Court: Parents’ rights ignored DNR order issued without their input

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PORTLAND – The parents of a baby boy in foster care suffering from shaken baby syndrome have the right to tell a judge why they do not think the state should make end-of-life decisions for their child, the state supreme court unanimously ruled Monday.

The court, not the parents, would have the final say, however, in whether to issue a “do-not-resuscitate” order for a child in state custody, the court also said.

The Maine Supreme Judicial Court considered on an expedited basis the case of the brain-injured infant allegedly shaken by his father. Justices heard arguments in the case in May when they convened at the Penobscot County Courthouse in Bangor.

The child, identified only as Matthew W. in court documents, is in the custody of the Department of Health and Human Services. The rights of his parents, however, have not been terminated.

The state child welfare agency last year put the baby in a foster home and was granted a do-not-resuscitate order based on the opinions of doctors, who said the boy will not recover. The parents objected, saying the order effectively revoked their parental rights.

The court sided with the parents in concluding that their due process rights were violated when District Court Judge Jessie Gunther gave the department the right to make all medical decisions for the child, including seeking a DNR order. The judge did not provide the parents with sufficient notice or allow them to testify at the hearing, the state’s high court ruled.

The agency, the parents or the guardian ad litem who represents the child would have to ask for a new hearing since the DNR was suspended pending the outcome of the case. The Maine Attorney General’s Office declined Monday to say how the case would proceed, but future hearings would be secret, as are all child welfare cases.

“The right of parents to direct the care and upbringing of their children is unquestionably a fundamental right,” Justice Warren Silver wrote for the court. “The decision to withhold or withdraw life-sustaining treatment is a decision of such heightened magnitude that it cannot be said to be within the scope of ordinary medical decisions. Exercise of a DNR over the parents’ objections not only infringes upon the fundamental rights of parenthood, but could have the effect of conclusively preventing parents from raising their child or ever again exercising their fundamental rights.”

Born on Aug. 18, 2005, in Bangor, the infant was 6 weeks old when he suffered irreversible brain damage, allegedly at the hands of his father. Four days after the baby was injured, Gunther granted the DNR order when she gave custody of Matthew W. to DHHS.

The child’s father, referred to as Mathew Sr. in court documents, objected to the DNR order and, through his attorney, brought the issue to the state supreme court. The infant’s mother, Heather W., submitted documents stating that she also objects to the state’s making end-of-life decisions for her child.

Penobscot County Deputy District Attorney Michael Roberts last month confirmed the identity of the man accused of injuring Matthew W.

Roberts has said that if the child dies, the father could be charged with manslaughter.

Mathew L. Williams, 23, pleaded not guilty in November 2005 in Penobscot County Superior Court to elevated aggravated assault. A trial date has not been set.

Williams’ attorney, Carolyn Adams of Bangor, said Monday that although her client won the right to due process, the court, not the parents of a child in the custody of DHHS, now will make end-of life decisions for foster children.

“It’s a good decision in that DHHS doesn’t make end-of-life decisions alone,” she said, “but parents are not allowed to make them alone either. I argued that parents should be able to make these decisions without going to court unless their parental rights have been terminated.

“I feel sorry for parents who don’t get to make these decisions on a private basis,” Adams said.

The underlying constitutional question of whether the judiciary can make this decision at all or whether parents should be able to make such decisions as a privacy right has not been addressed, Adams said.

Janice Stuver, the attorney for DHHS, argued that the decision to make such decisions about a child in DHHS custody belonged to the agency.

“Although we agree with the [lower] court that [state law] grants the department authority to make medical decisions on behalf of a child who is in custody,” Silver wrote, “we also agree with the parents that approval of the DNR, without their consent, could have the effect of terminating their parental rights.”

Stuver, who argued the agency’s case before the state supreme court, said Monday that the decision would end confusion over how such cases should be handled by DHHS and the courts. The case is not the first time the agency has sought a DNR order, she said, but it is the first time the parents had objected to one.

In deciding whether to a issue a DNR for a child in state custody, the justices ruled that the District Court must consider:

. The child’s quality of life, including whether the child is in a persistent vegetative state.

. What life-sustaining treatment would be necessary.

. Degree of pain the life-sustaining treatment or the withholding of life-sustaining treatment would cause the child.

. Long-term prognosis for the child.

. Opinions of medical experts in regard to the foregoing considerations..

. The benefit or detriment to the child if the parents participate in making the decision.

The baby’s father is being held at the Penobscot County Jail in Bangor awaiting sentencing on an unrelated elevated aggravated assault charge. Earlier this year, he pleaded guilty to the charge in connection with the stabbing of a 16-year-old boy in May 2005 at an Essex Street apartment building.

A sentencing date has not been set, according Roberts. Earlier this year, Williams was sentenced to two years in prison for violation of conditions of release and violation of bail conditions for previous crimes. It will be up to a Superior Court judge whether he serves his sentences consecutively or concurrently.

The Associated Press contributed to this report.