In Re A.B., No. 06-FS-1010

• Citation: 999 A.2d 36
• Decision Date: 01 July 2010
• Docket Number: 06-FS-1012.,06-FS-1011,No. 06-FS-1010
• Parties: In re A.B., N.D., and Ma.F.N.B., Appellant.
• Court: Court of Appeals of Columbia District

999 A.2d 36

In re A.B., N.D., and Ma.F.

N.B., Appellant.

Nos. 06-FS-1010, 06-FS-1011, 06-FS-1012.

District of Columbia Court of Appeals.

Argued May 21, 2009.

Decided July 1, 2010.

COPYRIGHT MATERIAL OMITTED

Laurie P. McManus for appellant.

John Woykovsky, Assistant Attorney General, Office of the Solicitor General, with whom Peter J. Nickles, Acting Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Catherine Ferrando, Assistant Attorney General, Office of the Solicitor General, were on the brief, for appellee District of Columbia.

Before RUIZ, GLICKMAN, and THOMPSON, Associate Judges.

GLICKMAN, Associate Judge:

Appellant N.B. asks us to reverse the adjudication of her three young daughters as neglected children within the meaning of D.C.Code § 16-2301(9) (2001 & 2009 Supp.). The trial court found that three-month-old Ma.F. had suffered physical abuse, which her parents, N.B. and M.F., had failed to make reasonable efforts to prevent; that five-year-old A.B. and seven-year-old N.D., who lived in the same household as Ma.F., were in imminent danger of being physically abused themselves; and that all three children were without proper parental care or control. N.B.'s challenge to these findings raises two principal questions.¹

The first is whether the trial court erred in allowing Dr. Allison Jackson, a pediatrician and expert on child abuse, to render the opinion that Ma.F.'s multiple fractures were caused by blunt force trauma rather than a genetic bone disorder known as osteogenesis imperfecta, where Dr. Jackson based her opinion, in part, on the findings of a colleague in a medical specialty (pediatric genetics) outside her own area of expertise. We conclude the court properly admitted Dr. Jackson's testimony under the general rule that an expert witness is permitted to rely on the opinion of another expert in formulating her own opinion when such reliance is reasonable in the expert's particular field. Although the rule is not a license for one expert merely to parrot the conclusion of another, that is not what occurred in this case.

The second question is whether there was sufficient evidence for the trial court to conclude that A.B. and N.D. were neglected children. The court so found in consideration of the pattern of physical abuse inflicted on their infant sibling, Ma.F., with whom they resided; A.B.'s report that her mother and Ma.F.'s father had hit her with a ruler and a belt; and the adverse inference the court drew upon finding that Ma.F.'s father testified falsely at trial when he denied having corporally punished the girls. We conclude that the evidence before the court was insufficient to support the adjudications of neglect as to A.B. and N.D., in essence because it did not show that the children had been, or were in imminent danger of being, abused within the meaning of the neglect statute.

I. Background

Ma.F. was three months old when her parents, N.B. and M.F., brought her to Children's National Medical Center (“Children's Hospital”) in the middle of the night because she was in discomfort, her feet were swollen, and the skin on her feet was peeling. X-rays of the feet revealed fractures of her left first metatarsal (the “big toe”) and the ends of her tibias near her ankles. The tibia fractures were of the “corner” or “bucket handle” type, where a sliver of the bone shears off from the main shaft-or, to put it another way, the plane of the fracture is closer to being parallel to the length of the bone than it is to being transverse. A follow-up full skeletal survey, which x-rayed all the bones in Ma.F.'s body from multiple views, disclosed a number of additional fractures in her arms and legs, including corner fractures of her left and right tibias and her left femur near the knee, a corner fracture of her right humerus near the elbow, two fractures of her left radius (one near the wrist and the other near the elbow), and a fracture of her left ulna. The fractures were in various stages of healing, implying they had been sustained at different times.

Ma.F. was treated at Children's Hospital by emergency room staff and by the orthopedic surgeon on call. In light of the troubling x-ray results, Ma.F. also was evaluated by Dr. Allison Jackson, the Medical Director of the Child and Adolescent Protection Center at the hospital. Dr. Jackson concluded that Ma.F.'s injuries were likely caused by inflicted blunt force trauma, and she filed a report of suspected abuse with the D.C. Child and Family Services Agency (CFSA). In addition, she recommended that a pediatric geneticist be consulted. The purpose of this consultation was to rule out the alternative diagnostic possibility-one the radiologist rejected and Dr. Jackson considered unlikely, based on Ma.F.'s x-rays and other clinical evidence-that the fractures could be attributed to osteogenesis imperfecta, a congenital disorder causing weak and brittle bones. The geneticist subsequently reported that the DNA test results for that disorder were negative, confirming Dr. Jackson's and the radiologist's judgment. Over the objections of Ma.F.'s parents, Dr. Jackson testified to her diagnostic conclusions in the trial proceedings below.²

N.B. and M.F. met with a social worker from CFSA's Child Protection Services Unit the day after Dr. Jackson filed her report. Neither parent was able to account for Ma.F.'s injuries (an inability that continued through the ensuing proceedings in Superior Court ³ ). Perceiving that Ma.F. and her sisters, A.B. and N.D., would all be at continuing risk of physical abuse if they remained in N.B. and M.F.'s custody, the CFSA social worker had the three girls removed and placed in shelter care.⁴ The District filed neglect petitions as to each girl.⁵ A.B. and N.D. thereafter were examined by a pediatrician, Dr. Betina Franceschini, and A.B. was evaluated by a psychologist, Dr. Jennifer Carter. Along with Dr. Jackson, Dr. Franceschini and Dr. Carter would provide critical testimony when the neglect petitions came on for trial.⁶

II. Dr. Jackson's Testimony Regarding Ma.F.'s Injuries

N.B. frames her challenge to the admission of Dr. Jackson's opinion testimony regarding the cause of Ma.F.'s injuries as an attack on the doctor's qualifications. To be qualified as an expert, a witness must have “sufficient skill, knowledge, or experience” in the relevant area that her opinion testimony will “probably aid” the trier of fact to arrive at the truth. ⁷ The determination that a proposed expert has the necessary qualifications is committed to the trial court's sound discretion.⁸ In the present case, the court qualified Dr. Jackson as an expert not only in the area of pediatrics generally, but also in the field of child abuse and neglect specifically. There is no serious dispute about the soundness of that ruling. Dr. Jackson was a board-certified pediatrician with extensive training and experience in the diagnosis, care, and treatment of abused children. At Children's Hospital, she served as medical director of the department charged with evaluating and treating children suspected of having been maltreated. She had taught medical students and other professionals about child abuse and neglect, and she was a member of the child abuse and neglect section of the American Academy of Pediatrics and of specialty organizations such as the American Professional Society on Abused Children. Dr. Jackson had evaluated hundreds of children for physical abuse-a large percentage of whom, like Ma.F., presented with bone fractures.

N.B. contends, however, that Dr. Jackson was unqualified to interpret Ma.F.'s blood test results and exclude the genetic disorder osteogenesis imperfecta (“O.I.”) as the cause of her bone fractures. Only a geneticist, N.B. argues, would have been qualified to render such an expert judgment. Dr. Jackson admittedly was not a specialist in genetics or in the treatment of the congenital bone disorder. N.B. asserts that Dr. Jackson impermissibly parroted the geneticist's conclusion in rendering her own medical opinion that Ma.F.'s fractures were caused by blunt force trauma and not O.I.

We disagree. N.B. understates Dr. Jackson's expertise and overstates the extent to which Dr. Jackson relied on the geneticist's finding. Dr. Jackson testified without contradiction that she was capable of recognizing osteogenesis imperfecta herself by virtue of her pediatric training and her experience. Indeed, she testified that any pediatrician would have been able to do so. Dr. Jackson had cared for other patients with the disorder and had diagnosed O.I. or offered it as a differential diagnosis in other cases in which the condition later was confirmed. She was familiar with the clinical signs of O.I., which include abnormal bone mineralization and fragility, misshapen bones and abnormal healing of older fractures, so-called “wormian” bones in the skull (small plates in between the cranial bones), and a bluish tinge to the whites of the eyes. When Dr. Jackson examined Ma.F. and reviewed her x-rays and laboratory test results at Children's Hospital, she observed none of those signs. Dr. Jackson agreed that a particularly mild form of O.I. might not manifest such obvious symptoms, but, as she explained in her testimony, the sheer number of fractures Ma.F. had sustained made the theoretical possibility of mild O.I. implausible. The fact that Ma.F.'s fractures healed and no new fractures occurred in the two-month period following her placement in shelter care ⁹ was further evidence that the fractures were not due to a congenital bone disorder. Rather, Dr. Jackson explained, the fractures were of a particular type known to be caused by pulling, twisting, or tugging of an infant's extremities. (Other possible explanations, such as a traumatic childbirth, were ruled out for various reasons we need not go into here.) Consequently, though Dr....