In re Truselo
| Decision Date | 19 September 2000 |
| Docket Number | No. CN00-09299.,CN00-09299. |
| Citation | 846 A.2d 256 |
| Parties | Nicholas TRUSELO D.O.B.: 6/1/2000. Division of Family Services Petitioner, v. Tina M. Carroll Ralph J. Truselo Respondents. |
| Court | Delaware Family Court |
Jan R. Jurden, Wilmington, Delaware, for Loreto P. Rufo, Attorney Guardian Ad Litem for Nicholas Truselo.
Joelle P. Hitch, Wilmington, Delaware, for the Division of Family Services.
Kathryn J. Laffey, Wilmington, Delaware, for respondent, Tina M. Carroll.
Michael W. Arrington, Dover, Delaware, for respondent, Ralph J. Truselo.
This case comes before the Family Court for consideration of the Attorney Guardian Ad Litem's motion on behalf of a minor child, Nicholas Truselo, born 6/1/00, who is in the custody and care of the State of Delaware Division of Family Services ("DFS"). The motion seeks an Order directing medical providers of the child to de-escalate medical intervention and place a "do not resuscitate" ("DNR") Order, with comfort measures, on the child's medical chart. An evidentiary hearing was held on September 7, 2000, and supplemental testimony taken on September 11, 2000. This is the Court's Decision and Order granting the relief sought by the Guardian.1
The infant who is the central figure in this tragic case is Nicholas Truselo, who was born on June 1, 2000. His mother, Tina Carroll ("Mother"), and alleged father, Ralph Truselo ("Father"), are parties to this litigation. At the time of his birth, Nicholas was a normal healthy baby who was released from the hospital to the care of his mother. Today, as a consequence of an incident that occurred when he was just over two months old, Nicholas exists in the intensive care unit of the DuPont Hospital for Children, suffering from a traumatic brain injury that has rendered him bedridden for life, and dependent on others for the rest of his life. He is unable to see, hear, or eat, and in the future, will be unable to sit, walk, stand, or speak. He is without any cognitive brain function. His condition is permanent and irreversible and his life is being sustained only through the use of extraordinary, life-prolonging measures. He lies in a crib with a large drainage tube inserted in his skull, an endotrachial tube through his mouth to his lungs, hooked to a mechanical ventilator to maintain his breathing, and a naso-gastric tube inserted through his nose to provide him with nourishment. He possesses no choke or gag reflexes and is responsive only to painful stimuli. It is highly unlikely that his condition will ever improve. In the final analysis, this case involves the life and painful death of a three-month-old infant and the responsibilities, rights, and duties of family, Guardian, doctors, and the Court, regarding the inevitable and difficult decisions concerning this child.
According to the record, upon his release from the hospital following his birth on June 1, 2000, Nicholas lived initially with his natural mother. She was responsible for his care until approximately August 15, 2000, at which time the State Division of Family Services sought and obtained an ex parte Order of custody of the child upon the filing of a Dependency/Neglect Petition in the Family Court. The petition alleged that the child's mother "is currently at the Rockford Center [a psychiatric facility] and that three days earlier, on August 12, 2000, she had been taken to the Delaware State Hospital for cutting her throat." It was further alleged that Mother was intoxicated at the time. The child had been staying with the paternal grandmother in the home of Father's paramour. Father was incarcerated on a Violation of Probation charge for which he received a sixty-day sentence. The petition further asserted that Father's paramour did not feel capable of caring for Nicholas, and that the paternal grandmother did not have stable housing, thereby preventing her from taking responsibility for her grandson.
The Court's August 15, 2000, ex parte Order, entered pursuant to Family Court Civil Rule 200(d), granted temporary custody of Nicholas to the Division, based on the Court's finding that "there is an immediate threat to [his] health and safety ..., due to the fact that serious physical abuse to the child or another member of the child's household has previously occurred or been threatened, or there is the likelihood of it occurring or reoccurring to the child or a member of the child's household;" and "there is a threat of immediate harm to the child due to the deprivation of food, shelter or medical attention ...".
The child was immediately placed in a DFS foster home. In accordance with Family Court procedures in dependency/neglect cases, a probable cause hearing was promptly scheduled to be held on August 24, 2000. Only days prior to the scheduled hearing, the child was taken by ambulance to the Christiana Hospital. He was not breathing and had no pulses. The initial CAT scan of his brain performed at Christiana showed bilateral subdural hematomas. Because the admitting physician was highly suspicious of inflicted brain injury, Dr. Alan DeJong, the medical director of the CARE ("Children At Risk Evaluation") team at the DuPont Hospital for Children, was consulted. Upon examination at the DuPont Hospital, Dr. DeJong concluded that the child was a victim of inflicted head trauma, or shaken baby impact syndrome. Thus, even prior to the first hearing in this Court, the child's life had been permanently and unalterably devastated.
Following the probable cause hearing before a Commissioner on August 24, 2000, the Court determined that the child continued to be in actual physical, mental or emotional danger, or there was a substantial risk thereof, in accordance with Family Court Civil Rule 202. By this time, both parents were incarcerated. The Court continued custody with DFS, scheduled an adjudicatory hearing for September 18, 2000, and specified that if petitions for custody were filed by either or both of the child's grandmothers, that these should be consolidated for the adjudicatory hearing. At the adjudicatory hearing, the Court would determine, by a preponderance of the evidence, whether the child is dependent or neglected and whether it is in his best interests to remain in DFS custody.2
Immediately following the probable cause hearing, the Commissioner referred the case to the Office of the Child Advocate for appointment of a Guardian. The Court entered an Order appointing Loreto P. Rufo, Esquire, as Attorney Guardian Ad Litem for Nicholas pursuant to 10 Del.C. § 925(17) and 13 Del.C. § 701(c), with all of the duties, rights, and responsibilities set forth in 29 Del.C. § 9007A(3).
By the following week, the child's condition showed no signs of improvement, and his prognosis was so dire that hospital personnel began to discuss with the Guardian the prospect of de-escalating medical intervention, and placing "Do Not Re-Intubate" and "Do Not Resuscitate" orders on the child's chart. The Guardian, together with the physicians, began the difficult and painful process of discussing the options with the parents. After the Court was alerted to the possibility that the Guardian may file for such relief, counsel was appointed to represent each of the parents. Counsel was also appointed to represent the Guardian.
On September 1, 2000, counsel for the Guardian wrote a letter advising the Court that Nicholas' condition had "taken a turn for the worse." A request was made to conduct an adjudicatory hearing earlier than the scheduled date. Following a conference with counsel on September 6, 2000, the instant motion was filed by the Attorney Guardian Ad Litem. That motion, together with the Rule 203 adjudicatory hearing, were consolidated for evidentiary hearing the following day.
Prior to the hearing, the parties stipulated that the child is a "dependent child" as defined by 10 Del.C. § 901(8). The parties further stipulated that it is in the best interests of Nicholas as to be in the custody of the Division of Family Services pursuant to 13 Del.C. § 722.
Evidence at the hearing on the Guardian's motion consisted of the testimony of physicians who have examined and treated Nicholas since his admission to the DuPont Hospital and the observations and experiences of the child's Attorney Guardian Ad Litem since his appointment on August 24, 2000. In addition, the Court confirmed that both parents support the Guardian's request to remove the ventilator and place a DNR order on Nicholas' chart, that both were fully informed of the treatment options and their consequences, and that both parents fully understood the choices. These witnesses painted a somber and dismal picture of this young infant's prospects, so much so that emotional reaction to the testimony in the Courtroom was manifest.
Nicholas' condition was described in detail by Dr. Scott Penfil, a pediatric critical care physician, who is one of five doctors in the "call group" assigned to this child's case. His first examination took place on August 31, 2000. Dr. Penfil described the child as the victim of a traumatic brain injury resulting from shaking ("shaken baby impact syndrome") who had also sustained additional brain damage as a result of a hypoxic brain injury caused by a lack of oxygen to the brain. At the time of his initial examination, the child had an endotrachial tube in place that was connected to a ventilator. He was being fed by a nasogastric tube. An intravenous line provided two medications that were being administered to control seizure activity. It was unclear to the doctor whether Nicholas could breathe on his own. The child was difficult to arouse and did not open his eyes at all. It was believed that he could not sustain himself without the breathing machine.
Dr. Penfil's examination also revealed evidence of a loss of reflexes from the brain stem, the portion of the brain that controls...
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