In re CM, A98A1740.

• Decision Date: 11 March 1999
• Docket Number: No. A98A1740.,A98A1740.
• Citation: 513 S.E.2d 773,236 Ga. App. 874
• Parties: In the Interest of C.M. et al., children.
• Court: Georgia Court of Appeals

513 S.E.2d 773

236 Ga. App. 874

In the Interest of C.M. et al., children.

No. A98A1740.

Court of Appeals of Georgia.

March 11, 1999.

Culp & Smith, John C. Culp, Atlanta, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Sanders B. Deen, Marietta, for appellee.

SMITH, Judge.

This is an appeal by a mother from an order terminating her parental rights to her two minor children, C.M. and M.M.¹ Appellant contends there was insufficient evidence to find that M.M. was deprived or that the deprivation of M.M. and C.M. was likely to continue. We disagree and affirm. Before considering whether to enter an order terminating parental rights, the trial court must first determine whether there exists "clear and convincing evidence of parental misconduct or inability." OCGA § 15-11-81(a). To reach this determination, the court must find that the child is deprived within the meaning of OCGA § 15-11-2(8)(A) due to a lack of proper parental care or control by the parent in question, that this state of affairs is likely to continue or is not likely to be remedied, and that such deprivation will or is likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81(b)(4)(A). If the court makes this preliminary determination based on clear and convincing evidence, termination of parental rights is authorized if the court likewise finds such action will best serve the child's interest and needs, "including the need for a secure and stable home." OCGA § 15-11-81(a).

On appeal of a termination of parental rights, the reviewing court defers to the lower court in the areas of factfinding and weighing of the evidence, and we must affirm unless the appellate standard is not met. In the Interest of K.S.W., 233 Ga.App. 144, 147(1), 503 S.E.2d 376 (1998). This court also views the evidence in the light most favorable to the appellee. In the Interest of A.M.V., 222 Ga.App. 528, 529, 474 S.E.2d 723 (1996).

So viewed, the evidence shows that in August 1994, appellant took her two-year-old son, C.M., to the Kennestone Hospital Emergency Room. He was very sick with a high fever, and E. coli bacteria, a component of human feces, were found in his bloodstream. C.M. was transferred to Scottish Rite Hospital. While alone with C.M. in his room at Scottish Rite, appellant injected the contents of a syringe, filled with a mixture of feces and urine, into C.M.'s intravenous tube. A hospital camera recorded appellant's action. Appellant was arrested and charged with cruelty to children and aggravated assault. In April 1996, she entered a non-negotiated plea of guilty to the charges and was sentenced to seven years concurrent as to each count, with five years to be served on probation.

In late August 1994, the Juvenile Court of Cobb County entered an order placing C.M. in temporary custody of the Cobb County Department of Family & Children Services ("DFACS"). In September 1994, the court entered an order returning legal custody of C.M. to his father, directing that C.M.'s paternal grandparents retain physical custody of C.M. and his one-year-old sister, M.M. Following a deprivation hearing in January 1995, the court again awarded temporary legal custody of both C.M. and M.M. to DFACS.

In August 1996, the court entered an order extending DFACS's custody of both children and finding clear and convincing evidence that the children were deprived. The record contains no evidence that this order was ever appealed.

In October 1996, DFACS filed a petition for termination of the parental rights of appellant and her husband. At the termination hearing, appellant testified that she injected C.M. with a used syringe at the Scottish Rite Hospital because she had been raped when she was 18; she had given up a child for adoption; her brother had died; and she was experiencing marital problems. Appellant acknowledged that she had injected C.M. once before with the same mixture and that "the whole thing was very dangerous."

C.M. had been admitted to the emergency room approximately twenty-eight times in the first two years of his life. Aside from ear infections, no evidence was presented that C.M. had any medical problems warranting so many emergency room visits. No evidence was presented that appellant was observed injecting feces into or otherwise harming her younger child, M.M. But evidence was presented that M.M. had been admitted to the hospital approximately nineteen times in the first nine months of her life, although she had no documented medical problems other than common colds. In proportion to her age, the number of hospital emergency room visits experienced by M.M. exceeded that of C.M. Since the children were separated from appellant, neither child has had any serious medical problems.

Beatrice Yorker, an associate professor of nursing and associate provost at Georgia State University, testified concerning a condition known as Munchausen Syndrome by Proxy (MSP). After hearing testimony regarding her degrees in nursing, psychiatric nursing, and law, as well as her research and publications regarding MSP, the court, over objection, qualified her as an expert with regard to MSP.

Yorker testified that MSP is a disorder in which a parent, usually a mother, induces or fabricates an illness in a child for the purpose of obtaining medical or some other kind of attention. She stated that MSP is a form of child abuse that may take the form of falsifying illness or actively inducing illness in a child. She characterized appellant's injection of urine and feces into C.M.'s bloodstream as a relatively common form of active induction of MSP. Marital strife is a common "trigger" for MSP, as is criticism of the mother in her parenting skills. Yorker testified that from her review of the medical records, observation of the children's improvement upon separation from the parent, as well as "most definitively" by covert surveillance, it was her opinion that appellant fit the characteristics of MSP.

Noting that there is no record of even a single successful treatment for active induction of MSP, she testified that no treatment has been discovered for MSP. She also testified without objection to "very strong evidence" that once a child has been identified as a victim of MSP, other children are at risk for abuse. In Yorker's opinion, MSP parents should not be allowed unsupervised access to children. Young children, particularly pre-verbal children, are more often victims of MSP, although some children continue to be abused through their teenage years.

1. The mother first contends that the evidence was insufficient to support the juvenile court's finding that M.M. was deprived. But it is well established that, when no appeals are taken from juvenile court orders finding that a child was deprived, an appellant is bound by that finding and any challenges to those orders are not preserved for appeal. In the Interest of E.C., 225 Ga. App. 12, 14-15, 482 S.E.2d 522 (1997). Here, the record shows no appeal of the order finding that both C.M. and M.M. were deprived. Appellant therefore is bound by that finding, and this enumeration of error is not preserved for appeal.

2. We next consider the mother's contention that the evidence presented at the termination hearing did not support the juvenile court's conclusion that the deprivation of C.M. and M.M. was likely to continue. Evidence of past parental conduct resulting in deprivation may be considered in determining whether the deprivation is likely to continue and cause harm to the children. In the Interest of J.S., 232 Ga.App. 876, 879, 502 S.E.2d 788 (1998); A.M.V., supra, 222 Ga. App. at 531-532, 474 S.E.2d 723. Moreover, in a termination case, evidence that is one or two years old is not outdated, because there will necessarily be some passage of time between the date the...