United States District Court, D. Minnesota
Essie Peschong and D.P., E.P.P., and E.C.P., minors, by and through their parent and natural guardian, Essie Pechong, Plaintiffs,
Children's Healthcare, d/b/a Children's Hospitals and Clinics of Minnesota, and Alice Swenson, M.D., Defendants.
Matthew Cody, Esq., Kyle Kosieracki, Esq. and Tarhish Cody,
PLC, counsel for plaintiffs.
Jonathan P. Norrie, Esq. and Bassford Remele, counsel for
S. Doty, Judge United States District Court
matter is before the court upon the motion for judgment on
the pleadings by defendants Children's Healthcare, d/b/a
Children's Hospitals and Clinics of Minnesota
(Children's), and Alice Swenson, M.D. Also before the
court is the motion for partial summary judgment by
plaintiffs Essie Peschong; D.P., a minor, by and through his
parent and natural guardian, Essie Peschong; E.P.P., a minor,
by and through his parent and natural guardian, Essie
Peschong; and E.C.P., a minor, by and through his parent and
natural guardian, Essie Peschong. Based on a review of the
file, record, and proceedings herein, the court grants the
motion for judgment on the pleadings and denies the motion
for partial summary judgment as moot.
civil rights action arises out of a Child in Need of
Protection or Services (CHIPS) proceeding in Hennepin County
that resulted in D.P.'s seven-month placement in foster
care. D.P. was born to Essie Peschong in 2004 with dysmorphic
features, a bone disorder, and obstructions within his upper
airway. Compl. ¶¶ 7-8. D.P. received his primary
medical care from Children's from 2004 to 2007, and
thereafter from Gillette Children's. Id.
¶¶ 9, 14. Providers from Children's continued
to treat D.P. after the transfer to Gillette. Id.
was in and out of the hospital during his first eleven years;
he was hospitalized for forty-one days, treated nine times in
the emergency room, and underwent numerous surgeries,
procedures, and sleep studies. Id. ¶ 11. Among
other ailments, D.P. suffered from persistent respiratory
illness and obstructive sleep apnea. Id. ¶ 12.
Over the years, D.P. used supplemental oxygen to manage his
symptoms and regularly used a wheelchair. Id.
¶¶ 11-12, 20. On July 1, 2014, D.P. underwent a
successful tracheostomy procedure to relieve his sleep apnea.
Id. ¶¶ 18-19. According to Ms. Peschong,
after the procedure, D.P. rarely used supplemental oxygen or
a wheelchair. Id. ¶ 20. D.P.'s ability to
sleep increased dramatically, as did his behavior, school
performance, and social skills. Id. ¶ 21.
approximately February 2015, Cindy Brady, a nurse who last
provided care to D.P. in 2008, reported to Dr. Swenson, a
child abuse pediatrician at Children's, that D.P. may be
the victim of medical child abuse. Id. ¶¶
22-24. Specifically, Brady reported that D.P. continually
used supplemental oxygen without cause and opined that a
tracheostomy may not have been necessary. Id. ¶
24. Brady asked Dr. Swenson to review D.P.'s medical
records to determine whether Ms. Peschong was abusing D.P.
Id. ¶ 27.
17, 2015, Dr. Swenson wrote a report concluding that Ms.
Peschong “appears to be misrepresenting [D.P.'s]
medical conditions in order to obtain care that [D.P.] does
not need and that may, in fact, be harmful.”
Id. ¶ 28; First Cody Decl. Ex. A, at 4. She
noted that D.P.'s medical records indicate “a clear
long-standing pattern of mother reporting symptoms that are
not observed by the medical staff.” First Cody Decl.
Ex. A, at 4. Dr. Swenson further noted that although D.P.
does have “documented medical disorders, ” they
did not warrant his ongoing use of oxygen, use of a
wheelchair, or a tracheostomy. Id. Dr. Swenson
recommended that D.P. “be placed in a safe environment
where medical interventions can be removed as quickly as
possible beginning with the most invasive
22, 2015, Dr. Swenson submitted the report to Hennepin County
Child Protective Services (HCCPS). Compl. ¶ 43. HCCPS
thereafter filed an ex-parte child protection petition with
the Hennepin County Juvenile Court asserting that D.P. was
the victim of medical child abuse by his mother. Id.
¶ 48. The petition was based exclusively on the report.
Id. ¶ 49. On July 13, 2015, the juvenile court
granted the petition and removed D.P. from his home and
family. Id. ¶¶ 61, 63; Norrie
Decl. Ex. 3, at 1. HCCPS placed D.P. at Children's where
he remained as an inpatient for more than a
week. Compl. ¶ 64. Doctors downsized
D.P.'s tracheostomy tube during his hospitalization.
Id. ¶ 65. Ms. Peschong was not permitted to see
or communicate with D.P. during that time, nor was she aware
of or involved in decisions regarding his medical care.
Id. ¶¶ 64-65.
his release from Children's, D.P. was placed in foster
care with family members. Id. ¶ 68. Although
not in the complaint, the record properly before the court
establishes that Ms. Peschong, who was represented by
counsel, challenged the basis for the Petition throughout the
proceedings. In July and August, she moved twice - both times
unsuccessfully - for the juvenile court to reconsider the
removal order. Norrie Decl. Ex. 3, at 1. On December 23,
2015, Ms. Peschong moved to dismiss the petition, arguing
that its allegations were untrue and belied by the medical
records. Id. Ms. Peschong also moved for sanctions
against HCCPS for its alleged failure to reasonably
investigate the matter before filing the petition.
Id. at 2. The court denied both motions, concluding
that there were “sufficient facts to support a juvenile
protection matter under current law, and the issues raised by
[Ms. Peschong] may be appropriately addressed at
trial.” Id. at 4.
January 5, 6, and 7, 2016, the court held a bench trial on
the matter. Norrie Decl. Ex. 1, at 1. Ms. Peschong was
present and represented by counsel. Id. D.P. was
represented by counsel, but was not present. Id. The
court heard testimony from thirteen witnesses, including Dr.
Swenson and several medical professionals called by Ms.
Peschong, all of whom were subject to cross-examination.
Id. ¶ 1.0. The court also admitted twenty-three
exhibits, which included, among other documents, Dr.
Swenson's report and hundreds of pages of medical
records. Id. ¶¶ 2.0, 25.0-25.2.
court carefully assessed each witness's credibility.
Id. ¶¶ 11.0-24.0. As to Dr. Swenson, the
court determined that her testimony was credible “in
all respects.” Id. ¶ 15.0. The court
specifically noted that Dr. Swenson was “knowledgeable
about the facts of this matter, ” her demeanor was
“forthcoming and earnest, ” and her
“answers were thoughtful and her testimony was
persuasive.” Id. The court gave
“significant weight” to her testimony.
Id. In contrast, the court concluded that Ms.
Peschong was a “poor historian - particularly regarding
the child's medical history” and gave little weight
to her testimony. Id. ¶ 21.0. The court also
gave little weight to the medical professionals called by Ms.
Peschong because they lacked comprehensive knowledge of
D.P.'s medical history. Id. ¶¶ 16.0,
17.0, 18.0, 19.0, 20.0.
February 5, 2016, after weighing the evidence and after the
parties had the opportunity to submit post-trial briefing,
the court concluded that D.P. was a victim of medical child
Respondent has subjected the child to numerous unnecessary
medical procedures and interventions, and as a result the
child is without the required care for the child's
physical and mental health. Respondent mother has not
corrected the situation that led to the child's removal
from the home, and has demonstrated an inability or
unwillingness to provide the child with only medically
necessary care. Thus, the child is in need of protection or
Id. at 21 ¶¶ 1.0, 1.1; see also
id. ¶¶ 27.0-39.4. The court ordered legal
custody of D.P. transferred to HCCPS for continued foster
care placement in a third-party non-relative
home. Id. at 21 ¶ 2.0. The court
also ordered Ms. Peschong to complete a case plan, which
required her to participate in individual and family therapy,
follow all recommendations of D.P.'s medical providers,
ensure that D.P. has one primary care provider, maintain safe
and suitable housing, and cooperate with HCCPS and the
appointed Guardian ad Litem. Id. ¶¶
Peschong immediately appealed, arguing, in part, that Dr.
Swenson's report and testimony were
“ill-informed” because she did not (1) review all
of D.P.'s medical records, (2) speak to D.P.'s
specialists, (3) examine D.P., or (4) interview Ms. Peschong.
Second Norrie Decl. Ex. 8, at 40. Ms. Peschong further argued
that the report and Dr. Swenson's testimony were
“riddled with errors” and that Dr. Swenson
“either exaggerated her study of D.P.'s medical
records or knowingly misrepresented their contents.”
Id. at 41. The Minnesota Court of Appeals affirmed
the lower court and in doing so ...