sctimes.com, July 20, 2008

Bich Thuan Nguyen and Anh Van Duong regularly visit their sons’ headstones in Calvary Cemetery, as they did here Thursday. After Anthony’s death was ruled a homicide and Andy was miscarried, their third son was removed from their care soon after his birth. (Kimm Anderson, kanderson@stcloudtimes.com)

Couple in shadow of suspicion, death

Parents fight to get 3rd boy back

By David Unze, dunze@stcloudtimes.com

Editor’s note: Interviews of Anh Van Duong and Bich Thuan Nguyen were conducted through interpreter Lana Nguyen, who is court-certified to interpret Vietnamese.

Fighting for the South Vietnamese Army against the communists and spending almost four years in confinement because of it gave Anh Van Duong an appreciation for the freedom offered in the United States.

His first stop after immigrating to America was Texas. The lure of steady jobs for him and his new wife attracted him to St. Cloud in 1996. As the lone male in his Buddhist family, he felt a heavy burden to carry on the family legacy by having a son.

His wife has carried three sons, but it’s unlikely the one living son will carry on the family name.

The couple’s first son, Anthony, died at 9 months old on Jan. 12, 2001, during surgery at St. Cloud Hospital to repair head trauma. The death was ruled a homicide by the medical examiner, creating a cloud of suspicion that still hangs over Duong and his wife, Bich Thuan Nguyen.

A miscarriage of their second child, Andy, was followed by the Feb. 6, 2007, birth of David, who was removed from his parents’ care before they left St. Cloud Hospital after the delivery.

A Stearns County district court judge late last year terminated Duong and Nguyen’s parental rights to David, ruling that Anthony had suffered egregious harm while in their care, creating a potentially unsafe environment for David.

Duong and Nguyen know they are the only suspects in Anthony’s death. They staunchly deny causing any harm to Anthony. In their first public comments about the case, they equate their treatment in St. Cloud to what Anh experienced in Vietnam as a prisoner of war.

“When I made the decision to come here, my goal was to live in a free country in order for my kids to have a brighter future,” Duong said through an interpreter. “Now I regret it, because of the things that are happening to us. I no longer believe in justice.”

St. Cloud police and Stearns County prosecutors have no other suspects in the death of Anthony Duong. County Attorney Janelle Kendall said the criminal investigation into his death remains open and that Duong, Nguyen or both could be charged in the future.

“The fundamental point of Minnesota’s child protection system is to protect the best interests of the child. At the full public trial in this matter the state was required to prove, by clear and convincing evidence, that removal of the second child was necessary to protect him,” Kendall said.

Medical testimony on the cause and timing of the injuries that resulted in Anthony’s death was crucial, she said. And Judge Kris Davick-Halfen’s decision to terminate the couple’s parental rights showed that the evidence proved that termination was legally required to protect David, Kendall said.

The parents recently argued their case to the state Court of Appeals, hoping that panel of judges reverses Davick-Halfen’s decision and reunites them with their son. Until then, they see their son two hours a week during supervised visits.

“Without David, life is meaningless,” Nguyen said. “But even though we might not be able to have him, seeing him is enough. We still have hope to see him again and take care of him.”

Joy, devastation

The investigator was reading the newspaper during breakfast one morning in February 2007 when she recognized the names.

Bich Nguyen. Anh Duong.

A birth notice. A son.

One day later, Nguyen was eating lunch, 5-10 minutes away from taking David home from St. Cloud Hospital. Minutes earlier she had been told that a nurse was taking him for one last examination. The car seat awaiting him already was adjusted to fit his tiny frame.

That’s when St. Cloud police investigator Kathleen Bluhm walked into Nguyen’s room, accompanied by a Stearns County child protection worker. Nguyen knew Bluhm as the officer who investigated the death of her first son, Anthony.

“I panicked,” Nguyen said. “I sensed trouble was coming. I was terrified.”

She didn’t know it then, but she already had seen David without supervision for the last time. Bluhm, after reading the birth notice that morning, filed a report with county human services that initiated a maltreatment investigation. The investigation was based on the contention that Anthony’s death had created the potential for maltreatment of David.

The county removed David to emergency protective care pending child protection proceedings in court.

Duong and Nguyen were given a date to go to the county offices to see David on a supervised visit. Then they headed home, without the child they had just welcomed into the world.

“We were sad, devastated,” Nguyen said. “The nurse didn’t know what was going on. I was so exhausted that I couldn’t walk. I didn’t know what to do. My mind was empty.”

The court held an emergency protective hearing one week after David’s birth. There were interviews with county social workers and more court hearings.

While David remained in foster care, his parents believed they would get him back, but they weren’t sure how long it would be.

“We did not think we were being separated from David for that long because we hadn’t done anything,” Duong said.

Police and prosecutors disagree.

Medical evidence

Duong and Nguyen acknowledged they were Anthony’s only caregivers, and they didn’t provide any evidence that Anthony’s injuries could have happened while he was in someone else’s care.

However, they point to a car accident that happened three weeks before Anthony died as a possible cause for his injuries. And they told police the night Anthony died that he had also recently fallen backward while leaning against a couch as he was learning to walk. Both parents said he had hit the back of his head on the carpeted floor, and couldn’t recall seeing him fall and hit the front of his head.

Medical experts testified at a 10-day parental rights termination trial that the crash or fall couldn’t have caused the injuries to the front of Anthony’s skull that were seen during the autopsy.

Dr. Michael McGee, a medical examiner for Ramsey County, performed the autopsy and testified that the car crash could not have caused the fresh hemorrhage he found inside Anthony’s skull.

“It didn’t happen three weeks ago,” he said at trial, referring to the car crash three weeks before Anthony’s death. McGee also testified there was evidence of previous trauma to Anthony’s head that had healed, meaning there was one old injury and one fresh injury discovered during the autopsy.

The fresh injury had to have happened near the time Anthony died, he testified. And the car crash or a fall onto a carpeted floor couldn’t have caused the injuries listed in his autopsy report — a head contusion, a skull fracture, a subdural hematoma and hemorrhages in both retinas, McGee said.

“I do not believe that that story is sufficient to explain the injuries present on this child,” McGee testified. “I don’t think that’s an explanation. And to be perfectly candid, that’s what we told the cops.”

The crash in mid-December 2000 involved two vehicles hitting the one carrying Anthony. A large truck struck their car on the right rear side where Anthony was buckled into his car seat.

There were no visible injuries to Anthony after the crash. But he started to throw up and behave differently, his parents said. Duong and Nguyen said they were used to Vietnamese customs in which doctors are consulted only when injuries or symptoms are obvious. So they asked a friend, who told them Anthony’s behavior was normal.

Anthony had a 9-month well-baby checkup about a week before he died. The parents told the doctor about the crash, but neither mentioned that Anthony had sustained any injuries from it. Their doctor noted no health problems with Anthony.

The parents’ attorney, Cynthia Vermeulen, questioned whether McGee had come to his conclusions about the cause of Anthony’s death from police reports alone, information Vermeulen contended could have been incomplete or inaccurate.

Suspects

Nguyen and Duong were questioned by police the night Anthony died and were asked to come to the St. Cloud Police Department for another interview three days later. They didn’t know until they got there that they were suspects in his death, they said.

The interview lasted several hours, and neither was given a Miranda warning, Vermeulen said.

“Our intention was to fully cooperate with police to find out what happened,” Nguyen said. “But we didn’t know we were suspects. In our culture, I have never heard of parents doing such a thing to their child.”

After being accused of their son’s death, they started to “put the pieces together,” she said. “We only could relate it to the (car) accident.”

They think police made assumptions without knowing the truth and that accusations that they have changed their story about Anthony’s death are the result of poor interpretation of their answers during police questioning.

“I always wanted to tell the truth, but I don’t think they understood me,” Nguyen said.

In Vietnam, people fear the police, they said. They expected a different dynamic in America. Once they realized they were being questioned as the only suspects in Anthony’s death, they felt as fearful as they would in their homeland, they said.

“We absolutely had nothing to do with his death. We were so puzzled. We wanted to cooperate and find out what happened with our child’s death. But when they invited us to come to the (police department), they accused us of shaking our child,” Duong said. “It was my child. Why would I do such a thing?”

The St. Cloud Police Department had a Vietnamese native-speaking FBI special agent participate in the investigation for consultation and translation, Kendall said. The audiotapes of conversations with the parents were sent to FBI headquarters in Washington to ensure the accuracy of the interpretation, she said.

“Significant effort was taken to ensure that all information provided was accurate and complete,” Kendall said.

Rare case

Initiating a child-protection case on the basis of an allegation of past abuse when no charges were filed is rare, according to attorneys who handle child-protection cases. The most common scenario for filing a case based on past abuse or neglect is when the parent had drug problems that led to a previous termination case and then has another child. And those cases are a small number of the overall number of child-protection cases.

Stearns County Human Services did a sampling of child-protection cases from spring 2005 and found that 41 of the 56 cases they reviewed, or 73 percent, included parental chemical use or dependency.

There are no allegations against Nguyen and Duong regarding drug use or harmful conduct toward David.

Minnesota law says that, unless there is a compelling reason not to, the county should file a termination of parental rights petition once it makes a finding that there has been “egregious harm” to a sibling or another child in the care of the parents. The law doesn’t require proof of who committed the harm.

In her argument to the Court of Appeals, Vermeulen said that it’s not enough for Anthony to have experienced egregious harm in his parents’ care. There has to be evidence that one or both parents knew that egregious harm had occurred.

“I believe my clients and their infant son, David, have suffered a true injustice.” Vermeulen said during a recent interview. “There is no evidence that Bich or Anh knew that their son, Anthony, had head injuries ... (when) they called 911 at 11 p.m. on Jan. 11, 2001. There were no injuries observed on Anthony.”

Source: St Cloud Times