M.A.V., In Interest of, A92A1059

• Decision Date: 17 November 1992
• Docket Number: No. A92A1059,A92A1059
• Citation: 425 S.E.2d 377,206 Ga.App. 299
• Parties: In the Interest of M.A.V., a child.
• Court: Georgia Court of Appeals

Page 377

425 S.E.2d 377

206 Ga.App. 299

In the Interest of M.A.V., a child.

No. A92A1059.

Court of Appeals of Georgia.

Nov. 17, 1992.

Linda A. Pace, Decatur, for appellant.

Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., Margot Moore Cairnes, Staff Atty., Jonath A. Morrow, Sol., Dorothy V. Murphy, Atlanta, for appellee.

SOGNIER, Chief Judge.

This court granted the application for discretionary appeal filed by the mother of M.A.V. from the order of the Juvenile Court of DeKalb County finding her six-year-old son to be deprived and transferring temporary custody of the child to the DeKalb County Department of Family and Children Services ("DFCS").

1. Appellant contends the evidence was insufficient to support the juvenile court's order because the only evidence of M.A.V.'s deprivation adduced by the State involved M.A.V.'s younger brother. "When contemplating taking custody of a minor child from his parent or parents and awarding it to a third party, the court must initially face the presumption, firmly embedded in our law, that it is in the child's best interest to be with his natural parent or parents. In order for this presumption to be overcome, there must be a clear and convincing showing that the child is abandoned, deprived, or abused, or that the parent is unfit to receive or retain custody. Thus, in order to take custody from the natural parent or parents and award it to a third party, the court must consider not simply the 'best interest of the child,' which is the appropriate standard when the contest is between the parents, but the narrower criterion of parental fitness to have the child in his or her custody.... A parent may lose [her] right to custody of [her] child or children if [she] is found to be unfit or if there is found to exist one of the conditions specified in OCGA § 19-7-1.... Custody may also be lost if the child is found to be ... deprived and likely to be harmed thereby." (Citations omitted.) In re M.M.A., 166 Ga.App. 620, 622-623, 305 S.E.2d 139 (1983).

The record reflects that M.A.V., appellant's first child, is illegitimate and has been cared for since his birth by appellant's parents. M.A.V. remained with his grandparents after appellant remarried, moved away with her husband, and gave birth to a second child, B.C.C. The juvenile court's order and the transcript of the hearing on the deprivation petition regarding M.A.V. support appellant's assertion that the juvenile court judge relied exclusively on the evidence adduced at the hearing on the deprivation petition regarding B.C.C. to supply the clear and convincing evidence of deprivation required to authorize the taking of the child's custody from the natural parent and the awarding of it to a third party. See id.

The juvenile court in the hearing on B.C.C. found that child deprived and transferred custody of the child to DFCS on the basis of its finding that the child was a victim of Munchausen's Syndrome by Proxy ("MSP"). Medical experts testified at the deprivation hearing for B.C.C. that MSP, first recognized in 1977, is an illness in which the caretaker of a child either induces the appearance of an illness in the child or actually inflicts harm on the child, then seeks medical care for the child. In regard to B.C.C., there was testimony that on two separate occasions, appellant had induced B.C.C.'s respiratory arrest (once by suffocation, the other time by drowning), then called for emergency help and resuscitated the child. At the different hospitals to which B.C.C. was taken, appellant gave hospital authorities different names for herself and the child, proffered improbable explanations for the respiratory arrest, failed to continue the recommended treatment for the child's "illness," and did not inform the second hospital of the child's first incident of respiratory arrest. The two doctors who had treated B.C.C. on these occasions testified that after investigation by the second hospital uncovered the earlier incident, the doctors conferred and concluded, based upon the extensive medical examination and testing of the child that had eliminated all other reasonable explanations for the two incidents, that the proper diagnosis by exclusion was MSP.

In the deprivation hearing for B.C.C., Dr. Bernard Kahan, a child psychiatrist who had encountered nearly 20 cases of MSP and published numerous articles for scientific literature on the subject of MSP, testified that there was no evidence that therapy for the parent was helpful based on reports of "serial Munchausen['s Syndrome] by Proxy where one child after another is victimized despite" the parent receiving therapy. In response to questions by the attorney for B.C.C., Dr. Kahan testified that while older children "can well be" targeted by parents with MSP, the younger, non-verbal child is the more likely target. Dr. Kahan testified that "[medical l]iterature suggests" that an older child would be at risk if the younger child was removed from the home and that even if the abuse had not happened to the older child, "that does not mean that it won't happen" upon the removal of the younger child. When asked by appellant's attorney specifically about the risk to a...