D.M. v. J.M.

940 N.E.2d 591, 189 Ohio App. 3d 723
CourtOhio Court of Appeals
DecidedAugust 18, 2010
DocketNo. 24801
StatusPublished
Cited by4 cases

This text of 940 N.E.2d 591 (D.M. v. J.M.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.M. v. J.M., 940 N.E.2d 591, 189 Ohio App. 3d 723 (Ohio Ct. App. 2010).

Opinion

Belfance, Judge.

{¶ 1} D.M. appeals the ruling of the Summit County Court of Common Pleas, Domestic Relations Division, that reallocated parental rights and responsibilities from appellant to appellee. We affirm.

I

{¶ 2} Appellant, D.M. (“Mother”), and appellee, J.M. (“Father”), were granted a divorce in May 2004. Mother was named the residential parent of the couple’s three minor children. Mother and Father have been involved in contentious litigation since that time. In 2005, Mother obtained a civil protection order against Father. Father filed two civil lawsuits against Mother, which he dismissed. In 2005, Father brought a motion for modification of custody, which he withdrew upon resolution of the matter.

{¶ 3} The couple’s oldest daughter suffered from mitochondrial disease and passed away in December 2006. Mitochondrial disease refers to any one of the at [726]*726least 1,500 diseases in which a person’s body does not make enough energy to support the body’s functions. The disorder inhibits the body’s ability to function normally and can affect, for example, the muscles, nervous system, digestive system, or multiple systems. Because mitochondrial disease is often genetically inherited, both parents were concerned that their youngest daughter, M.M., might also be afflicted with the disease. Father contacted Dr. Bruce Cohen, an expert in mitochondrial disease at the Cleveland Clinic, who had treated M.M.’s older sister. The parties also consulted with Dr. Natowicz, another physician at the Cleveland Clinic. Although the diagnosis of mitochondrial disease can be at times verified through a muscle biopsy, the parties, in consultation with Dr. Cohen, declined to engage in that invasive procedure. Eventually, the parties were told that M.M. also suffered from the disease. Dr. Cohen recommended that the parties give M.M. a “mitochondrial cocktail” that consisted of a variety of vitamins that are believed to be helpful to persons suffering with the disease.

{¶ 4} M.M.’s primary physicians were at Akron Children’s Hospital (“Children’s”). Mother, who is a nurse, had the primary responsibility for caring for M.M.’s older sister as well as M.M. According to the guardian ad litem, Mother’s excellent care is the reason M.M.’s sister lived as long as she did. Mother and Father often attended meetings with doctors together; however, in light of Father’s travel schedule, Mother also attended meetings when Father was absent. Mother kept extensive records regarding her observations of M.M.’s symptoms and would report these symptoms to the doctors. These symptoms, which can be indicative of mitochondrial disease, included fatigue, elevated heart rate, low blood pressure, heat intolerance, night terrors, diarrhea, and food intolerance. M.M.’s treatment became progressively more invasive and involved. In consultation with M.M.’s doctors, a “G-tube” was inserted into M.M. to provide nourishment. In addition, a “Mediport” was surgically implanted to treat what appeared to be a gamma-globulin deficiency. Both parents were involved in the consultation and decision to implant the devices. The doctors at Children’s consulted with Dr. Cohen regarding the procedures. After an initial discussion, Dr. Cohen contacted M.M.’s physician to ensure that the doctor felt it was necessary to proceed with the G-tube. Dr. Cohen was told by that doctor that the procedure was necessary. As a result, M.M. received her nutrition by way of the G-tube and did not eat ordinary food. M.M. was required to conduct her daily activities wearing a heavy backpack and generally, had a very limited lifestyle. At night, M.M. was hooked to an IV, which was in her bedroom.

{¶ 5} Although Father did not often observe the symptoms that Mother reported, he largely deferred to Mother regarding M.M.’s care because of Mother’s medical training and because she was with M.M. the majority of the time. Mother was often critical of the manner in which Father cared for M.M. [727]*727and contacted the guardian ad litem and M.M.’s doctor’s to report her concerns regarding Father’s care. Father felt obligated to follow Mother’s precise directives, and Father would be denied companionship if he questioned Mother regarding M.M.’s care. Father made an effort to allow M.M. to engage in activities typical for a child of M.M.’s age. Mother tended to be more restrictive and viewed these activities as posing a great risk to M.M.’s health.

{¶ 6} In early November 2007, M.M. was admitted to Children’s on two separate occasions. Dr. Peter Cooper White, who was treating M.M. and had examined her medical history, began to question whether M.M. actually had mitochondrial disease. A conference was convened involving all of M.M.’s treating physicians. Dr. Bruce Cohen participated by telephone. Dr. Daryl Steiner, director of the Care Center at Children’s, was also asked to consult on the matter in order to determine whether M.M. was a victim of her Mother’s Pediatric Condition Fabrication (“PCF”), formerly known as Munchausen Syndrome by Proxy.1 PCF is a psychological condition in which usually the parent falsifies or exaggerates symptoms in order to convince others that the child is ill. The physician who ordered the implantation of the feeding tube was not present at the meeting. In addition, the doctors did not contact the doctor who had originally detected the gamma-globulin deficiency and had recommended the installation of the Mediport.

{¶ 7} As a result of this conference, the physicians questioned the accuracy of M.M.’s diagnosis. They also became suspicious that Mother may have falsified or exaggerated M.M.’s symptoms. The group decided that all medical intervention should be withdrawn, including M.M.’s surgically implanted feeding tube and Mediport. The group also believed that the likelihood of being able to bring about significant change in M.M.’s medical care would be impossible with Mother making the decisions. Although Dr. Steiner had never met Mother, based upon the conference, he prepared a document entitled “Suspected Child Abuse and Neglect Record/Consultation,” in which he asserted that Mother had pursued medical treatment for an illness that had never been diagnosed and that Mother’s pattern of behavior was consistent with “Fictitious Illness by Proxy Syndrome,” also known as Munchausen Syndrome by Proxy. The doctors also decided that it was appropriate to refer the matter to the Summit County Children’s Services Board (“CSB”) to assist with the withdrawal of the medical treatment.

{¶ 8} Dr. Cooper White spoke to Mother and told her about the meeting. Mother was surprised to learn that he and the other doctors felt that M.M. did not have mitochondrial disease. Dr. Cooper White told Mother that the doctors recommended the removal of the surgically implanted devices and the cessation [728]*728of medications. He also informed Mother that CSB was involved. Mother agreed to the recommendations. Dr. Cooper White did not believe that Mother agreed to follow the physicians’ advice out of concern about CSB’s involvement. Dr. Steiner was unaware that Mother had agreed to the recommendations.

{¶ 9} CSB contacted Ellen Kaforey, the guardian ad litem and parent coordinator. She was informed that CSB intended to take custody of M.M. The guardian ad litem promptly filed an emergency motion for transfer of custody to Father. In this motion, she attached the document that Dr. Steiner had prepared. The trial court immediately issued an order granting custody to Father and prohibiting Mother from having any contact with M.M. or Children’s.

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Bluebook (online)
940 N.E.2d 591, 189 Ohio App. 3d 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dm-v-jm-ohioctapp-2010.