The baby fell – and then the Plymouth parents' real pain began

Little Caleb Slaven was quietly sucking his fingers in the back of the ambulance on a sunny August day in 2009, providing some semblance of relief to his terrified mother as they headed to the hospital.

Moments earlier, the 2-month-old had fallen about 2 feet from his carrier to the concrete patio behind the family's home in Plymouth, hitting his head on some slate trim.

Tests at North Memorial Medical Center revealed bleeding on the brain, but no major permanent damage. Julie Slaven, a stay-at-home mom, and her husband, Shawn, a financial analyst for Cargill, figured it would be a few days of observation before the baby returned home, where his brother and sister waited with their grandparents.

Days later, instead of hospital discharge papers, the Slavens got notice that their son was being placed in emergency protective custody by Hennepin County, based on suspicion of child abuse. It triggered a two-month legal ordeal for the Slavens — with county officials eventually admitting they made a mistake — that lays bare the risks and ambiguities of child protection law.

The Slavens' bid to sue the Hennepin County in federal court ended unsuccessfully late last month, but they say their case is Exhibit A of a "guilty until proven innocent" child welfare system. "It seems that societally, we weigh so heavily in favor of the safety of the children that we want to incur the cost of procedural due process rights," said their attorney, Erick Kaardal.

Rex Holzemer, assistant Hennepin County administrator for human services, said cases like the Slavens' show that the work of social workers is challenging — at times difficult for both families and staff.

"I think this case recognizes that we did follow the protocols we are charged to follow," he said, noting that social workers often heed the advice of medical professionals. "We try to do as good a job as we can in every case."

Karina Forrest-Perkins, CEO of Prevent Child Abuse Minnesota, said enforcement of state child protection laws varies widely from county to county in Minnesota. Errors will be made, she said, but in a system where child welfare workers face a very difficult balancing act, they should always be made on the side of safety.

"Child welfare is a guessing game a lot of the time, and they're having to act in the best possible way with, many times, assumptions and sketchy information," she said. "From my chair, you err on the side of the safety and well-being of the child."

The CT scans of Caleb's brain, along with a retinal hemhorrage, caused hospital staff to file a report of suspected child abuse with Hennepin County on Aug. 20, 2009. They said the findings were inconsistent with a fall from a car seat. A board-certified child abuse pediatrician, Dr. Mark Hudson, said "there is reason to be quite concerned that the history does not account for the medical findings, and [Caleb's] ongoing safety must be a consideration."

"All of that being said," he wrote, "there is no single finding here diagnostic of non-accidental injury."

County child protection workers opened an investigation, and a police officer interviewed the Slavens' older children. The Slavens say they never knew for sure they were under investigation until they were ordered to attend a hearing on Aug. 25.

"I was speechless," Julie Slaven said. "Words weren't even coming out of my mouth coherently. I said 'You can't, I'm nursing. I'm a nursing mom.' "

Caleb was held in the hospital — his mother on another floor and only allowed to see him during nursing times.

The Slavens appeared in court Aug. 25 for a prima facie hearing, where prosecutors need only present minimal evidence to justify the petition. Assistant Hennepin County Attorney Jamie Cork asked Judge Kathryn Quaintance for an order to move the three Slavens children, including Caleb, Adelaide, then 5; and Joseph, then 3, "out of the care and custody of the Slavens."

The Slavens' attorney, Eric Olson, addressed the court, even though by law he was not allowed to present evidence contradicting the hospital staff's suspicions. "I have got to note that the petition itself brings doubt into what actually occurred here, and they contradict each other," he said.

Quaintance granted the request to remove the children, but allowed Julie's parents to move into the Slaven home to care for them rather than sending them to foster care. Julie Slaven, however, was ordered to move out of the house and see the children only under supervision. A trial date was set for Oct. 26.

But in a pretrial hearing, after case workers had visited the home, the county recommended that the children transition back into their parents' care. Julie Slaven was allowed to return home, and by early October 2009, Cork told the judge she anticipated dismissal of the case.

"Based upon the observation, it appears that the children are safe in the Slavens' care, and that the incident that occurred ... was accidental," she said, according to court records. The case was eventually dismissed.

Still, the Slavens felt they had a responsibility to fight the process.

"Although we're not being accused of a criminal matter, we're talking about somebody's kids," Shawn Slaven said. "We're talking about the relationship you have with your own flesh and blood."

In June 2011, the Slavens sued Hennepin County in federal court, accusing it of violating their due process rights by failing to allow them to provide evidence at the initial hearing. In addition, they said the two-month delay between the hearing and the scheduled trial was unconstitutionally long.

A federal judge dismissed the case, concluding that Hennepin County is not liable because it was enforcing Minnesota law. In an order issued late last month, the Eighth U.S. Circuit Court of Appeals agreed. "The Slavens' complaint essentially alleges that Minnesota law, and the state court judge's application of that law — not an independent Hennepin County policy — caused the due process violations."

Kaardal said the U.S. Constitution prevents parties from suing states in federal court, so it's unclear whether the Slavens' situation can ever be rectified.

"The ultimate question is, is the county doing this to everyone? And if it is, there should be multiple people that complain about it." Kaardal said.

Sitting on the couch of their Plymouth home last weekend, Caleb Slaven — now 3 but quick to point out that he'll turn 4 in June — clambers onto his mother's lap and helps explain the color-coded card his sister Adelaide created for the Easter Bunny so the "big kids" don't get all the eggs.

The Slavens, now parents of five, say they're not sure what's next. "We knew it was a David and Goliath case," Julie said. "But I'm just a firm believer that everything happens for a reason, and ... that what happened to us will help other people."

Abby Simons • 612-673-4921