In the Matter of the Dependency of: GRIFFIN LEE DOB: 11/28/2000
DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. PERRY LEE and CRISTA JOHNSON, Appellants,
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.
Griffin 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.
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.
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
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.
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.
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.
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.
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.
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'
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.
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. Kleiner later testified that the MCC team
would not recommend a feeding tube if they felt that the tube
would be pulled out frequently.
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."
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.
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."
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
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
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
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."
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.
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.
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.
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.
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
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.
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
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
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
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. 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.
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."
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.
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
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.
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.
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
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
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.
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.
months after the entry of the trial court's findings of
fact, the court held the disposition hearing. 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.
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.
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
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
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.
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.
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.
for Ms. Johnson and Mr. Lee then made an offer of proof for
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