Rights vs. risks ...
By Carissa Wolf
The Idaho Statesman, February 25, 2003
Last summer, Corissa Mueller entered St. Luke's Regional Medical Center seeking routine medical care for her feverish baby daughter. Hours later, the mother was accused of child neglect, detained by police and lost custody of her infant daughter. It all happened under a law doctors say protects children and Mueller is asking lawmakers to change.
Corissa Mueller decorates her family's East Boise suburban home in the motif of child protection. Child safety gates enclose the home's staircase not only at the top, but the bottom as well. Latches keep cabinets closed. Safety closures prevent Mueller's curious toddler from opening toilet seats. Plastic serves as a barrier between peering children and the family room fireplace. Padding, in the shape of a rubber duck, encases the bathtub's angular plumbing fixtures.
Mueller, 29, puts her children's safety and protection above the latest decorating schemes.
"Having children opens you up to a kind of vulnerability and love you never knew before," she said.
And like any doting mother, the stay-at-home mom will tell you her children's welfare always comes first.
So when Mueller lost custody of her baby daughter last summer, she says she felt abused by a law that's intended to protect.
"This event has opened me up to realizing how much parents have lost their rights," Mueller said of the night at St. Luke's.
The day was Aug. 13, 2002 -- a day Mueller does not want to remember, but must relive in courts and before lawmakers this week. That day, Mueller didn't know if she would see her daughter again.
On a warm August evening, 5-week-old Taige Mueller's temperature rose, then fell, then rose again as the evening turned to night. She hadn't been nursing well all day and her mom, Corissa, suspected the tiny infant caught the same cold the rest of the family had passed around. Under the advice of Taige's degree-holding naturopath, Dr. Karen Erickson, Mueller took Taige to the emergency room at St. Luke's, while her husband Eric, an engineer, stayed at home with their toddler son, Von.
Doctors at St. Luke's told Mueller there was a 5 percent chance Taige had contracted meningitis and wanted to perform a lumbar puncture or spinal tap to test for the infection. Mueller said they also wanted to inject Taige with antibiotics and steroids.
Mueller calculated there was about a 95 percent chance that Taige did not have meningitis and likely had the same cold the family just kicked. She knew spinal taps, steroids and antibiotics carry risks that could also be translated into percentages.
Under Erickson's advice via telephone, Mueller asked doctors to wait to perform the lumbar puncture until initial lab results were returned and Erickson had a chance to confer with the doctors. As intravenous fluid dripped through Taige's veins, her fever began to drop. Noting Taige's improvement and weighing the risks associated with spinal taps, steroids and antibiotics, Mueller continued to decline administration of the drugs and procedure but consented to a urinalysis, blood test, X-ray and I.V.
That decision was made in the best interest of her child, Mueller said.
Mueller did not know that that decision would prompt a hospital nurse to call Child Protective Services.
Under Idaho code 16-1612 of the Child Protective Act, a child may be removed from the care of a parent without a court order "only where the child is endangered in his surroundings and prompt removal is necessary to prevent serious physical or mental injuries." Statute 16-1616 of the same act says a court may authorize the medical treatment of a child when a physician informs the court, either orally or in writing, that "in his professional opinion the life of the child would be greatly endangered without certain treatment and the parent, guardian or other custodian refuses or fails to consent."
As the night wore on, Mueller noticed Taige's condition began to improve. According to the tort claim Mueller filed in district court, an attending physician introduced Mueller to a detective from the Boise Police Department shortly after Mueller asked if she could take Taige home. Mueller said the detective told her she was endangering Taige by postponing antibiotics and the spinal tap.
Taige's temperature rose to 101 degrees. Mueller said that as she went toward a telephone to confer with Erickson about going ahead with the spinal tap, antibiotics and steroids, the detective stepped in front of her and delivered notice that Taige was to be seized and removed to a shelter. As Mueller turned around, she said, she saw her child taken away. Mueller was dragged down the hall by two police officers.
Mueller, outraged and frantic, demanded her nursing infant be returned.
"I didn't know if I would ever see my daughter again," she said.
At that moment, Mueller said, she lost her rights as parent.
The Boise Police Department could not comment about the situation because of a tort claim filed by Mueller against the department, police spokesperson Rich Wright said.
"I had never left her," Mueller later said. "Not with my mom or with her dad because she was so dependent on me. She didn't take a binkie or bottle. I was the only one who could really soothe her."
"The standard of pediatric care for a 5-week-old with a fever without a source is to do a full exam and treat with antibiotics," said Dr. Jerry Hirschfeld, administrator of St. Luke's Children's Hospital.
"Time is of the essence, especially with meningitis," Hirschfeld said. And when a 5-week-old baby comes in with a 101 degree fever, meningitis is one of the first things that pops onto a doctor's radar screen, Hirschfeld said.
"One out of 10 5-week-old babies have a fatal infection if not treated," Hirschfeld said days after the state seized Taige.
Doctors believed Taige's life was in danger and under the Child Protection Act can ask the state to assume custody if the parents refuse life-saving treatment, Hirschfeld said.
"We have situations where a child comes in and parents refuse standard care and that refusal could be fatal. That was the case here."
Hirschfeld said 99.9 percent of the time, parents and doctors come to an agreement when rendering medical care to a child. About three or four times a year, they don't come to an agreement. If the disagreement is the difference between life and death, Hirschfeld said, the Child Protection Act can save a life.
"The child was not able to advocate for herself. In this case, under law, we had the responsibility to intervene."
Doctors performed the spinal tap and administered antibiotics without Mueller's consent. They later diagnosed Taige with a cold and she and her mother were reunited almost two hours after their separation.
Mueller left the hospital with Taige that evening, but she said she had no idea that because she sought medical help, her baby would be removed from her custody, her baby would be medicated and treated without her consent and she would leave the hospital with her actions officially branded in state records as "child neglect."
Doctors told Mueller that Taige ran a 5 percent chance of having meningitis.
Mueller, an engineering graduate, said she was ready to talk statistics with doctors that night.
Mueller knew meningitis rarely occurs. According to the Idaho Department of Health and Welfare and state epidemiologist, 10 cases of viral meningitis were reported in the state during 2000. During 1999, five cases were reported. Between 1999 and 2001, two deaths were attributed to meningitis in Idaho, according to the Bureau of Vital Statics.
And Mueller knew no medical procedure was 100 percent risk free.
"There isn't zero percent risk in any medical procedure, " said Dr. David Bettis, a pediatric neurologist in Boise.
A spinal tap, he said, "is a very safe procedure in experienced hands" and carries few risks when performed on infants.
But the risks do exist. Risks associated with spinal taps include hypersensitivity, pain, discomfort, headache, bleeding into the spinal canal and brain herniation, according to the National Institute of Health.
And injections of antibiotics and steroids presented Mueller with another set of risks.
Still, there was that 5 percent chance Taige had meningitis.
"When can the public intervene and take a child away from a parent? At 5 percent? 10 percent? At what percent can custody be stripped from a loving, caring, intelligent parent?" Mueller's attorney John Runft asked.
The Child Protection Act does not define a percentage at which a parent's custody ends. The act leaves the professional opinion of doctors, abuse investigators and magistrates to determine when a medical treatment is immediately necessary to save a child's life.
"The (current) statute is not perfect," he said. "It would appear that section 1612 fails to describe the immediacy of the endangerment in terms of lack of time to call a magistrate."
"For months, every time I would look at (Taige), I would be reminded of the most horrific event of my life," Mueller said.
Corissa and Eric Mueller don't want other parents to experience what happened to their family when they sought medical care.
This week, Mueller is asking lawmakers to re-examine the Child Protection Act and approve a measure that would revise how and when a parent could lose custody of a child. She said no law should allow the state to seize custody of a child from loving, caring, responsible parents.
Kuna Republican Rep. Bill Sali pitched the proposal to The House Health and Welfare Committee Feb. 10 -- the deadline for introducing legislation. Without debate, the committee unanimously voted to print the proposal Sali said would protect parental rights.
Doctors and child welfare advocates said they were unaware of the introduction of a bill that they say could radically change the Child Protection Act and put children's lives at risk.
Under Sali's measure, a parent could lose custody for refusing medical treatment only if a "reasonably prudent person" concludes the treatment is necessary to save the child's life. If parents refuse treatment, the bill allows a court hearing for the parents to explain the reasons for their refusal. Under the bill, the judge would have to consider a parent's effort to treat his or her child with non-medical health care.
"It puts process in the middle of removing the child so the parent gets heard," Sali told lawmakers.
It also defines who can determine when a child is abused. Under current law, statute 16-1602 of the Child Protection Act reads, "'Abused' means any case in which a child has been the victim of: Conduct or omission resulting in skin bruising, bleeding, malnutrition, burns ... (etc.)."
Under Sali's proposal, the statute would read, "'Abused' means any case in which any reasonable person aware of all the relevant facts would conclude that a child has been the victim of: Conduct or omission resulting in skin bruising, bleeding, malnutrition, burns ..."
The addition of a "reasonably prudent person aware of all the relevant facts" to the Child Protection Act would prevent well-meaning parents such as Mueller from losing their children, Sali said.
"She was able to make a rational decision," Sali told lawmakers of Mueller's decision to postpone Taige's spinal tap. Any reasonably prudent person aware of all the relevant facts would likely conclude that Mueller was not an abusive parent, Sali said.
Hirschfeld said the bill could stall life-saving treatment.
"It creates obstruction and barriers to timely intervention and it really creates an imbalance from children's rights to parent's rights," Hirschfeld said.
The insertion of 11 words in statute 16-1602 of The Child Protection Act could mean the difference between life and death for some children, Hirschfeld said.
"It sometimes takes time to get all the facts," he said.
And doctors and critically ill or injured children don't often have a lot of time. But if a parent does disagree with a doctor's treatment plan, parents have plenty of opportunity for response through courts, he said.
"But a child often has only one opportunity. If we lose that child, we lose the opportunity."
And trained doctors of medicine are often the only people qualified to decide when a child's life is at risk.
"I get real concerned when I see language inserted that says 'any reasonable person aware of all the relevant facts.' Quite frankly, in cases of child abuse and neglect, a great deal of experience is needed to discern and define that maltreatment or neglect has occurred. Most of us running around are reasonable people, but most of the population does not have the experience needed to define child abuse and neglect."
The Idaho Department of Welfare said the wording of the bill is vague and may affect how doctors, law enforcement and judges handle child abuse cases, said department spokesperson Tom Shanahan.
And child welfare advocates worry that the wording of Sali's bill may prevent some people from reporting abuse.
"(The proposed law) will say you have to have all the relevant facts before you report, and I don't think it's feasible for an ordinary citizen to have all the relevant facts," said Susan Hazelton, executive director of the Family Advocate in Boise.
"What we tell people to do if they suspect child abuse is report it to the police or child welfare agency because they (the agency or police) have the responsibility of gathering all the relevant facts."
The legislation also could weaken the rights of children, said Leah Lamb, a forensic pediatric physician with St. Luke's Child At Risk Evaluation Services.
"There needs to be legislation that stands for children. Parents can call lawyers; they have methods to protect themselves."
She said the legislation folds parents rights into an act that should be purely and simply for the protection of children. She worried the insertion of those 11 words could change how child-abuse cases are investigated.
"As a physician, I need all the relevant facts or the next door neighbor would need all the relevant facts," she said.
She said law enforcement and health and child protection services are charged with gathering all the relevant facts now, but if the law changes, doctors may have to wait before intervening when they suspect child abuse.
"I have seen children sent home and the next time I see them is in a morgue. To risk the life of a child, just one child, is too much."
Last revised: January 7, 2009