Social workers lose children in broken bone case

February 27, 2005 permalink

The following case is typical of broken bone cases. Fixcas has met three sets of parents in these cases, all married. In contrast to other parents involved in child protection, who often have problems with drug or alcohol abuse, or petty crimes, the parents in broken bone cases are straight arrows. In one case, a hospital diagnosed a broken bone, then changed its diagnosis later, a revision that did nothing to redeem the family. In another, a baby had one broken bone, and the cause was never determined because Children's Aid sequestered both the baby and medical records, precluding use of medical evidence to determine the cause. In a third case, a family had three kids, two unharmed, the third, a newborn, with two to three dozen fractures. In this obvious case of osteogenesis imperfecta, all three children became crown wards.

The one atypical part of this article is that father Brig Dunsmore was himself a social worker. A second article a year and a half later shows the futility of trying to reform the system through litigation.

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February 27, 2005

When suspicion split up their family, the Dunsmores fought back

The state broke up their family. Reunited a year later, they overturned the judge's ruling - a rare victory. Now, the Utah Supreme Court weighs how courts should be.

By Brooke Adams, The Salt Lake Tribune

Brig and Lisa Dunsmore read to their 2-year-old son and 4-year-old daughter in their Sugar House home. They briefly lost custody of their kids when abuse of the boy was alleged, but won them back. (Paul Fraughton/The Salt Lake Tribune )

He fussed the way little babies often do, perhaps because he was teething or had an ear infection. But when he began favoring his leg, his parents thought something might be seriously wrong.

After all, he'd had a flu shot a day earlier.

Brig Dunsmore bundled up his then 7-month-old son and took him to Primary Children's Medical Center in Salt Lake City.

So began a protracted legal struggle that would tear the Dunsmore family apart for nearly a year. It has triggered a rare reversal of a juvenile court abuse ruling and a potentially precedent-setting case now before the Utah Supreme Court.

At Primary, doctors discovered the baby's leg was broken and, when Brig couldn't explain how it happened, suspected he caused the injury. Suspicion grew when a later test showed what appeared to be a skull fracture.

Just like that, Brig Dunsmore, then a child welfare caseworker, found himself in the position of many of his clients: squaring off against a system that didn't believe him.

Looking back, the Dunsmores always begin the story on Nov. 13, 2002, the day Lisa Dunsmore and her mother were in the kitchen fixing lunch.

Lisa's mother placed the baby - names are not being used to make the children less identifiable - in a walker layered with blankets to prop him upright. The boy's leg twisted behind him and the grandmother pulled his foot down and through the leg hole as she pushed on his knee.

The baby shrieked.

 

 

"That is the only time I've ever heard him scream in a shrill scream," said Lisa, 31, a former nursery school teacher who became a stay-home mom in 2000 when the couple adopted the first of two children. "I went over, looked at him, calmed him down. He consoled quickly."

Read the Ruling

Opinion in Utah Court of Appeals Case No. 20030750-CA

Their son has always been an easy baby, despite being born prematurely at 28 weeks. Lisa attributed his fussiness over the next few days to an earache and began giving him regular doses of Tylenol. She took him to the pediatrician on Nov. 15 to have his ears checked and get him a flu shot.

On Saturday, Lisa and her mother went shopping while Brig willingly babysat. His job at the Utah Division of Child and Family Services had kept him away from home that week until after the kids were in bed.

That afternoon, Brig says he noticed the baby favoring his left leg. When Lisa got home, she observed it, too. They called a pediatric clinic and were reassured the shot was probably bothering the baby. Wrapped tightly in his blankets, though, he slept through the night.

On Sunday, the baby was still favoring the leg. Brig took him to be checked at Primary, while Lisa stayed home with their toddler.

The first doctor who examined the baby didn't see anything wrong. There were, as the appellate court would later point out, no welts, bruises or swelling.

The baby was "cheerful, interactive, alert," the appellate court would add, though he fussed when a second doctor vigorously moved his leg.

An X-ray solved the mystery: the baby's left femur was fractured just above the knee. Staff told Brig the baby would be kept overnight and, standard procedure, DCFS notified. Over the next 24 hours, the couple racked their memories for any event that might explain the break. "One thing that came to mind was that shrill scream in the walker," Lisa said, who then described the incident to Brig.

After a day of tests, Primary pediatrician Bruce Herman, with the Center for Safe and Healthy Families, asked the couple to explain the injury. They couldn't, but offered theories - perhaps their daughter had fallen on him, maybe it was the walker incident.

The couple says Herman then demonstrated his own theory: Sometime Saturday the baby's leg had been bent behind him and then slammed into a wall or floor, causing the bone to break completely and displace slightly.

Brig was livid at the accusation. Lisa cried. Herman told them they could not take the baby home, adding as he left the room, "I think he has a skull fracture," Brig recalls.

The baby was in the hospital three days and then released to his grandparents.

"It is such a feeling of powerlessness," said Brig, 31. "It was difficult for us to have a family, and in the blink of an eye these people were taking that from us."

By the time the trial began in March 2003, the Dunsmores' children - their daughter was considered a sibling at-risk - had been living with their grandparents for four months. The couple was allowed supervised visits. They had sold their condominium and moved in with Lisa's grandparents in order to hire a private attorney to represent them - a luxury most parents who wind up in juvenile court don't have. At work, Brig, who had been with the agency since 1999, was placed on administrative leave.

The trial was held on 13 days between March 21 and June 12. Through Herman and several colleagues, state attorneys told Juvenile Court Judge Olof A. Johansson the boy's leg had been bent back and then slammed into a hard surface.

Herman said he was "51/49 percent" sure his theory was right. The family's walker story was possible, but unlikely, he said. And there was no way Tylenol or tightly wrapping the baby masked pain for three days.

The parents, through a biomechanical engineer and pediatric orthopedist, argued the walker incident did explain the break. Also, as a premature baby, the child likely had weak bone structure, making him prone to fractures, a witness said.

The orthopedist said he had seen children "go days, even more than a week," with undetected fractures and use of Tylenol and the tight "burrito wrap" - an effective splint - increased odds the injury might be missed.

Philip Stanley, a pediatric radiologist at Children's Hospital, Los Angeles, testified the so-called skull fractures were sutures - still-forming skull coming together.

At various times, particularly early on, Lisa was told by the investigating caseworker and a Guardian ad Litem that if she left Brig or admitted he caused the injury, she could get the children back.

And as the trial proceeded, the couple says DCFS warned them time was running out; it was prepared to place the children, then still with grandparents, for adoption.

Johansson issued his decision in August: While the parents appeared loving, he found "clear and convincing" evidence that the injury was not an accident and had happened that Saturday while Brig babysat.

The judge said "unequivocal" testimony from Herman was persuasive, and he rejected both the "walker theory" and that "minimal doses of minor pain killers" masked the injury.

Brig, who had returned to work in March as a DCFS trainer, was told to resign or be fired from his job. He resigned; he found a new job in December as a support coordinator with the Division of Services for People with Disabilities.

In September 2003, after meeting all DCFS' requirements, custody of the children was returned to Lisa; restrictions for Brig were lifted two months later.

The Dunsmores believed the "clear and convincing evidence" standard had not been met and wanted Brig cleared. They sought review by the Utah Court of Appeals, which hears an average of 47 child welfare cases a year.

Since July 2000, the court has completely reversed decisions by juvenile judges only 12 times - as it did for the Dunsmores last July.

The appellate court found evidence presented at trial did not "clearly and convincingly" establish the cause of the injury or when it happened.

The three-judge panel flayed the case point-by-point (see box). They said the drawn-out trial might have made it difficult for the judge to recall the evidence. The judges noted Herman's "51/49 percentage" was "anything but unequivocal."

Also, one of Herman's colleagues gave a differing opinion as to how the fracture occurred and another thought the walker theory was possible, as did defense witnesses. Most significant, the court said, was the lack of any bruises or swelling that "almost always" accompany the sort of injury mechanism touted by the state.

The Attorney General's and Guardian ad Litem's offices have appealed this ruling to the Utah Supreme Court. They argue the appellate court failed to give deference to the juvenile court's findings and only looked at evidence favorable to the family.

Allowed to stand, the appellate court ruling might set a "dangerous precedent" for reviewing multi-day, fact-intensive trials and cases that rely on courtroom demonstrations, the state attorneys say. And it might require the state to establish how an injury was caused, not just that it wasn't accidental.

The Supreme Court has agreed to look at just one aspect of the case: Did the appellate court apply the correct standard of review in assessing the evidence?

Primary Children's declined to comment.

DCFS Director Richard Anderson agrees that "taken to the extreme," the appellate decision could make it "harder to prove abuse."

"The attorneys are saying, 'People might see it that way, so let's get a ruling on it,' " he said.

Whatever the Supreme Court rules will not affect the Dunsmore family, because DCFS has closed their case.

The couple says they are speaking out now in hopes the state and hospital will consider changes that give parents a better chance to defend themselves early on.

They suggest parents receive a "Miranda rights" statement when an investigation begins, and audio and/or video recordings be made and shared of all meetings at the hospital.

"I know a lot of good people who work in the AG's office, the Guardian ad Litem and DCFS," Brig said. "But it doesn't change the fact that they know at both ends of the spectrum they miss the boat a lot."

The family is, they said, still calculating the emotional toll of the past two years.

"What I'm finding out is it is something that stays with you," Lisa said. "It changes your whole life. I still have nightmares about it.

"Something is taken away from you. You lose a small piece of your soul."

Brig said the couple has changed the way they parent.

"All of a sudden we became hovering parents," he said. "We don't dare let them do anything because we are afraid they'll get hurt."

Source Salt Lake Tribune

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Article Last Updated: 09/21/2006 12:50:04 AM MDT

Justices send child abuse case back to appeals panel

Utah Supreme Court

By Kristen Stewart, The Salt Lake Tribune

Brig and Lisa Dunsmore dreamed Tuesday's ruling by the Utah Supreme Court would clear them of child abuse allegations and end an almost four-year showdown with the state.

Instead, the Dunsmores learned they will have to wait longer for a resolution, months or possibly years. The top court on Tuesday sent the Dunsmore case back to the Utah Court of Appeals for reconsideration but stopped short of suggesting its earlier decision in favor of the family was in error.

That, along with the prospect of reforming Utah's child welfare system, is what keeps the Dunsmores going.

"It would have been nice to have it done, but we're feeling pretty positive," Brig Dunsmore said. "We want the system to change, and we think the appellate court will uphold its earlier ruling."

The couple temporarily lost custody of their two children in November 2002 after child welfare caseworkers accused Brig Dunsmore of breaking his infant son's leg by smashing it against a hard surface. After a trial, complicated by the fact that Brig Dunsmore worked as a caseworker for Utah's Division of Child and Family Services (DCFS), a juvenile court judge held him responsible for the injury.

A three-judge panel of the Utah Court of Appeals reversed the judge's decision, ruling the state failed to prove its case.

The appeals panel said it had the power to decide there was insufficient evidence, even if it was "more probable than not" that disputed facts had been proved.

But Utah Supreme Court justices said the panel should have used a tougher standard: It should have focused on whether the judge's decision was "clearly erroneous."

An appellate court can only overturn a judge's findings that "offend the 'clear weight' of the evidence," the justices said.

They asked the appeals court to reconsider the case, using the new standard. That request does not suggest that the panel's ultimate ruling - that there was insufficient evidence against Brig Dunsmore - also was flawed, the justices noted.

"To the contrary, the record as a whole may well leave the Court of Appeals with a firm conviction that the juvenile court was mistaken in concluding that the state had established each of the allegations . . . by clear and convincing evidence," they wrote.

The state presented "no evidence" of how the alleged abuse occurred, the justices said.

Absent any other explanation, the juvenile court presumed Brig Dunsmore to be responsible under a section of Utah law that has since been repealed.

Sara Pfrommer, the Dunsmores' attorney, took heart in Tuesday's ruling, noting, "That's a pretty clear statement that they think the juvenile court was wrong."

But lawyers for DCFS downplayed the court's commentary, declaring victory.

"We got what we wanted," said Utah Solicitor General Annina Mitchell. "The appellate court doesn't get to reverse trial judges' findings of fact just because the appellate court looks at the transcript of a trial and decides, 'We would have reached a different conclusion.' "

kstewart@sltrib.com

Source Salt Lake Tribune