Compelling testimony of the physician the defense engaged together with testimony from the accused and persons who knew her helped win the case.
The accusation: That Connie, a young nurse, violently shook her infant foster son, causing potentially fatal brain injury.
The charge: Assault of a Child.
The possible sentence: This was a Child Protective Services investigation rather than a criminal case, so Connie was at no risk of prison. But had the CPS finding against her stood, she would have lost her foster care license and been placed for life on the state’s child abuse registry. Among the consequences would have been loss of her dream of adopting a child from state care. Because she won this case, Connie and her husband are now happy parents.
The defense David Marshall presented: In birth, the child suffered a small, undetected injury inside the skull. That injury later began to ooze blood afresh. Eventually the accumulation of blood increased pressure inside the skull so much that the baby went into seizure and his life was in danger.
The trial result: An administrative law judge decided that Connie had not assaulted the child. The judge ordered the State to reinstate her foster care license, to remove from her record every blemish from this incident, and to note on her record that her swift and skillful response to the seizure had saved the baby’s life.
What helped win the case: Clear and compelling presentation of the testimony of the physician David engaged to study the case was critical. But testimony from Connie, her husband, and persons who knew Connie as a patient and compassionate caregiver was also very important; that helped make it easy for the judge to decide the battle between the two sides’ expert witnesses.
A Washington state woman’s care of her foster infant has been vindicated by an administrative law judge. Child Protective Services had found that she had assaulted the baby. The judge found, on the contrary, that she saved the child’s life by administering CPR when he went into a seizure. I had the privilege of serving the woman as her lawyer. She has given me permission to tell her story here, with names changed to protect her privacy.
Connie Bennett is 29. She is a nurse in the children’s ward at a hospital. In her work there, she has cared for children who needed foster care. Her affection and sympathy for those children led her to suggest to her husband, Barry, that they become foster parents. He agreed. Over the next two years, the couple served as foster parents for five children.
The Bennetts were not able to conceive a child. They hoped that one of their foster children might stay in their family via adoption. At the time of the crisis that turned their lives upside down, they were caring for two baby boys, Joseph and Bobby. They were hoping to adopt Bobby, and the signs were favorable.
Joseph was born in January 2002 and came to the Bennetts directly from the hospital. He suffered health problems from the start. He regurgitated much of the formula fed to him, often in spectacular projectile vomiting. Apparently, because he did not keep down enough food, he “failed to thrive,” that is, he failed to grow at a normal rate. Joseph also did not seem to focus his gaze well or visually to track objects held in front of his face. And his forehead had “frontal bossing,” an enlarged, boxy look.
Over the next three months, Connie took Joseph to the doctor many times—about once every ten days, on average. She felt her pediatrician was not taking Joseph’s problems seriously enough and expressed that sentiment to other nurses at her hospital. At none of Joseph’s doctor visits did a doctor or nurse see any sign of child abuse.
In the middle of a night in April 2002, Barry Bennett called 911. He reported that Joseph, then three months old, had stopped breathing and that Connie was attempting cardio-pulmonary resuscitation.
Joseph went by ambulance first to the local hospital, then to Children’s Hospital in Seattle, where he stayed several days. He had a subdural hematoma (a mass of blood beneath the covering of the brain known as the dura) and retinal hemorrhages (spots of bleeding in the retinas of the eyes). These injuries are often associated with severe brain injury, even death.
On Joseph’s admission to Children’s Hospital, Connie told doctors that he had slipped from her grip in the bathtub the evening before, striking his head against the side of the tub. She said he had cried then but not for long. She had put him to bed about an hour later, she said, and had not heard from him until 3:45 a.m., when she heard him crying in his crib. She went to him and found he needed a diaper change. As she was changing him, he went into a seizure, and she yelled for Barry to wake up and call 911.
Pediatrician Kenneth Feldman at Children’s Hospital concluded someone had inflicted Joseph’s injuries by subjecting him to extraordinary whiplash forces. His diagnosis fit what some call “shaken baby syndrome.”
Connie and Barry were barred from the hospital. Bobby, the five-month-old boy they hoped to adopt, was removed from their home, never to return. Joseph was placed elsewhere at the end of his hospital stay. (He seems to have made a full medical recovery.)
Child Protective Services and its parent agency, the Department of Social and Health Services (now the Department of Children, Youth, and Families), accepted Dr. Feldman’s opinion. DSHS (now DCYF) found Connie had inflicted Joseph’s injuries, since she and Barry agreed that she had been alone with him, and Barry had not, at several times during the twelve hours or so before the 911 call.
Connie appealed to a DSHS (now DCYF) supervisor, who affirmed the finding she had abused Joseph. She then sought review by an administrative law judge.
At her hearing before the judge, Connie and Barry testified that they had never abused any of the children in their care. One of Connie’s fellow nurses testified that Connie was kind, compassionate, and extraordinarily patient in dealing with difficult children in the hospital. One of Connie’s supervisors also testified to Connie’s outstanding nursing of children. DSHS (now DCYF) and CPS workers who testified had no evidence that Connie and Barry had been anything short of excellent foster parents before Joseph’s medical emergency.
The judge heard a tape of Barry’s 911 call, with Connie struggling in the background to revive Joseph and to control her own desperation.
Dr. Feldman testified for several hours in support of his opinion that someone had inflicted Joseph’s injuries. Dr. Ronald Uscinski, a neurosurgeon from the suburbs of Washington, D.C., testified for Connie to a contrary view.
Dr. Uscinski noted that Joseph’s subdural hematoma was composed of both old and fresh blood. He also noted evidence that Joseph’s birth had been difficult. Most likely, he said, trauma to Joseph’s head during birth had produced a subdural hematoma then.
Dr. Uscinski explained that a subdural hematoma often rebleeds during the healing process. A hematoma can rebleed from trivial force—as little as the force produced by a sneeze—or even spontaneously. If healing outpaces rebleeding, the patient recovers, and no one may ever know he had a subdural hematoma. If rebleeding outpaces healing, the hematoma may grow and precipitate a crisis.
The latter happened to Joseph, Dr. Uscinski believed. The growth of the subdural hematoma showed in the frontal bossing; Joseph’s skull was enlarging (as only infant skulls can) to accommodate the mass of blood. (Despite Joseph’s failure to thrive, his head size was increasing as fast as the head sizes of thriving infants.)
Dr. Uscinski pointed out that Joseph’s vomiting and visual problems, seen in the months the Bennetts cared for him, were common consequences of head trauma.
Retinal hemorrhages, Dr. Uscinski said, result from high intracranial pressure. The rebleeding of Joseph’s subdural hematoma likely increased that pressure enough to cause his retinal hemorrhages, he concluded.
Did Joseph’s fall in the tub a few hours before his crisis cause the rebleeding? Dr. Uscinski said it could have, but he emphasized that a subdural hematoma can rebleed from less force than that, or even spontaneously.
Dr. Feldman did not dispute that Joseph had had a subdural hematoma long before his crisis or that it could have come from birth trauma. He insisted, though, that some sort of whiplash had caused the crisis. The retinal hemorrhages, he testified, were of a particular type—”retinal schisis”—found only in cases of child abuse.
The judge found that “medical science has reached a frontier” in its understanding of subdural hematoma, retinal hemorrhages, and intracranial pressure. He found Joseph had bled during the night, perhaps spontaneously, and that the bleeding had probably caused his seizure. When Connie responded with CPR, the judge found, the pressure she applied to Joseph’s heart probably passed through his circulatory system to the skull, where it increased intracranial pressure and caused retinal hemorrhages.
Connie, the judge found, had not abused Joseph. The judge ordered DSHS (now DCYF) to reverse from “founded” to “unfounded” its finding on the abuse allegation.
In fact, the judge found, Connie had saved Joseph’s life by performing CPR. He ordered DSHS (now DCYF) to note that in its records and to reinstate Connie and Barry’s license as foster parents “without any legal blemish whatsoever.”