BM v. State

• Decision Date: 09 July 2004
• Parties: B.M. v. STATE of Alabama. M.F. v. State of Alabama.
• Court: Alabama Court of Civil Appeals

895 So.2d 319

B.M. v. STATE of Alabama.

M.F. v. State of Alabama.

2078.

Court of Civil Appeals of Alabama.

July 9, 2004.

Jay Lewis, Montgomery, for appellant B.M.

Kenneth H. Nixon, Jr., Montgomery, for appellant M.F.

Troy King, atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill and Elizabeth Hendrix, asst. attys. gen., Department of Human Resources, for appellee.

CRAWLEY, Judge.

B.M. ("the mother") and M.F. ("the father") are the unmarried parents of three children, B.R.M. (d/o/b—01/14/98) ("the oldest child"), I.S.S.M. (d/o/b—12/27/01) ("the middle child"), and I.C.J.M. (d/o/b—09/05/03) ("the infant"). In July 1999, the child was removed from her mother's custody after the Department of Human Resources ("DHR") was notified by Children's Hospital that the mother was suspected of perpetrating Munchausen's syndrome by proxy ("MBP") abuse upon the oldest child. When the middle child and the infant were born, each was removed from the mother's custody upon their release from the hospital after birth. After a trial in September 2003, the trial court terminated the parental rights of both the mother and the father to all three children. Both parents appeal.

The facts giving rise to the MBP abuse allegation are lengthy, beginning with the oldest child's frequent visits to her pediatrician, Dr. Sesi Ogumbi, and culminating in a fifth hospitalization in Children's Hospital related to a hematoma in the oldest child's right thigh. In addition, the oldest child suffered a respiratory arrest during that fifth hospitalization, which led the staff at Children's Hospital to decide that the case was indeed an MBP abuse case and to place the oldest child in a special, constantly supervised section of the pediatric unit. Children's Hospital notified DHR of the suspicion that the mother was a perpetrator of MBP abuse; the oldest child was placed in foster care immediately upon her release from Children's Hospital. According to Dr. DeeAnne Jackson, an assistant professor of pediatrics at the University of Alabama Birmingham ("UAB") and a member of the Children's Hospital Intervention and Prevention Services ("CHIPS") team; Dr. Richard J. Whitley, a professor of pediatrics at UAB and a member of the CHIPS team; Dr. Marc Feldman, the Medical Director for the Center for Psychiatric Medicine at UAB and an MBP abuse expert, the MBP abuse allegation was made after consideration of all of the oldest child's illnesses and hospitalizations. A discussion of the oldest child's medical history from March 1999 through her removal from the mother's custody in July 1999 is necessary; however, we will not recount in detail the voluminous medical records.

I. The Oldest Child's Medical Problems

In March 1999, the oldest child was hospitalized at Jackson Hospital for bronchitis and pneumonia. During her hospitalization, the oldest child fell from her crib. The records from the oldest child's hospitalization indicated that she suffered no injuries from the fall. However, two months later, in early May 1999, the oldest child would not walk on her leg; she was at day care at the time, so the mother was called to retrieve her. The mother described the oldest child's leg as being swollen, hot, and red. The mother took the oldest child to the emergency room at Baptist Medical Center East ("Baptist East"), where the child was given a shot. The mother said that the oldest child's leg continued to be warm, swollen, and red, so on May 6, 1999, she took the oldest child to her pediatrician, Dr. Ogumbi, who admitted the oldest child to Baptist East for an aspiration of her knee. The oldest child was hospitalized at Baptist East from May 6 to May 15, 1999. During her hospitalization, the oldest child was treated with intravenous antibiotics. When the oldest child's symptoms continued after her discharge from Baptist East, Dr. Ogumbi was concerned that the oldest child might suffer from osteomyelitis, an infection of the bone or bone marrow. Dr. Ogumbi referred the oldest child to Dr. J. Scott Doyle, a pediatric orthopedist affiliated with Children's Hospital.

Dr. Doyle admitted the oldest child to Children's Hospital on May 21, 1999; she was placed on intravenous antibiotic treatment and released on May 26. Dr. Doyle's discharge summary indicates that the oldest child was admitted to rule out right femur osteomyelitis; her diagnosis at discharge was right thigh cellulitis, an infection of the tissues underneath the skin. According to the discharge summary, the swelling and warmth in the oldest child's leg was improved at the time of her discharge.

The mother returned the oldest child to the Baptist East emergency room on May 28, 1999, complaining that the oldest child's leg was again swollen and warm. The oldest child was referred to Children's Hospital the following morning. According to the hospital records, the oldest child was admitted to Children's Hospital on May 29; on May 30, her right knee was aspirated. On June 1, 1999, the oldest child was taken to surgery for an exploration of and an incision and drainage of a right thigh hematoma; Dr. Doyle performed the surgery.

On June 7, 1999, the oldest child was again seen by Dr. Ogumbi. At that time, the mother complained that the oldest child was bleeding from the incision site. Dr. Ogumbi contacted Children's Hospital, which requested that the oldest child return to Children's Hospital; the oldest child was admitted to Children's Hospital on June 8, 1999. Dr. Doyle again performed surgery on the oldest child because of what he termed a wound dehiscence, which is essentially a parting of the wound; in this case, the dehiscence was caused by the apparent breaking or removal of one of the sutures in the oldest child's leg. The oldest child was discharged from Children's Hospital on June 20, 1999. She was to see Dr. Ogumbi and Dr. Doyle on June 25, 1999.

The discharge summary for the June 8-20 hospitalization indicated that Dr. Doyle had considered the possibility of MBP abuse on this admission to Children's Hospital, the oldest child's second admission to Children's Hospital, because of the "unusual nature of the wound dehiscence" and because of her multiple hospitalizations. According to the discharge summary, Dr. Doyle consulted with the CHIPS team and spoke with Dr. Jackson, who interviewed the mother and spoke with Dr. Ogumbi about whether she had any concerns about abuse or neglect of the oldest child by the mother. In addition, the Children's Hospital Social Services department interviewed the mother and contacted Montgomery County DHR to investigate whether there were any reports concerning the oldest child or the mother. After determining that there were not any concerns or reports about abuse or neglect, the conclusion reached by the CHIPS team was that the child had suffered "one unusual/unexplained injury" but that all of her other hospitalizations had been for common illnesses and that the oldest child otherwise appeared "well-grown and developmentally normal." Accordingly, the discharge summary indicated that "there was no concern for suspected child abuse or neglect at the time" but that if the oldest child encountered further unexplained illnesses or injuries, the situation would need to be reevaluated.

At the June 25, 1999, office visit to Dr. Ogumbi, the mother again complained that the oldest child's leg was swollen and that she would not bear weight on her leg. On the same day, the mother also took the oldest child to a clinic in Montgomery where Dr. John Killian, who is also associated with Children's Hospital, was seeing patients. Dr. Killian reportedly informed the mother that the oldest child would require additional surgery and that she would need to be admitted to Children's Hospital that day. The oldest child was admitted later that day, and Dr. Killian preformed surgery on the oldest child's leg the following day. After the surgery was completed, the oldest child's leg was fitted with a spica cast with a window so that the dressing on the wound could be changed. Because the preferred treatment of the oldest child's continued symptoms required the use of intravenous antibiotics, Dr. William Hardin, Jr., placed a central line in the oldest child's subclavian vein. The oldest child was discharged on July 2, 1999, after the mother was taught to administer the antibiotics. In addition, home — health nurses were provided to monitor the oldest child.

The oldest child's cast and sutures were removed on July 6, 1999, at an orthopedic clinic. The swelling and redness in the oldest child's right thigh was noted to have decreased. However, on July 8, 1999, the mother again returned the oldest child to Children's Hospital, again complaining of redness and swelling up the oldest child's thigh to her buttock. The oldest child was admitted to the hospital and was started on three antibiotics. Testing of the oldest child revealed that she was suffering from anemia at this time. During this hospitalization, the oldest child suffered a respiratory arrest while the mother was reportedly in the bathroom adjoining the oldest child's room for approximately one and one-half hours giving herself a perm and taking a shower. The oldest child was successfully resuscitated and spent time in the pediatric intensive-care unit on a ventilator.

During this last hospitalization and after her recovery from the respiratory arrest, the oldest child was transferred to a special ward where she and the mother were under constant supervision. During that time the oldest child's recurrent symptoms — redness and swelling in her thigh — subsided and she became playful and active. Upon her discharge into foster care, the oldest child had no recurring symptoms in her thigh and has suffered only normal childhood illnesses.

II. The Testimony Concerning MBP Abuse

At the September 2003 trial, DHR presented extensive testimony from two medical doctors on the CHIPS team, Dr. Whitley...