August 30, 2017 Articles

Combating Medical Experts in Abuse and Neglect Cases under the Juvenile Court Act

Child protection work is tough, frustrating, and not for most, but diligence can mean the difference between a child being reunited with family and a family ripped apart.

By Rachelle Hatcher and Richard E. Gutierrez

Imagine yourself a parent whose child has been seriously injured or is suffering from a medically complex condition. Your first thoughts, no doubt, turn to medical professionals and hospitals in your community, to any resource that might speed your child's recovery and rehabilitation. But spurred on by the sheer scope of reported abuse and maltreatment of children (see Angelo P. Giardino et al., "Child Abuse Pediatrics: New Specialty, Renewed Mission," 128 Pediatrics 156, 158 (2011)), as well as by media outrage over those cases (episodic and emotionally overblown though it might be (see id. at 157; Michael T. Flannery, "Munchausen Syndrome by Proxy: Broadening the Scope of Child Abuse," 28 U. Rich. L. Rev. 1175, 1178 fn. 15 (1994))), the professionals to whom you have turned may well view you first or, at the very least, in part as a suspect in your child's harm rather than a partner toward his or her recovery. If they ultimately find you culpable, moreover, it is not just the terrifying, but at least narratively familiar, world of criminal prosecution you may face. Instead, allegations of abuse or neglect may land you in the closed and confidential ambit of Child Protection Court, in a pinched and painfully one-sided battle against the state to regain custody of your son or daughter. See In re Nicholas K., 761 N.E.2d 352, 355–56 (Ill. App. Ct. 2d Dist. 2001).

Now imagine yourself an attorney called upon to represent a parent in abuse and neglect proceedings under the Juvenile Court Act. The allegations you must attack may sound in the language of criminal law, but the latter's attendant safeguards are all too often absent if you are tasked with defending a parent against, not incarceration, but the loss of the parent's children. Worse, you may ultimately square off against one of those aforementioned medical professionals: highly specialized and walled in against reproach with self-acclaim and statutory mandates as their mortar. The importance of deconstructing the defenses of these doctors (often calling themselves child abuse pediatricians) cannot be understated. And despite the procedural and practical difficulties of such an endeavor, the dedicated attorney need not be dissuaded. To that end, this article makes a humble introduction for such lawyers to the tactics and pitfalls (specific to the Juvenile Court Act and drawn generally from civil practice) of confronting child abuse pediatricians and giving parents the defense they deserve and the fighting chance at reunifying with their children they might otherwise be denied.

The Challenge: High Stakes, Minimal Protections, and Walloping CVs
Parents have a fundamental liberty interest in the care and custody of their children (Troxel v. Granville, 530 U.S. 57 (2000)), and the damaging effects of removing young children from the care of their parents have been extensively documented. See Donald N. Duquette & Ann M. Haralambie, Child Welfare Law & Practice: Representing Children, Parents, and State Agencies in Abuse, Neglect, and Dependency Cases 79 (2d ed. 2010) (collecting studies). But although the Juvenile Court Act recognizes these concerns and mandates significant efforts to expediently reunify families (705 Ill. Comp. Stat. 405/1-2(1); In re O.S., 848 N.E.2d 130, 138 (Ill. App. Ct. 3d Dist. 2006); In re D.F., 802 N.E.2d 800, 805–6 (Ill. 2003)), it also privileges the "best interests" of minors over the rights of parents (705 Ill. Comp. Stat. 405/1-2(3)(c)) and permits the state to take custody of a minor, albeit temporarily, upon a mere showing of "probable cause" and "immediate and urgent necessity" (705 Ill. Comp. Stat. 405/2-10(2)). In the blink of an eye, therefore, parents may find themselves bereft of their children based on nothing more than the conclusory, uncorroborated, and hearsay-ridden testimony of a single investigator from the Department of Children and Family Services (DCFS). See In re I.H., 939 N.E.2d 375 (Ill. 2010) (refusing to apply evidentiary rules from elsewhere in the Juvenile Court Act to initial temporary custody hearings).

Nor do parents fare much better during adjudicatory hearings under the act, when the state must actually prove its allegations of abuse or neglect. 705 Ill. Comp. Stat. 405/2-18(1), 2-21(1). Such proceedings are civil in nature, meaning that (1) the state need only satisfy a preponderance of the evidence standard; (2) the state may force parents to testify as adverse witnesses; and (3) if parents choose to invoke their right against self-incrimination, they risk a negative inference being drawn against them. See id.; People v. Davis, 298 N.E.2d 350, 353 (Ill. App. Ct. 1st Dist. 1973); People v. Houar, 850 N.E.2d 327, 334 (Ill. App. Ct. 2d Dist. 2006). Moreover, although the corresponding rules of evidence for civil proceedings technically apply, they are relaxed. For example, the hearsay statements of minors and character evidence in the form of prior reports of abuse are admissible. 705 Ill. Comp. Stat. 2-18(3), (4)(b), (c). Finally, findings of abuse or neglect go to the child, so you may not prevail even if you can prove the parent you represent did not perpetrate the injuries or other harm suffered by his or her child. In re Arthur H., 819 N.E.2d 734, 748 (Ill. 2004).

As if all that is not enough, a significant investigatory apparatus exists to provide the state with the proof it requires, and so we come full circle back to those child abuse pediatricians. Although it is DCFS that is charged with investigating suspected abuse and neglect of minors, the department is mandated (as are the courts, for that matter) to obtain medical consultations to supplement its work. See 325 Ill. Comp. Stat. 5/7.1, 7.2, 7.3; 705 Ill. Comp. Stat. 405/2-19; Office of Inspector Gen. for DCFS, Report to the Governor and the General Assembly 148 (2008); Nat'l Ass'n of Children's Hosps. & Related Insts., Mandated Medical Expert Review for All Chicago Children 4 (2004).

And lying in wait to provide those consultations are a myriad of specialized physicians, hospital teams, and even consulting agencies. The American Board of Pediatrics actually offers a certification in child abuse pediatrics specifically (see Giardino, supra, at 156), and such physicians often organize themselves into child protective services teams at hospitals, teams that cooperate extensively with DCFS and the police and (as a matter of practice) ready and train themselves to provide courtroom testimony. See http://www.uchicagokidshospital.org/specialties/general-peds/child-protective-services/; Ray E. Helfer Society, John H. Stroger, Jr., Hospital of Cook County; Ann & Robert H. Lurie Children's Hospital of Chicago, Protective Services Team. Where hospitals cannot themselves support such a team of specialists, outside agencies often fill in the gaps. The Multidisciplinary Pediatric Education and Evaluation Consortium (MPEEC) was even mandated by Illinois to review all DCFS cases involving head injuries in minors under three years old, is partially funded by DCFS, and was given $3 million dollars by DCFS in 2001 to begin operations. See Giardino, supra, at 4–6; https://www.chicagocac.org/what-we-do/our-response-to-child-physical-abuse/; Nat'l Ass'n of Children's Hosps. & Related Insts., supra, at 4.

Not only are these physicians staunch and credentialed, their opinions are granted substantial weight: Some diagnoses are, by virtue of their very existence, treated as prima facie proof of abuse or neglect (705 Ill. Comp. Stat. 405/2-18(2)(a)–(c)), and courts are not even permitted to "second-guess" a physician's conclusions absent some other countervailing medical proof. In re Ashley K., 571 N.E.2d 905, 930 (Ill. App. Ct. 1st Dist. 1991). Although case law is silent on whether a doctor's testimony might countervail itself, practically speaking, parents' attorneys must be ready not only to tear down the state's expert but to raise up their own physician in opposition. But just as the civil standards work against parents and their attorneys, so too can the expansive tools of civil discovery become their swords against child abuse pediatricians. It is to those weapons and the battle to be waged on behalf of parents that this article now turns.

Pretrial Preparation: Building a Case and Making the State's Burden Robust
Seasoned civil attorneys will find discovery in child protection proceedings more treacherously lackadaisical and yet more limited than elsewhere in their practice. Upon counsel's first appearance for a parent, the state will tender minimal discovery (generally including only a packet produced by DCFS's investigator, which might or might not contain limited relevant medical records), pursuant to Circuit Court of Cook County Rule 19A.12. From there on, however, parents' attorneys should not expect the general panoply of civil discovery conferences and tools under Illinois Supreme Court Rule 201 to make any appearance. Instead, they will receive only piecemeal records from the state until the date of a case management conference when the state will simply hand over a list of potential witnesses and exhibits and tender the discovery order to the court. Cir. Ct. of Cook Cty., Child Prot. Div., Gen. Order 09-18. Moreover, given the Juvenile Court Act's requirement that adjudication commence within 90 days of custody being taken (705 Ill. Comp. Stat. 405/2-14)(b)), a trial date will likely be chosen on that conference date and come within such close proximity that counsel is practically speaking foreclosed from effectively conducting discovery of his or her own. To attack the state's case and build one of your own, you must therefore move quickly from the day you first appear to engage an available discovery apparatus that would otherwise be left rusting.

To begin, recall that the limited discovery the state will provide will not contain full medical records and that the notes of the DCFS investigator may not accurately reflect the opinions of medical personnel, police, or family members interviewed. Although much of what you must do to flesh out the gaps in what you have been tendered can occur without involvement of the state or the court, remember on your first appearance to obtain releases for the minor's records (see Stephen M. Dore, "Pretrial Issues," in Illinois Inst. for Continuing Legal Ed., Neglected, Abused, and Dependent Children, at 8.14, 8.18 (2007)) and to request permission to depose the state's expert—under at least Cook County's court rules, written discovery, but not depositions, may take place without leave of the court. Cir. Ct. of Cook Cty. R. 19A.12. With these permissions in place, you can and should engage in discovery as you otherwise would in civil practice (send interrogatories and requests to produce!), although always conscious of the more limited time frame in which to do so.

Your primary aims in discovery must be to uncover potentially exculpatory information and to develop evidence of bias (or incompetence) on the part of the state's expert. As to the first question, ensure that you obtain full records, via subpoena and without waiting for the state to supply them, from all medical providers. Even to a layperson, these records may reveal that a child's condition is due to an undiagnosed hereditary condition rather than abuse. See, e.g., James D. Anderst et al., "Evaluation for Bleeding Disorders in Suspected Child Abuse," 131 Pediatrics 1314 (2013) (noting failure to recognize blood disorders as cause for diffuse bruising in cases of suspected abuse). It is important to note that you may need multiple subpoenas sent to different departments of a provider to obtain both written records and original scans, so be proactive in contacting the hospital or clinic. You may also find that family members, if you take the time to interview them, were ignorant of the consequences of their previous statements to DCFS (and gave those statements without the benefit of an attorney). After a face-to-face, they may well take issue with the way DCFS has characterized their statements and recant or amend them in ways beneficial to your client. As to the question of bias and competence, consider subpoenaing any and all rules, procedures, guidelines, and manuals of the MPEEC or child protective services program you are dealing with, as you may find evidence of their close-knit relationship with DCFS and the state. And ensure that when you depose the state's expert, you inquire about the limits of his or her expertise. (Did the expert actually examine the child? Does the expert specialize in diagnosing the child's specific ailment?)

Finally, having your own medical expert to consult with, or a medical expert who can offer testimony at trial, is the best course if your resources allow for it. The expert's opinion can rebut that of the state's expert and actually allow the court to rule in your favor. Look first to see if any of the minor's treating physicians disagreed with the child abuse pediatrician; you may have your own built-in expert free of charge. And remember that if you must secure a consulting expert, it will be time-consuming and difficult to find one (not to mention supplying the consulting expert with the necessary medical records to review to ensure a well-developed opinion and to protect the expert from cross-examination). So begin your search early and diligently. Look for an expert who, as opposed to the child abuse pediatrician with more general expertise, specializes in diagnosing or treating the minor's specific ailment. For example, a physician specializing in pediatric orthopedics could credibly testify that a child abuse pediatrician has seen rib fractures where in fact none exist.

Guaranteeing Confrontation by Barring Expert Reports
All your expansive preparations and hard-fought discovery will be for naught, however, if the state simply avoids subjecting its expert to cross-examination. Given the state's minimal burden, and especially if you have failed to procure a contrary expert, the state may well be disposed to simply proceed by way of a trial on the papers, resting on the admission of medical records containing damning reports from a child abuse pediatrician under the act's business records exception. 705 Ill. Comp. Stat. 405/2-18(4)(a). True, you can call said expert as an adverse witness regardless of the state's desires, but you may find that expert reluctant to appear unless compelled and yourself butting up against that 90-day time frame to procure that witness. All the better then if you can force the state's hand by excluding the records from evidence. Consider a filing motion for summary judgment (see In re A.M.F., 726 N.E.2d 661, 665 (Ill. App. Ct. 5th Dist. 2000)) or, when dealing with often-maligned diagnoses like shaken baby syndrome (see Clyde Haberman, "Shaken Baby Syndrome: A Diagnosis That Divides the Medical World," N.Y. Times, Sept. 13, 2015), a motion under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

In that vein, the very provision that might permit the state to admit medical reports in lieu of live testimony can also be its undoing because that section, like other business records exceptions, requires that the records in question have been created in "the regular course of business." 705 Ill. Comp. Stat. 405/2-18(4)(a). Given the investigatory and ultimately court-testimony-focused approach of child abuse pediatricians, their consulting as opposed to treating role, and their intensive cooperation with DCFS, the police, and even state's attorneys, it should be easy to see how a parent's attorney could characterize the records they produce as having been created, not in the regular course of business, but in anticipation of litigation. And, in fact, the Third District of the Illinois Appellate Court in In re A.P. adopted that argument, barring from evidence records generated by physicians who did not treat the minor in question but were instead consulted by DCFS for an opinion with regard to abusive causation. See In re A.P., 965 N.E.2d 441 (Ill. App. Ct. 3d Dist. 2012). Given the brevity of its analysis, the A.P. decision offers little else beyond its holding. Lawyers can use case law interpreting other business records exceptions, specifically Illinois Supreme Court Rule 803(6) and Illinois Rule of Evidence 236(a). See In re A.B., 719 N.E.2d 348, 355 (Ill. App. Ct. 2d Dist. 1999).

A word of warning: The state will surely respond to any motion to exclude by noting the established practice of many hospitals to have minors evaluated by child abuse pediatricians, as well as the statutory mandates for medical evaluations in cases of suspected abuse. Fear not, however, because statutory mandates do not satisfy the reliability standards for business records (People v. Smith, 565 N.E.2d 900, 914–15 (Ill. 1990)), and the regular practice of hospitals will not eliminate arguments about the litigation orientation of the work of child abuse pediatricians (think, for example, of police departments whose arrest reports, though generated in the regular course of business, are necessarily created with litigation in mind). See id.; Bracey v. Herringa, 466 F.2d 702, 704 (7th Cir. 1972); United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957); Kociscak v. Kelly, 962 N.E.2d 1062, 1068 (Ill. App. Ct. 1st Dist. 2011). Last, do not neglect to remind the judge that relevant information will not be lost through the exclusion of such records; after all, you seek only that the state prove its case through the far more reliable approach of calling live witnesses subject to cross-examination.

Praxis in Play at Trial
When litigating a complex medical case, rebutting the opinion of the child abuse pediatrician, either through cross-examination or through your expert, must be the primary focus at trial. These doctors are extremely well trained witnesses and should not be underestimated. But they are also not infallible if you have properly prepared, as this article has laid out, to confront them.

We leave you then with just a few pointers on how to approach the day of trial: Question the pediatrician extensively about his or her lack of training and expertise in the specific areas of medicine relevant to the child's injuries. Also ask whether he or she consulted with any specialists before opining on the case. They often arrogantly deny the need to consult with specialists, and this point can expose weakness in their opinions while also enhancing your expert's qualifications. Object ferociously anytime they "parrot" or make comments beyond their area of expertise, as one expert cannot testify as to the opinions of another expert in a different specialty. See Citibank v. McGladrey & Pullen, LLP, 953 N.E.2d 38 (Ill. App. Ct. 1st Dist. 2011). Using information your expert has provided, ask if the pediatrician's opinion would change under certain circumstances; possibly the pediatrician will undo his or her own opinion this way. Another major point of questioning should bring out the ways in which the injuries could have been caused by accidental trauma. And, of course, you must cross-examine the pediatrician for bias with questions detailing the pediatrician's close relationships with DCFS, police, and the state's attorney's office.

Child protection work is tough, frustrating, and not for most, but diligence can mean the difference between a child being reunited with family and a family ripped apart.

Rachelle Hatcher and Richard E. Gutierrez – August 30, 2017