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In re Nikolas E.
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MAINE SUPREME JUDICIAL COURT        Reporter of Decisions
Decision:1998 ME 243
Docket:Pen-98-540
Argued:	November 3, 1998
Decided:	November 19, 1998


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
	CALKINS, JJ.



IN RE NIKOLAS E.


WATHEN, C.J.

	[¶1]  The guardian ad litem of Nikolas E. appeals from a judgment
entered in the District Court (Newport, Clapp, J.) denying the child
protection petition brought by the Department of Human Services
(hereinafter referred to as the "State").  The State sought custody of Nikolas
for the limited purpose of approving medical treatment for his HIV
condition.{1}  The guardian argues on appeal that the court applied an
incorrect legal standard and that its factual findings are contrary to the
weight of the evidence.  Finding no error of law, and concluding that the
evidence falls short of compelling a finding in favor of the State, we affirm
the judgment.
	[¶2]  The facts presented at trial may be briefly summarized as follows: 
Nikolas is a four-year-old boy who is HIV positive.  Nikolas's mother and
father, who are also HIV positive, are divorced and Nikolas lives with his
mother who has sole responsibility for his medical care.  In January of 1997,
Nikolas's sister died at the age of four from complications with AIDS. 
Nikolas and his mother are under the care of their family physician, Jean
Benson, M.D.  After learning of a clinical trial program for children with
HIV, Dr. Benson referred Nikolas and his mother to a specialist in pediatric
infectious diseases, Dr. John Milliken of Bangor.  Both the mother and
Nikolas's deceased sister had been treated in the past by Dr. Milliken.
	[¶3]  In September of 1997, Dr. Milliken  examined Nikolas and met
with his mother.  He recommended a drug therapy known as highly
aggressive anti-retroviral therapy (HAART).  Based upon developments in
her own illness and her experience with the drug therapy that accompanied
the tragic and painful death of her daughter, the mother expressed her
distrust of the drug therapy and declined to permit her son to participate at
that time.  Dr. Milliken, weighing in his mind whether the mother's refusal
to provide the therapy to Nikolas constituted neglect, waited for nearly two
months before writing his recommendations to Dr. Benson.  In November,
with updated medical information recommending that all children with HIV
infection should be treated for that disease, Dr. Milliken sent a report to Dr.
Benson and provided a copy to the State.  In the report he explained his
recommendations for treatment and his concern about the mother's
decision to forego treatment within the context of her own disease.  He
suggested that the mother could be offered "a voluntary release of parental
rights with residential custody for her," and that medical decisions could be
removed from her.
	[¶4]  As a result of Dr. Milliken's report, the State met with the
mother and discussed her treatment plans for Nikolas.  Because of differing
opinions offered by Dr. Benson and Dr. Milliken, the State arranged for the
mother and Nikolas to consult with Dr. Kenneth McIntosh, Chief of the
Division of Infectious Diseases at Children's Hospital in Boston,
Massachusetts.  Dr. McIntosh is head of the AIDS program at the hospital
and professor of pediatrics at Harvard Medical School.  He provided the
mother with information regarding treatment and suggested that Nikolas
would benefit from HAART therapy.  Specifically, the therapy would involve
giving Nikolas daily dosages of three different kinds of drugs -- two
nucleoside analogue reverse transcriptase inhibitors, in this case, d4T and
3TC, and one protease inhibitor, in this case, nelfinavir, for an extended
period of time, possibly for his lifetime.  Dr. McIntosh saw no irrationality on
the part of the mother, and he confirmed that he had never reported
parents to child protective agencies for failing to accept his
recommendations regarding therapy.  
	[¶5]  Later, the mother returned to Dr. McIntosh on her own to
discuss the risks and long term effects of the proposed therapy.  The
District Court summarized the information she obtained on this visit as
follows:
Dr. McIntosh gave her all the information currently available
from the limited experience the medical community has had in
this treatment for children and could not give her any definitive
information concerning long term effects.  This drug treatment
regimen is still in the evolving stages.  Because of stepped-up
FDA approval of drugs and programs in this area due to public
and political pressure nation-wide, all ongoing AIDS treatment
programs (especially for children), when compared to
traditional methods of approving medical drugs and treatment
protocols, are experimental.  In effect, treatment is being
provided to sufferers of this illness at the same time as statistics
and efficacy studies are being conducted.  The various regimens
are changing constantly, and it is expected that new and more
effective drugs and treatment protocols will emerge each year, if
not sooner.  It can be fairly said that the HAART regimen was
still in experimental stages when [the mother] first consulted
with Dr. Milliken.  The CDC published its guidelines for
children's HIV treatment over six months later, making this
regimen conventional state of the art.

	. . . . 

Dr. McIntosh's [sic] feels that because Nikolas's blood tests (viral
load count and CD4 cell count) meet the CDC guidelines
qualifying him for aggressive drug therapy, the child may well
benefit from such treatment.  However, this benefit cannot be
quantified.  No good estimation can be given either on whether
or how much longer Nikolas will survive solely because he
participates.  Dr. McIntosh is of the opinion that no child should
be started on this program unless his parents are fully accepting
and in support of the treatment.
	[¶6]  The court concluded that the long term effects of the drug
therapy were essentially unknown and observed that the mother, although
she had not agreed to the therapy at the time of hearing, stated clearly that
her mind was not closed on the issue.  The court stated that "[a]lthough she
would rather spare Nikolas the effects and risks of this treatment, if his
health begins to deteriorate significantly, she will reconsider and would
now, if ordered, comply with treatment."
 	[¶7]  Against this factual background, the State in May of 1998, filed a
petition for a child protection order, seeking custody of Nikolas so he could
receive the treatment recommended by Dr. McIntosh.  A guardian ad litem
was appointed pursuant to 22 M.R.S.A. § 4005 (1992 & Supp. 1997),
amended by P.L. 1997, ch. 715, §§ A-1, A-2 (effective June 30, 1998), and a
hearing was held on the petition in September.  The court denied the
petition and the matter is now before us on an expedited appeal.{2}
I. Standing
	[¶8]  As a preliminary matter, the mother argues that the guardian
lacks standing to prosecute an appeal in a child protection action.  She
contends that the guardian's rights and duties are limited to those
delineated in 22 M.R.S.A. § 4005 and that appealing the court's judgment is
not included in the list of rights and duties. The mother also argues that
appeal is controlled by 22 M.R.S.A. § 4006, that only an "aggrieved party"
may bring an appeal under section 4006, and that neither Nikolas nor his
guardian is a party to the child protection hearing.  
	[¶9]  The right to appeal from a child protection order is set forth in
22 M.R.S.A. § 4006 as follows:
	A party aggrieved by an order of a court entered pursuant
to section 4035 [child protection order] . . . may appeal directly
to the Supreme Judicial Court sitting as the Law Court and such
appeals are governed by the Maine Rules of Civil Procedure,
chapter 9.  

	. . . Any attorney appointed to represent a party in a
District Court proceeding under this chapter shall continue to
represent that client in any appeal unless otherwise ordered by
the court.

P.L. 1997, ch. 715, § A-3 (effective June 30, 1998) (emphasis added)
(codified at 22 M.R.S.A. § 4006). The immediately preceding section is
entitled "Parties' rights to representation; legal counsel" and is divided into
two subsections:  "1.  Child; guardian ad litem" and "2.  Parents."  22 M.R.S.A.
§ 4005 (1992 & Supp. 1997).  More specifically, the statute provides that
"[t]he guardian ad litem or the child may request the court to appoint legal
counsel for the child."  22 M.R.S.A. § 4005(1)(F) (Supp. 1997).  The section
further provides that "[t]he guardian ad litem shall act in pursuit of the best
interests of the child." 22 M.R.S.A. § 4005(1)(B) (Supp. 1997), amended by
P.L. 1997, ch. 715, § A-1 (effective June 30, 1998).  
	[¶10] In explaining the constitutionality of the "preponderance of the
evidence" standard in a child protection proceeding, we have stated that,
unlike a parental termination proceeding, "[i]n a child protection
proceeding, . . . the child not only has an interest in family integrity, an
interest he shares with his parent, but the child has a substantial interest in
protection from a jeopardous environment and it is the safety of the child
which is at issue in such a proceeding."  In re Sabrina M., 460 A.2d 1009,
1016 (Me. 1983).  Thus, contrary to the mother's argument, the child has a
significant interest in child protection proceedings and is a party to the
proceedings.  Because the child is a minor, a guardian ad litem is appointed 
and either the child or the guardian can ask for an attorney to be appointed.
In this case, the guardian is an attorney and acts in both capacities. 
Accordingly, the guardian, as the legal representative of Nikolas, is an
aggrieved party and, as such, has standing to  prosecute this appeal.  

On to part 2.