INTRODUCTION


A recent case in Dallas involving a child's need for medical treatment prompted an interest in the question of legal responsibilities of the state and parents' rights to make decisions for their children. Although the parents in this case apparently had the best interest of the child in mind, Texas Child Protective Services took custody of the child until the question of appropriate medical treatment was resolved. The challenge is to protect parents' rights and the sanctity of the parent-child relationship and at the same time provide the child with needed medical attention. A delicate balancing act exists between what parents can do without interference from governmental authorities and the state's interest in protecting the child.

Much of the history surrounding this issue involves constitutional questions of freedom of religion. Many cases have been brought before the courts when medical treatment goes against the religious beliefs of parents and state authorities have intervened. This pathfinder will explore these issues.





PRIMARY SOURCES


UNITED STATES CONSTITUTION

First and Fourteenth Amendments




SUPREME COURT CASES

Meyer v. Nebraska, 262 U.S. 390 (1923). Discusses Constitutional right of states to protect its citizens provided by the Fourteenth Amendment and that no state shall deprive any citizen without due process of law.

Prince v. Massachusetts, 321 U.S. 158 (1944). Covers several Constitutional issues pertaining to the First and Fourteenth Amendments. Discusses religion and states' authority in matters of welfare of children.

Wisconsin v. Yoder, 406 U.S. 205 (1972). Discusses constitutional issues in the First and Fourteenth Amendments concerning religious beliefs, states' rights and parents'rights.



CODE OF FEDERAL REGULATIONS

45 C.F.R. 1340 (1996). The Administration For Children, Youth and Families, Child Abuse and Neglect Prevention and Treatment Program.



TEXAS CONSTITUTION

Article l, Section 6


TEXAS FAMILY CODE

V.T.C.A., Family Code @ 156.006(b)(1), Temporary Orders
Order is necessary because the child's present environment may endanger the child's physical health or significantly impair the child's emotional development.

V.T.C.A., Family Code @ 262.201, Full Advisory Hearing; Finding of the Court
Discusses conditions under which child will be returned to parent.



SECONDARY SOURCES

ANNOTATED LAW REPORTS

Carroll J. Miller, Annotation, Validity and Application of Statute Allowing Endangered Child To Be Removed Temporarily From Parental Custody, 38 A.L.R. 4TH 756 (1985). Examines state and federal cases that temporarily remove parents' custody of children when health may be endangered.

John C. Williams, Annotation, Power of Court Or Other Public Agnecy To Order Medical Treatment For Child Over Parental Objections Not Based on Religous Grounds, 97 A.L.R.3d 421 (1980). Reviews state and federal cases in which courts have considered the power of a court or other public agency to order medical treatment over parents' objections not based on religous reasons.

Jay M. Zitter, Annotation, Power Of Court Or Other Public Agency To Order Medical Treatment Over Parental Religous Objections For Child Whose Life Is Not Immediately Endangered, 21 A.L.R. 5th 248 (1994). Discusses when court should be given custody of a child for medical treatment over objections of parents for religous reasons.

LAW REVIEWS and JOURNALS

William D. Brewster, Death Over Life: A Judicial Trend Continues As the Illinois Supreme Court Grants Minors the Right to refuse Life-Saving Medical Treatment, 23 John Marshall L. Rev. 771 (1990). Discusses mature minor's right to refuse life-saving medical treatment. Focuses on an Illinois case, 549N.E.2d 332 (1989)

Joseph Goldstein, Medical Care For the Child At Risk, 86 Yale L.J. 645, 649, and n. 13,14 (1977). Explores the role for law to protect children from parental exploitation and parents and children within a family from state exploitation.

Susan D. Hawkins, Protecting the Rights and Interests of Competent Minors in Litigated Medical Treatment Disputes, 64 Fordham L. Rev. 2075 (1996). Discusses rights of minors and rights of minors in medical treatment disputes. Minors' rights or wishes are not generally taken into consideration.

Anne D. Lederman, Understanding Faith: When Religious Parents Decline Conventional Medical Treatment For Their Children, 45 Case W. Res. L. Rev. 891 (1995). Discusses religious beliefs verses states' interest in protecting children.

Laura M. Plastine, "In God We Trust": When Parents Refuse Medical Treatment For Their Children Based Upon Their Sincere Religious Beliefs, 3 Seton Hall Const. L.J. 123 (1993)

Elizabeth J. Sher, Choosing For Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U L. Rev. 157 (1983). Focuses discussion of state intervention in non-life threatening situations, competing interests of state, parent and child. Proposes an analytical framework to balance competing interests.

Yolanda V. Vorys, The Outer Limits of Parental Autonomy: Withholding Medical Treatment From Children, 42 Ohio St. L.J. 813 (1981). Reviews law regarding legal limits on parental autonomy in area of withholding medical treatment from children. States' authority to intervene is also discussed.

LEGAL ENCYCLOPEDIAS

42 Am.Jur. 2d Infants 16. Protection from neglect, ill treatment, abuse or danger to health or morals.

41 Am.Jur. 2d Infants 17. Prosecution for failure to provide medical attention.

59 Am.Jur. 2d Parent and Child 11. Medical Care.

16A C.J.S. Constitutional Law 528. In order to avert serious consequences without violating religous freedom, courts may authorize medical treatment of minors irrespective of religous objections asserted on their behalf.

43 C.J.S. Infants 31. General Considerations. In the exercise of government power to protect welfare of infants, various statutes have been enacted under which designated courts and agencies of the state are charged with the care, placement, and control of delinquent, dependent, or neglected or vagrant children, and proceedings are authorized under which a court may order commitment or otherwise control the care and custody of such children.

43 C.J.S. Infants 36. Dependent or Deprived Children.

43 C.J.S. Infants 39. Termination of Parental Rights. Under the statutes which protect children who are found to be abandoned, dependent, neglected, or the like, there may be termination of parental rights.

43 C.J.S. Infants 40. While the state has wide power to parental rights, the state must show a compelling interest before it encroaches on family life...


OTHER PERIODICALS

Charles F. Crutchfield, Medical Treatment for Minor Children: The Roles of Parents, the State, The Child, and the Supreme Court of the United States, and Responses, 30 Family Relations, 165 Apr. 1981.

Dianna Hunt, Ill Girl's Parents Consent To Her Colon Surgery, The Dallas Morning News, Oct. 14, 1996, at A1. Reviews the case of a ten-year-old girl's need for surgery and her parents' wishes for alternate treatments. Discusses the legal and medical issues and the intervention of Texas Child Protective Services.

Informed Consent, Parental Permission, and Assent in Pediatric Practice, 95 Pediatrics, Feb. 1995. AAP policy statement on legal concept of informed consent in pediatric practice.

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