In re I.S.

199 N.E.3d 1130

IN RE I.S., a Minor Child

[Appeal by A.S., Mother]

No. 111508

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Released and Journalized: November 3, 2022

Scott J. Friedman, for appellant.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.

JOURNAL ENTRY AND OPINION

EILEEN A. GALLAGHER, P.J.:

{¶ 1} Appellant-mother A.S. ("Mother") appeals the judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division (the "juvenile court"), that (1) adjudicated her minor child I.S. to be a neglected child, (2) placed I.S. under the protective supervision of the appellee, the Cuyahoga County Division of Children and Family Services ("CCDCFS" or "the agency") and (3) ordered Mother to obtain medical treatment for I.S. that is contrary to Mother's religious beliefs.

{¶ 2} Mother follows the teachings of Elijah Muhammad and says her religious beliefs forbid surgery or "put[ting] any foreign objects in your body." Based on the recommendation of I.S.’s doctors, the juvenile court ordered Mother to schedule I.S. for a surgical procedure to correct a patent ductus arteriosus (a congenital heart condition) ("PDA"). Mother contends that the adjudication of neglect and the juvenile court's dispositional order violate her rights to freely practice her religion and direct the upbringing of her own child. She argues that the juvenile court overstepped because I.S.’s condition is not immediately life threatening. She contends that no intervention is presently necessary and that she should be allowed to continue monitoring the condition.

{¶ 3} For the reasons that follow, we affirm the juvenile court's adjudication of neglect and we affirm in part and vacate in part its dispositional order.

I. Factual Background and Procedural History

{¶ 4} I.S. was born on December 16, 2019.

{¶ 5} On January 11, 2022, CCDCFS filed a complaint for neglect and temporary custody along with a motion seeking predispositional temporary custody and authority to consent to any medical treatment necessary to address I.S.’s medical conditions. The complaint alleged that (1) I.S. has life-threatening medical needs that Mother has failed to appropriately address; (2) Mother has not been consistent with necessary medical care for I.S., resulting in further harm to I.S. and (3) Mother has been offered numerous options by medical staff to assist her in addressing I.S.’s medical needs, but Mother repeatedly rejected these medical recommendations.

{¶ 6} The complaint further alleged that the agency made reasonable efforts to prevent the removal of I.S. from the home and removal from the home was in I.S.’s best interest.¹

{¶ 7} The agency supported its motion for predispositional temporary custody with an affidavit from CCDCFS social worker Chasidy Balfour. In the affidavit, Balfour attested to the allegations in the complaint. She further described that I.S.’s medical issues could result in death if left untreated and that Mother had been referred to numerous specialists for testing but had not followed through on those referrals. Balfour averred that that the agency's reasonable efforts to prevent removal included a "referral for community-based services."

{¶ 8} The magistrate held a telephonic arraignment and emergency-custody hearing on January 28, 2022. At this hearing, counsel for the agency and Mother reported that they had discussed the matter and jointly recommended holding the motion for temporary custody in abeyance in favor of "some specific orders * * * short of removal." Agency counsel indicated that "we don't want to unduly traumatize the child and cause a removal in a placement if it's really not necessary." As it relates to the agency's concern about I.S.’s PDA, counsel reported that Mother had sought a second opinion on whether surgery was needed. I.S.’s guardian ad litem noted that it "does not appear that the need for heart surgery * * * is needed imminently." Agency counsel indicated that the agency may pursue temporary custody "down the road [if we] feel like the surgery or the repair of the heart is needed and not forthcoming * * *." As it relates to the non-PDA medical concerns the agency had, Mother's counsel indicated that Mother had made appointments for I.S. to undergo two tests the agency sought. The agency requested several specific orders requiring Mother to complete these tests, as well as one further test related to the non-PDA medical concerns, and to sign any necessary releases to allow the agency to help facilitate the appointments.

{¶ 9} The magistrate journalized an entry setting forth the agency's requested orders on the same day as the hearing.

{¶ 10} On March 15, 2022, the magistrate held a pretrial conference. Counsel did not provide any update regarding the concern about I.S.’s PDA. As to the non-PDA medical concerns, agency counsel reported that I.S. had undergone two of the ordered tests but had not completed the necessary follow-up to one of the tests. Counsel further reported that Mother had taken I.S. for the final ordered test but the test could not be completed (through no fault of Mother). Agency counsel requested that the juvenile court continue to hold in abeyance its motion for temporary custody and authority to consent to medical procedures.

{¶ 11} On April 5, 2022, the agency amended the complaint to change its dispositional request to protective supervision (as opposed to its original request for temporary custody).

A. The Adjudicatory Hearing on the Complaint

{¶ 12} The adjudicatory hearing proceeded on April 6, 2022. The agency presented two witnesses, Dr. Eva Kubiczek-Love and agency social service worker Chasidy Balfour.

1. Dr. Eva Kubiczek-Love, I.S.’s Pediatrician

{¶ 13} Dr. Eva Kubiczek-Love testified that she is a pediatric physician with the Cleveland Clinic and sees pediatric patients in an outpatient medical setting. She said she has worked in pediatric medicine for 20 years, having worked ten years in a pediatric emergency room and ten years at the Cleveland Clinic after her medical residency.

{¶ 14} Dr. Kubiczek-Love testified that she was assigned as I.S.’s primary care physician shortly after his birth. She said that I.S. has Down syndrome, Trisomy 21 and a congenital heart defect called a patent ductus arteriosus. In describing what a PDA is, the doctor said that a fetus normally has a channel between two vessels coming off the heart to bypass the lungs in utero. She said this channel typically closes when a baby takes its first breath after birth, but I.S.’s channel remained open.

{¶ 15} Dr. Kubiczek-Love testified that medical staff discovered I.S.’s PDA shortly after his birth and before he left the hospital. She said that I.S. underwent an echocardiogram at some point and the test showed that I.S. had "a moderate sized PDA with what's called left to right shunt." She related that this means there was blood flowing from left to right. She said that the cardiology team's initial recommendation was for I.S. to undergo a repeat ultrasound but Mother did not allow I.S. to undergo a second test. Dr. Love said she was concerned that Mother seemed "very reluctant to want to pursue that any further as far as looking into how it was progressing and what options were available for closure if it needed to be closed."

{¶ 16} The doctor testified that the PDA was one of several medical concerns she had with respect to I.S. Specifically, Dr. Kubiczek-Love recommended (1) repeat lab work to check for thyroid issues because children with Down syndrome are at a higher risk for those problems and (2) that I.S. follow up with an otolaryngologist because he was snoring a lot and had significant upper-airway noise, which is also commonly seen in children with Trisomy 21.

{¶ 17} Dr. Kubiczek-Love testified that over time she also became concerned that I.S. was not thriving and had some ongoing weight loss. She said she found it difficult to impress upon Mother her concern that "the multifactorial issues" of his ear, nose, and throat issues, his cardiac issues and his thyroid issues had not been addressed. She said all of these issues could be contributing to I.S.’s failure to thrive.

{¶ 18} The doctor said her recommendations to Mother included following up with an otolaryngologist to monitor the upper-airway issues, consulting with a cardiologist on the PDA, attending appointments with a nutritionist and obtaining a renal–bladder ultrasound.

{¶ 19} Dr. Kubiczek-Love identified a letter that she wrote — dated September 29, 2021 — documenting her medical concerns. She wrote that I.S. is 21 months old and has an established diagnosis of Trisomy 21 with "several active issues," including nutritional issues, a patent ductus arteriosus, obstructive sleep apnea, a history of hydronephrosis and hypothyroidism. She wrote that I.S. continues to have "profound weight loss/decline" which is likely secondary to these several medical problems.

{¶ 20} Of I.S.’s alleged nutritional issues, Dr. Kubiczek-Love wrote that she has "become increasingly more concerned for [I.S.’s] weight." She wrote that I.S.’s growth chart — which has been adjusted for his Trisomy 21 — "clearly demonstrates significant failure to thrive/FTT which means that [I.S.] does not have the ability to combat the myriad of medical issues that are currently being left untreated and severe FTT can result in death." She wrote that Mother had not followed up on a referral she made for Mother with a nutritionist.

{¶ 21} Dr. Kubiczek-Love also wrote that I.S. has a "moderate sized PDA" and that the cardiology team had discussed with Mother that leaving this condition unrepaired "may result in both ongoing inability to thrive (again as evidenced by his growth chart) but may also result in death."

{¶ 22} Dr. Kubiczek-Love wrote that I.S. has "likely significant obstructive sleep apnea /OSA which translates to him likely having low oxygen levels while sleeping and may result in cardiac...