In re MacKenzie C.
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Supreme Court
No. 2003-138-Appeal.
No. 2000-452-M.P.
(98-2843-01)
In re Mackenzie C.
:
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 2223258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
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Supreme Court
No. 2003-138-Appeal.
No. 2000-452-M.P.
(98-2843-01)
In re Mackenzie C.
:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
OPINION
Suttell, Justice. A nine-week-old baby girl is horrifically injured – nineteen fractures
with no immediate explanation about how the injuries occurred, no smoking gun to cast blame
on a depraved perpetrator. This case brings into sharp focus the inherent difficulties of our legal
system, as well as its strengths, as it attempts to sort through the myriad vexations of human
affairs that it is called upon to adjudicate in its search for the truth. Here, the right of the child,
Mackenzie, to a safe, nurturing, and protective environment seemingly collides with the
constitutionally protected, fundamental liberty interest of her parents in the care and custody of
their child. See Santosky v. Kramer, 455 U.S. 745, 753 (1982).
The daunting responsibility of protecting Mackenzie, as well as all children in this state
who may be neglected and abused, falls upon the Department of Children, Youth and Families
(DCYF). In this case, shortly after being notified of the child’s injuries, DCYF filed an ex parte
petition in Family Court seeking commitment of the child, thereby launching a complex,
Dickensian, procedural journey.
DCYF subsequently filed a second petition seeking the
termination of parental rights (TPR) on the grounds that both parents were unfit because of cruel
and abusive conduct. The two petitions were consolidated and tried before a justice of the
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Family Court, after which the trial justice issued a lengthy and comprehensive written decision.
After recounting the testimony of the various witnesses, the trial justice specifically rejected the
opinion of the parents’ medical expert that Mackenzie’s injuries were caused by a condition that
he had diagnosed as “temporary brittle bone disease,” a term that he himself had coined, and one
that he conceded was “still a controversial subject.”
The trial justice also made a series of factual findings, including: the fractures were not
accidental; the parents, by inference, “being the principal caretakers of [the] child, either
individually or jointly, caused or allowed to be caused, the injuries”; and “[t]he parents are unfit
at this time by reason of conduct or conditions seriously detrimental to the child, which resulted
in cruel and abusive conduct to the child.” Finally, the trial justice granted the abuse petition, but
deferred a decision on the TPR pending “an impartial psychiatric – psychological evaluation of
both parents.” Both parties appealed from the Family Court order, and DCYF filed a petition for
certiorari.
The parents cooperated with the evaluation, and additional hearings were held at which
the court-appointed psychiatrist testified, as well as a psychiatrist presented by DCYF. As a
result of these hearings, the trial justice determined that “at this time the appropriate direction to
take in order to determine whether or not ultimately the termination petition should be dismissed
is to have DCYF prepare a case plan reflecting the testimony of [the court-appointed
psychiatrist].” Because the recommendation of this psychiatrist was for a gradual, monitored
reunification, DCYF filed an amended petition for writ of certiorari and a motion for stay of the
case plan order.
This Court issued the writs, granted the motion for stay, and deferred
certification of the files until the TPR petition had been decided on the merits.
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The trial justice allowed each party the opportunity to present more witnesses on the issue
of the best interests of the child. On November 1, 2001, he issued a fifty-three page written
decision in which he found that “there is absolutely no evidence whatsoever to indicate, at this
time, that the child is at risk if the child was, in fact, reunified with her parents.” He also found
that “the physical, psychological, mental and intellectual needs of the child are best served by
reunification with the parents.” Accordingly, he dismissed the TPR petition and ordered DCYF
to “immediately commence work on a reunification plan.” He left undisturbed, however, his
findings and orders entered in the underlying abuse petition.
More hearings were held in Family Court over the next several months on the
formulation and approval of a reunification plan, during which time the parties frequently found
their way to this Court requesting stays. On February 27, 2002, we granted a stay and ordered a
briefing schedule. The parents later filed a motion to remand the case so that the Family Court
could consider their motion for a new trial and/or reconsideration. This Court did remand the
case, whereupon the trial justice granted the parents’ motion to reconsider the abuse petition,
permitted the parties to engage in discovery, and entertained additional testimony on three dates
in November 2003 and January 2004. After all parties had submitted memoranda, the trial
justice issued a third comprehensive written decision in which he carefully considered the
testimony of the parents’ expert medical witness, and was “convinced by the medical testimony
produced at these hearings by the respondent parents that the testimony is, in fact, clear, direct,
weighty and convincing as to what this child was suffering from and which, therefore, led to the
fractures that she sustained.” He therefore reversed his initial ruling, found that DCYF had
failed to sustain its burden of proof, and dismissed the abuse petition.
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After reviewing forty-five volumes of transcripts and the three written decisions of the
trial justice, we are of the mind that the justice system has worked perhaps as well as can be
expected in this very troubling situation. There can be little doubt that the justice system is an
imperfect vehicle for resolving such issues, but resolve them it must. Here, we find little to fault
in the zealous advocacy of all parties involved — DCYF, legal counsel, and social workers alike,
for their efforts to protect Mackenzie’s safety; parents’ counsel for affirming the constitutionally
protected rights of the parents; and the guardian ad litem for advocating for the child’s best
interests. We also recognize the formidable responsibility thrust upon the trial justice, and
conclude that he presided over this case in a most thoughtful and professional manner.
For our purposes on review, the issues in this voluminous, complex case may be boiled
down to a few fundamental principles. We are well satisfied that all parties received a fair trial
and that the trial justice carefully analyzed the various evidence and made some difficult, no
doubt agonizing, decisions.
Moreover, his rulings on the admissibility of evidence, his
determination of the credibility of witnesses, his decision to reopen the case, and particularly his
assignment of greater weight to the expert opinions of one party than to those of another are all
within a trial justice’s discretionary authority. Here, after reconsidering his earlier decision on
the abuse petition and hearing new evidence, the trial justice concluded that DCYF had not met
its burden to prove the allegations in its petition by clear and convincing evidence. We see no
valid reason to disturb his finding. Accordingly, we affirm.
Facts
On December 24, 1998, Susan and Paul C. brought their nine-week-old daughter,
Mackenzie, to the emergency room at Hasbro Children’s Hospital.
The child was crying
uncontrollably and seemed to have something wrong with her right arm. Radiological studies
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revealed an acute right humerus mid-shaft fracture and evidence of eighteen additional fractures
in various stages of healing. The child did not exhibit any bruising or swelling. The treating
physician filed a physician’s “report of examination” and placed Mackenzie on a seventy-twohour hold pursuant to G.L. 1956 § 40-11-5(a) and § 40-11-6(c).
A verbal ex parte order of detention was issued by a Family Court justice on December
25, 1998. DCYF filed an ex parte abuse and neglect petition on December 28, 1998. A probable
cause hearing was begun on January 8, 1999, but was discontinued at the request of the parents.
Initially, the treating physicians suspected that the child suffered from Osteogenesis Imperfecta;
that diagnosis was later ruled out, however, and, in February 1999, the treating physicians opined
that the child suffered from “battered child syndrome.” On April 12, 1999, DCYF filed a TPR
petition, which alleged parental unfitness because of cruel or abusive conduct pursuant to G.L.
1956 § 15-7-7(a)(2)(ii). On June 11, 1999, the trial justice granted DCYF’s motion to amend the
TPR petition to include an allegation of parental unfitness because of aggravated circumstances
pursuant to § 15-7-7(a)(2)(v), and granted DCYF’s motion to consolidate the commitment
petition with the TPR petition for trial.
The trial was conducted over twenty days, beginning on June 11, 1999, and concluding
on March 23, 2000. The parties submitted written closing arguments and, on September 14,
2000, the trial justice issued a written decision. The trial justice found that “the parents, being
the principal caretakers of this child, either individually or jointly, caused or allowed to be
caused, the injuries to this child, to wit, 19 fractures.” The trial justice found that “[t]he child
suffered from no abnormal bone disease such as osteogenesis imperfecta,” and “did not suffer
from any metabolic or endocrinology conditions.” The trial justice found that the testimony of
the parents’ only expert, Dr. Colin Paterson, that the child suffered from “temporary brittle bone
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disease” did not meet the test of DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999), and
therefore the trial justice gave no probative weight to his testimony. The trial justice specifically
noted that Dr. Paterson himself conceded that “temporary brittle bone disease” was still a
“controversial subject” that had been extensively criticized by other doctors and that he could not
give a definitive answer to the question of whether “temporary brittle bone disease” was
generally accepted in the “scientific-medical community.”
The trial justice observed, however, “that, at this time, we may be dealing with a difficult
area of medical science. That it is possible that in five years or so, any difficulties may be
resolved to the satisfaction of the entire scientific-medical community.
However, unlike
Columbus or Galileo, this Court must base its decision on the current state of the law and
medical science and not untested, unaccepted theories.”
The trial justice also found that “the conduct of the parents to the child was of a cruel and
abusive nature” and the “parents are unfit at this time by reason of conduct or conditions
seriously detrimental to the child, which resulted in cruel and abusive conduct to the child.” As a
result of the finding of physical abuse, the trial justice committed Mackenzie to DCYF’s care,
custody, and control.
The trial justice deferred his decision on the TPR petition, however, “until it had the
benefit of an impartial psychiatric-psychological evaluation of both parents.” On October 13,
2000, an order was entered, embodying the trial justice’s findings, and including the trial
justice’s order that the parents undergo a psychiatric-psychological evaluation by a courtappointed expert.
The parents filed a motion for reconsideration and/or new trial on September 22, 2000,
and a notice of appeal on October 3, 2000. On December 8, 2000, the trial justice granted the
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parents’ oral request for deferral of argument and decision on their motion for reconsideration
and/or new trial. On November 2, 2000, DCYF filed a cross-appeal of the September 14, 2000
decision.
The parents attended their evaluation with the court-appointed psychiatrist, Dr. Bernard
Katz, on November 13, 2000. On January 8, 2001, the trial justice, after hearing the testimony of
Dr. Katz and DCYF’s rebuttal witness, Dr. Ronald M. Stewart, issued a bench decision
concerning the TPR petition. The trial justice accepted Dr. Katz’s recommendation that “both
the [c]ourt and DCYF retain oversight of this family in a gradually diminishing fashion for a
period perhaps of three years.” The trial justice said that “at this time the appropriate direction to
take in order to determine whether or not ultimately the termination petition should be dismissed
is to have DCYF prepare a case plan reflecting the testimony of Dr. Katz. We will then be in a
position to review the proposed case plan. If it meets the approval of the respondents and the
[c]ourt, then the [parents] will then be under a [c]ourt order to comply with the provisions of the
case plan.” The trial justice requested that DCYF prepare a case plan within two weeks.
Counsel for DCYF asked the trial justice to stay the order for a case plan, which the trial justice
denied.
On January 12, 2001, DCYF filed an amended petition for certiorari and a motion for
stay of the reunification plan order.1 On January 18, 2001, a duty justice of this Court ordered a
stay of the January 8, 2001 reunification plan order. On March 9, 2001, this Court continued the
stay of enforcement of the January 8, 2001 Family Court order. This Court ordered that the
certification of the Family Court files be deferred until such time as the Family Court justice
shall proceed to hear and determine the termination of parental rights on the merits. In response
1
On November 6, 2000, DCYF filed a petition for certiorari with respect to the court-ordered
psychiatric evaluations.
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to the parents’ request for clarification, this Court, on May 3, 2001, directed the Family Court to
decide the TPR petition on the merits, after which the pending motions for reconsideration
and/or new trial with respect to the neglect petition and for further medical evaluation of
Mackenzie might be addressed by the Family Court.
The trial justice set a hearing schedule with respect to the TPR petition, allowing both
parties to present more witnesses on the issue of the child’s best interests. On November 1,
2001, after hearing three days of testimony, the trial justice issued his decision denying the TPR
petition. An order embodying that decision was entered on November 8, 2001. The trial justice
found that Mackenzie “deeply loves the [parents], and they deeply love her” and that “there is no
evidence whatsoever that at this time, the parents create any risk or constitute any risk to the
child if there is reunification.” The trial justice found that DCYF “failed to prove that the best
interests of the child would be served by terminating the relationship between the child and the
[parents]” and “that the physical, psychological, mental and intellectual needs of the child are
best served by reunification with the parents * * *.”
The trial justice ordered DCYF to
“immediately commence work on a reunification plan * * * [which] include[s] a gradual return
of the child to the respondent parents.”
On November 8, 2001, DCYF filed an appeal from the order of November 1, 2001, and
on November 20, 2001, DCYF filed a motion for stay of that order. A duty justice of this Court
denied the motion for stay on November 29, 2001. On December 5, 2001, DCYF submitted a
case plan that required the parents to admit their abusive behavior and to begin treatment to
address those issues, and made reunification contingent on DCYF’s subsequent approval. The
trial justice took exception to the DCYF plan and indicated that DCYF had “either intentionally
or unintentionally chosen to ignore the court’s directive as to the contents of the reunification
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plan. Nowhere do I see in that plan that there is any initial step towards gradual reunification.”
The trial justice ordered DCYF to rewrite the plan, and then, still not satisfied with the visitation
schedule contained in the revised plan, ordered that the plan include gradually increasing
supervised visitations, including overnight visits. The trial justice also ordered the plan to
include a provision that the parents undergo a parent-child evaluation and attend any treatment
recommended by the evaluator. The trial justice also denied DCYF’s oral motion to stay the
implementation of the case plan.
On January 16, 2002, DCYF filed with this Court a motion to stay the December 17,
2001 order. This motion to stay was denied by a duty justice of this Court, but later was granted
by the full Court on February 27, 2002. This Court also ordered that the appeal in this case be
expedited. On July 28, 2003, the parents filed a motion to remand the case to the Family Court
for disposition of their motion for reconsideration and/or new trial. On September 16, 2003, this
Court remanded the matter to the Family Court and ordered that the trial justice hear the motion
“as soon as practicable.”
On October 23, 2003, the trial justice, after reviewing the parties’ briefs and oral
arguments, granted the parents’ motion to reopen the case. The trial justice found that the ability
of the parents’ proffered expert, Dr. Cathleen Raggio, “to form any opinion with respect to the
issue involved in this case could not have occurred until sometime after the conclusion of the
testimony in this case, sometime around March of 2000.” Therefore, the trial justice concluded,
“it would have been physically impossible for the [parents] to [have] know[n] this evidence at
the time of trial.” The trial justice also found that this newly discovered evidence, if admitted,
“indicates that the findings would, in fact, be changed and the decision would, in fact, be
opposite to the decision rendered by this [c]ourt * * *.” Thereafter, the trial justice allowed the
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parties to engage in discovery, heard testimony for three days in November 2003 and January
2004, and reviewed written closing arguments. On January 23, 2004, after hearing the extensive
direct examination of Dr. Raggio, the trial justice concluded that Dr. Raggio arrived at her
opinions in “‘what appears to be a scientifically sound and methodologically reliable manner,’”
see Owens v. Silvia, 838 A.2d 881 (R.I. 2003), and admitted her testimony over the objection of
DCYF. DCYF then vigorously cross-examined Dr. Raggio.
On November 5, 2004, the trial justice issued a written decision in which he reversed his
earlier decision on the petition alleging abuse and neglect. The trial justice explained that his
earlier decision was not based on direct evidence of abuse, but rather, on an inference from the
fact that the parents were the principal caretakers of the child since birth. The trial justice further
noted that “[t]here was no competent medical evidence to support the position of the [parents]
when the decision was rendered on September 14, 2000.” “This [c]ourt made its decision
without the benefit of direct evidence of abuse but relying on the Supreme Court cases holding
that the trial court may draw a reasonable inference that the alleged child abuse was inflicted
upon the child by the parent or parents who were the principal caretakers of the child since
birth.”
In reconsidering his earlier decision, the trial justice addressed two issues, “[w]hether the
expert testimony and opinion of Dr. Raggio is admissible in that it is based on scientifically valid
methodologies or principles and is sufficiently tied to the facts at issue in this case” and “[i]f, in
fact, Dr. Raggio’s testimony is based on scientifically valid methodologies or principles and is
sufficiently tied to the facts at issue in this case, had DCYF then sustained its burden of proof
with respect to the abuse by clear and convincing evidence.”
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In revisiting his decision to admit Dr. Raggio’s testimony, the trial justice first examined
Dr. Raggio’s credentials and found them “most impressive.” He specifically noted that Dr.
Raggio was an “Assistant Scientist–Research Division, at the Hospital for Special Surgery” in
New York City (ranked as the number two hospital in the country in orthopedics), had published
extensively in the “area of bones and other orthopedic issues,” spent 30 percent of her time doing
research, saw on average seventy to eighty patients per week with bone-related problems, that
her patients ranged in age from birth to sixteen years old, and that “a significant number of cases
referred to her over the past seven years involved children with fractures suspected to be the
result of child abuse.”
In his November 5, 2004 decision, the trial justice reviewed the testimony of Dr. Raggio,
along with the evidence presented in the earlier trial, and concluded that:
“This Court is, in fact, convinced by the medical testimony
produced at these hearings by the respondent parents that the
testimony is, in fact, clear, direct, weighty and convincing as to
what this child was suffering from and which, therefore, led to the
fractures that she sustained. There is absolutely no testimony with
respect to any tendency of the parents to be abusive. There is
absolutely no testimony to indicate what the parents may have
done to be abusive. The only testimony was the testimony that the
parents were the principal caretakers of the child at the time the
child suffered the fractures. There is now testimony explaining the
child’s evolving medical condition which, in fact, led to the
fractures while in the course of the normal handling and everyday
activities.
“This Court is convinced that the State has failed to sustain
its burden of proof by clear and convincing evidence. Therefore,
the petition filed by the State through its Department of Children,
Youth and Families is denied and dismissed.”
After receiving the November 5, 2004 decision, DCYF filed a motion for stay, which the
trial justice granted. No further orders were entered until a duty justice of this Court remanded
the case “for the entry of orders for the protection of the parties and disposition of the custody of
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the child pending the appellate proceedings * * *.” On December 29, 2004, the trial justice
issued a detailed follow-up order making provision for visitation and for gradual reunification of
the parents and child.
DCYF filed with this Court a motion to stay, which was granted
temporarily by a duty justice of this Court. On January 7, 2005, this Court granted DCYF’s
motion to stay the December 29, 2004 order, and assigned this case for briefing and oral
arguments.
DCYF has raised several issues in its appeal, essentially arguing that the trial justice was
correct in his original finding of abuse, but erred in finding that termination of parental rights
was not in the child’s best interests, and further erred in dismissing the abuse petition upon
reconsideration. Because we deem this latter contention dispositive, we need address only the
following issue—whether the trial justice erred in dismissing the abuse petition after
reconsidering the parents’ new evidence.
Admissibility of Dr. Raggio’s Expert Testimony
DCYF challenges both the trial justice’s decision to admit Dr. Raggio’s testimony and his
reliance on that testimony to support his finding that DCYF did not sustain its burden of proving
that Mackenzie’s fractures were caused by physical abuse. First, DCYF avers that the “trial
justice erred in admitting the testimony of Dr. Raggio based on her failure to establish a valid
methodology to test her theories, including her inability to test her theory, paucity of peer review,
unknown rate of error, lack of general acceptance in the orthopedic community[,] and the fact
that her unique opinions, which she as a published researcher has never submitted to any journal,
was created merely for purposes of testifying.”
In admitting Dr. Raggio’s testimony, the trial justice first cited Dr. Raggio’s “superb
credentials in her field,” and noted that “there is no indication before this Court that novel
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theories or junk science is being proposed.” The trial justice interpreted the thrust of Dr.
Raggio’s testimony as applying the known scientific principles of bone development and disease
to the facts of this case “including the signs and symptoms that we have found this child to have
in the past and * * * developing at the present, as well as the family history.” The trial justice
concluded that “in combining all of these factors, [Dr. Raggio is] in a position to now conclude
on the basis of a known scientific diagnosis where it applies in this case.”
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 597 (1993), the
United States Supreme Court held that, under the Federal Rules of Evidence, a trial justice, in
admitting expert testimony, acts as a “gatekeep[er]” to “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but [also] reliable.” “This Court has
recognized the applicability of Daubert to situations in which scientific testimony is proposed in
Rhode Island state courts.” Raimbeault v. Takeuchi Manufacturing Ltd. (U.S.), 772 A.2d 1056,
1061 (R.I. 2001). Rule 702 of the Rhode Island Rules of Evidence governs the admission of
expert testimony in Rhode Island courts. Rule 702 provides:
“If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of fact or opinion.”
“The purpose of expert testimony is to aid in the search for the truth. It need not be conclusive
and has no special status in the evidentiary framework of a trial.” Owens, 838 A.2d at 890
(quoting Morra v. Harrop, 791 A.2d 472, 477 (R.I. 2002)). “The primary function of the trial
justice’s gate-keeping role is to assure that the proposed expert testimony, presented as a
scientifically valid theory, is not mere ‘junk science.’” Id. at 891. “As a result, the trial justice
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must ensure that the parties present * * * only expert testimony that is based on ostensibly
reliable scientific reasoning and methodology.” Id.
If a party seeks to introduce “novel or highly complex scientific or technical expert
testimony,” Owens, 838 A.2d at 891, “the trial justice may admit the expert testimony only if the
expert proposes to testify ‘to (1) scientific knowledge that (2) will assist the trier of fact.’” Id.
(quoting DiPetrillo, 729 A.2d at 687).2
In addressing the first part of the inquiry, often referred to as the “reliability” test, the trial
justice examines four non-exclusive factors in determining whether expert testimony about novel
or technically complex theories or procedures possesses scientific validity. “They are: (1)
whether the proffered knowledge has been or can be tested; (2) whether the theory or technique
has been the subject of peer review and publication; (3) whether there is a known or potential
rate of error; and (4) whether the theory or technique has gained general acceptance in the
scientific community. * * * Satisfaction of one or more of these factors may be sufficient to
admit the evidence and each factor need not be given equal weight in the analysis. * * * The
court may also consider the qualifications of the expert in determining whether the underlying
methods are reliable.” Owens, 838 A.2d at 891-92 (citing DiPetrillo, 729 A.2d at 689). In
addressing the second part of the inquiry, the trial justice examines whether the expert’s
testimony is “sufficiently tied to the facts of the case that it will aid the [fact-finder] in resolving
a factual dispute.” Id. at 891n.3 (quoting DiPetrillo, 729 A.2d at 689). “If the testimony
‘logically advances a material aspect of the proposing party’s case,’ * * * the court may deem it
relevant and admissible.” Id. (quoting DiPetrillo, 729 A.2d at 689).
2
“Helpfulness to the trier of fact is the most critical consideration for the trial justice in
determining whether to admit proposed expert testimony.” Owens v. Silvia, 838 A.2d 881, 891
(R.I. 2003).
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”A trial justice’s ruling on the admissibility of an expert witness’s proffered testimony
‘will be sustained provided the discretion has been soundly and judicially exercised, that is, if it
has been exercised in the light of reason applied to all the facts and with a view to the rights of
all the parties to the action, * * * and not arbitrarily or willfully, but with just regard to what is
right and equitable under the circumstances and the law.’” Owens, 838 A.2d at 890 (quoting
Morra, 791 A.2d at 476-77).
Here, a factual dispute existed about the cause of the child’s fractures, and Dr. Raggio
was qualified, based on her impressive credentials, to opine about the cause of those injuries.
Doctor Raggio based her opinion about the child’s disorder and the cause of her fractures on: a
review of scientific literature; a physical examination of the child; the medical history of the
child and her family, including the child’s recent diagnosis of tenosynovitis and joint laxity along
with indications of intrauterine crowding caused by a short umbilical cord and a fibroid tumor;
and the results of her own research on bone disorders and laxity. The trial justice noted that Dr.
Raggio’s “testimony did not involve any new and esoteric medical conditions,” but rather,
involved “a better understanding and knowledge of existing conditions and their impact upon the
patient.” The trial justice found that the testimony of Dr. Raggio “appears to be scientifically
sound and methodologically reliable.”
In this case, we conclude that the trial justice did not abuse his discretion in admitting
Dr. Raggio’s testimony. The trial justice reviewed Dr. Raggio’s credentials and the method
through which she arrived at her opinion and found them to be scientifically sound and
methodologically reliable.
As we have noted, “[t]rial justices are not required to become
scientific experts” in determining the admissibility of expert testimony. Owens, 838 A.2d at 892.
“The proponent of the evidence need only show that the expert arrived at his or her conclusion in
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what appears to be a scientifically sound and methodologically reliable manner.” Id. The trial
justice’s focus is not on the ultimate conclusion of the expert, but rather, whether the reasoning
used in forming the expert conclusion was sound. Id. at 896 (citing DiPetrillo, 729 A.2d at 68990). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Id. at 892 (quoting Daubert, 509 U.S. at 596).
Moreover, it is clear that Dr. Raggio’s opinions were “sufficiently tied to the facts of the
case” that they would aid the trial justice in resolving the factual dispute about the cause of the
child’s fractures. As we previously have stated, “[t]he purpose of expert testimony is to aid in
the search for the truth.” Owens, 838 A.2d at 890 (quoting Morra, 791 A.2d at 477). “If the
testimony ‘logically advances a material aspect of the proposing party’s case,’ * * * the court
may deem it relevant and admissible.” Id. at 891n.3 (quoting DiPetrillo, 729 A.2d at 689).
Consequently, we conclude that the trial justice soundly and judicially exercised his discretion in
the light of reason applied to all the facts, with a view to the rights of all the parties to the action,
and with just regard to what is right and equitable under the circumstances and the law.
Dismissal of Abuse Petition
DCYF argues that the trial justice erred in dismissing the abuse petition after considering
the parents’ new evidence. DCYF contends that the evidence does not support Dr. Raggio’s
diagnosis of Ehlers-Danlos Syndrome (EDS) or her hypothesis that EDS contributed to the
child’s nineteen fractures. Consequently, DCYF contends that the trial justice erred in reversing
his earlier determination that “the conduct of the parents to the child was of a cruel and abusive
nature” and that the “parents are unfit at this time by reason of conduct or conditions seriously
detrimental to the child, which resulted in cruel and abusive conduct to the child.”
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“In reviewing an appeal from a decree of the Family Court, we examine the record to
determine whether legally competent evidence exists in it to support findings made by the trial
justice.” In re Robert S., 762 A.2d 1199, 1200 (R.I. 2000). These findings “are entitled to great
weight and will not be reversed on appeal unless the justice overlooked or misconceived material
evidence, or was otherwise clearly wrong.” In re Isabella C., 852 A.2d 550, 555 (R.I. 2004).
After our review of the record, we are satisfied that the trial justice was acting within his
discretionary authority in reversing his earlier finding of abuse. Of significant importance in this
case is the fact that the trial justice, in reaching his initial finding of abuse, found no direct
evidence of abuse on the part of the parents. In his initial written decision, the trial justice
explicitly stated that “there was no direct evidence that the alleged child abuse was committed by
the parents — acknowledged to be the principal caretakers of this child since birth.” The trial
justice noted that the lab tests and the opinions of DCYF’s experts established that the child did
not suffer from a bone disease, metabolic disorder, genetic disorder, or other medical condition
that would account for the nineteen fractures. The trial justice found “absolutely no medical
evidence” to support the opinion of the parents’ expert witness, Dr. Colin Paterson, that the child
suffered from “temporary brittle bone disease.” Instead, the trial justice drew a permissible
inference that “the parents have inflicted or allowed to be inflicted upon the child, physical
injury” and that their conduct was “of a cruel and abusive nature.” The trial justice couched his
findings, however, by recognizing that this case involved a “difficult area of medical science”
and prophesized that “it is possible that in five years or so, any difficulties may be resolved to the
satisfaction of the entire scientific-medical community.”
Four years later, the testimony of Dr. Raggio convinced the trial justice that the child’s
fractures were not caused by abuse, but rather, were caused by a medical condition that led to the
18
fractures in the course of “normal handling and everyday activities.” After reviewing the
extensive record and voluminous transcripts, we conclude that legally competent evidence exists
to support the findings of the trial justice.
Doctor Raggio testified that, in her opinion, based upon reasonable medical certainty,
Mackenzie suffered from an “Ehlers-Danlos type syndrome” and combined with intrauterine
conditions, namely a short umbilical cord and a fibroid tumor that restricted her movement
before she was born, she had “abnormal bone,” which resulted in her suffering fractures in the
course of normal handling. Doctor Raggio based her conclusion that the child had this “EhlersDanlos type syndrome” on a full orthopedic examination of the child, which revealed that the
child had loose ligaments and a grayish sclera, the medical history of the child’s mother, a
review of medical literature, and the fact that the child was diagnosed with tenosynovitis in
November 2003.
Moreover, Dr. Raggio testified that many of the child’s fractures were
“symmetrical” and that with abnormal bone “it’s easy to get that kind of fracture.”
This
testimony about the significance of the symmetrical nature of the fractures was bolstered by the
testimony of Dr. Patricia Solga, DCYF’s expert witness, who testified that symmetrical fractures
are “very likely” to be seen when bones are abnormal.
Consequently, given the lack of direct evidence that the parents abused the child,
combined with the expert medical testimony explaining the child’s condition, we discern no error
on the part of the trial justice in denying and dismissing the abuse petition filed by DCYF for
failing to sustain its burden of proof by clear and convincing evidence.
19
We have no need to address the parties’ arguments about the trial justice’s denial of the
petition for termination of parental rights.3 Before “permanently sever[ing] the rights of a parent
in his or her natural children, the state must prove by clear and convincing evidence that the
parent is unfit.” In re Russell S., 763 A.2d 648, 649 (R.I. 2000) (quoting In re Nicole B., 703
A.2d 612, 615 (R.I. 1997)); see also § 15-7-7; In re Kyle S., 692 A.2d 329, 333 (R.I. 1997)
(noting that a “judicial finding of parental unfitness is a condition precedent to the involuntary
termination of parental rights”).
Conclusion
As we indicated at the outset of this opinion, this is a difficult and very troubling case and
one in which there can be no absolute certainty about the future for this young girl. We are
confident, however, that all parties were provided ample opportunity to present their evidence to
the court, and that the trial justice gave due deliberation to the arguments advanced by each side.
Indeed, both DCYF and the parents produced well-credentialed medical experts to support their
respective positions. In the end, the trial justice accepted the testimony of Dr. Raggio, finding
that competent medical evidence is now available to explain Mackenzie’s injuries that was not
available four years earlier when he made his initial finding of abuse. The trial justice therefore
reversed his initial decision, and found that DCYF had not proven the allegations of abuse by
clear and convincing evidence. It undoubtedly was a difficult decision, but one that was within
his sound discretion to make. In affirming the decree, we are reminded of the sentiments of
Ralph Waldo Emerson:
“[S]peak what you think to-day in words as hard as cannon balls,
and to-morrow speak what to-morrow thinks in hard words again,
3
Likewise, we decline to address DCYF’s asseveration that the trial justice erred in finding that
the child’s facial bruises were not caused by the parents. In its appellate brief, DCYF candidly
admits that this finding is “inconsequential to the outcome of this case.”
20
though it contradict everything you said to-day.” Essays by Ralph
Waldo Emerson, Self-Reliance 35, 47 (James Monroe & Co. 1841)
(The Classics of Liberty Library 1995).
Accordingly, we affirm the decrees dismissing both the termination petition and abuse
petition, and remand the case to the Family Court.
21
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