Non-Offending Parents’ Right to Make Medical Decisions for Their Kids

After capturing national media attention in September over her right to live and the prerogative of parents to make medical decisions for their children, 16-month-old Aleah Peaslee slipped quietly out of public view when Maine's Supreme Judicial Court dismissed the case that would have determined who should decide her fate: her mother or state officials.

Aleah’s tragic story is worth reflection for what it has to say about whether we, as a society, trust parents—even imperfect ones—to make life and death decisions for their children.

When Aleah was six months old, her father, Kevin Peaslee, 21, an unemployed high school graduate whom his own attorney said had mental health issues, became frustrated when Aleah began crying and violently shook his daughter to get her to stop crying while the child’s mother was at work and the child was in his care. Aleah’s eyes rolled back; “her back arched”; and she stopped breathing. Aleah suffered catastrophic brain injuries.

Urged by doctors to agree to a Do Not Resuscitate (DNR) order for Aleah, which would permit comfort care but bar the use of a ventilator, CPR, or other “invasive procedures,” both parents agreed. Aleah was taken off the respirator and placed into her mother’s arms to die. Doctors told Virginia that Aleah would be dead within ten minutes. Instead, Aleah “breathed without support, opened her eyes, emerged from her coma, and became more alert.” Virginia and Kevin then rescinded their consent to the DNR order and refused to reinstate it.

And there the tussle with the State began.

Aleah’s doctors urged reinstating Aleah’s status to DNR so that doctors could give Aleah strong medications to ease her pain, even though doing so would “result in a cascading series of events that would inevitably lead to her death.” Virginia would not relent.

Maine officials began proceedings to strip Virginia of the power to make a medical decision that would keep Aleah alive. First, the Department of Health and Human Services (DHHS) obtained a child protective order, which permitted them to take custody of Aleah while she was still in the hospital. DHHS then sought court authority to authorize a DNR order over Virginia’s objection because, they said, Virginia (1) failed to protect Aleah from Kevin, (2) maintained her relationship with Kevin, and (3) was incapable of caring for Aleah due to Aleah’s profound injuries.

Shortly after DHHS filed its petition, Kevin was charged with two felony counts of aggravated assault and one felony count of assault, and barred from contact with Aleah and Virginia. In October, Kevin pled guilty to one count of aggravated assault, had the other charges dropped, and is facing a ten-year maximum sentence, with three years suspended, followed by probation for twelve years.

Augusta District Court Judge Valerie Stanfill authorized DHHS to consent to a DNR over a parental objection because “neither parent can be counted on to be physically or emotionally available to make the necessary informed decision when needed.” Judge Stanfill found:

clear and convincing evidence that neither parent is in a position to make medical decisions in [Aleah]’s best interest . . . . [The father] has a clear conflict of interest. Should [Aleah] die, he could be subjected to a charge of manslaughter or even murder . . . . [The mother] is not sufficiently involved or informed about [Aleah]’s condition to make the medical decision based on [Aleah]’s needs rather than her own . . . . [The mother] herself acknowledged that a DNR order was probably best, but she could not bring herself to do it.

She concluded that a DNR was in Aleah’s “best interest,” but she terminated neither parent’s parental rights.

Virginia appealed. An avalanche of publicity followed. When Maine’s governor, Paul LePage, learned of the order, he condemned it as “disturbing.” The DHHS Commissioner likewise disavowed the decision and refused to allow DHHS to change Aleah’s status to DNR without Virginia’s consent, unless her parental rights were terminated. Because no one would enforce the decision, the Maine Supreme Judicial Court dismissed the case.

Because the transcript of the hearing is sealed, only appellate briefs indicate why the State thought it should make such a momentous decision for Aleah. In the final analysis, Judge Stanfill believed she would make a better decision for Aleah than Aleah’s mother. But is that clear?

Did Virginia Fail to Protect Aleah?

The State’s claim that Virginia failed to protect Aleah from Kevin boils down to two related assertions: Virginia knew what Kevin did but did not disclose it right away, and Virginia kept quiet when Kevin harmed Aleah before.

But Virginia learned the truth from Kevin about Aleah’s injuries at the hospital, and she did tell Aleah’s doctor that Kevin “shook their child.” Briefs filed on Virginia’s behalf say she promptly reported that to the police.

State officials suspect, though, that Kevin “revealed some version of the truth to [Virginia] before” Aleah’s doctor asked about Aleah’s injuries. The State faulted Virginia for not immediately disclosing Kevin’s role in that conversation; instead, she came back “five minutes” later and informed the doctor of it.

Five minutes hardly makes one an accomplice. Neither does learning the truth after the fact.

The State’s evidence that Virginia allowed Kevin to harm Aleah in the past was equally thin.

Aleah’s doctor, the State said, “found evidence of a prior brain bleed . . . and bruising,” ostensibly proof that both “parents had failed to seek medical attention” for Aleah in the past. Yet it was not clear that Virginia knew of prior injuries. Indeed, the most damning evidence the State could marshal was Virginia allegedly commenting to a daycare worker when Aleah was three months old that “the father could not be left alone with the child because of his anger problem.” Whether Virginia had been vigilant before Kevin shook Aleah so fiercely is simply not known.

When something goes terribly wrong in the home, our impulse often is to spread the blame around: “The mother must have been complicit,” we think. Yet, in many cases, non-offending mothers played no part and did not look the other way.

Judge Stanfill never found that Virginia abused or neglected Aleah. It is true that Virginia left Aleah in her father’s care while she was at work. Yet, even if Virginia had left Kevin, Aleah's father would have had every right to visit Aleah without supervision. Kevin had no criminal record and the state had never intervened in the family. Virginia could not have blocked Kevin’s access to Aleah if she wanted to, absent a significant showing of an imminent threat. Moreover, as the only employed parent in a financially struggling family, Virginia likely had little choice in babysitters.

Did Virginia’s Desire to Keep Aleah Alive Constitute a Conflict of Interest?

Judge Stanfill grounded her choice to let Aleah die on a finding that Virginia had a conflict of interest: “[C]harges against [Kevin] could be upgraded to manslaughter or even murder if Aleah dies.” At the hearing, a DHHS caseworker said Virginia told her that she wanted Kevin’s no-contact condition for bail to be amended “so she could go ‘home to [him].’” Before the hearing, Virginia claimed that she would “stay with Peaslee until he is released from any jail sentence.”

This allegiance to the child’s father left the Judge deeply distrustful of Virginia’s motives. Yet, if Virginia had a conflict, so, too, did the State. If Aleah dies, it will be able to “upgrade[] [charges against Kevin] to manslaughter or even murder” and avoid the considerable expense of maintaining a severely handicapped child who will likely require orthopedic surgeries, if she does not “die prematurely from her injuries.”

Is Virginia Unfit to Decide for Aleah?

Judge Stanfill distrusted Virginia for another reason: Virginia only visited Aleah, who is in foster care, “a handful of times,” limiting her understanding, the Judge thought, that Aleah’s injuries left her “just miserable.” Aleah “exhibits a high-pitched ‘neurological cry’ 80–85% of the time” despite being on five pain medications. She cannot be consoled because her “neurological irritability” makes her “unable ‘to tolerate environmental stimulation because there’s no processing of it.’”

Virginia did not avail herself of the visitation that DHHS set with Aleah three times a week, visiting Aleah only five times in over ten weeks and missing at least four doctor’s appointments. Her reason: “it was ‘not very enjoyable’ and ‘[i]t’s hard to go spend two or three hours with her because . . . it’s a lot of work.” Judge Stanfill found by clear and convincing evidence that Virginia was an unfit mother.

But Virginia’s withdrawal is not unusual for someone suffering a traumatic loss. People experience grief differently, and both yearning for the past and withdrawal are common responses that may subside with time. Seeing one’s child suffer to such a degree is at once horrible and frightening. Ironically, one reason the State gave for the DNR was that “[w]atching what [Aleah] endured . . . was traumatic for the nurses that took care of her, [and] was traumatic for the physicians.” Imagine the trauma for her mother, Virginia.

It must be remembered that, until tragedy struck, Virginia was a good mother. She acted responsibly throughout her pregnancy, taking prenatal vitamins, attending ultrasounds and prenatal appointments, and going to the doctor when she had concerns about her pregnancy. She earned her GED so that she could attend college. She became the family’s primary breadwinner. And, as Aleah’s primary caregiver, she watched her daughter thrive. But in one tragic moment, all that changed.

The law sometimes severs the parent-child relationship—and rightly so. Parents commit all kinds of atrocities against children. Parents dip children in scalding water, rape infants, try to gouge out their children’s eyes and sew their mouths’ shut, spray their children with pepper spray, make them eat feces and vomit, lock them in cabinets, and knock out their teeth with bats.

But the choice to keep a child alive is none of these things. Even mothers who put cigarettes out on their children’s skin get a chance to reunify with their child before the State terminates parental rights, freeing the child for adoption by a caring family.

The Supreme Court has repeatedly emphasized that parents have a fundamental right to make childrearing decisions. In Parham v. J.R., the court found that a state cannot automatically assume decision-making power over a child “[s]imply because the decision of a parent is not agreeable . . . or because it involves risks.” In Troxel v. Granville, the Court found that the state cannot infringe on this right “simply because a state judge believes a ‘better’ decision could be made.” And this “fundamental liberty interest” most assuredly “does not evaporate simply because [parents] have not been model parents or have lost temporary custody of their child to the State,” as the Court explained in Santosky v. Kramer.

The law presumes that “natural bonds of affection lead parents to act in the best interests of their children.” In cases of uncertainty, there is every reason to side with the parent over the state.

After all, Virginia wanted Aleah to live, the State did not. And who can say with certainty what Aleah’s future holds? Doctors confidently predicted that Aleah would die within minutes once taken off life-support: she survived. While sometimes we want to allow another to die because we think their life is not worth living, it may be worth living to the one whose life hangs in the balance.

Until the State takes the extraordinary step of terminating Virginia’s rights, we should leave this family to its private deliberations at a time of great sadness.

Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and Director of the Family Law and Policy Program at the University of Illinois College of Law.