Wednesday, April 29, 2009
By PETER H. MILLIKEN
VINDICATOR STAFF WRITER
YOUNGSTOWN — A Boardman lawyer has sued the Mahoning County Children Services Board for $16 million on behalf of an Austintown couple, who say the board improperly and negligently removed four children from the couple’s custody.
The civil lawsuit was filed in Mahoning County Common Pleas Court by Atty. David L. Engler on behalf of Ryan and Trisha McCabe of Signature Drive.
The suit seeks $10 million in punitive damages and $1 million each in compensatory damages for emotional duress, negligence, malicious prosecution, violation of constitutional rights, slander and loss of consortium.
“The damage was so tremendous and the action so outrageous that it was difficult to actually come up with a number that would fairly compensate the plaintiffs for the nightmare that they suffered,” Engler said.
Speaking of CSB and its staff, Engler said he wanted to arrive at “some number that would cause them to behave differently in the future.”
Denise E. Stewart, CSB executive director, said only that the agency hasn’t been formally served with the lawsuit, but it will refer the matter to the county prosecutor’s office, which defends county agencies in civil lawsuits. Stewart declined to discuss specifics of the case.
The McCabes could not be reached to comment.
CSB alleged on Aug. 21, 2006, that the couple’s children, then a 2-year-old girl and 3-month-old identical triplet boys, were abused and neglected, the suit says.
Two unidentified board employees, listed in the suit as John and Jane Doe defendants, removed the children from their parents’ custody “without any reasonable basis to do so,” the suit alleges.
The removals occurred despite evidence of alternative medical explanations for the boys’ bone fractures; and the removals occurred against the advice of Louis L. Wainwright, the board’s chief supervisor of residential placement, whose internal review found no cause for action against the parents, the suit said.
Attached to Engler’s complaint was an April 23, 2008, journal entry from Judge Theresa Dellick of Mahoning County Juvenile Court, who said: “Evidence was provided to conclude no abuse was done by Ryan and Trisha McCabe.” Judge Dellick ordered CSB’s complaint dismissed and custody awarded to the McCabes.
In making her ruling, Judge Dellick upheld the ruling of her magistrate, Samuel G. Amendolara, who heard several doctors testify in hearings in May and June 2007.
Dr. Michelle Marks, a physician from the Cleveland Clinic, said one boy’s condition likely stemmed from Kawasaki syndrome (inflammation of the mid-sized arteries) and said she couldn’t rule out osteogenesis imperfecta (a genetic brittle bone disorder).
Dr. Ben Kovalchik, the physician at Forum Health Northside Medical Center who initially reported evidence of the fractures to CSB, said he thought abuse was evident, but he didn’t believe the children’s parents inflicted it.
The three boys had signs of previous rib and skull fractures, which had healed or were healing when Dr. Kovalchik made his report to the child protective agency, Engler said.
It is not uncommon for bones to be broken in cases such as this, where there are multiple premature births and the mother has taken fertility medications, as was the case here, testified Dr. Charles Hyman of Riverside, Calif., and Dr. Antoine T. El-Hayek, a Boardman high risk pregnancy and fertility specialist.
Another physician, Dr. Sayed El-Azeem of Boardman, testified that he believed the McCabes did not cause the abuse reported by CSB. He said they “are wonderful parents, and no direct signs of abuse are apparent,” according to the journal entry.
The lawsuit is assigned to Judge R. Scott Krichbaum.