Martin, Matter of, Docket No. 99929

Decision Date31 May 1988
Docket NumberDocket No. 99929
Citation423 N.W.2d 327,167 Mich.App. 715
PartiesIn the Matter of Ashley Lynn MARTIN, a Minor. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Cynthia MARTIN and Michael Martin, Respondents-Appellants. 167 Mich.App. 715, 423 N.W.2d 327
CourtCourt of Appeal of Michigan — District of US

[167 MICHAPP 716] Richard Seid, Detroit, for Cynthia and Michael Martin.

John D. O'Hair, Pros. Atty., Timothy [167 MICHAPP 717] A. Baughman, Chief Asst. Pros. Atty., and Thomas M. Chambers, Asst. Pros. Atty., for The Dept. of Social Services.

Before WAHLS, P.J., and MAHER and ALLEN, * JJ.

MAHER, Judge.

This case is before us on remand from the Supreme Court for plenary consideration, pursuant to M.C.L. Sec. 600.861(c)(i); M.S.A. Sec. 27A.861(c)(i) and MCR 7.203(A)(2), as though on leave granted. In re Martin, 429 Mich. 852, 412 N.W.2d 205 (1987). Respondents challenge a jury's determination that their daughter, Ashley Lynn Martin (born September 6, 1984), came within the jurisdiction of the Wayne County Probate Court by reason of abuse. They also challenge the court's continued placement of the child in foster care. We affirm in part and reverse in part.

For purposes of this appeal, it is unnecessary to set forth in great detail the extensive evidence, both testimonial and documentary, which was presented at the numerous lower court proceedings. However, some depth of discussion is required in order to understand fully the issues presented herein.

The state's involvement with this case began on December 18, 1984, when Ashley was only thirteen weeks old. On that date, respondents took the child to an emergency pediatric clinic because she was acting listless and had a high temperature. After the doctor performed blood tests and took several x-rays, it was discovered that Ashley had pneumonia, numerous broken ribs (possibly as many as eighteen) in various stages of healing, fractures of both femurs, a bruise on the lower [167 MICHAPP 718] back, and a bruise on the left leg. Suspecting abuse, the doctor transferred Ashley to a hospital and contacted the Wayne County Department of Social Services (DSS), which immediately filed an emergency petition with the Wayne County Probate Court for a temporary detaining order. The order was issued.

Shortly thereafter, the DSS filed another petition with the court, this one requesting that Ashley be made a temporary ward of the court. M.C.L. Sec. 712A.2(b); M.S.A Sec. 27.3178(598.2)(b). Respondents requested a jury trial on the petition.

Trial was originally scheduled for August 16, 1985, but was adjourned until January 13, 1986, by mutual agreement of the parties. Respondents wanted the extra time to have Ashley examined at the Shriner's Hospital in Chicago to determine if there was a medical explanation for her injuries, such as osteogenesis imperfecta (OI, also known colloquially as brittle bone disease).

Petitioner's witnesses at trial included four physicians, each of whom examined Ashley and opined (although with varying degrees of certainty) that her injuries were the result of abuse. They ruled out OI as a possible cause because Ashley did not have many of the abnormalities associated with that disease (e.g., narrow bones, thin skin, fractures at weight-bearing points, excessive wormian bones in the skull). Other witnesses testified that since being placed in foster care Ashley has had no new fractures and is a normal, healthy baby.

Respondents presented evidence that Ashley may have had some medical disorder that made her susceptible to bone fractures. Particularly, Dr. Colin Paterson, a professor at the University of Dundee in Scotland and an expert in biochemical medicine and bone disorders, testified that he was confident there was a mistaken diagnosis of abuse. [167 MICHAPP 719] He felt Ashley had some bone disorder, possibly copper deficiency, but he could not pinpoint the exact cause because the proper tests were not performed early enough. A clinical psychologist and a psychotherapist, both of whom tested and evaluated respondents at length, testified that respondents did not exhibit those characteristics typical of child abusers. Respondents testified that Ashley would cry whenever she was picked up, held, or had her diaper changed. They called the pediatrician about this numerous times (which the pediatrician confirmed at trial) but were repeatedly assured that Ashley was just fussy. Ashley cried so violently that on one occasion she ruptured a blood vessel in her eye. On another occasion the underside of her tongue bled. Respondents contacted the pediatrician after each of these episodes but were again told that Ashley was just fussy. On hindsight, respondents believe Ashley was crying out of pain because of broken bones inflicted during normal handling of the child. They continued to maintain their innocence of any wrongdoing.

At the conclusion of proofs, the jury found that petitioner had proven by a preponderance of the evidence that Ashley had been abused and that she should be made a temporary ward of the court. Subsequently, respondents moved for, but were denied, judgment notwithstanding the verdict or a new trial.

A dispositional hearing was held on February 24 and 25, 1986, to determine whether Ashley should continue in foster care or be returned to respondents' home under DSS supervision. Petitioner asserted that a potential for reabuse existed unless and until respondents admitted responsibility for Ashley's injuries. Respondents continued to profess their innocence of any wrongdoing. After hearing the evidence presented by both sides, the court [167 MICHAPP 720] ruled that Ashley should remain in foster care. Respondents appealed that ruling to this Court. 1

Statutory rehearings were held in August of 1986 and March of 1987. At the conclusion of each, the court ordered that Ashley shall continue in foster care, although regular visitation was permitted. Respondents were directed to undergo counseling and attend parenting classes.

At the March 1987 hearing, respondents argued a motion for new trial based on newly discovered evidence. The new evidence was an affidavit from Dr. Paterson, whose credentials were mentioned previously and a report from Dr. A.M. Parfitt, Director of the Bone and Mineral Research Laboratory at Henry Ford Hospital. Dr. Paterson concluded, after reviewing all the medical tests, with "virtual certainty" that Ashley's injuries resulted from a copper deficiency. Dr. Parfitt also diagnosed the cause as copper deficiency or some other metabolic disorder having similar effects.

The court denied the new trial motion, stating that it did not believe the report and affidavit constituted newly discovered evidence. It also refused to allow respondents to present the testimony of Dr. Parfitt, who accompanied them to the hearing, although respondents were permitted to place on the record the substance of Dr. Parfitt's findings. The court continued the prior orders imposed in the case and scheduled a rehearing in six months. Respondents appealed the denial of its motion to the Wayne Circuit Court.

In June of 1987, the Wayne Circuit Court heard [167 MICHAPP 721] the appeal and ordered the probate court to conduct a proper statutory rehearing within twenty-one days. For some unexplained reason, the rehearing did not occur until October 6, 1987--and then only at the prompting of a show cause order to the probate court.

At the rehearing, two additional reports were submitted into evidence. The first was from Dr. Elizabeth Seagull, a professor of pediatric psychology at Michigan State University, who, after defining the issues in dispute and reviewing the evidence, recommended that Ashley be slowly integrated back into respondents' home and that she maintain contact with her foster family. (The entirety of Dr. Seagull's report is set forth infra.)

Also, at the rehearing, the court received a report from Dr. Coy Denton Sims, a Ph.D. in pediatric-child-school and family therapy, which indicated that continued placement of Ashley in foster care could cause irreparable psychological and emotional damage to the child. Dr. Sims also noted that respondents have attended three separate parenting seminars (receiving certificates of honor from two) and have undergone nearly three years of evaluations and psychotherapy. He felt there would be no risk in returning Ashley to respondents' care.

At the conclusion of the rehearing, the court stated that it would not reconsider the issue of what caused Ashley's injuries because that was resolved at the adjudicative hearing. It also stated that the rigid positions of both parties kept the case at a stalemate. The court, in an attempt to resolve the case, ordered Ashley's attorney to locate a neutral therapist to immediately implement an observational treatment situation between respondents and Ashley. A status report was due by [167 MICHAPP 722] January 13, 1988. Ashley was to remain in foster care during the interim.

At the January 13, 1988, rehearing, Ashley's attorney stated that she was still attempting to locate a neutral therapist who would be agreeable to all parties. The court allowed her additional time to find such a person. Also at the rehearing, the court heard testimony from David Allasio, a foster care worker newly assigned to the case. Allasio stated that he recommended allowing respondents to assume greater responsibility for the parenting and supervision of Ashley, although he did not recommend returning the child to the home outright at this time. He also testified that Ashley has recently become more anxious and aggressive, and has begun having frequent nightmares. Finally, Allasio stated that he has not insisted that respondents admit to having abused Ashley. At the conclusion of the hearing, the court ordered that Ashley remain in foster care and scheduled another rehearing for July 11, 1988.

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