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In the Matter of M.V.

December 7, 2011

IN THE MATTER OF M.V., ALLEGED ABUSED/NEGLECTED CHILD.


APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE GENE PAUL KEAN Retired Circuit Judge

The opinion of the court was delivered by: Zinter, Justice

CONSIDERED ON BRIEFS ON OCTOBER 03, 2011

[¶1.] A one-month old child was taken to the hospital in critical condition after the child's father called emergency services. The father was caring for the child while the child's mother was at work. Doctors determined that the child's injuries were consistent with non-accidental trauma, and they reported the case as potential child abuse. The State took custody of the child and started an abuse and neglect proceeding. Months later, the child was adjudicated abused or neglected. Following a period of State supervision, the child was returned to his mother and the case was dismissed. Mother appeals multiple rulings made during the abuse and neglect proceeding. We affirm.

Facts and Procedural History

[¶2.] M.V. (Child) was born in August 2008. Other than a bit of jaundice and an eye infection that cleared up, Child was a healthy baby. Y.Z. (Mother) stayed home with Child for the first month, but returned to work part-time as a research physician at Sanford Hospital. At that point, U.V. (Father), who was a stay-at-home father, became Child's primary caretaker while Mother worked.

[¶3.] On October 1, 2008, Father pointed out red marks on Child. He called them allergies, but Mother told Father the marks were bruises. Father thought he was possibly holding Child too tight or that the bruises occurred when he was holding Child while working on his computer.

[¶4.] The next day, Mother fed Child in the morning, went to work as usual, and came home for lunch around 11:15 a.m. Around 2 p.m., Mother left Child in Father's care and returned to work. At that point Child had suffered no injuries.

[¶5.] Later that afternoon, Father called for emergency services, and law enforcement responded. The officers found Father holding Child, who was gasping for air. Mother was not present. An officer placed Child on the ground while continuing to support Child's head, neck, and back to ensure that Child continued to breathe. Within a short time, an ambulance arrived. An oxygen mask was placed on Child's face. An officer carried Child to the ambulance where Child was placed on a cot.

[¶6.] On the way to the hospital, Child was intubated by ambulance technicians. Child was turned over to medical personnel for treatment at the hospital. Dr. Robert Cheatham observed bruising in the pattern of a human hand. Dr. Cheatham also observed subdural and subarachnoid hemorrhages, massive cerebral edema, and respiratory failure, all of which was noted as being consistent with Child having been shaken. Dr. Nancy Free observed Child's injuries and concluded that Child sustained non-accidental trauma. From observing Child's CAT scans and history, Dr. Susan Duffek, a pediatric radiologist, also determined that Child suffered from non-accidental trauma.

[¶7.] Later that night, officers were called back to the hospital. The officer that had earlier accompanied Child to the hospital now observed injuries that she had not seen before: multiple bruises and a swollen-shut right eye. Dr. Free reported that the Child's injuries were consistent with child abuse. Dr. Free opined that the pattern bruising on Child's extremities was consistent with a circumferential squeeze by an adult hand and that the linear bruising on Child's shoulder was consistent with Child being pushed or thrown against an object or something being pulled against Child's skin. Dr. Free also noted bruises on Child's face. Considering the bruising, subdural bleeding and extensive brain swelling, Dr. Free diagnosed non-accidental, abusive head trauma. Dr. Free noted that Child was only one month old and was not capable of moving and bruising himself in the manner observed.*fn1

[¶8.] Child was taken into temporary custody by the State. In October 2008, the State filed a petition alleging that Child was an abused or neglected child.

In early 2009, Child was placed with Mother for trial reunification. An adjudicatory hearing was held in April 2009. Mother argued that Child was not abused or neglected. In the alternative, Mother argued that the court should make separate findings for Mother and Father, and the findings should indicate that Mother was not at fault. The circuit court found Child to be abused or neglected under SDCL 26-8A-2 subsection (1) (a child subject to mistreatment or abuse) and subsection (3) (a child whose environment is injurious to the child's welfare) but not under subsection (5) (a child who is without proper care through no fault of the child's parent).*fn2

[¶9.] The court dismissed the abuse and neglect action as to Mother on May 5, 2010, and restored legal custody to Mother subject to a six-month protective period of supervision. The court did not dismiss the case as to Father because criminal charges of aggravated assault and abuse or cruelty to a minor were still pending. On July 30, 2010, Father was acquitted of the criminal charges. A month later, the State moved to dismiss the abuse and neglect action because the State had provided all the assistance it could and it had no further reason to stay involved. The court subsequently dismissed the abuse and neglect action as to Father.

[ΒΆ10.] Mother raises six issues on appeal. Three of those issues do not merit discussion. We ...


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