In the Michigan Court of Appeals: in the Matter AMB, a Minor *.

• Author: Bostrom, Barry A.

HOLDING: In the accelerating rush to judgment that occurred here, a series of legal errors and missteps following a preliminary hearing compounded what was already an excruciatingly difficult and complex situation. The record strongly suggests that no one involved in the protective proceeding had ever communicated directly with baby AMB's parents and only the testifying doctor had ever seen AMB, an infant with life-threatening disabilities. Thus, a duly enacted statutory process designed to protect individual rights, to allow the intelligent exercise of these rights, and to assure balanced and considered decision making became, instead, the opposite. There was such a relentless disregard for basic principles of law that in its opinion, the Michigan Court of Appeals attempted to assure that this tragedy is never repeated in that state.

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AMB was born severely ill, with a poor prognosis for long-term survival, and required extensive medical care including ventilator support and intravenous drug therapy in the neonatal intensive care unit at the Children's Hospital of Michigan, in Detroit. Relying on an order entered by a family court referee, the hospital withdrew the life sustaining treatment that AMB was receiving. AMB died ten days after birth. William Ladd, attorney appointed to represent AMB in the protective proceeding before the family court appealed. In reviewing the evidentiary record the Court of Appeals states that the "record consists mostly of allegations, unsworn statements, and hearsay ... there is no way to determine the truth about this case with any assurance." The Court of Appeals reversed.

The Alleged Facts and Procedural History

KB gave birth to AMB five weeks prematurely on February 9, 1999. AMB had a malformed heart, a very small aorta, a partially collapsed left lung, hydrocephaly and other brain abnormalities, malformed hip joints, and a "possible" intestinal problem. AMB was transferred to the neonatal intensive care unit at Children's Hospital, given prostaglandin to help her blood circulation, and placed on a ventilator.

The First Hearing

On February 11, 1999, a Family Independent Agency (FIA) caseworker filed an original petition alleging that AMB came within the family court's jurisdiction pursuant to MCL 712A.2(b)(1) or (2) because (1) the sexual abuse of AMB's mother, KB, by KB's father, (2) KB's alleged mental limitations and inability to make decisions for AMB; and (3) KB's informal living arrangements with her uncle and aunt due to being recently removed from her home. The petition asked the family court to take temporary custody of AMB because KB didn't know how to take care of an infant and had no money

The family court referee held a preliminary hearing the same day. Neither KB nor her father attended this hearing, neither was represented by counsel, no one testified under oath. The referee found probable cause to authorize the petition. After a discussion of the parameters of medical treatment between the referee, counsel for FIA, and counsel for AMB, the referee entered an order denying visitation rights to the father, directing the FIA to place AMB in foster care, and ordering that "the child receive all necessary medical treatment ... to sustain her life."

The Second Hearing

On February 15, 1999, FIA filed an amended petition noting that (1) AMB was being kept alive on life support systems with no hope of surviving independent of life support; (2) the doctor advised that it was her opinion that it was not in the best interests of AMB to be maintained on life support; and (3) KB was not capable of comprehending the implications of the medical facts related to AMB and could not make an informed decision. FIA asked the court to decide what course of action would be in the best interest of AMB.

On February 17, 1999, the referee conducted a hearing on the amended petition. Neither KB nor her father appeared at this second hearing, and neither was represented by counsel. Counsel for AMB did not appear due to lack of notice. "Emergency house counsel" did appear for AMB without indication of whether she was prepared to do so. AMB's neonatologist appeared and testified under oath by telephone that AMB's heart lesions were incompatible with long term survival, but that she could survive for hours, days, or months after removal from the ventilator and prostaglandins. The doctor recommended that "we stop the prostaglandins and we remove her from the ventilator and provide comfort care."

The FIA caseworker testified under oath by telephone that she had no direct contact with KB, but had been in contact with KB's paternal aunt. She had filed the "medical authorization petition" because she had learned from the paternal aunt that KB was a "trainable, mentally impaired student" and unable to make complex decisions. The caseworker further testified that KB's teacher, who neither testified nor furnished any documentary evidence concerning KB, has estimated KB's IQ at forty-five to fifty points. Thus, she concluded that "[i]t would be virtually impossible for [KB] to make an informed judgment about her daughter because she's not able to comprehend the medical information given to her by the physicians who are treating her daughter."

The referee's report summarized the evidence and concluded that "[t]he court will authorize the hospital to take the child off life support equipment and medication provided that `Comfort Care' is provided." The front page of the report had a stamp of a family court judge's signature and a stamped date indicating that the recommendations and findings had been "[e]xamined and approved" on February 18, 1999. The order declared: "NOTE: THIS ORDER IS EFFECTIVE 7 DAYS AFTER THE HEARING DATE UNLESS A PETITION FOR REVIEW IS FILED IN ACCORDANCE WITH MCR 5.991."

Baby AMB's Death and the Immediate Aftermath

For reasons that are unclear from the record, Children's Hospital did not wait the seven days for the order to become effective or for a party to request judicial review. On February 19...