Hunt and Land v. DFS & Office of ( 2015 )

IN TI-HE SUPREIVIE COURT OF THE STATE OF DELAWARE
DAVID HUNT and CAREY LAND,1 §
§ No. 439/449, 2015
Respondents Below, §
Appellants, § Court Below—Family Court
§ of the State of Delaware,
V. § in and for Sussex County
§
DIVISION OF FAMILY SERVICES § File No.: CSlS-01879
and OFFICE OF THE CHILD § Pet. No.: 15-04833
ADVOCATE, §
§
Petitioners Below, §
Appellees. §
Submitted: September 15, 2015
Decided: September 16, 2015
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN and
SEITZ, Justices, constituting the Court en Banc.
Upon appeal from the F amin Court. AFFIRMED.
Alaina M. Chamberlain, Esquire, Law Office of Edward C. Gill, P.A.,
Georgetown, Delaware, Attorneys for Appellant, David Hunt.
Mark H. Hudson, Esquire, Haller & Hudson, Georgetown, Delaware, Attorneys for
Appellant, Carey Land.
Janice R. Tigani, Esquire (argued), Patricia Dailey Lewis, Esquire and Carole E. L.
Davis, Esquire, Department of Justice, Georgetown, Delaware, Attorneys for
Appellee, Division of Family Services.
1 The Court assigned pseudonyms to the parties and the children pursuant to Supreme Court Rule
7(d).
Kim DeBonte, Esquire, Office of the Child Advocate, Georgetown, Delaware,
Attorney Guardian ad Litem for Adam Hunt.
HOLLAND, Justice:
condition. Dr. Stephen Falchek, Chief of Pediatric Neurology at A.I. duPont,
conducted an independent assessment of Adam’s diagnoses and prognoses.
The testifying doctors all described Adam’s condition as very poor. Adam
has been diagnosed with the following conditions: a closed fracture of the left
parietal bone; bilateral, chronic subdural hematoma; E. Coli infection; spinal
meningitis; clavicle fracture; compression fracture of the L4 vertebra; multiple
closed fractures of the ribs; seizure disorder; closed subtrochanteric fiacture of the
left femur; malnutrition; closed fracture of distal end of right radius; closed
fracture of distal end of left forearm; posttraumatic respiratory failure; umbilical
hernia; retinal hemorrhage; retinoschisis in the left eye; diabetes insipidus;
ventilator associated bacterial pneumonia; and bilateral cystic encephalomalacia.
Dr. Viteri testified that Adam’s brain is unable to properly regulate his
hormone levels. Consequently, Adam is unable to fight infections or control his
breathing, blood pressure, sodium levels, or bodily movements. Dr. Viteri
explained that Adam will always require mechanical assistance to eat and breathe;
never walk or talk; not be able to interact or respond to those around him; require
twenty-four—hour care for all of his needs by a trained caretaker; likely be deaf and
blind; and need to wear diapers for the rest of his life.
Dr. Viteri stated that Adam is currently attached to a ventilator via an
endotracheal tube. This tube runs through Adam’s mouth, down his throat,
11
through his vocal chords, and into his lungs. Adam has also been fitted with a
nasogastric tube for the purpose of providing nutrition, which runs through his
nose, down the back of his throat, down the esophagus, and into the stomach. Dr.
Viteri testified that there are risks associated with the continued placement of these
life support systems, including infection, pneumonia, damage to the vocal chords,
and erosion of any tissue coming into contact with the tubes.
Dr. Viteri stated that she has attempted to wean Adam off of the ventilator
but was unsuccessful. In order to provide Adam with long-term care, the
endotracheal tube and nasogastric tube must be surgically replaced with other tubes
which are inserted directly into Adam’s neck and stomach. Due to Adam’s
inability to regulate his fluids and sodium levels, the need to place him on
intravenous fluids prior to the procedures may further disrupt his sodium balance.
Additionally, there is a risk of complications associated with the anesthesia.
Finally, the procedures themselves carry a risk of bleeding, infection, and
disruption to parts of the body surrounding the surgical sites.
Dr. Viteri testified that there is no set time at which the switch to more
permanent life support systems should take place, but that Adam’s current
treatment is nearing the end of its sustainability. The current life support systems
may not remain in place indefinitely due to the erosion of tissue surrounding the
tubes, as well as the potential for sores, chronic sinusitis, and infection.
12
Additionally, the continued removal and insertion of the tubes carries a risk of
puncturing or perforating the membranes in the nose and throat. In Dr. Viteri’s
opinion, the erosion process occurs at an “intermediate rate” of weeks to months.
Viteri stated that she does not believe there is any chance for
improvement of Adam’s condition. Dr. Viteri testified that although the
procedures to replace Adam’s breathing and feeding tubes would likely keep him
alive, they would also cause him pain. Accordingly, Dr. Viteri asserted that the
best course of treatment for Adam is to remove life support and apply “comfort
care.” Dr. Viteri stated that Adam would likely die within a few days after the
removal of life support.
Dr. DeJong testified that he first examined Adam on May 26, 2015, three
days after Adam’s transfer to A.I. duPont from Beebe fill-ospital. The purpose of
Dr. DeJong’s involvement in Adam’s case was to assess whether Adam’s multiple
unexplained injuries were the product of abuse. At the time of the examination,
Adam was a patient in the pediatric intensive care unit. He was unconscious
during the examination. Dr. DeJong testified that Adam’s current treatment,
including the use of a ventilator and oral gastric tube, is limited to keeping Adam
alive and will not improve his condition. Due to his brain injuries, Adam will
never be able to eat or breathe on his own. Nor will Adam ever be able to see,
hear, or walk again. For these reasons, Dr. DeJong testified that it is in Adam’s
l3
best interests to withdraw life support, provide “comfort care,” and allow Adam to
die peacefully.
Dr. Piatt testified that Adam’s cerebrum is nearly totally destroyed and “full
of holes.” Dr. Piatt stated that there is no neurosurgical treatment available to help
Adam’s brain condition. Dr. Piatt does not believe Adam will ever develop like
other infants or be capable of any “purposeful” activity including walking, talking,
communicating, and feeding himself. Dr. Piatt believes that Adam is capable of
reacting to pain, but does not experience it in the same manner as someone who is
conscious. Dr. Piatt declined to provide his opinion concerning the course of
action that is in Adam’s best interests on the grounds that it is a philosophical
question beyond his realm of expertise.
Lastly, Dr. Falchek testified that he was asked by the AGAL to perform an
independent evaluation of Adam. Although Dr. Falchek is the chief of the division
providing Adam with care, Dr. Falchek had almost no exposure to Adam’s case
prior to the request.6 Accordingly, Dr. Falchek testified that he is capable of
providing an independent assessment of Adam. Dr. Falchek’s evaluation was
based on a bedside examination as well as a review of Adam’s medical chart and
various test results including an EEG, two MRIs, brain imaging, and a CAT scan.
6 Dr. Falchek testified that his only exposure to Adam’s case prior to receiving the request for an
independent evaluation was the verification of a report prepared by a nurse practitioner during
normal rounds.
14
Based upon his evaluation, Dr. Falchek testified that Adam has sustained
“devastating” brain injuries. Specifically, Adam’s brain stem has experienced a
lack of blood flow, and multiple other parts of Adam’s brain, particularly the area
responsible for sight, have literally “liquefied.” Dr. Falchek testified that Adam
had received two MRIs at the time of his assessment, and that the second MRI
showed an advancement of damage to Adam’s brain stem. Dr. Falchek stated that
Adam will not recover from his injuries or function in an age-appropriate manner.
Dr. Falchek further stated that Adam will never be able to walk, talk, communicate
in a meaningfifl way, form relationships, or feed himself. Thus, Adam will be
dependent on others for care for the rest of his life. Additionally, Adam will
continue to experience seizures. Adam may experience pain from seizures if the
area of his brain responsible for processing pain, the thalamus, has not been
completely destroyed. Dr. Falchek concluded that there is no benefit to continuing
Adam’s current medical treatment. Dr. Falchek testified that Adam would likely
die within a few days after the removal of life support.
On July 6, 2015, the Family Court originally declined to grant the Motion to
De-Escalate Medical Treatment for two reasons. First, the Family Court was
concerned about the absence of a finding that Adam was dependent, neglected, or
abused in the care of his parents. Second, the Family Court determined that a
finding of immediate and irreparable harm was also necessary due to the
15
“emergency” nature of the Motion to De—Escalate Medical Treatment, and that the
evidence was insufficient to support such a finding. The Family Court stated that
the Motion to De-Escalate Medical Treatment would remain pending and
addressed at a later date.
After the July 6, 2015 Order was issued, the Family Court made a
determination that Adam was abused and neglected in the care of Mother and
Father. Consequently, the Family Court decided to address the issue of whether it
will intervene in Adam’s medical care.7 Furthermore, since the Motion to De-
Escalate Medical Treatment was no longer being considered within the context of
an emergency hearing, a finding of immediate and irreparable harm would not be
necessary.
Independent Medical Examination
At the conclusion of the June 30, 2015 hearing, counsel for Mother and
Father raised the issue of conducting an independent medical examination of
Adam. In the July 6, 2015 Order, the Family Court found the request to be in
Adam’s best interests. More than a month after that decision, however, an
independent medical examination had not taken place. Counsel for Mother and
7 See 10 Del. C. § 1009(b)(11) (2015) (following an adjudication by the Family Court in which it
declares a child to be dependent or neglected, the Family Court may order such other treatment,
rehabilitation or care as in the opinion of DFS would best serve the needs of the child and
society); 10 Del. C. § 921(4). See also In re T ruselo, 846 A.2d 256, 269 (Del. Fam. Ct. 2000);
Newmark v. Williams 588 A.2d 1108 (Del. 1991).
16
Father, with the assistance of the AGAL, contacted four hospitals and several
private physicians in an attempt to obtain an independent assessment, but were
unsuccessfiil.
The parties agreed that an independent examination is appropriate. The
AGAL has suggested that it is good practice in a matter such as this one. The
AGAL further argues, though, that Dr. Falchek already performed an independent
examination on Adam. Mother and Father contend that an independent
examination is necessary due to the finality of the Family Court’s decision. They
assert that Dr. Falchek is not truly independent by virtue of his employment with
Al. duPont.
In its August 13, 2015 decision, the Family Court found that an examination
of Adam’s condition by a physician completely unaffiliated with Al. duPont is not
required prior to resolving the Motion to De-Escalate Medical Treatment.
Although the Family Court initially expressed reservations concerning Dr.
Falchek’s independence, those reservations no longer existed when the Family
Court issued its August 13, 2015 decision. The Family Court found there was no
indication that Dir. Falchek’s employment with Al. duPont affected his ability to
perform an independent examination of Adam’s condition. Dr. Falchek had little
knowledge of Adam or his condition prior to his examination. Dr. Falchek swore
to his independence under penalty of perjury. There were no allegations or
17
evidence indicating that the testifying physicians have engaged in any sort of
collusion or impropriety. All four of the physicians who testified in this case
provided an almost identical assessment of Adam’s condition and prognosis. The
certainty in each of those medical opinions led the Family Court to believe that a
fifth examination would not result in a different opinion.
Additionally, the Family Court found there must be some limit on the
amount of time for another examination to occur. Five weeks had passed since the
Family Court authorized Mother and Father to seek an independent medical
expert’s opinion. Despite their efforts, one had not been obtained. Nor had there
been a suggestion that any party was close to arranging for a different physician to
examine Adam. The evidence showed that Adam’s condition is degenerative, and
that his current life support systems are nearing the end of their sustainability.
There was nothing before the Family Court to indicate that there has been a
reversal in Adam’s condition. The Family Court decided that it must weigh the
harm associated with providing more time, namely the deterioration of Adam’s
condition and need for surgery to replace his life support systems, against the
benefits of obtaining another opinion. The Family Court found that the balance
favored moving forward without a fifth evaluation and issued its August 13, 2015
decision.
18
Independent Medical Examination Performed
On September 4, 2015, this Court remanded the case and directed the Family
Court to appoint an independent medical expert to examine Adam and provide an
opinion concerning Adam’s diagnosis, prognosis, and recommended course of
treatment. Upon receipt of the independent medical expert’s opinion, the Family
Court was further directed to issue its own opinion stating what effect, if any, the
expert’s opinion has on the Family Court’s August 13, 2015 decision to de-escalate
Adam’s medical treatment. The Family Court appointed Dr. Richard Fisher of
Christiana Care Health Systems to conduct the independent medical examination
of Adam.
On September 9, 2015, Dr. Fisher submitted his opinion to the Family Court.
Dr. Fisher concurs with the diagnosis, prognosis, and recommended treatment of
Adam made by the four physicians who already testified in this case. Dr. Fisher’s
independent medical opinion states:
Adam has sustained profound non-accidental brain
trauma complicated by subsequent bacterial meningitis.
His testing has shown bilateral cortical, white matter,
cerebellar and brainstem damage that is irreversible.
From a clinical standpoint he is now and will be in the
future unable to protect his airway from aspiration
pneumonia and if medically managed will require
tracheostomy and possibly continued artificial
ventilation. He is also unable to be fed orally due to
neurologic impairment and would require gastrostomy
19
placement. These neurologic deficits are in my opinion
permanent.
Overall, there is no chance that he will recover
neurologic function that would allow for developmental
improvement. He is currently in a “coma vigil” state in
which his eyes are open but not indicative of
consciousness. He has shown no neurologic
improvement in over 2 months of hospitalization at Al.
DuPont. In my opinion continuation of medical support
will only prolong his suffering without any prospect of
meaningful recovery.
Dr. Fisher concluded that Adam will not recover from his injuries, and that “the
continuation of [Adam’s] medical support will only prolong his suffering without
any prospect of meaningful recovery.” Because Dr. Fisher’s opinion conforms to
the positions of the physicians who have already offered opinions in this matter,
the Family Court found that Dr. Fisher’s opinion supports the Family Court’s
August 13, 2015 decision to de-escalate Adam’s medical treatment.
During oral argument on September 15, 2015, this Court was advised that
Adam’s breathing tube had been dislodged the night before and he was breathing
on his own for less than 24 hours. We directed the AGAL to provide the Court
with expedited updated medical opinions from Dr. Fisher and Adam’s physicians
at Al. duPont. It was the unanimous opinion of Adam’s treating physicians at Al
duPont and Dr. Fisher that the overnight change in Adam’s condition did not
change the prior medical opinions.
20
This expedited proceeding is the biological Mother’s and Father’s
interlocutory appeal from the August 13, 2015 Family Court decision granting the
attorney guardian ad litem ’s Motion Instructing Medical Providers of Adam Hunt
to De-Escalate Medical Intervention and Place a Do Not Re-Intubate Order and a
Do Not Resuscitate Order, Along with an Order for Comfort Measures on Adam’s
Medical Chart (“Motion to De-Escalate Medical Treatmen ”).
Four issues are presented in this appeal. First, does the Delaware Family
Court have jurisdiction to de-escalate medical care, decide whether or not life
support measures can be ceased, and place a “Do Not Resuscitate” (“ NR”) and
“Do Not Re-Intubate” order on a minor child’s chart? Second, does the Family
Court have authority to de-escalate medical care, decide whether or not life support
measures can be ceased, and place a DNR order and “Do Not Re-Intubate” order
on a minor child’s chart, where that minor child’s parents’ rights have not been
terminated, and where the parents have objected to such an order? Third, did the
Family Court violate the parents’ procedural due process rights by not providing
the parents with adequate notice and process prior to entering its order? Fourth,
did the Family Court Violate the parents’ due process rights, or otherwise err, in
rendering its decision without receiving evidence from an independent expert in
the medical field?
Family Court’s Jurisdiction
The Family Court only has jurisdiction that is specifically vested in it by
statute.8 The first issue on appeal is whether the Family Court has jurisdiction to
order the de-escalation of medical treatment and the removal of life support for
Adam. 10 Del. C. § 921(4) states that the Family Court will have exclusive civil
jurisdiction concerning “[j]udicial consent to employment, medical care, or
enlistment in the armed services of a child when such consent is required by law.”
Although the definition of “medical care,” when dealing with the authority
to consent on behalf of a minor does not expressly include refilsal of care, in other
sections of the Delaware Code the General Assembly has included refilsal of
treatment and entry of DNR orders when defining health care decisions for adults.
For example, 16 Del. C. § 2501(g) defines “health care” as “any care, treatment,
service or procedure to maintain, diagnose or otherwise affect an individual’s
physical or mental condition.” The General Assembly defined “health—care
decision” as a decision made by an individual, agent, surrogate or guardian that
includes “[a]cceptance or refusal of diagnostic tests, surgical procedures, programs
of medication and orders not to resuscitate; [and] [d]irections to provide, withhold
or withdraw artificial nutrition and hydration and all other forms of healthcare.”9
8 Del. Const. art. IV, § 7A.
9 16 Del. C. § 2501(h)(2)-(3) (emphasis added).
21
Because the General Assembly crafted Chapter 25 of Title 16 to deal
exclusively with adults,10 its utility in this case is limited. Nevertheless, Mother
argues that because 16 Del. C. § 2501 specifically addresses a method by which
the health care decision of now infirm adults can assure their end of life wishes are
honored, and because the General Assembly did not specifically address the
question of such orders for dependent children, then the Family Court lacks the
jurisdiction to make this decision for Adam.
The issue presented in this proceeding is whether the Family Court’s
undefined statutory authorization to consent to medical care includes the authority
to withhold medical care. The Family Court answered that question affirmatively
in a very similar case.11
In In re T ruselo, an attorney guardian ad litem filed a
motion on behalf of a child who was in the custody of DFS, seeking an order
directing medical providers to de-escalate medical intervention and place a DNR
order, with comfort measures, on the child’s medical chart.12 In that matter of first
impression, the Family Court analyzed its jurisdiction over cases involving the
removal of a child’s life support, the Family Court’s authority to terminate life
support, and the standards to be applied in such cases.13
1° See, e.g., 16 Del. C. § 2502.
11 In re Truselo, 846 A.2d at 272.
12 Id. at 259.
13 Id. at 264.
22
In its analysis, the T ruselo Court relied upon several different sources of
legal authority in concluding that the Family Court has jurisdiction over cases
involving the decision to remove a child’s life support and de-escalate medical
treatment. That is, the Family Court gave several reasons why it believed the
statutory reference to consent to medical care included consent of all medical
procedures, including those that involved de-escalation of care, if that was in the
best interests of the child. First, the T ruselo Court cited to the Delaware statute
which permits the Family Court to commit a child to the custody of DFS upon a
finding of abuse or neglect.14 The T ruselo Court noted that such authority includes
judicial consent to medical care and treatment of a child.15 The T ruselo Court then
discussed this Court’s opinion in the case of Newmark v. Williams. Although
Newmark did not directly address the issue of the Family Court’s jurisdiction over
the removal of life support, the T ruselo Court reasoned that this Court implicitly
acknowledged such jurisdiction.16 Finally, the T ruselo Court reviewed case law
from other jurisdictions and concluded that “the empowerment to determine
medical care of a child includes the [Family] Court's power to enter [o]rders
terminating those procedures.”17 “To the extent that Delaware authority is not
directly on point, [the T ruselo Court noted that] Juvenile, Probate, and Family
14 Id. at 265 (citing 10 Del. C. §§ 921(1), 902).
15 Id. (citing 10 Del. C. § 921(4), 13 Del. C. § 707(b) and Newmark, 588 A.2d 1108 (Del. 1991)).
16 Id. at 266 n.10.
‘7 Id. at 266.
23
Courts in other jurisdictions have considered these questions and have held that the
empowerment to determine medical care of a child includes the [c]ourt’s power to
enter [o]rders terminating those procedures.”18 Those courts concluded “[t]hat the
mandate of juvenile courts to act in furtherance of the child’s welfare provides the
authority to make medical care decisions, including the entry of a DNR order,
where the child is in the custody of the state.”19
“The Massachusetts Supreme Court’s discussion of the jurisdictional issue in
the Custody of a Minor case is particularly relevant to the issue of the Delaware
Family Court’s jurisdiction. The Juvenile Court that entered [a DNR] Order in
Massachusetts was, like Delaware’s Family Court, a statutory court, and not . . . [a]
court of general equity jurisdiction.”20 “Similarly, the Illinois Appellate Court in
In re C.A. held that the Illinois Juvenile Court Act provided statutory jurisdiction to
the Juvenile Court Judges to enter orders affecting a ward’s medical treatment,
including the entry of a DNR Order. The [Illinois] Court reasoned, as did the
Massachusetts Court, that the juvenile court was charged with all matters presented
to it regarding the welfare of the child, and that the Juvenile Court Act required
court review of matters affecting the ward on a regular basis.”21
18 Id
19 Id
2° Id. (discussing Custody ofa Minor, 434 N.E.2d 601, 605 (Mass. 1982)).
2‘ Id. at 267 (discussing In re CA, 603 N.E.2d 1171, 1178 (111. App. Ct. 1992)).
24
Based upon the foregoing statutory and decisional authority, the T ruselo
Court held that the Delaware Family Court Act grants jurisdiction to the Family
Court to consent to medical care decisions and that such decisions may encompass
the entry of a DNR order on the child’s chart, the de—escalation of medical
treatment, and the withdrawal or withholding of life support measures.
Here, as in Truselo, the Family Court satisfied itself of jurisdiction by giving
the most reasonable effect to less than ideally clear legislative authority. As we
have said before, “[i]t is a well established rule of statutory interpretation that the
law favors rational and sensible construction.”22
When interpreting statutory
provisions, “‘unreasonableness of the result produced by one among alternative
possible interpretations of a statute is reason for rejecting the interpretation in favor
of another which would produce a reasonable result.”23 To read the consortium of
Delaware statutes as failing to contemplate judicial authority to issue DNR and do
not reintubate orders on a child’s medical chart, or otherwise consent to the
withdrawal or withholding of medical treatment for minors, would lead to an
irrational result that is incongruent with the statute’s clear focus on ensuring that
the best interests of children are protected at all times. That is to say, despite the
failure of Delaware’s statutory scheme to unambiguously address the foregoing
22 Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem’l Hosp, Inc., 36 A.3d 336, 343
(Del. 2012).
23 Id. (quoting Coastal Barge Corp. v. Coastal Zone Indus. Control Bal, 492 A.2d 1242, 1247
(Del. 1985)).
25
issues with respect to children, it seems plain that the General Assembly did not
intend to leave a void in which no judicial body possessed the authority to make all
the critical decisions about medical care for a child when required to protect that
child’s best interests. Tha “‘would lead to an unreasonable or absurd result not
contemplated by the legislature.”’24
“The Delaware Family Court, like the juvenile courts in Illinois and
Massachusetts, is a statutory court charged with protecting the safety and well-
being of a dependent or neglected child. This mandate necessarily includes
medical care decisions on behalf of a child in State custody, including those
decisions that result in declining or foregoing medical treatment, when it is
appropriate to do so.”25 Consequently, the decisions reached in this case and in
T ruselo — that the Family Court has subject matter jurisdiction — are reasonable
interpretations of its statutory authority. It is also significant that in the fifteen
years since T ruselo was decided, the General Assembly has taken no action to
modify the T ruselo Court’s interpretation of the Family Court’s authority to
withhold medical care. Accordingly, we hold that the Family Court’s authority to
de—escalate medical treatment and to withdraw life support is a logical corollary to
its statutory authority to consent to medical care.
24 LeVan v. Indep. Mall, Inc., 940 A.2d 929, 933 (Del. 2007) (quoting Newtowne Vill. Serv.
Corp. v. Newtowne Rd. Dev. C0., 772 A.2d 172, 175 (Del. 2001)). See also Doroshow, 36 A.3d
at 342—43.
25 In re Truselo, 846 A.2d at 267.
26
Applicable Legal Standard
Having determined that the Family Court has jurisdiction over medical care
decisions for minors in State custody, as well as the authority to decide Whether
life support measures can be ceased and a DNR order placed on a child’s medical
chart, the next issue this Court must decide is the objective standard to be applied
by the Family Court in making that determination. In the Newmark case, this
Court referred to the child’s “best interests.”26 The definition of “best interests” in
13 Del. C. § 722 relates primarily to the factors to be considered in reaching
custody decisions.27 There are no specific Delaware statutes or controlling judicial
precedents that address best interests as they apply to the removal of life support
systems from a minor.
While the factors set forth in Section 722 provide only limited guidance to
the Family Court, several courts in other jurisdictions have relied on a definition of
“best interests” that is more precisely focused on the type of medical decision that
is at issue in this case. In T ruselo, the Family Court concluded that the In re
Guardianship of Grant28 case provided a non-exclusive list of factors that should
be considered in making a determination that life support measures should cease
and medical care de-escalate:
26 Newmark, 588 A.2d at 1116—17.
27 13 Del. C. § 722(a)(1)—(8).
2“ 747 P.2d 445 (Wash. 1997) (en banc).
27
[E]vidence about the patient’s present level of physical,
sensory, emotional, and cognitive functioning; the degree
of physical pain resulting from the medical condition,
treatment, and termination of the treatment, respectively;
the degree of humiliation, dependence, and loss of
dignity probably resulting from the condition and
treatment; the life expectancy and prognosis for recovery
with and without treatment; the various treatment
options; and the risks, side effects, and benefits of each
of those options.29
We agree that the foregoing list of non-exclusive factors provides an appropriate
standard for determining whether it is in a child’s best interests to discontinue life
support measures. These factors require the Family Court to address the specific
issues that are most relevant and compelling in such difficult situations.
We must now determine the evidentiary standard to be applied in
determining whether it is in a child’s best interests to cease life support systems
and de-escalate medical treatment. Delaware courts have held that the “clear and
convincing standard of evidentiary proof is applicable in judicial proceedings
involving the termination of parental rights.”30 “That standard has also been held
to apply where a guardian seeks to discontinue nutrition and hydration of a person
diagnosed to be in a persistent vegetative state.”31 “This heightened standard of
evidentiary proof has also been applied in other civil proceedings involving the
29 In re T ruselo, 846 A.2d at 272 (quoting In re Guardianship of Grant, 747 P.2d at 568).
3° Id. at 273. See also Santosky v. Kramer, 455 US. 745, 747—48 (1982) (“Before a State may
sever completely and irrevocably the rights of parents in their natural child, due process requires
that the State support its allegations by at least clear and convincing evidence”); In re Stevens,
652 A.2d 18, 23 (Del. 1995); Patricia A.F. v. 112.17., 451 A.2d 830, 831 (Del. 1982).
31 In re T ruselo, 846 A.2d at 273. See also In re T ave], 661 A.2d 1061, 1070 (Del. 1995).
28
termination of important rights.”32 Accordingly, we hold that in T ruselo and in this
case, the Family Court properly recognized the applicable standard of proof was
clear and convincing evidence.
Application of Standard
In this case, as in T ruselo, the Family Court concluded that the clear and
convincing evidence standard should be properly applied in determining Whether it
is in Adam’s best interest to approve the AGAL’s request to forego life sustaining
medical treatment for this child. In this case, the Family Court analyzed the best
interest factors discussed in T ruselo, as follows:
(1) evidence about the patient’s present level of physical, sensory,
emotional, and cognitive fimctioning;
All of the testifying physicians agree that Adam’s current level of
functioning is very low. Adam is unable to breathe or eat on his own. As a result
of his brain injuries, it is likely that Adam is both deaf and blind. It is also likely
that Adam will be unable to engage in any “meaningfiil” behavior including
speaking, communicating, or forming relationships.
(2) the degree of physical pain resulting from the medical condition,
treatment, and termination of the treatment, respectively;
32 In re Truselo, 846 A.2d at 273. See also In re Tavel, 661 A.2d at 1070; Newmark, 588 A.2d at
1110 (“[T]he State has the burden of proving by clear and convincing evidence that intervening
in the parent-child relationship is necessary to ensure the safety or health of the child, or to
protect the public at large”); William HY. v. Myrna LX, 450 A.2d 406, 407—08 (Del. 1982)
(applying an enhanced burden of evidentiary proof to custody modifications).
29
Dr. Piatt believes that Adam is capable of reacting to pain, but does not
experience it in the same manner as someone who is conscious. Similarly, Dr.
Falchek testified that Adam may be able to experience pain if there is enough of
the area of his brain responsible for processing pain remaining.
Adam’s current treatment, including the use of an endotracheal tube and a
nasogastric tube, carry the risk of infection, pneumonia, damage to the vocal
chords, and erosion of any tissue coming into contact with the tubes. If these tubes
are surgically replaced with tubes connected directly to Adam’s neck and stomach,
there is a risk of a sodium imbalance in his blood, complications associated with
anesthesia, bleeding, infection, and disruption to parts of the body surrounding the
surgical sites. Since Adam will never be able to breathe or eat on his own, the use
of these tubes will be necessary for the rest of Adam’s life.
If Adam is removed from life support he would receive “comfort care.”
This involves the administration of pain medication and sedation following the
removal of life support until Adam passes away.
(3) the degree of humiliation, dependence, and loss of dignity
probably resulting from the condition and treatment;
The degree of humiliation, dependence, and loss of dignity that results from
Adam’s condition cannot be overstated. All of the testifying physicians agree that
Adam will never walk, talk, feed himself, hear, communicate, or be able to care for
himself in any way. Nor will Adam be able to eat or breathe without mechanical
30
We have determined that the Family Court properly exercised its jurisdiction
and afforded the parents due process. Therefore, the judgment of the Family Court
is affirmed.
F actsz and Procedural History
Adam was born on February 19, 2015 addicted to narcotics. After a four
week stay in the hospital to be weaned from drugs, Adam was released to his
parents, David Hunt (“Father”) and Carey Land (“Mother”). The Division of
Family Services (“DFS”) became involved with this family after Adam’s birth.
When Adam was barely three months old, emergency personnel were called
to the home of Mother and Father in Harbeson, Delaware. On May 23, 2015,
Adam was found to be unconscious, unresponsive, and his face and lips were blue.
He was ventilated with a mask and bag, and an IV was begun through a hole
drilled in his leg. He was transported to Beebe Hospital in Lewes.
Neither Mother nor Father offered an explanation as to why Adam was
unresponsive and unconscious. Although they were home at the time the
emergency personnel arrived, neither Mother nor Father accompanied Adam to the
hospital. Mother eventually went to the hospital with a police officer; Father never
went to the hospital.
2 The facts and procedural history are taken from the August 13, 2015 opinion of the Family
Court.
4
assistance. Currently, these machines run through Adam’s nose and throat. If
replaced with more permanent life support systems, tubes would be inserted
directly into Adam’s throat and stomach. Finally, Adam will require the support of
a trained caretaker twenty-four hours per day for the rest of his life.
(4) the life expectancy and prognosis for recovery with and without
treatment;
The Family Court did not receive testimony concerning Adam’s life
expectancy, although the testifying physicians indicated that Adam will continue to
live for an unknown period of time if he remains on life support. Without life
support, Adam would probably die within a few days. Due to the severity and
degenerative nature of his brain injuries, however, Adam will never recover or
function in an age-appropriate manner. There is no treatment able to restore
Adam’s brain functioning.
(5) the various treatment options;
The only treatment option available to Adam is the continuation of life
support along with daily care from trained professionals. As stated above, there is
no treatment capable of repairing the damage to Adam’s brain.
(6) and the risks, side effects, and benefits of each of those options.
Again, use of endotracheal and nasogastric tubes carry the risk of infection,
pneumonia, damage to the vocal chords, and erosion of any tissue coming into
contact with the tubes. If these tubes are surgically replaced with tubes connected
3 1
directly to Adam’s neck and stomach, there is a risk of a sodium imbalance in his
blood, complications associated with anesthesia, bleeding, infection, and disruption
to parts of the body surrounding the surgical sites. If enough of Adam’s thalamus
still exists, then it is possible that the life support systems could cause Adam pain.
While it may be maintained that Adam’s life is a benefit of his treatment, such a
position must be assessed in light of his current level of functioning and filture
prognosis.
For these reasons, the Family Court concluded that the tragic consequences
of allowing Adam to remain on life support are great, and far outweigh the rewards
of furthering his life. Therefore, on August 13, 2015, the Family Court found by
clear and convincing evidence that it is in the best interests of Adam to de-escalate
his medical care, withdraw life support, enter DNR and Do Not Re-Intubate Orders
on his medical chart, provide him with comfort care, and allow him to die in peace.
The most recent opinion of the Family Court appointed independent medical expert
supports that August 13, 2015 decision.
N0 Termination of Parental Rights
Mother and Father next question whether the Family Court has the authority
to de-escalate medical care for Adam because their parental rights have not been
terminated. When a child is placed in DFS custody, the Division has the right to
“consent to medical care for the child, including medical examination, medical
32
5:33
treatment including surgical procedures. However, DFS is required to make
“reasonable efforts to obtain the consent of the parent and to notify the guardian ad
2934
litem, prior to obtaining medical care. While parents retain the right to consent
to certain medical treatment under Section 2520(b), that right is held “unless
otherwise ordered by the [Family] Court. . . 3’35
Although Mother and Father argue that the Family Court cannot override a
parent’s objection, even in the case of abuse, prior to a termination of parental
rights, other jurisdictions have recognized that parents rights are not absolute. In
In re Christopher,36 the child suffered serious brain damage at the hands of his
father, While his mother was in the home.37 Christopher was removed from the
38
custody of his parents and placed into protective custody. As a result of his
injuries, mother filed a petition for removal of life support and imposition of a
DNR order; father opposed both requests.39 The court stated that “[w]hi1e it would
generally be the right of Christopher’s parents to make the determination of what
medical treatment (or cessation thereof) is in his best interests, . . . [the parents], by
their actions, forfeited their rights to determine What is and is not in Christopher’s
33 13 Del. C. § 2521(2).
34
35 13 Del. C. § 2320(b) (emphasis added).
36 131 Cal. Rptr. 2d 122 (Cal. Ct. App. 2003).
37 Id. at 126.
38
39 Id. at 126—27.
33
9940
best interests. The court found that it had the authority to act even when
parental rights were still intact because father’s actions directly caused
Christopher’s current vegetative state and, further, that mother failed to protect
Christopher from harm.41
Similarly, in In re Arzuaga-Guevara, the Court of Chancery noted that a
termination of parental rights of the abusive parent before ordering withdrawal of
life support to a child in a persistent vegetative state was “not as practical to the
ends of justice and its prompt administration.”42 In In re K.I.,43 the appellate court
specifically found that the child’s well-being took precedent over the mother’s
parental rights in affirming the trial court’s decision to enter a DNR order of a
child that was “neurologically devastated.”44 The court in KI. acknowledged that
biological parents do not lose their “‘fimdamental liberty interest . . . in the care,
custody and management of their child’” because they have lost temporary custody
to the state.45 However, the court also recognized that the parents’ interest is not
absolute. “‘The paramount concern is the child’s welfare and all other
4" Id. at 138 (emphasis added).
41 Id. at 138—39.
42 In re Arzuaga-Guevara, C.M. No. 10211 (Del. Ch.), a ’d on other grounds, 794 A.2d 579(Del. 2001).
43 735 A.2d 448 (DC. 1999).
44 Id. at 450.
45 Id. (quoting Santosky, 455 U.S. at 753).
34
considerations, including the rights of a parent to a child, must yield to its best
interests and well being.”’46
At the time the Family Court granted the Motion to De-Escalate Medical
Treatment, Adam had been found both neglected and abused in his parents’ care.
“[O]nce a child has been adjudicated dependent or neglected, the Family Court, in
its role as parens patriae, is charged with ensuring the safety and well-being of that
child, including . . . decisions involving medical treatment.”47 “[W]here the
parents have failed to exercise their parental responsibilities toward the child, or in
cases of suspected abuse or neglect, the parents’ right to speak for the child may be
diminished, or even lost entirely.”48
In T ruselo, the Family Court recognized that the parents of the child at issue
had consented to the removal of life support. Nevertheless, the T ruselo Court
stated that an agreement between the parents concerning a child’s medical
treatment “neither defeats the jurisdiction of the [Family] Court in a case such as
this nor binds it to accept their position.”49 Accordingly, the T ruselo Court stated
that the ultimate issue is “who is in the best position to decide (and who gets to
decide who will decide)”50 In resolving this question, the T ruselo Court relied
46 Id. at 454 (quoting Davis v. Jurney, 145 A.2d 846, 849 (DC. 1958)).
47 In re T ruselo, 846 A.2d at 269.
48 Id. (internal quotation omitted).
49
Id.
5° Id.
35
primarily on the fact that custody of the child had been granted to DFS following a
finding of dependency.51
The T ruselo Court stated that, “[w]hile the [Family]
Court‘s decision weighs less heavily [when there is parental consent], the fact
remains that [the child] is under the jurisdiction of the Family Court, and as such,
[the Family] Court, in its role as parens patriae, has a duty to ensure that medical
treatment decisions serve his best interests.”52
Here, Mother and Father have been adjudicated to have abused and
neglected Adam. The Family Court also noted that Mother and Father are the
primary suspects in the criminal investigation of Adam’s injuries and admitted that
no one else had been responsible for Adam’s care. In applying the Christopher
analysis, Mother and Father have “forfeited their rights to determine what is or is
not in [Adam’s] best interests.”53 On August 18, 2015, the Family Court granted
DFS’ Motion for Determination of No Reasonable Unification Efforts, which was
filed on June 19, 2015. The Family Court found by clear and convincing evidence
that DFS is not required to perform reunification and other services to either parent
with respect to Adam and his brother, due to Adam’s serious physical injury and
near death while in his parents’ care. The Family Court cited the termination of
51 Id. at 270.
52 Idaho
53 In re Christopher, 131 Cal. Rptr. 2d at 138.
36
parental rights statute.54 Thus, although there had not been a termination of
parental rights, the Family Court has already adjudicated Mother and Father to
have abused and neglected Adam, and found by clear and convincing evidence that
grounds for termination of parental rights exist in 13 Del. C. § 1103(a)(8) because
of Adam’s serious injuries and near death: “injury or death resulting fi'om
intentional, reckless, willful neglect of paren .”
It is particularly significant that the Delaware termination of parental rights
statute states “nothing herein shall prevent a court from immediately assuming
custody of a child and ordering whatever action may be necessary, including
medical treatment, to protect his or her health and welfare.”55 Accordingly, we
hold that the Family Court had authority to act on the Motion to De-Escalate
Medical Treatment, under the facts of this case, even though there had been no
termination of parental rights.
Parents Afforded Due Process
Parents are entitled to due process prior to the entry of an order that
effectively terminates their parental rights. Such due process necessarily includes
adequate notice.56 According to Delaware decisional law:
Procedural due process requires that parties whose rights
are to be affected are entitled to be heard; and in order
54 See 13 Del. C. § 1103.
55 13 Del. C. § 1103(c) (emphasis added).
56 Orville v. Div. of Family Serv., 759 A.2d 595, 598 (Del. 2000).
37
that they may enjoy that right they must first be notified.
The right to notice and an opportunity to be heard must
be granted at a meaningful time and in a meaningful
manner. The notice must be reasonably calculated, under
all the circumstances, to apprise interested parties of the
dependency of the action and afford them an opportunity
to present their obj ections.57
Though he was not personally served with notice of the hearing, Father
appeared at the Family Court for the hearing on June 30, 2015. Mother also
appeared. The Family Court found Father to be indigent and formally appointed
counsel. Counsel for Father then requested a continuance based on the severity of
the matters before the court, her formal appointment as counsel that morning, and
service of the pleadings upon Father before the hearing started. The AGAL
opposed the continuance request, as did DFS. Counsel for Mother supported the
continuance request, though did not request a continuance on Mother’s behalf. In
denying the request for a continuance, the Family Court noted that the child had
been in foster care for about a month, questioned where Father had been during
that time, and also noted that there would be some amount of “unpreparedness”
because of the expedited nature of the emergency proceedings.
The Family Court’s decision to deny a continuance is reviewed for an abuse
58
of discretion. In this case, the Family Court’s denial of Father’s continuance
57 Tsz'pouras v. Tsipouras, 677 A.2d 493, 496 (Del. 1996) (internal citations and quotations
omitted).
58 Smith v. State, 582 A.2d 936 (Del. 1990).
38
request was not unreasonable or capricious. The record reflects that the Family
Court properly weighed Father’s due process concerns against the emergency
nature of the proceeding.
Father now argues that his initial lack of preparation at the June 30, 2015
hearing on the Motion to De—Escalate Medical Treatment supports a finding of
ineffective assistance of counsel by the time the Family Court issued its final order
on the Motion to De-Escalate Medical Treatment on August 13, 2015. However,
after the June 30, 2015 hearing, when the Family Court denied the Motion to De—
Escalate Medical Treatment on an emergency basis, Father and Mother were aware
that the Family Court planned to readdress the issue, where appropriate, at a later
date. Following the June 30, 2015 hearing, the Family Court granted the parents’
request to obtain an independent medical expert. The Family Court’s denial of the
Motion to De-Escalate Medical Treatment on an emergency basis gave counsel for
Father and Mother an opportunity to prepare for the subsequent proceedings.
On August 10, 2015, during a teleconference regarding the status of the
independent medical examination requested by the parents at the close of the June
30, 2015 hearing, the AGAL renewed its request that the still-pending Motion to
De-Escalate Medical Treatment be again considered by the Family Court. The
parents requested more time to continue to search for an independent expert to
evaluate Adam. The Family Court asked counsel for the parties if it needed to take
39
any more evidence other than the independent medical examination the parents had
requested. Counsel for the parents agreed that, but for any evidence of the second
opinion, there was no need for further evidence and the parties declined to add any
further positions on the motion. The parties stipulated the evidence from the June
30, 2015 hearing was admissible into evidence. The Family Court granted the
Motion to De-Escalate Medical Treatment on August 13, 2015.
On July 23 and 28, 2015, the Family Court held an Adjudicatory Hearing.
Mother and Father were both represented by counsel at that proceeding. On
August 11, 2015, the Family Court issued its Order from the Adjudicatory Hearing,
finding by a preponderance of the evidence that James was neglected and Adam
was neglected and abused in the care of the parents. Custody of both children was
awarded to DFS. On August 18, 2015, the Family Court granted DFS’s Motion for
Determination of No Reasonable Reunification Efforts, which was filed on June
19, 2015. Both parents were represented by counsel and given an opportunity to
address the motion. The Family Court found by clear and convincing evidence
that DFS was not requested to perform reunification with the parents for Adam or
his brother due to Adam’s physical injury and near death while in the parents’ care.
The record reflects that throughout all of the proceedings both parents were
represented by counsel, given notice, and granted an opportunity to be heard at a
40
Due to his serious condition, Adam was immediately transferred to
Nemours/Alfred I. duPont Hospital for Children (“A.I. duPont”) in Wilmington,
Delaware. On May 26, 2015, Dr. Allan DeJong, the medical director of A.I.
duPont’s child abuse program, and an expert in child abuse pediatrics and medical
evaluation of children for abuse and neglect examined Adam. Dr. DeJong opined
that Adam sustained multiple fractures caused by unexplained abusive trauma. In
addition to multiple fractures, Adam’s other diagnoses included chronic bilateral
subdural hematomas, destruction of brain tissue, seizures, respiratory failure,
malnourishment, and splitting of the layers of the retina in his left eye.
On May 28, 2015, DFS filed a Dependency/Neglect Petition for Custody,
requesting emergency ex parte custody of Adam Hunt (DOB: 02/19/15). The
petition alleged that Adam was neglected and abused in the care of his parents.
DFS asserted that Adam had been hospitalized for serious physical injuries.
Because Mother and Father were suspects in his abuse, the Family Court awarded
emergency custody of Adam to DFS.
On May 28, 2015, the Family Court appointed Kim DeBonte, Esquire, of the
Office of the Child Advocate, as Adam’s attorney guardian ad litem (“AGAL”) 3.
3 Delaware’s General Assembly has recognized the need to safeguard the welfare of abused,
neglected and dependent children in this State, and has charged the Office of the Child Advocate
with ensuring the representation of children’s best interests in child welfare proceedings through
appointments of guardians ad [item 29 Del. C. § 9007A(a). Once appointed to represent a
child’s best interests, “the attorney guardian ad [item’s duty is to the child.” 29 Del. C. §
5
meaningful time and in a meaningful manner. Accordingly, we hold that both
parents were afforded due process.
Independent Medical Examination Discretionary
No statutory authority in Delaware specifically entitles a parent involved in
child welfare proceedings to have an independent medical evaluation or
assessment performed on a child prior to the Family Court issuing a decision to de—
escalate medical treatment. Nevertheless, in this case the Family Court did
initially grant the parents’ request for an independent medical examination of
Adam.
Courts in other jurisdictions appear to have different approaches to the
permissibility or necessity for an independent medical examination when a de-
escalation of care, or “do not resuscitate order” is sought. In Christopher, the
mother who filed for an order authorizing a DNR order and removal of the child’s
life sustaining medical treatment presented the testimony of three of the child’s
treating physicians, as well as two independent pediatric neurologists.59
Conversely, in Care and Protection of Beth, the testimony of an independent
evaluator was not sought.60 In that case, the main witness at an evidentiary hearing
concerning the child’s fiJture medical care was the child’s primary treating
59 In re Christopher, 131 Cal. Rptr. 2d at 127—28.
6° Care & Protection ofBeth, 587 N.E.2d 1377 (Mass. 1992).
41
physician.61
The director was the physician primarily responsible for the child’s
care from the time she was admitted.62 In that Massachusetts case, though the
entry of a “no code order” was in dispute, the court took testimony only from the
child’s treating physician and relied on that in authorizing the entry of a DNR
order.63
On August 10, 2015, five weeks after its initial decision to deny the
emergency Motion to De-Escalate Medical Treatment, the Family Court conducted
a teleconference with counsel for all parties to discuss the status of the independent
medical examination. During that time flame, four hospitals in three major
metropolitan areas and two additional physicians declined to perform such an
examination. Despite their significant and collective efforts, and the considerable
extent of their search, counsel were not successfill in retaining a willing or
available qualified expert not affiliated with Al. duPont to perform an independent
evaluation.
While the Family Court initially had concerns that Dr. Falchek was not
sufficiently independent, because of his employment by Al. duPont Hospital for
Children, it resolved those concerns afier carefully reconsidering the evidence.
The Family Court found the testimony of the four doctors credible and that there
51 Id. at 1379.
62
63 Id. at 1383.
42
was no evidence of collusion amongst them. Moreover, despite having given
Mother and Father five weeks to attempt to locate a qualified physician to perform
an independent examination, no expert had yet been found. While the parents
asked for more time to attempt to locate such an expert, neither the Family Court
nor counsel could determine what amount of time might be appropriate. The
Family Court concluded that while an independent examination is good practice, it
was not necessary under the circumstances.
The Family Court determined that Adam’s best interests would not be
served, and would in fact be disregarded, if the search for an independent evaluator
were to continue in perpetuity, stating “the court must therefore weigh the harm
associated with providing more time . . . against the benefits of obtaining another
opinion. The court finds that the balance now favors moving forward without a
fifth evaluation.” The Family Court noted that there “have been no allegations or
evidence indicating that the testifying physicians have engaged in any sort of
collusion or impropriety. All four of the physicians who testified in this case
provided an almost identical assessment of [Adam’s] condition and prognosis. The
certainty in each of those opinions led the Family Court to believe that a fifth
evaluation would not result in a different opinion.” The Family Court concluded:
This case presents one of the most difficult, profound,
and somber issues a Court can face. As such, it is
preferred that the decision of whether to remove a child
from life support be made by the child’s parents. When
43
the parents are responsible for the child’s condition,
however, the Court must assume the parental role and
determine what is in the child’s best interests. Here, the
undisputed medical testimony establishes that Adam will
never recover from his injuries. In order to stay alive,
Adam must be connected to invasive and potentially
painful life support systems which must be monitored by
trained caretakers twenty-four hours per day. As a result
of his injuries, Adam will never walk, talk, hear, or see.
Nor will he ever engage in any sort of meaningful
behavior. It is also important to note that DFS supports
the position of the guardian ad litem despite the
countervailing interest which the State may have in
preserving the life of its citizens.64
In this case, we need not decide if the Family Court properly proceeded
without the opinion of a fifth physician who was an independent medical expert
because during the pendency of this appeal such an opinion was provided by a
Family Court appointed independent medical expert. The opinion of that
independent medical expert was in complete accord with the medical expert
opinions of the four other physicians.
Nevertheless, it is appropriate for this Court to provide guidance for
proceedings in the fiiture when the Family Court is called upon to decide whether
to withhold or withdraw life support for a child and to de-escalate medical
64 According to the Policy Manual for Division of Family Services, “Unless parental rights have
been terminated or legal guardianship transferred by the Court, parents maintain the right to
consent to any medical treatmen .” Div. Family Serv., Policy Manual, Mar. 2015, at C-2. The
Policy Manual goes on to specifically state that “[t]he Division cannot sign or consent for
medical . . . treatment required for a child in the following circumstances . . . . Life Ending
Decisions, including ‘Do Not Resuscitate’ orders or removal of life support.” Id. at C-5(e).
44
treatment. We decline to hold that an independent medical expert is required in all
cases. In this case, however, the Family Court concluded that it was desirable to
have the opinion of an independent medical expert. The parties were unable to
obtain the opinion of an independent medical expert over the course of five weeks.
The Family Court then decided to proceed on the basis of the four medical
opinions that were on the record. In other cases, the Family Court might properly
decide to do that ab initio.
But, in this case the Family Court had already decided that a fifth expert
medical opinion was desirable. When the parties were unsuccessful in obtaining
an independent medical expert, the Family Court should have appointed its own
independent medical expert, if possible. That was ultimately done in this case. In
future cases, if the Family Court decides that the opinion of an independent
medical expert is desirable, it can appoint one immediately, even if it decides, as in
this case, to give the parties a reasonable amount of time to obtain an independent
medical expert’s opinion.
Conclusion
The August 13, 2015 judgment of the Family Court is affirmed. The
mandate shall issue immediately.
45
On June 4, 2015, the Family Court held a Preliminary Protective Hearing.
Mother appeared, but Father did not. Service of process had not yet occurred on
Father. The Family Court found Mother to be indigent and appointed counsel on
her behalf. Mother consented to a finding of probable cause that Adam, as well as
his older brother, James (DOB 5/21/13), continued to be in actual physical, mental,
or emotional harm, or there was a substantial imminent risk thereof.
The Family Court received testimony that Adam had suffered extensive
injuries and would likely require institutional care and/or life support for the
remainder of his life. Due to Adam’s injuries, as well as concerns as to the nature
of the care being provided by Mother and Father, the Family Court found that
probable cause existed to believe that both children continued to be in actual
physical, mental, or emotional danger with regard to Father. The Family Court
also found that DFS had made reasonable efforts to prevent the unnecessary
removal of the children from their home. Accordingly, the Family Court continued
temporary custody of both children with DFS. The Family Court ordered genetic
testing of both children.4 The Family Court also scheduled an Adjudicatory
Hearing.
29 Del. C. § 9005A and 29 Del. C. § 9007A require this agency to independently protect the
“welfare of abused, neglected and independent children” in Delaware, by “[t]ak[ing] all possible
actions . . . to secure and ensure the legal, civil and special rights of the children.”
4 The results of the genetic testing show that Hunt is the biological father of both Adam and
James.
6
On June 26, 2015, the AGAL filed the Motion to De-Escalate Medical
Treatment, in which she requested a hearing to determine whether it is in Adam’s
best interests to de—escalate his medical intervention. The Motion to De—Escalate
Medical Treatment stated that Adam had been diagnosed with numerous medical
conditions which are highly characteristic of non-accidental trauma. As a result of
his injuries, Adam was placed on life support. Mother Visited Adam twice in June
after his admission to A.I. duPont and cancelled other scheduled visits without
providing any explanation. Father did not Visit Adam once in June or contact DFS
to schedule a visit.
Attached to the Motion to De—Escalate Medical Treatment were several
affidavits from Adam’s physicians at Al. duPont, all of which concluded that it is
in Adam’s best interests to de-escalate medical intervention and provide “comfort
care” instead. Mother had been informed of Adam’s prognosis, but indicated that
she does not wish to withdraw care.
On June 30, 2015, the Family Court held an emergency hearing to receive
evidence concerning the Motion to De-Escalate Medical Treatment. Mother had
been personally served with notice of the hearing on June 27, 2015, and she was
present with counsel. Father had not been personally served, but appeared
anyway.5 The Family Court found Father to be indigent and appointed counsel on
his behalf. Father’s attorney requested a continuance, arguing that she had just met
Father, only learned of the hearing the previous day, and did not have time to
prepare for a hearing with such significant consequences. The Family Court
denied the request.
On July 6, 2015, the Family Court issued its Order from the June 30 hearing,
denying the Motion to De-Escalate Medical Treatment due to a lack of evidence
indicating that Adam was at risk of immediate and irreparable harm as well as the
absence of a finding of dependency, neglect, or abuse. The Adjudicatory Hearing
had not yet been held, and therefore a finding of dependency, neglect, or abuse had
not yet been made. The Family Court’s Order stated that Mother and Father would
be permitted to seek an independent medical expert’s opinion of Adam’s condition,
and that the Motion to De—Escalate Medical Treatment would be re—addressed at an
appropriate time.
On July 23 and 28, 2015, the Family Court held an Adjudicatory Hearing
with regard to Adam and James. Both parents were represented by counsel.
During the hearing, evidence was presented that Adam was born addicted to
narcotics and spent four weeks in the hospital. The evidence also revealed that
Adam was in the exclusive control of Mother and/or Father at the time he sustained
5 Service of DFS’s Dependency/Neglect Petition for Custody had been accomplished as to Father
by publication on June 18, 2015 and by personal service on June 30, 2015.
8
his injuries, and that it was not possible for Adam to cause the harm to himself.
Lastly, the evidence showed that Mother and Father failed to seek medical
attention for Adam despite obvious signs that he was severely injured.
On August 10, 2015, the Family Court held a teleconference with counsel
for Mother and Father, DFS, and Adam’s AGAL. The primary purpose of the
teleconference was to determine the status of an independent medical examination
requested by Mother and Father at the conclusion of the June 30, 2015 hearing.
The Family Court was informed that an independent examination of Adam had not
been performed.
Counsel for Mother and Father stated that The Children’s Hospital of
Philadelphia, Johns Hopkins Hospital of Baltimore, St. Christopher’s Hospital for
Children (“St. Christopher’s”) in Philadelphia, and the Children’s National
Medical Center (“CNMC”) in Washington, DC. all declined to perform the
evaluation. The Family Court and counsel engaged in a discussion as to the
purpose of an independent medical examination. Counsel for Mother responded
that such an examination is required due to the finality of the Family Court’s
decision. The AGAL asserted that it is simply good practice. The AGAL also
asserted, however, that it is her position that an independent assessment of Adam’s
condition was performed by Dr. Stephen Falchek. Dr. Falchek is the Chief of
Pediatric Neurology at Al. duPont. The AGAL explained that there are very few
pediatric neurologists in the area not associated with Al. duPont and that Dr.
Falchek has never been involved with Adam’s treatment.
At the conclusion of the teleconference, the AGAL renewed her Motion to
De-Escalate Medical Treatment. Additionally, all of the parties agreed that there
was no additional evidence or argument to be presented in this matter other than
the results of an independent medical examination, if one was performed.
On August 11, 2015, the Family Court issued its Order from the
Adjudicatory Hearing, finding that James was neglected in the care of his parents,
and that Adam was neglected and abused in the care of his parents. Accordingly,
the Family Court awarded custody of both children to DFS.
Evidence Presented
At the June 30, 2015 hearing on the AGAL’S Motion to De-Escalate Medical
Treatment, the Family Court received testimony from four expert witnesses
concerning Adam’s medical condition and prognosis. Dr. Allan R. DeJong is the
medical director of the child abuse program at A.I. duPont, and testified as to
Adam’s medical condition, as well as to an evaluation of child abuse that he
performed. Dr. Shirley Viteri is a pediatric critical care physician at Al duPont,
involved in Adam’s care. Dr. Joseph Piatt is a pediatric neurosurgeon at Al.
duPont who performed surgery on Adam’s skull and otherwise testified as to his
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