Custody of a Minor

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENESSEY; HENNESSEY
• Citation: 379 N.E.2d 1053,375 Mass. 733
• Parties: , 97 A.L.R.3d 401 CUSTODY OF A MINOR.
• Decision Date: 10 July 1978

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379 N.E.2d 1053 375 Mass. 733, 97 A.L.R.3d 401 CUSTODY OF A MINOR. Supreme Judicial Court of Massachusetts, Plymouth. Argued May 5, 1978.
Decided July 10, 1978.

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[375 Mass. 734] George E. Donovan, Boston, and John R. Graham, St. Paul, Minn., for respondents.

Stephen L. Saltonstall, Boston (Bart J. Gordon and Marvin C. Guthrie, Boston, with him), for John T. Truman, M. D.

John H. Wyman, Plymouth, for the minor.

James C. Doyle, Jr., Boston, for Department of Public Welfare.

Jonathan Brant, Asst. Atty. Gen., for Atty. Gen., amicus curiae, submitted a brief.

Before [375 Mass. 733] HENESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

[375 Mass. 734] HENNESSEY, Chief Justice.

This is an appeal by the respondent parents from a finding in the Plymouth County Superior Court that their minor child was in need of care and protection[375 Mass. 735] within the meaning of G.L. c. 119, § 24, and from an order requiring them to allow the child to undergo chemotherapy treatment for leukemia. The case originated in the Probate Court for Plymouth County, where, on February 22, 1978, a petition was entered by the child's physician pursuant to G.L. c. 201, § 14, seeking the appointment of a temporary guardian for the child. After hearing a brief, unsworn statement of facts, a judge of the Probate Court appointed a guardian ad litem for the child and granted the relief sought. The child was brought to the Massachusetts General Hospital (MGH) for treatment.

On March 10, 1978, the parents appeared before the Probate Court judge and moved to vacate the order of temporary guardianship. The judge scheduled a hearing on the motion for March 22, 1978, and ordered the child's physician and the guardian ad litem to file written reports.

On March 22, 1978, the judge informed counsel that, in his opinion, the Probate Court was not the proper forum in which to litigate the issues raised. The judge suggested that the more appropriate route was through a care and protection petition brought in the juvenile session of the District Court pursuant to G.L. c. 119, § 24.

On March 23, 1978, the child's physician filed such a petition in the Second District Court of Plymouth seeking the child's commitment to the legal custody of the Department of Public Welfare (DPW) for the limited purpose of providing necessary medical care. On March 29, 1978, after considering testimony of witnesses and the report of the court-appointed investigator, the District Court judge dismissed the petition.

The petitioner and the child's court-appointed counsel appealed to the Superior Court, where, pursuant to G.L. c. 119, § 27, a trial de novo was held. In his decision of April 18, 1978, the Superior Court judge

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found that a "denial of the recommended medical treatment means certain death for the minor, whereas continuation of such treatment offers him substantial hope for life." Concluding that the child's "right to live" and the "state's duty to enforce [375 Mass. 736] that right" outweighed the family's interests in privacy and autonomy, the judge found the child in need of care and protection, and ordered the child committed to the legal custody of the DPW for the purpose of receiving chemotherapy. Physical custody remained with the parents so long as they obeyed the order of the court.

The parents primarily argue on appeal that the Superior Court order violates their constitutional rights to choose the type of medical treatment appropriate for their child. The parents challenge the judge's findings and order on procedural grounds as well, arguing that (1) the issue of their fitness as parents was previously determined in their favor in the Probate Court, and as such, was res judicata; (2) the Superior Court lacked subject matter jurisdiction; and (3) they received inadequate notice of the Superior Court proceedings. The father further asserts that the trial de novo in the Superior Court exposed him to double jeopardy.

We conclude that the procedural issues raised by the respondents constitute no ground for reversal of the Superior Court order. As to the substantive issues, we conclude that this record does not properly present the question posed by the parents on appeal whether the State constitutionally may intervene when parental decisions concerning a child's medical treatment represent a choice among various beneficial alternatives. According to the testimony adduced at trial, it was the parents' intention to disallow chemotherapy regardless of whether an alternative treatment program consistent with good medical practice could be found.

Essentially, the judge's findings, which we affirm here, are that there is a substantial chance for a cure and a normal life for the child if he undergoes chemotherapy treatment. The uncontradicted medical testimony supports those conclusions, and no evidence of any alternative treatment consistent with good medical practice was offered. ¹

[375 Mass. 737] On the basis of this record, then, the question before the Superior Court was whether the State may intervene when parents decline to administer the only type of medical treatment which evidence before the court indicates could save their child's life. We affirm the judge's resolution of this issue. While recognizing that there exists a "private realm of family life which the state cannot enter," Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944), we think that family autonomy is not absolute, and may be limited where, as here, "it appears that parental decisions will jeopardize the health or safety of (their) child." Wisconsin v. Yoder, 406 U.S. 205, 234, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972).

The facts are as follows. On the evening of August 30, 1977, the child, then twenty months old, awoke with a temperature of 106o . The parents, who were living in Hastings, Nebraska, at the time, immediately brought the child to their family physician. Suspecting that the child had leukemia, the physician referred the family to Omaha University Medical Center. On September 1, 1977, physicians at the medical center diagnosed the child's illness as acute lymphocytic leukemia.

In order to understand the implications of this diagnosis for the child, a more general discussion of the disease and its treatment, as excerpted from the record before us, is helpful. Acute lymphocytic leukemia is a disease of the blood characterized by the appearance in the lymph tissue of excessive

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numbers of white cells and abnormal cells. The disease is attended by such symptoms as enlargement of the lymph glands, internal bleeding, anemia, and a high susceptibility to infection. Left untreated, the disease is fatal. See generally, Schmidt's Attorneys' Dictionary of Medicine, L-37, L-38, L-87, L-88 (1977).

According to uncontroverted medical evidence in this record, the only known medically effective treatment for acute lymphocytic leukemia is chemotherapy, an aggressive three-year treatment program administered in three distinct phases. The first phase is of four weeks' duration, and focuses on killing leukemia cells in the body. In this phase, [375 Mass. 738] different anti-leukemia drugs are administered in combination: first, so that the leukemia cells may be attacked at different points in the cell division cycle, and, second, so that the leukemia cells do not develop a resistance to any one drug. The patient in this phase receives two different types of anti-leukemia drugs, one in the form of weekly injections, and another in the form of daily oral dosages.

The second phase of chemotherapy treatment is six weeks long. In this phase, new anti-leukemia drugs are introduced: During the first ten days, a drug called L-Asparaginise is administered intravenously each day; on the eleventh day, and for each successive day during the three-year treatment, a drug called 6-Mercaptopurine is taken orally.

This second phase of chemotherapy also focuses on attacking leukemia cells which may have migrated into the spinal fluid and which, therefore, may be outside the reach of the anti-leukemia drugs which are administered intravenously or by injection. In some treatment programs, cranial radiation is used to attack leukemia cells that may have invaded the central nervous system. In other treatment plans, a drug called Methotrexate is injected directly into the spinal fluid each week. Thereafter, the drug is taken weekly in pill form until the conclusion of the three-year treatment.

The third phase of chemotherapy is a maintenance period, which continues until the three years have elapsed. Once during each month of this phase, the patient visits the hospital and receives another combination of anti-leukemia drugs, one in the form of an intravenous injection, and one in the form of an oral dosage taken each day for one week.

According to the experience of the medical experts in this case, the effect of this type of treatment on the long-term survival of leukemic children has been gratifying. After one year of treatment, 90% Of the children are found to be disease free. In the second year of treatment, 70% Are in a state of remission. At the end of the third year, 65% Are still in remission. In the fourth year the survival rate curve flattens to show a steady survival pattern of approximately 50%.

[375 Mass. 739] Two other factors are relevant. First, it has been shown that survival rates vary according to the type of leukemia cells found in the child. Because in this case the child is afflicted with a "null-cell" type of leukemia, his chances of survival with chemotherapy are slightly higher than 50%. Second, because the child falls within an age group which has a higher probability of potential cure and long-term survival, the chances for successful treatment in his case are stronger.

The child was admitted to a hospital in Omaha on September 1, 1977, and began a program of...