[{"@context":"https:\/\/schema.org\/","@type":"BlogPosting","@id":"https:\/\/www.attorneync.com\/blog\/story-child-abuse\/#BlogPosting","mainEntityOfPage":"https:\/\/www.attorneync.com\/blog\/story-child-abuse\/","headline":"A Story of Child Abuse","name":"A Story of Child Abuse","description":"When I wrote about a workers\u2019 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\u2019s family. In late 2017 I was contacted by the father of a 2 \u00bd-year-old girl who was hospitalized...","datePublished":"2022-11-08","dateModified":"2024-07-08","author":{"@type":"Person","@id":"https:\/\/www.attorneync.com\/blog\/author\/ashley-t-banks\/#Person","name":"Ashley T. Banks","url":"https:\/\/www.attorneync.com\/blog\/author\/ashley-t-banks\/","identifier":45,"image":{"@type":"ImageObject","@id":"https:\/\/www.attorneync.com\/wp-content\/uploads\/2019\/05\/cropped-Ashley-Bio-96x96.png","url":"https:\/\/www.attorneync.com\/wp-content\/uploads\/2019\/05\/cropped-Ashley-Bio-96x96.png","height":96,"width":96}},"publisher":{"@type":"Organization","name":"Younce, Vtipil, Baznik & Banks P.A.","logo":{"@type":"ImageObject","@id":"https:\/\/www.attorneync.com\/wp-content\/uploads\/2020\/03\/logo2020b.png","url":"https:\/\/www.attorneync.com\/wp-content\/uploads\/2020\/03\/logo2020b.png","width":390,"height":107}},"image":{"@type":"ImageObject","@id":"https:\/\/www.attorneync.com\/wp-content\/uploads\/2022\/11\/child-abuse.png","url":"https:\/\/www.attorneync.com\/wp-content\/uploads\/2022\/11\/child-abuse.png","height":2912,"width":4368},"url":"https:\/\/www.attorneync.com\/blog\/story-child-abuse\/","about":["Child Abuse"],"wordCount":2649,"articleBody":"When I wrote about a workers\u2019 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\u2019s family.In late 2017 I was contacted by the father of a 2 \u00bd-year-old girl who was hospitalized at Duke.\u00a0 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\u2019s diaper, she found her backside covered in bruises. The boyfriend explained that he \u201cdidn\u2019t mean to hit her that hard.\u201dEventually, 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\u2019s mom and the boyfriend\u2019s mom\u2019s boyfriend (confusing, huh?). Soon after they arrived in North Carolina, my client\u2019s 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\u2019s mother and the boyfriend\u2019s 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\u2019s mom\u2019s 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\u2019t 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\u2019s 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\u2019s 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\u2019s 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\u2019s mother and her boyfriend kept the toddler most weekends because my client\u2019s 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\u2019s 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\u2019t 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 headLarge hematoma to the superior\/posterior aspect of her headPupils were reactively sluggish with an intermittent upward gazeAnterior chest wall bruisesPosterior chest wall bruises around the mid-thoracic regionDistended abdomenLeft forearm bruisesActively seizing with intermittent posturingHer Glasgow Coma Scale score was 3 which is the worstHead CT scan showed cerebral edema with nondisplaced skull fractureCholecystic fluid which may be secondary to her liver lacerationSubacute rib fractures of the left 9th and 10th ribsDiffusely dilated bowel with no evidence of bowel injuryElevated liver function with elevated lipase consistent with blunt abdominal traumaClosed fracture of the skull\u00a0Liver laceration\u00a0Elevated pancreatic enzymeRetinal hemorrhage of both eyesOptic nerve edemaBradycardiaSevere 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 \u2013 the mother\u2019s boyfriend and her boyfriend \u2013 had to have known of the prior abuse. You can\u2019t 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\u2019t 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\u2019t take the police long to figure out that they had been given false names, and the boyfriend\u2019s 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\u2019s 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\u2019s 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.\u00a0 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\u2019ll 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 \u2013 bank presidents don\u2019t usually go around assaulting people. For instance, the boyfriend\u2019s 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\u2019s 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\u2019t walk away from it.\u00a0 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\u2019t 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\u2019s 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\u2019t 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.\u00a0 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\u2019s 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\u2019s 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\u2019s 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\u2019s lawyer filed a motion for summary judgment on a declaratory judgment action to find that they didn\u2019t 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\u2019t appeal because I had been convinced along the way that they were right about that.The case continued against the boyfriend\u2019s mother and her boyfriend. Why?\u00a0 North Carolina law states that \u201c(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.\u201d 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\u2019s 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\u2019t 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\u2019ve 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.\u00a0 Her medical bills run into the hundreds of thousands of dollars.\u00a0 She will continue to incur other bills for the rest of her life.What is the point of this long story?\u00a0 Yes, it\u2019s tragic. Yes, people can be horrible. But this didn\u2019t 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\u2019ve all heard stories about people who were turned over to CPS who shouldn\u2019t have been, and their lives were ruined. I don\u2019t 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 AuthorAshley T. BanksAshley 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."},{"@context":"https:\/\/schema.org\/","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"name":"Blog","item":"https:\/\/www.attorneync.com\/blog\/#breadcrumbitem"},{"@type":"ListItem","position":2,"name":"A Story of Child Abuse","item":"https:\/\/www.attorneync.com\/blog\/story-child-abuse\/#breadcrumbitem"}]}]