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In re Dependency of Lee

Court of Appeals of Washington, Division 1

September 11, 2017

In the Matter of the Dependency of: GRIFFIN LEE DOB: 11/28/2000
v.
DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. PERRY LEE and CRISTA JOHNSON, Appellants,

          DWYER, J.

         This case contains aspects of both tragedy and travesty. At the center of it all is a profoundly disabled young boy, now aged to early adolescence. Cared for by his parents in the family home for over a dozen years, without government financial assistance, he eventually appears at a hospital near death from starvation. The chaotic aftermath of his appearance culminates in a dependency trial in which the law is misapplied and unsupportable findings and determinations are made. The enmity on all sides is palpable. Whether this enmity can or will lessen is beyond our control. But ensuring that the law be applied equally and fairly is not. Accordingly, we reverse the judgment and challenged orders of the trial court and remand this action for new proceedings consistent with this opinion.

         I

         Griffin[1] was born to Crista Johnson and Perry Lee on November 28, 2000. Griffin has a fraternal twin, one older brother, and one younger brother. Griffin's brothers are healthy.

         Ms. Johnson and Mr. Lee live together with their children in Seattle. Ms. Johnson is a program manager who works between 40 and 70 hours each week. Mr. Lee was employed as a product manager but left his career to be a stay at home father from 2000 through 2013. Mr. Lee has been an officer of the parent teacher association, volunteered with the special education program, and has been involved with the Seattle Central Little League, Capitol Hill Soccer Club, and the Mitochondrial Guild-a group formed to raise money for mitochondrial research. Mr. Lee is currently employed as a fiscal specialist at Washington Middle School.

         Medical History

         Griffin was born with numerous medical conditions, including epilepsy, mitochondrial disorder, cortical visual impairment, developmental delays, chronic vomiting, and kidney stones. Griffin is functionally blind, nonverbal, nonambulatory, and exhibits self-injurious behavior. Griffin also has low bone mineralization and minimal density, causing his bones to break easily.

         Dr. Russell Saneto, Griffin's neurologist, placed Griffin on a ketogenic diet when he was an infant. The ketogenic diet was intended to help manage Griffin's seizures. Ketogenic diets are high in fats but low in carbohydrates and proteins. Griffin's diet required close monitoring and frequent supplementation with vitamins and minerals to prevent deficiencies. Griffin was seizure-free from 2004 until late 2013 while on the ketogenic diet.

         Caring for Griffin proved both challenging and time consuming. Each day, Griffin's parents would bathe and dress him, brush his teeth, bottle feed him, prepare his meals for the day, and change his diapers. Griffin attended school most days and often participated in physical therapy, occupational therapy, and vision therapy. Because Griffin's medical conditions are so complex, his parents sought help from medical clinics around the country. Griffin's parents drove him to appointments at clinics around Seattle, Detroit, St. Louis, and Vancouver, Canada. Ms. Johnson testified that she was not able to find other parents with a similar family and a child that required as much care as Griffin.

         Griffin enjoys playing with his brothers while at home. Griffin recognizes his brothers and responds to them differently than he does to strangers. Griffin and his brothers vacationed together using the family car, which his parents outfitted to accommodate a refrigerator used to store Griffin's formula. Despite their best efforts, Griffin's parents often worried that their nondisabled children were not getting enough attention. Griffin's brothers helped raise him but-as children themselves-they were never "in charge" of Griffin.

         Griffin has been hospitalized numerous times throughout his life, often because of chronic vomiting and dehydration. Griffin was hospitalized at least seven times between 2007 and 2013. When hospitalized, Griffin was typically given intravenous fluid therapy as well as nutrition through a nasal feeding tube. Although Griffin's parents always consented to the temporary use of the nasal feeding tube, the subject was very contentious. Griffin's parents refused to take Griffin home with a nasal feeding tube inserted because they were concerned that Griffin would tear out the tube.

         Griffin was chronically malnourished between the ages of 6 and 13. Between 2007 and 2014, Griffin's weight fluctuated between 11.4 kgs and 15 kgs. Hospitalization resulted in slight weight gain, although Griffin's weight would drop after being discharged. Because of Griffin's chronic malnourishment, the subject of a permanent feeding tube (g-tube) was discussed with his parents on multiple occasions. The issue of g-tube use is among the most contentious subjects in this wrenching dispute.

         Griffin's parents consistently opposed the surgical insertion of a g-tube as a solution for Griffin's malnourishment. His parents believed that Griffin enjoyed the process of bottle feeding and they were concerned that Griffin's self-injurious behavior would result in him pulling out any permanent tubes that were inserted. Griffin's parents were not always able to effectively convey their concerns to the medical providers and, as a result, the medical providers were not able to satisfactorily alleviate the parents' concerns.[2]

         Medical professionals at Seattle Children's Hospital (SCH), where Griffin received most of his treatment, discussed the g-tube with Griffin's parents on numerous occasions. Dr. Saneto also discussed the g-tube with Griffin's parents on at least two occasions and offered recommendations concerning methods of preventing Griffin from removing the g-tube. Dr. Saneto believed that the g-tube would alleviate Griffin's vomiting. Griffin's gastrointestinal clinic doctor recommended a g-tube in 2007. Griffin's ketogenic dietician, Aaron Owens, also recommended a g-tube in 2007. Griffin's parents refused.

         In 2008, Dr. Saneto referred Griffin to the Medically Complex Child (MCC) Service at SCH. Christa Kleiner, an MCC pediatric nurse practitioner, worked with Griffin during that time. Kleiner informed Griffin's parents that the MCC team "believed that [Griffin] needed to be fed through a tube rather than through the bottle and that would help him to become better nourished and less vomiting and it would be part of the workup to understand what was going on." Griffin's parents refused placement of a permanent tube but allowed the MCC team to use a temporary tube. The MCC team believed that a feeding tube could solve Griffin's frequent vomiting, as the vomiting may have been caused by Griffin's tendency to drink bottles very quickly.[3] Kleiner later testified that the MCC team would not recommend a feeding tube if they felt that the tube would be pulled out frequently.

         The use of the temporary feeding tube helped to alleviate Griffin's vomiting. However, Griffin did not gain any weight despite receiving approximately 2, 100 calories per day. By the end of the 2008 hospitalization, the MCC team determined that Griffin's failure to thrive "may be due to his underlying condition and not necessarily inadequate intake/excessive vomiting." The MCC team believed that Griffin "would not benefit from a g-tube placement and there would be no medical indication for forcing the parents to place a g-tube at this time."

         Ethics Consultations

         Griffin was hospitalized for vomiting and dehydration on November 30, 2011. Griffin's school had contacted child protective services (CPS) to report possible neglect. Accordingly, the child abuse and neglect team at SCH became involved. Griffin's parents refused to consent to the insertion of a g-tube during this hospitalization.[4]

         During the November 2011 hospitalization, SCH referred Griffin's case for a bioethics consultation. The ethics consultation was performed by Dr. Benjamin Wilfond, the director of the Treuman Katz Center for Pediatric Bioethics at SCH. Dr. Wilfond consulted with members of the MCC team and other care providers at SCH to complete the consultation. The purpose of the ethics consultation was to determine whether SCH's continued treatment of Griffin without the use of a g-tube constituted neglect "in an 11 yo 11 Kg boy with profound developmental delay and seizures, who has ... recently had fracture related to osteopenia."

         Dr. Wilfond noted that Griffin's parents "have been committed to caring for Griffin and involving him in family life, " but were strongly opposed to the use of a permanent feeding tube. Griffin's parents believed that weight gain would not offer Griffin a significant benefit to his quality of life to justify the medical intervention. Dr. Wilfond agreed that it was "not clear how much medically provided nutrition will improve [Griffin's] quality of life."

         Dr. Wilfond believed that addressing Griffin's profound malnutrition was in his best interest but also credited Griffin's parents' wishes to avoid a permanent feeding tube "BECAUSE OF HIS PROPENSITY TO SWIFTLY REMOVE ANY FOREIGN BODY." Dr. Wilfond determined that "it is not clear that requiring [g-tube] feed over the parents' objections is the best course of action for this child within his family context, but more information is needed."

         SCH referred Griffin's case to Dr. Wilfond for a second ethics consultation in February 2013. Griffin's medical providers were concerned "about parents' apparent unwillingness to provide nutritional support to a 12 year old child with probable mitochondrial cytopathy who has persistent vomiting, necessitating limited foods and volume." Dr. Wilfond consulted with the MCC team and various other medical professionals at SCH to complete the consultation.

         Dr. Wilfond was concerned that Griffin's feeding regimen was not effective. Dr. Wilfond recommended inviting school providers to meet with the dietician and family and providing outpatient nutritional support to the family and school. Dr. Wilfond recommended being "explicit with the family that the rationale for deference to their approach is because palliative care is appropriate in this context, and this is the family's version of palliation."[5]

         Significantly, although Dr. Wilfond disagreed with Griffin's parents' decision to refuse a permanent feeding tube, he nevertheless believed that the information at hand was not sufficient to categorize the refusal as "clearly the wrong thing to do." The medical team agreed:

While the parents are very challenging to engage with, based on the past history, there was a consensus that Griffin's clinical status will not be much different in a different environment. Further, even though the family is difficult to engage with, they continue to appear invested, including bringing Griffin in for care during this episode. It is plausible that the family's home relationship is critical to Griffin's survival to this age.

         Griffin's Heath Declines

         On December 16, 2013, Griffin had a seizure. His mother contacted Dr. Saneto, who asked that she bring Griffin into the clinic for a weight check and to test Griffin's Lamictal level. However, that day was a work day for Ms. Johnson. She stated that she could not take Griffin in to be weighed that day and instead inquired about bringing him in over the weekend. But the clinic was not open on weekends. Griffin was not weighed.

         On January 31, 2014, Griffin's mother e-mailed Dr. Saneto and informed him that Griffin had two seizures at school the previous day. Dr. Saneto asked Ms. Johnson to bring Griffin in for a weight check. On February 5, 2014, Griffin's dietician followed up, asking when Griffin would be coming in for a weight check. Griffin's parents stated that they could only bring Griffin in to the clinic on weekends. The clinic was closed on weekends.

         On February 18, 2014, Dr. Saneto again contacted Griffin's parents to ask about bringing Griffin in to the clinic for a weight check. A week later, on February 25, 2014, Ms. Johnson brought Griffin to the clinic for his regularly scheduled neurology visit. Unfortunately, Dr. Saneto was running 90 minutes behind schedule that day. Ms. Johnson had to return to work before Griffin could be weighed.

         Griffin was weighed by Dr. Saneto on April 2, 2014. He weighed 12.5 kgs in his clothes. Dr. Saneto questioned whether Ms. Johnson was refusing to remove Griffin's clothing to avoid the medical staff observing how emaciated Griffin had become. Ms. Johnson admitted that Griffin had not been receiving all of his solid foods during the school day and that she did not always give Griffin the leftover food at home. Griffin's mother did not seem concerned about his weight. Despite Griffin's declining health and precariously low weight, Dr. Saneto did not seek to have Griffin admitted to the hospital. Instead, indicating a lack of apparent urgency, a follow-up appointment was scheduled for six months in the future.

         Griffin was weighed again on May 16, 2014, when his mother took him in to SCH for an electroencephalogram (EEG). His weight had dropped to 11.3 kgs. Ms. Johnson later testified that she had expected Griffin to be admitted to SCH because of his low weight-but he was not.[6]

         June Hospitalization

         Griffin was hospitalized three weeks later on June 9, 2014, following a series of seizures. Griffin weighed 10.3 kgs upon admission. Several members of the medical team were shocked by Griffin's emaciated state. Because of Griffin's severe condition, a nasal tube was placed in Griffin without obtaining parental consent. A nurse later contacted his parents to obtain consent for a skeletal survey but his parents refused.[7]

         Upon encountering Griffin, Kleiner, who had been treating him since 2008, "promptly walked out of the room into the bathroom, vomited, and called for immediate attention" to determine an appropriate care plan. Kleiner believed that Griffin's condition was the worst that she had seen in her career and she no longer trusted that he was safe in the care of his parents. Griffin's dietician, Owens, began crying upon seeing him-she had never seen a child so malnourished. Owens did not want Griffin to return home with his parents because she was fearful that his condition would worsen.[8]

         Dr. Saneto saw Griffin shortly after he was admitted. Dr. Saneto had never seen Griffin so thin. Although Dr. Saneto had seen Griffin two months earlier and had not admitted Griffin to the hospital, he was now worried that Griffin might die. Dr. Saneto believed that Griffin should be removed from his parents' care. Dr. Saneto believed that Griffin's parents were doing the best that they could but that the circumstances were overwhelming them. He was worried that Griffin's condition would not improve if he returned home.

         Dr. Kenneth Feldman examined Griffin on June 12, 2014. Dr. Feldman is a general pediatrician with a specialty in child abuse. The MCC team indicated to Dr. Feldman that Griffin's parents had not been mixing his formula correctly and had not been picking up the prescribed amount of formula.[9] Dr. Feldman determined that Griffin was starved and at a very high risk of dying of starvation, that he was receiving inadequate calories, and that his starvation had worsened over the preceding six months. Dr. Feldman believed that Griffin's parents had been providing inadequate care to Griffin and had adamantly refused the medical team's solutions for Griffin's persistent vomiting on multiple occasions.[10]

         Dr. Doug Opel, vice-chair of the ethics committee at SCH, conducted a third ethics consultation in June 2014. The goal of the third ethics consultation was to determine "whether the parents' ongoing decision-making regarding managing Griffin's nutritional status constitutes medical neglect." Dr. Opel determined that "[w]hile this is ultimately for CPS to decide, we agree with the MCC team's decision to notify CPS given the potential that Griffin's severe malnutrition and weight loss evident on this admission may be due to the family not meeting Griffin's nutritional requirements."

         Griffin was placed into protective custody on June 12, 2014. Two days later, Rachel DeWind from CPS filed a dependency petition. The petition alleged that Griffin was dependent both because there was no parent, guardian, or custodian capable of caring for him and because he had been abused or neglected while in his parents' care. DeWind later testified that, upon Griffin's hospitalization, she did not understand Griffin's needs and therefore did not offer his parents any services that would enable Griffin to return home. DeWind also filed a dependency petition for each of Griffin's brothers but those petitions were later dismissed.

         Griffin gained weight while he was hospitalized. A nasal tube was used to feed Griffin throughout his hospitalization and the use of the nasal tube mostly resolved the vomiting. Griffin's parents consented to a surgical procedure to insert a permanent feeding tube in August 2014. The procedure failed.

         Posthospitalization

         Griffin was hospitalized in SCH until October 16, 2014, after which, as the result of a court order, he was transferred to Ashley House in Enumclaw. The court also granted the Department of Social and Health Services' petition to authorize a surgery to remove Griffin's kidney stones and for a surgery to insert a feeding tube. The surgery to remove Griffin's kidney stones failed. Also unfortunately, Griffin was returned to SCH shortly after he was placed in Ashley House. Staff members at Ashley House had handled him too roughly and Griffin's femur and humerus were broken while under Ashley House's care.

         Griffin received a g-tube in March 2015, pursuant to a court order. Griffin gained weight following the insertion of the g-tube. By the summer of 2015, Griffin weighed 26 to 28 kgs. Griffin was placed in Children's Country Home following his hospitalization and he remained there throughout the trial.

         In January 2016, Griffin's tibia was broken while under Children's Country Home's care. Ms. Johnson testified to her experience visiting Griffin at Children's Country Home:

Griffin did not go to school for a very long time, I don't see him ever interacting with his peers, I don't see staff interacting with him other than to feed or bathe or change him, meaning diapering. I do not see volunteers like he's been exposed to, working with him. He does not have his family there. He is by himself when we get there. He is in a room, other children are in the room. They are not interacting and they're not interacting with the staff.

         Children's Country Home later notified the Department that it could no longer care for Griffin. The Department sought to place Griffin in a care facility across the state, near Walla Walla. Griffin was eventually returned to Ashley House.

         Prior to trial, Griffin's parents agreed that there was no parent, guardian, or custodian who was capable of adequately caring for him. However, Griffin's parents disputed the allegation that they had abused or neglected Griffin. Following the fact-finding hearing, the trial court found that Griffin's parents had abused or neglected him.

         Two months after the entry of the trial court's findings of fact, the court held the disposition hearing.[11] Griffin's parent's filed a motion requesting that the trial court appoint independent counsel on behalf of Griffin. The trial court denied the parents' motion to appoint independent counsel for Griffin and placed Griffin in the care of the Department. Each parent now appeals.

         II

         Griffin's parents first contend that the trial court erred by excluding the testimony of Dr. Marsha Hedrick at the fact-finding portion of the trial. The basis for the trial court's ruling was that Dr. Hedrick was disclosed late as a witness. Because the trial court failed to apply controlling legal authority in reaching the challenged decision, the parents' assignment of error is meritorious.

         Prior to excluding the testimony of a late-disclosed witness, "the trial court must explicitly consider whether a lesser sanction would probably suffice, whether the violation at issue was willful or deliberate, and whether the violation substantially prejudiced the opponent's ability to prepare for trial." Jones v. City of Seattle, 179 Wn.2d 322, 338, 314 P.3d 380 (2013) (citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)). An appellate court may not "consider the facts in the first instance as a substitute for the trial court findings" required by Burnet. Blair v. TA-Seattle E. No. 176, 171 Wn.2d 342, 351, 254 P.3d 797 (2011). A trial court's erroneous exclusion of a witness is subject to a harmless error analysis. Jones, 179 Wn.2d at 356.

         A

         On the ninth day of trial, Ms. Johnson and Mr. Lee disclosed their intent to call Dr. Hedrick to testify. Dr. Hedrick is a psychologist who the parents retained independently, at their own expense, to conduct a psychological evaluation and to "rule out any psychopathy that would prevent [the parents] from being able to assess what was in Griffin's best interest." The parents did not identify Dr. Hedrick as a witness until 54 days after the updated witness lists were due.

         Counsel for Ms. Johnson and Mr. Lee argued that the late disclosure was not willful. Counsel stated that the Department and the court-appointed special advocate (CASA) proposed a list of questions for Dr. Hedrick to answer and that Dr. Hedrick's evaluation was not completed until after trial began. Counsel stated that the decision to endorse Dr. Hedrick was made after reviewing her completed evaluation and after discussing her fees and related costs with the parents.

         The Department objected to Dr. Hedrick's testimony at the fact-finding portion of the trial, which was underway by the time the parents identified Dr. Hedrick as an expert witness. Although it had previously posed questions to Dr. Hedrick, the Department had not yet interviewed or deposed her. The Department further argued that testimony as to whether the parents have a mental health propensity to abuse or neglect their child was inappropriate and would go to the ultimate issue before the court. The Department contended that permitting such testimony so late into the trial would be highly prejudicial to the Department's case.

         The trial court ruled:

Let's compromise. I will allow her in the disposition case, but she's not listed. This late in the game, there's no way that I can expand the calendar as it is in a crowded witness list to add another witness for the defense. So if you do want to put her up, then we'll have her here. I'll hear her on the dispositional side.

         Counsel for Ms. Johnson and Mr. Lee then made an offer of proof for the record.

I do believe that Dr. [Marsha] Hedrick if called to testify would testify that she conducted a thorough clinical evaluation of both Perry Lee and Christa Johnson, administered appropriate psychological testing, and found no psychological problems that would prevent them from assessing Griffin's best interest, that she talked to many collaterals, including professionals at Children's Hospital including Dr. Saneto and Aaron Owens, has answered many questions that the Department has with regard to what about the parents that would prevent them from adequately ...

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