OF UTAH, in the interest of
Marylee Thaxton DOB: --/--/1995
CONCLUSIONS OF LAW, AND
|Sarah Thaxton DOB: --/--/1997|
|Matthew Thaxton DOB: --/--/2002||
|A person under eighteen years of age|
Notice that there is not a single word about any furnace exhaust or Carbon Monoxide poisoning as factor in this this family's (first son's) death and (second son's) illnesses which triggered DCFS's so called "substantiated" neglect accusation!
Carbon Monoxide is well understood to produce or precipitate symptoms as described below, including the metabolic disturbances that are easily mis-read as malnutrition. (Ref CO Toxicity, Dr D. Penney Unv Wayne State Mich, etc, etc.)
Even with sufficient opportunity for quality investigation and verification by the prosecuting AG, DCFS and Court, which was legally petitioned in motion to admitt new evidence, they did nothing.
The CO discovery (through our diligence, discovery, certified testing and documentation, including the prosecution's own police record) should have provoked (at least finally by our motion for retrial) honest court argument over the issue!
But instead as you can see here, it was ignored -- even they intentionally refused acknowledgment and even raised the AG to protest our submission of this obvious and clear true evidence at all !
Beginning on bottom of page 3...
The parties stipulated to the admission of the following joint exhibits .......
The parties stipulated to the following facts, as outlined in a "Joint Agreement By Petitioners" filed with court the morning of trial:
1. Marylee Thaxton, a seven year old girl, was born ------------------
2. Sarah Thaxton, a six year old girl, was born ------------------.
3. Matthew Thaxton, a one year old boy, was born --------------.
4. At all times pertinent to the time frame alleged in both petitions, the Thaxton
children resided with their married parents, Dan Thaxton (age 32) and Carolee Thaxton (age 28)
at -----------------------------, Bountiful, Utah. Dan and Carolee Thaxton were married on ------------, 1994.
5. The parents had another boy named Dan Thaxton, Jr. born to them on ------------,
1999. He died in their home on October 2,2001 from Myocarditis. The Division substantiated
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the parents for physical neglect and filed a petition against the parents in Juvenile Court. On March 21,2002 this Court entered an order dismissing the Juvenile Court Petition as follow:The State's motion to dismiss the petition without prejudice is granted.6. Neither the Thaxton children nor their parents are members of, or eligible for membership in, a Native American Indian tribe.
While the parties disagree with the factual findings, the State agrees to dismiss its petition with the parents' agreement that they will not appeal the administrative finding of neglect.
The trial date is vacated.
7. Matthew became ill prior to his appointment with Dr. Cutler. His parents sought care for him on January 1,2003 at Wee Care Pediatrics in this County. Matthew was transferred to Davis Hospital & Medical Center. Matthew was transported to PCMC by his parents.
8. Matthew was discharged from PCMC on January 3,2003.
9. On January 6,2003, Matthew, Sarah, and Marylee were evaluated by Dr. Cutler.
10. On January15, 2003, Matthew was taken again to Dr. Cutler. Later that afternoon a blood test of Matthew was taken at American Fork hospital.
11. On February 12, 2003, Matthew was seen by Dr. Cutler.
12. On April 16,2003, Matthew was seen by Dr. Cutler. An appointment was set by Dr. Cutler for Matthew to come back in six months, on October 15, 2003 at 2:00 p.m.
13. Davis Hospital records show that they received Matthew from Wee Care on an emergency basis at approximately 5:19 a.m. Davis Hospital placed Matthew on life supports and had him air lifted to Primary Children's Medical Center.
14. Matthew stayed at PCMC from June 1,2003 until June 21,2003.
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The court heard testimony from the following witnesses:1. Michael Cutler, M.D.Whereupon, based on the evidence presented and the Court being fully advised, the Court enters, by clear and convincing evidence, the following Findings of Fact:
2. Kimball Frazier, M.D.
3. Lori Frasier,M.D.
4. W. Daniel Jackson, M.D.
5. Julie Feigleson, Bountiful Police Department
6. Carolee Thaxton
7. Dan Thaxton
8. Dianne Christensen
FINDINGS OF FACT
1. Marylee Thaxton is a seven-year-old female child born November 18, 1995. Sarah
Thaxton is a six-year-old female child born March 19, 1997. Matthew Thaxton is a
one-year-old male child born May 21,2002. The children reside in Davis County, Utah,
with their married parents Dan and Carolee Thaxton, who were married March 11,
2. The natural mother of the child is Carolee Thaxton, born March 16, 1975, whose current address is xxx North xxx West, Bountiful, Utah.
3. The natural father of the child is Dan Thaxton, born June 29, 1971, whose current address is xxx North xxx West, Bountiful, Utah.
4. Neither the children nor their parents are members of, or eligible for membership in, a
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Native American Indian tribe.
5. The incidents giving rise to this petition occurred in Davis County.
6. The parents had a now-deceased child named Dan Thaxton, Jr., who was born to them on April 30, 1999. He died in their home on October 2, 2001 from Myocarditis. The Division substantiated the parents for physical neglect and filed a petition against the parents in Juvenile Court. On March 21, 2002 this Court entered an order dismissing the Juvenile Court Petitions as follows:
"The State's motion to dismiss the petition without prejudice is granted. While the parties disagree with the factual findings, the State agrees to dismiss its petition with the parents' agreement that they will not appeal the administrative finding of neglect. The trial date is vacated."
7. The state coroner who performed an autopsy on Dan Jr. concluded that the child had profound growth retardation and developmental delay that was caused by dietary restriction. (Exhibit 25, Office of the Medical Examiner, page 2) The parents retained an expert witness who disputed the state coroner's conclusions regarding growth retardation and developmental delay. (Exhibit 25, Wallace Graham letter, page 1)
8. The Division instructed the family regarding proper protein intake for children. While the Thaxtons disagreed with the Division's administrative finding of neglect, and disagreed that their nutritional practices were the basis of the neglect, they nevertheless knew at the time that their nutritional practices were questioned by the Division. (Exhibit 25, Wallace Graham letter, page 1) The Thaxtons fed the entire family daily portions of soybeans and soybean products, such as tofu.
9. Matthew became ill and his parents sought care for him on January 1,203 at Wee Care
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Pediatrics in this County. Matthew was transferred to Davis Hospital & Medical Center. Matthew was transported to Primary Children's Medical Center (PCMC) by his parents.
10. Initially, PCMC suspected the child might have leukemia. However, testing revealed that the child had a B-12 deficiency and was developmentally delayed.
11. Dr. Kimball Frazier, a hematology and oncology fellow at PCMC, was one of Matthew's attending physicians. Dr. Frazier recommended that the parents supplement the child with B-12 injections. He believed that it would resolve most of the child's problems at that time, and communicated this to the parents. Dr. Frazier had contemplated B-12 injections.
12. A B-12 injection was given during the child's stay at PCMC. The Thaxtons were educated about nutrition and the B-12 deficiency, and the PCMC nutritionist gave the Thaxtons a brochure on nutrition to review.
13. Matthew was discharged from PCMC on January 3, 2003. The discharge summary from January 3,2003 (Exhibit 1, page 003), stated that the following follow-up care was required:.a. A follow-up visit on January 6,2003, with the Hematology/Oncology Clinic(Page 7 of 18)
b. Hematology/Oncology "will give B-12," check labs, and make an Early
c. A follow up visit with Dr. Cutler for January 6,2003.
d. A follow up visit with the Neurology Department at PCMC in three to four months, with parents to call "soon" to make an appointment.
In addition, the parents were educated about nutrition and the B-12 deficiency at that
14. The parents failed to attend a follow up appointment at the Hematology/Oncology Clinic. The parents also failed to attend a follow up appointment with Genetics.
time. Exhibit 1, page 17, entitled Medical Social Work and Psychology Note indicates the need for B-12 injections and oral iron supplementation, and further states that the parents state an understanding that B-12 deficiency could have devastating neurological issues, retardation, etc. Parents agreed to begin the treatment the date of the letter (1/3/03) with the PCMC Hematology Clinic. It further states that all of the parents questions were answered to their satisfaction.
15. On January 6,2003, Matthew, Sarah, and Marylee were evaluated by Dr. Cutler.
16. Based on the Thaxton's claim to PCMC that the child experienced tremors as a result of the B-12 injection in January, Dr. Longo of PCMC prescribed oral B-12 supplements for the child. The mother attempted to feed the oral B-12 supplement to the child but the child gagged on it. The mother attempted again the next day to feed the oral supplement to the child but he child again gagged on it.
17. On a follow up visit to PCMC shortly thereafter, the mother did not report to Kimball Frazier that her attempts to orally supplement the child with B-12 had been unsuccessful. The mother testified that she did not mention this to Dr. Frazier because the supplementation was not on her mind at that time.
18. Dr. Frazier testified that, had he known that either the child was not receiving follow up blood testing or that he was not receiving B-12 supplementation of any kind, he would have been concerned for the welfare of the child. Unfortunately, PCMC had no means of tracking this case to ensure that follow up blood testing was done, except to rely on the Thaxtons to submit periodic blood test results to PCMC for review.
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19. B-12 supplementation is absolutely essential to a child on a vegan diet, as B-12 appears only in several rare vegan foods, and even in those foods the B-12 is of an inferior, unreliable quality.
20. On January 15, 2003, Matthew was taken again to Dr. Cutler. Later that afternoon a
blood test of Matthew was taken at American Fork hospital. On February 12,2003,
Matthew was seen by Dr. Cutler. On April 16, 2003, Matthew was seen by Dr. Cutler.
An appointment was set by Dr. Cutler for Matthew to come back in six months, on
October 15, 2003 at 2:00 p.m. Doctor's notes from those appointments indicate that
Matthew was still delayed but growing stronger and improving at each visit.
21. Dr. Cutler did not observe the child experiencing tremors of any kind during the above appointments. Dr. Cutler did not order any more blood tests of Matthew after the first blood test on January 15, 2003, despite the recommendation from Dr. Frazier Kimball that regular blood tests were necessary until the child's B-12 levels were restored to a normal, safe level.
22. The parents made a joint decision with Dr. Cutler to not have Matthew receive additional blood testing beyond January 15,2003. All treatment decisions, including blood testing and B-12 supplementation decisions, made by the parents while the child was under Dr. Cutler's care were joint decisions, with the parents maintaining primary responsibility for all decisions. Dr. Cutler's philosophy of practicing medicine is that his role with the Thaxtons was to instruct and counsel and let the Thaxtons be the ultimate decision-makers. Dr. Cutler believes that the mainstream medical establishment imposes on patients in taking away from them their decision-making ability as patients, and the court infers from Dr. Cutler's testimony that, if the Thaxtons
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had opposed additional blood tests, then Dr. Cutler would have respected that decision. The Court likewise infers that, if the Thaxtons had opposed B-12 supplementation, then Dr. Cutler would have respected that decision also. In further support of these inferences, the Court notes Dr. Cutler's testimony that he believed that Carolee Thaxton knows more than many doctors about vegan nutrition. Dr. Cutler's follow up care with the child included no further blood tests except the initial test, and instead consisted only of clinical observation which included visual examination of the child and review of his height and weight. Dr. Cutler did not attempt to inform or educate himself about vegan nutrition at the time he was the family physician for Matthew from January 2003 to May 2003.
23. Vitamin B-12 is an essential vitamin or nutrient. It is an important co-factor in the body's necessary metabolic reactions and it is essential to neurologic development in children.
24. The Court finds that the Thaxton's desire to seek a second opinion regarding B-12 supplementation, was not in and of itself neglectful. However, the Court finds that the Thaxton's seeking out and relying on the second opinion of a general practice family doctor, over the specialized opinions of Kimball Frazier, did fall below the standard of what a reasonable parent would do in similar circumstances.
25. A reasonable parent in these circumstances would have sought the second opinion from a doctor with an equal or greater degree of specialty than Kimball Frazier and other PCMC staff. Likewise, a reasonable parent in these circumstances would not have relied on the second opinion of a general practice family doctor, contrary to the recommendations of the specialists at PCMC, either in failing to obtain follow up blood
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tests and in failing to continuing supplement the child with B-12. As a result, the child did not receive adequate nutrition and was significantly depleted in B- 12 by June 1, 2003. The Court finds that this constitutes neglect under the statute.
26. The Court also finds that the Thaxtons were neglectful in missing two follow up appointments with PCMC, one to the Hematology/Oncology Clinic, and one to Genetics. This, combined with the mother's failure to completely inform Dr. Frazier Kimball as to the child's gagging over B-12, demonstrate to this court a pattern of conscientiously and unreasonably turning away from PCMC's specialized advice and recommendations, to the joint decision-making they made with a lesser specialized family practitioner.
27. The Court finds, that as a result of the Thaxton's neglectful decisions not to continue supplementing Matthew with B-12 and not to monitor his B-12 intake with blood tests, Matthew's B-12 levels became sufficiently depleted by June 1, 2003, and the child suffered a life-threatening episode.
28. The Court further finds that the mother's failure to mention to Dr. Frazier the simple fact that the child had gagged on the oral B-12, and was therefore not receiving any B- 12 (the B-12 injections being discontinued), also falls below the standard of a reasonable parent and is an additional factual point supportive of this court's finding of neglect.
29. On or before June 1, 2003, Matthew had been ill for several days throwing up from a flu or other viral infection. At the same time, Carolee Thaxton was also ill from a similar ailment and so Matthew and Carolee Thaxton were staying at her parents home, under their care. Dan Thaxton was staying at the Thaxton home with their daughters Marylee
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30. On June 1,2003, Carloee's father telephoned Dan Thaxton and advised him that Matthew condition was deteriorating and asked if he could take Matthew to the doctor, which Dan Thaxton readily agreed to. On the way to the doctor, Matthew's condition continued to decline rapidly.
31. Shortly after 5:00 a.m., Matthew was brought to Wee Care Pediatrics. The child was gray in color, lethargic, had "dull eyes" and was non-responsive. Within 15 minutes of arrival at Wee Care, staff transported Matthew to Davis North Hospital Emergency Room where he was put on a bag valve mask, which provides high flow oxygen to the patient. The child was so dehydrated that hospital staff could not locate a vein to put an intravenous tube in, so the intravenous tube was placed directly into the child's shin bone. The child did not flinch when the intravenous tube was put into his shin bone. Hospital staff put a tube into the child's stomach to decompress the stomach and allow more room for the lungs.
32. The child was Life-Flighted to Primary Children's Medical Center ("PCMC"). PCMC staff stated the child would have died if he had been without treatment for only 1 to 2 more hours.
33. Matthew stayed in PCMC from June 1,2003 until June 21, 2003.
34. The parents were asked by Dr. Lori Frasier, who served as a consultant to PCMC, to sign releases to allow her and PCMC to obtain Matthew's medical history from, and discuss the case with the doctor who had treated the child from January to April 2003. The father refused to sign the requested releases.
35. Matthew was seen by Dr. Daniel Jackson, a nutritionist through PCMC, who
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impressions in Exhibit 14 confirmed that Matthew had sever chronic nutritional compromise with suspected marginal protein nutriture and adequate energy intake prior to the acute illness. Further he had micronutrient deficiencies in Vitamin B-12, iron, Vitamin D, and Zinc with possible Vitamin K deficiency. Deficits in multiple micronutrients indicate inadequate intake or supply rather than specific transport or metabolic defects. Matthew received his principal nutrition from breast milk from his mother who maintained her vegan status without Vitamin B-12 supplementation. Additional foods introduced to the child were essentially devoid of Vitamin B-12 as well as iron with relatively low quantity and quality of protein. Dr. Jackson recommended soy formula, B-12 supplementation, monitoring of methylmalonic acid status, supplementation of Vitamin K, D, iron and zinc, physical, speech and feeding therapy and close neurologic follow-up and rehabilitation therapies.
36. The parents testified that they restricted their diets from a vegetarian to a vegan dietary practice within the last few years. Their children follow this vegan diet. Mother testified that she prepares all the food for the family. The parents testified that they made this dietary choice after educating and informing themselves. They did not however consult a physician or anyone regarding the impact it would have on themselves or their young children. They did not have a physician for the children. They admittedly did not supplement B-12 to themselves or their children, which is clearly recommended in the vegan literature reviewed in Court. (Exhibit 23 & 24) After realizing the B-12 deficiency in Matthew, they willingly deprived the child of first, the B-12 injections, then second, the prescribed oral supplementation and third, relied on food intake without closely monitoring which foods should be given to the child.
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37. They reportedly missed follow-up visits at the Hematology and Genetic clinic at PCMC, although they testified they did not know about the appointments. They agreed initially in January to work with the PCMC clinic but then willingly allowed their selected physician, a general physician with admittedly little to no nutritional education, to override the specific recommendation of the pediatric specialists at PCMC.
38. Matthew's current medical condition is the direct result of malnutrition caused by the parents' dietary practices. The parents have failed or refused to provide proper or necessary subsistence to the child.
39. One of Matthew's attending physicians at PCMC is Dr. Lori D. Frasier. Dr. Frasier stated in a letter dated June 6,2003:
In my opinion, Matthew's medical condition is the direct result [of] malnutrition caused by family dietary practices. [I]f parents were to decline recommended medical care, or attempt to remove him from the hospital prior to the medical team and DCFS determination of the allegations of neglect, he would be at risk of further disability and/or death, as a direct result of parental dietary practices.
40. PCMC staff observed that the child has diminished mental status, diminished responsiveness, and a decreased level of consciousness. At the time of trial it is still unknown whether Matthew has any permanent brain damage as a result of his B-12 deficiency and the life-threatening incident.
41. Matthew's state of severe malnutrition, including B-12 depletion, and his life- threatening episode were not the result of any swallowing disorder or swallowing difficulty that the child may have had. The child's difficulty in swallowing, and his need for swallowing therapy, were caused by his malnutrition.
(Page 14 of 18)
42. On June 9,2003, at approximately 8:30 p.m., the Division placed Matthew Thaxton in its protective custody pursuant to a validly obtained search warrant executed by the Honorable L. Kent Bachman of the Second District Juvenile Court. The child was placed in the Division's custody due to an emergency situation, which existed at the time. Specifically, there was a substantial danger to the physical health or safety of the minor child and the minor child's health or safety could not be protected without removing him from his parent's custody.
43. B-12 supplementation of Matthew is in his best interest. Further, B-12 supplementation is absolutely essential, due to the fact that he would receive inadequate B-12 intake from a vegan diet.
44. When called as witnesses at the time of trial, the parents testified with respect to future supplementation as follows. The mother and father acknowledged their commitment to perpetually supplement their children not just with B-12 but with a multivitamin. Both parents testified that the two older children still in their custody are currently taking a daily multivitamin. Both parents acknowledged that B-12 supplementation is essential to Matthew and their other children's nutrition, health and well-being, since a vegan diet does not contain adequate B-12. The mother acknowledged that perpetual B-12 supplementation to her own diet is essential to ensure that any developing fetus that she may carry in the future receives adequate B-12, since B-12 is not passed in utero from a mother's bodily stores to a fetus, but is only passed on to a fetus from the mother's dietary intake. The mother acknowledged Dr. Daniel Jackson's testimony that Matthew was very likely born with a B-12 depletion at birth is expressly not part of the basis of its neglect finding. The parents also testified unequivocally that they will follow
(Page 15 of 18)
through on all of PCMC's recommendations regarding their children.
45. Based on its investigation, the Division entered a supported finding of physical neglect against Dan Thaxton and Carolee Thaxton on the Division's database.
Based on having entered the above findings of fact by clear and convincing evidence, the Court enters the following Conclusions of Law:
CONCLUSIONS OF LAW
1. The Court finds the allegations set forth above and contained in the Verified Petition are true by clear and convincing evidence.
2. The Court finds that the child Matthew Thaxton is neglected by his parents Dan and Carolee Thaxton within the meaning of Utah Code Ann.§ 78-3a-103(l)(s)(i)(B), (C) and (D) in that the parent, guardian or custodian has subjected the children to mistreatment or abuse and in that the children lack proper parental care by reason of the fault or habits of the parent, guardian or custodian and in that the parent, guardian or custodian has failed to provide proper and necessary subsistence, education or medical care when required or any other care necessary for health, safety, morals or well being of the children.
3. The Court finds that Marylee Thaxton and Sarah Thaxton are neglected children within the meaning of Utah Code Ann. § 78-3a-103(l)(s)(i)(E).
4. The Court finds that the children fall within the jurisdiction of the Juvenile Court pursuant to Utah Code Ann. § 78-3a-104(l)(c).
5. The Court finds by clear and convincing evidence that the supported finding by the
(Page 16 of 18)
Division is substantiated and includes the finding in its order, within the meaning of Utah Code Ann. § 78-3a-320.
6. The Court finds that, by clear and convincing evidence, the services offered and/or provided by the Division of Child and Family Services under the treatment plan as ordered and directed by the court constitute reasonable efforts on the part of the Division and includes its finding in its order within the meaning of Utah Code Ann. § 78-3a-3 11 (2)(c)(ii).
Based on the above Findings of Fact and Conclusions of Law, the Court enters the following Order:
1. The Clerk of the Second Judicial District Juvenile Court shall henceforth set a dispositional hearing in this matter and give adequate notice to all parties of the hearing.
DATED this 9th day of January , 2004
You have a right to appeal this matter to the Utah Court of Appeals. Appeals must be filed within 30 days from this date.
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CERTIFICATION OF MAILING OR DELIVERY
I certify that on January 9, 2004, I mailed the FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER, to the following:
J. Clifford Peterson
Assistant Attorney General
Guardian ad Litem
Kathleen McConkie, Esq.
Attorney for Dan & Carolee Thaxton
150 North Main Street
Bountiful, Utah 84010
Attorney for Dan & Carolee Thaxton
-------------------------- Utah -------
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Did you notice that here again there was not a single word about any furnace exhaust or Carbon Monoxide poisoning as a possible factor in this this family's death of Dan Jr and baby Matthew's illness triggered accusations and indictment; even after this second opportunity of investigation was clearly indicated and made rational for the prosecuting DCFS, AG and Court; and done at minimum, in our motion for retrial and our filing of evidence and facts! -- They instead, only raised to protest our submission of true evidence! -- not to ever decently argue it !
Now see also the cloning of this Finding of Facts, Conclutions and Order, with its repeated false premise in DCFS "Service Plan" order of 2/6/04