STATE OF MICHIGAN
KENT COUNTY CIRCUIT COURT -- FAMILY DIVISION
IN THE MATTER OF:
Kyron and Christian Robinson
Kathleen A. Feeney
David R. Gersch (P-26091)
Joseph F. Tevlin (P-34548)
Respondent Larson’s Attorney
P.O. Box 914
508 - 28th
Ada, MI 49301-0914
Michigan Protection and Advocacy
William A. Forsyth (P-23770)
Service, Inc., Amicus Curiae
Kent County Prosecutor
BY: Amy E. Maes
By: Kevin Bramble (P-38380)
Calvin A. Luker (P-32371)
82 Ionia Ave. NW, Ste 400
29200 Vassar Blvd., Suite 501
Grand Rapids, MI 49503
Livonia, MI 48152-2192
MICHIGAN PROTECTION AND ADVOCACY SERVICE,
AMICUS CURIAE MEMORANDUM OF LAW ASSERTING NO
Experience should teach us to be most on our guard to protect
liberty when Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their
liberty by evil-minded rulers. The greatest dangers to
liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding.
Olmstead v US, 277
US 438, 479 (1928).
Michigan Protection and Advocacy
Service, Inc. [MPAS] submits this amicus curiae memorandum per
this Court’s October 2, 2002 verbal order granting MPAS’
motion seeking permission to file same. MPAS understands the
timing considerations present in this case, and appreciates
this Court’s willingness to allow MPAS to speak directly for
itself and its many constituents who have a significant stake
in how this case is resolved.
This case asks whether
Michigan’s Probate Code, Chapter XII A, MCL 712A.1 et. seq.
[the Code], empowers family court judges to authorize elective,
non-routine, non-emergency medical surgery for children who are
temporary wards of the court. This jurisdiction issue is one of
law, not of fact, and presents a case of first impression in
Michigan. Diligent library and computer research has not
disclosed any similar reported cases from other state or federal
courts. MPAS asserts that the Code does not confer jurisdiction
on family courts to authorize such surgery.
Issue I proclaims the right of
parents to “parent” children; making medical and other essential
decisions for them is a fundamental right under the United
States Constitution. The ability of the state to insert itself
into the family and to intervene in core family decisions is
subject to those constitutional interests. State laws and
levels of intervention must be evaluated in a constitutional
context even when, as here, the state has properly -- but to
this point only “temporarily” -- asserted control over the
parents and children. While the Constitution clearly permits a
state to act to protect children when their parents have failed
to do so, the level of intervention depends as much on the
parent’s current status as it does on the children’s best
interests. True, it is the parent’s conduct, and not the
state’s, that places the parent’s fundamental rights in
jeopardy, but those rights continue in some form right up until
the state, after affording full due process, lawfully terminates
Issue II observes that the Code’s
primary objective in abuse and neglect cases is to reunify the
family. The Code gives family courts broad authority to address
the family’s access to and ability to benefit from services
designed to help the family correct the factors creating the
neglect and abuse so that the family can be reunited. The Code
clearly and unambiguously preserves for parents their right to
make “nonemergency, elective surgery” decisions for their
children who are temporary court wards, MCL 722.124a(3). The
Department of Human Services [FIA] has implemented policies
specifically designed to ensure that parents retain their right
to make “nonemergency, elective” medical decisions for their
children who temporarily have been placed outside the home, (FIA,
Children’s Foster Care Manual [CFF] 722-11; CFB 2001-008;
12-1-2001). This interpretation makes the best sense given the
statutory intent that the family will be reunited
MPAS concludes with Issue III,
describing how the policy considerations attendant in the above
arguments compel a decision that this Court does not have
jurisdiction to authorize the requested elective surgery here.
As a matter of policy, this result is necessary not just for the
Larson family, but for all families who have children with
disabilities. Ms. Larson’s parental rights have not been
terminated, and her right to decide whether her children should
have cochlear implants [CI] has been preserved for her by
Michigan law and FIA policy. MPAS understands that Ms. Larson’s
competency to make the CI medical decision for her
children has not been placed in issue. Instead, there is a
difference of opinion between Ms. Larson and others about
whether the CI’s will benefit the children. This Court would
not be involved in the CI issue but for the fact that her
conduct in an area completely unrelated to the children’s
deafness allowed this Court to take jurisdiction. There is
worldwide controversy over the use of CI’s, embracing medical,
mechanical and cultural issues. Reasonable minds disagree.
Many deaf parents who have deaf children have chosen not to use
the implants either for themselves or their children. Michigan
and federal constitutional and statutory law and practices honor
and embrace the family unit as the centerpiece of the fabric of
America. Taking Ms. Larson’s right to make this core medical
decision on behalf of her children would rip that fabric, and
imperil her ability to reunify her family. The policy
determination that reunification honors both Ms. Larson’s
fundamental right to parent and her children’s rights to be
parented by her would be dashed if the necessary intervention
created by her conduct last fall was followed by the forced
surgical invasion of her children’s bodies against her will now.
Ms. Larson and her children are not
the only stakeholders in this case. This is, after all, a
question of law, not of fact. For families who have children
with special needs, family culture and values are central to how
the family survives and whether the family thrives in a world
that devalues disability and values uniformity. ALL families
are special and unique, but families who have children with
disabilities regularly encounter barriers that impact on the
family and require them to form a different view of how “normal”
is defined within their family, and how they interact with the
world around them. Second-guessing by outsiders is a regular
part of that life, and contributes to the development of the
family’s culture. A decision allowing “outsiders,” including
this Court, to invade the family core by second-guessing
parental decisions about how and by whom their children’s
disabilities will be treated takes a challenging family
environment and threatens its very core.
Statement of Interest of Amicus Curiae
MPAS’ decades of experience in
protecting the rights of persons with disabilities renders MPAS
uniquely qualified to assist this Court in determining and
defining the rights of children with disabilities and the
court's jurisdiction to hear and decide a petition to perform
elective, non-routine, non-emergency surgery on children who are
temporary wards of the court when they are children with
disabilities. MPAS, as a result of its history of representing
the interests of persons with disabilities and its first-hand
knowledge of the devaluation and vulnerability of such persons,
has grave concerns about the implications of the decision to be
made by this Court and appreciates the complexity of the issues
presented. Amici's constituents include thousands of Michigan
citizens who have disabilities and are parents of children who
have disabilities. Parents have a fundamental liberty interest
in raising their children, as do children in being raised by
their parents. A court decision authorizing a surgery which
could compromise the family culture is tantamount to terminating
the parents’ right to raise their children. These interests go
beyond constitutional issues and into ethical, cultural and
societal concerns of the highest magnitude.
MPAS’ previously submitted motion
seeking permission to file this brief states its federal
mandates and Michigan statutory obligations. The motion and
brief are attached to and incorporated into this brief as
The parties before this Court are a
deaf mother and her two deaf children, ages 3 and 4. This Court
properly exercised subject-matter jurisdiction over the parents
and children and declared the children temporary wards of the
court after finding that the mother neglected the children by
leaving them with care providers who then physically abused
them. Neither the mother’s nor the children’s deafness were
direct factors in the activity that led to this Court’s
MPAS’s brief is based upon the
following facts, which MPAS reasonably believes are not disputed
in this case:
Ms. Larson is deaf.
Both children are deaf.
The children are temporary court wards.
Ms. Larson’s competence to decide whether her children
should have cochlear implants is not at issue.
Ms. Larson has a parenting plan in place and is making progress
on its objectives.
The goal of family court intervention in this case remains to
reunify Ms. Larson and her children.
The fact that the children are deaf does not create an emergency
situation within the meaning of MCL 722.124a.
Cochlear implant surgery is elective and not routine surgery.
Ms. Larson wants to be reunited with her children.
Ms. Larson’s children want to be reunited with her.
There has been court testimony on the Deaf culture, including on
aspects related to a belief within parts of the Deaf culture
that deafness is not a disability, but rather a culture that has
its own language.
THE RIGHT TO PARENT IS A FUNDAMENTAL CONSTITUTIONAL RIGHT.
States Supreme Court, in Parham v J. R. 442 US 584
(1979), stated the constitutional dimensions of the American
historically has reflected Western civilization concepts of the
family as a unit with broad parental authority over minor
children. Our cases have consistently followed that course; our
constitutional system long ago rejected any notion that a child
is “the mere creature of the State” and, on the contrary,
asserted that parents generally “have the right, coupled with
the high duty, to recognize and prepare [their children] for
additional obligations.” Pierce v. Society of Sisters,
268 U.S. 510, 535, 45 S.Ct. 571,573, 69 L.Ed. 1070 (1925). See
also Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct.
1526,1532, 32 L.Ed.2d 15 (1972); Prince v. Massachusetts,
321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed.645 (1944);
Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 627, 67
L.Ed. 1042 (1923). Surely, this includes a “high duty” to
recognize symptoms of illness and seek and follow medical
advice. The law’s concept of the family rests on a presumption
that parents possess what a child lacks in maturity, experience,
and capacity for judgement required for making life’s difficult
decisions. More important, historically it has recognized that
natural bonds of affections lead parents to act in the best
interests of their children.
Id., at 601.
In Smith v Organization of Foster
Families for Equality and Reform, 431 US 816 (1977), at 844
the Supreme Court wrote that:
...the importance of the familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of daily
association, and from the role it plays in “promot(ing) a way of
life “through the instruction of children, Wisconsin v. Yoder,
406 U.S. 205, 231-233, 92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15
(1972), as well as from the fact of blood relationship.
Parham, supra, at 621, Justice Stewart, concurring, noted
centuries it has been a canon of the common law that parents
speak for their minor children. So deeply imbedded in our
traditions is this principle of law that the Constitution itself
may compel a State to respect it. In ironic contrast, the
District Court in this case has said that the Constitution
requires the State of Georgia to disregard this established
principle. I cannot agree.
Finally, in Parham, Id.,
at 602, the Court wrote that:
some parents “may at times be acting against the interests of
their children” creates a basis for caution, but is hardly a
reason to discard wholesale those pages of human experience that
teach that parents generally do act in the child’s best
interests. The statist notion that governmental power should
supersede parental authority in all cases because some parents
abuse and neglect children is repugnant to American tradition.
These cases leave no doubt about the
importance of Ms. Larson’s fundamental right to parent her
children, and to remain in the center of their lives medically.
ISSUE II: THE CIRCUIT COURT FAMILY DIVISION DOES NOT
HAVE STATUTORY JURISDICTION PURSUANT TO THE JUVENILE CODE TO
ORDER NONEMERGENCY, ELECTIVE SURGICAL TREATMENT FOR CHILDREN
TEMPORARILY PLACED IN OUT-OF-HOME CARE.
The child protective jurisdiction of
the Family Division of the Circuit Court (formerly the Probate
or “Juvenile” Court) is stated in MCL 712A.2(b)(1) and (2).
The Michigan Supreme Court explained the court’s jurisdiction:
§712A.2(b)(2); MSA 27.3178(589.2)(b)(2) provides the probate
court with “[j]urisdiction in proceedings concerning any child
under 18 years of age found within the court...[w]hose home
environment, by reason of neglect, cruelty, drunkenness,
criminality, or depravity on the part of the parent, guardian,
or other custodian, is an unfit place for the child to live
in.” Within the context of subsection (b)(2), the term
“jurisdiction” refers to the probate court’s authority to hear
and decide a case on the basis of a finding of fact that the
child belongs to the class of children over who the court has
the power to act. In short, a juvenile court must determine
that the facts of a particular case place a child within the
specific provisions of subsection (b)(2). In re Hatcher,
443 Mich 426, 433 (1993).
The Hatcher court noted that
subject matter jurisdiction is established by pleadings, such as
the petition, rather than by the later trial proceedings. 443
Mich at 438.
Here MPAS agrees that the initial
petition, filed 10/3/01, properly brought Kyron and Christian
Robinson within the subject matter jurisdiction of the court,
because it was of a class that the court is authorized to
adjudicate and the claim was not clearly frivolous.
Hatcher, supra at 437. Clearly, if the allegations of the
first petition were true, the children needed protection from
the court as intended under MCLA 712A.2(b)(2). As a practical
matter, the issue for the court is the parent[s]’ fitness,
rather than the child’s best interests. In the Matter of
Atkins, 112 Mich App 528 (1982). The burden of showing
fitness after the court has taken jurisdiction rests upon the
parent to show she or he is a fit parent. Id.; Matter
of LeFlure, 48 Mich App 377 (1973).
The attorney for the children
subsequently filed the Motion For Court to Order Cochlear
Implants, claiming that it is in the children’s best interests
“...that they receive cochlear implants in order for them to
realize their full potential in life” and that time is of the
essence given “...the ‘window of opportunity’ ...is from birth
through age 4.” Motion, filed 4/11/02, paragraphs 4 & 5. The
court must look to MCLA 722.124a to determine if it has proper
authority to order medical care for these children.
MCLA 722.124a states in relevant
probate court, a child placing agency, or the department may
consent to routine, nonsurgical medical care, or emergency
medical and surgical treatment of a minor placed in
Only the minor child’s parent or legal guardian shall consent to
nonemergency, elective surgery for a child in foster case. If
parental rights have been permanently terminated by the
court action, consent for nonemergency, elective surgery shall
be given by the probate court or the agency having jurisdiction
over the child. (Emphasis added).
This provision is clear
and unambiguous, and explicitly reserves to the parent the right
to make “nonemergency, elective surgery” decisions for their
children who are temporary wards of the state. The cochlear
implant petition expresses that the CI’s are needed “in order
for them to realize their full potential in life.” This
language does not describe either an emergency or a routine
medical treatment situation. The court therefore does not have
a clear grant of authority to order surgical cochlear implants
as a form of medical care under this statute because the statute
vests that right in Ms. Larson under the present
circumstances. In a similar vein, there is no petition
allegation claiming that Ms. Larson lacks the competence to
decide whether her children should have the implants. See In
re AMB, 248 Mich App 144 (2001), where the court noted that:
think it important to draw a distinction between cases in which
the parent cannot make a decision for the child because of
incompetency or another legitimate reason and cases in which the
factors bringing the case to the family court’s attention are
unrelated to the parent’s competency or other factors that would
disqualify the parent as a decisionmaker. ... [W]hen the
allegation is that the parent ... is incapable of making a
decision concerning the patient’s care because of incompetency,
there must be clear and convincing evidence that this
incompetency actually exists. (Emphasis original) Id.,
at 205, 206.
Here the children’s attorney is
asking this Court to use a “best interests” approach to
secure a decision ordering the cochlear implant surgery
without regard for Ms. Larson’s constitutional interest in
parenting, and without considering Ms. Larson’s ability to
evaluate and decide for her children whether or not they should
have the surgery.
Michigan courts should strictly
construe statutes and case law to protect the lives and welfare
of children. It is well-settled that “[t]he jurisdiction and
powers of the probate court are derived entirely from the
statutes.” Ashbaugh v Sinclair, 300 Mich 673, 676; 2
NW2d 810 (1942); In re Kasuba Estate, 401 Mich 560, 566;
258 NW2d 731 (1977). Also well-settled is that the “Legislature
is presumed to be aware of, and thus to have considered the
effect on, all existing statutes when enacting new laws.”
Walen v Department of Corrections, 443 Mich 240, 248; 505
NW2d 519 (1993).
Given that the Legislature is
presumed to know the law, Walen, supra, the ambiguous
language of §722.124a(1) and (3) can hardly be said to
acknowledge, let alone purport to satisfy, the substantial
interests and heavy presumptions attendant in the fundamental
right to parent implicated by non-routine and non emergency
medical treatment or surgery. Not only would such a strained
interpretation be unreasonable, but the absolute lack of any
statutory scheme providing procedural and substantive
protections would doom the statute to a finding of
unconstitutionality, had jurisdiction truly been intended.
It is also well established that if
statutory language is clear and unambiguous, judicial
construction is neither required nor permitted, and courts must
apply the statute as written. People v Morey, 461 Mich
325, 603 NW2d 250; In the Matter of Huisman v Huisman,
230 Mich App 372; 584 NW2d 349; Sun Valley Foods Co. v Ward,
460 Mich 230, 236; 596 NW2d 119 (1999); Barr v Mount
Brighton Inc., 215 Mich. App. 512, 516-517; 546 NW2d 273
(1996); Tryc v Michigan Veterans’ Facility, 451 Mich 129,
135; 545 NW2d 642 (1996).
The Family Independence
Agency (FIA) is the State agency responsible for enforcement of
Michigan’s Child Protection Laws and is therefore entitled to
deference regarding its interpretation of the Child Protection
laws. Although it remains the Court’s responsibility to
determine the meaning of the statute, it must give "appropriate
deference" to the agency's interpretation. Department of
Civil Rights ex rel Parks v General Motors Corp, 93 Mich App
366, 373-374; 287 NW2d 240 (1979). This Court ordinarily
defers to the construction of a statute by the agency charged
with applying it unless the interpretation is "clearly wrong."
“Jones-Jennings v Hutzel Hosp, 223 Mich App 94, 105; 565
NW2d 680 (1997). In this regard, FIA has stated that “only the
child’s parents may consent to non-emergency elective surgery
unless parental rights have been terminated by court action.”
Policy CFF 722-11.
ISSUE III: FAMILIES WHO HAVE CHILDREN WITH
DISABILITIES OR SPECIAL NEEDS FORM FAMILY CULTURES AND VALUES
THAT CELEBRATE AND EMBRACE THE DIVERSITY OF DISABILITY.
Deaf Culture exists. The testimony
has established it, and this Court should now have become
thoroughly educated on the divergent opinions within the
disability community. Here is the larger picture.
There are 225,000 children and young
adults in Michigan who receive special education services. They
are 225,000 kids and young adults who might some day be a party
to an abuse and neglect action under the Code. What do those
families deal with on a daily basis? Here’s a list.
Daily or frequent medical services, often with professionals who
do not know the family or its culture.
Accessing and using community services on a weekly or more
Accessing and maximizing special education services.
Finding and hiring skilled care providers.
Researching and trying to understand what the child’s disability
is and how it should be treated.
Trying not to squeeze out or shortchange the children in the
family who do not have significant disabilities.
Providing for the family financially.
Helping or getting help from other similarly situated families.
The list goes on and on. Families
who care for their children with special needs often have to
fight for services, and often are approached to submit their
children for tests of the latest treatments and medications.
They have recurring emergencies at home and in the community,
like seizures, clogged feeding or breathing tubes, muscle
These are the families who will
receive the benefit or the burden of this Court’s decision
today. These are the people who tell the doctors no, and then
get threatened with abuse or neglect actions if they refuse to
reconsider. These are the parents and children who have formed
their own unique, cohesive emergency response team that just
reacts when things happen. Outsiders never understand the first
time they see it, but some times they call CPS.
These are the families who go any
distance and fight any battle to improve life for their families
-- their children with and without disabilities. Had there been
more time, this brief would have included some of the studies
identifying how these families -- our clients, our families --
form their cultures and values around people, beliefs and
realities that are outside the knowledge of the general public.
The purpose of the Juvenile Code is
to protect and support the vital, fundamental constitutional
relationship between parents and their children. The Michigan
Legislature preserved for the parents the right to make
nonemergency, elective, nonroutine decisions for their children
who are temporary court wards. The statute protects Ms. Larson
and her children from excessive involvement, especially under
the present circumstances. This Court should do so, too. MPAS
asks this for our clients, and for the community as a whole.
MICHIGAN PROTECTION AND
BY: AMY MAES
CALVIN A. LUKER (P-32371)
Dated: October 4, 2002
This argument has been condensed given the time constraints
for brief submission. It adequately sets the stage for
Issue II, which is complete and focuses on the Michigan
statutes central to the resolution of this case.