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In re Welfare of Children of M. A. H.

Court of Appeals of Minnesota

November 18, 2013

In the Matter of the Welfare of the Children of: M. A. H. and R. J. H., Parents.

Nicollet County District Court File No. 52-JV-12-241

Michelle M. Zehnder Fischer, Nicollet County Attorney, St. Peter, Minnesota (for appellant Nicollet County)

Jason C. Kohlmeyer, Roxann M. Beranek, Rosengren Kohlmeyer Law Office Chtd., Mankato, Minnesota (for respondents M.A.H. and R.J.H.)

Bailey Breck Rolfsrud, Mankato, Minnesota (for respondent A.J.H.) Susan Kohls, St. Peter, Minnesota (guardian ad litem)

Considered and decided by Johnson, Presiding Judge; Smith, Judge; and Minge, Judge.

SYLLABUS

1. A district court may conclude that a severely malnourished child whose parents did not arrange for appropriate medical care has suffered egregious harm sufficient to establish the existence of a statutory ground to terminate parental rights.

2. The termination of parental rights to a child due to egregious harm, allows, but does not require, termination of parental rights to the child's siblings.

OPINION

Minge, Judge [*]

Appellant county challenges the district court order terminating respondents' parental rights as to one child, but not as to the child's three siblings. On cross-appeal, respondents challenge the district court's order terminating their parental rights to one child. Because the severe malnutrition of and psychological harm done to the child was sufficient to establish the existence of a statutory ground for termination as to that child, but did not mandate termination of parental rights as to his siblings, we affirm.

FACTS

The following factual summary is based on uncontested recitals and findings in the district court's 53-page order. M.A.H. and R.J.H. are the biological parents of A.J.H. and, by adoption in 2008, the parents of P.P.H., T.S.H., and N.M.H. In November 2012, when this proceeding began, A.J.H. was ten years of age, P.P.H. was eight, T.S.H. was seven, and N.M.H. was five. R.J.H. works out of the home as an account executive for a shipping consulting firm, earning approximately $100, 000-110, 000 per year. M.A.H. is a stay-at-home parent and part-time massage therapist. Between 2005 and 2012, R.J.H. and M.A.H. were also licensed foster care providers.

P.P.H., T.S.H., and N.M.H. were initially placed with M.A.H. and R.J.H. in 2007, as foster children, and lived with them for approximately one year prior to their adoption by M.A.H. and R.J.H. A petition to terminate the parental rights of their biological parents had been filed in November 2006, based on the discovery that T.S.H. had multiple broken bones and other injuries. Their biological father admitted to causing many of these injuries. Based on egregious harm to T.S.H., the district court ordered termination of the biological parents' rights as to P.P.H., T.S.H., and N.M.H. This court affirmed on appeal.

In September 2007, P.P.H. and T.S.H. were examined by a licensed child psychologist. The psychologist diagnosed P.P.H. with reactive attachment disorder (RAD), post-traumatic stress disorder (PTSD), and developmental delays. She diagnosed T.S.H. with PTSD and provisionally diagnosed him with RAD. The psychologist made a series of parenting recommendations following the evaluations. She strongly recommended that P.P.H. receive ongoing psychotherapy, that physical discipline be avoided, and that food not be used as a reward or punishment. She expressed concerns about homeschooling because of P.P.H.'s need to be exposed to a variety of adults and children. A follow-up appointment, which was scheduled for P.P.H. and T.S.H. to see this psychologist, never took place.

M.A.H. and R.J.H. followed some but not all of the psychologist's recommendations. They did not seek psychiatric care or professional counseling for any of the children. They used spanking as a punishment, at least for a period of time, sometimes spanking the children with objects. They denied withholding food as punishment, but as discussed below, P.P.H.'s eating schedule and diet became problematic. R.J.H. also told medical personnel that they sometimes withheld food from a child until chores were finished, and that this delay was as much as a half a day. And although they did not isolate the children, they did homeschool them.

P.P.H. has had food issues that pre-date his placement with M.A.H. and R.J.H. In early 2007, his then foster-parents observed that he had "texture issues" relating to eating, strongly preferring meat. During the 2007 psychological examination, M.A.H. reported that P.P.H.'s problems included non-stop eating, failing to stop eating when full, repeatedly asking about the next meal, and an apparent fixation on food. M.A.H. testified at trial that for the first year P.P.H. lived with them, they had to overcook or mash his food or he would throw up after eating.

M.A.H. testified that even after the texture issue was resolved, P.P.H. took food from a family compost pile and from a bird feeder, and that he helped himself to raw hamburger from the refrigerator. M.A.H. and R.J.H. sewed the pockets of his pants shut and removed the bird feeder. To stop him from sneaking food at night, they slept in the hallways outside of his room for up to four months in 2010 and put an alarm on his bedroom door. They also enlisted the other children in monitoring P.P.H.'s behavior.

In the fall of 2011, M.A.H. and R.J.H. became aware that P.P.H. was regurgitating and ruminating (throwing up and re-eating) his food. In November 2011, M.A.H. and R.J.H. took P.P.H. to see a chiropractor who was the family's primary health care provider. The chiropractor observed that P.P.H. was shorter than his younger siblings. In December 2011, the chiropractor arranged to have blood work done on P.P.H. The chiropractor reported that the blood testing did not reveal any significant concerns or conditions. At P.P.H.'s dental appointment in February 2012, M.A.H. told the dentist that he was regurgitating on a "pretty regular basis." At a subsequent dental appointment, M.A.H. told the dentist that P.P.H. was still regurgitating. At both appointments, the dentist informed M.A.H. that P.P.H.'s regurgitation was causing damage to his teeth.

In about September 2012, M.A.H. spoke to the chiropractor who previously saw P.P.H. about his continuing regurgitation. The chiropractor suggested feeding P.P.H. a liquid nutritional supplement, in the belief that this might reduce the regurgitation and increase absorption of nutrients. M.A.H. purchased the supplement. M.A.H. and R.J.H. testified that P.P.H. seemed to improve briefly after beginning the supplement, but that his condition began to decline again.

P.P.H. also had ongoing issues with nocturnal enuresis (bedwetting). M.A.H. and R.J.H. took P.P.H. to the chiropractor in 2008 and 2009 to perform an "adjustment" to address the issue. It does not appear that this treatment was effective. M.A.H. and R.J.H. also had P.P.H. wear pull-ups to bed, left a "potty" chair in his room, and put a waterproof mattress cover on his bed. In August or September 2012, they purchased a plastic sled and had P.P.H. sleep in the sled so that he would not get urine on the bed or floor. P.P.H.'s siblings testified that P.P.H. was sometimes hosed off in the morning after he wet the bed, with T.S.H. having the task of handling the hose.

Except for the chiropractic and dental contacts, from 2007 to October 2012, P.P.H. did not receive any professional medical care. On October 9, 2012, M.A.H. noticed that the front of P.P.H.'s shirt was red. Being concerned that he might have vomited blood, she contacted the doctor who had treated N.M.H. prior to her adoption. The doctor told M.A.H. to take P.P.H. to the emergency room. Prior to reaching the hospital, M.A.H. either suspected or concluded that the red on P.P.H.'s shirt was juice from popsicles he had eaten without permission.

In October 2006, P.P.H. weighed 29.4 pounds and was 3 feet tall, within the normal range for a two-year-old child, and was in "good general health." On examination at the hospital in 2012, he weighed only 34.76 pounds and was 3 feet 5 inches tall, below the third percentile for an eight year old. He was mildly hypothermic, had low blood pressure, and a slow heartbeat. Blood work indicated that he had "concerningly low" hemoglobin and low levels of electrolytes. He had a protruding belly, common in people suffering from starvation. The examining doctor described him as "extremely thin, small stature, almost emaciated appearing." When the doctor told M.A.H. that P.P.H. would have to be hospitalized, she said, "See [P.P.H.], this is what happens when you do things like this."

P.P.H. was transferred to the pediatric-critical-care unit at the Mayo Clinic in Rochester. Testing at Rochester revealed brain volume loss as well as a lack of fat in the subcutaneous and marrow areas of the brain. A bone-age test revealed his bone age to be 6 years and 6 months, three standard deviations below the mean. He was moved to the general-pediatric unit after one night in the critical-care unit. A physician with the child and adolescent psychiatry unit described him as "strikingly thin and emaciated."

On October 11, P.P.H.'s Mayo Clinic physicians became concerned that he was developing "refeeding syndrome, " a rare and sometime fatal disorder that sometimes occurs when a severely malnourished individual begins to eat. This condition is characterized by an extremely low level of phosphorus. A phosphorus level below 2.0 is a matter of medical concern; P.P.H.'s fell as low as 0.4. One of P.P.H.'s primary physicians testified that during 39 years of practice, he only saw phosphorus levels lower than P.P.H.'s once, an adult with anorexia. As part of his treatment, P.P.H.'s physicians recommended that he be fed dairy products, a good source of phosphorus. M.A.H. and R.J.H. objected, as they kept their children on a nondairy diet because of M.A.H.'s belief that consumption of dairy products stresses the immune system and makes a person more susceptible to illness. They suggested alternative sources of phosphorus instead.

P.P.H. remained in the Mayo pediatric unit until October 15, when he was transferred to the child-and-adolescent-psychiatry-hospital service unit, primarily to address his eating issues. He continued to regurgitate and show preoccupation with food while hospitalized, but these behaviors gradually diminished, and the regurgitation ultimately stopped. His phosphorus levels continued to fluctuate even after the transfer, and his diet was closely monitored.

M.A.H. told the Mayo Clinic staff that she believed P.P.H.'s food issues stemmed from his desire to control situations and to gain attention. P.P.H. reported that his main concern is feeling that he will not get enough to eat. At a later meeting with one of P.P.H.'s Mayo Clinic physicians, R.J.H. was unable to explain how P.P.H. had become so underweight even though he was supposedly offered adequate amounts of food.

At the termination-of-parental-rights trial, there was extensive testimony. P.P.H.'s primary physician at the Mayo Clinic's psychiatry unit testified that P.P.H.'s malnourished state was not the result of an internally driven eating disorder, but was likely caused by an external or environmental source. He stated that children with internally driven eating disorders oppose change, hide the disordered eating behaviors, and try to not comply with treatment. But where the malnourishment is external or environmental, the child will generally comply with treatment and will show consistent improvement over time. The doctor testified that P.P.H. fits the latter description and that there was no sign that any medical condition caused P.P.H.'s malnourishment.

The doctor also testified that a child in P.P.H.'s state of malnourishment would likely experience severe hunger and be preoccupied with food. He might feel tired and weak, demonstrate confusion, and not think as logically as a normally nourished child. The doctor was of the opinion that a parent of a child in this condition should have been able to detect a number of symptoms, including weight loss and lack of growth, the protruding abdomen, actions showing hunger, preoccupation with food, and low energy levels.

After one month at Mayo, P.P.H. was released to foster care. He had gained approximately 15 pounds and had grown an inch. While in foster care, he initially expressed concerns about food, but those issues had abated by the time this proceeding reached trial in January 2013. He had not been observed regurgitating or stealing food. His foster mother reported that he did not appear more manipulative or controlling than a normal child of his age. He continued to have problems with bedwetting. Between November 12 and December 12, he grew an additional inch and gained four pounds. His pediatrician described this as "catch up growth" and indicated that this can occur with children exposed to adequate nutrition after a period of severe malnutrition.

In October 2012, a child-protection report was received by Nicollet County Social Services. A children-in-need-of-protection-or-services (CHIPS) petition was filed with respect to all four children and they were placed in foster care. The matter was transferred to Le Sueur County Human Services due to M.A.H. and R.J.H.'s extended foster-parent relationship with Nicollet County. In an interview with an investigator, M.A.H. reported first noticing P.P.H.'s weight loss in September 2012. She said that he was placed on a liquid diet in an attempt to control his ruminating, which she described as a "control issue." She stated that she felt P.P.H. was now being rewarded and getting a lot of attention for his behavior.

R.J.H. later told the investigator that the family could no longer keep up with P.P.H.'s games, and complained that Mayo Clinic physicians were feeding P.P.H. dairy products against M.A.H. and R.J.H.'s instructions. He reported that the travel to and from Rochester was hard on the family and that these were all P.P.H.'s issues. He stated that he felt P.P.H. had "won, " and that ...


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