In Re Colin R.

KARWACKI, Judge. Thomas R. and Donna R. appeal from orders of the Circuit Court for Charles County placing their son, Colin R., under the protective supervision of the Charles County Department of Social Services. These orders were entered in disposition of the court’s earlier adjudication that Colin R. was a child in need of assistance, (hereafter “C.I.N.A.”), as defined in Md.Code (1974, 1984 Repl.Vol.), § 3-801(e) of the Cts. & Jud.Proc. Art. They present the following questions in urging reversal of the lower court’s determinations: I. Did the court err in admitting certain evidence?

II

Was the lower court clearly erroneous in adjudicating Colin R. a C.I.N.A.?

III

Was the court appointed physician who testified at the disposition hearing improperly permitted to do so since he had not reduced his findings to a written report?

IV

Should the trial judge have recused himself on the appellants’ motion? The tragic scenario which gives rise to this appeal opens during 1982 when Colin R. was three years old. At that time he began to suffer episodes of vomiting, dehydration, high urinary output, and markedly low potassium levels. These episodes were cyclical in nature and required his repeated admission to the Southern Maryland Hospital Center where a preliminary diagnosis of his malady as Bartter’s ⁶⁸⁹ Syndrome was made.

That disease is characterized by chronic vomiting and dehydration, according to the expert testimony before the court, and is treated medicinally with Indocin with potassium supplements. When Colin failed to respond to this treatment he was referred to the Children’s Hospital National Medical Center, (hereafter “Children’s Hospital”), in Washington, D.C., in July of 1983. There he came under the care of Jose Salcedo, M.D. and Edward Ruley, M.D., specialists in pediatric nephrology. Because Colin was not responding to treatment as a Bartter’s Syndrome child, his treating physicians decided to perform a kidney biopsy to aid them in confirming or rejecting the diagnosis of Bartter’s Syndrome.

That biopsy disclosed abnormal calcium deposits which were inconsistent with impaired functioning of the kidneys to be expected of a Bartter’s victim. The physicians then suspected abdominal epilepsy as the cause of Colin’s episodic illness and performed an electroencephalogram in September of 1983. When that procedure revealed a slight abnormality in the occipital area of Colin’s brain, Dr. Salcedo prescribed an anticonvulsive drug, Dilantin. This medication failed to control Colin’s cyclical vomiting and dehydration.

On January 30, 1984, Colin was admitted to Children’s Hospital during another episode of vomiting and dehydration. Because he had not responded to the accepted medical treatment for Bartter’s Syndrome or abdominal epilepsy, his physicians decided to determine whether the previously discovered abnormal calcium deposits disclosed by the kidney biopsy could have been the result of some unprescribed drug being introduced into his system. Accordingly, urine samples were collected from Colin every twelve hours on January 30th and 31st and forwarded to a laboratory for analysis. This analysis disclosed the presence of diuretics in Colin’s system.

After receiving this report, the treating physicians, in order to double check the accuracy of the report, on February 7th and 10th again took urine samples from Colin and certain Children’s Hospital staff volunteers ⁶⁹⁰ for a further analysis. These second tests confirmed the presence of diuretics in Colin’s urine specimens. Colin’s physicians explained to the court that the diuretics found in Colin’s system, Furosemide (sold under the brand name of Lasix) and Hydrochlorothiazide, act to block sodium in the kidneys causing high urinary output. This in turn causes dehydration, low potassium levels and vomiting.

Colin’s physicians further testified that diuretics, once administered, have a very short life within the body so that a dose of diuretic administered on any given day would not be evident in a urine sample taken the next day. To further confirm their diagnosis that diuretics were being injected into Colin’s body, the treating physicians denied the appellants unsupervised access to Colin, and on February 10th discontinued all medication of Colin. Notably, Colin’s urine sample of February 11th was free of any evidence of diuretics. Moreover, the symptoms from which he suffered since age three did not and have not reappeared since that date.

Because Colin had been in the custody of the appellants since birth and since the appellant, Donna R., was constantly at his bedside during earlier hospital admissions and during his admission to Children’s Hospital on January 30, 1984, Dr. Salcedo confronted Donna R. with the results of the testing. Donna R., a licensed practical nurse employed at the Southern Maryland Hospital Center, disclaimed any knowledge of how the diuretics had been introduced into Colin’s body. Based upon these findings, Colin’s physicians agreed upon an ultimate diagnosis of the illness he had suffered— Munchausen Syndrome by Proxy. This diagnosis describes an aberration where parents, for one warped reason or another, induce an illness in their child so that it appears to the medical community that the child is actually suffering from a disease.

Having made this diagnosis, the staff at Children’s Hospital notified the Charles County Department of Social Servic ⁶⁹¹ es 1 of their conclusions and advised the Department that Colin would not be released to the appellants upon his discharge from the hospital. The Department then filed a petition with the court alleging that Colin was a C.I.N.A., and an investigator from the Charles County Sheriffs Department obtained a search warrant for the appellants’ home. On February 16th, in executing that warrant, members of the Sheriff’s Department seized hypodermic syringes and two vials of Lasix from the bedroom dresser drawer of Donna R. After an emergency shelter care hearing on February 16, the court placed Colin in the temporary care and custody of the Department. An adjudicatory hearing on the C.I.N.A. petition held on March 19th and 20th resulted in the court’s finding that Colin was a C.I.N.A. After disposition hearings on April 18th and 24th, the court permitted Colin to be returned to the custody of the appellants under the protective supervision of the Department.

On August 7th a further disposition hearing was convened after which the court, on September 10, 1984, modified the terms of the protective supervision of Colin by the Department. I. Admissibility of Evidence A. The urinalysis results After both Dr. Salcedo and Dr. Ruley had testified below to the hospital treatment of Colin during his January 30, 1984 admission to Children’s Hospital, the appellee Department offered into evidence two memoranda contained within the properly authenticated hospital record of Children’s Hospital. Dr. Ruley testified that such memoranda were made in the ordinary course of treating his patient, Colin R. The memoranda dated February 16 and March 8, 1984, on the letterhead of Children’s Hospital, were addressed to Dr. Ruley by Roger L. Boecky, Ph.D., Director of Clinical Chemistry at Children’s Hospital. The February 16 memorandum stated: ⁶⁹² Three urine specimens from this patient were submitted to National Medical Services, Inc., Willow Grove, PA, for diuretic analysis.

January 31: Furosemide was detected at a concentration of 0.20 mg/dL. Hydrochlorothiazide was detected at a concentration of 0.1 mg/dL. February 7: Furosemide was detected at a concentration of 0.20 mg/dL. No thiazide diuretics were detected.

February 10: Furosemide was detected at a concentration of 0.06 mg/dL. No thiazide diuretics were detected. In addition, a urine specimen collected from a volunteer who had ingested only furosemide was analyzed. Only furosemide was detected at a concentration of 0.2 mg/dL.

A urine specimen collected from a volunteer who had ingested only indomethacin was analyzed. No diuretics were detected. The March 8 memorandum advised: On February 16, 1984 another urine specimen was collected from Colin. The specimen was tested for the presence of diuretics.

No thiazide diuretics were detected. No furosemide was detected. The appellants' objections to these memoranda were based on the hearsay rule since the technician who actually tested the urine samples was unavailable at trial for cross-examination. We believe the lower court properly admitted these portions of the hospital record under the broad statutory exception to the hearsay rule provided in Md.Code, supra, § 10-101 of the Cts. & Jud.Proc.

Art. for hospital records. Where, as in the case sub judice, the portion of the record is pathologically germane to the patient’s treatment at the hospital, Marlow v. Cerino, 19 Md.App. 619 , 313 A.2d 505 , cert. denied, 271 Md. 739 (1974), and it contains opinions of a person shown by the hospital ⁶⁹³ record to be qualified to express them, Paige v. Manuzak, 57 Md.App. 621 , 471 A.2d 758 , cert. denied, 300 Md. 154 , 476 A.2d 722 (1984); Raithel v. State, 40 Md.App. 107 , 388 A.2d 161 (1978), aff'd, 285 Md. 478 , 404 A.2d 264 (1979), such opinion evidence is admissible under that statutory-exception. The inherent trustworthiness of entries in a hospital record relevant to the life and death decisions being made by the treating physicians of a hospital patient have long justified this exception to the normal exclusion of hearsay. Moreover, the accuracy of findings of the laboratory analysis of the urine specimens which is the subject of Dr. Boechy’s memoranda was completely corroborated by the course of treatment of Colin which followed in reliance upon those findings.

There was simply no suggestion in the trial court that the laboratory findings were erroneous. Under these circumstances it was incumbent upon the appellants to produce the writer of the memoranda or the technician who performed the urinalysis, or their deposition testimony if not compellable witnesses in Maryland, to demonstrate any weakness or error in the hospital report of the urinalysis. Raithel v. State, supra, Marlow v. Cerino, supra. Furthermore, the appellants’ reliance on Moon v. State, 300 Md. 354 , 478 A.2d 695 (1984) is misplaced.

There the Court of Appeals held that it was error to admit a report of a blood test for intoxication in a prosecution for automobile manslaughter where the report’s declarant was available at trial and the report was facially unreliable. The Court reasoned that the criminal defendant’s right to confront his accusers, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article Twenty-One of the Maryland Declaration of Rights, was denied by application of the hearsay exception for such alcohol test results provided in Md.Code, supra, § 10-306 of the Cts. & Jud.Proc. Art. See also Gregory v. State, 40 Md.App. 297 , 391 A.2d 437 (1978). The instant case is a juvenile C.I.N.A. proceeding, not a criminal prosecution, and the right of confrontation applicable in Moon is not avail ⁶⁹⁴ able to the parents of an alleged C.I.N.A. Jackson v. State, 17 Md.App. 167 , 300 A.2d 430 , cert. denied, 268 Md. 749 (1973); Woods v. Department of Social Services, 11 Md. App. 10, 18 , 272 A.2d 92 , cert. denied, 261 Md. 730 , cert. denied, 404 U.S. 965 , 92 S.Ct. 340 , 30 L.Ed.2d 285 (1971).

B. Oral Statement of Donna R. On February 16, 1984 investigators assigned to the Criminal Investigation Division of the Charles County Sheriffs Department applied for a warrant to search the home of the appellants and to seize evidence relevant to the illegal administration of diuretics to Colin R. District Court Judge Robert C. Nalley issued the warrant. In a search conducted the same day the officers discovered and seized two vials of the diuretic, Lasix, and hypodermic syringes from the bedroom dresser drawer of Donna R. Joseph C. Montminy, Jr., one of the investigators, testified that when he confronted Donna R. with this evidence, she stated that she did not know anything about the diuretic and syringes that were found and denied any knowledge as to how those items happened to be in her dresser drawer. Officer Montminy further testified that Donna R. added, “If I am crazy I am glad you found out about it.” The appellants challenge the admission of this testimony, asserting that these statements made by Donna R. should have been excluded by the trial judge. They argue that the statements were made by her under circumstances violative of her rights guaranteed under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution as well as Articles Twenty-Two and Twenty-Six of the Maryland Declaration of Rights.

The complete answer to this argument lies in the fact that no objection was lodged to this testimony when it was offered below and, therefore, it has not been preserved for our review. Md.Rule 1085.

II

The C.I.N.A. Adjudication Under our juvenile code, a C.I.N.A. is one who is not receiving ordinary and proper care and attention and whose ⁶⁹⁵ parents are unwilling or unable to give such care and attention to the child. Md.Code, supra, § 3-801(e) of the Cts. & Jud.Proc. Art. Allegations that a child meets that definition must be proven by a preponderance of the evidence. Md.Code, supra, § 3-819(d) and Md.Rule 914 e.3.

Initially, appellants challenge the standard under which allegations of C.I.N.A. are judged in this State. They argue that the Due Process Clause of the Fourteenth Amendment to the United States Constitution demands that such allegations be supported by the