Opinion
No. 106,996.
2012-07-6
In the Interest of G–T.M., A Minor Child.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge. Anita Settle Kemp, of Wichita, for appellant natural mother. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Harold E. Flaigle, Judge.
Anita Settle Kemp, of Wichita, for appellant natural mother. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
One-year-old G.T.M. was declared a child in need of care (CINC) based on evidence that he was the victim of medical abuse as the result of his natural mother's (Mother) repeated and unnecessary insistence upon medical treatment and invasive medical procedures when all tests and physical examinations indicated G.T.M. was a healthy baby. Mother claims on appeal that the court's finding was not supported by the evidence. Because there was clear and convincing evidence presented at the CINC hearing that G.T.M. suffered from medical abuse, and because this court must defer to factual findings made by the district court, we affirm.
Factual and procedural History
Beginning in June 2011, there were growing concerns that Mother was “ ‘doctor hopping’ “ in search of unnecessary medical treatment for G.T.M. Her claims revolved around allegations of excessive vomiting and diarrhea, aversion to food, and failure to thrive. The child was admitted to the Wesley Medical Center after Mother suggested that he needed a nasogastric (NG) tube for nutrition. This hospitalization followed immediately on the heels of G.T.M.'s discharge from Via Christi Hospital, where Mother complained of the same symptoms. Wesley hospital staff wanted to discharge G.T.M., but there were concerns that Mother would continue to subject G.T.M. to unnecessary medical procedures. There were also concerns about Mother's “mental health disabilities” and whether they may be contributing to her repeated and unnecessary doctor and hospital visits with G.T.M. The State filed a petition in which it alleged that G.T.M. was a CINC. The petition was later amended to add Mother's other child. Mother subsequently stipulated that the other child is a CINC, and that child is not a part of this appeal.
The district court held a hearing in order to determine whether a temporary custody order was warranted. At that hearing, the court heard extensive testimony from Dr. Kerri Meyer, who is certified in child abuse and neglect. It was Dr. Meyer's opinion that G.T.M. suffered from medical child abuse. After receiving that testimony, the district court issued an order of temporary custody.
The district court later held a hearing in order to hear testimony from witnesses and arguments from counsel on the issue of whether G.T.M. was a CINC. After considering that evidence, the district court concluded that there was clear and convincing evidence to prove that G.T.M. was a CINC. Mother appeals that decision to this court.
Analysis
Mother argues on appeal that any finding of “ ‘medical neglect’ “ was not supported by the evidence that was introduced at the CINC hearing. Mother contends there is no evidence that she purposely sought out unnecessary or potentially harmful treatment. Instead, Mother believes the record shows that she sought appropriate medical care for “documented medical issues.” Mother questions whether her alleged reporting of symptoms can qualify as “medical neglect.”
As it relates to the findings in this case, K.S.A.2011 Supp. 38–2202(d)(3) defines a CINC as a person less than 18 years of age who “has been physically, mentally or emotionally abused or neglected or sexually abused.” The State must prove by clear and convincing evidence that a child is a CINC. See K.S.A.2011 Supp. 38–2250. When this court reviews a district court's determination that a child is a CINC, it must consider whether, after review of all the evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable that the child was in need of care. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008). Clear and convincing evidence is “an intermediate standard of proof between preponderance of the evidence and beyond a reasonable doubt.” 286 Kan. at 691. In making this determination, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. With our standard of review in mind, we now turn to Mother's claim that there was insufficient evidence to support the district court's decision.
Mother took G.T.M. to see Dr. Jamie Page as a new primary physician in June 2011. Mother told Dr. Page that G.T.M. suffered from vomiting, hypothyroidism, failure to thrive, and feeding difficulties. Dr. Page did not have any of G.T.M.'s prior medical records, so any diagnosis that she made was based solely on Mother's report of G.T.M.'s medical history. A few days after this initial appointment, Mother called Dr. Page's office to report that G.T.M. was vomiting and “barely keeping anything down” and subsequently returned. When they arrived at the office, Dr. Page noted that G.T.M. had lost approximately half of a pound. Despite that fact, Dr. Page testified that G.T.M. looked well and did not appear dehydrated.
Dr. Page admitted G.T.M. to the hospital from that appointment, primarily because of Mother's reports of vomiting and G.T.M.'s inability to tolerate any fluids. Dr. Page consulted with Dr. Daniels and Dr. Zayat, who were both gastroenterology (GI) specialists. They decided to initiate NG feedings due to their concerns that G.T.M. was unable or unwilling to take in adequate nutrition by mouth. However, once G.T.M. was at the hospital he tolerated solid food well, and hospital staff never witnessed excessive vomiting. The NG tube was removed, and G.T.M. was discharged from the hospital.
At the CINC hearing, the district court took judicial notice of the transcript from the temporary custody hearing. At the temporary custody hearing, the State presented extensive testimony from Dr. Meyer. Dr. Meyer was called to consult on G.T.M.'s case after pediatric team members started to have concerns about child abuse. Specifically, staff members were concerned that G.T.M. had been admitted to the hospital for the second time in a very brief period after Mother reported that G.T.M. suffered from feeding aversion, vomiting, and poor growth.
However, when reviewing G.T.M.'s records, the team quickly noticed that G.T.M. had actually “grown pretty well over the course of his life” and he was adequately meeting developmental milestones. That information prompted the team to wonder if the facts were “really adding up” and warranting an NG tube and special formula.
All of G.T.M.'s lab tests were normal, and hospital staff could see G.T.M. watching other people's food. Because of that evidence, it was decided to remove the NG tube and try G.T.M. on a normal diet. G.T.M. did very well on oral food; he gained weight, and he was able to eat and drink with no problems. He had no allergic reactions or vomiting. In fact, his weight was “way up” at discharge.
Further investigation uncovered evidence that G.T.M. had been to “multiple doctors” during his life and that he had received “a lot of medical care.” A review of his records showed that G.T.M. had no fewer than four pediatricians during his life. Mother took G .T.M. for 9 doctor's visits and she made 12 phone calls to the doctor's office during the first 6 months of his life. Starting in August 2010, G.T.M. had medical visits “every few days to maybe every week” or week and a half. There were also four hospital admissions; twice for his GI issues and twice for a respiratory illness. There were also at least eight trips to the emergency room. G.T.M. was seen by a neurologist, an endocrinologist, and two GI specialists. Mother had already asked for a second opinion from a different endocrinologist.
More specifically, G.T.M.'s medical team included, at one time, Dr. Zayat, who was a GI specialist. Dr. Meyer described Dr. Zayat as being “pretty involved” with Mother and G.T.M. Dr. Zayat apparently took repeated calls from Mother about G.T.M.'s uncontrollable vomiting. After several office visits, Dr. Zayat performed an upper GI on G.T.M., which was normal. They tried multiple medications for G.T.M., but Mother continued to report symptoms. Despite Mother's reports, G.T.M. was growing well and was adequately hydrated, and nobody had ever witnessed his excessive vomiting. When Mother called Dr. Zayat to again complain about the vomiting, the examination revealed a child who was gaining weight and who looked happy and great.
Mother felt like Dr. Zayat “wasn't doing anything” and asked for a second opinion. Dr. Daniels considered Mother's complaints about vomiting, food intolerance, and refusal to eat and decided to initiate another diagnostic workup. Dr. Daniels also wanted to send G.T.M. to Kansas City for more advanced testing. Dr. Daniels ordered additional GI testing, including a PH probe, which indicated that G.T.M. did not suffer from reflux. Based on those tests, Dr. Daniels “signed completely off” and did not believe that any further studies needed to be done.
Dr. Page followed up with G.T.M. after he was discharged from the hospital; he was taken to the appointment by his foster mother. At that time, the foster mother reported that G.T.M. was successfully eating a variety of foods without choking, gagging, or vomiting. G.T.M. had no other symptoms, and he had gained weight, moving more than 10 percentiles on the growth chart. Dr. Page testified that G.T .M.'s weight gain would have been unusual in a child with reflux and feeding issues. In addition, G.T.M. showed no signs of reflux despite being taken off of his three reflux medications. An outpatient examination by a speech language pathologist showed that G.T.M. did very well with eating solid food.
Dr. Meyer testified that G.T.M.'s hospitalization revealed a child who gained weight well without any problems, who was able to eat a varied diet and drink from a cup. Hospital staff saw no vomiting or allergic reactions. The speech pathologist and occupational therapist verified that G.T.M. had “great oral/motor skills” that allowed him to suck and swallow.
When questioned, Dr. Meyer said that in some cases it would not be unusual for a child to fail to display symptoms when observed by a physician. However, in this case, G.T.M. was hospitalized for 12 days, with no observations of any symptoms during that time. Dr. Meyer testified it was “very unusual” that G.T.M. had no symptoms during his 5–day trial of a normal diet.
Due to all of the observations made by hospital staff, Dr. Meyer diagnosed G.T.M. as suffering from medical abuse. She believed that most of G.T.M.'s medical procedures had been unnecessary. These procedures included an upper GI, a PH probe study, “numerous labs,” multiple insertions of an NG tube, x-rays, and brain scans. Because of the diagnosis, Dr. Meyer did not believe it would be safe for G.T.M. to remain with Mother. Dr. Meyer noted that with pediatric patients, doctors had to be able to trust the history given by the child's caregiver. Dr. Meyer believed G.T.M. would remain at risk for increased harm due to additional unnecessary medical procedures. This occurred because physicians were performing tests which were appropriate given the history reported by Mother but unnecessary based on the objective observation of the child.
Mother provided testimony from Millicent Dempsey, a nurse who worked with the healthy babies program at the county health department. Dempsey testified that Mother was often concerned about G.T.M.'s weight; Mother was advised to take her concerns to G.T.M.'s doctor. Dempsey noted that G.T.M. gained weight consistently while Mother was breastfeeding him, but that his weight started to fluctuate when Mother began supplementing with formula. Mother once came to see Dempsey and told her that G.T.M. was on a special diet; Mother never provided any documentation of that fact to Dempsey.
April Luina is a nurse practitioner who also provided treatment for G.T.M. Luina provided a number of referrals for G.T.M. based on Mother's representations that G.T.M. was struggling with eating solids and that he suffered from excessive vomiting. Mother's claim that G.T.M. could not swallow food resulted in a referral to a speech therapist; the report back from the speech therapist was that G.T.M. did not have any issues with sucking or swallowing. Luina never saw G.T.M. have any difficulty with eating, and she never saw any of the respiratory issues of which Mother complained. On other occasions, the physical examination of G.T.M. did not reveal any symptoms that matched Mother's complaints.
Deborah Wendt testified on Mother's behalf, as a friend. Wendt described Mother as anxious; Wendt testified that Mother will fixate on a detail and be unable to see the big picture. Wendt was not aware of how frequently Mother was taking G.T.M. to the doctor or to the ER.
Mother admitted that she has memory issues and is missing chunks of time. Mother could not recall how many times she has been hospitalized for her mental health issues. However, Mother has not taken psychiatric medication since 2004. Mother believes she has been diagnosed with posttraumatic stress disorder, dissociative disorder, and personality disorder. Susan Bishop was Mother's individual therapist at the time of the CINC hearing. Bishop testified that Mother tends to “overreact” and can misperceive things at times.
Contrary to Mother's arguments about “medical neglect,” the district court actually found that G.T.M. was suffering from “medical abuse.” It was Dr. Meyer's testimony that leaving G.T.M. with Mother put the child at increased risk of unnecessary and invasive medical testing. G.T.M. spent 12 days in the hospital, and none of the medical personnel following his case noticed any of the symptoms which had prompted the hospitalization. The district court seemed to focus on this testimony when it noted that when a parent is unwilling to accept medical opinions and consistently seeks out medical care it is akin to intentional abuse.
The district court questioned whether Mother's refusal to accept reassurance about G.T.M.'s health was due to Mother's own mental health issues. The district court feared that Mother was unable to “satisfactorily regulate” her concerns and anxiety about G.T.M.'s well-being, resulting in harm due to unnecessary medical care. This ruling is amply supported by evidence in the record on appeal. Dr. Meyer's testimony is compelling; there was simply no independent verification of G.T.M.'s reported history of vomiting or inability to tolerate solid food. And while Mother's actions do not appear to have been motivated by malice, the end result was the same; G.T.M. underwent numerous medical procedures that were likely unnecessary. Accordingly, after a complete review of the record in this case, we find that the district court's extensive and well-reasoned decision to find that G.T.M. was a CINC was supported by clear and convincing evidence.
Affirmed.