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Vol. XXVIII
No. 2
Cover
Spring
2012

In This Issue

SPECIALFEATURES
REGULARCOLUMNS
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By Michael P. Farris
- disclaimer -
Do Parental Rights Stop at the Door?

It began in March 2011 with a complaint about back pain. Jacob Stieler, an active, hockey-playing 9-year-old from the Upper Peninsula of Michigan, told his mom that his back was hurting. Concerned about the possibility of a kidney infection, Erin Stieler took her son to a walk-in clinic on Friday, March 18. The clinic doctors believed the problem to be constipation, so Erin took the usual steps moms take for such problems.



...
BUT AT THE END
OF THE DAY,
HARD DECISIONS
LIKE THESE NEED
TO BE MADE BY
PARENTS.
...

Nothing got better. In fact, shortly after, Jacob started to have some tingling and loss of strength in his legs, so Erin took him to the emergency room. Within a couple of hours, the doctors determined the situation was serious enough that Jacob needed to be evaluated by the specialists at DeVos Children's Hospital in Grand Rapids.

Surgery, Diagnosis, and Treatment

The following day, March 23, 2011, Jacob was flown by air ambulance to Grand Rapids. The pediatric oncologists quickly determined that Jacob had a tumor attached to his spine. Erin and her husband, Ken, immediately consented to the plans of the doctors to remove the tumor at once.

On March 24, surgeons removed the tumor. A few days later, the lab reports revealed Ewing's sarcoma, a deadly bone cancer.

Jacob’s chemotherapy began on April 11. There were six rounds of drugs over a course of 12 weeks. When he began the treatment, Jacob weighed 72 pounds. By the time this phase of treatment was done, he weighed 58 pounds. He was extremely pale. His eyes were surrounded by dark circles that pierced his parents’ hearts. As is typical for patients receiving these drugs, Jacob’s hair was gone.

Worst of all, from his parents&rsuqo; perspective, was Jacob’s emotional reaction to the physical trauma: He would not eat.

He was depressed. He told his mother that he just wanted to go to heaven to be with Jesus.

As she watched her son, hour by hour, day after day, Erin began to become very concerned that Jacob wasn’t going to make it if he had to keep going with these aggressive drugs. And they hadn’t even started the radiation therapy yet. That would only compound the bombardment this frail little boy was facing.

A longtime family doctor once told my wife Vickie and me, “A good doctor needs to listen to the mother. Mothers know things and doctors need to pay attention.”

Erin knew that Jacob was in real danger if he had to continue on this path of aggressive treatment.


...
WE AWAIT ORAL
ARGUMENT THIS
SUMMER.
...

Jacob is Well! Or is He?

On July 6, Ken and Erin were thrilled and relieved when a PET scan revealed that there was no discernible evidence of cancer remaining in Jacob’s body.

In light of these results, the Stielers asked the lead doctor, Beth Ann Kurt, why Jacob needed to continue the treatment. Her reply was that another several weeks of chemotherapy and radiation was the standard practice for all patients with Ewing’s sarcoma.

The PET scan can only reveal cancers of a certain size, the doctors said. There still could be cancer cells remaining. But they had to admit there was no objective evidence of any cancer in Jacob at that time.

Erin wanted to know why her son needed to be treated like everyone else. Dr. Kurt was clearly unhappy with the question. It was standard practice, she restated. And that was that!

The Stielers decided that they would make an individual decision for Jacob. They took him home. They began a program of good nutrition to help him regain his strength. They gave him some supplements to help his body clear the toxins from the medications out of his system. And Jacob got a lot better very quickly.

Doctors Won’t Take No for an Answer

The children’s hospital doctors were not happy with the Stielers’ decision. Under a belief that state law required them to report the family to child protective services (CPS) for medical neglect, the doctors filed a report, citing the Stielers’ failure to continue with the chemotherapy and radiation.

In the meantime, Ken and Erin had made arrangements with their family doctor back in the Upper Peninsula to do regular PET scans to make sure that Jacob remained cancer free.

After an initial investigation, the local CPS office concluded that the Stielers had not neglected Jacob’s medical care and informed the family that the investigation would be closed. The local prosecutor formally notified the Stielers that he would not prosecute them for medical neglect.

But the doctors persisted. They requested the help of a child abuse specialist associated with the University of Michigan—a doctor who had never seen Jacob. This specialist became determined that a case would be brought against the Stieler family. She repeatedly called numerous CPS officials until she found someone who would take her side in the matter. This doctor even directly called a local judge and, according to the judge at least (a fact that this doctor disputes), represented herself as Jacob’s treating physician.

As a result of this campaign by the doctors, state CPS officials hired a local private attorney, Diane Heitman, to act as a special prosecutor. Ken and Erin Stieler were charged with medical neglect and the matter was set for a trial before a jury in December.

A Request for Help

Shortly after the matter was first set for trial, Erin’s sister and a friend of the Stielers each contacted ParentalRights.org, seeking help for the family. These messages ended up on my desk.

Following an initial conversation, I asked to speak directly to the parents. After hearing the Stielers’ story, and after hearing that they had an experienced local lawyer, Paul Marin, defending them, I told Erin that I would call him and offer whatever help he wanted.

My conversation with Paul Marin went very well. He is an experienced trial lawyer and well respected in the local area. He welcomed my constitutional background and specialization in parental rights. I was very encouraged—we would make a great team.

Deposing the Doctors

In November, I flew to Michigan to take the depositions of the three doctors listed by the special prosecutor as her expert witnesses—two child abuse specialists and the lead pediatric oncologist who had treated Jacob.

It quickly became obvious to me that the two child abuse doctors had no business testifying in the case. Neither of them had ever seen Jacob. They were consulted by CPS to help decide if the parents should be charged with medical neglect. It was inappropriate—Paul Marin and I contended—for them to testify, without knowing the facts, that they had read the medical records and had concluded that these parents were guilty of neglect because they wouldn’t listen to the oncologists. I let the special prosecutor know that we would be objecting to their testimony at trial because they had nothing relevant to say.

The deposition of Dr. Beth Ann Kurt was different. She clearly had testimonial knowledge. But there were some things she didn’t know. She claimed—inaccurately—that all of the drugs being given Jacob were approved by the Food and Drug Administration (FDA) for his condition.

During her three-hour deposition, I walked her through the official FDA-required drug information sheets. We established two basic points. First, it was not true that all of the drugs had been FDA approved for use with children who had Ewing’s sarcoma. Second, as we went through all of the side effects and adverse reactions that these drugs were known to cause, it became clear that the drugs could have serious—and even life-threatening—consequences.

Yes, it was true that these drugs could cause Jacob to develop other cancers. It was true that these secondary cancers could come later in life, and they could kill him. Yes, it was true that one of the drugs was known to cause congestive heart failure—especially in children. And it was also true that one of the drugs could interfere with sexual development, sometimes preventing children from fully maturing or ever having a family. And yes, it was true that the doctors’ measure of “cure” was whether Jacob would live five years beyond the treatment. Yes, the success of the continued treatment was about 70%. And yes, the success rate for the prior protocol, which used only three of these drugs, was only 11% worse than the five-drug protocol.

I asked Dr. Kurt who should make the decision that the risks associated with the two additional drugs are worth the 11% increase in the five-year survival rate.

The doctors, replied Dr. Kurt.

Not the parents?

Correct, not the parents. The doctors are the ones who should balance such risks.

I went on to ask if this was true about Jacob’s case. Who should decide whether the risks of the continued chemotherapy and radiation are worth it?

The doctors, she repeated. Always the doctors.

Help from an Old HSLDA Case

Armed with this information, I prepared a motion to dismiss the case because it violated the right of parents to direct the upbringing of their child.

I got a great deal of pleasure out of one of the arguments I raised in the brief supporting this motion. I directed the court’s attention to a Michigan statute that reads, “It is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children” (Michigan Compiled Laws [MCL] § 380.10).

This statute was enacted as the result of a pair of cases that I argued in the Supreme Court of Michigan back in 1993. In the first case, People v. DeJonge, Home School Legal Defense Association represented a member family for several years, arguing that the state law requiring them to be certified teachers to homeschool violated both the DeJonges’ parental rights and their religious freedom. I did the oral argument before the supreme court. And by a four-to-three vote, the supreme court agreed with our arguments, ruling that the Michigan law was unconstitutional as applied to religiously motivated homeschoolers.

I also did the oral argument in the second case, People v. Bennett. This family was not a member of HSLDA; they had been represented by other counsel in the lower courts. But, lacking the resources to continue, they asked us to take over their appeal and we did.

The lower court record had presented the case for the Bennetts solely on the ground of parental rights, not including a claim for religious liberty. The Bennetts told me that they were Christians, and it was pretty obvious that the same religious claim could have been made for them as for the DeJonges. But we were stuck with the record that had been developed.

I told the Bennetts that it shouldn’t matter, because both parental rights and religious freedom are fundamental rights—which meant the court should rule in their favor on the same basis as for the DeJonges.

The Michigan Supreme Court saw it differently, and by a four-to-three vote ruled the opposite for the Bennetts as they had ruled on the very same day for the DeJonges. But HSLDA had included some technical defenses for the Bennetts as well as the fundamental rights claims, and we won the case on those technical grounds.

Unfortunately, the most crucial issue that the Michigan Supreme Court determined in Bennett was that parental rights standing alone were not a fundamental right, which meant that families who wanted to homeschool for secular reasons would not have the freedom to do so unless the law was changed.

The late HSLDA attorney Christopher Klicka, Mike Smith, and I collaborated to help draft the legislation that became MCL § 380.10, which made parental rights a fundamental right in the state of Michigan. Chris was the shepherd of the effort to get this passed. Alan Cropsey, a state senator and a homeschooling dad, was the lead sponsor of the bill. (I should also mention the wonderful support from HSLDA’s Michigan members and the state organization Information Network for Christian Homes.)

And so it was with great satisfaction that I cited this very statute along with the U.S. Constitution when I argued for Ken and Erin Stieler that their parental right to direct their son's medical case was a fundamental right.

Two Trials: Airlines and Courtrooms

The oral argument was scheduled for December 15 in Marquette, Michigan. I was scheduled to fly in on December 14. The flight from Washington, D.C., to Detroit was uneventful. But the flight from Detroit to Marquette in the Upper Peninsula was delayed by bad weather. An hour after we took off for Marquette, we were told that our plane was being diverted to Traverse City—about four hours south of Marquette by car.

When Delta Airlines landed us in Traverse City, the ground agent told us we were being sent back to Detroit. We could disembark, but we would not be given any assistance in getting to Marquette and our luggage would return to Detroit.

A handful of us got off anyway, since there were no available flights from Detroit to Marquette for two days. So without any luggage, I headed to Marquette with three “strangers” who became friends during a four-hour drive through bad weather.

It was well after midnight when I got to the hotel. And before dawn the next morning, a Walmart run was necessary so I would have the things I needed for court. I ended up wearing brown shoes with a suit that really called for the black shoes sitting in Detroit. The courtroom in Marquette was incredibly beautiful. In fact, it was the same courtroom used for the movie Anatomy of a Murder starring Jimmy Stewart and George C. Scott. I sat in Jimmy’s seat.

The trial judge took the pending motions in order, allowing both sides adequate time to argue their respective positions. After the hearing, he took a brief recess and then announced his rulings. He granted our motion to exclude the two child abuse doctors from testifying. He denied our motion to dismiss the case on a purely technical ground. He denied the special prosecutor’s motion to exclude the Stielers’ pastor and a few of their friends from testifying. Then he came to the main motion—our motion to dismiss on parental rights grounds. He needed more time to review the files and briefs. And so, he promised a ruling by the following week.

The arguments took a lot longer than anyone anticipated. And if Delta Airlines had been running on time, I would have missed the flight. Fortunately, Delta’s unreliability was reliable and the plane was late. I made the flight. My luggage remained in Michigan for another day or so.

An Early Christmas Present—Victory!

The following Wednesday, I was driving my son Peter back from piano lessons when I got the call from Paul Marin—we had won!

Peter says, “I could tell that you were talking with someone about the case, and when you started yelling, I knew something good happened. Then I began to hope that we would have a safe trip the rest of the way home.”

When we got home, I did a little Baptist interpretive dance (is that an oxymoron?) and headed back to the office to read the decision and jump around some more in excitement.

The judge noted that the decision was a difficult one—both factually and legally. But at the end of the day, hard decisions like this need to be made by parents. Ken and Erin Stieler had taken reasonable steps for their son’s medical condition at every stage. The judge dismissed the charges. No jury trial would be needed.

It took me a couple hours to reach the Stielers with the good news. It was a great Christmas present for them.

Thanks to the generosity of HSLDA members and others who responded to our requests for funds, we were able to cover not only all of HSLDA’s expenses for my travel, the depositions, and other costs, but also the bill from local counsel that the Stielers were facing just before Christmas.

The prosecutor has now appealed this case to the Michigan Court of Appeals. We await oral argument this summer.

In January 2012, Jacob Stieler had another clean PET scan. Praise God!