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Full Opinion
In re K.I., B.I. and D.M., Appellants.
District of Columbia Court of Appeals.
*450 William J. Driscoll, appointed by the court, for appellant B.I.
Lawrence H. Huebner, Centreville, VA, appointed by the court, for appellant D.M.
Karen Aileen Howze, Washington, DC, appointed by the court as guardian ad litem, for appellee K.I.
Kenneth H. Rosenau, Washington, DC, appointed by the court as medical guardian ad litem, for appellee K.I.
Al J. Gonzalez, appointed by the court, for C.R., filed a statement.
John M. Ferren, Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, and Mary T. Connelly, Assistant Corporation Counsel, filed a memorandum in lieu of brief for the District of Columbia.
Edward J. Krill and William J. Carter, Washington, DC, filed an amicus curiae brief for the Hospital for Sick Children; the Medical Society of the District of Columbia; the American Medical Association, through the A.M.A. State Medical Society Litigation Center; Professors Robert F. Drinan, S.J. and Kevin Quinn, S.J. of the Georgetown University Law Center; and Dr. John J. Lynch on behalf of the Metropolitan Washington Bioethics Network.
Before TERRY and REID, Associate Judges, and MACK, Senior Judge.
REID, Associate Judge:
This poignant matter involves a "do not resuscitate" order ("the DNR") entered by the Superior Court of the District of Columbia in the case of a neglected child, K.I., who, since birth approximately two years ago, has suffered continuously from several serious medical problems. Currently the child is in a comatose state and has been described as "neurologically devastated." The DNR, entered together with a comprehensive memorandum opinion by the trial judge, the Honorable Rafael Diaz, provides that: "[I]n the event of cardiac and/or pulmonary arrest, the following procedures for resuscitation shall represent the exclusive methods of intervention to be performed on [K.I.]: (1) Blow by Oxygen[;] (2) Bag-Mask Ventilation[; and] (3) Intra-muscular & Sub-cutaneous Medications."
Both B.I., K.I.'s biological mother, and D.M., K.I.'s putative father, noted appeals from the trial court's judgment. B.I. contends that (1) as a parent, she has the right to decide that K.I. should be resuscitated, and thus, the court erred by applying the best interests of the child standard, instead of the substituted judgment test (which would have allowed her to be the surrogate for the child), in deciding whether to issue the DNR; and (2) the court actually and improperly based its judgment on the preponderance of the evidence standard governing neglect proceedings rather than clear and convincing evidence. D.M., contrary to the position of B.I., supports the DNR but also complains that the trial court should have recognized his alleged right to parental privacy and parental autonomy.
We affirm because we conclude that (1) the trial court properly exercised its parens patriae authority in a case involving a prior neglect adjudication, and did not err in deciding to apply the best interests of the child rather than the substituted judgment standard; nor did it abuse its discretion in determining that issuance of the DNR was in the best interests of K.I.; (2) the trial court in fact based its judgment on the clear and convincing evidentiary standard; and (3) D.M. failed to assert any parental rights in the trial court to which he may be entitled; however, any such rights have not been terminated.
As an appendix to this opinion, we attach the extensive and thoughtful memorandum opinion and order of the trial judge.
FACTUAL SUMMARY
The record before us shows the following facts. On June 15, 1997, K.I. was born *451 prematurely at twenty-six weeks gestation. K.I.'s treating physician at the Hospital for Sick Children, Dr. Glenn Hornstein, who testified at the DNR hearing, stated that as a result of the premature birth, K.I. "developed BPD; or broncho pulmonary dysplasia," an abnormal condition of the lung cells which requires the child to use oxygen. In addition, K.I. suffered from "hemoglobin SC disease, which is similar [to] or it is sickle cell disease, just a mild variance"; "reactive airways disease," characterized by wheezing; and "gastroesophageal refl[u]x."
K.I. was released from the neonatal intensive care unit of the hospital in November 1997 to the biological mother, B.I. Beginning on November 24, 1997, for a period of five weeks, B.I. and K.I. stayed in an apartment in the Northwest sector of the District of Columbia with D.M., K.I.'s putative father who claims to be K.I.'s biological father.[1] K.I. was required to wear a heart monitor and an apnea monitor, take medication for the lungs, and use oxygen continuously. D.M. became concerned when B.I. would take K.I. off the oxygen and heart monitor and fail to give the child the lung medication. He also was troubled when he saw B.I. consume about three "40-ounce . . . very strong beer[s]" every day. He stated, at the August 26, 1998 neglect proceeding, that B.I. became intoxicated and would "start stumbling and falling and get very silent and have a nasty attitude." B.I. would "leave the house and leave [D.M.] there with the baby and come back a day later or two days later." On December 28, 1997, B.I. left D.M.'s home. She carried K.I. with her but failed to take the oxygen. D.M. alerted Howard University that K.I. was without her oxygen.
On December 29, 1997, in response to D.M.'s alert, Edmond Lahai, then an employee of the District of Columbia Department of Human Services, Children and Family Services Administration, searched for B.I. and K.I. When he located B.I., she initially denied that K.I. was with her. Mr. Lahai found two Metropolitan Police officers, and when he returned with the police to the abode where B.I. was staying, she admitted that K.I. was with her. K.I. had no oxygen and no monitors.
A neglect petition was filed against B.I. on December 31, 1997, under D.C.Code § 16-2301(9)(B), (C), and (F). The petition alleged that B.I. failed to: (1) provide K.I. with the requisite medical care; (2) schedule appointments for K.I., and (3) use K.I.'s monitoring devices or tube feeding procedure. Mr. Lahai testified, at the hearing on the neglect petition, that when he saw B.I. on December 29, 1997, she "slurred . . . her speech, . . . was incoherent[,] would not walk straight and . . . had a strong smell of alcohol."[2]
On December 29, 1997, Mr. Lahai took K.I. to Howard University Hospital. Later, K.I. was transferred to the Hospital for Sick Children. When K.I. began to experience respiratory distress at the Hospital for Sick Children and her condition worsened, Dr. Hornstein transferred the child to Children's Hospital on July 21, 1998. On that same day, K.I. went into cardiac arrest and suffered hypoxia, which *452 involves "a deprivation of oxygen to the cells and to the brain." Resuscitation efforts lasted for approximately twenty-five minutes. After the resuscitation efforts ceased, K.I.'s heart began to function again. However, the following day she experienced a seven-hour seizure which terminated only after the administration of "phenobarbital medication which . . . put K.I. into a pentobarb-like coma . . . to control the seizure."
On August 22, 1998, K.I. was returned to the Hospital for Sick Children, where she continued to experience severe medical problems. At the DNR hearing, Dr. Hornstein described the child's current condition no "purposeful movements," persistent "myochronic jerks" [involving] "shaking of [the] arms and legs." In addition, according to Dr. Hornstein, K.I. "withdraws to pain or . . . feels discomfort when people do interventions such as . . . when [he] attempted to place [an] IV in [K.I.'s] . . . hand, [K.I.] actually was grimacing and sort of writhing and moving around as if in discomfort."
Due to K.I.'s persistent medical problems, the trial court "held a hearing to determine the propriety of aggressive resuscitation efforts in the event that [K.I.] suffered pulmonary or respiratory arrest." Several persons testified, including experts in pediatric critical care, bioethics, and ethics as well as B.I. and D.M. B.I. opposed the DNR, asserting her right as a parent to make any decision concerning the nature of resuscitation efforts. D.M. agreed with the issuance of the DNR. The testimony taken at the DNR hearing is described in the attached copy of the trial court's memorandum opinion and order. Suffice it to say here that according to the trial court's memorandum opinion, signed on October 16, 1998, Dr. Gabriel Jacob Hauser, a professor of bioethics at Georgetown University, the Chief of Pediatric Critical Care Service at the Georgetown University Hospital, and the former chair of the hospital's ethics committee, testified that: "While [K.I.] is capable of feeling pain and discomfort, [the child] responds to no other stimuli; . . . is unable to react to [the] environment, cannot contemplate events taking place [in close proximity], and is incapable of giving or receiving love." Furthermore, "the possible resuscitation efforts that would be used on [K.I.] in the event of cardiac arrest or respiratory failure, assuming no DNR order is in place . . . . [w]ould entail substantial amounts of pain and discomfort."
The trial court concluded that because of its jurisdiction over a neglected child and its role as parens patriae, it had the authority to determine whether to issue the DNR, but that:
[T]he issuance of a DNR order must be predicated upon a finding by clear and convincing evidence both that it is in [K.I.'s] best interests to forego aggressive revival measures, and that [B.I.'s] refusal to consent to the issuance of the DNR order is unreasonably contrary to [K.I.'s] well-being.
In addition, the court determined that the best interests of the child rather than the substituted judgment standard applied "in cases involving minor respondents who have lacked, and will forever lack, the ability to express a preference regarding their course of medical treatment." Under the best interests of the child standard, the court was "satisfied by clear and convincing evidence, that upon balancing the burdens of continued life against the benefits and rewards of furthering life, [K.I.'s] best interests would be served by issuing a DNR order." In reaching its decision, the court recognized that B.I. "refused to co-operate with hospital staff regarding [K.I.'s] medical needs, had removed [K.I.] from [the] apnea and oxygen monitors, and had terminated [the] tube feeding procedure." Moreover, in light of the expert testimony provided at the DNR hearing, B.I.'s "sporadic history of attending to [K.I.'s] medical needs, and [B.I.'s] statements made to [the trial] court regarding her desire to keep [K.I.] alive at all costs," the trial court found B.I.'s "refusal to consent *453 to the entry of [the DNR to be] both unreasonable and contrary to [K.I.'s] best interests."
ANALYSIS
B.I. argues that, as a parent, she has the right to determine whether, and in what manner, K.I. should be resuscitated, and thus, the court erred by applying the best interests of the child instead of the substituted judgment standard in deciding whether to issue the DNR. She also maintains that the court based its judgment upon the preponderance of the evidence, the standard governing neglect proceedings, rather than clear and convincing evidence. K.I.'s guardian ad litem argues that (1) under the concept of parens patriae, the trial court had authority to issue the DNR; (2) the court properly used the best interests of the child standard in this neglect case without infringing on the rights of the parents; and (3) the appropriate clear and convincing standard was applied and the evidence was sufficient to support the court's judgment. D.M. asserts that the DNR should be upheld but "with reservation of parental rights of determination vested in the father, with the Court as arbiter only of parental differences of opinion and with the suggested ethics committee guidelines and mechanisms." K.I.'s medical guardian ad litem suggests that the trial court (1) had jurisdiction to enter the DNR under D.C.Code § 16-2320(5), see infra, and under its authority to order physical and mental examinations pursuant to § 16-2315; (2) properly adopted the clear and convincing evidentiary standard; and (3) did not err in concluding that the evidence was sufficient to support the issuance of the DNR.[3] Finally, the amici curiae, consisting of the Hospital for Sick Children where K.I. receives medical care, the Medical Society of the District of Columbia, the American Medical Association (through its State Medical Society Litigation Center), two professors of law from the Georgetown University Law Center, and the Metropolitan Washington Bioethics Network, also support the DNR because "the best interest of [K.I.] is served by the establishment of a reasonable plan of medical care which is premised on the very limited benefits available to [K.I.] from medical science."[4]
We review the trial court's legal determinations de novo and accept its findings of fact unless they are "clearly erroneous." In re J.D.W., 711 A.2d 826, 830 (D.C.1998) (citations omitted); D.C.Code § 17-305(a) (1997) ("When the case was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it.").
The Jurisdictional Issue
We turn first to the issue of the trial court's jurisdiction over this matter. We conclude that the trial court properly exercised jurisdiction over this matter because of the adjudication of K.I. as a neglected child; the trial court's role as parens patriae; the disagreement of the biological mother, B.I., and the putative father, D.M., as to whether K.I. should be resuscitated in the event of cardiac arrest or respiratory distress; the serious medical condition of K.I.; and the best interests of the child concept.
The Family Division of the Superior Court ("the Division") has jurisdiction *454 over cases pertaining to neglected children. In exercising its jurisdiction, the Division "may make such . . . disposition as is not prohibited by law and as the Division deems to be in the best interests of the child." D.C.Code § 16-2320(a)(5). See also In re E.H., 718 A.2d 162, 169 (D.C.1998); In re L.J.T., 608 A.2d 1213, 1215 (D.C.1992) (citations omitted); In re J.S.R., 374 A.2d 860, 863 (D.C.1977) (citations omitted). There is substantial evidence in the record showing that while K.I. was under the care of B.I., B.I. frequently consumed alcohol, took away K.I.'s required oxygen and monitors for apnea and the heart, and failed to provide adequate care for the child; thus, K.I. was properly adjudicated a neglected child.
Given the lack of appropriate attention and care by B.I., the trial court assumed its role as parens patriae "to promote [K.I.'s] best interest," In re S.K., 564 A.2d 1382, 1388 (D.C.1989) (citing In re Lem, 164 A.2d 345, 348 (D.C.1960) (other citation omitted)), and to provide necessary relief. In In re J.J.Z., 630 A.2d 186 (D.C.1993), we recognized that "[t]he court's role as parens patriae in neglect proceedings is well established in this jurisdiction. . . [and] allows [it] . . . to provide the relief necessary to protect the best interests of the child." Id. at 193 (citations omitted). The court's exercise of its discretion as parens patriae was essential since the District government took no position on the resuscitation issue and because B.I. and D.M. had a fundamental disagreement concerning resuscitation D.M. supported the need for the DNR, while B.I. opposed the DNR and favored the use of a variety of medical techniques, "including intubation, defibrillation (shock with electric paddles), and interosseous efforts at introducing medication into [K.I.'s] system" in an effort to reverse any cardiac arrest or respiratory distress.[5] B.I.'s goal is to keep K.I. "breathing." Moreover, in light of the fact that K.I. has been described as "neurologically devastated," feels and reacts to pain and discomfort but not to other stimuli, has no reaction to the surrounding environment, cannot give or receive love or express a view; and because some of the resuscitation techniques engender substantial pain and discomfort, we cannot fault the trial court's decision to issue the DNR based upon guidance from medical experts and consistent with the best interests of K.I., rather than abiding by B.I.'s wishes.
Although biological parents have a "fundamental liberty interest . . . in the care, custody, and management of their child [which] does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State[,]" Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.J., 666 A.2d 1, 11 (D.C.1995), that interest is not absolute since "[t]he paramount concern is the child's welfare and all other considerations, including the rights of a parent to a child, must yield to its best interests and well-being." Davis v. Jurney, 145 A.2d 846, 849 (D.C.1958); see also In re Baby Boy C., 630 A.2d 670, 682 (D.C.1993) ("While the Supreme Court has held that the rights of natural parents to bring up their children are subject to the protection of the Due Process Clause of the Fourteenth Amendment (and hence the Fifth Amendment), `these rights are not absolute, and must give way before the child's best interest'") (quoting In re A.B.E., 564 A.2d 751, 755 (D.C.1989) (citation and footnote omitted)). Although B.I. clearly has a liberty interest "in the care, custody and management of [K.I.]," Santosky, supra, 455 U.S. at 753, 102 S.Ct. 1388; see also Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), K.I.'s well-being takes precedence over B.I.'s parental rights. Davis, supra, 145 A.2d at 849.
*455 In short, the trial court did not err in exercising jurisdiction over the DNR issue rather than yielding to B.I.'s wishes as a parent.
The Substituted Judgment Versus the Best Interests of the Child Standard
B.I. insists that, after the trial court decided to exercise jurisdiction over the DNR matter, the court should have applied the substituted judgment rather than the best interests of the child standard in determining whether to issue the DNR. She states that "[t]he District of Columbia is a `substituted judgment' jurisdiction" and cites cases from this and other jurisdictions applying the substituted judgment standard. We conclude that the trial court did not err in rejecting the substituted judgment in favor of the best interests of the child standard.
Historically, the substituted judgment standard arose in estate cases involving incompetent persons, and generally has been invoked in cases of adults who at one time were competent but later became incompetent. See In re A.C., 573 A.2d 1235, 1249 (D.C.1990) (en banc); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417, 431 (1977). In applying the doctrine, "[t]he court, as surrogate for the incompetent, is to determine as best it can what choice [the] individual, if competent, would make with respect to medical procedures." In re Boyd, 403 A.2d 744, 750 (D.C.1979) (footnote omitted). "[T]he substituted judgment inquiry is primarily a subjective one," A.C., supra, 573 A.2d at 1249, and in both In re A.C. and In re Boyd, supra, we set forth factors to be followed in ascertaining the decision that the incompetent person would make. These factors include giving "the greatest weight . . . to the previously expressed wishes of the patient." In re A.C., supra, 573 A.2d at 1249-50. As we said in In re A.C.,
to determine the subjective desires of the patient, the court must consider the totality of the evidence, focusing particularly on written or oral directions concerning treatment to family, friends, and health-care professionals. The court should also take into account the patient's past decisions regarding medical treatment, and attempt to ascertain from what is known about the patient's value system, goals, and desires what the patient would decide if competent.
Id. at 1251 (citations omitted).
In In re Barry, 445 So.2d 365, 371 (Fla. App. 2 Dist.1984), the court noted that: "The [substituted judgment] doctrine has been helpful in the case of adults, but it is difficult to apply to children or young adults." Indeed, most of the substituted judgment cases cited by B.I., including those from this jurisdiction, In re A.C., supra, and In re Boyd, supra, concerned adults. See Mack v. Mack, 329 Md. 188, 618 A.2d 744 (1993); In re Estate of Longeway, 133 Ill.2d 33, 139 Ill.Dec. 780, 549 N.E.2d 292 (1990); Superintendent of Belchertown, supra. Moreover, unlike K.I.'s situation, in one of the cases cited by B.I. which involved a minor, there was no neglect adjudication, and both parents agreed to petition the court for approval to remove life support systems. See In re Barry, supra. In the other case regarding a child, Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982), the court took into consideration the best interests of the child in reaching its conclusion. Id. at 609 ("[T]he Juvenile Court judge applied the substituted judgment test and examined the best interests of the child.").
To attempt to apply the substituted judgment test in this case where B.I. and D.M. disagree; where K.I., a child born in June 1997, has never been healthy; has issued no oral or written directives as to medical matters or formed any opinions about anything, let alone a value system; not only would be impossible, but also would violate the spirit of the substituted judgment standard, the purpose of which is to implement the wishes of the incompetent individual. Consequently, we hold, consistent with the trial court's memorandum *456 opinion, that "in cases involving minor respondents who have lacked, and will forever lack, the ability to express a preference regarding their course of medical treatment," and where the parents do not speak with the same voice but disagree as to the proper course of action, the best interests of the child standard shall be applied to determine whether to issue a DNR.
The Evidentiary Standard
Contrary to B.I.'s argument, we are satisfied that the trial court applied the clear and convincing evidence test rather than relying primarily upon factual findings from the neglect adjudication which were made in accordance with the preponderance of the evidence standard. For the reasons stated by the trial judge, we hold that the standard of proof required for the issuance of a DNR in the best interests of a child is clear and convincing evidence.
In this case, the trial court specifically stated that "the issuance of [its] DNR order must be predicated upon a finding by clear and convincing evidence both that it is in [K.I.'s] best interests to forego aggressive revival measures, and that [B.I.'s] refusal to consent to the issuance of the DNR order is unreasonably contrary to [K.I.'s] well-being." Further, the court "[was] satisfied, by clear and convincing evidence, that upon balancing the burdens of continued life against the benefits and rewards of furthering life, [K.I.'s] best interests will be served by issuing a DNR order." Thus, the main focus of the court was on the medical condition of K.I., the impact that aggressive and invasive resuscitation procedures would have on K.I. such as the inducement of pain, discomfort and additional neurological damage. The court did reference the findings of neglect relating to B.I. her drinking and failure to keep K.I. on oxygen and required monitors. In concluding that B.I.'s "refusal to consent to the entry of [the DNR] is both unreasonable and contrary to [K.I.'s] best interests," however, the court emphasized B.I.'s lack of cooperation with the hospital staff and her singular goal of keeping K.I. breathing, as evidenced by her statement, "any amount of pain is worth it as long as [K.I.] breathes."
In short, in exercising its role as parens patriae and guided by testimony of several medical, bioethics, and ethics experts in this case where there was a prior adjudication of neglect, the trial court, carefully and thoughtfully, determined by clear and convincing evidence that it was in K.I.'s best interests to avoid use of aggressive resuscitation efforts which cause pain and discomfort. "`Application of the best interests of the child standard in a particular case presents one of the heaviest burdens that can be placed on a trial judge . . . . In reviewing this difficult decision, we will reverse only for an abuse of discretion.'" In re Baby Boy C., supra, 630 A.2d at 683 (quoting In re D.I.S., 494 A.2d 1316, 1323 (D.C.1985) (citations omitted)). We see no abuse of discretion in this matter.
Consequently, for the foregoing reasons, we affirm the judgment of the trial court.[6]
So ordered.
APPENDIX
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA FAMILY DIVISION
INTRAFAMILY AND NEGLECT BRANCH
*457 In the Matter of K.I., Respondent.N-1639-97; SF-207792
Hon. Rafael Diaz
MEMORANDUM OPINION AND ORDER
This matter comes before the Court for consideration of the medical guardian ad litem's request for the issuance of a "Do Not Resuscitate" ("DNR") order to prevent resuscitation of respondent, K.I., a one year old infant who has been adjudicated a neglected child. The mother and one of two putative fathers oppose the issuance of a DNR order.
I
The condition of respondent, K.I., is medically fragile. Born premature at twenty-six weeks gestation, respondent suffered from cerebral palsy and sepsis, among other ailments. As a result of these conditions, K.I. underwent a cardiac arrest on July 23, 1998, and was without a heartbeat for approximately twenty-five (25) minutes. While efforts to resuscitate were successful in restoring circulation and respiration, the event caused prolonged hypoxia and swelling of the brain tissue. This in turn led to an eight (8) hour seizure from which K.I. was relieved by being drugged into a comatose state. Presently, K.I.'s condition is described as "neurologically devastated." K.I.'s physicians agree that K.I.'s chances of regaining cognitive ability are virtually nonexistent, and any extraordinary attempts towards resuscitation are likely to be highly invasive and painful. The physicians have, therefore, recommended that if K.I. suffers respiratory or pulmonary failure, no aggressive efforts be made to resuscitate K.I. Respondent's mother, Ms. B.I., as well as her putative father, Mr. C.R. oppose the issuance of a DNR order.
To determine whether or not a DNR order should issue in this matter, the Court will review the factual and procedural history of the case, consider the Court's power to issue a DNR order over the objection of a biological mother of a respondent who has been adjudicated neglected, discuss the appropriate standard for the issuance of such an order, then evaluate whether it is in K.I.'s best interest to be resuscitated by extraordinary means should K.I. suffer cardiac arrest or respiratory failure.
II
The factual and procedural background of this matter begins on December 31, 1997, when a neglect petition was filed, claiming that K.I. was neglected pursuant to D.C.Code § 16-2301(9)(B), (C) & (F). Particularly, it was alleged that K.I. was born premature with many medical needs. The petition states that upon the respondent's medical discharge from the hospital, Ms. B.I. failed to follow through with her medical care and other needs. Ms. B.I. refused to cooperate with hospital staff regarding scheduled appointments, took K.I. off medical monitoring devices, including apnea and oxygen monitors, and terminated K.I.'s tube feeding procedure. Finally, the petition details how social workers, with the assistance of Metropolitan Police Officers, entered Ms. B.I.'s abode on December 29, 1997, and found K.I. therein, suffering from a high fever and in respiratory distress. K.I. was rushed to the hospital and treated for ailments.
After a fact-finding hearing on August 26, 1998, the Court determined, by the preponderance of the evidence, that K.I. had been neglected pursuant to D.C.Code § 16-2301(9)(B), (C) & (F). On the same date, the Court held a disposition hearing in the matter and committed K.I. to the Department of Human Services.
On August 18, 1998, approximately one week prior to the neglect adjudication, the medical guardian ad litem, Kenneth Rosenau, *458 had filed a report detailing K.I.'s current medical condition and future prognosis. Mr. Rosenau requested the issuance of a DNR order. The Court scheduled an evidentiary hearing and issued a "show cause" order on August 27, 1998, directing the mother,[1] as well as all other parties, to appear before the Court on September 4, 1998, and show cause why a DNR order should not be issued.
On September 4, 1998, the Court held a hearing to determine the propriety of aggressive resuscitation efforts in the event that K.I. suffered pulmonary or respiratory arrest. All parties were present for the hearing, including the mother, and respondent's putative fathers, D.M. and C.R.[2] At the outset of the hearing, the Court surveyed the parties regarding their positions on the issuance of the DNR order. Respondent's guardian ad litem, medical guardian ad litem, and Mr. D.M. were in favor of a DNR order. However, such action was opposed by Ms. B.I. and Mr. C.R.[3]
Six of the seven witnesses who testified at the hearing were called by the medical guardian ad litem. The seventh witness was respondent's mother who testified on her own behalf. Dr. Gabriel Jacob Hauser, the first witness, is the Chief of Pediatric Critical Care Service at the Georgetown University Hospital and has formerly served as chairman of the hospital ethics committee.[4] He is currently a professor of bioethics at Georgetown University. Dr. Hauser was accepted by the Court, without objection, as an expert in the areas of pediatric medicine and bioethics.
Doctor Hauser testified that K.I. is currently not dependent on significant life-support measures K.I. is able to breathe on K.I.'s own, and K.I.'s heart beats independently[5] but he described K.I. as neurologically devastated. While K.I. is capable of feeling pain and discomfort, K.I. responds to no other stimuli; K.I. is unable to react to her environment, cannot comprehend events taking place around K.I., and is incapable of giving or receiving love.[6] The doctor described the possible resuscitation efforts that would be used on K.I. in the event of cardiac arrest or respiratory failure, assuming no DNR order is in place. According to the doctor, many of the procedures would entail substantial amounts of pain and discomfort.
Dr. Hauser opined that if K.I. suffers a cardiac arrest or respiratory failure, no aggressive efforts at resuscitation should be made. This conclusion was reached by weighing the burdens of resuscitation procedures (pain and discomfort) against the benefits of successfully restarting K.I.'s heart or respiration. He further concluded K.I. will never regain normal neurological functioning, and will at best maintain K.I.'s current cognitive status. Further, while the pain endured in resuscitation is likely to be great, the utility of such efforts is dubious. Resuscitation is unlikely to be successful, and, even if K.I. is revived, K.I. will likely emerge from the experience more neurologically damaged than at present. *459 Accordingly, Dr. Hauser recommended the Court issue a DNR order.
Dr. Glenn Hornstein, respondent's treating physician at Washington Hospital for Sick Children, was the next witness. Dr. Hornstein confirmed the grim portrait previously painted of K.I.'s condition and prognosis, stating that K.I. lives in a crib with no purposeful movement, fails to react when picked up, and must be repositioned every few hours to avoid developing bedsores. The doctor also confirmed K.I.'s ability to feel pain and sense discomfort, noting that he observed facial grimacing while inserting an intra-venous (hereinafter "I.V.") line into K.I.'s hand.
Dr. Hornstein detailed the various resuscitation techniques likely to be employed should K.I.'s condition result in cardiac arrest or respiratory failure. If K.I.'s heart stopped beating, Cardiopulmonary Resuscitation ("CPR") would be performed. This procedure involves manual chest compressions by placing substantial pressure on the sternum to compress the heart muscle. Even if conducted flawlessly, fracturing of the ribs is likely to result, and the possibility of puncturing the lungs, spleen or liver is great. Further, resuscitation efforts generally include the placing of I.V. lines in order to introduce medication into the system. When, however, attempts at placing lines intra-venously fail, interosseous efforts are undertaken. This involves drilling a line directly into the patient's bone marrow, which in and of itself is a painful and discomforting experience. Further, if respiration ceases, intubation, or the placing of a tube into the trachea in order to pump oxygen into the lungs, is likely to be performed. Dr. Hornstein completed his testimony by stating that K.I.'s prognosis is poor, and K.I. appears unlikely to have much of a chance making gains toward improving K.I.'s quality of life. Accordingly, the doctor suggested a DNR order should be offered as an option in this case.
The Court heard testimony from three additional expert witnesses Dr. Noreen Crain, a fellow in the Critical Care Unit at Children's Hospital, Reverend Jeanne Brienneis, director of a northern Virginia hospice and expert in the field of bioethics, and Dr. Tomas Jose Silber, a physician at Children's Hospital and chairman of the hospital's office of ethics. All three experts agreed that based on the facts and circumstances of the instant matter, and upon weighing the burdens of aggressive resuscitation efforts against the benefits of prolonged life for K.I., the Court should order a DNR directive entered into respondent's medical charts. As offered poignantly by Dr. Silber, since K.I. has no understanding, and never will, of the benevolent intent behind resuscitation efforts and why pain is being administered, aggressive efforts to revive K.I. would amount to "therapeutic torture." Moreover, D.M., a putative father, agreed with the experts that a DNR order should issue from the Court. According to him, all K.I. does is "lay there and shake."
Ms. B.I., respondent's mother, opposed the DNR order.[7] The mother expressed her desire for doctors to use all efforts available to revive K.I. should K.I. encounter cardiac arrest or respiratory failure. Ms. B.I. did not, however, want CPR performed on K.I., based on the testimony presented by earlier experts that such procedure is likely to be painful and could result in fractured ribs. Ms. B.I. was in favor of doctors performing all other techniques, including intubation, defibrillation (shock with electric paddles), and interosseous efforts at introducing medication into K.I.'s system. Such wishes are not easily reconciled and cause the Court to question Ms. B.I.'s ability to understand the nature of K.I.'s plight as well as her comprehension of the testimony elicited at the hearing. When questioned regarding her expectations of K.I.'s future quality of life, Ms. B.I. testified, "I know K.I. can make it . . . It only matters if K.I. is *460 breathing . . . There's a whole lot of them [like K.I.] out there." When cross-examined by the medical guardian ad litem regarding the benefits to burdens notion proffered by the testifying experts, Ms. B.I. maintained, "any amount of pain is worth it as long as K.I. breathes." The mother's opposition to the issuance of the DNR order raises the central issue in this case.
II
The principal question is whether this Court, having acquired jurisdiction over a child determined to be neglected, may issue a DNR order over the objection of the respondent's biological mother. This question seems to be one of first impression in this jurisdiction.[8] Courts in other jurisdictions have determined closely related issues, such as the power of the court to issue a DNR order in the case of a neglected child whose parents were either unavailable to consent to such treatment or were unopposed to its issuance. Courts in other jurisdictions have also determined their ability to direct the issuance of a DNR order over the objection of loving and caring parents. However, it appears that opinions from other jurisdictions provide little guidance on the exact issue presented by this case.
Generally, when deciding whether to issue a DNR order in the case of a young child, the wishes of the natural parents are controlling. If the parents believe such an order should be entered affecting their child's medical care, and such action is consistent with medical advice, doctors follow the parental instruction. In such an instance, the need for judicial intervention is most often unnecessary.[9] When, however, the young patient has been found by the court to have been neglected by his or her parents, the situation is complicated, and the direction provided by the parents, if any, may not be in the best interests of the child. In such a situation, resort to the judiciary is appropriate.
The rule is well established that a patient has the right to refuse medical treatment, including life-sustaining measures. See Tune v. Walter Reed Army Medical Hospital, 602 F.Supp. 1452 (D.D.C.1985); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976), cert denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). Included within this notion is the right to determine for one-self what resuscitation efforts, if any, are to be performed should heartbeat and/or respiration cease. These rights are not lost merely because a patient is incompetent. Quinlan, 355 A.2d at 664; See also In re Conroy, 98 N.J. 321, 486 A.2d 1209, 1229 (1985)(stating that individuals, such as infants, mentally retarded people, and permanently comatose persons, retain their right to self-determination even though they are unable to speak for themselves on life-and-death issues concerning their medical care). When determining whether to forego extraordinary resuscitation efforts in the case of an infant, incompetent by her tender years, the decision is rightfully exercised by the child's parents or legal guardian, as the law recognizes that "natural bonds of affection lead parents to act in the best interests of their children." Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979)(Stewart, J., concurring); see also In re L.H.R., 253 Ga. 439, 321 S.E.2d 716, 722 (1984).
Situations may arise, however, i