further proceedings consistent with this decision.

         Facts & Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 discharged.

         [¶7] 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 density.

         [¶8] 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.

         [¶9] 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 non-accidental.

         [¶10] 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 ...


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