Legal battle over brain-damaged baby prompts Maine bill

AP News
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Posted: May 17, 2015 10:49 AM

AUGUSTA, Maine (AP) — Lawmakers in Maine are considering changes to the state's policies regarding life-sustaining treatment for minors after an 18-year-old mother went to court last year to fight a state-imposed do-not-resuscitate order on her brain-damaged daughter.

Legislators are examining a bill that would prevent the state from withholding life-sustaining treatment for a child in its custody unless the parent's rights have been officially terminated. Supporters say that will protect parental sovereignty and clarify a legal grey area that drew national attention last year when Virginia Trask sued the state after a child welfare agency won a judge's approval to make medical decisions on behalf of her daughter.

"The hope of this bill is that it will provide guidance to the judges and attorneys and to the various parties involved so that there is no question about what proper legal procedures needs to be followed in the event that the department feels this step needs to be taken," said attorney Scott Hess, who represented Trask in that case.

Arthur Caplan, director of the division of medical ethics at NYU Langone Medical Center, said he's unaware of any states with similar laws. But he said he believes that affirming parents' right to make medical decisions for their child is the right move.

"I think most Americans would agree that parents do a better job deciding, in general, than legislators or even courts," Caplan said.

Trask initially agreed to the order after the infant suffered severe brain injuries by being violently shaken by her father. Trask changed her mind, but child welfare officials sought it anyway, saying life-saving measures would only prolong the infant's suffering. Trask argued that the state was overstepping its authority because her parental rights remained intact.

The child had been removed from the home because of concerns about previous injuries that had gone untreated and the mother's ability to care for the child, who was by then severely disabled.

The Christian Civic League of Maine, Roman Catholic Diocese of Maine and the Alliance Defending Freedom, an Arizona-based conservative legal group — groups that supported Trask's request to lift the order last year— are urging lawmakers to pass the bill. It's also being backed by Maine's Department of Health and Human Services, which reversed its position and yielded to Trask's wishes after she sued the state.

The Maine Supreme Judicial Court dismissed Trask's appeal and never addressed the question of whether the state had violated her constitutional rights. Hess declined to comment on whether Trask has been reunited with her daughter or if she remains in state custody. A DHHS spokesman said he cannot comment on individual cases.

Carroll Conley, executive director of the Christian Civic League of Maine, acknowledged there are situations in which a parent may no longer be capable of making decisions in a child's best interest. He said this bill would maintain the state's ability to take action when those situations arise.

"We want to make sure we're not saying, 'parents' sovereignty, parents' sovereignty, come hell or high water,'" he said. "If there are parents who don't deserve those rights, then let's terminate them," he said.

Attorney General Janet Mills has raised several concerns about the proposal, telling lawmakers in a letter that final termination hearings often take one to two years. A parent who faces criminal charges for injuring a child would likely oppose a do-not-resuscitate order because charges could be upgraded to murder if the child dies, she said.

"In the meantime ... you have a child who is in intractable pain and never likely to recover," Mills said in an interview. "I just want to make sure that we don't elevate the rights of bad parents over the best interest of the child." But she said she's willing to work with lawmakers to try to find a way to best address the issue.

Lawmakers on the Judiciary Committee are expected to vote on the bill in the coming days before sending it to the full Legislature.

Rep. Barry Hobbins, Democratic co-chair of the committee, said he shares some of Mills' concerns. He and other committee members are grappling with the best way strike the delicate balance between parents' rights and what's best for the child, he said.

"You have to be careful as policy makers to put the emotions aside and look at the sensitive policy issues involved," he said.

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