Appeal from the Circuit Court of Cook County The Honorable Candace J. Fabri, Judge Presiding. No. 10 JA 175-76
The opinion of the court was delivered by: Presiding Justice Lavin
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Sterba concurred in the judgment and opinion.
¶ 1 A.M. was born on June 7, 2005, and his sister R.G. was born September 18, 2008. They had the same mother, but different fathers. When A.M. was just three months of age, he suffered a brain injury as a result of being severely shaken by his father, who was arrested, charged, convicted and sentenced to 10 years in prison for his conduct. The Department of Children and Family Services (DCFS), which was involved in sorting out the parenting issues in the wake of the child's permanent neurological injuries, ultimately decided to allow A.M. to remain in his mother's home, with an offer of "intact family services."
¶ 2 Subsequent to A.M.'s injury and DCFS's involvement, A.M.'s mother (Ms. M.) became involved with a man referred to herein as "Mr. G.," who fathered R.G. This man had an extensive criminal history that involved drug use and domestic battery.
¶ 3 A.M. suffered from various neurological sequelae as a result of his father's battery, including cerebral palsy, a global developmental delay, visual deficiencies and a failure to thrive. Unable to walk or crawl in any meaningful way, he is only able to move about by bouncing himself in a cross-legged position or by pulling himself rearward on his buttocks. Because of the manner in which he thrashes about, he is in need of various forms of protection to ward off injury. This obviously includes visual observation, but he also must wear a helmet at all times that he is capable of moving about.
¶ 4 Several years after the birth of his sister, A.M. again came under the supervision of DCFS, when his mother took him to LaRabida Hospital where doctors found him to have various fractures to his lower extremities, ribs and spinal vertebrae. The boy was transferred to the Comer's Children's Hospital at the University of Chicago, where diagnostic studies confirmed the existence of the various fractures in various states of healing.
¶ 5 These findings led the State of Illinois to seek temporary custody of both children, as they were living together with their mother and Mr. G. The State also filed petitions of wardship for both children, alleging that A.M. was physically abused and that both children were neglected due to an injurious environment. On a temporary basis, the trial court placed the children in DCFS custody on March 3, 2010.
¶ 6 I. Procedural Background
¶ 7 The court conducted an adjudicatory hearing beginning in mid-August 2011. A.M.'s parents were each present, but R.G.'s father did not attend. The State produced evidence in the form of the transcript from the earlier hearing, medical records from Comer Hospital and the testimony of Dr. Kelley Staley, the pediatrician who treated A.M. upon his admission to that institution. Dr. Staley testified at some considerable length about the injuries that she diagnosed on the boy's body and also testified about a comprehensive report prepared at Comer, the so-called "MPEEC" report which was admitted into evidence. This report analyzed the medical findings along with historical information provided by Ms. M. during the course of treatment.
¶ 8 Dr. Staley, who was tendered, without objection, as an expert in pediatric abuse, was an assistant professor of pediatrics at Comer. She had completed her residency at Comer in 2006 and was not yet board certified in child abuse and neglect. Staley testified that the team of professionals at Comer worked together to treat the injured children who came under their care and also to make recommendations about each child's welfare.
¶ 9 Dr. Staley actually began treating A.M. while a resident at University of Chicago when the initial neurological injuries from his shaking trauma were recognized in 2005. Then, in January 2008, Dr. Staley was a member of the child protection services team at Comer Hospital and treated A.M. for an arm fracture, which at that time Dr. Staley did not view as suspicious based upon the explanation Ms. M. provided to the hospital. When A.M. was brought to LaRabida for a routine examination in January 2010, the physician at LaRabida, concerned that A.M. needed further evaluation of his injuries, contacted Dr.Staley, who was then an attending physician at Comer. A.M. was ultimately transferred to Comer. Dr. Staley, in her capacity as attending physician, ordered various radiological studies and blood work, while consulting with other specialists. The results of the X-ray studies revealed two tibial fractures, one of which was noticeably older than the other. Ms. M. gave a history for the injury that involved the child's leg getting stuck in the bed, requiring her to yank the leg free, which struck Dr. Staley as a competent cause for the newer leg fracture, as opposed to the other fracture, which was several weeks older and likely caused by a direct blow to the area. In this regard, Ms. M. said that A.M. frequently fell from his bed, but the doctor was concerned that the child had not been taken in for treatment of any such trauma, which should have occurred, because the trauma would have been quite painful.
¶ 10 Dr. Staley also testified about four rib fractures, which were noted to be in various stages of healing, indicating that they had occurred at different times. The doctor found it significant from a potential abuse standpoint that these injuries occurred in multiple occurrences as opposed from a single incident. While Dr. Staley felt it possible that A.M. could fracture a rib or multiple ribs in a fall from his bed, she doubted that the child's way of bouncing around the home on his buttocks would be a competent cause for a rib fracture. Significantly, Dr. Staley testified that the rib fractures in question were not attributable to "routine household minor accidents," as family members had suggested. In fact, Dr. Staley opined that most non ambulatory children like A.M. suffer such injuries as a result of abuse. In Staley's opinions, these rib fractures were inflicted, not accidental. Dr. Staley later testified that all of these injuries occurred within a three-month period of time and that it was apparent that the child had suffered no such injuries from January 2010 until October 2010, while he was not in his mother's custody.
¶ 11 Some of the blood work revealed an injury to A.M.'s liver, which was expressed in markedly elevated enzymes, which could have been attributable to a medication that A.M. was taking, but Dr. Staley ruled that possibility out as a result of the enzymes decreasing while the child was still taking the medication. Once that cause was ruled out, Dr. Staley opined that the liver injury was caused by blunt force trauma.
¶ 12 Finally, Dr. Staley testified that she was unable to offer an opinion on the cause of two lumbar vertebrae which were found to be fractured.
¶ 13 The State also offered the testimony of Alicia Pickett, a social worker, who testified to various conversations that she had with Ms. M. and Mr. G. about the possible circumstances surrounding the various injuries to A.M.
¶ 14 With this evidence, the State and public guardian rested and Ms. M. called Dr. Christopher Sullivan, another Comer physician as a witness. Coincidentally enough, Dr. Sullivan had also treated A.M. on three occasions while he was a patient at Comer Children's Hospital. The battle of the experts in this case, therefore, was of physicians from the same institution who had each treated the child. Dr. Sullivan had at least three decades of expertise in pediatric orthopedic surgery, with an emphasis in neurological disorders and fractures. Dr. Sullivan reviewed the entire chart from Comer Hospital, the "MPEEC" report and also drafted his own report. In his report and in his testimony, Dr. Sullivan opined that the elevated liver enzymes were found in the absence of any abdominal fluid, leading him to conclude that the liver was not traumatically injured in the manner suggested by the State. Significantly, Dr. Sullivan was of the opinion that the two tibia fractures were self-inflicted by A.M. in the manner that he bounced up and down as he moved about the home and that the rib fractures could have been caused by falling into furniture or onto a floor. This was confirmed, in his view, by what he observed in a video of A.M. bouncing from a flexed position with his ankles crossed. Dr. Sullivan believed that the rib fractures were likely asymptomatic and also noted that A.M. did not show "normal pain avoidance." He also was of the opinion that the rib fractures could have occurred at the same time. Dr. Sullivan felt that the absence of injuries in the most recent 10 months (while out of his mother's custody) was attributable to his decreased seizure activity. Dr. Sullivan also placed some considerable emphasis on test results that indicated an abnormal bone density in A.M. that could predispose him to fractures.
¶ 15 Ms. M. then called the children's grandmother, Vanda, who testified that she had never seen Ms. M. abuse or harm A.M. in any way. She also confirmed the rough manner that the child moved himself about and compared it to the bucking of a ...