Schneider v. Ark. Dep't of Human Servs.

2020 Ark. App. 455

KRISTY SCHNEIDER AND ERIK SCHNEIDER APPELLANTS v. ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILD APPELLEES

No. CV-20-111

ARKANSAS COURT OF APPEALS DIVISION III

September 30, 2020

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[NO. 63JV-19-271]

HONORABLE GARY ARNOLD, JUDGE

AFFIRMED

WAYMOND M. BROWN, Judge

Appellants Kristy and Erik Schneider appeal the December 3, 2019 adjudication order by the Saline County Circuit Court finding that their son, L.S., was dependent-neglected due to abuse (Munchausen syndrome by proxy), neglect, and parental unfitness. Appellants argue first that the DHS/Children's Hospital interpretation of "Munchausen Syndrome by Proxy, also known as factitious illness by proxy" accepted by the circuit court is at odds with both the statutory requirement and the definitions accepted within the medical profession. The application of this ad hoc definition also violates constitutional guarantees. This misapplication fatally taints the allegations against both parties. Next, they contend that the circuit court's posthearing attempt to redefine the allegations violates rules of procedure, constitutional requirements, and the court's own pretrial guarantees. Finally, they argue that the circuit court's findings of facts are clearly erroneous. We affirm.¹

Appellants adopted L.S. in Pope County in September 2014. L.S. has been diagnosed with a chromosomal abnormality, cognitive learning delay, seizure disorder, reflux, rumination, and heart rate variability with a pacemaker. These medical conditions required him to be seen and treated by several doctors at different clinics. In December 2018, he was admitted to Cincinnati Children's Hospital for testing. He was eventually placed in the pediatric intensive care unit (PICU) there due to issues with his heart rate and blood pressure. He was subsequently transferred to the PICU at Arkansas Children's Hospital (ACH) between late 2018 to early 2019. While in PICU, he received feeding through a feeding tube, known as a total parenteral nutrition (TPN). He also received a pacemaker due to ongoing issues with his heart rate and blood pressure. An epinephrine drip (EPI) was used at ACH to maintain L.S.'s heart function. Because the EPI was ineffective, ACH suggested that it be removed, and appellants were informed that no one knew what the outcome from removing the EPI would be. L.S. was discharged home on TPN on January 11, 2019, with hospice services in place. L.S. remained on TPN and was prescribed fentanyl and morphine.

Appellants concluded after meeting with ACH's palliative-care team that L.S.'s TPN would be withdrawn so that his natural death would occur. At the end of February 2019 L.S. returned to ACH for what was believed to be his final days alive. There was a send-off parade for him, which included first responders from numerous agencies since it was reported that he wanted to see as many first responders as he could before he died. L.S. was taken off the TPN for nine days and appeared to look better than he had in months. Appellants decided to put L.S. back on TPN, and he stayed in the hospital for about a month. After his dismissal, he made several public appearances at baseball games, parades, etc.

L.S. was seen at the Mayo Clinic in Rochester, Minnesota, between May 28, 2019, and June 14, 2019. While at Mayo, he was seen by doctors in complex care, neurology, cardiology, GI, pulmonology, nephrology, urology, genetics, and pain management. He was placed on a new heart medicine, Digoxin, before he left Mayo. Mayo did not believe that L.S. was a candidate for hospice care at the time of his dismissal. It was anticipated that he would slowly wean off his pain medications; however, that did not take place until sometime in August. On August 9, Dr. Travis Ayers placed an order to have a port placed in L.S.'s chest. Dr. Spencer Lewis placed L.S.'s port on August 19, 2019, pursuant to Dr. Ayers's order.²

L.S. was readmitted to ACH on September 4 due to a possible infection of his port. He was discharged on September 6. DHS received a hotline report on July 20 concerning all the Schneider children, except P.S. The allegation was that Kristy was causing the children to be sick. DHS made contact with her on July 23 and went over the allegations. DHS spoke with L.S. at school on September 3 and 9. They also talked to P.S. on September 9. DHS spoke with school personnel on September 3 and sometime after September 9. A new hotline report was received on September 11 alleging that Kristy was misrepresenting the severity of L.S.'s condition, which was causing him unnecessary medical care, and interfering with knowing how to care for him. It was also alleged that Kristy was misrepresenting L.S.'s pain and providing false information between his different medical providers. DHS removed L.S. from appellants' custody that same day.

A petition for dependency-neglect was filed on September 13. It alleged that L.S. was dependent-neglected and at substantial risk of serious harm as a result of abuse, neglect, and parental unfitness. The supporting affidavit laid out additional facts and indicated that L.S. was removed because the caretaker was unwilling or unable to meet his needs for food, clothing, shelter and/or medical or mental healthcare. It also stated L.S. was removed because the caretaker failed to protect L.S. from serious physical or threatened harm. The medical affidavit of Dr. Karen Farst was also included with the petition. She stated that the misrepresentations by Kristy were making it impossible to accurately assess L.S.'s current condition and make accurate care and treatment plans. She further stated that his medical conditions placed him at substantial risk for complicationsif he is not provided an accurate treatment and care plan. The probable-cause hearing took place on September 18, and in the order entered on October 31, the court found that probable cause existed for DHS to remove L.S. and that the issues that led to removal still existed, making it necessary for L.S. to remain in DHS's custody.

The adjudication hearing took place November 14, 15, 20, and 21. Testimony and exhibits consisted of thousands of pages. At the conclusion of the hearing, the court instructed the parties to submit proposed findings of fact and conclusions of law, which everyone did. Appellants filed objections to both DHS's and the ad litems' proposed findings and conclusions. The court filed an order on December 3 granting DHS's motion. The order stated in pertinent part:

3. The Court finds by a preponderance of the evidence that the juvenile is dependent-neglected and that the allegations in the petition are true and correct. The Court grants the request of the Department that the pleadings conform with the proof. The Court finds the juvenile was at substantial risk of serious harm from abuse, neglect, and parental unfitness, as alleged in the Department's Petition for Dependency Neglect, pursuant to Ark Code Ann. §9-27-303 (18)(A)(ii); §9-27-303 (18)(A)(v); §9-27-303(18)(A)(vi). Specifically, as to abuse by mother, subjecting a child to Munchausen syndrome by proxy, also known as factitious illness by proxy (now also known as Pediatric Condition Falsification), when reported and confirmed by medical personnel or a medical facility. With regard to neglect by mother and father, the parents' failure or refusal to provide the necessary nutrition and medical treatment for the juvenile's well-being. Specifically, as to parental unfitness by mother and father, a fit parent would not exaggerate or misrepresent symptoms to medical professionals and a fit parent would not acquiesce to another caregiver's false reporting. The dependency neglect finding is based on the evidence presented at the hearing, which included the testimony of six medical providers, five of whom were qualified as experts in their fields, and medical records. This evidence established that [L.S.] has been portrayed by Kristy Schneider as being in significant and persistent pain even though this is not corroborated by medical providers. These representations resulted in the child being subjected to high doses of narcotics (including fentanyl, Ativan and morphine), an unnecessary medicalprocedure, and being denied nutrition, all of which threatened the child's health and potentially his life. Evidence also established that within days of being placed in DHS custody, [L.S.] transformed from a wheelchair-bound child on artificial nutrition, to an ambulatory child, able to eat normal food by mouth. The Court is exercising its discretion under ARCP l5(b) to amend the pleadings to conform to the proof with regard to specific findings based on testimony and evidence presented in this hearing.

4. The Court makes the following findings of fact:

a. [L.S.], dob: 5-27-2009, was adopted by Kristy & Erik Schneider in 2014.

b. [L.S.] has been diagnosed with a chromosomal abnormality, cognitive learning delay, seizure disorder, reflux, rumination, and heart rate variability treated with a pacemaker.

c. The Court finds Dr. Aime Jones, a physician at the Mayo Clinic in Rochester, Minnesota, to be an expert in the fields of pediatrics and complex care, and finds her testimony to be very credible. The Court notes that she testified via teleconferencing. Dr. Jones testified that she first learned of [L.S.] due to a family-initiated request for consultation, and she first saw him on May 30, 2019 when [L.S.] and his mother came to the Mayo Clinic. At initial evaluation, Dr. Jones found it interesting that medical outcomes were unusual based on the history provided. Ms. Schneider described severe pain for [L.S.] that were not observed in clinic. Dr. Jones asked Ms. Schneider to bring [L.S.] to clinic when he was in severe pain so they could evaluate; she never did so. Dr. Jones reported that a Pain Specialist documented that [L.S.] pointed to his stomach and said he was in pain, but the staff found that the

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