Opinion
CV-22-95
10-05-2022
RYAN FRANKLIN APPELLANT v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant. Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee. Janet Lawrence, attorney ad litem for minor children.
APPEAL FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 42BJV-21-15] HONORABLE TERRY SULLIVAN, JUDGE
Tabitha McNulty, Arkansas Commission for Parent Counsel, for appellant.
Ellen K. Howard, Ark. Dep't of Human Services, Office of Chief Counsel, for appellee.
Janet Lawrence, attorney ad litem for minor children.
Virden and Klappenbach, JJ., agree.
PHILLIP T. WHITEAKER, Judge
Ryan Franklin appeals from an adjudication order entered by the Logan County Circuit Court finding Ryan's child, R.F., dependent-neglected. On appeal, Ryan argues that the court's adjudication of dependency-neglect is not supported by the evidence introduced at the adjudication hearing. We find no error and affirm.
I. Factual and Procedural Background
Ryan and Ashton Cobb are the parents of R.F. Around midnight on June 7, 2021, Ashton and Ryan discovered seven-week-old R.F. unconscious and not breathing with visible blood in his nose. They drove R.F. to the hospital in Booneville, where a skeletal survey revealed two healing rib fractures and multiple fractures in both legs. Neither Ashton nor Ryan provided a reasonable explanation for the fractures, suggesting that R.F.'s older sister, A.C., would jump around with R.F. and may have fallen on him. R.F. was transported to Arkansas Children's Hospital (ACH) in Little Rock for further treatment. Medical professionals at ACH opined that R.F. was the victim of abuse.
Ashton is also the mother of R.F.'s half sibling, A.C., who was adjudicated dependent-neglected in the same order that is on appeal here; however, Ryan's argument on appeal focuses solely on the adjudication of R.F.
R.F. was subsequently diagnosed with an episode of apnea and a nosebleed.
Although doctors initially thought that R.F. also had a skull fracture, this was later determined not to be the case.
The Arkansas Department of Human Services (DHS) investigated the allegations of abuse perpetrated against R.F. In this investigation, Ashton and Ryan were identified as R.F.'s only caretakers since birth, but neither parent could adequately explain how the injuries occurred. Ryan stated that he did not know how the injuries occurred because R.F. had not been dropped. He said that the emergency room physician had told him that the observed skull fracture was the result of the CT scan being done, and the rib fractures had happened when Ryan performed CPR and chest compressions on R.F. DHS concluded that this explanation was not consistent with R.F.'s injuries and was not supported by medical opinions. According to the medical records, R.F. had leg and rib fractures that were showing signs of healing and were estimated to be one to two weeks old. DHS subsequently removed R.F. from Ryan and Ashton's custody because of his injuries and because of the parents' "unconvincing" and inconsistent statements about how the injuries occurred.
DHS filed a petition for dependency-neglect, less-than-custody protections, and emergency custody. The circuit court entered an ex parte order for dependency-neglect, less- than-custody protections, and emergency custody, placing R.F. in DHS's custody.Subsequently, the court found probable cause that the emergency conditions that necessitated removal continued to exist, noting that R.F., who was less than two months old, had multiple fractures at different stages of healing. The court scheduled an adjudication hearing for August, and Ryan was appointed counsel.
A.C. was placed in the custody of her father, Austin Cobb.
The circuit court conducted an adjudication hearing, which stretched over three days in the late summer and early fall of 2021. In this proceeding, the court heard extensive testimony from medical experts. Following the adjudication hearing, the circuit court entered an order in which it found that R.F. was dependent-neglected because of physical abuse. Specifically, the court found that R.F. had sustained a nonaccidental physical injury while in the custody and care of his parents, and the injury was at variance with the history given. Ryan filed a timely notice of appeal and now argues that the circuit court's findings that he abused or neglected his child are not supported by the evidence.
Ashton also filed a separate notice of appeal; however, we are unaware of the status of her appeal at this time.
II. Standard of Review
The Juvenile Code directs that a court may adjudicate dependency-neglect on the basis of proof that the allegations in a petition are substantiated by a preponderance of the evidence. Ark. Code Ann. § 9-27-325(h)(2)(A)(ii) (Supp. 2021); Ark. Code Ann. § 9-27-327(a)(1)(A) (Repl. 2020). In reviewing dependency-neglect adjudications, this court conducts a de novo review on appeal, but we do not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Ward v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 376, 553 S.W.3d 761. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Christ v. Ark. Dep't of Hum. Servs., 2021 Ark.App. 354, 635 S.W.3d 325. Only one ground is necessary to support a dependency-neglect finding. Garner v. Ark. Dep't of Hum. Servs., 2020 Ark.App. 328, 603 S.W.3d 858. We defer to the circuit court's evaluation of the credibility of the witnesses. Worrell v. Ark. Dep't of Hum. Servs., 2010 Ark.App. 671, at 9, 378 S.W.3d 258, 263.
III. Analysis
On appeal, Ryan argues that the evidence does not support the circuit court's finding that he abused his child. His argument is essentially two-pronged. First, he contends that DHS did not prove that he committed any "act or omission" that resulted in abuse or neglect (alleged failure to prove personal actions). Second, he contends that DHS failed to prove that any of the injuries were intentional and that there was no evidence that proved the injuries were "nonaccidental" (alleged failure to prove causation). We will address these arguments in sequential order.
Although Ryan addresses the statutory definitions of neglect as well as the definitions of abuse, the circuit court's order makes only a finding of abuse ("The juveniles are dependent-neglected as defined in the Arkansas Juvenile Code based on physical abuse."). As such, we do not address Ryan's arguments as they pertain to an alleged finding of neglect.
A. Alleged Failure to Prove Personal Actions
Ryan first argues that DHS failed to prove that he committed any "act or omission" that resulted in the abuse or neglect of R.F. He notes his consistent denial of having caused harm to R.F. and the lack of evidence to prove otherwise. The circuit court heard evidence that Ashton was R.F.'s primary caregiver and that Ryan was never alone with the baby. The court also heard that R.F. had been increasingly fussy and that Ashton, who suffered from postpartum depression and stress, had been rough with the baby. In frustration, Ashton expressed to Ryan that she no longer wanted to be a parent and "couldn't take it anymore." Although Ashton denied injuring R.F., she was arrested for first-degree battery. On the basis of this evidence, Ryan argues that the record is completely silent concerning any act or omission committed by him.
In his testimony, Ryan conceded that two of R.F.'s ribs were broken but denied having caused the injury. He further stated his belief that the leg injuries were caused by rickets and a vitamin D deficiency and not by physical harm.
Despite the arrest, Ryan called Ashton a wonderful mother.
We find Ryan's first argument to be without merit. Ryan puts the focus of his first argument on the evidence of what he either did or did not do. The focus of an adjudication hearing, however, is on the child, not the parent; at this stage of a proceeding, the Juvenile Code is concerned with whether the child is dependent-neglected. Young v. Ark. Dep't of Hum. Servs., 2018 Ark.App. 270, 549 S.W.3d 383. The Juvenile Code defines a dependent-neglected juvenile as one at substantial risk of serious harm as the result of, among other things, abuse or neglect. See Ark. Code Ann. § 9-27-303(18)(A)(ii) & (v). Arkansas Code Annotated section 9-27-303(3)(A) defines "abuse" by a parent or guardian, in pertinent part, as "[a]ny injury that is at variance with the history given" or "[a]ny nonaccidental physical injury." Here, the circuit court found that R.F. was dependent-neglected due to physical abuse in that he sustained a nonaccidental physical injury while in the custody and care of his parents and that the injury was at variance with the history given. We find no error in this conclusion.
To the extent that Ryan argues that DHS failed to prove that he was, in essence, the "bad actor," we have frequently held that a parent cannot avoid the legal consequences of a finding of dependency-neglect just because some of the acts or omissions might have been the fault of others. Churchill v. Ark. Dep't of Hum. Servs., 2012 Ark.App. 530, 423 S.W.3d 637; Howell v. Ark. Dep't of Hum. Servs., 2009 Ark.App. 612. At the adjudication stage, the circuit court is concerned with whether the child is dependent-neglected; which parent committed the acts or omissions constituting neglect or abuse is not the issue. Churchill, supra.
B. Alleged Failure to Prove Causation
Ryan argues next that there was conflicting testimony--both expert and lay--about what could have caused R.F.'s injuries and even about what the injuries were. He admits that the evidence is replete with medical discussions concerning R.F.'s injuries but argues that this evidence is inconsistent and fails to prove that he intentionally caused injury to R.F. and fails to prove the exact causation of the injury. Specifically, he asserts that there were "a multitude of mechanisms" that could have resulted in R.F.'s injuries, such as an accident, mishandling by the older sibling, or a fall by the parent while holding the child. Because this argument rests on the testimony of medical experts and medical evidence, we now turn our attention to this evidence.
DHS called three physicians to discuss the nature and extent of R.F.'s injuries and their likely causes: Dr. Karen Farst, Dr. Mary Beth Moore, and Dr. Emir Tas. Ryan also presented medical evidence to support his theory of the case from Dr. Michael Holick and Dr. Christopher Sullivan.
Ryan's theory of the case was that R.F. likely suffered from a metabolic bone disease, a vitamin deficiency, or a genetic disorder that caused his bones to be more susceptible to fractures than other children's.
Dr. Farst, an expert in the field of child abuse and pediatrics, testified that x-rays of R.F.'s body showed two healing fractures to his ribs and healing fractures at the end portions of both of his femurs and tibias. On the basis of the state of the healing to the injuries, Dr. Farst opined that they had likely happened within the last couple of weeks.
Regarding the rib fractures, Dr. Farst said the injuries could have been caused by compression to the rib cage or by blunt force. Because an infant's ribs are "fairly plastic and bendable," such injuries were unlikely to have been caused by "routine household handling." It would take "some type of crushing event, like somebody has tripped and fallen with the infant and . . . landed on them" or possibly an event like a car crash involving a blunt force blow to the rib cage.
As to the leg fractures, Dr. Farst noted that R.F. had four corner fractures, two in each leg. Dr. Farst described the fractures as "corner" fractures or "bucket-handle" fractures, "where the end of the bone is basically, kind of, pulled away from the underlying bone." Such a fracture is typically caused by "a traction or a tension force," such as might occur if "you're walking with the baby, trip, and the baby kind of comes out of your arms, so then you reach [and] grab the baby by the leg to keep them from hitting the floor." As with the broken ribs, it was "not a routine handling force" but an "excessive force injury." R.F. had this type of fracture on the end portion of each femur and the upper portion of each tibia.
Regarding the causation of the injuries, Dr. Farst admitted that differential diagnoses for children with unexplained fractures could be caused by an accident, by a medical condition, or by someone inflicting the injury either out of poor supervision or out of frustration. Dr. Farst did not believe that R.F.'s injuries were the result of accident. She stated that R.F. was not old enough to have caused the injuries on his own and there was no history of an accidental event to account for them. In discounting accident as a cause, she acknowledged that she did not speak to either parent to discuss the injuries. She acknowledged that a three- or four-year-old sibling could have caused R.F.'s injuries, meaning that the sibling "would physically be able to" but that it would be uncommon. Supporting this opinion, she noted that injuries like R.F.'s are painful, so if a sibling had inflicted them, R.F. would have cried and alerted the caregiver, thus indicating a problem with supervision. Because there was no history of such an incident within R.F.'s medical records, Dr. Farst thus concluded that the nature, type, and placement of the injuries, coupled with the reported history, led her to believe they were not accidental.
Dr. Farst also opined that a medical condition was not the cause of the injuries to R.F. She said that multiple unexplained infant fractures were not accounted for by Ehlers-Danlos syndrome, and R.F. had no markers for any sort of bone disease. She further noted that since R.F. had been in foster care, he had not developed any other additional fractures. In the absence of a medical cause or a plausible accidental cause, Dr. Farst stated that injuries like R.F.'s "occur with inflicted injury" and are consistent with some kind of physical abuse.
Dr. Farst later testified that theories connecting Ehlers-Danlos syndrome with unexplained childhood fractures were "not part of the classification scheme for Ehlers-Danlos. . . . [I]t's not part of mainstream medicine." She later clarified that she would not consider Ehlers-Danlos as a possible medical explanation for fractures in infancy."
Dr. Moore, a pediatric radiologist at ACH, agreed with Dr. Farst concerning the nature and extent of the R.F.'s injuries. R.F. had three separate skeletal surveys, each of which revealed multiple corner fractures in his lower extremities and two fractures of his ribs on the left side. She described ACH's policy regarding child-abuse cases as requiring at least two attending radiologists to review a child's skeletal surveys and to agree on the findings; as such, six separate pediatric radiologists reviewed R.F.'s surveys and all agreed with the fracture findings. Dr. Moore saw nothing in the x-rays to indicate that R.F. had a bone disease. R.F. did not have any noticeable demineralization in his bones that could have caused his bones to fracture with "routine handling," and the fractures that he sustained had healed as would be expected for a healthy child.
Dr. Moore opined that R.F.'s multiple corner fractures and rib fractures were associated with nonaccidental trauma. In support of this opinion, she testified that infants cannot generate sufficient force on their own to generate a corner fracture, which is why corner fractures are "often associated with non-accidental trauma." Dr. Moore stated that instead, these types of symmetric corner fractures can result from violently and vigorously shaking a child.
Dr. Tas, a pediatric endocrinologist with ACH, was consulted to study R.F.'s radiology reports to determine whether R.F.'s "bone findings" could be caused by a condition such as a vitamin D deficiency, rickets, or osteogenesis imperfecta. Dr. Tas testified that he observed no sign of rickets and that R.F.'s vitamin D levels were normal for his age, as were his calcium and phosphorus levels. Dr. Tas opined that there was nothing to indicate that R.F. suffered from any kind of endocrinological problems that would cause his bones to fracture.
Ryan's witness, Dr. Michael Holick, is a professor of medicine, physiology, biophysics, and molecular medicine at Boston University Medical Center. He testified that both Ryan and Ashton have symptoms of Ehlers-Danlos syndrome (EDS), which "is associated with skeletal fragility." Because both parents have symptoms of EDS, R.F. has a 75 percent chance of acquiring the genetic disorder. Dr. Holick also opined, on the basis of R.F.'s vitamin D levels, that R.F. also had rickets. Given his diagnosis of rickets, Dr. Holick disagreed that R.F. experienced fractures. Rather, he opined that the lesions on the areas of R.F.'s bones that appeared to be fractured on x-rays were actually lesions from rickets. Although Dr. Holick had never seen R.F. in person, he nonetheless concluded that R.F.'s injuries are consistent with a child who has a metabolic bone disease.
Notably, Dr. Holick was not, as DHS pointed out on voir dire, a pediatrician, a radiologist, or a child-abuse expert.
Dr. Christopher Sullivan is a pediatric orthopedic surgeon. He reviewed R.F.'s medical records and determined that, at seven weeks old, R.F. was showing signs of a vitamin D deficiency. He also opined that the imaging of R.F.'s legs did not show evidence of fractures at all but was instead consistent with "bone abnormalities" associated with the vitamin D deficiency. He conceded, however, that R.F. had rib fractures.
Dr. Farst offered additional testimony to rebut Dr. Holick's and Dr. Sullivan's conclusions. She noted that when R.F. was seen for a follow-up visit, the fractures were healing well with no complications. R.F. was also tested at that time for vitamin D-related issues or genetic issues such as osteogenesis imperfecta. Although R.F. had low levels of vitamin D, other medical testing showed that it was not so low as to cause his bones to be weak or brittle. R.F. had no genetic markers for osteogenesis imperfecta, nor did he appear to have any characteristics of EDS.
We find Ryan's second argument to be without merit. As to his contention that DHS failed to prove that he committed some intentional act or omission, the relevant statutes do not appear to include any intent element, and Ryan cites no cases holding that they do. See Ward v. Ark. Dep't of Hum. Servs., 2014 Ark.App. 491, at 5 ("[Although] appellants argue in their brief that abuse or neglect requires fault, culpability, knowledge, or intent[, they] cite to no authority to support their claim. We do not consider arguments without convincing argument or citation to authority where it is not apparent without further research that the arguments are well-taken.").
Regarding his claim that there was no evidence that the injuries were nonaccidental, we disagree. Drs. Farst and Moore both testified that R.F. was too young to have accidentally injured himself and that, in any event, no one gave a history of any sort of accidental event. Admittedly, the medical experts differed in their opinions about whether R.F.'s injuries were the result of abuse or a medical condition. The court, however, expressly found Drs. Farst, Moore, and Tas to be "very credible witnesses" who were "all pediatric specialists and are well respected and testified to what is commonly accepted in the medical field." Conversely, the court found Drs. Holick and Sullivan lacking in credibility, finding that "their theories, while touted by the defense bar for parents accused of abuse, are fringe theories and are not generally accepted as valid by the relevant scientific community." We do not substitute our assessment of the credibility of the witnesses for that of the circuit court. See, e.g., Hambrick v. Ark. Dep't of Hum. Servs., 2016 Ark.App. 458, 503 S.W.3d 134; Bowie v. Ark. Dep't of Hum. Servs., 2013 Ark.App. 279, 427 S.W.3d 728. Ryan concedes this in his brief.
In sum, the court found "the juvenile R.F. had sustained a non-accidental physical injury, fractures of his rib bones and leg bones while in the custody and care of his parents, Ryan Franklin and Ashton Cobb." The evidence further showed that R.F. was never in anyone's care except for that of Ryan and Ashton. See Ward v. Ark. Dep't of Hum. Servs., 2014 Ark.App. 491, at 5 ("As there was no indication that [the injured child] was not in appellants' legal custody at the time of his injury, it necessarily follows that the injury was caused either by appellants or by someone they entrusted with the child's care."). Because of its finding of credibility of the medical evidence, the court found "that this injury was at variance with the history given." In other words, neither parent ever provided a plausible accidental cause for R.F.'s injuries. The court concluded "that both parents failed to protect the juvenile from these injuries, which are consistent with physical force and child abuse which were perpetrated while the child was in the care of his parents. Specifically, the court finds that the allegations in the petition are true and correct." In short, we are unable to disagree.
Affirmed.