In re K.L.
| Decision Date | 16 June 2020 |
| Docket Number | No. COA19-800,COA19-800 |
| Citation | 845 S.E.2d 182 |
| Parties | In the MATTER OF K.L., J.A. II |
| Court | North Carolina Court of Appeals |
Senior Assistant County Attorney Elizabeth Kennedy-Gurnee, for Petitioner-Appellee Durham County Department of Social Services.
Garron T. Michael, for Respondent-Appellant Mother.
David A. Perez, Thomasville, for Respondent-Appellant Father.
Christopher J. Waivers, for Guardian Ad Litem.
Respondent-Mother and Respondent-Father (collectively "Respondents") appeal from an order adjudicating their son Joseph abused and neglected and Respondent-Mother's son Kenneth neglected.1 On appeal, Respondents argue that the trial court erred in adjudicating Joseph abused and neglected and Kenneth neglected. After careful review, we reverse the order of the trial court.
Early in the morning on 29 May 2018, around 1:00 a.m., Respondent-Mother woke up to feed three-month-old Joseph and afterward started to bounce him as she usually did after a feeding. However, she noticed that Joseph was not putting weight on his left leg. Respondent-Mother then woke Respondent-Father to tell him that Joseph was "not jumping like he usually does." Joseph was not crying, nor did he appear to be in any distress, so Respondent-Father suggested that they wait and see how Joseph was feeling in the morning. When Joseph woke up at 5:00 a.m., he "didn't seem to be in any pain," but he still was not jumping when he was held up. Respondent-Mother dropped Joseph off at the babysitter and checked in with the babysitter regularly to see how Joseph was doing. The babysitter reported that Joseph appeared to be fine, but Respondent-Mother was still concerned, so she scheduled an appointment with his pediatrician for the following day, 30 May 2018.
The pediatrician examined Joseph and said that his leg looked "normal to her" and that "babies sometimes change their habits." Respondent-Mother asked the pediatrician if "she was sure," and the pediatrician told Respondent-Mother that she could order an X-ray if Respondent-Mother was still concerned. Respondent-Mother asked for the X-ray but did not receive the results until she arrived home with Joseph. The pediatrician called Respondent-Mother and told her that fractures had been identified on Joseph's legs and that she needed to take Joseph to the emergency room at the University of North Carolina hospital. Respondent-Mother went to Duke University Medical Center since it was closer. She called Respondent-Father on the way and told him what the X-rays had revealed and that she did not know how the fractures could have happened. Respondent-Father told her that two days prior, on 28 May 2018, he had placed Joseph on the couch, and, when he turned around, Joseph had fallen about two feet onto carpeted floor.
When Respondent-Mother arrived at Duke Emergency Center, she told the intake nurses what Respondent-Father had told her and gave them a letter from the diagnostic center that had taken the X-rays. The letter read that the center had identified fractures on Joseph's leg and that "non-accidental trauma should not be excluded." At the hospital, four classic metaphyseal lesion fractures were identified on Joseph's left and right legs, and, according to the doctors, these types of fractures were "highly concerning for non-accidental trauma or child abuse." Furthermore, they were not consistent with injuries from the short fall off the couch that Respondent-Father had reported but rather with force generated by "traction, torsion and/or shearing of the leg." After doctors at Duke read the X-rays, they admitted Joseph and decided to call child protective services.
Joseph was discharged from Duke Hospital on 1 June 2018 and placed in a kinship placement with his paternal grandparents. On 4 June 2018, DSS filed a juvenile petition alleging abuse as to Joseph and neglect as to eight-year-old Kenneth, Respondent-Mother's son from a previous relationship who lived with Respondents.
The adjudication hearing began on 18 December 2018 with Judge Rhinehart presiding. Dr. Deanna Adkins testified first for DSS as an expert in pediatric endocrinology and offered testimony as to her treatment of Joseph during his hospital stay. Dr. Adkins testified that she had performed an evaluation on Joseph on 30 May 2018 to identify whether Joseph had a bone disorder known as rickets because tests revealed that Joseph was vitamin D deficient with corresponding elevated parathyroid hormone ("PTH") levels.2 Despite initially believing that Joseph had rickets in his left rib, Dr. Adkins testified that Joseph did not exhibit signs of rickets. Dr. Adkins further testified that vitamin D deficiency is common in infants like Joseph who are exclusively breastfed.
Next, Dr. Gary Schooler, the pediatric radiologist who interpreted Joseph's X-rays, testified that six fractures were identified on Joseph—two were not visible on the initial X-rays—but all were healing by the time of Joseph's follow-up visit on 18 June 2018. Dr. Schooler testified that Joseph would not have had the ability to generate the force to create his injuries on his own. Dr. Schooler also testified that, at the time he interpreted Joseph's X-rays, he was not aware that Joseph had vitamin D deficiency or PTH issues.
Dr. Lindsey Terrell, who worked at the Duke Child Abuse and Neglect Medical Evaluation Clinic ("CANMEC"), then testified. Dr. Terrell performed medical examinations of Joseph on 31 May 2018, 1 June 2018, and 18 June 2018. Dr. Terrell collected a complete patient history from Respondents—questioning them together and separately—to try to determine the source of Joseph's injuries. Dr. Terrell testified that Respondents were cooperative, answered her questions, and provided the information that she requested. Dr. Terrell also testified that she spoke with Joseph's primary care provider at Chapel Hill Pediatrics, and the providers at the practice told her they had seen Joseph for his newborn, two-week, one-month, and two-month wellness checks and they had no concerns about him or his family.
Dr. Terrell testified that when a child under the age of one has a fracture, it is recommended that their whole body be assessed and their brain, skull, organs, bones, and eyes be examined for other injuries. Dr. Terrell testified that those tests were ordered, and there were no abnormal findings—save for the fractures in Joseph's legs. Dr. Terrell also testified that Respondent-Mother asked that Joseph be tested for osteogenesis imperfecta
("OI"), another form of rickets, because OI ran in her family, and Respondent-Mother reported that she had sustained a fracture when she was ten or twelve merely from walking. The test was performed and ultimately came back negative.
Dr. Terrell testified that in her opinion Joseph's injuries were acute and based on the history provided by the parents, most likely occurred on or around 28 May 2018. Moreover, "it was very concerning to" her that "despite multiple times in trying to obtain a history [from Respondents] there was no history provided that could explain the six fractures found in [Joseph]’s legs." Without an explanation or an account for the force she indicated was likely necessary to cause the injuries, Dr. Terrell opined that it was "highly probable" that Joseph had experienced some type of physical abuse.
Durham DSS social worker Shekinah Taylor testified last for DSS. Social Worker Taylor testified that she was assigned to Joseph and Kenneth's case on 31 May 2018 and that as part of her investigation she spoke with the doctors at the CANMEC clinic. As DSS had interviewed Respondents and Kenneth the evening Joseph had been admitted to the hospital, they were not formally interviewed again regarding Joseph's injuries. Social Worker Taylor testified that her role at that time was to complete a safety plan with Respondents regarding Joseph and Kenneth, and, once that was done, she transferred the case to another social worker on either 1 or 4 June 2018. Social Worker Taylor also testified that no bruises, markings, or indications of abuse or injury were ever found on Kenneth. She further testified that DSS had concerns for an injurious environment due to Kenneth's living in the home where Joseph's injuries "potentially occurred[,]" which resulted in the juvenile petition alleging Kenneth to be a neglected juvenile.
Respondents then testified. Both Respondent-Father and Respondent-Mother testified that they did not know how Joseph sustained his injuries. Respondent-Mother testified that not knowing what caused Joseph's fractures "bothers me because if something's wrong with him I definitely[ ] ... want to know ... if it's, you know a bone disease or something." Respondent-Father testified that criminal child abuse charges were never brought against him or Respondent-Mother.
Following the presentation of all evidence, the trial court announced its judgment in court on 20 December 2018, adjudicating Joseph abused and Kenneth neglected.
The matter then proceeded to the disposition stage.
Social Worker Taylor testified first that she did not have any concerns regarding Respondents’ ability to maintain stable housing or employment. Social Worker Brianna Dearing, who was then assigned to the case, testified that Respondents had fully complied with DSS's recommendations and been "very cooperative." Social Worker Dearing testified that she had spoken with Kenneth several times since being assigned to the case and Kenneth told her that "he doesn't like the fact that his brother doesn't live in the home[,]" that he loved Respondent-Father, and wanted to live with his mom, Respondent-Mother. Social Worker Dearing also testified that Respondents visited Joseph daily, driving an hour and a half each way to visit Joseph at his grandparents’ home.
Guardian Ad Litem ("GAL") Susan Fisher then testified about her investigation regarding Joseph and Kenneth. She testified that she...
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