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In re A.B.


July 1, 2010


Appeals from the Superior Court of the District of Columbia (Nos. NEG-599-05, NEG-600-05, NEG-601-05). (Hon. Laura A. Cordero, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued May 21, 2009

Before RUIZ, GLICKMAN, and THOMPSON, Associate Judges.

Appellant N.B. asks us to reverse the adjudication of her three young daughters as neglected children within the meaning of D.C. Code § 16-2301 (9) (2001 & 2009 Supp.). The trial court found that three-month-old Ma.F. had suffered physical abuse, which her parents, N.B. and M.F., had failed to make reasonable efforts to prevent; that five-year-old A.B. and seven-year-old N.D., who lived in the same household as Ma.F., were in imminent danger of being physically abused themselves; and that all three children were without proper parental care or control. N.B.'s challenge to these findings raises two principal questions.*fn1

The first is whether the trial court erred in allowing Dr. Allison Jackson, a pediatrician and expert on child abuse, to render the opinion that Ma.F.'s multiple fractures were caused by blunt force trauma rather than a genetic bone disorder known as osteogenesis imperfecta, where Dr. Jackson based her opinion, in part, on the findings of a colleague in a medical specialty (pediatric genetics) outside her own area of expertise. We conclude the court properly admitted Dr. Jackson's testimony under the general rule that an expert witness is permitted to rely on the opinion of another expert in formulating her own opinion when such reliance is reasonable in the expert's particular field. Although the rule is not a license for one expert merely to parrot the conclusion of another, that is not what occurred in this case.

The second question is whether there was sufficient evidence for the trial court to conclude that A.B. and N.D. were neglected children. The court so found in consideration of the pattern of physical abuse inflicted on their infant sibling, Ma.F., with whom they resided; A.B.'s report that her mother and Ma.F.'s father had hit her with a ruler and a belt; and the adverse inference the court drew upon finding that Ma.F.'s father testified falsely at trial when he denied having corporally punished the girls. We conclude that the evidence before the court was insufficient to support the adjudications of neglect as to A.B. and N.D., in essence because it did not show that the children had been, or were in imminent danger of being, abused within the meaning of the neglect statute.

I. Background

Ma.F. was three months old when her parents, N.B. and M.F., brought her to Children's National Medical Center ("Children's Hospital") in the middle of the night because she was in discomfort, her feet were swollen, and the skin on her feet was peeling. X-rays of the feet revealed fractures of her left first metatarsal (the "big toe") and the ends of her tibias near her ankles. The tibia fractures were of the "corner" or "bucket handle" type, where a sliver of the bone shears off from the main shaft -- or, to put it another way, the plane of the fracture is closer to being parallel to the length of the bone than it is to being transverse. A follow-up full skeletal survey, which xrayed all the bones in Ma.F.'s body from multiple views, disclosed a number of additional fractures in her arms and legs, including corner fractures of her left and right tibias and her left femur near the knee, a corner fracture of her right humerus near the elbow, two fractures of her left radius (one near the wrist and the other near the elbow), and a fracture of her left ulna. The fractures were in various stages of healing, implying they had been sustained at different times.

Ma.F. was treated at Children's Hospital by emergency room staff and by the orthopedic surgeon on call. In light of the troubling x-ray results, Ma.F. also was evaluated by Dr. Allison Jackson, the Medical Director of the Child and Adolescent Protection Center at the hospital. Dr. Jackson concluded that Ma.F.'s injuries were likely caused by inflicted blunt force trauma, and she filed a report of suspected abuse with the D.C. Child and Family Services Agency (CFSA). In addition, she recommended that a pediatric geneticist be consulted. The purpose of this consultation was to rule out the alternative diagnostic possibility -- one the radiologist rejected and Dr. Jackson considered unlikely, based on Ma.F.'s x-rays and other clinical evidence -- that the fractures could be attributed to osteogenesis imperfecta, a congenital disorder causing weak and brittle bones. The geneticist subsequently reported that the DNA test results for that disorder were negative, confirming Dr. Jackson's and the radiologist's judgment. Over the objections of Ma.F.'s parents, Dr. Jackson testified to her diagnostic conclusions in the trial proceedings below.*fn2

N.B. and M.F. met with a social worker from CFSA's Child Protection Services Unit the day after Dr. Jackson filed her report. Neither parent was able to account for Ma.F.'s injuries (an inability that continued through the ensuing proceedings in Superior Court*fn3 ). Perceiving that Ma.F. and her sisters, A.B. and N.D., would all be at continuing risk of physical abuse if they remained in N.B. and M.F.'s custody, the CFSA social worker had the three girls removed and placed in shelter care.*fn4 The District filed neglect petitions as to each girl.*fn5 A.B. and N.D. thereafter were examined by a pediatrician, Dr. Betina Franceschini, and A.B. was evaluated by a psychologist, Dr. Jennifer Carter. Along with Dr. Jackson, Dr. Franceschini and Dr. Carter would provide critical testimony when the neglect petitions came on for trial.*fn6

II. Dr. Jackson's Testimony Regarding Ma.F.'s Injuries

N.B. frames her challenge to the admission of Dr. Jackson's opinion testimony regarding the cause of Ma.F.'s injuries as an attack on the doctor's qualifications. To be qualified as an expert, a witness must have "sufficient skill, knowledge, or experience" in the relevant area that her opinion testimony will "probably aid" the trier of fact to arrive at the truth.*fn7 The determination that a proposed expert has the necessary qualifications is committed to the trial court's sound discretion.*fn8

In the present case, the court qualified Dr. Jackson as an expert not only in the area of pediatrics generally, but also in the field of child abuse and neglect specifically. There is no serious dispute about the soundness of that ruling. Dr. Jackson was a board-certified pediatrician with extensive training and experience in the diagnosis, care, and treatment of abused children. At Children's Hospital, she served as medical director of the department charged with evaluating and treating children suspected of having been maltreated. She had taught medical students and other professionals about child abuse and neglect, and she was a member of the child abuse and neglect section of the American Academy of Pediatrics and of specialty organizations such as the American Professional Society on Abused Children. Dr. Jackson had evaluated hundreds of children for physical abuse -- a large percentage of whom, like Ma.F., presented with bone fractures.

N.B. contends, however, that Dr. Jackson was unqualified to interpret Ma.F.'s blood test results and exclude the genetic disorder osteogenesis imperfecta ("O.I.") as the cause of her bone fractures. Only a geneticist, N.B. argues, would have been qualified to render such an expert judgment. Dr. Jackson admittedly was not a specialist in genetics or in the treatment of the congenital bone disorder. N.B. asserts that Dr. Jackson impermissibly parroted the geneticist's conclusion in rendering her own medical opinion that Ma.F.'s fractures were caused by blunt force trauma and not O.I.

We disagree. N.B. understates Dr. Jackson's expertise and overstates the extent to which Dr. Jackson relied on the geneticist's finding. Dr. Jackson testified without contradiction that she was capable of recognizing osteogenesis imperfecta herself by virtue of her pediatric training and her experience. Indeed, she testified that any pediatrician would have been able to do so. Dr. Jackson had cared for other patients with the disorder and had diagnosed O.I. or offered it as a differential diagnosis in other cases in which the condition later was confirmed. She was familiar with the clinical signs of O.I., which include abnormal bone mineralization and fragility, misshapen bones and abnormal healing of older fractures, so-called "wormian" bones in the skull (small plates in between the cranial bones), and a bluish tinge to the whites of the eyes. When Dr. Jackson examined Ma.F. and reviewed her x-rays and laboratory test results at Children's Hospital, she observed none of those signs. Dr. Jackson agreed that a particularly mild form of O.I. might not manifest such obvious symptoms, but, as she explained in her testimony, the sheer number of fractures Ma.F. had sustained made the theoretical possibility of mild O.I. implausible. The fact that Ma.F.'s fractures healed and no new fractures occurred in the two-month period following her placement in shelter care*fn9 was further evidence that the fractures were not due to a congenital bone disorder. Rather, Dr. Jackson explained, the fractures were of a particular type known to be caused by pulling, twisting, or tugging of an infant's extremities. (Other possible explanations, such as a traumatic childbirth, were ruled out for various reasons we need not go into here.) Consequently, though Dr. Jackson included O.I. as a differential diagnosis and requested a genetic consultation to exclude it definitively (in part because she had been unable to obtain a family history from the parents), she considered it unlikely.*fn10 And while she cited the negative blood test and geneticist's report in support of her opinion, she testified that they were not "significant" or "important" factors in her diagnosis.

We are satisfied that neither Dr. Jackson's lack of specialization in genetics (or in bone disorders) nor her partial reliance on another expert's finding was disqualifying. A physician offering expert testimony need not be "a specialist in the particular field of which [s]he speaks,"*fn11 provided she is qualified to speak to the particular question at issue.*fn12 Dr. Jackson was qualified by her training and experience to diagnose O.I. or its absence based on her clinical examination of the patient and her review of the x-rays and hospital lab tests. Her lack of expertise in the causes and treatment of the disorder and the reliability of the blood test for the condition did not render her incompetent to give her diagnosis.

As to Dr. Jackson's partial reliance on a colleague's expertise, "[m]edical professionals have long been expected to rely on the opinions of other medical professionals in forming their opinions."*fn13 This court has adopted Federal Rule of Evidence 703,*fn14 which permits an expert witness to base her opinion on information that is otherwise inadmissible in evidence, including the out-of-court opinion of another expert, so long as that information is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject."*fn15 The

Rule was "designed to broaden the basis for expert opinions . . . and to bring the judicial practice into line with the practice of the experts themselves when not in court."*fn16 The drafters of Rule 703 expressly contemplated that it would permit a physician expert to rely on "reports and opinions from nurses, technicians and other doctors" in formulating her opinion.*fn17 This is so even if those reports and opinions concern matters outside the testifying physician's realm of expertise. "[I]t is common in technical fields for an expert to base an opinion in part on what a different expert believes on the basis of expert knowledge not possessed by the first expert; and it is apparent from the wording of Rule 703 that there is no general requirement that the other expert testify as well."*fn18

To be sure,"[a] scientist, however well credentialed he may be, is not permitted to be the [mere] mouthpiece of a scientist in a different specialty."*fn19 Where there exists a serious question about "the soundness of the underlying expert judgment" that the testifying expert is unequipped to address, the author of that judgment must be called to testify in support of it; otherwise, if the testifying expert lacks "an adequate foundation" for her opinion apart from the judgment of the other expert, the testifying expert's opinion must be struck.*fn20 Likewise, if it is shown that the underlying expert judgment is "so lacking in probative force and reliability that no reasonable expert" could rely on it, an opinion that rests "entirely" upon such a flawed foundation should be excluded.*fn21 "In most cases," however, "objections to the reliability of out-of-court material relied upon by [an expert witness] will be treated as affecting only the weight, and not the admissibility, of the evidence."*fn22

"[A] properly qualified expert is assumed to have the necessary skill to evaluate any second-hand information and to give it only such probative force as the circumstances warrant. Accordingly, the court should accord an expert wide latitude in choosing the sources on which to base his or her opinion. . . . [T]he judge may not substitute his or her judgment for the expert's as to what data are sufficiently reliable, provided that such reliance falls within the broad bounds of reasonableness."*fn23

The opponent remains free to impeach the basis of the testifying expert's opinion through cross-examination and the presentation of a counter-expert.

In this case, there is no evidence suggesting that it was unreasonable for Dr. Jackson to rely on the geneticist's report of Ma.F.'s blood test result. It was precisely the kind of routine medical consultation that physicians normally request and rely on, and there is no reason to think the consultation was performed inappropriately in this instance. All the evidence corroborated the geneticist's report; there is no evidence Ma.F. actually had O.I. or any other bone disorder. And, in rendering her opinion, Dr. Jackson did not "parrot" the geneticist's conclusion; she had her own independently sufficient reasons for her diagnosis. Although she also cited the blood test, her opinion did not rest on it. In short, Dr. Jackson was not a mere "mouthpiece" for an expert in another specialty, and the trial court did not abuse its discretion in permitting her to testify regarding her diagnosis of Ma.F.'s injuries without requiring the government to call the geneticist.*fn24

Accordingly, we affirm the trial court's judgment that Ma.F. was a neglected child.

III. The Sufficiency of the Evidence that A.B. and N.D. Were Neglected Children

N.B.'s second challenge is to the legal sufficiency of the evidence to support the neglect adjudications of five-year-old A.B. and seven-year-old N.D.*fn25 Our review of such a challenge is deferential: "[t]his court will reverse a finding of neglect only if it is plainly wrong or without evidence to support it,"*fn26 and only after viewing the evidence in the light most favorable to the court's ruling.*fn27 Nonetheless, we are compelled to agree with N.B. that the government did not present evidence sufficient to prove that her two older children were neglected.

Neither A.B. nor N.D. testified at trial, and the government introduced no direct evidence or expert witness testimony that either girl ever had been abused, injured, or otherwise neglected by (or through the fault of) their parents. The physical examinations performed on the girls at CFSA's request by Dr. Franceschini, a pediatrician, were, at best, inconclusive. A.B. had no observable injuries or any other physical sign that she had been mistreated. On the older girl, Dr. Franceschini observed "a one-centimeter, old, healing scar" on her right arm and a more recent two-centimeter "red linear abrasion" on her forehead. N.D. denied ever having been hit by an adult and told the pediatrician that the abrasion on her forehead had happened "on the playground a long time ago" -- an explanation Dr. Franceschini deemed plausible. Dr. Franceschini found no reason to conclude that N.D. had been abused or neglected.

The sole evidence that either girl ever had been maltreated was provided in the brief reports of what A.B. had said to Dr. Franceschini and to Dr. Carter, the psychologist who evaluated her.*fn28

When Dr. Franceschini asked A.B. whether she ever had been hit by an adult, A.B. responded that her mother (appellant N.B.) "sometimes hit her with a ruler or a belt." Dr. Franceschini learned nothing further from A.B. on that score. Dr. Carter testified that she too questioned A.B. about her parents' disciplinary practices. Regarding her mother, A.B. "was very quiet and non-responsive." When Dr. Carter asked about her father, though, A.B. stated, "[D]addy whips me with a belt when I do something wrong." Dr. Carter also described an exercise in which she had A.B. finish incomplete sentences with the first thing that came to her mind. To a sentence beginning with the words "I wish my dad," A.B. added the words "would not hit." Dr. Carter confirmed that A.B. was referring to M.F. (and not to her biological father, S.D.). In reporting A.B.'s statements, Dr. Carter expressed no opinion as to whether they were true, or whether the child had been mistreated.*fn29

N.B. did not testify at trial. M.F., who did take the witness stand, acknowledged having disciplined A.B. and N.D. when they misbehaved, but claimed he did so only by depriving them of things they wanted, or by sending them to their rooms.

Crediting A.B.'s statements to Dr. Franceschini and Dr. Carter, the court found that N.B. and M.F. had subjected each of the older girls to "excessive corporal punishment" by hitting them with a belt and (in the mother's case) a ruler. The court found that M.F. had lied on the witness stand when he denied using corporal punishment, and it inferred from his "false exculpatory statements a consciousness of guilt, from which guilt itself could be inferred."*fn30

The court found that A.B. and N.D. were neglected children under two statutory criteria: they were "without proper parental care and control,"*fn31 and they were "in imminent danger of abuse and another child living in the same household . . . ha[d] been abused."*fn32 The rationale for each of those determinations was identical: considering the "pattern" of abuse inflicted on Ma.F.*fn33 in conjunction with the history of parental use of excessive corporal punishment in disciplining the older girls, the court concluded that A.B. and N.D. were at risk of future physical abuse themselves.*fn34

In our view, the court's rationale was flawed. The finding that Ma.F. had endured a pattern of physical abuse for which her parents bore responsibility was supported by the evidence. By itself, however, that finding was not enough to support findings of neglect with respect to the older girls. "[T]here is no per se rule allowing a child to be adjudicated neglected . . . simply because a different child in the same home has been abused. . . . A finding of imminent danger [of being abused] does not necessarily follow from the fact that a sibling has been abused."*fn35 Proof that parents have mistreated an infant does not demonstrate that the older children in the same household are similarly endangered. "[A]n individualized finding of imminent danger must be made for each child."*fn36

Of course, the trial court here relied on its additional finding that, by hitting them with a belt and a ruler, the parents had employed excessive corporal punishment in disciplining A.B. and N.D. It is difficult to sustain this finding as to N.D. She did not complain of such mistreatment,*fn37 and A.B. did not say her parents had hit her older sister. While the court was entitled to draw an adverse inference from the falsity of M.F.'s testimony, we doubt that inference was sufficient by itself to support a finding that M.F. had employed excessive corporal punishment against N.D. The only evidence contradicting M.F.'s testimony about discipline came from A.B.'s statements.

Although it is a close question, we do think the court fairly could find by the requisite preponderance of the evidence that M.F. (if not also the children's mother) had used excessive corporal punishment in disciplining A.B.*fn38 Corporal punishment is excessive when it goes beyond discipline "reasonable in manner and moderate in degree and otherwise does not constitute cruelty."*fn39 The use of an object such as a belt is not necessarily excessive,*fn40 but it certainly is a "relevant" consideration.*fn41 Despite the lack of contextual information, A.B.'s statements to Dr. Carter supported the inference that M.F. employed the belt against her harshly and with some regularity when she was disobedient. At five years of age, she was young to be "whipped." No extenuating circumstances were shown. And the court could infer their absence, and a lack of moderation and reasonableness, from the falsity of M.F.'s denial that he had hit A.B. at all.

Nonetheless, to be upheld, "a finding of neglect must embody a correct understanding of the relevant statutory terms."*fn42 That corporal punishment exceeds the scope of "legitimate parental 'discipline'" does not mean it meets the statutory definition of "abuse,"*fn43 or that the child is in imminent danger of being abused. The legislature has decided that even excessive physical punishment does not amount to "abuse" unless it entails the infliction of either "physical or mental injury."*fn44 As to the former, the term "physical injury" is defined to mean "bodily harm greater than transient pain or minor temporary marks."*fn45 The evidence did not show that A.B. (or N.D.) ever was threatened with such physical injury by her parents' practice of corporal punishment, or that either child faced the prospect of such injury in the future. While we should not be understood as condoning the use of physical discipline, hitting a child with a belt (or a ruler) might well cause no more than "transient pain or minor temporary marks," depending on how it is done.*fn46 So far as appears, neither A.B. nor N.D. had endured worse than that. Their infant sister had, of course -- much worse. But Ma.F.'s physical mistreatment was not attributed to the same sort of discipline imposed on her older (and not so vulnerable) sisters, nor to the same causes, and in the absence of some such linkage, there was no ground to find that it portended comparable mistreatment in store for them.

The trial court did not find, and the government cites no record evidence showing, that A.B. or N.D. had suffered or was threatened with "mental injury," defined as "harm to a child's psychological or intellectual functioning, which may be exhibited by severe anxiety, depression, withdrawal, or outwardly aggressive behavior, or a combination of those behaviors, and which may be demonstrated by a change in behavior, emotional response, or cognition."*fn47 It is noteworthy that Dr. Carter expressed no such opinion in the case of A.B.*fn48 And the government presented no evidence that A.B. or N.D. had witnessed the abuse of their infant sister.*fn49

Accordingly, for insufficiency of proof, we reverse the trial court's judgment that A.B. and N.D. were neglected children.

IV. Conclusion

For the aforesaid reasons, the judgment in No. 06-FS-1012 (the neglect adjudication of Ma.F.) is affirmed. The judgments in Nos. 06-FS-1010 and 06-FS-1011 (the neglect adjudications of A.B. and N.D.) are reversed.

So ordered.

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