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Oliveaux v. St. Francis Medical Center12/15/2004
tion of the home revealed the chest of drawers in an upright position with the bottom drawer still "cocked" where the child was allegedly climbing up on it when it fell over on top of her. The problem here is that even after falling the chest of drawers was again upright with the drawer in the same position. This should have immediately aroused the investigator's suspicion as to the validity of the claimed injury. The scene of the event which injured the child had obviously been staged by the perpetrator.
The skull fractures suffered by the child are one of the most overt signs of child abuse and an indicator of Shaken Infant Syndrome. Again, this did not seem to arouse any suspicion of the investigator or CPS.
A records request was sent forward by CPS and Mrs. Griffon on December 8, 1993, and was received on December 17, 1993. These records showed that the child had been admitted to the emergency room on three (3) previous occasions with various injuries which were suspicious in nature. This was yet another strong indicator that something was seriously wrong in this case and that further investigation would be warranted. However, this information was not relevant at the time of receipt because CPS had already closed the case as "unfounded" and all complaints were invalidated.
In spite of the invalidation of the case by CPS there was still time to reopen the matter and further investigate based upon this newly discovered information. It would have been very easy for CPS to have requested an instanter removal order, either verbal or written, from a judge until all of the issues surrounding the matter could have been better resolved. Children have been removed from homes because of abuse or suspected abuse on far less factual situations and overt evidence than presented here. Additionally, at all times CPS has a specially trained and qualified pediatrician in the areas of child abuse and sexual abuse of children who could have been consulted. Again, no such action was taken by CPS or any of its employees/agents. On the date of Saturday, December 18, 1993, Jimmy Duncan murdered Haley Oliveaux.
The record of this matter fully supports appellant's position that the actions and inactions of CPS and its employees/agents were negligent and grossly negligent in their actions. Therefore the qualified immunities of Articles 611 and 612 of the Louisiana Children's Code and R.S. 9:2798.1 should not have automatically applied to them.
Unfortunately, a further review of this record clearly shows that this jury was never put into a position to consider these questions. This was because of the actions of the trial court judge and the jury interrogatories and overall jury charge presented to them. This is especially true when it appears that the trial court judge made a ruling prior to the beginning of the trial that CPS was entitled to the qualified immunity as a matter of law, without hearing the evidence to be presented.
The jury interrogatories and the jury charge itself were very generic and did nothing to help instruct and guide the jury on the issues of child abuse and the overt signs of it. The majority seems quite satisfied that the jury charge and interrogatories closely track the standard charges outlined in Alton Johnson, Civil Jury Instructions, 18 La. Civ. L. Treatise, Sec. 3013 (West Group, (c)2001). This is perhaps true in other civil cases but it is felt that it is not true in the case presently before us.
Child abuse is a dark, murky world that very few persons are ever exposed to. In fact, the average layman rejects this as, thankfully, counter to their standard of living and treatment of their children. It is a world of lies,
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