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In re K.I.

July 29, 1999

IN RE K.I., B.I. AND D.M., APPELLANTS.


Before Terry and Reid, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge:

Appeals from the Superior Court of the District of Columbia (Hon. Rafael Diaz, Trial Judge)

Argued May 13, 1999

This poignant matter involves a "do not resuscitate" order ("the DNR") entered by the Superior Court of the District of Columbia in the case of a neglected child, K.I., who, since birth approximately two years ago, has suffered continuously from several serious medical problems. Currently the child is in a comatose state and has been described as "neurologically devastated."

The DNR, entered together with a comprehensive memorandum opinion by the trial Judge, the Honorable Rafael Diaz, provides that:

"[I]n the event of cardiac and/or pulmonary arrest, the following procedures for resuscitation shall represent the exclusive methods of intervention to be performed on [K.I.]: (1) Blow by Oxygen[;] (2) Bag-Mask Ventilation[; and] (3) Intra-muscular & Sub-cutaneous Medications."

Both B.I., K.I.'s biological mother, and D.M., K.I.'s putative father, noted appeals from the trial court's judgment. B.I. contends that (1) as a parent, she has the right to decide that K.I. should be resuscitated, and thus, the court erred by applying the best interests of the child standard, instead of the substituted judgment test (which would have allowed her to be the surrogate for the child), in deciding whether to issue the DNR; and (2) the court actually and improperly based its judgment on the preponderance of the evidence standard governing neglect proceedings rather than clear and convincing evidence. D.M., contrary to the position of B.I., supports the DNR but also complains that the trial court should have recognized his alleged right to parental privacy and parental autonomy.

We affirm because we conclude that (1) the trial court properly exercised its parens patriae authority in a case involving a prior neglect adjudication, and did not err in deciding to apply the best interests of the child rather than the substituted judgment standard; nor did it abuse its discretion in determining that issuance of the DNR was in the best interests of K.I.; (2) the trial court in fact based its judgment on the clear and convincing evidentiary standard; and (3) D.M. failed to assert any parental rights in the trial court to which he may be entitled; however, any such rights have not been terminated.

As an appendix to this opinion, we attach the extensive and thoughtful memorandum opinion and order of the trial Judge.

FACTUAL SUMMARY

The record before us shows the following facts. On June 15, 1997, K.I. was born prematurely at twenty-six weeks gestation. K.I.'s treating physician at the Hospital for Sick Children, Dr. Glenn Hornstein, who testified at the DNR hearing, stated that as a result of the premature birth, K.I. "developed BPD, or broncho pulmonary dysplasia," an abnormal condition of the lung cells which requires the child to use oxygen. In addition, K.I. suffered from "hemoglobin SC disease, which is similar [to] or it is sickle cell disease, just a mild variance"; "reactive airways disease," characterized by wheezing; and "gastro-esophageal refl[u]x."

K.I. was released from the neonatal intensive care unit of the hospital in November 1997 to the biological mother, B.I. Beginning on November 24, 1997, for a period of five weeks, B.I. and K.I. stayed in an apartment in the Northwest sector of the District of Columbia with D.M., B.I.'s putative father who claims to be K.I.'s biological father. *fn1 K.I. was required to wear a heart monitor and an apnea monitor, take medication for the lungs, and use oxygen continuously. D.M. became concerned when B.I. would take K.I. off the oxygen and heart monitor and fail to give the child the lung medication. He also was troubled when he saw B.I. consume about three "40-ounce . . . very strong beer[s]" every day. He stated, at the August 26, 1998 neglect proceeding, that B.I. became intoxicated and would "start stumbling and falling and get very silent and have a nasty attitude." B.I. would "leave the house and leave [D.M.] there with the baby and come back a day later or two days later." On December 28, 1997, B.I. left D.M.'s home. She carried K.I. with her but failed to take the oxygen. D.M. alerted Howard University that K.I. was without her oxygen.

On December 29, 1997, in response to D.M.'s alert, Edmond Lahai, then an employee of the District of Columbia Department of Human Services, Children and Family Services Administration, searched for B.I. and K.I. When he located B.I., she initially denied that K.I. was with her. Mr. Lahai found two Metropolitan Police officers, and when he returned with the police to the abode where B.I. was staying, she admitted that K.I. was with her. K.I. had no oxygen and no monitors.

A neglect petition was filed against B.I. on December 31, 1997, under D.C. Code § 16-2301 (9)(B), (C), and (F). The petition alleged that B.I. failed to: (1) provide K.I. with the requisite medical care; (2) schedule appointments for K.I, and (3) use K.I.'s monitoring devices or tube feeding procedure. Mr. Lahai testified, at the hearing on the neglect petition, that when he saw B.I. on December 29, 1997, she "slurred . . . her speech, . . . was incoherent[,] would not walk straight and . . . had a strong smell of alcohol." *fn2

On December 29, 1997, Mr. Lahai took K.I. to Howard University Hospital. Later, K.I. was transferred to the Hospital for Sick Children. When K.I. began to experience respiratory distress at the Hospital for Sick Children and her condition worsened, Dr. Hornstein transferred the child to Children's Hospital on July 21, 1998. On that same day, K.I. went into cardiac arrest and suffered hypoxia, which involves "a deprivation of oxygen to the cells and to the brain." Resuscitation efforts lasted for approximately twenty-five minutes. After the resuscitation efforts ceased, K.I.'s heart began to function again. However, the following day she experienced a seven-hour seizure which terminated only after the administration of "phenobarbital medication which . . . put K.I. into a pentobarb-like coma . . . to control the seizure."

On August 22, 1998, K.I. was returned to the Hospital for Sick Children, where she continued to experience severe medical problems. At the DNR hearing, Dr. Hornstein described the child's current condition -no "purposeful movements," persistent " myochronic jerks" [involving] "shaking of [the] arms and legs." In addition, according to Dr. Hornstein, K.I. "withdraws to pain or . . . feels discomfort when people do interventions such as . . . when [he] attempted to place [an] IV in [K.I.'s] . . . hand, [K.I.] actually was grimacing and sort of writhing and moving around as if in discomfort."

Due to K.I.'s persistent medical problems, the trial court "held a hearing to determine the propriety of aggressive resuscitation efforts in the event that [K.I.] suffered pulmonary or respiratory arrest." Several persons testified, including experts in pediatric critical care, bioethics, and ethics as well as B.I. and D.M. B.I. opposed the DNR, asserting her right as a parent to make any decision concerning the nature of resuscitation efforts. D.M. agreed with the issuance of the DNR. The testimony taken at the DNR hearing is described in the attached copy of the trial court's memorandum opinion and order. Suffice it to say here that according to the trial court's memorandum opinion, signed on October 16, 1998, Dr. Gabriel Jacob Hauser, a professor of bioethics at Georgetown University, the Chief of Pediatric Critical Care Service at the Georgetown University Hospital, and the former chair of the hospital's ethics committee, testified that: "While [K.I.] is capable of feeling pain and discomfort, [the child] responds to no other stimuli; . . . is unable to react to [the] environment, cannot contemplate events taking place [in close proximity], and is incapable of giving or receiving love." Furthermore, "the possible resuscitation efforts that would be used on [K.I.] in the event of cardiac arrest or respiratory failure, assuming no DNR order is in place. . . . [w]ould entail substantial amounts of pain and discomfort."

The trial court concluded that because of its jurisdiction over a neglected child and its role as parens patriae, it had the authority to determine whether to issue the DNR, but that:

"[T]he issuance of a DNR order must be predicated upon a finding by clear and convincing evidence both that it is in [K.I.'s] best interests to forego aggressive revival measures, and that [B.I.'s] refusal to consent to the issuance of the DNR order is unreasonably contrary to [K.I.'s] well-being."

In addition, the court determined that the best interests of the child rather than the substituted judgment standard applied "in cases involving minor respondents who have lacked, and will forever lack, the ability to express a preference regarding their course of medical treatment." Under the best interests of the child standard, the court was "satisfied by clear and convincing evidence, that upon balancing the burdens of continued life against the benefits and rewards of furthering life, [K.I.'s] best interests would be served by issuing a DNR order." In reaching its decision, the court recognized that B.I. "refused to cooperate with hospital staff regarding [K.I.'s] medical needs, had removed [K.I] from [the] apnea and oxygen monitors, and had terminated [the] tube feeding procedure." Moreover, in light of the expert testimony provided at the DNR hearing, B.I.'s "sporadic history of attending to [K.I.'s] medical needs, and [B.I.'s] statements made to [the trial] court regarding her desire to keep [K.I.] alive at all costs," the trial court found B.I.'s "refusal to consent to the entry of [the DNR to be] both unreasonable and contrary to [K.I.'s] best interests."

ANALYSIS

B.I. argues that, as a parent, she has the right to determine whether, and in what manner, K.I. should be resuscitated, and thus, the court erred by applying the best interests of the child instead of the substituted judgment standard in deciding whether to issue the DNR. She also maintains that the court based its judgment upon the preponderance of the evidence, the standard governing neglect proceedings, rather than clear and convincing evidence. K.I.'s guardian ad litem argues that (1) under the concept of parens patriae, the trial court had authority to issue the DNR; (2) the court properly used the best interests of the child standard in this neglect case without infringing on the rights of the parents; and (3) the appropriate clear and convincing standard was applied and the evidence was sufficient to support the court's judgment. D.M. asserts that the DNR should be upheld but "with reservation of parental rights of determination vested in the father, with the Court as arbiter only of parental differences of opinion and with the suggested ethics committee guidelines and mechanisms."

K.I.'s medical guardian ad litem suggests that the trial court (1) had jurisdiction to enter the DNR under D.C. Code § 16-2320 (5), see infra, and under its authority to order physical and mental examinations pursuant to § 16-2315; (2) properly adopted the clear and convincing evidentiary standard; and (3) did not err in concluding that the evidence was sufficient to support the issuance of the DNR. *fn3 Finally, the amici curiae, consisting of the Hospital for Sick Children where K.I. receives medical care, the Medical Society of the District of Columbia, the American Medical Association (through its State Medical Society Litigation Center), two professors of law from the Georgetown University Law Center, and the Metropolitan Washington Bioethics Network, also support the DNR because "the best interest of [K.I.] is served by the establishment of a reasonable plan of medical care which is premised on the very limited benefits available to [K.I.] from medical science." *fn4

We review the trial court's legal determinations de novo and accept its findings of fact unless they are "clearly erroneous." In re J.D.W., 711 A.2d 826, 830 (D.C. 1998) (citations omitted); D.C. Code § 17-305 (a) (1997) ("When the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it.").

The Jurisdictional Issue

We turn first to the issue of the trial court's jurisdiction over this matter. We conclude that the trial court properly exercised jurisdiction over this matter because of the adjudication of K.I. as a neglected child; the trial court's role as parens patriae; the disagreement of the biological mother, B.I., and the putative father, D.M., as to whether K.I. should be resuscitated in the event of cardiac arrest or respiratory distress; the serious medical condition of K.I.; and the best interests of the child concept.

The Family Division of the Superior Court ("the Division") has jurisdiction over cases pertaining to neglected children. In exercising its jurisdiction, the Division "may make such . . . Disposition as is not prohibited by law and as the Division deems to be in the best interests of the child." D.C. Code §16-2320 (a)(5). See also In re E.H., 718 A.2d 162, 169 (D.C. 1998); In re L.J.T., 608 A.2d 1213, 1215 (D.C. 1992) (citations omitted); In re J.S.R., 374 A.2d 861, 863 (D.C. 1977) (citations omitted). There is substantial evidence in the record showing that while K.I. was under the care of B.I., B.I. frequently consumed alcohol, took away K.I.'s required oxygen and monitors for apnea and the heart, and failed to provide adequate care for the child.; thus, K.I. was properly adjudicated a neglected child.

Given the lack of appropriate attention and care by B.I., the trial court assumed its role as parens patriae "to promote [K.I.'s] best interest," In re S.K., 564 A.2d 1382, 1388 (D.C. 1989) (citing In re Lem, 164 A.2d 345, 348 (D.C. 1960) (other citation omitted)), and to provide necessary relief.

In In re J.J.Z., 630 A.2d 186 (D.C. 1993), we recognized that

"[t]he court's role as parens patriae in neglect proceedings is well established in this jurisdiction . . . [and] allows [it] . . . to provide the relief necessary to protect the best interests of the child." Id. at 193 (citations omitted).

The court's exercise of its discretion as parens patriae was essential since the District government took no position on the resuscitation issue and because B.I. and D.M. had a fundamental disagreement concerning resuscitation - D.M. supported the need for the DNR, while B.I. opposed the DNR and favored the use of a variety of medical techniques, "including intubation, defibrillation (shock with electric paddles), and interosseous efforts at introducing medication into [K.I.'s] system" in an effort to reverse any cardiac arrest or respiratory distress. *fn5 B.I.'s goal is to keep K.I. "breathing." Moreover, in light of the fact that K.I. has been described as "neurologically devastated," feels and reacts to pain and discomfort but not to other stimuli, has no reaction to the surrounding environment, cannot give or receive love or express a view; and because some of the resuscitation techniques engender substantial pain and discomfort, we cannot fault the trial court's decision to issue the DNR based upon guidance from medical experts and consistent with the best interests of K.I., rather than abiding by B.I.'s wishes.

Although biological parents have a "fundamental liberty interest . . . in the care, custody, and management of their child [which] does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State[,]" Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re T.J., 666 A.2d 1, 11 (D.C. 1995), that interest is not absolute since "[t]he paramount concern is the child's welfare and all other considerations, including the rights of a parent to a child, must yield to its best interests and well-being." Davis v. Jurney, 145 A.2d 846, 849 (D.C. 1958); see also In re Baby Boy C., 630 A.2d 670, 682 (D.C. 1993) ("While the Supreme Court has held that the rights of natural parents to bring up their children are subject to the protection of the Due Process Clause of the Fourteenth Amendment (and hence the Fifth Amendment), `these rights are not absolute, and must give way before the child's best interest'" (quoting In re A.B.E., 564 A.2d 751, 755 (D.C. 1989) (citation and footnote omitted)). Although B.I. clearly has a liberty interest "in the care, custody and management of [K.I.]," Santosky, supra, 455 U.S. at 753; see also Pierce v. Society of Sisters, 268 U.S. 510 (1925), K.I.'s well-being takes precedence over B.I.'s parental rights. Davis, supra, 145 A.2d at 849.

In short, the trial court did not err in exercising jurisdiction over the DNR issue rather than yielding ...


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