PORTLAND, Maine — Gov. Paul LePage and the head of the Department of Health and Human Services spoke out Tuesday against actions taken recently by DHHS to secure a do-not-resuscitate order for a brain damaged baby from a District Court judge over the objections of the child’s mother.
An appeal in the case is pending before the Maine Supreme Judicial Court. Oral arguments are set for Sept. 23 at the Cumberland County Courthouse in Portland. The do-not-resuscitate order was delayed pending the outcome of the appeal, according to the Maine attorney general’s office.
The statements by the governor and DHHS Commissioner Mary Mayhew contradicted the actions of the agency they oversee and indicated their opposition to state law that allowed the medical order for the child to be given without a judge first terminating the mother’s parental rights.
“This case is disturbing and is not reflective of my administration’s position that a parent who is the legal guardian of their child should have final say in medical decisions about life-sustaining treatment,” LePage said in a statement emailed Tuesday to the Bangor Daily News. “The existing law violates the sanctity of parental rights, and I cannot support it. Unless a parent is deemed unfit and parental rights are severed, the state should not override a parent’s right to make medical decisions for their own child.”
The governor’s statement was contained in an email sent by John A. Martins, spokesman for DHHS. LePage called for a full review of how these decisions are made, and DHHS is exploring its legal options, according to Martins.
The state attorney general’s office responded to the governor’s statement with an explanation of the issuing of the do-not-resuscitate order in accordance with the law.
“By law, the courts and the members of the Child Protection Division of the attorney general’s office work to represent the safety and best interests of the child,” Timothy Feeley, spokesman for the attorney general’s office, said in an emailed statement Tuesday. “Thankfully, these tragic ‘shaken baby’ cases are not typical, but they are not without legal precedent either. The 2006 case, [known as] In Re Matthew W. addressed a similar situation where the parents’ rights had not been terminated, and it is this precedent on which the state’s brief of June 16th relied.
“The attorneys of the Child Protection Division worked closely for many months with numerous members of DHHS to address the interests of the child in this matter consistent with the law,” Feeley said. “We look forward to working with the department to ensure the interests of the child continue to be fully represented.”
The legal dispute centers on a child, now about 14 months old, whose neurological injuries in December 2013 left her unable to swallow, according to a brief filed in the appeal and signed by Attorney General Janet Mills. The foster mother caring for the child and feeding her through a tube has described the child as “miserable.”
The child will never be able to function beyond “an early infantile level,” according to Mills.
The child’s father, Kevin Peaslee, 21, of Windsor has pleaded not guilty to two counts of aggravated assault and one count of assault in connection with his alleged shaking of the child hard enough to inflict the injuries. He is free on $50,000 surety bail with conditions of no contact with the mother or child. His trial is expected to be held in October in Kennebec County Superior Court.
Peaslee is not a party in the appeal.
The governor’s position appears to contradict the arguments Mills made in her brief supporting Judge Valerie Stanfill’s decision “to give the department the authority to issue a [do-not-resuscitate order] and to make decisions regarding [the child’s] medical treatment as necessary.”
Scott Hess, the Augusta attorney representing the mother, 18-year-old Virginia Trask, argued in his brief that the state cannot authorize the do-not-resuscitate order over her objection unless the court determines that she is unfit and her parental rights are terminated.
The child is in a therapeutic foster home, but Trask has visitation rights, according to court documents. Because Trask said she would maintain her relationship with the child’s father, the judge found the child could be in jeopardy if it remained in her care. Neither parents’ parental rights have been terminated.
Mayhew appeared to agree with Hess.
“If the higher court upholds the previous decision that a parent’s rights can be overridden by the department, this administration will not exercise that misplaced authority,” Mayhew said in the statement sent Tuesday to the BDN. “The Department of Health and Human Services remains firmly committed to due process in any case where the rights of a parent are in question.”
Hess said in an email Tuesday that his client would not agree to dismiss the appeal.
“The law, as it was interpreted by the court, allows DHHS to be given authority to consent to a do-not-resuscitate order directing medical doctors to withhold life-saving medical treatment for my client’s child, even though her parental rights have not been terminated,” he said. “Although Gov. LePage and his administration has decided to support her position, for which she is of course grateful, there is no guarantee the next administration will do the same.
“In addition, the administration’s support for my client’s position does not invalidate the existing court order,” Hess said. “Unless a legal conclusion is reached in the courts, there will remain an open legal question as to whether the granting of authority to make life or death medical decisions for a child who is in temporary state custody violates the constitutional rights of the parents. For that reason, she intends to continue pursuing the appeal.”
The Christian Civic League of Maine, the Roman Catholic Diocese of Portland and two other groups have filed an amicus brief arguing that the case “is about fundamental rights: the right to live, and the right to parent.”
“The district court’s apparent avoidance of the fundamental Constitutional rights at stake and its failure to realize or admit to its ultimate effect have not only effectively terminated [Trask’s] parental rights but also seriously abridged her constitutional due process rights,” the brief said.
Unless Mills and Hess file a joint stipulation of dismissal before Sept. 23, oral arguments will be held as scheduled, according to Matt Pollack, clerk of the Law Court and Reporter of Decisions. Groups filing “friend of the court” briefs would not have a say in whether the arguments are held or not.
BDN writer Beth Brogan contributed to this report.