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Nikolas E. part 2

II. Circumstances of jeopardy
	[¶11] The guardian argues that the State made a showing sufficient to
establish that, by withholding medical treatment, the mother subjected
Nikolas to "serious abuse or neglect."  In attempting to intervene, the State
invoked the Child and Family Services and Child Protection Act, which
contains the following statement of purpose:
	Recognizing that the right to family integrity is limited by
the right of children to be protected from abuse and neglect and
recognizing also that uncertainty and instability are possible in
extended foster home or institutional living, it is the intent of
the Legislature that this chapter:

	1.  Authorization.  Authorize the department to protect and
assist abused and neglected children, children in circumstances
which present a substantial risk of abuse and neglect, and their
families.

	2.  Removal from parental custody.  Provide that children
will be taken from the custody of their parents only where
failure to do so would jeopardize their health and welfare;

22 M.R.S.A. § 4003 (1992), amended by  P.L. 1997, ch. 715, § B-4 (effective
June 30, 1998).
	[¶12]  The State's petition was brought as a child protection petition.{3} 
The court held a hearing on the petition pursuant to 22 M.R.S.A. § 4035(1)
(1992),  amended by P.L. 1997 ch. 715, § A-7 (effective June 30, 1998). 
The statute requires the court, after hearing the evidence, to "make a
finding, by a preponderance of the evidence, whether the child is in
circumstances of jeopardy to his health or welfare." 22 M.R.S.A. § 4035(2)
(1992).  "Jeopardy to health or welfare" or "jeopardy" is defined as "serious
abuse or neglect, as evidenced by . . . [d]eprivation of adequate food,
clothing, shelter, supervision or care, including health care when that
deprivation causes a threat of serious harm."  22 M.R.S.A. § 4002(6)(B)
(1992) (emphasis added).  "Serious harm" is defined in part as serious
injury.  22 M.R.S.A. § 4002(10) (1992).  The State has the burden to prove
by a preponderance of the evidence that a child is in circumstances of
jeopardy.
	[¶13]  In the present case, the court described the State's burden and
its ruling as follows:
The initial issue presented in this case is whether the decision
of [the mother] to delay drug therapy for her son is rational and
reasoned.  The court feels that it is.  The next issue is whether
that decision, despite being the product of a reasoned approach,
still places Nikolas's health or welfare in jeopardy by bringing
about or threatening serious harm or depriving him of health
care when that deprivation causes a threat of serious harm.  A
"threat" as intended in this context is "an indication of imminent
danger, harm, evil, etc. . . ." 

It is the obligation of the petitioning Department in this matter
to prove by a preponderance of the evidence that [the mother's]
deprivation of reasonable and effective health care for her son by
now refusing to enter him into HIV/AIDS aggressive drug
therapy constitutes an imminent threat of serious harm.  The
Department has proven that according to the current
conventional medical wisdom in the relatively new and rapidly
evolving art of treating children with certain elevated levels of
HIV in the blood, that Nikolas would benefit from such
treatment.  However, it has not sufficiently prove [sic] what that
benefit will likely be and that no significant injury or harm may
ultimately befall the child if that therapy is now commenced. . . .
[W]ith the relative uncertainty of the efficacy of the proposed
treatment, it can only reasonably be left up to the parent to
make an informed choice in this regard. (emphasis added).

	[¶14]   The State did not file an appeal in this matter and concedes
that the evidence that it presented at the hearing would support a ruling
either way on the issue of jeopardy.  In its brief as appellee, however, it
questions whether the court may have interjected erroneously the issue
whether the mother's decision to delay drug therapy is rational and
reasoned.  The guardian argues on appeal that the court erred in applying
the legal standard in three other respects:  First, in framing the issue of
whether the acts of the mother threatened serious harm, the court
erroneously added the concept of "imminence"; second, by adding a
requirement that the State prove that no significant injury or harm would
befall Nikolas if the treatment plan were implemented; and, third, by failing
to address the best interests of Nikolas, focusing instead on the mother's
interest, vis-a-vis the State.  
	[¶15]  The State's argument with reference to the finding that the
mother's decision is rational and reasoned establishes no legal error. 
Although we have stated that the statute is "designed to protect children
from circumstances that threaten serious harm, and the defined interest of
the state is not confined to those circumstances that are the fault of the
parent,"  In re Shawn H., 667 A.2d 1377, 1379 (Me. 1995), the court's
remarks were appropriate within the context of the evidence.  Dr. Milliken
opined that the mother was incapable of managing her son's medical care. 
Perhaps because of her own illness and the unsuccessful treatment of her
daughter, she undoubtedly exercised an unusual degree of independence
and skepticism in medical decision-making.  Dr. McIntosh, on the other
hand, observed no irrationality on the part of the mother.  In resolving this
factual disagreement, the court did not elevate the finding to a statutory
requirement.  It made a subsidiary factual finding to permit a fair evaluation
of the conflicting evidence.  In any event, the court proceeded to qualify the
question of rationality by stating "the next issue is whether that decision,
despite being the product of a reasoned approach, still places Nikolas's
health or welfare in jeopardy."  Thus, the determination that the mother's
decision was rational and reasoned assisted the court in evaluating the
evidence, and  resulted in no misapplication of the law.
	[¶16]  Both the guardian and the State argue that the court
erroneously required that the threat of harm to Nikolas be imminent. 
"Threat" is not defined in the statute.  The court defined "threat" as
requiring an indication of imminent danger.  The State argues that the
requirement of imminence connotes an immediate risk of serious harm that
is the basis for requesting a preliminary protection order pursuant to 22
M.R.S.A. § 4034(2) (1992), prior to a hearing on the final protection
petition.  Accordingly, to require immediate harm in both the preliminary
petition and the final petition would fail to recognize the separate and
distinct purposes of each request.  Further, in In re Jeffrey E., 557 A.2d 954
(Me. 1989), we explained that "[i]n order for a court to take into account the
special medical needs of a child, a present medical emergency need not
exist, nor does such a medical emergency have to be imminent or even
certain to recur."  Id. at 956.  It follows then that, if the medical emergency
need not be imminent, any harm relating thereto need not be imminent,
and, in fact, the Child Protection Act contains no requirement that the harm
be imminent.
	[¶17]  In the present case, however, the court was called upon to
decide whether it should override the mother's decision to "wait and see" if
Nikolas's health began to deteriorate significantly before accepting
treatment.  The court's failure to find that the mother subjected her son to
an imminent threat of serious harm must be considered in connection with
the court's conclusions regarding the efficacy of the proposed drug therapy. 
In effect, the court was unpersuaded by the evidence that the mother was
subjecting her son to a serious risk of harm merely by delaying the decision
to accept a course of treatment of uncertain efficacy.
	[¶18]  Similarly, with respect to the guardian's argument that the
court added a requirement that the State prove that no significant harm
would ultimately befall Nikolas from the treatment, we find that the court
did not treat this conclusion as a required element of proof pursuant to the
statute.  It appropriately considered the effectiveness and safety of the
treatment as one of the subsidiary factual issues in its determination of
jeopardy.
	[¶19]  Although the court did not explicitly articulate and discuss all of
the competing interests -- the interests of the parent, the interests of the
state, and the best interests of the child -- and did not expressly balance the
benefits and risks of treatment against the benefits and risks of delaying
treatment, the court's findings implicitly reflect that the appropriate factors
were weighed.    The court found, for example, that although the State
produced opinion evidence that Nikolas would benefit from treatment, the
State did not produce evidence to persuade the court that there was a
quantifiable benefit.  The court also was unable to determine the likely
effects of the treatment on the child.  The court accepted as accurate that
the drugs used in the therapy "are very potent and cause often unpleasant
side effects."  The court also found that the State was unable to produce
evidence of the likely long-term side effects because the treatment is
essentially new and experimental.  The court also found that "removal of
Nikolas from his home would have a severe and detrimental effect on his
well-being."  Implicit in the court's conclusion that the mother's decision
does not constitute serious parental neglect is the express finding that the
court is unpersuaded of the overall efficacy of the proposed treatment
despite the recommendations of the physicians.   Thus, the court did not
apply an improper legal standard in reaching its decision.
	[¶20]  The guardian argues that the evidence compels the conclusion
that the medical treatment is beneficial and that the mother's refusal
constitutes jeopardy.  She argues that the court's finding that the mother's
refusal is rational and reasoned is contrary to the weight of the evidence and
that the court plainly erred in assessing the evidence concerning the
treatment of AIDS.
	[¶21]  We review the court's factual findings for clear error.  Because
the court based its decision on a determination that the State failed to
establish sufficient facts to support its petition and because the State bears
the burden of proof, "[s]uch a determination may be reversed on appeal only
if the evidence in support of the [petition] was of such a nature that the
factfinder was compelled to believe it and to draw therefrom the requested
inference to the exclusion of any other."  Luce Co. v. Hoefler, 464 A.2d 213,
215 (Me. 1983).  In this case, although there was evidence that would
support the guardian's argument that Nikolas was in circumstances of
jeopardy, the evidence does not compel such a finding to the exclusion of
any other.  The credibility and weight of the evidence is within the province
of the factfinder.
	[¶22]  Viewing Dr. McIntosh's testimony as the strongest evidence
offered in favor of the State's position, it falls short of compelling a finding
of serious child abuse or neglect.  Even though there is significant evidence
from Dr. McIntosh that he believes, based on the clinical trials, his expertise
in this field, and his examination of Nikolas, that Nikolas would benefit from
this treatment, there is also competent evidence from Dr. McIntosh that the
theories on AIDS are still evolving, that this treatment has not been given for
a long period of time, that the information on effects and prognosis are
being studied on the children receiving treatment and therefore the long-
term effects cannot be identified and that, although he believes a cure along
the same lines as the present therapies is not likely, a person could lessen
the chances of getting a good response to subsequent medications because
of a resistance that could be built up from the therapy in question.  The
State concedes that Dr. McIntosh's testimony alone is sufficient to support
either factual conclusion.  We agree.  Thus, the court was not clearly
erroneous in remaining unpersuaded that jeopardy had been established.
	[¶23]  We emphasize that the decision required the trial court to
weigh the interests of the State, the child, and the parents, and to balance
the benefits and risks of treatment against the benefits and risks of
declining treatment.  If the child's health should change, if the treatment
efficacy should be demonstrated to be better than it is now known to be, or
if better treatment options should become available, that balance could shift
in favor of treatment.  Neither the parents nor the State should assume that
the trial court's decision, affirmed by our opinion today, is necessarily the
final word on treatment for Nikolas.
	The entry is:
				Judgment affirmed.
 
For appellant: Mary K. Gonya Brennan, Esq., (orally) 7 Mountainview Drive Orono, ME 04473 (Guardian ad Litem) Attorneys for appellees: J. Hilary Billings, Esq., (orally) Billings & Silerverstein P O Box 1445 Bangor, ME 04402-1445 (for Valerie E.) Andrew Ketterer, Attorney General Peter Brann, State Solicitor, (orally) Christina Hall, Asst. Atty. Gen. Geoffrey Goodwin, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 (for Department of Human Services)
FOOTNOTES******************************** {1} Human Immunodeficiency Virus (HIV) is a retrovirus that causes Acquired Immunodeficiency Syndrome (AIDS). The virus invades and eventually kills different cells in the blood and in body tissues, particularly white blood cells known as CD4+ cells. When the CD4+ count drops below 200 cells/mm3 of blood or when CD4+ cells comprise less than 14% of his or her total lymphocytes, a person is regarded as having AIDS. See Bragdon v. Abbott, U.S. 118 S. Ct. 2196, 2203-04 (1998) (citations omitted). {2} We commend all participants in this proceeding for their expedition and sensitivity in presenting their views concerning Nikolas's well being. {3} The State could have filed a petition seeking a medical treatment order pursuant to 22 M.R.S.A. § 4071 (1992).
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