The right of a parent to decide the kinds of medical treatments and therapies given to their children has long been a cannon of family law. However, when those choices run counter to the child’s well-being, particularly where parents refuse life-saving medical treatment for the child, courts are increasingly stepping in to take charge.
Brooklyn ACS lawyers know that in addition to intervention by state child welfare workers, there have even be some cases in which criminal charges, such as child endangerment, child neglect or even manslaughter have been filed when children became gravely ill or died as a result of parental refusal to seek medical treatment for a child, contrary to a physician’s orders.
Many of these cases involve assertions by the parents that such treatments run counter to their religious faith, citing their First Amendment protection of religious freedom. The advocacy group Children’s Health Care is Legal Duty estimates about 300 children have died in the last 25 years as a result of deprivation of medical care by their parents on religious grounds.
However, there have also been cases where parents simply deemed the health care directives too invasive, or they didn’t fully understand the doctor’s orders or the severity of the situation. A language barrier could be a significant factor in this, and health care officials have a duty to ensure they have adequately conveyed the message to the parents before action is taken in the courts.
Most parents do act in what they believe to be the child’s best interests. But courts are increasingly less willing to give parents the benefit of the doubt when the child’s welfare is at stake.
One recent example involves the case of In re M.E., before the Maine Supreme Judicial Court. This was a case involving parents who emigrated to the U.S. from Uzbekistan several years prior to giving birth to their daughter. Their primary language is Russian, though they do understand some level of English.
The girl was born in the spring of 2012, weighing 7 pounds, three ounces, which put her in the 50th percentile for height and weight. However, over the next several months, the child’s weight on the growth charts began to consistently decline.
At four months, her weight had fallen to the 10th percentile. At six months, she had fallen to just below the 3rd percentile. When she reached nine months, a doctor with the facility spoke through Russian interpreters with the family to explain the girl was not thriving and needed to be consistently eating solid foods. He recommended breast feedings be spaced out, and the child be supplemented with formula.
The parents were asked to return with the child the following week. However, the parents did not return with the child until more than a month later. At that time, the child was still not gaining weight. The doctor, again through interpreters, explained the child was at risk for permanent brain damage and cognitive and motor development delays.
The parents, however, insisted the child was simply small for her age. The doctor countered that her lack of weight gain was due to the fact that she wasn’t getting enough to eat. He explained that if she didn’t start gaining weight, she would have to be hospitalized.
The parents returned the following week, and the mother explained she had to stop feeding the girl formula because she’d had an allergic reaction to it. The girl was hospitalized, and a feeding tube was inserted in her nose.
She remained in the hospital for a week, and gained a “substantial” amount of weight.
Staffers then prepared to release the girl home, and through interpreters, explained how to feed the girl using the tube. The staff explained how important it was that a feeding schedule be followed, and of the need to seek help if the tube was accidentally removed.
The parents returned to the hospital several times to have the tube reinserted. On one of those occasions, the doctor learned the parents had missed some feedings because either they or the child had fallen asleep.
Soon after, the parents missed a scheduled doctor’s appointment, and a visiting nurse went to the home and found the feeding tube had been taken out several days earlier and not reinserted.
At the insistence of state child welfare officials, the parents brought the girl into the doctor’s office, where the father insisted he would not force-feed his daughter. The girl was losing weight. When the department initiated proceedings to put the girl in protective custody, the father became livid and threatened suicide. He was admitted to an involuntary psychiatric unit for treatment.
A subsequent hearing found the child was in jeopardy and removed her to state custody.
The parents appealed this order, but the appellate court affirmed, finding the parents could not be trusted to keep the child safe.