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this type of case in the criminal court with the reasonable doubt standard compounds this problem . Again , when an infant , young child , or traumatized youth is unable to tell a jury what happened or who hurt them , the state is forced to rely on compelling medical and circumstantial evidence in order to prove its case . The importance of medical staff carefully documenting the child ’ s injuries and having a qualified medical expert explain the significance of those injuries is critical in proving abuse or what the medical field refers to as non-accidental trauma . A difficult challenge in Vermont is that there are few medical experts in the field of child abuse pediatrics that can provide this critical testimony . The Child Advocacy and Protection Program ( CAPP ) at the Children ’ s Hospital at Dartmouth in Lebanon , New Hampshire , and the Child Safe Program in Burlington , Vermont , led by Medical Director Dr . Karyn Patno are excellent resources focused on identifying and treating children who have been physically or sexually abused and assisting law enforcement and prosecutors in keeping those children safe by providing expert testimony in our courtrooms .
Another obstacle in the Criminal Division is that some juries may be reluctant to find a person guilty of assault or cruelty to a child beyond a reasonable doubt based on circumstantial evidence and without the testimony of the child in the courtroom . The Vermont Supreme Court has held that even in criminal cases where the burden of proof is beyond a reasonable doubt , guilt can be proven by circumstantial evidence alone . 13 In order to overcome that reluctance , it is critical for law enforcement and DCF to thoroughly investigate these cases and provide a detailed timeline of the child ’ s appearance , health , and behavior before the injury and afterwards when the injury was first detected , as well as what adults had access to the child during this timeframe .
In addition , going back through a child ’ s
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medical history can be extremely helpful in finding earlier signs of abuse , referred to as “ sentinel injuries .” A sentinel injury is defined as “ a previous injury reported in the medical history that was suspicious for abuse because the infant could not cruise or the explanation was implausible .” 14 The interdisciplinary child protection team at Children ’ s Hospital of Wisconsin conducted a retrospective study of 401 children under the age of twelve months that were patients evaluated for abuse at the hospital between March 2001 and October 2011 . The study found that of the 200 cases of injury due to non-accidental trauma , 27.5 % of those children had a previous sentinel injury and 66 % of those cases , sentinel injuries occurred in infants less than three months of age . 15 Evidence of any sentinel injury should therefore heighten the level of suspicion for abuse in cases of pre-cruising ( or non-mobile ) infants . Furthermore , evidence of a sentinel injury is highly relevant evidence for a jury to consider when trying to decide whether a current injury to the same child is abuse or accidental .
Proving that a child was physically abused by a parent or caregiver is a legally and emotionally challenging process . Our legal system and juries should not require nor expect eyewitness testimony to prove child abuse cases . Whether removing a child from an abusive home through a juvenile CHINS proceeding or criminally prosecuting the person responsible for causing the abuse or pursuing both at the same time , these cases require the collaboration of law enforcement , social workers , and medical professionals . With their help , cases can be proved by facts ( that narrow down timeframes when the abuse happened and who had sole access to the child before and after an injury was detected ) and compelling medical evidence . ____________________ Kerry McDonald-Cady , Esq ., is a deputy state ’ s attorney with the Windham County
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State ’ s Attorneys Office handling juvenile cases since June 2010 . In 1998-2001 , she was a deputy state ’ s attorney in Bennington County where her interest ( and love ) for juvenile court began . Ms . McDonald-Cady , Esq ., is married to Christopher Cady , Esq ., and has two children , Jack ( 9 ) and Mary ( 7 ). She received the Justice for Children Task Force award for exemplary child protection and juvenile justice in May 2012 and the SRS Commissioner ’ s Award for “ outstanding service and contribution to the welfare of Vermont ’ s children ” for Bennington County in June 2001 . ____________________
1
Administration for Children & Families , Child Maltreatment 2013 Data Tables ( Jan . 15 , 2015 ).
2
Administration for Children & Families , 2009- 2013 Child Fatalities from Abuse in Vermont , Child Maltreatment 2013 Data Tables ( Jan . 15 , 2015 ).
3
Child Abuse Prevention and Treatment Act , 42 U . S . C . A . § 5106g ( as amended by the CAPTA Reauthorization Act of 2010 ).
4
33 V . S . A . § 5102 ( 3 )( A ) and ( B ).
5
13 V . S . A . § 1021 ( 1 ) and 13 V . S . A . § 1021 ( 2 ).
6
13 V . SA . § 1304 ( b ).
7
In re J . C . & T . F ., 2016 VT 9 ( citing In re L . M ., 2014 VT 17 , 29 : “ Because the critical focus in a CHINS proceeding is on the child ’ s well-being , the State is not required to demonstrate that the child has suffered actual harm , but rather is subject to a risk of harm .”).
8
33 V . S . A . § 5308 ( a )( 1 ) and 5308 ( b )( 1 ) - ( 4 ).
9
33 V . S . A . § 5308 ( a )( 2 ) and ( 3 ).
10
33 V . S . A . § 5315 ( a ).
11
33 V . S . A . § 5315 ( a ).
12
Presentation by Dr . Christina W . Christian , M . D ., Nov . 2 , 2015 , at the conference on Strategies for Justice : Responding to Serious Child Physical Abuse presented by the Vermont Children ’ s Alliance and the Vermont SIU Grants Program .
13
State v . Lawton , 164 Vt . 179 , 190-191 ( 1995 ).
14
Lynn K . Sheets et al ., Sentinel Injuries in Infants Evaluated for Child Physical Abuse , Pediatrics , March 2013 , at 701 .
15
Id .
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