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Refusal to Consent to Caesarean Section as Neglect of the Child?

A quick search suggests that this decision hasn't hit any mainstream media sources yet, though it strikes me as an interesting story. If you're a journalist who reads this blog, you might want to take a look to see if you agree.

Related Posts (on one page):

  1. Refusal to Consent to Caesarean Section as Neglect of the Child?
  2. Refusal to Consent to Caesarean Section as Neglect of the Child?
Braves Fan - Pity Me (mail):
Just skimming over that case, if V.M.(the "mentally conditioned" mother) wouldn't have had a history of mental problems, would she have still been up for charges? Watch any TLC/Discovery Health show on pregnancies and you'll see some obscenely strange behavior by doctors attempting to convince the parents to have things done with almost no third-party support for the true pro and cons of the procedure. C-Section should always be an optional thing, never a forced thing.

I should say I'm also not a fan of home births, water births, etc.
7.17.2009 11:27am
Ralph Kramden (mail):
Shouldn't this be a corollary to Roe v Wade? Carchman: "The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians."

None of the state's business!

Off-topic: Happy YP!
7.17.2009 11:44am
Larry Sheldon:
I am confused. I am also not a lawyer, so I am sure one of you will make this crystal clear to me.

In that same jurisdiction the mother in the time-frame could have an abortion performed.

This is because, we are informed, the foetus is not yet a child, a person.

Given that to be true, how in the legal contortions can she be guilty of "neglect of a child"?
7.17.2009 11:47am
Redman:
I agree with Larry Sheldon.

If the fetus doesnt even have the right to be born alive, how can it have any lesser right?
7.17.2009 11:49am
Alan P (mail):
This keeps being referred to as if the only issue was the refusal to consent to the Caesarean section as being the neglect.

Read all of the facts as stated in the concurring opinion. The concurrence listed numerous factors that the Judge believed supported the trial Court in terminating parental rights. In fact, that is why it was a concurrence. The Judge said that the other factors were sufficient. Among those other factors was the diagnosis of paranoid schizophrenia by the Court appointed Psychiatrist. This was in accord with reported psychotic behavior from the treating physician and the hospital's consulting examiner. This, and the whole range of problems including not showing up at a hearing, lying to the Court, erratic behavior observed by multiple sources, were cited by the Trial Court in its decision and seen as sufficient for the ruling by all of the judges on the appeals court.

The only dispute was over whether that one factor, the refusal to consider a Caesarian, should be considered at all.
7.17.2009 11:52am
Jennifer Hendricks (mail) (www):
I believe the key, and unsurprising, sentence is "Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident."
7.17.2009 11:58am
Steve:
In that same jurisdiction the mother in the time-frame could have an abortion performed.

Uh no, in New Jersey you don't just get to walk into a hospital and demand an abortion when you're nine months pregnant.

The fact that she might be eligible for an abortion under extreme circumstances of medical necessity has nothing to do with the facts of this case.

In any event, the court's decision is quite clear that events occurring prior to childbirth cannot be considered "abuse or neglect of a child." They may, however, serve as evidence that the child is likely to be abused or neglected after it is born alive.
7.17.2009 12:03pm
Whadonna More:
My read of the government's actions is that it wanted to take the child away from the looney mom, and needed grounds to do so. They hand-waived up the grounds rather than wait for mom to misbehave again. The government hates to do the patient, hard work (see all USSC 4thA cases, cue Whit).

Another few miles on the road that's paved with similar good intentions.

If the mom was a hot blonde, or started taking her meds enough to be as sympathetic as Octomom, it'd be front page.
7.17.2009 12:12pm
einhverfr (mail) (www):
EV:

Are you saying the court said refusing a C-section could be considered neglect?

In my careful reading, they left it open. I.e. the only difference between the majority and the concurring opinion was that the concurring opinion ruled that as a matter of law the C-section refusal was not considered neglect, while the majority opinion ruled that, since it didn't make a material basis in the case, they shouldn;t decide it.
7.17.2009 12:13pm
Horace:
Every so often, a prosecutor will attempt the argument that defendant's refusal to consent to a search (seizure) creates probable cause for the search (seizure).
7.17.2009 12:14pm
Cloned Test-tube baby (mail):
This needs to be bolded at the top, under NJ law she could not have had an abortion. They would have c-sectioned in an emergency, not started the abortion procedure which you can easily google a respectable medical website on how that is performed.
7.17.2009 12:23pm
JamieinAZ (mail):
Did you read the entire opinion? I ask because the c-section refusal and the mother's subsequent denial that she refused only goes to her credibility. The court spends a lot of time explaining that prenatal actions by a mother cannot and will not be admitted as evidence of abuse or neglect but jeez, proof of dishonesty is always admissible to prove defendant's credibility.

To the person who said it sounds like a manufactured case so the state could take the infant, did you read the opinion? And what would you have said if the hospital had not reported the parents' apparent lack of familiarity with reality and released the baby to the parents only to have a very detrimental outcome? You'd be freakin' out and blaming the hospital. The hospital needed to report the parents' psychotic behavior and the state needed to investigate it and the parents should have participated in the investigation by oh say, actually being cognizant of the fact the investigation was ongoing and showing up at hearings.
7.17.2009 1:15pm
Whadonna More:

einhverfr (mail) (www):
EV:

Are you saying the court said refusing a C-section could be considered neglect?

The TRIAL court used that fact (and several other things that amount to refusal to consent to doctors' advice) to find neglect. The APPEALS court said there was neglect even if we don't consider the refusal to consent to the c-section in particular.

That doesn't make it any better - consent isn't consent if refusing subjects you to penalty, whether it's an operation to "save" your healthy kid from a medically risky moment, or taking your meds. "Doctors' orders" indeed.
7.17.2009 1:22pm
Whadonna More:

JamieinAZ:

To the person who said it sounds like a manufactured case so the state could take the infant, did you read the opinion? And what would you have said if the hospital had not reported the parents' apparent lack of familiarity with reality and released the baby to the parents only to have a very detrimental outcome? You'd be freakin' out and blaming the hospital.

I did read it, and you're wrong about my views. Neither the government nor a hospital is responsible for nutjobs or their babies.
7.17.2009 1:25pm
einhverfr (mail) (www):
Whadonna More:

The TRIAL court used that fact (and several other things that amount to refusal to consent to doctors' advice) to find neglect. The APPEALS court said there was neglect even if we don't consider the refusal to consent to the c-section in particular.


Right. However, they didn't rule that this could or could not be considered. They left that question for another day.

Look, I disagree with the decision. It comes across as "Lying to the state about medical decisions makes you a potential abuser and so the state can and should take your kids away." I also think that this raises serious due process and privacy problems.

I just think that we should discuss the appellate holding if we are discussing the appellate holding. Yes, the holding sucks, and yes it is problematic. However, I am not convinced it is problematic because it criminalizes refusing C-sections.
7.17.2009 2:05pm
periwinkle:
"the child was born by vaginal delivery without incident."

In other words, the "crazy woman" was correct in her own evaluation about how she could bring forth her child.

Where are the "feminists" in cases like this? Or in cases like the Mary Beth Whitehead situation of over 20 years ago?

The status of women who are mothers has been so degraded that the court even felt compelled to use the phrase "biological mother."

These days, "feminists" preach that it's "pro woman" for a woman to be able to "sub-contract" the various aspects of being a mother. We have movie stars "sub-contracting" the birthing process to another woman, and the main stream media fawn all over her as if she's "the mommy." And no one has the gall to even ask, "Did you even use your own egg and your husband's own sperm?" No. Because that would be "impolite." [Definition of "modern day mother": purchases donor egg after looking at photos and SAT scores of potential donees; hires suitable woman with gestational womb; picks up newborn baby from hospital; poses for photos; turns baby over to nanny and goes about her business of being a "modern day woman."]

We think it's "just fine" that a multi-rich entertainer purchased the production of three children -- at least two of whom almost certainly are not even biologically related to him. And it's impolite to suggest that there's something not "normal" about that.

We "honor" the contracts and the "court decisions."

And we completely disrespect mothers and insult women in general.

All brought to you by the Gloria Steinham feminists. Where are the pro-woman advocates? Where are the advocates for the rights of people who deal with mental illness and who seek help for dealing with mental illness?

And, when I was in labor trying to birth my children, if someone had proposed slicing me open with a good carving knife, I'd have exhibited more than a few signs of craziness also.

Sorry for the rant.
7.17.2009 2:05pm
yankee (mail):
These days, "feminists" preach that it's "pro woman" for a woman to be able to "sub-contract" the various aspects of being a mother. We have movie stars "sub-contracting" the birthing process to another woman, and the main stream media fawn all over her as if she's "the mommy." And no one has the gall to even ask, "Did you even use your own egg and your husband's own sperm?" No. Because that would be "impolite." [Definition of "modern day mother": purchases donor egg after looking at photos and SAT scores of potential donees; hires suitable woman with gestational womb; picks up newborn baby from hospital; poses for photos; turns baby over to nanny and goes about her business of being a "modern day woman."]


A lot of feminists have been quite critical of the practice of using surrogate mothers. They see it as a form of commoditization and exploitation of women's bodies. Not all feminists agree with this, and you can disagree with their point of view, but it's not remotely accurate to describe "feminists" as uniformly pro-surrogacy.
7.17.2009 2:32pm
einhverfr (mail) (www):

Where are the "feminists" in cases like this? Or in cases like the Mary Beth Whitehead situation of over 20 years ago?


A few references found quickly using Google:
ACLU's take on coerced C-sections

On the Pemberton case:
Feminocracy
AdvocatesForPregnantWomen.com
BreastFeedingCafe.com

Many more can be found quickly....
7.17.2009 2:52pm
Roger Schlafly (www):
Eugene, help us out a little bit. If this decision is so noteworthy, then please tell us why? Is it unusual? Does it set a new precedent? Do you disagree with it? Maybe those reporters figured that if over-opinionated legal blogger could not think of anything to say about it, then maybe it is not so newsworthy.
7.17.2009 3:20pm
subpatre (mail):
JamieinAZ wrote: " what would you have said if the hospital had not reported the parents' apparent lack of familiarity with reality and released the baby to the parents only to have a very detrimental outcome? You'd be freakin' out and blaming the hospital."

That's mis-assignment of fault; parents are responsible for parents actions. Not the hospital, not teachers, not doctors, or people who spoke harshly to the parents 20 years ago.

So we are left with this case of coercion due to "what IF this something-bad happens". On the hospital side, the bad something is not a bad medical outcome, it is a bad legal outcome.

Caesarian sections are favored, often pressured, because the medical risk is known, low, and controlled; thereby controlling the legal risk. The legal costs of one 'bad outcome' in non-interventional births medically legally/financially justifies the added known risk from caesarian section.
7.17.2009 4:05pm
Steve:
The hospital needed to report the parents' psychotic behavior and the state needed to investigate it and the parents should have participated in the investigation by oh say, actually being cognizant of the fact the investigation was ongoing and showing up at hearings.

I find it somewhat understandable that people who are terrified of the state taking their baby away might be less than cooperative and forthright with state investigators. Now, that might not help them get a better outcome at the end of the day, but I still think it's understandable behavior.
7.17.2009 4:09pm
einhverfr (mail) (www):
Steve:


I find it somewhat understandable that people who are terrified of the state taking their baby away might be less than cooperative and forthright with state investigators. Now, that might not help them get a better outcome at the end of the day, but I still think it's understandable behavior.


Of course, and what this case does is essentially make such statements negligent for the care of the child. IOW, lying to the state, even when not under oath, as it regards your medical decisions on the record, is evidence that you are unfit to be a parent and should have the kids taken from you.

I wonder if the parents refused to give ANY information to the state on the matter if they could argue that this behavior would be protected by the Fifth Amendment.
7.17.2009 4:15pm
MCM (mail):
Sorry for the rant.


Not as sorry as those of us who had to suffer through a rant written by someone who obviously didn't read the actual opinion in question.
7.17.2009 4:16pm
JamieinAZ:
Hospitals and doctors are mandatory reporters. They cannot and should not release babies to parents who are incapable of taking care of them, or at least incapable of hiding that inability. I agree that someone being threatened with loss of custody may be irrational and a woman in labor gets tons of leeway for erratic behavior, having been such a woman myself. However, there is plenty of evidence in the record without the mother's decision not to consent to a c-section that could lead child protective services to take a second look. Remember, this woman met with multiple psychiatrists while in the hospital.

Is it illegal to lie in such situations? No but don't be surprised when people think you have a problem with reality and the court thinks you lack credibility.

Do you have to participate in an investigation by child protective services? No but don't be surprised that your side of the story isn't fleshed out after you act like you had no idea it was going on (despite the fact your baby has been taken) and you fail show up for mandatory hearings.

Don't want to have a psychiatric work up ordered by the court? No problem but assaulting and threatening psychiatrists in a way that prompts the court to issue a restraining order probably isn't going to help you case.

I support free birth choices. I don't think women should be forced into c-sections in any circumstances (neither does the state of NJ). I'm not sure why it is even up for discussion since that didn't happen in this case and the court's decision is unrelated to her lack of consent and totally related to the parents' mental health status.
7.17.2009 4:44pm
ArthurKirkland:

I believe the key, and unsurprising, sentence is "Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident."


----



the child was born by vaginal delivery without incident."

In other words, the "crazy woman" was correct in her own evaluation about how she could bring forth her child.




I am not persuaded the successful birth vindicated the mother's judgment in refusing medical advice. For example, who would endorse this reasoning in a decision concerning a pension case:

"Despite the opinion of plan advisors that spending $1,900,000 in fund assets on a series of Las Vegas vacations, cocaine binges and strip-club tours -- while investing $14 in state lottery tickets -- was actuarially unsound and that the plan account consequently was "distressed," the $4,000,000 jackpot returned by one of those lottery tickets produced a windfall for plan beneficiaries, vindicated the defendant trustee's investment strategy, and entitled the defendant trustee to a substantial bonus for exemplary investment performance."
7.17.2009 6:01pm
Public_Defender (mail):
Based on the opinion, it looks like the mother and father were fairly treated throughout the legal proceedings. They had lawyers, multiple chances to improve, lots of available treatment and parenting assistance.

I do find it odd that the the concurring judge found that the woman's refusal of a c-section could not be used against her, but that her refusal to wear an oxygen mask, consent to fetal monitoring, or to consent to ultrasounds could be used against her, especially given that many doctors disagree about how much monitoring is really needed during labor.

And without more facts (and maybe there were more in the record than in the opinion), I don't think kicking a doctor out of the room is inherently a sign a the inability to care for a child.

It also looks like the hospital tried to do everything right. As I said in the last thread, I hope they do a thorough review of this to see if there is something they can do better when dealing with the next seriously mental ill maternity patient. Dealing with the mentally ill in crisis situations requires special training (a lot of police officers are getting it, now). If they haven't had the training already, this would be a great opportunity. If they have had the training, this would be a good time for a refresher.

And as skeptical as I am about doctors pushing c-sections (too many push too many interventions), the fact that this baby was born safely does not, by itself, prove that the advice was wrong. Just because you won a game of Russian Roulette doesn't mean it was smart to play. Was this Russian Roulette or another example of overly aggressive doctors? I don't know. With future cases in mind, I hope the hospital reviews this to see if the advice was sound.
7.17.2009 6:31pm
Roger Schlafly (www):
The medical advice was that the c-section was "necessary", not that it was a prudent way to reduce risk. We now know that the medical advice was wrong, and that c-section was not necessary.

These parents mainly lost their child because the authorities accused them of not cooperating. They even got blamed for not waiving their legal right to sue a psychiatrist. No one found that they did anything harmful to the child.
7.17.2009 8:21pm
Horace:
The medical advice was....


Whatever the medical advice was, wasn't it privileged?

Based on the appellate opinion, I find that it stretches credibility to believe that these parents waived their privilege.

The lower court record deserves a closer look.
7.17.2009 8:42pm
Brian Garst (www):

Hospitals and doctors are mandatory reporters. They cannot and should not release babies to parents who are incapable of taking care of them, or at least incapable of hiding that inability.

Hospitals and doctors should not be in the business of making subjective judgments about who is and is not capable of taking care of a child. When they are allowed to do that, you get chilling outcomes like the start of an investigation because a patient (coorectly) rejected particular medical advice.

There never would have been any investigation if not for the erroneous belief that rejecting a c-section justified it. The entire justification for kidnapping this child is that the parents, rightly concerned about tendency of government to use its coercive powers to annex children from their parents, didn't cooperate to some bureaucrats satisfaction. This case is just one more farce in a long line of tyrannical erosions of parental rights.
7.17.2009 9:41pm
Roger Schlafly (www):
It also looks like the hospital tried to do everything right.
The hospital gave incorrect medical advice that the c-section was necessary, failed to follow the reasonable preferences of the patient, made an unfound report of child abuse and neglect, and assisted in the wrongful termination of a couple's parental rights. The hospital's behavior was horrible.
7.18.2009 10:56am
subpatre (mail):
JamieinAZ wrote:
I ask because the c-section refusal and the mother's subsequent denial that she refused only goes to her credibility. ... actions by a mother cannot and will not be admitted as evidence of abuse or neglect but jeez, proof of dishonesty is always admissible to prove defendant's credibility.
and later writes:
Is it illegal to lie in such situations? No but don't be surprised when people think you have a problem with reality and the court thinks you lack credibility.

Do you have to participate in an investigation by child protective services? No but don't be surprised that your side of the story isn't fleshed out after you act like you had no idea it was going on (despite the fact your baby has been taken) and you fail show up for mandatory hearings.

Both the judge(s) and you make the unwarranted and hypocritical leap that —disregarding their lying about the necessity of a Caesarean section— everything else the hospital claimed was gospel truth.

The court claims "VM demonstrated combative and erratic behavior including a refusal to consent to a cesarean section" when refusal to consent is neither combative nor erratic.

The court cites a "medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger"; yet that opinion becomes a lie in the very next breath when the child "was born by vaginal delivery without incident". Where is the finding of 'dishonest' medical records?

The court says "V.M. was not forthcoming about her [psych] treatment or diagnosis.", yet Miranda, Terry and a very long string of other decisions make mandatory self-incrimination (including penalties from failure of self-incrimination or inferences from it) a civil rights violation.

A further reading shows this July decision violating the (admittedly new) requirement for confrontable testimony, since the medical records were presented and spun by DYFS.
[Q: Was there any evidence except DYFS? There were no signs of it.]

Nothing in this case demonstrates any potential for child abuse or neglect beyond the population average. DYFS played on irrational fears, inferences and suspicions. This is one more example —out of thousands— why the burden needs to be reasonable doubt, not preponderance.
7.18.2009 11:32am
Public_Defender (mail):

The hospital gave incorrect medical advice that the c-section was necessary, failed to follow the reasonable preferences of the patient, made an unfound report of child abuse and neglect, and assisted in the wrongful termination of a couple's parental rights. The hospital's behavior was horrible.


My initial judgment was similar to yours (see the comments to the first post) But did you read the opinion? We don't know if the C-section was good advice or bad advice. If you run across a busy street without looking, making it safely to the other side doesn't prove that you were smart not to look. The mother (and baby) might have just gotten lucky. I say "might" because the opinion doesn't give us enough information to judge. That said. I hope the hospital reviews the advice to see if it was correct in hindsight.

The hospital staff also stuck with a horribly difficult patient and delivered a healthy child. The doctor made a judgment that the woman was competent to make her own choices, and the doctor respected those choices. But this woman's weird behavior was enough to raise suspicions to call children's services.

Now, I agree that the decision not to have a c-section can be valid and should be respected. But as later psychological evaluations showed, she had real problems understanding reality, and that problem made her a dangerous mom. She repeatedly turned down parenting classes and much-needed psychiatric help.

As I said above, I hope the hospital reviews how it dealt with her. Maybe they could have identified her mental illness earlier which might have helped them gain her trust. Maybe.
7.18.2009 11:56am
subpatre (mail):
Public_Defender writes: "But did you read the opinion? We don't know if the C-section was good advice or bad advice."
We do know. The advice was bad. A medical opinion that "the fetus demonstrated signs of distress" and "the procedure was necessary to avoid imminent danger" is proven to be 'bad advice' when a vaginal delivery ensues "without incident", delivering a healthy, non-distressed baby.
7.18.2009 12:27pm
Roger Schlafly (www):
I read the opinion, and I found it much worse than I expected. Yes, the mom refused some bad medical advice, and may have been correct to do so. Nobody proved any wrongdoing on the part of the mom, and it could have just been a personality conflict between herself and the obstetrician. She passed two psychiatric exams, and no one identified any abuse or neglect.

The finding against the dad is even more bizarre, as all he did was to stick up for his woman.
[Public_Defender] But as later psychological evaluations showed, she had real problems understanding reality, and that problem made her a dangerous mom.
No, that is not true. Perhaps you are referring to this line in the opinion:
She noted that despite V.M.'s high level of intelligence and education, she was not able to comprehend her situation.
I take this to mean that the mom underestimated the truly evil intent of the authorities in this case. Lots of moms behave erraticly in the delivery room, and this mom had no way of knowing that she would be punished so severely for it.
7.18.2009 1:35pm
einhverfr (mail) (www):
Question for Public_defender:

What does "informed consent" mean in the decision whether or not to have a C-section?
7.18.2009 4:06pm
Roger Schlafly (www):
Informed consent means that the hospital will ask the patient to sign a form authorizing a more expensive procedure that will not interfere with the obstetrician's golf schedule. If the patient refuses, the hospital will have a psychiatric exam done in order to prove that the patient is incompetent to make the decision. If that fails, it will order a second exam. If that also fails, and patient turns out to be right, then the patient must be punished in the most extreme way. Call CPS and have her parental rights terminated. And make up some phony accusation against the dad, just for good measure.
7.18.2009 5:15pm
JamieinAZ:
Subpatre said:



Both the judge(s) and you make the unwarranted and hypocritical leap that —disregarding their lying about the necessity of a Caesarean section— everything else the hospital claimed was gospel truth.



First of all, no doctor can assure an outcome one way or the other. Doctors make recommendations based on what they know given previous experience in similar situations and medical training. Can you really characterize a doctor's medical advice as lying if something else turns out to work too? I heard this woman on NPR once talking about putting some cream from Indonesia on her skin cancer and to date, she hadn't died yet. Her doctor who recommended chemotherapy and surgical removal is clearly a liar!

I don't know what to tell you about the leap you claim the court and I made. When a judge or jury makes a decision, credibility comes into play. The trier of fact has to weigh the evidence and decide who it believes. I don't know what is unwarranted or hypocritical about coming to a decision. Did I miss the part where you revealed that you were in the trial courtroom, hearing the evidence firsthand, and the court made a decision that clearly went against the weight of the evidence? I don't know how the trial court could be accused of making an unwarranted decision since the parents never bothered to show up! The appellate court generally takes briefs and the trial court record to make its decision. Oral arguments, if permitted, are usually non-persuasive and a preliminary decision has been made my the court before the parties ever get through the door.
7.18.2009 5:22pm
Roger Schlafly (www):
Doctors make recommendations based on what they know given previous experience in similar situations and medical training.
That's right. Some obstetricians do a lot of c-sections, and some do very few. They cannot all be correct. In this case the judge said that the medical advice was that a c-section was necessary, and we also know that the c-section turned out not to be necessary. We also know that the hospital made a determination that the c-section was the mom's choice to make, and that a psychiatric exam showed that she was competent to make that choice.

Maybe you would have made a different choice about the c-section. It does not matter. We still have enough info to conclude that the court did a very bad thing.
7.18.2009 5:56pm
NJ Mom:
It needs to be stated: VM was seen by 2 psychiatrists and they both stated that she was competent. That means NOT psychotic.

Her previous therapist stated that she posssibly had "schizoaffective disorder". That is NOT paranoid schizophrenia! huge difference!

I also want to point out that VM was at St. Barnabas which is in the middle of a very affluent area. I believe 85% of the patients are privately insured. I would gather that VM was very different from the typical St. B's patient (based on the fact that she had a public defender in court). I'm willing to bet that if VM behaved the same way in Kings County Hospital, there wouldn't have been such a rush to contact child services. Meaning, I don't know that St. B's knew how to handle her.
7.18.2009 7:00pm
NJ Mom:
And I'll also add that when I was in labor with my son 3 years ago, I also rejected a lot of the ridiculous interventions that the hospital wanted to bother me with...IV hookup, constant fetal monitoring are 2 examples. The difference for me was that I was polite, I stated to the staff my desires and I was very stern about having them carried out. Also, having been a hospital social worker before, I had the added advantage of knowing "how" to speak to hospital staff so that I would be heard. And I made it loud and clear that I was aware of my rights several times...because they are so gosh darn intrusive!

VM did not have that advantage.
7.18.2009 7:13pm
Horace:
I don't know how the trial court could be accused of making an unwarranted decision since the parents never bothered to show up!


And from the appellate decision, the proof of service was?

Did these parents waive personal service of the complaint?
7.18.2009 7:31pm
JamieinAZ:
You are so right, Horace. In fact, how do we even know this woman gave birth?

If the defendants failed to raise a service of process issue in their first responsive pleading, it is waived. If their defense is lack of proper service, their attorney missed the boat.
7.18.2009 8:36pm
Roger Schlafly (www):
We don't know what arguments were raised by the parents' lawyers. Their briefs are not online. But what's the point? Do you really think that the parents should lose all their parental rights because they missed one court appearance? Shouldn't someone have to prove that they did something that was actually harmful to the child somehow?
7.18.2009 8:46pm
JamieinAZ:
Roger, the law does not require the child to be harmed before the state makes a decision to remove the child. NJ law is spelled out pretty clearly in the opinion.

The parents didn't lose custody because "they missed one court appearance." They lost custody because they failed to follow the steps prescribed by the court to regain custody.
7.18.2009 9:05pm
Horace:
But what's the point?


The question in my mind is whether these proceedings were so fundamentally unfair that they violated the fourteenth amendment's guarantee of due process.

If the proceedings were commenced without adequate notice of the nature and cause of the complaint, and without a meaningful opportunity to defend....
7.18.2009 9:07pm
cathyf:
For reasonably well-understood physical reasons, it is not at all unusual for a woman in labor to have acute psychotic symptoms, and then to recover completely within a few days after delivery and never have any symptoms again. Just like it is not at all unusual for a woman with gestational diabetes to recover completely after delivery and never have any problems with her blood sugar for the rest of her life.

For this reason alone, the notion of taking custody of a child based upon the mother's peripartum behavior is completely unreasonable.
7.18.2009 9:10pm
Roger Schlafly (www):
NJ has a law against abuse and neglect. The law exists for the sole purpose of preventing harm to kids. Where is the abuse that matches the NJ definition of abuse? Where is the neglect? What harm is being prevented? The court failed to answer any of these questions.

I occassionally hear people wanting a law requiring all new parents to take a parenting class. If NJ had such a law, and the penalty was losing the baby, then maybe this couple would deserve to lose their baby. But NJ has no such law.
7.18.2009 9:26pm
Alan P (mail):

For this reason alone, the notion of taking custody of a child based upon the mother's peripartum behavior is completely unreasonable.




Where is the abuse that matches the NJ definition of abuse? Where is the neglect? What harm is being prevented? The court failed to answer any of these questions.


This is getting tiresome.

Did either of you even bother to read the ENTIRE decision.

Read it and tell me with a straight face that the only problem was the mother's post partum behavior or that there was no evidence of abuse.

Four judges, the trial judge and the three appellate judges, including one who filed a concurring opinion all agreed that the facts, aside from just refusing a C Section, justified the decision. Presumably, unless all judges are corrupt and all government action is inherently suspect (a view undoubtedly held by various posters here) they had access to the complete record and that record, even the summary of which was stated, involves far more than only erratic post partum behavior and more than ample evidence of a serious risk of abuse.

In the words of Senator Moynahan, everyone is entitled to their own opinion; they are not entitled to their own facts.
7.18.2009 10:07pm
Roger Schlafly (www):
Cathyf said peripartum, not postpartum.

If you think that some established fact contradicts something that someone said here, then just post that fact. Just arguing that we should agree with the conclusion of the judges is not persuasive.
7.18.2009 10:23pm
ReaderY:
1. These laws are constitutional, for the same reason the state can prohibit post-viability abortion.

2. That said, I think the state's efforts would be better focused on prevention than punishment. Given that childbirth can be traumatic, after-the-fact punishment for what transpires during childbirth would not usually seem the best way to achieve the states's objectives.

3, In other words, I indeed think there are cases where the state may need to intervene to save a child. But if the state finds it necessary to intervene, it should intervene in the moment rather than after-the-fact. If it is not willing to intervene in the moment, perhaps it shouldn't intervene at all.

4. Given that punishment would seem better the exception rather than the rule in these cases, I think punishment is particularly ill-advised when (a) no prevention/intervention was done and (b) the doctors' fears, even if well-founded at the time, turn out to have been unnecessary. In some matters a no-harm no-foul approach is best.

5, A system where parents have an absolute in-the-moment right to refuse treatment for their children but then get punished later if they exercise that right in a way the state later dislikes seems to me utterly pathological and the absolute worst of all possible worlds, accomplishing the least at the greatest cost. If the state wants to exercise its authority to ensure treatment for children, it should limit the parent's right to refuse at the time rather than intervene after the fact.
7.18.2009 11:56pm
ReaderY:
I'll point out here that when the Supreme Court decided Roe v. Wade it used virtually the same language to describe fetal non-personhood -- the term "person" as used in the Bill of rights lacks "prenatal application" -- that it had used in a previous enemy-combatant case when it said the term person as used in the Bill of Rights lacked "extra-territorial application"

However, the Supreme Court has subsequently clarified that when it says the term "person" as used in the Bill of Rights lacks "application", it is doing nothing more than making a decision about the jurisdiction of the federal courts, and is not making a decision about the nature or state of being of the putative applicant. Thus, it is by no means clear that the claim that Roe v. Wade decided that the Constitution takes the position that fetus is not a person still represents the law of this country. If the effect of a Court's decision about "application" of the term "person" is only with respect to its jurisdiction and not about whether the Constitution has anything to say about a would-be applicant's substantive status,then there is no basis for inferring that a fetus is not a person from anything Roe said. The later clarification appears to suggest that all the Roe court may have decided was that it didn't have jurisdiction over the question.

I must confess find it absolutely rediculous that people who claim to support Roe v. Wade use terms like "torture" to describe procedures performed on enemy combatants to enance Americans' security that seem to be every bit as safe and effective as procedures performed on on fetuses to enhance their reproductive health. The Supreme Court used identical language to describe their status. Both fetuses and enemy combatants are subject to termination at will. What's the basis for saying one is any no more a person than the other. If there can be no neglect if there is no person to neglect, how can there be any torture if there is no person to harm? If one believes Roe's method for determining one is and is not a person, one ought at the very least be willing to abide by it consistently. In particular if one believes that government policy should not be based on religious conceptions of what is meant by a "person" when those consceptions differ from Roe's, one ought to be willing to abide by that belief when it's ones own religion that's at stake. The conspicuous failure of Roe's supporters to abide by that decision when their own own religious beliefs are involved and their refusal to apply or abide by the Roe framework to determine whether Iraq or al-Qaeda detainees are or are not "persons" raises a strong suspicion that Roe may in fact holds little value for determining what is and is not a "person" in a general case as it purports by its terms to do, and hence may not in fact be workable in practice as a precedent. Although it claims to contain a general, textually-based test for determining what is and is not a "person" and claims to simply apply this test to the specific context of abortion, nobody appears to put any trust in any part of this test the minute one attempts to apply it to any other context. Real precedents don't behave that way.
7.19.2009 12:26am
Roger Schlafly (www):
States cannot prohibit post-viability abortion. Several states have tried, and it has been declared unconstitutional every time. Congress did ban a particular partial birth abortion procedure, but that was upheld only because other post-viability abortion methods were available and legal.
7.19.2009 12:28am
NorthernDave (mail):
While it doesn't seem that this case hinges upon the C-Section (there seems to be too much else going on...) due to possible new research:


caesarian_research

casting concerns on c-sections (I'm not sure I agree with the research's conclusions but that's beside the point) what would be the result if VM had refused out of concerns based on such research? Would she still have been castigated?

As an anecdote on birth, my wife woke up around 5am while pregnant with our last child and said, "There is something terribly wrong with the baby!". Packed her up and fled to the hospital where monitors confirmed her concerns. Emergency C-section with 5 doctors and 11 nurses later and we had a live baby. Lead doctor guesstimated if we'd been 3-5 hours later we would certainly have lost the baby and maybe the mother, too.

Conclusions: Maternal instincts are not to be sneered at and emergency c-sections aren't always a bad thing......
7.19.2009 10:01am
ReaderY:

States cannot prohibit post-viability abortion. Several states have tried, and it has been declared unconstitutional every time. Congress did ban a particular partial birth abortion procedure, but that was upheld only because other post-viability abortion methods were available and legal.


Indeed they can, and all but a handful do. This is simply not a correct statement of the law.

My post suggested that the new enemy combatant cases offer an opportunity for a new argument about Roe because similar language was used in each line of cases. Of course this suggestion is speculative -- the Supreme Court can easily come back and say that just because it happened to have used exactly the same words doesn't mean that it meant exactly the same thing. It can also revisit the issue, buy my argument, but respond by simply offering a different rational than Roe did for essentially the same result on abortion. Justice Ruth Bader Ginsberg has suggested something similar. Justice Ginsberg has said she thinks that Roe's original argument has weaknesses, but she thinks she has a stronger legal theory for reaching the same result.

But there's a difference between offering a somewhat speculative theory and an out-and-out mistatement of facts. Beginning with Roe itself, the Supreme Court has consistently agreed that post-viability abortions can be prohibited except in a limited set of circumstances. Most states, including New Jersey, have prohibited it. There is disagreement as to what the exceptions should be, and state laws on the subject are somewhat different, but this doesn't change the basic result.
7.19.2009 2:02pm
Soronel Haetir (mail):
ReaderY,

The post-viability bans still require health of the mother exceptions. So there may be major limitations but not outright bans.
7.19.2009 2:53pm
Roger Schlafly (www):
Neither NJ nor any other said has prohibited even one post-viability abortion since Roe v Wade.
There is no disagreement about exceptions, or difference in state laws. Under Roe v Wade, the
state cannot even require reporting of the reason for the abortion, no matter how late it is. It is a matter between the pregnant woman and the abortionist physician. If the woman says that she has some emotional issues concerning the birth, that is a sufficient reason. Except that she doesn't even have to say that, as the abortionist does not have to tell the reason to anyone for the abortion to be legal.

This case did hang on the c-section in the sense that refusing the c-section was the reason the hospital, the CPS caseworker, and the judge acted against the mom. The appeals court said that refusing the c-section was within her rights, but that the charge of abuse and neglect was justified anyway based on vague and uncorroborated allegations of erratic behavior in the delivery room.

I am a man, and I have only been in the delivery room as an observer. If erratic behavior in the delivery room is a crime, then I think that it is a wonder that any baby ever comes home with its parents.
7.19.2009 5:27pm
ReaderY:
Roger,

If I understand what you're saying, in your view New Jersey doesn't require documentation of compliance and can't require review of compliance: the Supreme Court has been so focused on preventing burdening abortions that the state can do very little to ensure illegal abortions aren't performed if there is collusion to ignore the law.

I accept this point, but point out simply that right here before our eyes we have a case where New Jersey seems to have intervened. So whatever the merits of the current limitations on the state's ability to effect its interests, here we have a case where it has actually done so. It might not be able to often, but it's obviously not "never". Suggest dropping the issue of its ability and discussing whether, in a case like this, it should.
7.19.2009 7:25pm
Suzy (mail):
After reading the opinion, I'm even more shocked. For those who are saying this case is about so much more than the c-section refusal or how the mother behaved before delivery, can you please clarify what on earth the parents did wrong?

I would address this question to the judges involved, too. Even the most reasonable of the bunch, whose opinion I'm reading, takes pains to point out that the c-section issue and behavior before birth are not relevant, but then is hard pressed to come up with any clear reason why the mother is still unfit. Indeed, the judge brings up refusal of things like a fetal monitor, even though this is the kind of evidence that supposedly shouldn't disqualify her as a parent.

The hidden travesty in this case, given the prominence of the c-section issue, is the shocking treatment of the father. After scouring the opinion, I can find only a few things he did wrong, which don't come even close to justifying the loss of his parental rights. Luckily, he regained his rights, but I understand he still does not have custody for reasons that remain obscure. Even if the state was concerned about releasing the baby to the mother, where was the evidence that the father was not competent? The only evidence they had was that he supported the mother, and would not fight her decisions (as if he could have forced her to have an operation against her will, anyway). Later, only after a child services person shows up to investigate, he is supposedly guilty of lying about his wife's consent to the c-section. However, as I understand it, she had signed a form giving permission for several procedures with the exception of the c-section, so I find it very likely that there was some confusion on that score and he was not trying to lie at all. Then, only after the state has taken his baby from him, he supposedly is evasive and doesn't want to answer investigators' questions. Perfectly understandable at that point. He claims to have known nothing about the hearing, and I see no obvious reason to doubt his word on that, since the couple was merely informed verbally by a state worker. Most insulting of all is that a psychologist diagnoses him as suffering from a "folie a deux", apparently solely because he has the audacity to agree with the mother's point of view, rather than with the state which has taken his baby! And come on, folie a deux? Are we in Victorian times?
7.20.2009 5:21pm
Roger Schlafly (www):
Suzy, you are correct. The c-section refusal is the only accusation with any specificity. Other than that, there is no hard evidence. There is some vague hearsay about erratic behavior, but there is nothing that presented a danger to the baby. CPS managed to get its own psychiatrist to testify against the couple, but her report has only the vaguest warnings like "anything could happen there at any time". It was contradicted by other psychiatrists. If the couple lied to the court then perhaps they could be tried for perjury, but they were not, and taking the baby is not the penalty for perjury anyway.
7.21.2009 10:22am
einhverfr (mail) (www):
Part of the problem with the C-section issue is that case law seems wildly unsettled. Maybe the Supreme Court can take up a case of this nature?

Comparing In Re A.C. and Pemberton v. Tallahassee Memorial Medical Center is quite interesting. In In Re AC, the court placed a tremendous emphasis on the question of informed consent and held that there was a Constitutional and common law right to make an informed refusal where there was no clear law to the contrary.

Pemberton (which was not bound by In Re AC due to jurisdictional issues-- different circuits) held that a woman's refusal to show up for a court-ordered C-section was unlawful, and that she had no right to make an informed consent when the alternative meant no more than a 4-6% increase in her and the baby's mortality rate. The court made the analogy to air travel and asked whether passengers would get on a plane knowing that even 2% of them might crash. Unfortunately this case did not get the attention it deserved at the appellate level.

The analogy in Pemberton to air travel is particularly pernicious. Over the last few years, fatal incidents involving US- and European-made aircraft have been well reported and subject to safety review and reporting. This has meant we have a very good idea of how safe air travel actually is. The hull loss rate is about one per million departures, and the fatal incident rate is about half that. In short, out of every one million departures, an airframe is damaged beyond repair. Out of every two million departures, at least one person is killed due to being on the airplane, being in contact with the airplane, or being exposed to the jet blast. This includes things like AF447, but also things like a cargo loader in some other country being killed when he gets trapped between the loading equipment and the airplane......

I would argue that if air travel fatal accident rates were uniformly 10 times greater than they are today far fewer folks would ride an airplane. Yet our maternal mortality rate in this country is 13 per hundred thousand-- more than two orders of magnitude higher than the fatal incident rate in scheduled air travel, and at least an order of magnitude higher than the fatal incident rate in general aviation (private pilots and the like, which incudes a fair number of suicides as well). If we expect giving birth to be as safe for the mother and child as an airplane flight, then EVERYTHING which reduces IN ANY WAY the risk of mortality MUST legally be done, and informed consent becomes a term in that context with no meaning.

It seems that the question of neglect or abuse in these cases is implicit in cases like Pemberton (just as it is in cases like Daniel Hauser). In order for the court to make an order, the court has to determine that the parents are not meeting their legal responsibilities.

There are valid circuit splits developing on this issue and I hope the Supreme Court reviews such a case in the near future.
7.21.2009 11:05am

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