In re AMB
| Citation | 640 N.W.2d 262,248 Mich. App. 144 |
| Decision Date | 25 January 2002 |
| Docket Number | Docket No. 218869. |
| Parties | In the Matter of AMB, Minor. Family Independence Agency, Petitioner-Appellee, Family Independence Agency, Petitioner-Appellee, v. AMB, Respondent-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Judy Hartsfield, Assistant In Charge, and Larry W. Lewis, Assistant Attorney General, for the Family Independence Agency.
William E. Ladd, Detroit, for AMB. Mary J. Bomgren, Calvin A. Luker, and Kathleen N. Harris, Livonia, for Michigan Protection and Advocacy Service, Inc.
Judith Andre, Howard Brody, Leonard M. Fleck, Thomas Tomlinson, and Clayton L. Thomason, East Lansing, in propria persona, as scholars in medical ethics.
Frank E. Vandervoort, Charlotte L. Allen, and Evelyn Tombers, Ann Arbor, Midland, Lansing, for the Children's Law Section of the State Bar of Michigan.
Anne Argiroff and Ann Routt, Troy, for The American Civil Liberties Union and Legal Services of Southern Michigan.
Before: WHITBECK, P.J., and McDONALD and COLLINS, JJ.
Apparently relying on an "order" entered by a family court referee, medical personnel at Children's Hospital of Michigan withdrew life-sustaining medical treatment that AMB, an infant, was receiving. She died soon thereafter. William Ladd, the attorney appointed to represent her in the protective proceeding that originally brought her situation before the family court, appeals on her behalf. We reverse.
This case is, at its core, a human tragedy. AMB, whom we call baby Allison, is the central figure. She was born severely ill, with a poor prognosis for long-term survival, and required extensive medical care. This care included immediate ventilator support and intravenous drug therapy in the neonatal intensive care unit at Children's Hospital of Michigan, in Detroit. Baby Allison died at Children's Hospital just ten days later.
Baby Allison's short life, while heartbreaking in itself, does not hint at the truly appalling circumstances relating to her conception and death. At age seventeen, baby Allison's mother, KB, became pregnant. Baby Allison's putative father, JB, was also KB's father. When this situation came to light, local authorities pressed criminal charges against JB and instituted a protective proceeding against JB and his wife to terminate their parental rights to KB and KB's younger brother. To complicate this situation further, the record includes explicit, though unproven, allegations that KB is mentally retarded or has some form of developmental delay. The resolutions of the criminal case against JB and the separate child protective proceeding against JB and his wife are not evident from the available record. However, it is possible to infer that JB raped his mentally disabled daughter, KB, leading to baby Allison's incestuous conception.
If the facts surrounding baby Allison's conception are tragic, the circumstances leading to her death are doubly so. Through unredeemably flawed family court proceedings, the Family Independence Agency (FIA) acquired what appeared to be an order that authorized Children's Hospital staff "to take the child off life support equipment and medication provided that `Comfort Care' is provided." Despite an explicit warning that the order did not take effect for seven days, the very next day Children's Hospital staff contacted a chaplain who baptized baby Allison while her mother and her three aunts were present. According to the chaplain's notes, at approximately 7:30 p.m. Thus, Children's Hospital staff removed baby Allison from life support without any legal authority, even under the terms of an order that we ultimately conclude had no legal basis whatsoever. Nonetheless, baby Allison's life ended, the final act of this tragedy of almost mythical proportions.
The series of individual legal errors and missteps that led to baby Allison's death are our only focus in this appeal. The hasty family court proceedings were so unseemly precisely because those involved in this decision knew that a life hung in the balance. The unforeseen consequence of this rush to make a decision is that the record consists mostly of allegations, unsworn statements, and hearsay. More often than not, this has forced us to assume that the record is both adequate and accurate simply to reach the legal issues. We emphasize, however, that there is no way to determine the truth about this case with any assurance. Further, these proceedings occurred less than one month before significant changes to the Juvenile Code went into effect on March 1, 1999.1 Perhaps, had baby Allison been born just a few weeks later, these proceedings would have been conducted differently.
KB gave birth to baby Allison five weeks prematurely, on February 9, 1999, at Oakwood Hospital. Physicians then discovered that baby Allison's heart was missing a septum, two of her heart valves were deformed, her aorta was very small, and the size of her heart had forced her left lung to collapse partially. Baby Allison had hydrocephaly and other brain abnormalities suggesting corpus callosum agenesis, as well as malformed hip joints and a possible problem with her intestines. Physicians used the drug prostaglandin to open baby Allison's ductus arteriosis to help circulate oxygenated blood through her body and placed her on a ventilator. Within hours of her birth, Oakwood Hospital staff transferred baby Allison to the neonatal intensive care unit at the Children's Hospital of Michigan in Detroit.
On February 11, 1999, FIA caseworker Judith Matlock filed an original petition alleging that baby Allison came within the family court's jurisdiction pursuant to M.C.L. ž 712A.2(b)(1) or (2). The factual allegations in the petition focused on three circumstances: the sexual abuse in the home JB and his wife shared and the pending petition to terminate their parental rights, KB's alleged mental limitations and her alleged inability to make decisions for critically ill baby Allison, and KB's informal living arrangements with her uncle and aunt. The petition asked the family court to take temporary custody of baby Allison, noting that KB had not made any plans to care for her baby because KB neither knew how to care for an infant nor had any money.
Richard Smart, a referee in the family court, held a preliminary hearing regarding the petition that same day. Neither KB nor JB attended this first hearing, and neither was represented by counsel. No one, including Matlock, testified under oath. However, Matlock informed referee Smart that she told KB, but not JB, about the hearing. Referee Smart went off the record briefly before finding "that reasonable efforts have been made to notify the respondent, all parties." The attorney for the FIA asked referee Smart to authorize the petition and a placement order and to "authorize all necessary medical treatment for this child, who is hydrocephalic and has heart defects." Without hearing any additional argument, referee Smart found probable cause to authorize the petition. After a second discussion off the record, baby Allison's attorney, Ladd, objected to an order authorizing anything other than routine medical care, stating, Referee Smart then suggested that KB was incapable of consenting to medical treatment for baby Allison, to which Ladd replied, "Well, then I think that the agency, if there's any ... nonroutine medical care, they're going to have to ask for consent of the Court." Ladd gave several examples of what he considered nonroutine care, including brain surgery or a heart transplant. The assistant attorney general representing the FIA interjected that he believed that it was within the family court's authority to authorize all necessary care without specification. Referee Smart stated that his decision would be to "enter an order allowing for the child to have all necessary medical treatment." Ladd responded, When referee Smart said that he was not sure what Ladd was saying, Ladd replied:
Well, if you enter a blanket order, you're essentially giving the FIA and/or the hospital the discretion to determine what's necessary medical care. And while they may do things that are unusual and ... that would normally require some consent, that order could also authorize them to interpret that as meaning that they could not give that care. And I think that's not proper.
* * *
I think that a fully informed decision about medical care, specific medical care for this child is necessary.
Referee Smart signed and dated a form order authorizing the petition, indicating on the face of the order that he was a hearing referee. The order stated that "[n]otice of hearing was given as required by law," denied JB visitation rights, and directed the FIA to place baby Allison in foster care or with a suitable relative. The order also noted, ...
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