In re Yarbrough Minors

• Decision Date: 19 January 2016
• Docket Number: 326171.,Docket Nos. 326170
• Parties: In re YARBROUGH MINORS.
• Court: Court of Appeal of Michigan — District of US

314 Mich.App. 111

885 N.W.2d 878

In re YARBROUGH MINORS.

Docket Nos. 326170

326171.

Court of Appeals of Michigan.

Submitted Dec. 8, 2015, at Detroit.

Decided Jan. 19, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Jennifer L. Gordon, Assistant Attorney General, for petitioner Department of Human Services.

Rodney Williams, for respondent Catrice Wright.

Law Office of Steven M. Gilbert, PLLC, Southfield (by Steven M. Gilbert ), for respondent Jerome Yarbrough.

Michigan Children's Law Center, Detroit (by William E. Ladd ) for the minor children.

Before: JANSEN, P.J., and CAVANAGH and GLEICHER, JJ.

GLEICHER

, J.

The Department of Human Services filed a petition alleging that one or both respondents-parents physically abused their five-month-old son, JPY. Respondents denied hurting their child and sought funds for consultation with a medical expert regarding alternate causes for his injuries. The circuit court rejected their request, ruling that respondents had not established a reasonable probability that an expert would assist their defense. The issue presented is whether this decision denied respondents due process of law.

We conclude that the circuit court applied an incorrect standard for determining respondents' entitlement to expert assistance funding. Because a parent's interest in the accuracy of a decision to terminate his or her parental rights is “commanding,” Lassiter v. Dep't of Social Servs. of Durham Co., North Carolina, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)

, the proper inquiry weighs the interests at stake under the due process framework established in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Application of the Eldridge factors necessitated affording respondents with reasonable funds for expert consultation. We vacate the order terminating respondents' parental rights and remand for further proceedings.

I

Respondents are the parents of JPY and a three-and-a-half-year-old daughter. On June 11, 2014, mother noticed that JPY's left eye appeared to deviate and had a “red dot” in it. Mother took the child to his pediatrician, who performed an examination and ordered an MRI. The order recited: “baby not moving his left eye, please evaluate for mass or space occupying lesion or reason for [abducens] nerve dysfunction.” Mother brought JPY directly to St. John Hospital for the procedure. The child was assessed in the St. John Hospital Emergency Room that afternoon and no abnormalities were noted other than a “crossed eye.” According to St. John Hospital, the MRI, performed with and without contrast, revealed a normal, uninjured brain:

There is nothing to indicate an abnormal fluid collection, space-occupying mass, focal signal abnormality, or focal enhancing lesion. There is no mass or abnormal signal involving the brainstem, and no space-occupying process within the prepontine or interpeduncular cisterns, nor suprasellar or cavernous sinus regions, on this MRI of the entire brain. No restricted diffusion is demonstrated. The ventricles, basal cisterns, and sulci over the convexities are within normal limits. The midline structures are within normal limits. The myelination pattern is within normal limits.

Mother and JPY left St. John at 7:00 p.m. Mother was instructed to watch JPY “carefully for breathing issues” and to return to the emergency department if any were noted.¹

Mother noted that JPY felt a little warm that evening, but he took a bottle and fell asleep. The next day, June 12, JPY continued to seem warm, acted “fussy,” and took only four ounces of formula. Father arrived in the late afternoon to care for the children so mother could get something to eat.² Within five to 10 minutes of mother's departure, father saw “milky” “bubbles” coming from JPY's nose and mouth as the child lay on his back on a bed. JPY took three breaths and slumped “like a rubber doll.” Father called 911 and requested an ambulance. The dispatcher instructed him how to perform CPR while awaiting the emergency personnel. Mother returned shortly after JPY's collapse and took over CPR. When eight or nine minutes had elapsed with no sign of an ambulance, respondents drove to St. John Hospital as mother continued CPR in the car.

On arrival at the hospital JPY was flaccid, unconscious, and had no pulse. He took only intermittent gasping breaths. After prolonged resuscitation JPY developed a pulse. A physician noted that the infant's estimated “downtime” was approximately 30 minutes, and that the child had been ill with upper respiratory infectionsymptoms during the preceding week.³ A CT scan

of JPY's brain obtained that evening revealed no acute findings and did not suggest a traumatic injury:

There is no evidence of acute intracranial hemorrhage

. The ventricular system is not dilated. Motion artifact is noted obscuring the left posterior parietal region.

No masses or focal fluid collections are noted. Gray-white matter differentiation is grossly well-maintained given limits of low-dose technique. No sulcal effacement or evidence of mass effect.

The orbits and paranasal sinuses are normal in appearance. The calvarium and overlying soft tissues are unremarkable.

The working diagnosis at St. John was that the child had suffered a prolonged cardiorespiratory arrest

. He remained comatose.

A St. John social worker performed an evaluation and found no evidence to suspect child abuse. She noted in relevant part:

Both parents and maternal grandmother exhibit appropriate concern for the patient. All 3 were tearful and disheartened by the entire event. The consultation for abuse and neglect does not, in the opinion of this worker, appear to be valid and social work sees no evidence of any maltreatment. This worker also spoke with the medical staff, who are in agreement that abuse or neglect does not appear to be the case for this family.

Late the next evening, St. John transferred JPY to Children's Hospital of Michigan for continuing intensive care. The physicians at Children's Hospital reviewed the MRI and the CT scan

performed at St. John and concluded that both demonstrated significant abnormalities, in contrast to the entirely normal findings reported by the radiologists at St. John, who interpreted the same images. A Children's Hospital radiologist concluded that the St. John MRI revealed an “[i]nfra and supratentorial bilateral subdural hematoma ” suggestive of prior trauma, and that the CT scan reflected the same subdural hematoma, as well as widening of the sutures and a “[r]ight parietal healing fracture with soft tissue swelling over the parietal convexity.” A Children's Hospital ophthalmologist examined JPY and reported that the child had bilateral retinal hemorrhages

. Physicians at Children's Hospital concluded that JPY was “a severely injured baby with subdural hemorrhages, bilateral retinal hemorrhages, skull fracture from abusive trauma.” Petitioner filed a permanent custody petition on June 18, 2014.⁴ The court authorized the petition on June 30, 2014.

On September 22, 2014, mother filed a motion “for appointment of expert witness.” The motion set forth the child's medical history and the conflicting diagnoses, asserting:

In order to adequately rebut the anticipated expert opinion testimony presented by the State, Respondent must be able to retain and call her own expert to review the evidence of medical staff and to present an opinion (i.e., that the type of injuries to the child is not necessarily indicative of abuse by the parent; that there may be other explanations for the injury than abuse), particularly since the Mother adamantly denies any abuse or nonaccidental injury occurred.

The motion stated that mother was without funds to hire an expert, and it urged, “[i]n the interests of fairness, Respondent should be provided the same opportunity as the State to consult with a medical expert and call said expert to the stand to offer an opinion concerning causation of the injury.”⁵

Father filed a concurring pleading. He averred that he could obtain a fair and impartial trial “only through the use of an independent, impartial expert ... [;] the medical records and condition of this child are so involved and so difficult as to render [father's] counsel unable to appropriately cross [-]exam[ine] the expert witnesses which will be provided and presented by the Attorney General's Office.”

The family division judge declined to hear respondents' motions, as a Wayne County Local Administrative Order permits only the chief judge to authorize payment of extraordinary fees in family division cases. During oral argument before the chief judge, mother's counsel outlined the medical circumstances of the case and requested funds for “an independent expert.” Counsel estimated that “up to [$]2,500” would be needed. Father's lawyer stressed, “[w]e simply do not have the medical skills to be able to properly cross-examine the medical experts from Children's Hospital in a manner in which will provide the Court with sufficient information to reach an independent and informed conclusion.” In response to the chief judge's suggestion that counsel arrange to speak to the treating physicians at both hospitals, without payment, mother's counsel stated: “[W]e would certainly prefer an independent expert” due to the implicit criticism of the St. John radiologic diagnoses by the Children's Hospital child abuse unit physicians. “[I]n order to be fair to the parents and the parties in this case ... and to level the playing field,” counsel insisted, respondents were entitled to their own expert.

The chief judge denied the respondents' funding requests, relying on People v. Tanner, 469 Mich. 437, 443–444, 671 N.W.2d 728 (2003)

, and People v. Leonard, 224 Mich.App. 569, 582–584, 569 N.W.2d 663 (1997). The court opined that the lawyers needed to learn “how to review medical records” on their own, and that a request for assistance in going through...