Who decides child's fate?

Appeals court rules juvenile court, not Children's Division, responsible for end-of-life decisions

Sooner or later in this modern era, people are asked to make decisions affecting when a relative might die.

But who has that power if the decisions involve a sick child who has been placed in the custody of the State of Missouri's Children's Division?

A three-judge panel of the St. Louis-based Eastern District appeals court ruled Tuesday that the courts - not the division - have that duty.

"Simply put, the judiciary is vested with the responsibility to authorize end-of-life medical decisions on behalf of and in the best interests of children under its jurisdiction," Judge Lisa Van Amburg wrote for the three-judge panel. "The court may not abdicate or delegate that duty."

The ruling reversed a December 2014 ruling by St. Francois County Juvenile Court Judge Sandy Martinez, which had ordered the state Social Service's department's Children's Division to "designate the appropriate person" to make decisions regarding the care of a brain-dead 5-month-old girl.

As the appeals court cited the facts, the girl was born in August 2014 and taken into protective custody "due to Mother's heroin addiction."

The Children's Division placed the baby in foster care, "where she thrived until November 2014, when the Division placed her with Mother's cousin and her husband."

Just 27 days later, the baby was admitted to Children's Hospital "with severe neurological injury and signs of non-accidental trauma."

The appeals court's seven-page ruling doesn't discuss whether criminal charges were pursued in the Farmington-area case.

The ruling only dealt with how the baby's death was handled after doctors determined she was brain dead, noting all parties in the case - "Mother, Children's Division, the juvenile officer, and the guardian ad litem - agreed that Mother should make medical decisions for Baby, including signing a "Do Not Resuscitate' order and terminating life support."

But, after a hearing, the juvenile court declined to grant that authority directly to the mother and, instead, ordered the Children's Division to decide who should make those decisions.

With the division's permission, the mother went to the hospital and signed the necessary forms - and the baby died shortly afterward.

However, the division took the case to the appeals court, arguing it had lacked the authority to make extraordinary medical decisions on behalf of a child in its custody and that "such authority rests with the Juvenile Court."

Although the normal legal procedure after the baby died would have been for the court to declare the case as moot - that a decision would have no meaningful effect on people who weren't a party to the case - Van Amburg wrote courts "make an exception to mootness when the issue has general public interest and importance, is likely to recur, and will otherwise evade appellate review."

The division showed the court had several similar cases from around the state in recent years, where the court had made its own decision, directed the division to make it or had authorized a parent to make the end-of-life decisions.

"These (other) orders persuade us that this issue is of public importance and likely to recur," Van Amburg wrote, explaining the appeals court's decision to take the case.

The court agreed with the division that state law gives it the power to make "ordinary" health care decisions for children ordered into the state's care, but not "extraordinary decisions" like the ones in Baby J.A.B.'s case.

Citing previous court rulings, the three-judge panel also noted: "The juvenile code "is rooted in the concept (that) the state will supplant the natural parents when they fail in that role. ... (This) relationship exists between the child and the juvenile court.'"

In a footnote, Van Amburg's opinion for the court also cited the state's medical neglect law, which says: "Any circuit or associate circuit judge of this state shall have the authority to ensure that medical services are provided to the child when the child's health requires it."

And, with state law requiring decisions to be made "to promote best interests of the child," Van Amburg wrote, "Missouri law leaves no doubt that the court is the ultimate authority on that question."

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