Note: This case revolves around the life and death of an infant child identified only as "Baby F" for privacy concerns. The matter is a human tragedy of immense proportions, hopefully keeping anonymity in this manner will avoid further inflaming this situation.
Summary: Baby F was an infant with significant medical difficulties. Baby F was removed from the home of his mother when the state alleged the child and his siblings were deprived. The state took Baby F into emergency medical custody and began deprived child proceedings. After 6 months in hospital, Baby F's condition deteriorated. His doctors received court permission to place Baby F on a ventilator. Baby F's doctors also noted his prognosis as 'grim' and requested permission to place him on a 'do not resuscitate' order. A hearing was held regarding the do not resuscitate order pursuant to 10A O.S. §1-3-102(C)(2) at which Baby F's doctors expressed the opinion that more was being doing more to Baby F than they were doing for him. Baby F was represented at the hearing by a guardian ad litem who argued against the change in code. The trial court agreed to the change in code status, but stayed its order so that Baby F's attorney could file an appeal. In the mean time Baby F's condition grew even more dire. Faced with the need to place Baby F in a medically induced coma and life support in order to maintain his life, the State requested an emergency hearing to remove Baby F from the deprived child action and return Baby F to the custody of his parents for purposes of their entry of a do not resuscitate order. This was done and Baby F died the next day.
Discussion: Because Baby F had already died, the Court first had to determine whether any decision it made would be moot. The judicial branch does not take up cases with circumstances that circumstances that result in a court's inability to grant effective relief, or where any opinion in that controversy would possess characteristics of a hypothetical or advisory opinion. However, Oklahoma recognizes two distinct exceptions to the mootness doctrine: 1) when an appeal presents a question of broad public interest, and 2) when the challenged event is capable of repetition, yet evading review. The Court ruled that the interpretation of 10A O.S. §1-3-102(C)(2) fell well within both exceptions to the mootness doctrine, and therefore proceeded.
The statute in question, reads:
In no case shall the Department [of Human Services] consent to a child’s abortion, sterilization, termination of life support or a "Do Not Resuscitate" order. The court may authorize the withdrawal of life-sustaining medical treatment or the denial of the administration of cardiopulmonary resuscitation on behalf of a child in the Department’s custody upon the written recommendation of a licensed physician, after notice to the parties and a hearing.
Baby F argued that the statute failed to provide substantive due process as guaranteed under the Fourteenth Amendment to United States Constitution and Article 2, §7 of the Oklahoma State Constitution. Baby F's argument rests on the lack of a burden of proof or findings of fact that the court is to make in the hearing set forth in the statute. The Court looked to state and federal cases decisions on the withdrawal of life support and found that the appropriate standard in the case of a hearing under 10A O.S. §1-3-102(C)(2) to be clear and convincing evidence. The Court looked further to the written legislative intent for Title 10A and found that the legislature intended that the paramount consideration in all proceedings under this title is the best interests of the child. Thus, the court found that the applicable standard is that the court must make a finding by clear and convincing evidence that the proposed action is in the best interests of the child.
Discussion: No doubt this case was difficult on all who dealt with it. Baby F's attorney was placed in the unenviable position of fighting a no-win battle. However, because an ambiguity existed in the law it was a battle that had to be fought. Because of this, courts across Oklahoma are now equipped to properly address this issue should it raise its head again.
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