State ex rel. Z.D., 20040837.

Citation147 P.3d 401,2006 UT 54
Decision Date19 September 2006
Docket NumberNo. 20040837.,20040837.
PartiesSTATE of Utah, in the interest of Z.D. and A.D., persons under eighteen years of age. S.B.D. and L.D., Respondents, v. State of Utah and Guardian ad Litem, Petitioners.
CourtSupreme Court of Utah

Sara Pfrommer, Park City, for respondents.

Mark L. Shurtleff, Att'y Gen., John M. Peterson, Asst. Att'y Gen., Salt Lake City, for the State.

Robert N. Parrish, Martha Pierce, Salt Lake City, for guardian ad litem.

On Certiorari to the Utah Court of Appeals

NEHRING, Justice:

INTRODUCTION

¶ 1 We granted certiorari to review whether the court of appeals applied the correct standard of review when it reversed a juvenile court determination that Z.D., the seven-month-old son of S.B.D. and L.D., suffered a fractured femur while in S.B.D.'s care and that Z.D. was an abused and neglected child under Utah law. We remand this case to the court of appeals for application of the standard of review as discussed below.

FACTUAL AND PROCEDURAL BACKGROUND1

¶ 2 On Saturday, November 16, 2002, S.B.D. (father) cared for his infant son Z.D. while his wife, L.D. (mother), was away from the home. Before the mother left the home, she gave Z.D. a dose of Tylenol for an earache, constipation, and teething pains that Z.D. had been experiencing. Later, when Z.D. awoke from a nap, his father observed that he was fussy and guarding his left leg. The father attributed Z.D.'s apparent leg pain to a flu shot that had been administered in Z.D.'s left leg the day before. He wrapped Z.D. tightly in a blanket in what the parents called a "burrito wrap." After being wrapped and held, the symptoms of fussiness subsided.

¶ 3 That evening, when Z.D.'s mother returned home, she also noticed that Z.D. was favoring his left leg. The parents contacted the Kids Care clinic and were told that there was no need to worry and that Z.D. did not need an examination. That night Z.D. slept normally and evidenced no signs of fussiness or pain.

¶ 4 On Sunday morning, the father noted that Z.D. continued to favor his left leg. He took Z.D. to Primary Children's Medical Center (Primary) in Salt Lake City for an examination of the leg. An x-ray revealed that Z.D. had a fractured left femur. The record reflects that Z.D. was in no apparent distress when he was examined, but cried when his leg was manipulated.

¶ 5 Primary follows certain procedures when a non-ambulatory child is diagnosed with a fracture. First, the hospital admits the child for further examination and treatment—Primary admitted Z.D. to the hospital. Next, it notifies the Division of Child and Family Services (DCFS) for investigation of abuse—Primary did so. However, this case posed complications for DCFS because the father was employed by DCFS as an in-home child welfare investigator. Therefore, DCFS assigned independent investigator Paul Dean to the case. Third, Primary's emergency room staff alerts the hospital's in-house child abuse investigation team, the Center for Safe and Healthy Families (CSHF), to investigate—Primary immediately notified CSHF of Z.D.'s condition.

¶ 6 Dr. Bruce Herman, a member of the CSHF and a pediatrician, examined Z.D. and concluded that the child likely sustained the fracture on Saturday, November 16, and probably became acutely symptomatic on the same day. Dr. Herman determined that the fracture was most likely the result of excessive axial loading—direct application of force or smashing—of the femur.

¶ 7 On Tuesday, November 19, 2002, Dr. Herman visited Z.D.'s room while Z.D.'s father, mother, and grandmother were present. The grandmother asked Dr. Herman if it were possible that the fracture took place on Wednesday, November 13, 2002, when Z.D.'s leg became stuck in a baby walker and she released it by pulling the leg through the hole in the walker. Dr. Herman did not discuss this theory with the family because, according to his testimony at trial, he did not consider it a likely cause of this type of fracture.

¶ 8 Approximately a month later, the family requested a meeting with Dr. Herman and the members of the CSHF team to further discuss their "walker theory." At this time, the grandmother provided further details about the incident. She said that when Z.D.'s left leg became stuck in the walker his knee was bent. She then placed her left hand and thumbs on that leg just above the knee, pushed, and pulled it through the walker. Z.D. let out a shrill, vigorous cry when this happened but calmed down quickly.

¶ 9 After the grandmother gave this account and a demonstration of her movements in extricating Z.D. from the walker, a group of physicians from Primary met and agreed that the walker theory and demonstration did not change their opinion that the break was the result of some other type of axial load.

¶ 10 Kari Cunningham, the hospital liaison to DCFS, testified that the doctors agreed that it was possible for a fracture to occur by use of one's hand on Z.D.'s leg, but that the force used by the grandmother in the walker was insufficient to cause Z.D.'s fracture. According to Ms. Cunningham, the doctors formed this opinion without considering either the Tylenol that Z.D. had been given, his tight wrapping in a blanket, or the reduced level of activity that Z.D. exhibited between Wednesday and Saturday.

¶ 11 Two additional physicians, Dr. William G. Nixon, a pediatric radiologist, and Dr. John Smith, a pediatric orthopedist, did not participate in the walker demonstration or subsequent meeting, but did propose conflicting opinions. Dr. Nixon had earlier expressed his opinion that the fracture was not made by an axial load, but rather by angular leverage. Dr. Smith explained that he thought the fracture was likely the result of force on the leg over a fulcrum.

¶ 12 The State then filed a petition pursuant to Utah Code section 78-3a-103(1)(a)(i), alleging that Z.D. was an abused child, that pursuant to Utah Code section 78-3a-103(1)(s)(i)(B), Z.D. was a neglected child subjected to mistreatment or abuse, and that pursuant to Utah Code section 78-3a-103(1)(s)(i)(E), Z.D.'s sister, A.D., was at risk of abuse and neglect because she resided in the same home as Z.D. At trial, both sides offered dueling experts and testimony.

¶ 13 During trial, the State offered the expert opinions of several physicians, relying principally on the testimony and opinion of Dr. Herman, that Z.D.'s injury was not sustained accidentally. Dr. Herman grounded his opinion concerning causation on three diagnostic observations: the type of Z.D.'s fracture, which provided clues to the mechanism and force associated with the cause of the fracture; the age of the fracture; and the symptoms that were associated with Z.D.'s fracture.

¶ 14 Based on his observations, Dr. Herman expressed the opinion that the father deliberately fractured Z.D.'s left leg on Saturday, November 16, 2002, by direct and excessive force applied to the bent left knee. Dr. Herman testified this was the only reasonable conclusion supported by the relevant diagnostic facts. His confidence in his conclusion was not, however, without qualification. While Dr. Herman rejected the walker theory, he conceded that he was "51/49" percent sure that it was direct and excessive force that caused the fracture. He also testified that, while he disagreed with Dr. Nixon's view that Z.D.'s injury was caused by angular force, his disagreement was "not significant."

¶ 15 Dr. Herman's view that the walker explanation was implausible in his opinion because the femur fracture would have caused Z.D. so much pain that neither the Tylenol nor the "burrito wrap" would have been sufficient to mask Z.D.'s discomfort from a "vigilant caretaker" between the date of the walker incident on November 13 and November 16, the date Dr. Herman believed the father had inflicted the injury. He did not explain Z.D.'s apparent absence of pain when brought to the hospital.

¶ 16 In their defense, the parents offered the testimony of various experts including Mr. David Ingebretsen, a biomechanical engineer; Debbie Hosseini, a nurse with expertise in premature baby development; and Dr. Steven Scott, a pediatric orthopedic expert.

¶ 17 Mr. Ingebretsen testified that the walker theory was consistent with his interpretation of the pattern of Z.D.'s fracture. Ms. Hosseini testified that she had often worked with Z.D. and his family because Z.D. was born premature. She testified that she had never seen any bruising or swelling and that Z.D. was a very happy baby who was easily consoled.

¶ 18 Finally, Dr. Scott testified that he was initially skeptical of the parents' explanation of Z.D.'s injury because in his experience a fracture in a non-ambulatory infant is generally the result of abuse. However, upon reviewing the medical records, including x-rays, Dr. Scott became persuaded that Z.D.'s fracture was, in fact, caused by the type of lateral force explained by Z.D.'s grandmother. Dr. Scott also testified that the absence of bruising was a significant issue because it is much easier to bruise soft tissue than to break a bone. Finally, Dr. Scott testified that it was not rare for a child to be brought to the hospital days after a fracture because parents may attribute the symptoms to other causes.

¶ 19 The juvenile court issued findings of fact and conclusions of law. The court acknowledged the difficulty in the case due to its length, complex legal and factual issues, and the emotions of all the parties involved. The court concluded that Z.D.'s leg was fractured on Saturday, November 16, 2002, while he was in the exclusive custody of his father. The court acknowledged that the "details of how the child received the femur fracture has [sic] not been provided to the [c]ourt but sufficient and clear and convincing evidence has been established for the [c]ourt to conclude it was non-accidental trauma without a reasonable and acceptable explanation from either parent as to...

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