When I wrote about a workers’ comp case recently and posted it, I got a lot of encouraging responses. Well, here goes again. I write this with the permission of my client’s family.
In late 2017 I was contacted by the father of a 2 ½-year-old girl who was hospitalized at Duke. He was from Arkansas. His wife had run off with another man while he was in prison. The mother and her new boyfriend were both addicted to methamphetamines and kept the four children in extremely unstable living circumstances. Once when the mother came back from shopping and changed her daughter’s diaper, she found her backside covered in bruises. The boyfriend explained that he “didn’t mean to hit her that hard.”
Eventually, they gave the two older children to her mother to keep, the newborn baby to her brother and his wife to adopt, and took my two-year-old client to North Carolina to live with the boyfriend’s mom and the boyfriend’s mom’s boyfriend (confusing, huh?). Soon after they arrived in North Carolina, my client’s mother texted photos of bruises that looked suspiciously like belt marks on the back and facial bruises to her sister in Arkansas. This was after the boyfriend had babysat for the little girl while her mom was at work. The sister urgently and emphatically texted back to confront the boyfriend and/or get the child out of the house. The mother did confront the boyfriend but backed down when he denied hurting the child. My client’s mother and the boyfriend’s mother agreed that, given his bad temper, they would never leave the child alone with him again. However, within a couple of weeks, she was being left with him again. The boyfriend’s mom’s boyfriend offered to pay to take the toddler to the doctor, but the mother refused since both she and her boyfriend had outstanding arrest warrants in Arkansas and feared that the police would find out.
Other things happened that I won’t take the time to recount here, but suffice it to say that the boyfriend had a violent temper with women and children (anyone weaker than he). A few months later the boyfriend’s mom bought them a small house to live in rent-free. She also bought them both vehicles, knowing that neither of them had a driver’s license. By that point, even though they both had full-time jobs, they were spending so much money on their drug habit that, even without having to pay rent, they could barely keep food in the house. A couple of months later he put my client’s mother in the emergency room following one assault (5 staples in her head), and then the mother came home to find bruises on the little girl again.
The boyfriend’s mother and her boyfriend kept the toddler most weekends because my client’s mother and her boyfriend would be in no condition on the weekends during their drug binges to take care of a child.
On the fateful day while my client’s mother was at work, she left the girl with the boyfriend again. When she came home she found the 2.5-year-old girl unconscious on their bed wearing only a diaper. The boyfriend claimed that he was playing with her, chasing her around the bedroom when she ran into the dresser, was knocked unconscious, and had a seizure. He claimed that she had been unconscious for an hour or two! He didn’t call EMS because of his outstanding arrest warrants.
The mother picked the girl up, and the boyfriend dropped them off at the hospital. On the way, they concocted fake names and a fake story as to how she got hurt. The boyfriend drove home to clean up the evidence.
By the time they got her to the hospital, the child was almost dead.
This is a partial list of what WakeMed found:
- Large hematoma to the top of her head
- Large hematoma to the superior/posterior aspect of her head
- Pupils were reactively sluggish with an intermittent upward gaze
- Anterior chest wall bruises
- Posterior chest wall bruises around the mid-thoracic region
- Distended abdomen
- Left forearm bruises
- Actively seizing with intermittent posturing
- Her Glasgow Coma Scale score was 3 which is the worst
- Head CT scan showed cerebral edema with nondisplaced skull fracture
- Cholecystic fluid which may be secondary to her liver laceration
- Subacute rib fractures of the left 9th and 10th ribs
- Diffusely dilated bowel with no evidence of bowel injury
- Elevated liver function with elevated lipase consistent with blunt abdominal trauma
- Closed fracture of the skull
- Liver laceration
- Elevated pancreatic enzyme
- Retinal hemorrhage of both eyes
- Optic nerve edema
- Bradycardia
- Severe hypoxic ischemic encephalopathy, the worst of her medical problems. This means that her brain was deprived of blood and oxygen for an extended period of time causing severe brain injury.
It was immediately apparent to the doctors that she had been the victim of severe physical abuse. It was also clear that this was not just a one-off. Her rib fractures showed significant callous formation, an obvious sign of healing, and were at least 14 to 21 days old or maybe older. That meant that her other caregivers – the mother’s boyfriend and her boyfriend – had to have known of the prior abuse. You can’t take care of a two-year-old and not know she has rib fractures.
Even more tragic than the vicious beating was the fact that her brain injury would likely not have been nearly as severe if he had just called EMS immediately so her brain wasn’t deprived of blood and oxygen for so long.
When the boyfriend finally came to the hospital hours later, he claimed that the bruises on her back were from his efforts to perform CPR. The doctors responded that her abdominal and brain injuries were far, far worse than could have been done that way. She had been beaten savagely.
It didn’t take the police long to figure out that they had been given false names, and the boyfriend’s mother had taken part in that scheme. In addition to the usual interviews with everyone involved, neighbors and combing the crime scene, the investigation included hundreds of pages of text messages between the mother and her boyfriend.
It’s never made sense to me why law enforcement makes it so hard for private lawyers like me to get their investigative reports, but they do. When the little girl’s father first contacted me, the only information I had was what little the police and doctors had told him and a couple of short newspaper articles. Real estate searches gave me a little more information. There was no way I was going to get the police file without filing suit first, and that presented an ethical question. Lawyers are always supposed to do a thorough investigation before filing a lawsuit, but the only way to really do a thorough investigation was to file suit in order to gain subpoena power. A subpoena for the police file was the only way to get it. Even then I had to take the additional step of getting a protective order. The whole process took months.
There was also the financial problem. Private lawyers like me who have to meet payroll, rent, tax, and other obligations can only take profitable cases if we want to stay in business and support our families. People who assault other people are usually judgment-proof, meaning that even if we get a verdict for $100 million, we’ll probably never collect a dime of it because the perpetrators rarely have sufficient assets to pay even a very small verdict. I explain it to my clients this way – bank presidents don’t usually go around assaulting people. For instance, the boyfriend’s mother in this case filed bankruptcy right in the middle of the case, so her assets would never be accessible to us. So private lawyers can rarely take an assault case. After talking it over with my partners, I justified the thousands of dollars it was going to cost us for litigation expenses and the hundreds of hours of my and my paralegal’s time by the potential good publicity the case might bring to us. Frankly, that little bit of publicity was never going to make up for what we were going to have to put into the case, but I couldn’t walk away from it. That little girl was never going to speak or be able to feed herself again. She would never marry and have a family. Her father and later her siblings would always have to take care of her (if she was lucky and didn’t end up in an institution). Someone had to speak for her, even if the effort was mainly symbolic.
Thankfully, several months into the case I found out that the boyfriend’s mother had homeowners insurance on the house they were living in that had liability insurance of $300,000. The bad news was that the liability insurance policy was written in such a way that a claim that was based on an assault was excluded from the policy. I read the policy over and over. I read every case ever published by North Carolina courts about homeowner liability policies in the context of child abuse. I couldn’t find a case that matched our case in all pertinent aspects, but I felt that I had a colorable argument. In other words, I thought I had a fighting chance to get insurance coverage.
When I finally got the police investigation, I was both happy and unhappy to see that it was over a foot thick. Happy because that meant that it was probably a thorough investigation. Unhappy because I saw 50 to 60 hours of work to read and outline it. I still had other cases to handle, so the process took weeks. The hardest part was the hundreds of pages of texts between two shallow, self-centered people. I had to read scores of pages of nauseating texts between two despicable people to every once in a while find relevant information that I could actually use. For anyone who thinks law school is their ticket to a life of glamor and riches, think again. Unless you really, really want to help people, it’s just not worth it.
Two years after I initially agreed to take the case we got to start taking depositions of the parties. In a deposition, the lawyers get to ask witnesses questions under oath (under penalty of perjury) with a court reporter present to record everything and make a word-for-word transcript to be used later in the litigation. Depositions are at the heart of what litigators do. We deposed the mother and the boyfriend from their jail cells. The boyfriend had pled guilty to felony attempted intentional child abuse and common law obstruction of justice. The mother pled guilty to felony negligent child abuse with serious physical injury. The boyfriend’s mother pled guilty to misdemeanor obstruction of justice but spent no time in jail. Not surprisingly, all four of them denied knowing anything about the child’s rib fractures.
The case against the boyfriend was obvious, but he was the one who was the least likely to be covered by liability insurance. Liability insurance almost never covers intentional acts. I knew from the start that finding him liable was going to be as easy as falling off a log, but it was very unlikely that I would ever get money for that poor little girl from him.
My effort was to walk the legal tightrope of finding the other three negligent for not protecting the child in such a way as to trigger the liability coverage. The insurance company’s lawyer filed a motion for summary judgment on a declaratory judgment action to find that they didn’t have coverage for the mother or her boyfriend. We lost. The judge declared that there was no coverage for the two of them. I didn’t appeal because I had been convinced along the way that they were right about that.
The case continued against the boyfriend’s mother and her boyfriend. Why? North Carolina law states that “(a) Any person who has cause to suspect that any child is abused or neglected, shall report the case of that child to the director of the department of social services in the county where the child resides or is found. The report may be made orally, by telephone, or in writing.” I added the underlines. Every adult is required by law to notify the appropriate authorities (Child Protective Services) if they even suspect abuse or neglect.
I felt that we had proven that the two of them had lots of reasons to suspect that the child was being abused and was in danger from further abuse. Although there was substantial doubt on whether I would win on the issue of liability coverage for them, I put enough fear into the insurance company that they offered to pay over half of their policy limits to settle before trial. My client’s father, who was the decision maker, decided to play it safe and settle for that. A part of me still wishes that he had let me try the case, but in my heart, I think he did the right thing.
After all of that, the case still wasn’t over. Medicaid had spent hundreds of thousands of dollars in three different states providing care for the child. The law in each state is different as to how much we have to pay them out of a settlement or verdict. I came to terms with North Carolina and one of the other states within a few weeks, but it took almost exactly a year for us to finally get the third state to settle with us. They took far more than the other two states because their state law allowed them to do it. It left my client with even less of the settlement than I had hoped for, which was disappointing.
The good news is that the father has stepped up to the plate and is taking responsible care for his four children. I’ve talked on the phone and facetimed with them several times since they moved back to Arkansas. My client seems happy and well-cared for. The father has been sober and has had no more legal trouble since her injury. For the rest of her life, she will probably not be able to speak, feed herself, go to the bathroom by herself, or many other activities of daily living. Her medical bills run into the hundreds of thousands of dollars. She will continue to incur other bills for the rest of her life.
What is the point of this long story? Yes, it’s tragic. Yes, people can be horrible. But this didn’t have to happen. If the adults into whose hands God placed that child had just acted with some courage and responsibility and called Child Protective Services, she would probably be a healthy, normal seven-year-old now. We’ve all heard stories about people who were turned over to CPS who shouldn’t have been, and their lives were ruined. I don’t know how many of those stories are actually true. This has taught me, however, to err on the side of protecting the child and trusting CPS to use some common sense.
About the Author
Ashley T. Banks
Ashley T. Banks is an attorney at Younce, Vtipil, Baznik & Banks, P.A. and practices family law. She handles cases involving divorce, separation, child custody, child support, and more. She is a member of the North Carolina Bar Association, North Carolina Advocates for Justice, the Wake County Bar Association, Wake County Young Lawyers Division, and Wake County Family Law Division.
