Newmark v. Williams

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 *1110 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 New-marks 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 *1111 Colin’s intestines. The doctor suggested immediate surgery and, again, the New-marks 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:

[Pjhysical 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) *1112 (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 (1978). The amendment clearly reflects the General Assembly’s intent to provide protection for parents who treat their children through statutorily defined spiritual means. Accordingly, our ruling from the bench noted that the spiritual treatment exemptions reflect, in part, “[t]he policy of this State with respect to the quality of life” a desperately ill child might have in the caring and loving atmosphere of his or her family, versus the sterile hospital environment demanded by physicians seeking to prescribe excruciating, and life threatening, treatments of doubtful efficacy.

With the considerable reflection that time has now permitted us in examining these issues, we recognize the possibility that the spiritual treatment exemptions 4 may violate the ban against the establishment of an official State religion guaranteed under both the Federal 5 and Delaware Constitutions. 6 Clearly, in both reality and practical effect, the language providing an exemption only to those individuals practicing “in accordance” with the “practices of a recognized church or religious denomination by a duly accredited practitioner thereof” is intended for the principal benefit of Christian Scientists. 7 Our concern is *1113 that it possibly forces us to impermissibly determine the validity of an individual’s own religious beliefs. 8

*1114 Neither party challenged the constitutionality of the spiritual treatment exemptions in either the Family Court or on appeal. Thus, except to recognize that the issue is far more complicated than was originally presented to us, we must leave such questions for another day.

III.

Addressing the facts of this case, we turn to the novel legal question whether, under any circumstances, Colin was a neglected child when his parents refused to accede to medical demands that he receive a radical form of chemotherapy having only a forty percent chance of success. Other jurisdictions differ in their approaches to this important and intensely personal issue. Some courts resolved the question on an ad hoc basis, without a formal test, concluding that a child was neglected if the parents refused to administer chemotherapy in a life threatening situation. See In re Willmann, 24 Ohio App.3d 191, 199, 493 N.E.2d 1380, 1389 (1986); In re Hamilton, 657 S.W.2d 425, 429 (Tenn.Ct.App.1983). The California Court of Appeals in In re Ted B., 189 Cal.App.3d 996, 235 Cal.Rptr. 22 (1987), employed the best interests test to determine if a child was neglected when his parents refused to permit treatment of his cancer with “mild” chemotherapy following more intense treatment. Id. at 1006, 235 Cal.Rptr. at 27. Ted B. weighed the gravity, or potential gravity of the child’s illness, the treating physician’s medical evaluation of the course of care, the riskiness of the treatment and the child’s “expressed preferences” to ultimately judge whether his parents’ decision to withhold chemotherapy served his “best interests.” Id. at 1005, 235 Cal.Rptr. at 27. Finally, the Supreme Judicial Court of Massachusetts, in Custody Of A Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978), utilized a tripartite balancing test which weighed the interests of the parents, their child and the State to determine whether a child was neglected when his parents refused to treat his leukemia with non-invasive chemotherapy. Id. at 747, 379 N.E.2d at 1061-62. See also Note, State Intrusion into Family Affairs: Justifications and Limitations, 26 Stan.L. Rev. 1383, 1383-84 (1974) (written by Bas-kin).

In the present case, the Family Court did not undertake any formal interest analysis in deciding that Colin was a neglected child under Delaware law. See Williams v. Newmark, Del.Fam.Ct., No. CN90-9235, Conner, J., slip op. (Sept. 12, 1990). Instead, the trial court used the same ad hoc approach as the Ohio and Tennessee courts respectively employed in Willmann and Hamilton. Id. Specifically, the Family Court rejected the Newmarks’ proposal to treat Colin by spiritual means under the care of a Christian Science practitioner. The trial judge considered spiritual treat *1115 ment an inadequate alternative to chemotherapy. Id. at 8. The court therefore concluded that “[without any other factually supported alternative” the Newmarks’ decision to refuse chemotherapy “constitute[d] inadequate parental care for their son who is in a life threatening situation and eonstitute[d] neglect as defined in the Delaware statute.” Id. at 9, 11.

This Court reviews the trial court’s application of legal precepts involving issues of law de novo. See Fiduciary Trust Co. v. Fiduciary Trust Co., Del.Supr., 445 A.2d 927, 936 (1982). While we do not recognize the primacy of any one of the tests employed in other jurisdictions, we find that the trial court erred in not explicitly considering the competing interests at stake. The Family Court failed to consider the special importance and primacy of the familial relationship, including the autonomy of parental decision making authority over minor children. The trial court also did not consider the gravity of Colin’s illness in conjunction with the invasiveness of the proposed chemotherapy and the considerable likelihood of failure. These factors, when applied to the facts of this case, strongly militate against governmental intrusion.

A.

Any balancing test must begin with the parental interest. The primacy of the familial unit is a bedrock principle of law. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (citing cases); Betty J.B. v. Division of Social Services, Del.Supr., 460 A.2d 528, 532 (1983) (“State and society in general have a fundamental interest in preserving and protecting the family unit.”); Cf. Petitioner F. v. Respondent R., Del.Supr., 430 A.2d 1075, 1080 (1981). We have repeatedly emphasized that the parental right is sacred which can be invaded for only the most compelling reasons. See Matter of Burns, Del.Supr., 519 A.2d 638, 645 (1986); Daber v. Division of Child Protective Services, Del. Supr., 470 A.2d 723, 726 (1983). Indeed, the Delaware General Assembly has stated that the preservation of the family is “fundamental to the maintenance of a stable, democratic society....” 10 Del.C. § 902(a); see 16 Del.C. § 901 (abuse, neglect reporting statute designed to ensure strength of “parental care.”)

Courts have also recognized that the essential element of preserving the integrity of the family is maintaining the autonomy of the parent-child relationship. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, reh’g denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972) (“primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). In Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, reh’g denied, 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090 (1944), the United States Supreme Court announced:

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Id.

Parental autonomy to care for children free from government interference therefore satisfies a child’s need for continuity and thus ensures his or her psychological and physical well-being. See Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L.J. 645, 649 & n. 13 & 14 (1977); Baskin, supra, at 1386.

Parental authority to make fundamental decisions for minor children is also a recognized common law principle. A doctor commits the tort of battery if he or she performs an operation under normal circumstances without the informed consent of the patient. See W. PROSSER & W. KEETON, THE LAW OF TORTS § 18 at 114 (5th ed. 1984). Tort law also assumes that a child does not have the capacity to consent to an operation in most situations. Id. § 118 at 114-115. Thus, the common *1116 law recognizes that the only party capable of authorizing medical treatment for a minor in “normal” circumstances is usually his parent or guardian. Id. § 118 at 115.

Courts, therefore, give great deference to parental decisions involving minor children. In many circumstances the State simply is not an adequate surrogate for the judgment of a loving, nurturing parent. See Baskin, supra, at 1386. As one commentator aptly recognized, the “law does not have the capacity to supervise the delicately complex interpersonal bonds between parent and child.” Goldstein, supra, at 650.

B.

We also recognize that parental autonomy over minor children is not an absolute right. Clearly, the State can intervene in the parent-child relationship where the health and safety of the child and the public at large are in jeopardy. See Prince, 321 U.S. at 166-67, 64 S.Ct. at 442; Matter of Burns 519 A.2d at 645; Daber, 470 A.2d at 726; In re D.L.E., 645 P.2d 271, 276 (Colo.1982) (en bane); State v. Perricone, 37 N.J. 463, 474, 181 A.2d 751, 757 (1962). Accordingly, the State, under the doctrine of parens patriae, has a special duty to protect its youngest and most helpless citizens.

The parens patriae doctrine is a derivation of the common law giving the State the right to act on behalf of minor children in certain property and marital disputes. See In Re Hudson, 13 Wash.2d 673, 126 P.2d 765, 777 (1942). More recently, courts have accepted the doctrine of parens patri-ae to justify State intervention in cases of parental religious objections to medical treatment of minor children’s life threatening conditions. See In re Application of L.I. Jewish Med. Ctr., 147 Misc.2d 724, 729, 557 N.Y.S.2d 239, 243 (N.Y.Sup.Ct.1990); In re Eric B., 189 Cal.App.3d at 1003, 235 Cal.Rptr. at 25; In re Willmann, 24 Ohio App.3d at 198, 493 N.E.2d at 1388; In re Hamilton, 657 S.W.2d at 429; Custody Of A Minor, 375 Mass. at 754-56, 379 N.E.2d at 1066-67. The Supreme Court of the United States succinctly described the parens patriae concept in Prince, 321 U.S. at 170, 64 S.Ct. at 444. The Court found that parental autonomy, under the guise of the parents’ religious freedom, was not unlimited. Id. Rather, the Court held:

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Id.

The basic principle underlying the par-ens patriae doctrine is the State’s interest in preserving human life. See Cruzan v. Director, Missouri Dept. of Health, — U.S. -, 110 S.Ct. 2841, 2853, 111 L.Ed.2d 224 (1990) (State may "assert an unqualified interest in the preservation of human life....”); Custody Of A Minor, 375 Mass at 755, 379 N.E.2d at 1066. Yet this interest and the parens patriae doctrine are not unlimited. In its recent Cruzan opinion, the Supreme Court of the United States announced that the state’s interest in preserving life must “be weighed against the constitutionally protected interests of the individual.” — U.S. -, 110 S.Ct. 2841, 2853 (1990).

The individual interests at stake here include both the Newmarks’ right to decide what is best for Colin and Colin’s own right to life. We have already considered the Newmarks’ stake in this case and its relationship to the parens patriae doctrine. The resolution of the issues here, however, is incomplete without a discussion of Colin’s interests.

C.

All children indisputably have the right to enjoy a full and healthy life. Colin, a three year old boy, unfortunately lacked the ability to reach a detached, informed decision regarding his own medical care. 9 *1117 This Court must therefore substitute its own objective judgment to determine what is in Colin’s “best interests.” See In re Ted B., 189 Cal.App.3d at 1005, 235 Cal.Rptr. at 27; Custody Of A Minor, 375 Mass. at 753, 379 N.E.2d at 1065.

There are two basic inquiries when a dispute involves chemotherapy treatment over parents’ religious objections. The court must first consider the effectiveness of the treatment and determine the child’s chances of survival with and without medical care. See In re Ted B., 189 Cal.App.3d at 1005, 235 Cal.Rptr. at 27; Custody of a Minor, 375 Mass. at 753-54, 379 N.E.2d at 1065. The court must then consider the nature of the treatments and their effect on the child. Id.

The “best interests” analysis is hardly unique or novel. Federal and State courts have unhesitatingly authorized medical treatment over a parent’s religious objection when the treatment is relatively innocuous in comparison to the dangers of withholding medical care. See Application of President & Directors of Georgetown College, Inc., 331 F.2d 1000, 1007 (D.C.Cir.), reh’g denied, 331 F.2d 1010, cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964) (better than 50% chance of saving life with blood transfusion); Jehovah’s Witnesses In State of Washington v. King Co. Hospital Unit No. 1, 278 F.Supp. 488, 503 (W.D.Wash.1967), aff'd, 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158, reh’g denied, 391 U.S. 961, 88 S.Ct. 1844, 20 L.Ed.2d 874 (1968) (blood transfusion authorized where “safe” and necessary); In re Cabrera, 381 Pa. Super 100, 101-02, 552 A.2d 1114, 1115 (1989) (blood transfusion 90% effective to treat illness); In re D.L.E., 645 P.2d 271, 275 (Colo.1982) (authorization of medication to prevent epileptic seizures); Muhlenberg Hospital v. Patterson, 128 N.J.Super. 498, 503, 320 A.2d 518, 521 (Law Div.1974) (authorizing blood transfusion); New Jersey v. Perricone, 37 N.J. 463, 477, 181 A.2d 751, 759, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962) (same); People v. Labrenz, 411 Ill. 618, 626, 104 N.E.2d 769, 774 (1952) (same). Accordingly, courts are reluctant to authorize medical care over parental objection when the child is not suffering a life threatening or potential life threatening illness. See In re Green, 448 Pa. 338, 348-49, 292 A.2d 387, 392 (1972) (court refused to authorize corrective spine surgery on minor); In re Seiferth, 309 N.Y. 80, 85-86, 127 N.E.2d 820, 823 (1955) (no authorization to correct cleft palate and harelip on fourteen year old minor); but cf. In re Sampson, 65 Misc.2d 658, 675-76, 317 N.Y.S.2d 641, 657-58 (N.Y.Fam.Ct.1970), aff 'd, 29 N.Y.2d 900, 328 N.Y.S.2d 686, 278 N.E.2d 918 (1972) (authorizing corrective surgery on minor where parents’ only objection was blood transfusion).

The linchpin in all cases discussing the “best interests of a child”, when a parent refuses to authorize medical care, is an evaluation of the risk of the procedure compared to its potential success. This analysis is consistent with the principle that State intervention in the parent-child relationship is only justifiable under compelling conditions. See Matter of Burns, 519 A.2d at 645; Daber, 470 A.2d at 726. The State’s interest in forcing a minor to undergo medical care diminishes as the risks of treatment increase and its benefits decrease.

The New Jersey Supreme Court implicitly recognized this principle in the seminal Quinlan case decided over a decade ago. See In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976). In deciding that a legal custodian could authorize the *1118 termination of artificial life support in certain circumstances, Quinlan noted that:

[T]he State’s interest contra weakens and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual’s rights overcome the State interest. It is for that reason that we believe Karen’s choice, if she were competent to make it, would be vindicated by the law. Her prognosis is extremely poor, — she will never resume cognitive life. And the bodily invasion is very great, — she requires 24 hour intensive nursing care, antibiotics, the assistance of a respirator, a catheter and feeding tube. Id. at 41, 355 A.2d at 664.

Similarly, most courts which have authorized medical treatment on a minor over parental objection have also noted that a different situation exists when the treatment is inherently dangerous and invasive. See, e.g., In re Cabrera, 381 Pa.Super. at 111,