Judicial Intervention For Morbidly Obese Children: An Interesting Case

1. Judicial Intervention For Morbidly Obese Children:An Interesting Case Interesting Case Presentation Saint Francis Hospital Dept. of Pediatrics Jay E. Sicklick, Esq. & Lisa Kechejian MEDICAL-LEGAL PARTNERSHIP PROJECT October 26, 2007

2. Presentation Goals • Introduce the “obesity dilemma” • Provide a case example of childhood obesity – in the child protection context • Overlay the legal background • Query - when do you request “state intervention?” • Invite discussion re “what is the appropriate intervention protocol?”

3. The Problem

4. The Threshold Question • When does obesity become a child protection issue for the clinician? OR … • How out of control do things have to get before you call DCF when dealing with a morbidly obese child?

5. Case Study • Brittany T: • Age 8 – morbidly obese • 237 lbs • BMI > 50 • Co-morbidities: gallstone, excessive fat in liver, sleep apnea, acanthosis nigricans, signs of depression • Father confined to wheelchair/mother > 430 lbs. in April ’06

6. Case Study (cont.) • Brittany: • PCP indicates significant non-compliance with dietary instructions • “Threats” made on several occasions to call child welfare officials? • Parents seem “incapable” of controlling Brittany’s weight, but really love her • Brittany will be emotionally devastated if removed from home…

7. Case Study (cont.) • What is the appropriate decision? Who decides when enough is enough? • Do you think that removal and commitment is appropriate • Is termination of parental rights a justified action?

8. Legal Context • Mandated Reporting Requirements • Reasonable Cause to Suspect: • Abuse • Neglect • Child w/non-accidental physical injury or one at variance w/history given • Child At Imminent Risk of Harm Source: Conn. Gen. Stat. § 17a-101a.

9. Legal Background • Abuse: • Inflicted w/physical injuries other than by accidental means, • Injuries at variance w/history given • Condition result of • Maltreatment such as malnutrition, sexual molestation/exploitation, deprivation of necessities, emotional maltreatment or cruel punishment Source: Conn. Gen. Stat. § 46b-120

10. Legal Background (cont.) • Neglect: • Abandonment • Denial of proper care and attention, physically, emotionally or morally • Living under conditions, circumstances, associations injurious to the well being of the child … • Has been abused. Source: Conn. Gen. Stat. § 46b-120

11. A Public Health Crisis?

12. A Public Health Crisis? Source: NCHS 2004 NHANES Data

13. A Public Health Crisis • 1999-2002 Data on Obesity (CDC): • Non-Hispanic black (21%) & Mexican-American adolescents (12-19) (23%) more likely to be overweight than Whites (14%) • Another 15% children (6-19) considered “at-risk” of becoming overweight (BMI between 85th-95th percentile). • Since 1994 overweight youths increasing to higher levels

14. Other Cases • Christina C. (California) • 13 y.o. • Weighed 680 lbs. when died of CHF • Mom consented to dropping out of school • Found dead in living room • Mom found guilty of misdemeanor child abuse

15. Other Cases • L.T. (Iowa) • 10 y.o. girl • 290 pounds & yeast infection growing from skin folds in abdomen • Semi-compliant mom • Drove to appts. • Would not send to residential • Chronic depression • Adjudicated as a “CINA” • Placed in state care for residential t/ment & foster care.

16. Other Cases • CINA Statute (IOWA) “ Child in need of assistance” means an unmarried child who is in need of medical treatment to cure or alleviate serious mental illness or disorder, or emotional damage as evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior toward self or others and whose parent, guardian, or custodian is unwilling or unable to provide such treatment. Source: Iowa Code § 232.2(6)(f) (1991)

17. Other Cases • Indiana (Corey A.) • 5 y.o. boy • 138 lbs. • Other health conditions including respiratory distress (r/q oxygen) & sleep apnea • Concurrent conditions in house (garbage, roaches, rats, rotting food • State intervened due to neglect • While in foster care lost 50 lbs.

18. Other Cases • Corey A: Court ruling – commitment: • Intervention appropriate b/c M.D.’s recommendations ignored (diet) “too hard to follow.” • Parents resentful and complained about being instructed how to feed Corey • Parents directly violated diet by giving fast-food meal while hospitalized …

19. Other Cases • Anamarie M. (New Mexico) • 3 y.o. • 120 lbs. & 3’6” tall • Referral made to Child Welfare agcy … • Agcy ordered special diet, exercise • M.D. recommended liquid diet – parents non-complaint • Parents maintained condition “medically” caused • State CW agcy intervened

20. Other Cases • Anamarie (cont.) • Outcome – returned to mom three months after period of commitment • Controversial decision … see www.geocities.com/laurie_avocado/Anamarie • Parents sued the state of N.M. • At 7: 5’1” & 200 lbs., w/bones of 14 y.o.

21. Other Cases • Pennsylvania (D.K.) • 16 y.o. boy • 451 lbs; 5’3” • Mom obese • PCP ordered inpatient stay due to • Enlarged liver, hypertension, respiratory difficulty, insulin resistance, sleep apnea, knee pain • Mom did not visit in hospital • Referral and court intervention … adjudged dependent

22. Other Cases • D.K. Court rationale: “[Child welfare agency] would not be justified by intervening simply because a child was overweight, or did not simply engage in a healthy and fit lifestyle. Rather, the obesity must be of a severe nature reaching the life threatening or morbid state, which has also manifested itself in physical problems, such as those present here, or mental problems…”

23. Other Cases • Texas (G.C.) • 4 y.o. boy • 97 lbs. • PCP request blood sample for diagnostic tests – parents refused. • Parents changed PCP twice • Child hospitalized in 1996 – difficulty breathing & mildly enlarged heart (CHF) • Child removed and placed in foster care

24. Other Cases • G.C. (cont.) • Outcome: continued non-compliance = TPR • Refusal to work with court ordered “homemaker” as role model final straw

25. Connecticut Precedent • In re Kenneth E. 2006 WL 2773444 (Conn. Super., 2006) • 15 y.o. boy • 346 lbs. • Parents “failed to recognize problem” but “unintentional.” • Court denied removal w/parents promise to comply but ordered protective supervision • Happy ending … child lost 56 lbs. in one summer

27. Case Study (cont.) • Brittany T: • Mandated programs to address obesity • Attendance at gym classes 3 days/week • General non-compliance • Absent from school 48 out of 68 school days • State DSS (NY) requested court order to remove and seek commitment due to medical concerns. • Court Granted order placing custody w/DSS

28. History: Our Case Study Source: 15 Misc. 3d 606 (Fam. Ct. NY 2007)

29. A Public Health Crisis? OK135S070

30. End Results • What is the standard for a child welfare referral for an obese child? • When do you make the referral? • Does the potential benefit outweigh removing a child from her home?

31. References • Murtagh, Lindsey, Judicial Interventions for Morbidly Obese Children, 35 Journal of Law, Medicine & Ethics 497 (Fall 2007) • Patel, D., Supersized Kids: Using the Law to Combat Morbid Obesity in Children, Family Ct. Rev. 43 (2005) • S. Arani, Case Comment, State Intervention in Cases of Obesity Related Medical Neglect, 82 Boston Univ. L. Rev. 875 (2002)