In re KI, No. 98-FS-1683

• Citation: 735 A.2d 448
• Decision Date: 29 July 1999
• Docket Number: No. 98-FS-1683, No. 98-FS-1767.
• Parties: In re K.I., B.I. and D.M., Appellants.
• Court: Court of Appeals of Columbia District

735 A.2d 448

In re K.I., B.I. and D.M., Appellants.

Nos. 98-FS--FS-1767.

District of Columbia Court of Appeals.

Argued May 13, 1999.

Decided July 29, 1999.

William J. Driscoll, appointed by the court, for appellant B.I.

Lawrence H. Huebner, Centreville, VA, appointed by the court, for appellant D.M.

Karen Aileen Howze, Washington, DC, appointed by the court as guardian ad litem, for appellee K.I.

Kenneth H. Rosenau, Washington, DC, appointed by the court as medical guardian ad litem, for appellee K.I.

Al J. Gonzalez, appointed by the court, for C.R., filed a statement.

John M. Ferren, Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, and Mary T. Connelly, Assistant Corporation Counsel, filed a memorandum in lieu of brief for the District of Columbia.

Edward J. Krill and William J. Carter, Washington, DC, filed an amicus curiae brief for the Hospital for Sick Children; the Medical Society of the District of Columbia; the American Medical Association, through the A.M.A. State Medical Society Litigation Center; Professors Robert F. Drinan, S.J. and Kevin Quinn, S.J. of the Georgetown University Law Center; and Dr. John J. Lynch on behalf of the Metropolitan Washington Bioethics Network.

Before TERRY and REID, Associate Judges, and MACK, Senior Judge.

REID, Associate Judge:

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 "gastroesophageal 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., K.I.'s putative father who claims to be K.I.'s biological father.¹ 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."²

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...