In a quiet courtroom in Phoenix, a mother is speaking softly into a microphone. The court reporter, who is sitting 2 feet away, can't hear her.
"Can you speak up, please? I need to hear everything you say and you're not loud enough."
The mother looks down. Her eyes fill with tears. "Do I have to talk about this?"
"I'm sorry, but yes you do," the judge says.
The mother, Danielle, is going to tell us what happened the night, more than a year ago, that her infant son, Thomas, was nearly murdered. This hearing isn't ostensibly about Thomas; it's about his new baby sister, Karina. But for most of us here, it is about Thomas, his massive head trauma, his kidney failure, his blindness, his constant diarrhea, his relentless pain.
Karina was born this summer, about three months after the court placed a "Do not resuscitate" order on her brother because the violence done to him had left him in constant danger of physical failure that would be excruciatingly painful -- and impossible to reverse. Thomas' was a terminal diagnosis and the DNR gave some assurance that he could die quickly when the time came.
Karina was taken from Danielle and placed in foster care when she was 3 days old. Danielle wants her back and today is trying to convince the court that she can take care of Karina, that what happened to Thomas was a fluke, an accident for which no one is to blame.
As a court-appointed special advocate, I work mainly with victims of child abuse who are younger than 6 years old. In every case I've had, mothers who've had a young child removed from their home because of allegations of child abuse have gotten pregnant almost immediately after the abused child was taken away.
Maybe it's biological, the will of the human species to persist, to carry on. Maybe it's accidental. Sometimes I think that the parents hope to re-create the feeling of joy they may have had when the first child was born. I find it hard to accept the idea that the new child is conceived to be a replacement for the child who was taken, because I don't believe that a parent ever fully recovers from the loss of a child, no matter how the loss occurred. But for whatever the reason, it happens, and it has happened again.
It was about a month after Thomas' DNR hearing that we figured out Danielle was pregnant. Thomas' caseworker guessed first, and then asked her. It was true. Danielle was seven months pregnant and as excited as any expectant mother would be. I don't think she had a clue how likely it was that Child Protective Services would take the baby.
Thomas' caseworker kept close tabs on Danielle, and tried to help her prepare for a new baby. She worked with her to find a job, to use public transportation and to get public assistance. They spent a lot of time together, and the caseworker began to sympathize with Danielle. "She's really a sweet girl, and she's trying. Maybe we can find a way for her to keep this baby," she would tell me.
Danielle's boyfriend, the father of both Thomas and Karina, was in jail, leaving Danielle completely on her own for the first time in her life. She was staying in the house they shared with friends, and waiting for him to come home.
The caseworker asked Danielle to phone her when the baby was born, and Danielle said she would. The caseworker also called local hospitals and asked to be alerted if Danielle checked in to deliver her baby. Even though she felt like she'd made a connection with Danielle, she was still afraid that Danielle might leave town when the baby was due, to avoid any involvement with CPS.
But the day after Karina was born, Danielle did call the caseworker. Karina was born full term, a beautiful baby, perfectly healthy, with chubby cheeks and a shock of shiny dark hair. The caseworker hung up the phone after congratulating Danielle on her new daughter and set in motion the chain of events that would ultimately take Karina from her mother. She later told me she felt horrible for Danielle, and hated having to make the call to have the case investigated. "I'm too close to her now," she said, relieved after being removed from the case. "I couldn't be the one to take that baby from her."
Two days later, Danielle was preparing to check out of the hospital and take her baby home when a CPS caseworker arrived in her room. Danielle sobbed as the caseworker explained why they had to take Karina and what would happen next. She talked to Danielle about continuing to breast-feed, the regular visitation she'd be allowed and the type of foster home where CPS would place Karina.
It has been three months now, and a judge is finally going to determine what will happen to Karina. To an enormous degree -- at least for me -- it will depend on what happened to Thomas. I have never heard Danielle speak about what happened to her son, and she is not required to testify in this hearing. The attorney for Thomas' father already forbade him from testifying because anything that comes up in court now could be used against him in a criminal trial. There still aren't any criminal charges for what happened to Thomas, so nobody knows who will be charged, or with what. But Danielle testifies anyway, called as a witness by the CPS attorney.
I think of the last time I saw Thomas. When I arrived at his foster home on a hot day in July, his foster mom said that we were going swimming. "Can he get in with his tubes and machines?" I asked. "No," she said, "we unhook him."
She carefully disconnected the tube that went from Thomas' stomach to the radio-size feeding machine. She removed the splints that force his arms and legs into proper alignment, and she took off his clothes, revealing peeling skin that is acutely sensitive. She carefully put a swim diaper on him. He was crying -- he often is, unless the pain completely overwhelms his ability to respond to it.
"Here, take him."
The minute the water covered him, Thomas quieted. "Let him float," she said.
I maneuvered him onto his back in the water, holding him up with my hands under his shoulders. His body, normally rigid and tight, relaxed. His legs stretched out so they looked straight. He held his hands out to his sides and made tiny circles with them. I could see his toes flexing, and his breathing evened out. He looked, for the first time that I'd ever seen, comfortable.
We stayed in the pool until it grew dark, until the porch lights came on and it was time for his foster family to have dinner. I gathered Thomas up in my arms, and it was as if I was waking him from a pleasant dream. I wrapped a towel around him, and he started to moan. "He always does," his foster mom told me. "He hates getting out, because he can feel his body again."
Danielle says in the hearing that on the night Thomas was injured, she was out getting fast food with a friend. She had left Thomas with his father. The baby was very fussy and Danielle said she thought it was because he was tired, so she gave him a bottle and left. When she returned, an ambulance was in front of the house, and paramedics had Thomas on a stretcher.
Tears stream down her cheeks as Danielle tells the judge that Thomas was rushed to the hospital, that he died when he got there and that he was revived and put on life support. She says her boyfriend told her that he thought Thomas was choking, because he turned blue and wasn't breathing, so he tried to do CPR. But nothing he tried was working, so he called 911. The father told her he didn't do anything to Thomas except try to help him.
Danielle believes him. She thinks that Thomas' injuries were caused by the CPR.
When the CPS attorney asks her about a skull fracture the doctors say happened at least three days before the other injuries, Danielle says she doesn't know anything about that. She never saw X-rays of it, she says, so she's not sure it happened. The attorney looks surprised. "Are you saying that since you didn't see a picture of it, you don't believe what the doctors told you?"
"Objection, argumentative," Danielle's attorney says.
"Sustained," the judge says.
The CPS attorney tries again. "Do you agree with the doctors that Thomas had a three-day-old skull fracture on the day he went to the hospital?"
"I don't know. I didn't see any pictures of it."
Then the lawyer asks if Danielle would feel comfortable leaving an infant alone with her boyfriend in the future. Danielle says she doesn't see any problem with that, since she never saw her boyfriend hurt Thomas.
I am stunned.
When Thomas arrived at the hospital on the night of his beating, his internal organs were lacerated, his abdomen was pummeled as if he had been in a violent car crash, his skull was cracked, his brain was injured, he could not see or hear and his systems began to fail, one at a time.
Doctors have testified more than once that it is not possible that Thomas sustained his injuries as a result of improperly, even brutally, administered CPR. Today yet another doctor testifies that Thomas' internal organs were lacerated, that one of his kidneys was "pulverized." The doctor says that the kidneys are located so far back in the body that it's impossible to destroy them in this way without a brutal kick or a punch.
Danielle's attorney cross-examines the doctor: "Are you saying that there's no way that I could, if I were giving CPR and if I were panicking, push on a child's chest so hard that it would cause these injuries? That it's impossible?"
"Yes, that's what I'm saying," the doctor says.
The CPS attorney asks Danielle how she would protect Karina. Danielle looks confused. "How will I protect her?"
"Yes, how will you protect her from being hurt like Thomas was?"
"Well, I'll take her to the doctor, and I'll take care of her, and I'll try to make sure she doesn't choke on anything."
The judge is looking for some evidence that Danielle acknowledges what happened to Thomas -- that he was abused and that she takes some responsibility for that. The judge wants to see some progress in Danielle's understanding of how to take care of her children. Instead, even after she has had months of parenting classes, Danielle seems not to know why she's here. She answers questions as if she thinks that everything that happened to Thomas was a bad accident that nobody could have prevented, and that neither she nor her boyfriend shares any responsibility for Thomas' injuries.
I met Karina several weeks before the hearing. Her foster mother welcomed me into a bright yellow playroom lined with windows, overlooking a backyard with a sandbox and a swing set. Karina was in an antique cradle in the corner, on her back making little cooing newborn noises.
The foster mother picked her up and let me hold her. She settled into the crook of my arm once I held her upright against my chest. I was startled by how much she looks like Thomas -- the same nose, cheeks and mouth. I imagined that at one time, Thomas was like this, a tiny newborn, eyes open, looking around. I couldn't imagine someone punching this child so severely that her organs would be destroyed. I couldn't imagine anyone throwing her on the floor, breaking her skull. I can understand the parental rage and frustration that would bring you to the edge, but I don't know what it takes to make you cross the line.
I passed Karina back to her foster mom. "You have to take care of this little one," the foster mom told me.
Danielle and I meet alone for the first time a few days after the court hearing. Thomas' caseworker is right -- she's quiet and sweet, and I feel sorry for her. She's struggling with balancing work and visiting Karina. She has missed several visits because of car trouble, oversleeping or work conflicts, but she wants to keep up the schedule of seeing Karina three times a week. When I ask her what she wants me to tell the court, she says she would like to see Thomas more. She doesn't see him as often because he's difficult to transport. She'd like to see both children together at a shopping mall, so she can have their portrait taken. I tell her I'll try to arrange that.
It's not my job to be on the parents' side, nor is it my job to be against them. I'm supposed to gather information, report to the court and advocate for what I think is in the child's best interest. What do I do, though, when I can see the humanity in a parent who has so monumentally failed her child?
If Danielle were my sister, I would probably yell at her for being so dense as to believe that her boyfriend couldn't have hurt her baby. I would drive her to visits and talk to her about becoming independent and taking care of her children. I'd make sure she was signed up for public assistance, and I'd probably lend her the money for a security deposit on an apartment.
But I am not Danielle' sister and I can't mother her or do her mothering for her. I can't make her accept that someone hurt her child. I can't make her see that she bears some responsibility for that -- and for preventing it in the future. I have to take Danielle as she comes -- gentle, sincere and dangerously in denial about what happened to Thomas. I have to make sure that what happened to Thomas will be considered as we decide Karina's future. I am worried that it won't.
I believe in second chances, and in a parent's potential for remorse, rehabilitation and renewal, but Danielle seems to sincerely believe that nobody abused Thomas -- that his injuries were the terrible, fluky outcome of the heroics of his father. I keep waiting for her to say, "I'm going to get help. I didn't protect Thomas, so I want to learn to protect Karina." I want the attorneys to stop offering excuses for what could have happened, and start giving some answers about what did happen. I want somebody to tell me a story that matches the medical evidence.
When Danielle's attorney tells the court, "This is a different child -- the father is in jail, so he can't hurt this baby"; when Danielle says she would have no qualms leaving Karina with her father, I want to take the attorneys to see Thomas. I want them to see him cringe and wail, to have them watch as Thomas' foster mother flushes out his feeding tube and cleans the mucus out of his throat. I want them to tell me how they can be so sure that this boy's misery can have no bearing on his sister's life, how a job and a car will make a difference.
I know that Danielle's attorney is doing his job -- he's doing the same job that I'm doing, just for someone else. I know that the truth about Thomas' brush with death is possibly too horrible for Danielle to face. He's advocating for his client; she is protecting a fragile existence. I can understand that.
So all of us in the courtroom will tell our stories, raise our questions and fight for our clients, conveniently ignoring the subtleties that interfere with our clients' best interests -- all in an effort to persuade the court to do what we want it to do. And I will hope that the one lawyer in the room without an agenda -- the judge -- will find a way to protect the one person not in the room -- Karina -- who could possibly emerge unscathed from this proceeding.