Case Law Development: Maine Health and Human Services Improperly Made End-of-Life decision for Child in Foster Care Absent Hearing to Air Parental Objections

In a unanimous ruling, the Main Supreme Court ruled that the Maine Department of Health and Human Services should not have made an end-of-life decision for a baby boy in foster care without a court hearing to air the parents' objections.  The agency had placed the child in a foster home and obtained a “do-not-resuscitate” order based on the opinion of doctors who concluded the child was brain injured and would not recover.  The injuries were allegedly suffered when the child was shaken by his father.

The court said that due process requires that parents be afforded the same procedural protections before approval of a do-not-resuscitate order (DNR) for their child as they are afforded prior to the termination of their parental rights.  When either or both parents, whose parental rights have not been terminated, object to a DNR for their child who is in the Department's custody, “the court must provide reasonable notice for a hearing, hold the hearing, and determine, by clear and convincing evidence, whether it is in the best interest of the child to give the Department the authority to issue a DNR.  As part of its assessment, the court should, at a minimum, consider: (1) the child's quality of life, including whether the child is in a persistent vegetative state; (2) what life‑sustaining treatment would be necessary; (3) the degree of pain the life‑sustaining treatment or the withholding of life-sustaining treatment would cause the child; (4) the long-term prognosis for the child; (5) the opinions of medical experts in regard to the foregoing considerations; and (6) the benefit or detriment to the child if the parents participate in the decision making.”  A copy of the Maine Supreme Court opinion In Re Matthew W. may be obtained by clicking here (last visited June 14, 2006, reo).