Baby F. v. Okla. Cnty. Dist. Court

• Decision Date: 21 April 2015
• Docket Number: 113,527.
• Citation: 2015 OK 24,348 P.3d 1080
• Parties: In re BABY F., Petitioner, v. OKLAHOMA COUNTY DISTRICT COURT and the Honorable Lisa Tipping Davis, Respondents.
• Court: Oklahoma Supreme Court

348 P.3d 1080

2015 OK 24

In re BABY F., Petitioner

v.OKLAHOMA COUNTY DISTRICT COURT and the Honorable Lisa Tipping Davis, Respondents.

113,527.

Supreme Court of Oklahoma.

April 21, 2015.

Robert A. Ravitz, Public Defender of Oklahoma County, and Andrea Digilio Miller, Assistant Public Defender, Oklahoma City, Oklahoma, for Petitioner.

Jane A. Brown, Assistant District Attorney, Oklahoma City, Oklahoma, for Respondents.

COMBS, V.C.J.:

RELEVANT FACTS AND PROCEDURAL HISTORY

¶ 1 Baby F. was one of several siblings the State of Oklahoma sought to take into its emergency custody in an Application to Take Minor Children Into Emergency Custody filed on April 4, 2013. At that time, three-month-old Baby F. had allegedly been diagnosed with several anomalies and genetic issues.¹ The State alleged that the mother appeared to be under the influence of substances and the family could not care for the children, including Baby F. The State also made other allegations concerning the neglect of Baby F.'s siblings.

¶ 2 In response to the State's request, the district court issued an Order to Take Minor Child(ren) Into Emergency Custody on April 4, 2013. The State then filed a petition, on April 15, 2013, alleging Baby F. and his siblings were deprived children and sought to terminate the parental rights of Baby F.'s parents.

¶ 3 On June 4, 2013, the parents stipulated to the State's petition and the children, including Baby F., were made wards of the court as deprived children. The court ordered an individualized treatment plan for both the mother and father on July 9, 2013. The State filed an amended petition on September 30, 2013, alleging that the parents failed to correct the conditions leading to the children's adjudication as deprived and again seeking termination of their parental rights.

¶ 4 On November 19, 2014, the State received a letter from Dr. Michael Johnson, a pediatric hospitalist at The Children's Center Pediatric Rehabilitation Hospital where Baby F. had been placed to see to his special medical needs. In his letter, Dr. Johnson expressed concern about Baby F.'s continued deteriorating status and the need to consistently transfer him to the Children's Hospital at OU medical center so he could be placed on a ventilator. Dr. Johnson noted Baby F.'s prognosis as “grim”, and stated that the consensus amongst multiple staff members was that care should shift from aggressive management to palliative so as not to prolong unnecessary suffering and discomfort. Accordingly, Dr. Johnson requested a change in Baby F.'s resuscitation status from full code to Allow Natural Death.²

¶ 5 Based on the letter from Dr. Johnson, the State requested a hearing through an oral application that was heard before Judge Lisa Tipping Davis on December 10, 2014. At the hearing, Dr. Johnson testified as to Baby F.'s deteriorating condition, noting the numerous conditions identified when Baby F. was born prematurely, and his continued respiratory troubles. According to Dr. Johnson, Baby F.'s acute respiratory events began to increase over time, necessitating several transfers to another facility, and the staff began to feel conflicted that they might be doing more to Baby F. than for Baby F. Transcript of DNR Proceedings, December 10, 2014, pp. 7–8. After hearing the Testimony of Dr. Johnson, and with the support of Baby F.'s parents, the trial court granted the State's request to change Baby F.'s status to DNR pursuant to 10A O.S.2011 § 1–3–102(C)(2). The trial court granted the State's request over Baby F.'s objection, and stayed its order to allow Baby F.'s attorney to file this original action.

¶ 6 Baby F. filed an application to assume original jurisdiction and petition for a writ of prohibition with this Court on December 29, 2014. However, while this original action was pending, the State received a letter from Dr. Timothy Carroll on January 5. Dr. Carroll was Baby F.'s physician of record at The Children's Hospital at OU Medical Center. Dr. Carroll stated that Baby F.'s condition had deteriorated to the point where he could not survive without being in a medically induced coma and medically paralyzed on a life supporting ventilator, and there was no reason to suspect the situation would improve. Dr. Carroll stated the child was suffering and that further life sustaining therapy was not appropriate.

¶ 7 Accordingly, an emergency hearing was held on January 9, 2015. Based on Dr. Carroll's testimony, the State moved to dismiss Baby F. from the deprived petition and requested that the court place the child in the custody of his mother and father for purpose of their consent to the DNR order, thereby negating the need for the trial court's approval under 10A O.S.2011 § 1–3–102(C)(2). The State also requested the court vacate the stay it previously issued in order to proceed. In a January 9, 2015 order, the trial court vacated its previous stay and dismissed the deprived child proceeding only as to Baby F. and returned Baby F. to his parents' custody for purposes of the DNR order. Baby F. died on January 10, 2015, at Children's Hospital of Oklahoma.

I.JURISDICTION

¶ 8 This Court assumes original jurisdiction in the exercise of our general superintending control over all inferior courts and all agencies, commissions and boards created by law under Okla. Const. Art. 7, 4. James v. Rogers , 1987 OK 20, ¶ 2, 734 P.2d 1298. Before a writ of prohibition may issue, a petitioner must show: 1) a court, officer, or person has or is about to exercise judicial or quasi-judicial power; 2) the exercise of said power is unauthorized by law; and 3) the exercise of that power will result in injury for which there is no other adequate remedy. James v. Rogers, 1987 OK 20, ¶ 5, 734 P.2d 1298 ; Umholtz v. City of Tulsa, 1977 OK 98, ¶ 6, 565 P.2d 15. Where the exercise of judicial power violates fundamental law, this Court will issue a writ of prohibition to control the performance of judicial proceedings. Lepak v. McClain, 1992 OK 166, ¶ 4, 844 P.2d 852. See Atchison, T. & S.F. Ry. Co. v. Love, 1911 OK 352, ¶ 5, 119 P. 207.

¶ 9 Given the unique facts of this cause, related above, Baby F. has satisfied the requirements necessary for this Court to assume original jurisdiction and issue a writ of prohibition. A proceeding under 10A O.S.2011 § 1–3–102(C)(2), applied to Baby F., would have been an infringement of his fundamental constitutional rights for which appeal could not be an adequate remedy.

¶ 10 This Court must also address the question of mootness. The State, as the real party in interest, moved to dismiss this original proceeding as moot on January 13, 2015, after the death of Baby F. Counsel for Baby F., however, contends this cause falls within recognized exceptions to the mootness doctrine and requests the State's motion to dismiss be denied.

¶ 11 The mootness doctrine applies to both appellate and original jurisdiction proceedings. Chandler v. U.S.A., Inc. v. Tyree, 2004 OK 16, ¶ 11, 87 P.3d 598. See State ex rel. Dept. of Human Services v. Colclazier, 1997 OK 134, ¶ 5 n. 4, 950 P.2d 824. The concept of mootness is linked to circumstances that result in a court's inability to grant effective relief, where any opinion in that controversy would possess characteristics of a hypothetical or advisory opinion. Chandler, 2004 OK 16, ¶ 12, 87 P.3d 598 ; Westinghouse Elec. Corp. v. Grand River Damn Authority, 1986 OK 20, ¶ 17, 720 P.2d 713. It is a long-established rule that this Court will not consume its time by deciding abstract propositions of law or moot issues. State ex rel. Oklahoma Firefighters Pension and Retirement System v. City of Spencer, 2009 OK 73, ¶ 4, 237 P.3d 125 ; American Ins. Ass'n v. State Indus. Comm'n, 1987 OK 107, ¶ 6, 745 P.2d 737.

¶ 12 However, Oklahoma recognizes two distinct exceptions to the mootness doctrine: 1) when an appeal presents a question of broad public interest, and 2) when the challenged event is capable of repetition, yet evading review. Scott v. Oklahoma Secondary School Activities Ass'n, 2013 OK 84, ¶ 14, 313 P.3d 891 ; City of Spencer, 2009 OK 73, ¶ 4, 237 P.3d 125 ; Payne v. Jones, 1944 OK 86, ¶ 3–5, 146 P.2d 113. The application of these exceptions by this Court depends on the facts presented and the policy considerations and we will only apply them where the practical considerations indicate that doing so would avoid, rather than prolong confusion. Scott, 2013 OK 84, ¶ 14, 313 P.3d 891 ; In re Guardianship of Doornbos, 2006 OK 94, ¶ 4, 151 P.3d 126.

¶ 13 This cause falls firmly within both recognized exceptions to the mootness doctrine. First, the constitutional adequacy of proceedings under 10A O.S.2011 § 1–3–102(C)(2) is a question of broad public interest. The application of 10A O.S.2011 § 1–3–102(C)(2) is, quite literally, a matter of life or death for certain children in the State's custody. Second, this is a prime example of a situation that is capable of repetition, yet likely to continue to evade review. The facts of this case highlight the medical immediacy of the situations under which 10A O.S.2011 § 1–3–102(C)(2) is likely to be invoked, and the short duration of any live controversy places this cause squarely within the second exception to the mootness doctrine. Policy considerations dictate the Court resolve the issues raised by this cause now, to avoid future confusion and safeguard the interests of medically fragile children that may find themselves in Baby F.'s position.

II.DUE PROCESS REQUIRES A COURT AUTHORIZE THE WITHDRAWAL OF LIFE–SUSTAINING MEDICAL TREATMENT OR THE DENIAL OF THE ADMINISTRATION OF CARDIOPULMONARY RESUSCITATION PURSUANT TO 10A O.S.2011 § 1–3–102(C)(2) ONLY AFTER DETERMINING BY CLEAR AND CONVINCING EVIDENCE THAT DOING SO IS IN THE BEST INTEREST OF THE CHILD.

¶ 14 At issue in this cause is the constitutional adequacy of proceedings conducted pursuant to 10A O.S.2011 § 1–3–102(C)(2). Title 10A O.S.2011 § 1–3–102 concerns the authority of the Department of Human Services (DHS) to...