FAMILY LAW:  Jurisdiction over DNR and DNI Cases – Turning off medical life support of child
DATE RENDERED:  3/30/2007

Cabinet motioned the family court for authority to consent to medical orders of DNI (do not intubate) and DNR (do not resuscitate) for three and a half year-old child. The child was in the temporary custody of the Cabinet, after an initial emergency custody placement due to his life-threatening injuries allegedly perpetrated by Mother. The child was physically located at Vanderbilt Hospital in Tennessee, where doctors diagnosed him as being in a “persistent vegetative state,” that he had no chance of a meaningful recovery and that continued use of life support was not medically necessary. The family court had already granted the Cabinet the authority to make medical decisions for the child, but specifically reserved the authority to discontinue life sustaining treatment. On this motion, the family court granted the Cabinet’s request for authority to consent to DNI and DNR medical orders.

Mother appealed, challenging both the family court’s jurisdiction over the issue and the Cabinet’s authority to usurp her parental right to direct the medical treatment of her son.

CA held that the family court did have jurisdiction over the issue, because KRS. 610.010(1)(e) grants a family court jurisdiction over any child “living or found within the county” who is determined to be dependent, neglected, or abused. The statute does not restrict the authority of the Cabinet to make medical decisions to only those children physically located within Kentucky.

Regarding the question whether the Cabinet’s authority to make medical decisions extends to removing life support over the objection of a parent (alleged to be perpetrator) whose parental rights have not been terminated, CA held that the family court must first terminate Mother’s parental rights before the Cabinet might possibly grant the authority to make such a decision. Being an issue of first impression in Kentucky, CA considered In re Interest of Tabatha R., 564 N.W.2d 598 (Neb. 1997) and the laws of other sister states which held that parental rights to a due process adjudication of termination are superior to the best interests of the child to not be resuscitated. Accordingly, CA remanded the case back to the family court for an adjudication of termination of parental rights, specifically finding that if Mother’s parental rights were terminated, the family court must then decide whether the Cabinet could be granted the authority to consent to DNI and DNR orders. Further, CA failed to provide any standards for the family court to make such a decision, but CA did provide that such an issue presents “many weighty and troubling issues involving serious bioethical concerns” and listed several questions that must be answered in order to reach a resolution.

Judge Moore Dissented in part, Concurred in part:

The child has a right to life. Giving due deference to the child’s inalienable right to life, there remains the unanswered question whether it is possible for the family court to make a determination of whether a child in state custody can be removed from life support.

Comment: Both the majority opinion and the dissent fairly begged for the Legislature to act on this question, and presumably, they were hoping that the Legislature would do so before the issue comes back to them again as it inevitably will if Mother’s parental rights are terminated.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

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