State ex rel. Juv. Dept. v. Nguyen

• Decision Date: 26 June 2002
• Citation: 48 P.3d 864,182 Or.App. 294
• Parties: In the Matter of Mary Nguyen and Martha Nguyen, Minor Children. STATE EX REL. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY; Mary Nguyen; and Martha Nguyen, Appellants, v. Thanh-Hoa Thi NGUYEN, aka Thanh Nguyen; and Cao Thai Nguyen, aka Cao Nguyen, Respondents, and Peggy Sperr, Court Appointed Special Advocate, Respondent.
• Court: Oregon Court of Appeals

48 P.3d 864

182 Or.App. 294

In the Matter of Mary Nguyen and Martha Nguyen, Minor Children.

STATE EX REL. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY; Mary Nguyen; and Martha Nguyen, Appellants, v. Thanh-Hoa Thi NGUYEN, aka Thanh Nguyen; and Cao Thai Nguyen, aka Cao Nguyen, Respondents, and Peggy Sperr, Court Appointed Special Advocate, Respondent.

1999-8-821162; A115763

Court of Appeals of Oregon.

Argued and Submitted February 1, 2002.

Decided June 26, 2002.

Michael Livingston, Assistant Attorney General, argued the cause for appellant State ex rel. Juvenile Department of Multnomah County. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Kathryn Underhill, Washington, D.C. and Juvenile Rights Project, Inc., Portland, filed the brief for appellants Mary Nguyen and Martha Nguyen.

Emily S. Cohen, Portland, argued the cause and filed the brief for respondent Thanh-Hoa Thi Nguyen.

Laurie Bender, Portland, argued the cause and filed the brief for respondent Cao Thai Nguyen.

James N. Westwood and Stoel Rives, LLP, Portland, joined in the briefs of Juvenile Department, and Mary Nguyen and Martha Nguyen for respondent Peggy Sperr.

Before ARMSTRONG, Presiding Judge, and KISTLER and BREWER, Judges.

KISTLER, J.

The trial court dismissed the state's petition to terminate mother and father's parental rights. The state appeals. On de novo review, we reverse.

On September 30, 1999, father took his four-month-old daughter Martha to a regularly scheduled well-baby examination. In the course of the examination, father mentioned some tenderness in the baby's arm and told the physician about "a history of arm swelling and lower leg swelling." Because an x-ray revealed fractures of the baby's long bones, the doctor sent the baby to inpatient services at Emanuel Hospital for further evaluation. At Emanuel, Dr. Mike Lukschu concluded, based on abnormalities in the x-rays, that additional testing should be done. He ordered a skeletal survey, blood tests, and a CT scan.

The skeletal survey showed that the bones in Martha's arms and legs had been broken 12 times on at least three separate occasions. Martha's right arm had been broken twice. One fracture was 10 to 14 days old; the other was 14 to 21 days old. Her left arm had been broken three times. Two fractures were 10 to 14 days old; the third was 21 to 42 days old. Her left leg had been broken two times. Both fractures were 10 to 14 days old. Martha's right leg had been broken three times. Two of the fractures were 10 to 14 days old; the third was less than 72 hours old. All the fractures to Martha's arms and legs were metaphyseal fractures or fractures of the growing part of the arm and leg bones.¹

Dr. William Bennett testified that "[t]hese fractures are caused by violent twisting and jerking movements of the extremities." In describing the amount of force necessary to cause the fractures, Lukschu explained that it would take the same amount of force to cause the fractures that Martha had suffered as it would to break the drumstick bone in a turkey. Bennett and Lukschu differed on the extent to which Martha's injuries would be apparent to an observer. Bennett explained that "[t]hese are very painful injuries." As a result of the injuries, Martha would be "fussy and crying, not want to move the extremity. The extremity would be swollen." The swelling, however, would probably go away within four days after the fracture occurred. Lukschu testified that these kind of fractures in infants can result in a wide range of symptoms—anywhere from nothing to severe pain. He noted, however, that Martha had exhibited some symptoms of pain when she was taken to the clinic. He explained that, when "we were moving her extremities, it seemed to be tender for her." She was "fussy." "She wasn't, you know, a happy baby, but I don't think she was constantly crying, either."

The skeletal survey also revealed that Martha's skull had been fractured. Bennett initially determined that there was some scalp swelling present, which allowed him to date the skull fracture at an age of 72 hours or less. Later, he reviewed the x-rays with Lukschu and decided that there was insufficient swelling to allow him to date the fracture accurately. Bennett told the court that, "for a fracture like that to occur innocently, a child of this age would have to be dropped on their head from a height of five feet on a very hard surface, such as concrete." He agreed on cross-examination that it was possible that Martha's skull might have been fractured by an instrument such as a glass bottle but only "[i]f you could swing it hard enough." Based on the number of fractures, their pattern, and the fact that they resulted from multiple incidents, Lukschu concluded that this was "a classic case of abusive injury."

After the doctors discovered the extent of Martha's injuries, a police detective spoke with father and mother separately. When the detective told father that his daughter "had broken bones all over [her] body," "[h]e was very sad and he cried." When the officer told mother the same information, "she didn't really say anything or show * * * emotion." Mother cried only when she was told, at the end of the interview, that the state was going to take custody of her two children as a result of the injuries. During their interviews, both parents explained that Martha had been exclusively in their care. They could not identify any accident that might have caused their daughter's injuries, and each maintained that the other had not caused them. Although both parents wondered whether they might have wrapped Martha's blanket too tightly, the evidence established that Martha's injuries were not caused by too tight a blanket.²

As a result of the doctors' findings and the parents' interviews, the State Office for Services to Children and Families (SCF) placed Martha and her 15-month-old sister Mary in foster care. In October, the parents and the SCF case worker participated in a family decision meeting and developed a service agreement. The primary need identified in the agreement was to "provide for the safety of the children." To that end, mother and father began a parenting class through Lutheran Family Services and the Asian Family Center.³ The curriculum included instruction on "stress and anger management, establishing family rules, discipline alternatives, family problem-solving," and "cross-cultural issues and American culture."

Mother and father also participated in approximately 25 supervised visits with their children. Doneena Caster, an SCF human services assistant, described the parents' interactions with Martha and Mary as "very good visits" that were "comfortable, calm, balanced." According to Caster, mother's care of Martha was appropriate. Caster confirmed that father also appeared to be "loving, attentive and concerned for his children."

Mother and father underwent mental health evaluations at the request of their attorneys. Dr. James Boehnlein, who has experience working with Southeast Asian clients, evaluated father in November. Using an interpreter, Boehnlein interviewed father about his history and reviewed SCF, police, and medical reports detailing Martha's injuries. Boehnlein concluded that father "does not currently have a psychiatric disorder or evidence of a personality disorder," nor did he have any "predisposing risk factors to violent behavior." Boehnlein did not have an opportunity to observe father with his daughters, but he noted that "there is nothing in the individual psychiatric examination that would suggest that he is unfit as a parent or that he has a diminished capacity to parent his daughters."

Mother was evaluated by Dr. Paul Leung, who was also chosen in part for his familiarity with Vietnamese culture. Leung concluded that mother "enjoyed a very healthy mental [and] emotional condition" before the discovery of Martha's injuries and removal of her children and that she was capable of providing adequate parenting for her daughters.⁴ Leung explained, however, that, if mother had caused Martha's injuries "out of stress" and "being overwrought," he would "have very much concern about the ability of this woman to care for these two children" and would recommend "additional treatment to the mother [and] the father."

In February 2000, the juvenile court held a hearing on the state's petition to take jurisdiction of the children. The court found that the parents "love their children and wish and want to care for them" but that they had offered no adequate explanation for the injuries that Martha had sustained while in their care. The court found beyond a reasonable doubt that the injuries were not accidental, that Mary had not caused them,⁵ and that Martha had been in the exclusive custody of her parents. The court explained:

"It is plausible in the Court's view that these injuries reflect frustration and being overwhelmed by a caretaker, trying to deal with two young children, one of whom is a fussy baby. I don't believe that either parent set out to cause severe injury to this child. But in their physical custody that's exactly what happened.

"* * * What is proposed here by [parents' attorneys] is that the Court can return this child to the custody of these parents where these very severe injuries occurred without any further treatment, without any acknowledgment on the part of either parent how they occurred, and that they occurred at the hands of one of the parents. I think that would be unconscionable and place both children at great risk.

"The idea that a child only 11 months different in age receives at least on three separate occasions a skull fracture and 11 or 12 breaks in her bones, and that we're going to put the other child back into that environment without any acknowledgment as to how those injuries occurred other than we know that one of the parents caused them, and no treatment, is, in my mind irresponsible to

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