Newmark v. Williams

• Decision Date: 14 September 1990
• Parties: , 21 A.L.R.5th 857 Kara and Morris NEWMARK, Respondent Below, Appellant, v. Teresa WILLIAMS/DCPS, Petitioner Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1108

588 A.2d 1108

59 USLW 2610, 21 A.L.R.5th 857

Kara and Morris NEWMARK, Respondent Below, Appellant, v. Teresa WILLIAMS/DCPS, Petitioner Below, Appellee.

Supreme Court of Delaware.

Submitted: Sept. 14, 1990.

Oral Decision: Sept. 14, 1990.

Written Decision: April 2, 1991.

Upon appeal from the Family Court. REVERSED.

A. Gilchrist Sparks, III, Morris, Nichols, Arsht & Tunnell, Wilmington, Yosef J. Riemer (argued), and Karen N. Walker of Kirkland & Ellis, Washington, D.C., of counsel, for appellants.

Janice R. Tigani (argued), Richard E. Fairbanks, Jr., Loren C. Meyers and Timothy J. Donovan, Jr., Dept. of Justice, Wilmington, for the State.

Before MOORE, WALSH and HOLLAND, JJ.

MOORE, Justice.

Colin Newmark ¹, a three year old child, faced death from a deadly aggressive and advanced form of pediatric cancer known as Burkitt's Lymphoma. We were presented with a clash of interests between medical science, Colin's tragic plight, the unquestioned sincerity of his parents' religious beliefs as Christian Scientists, and the legal right of the State to protect dependent children from perceived neglect when medical treatment is withheld on religious grounds. The Delaware Division of Child Protective Services ("DCPS") petitioned the Family Court for temporary custody of Colin to authorize the Alfred I. duPont Institute ("duPont Institute"), a nationally recognized children's hospital, to treat Colin's condition with chemotherapy. His parents, Morris and Kara Newmark, are well educated and economically prosperous. As members of the First Church of Christ, Scientist ("Christian Science") they rejected medical treatment proposed for Colin, preferring instead a course of spiritual aid and prayer. ² The parents rely upon provisions of Delaware law, which exempt those who treat their children's illnesses "solely by spiritual means" from the abuse and neglect statutes. Thus, they opposed the State's petition. See 10 Del.C. § 901(11) & 16 Del.C. § 907 (emphasis added). The Newmarks also claimed that removing Colin from their custody would violate their First Amendment right, guaranteed under the United States Constitution, to freely exercise their religion.

The Family Court rejected both of these arguments and awarded custody of Colin to DCPS. See Williams v. Newmark, Del.Fam.Ct., No. CN90-9235, Conner, J., slip op. (Sept. 12, 1990). The trial court, however, issued a stay permitting the Newmarks to file an immediate appeal to this Court. Id.

We heard this appeal on an emergency basis. After argument on September 14, 1990, we issued an order reversing the Family Court and returned custody of Colin to his parents. See Newmark v. Williams, Del.Supr., No. 325, 1990, Moore, J. (Sept. 14, 1990) (ORDER). At that time we noted that this more detailed opinion would follow in due course.

We have concluded that Colin was not an abused or neglected child under Delaware law. Parents enjoy a well established legal right to make important decisions for their children. Although this right is not absolute, the State has the burden of proving by clear and convincing evidence that intervening in the parent-child relationship is necessary to ensure the safety or health of the child, or to protect the public at large. DCPS did not meet this heavy burden. This is especially true where the purpose of the custody petition was to administer, over the objections of Colin's parents, an extremely risky, toxic and dangerously life threatening medical treatment offering less than a 40% chance for "success".

I.

Colin was the youngest of the three Newmark children. In late August, 1990, the Newmarks noticed that he had lost most of his appetite and was experiencing frequent vomiting. The symptoms at first appeared occasionally but soon worsened.

The Newmarks reluctantly took Colin to the duPont Institute for examination. The parties stipulated that this violated the Newmarks' Christian Science beliefs in the effectiveness of spiritual healing. The parties further stipulated that the Newmarks acted out of concern for their potential criminal liability, citing a Massachusetts case which held parents liable for manslaughter for foregoing medical treatment and treating their minor child only in accordance with Christian Science tenets.

Dr. Charles L. Minor, a duPont Institute staff pediatric surgeon, examined Colin and ordered X-rays of his stomach. Dr. Minor found the X-rays inconclusive and suggested that Colin remain at the hospital for further testing. The Newmarks refused and took Colin home. Colin remained at home for approximately one week while receiving treatments under the care of a Christian Science practitioner. Colin's symptoms nonetheless quickly reappeared and the Newmarks returned him to the hospital.

Dr. Minor ordered a second set of X-rays and this time discovered an obstruction in Colin's intestines. The doctor suggested immediate surgery and, again, the Newmarks consented. The Newmarks considered the procedure "mechanical" and therefore believed that it did not violate their religious beliefs.

During the operation, Dr. Minor discovered a large mass 10 to 15 centimeters wide connecting Colin's large and small bowels. He also noticed that some of Colin's lymph nodes were unusually large. Dr. Minor removed the mass and submitted tissue samples for a pathological report. There were no complications from the surgery and Colin was recovering "well."

The pathology report confirmed that Colin was suffering from a non-Hodgkins Lymphoma. Five pathologists from Children's Hospital, Philadelphia, Pennsylvania, confirmed the diagnosis. Dr. Minor, after receiving the pathology report, contacted Dr. Rita Meek, a board certified pediatric hematologist-oncologist and an attending physician at the duPont Institute.

Dr. Meek ordered two blood tests which indicated the presence of elevated levels of uric acid and LHD in Colin's system. The presence of these chemicals indicated that the disease had spread. Dr. Meek then conducted an external examination and detected a firm mass growing above Colin's right testicle. She diagnosed Colin's condition as Burkitt's Lymphoma, an aggressive pediatric cancer. ³ The doctor recommended that the hospital treat Colin with a heavy regimen of chemotherapy.

Dr. Meek opined that the chemotherapy offered a 40% chance of "curing" Colin's illness. She concluded that he would die within six to eight months without treatment. The Newmarks, learning of Colin's condition only after the surgery, advised Dr. Meek that they would place him under the care of a Christian Science practitioner and reject all medical treatment for their son. Accordingly, they refused to authorize the chemotherapy. There was no doubt that the Newmarks sincerely believed, as part of their religious beliefs, that the tenets of their faith provided an effective treatment.

II.

We start with an overview of the relevant Delaware statutory provisions. Delaware law defines a neglected child as:

[A] child whose physical, mental or emotional health and well-being is threatened or impaired because of inadequate care and protection by the child's custodian, who has the ability and financial means to provide for the care but does not or will not provide adequate care; or a child who has been abused or neglected as defined by § 902 of Title 16. 10 Del.C. § 901(11).

Section 902 of Title 16 further defines abuse and neglect as:

[P]hysical injury by other than accidental means, injury resulting in a mental or emotional condition which is a result of abuse or neglect, negligent treatment, sexual abuse, maltreatment, mistreatment, nontreatment, exploitation or abandonment, of a child under the age of 18. (Emphasis added).

Sections of the Delaware Code, however, contain spiritual treatment exemptions which directly affect Christian Scientists. Specifically, the exemptions state:

No child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for that reason alone be considered a neglected child for purposes of this chapter.

10 Del.C. § 901(11) & 16 Del.C. § 907 (emphasis added). These exceptions reflect the intention of the Delaware General Assembly to provide a "safe harbor" for parents, like the Newmarks, to pursue their own religious beliefs. This is evident from the limited legislative history available on the subject. See 10 Del.C. § 901(11) & 16 Del.C. § 907; cf. A & P Stores v. Hannigan, Del.Supr., 367 A.2d 641, 643 (1976) (reference to legislative history appropriate where statutory language vague).

As originally enacted in 1972, one of the spiritual healing exemptions appeared in the child abuse reporting section of the Code, under the general heading of "Immunity from liability." The statute included both the spiritual treatment exemption and an immunity provision applicable to reporting child abuse. See 58 Del. Laws 154 (1972). The General Assembly later amended this section of the Code in 1976 and placed the spiritual treatment exemption under a separate heading entitled "Child Under Treatment By Spiritual Means Not Neglected." See 60 Del. Laws 494 (1976); 16 Del.C. § 907. The amendment reflects the legislature's apparent intent to clarify the meaning of the exemption and to magnify its importance. The accuracy of this conclusion is less in doubt after considering the legislative history of the other identical exemption.

The General Assembly also amended the meaning of a "neglected child" in the section of the Code dealing with the Family Court. See 10 Del.C. § 901(11). The statute originally defined a neglected child as one "whose custodian refuses to provide him with adequate care." 58 Del. Laws 114 (1971). In 1978, the legislature changed the definition of a "neglected child" to include the spiritual treatment exemption found in 16 Del.C. § 907. See 61 Del. Laws 334 (...