D.K. v. Commonwealth Ex Rel. Cabinet for Health & Family Services

OPINION AND ORDER

COMBS, Chief Judge.

D.K. has brought this motion under Kentucky Rule of Civil Procedure (CR) 65.07 seeking to set aside the order of the Warren Family Court permitting the Commonwealth to terminate life sustaining treatment for her son, Daniel. Daniel, approximately three and one-half years of age, is currently committed to the custody of the Cabinet and is a patient at Vanderbilt University Hospital.

Prior to suffering grievous injuries, Daniel had resided in Warren County with his mother and her live-in boyfriend. Daniel’s biological father has not played a significant role in Daniel’s life and had not seen him for the last two years according to the Cabinet’s counsel at oral argument before this Court.

Daniel was originally presented to a hospital in Warren County on February 12, 2007, with life-threatening injuries. He was transferred to Vanderbilt in Nashville, Tennessee, by air lift on that same date. Daniel’s treating physician (Dr. Bradly Strohler) and the expert appointed by the Court (Dr. Vinay Puri) both testified that Daniel has been in a persistent vegetative state since February 12. His pupils do not respond to bright-light stimuli — a responsive reflex which is regarded as the most basic of brain stem activities. According to Daniel’s treating physician, Daniel’s respiratory movements are the only signs of brain stem function. He is capable of exchanging gases on his own but is being aided by the use of a ventilator. Daniel’s body is not able to clear his airway of mucus and saliva and cannot prevent his tongue from collapsing into the airway. Without the assist of a ventilator, both his treating doctor and expert consultant believe that he will quickly die. Both physicians testified that Daniel has no chance of a meaningful recovery and that continued use of life support is not medically necessary.

JURISDICTION

Since his mother, the movant in this emergency action, and her boyfriend were alleged to have been the perpetrators of his injuries, the Cabinet immediately sought an emergency custody order from the Warren Circuit Court (Family Division). At the threshold of our review of this matter, we must consider the issue of jurisdiction. The movant has challenged jurisdiction.

After our review, we are persuaded that the Family Court properly exercised jurisdiction pursuant to Kentucky Revised Statute (KRS) 610.010(l)(e). That statute grants a family court jurisdiction over any child “living or found within the county” who is determined to be dependent, neglected, or abused. The Family Court first placed Daniel in the emergency custody of the Cabinet (KRS 620.060) on February 12. Following a removal hearing, it converted its order to one granting temporary custody to the Cabinet (KRS 620.090) on February 13. After another hearing, the Family Court entered an additional order on February 16 granting the Cabinet the authority to make medical decisions concerning Daniel’s medical treatment but reserving the authority to discontinue life sustaining treatment.

We conclude that the Family Court had jurisdiction over the child and that it had the additional jurisdiction to place the child in the custody of the Cabinet. The Cabinet then properly proceeded to act as medical surrogate and medical decision-maker pursuant both to the court order and KRS 605.110(l)(b). That statutory language provides as follows:

Unless provided otherwise, when any child committed to or in the custody of the Department of Juvenile Justice or the cabinet requires medical or surgical care or treatment, the Department of Juvenile Justice or the cabinet may provide the same or arrange for the furnishing thereof by other public or private agencies, and may give consent to the medical or surgical treatment. (Emphasis added.)

The statute in no way circumscribes or restricts the discretion of the Cabinet to providing for medical services solely within the boundaries of Kentucky. Presumably, the General Assembly, fully aware of the fact that Kentucky shares borders with seven sister states, consciously declined to limit the authority of the Cabinet to make medical decisions on behalf of Kentucky children needing medical care across state lines. As there is no language in the statute so restricting jurisdiction, we should imply none.

TERMINATION OF PARENTAL RIGHTS VERSUS REMOVAL OF MEDICAL TREATMENT BY THE CABINET

As already noted, the Cabinet sought permission of the Family Court for authority to consent to medical orders of DNI (Do Not Intubate) and DNR (Do Not Resuscitate). By its order of March 9, 2007, the Family Court granted that authorization to the Cabinet.

Daniel’s mother does not challenge the medical testimony concerning the child’s condition. In fact, her motion acknowledges and describes Daniel’s condition as a vegetative state. However, she does challenge the court order of March 9 as imper-missibly usurping her outstanding, intact parental right to direct the course of medical treatment of her son.

We have no case law in Kentucky addressing this specific issue: namely, whether the Cabinet’s authority to make medical decisions extends to removing life support over the objection of a parent (alleged to be perpetrator) whose parental rights have not been terminated. In an age in which the outrage of child abuse has become exponentially widespread, it is virtually unimaginable that our General Assembly has not articulated Kentucky’s public policy with clear guidelines to assist the courts in making these heart-wrenching decisions. But we have neither statute nor precedent by way of case law to govern or guide us.

Consequently, we have looked to sister states who have addressed this issue. We specifically concentrate on In re Interest of Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (Neb., 1997), a Nebraska case upon which the Warren Family Court relied for the proposition that the Cabinet had the authority to discontinue life support as a logical and natural corollary to its authority to direct medical treatment. However, the Nebraska case also held that removal of life support, which was inevitably to result in the child’s death, essentially amounted to an involuntary termination of the parental rights of the parents. Even though the record established that the severe injury to Tabatha resulted from vigorous shaking of the infant, the Nebraska court remanded the case for a formal adjudication to terminate parental rights before allowing the Cabinet to make its ultimate decision to remove life support.

The Nebraska court determined and articulated that the best interests of the child dictated “that life support be discontinued and that she not be resuscitated....” Id. at 691, 564 N.W.2d 598. Nonetheless, it held that the best interests of the child were secondary to the overriding and paramount right of the parents to a due process adjudication of termination.

Kentucky is asked to address many weighty and troubling issues involving serious bioethical concerns:

(1) whether parental rights override the best interests of the child;

(2) whether an adjudication terminating parental rights is a condition precedent to the Cabinet’s authority to make medical decisions on behalf of a child;

(3) whether an accusation of parental abuse alone suffices to terminate parental rights or if the presumption of innocence tolls such a termination pending a trial of the criminal case resulting in a conviction (and if so, does the time entailed in a matter-or-right appeal also serve to further toll the termination action);

(4) whether the right to administer medical care equally entails or implies the right to withhold medical treatment that is likely to result in death;

(5) whether the standard of medical evidence as to brain death is to be by “clear and convincing evidence” or by “a preponderance of the evidence”;

(6) whether we can define or articulate the fine line between what is medically necessary to sustaining life as distinguished from what amounts to merely prolonging the dying process.

Because we have never addressed these most serious questions, we have no precedent other than the decisions of sister states dictating in essence that this child may not expire and rest in peace until— and if — the superior rights of a parent are formally adjudicated. Consequently, it appears that we are compelled to remand this matter to the Warren Family Court for an adjudication of termination of the parental rights of D.K.

We lament the result, but even more, we deplore the fact that we as a Commonwealth have been derelict in pondering and articulating our public policy as to the most helpless of our citizens. Perhaps Daniel’s short life will have an impact far beyond his few years among us.

This order is in no way intended to reach beyond the two narrow issues which we have addressed in the majority opinion as to jurisdiction and as to the relative rights of the Cabinet versus the parental rights of D.K. in making medical decisions concerning Daniel. We refrain from addressing the numerous issues that may later arise if and when the Family Court adjudicates the parental rights of D.K. The Family Court must then re-visit the issue of just what medical treatment the Cabinet is authorized to order consistent with Kentucky statutes and public policy.

For the reasons stated above, we vacate the order of the Warren Family Court and remand this case for further proceedings consistent with this opinion.

Because of the need for expedited resolution of this matter, the Court ORDERS that this order be entered on Monday, March 26, 2007.

HENRY, Judge, Concurs.

MOORE, Judge, Dissents in Part, Concurs Separately in Part.