CHILD ABUSE recent court wins

RECENT COURT WINS

Tampa Attorney Gets Parents' Four-month-old Child Back into Their Arms

State v. H; Judge Heinrich

FACTS: Our client, the mother of the four-month-old child at issue in this case, was a busy worker. The child's father had been out of the country for business for quite some time, so the mother asked her cousin to look out for the baby while she was at work. The two experienced several problems with the child for a little over a week leading up to the incident, such as the child not eating but a quarter of his usual amount of food, constant spitting up of the formula he did take in, and a complete failure to move his bowels. Upon taking the child to the doctor's office on multiple occasions, they were each assured that it was probably just a viral infection, and were given a soy-based formula to give the child. However, this formula did not seem to be doing the trick at all. About a week and a half into the issues the two were having, our client's cousin noticed be baby seemed a little bit limp when she picked him up. She then handed the baby to the mother, who started trying to get a response. They immediately took the baby to University Children's Hospital. When a CT scan was taken, the hospital was able to determine that the baby had a subdural hematoma, and immediately called police and Child Services.

Once the police and Child Service agents arrived, our client was interviewed first, while her cousin was interviewed shortly thereafter. In the meantime, the baby was taken to the Pediatric Intensive Care Unit for treatment. The crux of each interview was an attempt to find out what had been going on with the baby for the past couple of weeks. At this point, the cousin admits that any injuries may have been the result of having hit the baby on the back during a choking incident two weeks earlier, or when she accidentally hit the baby's head against the wall when carrying him. The interviewing agents of Child Services were convinced that the mother, the cousin, or both were lying to them due to some inconsistencies in their stories as they were told during the interview.

Despite having no clear evidence the baby had been abused to the point the injuries sustained could have been caused by such abuse, Child Services felt that there was simply no other way those injuries would have been there unless our client or her cousin had done something to cause them. Child Services then took custody of the baby while in the hospital, and was able to have an injunction granted that kept both the mother and cousin away from the baby while he was in the hospital. Child Services then put in motion a procedure to have the child taken away from his parents due to abuse.

DEFENSE: The court, upon request of the department, law enforcement, the state attorney, or other responsible person, or upon its own motion, has the authority to issue an injunction to prevent any act of child abuse or any unlawful sexual offense involving a child. This is exactly what Child Services did in our case. The mother and cousin were restrained from having any contact with the baby whatsoever while the child was in the hospital. Fortunately, because the father had been away for business for a significant period of time prior to the events leading up to this incident, he was still able to see and take care of the baby in the mother's absence.

If it is determined that a child is in need of the protection and supervision of the court, the Department of Children and Families (DCF) must file a petition for dependency, which will be filed in all cases classified by the DCF as high-risk. As is explained below, another way in which the department may take away parental rights is through placement of the child into a shelter. The DCF in this case took the second option, attempting to place the child in a shelter.

Unless specifically ordered by the court, a child taken into custody shall not be placed in a shelter prior to a court hearing unless there is probable cause to believe that the child has been harmed, the parents have violated a court order, or the child has no guardian. A child taken into custody may be placed or continued in a shelter only if one or more of the criteria above applies, and the court has made a specific finding of fact regarding the necessity for removal of the child from the home. This involves a determination that the provision of appropriate and available services will not eliminate the need for placement. A child may not be removed from the home or continued out of the home pending the end of a shelter hearing if the child could safely remain at the home. Additionally, a child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after a shelter hearing. Until the shelter hearing is held, the decision to place the child in a shelter or release the child lies with the protective investigator. In our case, because the father was not involved as discussed earlier, we were able to get the child to stay with his father.

The DCF choosing a shelter hearing in this case was likely due to the lack of specific evidence that our client or her cousin had actually done something which could be held to be the direct cause of the injuries. The petition for dependency must specifically set forth the acts or omissions upon which the petition is based and the identity of the person or persons alleged to have committed the acts or omissions, if known. The type of evidence required for a petition for dependency to be upheld is much more direct than that required in a shelter hearing. In order to continue the child in shelter care, DCF would have to establish probable cause that reasonable grounds for removal exist and available services in the home will not solve the problem. Because the Child Services agent was simply convinced that something had to have happened, without knowing exactly what, it is easy to see why they chose this route.

However, still being without any evidence whatsoever that any actions of our client were the cause of the child's injuries, it was our position that DCF would be unable to make a sufficient showing that probable cause existed for the child's complete removal from the home. Because the cousin was the only one that mentioned anything that could provide even the slightest chance for having caused the injuries, we felt that if we introduced the idea of keeping her out of the home, the court would have to agree that the child would be safe at home with his parents. Additionally, we agreed to have a Psychological Risk Assessment Evaluation on the mother in order to boost our position that the child would be safe at home with his parents. She went on to perform extremely well in this Risk Assessment Evaluation, which we were able to use as leverage in discussions with the Attorney General's office.

RESULT: Because of the lack of evidence that existed in this case, and our client's optimal performance on her Risk Assessment Evaluation, the State decided not to file charges against our client. She got her baby back.

Department of Children and Families Forced to Drop Case Against Young Tampa Parents

State v. B

FACTS: Our client was being investigated for child abuse, and retained our law firm in the pre-filing stages. In addition to simply being engaged in the investigation from the very beginning, this is done in hopes of avoiding the charges ever being filed at all. About a year before the incident, the Department of Children and Families (DCF) investigated the parents of the child, who were our clients, in response to a criminal charge against the father. Because our clients were very young, both around 20 years of age, the authorities were concerned for the child's living conditions. However, because the child mostly lived and was raised by the grandparents, the investigation was resolved rather quickly.

About a year later, our clients dropped their child off at a Daycare Center for the day. When the father arrived to pick up the child, he noticed a big lump on the back of its head that was not there when he dropped the child off that morning. Concerned, the father then walked across the street to the hospital to have the child checked out. The hospital immediately suggested that the father go back to the Daycare Center to fill out an incident report, in which it was learned that the child not only fell, hitting the back of his head, earlier that day, but also at one point had a fever of over 102 degrees. The Daycare, attempting to avoid liability, turned focus to the parents of the child, essentially claiming that the child was injured before being brought in that day, and the parents were just trying to blame the Daycare. At that point, the DCF again became involved and initiated an investigation into the young couple.

DEFENSE: Once DCF becomes involved with a child in a family, they tend not to go away. DCF has a continued interest in the child, and should something arise down the line at all having to do with the health of the child, DCF is going to get involved again. This is why our young clients were so quickly the subjects of another investigation. The Daycare facility, in obvious self-interest, was attempting to claim that our clients were liable for the injury to the child. However, there was absolutely no evidence linking our clients to the injuries their son sustained on that day. Also, because the child fell while at the Daycare Center that day and had a fever over 102 degrees, all of which was kept from our clients until the incident report was sought, it was our stance that the Daycare was clearly the only party responsible for the child's injury, and therefore charges should not be filed against our client.

RESULT: As a result of further inquiry into the details, and never having any evidence at all that our clients were responsible for the child's injury, the DCF dropped the investigation against our clients.

HANDLING AND FONDLING A CHILD UNDER THE AGE OF SIXTEEN

State v. R; Judge: R. Timothy Peters; Date: April 3, 2007

FACTS: The client was charged with Handling and Fondling a Female Child Under the Age of Sixteen (2nd degree felony).  The defendant had allegedly molested his children and grandchildren in 1992.  The victim of the offense had a falling out with our client shortly before he was arrested out of state and extradited to Florida.   The age of the charge made it problematic for the State Attorney to move forward on the Fondling charge. As a result, We made the State Attorney aware that we were filing a motion to dismiss the Fondling charge due to a violation of the Statute of Limitations.  In response,  the State claimed they would amend the charge to Sexual Battery (1st degree felony), in order to avoid the statute of limitations problem. 

DEFENSE:  The State could have moved forward on the Sexual Battery charge, but there were some serious issues as to the credibility of the victim.  These credibility problems led to negotiations with the State.

RESULT:  The client did no jail time.  He entered a plea to a probationery sentence on a much less serious charge, which carried no sex offender designation.   For more information about child abuse link to our blog at tampadefenseattorney.clarislaw.com

CHILD ABUSE

CASE#05-CF-021483; Judge Chet Tharpe; Date: July 26, 2006

FACTS:  The defendant was accused of chasing his 9 year old step-son and striking him with a set of keys in the head.  According to the State the laceration caused severe bleeding.  

DEFENSE: We contended that the blow to the boy was not intentional.  After discovery depositions and investigation it became clear that the mother of the children was not credible in that she made the allegation over a week after the incident, and only in an attempt to have the defendant removed from his own property.

RESULT:  The child abuse charge was dropped.