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October 6, 2022

7/8/2022 7:30:00 AM
Tran files brief arguing for dismissal of child neglect finding
Ex-wife was convicted of killing toddler
Heather Schaefer
Associate Editor

The father of a 20-month-old boy from Virginia who died following a visit to Newbold in 2017 has filed a brief outlining the reasons he believes an Oneida County circuit court judge should vacate a finding of "substantiated child neglect" made against him by the Oneida County Department of Social Services and affirmed by an administrative law judge.

In the brief, filed June 30, attorney Matthew S. Mayer argues the Department of Social Services did not have a sufficient evidentiary basis to substantiate the child neglect allegation against Dr. Trung T. Tran.

According to Mayer, Tran, 45, had no reason to believe that his then-wife, Ellen Tran, would fatally injure his son, Avery Edwards, on April 14, 2017, while he was at work.

"No evidence exists that Dr. Tran had any inference or suggestion of fact that allowed a reasonable person to believe Ellen Tran would take actions to cause massive head injuries to Avery on April 14, 2017," Mayer wrote.

Ellen Tran was convicted of first-degree reckless homicide in Avery's death and is serving a 15-year sentence. She has filed an appeal seeking a new trial on the grounds the prosecution "never offered a cohesive theory of exactly what it was that (she) did that was reckless." That matter remains pending before the District III Court of Appeals in Wausau.

According to court records and trial testimony, the police investigation began following a hang-up phone call from the Tran residence to the Oneida County Dispatch Center on April 14, 2017. According to trial testimony, when a dispatcher called back, Ellen reported that Avery was unresponsive and had stopped breathing after taking a shower. The toddler died several hours later at a hospital in Marshfield.

A pathologist later found that Avery had suffered a traumatic brain event and that his injuries did not match Ellen's statements as to what took place in the shower.

Also, during the October 2018 trial, the state introduced a series of text message exchanges between Trung and Ellen Tran as evidence that Ellen harbored intense animosity toward both Avery and his mother, whose relationship with Dr. Tran predated her marriage to him. In the messages, Ellen called Avery "pitiful' and a "stupid brat" and expressed anger at having money from her household go to her husband's ex-girlfriend for child support.

Following Ellen's conviction and sentencing, Dr. Tran was sentenced to 12 days in jail on a charge of resisting or obstructing an officer for denying to investigators that he was aware of Ellen's negative feelings toward Avery.

Separate from the criminal prosecution, the Department of Social Services investigated and eventually substantiated allegations of physical abuse and neglect of Avery by Ellen Tran. In conjunction with this finding, Social Services also issued a Notice of Final Determination of Substantiated Child Maltreatment against Dr. Tran for neglect of Avery.

The agency concluded that Dr. Tran was "aware of ongoing issues with Ellen's ability to emotionally and/or mentally provide care for (Avery)" in his absence, according to the Notice of Final Determination.

"You observed and were concerned about multiple significant bruises to (Avery's) body earlier on April 14, 2017 and you failed to ensure (his) safety in spite of the signs that he was at risk," the determination states. "All of these conditions ultimately contributed to (Avery's) death."

"Neglect' is defined in state statutes as "failure, refusal or inability on the part of a caregiver, for reasons other than poverty, to provide necessary care, food, clothing, medical or dental care or shelter so as to seriously endanger the physical health of the child."

Tran responded to the department's finding by requesting a review hearing before an administrative law judge.

According to court records, the review hearing was held on Sept. 13, 2021 and Oneida County Social Services was required to offer "substantial evidence that (Tran) knew or should have known (Avery) was neglected" to support its substantiation of neglect.

On Nov. 15, Administrative Law Judge Beth Whitaker ruled in favor of the county agency, finding that the danger of harm to Avery on April 14, 2017 was "foreseeable" to the doctor.

"(Avery) was too young to protect himself from physical harm," Whitaker wrote. "Petitioner was (Avery's) father and legally responsible for his care on April 14, 2017. He had a duty to protect (Avery) from the foreseeable danger that Ellen Tran would harm him. He did not have to know that her actions would kill the child, just that the child's physical health was endangered. He did know that leaving (Avery) with Ellen Tran placed (Avery) at risk of harm. A reasonable person in petitioner's circumstances, with the knowledge that he had of Ellen Tran's feelings toward (Avery) and her past actions, would conclude that leaving (Avery) in her care would seriously endanger the physical health of the child. Petitioner left the 20-month-old child (Avery) in the sole care of Ellen Tran, after he had more than once observed unexplained injury consistent with abuse when (Avery) was in Ellen Tran's care and knew that Ellen Tran had strong negative thoughts about (Avery), making the danger she posed foreseeable. The agency showed by a preponderance of the evidence that petitioner neglected (Avery) on April 14, 2017 by failing to provide care necessary to protect him from foreseeable harm, thereby seriously endangering (his) physical health."

On Dec. 8, Dr. Tran filed a "petition for judicial review" of Whitaker's decision. The judicial review was assigned to circuit judge Patrick O'Melia, who presided over Ellen Tran's trial, after a request for substitution of judge was filed in January 2022.

A briefing schedule was set following a telephone conference in May and a written decision is expected after all briefs are filed.

In his opening brief, Mayer alleges that the child neglect finding against Dr. Tran "was made based solely on emotion given Avery's death and as a way to somehow alleviate the guilt of OCDSS for Avery's death."

"OCDSS did not kill Avery; Ellen Tran did. Dr. Tran did not neglect Avery and Dr. Tran had no facts or information prior to Avery's death to prevent this tragedy from occurring," he wrote. "The underlying facts lack quantity and quality of evidence which a reasonable person should accept as adequate," he added.

In support of this argument, Mayer alleged that "every fact relied upon by OCDSS to support a neglect finding against Dr. Tran requires speculation and conjecture."

"Given the tragic end to Avery's life 55 minutes after Dr. Tran left for work, OCDSS attempts to point to anything, after the fact, that could have changed the outcome. That type of thought process is not reasonable nor is it supported by law where speculation and conjecture cannot be used to create the substantial evidence," he argued. "Using hindsight, OCDSS took separate pieces of information, whether aged, irrelevant or absurd, to create a scenario that Dr. Tran neglected his son."

In the brief, Mayer stresses that Avery was clean and fed at the time the doctor left for the hospital, the family had been playing together happily just prior to Tran's departure and the only bruising on Avery was consistent with normal early childhood play.

"As Dr. Tran walked out the door on April 14, 2017, he left his wife with his children to go to work and thought everyone was happy," he wrote. "This is an act repeated everyday by millions of families. It is not unreasonable to leave your child in the care of his/her stepparent. Moreover, no reasonable person would conclude leaving your child with his/her stepparent to go to work is neglectful."

The state's Department of Children and Families has until Aug. 1 to respond to the brief.

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