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.

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"?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

Question for Public_defender:

What does "informed consent" mean in the decision whether or not to have a C-section?

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.

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.

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?

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?

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....

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.

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.

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.

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......

ReaderY,

The post-viability bans still require health of the mother exceptions. So there may be major limitations but not outright bans.

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.

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.