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In re Madlyn B.

Supreme Court of Rhode Island

June 28, 2018

In re Madlyn B. In re Luke B.

          Washington County Nos. 15-271-2, 15-271-3 Family Court Stephen J. Capineri Associate Justice

          For Petitioner: Karen A. Clark Department of Children Youth and Families Jennifer J. Kelly Court Appointed Special Advocate.

          For Respondent: Barbara A. Barrow, Esq. Kathleen M. Connell, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Paul A. Suttell Chief Justice.

         A skeletal survey revealed that Luke, a four-month-old infant, had suffered fourteen fractures, for which there was no obvious explanation. Luke's mother, Kimberly Warrington (Kimberly or mother), appeals from a Family Court decree declaring that she neglected and abused her two children, Madlyn and Luke.[1] For the reasons set forth in this opinion, we affirm the decree of the Family Court.


         Facts and Travel


         The Department of Children, Youth and Families' Case

         Because Kimberly's primary appellate argument challenges the sufficiency of the evidence, we summarize the relevant testimony elicited at trial in some detail.

         Luke was born on October 22, 2014; Madlyn was almost three years old at the time. Luke and Madlyn were patients at Kingstown Pediatrics, a medical practice that included Michelle McCloskey, M.D. Luke was seen by members of Kingstown Pediatrics on October 28, November 4, and November 10, 2014, and each appointment resulted in normal evaluations. At the time of trial, Dr. McCloskey had been in the Kingstown Pediatrics practice for approximately two-and-a-half years. By virtue of her care of Luke and Madlyn, Dr. McCloskey was aware of allegations of domestic violence concerning Kimberly and the children's father, Andrew (Andrew or father). Doctor McCloskey described Kimberly as "respectful and cooperative" and "a very caring mother." Between October 2014 and the end of March 2015, Luke was brought to Kingstown Pediatrics for a total of nine visits. On November 21, 2014, Luke was examined by Dr. McCloskey's colleague for his one-month well-check visit. Luke's medical records from that visit reflect that Kimberly reported that Luke was "very fussy" and the records denote, under the assessment section, "[f]ussy infant syndrome." Luke's fifth doctor's visit took place on December 12, and Dr. McCloskey later testified that no signs of distress were observed at that time.

         Kimberly returned to work, after a maternity leave, in late December 2014. Kimberly had been employed at Portsmouth High School in Portsmouth, Rhode Island, for five years as a "special educator," leading a behavior program for students who are at risk. She had earned a bachelor's degree in education from Rhode Island College and completed some master's courses at the University of Rhode Island and Rhode Island College. Kimberly routinely worked Monday through Friday from approximately 7:15 a.m. to 2:15 p.m. and arrived home between 3:15 p.m. and 5:30 p.m. each afternoon. For the previous twelve years, she had also coached softball. During the winter season, in the evenings or on weekends, she gave pitching lessons and conducted clinics; and, in the spring, she coached high school softball. Kimberly indicated that she did not go out at night on a regular basis after Luke was born and that she would drink alcohol "[v]ery rarely."

         When Kimberly was at work, her mother and father took care of Luke either at Kimberly's home or at their home. Kimberly's mother, Joan Warrington (Mrs. Warrington), typically watched Luke from 6:30 a.m. until 3 p.m., unless Kimberly had afternoon meetings, in which case it might be later. Madlyn was in daycare at North Kingstown Daycare. When Kimberly's parents watched Luke at their home, her father, Lee Warrington (Mr. Warrington), was present and would be left alone with Luke only for short periods of time if Mrs. Warrington had an errand to run. Kimberly noted that two exceptions to this schedule were the last week of December, for Christmas break, and February vacation week, February 16 to 20, 2015, when Kimberly stayed with Luke because she was home from work. Kimberly was also off from work on Martin Luther King Day and January 26, when Madlyn was home sick.

         Kimberly was dating a man named Mike Buffrey between January and March 2015, but she testified that it was not serious and that he would not stay at her house.[2] One time, Buffrey watched Luke for approximately thirty minutes while Kimberly ran an errand; when she returned home, Luke "appeared fine," as he remained sleeping in his car seat. When Kimberly coached softball, which would last approximately one hour, she would sometimes bring Madlyn and Luke with her, and Julie Culhane, her friend and neighbor, would watch the children while she coached. Kimberly also testified that, during February vacation, "maybe somebody from the YMCA" watched Luke, but she noted that she could not recall.[3] In addition, Kimberly's sister, Kathryn Warrington, babysat Luke and Madlyn one night when Kimberly attended a birthday party. During her testimony, when Kimberly was asked if she was Luke's primary caregiver, she responded in the affirmative and stated "I am his mom." She also indicated that, in addition to Mrs. Warrington, Andrew, Andrew's mother and her partner, and Andrew's sister would also care for Luke.

         On December 22, 2014, Dr. McCloskey examined Luke for his two-month well-check visit. It was then that Kimberly first noticed a mark on Luke. At that time, she did not know it was a bruise, describing it as a "discoloration," and pointed it out to Dr. McCloskey. Kimberly recalled that Dr. McCloskey was not sure what the mark was, but that the doctor conjectured that it was some discoloration or possibly the "start of a birthmark." Then, on January 30, 2015, Luke was brought to the Kingstown Pediatrics due to a cough, and was diagnosed with bronchiolitis and wheezing and prescribed treatment with a nebulizer. Kimberly again pointed out the same bruise to a nurse practitioner because it was still "yellowing." Kimberly testified that the nurse was similarly unsure as to what the mark was and told her "to just keep an eye on it."

         Kimberly testified that, in mid-February, she called Kingstown Pediatrics to ask if she could give Luke rice cereal because she thought that he wanted to eat more. She was told to wait until the four-month well-check visit so that the doctor could examine Luke and make a determination at that time. On February 27, 2015, Dr. McCloskey examined Luke for his four-month well-check visit; and Kimberly, Mrs. Warrington, and Madlyn were present. During the visit, Kimberly alerted Dr. McCloskey to two bruises that she had recently noticed: one on Luke's right buttock and one on his chest. When Dr. McCloskey examined Luke's buttock, his skin appeared "normal"; and the mark on his chest was "a very small fading yellow discoloration that looked at the end of a bruising process." Doctor McCloskey informed Kimberly that, because the bruise was barely noticeable, "[she] didn't know for sure if it was a resolving bruise at the very end of the healing process or another different type of skin lesion." According to Dr. McCloskey, Kimberly told her that "[s]he thought that [the bruises] could have been due to the car seat straps being too tight." Doctor McCloskey testified, however, that she had never seen an infant of four months suffer bruising from car seat straps. Doctor McCloskey further testified that, during that visit, she did not observe any other bruising or concerning marks on Luke's skin. Kimberly testified that Luke had "a little mark on his bottom" and "tiny little marks on his side[, ]" but she explained that she did not bring them to anyone's attention because "it didn't seem like anyone was overly concerned and he never was in any apparent distress, and so [she] thought [Luke] bruise[d] easily * * *."

         Doctor McCloskey was concerned at that four-month visit because Luke's weight had decreased to "just above" the tenth percentile, down from the fiftieth percentile at his two-month well-check visit. Doctor McCloskey testified that a drop in percentile is not uncommon, but she noted that it is cause for concern when an infant's growth "decreased by two large standard[-]deviation percentile points[.]" During that visit, Dr. McCloskey discussed Luke's eating and drinking with Kimberly and recommended that she increase his intake. She characterized Kimberly's response to that conversation as "[a]ppropriate."

         Ultimately, Dr. McCloskey recommended that Luke have bloodwork done because his bruising was abnormal and unexplained. Mrs. Warrington testified that the bloodwork was requested to determine the cause of Luke's bruising, and recalled that a possible explanation for his bruising was low iron levels. Mrs. Warrington further recalled that Dr. McCloskey did not seem concerned about Luke's bruises. Doctor McCloskey testified that Kimberly "seemed open to taking him [to get bloodwork done] and told [Dr. McCloskey] that she would take him the next day." Doctor McCloskey also advised Kimberly to call the office if she noticed any new bruising on Luke.

         On Monday, March 2, 2015, Kimberly called Kingstown Pediatrics and informed an office secretary that Mrs. Warrington, who had been babysitting Luke, noticed a thumb-sized bruise on Luke's chest. Mrs. Warrington testified that the bruises were not there on Friday, but appeared on Monday and were "blackish/grayish" in color. According to Dr. McCloskey, she received the message that Kimberly had called, and she returned Kimberly's call and left a voice mail indicating her concern regarding the new bruise and asked Kimberly to bring Luke for the bloodwork and back to her office for an examination. Doctor McCloskey testified that Kimberly did not return her phone call that day, nor on the following day, so she called Kimberly again and left a message repeating her concerns and requests that the bloodwork be completed. By the next day, Dr. McCloskey still had not received a return call from Kimberly.

         On Thursday, March 5, 2015, Dr. McCloskey again called Kimberly, and Kimberly answered. Doctor McCloskey testified that in her practice she had never had to call a parent three times without receiving a response. Doctor McCloskey relayed her concerns about Luke and her requests for bloodwork and to examine Luke. When Dr. McCloskey mentioned Kimberly's lack of response to her phone calls, she testified that Kimberly replied, "Well, I am a busy woman." Doctor McCloskey explained that at that point in time "[she] was very concerned about Luke and [that she] was further concerned that it didn't seem like mom was too concerned." That same day, Kimberly had the bloodwork completed and brought Luke to Kingstown Pediatrics for an examination. Kimberly testified that she never received any voice mails from Dr. McCloskey and noted that it was her understanding that she had two weeks to obtain the bloodwork.[4]

         Kimberly also did not recall Dr. McCloskey ever expressing any concern over Luke's bruising. Instead, she remembered Dr. McCloskey indicating that "[i]t could be something from like vitamins so let's just check it out first." She only recalled Dr. McCloskey telling her that "[e]verything looks really great but I am concerned about the weight[.]" Mrs. Warrington similarly recalled that Dr. McCloskey did not indicate that the bloodwork was urgent. She explained that, if Dr. McCloskey had expressed urgency, she would have taken Luke to undergo bloodwork because Kimberly had a work commitment.

         When Dr. McCloskey examined Luke on March 5, 2015, she found three new bruises, yellow-green in color, "one on each side of his upper chest and one on his abdomen." Upon observing this bruising, Dr. McCloskey recommended that Luke be taken to Hasbro Children's Hospital. According to Dr. McCloskey, Kimberly initially asked if the hospital visit could be postponed until the results of the bloodwork were obtained. Doctor McCloskey testified that she was "too concerned" because "this [was] not normal for his age and he need[ed] to go to the children's hospital right now." Doctor McCloskey testified that Kimberly was worried about driving to the hospital because of the snowy road conditions. Therefore, Dr. McCloskey called an ambulance for Kimberly and Luke "[b]ecause [she] felt very strongly that he needed to go to the hospital for further examination." Doctor McCloskey also examined Madlyn and found no markings. After Kimberly and Luke left in the ambulance for the hospital, Dr. McCloskey called the Department of Children, Youth and Families (DCYF) twenty-four-hour hot line and reported that Luke had unexplained bruising. Overall, Dr. McCloskey affirmed that during all her visits with Luke, Kimberly was cooperative and that Luke appeared to be a "happy baby" who showed no signs of distress.

         Luke was admitted through the emergency department at Hasbro Children's Hospital, where he was seen by Dana Kaplan, M.D., a fellow in child-abuse pediatrics. Doctor Kaplan interviewed Kimberly as part of her standard procedure, but she noted that it was difficult to extract information from Kimberly regarding the chronological history of Luke's bruises because of her "emotional state." She described Kimberly as "emotionally labile" because "at one moment she was crying, visibly anxious, shaking and at another moment she would be calm and collected and be able to answer a question." She further testified that "[Kimberly] was tangential at times which mean[t] [the doctor] would ask her a question and she would go off in a different direction and [the doctor] would [frequently] have to redirect her." Kimberly informed Dr. Kaplan that Luke had bruising within the past few days and that she had brought Luke to the pediatrician. Then, Kimberly corrected her statement and noted that the bruises were noticed approximately six to eight weeks ago. Doctor Kaplan observed bruises on Luke's right chest, his left rib cage, and his abdomen. During Dr. Kaplan's physical examination of Luke, she noticed a bump on Luke's upper left extremity "that shouldn't have been there[.]" She ordered a skeletal x-ray to gather more information. Kimberly and Luke stayed in the hospital overnight awaiting the skeletal survey, which was set to take place the following day.

         Doctor Kaplan recalled during her testimony that she was concerned about Luke based on Kimberly's statement that she had noticed the bruises six to eight weeks prior. Doctor Kaplan testified that bruises do not take six to eight weeks to heal. Additionally, Dr. Kaplan was concerned because, in reviewing Luke's medical records for his pediatrician visit on February 27, 2015, there was no record of an abdominal bruise; yet, on March 5, he presented with the new abdominal bruise. Kimberly informed Dr. Kaplan that she did not know how the bruising occurred, but after being questioned further, Kimberly posited that because of the location of the bruises, the bruising could have been caused by the car seat straps. Doctor Kaplan investigated the car seat theory by placing Luke in the car seat, but she determined that a car seat buckle would not create "enough of a force * * * to cause bruising in an infant."

         According to Dr. Kaplan, Kimberly explained that she "was very overwhelmed," "[t]here was a lot of stress going on in her life," and she and her husband were undergoing a divorce that included "a significant custody battle[.]" Kimberly further explained to Dr. Kaplan that "she felt overwhelmed with both kids and with having to go back to work." Kimberly also indicated that she was the primary caregiver and, in addition, noted that her mother also took care of the children. Kimberly further reported that Luke had short visits with his father in January and March.

         At the conclusion of the interview, Kimberly asked Dr. Kaplan, "Am I reacting normal to this?" Doctor Kaplan testified that she did not know how to respond to Kimberly's question. Doctor Kaplan "found it concerning that [Kimberly's] question was not about [Luke's] welfare[, ] but [instead] about how she was acting and [Dr. Kaplan's] perception of her." Doctor Kaplan concluded that Kimberly should participate in an inpatient psychiatric-hospital program, which is "an intensive program for women specifically who are postpartum [and] having issues with depression and anxiety."

         Joshua Cottle, a DCYF child protective investigator (CPI), also interviewed Kimberly, Mr. and Mrs. Warrington, Andrew's mother and her partner, and Andrew's sister; he also examined Luke and visually assessed Madlyn at the hospital. Kimberly indicated to Cottle that Luke's bruising could have been caused by the car seat or could have occurred when Luke was picked up. Kimberly described Luke as "a very easy baby to care for, that he consistently [went] to bed on a schedule and that he [ate] consistently on a schedule as well." She did not indicate that Luke was ever fussy or in pain. Kimberly denied abusing Luke. On March 7, 2015, Cottle also met with Andrew.

         According to Dr. Kaplan, the results of the skeletal survey showed that Luke had suffered eleven rib fractures, a fracture in his left arm of the radius and the ulna, and a "classic metaphyseal lesion of the right lower extremity." Three of his rib fractures were close to the spine, and the other rib fractures were either on his side or near the front of his rib cage. Doctor Kaplan testified that bruising is "generally apart from the fractures * * * for a variety of reasons." In addition, she noted that bruising in a four-month-old infant is "incredibly" unusual because a baby does not "move enough to cause an injury[.]" Doctor Kaplan opined that Luke's rib fractures may have occurred by compression when Luke was being held. She further concluded that Luke's fractures "occurred outside the realm of normal caretaking."

         According to Dr. Kaplan, the fracture on Luke's lower extremity was located where his leg met his foot and appeared to be a chipped bone. Doctor Kaplan called that type of injury a "metaphyseal lesion." Doctor Kaplan explained that there are two mechanisms that can cause "classic metaphyseal lesions." The first is caused by "a very forceful pulling, twisting or wrenching of the extremity." The second is called "sheer injury" that occurs when "a baby and the[ir] legs [are] dangling and they are moving back and forth and the two parts of the bone are rubbing against each other," causing microfractures at the end of the bone. Doctor Kaplan next described the two fractures in Luke's left forearm. She characterized them as "oblique fractures," which occur "when there is * * * a force going straight up and down but also a bone in motion so there is some motion to the bone to cause that particular type of fracture, not a full[-]on twist but some motion of the bone."

         In examining the x-rays, Dr. Kaplan concluded that Luke's fractures were healing and she estimated that they were more than ten days old. She further testified that the fractures "probably" occurred within the past two months, but she noted that she could not provide an exact time frame. She further indicated that an estimation that they occurred in the past three months, on the other hand, "would seem a bit on the longer side." When asked if she could "say with a reasonable degree of medical certainty whether all fourteen fractures occurred at the same time[, ]" Dr. Kaplan replied that she "couldn't say that they all occurred at the same time." She explained that, approximately two weeks following the fractures, a callus, or new bone, would have started to form and would have begun to stabilize the fractures. She noted that, during the two weeks following the fractures and before the callus formed, Luke would have experienced significant pain and the injuries would have been swollen. Doctor Kaplan further explained that, during the two-week window, "significant" pain should have been apparent when placing Luke in a Onesie, for example, because his fractures were not stabilized.[5] She postulated that "every time the baby were to breathe, it may have been painful because [he would have been] pressing against those fractures and causing pressure[.]" Doctor Kaplan opined that a caretaker who lived with the child should have noticed that Luke was in pain during that two-week healing period.

         Doctor Kaplan noted that the results of the bloodwork ordered by Dr. McCloskey were normal and only indicated that Luke had a "slightly low" vitamin D level. She explained that babies who are deficient in vitamin D can show signs of bones that are not mineralized; however, she determined that Luke's bones were "normally mineralized" and, thus, concluded that his vitamin D deficiency would not have caused the fourteen fractures. Luke's other markers for bone mineralization, liver function, and noncontrast head CT were all normal. In addition, he was tested by a geneticist for osteogenesis imperfecta, a rare metabolic bone condition, and for rickets, both of ...

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