CHILD ABUSE / SBS

ARIZONA CHILD ABUSE LAW

In Arizona allegations of criminal conduct which fall under the umbrella of “child abuse” may include anything from leaving a young child in an unattended vehicle to a severe case of shaken baby syndrome (SBS).  An allegation of child abuse is most often made against a parent.  However, it is not uncommon for another relative, a family friend or neighbor or other caregiver to be accused of child abuse as well.

Child abuse charges vary by type and severity of punishment.  Depending upon the nature of the alleged offense, certain child abuse cases that involve a child under the age of 15 may be charged as a “Dangerous Crime Against Children” (DCAC), punishable by mandatory imprisonment of 10 to 24 years for an individual who has no prior criminal history.

As noted above, child abuse allegations are not limited to acts of intentional physical abuse.  In Arizona child abuse charges also encompass other non-intentional conduct which is alleged to have been committed “recklessly” or with “criminal negligence”.  The charge filed will depend upon the applicable “State of Mind” at the time the alleged crime was committed.  Obviously, the severity of punishment will be much greater if the government is able to prove the abuse was inflicted “intentionally” or “knowingly” rather than through mere “reckless” or “criminally negligent” conduct.

Arizona’s child abuse statute, A.R.S. § 13-3623 can be summarized as follows:

An Allegation of child abuse must be taken very seriously.  If suspected or accused of child abuse it is imperative to be pro-active – don’t submit to questioning or wait for an arrest before contacting an attorney.

Shaken Baby Syndrome (“SBS”)

One of the most serious child abuse charges is an allegation of “Shaken Baby Syndrome” (SBS).  SBS results from injuries caused by someone vigorously shaking an infant.  Because of the anatomy of infants, they’re at particular risk for injury from this kind of action.  Therefore, the vast majority of incidents occur in infants who are younger than 1 year old.  The average age of victims is between 3 and 8 months, although SBS is occasionally seen in children up to 4 years old.

When someone forcefully shakes a baby, the child’s head can rotate about uncontrollably because the infant’s neck muscles aren’t well developed and provide little support for their heads.  The violent movement pitches the infant’s brain back and forth within the skull, rupturing blood vessels and nerves throughout the brain.   When the brain strikes the inside of the child’s skull, it may cause bruising and bleeding of the brain (subdural hematomas) and tearing/bleeding of the retinas (retinal hemorrhages).

SBS is often suspected when a child is rushed to the hospital and diagnosed with 1) subdural hematomas, 2) retinal hemorrhages, and 3) the trauma is reported as having occurred from some event which law enforcement and/or hospital personnel believe is inconsistent with the nature and/or severity of the child’s injuries. Some have referred to this as the “Shaken Baby Triad.”  Historically, the American Academy of Pediatrics believed that these signs and symptoms were exclusively found in cases of non-accidental trauma.  However, in recent years new evidence and research has shown that there are other disorders or accidental injuries which mirror the symptoms once thought to be exclusively those of “Shaken Baby Syndrome.”

CHOOSING THE RIGHT ATTORNEY

Often alleged child abuse acts have no witnesses.  Consequently, child abuse cases are frequently prosecuted on mere suspicion or very thin evidence.  False charges of child abuse are common.  To properly defend against such cases, it is imperative that you consult with a knowledgeable criminal defense attorney who has a proven track record of successfully handling prior child abuse cases.  The science surrounding child brain injury and the explanations for its causes are so complex that you cannot take a chance with an attorney who is unfamiliar with the applicable science and legal concepts.  An attorney who understands the complexities of traumatic pediatric brain injury is best suited to explain the different potential causes of these injuries to a jury.

State of Arizona v. Kathy Albertson

On October 26, 2004 Kathy Albertson was indicted for one count of child abuse, a class 2 felony and dangerous crime against children.  Upon conviction she was facing a mandatory prison term of 10-24 years.  The State believed Kathy was responsible for violently shaking the 17-month old child who she cared for at the daycare program she operated out of her home.  However, Kathy told the paramedics the child was injured during a fall as he ran across the family room-slipped and struck his head on a plastic toy box.  At the hospital the child presented with bilateral subdural hematomas, bilateral retinal hemorrhages, and an occipital skull fracture.

Over the course of approximately 10 months, Ms. Albertson was unable to convince her Public Defender to honor her wishes and prepare her case for trial.   From the onset, Ms. Albertson had maintained her innocence and made it clear she wished to proceed to Trial and was not interested in taking any plea.  Despite her wishes, the Public Defender’s Office only interviewed three (3) of the State’s 72 listed witnesses, failed to retain or list any expert(s) to testify on Kathy’s behalf, and repeatedly pushed her to accept a plea agreement to a long prison term.

In 2005, Kathy took matters into her own hands and retained The GILLESPIE LAW FIRM, P.C. Our firm retained two expert witnesses. They reviewed and analyzed the medical records, MRI and CAT scans, and both agreed the child’s injuries were consistent with the accidental fall as described by Kathy.  With the help of our experts, Mr. Gillespie was successful in convincing the jury of Kathy’s innocence.  Following a 2 week trial the jury found Kathy Not Guilty!  Maricopa County Superior Court Case No. CR2004-042646.

THE IMPORTANCE EXPERTS IN SBS CASES

The following scientific studies/articles examine many of the myths associated with cases of alleged “Shaken Baby Syndrome”, and form the basis of our ability to differentiate between accidental and non-accidental head trauma in children:

• Bandak, F.A. Shaken baby syndrome: A biomechanics analysis of injury mechanisms. Forensic Sci Int 2005; 151: 71-79.

Summary:  Shaking cervical spine injury can occur at much lower levels of head velocity and acceleration that those reported for SBS.  The literature that states that shaking a baby can produce as much force as high speed crashes or falls from as high as 9 meters are unsubstantiated in biomechanics and there have been some reports refuting their validity at all. 

• Plunkett, J. Fatal Pediatric Head Injuries Caused by Short-Distance Falls. Am J of Forensic Med Pathol 2001; 22(1): 1-12.

Summary:  Fatal injury may result from a fall less than 3 meters. These falls can be associated with a lucid interval and bilateral retinal hemorrhage.  Eighteen case studies were completed of deaths of children 1 yr- 13 yrs who died after short falls.  Though many doctors believe violent shaking can only cause retinal hemorrhaging, any sudden increase in intracranial pressure can cause it.  The study that proves that short falls can kill children and retinal hemorrhages are not pathonemonic for non-accidental trauma.  The study also calls into question our ability to time injuries and contradicts the theory that decomposition begins immediately after the SDH is formed.

• Tongue, A.C.  The Ophthalmologist’s Role in Diagnosing Child Abuse.  Ophthalmology 1991; 98: 1009-1010.

Summary:  To date, there is no evidence that clearly establishes that retinal hemorrhages are indicative of non-accidental trauma.  Also, retinal folds cannot be equated with child abuse because there is not enough evidence excluding accidental trauma.  Not enough evidence to be conclusive on any of this accidental/non-accidental trauma and eye injuries.

• Kirschner, R.H., Stein R. J.  The Mistaken Diagnosis of Child Abuse.  AJDC 1985; 139: 873-875.

Summary:  There are many instances of false filing of child abuse.  This article reports a case of retinal hemorrhages after vigorous chest compressions on a 3-month-old infant.  Article looks at differentiating diagnosis of abuse from coagulopathies, CPR, TCP, SIDS, meningitis, etc.  Mistaken diagnoses often occur when a child dies with no explanation for his/her injuries and those injuries are consequently cited as indicators of abuse.  Author lists other disease processes that mimic abuse.

• Caffey, J.  On the Theory and Practice of Shaking Infants.  Amer J Dis Child 1972; 124: 161-169.

Summary:  This is the original article discussing what is known called Shaken Baby Syndrome.  The article sites cases of whiplash injury from a father swinging an infant over his head.  Caffey says injuries can be caused by coughing, overly vigorous burping, riding the horse tossing the baby up in the air, rough roads and flipping a toddler head over heels to his or her feet.  Caffey says that CPR can lead to an increase in venous pressure that causes these types of injuries.

• Kaur, B., Taylor D. Retinal hemorrhages.  Rch Dis Child 1990; 65: 1369-1372.

Summary:  There are many causes of retinal hemorrhages.  Superficial retinal hemorrhages can occur from sneezing, crying, or squeezing of the chest.  Hemorrhages into all layers of the retina may be more common in non-accidental trauma.  Also sites vomiting, epileptic seizures, crying, chest compressions, and coughing spells as causes or retinal hemorrhages.

ARIZONA'S CHILD NEGLECT / ABUSE CENTRAL REGISTRY

Arizona and every other state have developed some type of procedure for maintaining records of “substantiated” acts of child abuse and/or neglect. (See A.R.S §8-804)  Central Registry is maintained by the Department of Economic Services, Child Protective Services (CPS), and serves to assist in the identification and protection of abused and neglected children.  Reports contained in central registries are typically used to identify patterns of abuse and neglect with respect to certain individuals, to aid social services agencies in the investigation, treatment, and prevention of child abuse cases and to maintain statistical information for staffing and funding purposes.

Once CPS investigates a case of alleged child abuse or neglect it often will notify the suspected abuser of its attempt to “substantiate” the agencies report. (Note: CPS will often take this administrative action even on cases where no criminal charges are filed.)  A substantiated report means there is probable cause to believe the individual committed the abuse or neglect.  Upon notification the individual has the right to appeal the finding in an effort to avoid recordation in the Central Registry.

Central registry records are also used to screen persons who will be entrusted with the care of children.  Information is made available to employers in the childcare business, schools, or health care industry.  Many states also require a check of central registry records as part of the background check for foster and adoptive parent applicants.

CONCLUSION

If you are suspected of or charged with child abuse, it is imperative that you contact an experienced attorney immediately to begin your representation.  The GILLESPIE LAW FIRM, P.C. is a leading criminal defense firm with unique knowledge and years of experience in defending clients charged with alleged child abuse in the state of Arizona.  The firm can handle all of the aspects of your case including pre-trial investigation, witness interviews, legal research, defense identification, grand jury and motion practice, plea negotiations, and, if necessary, full litigation at trial and on appeal.  We will strongly advocate your case at all times, yet do so in a discrete manner as we recognize that your reputation and your future are at stake.  If you choose to retain our law firm, we will provide the highest level of criminal defense representation available.

The information set forth above is only a magnified overview of Arizona’s child abuse laws sentencing scheme.  Each defendant’s individual case is often quite complex depending upon the particular facts of the alleged crime.  Many circumstances impact the formulation of sentencing in any given case and the sentencing scheme is far more complicated than the simple explanation you have read about here.  Always seek professional personal advice from an experienced criminal defense attorney who can help you identify all of the facts and issues that may affect the outcome of your particular matter.