Nightmare Over, a Mother Sues : Cleared in Young Son's Death, She Seeks $1 Million

Times Staff Writer

Carol Phinney thought nothing could be as painful as the death of her 2-year-old son--until the county said she killed him.

Phinney, a 28-year-old former Oceanside resident, was found innocent this week by a San Diego Superior Court jury of felony child abuse, a charge prosecutors pursued after a judge dismissed a murder charge against her in May.

After the jury returned its verdict, Judge Lawrence Kapiloff said the state owed Phinney an "abject apology" and that her ordeal "cries out for a civil action, and I hope you bring one."

"The pain was so deep I couldn't see," Phinney said of her feelings when she learned she was suspected of killing her son, Travis, whom she says she found unconscious in a bathtub five minutes after leaving him alone. At one point during her six-month ordeal, Phinney said she even tried to kill herself.

$1-Million Suit

Now she is free, and she is suing the county for $1 million--in part because of what she contends was a careless autopsy on Travis that led the district attorney's office to prosecute her.

Phinney, her father, Donald Ozburn, and her attorney, David R. Thompson, said they hope her case will end the county coroner's practice of allowing doctors from Children's Hospital and Health Center of San Diego to perform autopsies on victims of suspected child abuse. Thompson says the hospital's doctors are overzealous in their pursuit of prosecutions.

"We think there's a need for the public to know the cost in human terms of something like this happening," Ozburn said. "The child abuse laws are being abused. It's like putting a gun in the hands of a kid."

Judge Has Opinions

Phinney's case may be bolstered by Kapiloff's unusual comments from the bench:

"Child abuse is . . . obviously something that all of us should take seriously and want to remedy, (but) it still is no excuse for people not exercising their discretion in a more appropriate way," Kapiloff said. "I find it disgraceful that a woman has to be subjected to a case like this because of speculation on the part of too many people who are looking after their own jobs and their own economic interests."

Phinney's ordeal began last Labor Day, 10 days after she moved from Kansas City to an Oceanside condominium to "begin a new life" with Travis and her fiance, a moving-company truck driver.

That day, Phinney placed Travis in the bathtub after he had soiled his pants. She returned five minutes later to find her son face down and unconscious in three inches of water.

She called paramedics, who revived Travis and took him to Tri-City Hospital in Oceanside. Eventually, he was transferred to Children's Hospital, where he remained on a respirator in a medically induced coma until he died a month later from pneumonia, a complication of his treatment.

'Big Bundle of Love'

"Travis was my life," Phinney said in an interview after the verdict, her voice faint and cracking. "Not a day goes by that I don't think about him. He was bright. He sang. I taught him Spanish. He had rarely given me any problems. He was just one great big bundle of love."

Phinney said she doesn't believe in spanking children, and she said she never hit her son.

Travis suffered from seizures the first three months of his life and took medication during that time. Doctors called as expert witnesses by the defense during the trial said the boy could have had a relapse in the bathtub.

Even before Travis died Oct. 9, pediatricians at Children's Hospital suspected that Phinney had struck or shaken him.

Although his body showed no bruises or other signs of mistreatment, the doctors said they wondered about the alcohol on Phinney's breath the day of the accident--which she says was from one glass of wine--and they said she told them she was irritated when Travis soiled his pants.

Series of Questions

County social workers, nurses and doctors questioned the mother, but after she left for Missouri with her son's body on Oct. 12, she heard nothing more of the investigation.

Then, five months later, Phinney's former fiance--they had just separated--was stopped in Houston by police searching for her. A warrant had been issued for her arrest--on charges of murder and felony child abuse.

"She went overnight from a grieving mother to a fugitive from justice," said Ozburn, Phinney's father.

Phinney said she was seized by hysteria when she learned of the charges, and she hid with friends and relatives for two weeks. But after hiring an attorney she surrendered and returned to San Diego for trial.

Her parents mortgaged their house to raise money for legal fees, and Phinney, who returned to Kansas City after she was released on $10,000 bail, secluded herself in a bedroom--sulking, sobbing and wondering when, or if, she would ever be free.

Avoided People

"I kept myself away from people," Phinney said. "I wondered what people thought of me. I was very frightened."

Although Phinney was trained as a medical laboratory technician and secretary, she could not bring herself to take a job. "I couldn't see a future for me," she said.

One day her family returned from the funeral of a friend and found Phinney unconscious. She had taken an overdose of tranquilizers and alcohol.

Phinney was rushed to a hospital, where her stomach was pumped. When she recovered, she entered a mental health clinic for three weeks of treatment. Her family stood by her.

At Phinney's preliminary hearing in Vista Municipal Court in May, Thompson called to the witness stand Dr. Hormez Guard, a former county pathologist and a frequent critic of the coroner's office.

Didn't Preserve Tissue

Guard testified that Dr. R. Steve Phillips, the Children's Hospital pathologist who performed the autopsy for the county, erred when he failed to preserve a cyst he found on Travis' brain. Guard also criticized Phillips for failing to check for bite marks on the boy's tongue--a sign of seizures--or to consult with a neurologist.

Thompson argues that Phillips never considered a cause of death other than child abuse, and thus concluded that swelling on the right side of Travis' brain came from a blow to the head that was the equivalent of a fall from five to eight feet.

Phillips declined to be interviewed on the Phinney case. But in court testimony he stood by his autopsy, saying he did not save the cyst because he considered it irrelevant to the boy's death. Phillips maintained that the only logical explanations of Travis' injury were a blow to the head or violent shaking.

Two neurologists called by the defense testified that the swelling and a small amount of bruising could just as easily have been caused by the doctors' insertion of a bolt-like monitor used to measure pressure inside the head.

Not Murder Charge

Municipal Judge Raymond Hall dismissed the murder charges for lack of evidence but bound Phinney over for trial on charges of felony child abuse. Phinney was acquitted after a brief trial in which the prosecution attempted to prove no more than the fact that Phinney left Travis alone before he died. How he died was uncontested. The jury deliberated less than two hours.

Deputy Dist. Atty. William Draper, who prosecuted the case, said he had no regrets about pressing the charges. Draper's supervisor, Phillip Walden, said he knew before the trial that the lack of physical evidence would make the case against Phinney difficult to prove.

"If we didn't believe that the defendant was responsible, we wouldn't have charged her," Walden said. "That's not to say we are complaining about the jury's verdict. We have to prove a criminal charge beyond a reasonable doubt. Based upon the conflicting testimony of the doctors, certainly a jury could say there is a doubt. The jury may feel she's innocent, but our feeling is we weren't able to prove the charge."

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