I share what I perceive to be Justice Stratton's unease regarding this case. Yes, the 10-month old infant had some injuries -- current and past subdural hematomas -- that were hard to explain. Mother says he fell out of the bed and once fell while walking. But the doctors think there might well be more to it than that, and suspect that the kid might be repeatedly beaten. So DCFS gets involved.
Ultimately, Mother, which previously had total custody of the kid (the father was out of the picture), gets 50/50 custody with Father, and things actually end up quite well. No more injuries. No more doctor visits. The child now has two parents involved in his life, so the matter ends up quite differently than a lot of these cases.
But Mother says that DCFS should never have gotten involved in the first place; that there was not sufficient evidence at all that the child's injuries were from beatings as opposed to something else.
I think that I probably read the facts in somewhat the same way that Justice Stratton does. It does seem like the evidence of abuse is fairly slim. There are no witnesses, of course, but that's fairly typical. And, unlike some other alleged abuse cases, Mother seems like she's acting exactly how you'd expect a parent to act when her kid is vomiting all the time. Concerned, etc. Plus there's nothing disastrous at the home or anything like that once DCFS inspects the house.
So, overall, were I the trial judge, I might well conclude that DCFS hadn't established abuse by a preponderance of the evidence, which is what the standard is here.
But here's the rub:
We're not the trial court.
The trial court was there. It heard all the evidence. It concluded that the infant's injuries were the result of abuse, not something else.
That factual finding is entitled to a fair degree of deference.
Is such a finding unreviewable? Of course not. Sometimes, yeah, there's insufficient evidence, and the Court of Appeal accordingly rightly reverses the decision below.
But here, the trial court's finding has a decent amount of common sense behind it. Summarized aptly by the trial court's statement that, in its view:
"[T]he court has [a] child that has had multiple subdural hematomas, multiple bleeds while in the custody of the Mother, and since the child has been in the custody of the Father [and] since they’ve been sharing custody and they have a parenting plan, there hasn’t been any new injuries. . . . Mother does not have a reasonable explanation, while this child is in her sole custody, continued to have brain bleeds, continued to have subdural hematomas with multiple falls. . . . It’s just an ongoing pattern. Mother does something. Child gets hurt. Mother doesn’t do something. Child gets hurt. Multiple falls and this child gets hurt.”
Yeah. That's tolerable circumstantial evidence that the injuries might be from abuse or neglect, no?
The Court of Appeal, by contrast, seizes on the evidence from the DCFS's doctors to hold that there's insufficient evidence. Justice Stratton summarizes this testimony as follows:
"Regarding G.Z.’s older/chronic subdural hematoma, Dr. Imagawa opined the MRI brain findings of increased subarachnoid space “may be related to [G.Z.’s] developmental course, or may be the sequelae of previous head trauma; however, based on the available information it is difficult to differentiate which is more likely.” (Italics added.) Dr. Imagawa opined it possible the MRI brain findings of increased subarachnoid space “might put [G.Z.] at some increased risk to sustain subdural hemorrhage from more minor trauma.” (Second italics added.) She concluded that non-accidental/inflicted trauma as the cause of G.Z.’s older subdural hematoma “cannot be excluded.”"
The Court of Appeal then says:
"Dr. Imagawa essentially concluded G.Z.’s subdural hematomas may or may not be caused by trauma, and that she cannot conclusively rule it out. It is not Mother’s burden however, to exclude non-accidental inflicted trauma as a possible cause of G.Z.’s injuries. It is DCFS’s burden to prove by a preponderance of the evidence that non-accidental trauma was the cause of injury. Because Dr. Imagawa could not categorically establish the cause of the older/chronic subdural hematoma, she stated she could not rule out nonaccidental trauma. Lack of conclusive evidence does not equate to evidence of neglect proven by a preponderance. The burden is not on Mother to disprove what DCFS had failed to prove in the first place."
Okay. I get all that.
But I think this may overstate a bit the DCFS's evidentiary burden, as well as the overall posture of the case. Yes, the DCFS's expert never said that G.Z.'s injuries were definitely caused by abuse. But she did opine "that intracranial injuries such as subdural hematomas “in otherwise healthy infants/children from causes other than trauma are rare.”" Now, "rare" definitely doesn't mean "never," and if this were a case in which abuse had to be proven beyond a reasonable doubt -- or by clear and convincing evidence -- I would agree that the testimony comes far short.
But it's not. It's a preponderance of the evidence test. And the trial court, which heard all the evidence, decided that the injuries were more likely than not from abuse. She was the one who heard the experts testify live. She's the one who heard Mother's testimony on the stand and was in the best position to judge her credibility, and how she looked when she attempted to explain how G.Z. allegedly fell from the bed onto pillows (which the doctors testified would not have caused the injuries that G.Z. suffered).
And then there's the matter of the circumstantial evidence. When the infant is in Mother's care, there are consistent and repeated injuries, of the same type. But those suddenly stop once the child is with Father or Mother's visits are supervised.
That's some evidence, no?
Maybe, were I the trial court, I'd have nonetheless come to the conclusion that, even though abuse might be the cause, it wasn't more likely than not.
But I could potentially see a trial court rationally coming to a contrary conclusion based on the entirety of the evidence below.
Even though an expert couldn't categorically rule out all alternative explanations for the child's injuries.
So do I see why the Court of Appeal comes out the way it does? Sure. I somewhat had the same reaction, to be honest. (At least given the evidence as presented in the opinion.)
But still. There's a standard of review. And that's the tough part for me here.
