The lives of 17 children were changed forever by disgraced pathologist's litany of mistakes
March 09, 2008
Theresa Boyle Staff Reporter
July 2012. This date won't come soon enough for Sherry Sherret.
It's when her first born will turn 18. And it's when the Belleville mother will finally be reunited with the son who was put up for adoption when he was only 5.
The boy, Christopher (not his real name), is one of at least 17 children whose lives were thrown into chaos after the death of a sibling. In each case, disgraced pathologist Dr. Charles Smith performed an autopsy or offered a consulting opinion on the deaths. Bad enough they had lost a sister or a brother. But Smith's mistakes helped implicate their parents and resulted in these children being removed from their homes by children's aid societies.
At least three children, including Christopher, were adopted out to other families. There is no legal recourse to undo adoptions as the Child and Family Service Act stipulates that once an adoption order is finalized, it cannot be reviewed.
The remaining children were sent to live with relatives or foster families for as long as two years.These children are from the 20 botched death investigations that have been explored at the ongoing Inquiry into Pediatric Forensic Pathology. A panel of renowned forensic pathologists determined Smith erred in all these cases.
While attention has largely been focused on potentially wrongful convictions, these children have been the "forgotten victims" of his errors, says Julie Kirkpatrick, lawyer for one family.
The upheaval they faced is "among the worst consequences of Smith's mistakes," she says, adding they are no less victims of miscarriages of justice.
One of the many issues explored at the inquiry is that of child protection. Child advocates are putting forth an array of recommendations on behalf of the displaced children, including possible reconciliation of broken-up families.
Twice a year, Sherret, 32, gets letters and pictures from Christopher. She stares at the photos intently, looking for signs of her son's growth. From a picture he sent this past Christmas, she can see his face had filled out some. He looks more like his dad, her ex, she notes. But she can see her own DNA in his eyes.
"He's a gorgeous young man. He will be 14 years old in July. I keep thinking to myself, four more years," she says.
In his letters to her, he addresses her as "Dear Sherry."
"That hurts," she says. "But it's understandable."
She signs her letters back, "Love, Mommy Sherry."
Sherret lost two sons in 1996. That January, she discovered 4-month-old Joshua dead in his playpen. Smith said the child was suffocated, as evidenced by marks on his neck. The pathologist also said the boy had a fractured skull. Sherret was charged with first-degree murder.
Years later, when Smith's work came under scrutiny, Joshua's body was exhumed. It was revealed his skull wasn't fractured and the marks on his neck were actually created by Smith, himself, during the autopsy. Experts who reviewed the case said Joshua had accidentally asphyxiated in an unsafe sleep environment. He had slept in a playpen, under a sleeping bag, comforter and blankets.
Child-welfare workers removed Christopher, then 18 months, from her custody. He was first placed with his grandparents and then with a foster family.
In January 1999, Sherret was convicted on a reduced charge of infanticide. The following June she was sentenced to a year in jail and two years probation. Meantime, Sherret learned children's aid was putting forth an application to the courts to have Christopher move from foster care to adoption. The foster family told Sherret they would be willing to make him a permanent part of their family.
Evoking the parable of King Solomon threatening to split a baby to determine its rightful mother, Sherret made the difficult decision to let this family adopt her son, fearing he could otherwise bounce around different homes. The adoption agreement included the exchange of letters, annual phone calls from Christopher's foster mother and plans for a reunion when he turns 18.
Lawyer Suzan Fraser has been representing Defence for Children International at the inquiry. The group aims to protect the rights of youngsters and is going to bat for the 17 displaced children.
"The big problem is that there is no process for dealing with apprehension or adoption orders made on the basis of flawed pathology evidence," Fraser remarks.
She says the damage inflicted on the affected children is immeasurable. "Imagine the anger and the sorrow to learn that you had been wrongfully taken from your mother or father. Imagine the taunts of the other children in foster care teasing you because your mother killed your sister.
"Imagine the horror of losing your sibling and then your mother, when your mother was actually protective rather than the killer everyone thought she was? Imagine having no power to fix it."
Fraser is fearful there may be even more children out there who were uprooted from their homes because of errors Smith made in child-death investigations. Undoing Smith's mistakes isn't so easy. The Child and Family Services Act makes no provision to appeal an adoption order except within the first 30 days after it has been made.
"The best interests and stability of a child require that the adoption order is not subject to further review, even if unjust and based on a clearly erroneous factual premise," states a paper prepared for the inquiry by Queen's law professor Nicholas Bala and McGill social work professor Nico Trocme.
"However, if it is established that a child was removed from parental custody due to an erroneous belief that the parent was responsible for the death of a sibling, it may well be in the best interests of the children to have at least some contact with the parents, depending on their age and wishes. At the very least, the adoptive parents, and through them the children, should be informed of the new circumstances," they continue.
Sherret says Christopher doesn't know why she gave him up for adoption.
He only recently learned he has a 2-year-old sister. This is Sherret's third child, the only one with her. Christopher's adoptive mother was afraid to tell him about his new sibling, lest it raise questions about why his biological mother could keep one child and not another, Sherret says.
While she dreams about the day they'll see each other again, she has nightmares about the last time she saw him. It was in a playroom at the Northumberland Children's Aid Society. Sherret knew she wouldn't see her son, then 5, again until he was 18. She kept her eye on the clock, savouring her last three hours with him.
Mom and child played for the first 2 1/2 hours, but as the end of their visit neared, Sherret pulled the lad onto her lap for a serious chat. "I told him that mommy still has some problems to deal with and that he couldn't come home," Sherret recounts.
The lad reacted angrily. "He told me I lied," she says, explaining how Christopher reminded her of a previous promise that he could come home. "He wanted to come home and he wanted to know if he could keep Whisper, his kitty."
In his letters to her now, Christopher asks if she still has Whisper. She does.
Sherret wept during her final minutes with her son. Her tears continued to flow in the car on her way home. She had lost her two sons now and was on her way to prison.
The next day, she was sent to the Vanier Centre for Women in Brampton, where other inmates called her a "baby killer." She ignored their taunts until one day it became too much. She overheard one women ask another: "Do you know how Sherry killed her baby?"
"I remember just coming around the corner and starting to beat on her," recalls Sherret, who was moved to segregation and then to another detention centre.
As devastating as it was to be blamed, jailed and taunted for Joshua's death, those experiences paled in comparison to losing custody of Christopher, she says. "Having a child taken from you is like having your life taken from you. I just didn't want to be around. I didn't want to live. But then I sat there and thought, I've got to go on because I know I'll get a chance to see him at some point."
Despite the hell a biological parent like Sherret has gone though, returning custody of a child may not be the best idea, experts warn.
"While the unmerited separation of children from their parents is a great injustice, it does not necessarily follow that returning these children to the care of their parents is in their best interest," Bala and Trocme write in their report for the inquiry.
"In particular, if children are returned to their parents' custody after several years in a stable foster home, they may well be traumatized by the stress of separation from their foster families and the experience of returning to a now unfamiliar environment," they continue.
Still, Sherret's lawyer, James Lockyer, hopes adoptive parents would be open to allowing some sort of contact between the birth parents and the children.
"What you would hope is that the adoptive parent might have the foresight, strength, courage to consider allowing the children to recontact the parent. But that's a pretty tall order," he admits, likening the struggle to Bertolt Brecht's The Caucasian Chalk Circle, a play about a literal tug-of-war over a child.
Lockyer doesn't blame children's aid societies in these cases. They were just sadly relying on bad information from sources like Smith, he notes. "Wrongful convictions have consequences way beyond someone being in jail for something they didn't do."
less than three years ago, Sherret discovered she was pregnant again. Her first reaction was panic. Her name was still on the province's child-abuse registry and she faced the prospect of having her third child taken from her, too.
Her reaction wasn't so unusual. In another case in which Smith was involved, a couple decided to have an abortion after learning of an unexpected pregnancy. Angela Veno and Anthony Kporwodu had their toddler son seized by children's aid after they were charged with the 1998 death of their infant daughter. They were told any new child would also be seized. Sherret was duty bound to report her pregnancy to CAS, which she did. This is how she discovered serious questions were being raised about Smith's work. A CAS official told her the doctor was being investigated.
Sherret contacted the Association in Defence of the Wrongly Convicted and Lockyer, who would assist her in trying to clear her name. He would also help her in her efforts to keep her third child. Initially, the CAS wanted to remove Sherret from her home when the baby was born, leaving the infant to reside with its father. Eventually they settled for a supervisory order, meaning Sherret could never be alone with the baby.
The child was born on Sept. 29, 2005.
For the first 11 months of the child's life, father Rob couldn't even go to the store without waking the baby and taking her with him.
But last April, a provincial court ruled that the supervision order be dropped. By this time, two outside experts had confirmed there was no foul play involved involved in Joshua's death.
"I believe I lost a special 11 months with her. It was an 11 months I could not be alone with my beautiful girl," Sherret says. "I had to go though hell to stay in her life."
Sherret has been diagnosed with major, chronic depression andpost-traumatic stress disorder. "I'm exhausted physically, mentally."
Her children keep her going.
"I'm mad, but I have to live every day for my daughter and (Christopher), not just me," she says.
While she dreams about the day she'll see Christopher again, she has no illusions. "He's grown up with his family pretty much most of his life and it would just be wrong to take him away from them. I just want some kind of a relationship with him."
She's kept a lot of Christopher's old toys. She watches her daughter play with them, remembering her son doing the same.
"I would be so happy if I could see them play together," she says.