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In re Yohan K.

Court of Appeals of Illinois, First District, Third Division

June 19, 2013

In re YOHAN K. AND MARIKA K., Minors, Respondents-Appellants and Cross-Appellees
v.
K.S. and TERESA G., Respondents-Appellees and Cross-Appellants. The People of the State of Illinois, Petitioner-Appellee and Cross-Appellee,

Held [*]

Appeal from the Circuit Court of Cook County, No. 11-JA-512-513; Hon. Bernard J. Sarley, Judge, presiding.

Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and Michele M. McGee, of counsel), guardian ad litem.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Nancy Kisicki, and Nicole Lucero, Assistant State’s Attorneys, of counsel), for the People.

Melissa L. Staas and Diane L. Redleaf, both of Family Defense Center, of Chicago, for appellees K.S. and Teresa G.

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Neville and Justice Pierce concurred in the judgment and opinion.

OPINION

HYMAN, JUSTICE.

¶ 1 The facts in child abuse and neglect cases seem rather straightforward at times, but more often than not, the facts venture into gray areas. While judges try, no judge or set of judges can perfectly reconstruct the past or perfectly predict what will happen in the future, which partly explains why offenses against children rank among the most gut-wrenching and challenging proceedings judges handle. This appeal calls for a measure of clarity to what has essentially been characterized as either a "constellation of injuries" suffered at human hands or a cluster of difficult-to-diagnose and rare medical conditions brought on by the mysteries of the human body.

¶ 2 The allegations of abuse and neglect involve a weeks-old newborn whose parents the trial judge describes as loving, responsible, and nurturing. The trial court heard tangled facts made all the worse by seemingly conflicting expert medical testimony. Discerning the source of the baby's conditions left the conscientious trial judge in a quandary.

¶ 3 After agonizing over how to rule, the trial court placed the family in a strange limbo. He determined the parents to be fit, willing, and able to care for their children despite finding (i) physical abuse to a child, (ii) "neglect injurious environment, " and (iii) "abuse substantial risk of injury" by an unknown perpetrator. The State and the guardian ad litem (GAL) (collectively, the proponents) on behalf of baby Yohan, born on May 1, 2011, and his now almost five-year-old sister, Marika, born October 13, 2008, along with the parents, K.S.[1] and Teresa G., all argue that the trial court's decision should not stand and they should be awarded total victory.

¶ 4 What makes this case all the more troubling is that the proponents and the parents put forward opposing explanations, neither of which is flattering to the other side. The proponents say one of the parents inflicted horrendous injuries to his or her newborn. The parents say their lives have been turned inside-out because overzealous doctors and agencies have let speculation trump medical science.

¶ 5 As vexing as this case appears, [2] 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.

¶ 6 Background

¶ 7 Yohan's First Few Weeks

¶ 8 The parents described Yohan's birth as complicated. Teresa testified that in contrast to her delivery of Marika, Yohan's delivery was precipitous and extremely painful. K.S. testified Yohan exited the birth canal with the umbilical cord around his neck. Following birth, Yohan was taken to a separate room to stabilize his temperature and returned to his parents' care after nearly six hours.

¶ 9 Three days after his birth, on May 4, the parents took Yohan to an appointment with his pediatrician Dr. Chandra-Puri, which they scheduled to monitor Yohan's decreasing weight. The parents were advised to return on May 6. At that appointment, Yohan had gained several ounces and a follow-up visit was set for May 18.

¶ 10 The parents testified Yohan exhibited behaviors they found distressing during his first few weeks of life, including episodes of staring and random bursts of yelping lasting a few seconds. The parents also worried that Yohan, who was being exclusively breastfed, seemed to be cluster feeding (pattern of frequent nursing).

¶ 11 After Yohan's birth, K.S. took leave from work and stayed home with Teresa and the children during the entire month of May. On May 9, K.S.'s sister came to stay with the family for a week. She too observed Yohan'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."

¶ 12 At Yohan's appointment with Dr. Chandra-Puri on May 18, the parents told her about the unusual behaviors they had been observing. The parents stated that Yohan made high-pitched yelps two or more times every day and, though the episodes were never a source of frustration, they found them alarming. Dr. Chandra-Puri told the parents that if Yohan appeared to be having indigestion or gas, they could try gripe water.

¶ 13 The parents testified that a few weeks later, on the evening of June 4, Yohan, who was five weeks old, was uncharacteristically fussy and refused to nurse. The parents tried giving Yohan gripe water and massaged his stomach. Yohan fell asleep abruptly, and then awoke in the night yelping and again refused to nurse. The next morning, Yohan nursed as usual, but as the family was preparing to leave the home, Yohan suddenly vomited, something he had never done before.

¶ 14 K.S. took Marika out and Teresa stayed home with Yohan. Yohan nursed again, but in the middle of the feeding, he vomited for a second time. Teresa immediately called the pediatrician's office and paid to have the on-call doctor paged. She then called K.S. When K.S. arrived home, a doctor returned Teresa's call and went through a list of potential symptoms. Yohan had none of the symptoms, and the parents, following the doctor's advice, did not go to the emergency room. Instead, they scheduled an office visit with their pediatrician for the next morning.

¶ 15 For the rest of the day, the parents closely watched Yohan as he nursed and slept. While Yohan was napping, Teresa saw him slightly twitch his left hand and jerk his left leg for a few seconds. Teresa told K.S. and together they videotaped a second short episode of twitching. During the second episode, Yohan had his eyes open with a dazed stare, as well as twitching of his left eye. Teresa picked Yohan up, and he appeared fine. The parents witnessed two other episodes of twitching the night of June 5; otherwise, Yohan appeared fine, nursing as usual, and moving his arms and legs as he played.

¶ 16 On the morning of June 6, as the parents were on the way to Yohan's appointment, they observed another twitching episode. At a little before 8 a.m., while waiting for Dr. Chandra-Puri, a nurse witnessed Yohan undergo a twitching episode. The nurse notified Dr. Chandra-Puri, who identified the behavior as seizure activity. An ambulance was called to transport Yohan, who was described in stable condition, and his parents to Children's Memorial Hospital (CMH).

¶ 17 Yohan's Hospitalization, June 6-15, 2011

¶ 18 Yohan and his parents arrived at the emergency room at 9:30 a.m. on June 6. Yohan continued to have clinical seizure episodes, meaning the seizures were observable, with his left arm jerking and his eyes moving to the left or right. Yohan's physical examination on admission documented no bruising, contusions, or other external injuries and a full range of motion for all his extremities, with no pain or discomfort. Yohan underwent two additional physical examinations, one at 2:40 p.m., the other at 6:40 p.m., with both noting full range of his extremities with no mention of pain, discomfort, or tenderness.

¶ 19 Reports of a CT scan and subsequent MRI scan taken of Yohan's head on June 6 described the presence of small, bilateral, extra-axial, posterior fluid collections, which the MRI report noted were likely representative of subdural hematomas. Both reports also noted the presence of a suspected left frontoparietal hemorrhage, identified on the June 9 MRI as a likely subarachnoid hemorrhage.

¶ 20 CMH neuroradiologist Dr. Burrowes read Yohan's June 6 MRI and concluded that a contrast venogram (standard diagnostic medical procedure for visualization of the veins) was clinically indicated, but it was never conducted. No radiologist at CMH ever evaluated Yohan for the presence of clotting in his cortical veins. In her report, Dr. Burrowes noted no hemorrhage in Yohan's brain ventricles and no restricted diffusion. She later authored an addendum to her report, indicating the existence of restricted diffusion on the June 6 MRI. (A restricted diffusion is seen on a brain imaging scan in the presence of inadequate oxygen, inadequate blood flow, or seizures.)

¶ 21 Based on the findings of Yohan's June 6 MRI report, the child protection team at CMH was contacted. Dr. Kristine Fortin, a child abuse pediatrician, provided a consultation. On the evening of June 6, she interviewed Teresa for 15 to 20 minutes. The following day, Dr. Fortin interviewed Teresa again, asking her whether she or K.S. had "done" anything to Yohan. Teresa testified she was shocked at this allegation and alarmed that Yohan had an underlying medical condition that was not being diagnosed. Teresa denied ever harming Yohan and requested a second medical opinion. Later that morning, Dr. Fortin interviewed K.S. The separate accounts of Teresa and K.S. were consistent. Dr. Fortin found both parents to be appropriate in their responsiveness to Yohan's medical needs. Nevertheless, that evening, Dr. Fortin informed the parents that CMH was making a report of suspected child abuse to DCFS.

¶ 22 An electroencephalogram (EEG), a diagnostic test that measures and records the electrical activity of the brain, was conducted. It showed the presence of sub-clinical (meaning not outwardly observable) seizures throughout the night of June 7. Yohan's seizures were defined as "status epilecticus, " a condition that can cause a finding of "restricted diffusion" on brain imaging. To manage the seizures, Yohan was given a sedative requiring intubation.

¶ 23 On June 7, Dr. Marc Wainwright, an attending child neurologist at CMH, consulted on Yohan's seizures. Dr. Wainwright conducted a physical examination, which included tapping on Yohan's knees with an instrument, and found no external injuries, no injuries to his neck, and normal movement of Yohan's arms and legs. Dr. Wainwright identified potential causes for Yohan's intracranial bleeding as infection, inflicted trauma, coagulopathy (a clotting disorder), metabolic disorder, or birth trauma, which he noted in his consult note could still be present three to five weeks after delivery. During his treatment, Dr. Wainwright did not evaluate Yohan for the potential existence of congenital abnormalities, such as benign external hydrocephalus (BEH).

¶ 24 On June 7 and June 14, Yohan had two inpatient ophthalmological examinations, involving both an external and dilated fundus examination. The June 7 dilated examination showed the presence of scattered retinal hemorrhages in both Yohan's eyes, the right greater than the left, and one small pre-retinal hemorrhage to the right eye.

¶ 25 On June 14, CMH resident Dr. Grace Wu examined Yohan 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 Yohan's right eye than his left. Supervising attending physician Dr. Yoon examined Yohan 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, a different observation from Dr. Wu, despite his characterization that the observations were "[l]ikely unchanged from previous exam." Two common retinal injuries often associated with abuse, retinoschesis (injury to the retina marked by separation of the retinal layers) and macular fold (injury to the retina marked by elevation or fold of the retina instead of being flat against the eye), were not observed.

¶ 26 On June 8, 2011, scans of Yohan's skeletal system were taken. The survey was limited and many of the images were later described as suboptimal. The radiology report, authored by CMH Dr. Jennifer Nicholas, noted an irregularity along Yohan's lateral distal left femoral metaphysis (outer lower end, left knee area). Her report also noted concern for fracture of three of Yohan's ribs, but later exams established Yohan never experienced rib fractures.

¶ 27 X-rays of Yohan's left knee from June 8 and June 10 indicated an abnormality along the outer side of his distal femoral metaphysis, which, according to one radiologist, "may represent a corner fracture." The possibility of Yohan having a fracture did not make sense to the parents who claimed that from the time of Yohan's birth, they had constantly manipulated his left leg through diaper changes, massages, dressing, and nursing, and they had never noticed any signs of pain or discomfort. A cast was applied to Yohan. The application took about 10 minutes and Yohan was fully awake. The parents stated that during that time, Yohan did not show any signs of pain or discomfort as his leg was manipulated. Once the cast was applied, Yohan began kicking his left leg and the cast slipped from mid-thigh to below his knee.

¶ 28 On June 8, Yohan was weaned off the sedative. On June 9, he was extubated and began nursing without incident. He also began cooing and smiling. A second inpatient MRI study was conducted. The June 9 report of the MRI noted that the restricted diffusion was more extensive than it had been on June 6. The report also revealed a new identification of two small subarachnoid hemorrhages in the right frontal region, as well as a small amount of intraventricular hemorrhage.

¶ 29 Yohan was discharged from CMH on June 15 to the care of Teresa's sister. Teresa and K.S. were not allowed to have unsupervised contact with their children because of DCFS's involvement. The parents testified they moved in with a neighbor to minimize disruption to Yohan and Marika, while caretakers stayed with the children at the family residence.

¶ 30 DCFS Involvement

¶ 31 On June 8, 2011, DCFS investigator Carolina Bono interviewed each parent. She found both parents to be compliant and cooperative. Both parents told Bono they could not explain Yohan's injuries and that neither had witnessed any accidents or abusive behavior.

¶ 32 On June 20, Bono again met with the parents. During all of their meetings, the parents tried to figure out what happened to cause Yohan's injuries. They offered possible explanations, such as the particular baby equipment the family used or Marika interacting too roughly with him. Throughout the investigation, Bono observed the parents with the children weekly, noting all of their interactions to be positive and loving.

¶ 33 At their June 27 meeting, Teresa shared with Bono some of the complications from Yohan's birth. Teresa stated that because the parents knew Yohan's injuries were not due to abuse, they wanted another medical opinion to provide answers to explain his injuries, which they believed were because of an underlying medical condition.

¶ 34 Based on the DCFS investigation, on July 25, 2011, the State filed petitions for adjudication of wardship and motions for temporary custody of Marika and Yohan. Yohan was by then almost three months old and Marika was about two years and nine months old.

¶ 35 Yohan's Health Posthospital Stay

¶ 36 On June 17, 2011, Yohan's follow-up appointment with Dr. Chandra-Puri was entirely normal. Yohan showed no signs of pain or distress when Dr. Chandra-Puri manipulated his legs.

¶ 37 On June 23, Yohan underwent follow-up X-ray imaging of his skeletal system. By this time, Yohan had kicked his left cast to below his knee. When the cast was removed, Dr. Fortin observed that Yohan was "moving his left lower extremity actively." Dr. Jennifer Nicholas reported periosteal reaction, which she interpreted to be consistent with a healing fracture.

¶ 38 In their quest for answers as to what caused Yohan's injuries, the parents learned about the risks of vitamin D deficiency, which is the primary cause of rickets and can predispose individuals to venous thrombosis, clotting in the veins. Yohan's vitamin D levels were never tested during his stay at CMH, but July 2011 blood tests showed Teresa had "insufficient" levels and Yohan had a "deficient" level.

¶ 39 On October 12, 2011, during a follow-up MRI Yohan had at CMH, it was noted that "[t]he extra-axial CSF spaces appear prominent, " a description that refers to the condition known as benign external hydrocephalus or BEH. ("Extra-axial" refers to the outside of the brain.) This condition in infants involves enlarged spaces between the brain and arachnoid membrane, which is filled with cerebral spinal fluid.

¶ 40 In November 2011, Dr. Patrick Barnes, the chief of pediatric neuroradiology at Stanford University Medical Center, became involved in Yohan's case. Dr. Barnes reviewed all of Yohan's imaging studies and concluded that he had preexisting BEH predisposing him to intracranial bleeding triggered spontaneously or by ordinary trivial trauma or medical conditions such as venous thrombosis. Dr. Barnes also reviewed Yohan's skeletal images and observed the irregularities to Yohan's femur. Barnes did not identify the irregularities as either a fracture or periosteal reaction to the healing of a fracture and, instead, observed many findings consistent with congenital rickets.

ΒΆ 41 In December 2011, pediatric neurosurgeon Dr. David M. Frim, the chief of neurosurgery at the University of Chicago, provided his assessment of Yohan. After reviewing Yohan's brain images and medical records, Dr. Frim opined that Yohan 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 CMH on June 6, 2011. Dr. Frim explained that blood from the subarachnoid space surrounding the brain can travel to the retinas causing retinal ...


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