The past 10 years have brought to bear a new perspective to what child and family advocates had been taught about shaken baby syndrome (SBS), recently relabeled abusive head trauma (AHT). Throughout the 1980s and 1990s, highly publicized criminal trials and ubiquitous public health campaigns warned of the dangers of violently shaking an infant. While there is value in educating the public that shaking an infant can lead to serious injury, just because violent shaking can result in injury does not mean that the opposite is true: that when you find an injury, you can conclude that violent shaking is the cause. Nonetheless, in the wake of the heightened public awareness, a medicolegal paradigm developed that adopted this assumption of abusive causation whenever certain medical findings are present (i.e., subdural hematoma, retinal hemorrhages, and brain swelling, either separately or in some combination). Applying this framework, some physicians began diagnosing the presence of SBS/AHT—and, thereby, making a legal conclusion that abuse had occurred—even in the absence of any other injuries, any external signs of abuse or maltreatment, or any other direct evidence (e.g., a witness to the violence being alleged) or circumstantial evidence (e.g., history of violence) supporting the accusation of abuse.
The spring issue of Children's Rights Litigation included an article by Katherine Judson, an attorney and clinical instructor with the Wisconsin Innocence Project at the University of Wisconsin Law School, who serves as the national coordinator of legal work exonerating persons who have been wrongly accused of SBS/AHT in the criminal system. Judson's article, "What Child Welfare Attorneys Need to Know about Shaken Baby Syndrome," provides an introduction to the shortcomings of the medicolegal SBS/AHT paradigm and outlines why an immediate presumption of abuse based solely on the presence of a subdural hematoma, retinal hemorrhaging, and/or brain swelling must be closely scrutinized due to the existence of countless nonabuse explanations for those same findings, including accidental trauma and natural disease processes. This caution regarding an SBS/AHT determination has become well-pronounced in the criminal justice system, where attorneys practicing innocence work have devoted time, attention, and care to objectively evaluating the validity of criminal convictions based on an SBS/AHT accusation. See, e.g., Deborah Tuerkheimer, Flawed Convictions: "Shaken Baby Syndrome" and the Inertia of Injustice (2014). This innocence work has resulted in precedent-setting judicial decisions overturning criminal convictions and questioning the theories upon which state medical experts have rested their opinions of abusive causation. See, e.g., Del Prete v. Thompson, 10 F. Supp. 3d 907, 957 n.10 (N.D. Ill. 2014) (noting that "a claim of shaken baby syndrome is more an article of faith than a proposition of science"); New York v. Bailey, No. 2001-0490 (N.Y. Monroe Cnty. Ct. Dec. 16, 2014) ("[A] significant and legitimate debate in the medical community has developed in the past 13 years, over whether young children can be fatally injured by means of shaking[.]"); Ex parte Henderson, 384 S.W.3d 833, 833–34 (Tex. Crim. App. 2012) ("[T]here is no way to determine with a reasonable degree of medical certainty whether [the child's] injuries resulted from an intentional act of abuse or an accidental fall."); State v. Edmunds, 746 N.W.2d 590, 598–99 (Wis. Ct. App. 2008) (declaring the "emergence of a legitimate and significant dispute within the medical community as to the cause" of injuries historically attributed to SBS/AHT). Even United States Supreme Court justices have viewed convictions based on a diagnosis of SBS/AHT with suspicion. See Cavazos v. Smith, 132 S. Ct. 2, 14–27 (2011) (Ginsburg, J., dissenting) ("What is now known about shaken baby syndrome (SBS) casts grave doubt on the charge leveled against Smith[.]").
Despite this shift in the criminal justice system, attorneys and judges in the field of child welfare law have not been at the center of the developing critique of the SBS/AHT diagnosis. Additionally, the types of cases that may enter the child welfare system and the consequences that can follow often differ in material ways from the cases that are criminally adjudicated. Given that the stakes in the child welfare system include the very real, irreversible, and sometimes permanent trauma that a misdiagnosis of SBS/AHT causes to children, legal professionals in the child welfare system should apply the same diligence and objectivity when confronted with an SBS/AHT case as has been modeled by innocence projects nationwide.
Diminished Strength of the Medical Evidence Supporting Claims of SBS/AHT
For many families whose lives are torn apart and irreparably harmed due to a poorly supported claim of SBS/AHT, the criminal system is never involved. In many cases, law enforcement and prosecutors decline to file criminal charges because there is insufficient evidence. Nonetheless, due to the uniqueness of the child welfare system—which, as is discussed more fully below, is predicated on a lower burden of proof and does not necessarily require the state to prove who caused the claimed abuse—the family can still be subjected to a child protection case. A child protection case involves an investigation conducted by case workers who may be trained to simply adopt the conclusions of the child abuse pediatrician, who will make a determination as to registering a substantiated claim of abuse against the accused person in the child abuse registry. Commonly in cases where SBS/AHT is being alleged, the child welfare investigations will result in the removal of the accused person's children from their care, with a dependency court action initiated following that removal. These state actions result in prolonged, excruciating, and expensive legal proceedings, during which time the accused persons must endure the unrelenting accusation that they have viciously harmed a child in their care, often their own child.
The following is one example of a case currently being handled at the Family Defense Center:
"Leah," a long-time kindergarten teacher, had gotten up in the middle of the night to tend to her seven-month-old infant, "Owen," who was crying. As she started walking down the stairs, she slipped while holding Owen and he fell out of her arms, hitting his head on the baseboard. Leah and her partner, "Jacob," immediately took Owen to the hospital, where he was found to have a subdural hematoma and retinal hemorrhages.
Child protection and criminal investigations ensued. The criminal case initially resulted in a charge of "endangering the life/health of a child" based not on a claim of abuse, but because Leah had dropped Owen. However, this criminal charge of neglect was promptly withdrawn by the prosecutor. Nonetheless, a child protection petition was filed in the state dependency court; the state sought to place Owen in foster care and asked the court to enter findings of abuse—findings that, if entered, will permanently ruin Leah's career. However, the case supporting a claim of abuse has only weakened since the date the petition was filed. Owen's treating neurosurgeon has confirmed that in addition to the fall, Owen had an underlying medical condition rendering him particularly susceptible to intracranial bleeding and retinal hemorrhages from minor or incidental trauma. But in the face of a child abuse pediatrician opinion that has not been modified to take into account the neurosurgeon's opinion, the state has not considered withdrawing its child protection petition. As of May 2015, the family has remained in legal limbo for over eight months.
Because most jurisdictions require the state to prove abuse in child welfare proceedings only by a preponderance of the evidence standard, cases like Owen's—where there is a plausible nonabuse explanation supported by qualified medical subspecialists—will enter the child protection system even though they would never pass muster for a criminal adjudication. Another key difference between criminal cases and child protection cases is the long-term prognosis for the infant. It is more likely that cases in the child welfare system involve nonlethal occurrences, whereas many of the criminal cases involve a child who has died. In the dozens of cases based on an SBS/AHT accusation the Family Defense Center has handled, for example, there has not been a single death involved and almost every single infant, with perhaps one or two exceptions of health complications stemming from the underlying medical conditions, has proceeded to fully recover and thrive.
The system responds to the lower standard of proof by including within its purview cases where the evidence of SBS/AHT is tenuous and, sometimes, questionable at the outset, particularly cases where there are multiple witnesses to an accidental fall or where multiple subspecialists have identified a preexisting medical condition. The lower burden of proof can also cause confusion for the doctors rendering the abuse opinion, leading them to think that "reasonable degree of medical certainty" means something much more relaxed than the level of certainty they would be expected to profess in any other case. Indeed, sometimes doctors and attorneys working with them confuse the degree of certainty they should have with the "more likely than not" understanding of the "preponderance of the evidence" standard. Just because a case can be brought into the system based on evidence that could never support a criminal conviction, however, does not mean that it should. The diminished burden of proof in child protection proceedings means that the rate of error is elevated and the damage caused by an erroneous finding of SBS/AHT is significant and lasting. In practice, the "preponderance" standard must be applied strictly and meaningfully in order to protect children and parents from destructive proceedings based on an under-supported claim of SBS/AHT, particularly when alternative nonabuse explanations have been provided.
Reliance on Child Abuse Pediatricians
In 2010, the American Academy of Pediatrics certified a new subspecialty in child abuse pediatrics, which requires a fellowship with a teaching hospital's child protection unit and a separate board exam. While initially envisioned as providing increased public health support for child abuse assessment models, this new subspecialty has generated questions regarding the investigatory or prosecutorial role assumed by child abuse pediatricians in many jurisdictions; the qualifications of child abuse pediatricians to be rendering opinions in highly specialized fields of medicine such as forensic pathology, neurosurgery, radiology, retinal surgery, and orthopedics; and the nature of "child abuse" as a medical diagnosis given the legal conclusions embedded within such an opinion. See George J. Barry & Diane L. Redleaf, Medical Ethics Concerns in Physical Child Abuse Investigations: A Critical Perspective (2014).
Child protection investigators are explicitly trained by their agencies to defer to the opinions of the child abuse pediatricians rather than sort out competing opinions of various specialists. Complicating matters is the reluctance of other treating subspecialists to vocalize any disagreement they may have with a child abuse pediatrician's opinions, due either to an aversion to getting involved in controversial legal proceedings or to a presumption that the child abuse pediatrician is conducting a thorough differential diagnosis based on information not available to the subspecialist. Most concerning, however, is the readiness of judges in dependency courts to defer to whichever doctor has been denominated as the "child abuse expert" even when that doctor's expertise as to the medical conditions at issue is objectively less than the expertise of testifying subspecialists. Take, for example, the case of In re Yohan K., 993 N.E.2d 877 (Ill. App. Ct. 2013):
Following a precipitous birth, Teresa G. and K.S. observed their newborn son, Yohan, to exhibit strange behaviors such as yelping spontaneously and staring into space. When he was approximately four weeks old, the concerned parents brought Yohan to see the pediatrician yet again and the pediatrician observed seizure activity. Yohan was brought to the hospital where he was found to have subdural and subarachnoid hematomas as well as bilateral retinal hemorrhages. It was also suspected, based on inconclusive skeletal imaging, that he had a fracture to his left knee despite exhibiting no clinical signs of having an injury to his knee. At trial, a pediatric radiologist/neuroradiologist testified that Yohan had both "benign enlargement of the subarachnoid spaces," which would account for the intracranial and retinal findings, as well as congenital rickets, which had been misidentified as a fracture. A pediatric neurosurgeon concurred regarding the intracranial and retinal findings, while a pediatric orthopedist concurred regarding the misdiagnosis of a fracture. Despite this strong and undeniable evidence in favor of medical nonabuse explanations, the trial judge determined that because the state's child abuse pediatrician had explained it was "unlikely" that Yohan would have two rare medical conditions, the state had met its burden of proving that Yohan had been abused.
The Family Defense Center represented Yohan's parents on the appeal. In a precedent-setting opinion, the Illinois Appellate Court found that the parents had "been thrust into a nightmare by well-intentioned, but misguided doctors and child protection specialists" and that the trial court had erroneously rejected the medical explanations for the child's conditions. Yohan K., 993 N.E.2d at 879. Specifically, the appellate court found that the state's experts had "speculated and generalized about the possible mechanisms causing the injuries in areas outside of their expertise." Yohan K., 993 N.E.2d at 900. Without outstanding trial counsel (private attorney Ellen Domph, who had extensive experience in medically complex litigation), detailed briefing by our office, and, most importantly, a thoughtful appellate court panel willing to rigorously review the evidence, however, the family would have forever lived under a stigmatizing cloud of suspicion. As it was, the children were separated from their parents for 15 months, and the family lived under the cloud of the abuse finding for two years. The parents in the Yohan K. case were highly educated, had an extensive support system, and were able to access experienced counsel and doctors willing to testify on their behalves. In this case, criminal charges had never even been considered. The trial judge in the Yohan K. case, however, had mistakenly assigned to the child protection pediatrician a superior level of expertise and adopted her mistaken view that the rarity of multiple conditions made an abuse explanation more plausible. Indeed, the appellate court criticized the state's doctors for not engaging in a true differential diagnosis when evaluating the potential causes for Yohan's medical findings.
Child protection investigators may also be more inclined than law enforcement or prosecutors to defer to nonmedical conclusions of a child abuse pediatrician, such as determinations of a parent's credibility, speculations as to a parent's mental health, or the physician's own personal anecdotal experience with infants.
Three-month-old "Alison" was being cared for by multiple caretakers, including two nannies. While in the care of one of her nannies, she began experiencing seizure-like activity. The family brought her to the hospital where she was found to have bilateral subdural effusions, acute left-side subdural and subarachnoid hematomas, and retinal hemorrhaging. Despite the parents describing three incidents of accidental trauma and the presentation of a preexisting medical condition, the child abuse pediatrician held fast to her conclusion that abuse had occurred. After the parents appealed the administrative "abuse" finding that had been registered against them, however, they learned that the child abuse pediatrician based her abuse diagnosis on the father's having reportedly failed two questions on a polygraph test and that it was this credibility judgment—not a medical opinion—that formed the basis for the doctor's abuse conclusion.
These cases demonstrate how crucial it is for child welfare attorneys to scrutinize the reasoning underlying the opinions of the involved doctors, including the child abuse pediatrician, and to discount those opinions if they exceed the scope of the doctor's expertise or if they are based on anecdotal and/or nonscientific suppositions.
Nonoffending Parents Are Unfairly Swept into the Court's Jurisdiction
"Stephanie," a high school teacher, was out running errands with her four-year-old daughter while her husband, "Patrick," was home with their three-month-old son, "David." While under Patrick's care, David suddenly began breathing erratically and showing signs of a seizure. Patrick administered efforts to resuscitate David, including "shaking" him several times trying to get his attention, and called 911. David was brought to the hospital and found to have subdural hematomas and retinal hemorrhages. Although some of the treating doctors initially believed David to have "new" as well as "old" hematomas, it was quickly established that the fluid collections diagnostic for "benign enlargement of the subarachnoid spaces" had been misidentified as "old blood." No criminal charges were ever filed, but David and his sister were taken into state custody and child protection proceedings ensued.
The state's case quickly settled on Patrick as the presumed abuser, based on a faulty presumption that David must have experienced physical trauma immediately prior to exhibiting symptoms. Even though the state never suspected Stephanie of having caused the abuse, under the statutory framework governing dependency proceedings in Illinois, she was still subject to the jurisdiction of the court due to a petition having been filed as to her children. Moreover, the state argued that Stephanie's insistence that there was a medical explanation for David's findings meant that she would be unable to protect her children from harm. In order to persuade the state and the court that she should be permitted to have her children returned to her, Stephanie was compelled to file for divorce. Ultimately, due to the weaknesses in the medical claims of SBS/AHT and the existence of a preexisting medical condition, the state agreed to withdraw its petition after a period of supervision, but the destruction of the family unit had already occurred.
Unlike a criminal case, where the prosecution must prove beyond a reasonable doubt that the accused person committed the alleged abuse, child protection cases in most jurisdictions proceed without requiring determinations as to "who" caused the abuse. Rather, the initial focus of adjudication in dependency proceedings is the status of the child as abused and not the fault of a specific parent. See, e.g., 705 Ill. Comp. Stat. 405/2-2, 2-3; In re Arthur H., 819 N.E.2d 734 (Ill. 2004). As a result of these arguably unconstitutional statutory frameworks—which run afoul of Supreme Court holdings prohibiting the state from interfering with a parent's fundamental rights without findings as to that parent's unfitness, see Troxel v. Granville, 530 U.S. 57 (2000); Stanley v. Illinois, 405 U.S. 645 (1972)—the nonoffending parent's relationship with his or her children is not adequately protected. This is especially true in cases of SBS/AHT, where the involved entities, sometimes even the judge, are often unduly prejudiced by the severity of the accusations being made.
Permanent State Action Without "Post-Conviction"-Type Recourse
Any child protection case that enters the dependency courts is vulnerable to an eventual permanent termination of parental rights. This has often been analogized as the family law equivalent to the death penalty. Although parents can pursue direct appeals from orders terminating their parental rights, the reviewing courts give great deference to the trial courts, often in the interest of permanency for the children. Moreover, once the direct appeal options have been exhausted, there generally is no possibility of a future remedy based on new evidence (such as updates in the scientific and medical understanding of SBS/AHT) or ineffective assistance of counsel. This is unlike criminal proceedings, where post-conviction proceedings are common. The results can be tragic, enshrining medical and legal mistakes (of the sort that have been corrected in post-conviction cases) in life-altering permanent severance of the legal relationships between parent and child.
When Aidden was two months old, his mother, Emily, and his father brought him to the hospital with respiratory distress. Scans revealed the presence of both "old" and "new" subdural hematomas. There were no retinal hemorrhages, but there was some alleged bruising on Aidden's right cheek, sternum, and diaper area. Both parents were charged with Class X felony aggravated battery of a child. Simultaneously, the state took protective custody of Aidden and initiated a case in dependency court. While the criminal proceedings were still pending, the child protection court entered a finding that Aidden had been abused.
Approximately one year later, a forensic pathologist issued a report showing that Aidden had a rapidly increasing head circumference following birth consistent with "benign enlargement of the subarachnoid spaces," making him more susceptible to intracranial bleeding. Additionally, the "old" blood could be attributed to birth trauma. The expert also stated that some of the bruising was more consistent with diaper rash, not contusions. Following this report, the prosecutor dismissed all criminal charges against Emily and reduced the father's charge to a Class 4 felony reckless conduct based on the father having reported that he fell and tripped on top of Aidden while running up a flight of stairs. One year after the criminal charges were dropped, the dependency court terminated Emily's parental rights on the grounds that she had failed to make reasonable progress in services.
Because the child protection court had already made the determination that Aidden was abused, and because the parents did not appeal that finding immediately after it was entered, they were stuck with that determination for the remainder of the case despite the subsequent issuance of an expert report that convinced the prosecutor to virtually dismiss all criminal charges. In the end, that determination came back to haunt them when the state sought to terminate their parental rights. Notably, the suspicion of abuse was always focused on the father, due to Aidden being with him at the time he became symptomatic and an early claim that he admitted to shaking the baby on one occasion.
Emily appealed the termination orders and was unsuccessful in the appellate court. In re Aidden S., No. 2-14-0085 (Ill. App. Ct. May 16, 2014). Emily came to the Family Defense Center only after the appellate court had affirmed the trial court's ruling of termination. Due to the blatant injustice of her case, our office partnered with the law firm of Stinson Leonard Street to request that the Illinois Supreme Court accept the case for review. The record revealed that during the entire time her son was in foster care, Emily never missed a visit with him and attended almost all of his doctors' appointments, efforts that required her to travel hundreds of miles each time. A licensed clinical social worker retained by the state conducted a parenting capacity assessment and, finding Emily to be an exceptional mother, recommended that Aidden be returned to her. Nonetheless, Emily was found to be unfit because she didn't follow up on referrals for counseling and she wouldn't discuss what she could have done to protect her son from his injuries (despite the evidence that there were medical explanations for his findings).
Unfortunately, the Illinois Supreme Court denied our request to appeal the termination, and Aidden and his mother have been left without any recourse to correct the injustice perpetrated on them. This predicament was caused in no short measure by the failure of the trial attorneys to aggressively question the underlying SBS/AHT claim in the child protection proceedings, particularly when the report of the forensic pathologist was issued. Our review of the child protection record revealed not a single mention of the expert report that had vanquished the criminal case. This single omission is, by itself, a grave miscarriage of justice.
Child welfare lawyers and judges need to be aware that SBS/AHT diagnoses may be flawed. Failure to critically review such diagnoses in a timely and rigorous manner in dependency cases, termination of parental rights cases, and registry appeals can result in traumatic and unfair determinations that permanently affect children and families' lives. Advocates for families need to learn from advocates in criminal cases to question the evidence against parents and challenge unscientific conclusions. Fortunately, as the case law and science continue to develop, and as child welfare attorneys become better educated about SBS/AHT, innocent families can experience increased justice and exoneration in the child welfare system as well as in the criminal courts.
Keywords: litigation, children's rights, shaken baby syndrome, abusive head trauma, child abuse, child protection proceedings, preponderance of the evidence