Legal Strength Or Fraility

Sunday, February 14, 2010

For Love and For Justice / Part 111 / Zabeth and Paul Bayne

The Best that Jensen Can Do
Part Two of Two Parts

Following the Hoffman testimonies, Finn Jensen called upon his heavyweights for testimony, Adrienne Glen and Dr. Margaret Colbourne. They represent the concern that arose within the child protection unit of Vancouver Children’s Hospital when Bethany was admitted, examined, tested and treated. Each of these women was doing a specific job to the best of her ability and each I must assume fulfilled her role with integrity. Adrienne, an intake social worker at the hospital, visited and conversed with the Bayne family and medical professionals and wrote timely reports and in the process expressed her opinions, sometimes about the Baynes. Dr. Colbourne, very connected to the Shaken Baby Syndrome theory through involvement with an international SBS organization and committed to the understanding that the presence of the diagnostic triad of (1) retinal bleeding, (2) bleeding in the protective layer of the brain, and (3) brain swelling, is always indicative of SBS, made that SBS diagnosis with Bethany in 2007. The testimony of each woman in court affirmed her report from 2007 and was designed to discredit Paul and Zabeth as normal, concerned and loving parents and to imply their responsibility in harming their child, ultimately to convince the judge that MCFD has acted from the outset upon accurate and trustworthy data. The snag for Jensen is that Counsel Doug Christie was able to cross examine both witnesses and consequently weaken the import of their testimonies. Glen was compelled to admit that her recorded perceptions that the Baynes spent relatively little time with Bethany in hospital were skewed and inaccurate and that they had in fact spent many daily hours in hospital with Bethany. Colbourne’s qualifications as an expert were questioned with regard to an absence of biomechanical training needed to ascertain whether or not Bethany’s injuries were accidental or non accidental. Theoretically, Colbourne’s SBS diagnosis would benefit greatly from the next witness if he was effective.

Now came Jensen’s super heavyweight Shaken Baby witness, Dr. Randall Alexander from Florida, who has testified in over 300 similar cases, and who was here to assure the court that unquestionably, Bethany’s injuries were the result of shaking. His towering persona began to dissolve when he was forced to admit that he wrote his SBS report on Bethany months before seeing the actual film work on Bethany a day before entering the witness box. He had to admit that he had not read Bethany’s birth records, reports concerning Bethany from area hospitals, or any of the ten experts’ reports on Bethany that countered his SBS claim. It was clear to the judge that Alexander’s report had been written with incomplete medical information. What kind of evidence is this?

Most recently Social Worker Loren Humeny testified and was cross examined for almost the equivalent of four days. It would be fair to say that this did not go well for MCFD. Under cross-examination Humeny had to admit that the risk assessment was written when he was in an adversarial position with the Baynes, because the MCFD was already seeking a continuing care order on all three Bayne children which the parents opposed, and clearly he had to make a clear case for the sake of the order. He admitted that the risk assessment was highly subjective and primarily his opinion. The truth is it had a dearth of factual evidence. It essentially vilified the Baynes and on the one page customarily assigned to summarize strengths, Humeny noted no strengths for them as individuals, as a couple or as parents, saying he didn’t know them, yet having to admit that he had spent many hours with them in meetings. The hundreds of letters of reference in support of the Baynes, he admitted he knew about but had not read. So perhaps he doesn’t know them. Is this evidence? And this thus far is the best that Jensen has been able to do with what he has.

What seemed so strong, so ominous, is paler now and fragile.




Law Amplifies Weak Case

February 13, 2010

Ron Unruh gives the latest news on the Bayne trial, with skillfully chosen words.

Even a thin case can have the appearance of overwhelming and intimidating evidentiary value when it has been back lighted by a legislated power to remove children and hold on to them until a judicial ruling comes down. It has a perception of strength.

Last week the court heard testimony from social worker Loren Humeny. Mr Humeny based his opinion on six anonymous callers impugning the Baynes. In his assessment that outweighed hundreds of persons who have openly supported the Baynes.

In another post, Mr Unruh announces: Court has now recessed for one week and will resume again on Monday the Feb 22 at 9:30 am. The next scheduled witness is a radiologist and following his testimony social worker Kimberly Grey is to appear most probably on Feb 23. That will conclude the MCFD’s witnesses.




A False Perception Of Strength

Saturday, February 13, 2010

For Love and For Justice / Part 110 / Zabeth and Paul Bayne

The Best that Jensen Can Do
Part One of Two parts

Even a thin case can have the appearance of overwhelming and intimidating evidentiary value when it has been back lighted by a legislated power to remove children and hold on to them until a judicial ruling comes down. It has a perception of strength.

In the case of Paul and Zabeth Bayne and three children, Kent, Baden and Bethany, that darkly sinister evidence becomes smaller and smaller as the lumens of the spotlight of truth and justice are ever intensified.

Finn Jensen may have developed his case believing that it was strong. He is certainly a competent lawyer. Even this far into the trial he may be convinced that he can win this. Sadly, that’s what litigation aims at, winning! If he is successful, what will MCFD win? It will win the entitlement to keep the children from Paul and Zabeth permanently. It will win the right to force each of these three children to live throughout their remaining childhood and youth with adoptive parents and never to see their birth parents again, until perhaps one day as adults they opt to make a connection that was severed willfully not by their parents or themselves but by a judge and a ministry of a government under which they live.

Here is the best that Finn Jensen, counsel for the Ministry of Children can do in court.

What kind of evidence do you consider the following testimony to be? Jensen called Mike and Elizabeth Hoffman, a pastor and wife from Hope, B.C. where the Baynes resided at the time that this story began. These couples were friends, sharing faith and worship. The Hoffmans reported their concerns to authorities in 2007 and confirmed that report with testimony in the current hearing in January 2010. Based upon what he had learned in seminary psychology classes Michael Hoffman wondered whether Zabeth was suffering from post-partum depression and that she may have Munchausen’s syndrome by proxy, an uncommon condition in which a person harms another in order to gain attention. Consider the nature of this hypothesis that would imply she might do harm to her children. Is that evidence? Hoffman is not a medical or psychiatric doctor. He is not an expert nor does he purport to be. I too have taken seminary psychology. Seminary pysch informs you enough to state an opinion but doesn’t qualify you to make an assessment that is entered as evidence that a woman is a risk to her children. This is specially true now that medical professionals were told in court that they could not state an opinion as to whether the Bayne baby’s injuries were accidental or non-accidental. It is Jensen’s folly not Hoffman’s that this was entered as evidence in a court of law. Hoffman surmised, speculated or supposed that Zabeth might be suffering from this condition, that’s all and that is not evidence. Combine that with his wife’s testimony and what does Jensen have? Elizabeth gave testimony that the two boys seemed small for their age and that the little girl started looking increasingly listless. That may be concern but is that evidence? The children’s doctor was more aware than they and was satisfied with the children’s health status. This testimony is in the court transcript and in a CBC online story. Here is a sidelight. From a pastoral standpoint since I pastored for four decades, I suggest that it would have been prudent and so much more in keeping with the calling of a shepherd to sit with Paul and Zabeth to talk, to inquire, to learn, to offer encouragement and to help and to pray. Perhaps there is even a plausible answer to the course the Hoffmans chose, but is this evidence?




Anonymous Callers Called To Accountability

Friday, February 12, 2010

For Love and For Justice / Part 109 / Zabeth and Paul Bayne

This Trial Is Done With Loren Humeny, I Think
And this was another Huge Day

On Thursday, February 11, 2010, Doug Christie cross examined social worker Loren Humeny for one more day. I am sure Mr. Humeny was happy to step down from the witness box finally. This has been his third day of witness duty. He is also an observer for MCFD in court almost every day. He listened to all testimony preceding his own sworn testimony. Seems like a bit of a conflict but it wasn’t challenged.

During this cross examination, some progress was made for parents – not simply the Baynes, but parents like them who face allegations from anonymous callers. Now, don’t you want to keep reading? Yes, that’s correct. Presently, people can make calls to MCFD about you, your activities and your parenting or your children’s appearance or behaviour, and they can be classified as anonymous. Isn’t that convenient for them? Surreptitious, sneaky, clandestine callers. Mr. Humeny has referred to these anonymous callers as “collaterals,” since among other meanings the term designates those testimonies that serve to support or corroborate and are therefore collateral evidence.

Humeny said there were about six collaterals who communicated about the Baynes. Collaterals were very important to Mr. Humeny’s Risk Assessment document and to his testimony because he has placed more credence in this handful of collaterals who called him, than he did in the credibility of hundreds of people who called MCFD or sent emails or posted letters in support of the Baynes and their parenting and the characters. I know that because he acknowledged in court that he had not read any of that latter correspondence. He did however take seriously the content of the collaterals’ call ins who cast doubt upon the Bayne’s fitness as parents and it had been expected by the MCFD that these collaterals could remain anonymous.

Doug Christie had earlier requested that these collaterals should be identified in court. The Risk Assessment written by Humeny incorporated these call ins. Christie has argued that without identification, reference to the content of the call ins is mere hearsay, rather than evidence. Their testimony is dangerous to the Baynes but the collaterals could not be known or challenged. How can that be evidence, Christie demanded to know. On Thursday MCFD lawyer Finn Jensen began with arguments against Doug Christie’s request for disclosure of the several anonymous callers.

As he has done once before, Judge Crabtree took a brief intermission to deliberate and then returned with his ruling that this witness must identify the names of the anonymous callers. If you are at all sympathetic to the Baynes, you must agree that this is a good thing.

In fact, this may be precedent setting. This is repetitious but I must make the point. Previously persons, who called the MCFD with allegations of abuse or neglect, have had their anonymity protected under the Act that governs MCFD. For the Baynes and for other parents in similar situations, this anonymity of complainants has posed an insurmountable challenge because false information cannot be challenged. Anonymous callers are unaccountable for what they say. On Thursday, Judge Crabtree made a ruling that harmonizes with what fair-minded people have always known should happen. A court of law must make its decisions and judgements based upon fact and not hearsay. When a caller’s information is believed to be untrue there must be opportunity to cross examine these testimonies so the callers must be identified.

The identities and the credibility of the collaterals will be addressed later in this trial.




Abuse Indicators Not Present

Thursday, February 11, 2010

For Love and For Justice / Part 108 / Zabeth and Paul Bayne

Paul and Zabeth Do Not Fit the Profile

When a child is injured and medical professionals believe that abuse has occurred, here are the customary indicators of a parent or parents who are abusing their child or children. I will list them and then in italics comment with regard to the Baynes because not one of the indicators points a finger at either of the Baynes.

Indicators of Abusive Parents:
~Seems unconcerned about the child; The Baynes were immediately concerned and have been ever since.
~Takes an unusual amount of time to seek medical care for the child; Paul and Zabeth took Bethany Bayne to several local hospitals each of which failed to properly diagnose her symptoms and finally Children’s Hospital did a CT scan and subsequently made the tragic decision this was abuse.
~Offers inadequate or inappropriate explanations for child’s injuries; The Baynes did not know what caused their daughter to become gradually more ill but if a trauma produced it they could recall an incident when one child fell on the baby. They told this story from the beginning but it was not believed by child protection people.
~Gives different explanations for the same injury; The Baynes maintained their story with medical and MCFD and RCMP interrogators and have stuck to their story now for two years and three months. That is not unusual for honest and innocent people.
~Misuses drugs or alcohol; Even MCFD says there is not concern about this with the Baynes.
~Disciplines the child too harshly for a mistake or for the child’s age; There is no verifiable evidence of this.
~Sees the child as evil or bad; Not a chance! The Baynes love these children as gifts from God.
~Has a history of abuse; They do not!
~Attempts to conceal the child’s injuries; MCFD might argue this but the Baynes were diligent about taking their children for scheduled examinations and treatments.
~Takes the child to a new doctor for each injury; Baynes had a family doctor who was consistently supportive of them.
~Has an unorganized, upsetting home life; They maintained a clean, neat, and well organized home and schedule.
~Is apathetic, feels that nothing will ever change; Both Paul and Zabeth are convinced their lives are in God’s hands and are not at all apathetic. Through two years of this ‘hell’ they have grieved but been optimistic and full of faith.
~Is isolated from friends, family, relatives, neighbors; They have an army of friends, both intimate and casual. Dysfunction with specific family members or friends can be traceable to causes out of either Paul’s or Zabeth’s hands.
~Has long-term, chronic illness; Paul suffered a blow to the head at a steel plant. While it took months to heal the injury, he has not felt any effects from this injury since Jan 2006.
~Cannot be found; Not relevant. They are in the public eye, in the media and too public for the MCFD’s liking. They have been in MCFD’s face and it is MCFD who cannot be found for response to the Bayne concerns.
~Has a history of neglect; Not relevant. Their children have been withheld from them for over two years and during that time they have visited the children weekly for around 400 times, have not missed a visit, not been late and have asked for more visitation time.
~Role reversal with the child; blurred boundaries; Not relevant. MCFD stole two years and three months from this family’s developing relationships.
~Very protective, jealous, controlling; How could they be when the children have been removed from them for two years and three months? No one would describe efforts to recover one’s children, as controlling.
~Encourages child to participate in prostitution, sexual acts in the presence of the caregiver; Not relevant.
~History of sexual abuse; Not relevant.
~Low self-esteem, poor self-image; Both are well adjusted, outgoing and competent.
~Incapacitated mother; Not relevant. Zabeth is an eloquent, educated, organized, determined, responsible and compassionate woman.
~Makes harsh and/or destructive responses to the child’s requests; Not relevant.
~Threatens or terrorizes the child; Not relevant
~Believes that the child entices his/her own poor treatment; Not relevant
~Treats children in the family unequally; Not relevant
~Doesn’t seem to care much for the child’s problems; Untrue. Even following the shaken baby allegation, when the Baynes stumbled upon internal MCFD medical memoranda concerning Glutaric Aciduria being the cause of the symptoms for which SBS had been diagnosed, they appealed for her to be further tested and treated for this, but MCFD has not complied.
~Blames or belittles the child; Untrue
~Is cold and rejecting; The Baynes love and cuddle their children every chance they have and they always did.
~Withholds love; Not true
~Has unrealistic expectations; Not relevant
~May not have age appropriate expectations of the child; Not relevant
~Jealous; Untrue
~Poor impulse control; Untrue. They have demonstrated a remarkable control when faced with false accusations and slander.
~Marital problems; Untrue
~Psychotic or psychopathic; Not relevant
~Emotionally immature and impulsive. Untrue




Testimony From Social Worker Under Scrutiny

Wednesday, February 10, 2010

For Love and For Justice / Part 107 / Zabeth and Paul Bayne


Testimony Phase – Graduating with a Bachelor in Social Work, Loren Humeny has been a social worker for ten years and is presently an Intake Investigative Social Worker for the Ministry of Children and Family Development based out of Chilliwack. The Bayne file was his responsibility in collaboration with his supervisor, so he was the author of the report presented to Court. Mr. Humeny was in court to give testimony one week ago on February 2, 2010. At the end of that Tuesday, the cross examination by Bayne lawyer Doug Christie was postponed until Tuesday, February 09, 2010, in order to accommodate the testimonies of Dr. Colbourne and Dr. Randall Alexander both of which took place last week. Yesterday, Tuesday February 9, 2010, Mr. Humeny was back in the witness box for the cross examination portion.

According to Mr. Humeny’s testimony, the child protection unit of VCH (possibly Ms. Glen and/or Dr. Colbourne) alerted his office concerning the injuries to Bethany Bayne in the autumn of 2007. His investigative process included reports by and/ or conversations with Dr. Colbourne; and Vancouver Children’s Hospital social worker, Adrienne Glen, who was a member of the child protection unit; and Pastor Michael Hoffman* and his wife Elizabeth; as well as members of the Bayne extended family and Zabeth and Paul. His primary information sources were Dr. Colbourne and Ms. Glen and he told the court Dr. Colbourne’s opinions, treatment and prognosis. In a meeting on October 31, 2007 Humeny and his supervisor met with Paul and Zabeth, Zabeth’s parents, Zabeth’s sister and her husband and Ruth Hunt (friend) to review what he termed non-accidental injuries based on the medical report. Humeny was assigned to author the application for the Court Order as well as the narrative that supported the application.

He was in attendance together with his supervisor when apprehending the three children initially. Bethany was in hospital from the 19th to the 25th of October 2007 and on October 25, 2007 Bethany was placed in a Chilliwack foster home. No visits to Bethany were allowed to the Baynes during those initial weeks. He spent time with Zabeth Bayne’s parents prior to leaving the boys there with the stipulation that Paul and Zabeth could not be alone with the children in that home. He had numerous conversations with Zabeth during these days and weeks. He looked into sources of ‘collateral’ information about the Baynes. In looking for potential foster/ care homes for the boys should the need arise, Marvin (Surrey Council member) and Ruth Hunt offered their home in August 2008. They are Bayne family friends.

Testimony under Cross Examination – There was discussion about the Risk Assessment of which he is the author. It includes statements against the Baynes by what Humeny calls half a dozen ‘collateral witnesses’ who cannot be disclosed presently. The Risk Assessment also included statements from caregivers of the three children, the medical history from Dr. Colbourne and Humeny’s own findings. When Doug Christie asked why page 35 of the Risk Assessment was left empty, it was learned that this page would have contained a summary of the parents’ strengths. Mr. Humeny chose not to include such comments as the parents’ dedication and love and commitment to their son Baden during his three month hospital stay due to premature birth, the commendations from their family doctor on their superior care of the boy during the at home care phase. Humeny did not include mention of the 350 visits that the Baynes have made to their children, and that they ask for more visitation opportunity. He did not include the mother’s piano teaching experience with children over several years. Still pressed about this omitted page, Mr. Humeny stated that he did not feel that he knew the parents. This didn’t wash with Christie because it was pointed out that Humeny had many meetings with the Baynes. He was reminded that countless letters were written to the Ministry by friends and family and professionals which spoke positively to Paul’s and Zabeth’s home, character, forms of discipline used, interactions with their children, their involvement with others socially and otherwise, and the perceptions of students about Zabeth’s professional instruction. Mr. Humeny acknowledged that he was aware of this mail but he did not read the correspondence saying he did not have the time for it. He had relied upon the ‘collateral witness’ data and when cross examined, admitted that he did not seek to verify the information given to him. It became clear that the support letters could have provided at least a balanced view of the Baynes if not call the ‘collateral witness’ data into question. Christie stressed that Humeny’s risk assessment was written so obviously from an adversarial position it might be deemed hostile. It might be argued that Humeny did the MCFD no favours on this day. Mr. Humeny’s testimony under cross recommences on Thursday at 9:30 AM at the Chilliwack Court House and you are encouraged to attend.

*The CBC News article entitle ‘Surrey Couple Challenge Shaken Baby Allegation’ published Thursday, January 14, 2010 | 2:51 PM PT is found here.

*That piece reported this. “But on Wednesday (January 13, 2010) the court heard from two witnesses who originally informed the court about their suspicions that the couple’s children were being abused. Pastor Michael Hoffman and his wife Elizabeth were in charge of a church in Hope and were friends with the couple at the time. Michael Hoffman advised police that based on psychology classes that he took at seminary that he believed the mother was suffering from post-partum depression and that she had Munchausen’s syndrome by proxy, an uncommon condition in which a person harms another in order to gain attention. The pastor’s wife testified that the two boys seemed small for their age and that the little girl started looking increasingly listless.”




Dr. Plunkett Proves Baynes Innocence

Tuesday, February 9, 2010

For Love and For Justice / Part 106 / Zabeth and Paul Bayne

Dr. John Plunkett on the Stand

On Monday morning I was fortunate to arrive early enough to meet Dr. John Plunkett who was called as a witness for Paul and Zabeth Bayne’s appeal. Baynes’ Attorney, Mr. Doug Christie, led Plunkett through the citation of his certifications and credentials in an effort to qualify him to testify in this court. MCFD lawyer Finn Jensen had opportunity to ask questions pertaining to these qualifications and twice referred to Plunkett as a ‘pathologist for hire.’ Plunkett informed Jensen that the majority of cases for which he testifies are pro bono, so Jensen inquired whether he could be called a ‘consultant for hire’, to which Plunkett said yes.

Plunkett retired five years ago in 2005 from a career as a forensic and general pathologist. He has been called to testify in over 100 cases in which SBS is an issue, on average about a dozen times per year. In most of the cases he testifies for the defence because over a period of recent years he has become convinced that infant head injury with respect to head trauma has been misunderstood and he has sought to educate himself as well as others. He was here today to express reasons why Shaken Baby Syndrome is an increasingly controversial area of diagnosis. Shaken Baby Syndrome (SBS) is, in essence, a medical diagnosis based solely on the presence of a diagnostic triad: retinal bleeding, bleeding in the protective layer of the brain, and brain swelling. Much scientific research in recent years has cast mounting doubt on the forensic significance of this triad, thereby undermining the foundations of thousands of SBS custody and criminal cases and convictions. In several countries this scientific evolution has prompted systemic reevaluations of the prosecutorial paradigm. Most recently, after a seventeen-month investigation costing $8.3 million in Ontario a commission, The Goudge Inquiry, recommended that all SBS cases be reviewed. Plunkett conveyed that he is among a growing group of experienced professionals, pathologists and mechanical engineers and even physicians who present alternative diagnoses to SBS. He spoke to the definition of subdural hematoma and differential diagnoses for the signs and symptoms that too frequently in his opinion result in an SBS diagnosis.

He expressed that Bethany Bayne’s medical reports and film work provided evidence that she had chronic subdural hematoma, that is evidence of trauma, blood vessel damage and bleeding as long as three weeks before admission at Vancouver Children’s Hospital. It surprised him that a CT scan had not been ordered for her at any of the prior examinations in three area hospitals as the Baynes made six visits to healthcare facilities to discover what was wrong with her. Her condition should have been determined earlier because the signs were significant. In his estimation the only explanation was that she had an event three weeks earlier which fit the subdural bleeding and that there was no other evidence of any other attributable cause. The event which the Baynes reported of one child impacting the other accidentally three weeks before VCH saw her was consistent with the film work and reports. In his estimation shaking could not possibly produce this subdural hematoma. There was structural brain damage which caused the subdural hematoma and shaking could not affect this. He adamantly feels that a physician should never decide whether an injury is accidentally or non accidentally caused. Further, his conviction is that before submitting a report that may be the primary focus for a child custody or criminal investigation, a physician should consult with biomechanical engineers.

The reports of at least ten medical experts who agree with Dr. Plunkett’s assessment are available for you to read at a site dedicated to the Bayne Plea. These were presented on Monday in court. (access them by clicking the link in the underlined sentence.)

A group of about twenty supporters of the Baynes silently and lawfully stood with signs outside the Court House yesterday, asking for children to be returned.



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