No. 923-2011

In the

STATE OF WHITTIER SUPREME COURT

DAVID SMITH,

Petitioner,

v.

STATE OF WHITTIER,

Ms. Kathryn Candler, Director of the Whittier Department of Child Welfare,

Respondent.

On Writ of Certiorari to the State of Whittier Court of Appeal

BRIEF FOR RESPONDENT

TEAM #102

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

I. Under the Whittier Juvenile Code, a child may be declared a dependent of the court where there

is a substantial risk that the child will suffer serious physical harm because a parent fails to

provide appropriate food. The Jenning County Juvenile Court declared Olivia Smith a

dependent because of her father's medical neglect which led to her childhood obesity. Was the

Court's finding that Olivia Smith was a dependent child proper?

II. Under the Whittier Juvenile Code, parental rights may be terminated where improper parental

care, causing a child's dependency, is likely to continue and cause serious harm to the child.

The Jenning County Juvenile Court terminated David Smith's parental rights because his

improper parental care, resulting in obesity and co-morbidities, led to the dependency of his

daughter Olivia. Was the Court's order terminating parental rights proper?

III. Under the Whittier Juvenile Code, the State has the right and responsibility to provide a child in

its custody with “ordinary medical care.” After being declared a dependent child, Olivia Smith

was diagnosed with depression, bipolar disorder, and ADHD and administered psychotropic

medication. Does the administration of psychotropic medication to a dependent child

constitute permissible ordinary medical care under the Whittier Juvenile Code?

i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................ i

TABLE OF CONTENTS …............................................................. ii

TABLE OF AUTHORITIES ........................................................... v

OPINION BELOW ......................................................................... viii

JURISDICTIONAL STATEMENT .................................................. viii

STATEMENT OF THE CASE ........................................................ 1

Statement of Facts ................................................................ 1

Procedural History …............................................................ 3

SUMMARY OF THE ARGUMENT ............................................... 3

STANDARD OF REVIEW ............................................................ 4

ARGUMENT .................................................................................. 5

I. UNDER THE WHITTIER JUVENILE CODE, A CHILD

MAY BE DECLARED A DEPENDENT OF THE COURT

WHERE THERE IS A SUBSTANTIAL RISK THAT THE

CHILD WILL SUFFER SERIOUS PHYSICAL HARM

BECAUSE A PARENT FAILS TO PROVOIDE

APPROPRIATE FOOD. THE JENNING COUNTY

JUVENILE COURT DID NOT ERR WHEN IT

DECLARED OLIVIA SMITH A DEPENDENT

BECAUSE OF HER FATHER'S MEDICAL NEGLECT

WHICH LED TO HER CHILDHOOD OBESITY ….......... 5

A. The Juvenile Court did not err when it found that

Olivia Smith was a dependent child because she

had suffered serious physical harm. …...................... 6

B. The Juvenile Court did not err when it found that

Olivia Smith was a dependent child because David

Smith negligently failed to provide proper parental

care for Olivia by failing to provide her with

appropriate food........................................................ 8

ii

TABLE OF CONTENTS (Cont.)

II. UNDER THE WHITTIER JUVENILE CODE,

PARENTAL RIGHTS MAY BE TERMINATED WHERE

IMPROPER PARENTAL CARE, CAUSING A CHILD'S

DEPENDENCY, IS LIKELY TO CONTINUE AND

CAUSE SERIOUS HARM TO THE CHILD. THE

JENNING COUNTY JUVENILE COURT DID NOT ERR

WHEN IT ORDERED THE TERMINATION OF DAVID

SMITH'S PARENTAL RIGHTS BECAUSE OF HIS

IMPROPER PARENTAL CARE WHICH LED TO

OLIVIA'S OBESITY AND CO-MORBIDITIES, THE

CAUSE OF HER DEPENDENCY. …................................. 10

A. The Juvenile Court did not err when it ordered

termination of David Smith's parental rights

because there was clear and convincing evidence

of parental inability and a lack of proper parental

care or control on the part of David Smith which

caused his daughter Olivia's dependent status........... 11

B. The Juvenile Court did not err when it ordered

the termination of David Smith's parental rights

because the cause of Olivia's dependency was likely

to continue and likely to cause serious harm to her... 12

C. The Juvenile Court did not err when it ordered the

termination of David Smith's parental rights because

the termination was in the best interests of the child.. 15

III. UNDER THE WHITTIER JUVENILE CODE, THE

STATE HAS THE RIGHT AND RESPONSIBILITY TO

PROVIDE A CHILD IN ITS CUSTODY WITH

“ORDINARY MEDICAL CARE.” THE

ADMINISTRATION OF PSYCHOTROPIC

MEDICATION CONSTITUTED LEGALLY

PERMISSIBLE ORDINARY MEDICAL CARE UNDER

THE WHITTIER JUVENILE CODE WHERE, AFTER

BEING DECLARED A DEPENDENT CHILD, OLIVIA

SMITH WAS DIAGNOSED WITH DEPRESSION,

BIPOLAR DISORDER, AND ADHD AND

ADMINISTERED PSYCHOTROPIC MEDICATION. …... 16

iii

TABLE OF CONTENTS (Cont.)

A. Under Whittier Juvenile Code § 300 (b), the State

has the affirmative duty to provide foster children

with proper medical care. The consent of a social

worker, given on behalf of a foster child, is permitted

under the Whittier Juvenile Code because the

administration of medication is ordinary care. …...... 17

B. The plain language of Section 300 (b)(i) clearly and

unambiguously defines ordinary medical care to

include all mental health treatment except for

inpatient psychiatric hospitalization. The

administration of psychotropic medication to Olivia

Smith constituted ordinary medical care because it

occurred on an outpatient basis and was treatment

not excluded in the statute. …................................... 19

1. Judicial interpretation is not permitted when

the statutory language is clear and

unambiguous. …............................................ 19

2. The intent of the Legislature must be followed if

the statute is ambiguous and requires

interpretation. …............................................ 21

CONCLUSION …............................................................................ 24

APPENDIX ….................................................................................. A-1

iv

TABLE OF AUTHORITIES

Page(s)

UNITED STATES SUPREME COURT CASES

Lassiter v. Dept. of Social Serv., 452 U.S. 18 (1981) …........................................... 5, 10

Lehr v. Robertson, 463 U.S. 248 (1983) ….............................................................. 8

Maryland v. Craig, 497 U.S. 836 (1990) …............................................................. 5-6

Mathews v. Eldridge, 424 U.S. 319 (1976) ….......................................................... 10

Meyer v. Nebraska, 262 U.S. 390 (1923) …............................................................ 6

Prince v. Massachusetts, 321 U.S. 158 (1944) ….................................................... 6

Riggins v. Nevada, 504 U.S. 127 (1992) ….............................................................. 17-18

Roe v. Wade, 410 U.S. 113 (1973) …....................................................................... 6

Santosky v. Kramer, 455 U.S. 745 (1982) …............................................................ 6

Troxel v. Granville, 530 U.S. 57 (2000) …............................................................... 6

UNITED STATES CIRCUIT COURT OF APPEALS CASES

Arredondo v. Locklear, 462 F.3d 1292 (10th Cir. 2006) …...................................... 5-6

United States v. Williams, 356 F. 3d 1045 (9th Cir. 2004) …................................... 18

STATE COURT CASES

Dep’t of Children and Family Serv. v. G.M.,

816 So.2d 830 (Fla. Dist. Ct. App. 2002) …................................................. 23-24

Diana H. v. M. Rubin, 171 P. 3d 200 (Ariz. Ct. App. 2007) …................................ 21-23

Hamed v. Wayne Cnty., 803 N.W.2d 237 (Mich. 2011) …....................................... 19

In re B.S., 618 S.E.2d 695 (Ga. Ct. App. 2005) …................................................... 5, 13-14

In re Christina V., 660 A.2d 863 (Conn. App. Ct. 1995) …..................................... 4-5

v

TABLE OF AUTHORITIES (Cont.)

Page(s)

In re G.K., 993 A.2d 558 (D.C. Ct. App. 2010) …................................................... 20-21

In re Julie Anne, 780 N.E.2d 635 (Ohio Ct. of Common Pleas 2002) …................. 5-7, 15

In re Luis C., 554 A.2d 722 (Conn. 1989) …........................................................... 4

In re Roshawn R, 720 A.2d 1112 (Conn. App. Ct. 1998) …..................................... 4, 10

In re S.V., 395 N.W.2d 666 (Iowa Ct. App. 1986) …................................................ 5

In re Tabitha P., 664 A.2d 1168 (Conn. App. Ct. 1995) …....................................... 10

In re W.H., 25 A.3d 330 (Pa. Sup. Ct. 2011) …........................................................ 22

In the Interest of C.R., 570 S.E.2d 609 (Ga. Ct. App. 2002) …................................ 22

In the Interest of LT, 494 N.W.2d 450 (Iowa Ct. App. 1992) ….............................. 8-9, 14-15

In the Matter of Martin F., 820 N.Y.S.2d 759 (N.Y. Fam. Ct. 2006) ….................. 20

Iowa v. Karwath, 199 N.W.2d 147 (Iowa 1972) ….................................................. 9, 13, 22

Johnpeer v. Williams, 74 A.D.3d 1584 (N.Y. App. Div. 2010) …............................ 9

Koontz v. Ameritech Serv. Inc., 645 N.W.2d 34 (Mich. 2002) …............................. 19

Matter of Brittany T., 48 A.D.3d 995 (N.Y. App. Div. 2008) …............................... 13

Mowczan v. Bacon, 92 N.Y.2d 281 (N.Y. 1998) ….................................................. 21

Sombrotoo v. Christiana W. 852 N.Y.S.2d (N.Y. 2008) …....................................... 21

Sotelo v. Grant Twp., 680 N.W.2d 381 (Mich. 2004) ….......................................... 19, 21

STATE STATUTES

WHIT. JUVENILE CODE § 100 …................................................................................... 2-3, 6, 8, 10,

18, 24

WHIT. JUVENILE CODE § 200 …................................................................................... 3-4, 10-12, 24

WHIT. JUVENILE CODE § 300 …................................................................................... 3-4, 16-21, 24

vi

TABLE OF AUTHORITIES (Cont.)

Page(s)

OTHER AUTHORITIES

Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.. …........... 15

David S. Ludwig & Lindsey Murtagh,

State Intervention in Life-Threatening Childhood Obesity,

306 J. AM. MED. ASSOC., 206 (2011) …......................................................... 7, 9, 13

Todd Varness, et. al, Childhood Obesity and Medical Neglect,

123 PEDIATRICS, 399 (2009) …....................................................................... 7, 9, 13-16

Julie M. Zito, et. al, Psychotropic Medication Patterns Among Youth in Foster Care,

121 PEDIATRICS, e157 (2008) …....................................................................... 24

vii

JURISDICTIONAL STATEMENT

This Court has jurisdiction based on the November 18, 2011 order granting certiorari to the

State of Whittier Court of Appeal in the matter of Smith v. State. (No. 923-2011).

OPINION BELOW

The unpublished opinion of the State of Whittier Court of Appeal, affirming the findings of the

Jenning County Juvenile Court, appears on pages 1-12 of the record.

viii

STATEMENT OF THE CASE

Statement of Facts

David Smith (“Smith”), a resident of Jenning County, in the State of Whittier, is 28 years

old and a single father to 11-year-old Olivia Smith (“Olivia”). R. 1. Throughout Olivia’s life,

physicians advised Smith that Olivia needed to lose weight because of immediate and permanent

health risks. R. 2. Smith thought that his daughter would “grow out of it” and ignored counsel

regarding lifestyle changes. R. 2. Smith often fed Olivia foods rich in carbohydrates and sugars

that he brought home from his job at a gas station, including bagels, candy, cookies, croissants,

donuts, muffins, and potato chips. R. 2. For lunch, Olivia would eat free meals at school. R. 2.

In the evening, Olivia was given traditional Southern meals made by her grandmother. R. 2.

In June 2008, Dr. Anne Masters, a pediatrician, advised Smith that Olivia was morbidly

obese. R. 2. At eight years of age, Olivia weighed 100 pounds and had a body mass index

(“BMI”) of 30, which is greater than the 99th percentile. R. 2. Olivia reported that she had

trouble walking and that her knees hurt. R. 2. Testing showed that Olivia suffered from

hyperlipidemia and impaired fasting glucose, two conditions which lead to type-2 diabetes and

cardiovascular disease. R. 2. Olivia was also diagnosed with liver disease nearing cirrhosis, a

potentially fatal condition. R. 2. Dr. Masters also warned Smith that Olivia faced the imminent

and life-threatening risks of sleep apnea, cardio-respiratory compromise, and polycystic ovarian

syndrome if she did not lose weight. R. 2. Dr. Masters asked Smith to put Olivia on a low-

calorie diet and enroll her in sports activities. R. 2. Dr. Masters also explained that, without

changes, intervention by the child welfare system may have been warranted. R. 2. At a follow-

up visit six months later, though, Olivia had actually gained ten pounds. R. 2.

1

After February 2009, Smith failed to take Olivia to appointments with Dr. Masters and a

community health nurse. R. 3. Dr. Masters, as a mandated reporter, contacted the Department of

Child Welfare (“DCW”) to report Smith’s failure to address Olivia’s childhood obesity. R. 3.

Sonia White (“White”), a social worker with the DCW, visited Smith and Olivia later that month.

R. 3. White provided Smith with information about a hearing at the Jenning County Juvenile

Court at which a judge would determine whether Olivia was a neglected child. R. 4.

At the hearing, the Juvenile Court found that Olivia was neglected under Whittier

Juvenile Code § 100 (b). R. 4. Because of the imminent risk of harm to Olivia, the court

concluded that removal from the home was proper. R. 4. Olivia was placed in the custody of the

DCW and the court ordered Family Reunification Services including parenting classes, child

nutrition classes, and unsupervised visitation. R. 4. Smith signed various Juvenile Court

documents, including a form which acknowledged that the DCW was authorized to administer

ordinary medical care to Olivia pursuant to Whittier Juvenile Code § 300. R. 4. Olivia was then

placed in foster care. R. 4. The placement went well, except that Olivia began acting out in

school approximately four months into the placement. R. 4. Olivia’s foster mother took her to

see child psychiatrist Dr. Wilmington at the county health clinic. R. 4. Olivia was tested,

diagnosed with depression and bipolar disorder, and later prescribed Lexapro and Depakote. R.

5. White later informed Smith of the medications and he indicated that he did not approve. R. 5.

At a six-month review hearing, the Juvenile Court returned Olivia to Smith’s care,

finding that she had lost weight and that Smith had attended all of his required classes. R. 5.

Over the next six months, however, Smith failed to take Olivia to her court-ordered

appointments. R. 5. At the twelve-month review hearing, because Olivia had gained weight

again, the court returned her to the custody of her foster family. R. 6. In June 2010, Olivia was

2

also prescribed Adderall for Attention Deficit Hyperactivity Disorder (“ADHD”). R. 6. In

September, Smith, through his court-appointed attorney, asked the Juvenile Court to order that

Olivia be taken off of any psychotropic medication. R. 6. The court found that the

administration of psychotropic medication was within the range of ordinary medical care

allowed by Whittier Juvenile Code § 300. R. 6.

Over the next few months, Olivia’s health and behavior improved and she was taken off

of Depakote and Lexapro. R. 6. On Olivia’s eleventh birthday, the court held a permanency

hearing. R. 7. White reported to the court that Smith had fed Olivia sugary foods and that he did

not have the proper parenting skills to care for her. R. 7. Olivia told the court that her foster

parents knew how to take care of her and helped her “become a healthy girl.” R. 7. Pursuant to

Whittier Juvenile Code § 200, the Juvenile Court terminated Smith’s parental rights.

Procedural History

At a permanency hearing on January 2, 2011, the Juvenile Court terminated Smith’s

parental rights. R. 7. Smith appealed the Juvenile Court’s findings. R. 1. The State of

Whittier Court of Appeal affirmed, holding that the orders of Juvenile Court were proper. R. 1.

Smith then petitioned this Court for certiorari, which was granted on two issues:

• I) Was the Juvenile Court’s finding that Olivia Smith was a dependent child and

subsequent order terminating parental rights proper?

• II) Did the administration of psychotropic medication to Olivia Smith, a child in foster

care, constitute ordinary medical care under the Whittier Juvenile Code?

SUMMARY OF THE ARGUMENT

Under Whittier Juvenile Code § 100 (b), a child may be adjudicated a dependent when

the child has suffered serious physical harm or illness because of a parent’s failure to provide

3

appropriate food. David Smith’s failure to adequately supervise and provide his daughter Olivia

with appropriate food, even after receiving counsel from a physician and a social worker,

resulted in the serious physical harm Olivia suffered in the form of severe childhood obesity.

Whittier Juvenile Code § 200 provides that parental rights may be terminated when (1) a

dependent child (2) lacks proper parental care causing the child’s dependency, (3) the cause of

dependency is likely to continue, and (4) the continued cause of dependency is likely to cause

serious physical, mental, emotional, or moral harm to the child. David Smith’s failure to provide

proper parental care, resulting in continued serious physical harm to his daughter, warranted the

termination of his parental rights. It was in Olivia’s best interests for Smith’s parental rights to

be terminated so that she could grow up in a stable and healthy home.

Whittier Juvenile Code § 300 clearly and unambiguously provides that the State has the

right and responsibility to provide proper medical care to children in its custody. Plain language

indicates that a child’s social worker has the authority to consent to ordinary medical care on the

child’s behalf. Even if the court determines that the language is ambiguous and requires further

interpretation, the legislative purpose of the statute was to give power to the State in order to

protect children and provide them with proper medical care. The psychotropic medication

administered to Olivia constituted ordinary medical care and was therefore permissible under

Whittier Juvenile Code § 300. For these reasons, the findings of the Juvenile Court and Court of

Appeal were not in error and should be affirmed.

STANDARD OF REVIEW

The standard of review when a termination of parental rights is appealed is whether the

challenged findings are clearly erroneous. In re Roshawn R, 720 A.2d 1112, 1116 (Conn. App.

Ct. 1998) (citing In re Luis C., 554 A.2d 722 (Conn. 1989); In re Christina V., 660 A.2d 863

4

(Conn. App. Ct. 1995)). The juvenile court’s findings should be given deferential treatment

because that court was able to evaluate the evidence firsthand. In re S.V., 395 N.W.2d 666, 668

(Iowa Ct. App. 1986). When clear and convincing evidence shows that parental rights are lost,

higher courts defer to the juvenile court. In re B.S., 618 S.E.2d 695, 698 (Ga. Ct. App. 2005).

When the determination of a legal issue requires statutory interpretation, the issue is a

question of law. Griffith v. State Farm Mut. Auto Ins. Co., 697 N.W.2d 895, 898 (Mich. 2005).

The determination of whether or not the administration of psychotropic medication constitutes

ordinary medical care is a question of law that courts review de novo. Jenkins v. Patel, 684

N.W.2d 346, 349 (Mich. 2004).

ARGUMENT

I. UNDER THE WHITTIER JUVENILE CODE, A CHILD MAY BE DECLARED A

DEPENDENT OF THE COURT WHERE THERE IS A SUBSTANTIAL RISK THAT

THE CHILD WILL SUFFER SERIOUS PHYSICAL HARM BECAUSE A PARENT

FAILS TO PROVOIDE APPROPRIATE FOOD. THE JENNING COUNTY JUVENILE

COURT DID NOT ERR WHEN IT DECLARED OLIVIA SMITH A DEPENDENT

BECAUSE OF HER FATHER’S MEDICAL NEGLECT WHICH LED TO HER

CHILDHOOD OBESITY.

Children are the most abused people in the world. In re Julie Anne, 780 N.E.2d 635, 638

(Ohio Ct. of Common Pleas 2002). American children, however, are protected by an “unrivaled

century-old system of juvenile justice.” 780 N.E.2d at 638. The doctrine of parens patriae

provides that the State is “the ultimate parent” of children under the court’s care. Id. The State,

therefore, has an “urgent interest” in a child’s welfare and a “duty of the highest order” to protect

the child. Lassiter v. Dept. of Social Serv., 452 U.S. 18, 27 (1981).

The decision to remove a child from a home because of abuse is one of the most difficult

for state officials. Arredondo v. Locklear, 462 F.3d 1292, 1294 (10th Cir. 2006). Although the

State’s interest in protecting children from abuse is “transcendent,” Maryland v. Craig, 497 U.S.

5

836, 855 (1990), the parental interest in bringing up children “according to the dictates of [their]

own conscience” is “essential.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

The United States Supreme Court has held that parents are entitled to a protected liberty

interest “in the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65

(2000). The State cannot terminate those parental rights without due process of law. Santosky v.

Kramer, 455 U.S. 745, 753-55 (1982); Arredondo, 462 F.3d at 1297-98. However, privacy rights

are not absolute and the State must act to protect a child where his or her interests conflict with

those of the parent to the extent that the child is in danger of harm. In re Julie Anne, 780 N.E.2d

at 639 (citing Roe v. Wade, 410 U.S. 113, 154 (1973); Prince v. Massachusetts, 321 U.S. 158,

165 (1944)). If the State fails to act when abuse is suspected, there can be unthinkable

permanent consequences for a child—even death. Arredondo, 462 F.3d at 1294.

It is the interest of youth itself, and of the whole community, that children be

both safeguarded from abuses and given opportunities for growth into free and

independent well-developed men and citizens. A democratic society rests, for

its continuance, upon the healthy, well-rounded growth of young people into

full maturity as citizens, with all that implies.

Prince, 321 U.S. at 168. In the present matter, Olivia Smith was properly adjudicated a

dependent child and David Smith’s parental rights were properly terminated under the Whittier

Juvenile Code and the findings of the lower courts should be affirmed.

A. The Juvenile Court did not err when it found that Olivia Smith was a dependent

child because she had suffered serious physical harm.

Olivia Smith was properly adjudicated a dependent child by the Jenning County Juvenile

Court. Under Whittier Juvenile Code § 100 (b), a child may be adjudicated a dependent when

the child has suffered, or there is a substantial risk that the child will suffer, serious physical

harm or illness as a result of the parent’s failure to adequately supervise the child or the negligent

failure to provide appropriate food. WHIT. JUVENILE CODE § 100 (b). 11-year-old Olivia Smith has

6

suffered from multiple serious risks and co-morbid conditions associated with her childhood

obesity. R. 8. At the time of her dependency hearing, Olivia suffered from potentially fatal

conditions such as hyperlipidemia, fatty liver disease nearing cirrhosis, and impaired fasting

glucose, and was at great risk of developing type-2 diabetes and cardiovascular disease. R. 2, 8.

Her BMI was in the 99th percentile, within the range of morbid obesity. David S. Ludwig &

Lindsey Murtagh, State Intervention in Life-Threatening Childhood Obesity, 306 J. AM. MED.

ASSOC., 206 (2011). The serious physical harm and illnesses suffered by Olivia were caused by

her father David Smith’s failure to adequately supervise her and provide her with appropriate,

healthy food. For these reasons, Olivia was properly found to be a dependent child.

Overwhelming scientific evidence shows the serious physical harm that can come to

morbidly obese children. Todd Varness, et. al, Childhood Obesity and Medical Neglect, 123

PEDIATRICS, 399 (2009). Likewise, the court in In re Julie Anne considered that “[a]n avalanche of

authoritative scientific studies . . . is clear and convincing evidence that secondhand smoke

constitutes a real and substantial danger to children because it causes and aggravates serious

diseases in children. . ..” 780 N.E.2d at 638. The harm caused by secondhand smoke includes

future harm. Id. at 638-39. Similarly, certain conditions associated with childhood obesity

cannot be reversed in adulthood. Varness, supra, at 401. It is the presence of these co-morbid

conditions that is the most important factor in evaluating serious risk of harm. Id. Removal

from the home may be necessary when the harm, including future harm, is so critical.

The risks and co-morbid conditions associated with Olivia’s morbid obesity are manifold.

R. 8. When Olivia was declared a dependent child, she suffered from severe morbid obesity and

potentially fatal co-morbid conditions including risk of sleep apnea, cardio-respiratory

compromise, and polycystic ovarian syndrome. R. 2, 8. In a similar case, the court found that a

7

young girl’s obesity was potentially fatal and might result in increased health risks and a

decreased life expectancy. In the Interest of LT, 494 N.W.2d 450, 452 (Iowa Ct. App. 1992).

The court also found that the girl’s obesity interfered with her socialization and physical, mental,

and emotional development. Id. Olivia has also suffered from the imminent harm of knee pain

and has had trouble walking. R. 2. She has been bullied and teased at school for being fat. R. 4.

After being advised by Dr. Masters of the seriousness of the risks to Olivia’s health and the

possibility of state intervention if she did not lose weight, Smith did nothing to address Olivia’s

condition. R. 2.

The serious and potentially fatal conditions suffered by Olivia were caused by her

father’s failure to adequately supervise her and provide her with appropriate and healthy food.

Clear and convincing evidence supported by the record shows that Olivia was properly

adjudicated a dependent child under Whittier Juvenile Code § 100 (b) because of the serious

physical harm she suffered as a result of childhood obesity caused by her father’s neglect.

Therefore, the findings of the Juvenile Court and Court of Appeal were not in error and should

be affirmed.

B. The Juvenile Court did not err when it found that Olivia Smith was a dependent

child because David Smith negligently failed to provide proper parental care for

Olivia by failing to provide her with appropriate food.

Olivia Smith was properly adjudicated a dependent child by the Jenning County Juvenile

Court. Under Whittier Juvenile Code § 100 (b), a child may be adjudicated a dependent when

the child has suffered serious physical harm or illness as a result of the parent’s failure to provide

appropriate food. WHIT. JUVENILE CODE § 100 (b). The sweeping liberty interests that parents

enjoy in the rearing of their children come with reciprocal responsibilities. Lehr v. Robertson,

463 U.S. 248, 257 (1983). Parents have the duty and obligation to provide proper care for their

8

children. Iowa v. Karwath, 199 N.W.2d 147, 150 (Iowa 1972). Inadequate care leaves children

susceptible to unhealthy lifestyle choices which can lead to childhood obesity. Ludwig &

Murtagh, supra, at 206. Child neglect is generally defined as the failure to seek or provide

necessary care, placing a child at risk for serious harm. Varness, supra, at 400. This includes the

failure to control a child’s behavior to a degree that puts a child at risk of serious harm or death.

Id. Mandated reporter laws require physicians to contact child protective services when children

under their care suffer from severe health complications caused by chronic parental neglect

resulting in obesity. Ludwig & Murtagh, supra, at 206. Dr. Masters reported Smith to the DCW

because of his neglectful failure to adequately respond to Olivia’s health conditions. R. 3.

When a physician advises a parent that a child suffers from obesity and the parent fails to

address the problem, state intervention is warranted. Johnpeer v. Williams, 74 A.D.3d 1584,

1585-86 (N.Y. App. Div. 2010); In the Interest of LT, 494 N.W.2d at 451. In those cases, courts

removed children from the custody of parents who had contributed to the children’s bad eating

habits and were negligent in failing to take steps to address the obesity. Johnpeer, 74 A.D.3d at

1585-86; In the Interest of LT, 494 N.W.2d at 454. The children’s immediate and long-term best

interests demanded placement in residential treatment and foster care. 494 N.W.2d at 453.

Olivia was properly found to be a dependent child because her father failed to address the

risk of harm to her. R. 8. Olivia’s obesity was caused by years of a high-fat diet provided to her

by her father, including carbohydrate-rich foods from the gas station where he worked. R. 2.

Olivia was also fed high-fat foods at home by her grandmother.1 David Smith’s failure to

adequately supervise and provide Olivia with appropriate food, even after advice from a

physician and a DCW caseworker, caused serious physical harm to Olivia. Smith failed to put

1Whittier Juvenile Code § 100 (b) also makes parents responsible for the inadequate supervision

of the conduct of custodians with whom the child has been placed.

9

Olivia on a low-calorie diet and involve her in sufficient physical activity, and Olivia actually

gained more weight when returned to his care. R. 2. Clear and convincing evidence shows that

Olivia was properly adjudicated a dependent child under Whittier Juvenile Code § 100 (b)

because of her father’s failure to provide proper parental care, resulting in the serious physical

harm of morbid obesity. Therefore, the findings of the lower courts were not in error and should

be affirmed.

II. UNDER THE WHITTIER JUVENILE CODE, PARENTAL RIGHTS MAY BE

TERMINATED WHERE IMPROPER PARENTAL CARE, CAUSING A CHILD’S

DEPENDENCY, IS LIKELY TO CONTINUE AND CAUSE SERIOUS HARM TO

THE CHILD. THE JENNING COUNTY JUVENILE COURT DID NOT ERR WHEN

IT ORDERED THE TERMINATION OF DAVID SMITH’S PARENTAL RIGHTS

BECAUSE OF HIS IMPROPER PARENTAL CARE WHICH LED TO OLIVIA’S

OBESITY AND CO-MORBIDITIES, THE CAUSE OF HER DEPENDENCY.

A hearing to terminate parental rights includes two phases, adjudication and disposition.2

In re Roshawn R, 720 A.2d 1112, 1117 (Conn. App. Ct. 1998) (citing In re Tabitha P., 664 A.2d

1168 (Conn. App. Ct. 1995)). During the adjudicatory phase, the trial court decides if one of the

statutory grounds for termination is supported by clear and convincing evidence. In re Roshawn

R, 720 A.2d at 1117. If a statutory ground exists, the court continues to the dispositional phase

where it determines whether termination is in the child’s best interests. Id.

Whittier Juvenile Code § 200 (a) provides that the first step in considering termination of

parental rights is to determine whether there is clear and convincing evidence of parental

inability. There are four factors which the court considers: (1) that the child is a dependent of the

court; (2) that there is a lack of proper parental care or control which is the cause of the child’s

2In Lassiter, the United States Supreme Court held that the nature of due process in parental

rights termination proceedings turns on a balancing of the “three distinct factors” specified in

Mathews v. Eldridge, 424 U.S. 319, 335 (1976): the private interests affected by the proceeding;

the risk of error created by the State’s chosen procedure; and the countervailing governmental

interest supporting use of the challenged procedure. See Lassiter, 452 U.S., at 27-31

10

dependency; (3) that the cause of dependency is likely to continue; and (4) that the continued

cause of dependency is likely to cause serious physical, mental, emotional, or moral harm to the

child. WHIT. JUVENILE CODE § 200 (a). In determining whether a child is without proper parental

care or control, the court can consider several factors, including the physical, mental, or

emotional neglect of the child or evidence of past neglect. WHIT. JUVENILE CODE § 200 (b)(v). If

the court finds clear and convincing evidence of parental inability, it then considers whether the

termination of parental rights is in the child’s best interests. WHIT. JUVENILE CODE § 200 (c).

A. The Juvenile Court did not err when it ordered termination of David Smith’s

parental rights because there was clear and convincing evidence of parental

inability and a lack of proper parental care or control on the part of David Smith

which caused his daughter Olivia’s dependent status.

The Juvenile Court properly terminated David Smith’s parental rights because there was

clear and convincing evidence of his parental inability. Olivia was properly adjudicated a

dependent child because she suffered serious physical harm. R. 8. Having determined that a

child is a dependent, the court must then determine whether the dependency was caused by a

lack of proper parental care or control. WHIT. JUVENILE CODE § 200 (a).

Neglect is one of the factors that the court examines in the parental control determination.

WHIT. JUVENILE CODE § 200 (b)(v). Throughout Olivia’s life, physicians advised Smith that Olivia

needed to lose weight because of immediate and permanent health risks. R. 2. Smith thought

that his daughter would “grow out of it” and ignored counsel regarding lifestyle changes for

Olivia. R. 2. In doing so, he medically and physically neglected her. R. 7. Olivia was also

emotionally neglected, as her obese condition left her vulnerable to bullying and teasing. R. 9.

When the child is not in the parent’s custody at the time of the permanency hearing, the

court considers additional factors in determining lack of parental care, including the failure, for

one year or longer, to: (1) develop and maintain a parental bond; (2) provide for the care and

11

support of the child as required by law or judicial decree; and (3) to comply with a court ordered

plan designed to reunite the child with the parent. However, the court is not limited to these

factors in its determination. WHIT. JUVENILE CODE § 200 (d).

The DCW’s intervention with the Smith family began in March 2009. R. 4. The

permanency hearing occurred in January 2011, nearly two years later. R. 7. The court

considered Smith’s parental behavior during the intervening time in order to determine if he had

provided proper care for Olivia. White reported to the court that Smith fed Olivia sugary foods

and did not have proper parenting skills. R. 7. Further examination of the record indicates that,

although Smith attended his visits with Olivia and spoke with her almost every day by phone,

after she was returned to his care in September 2009, he failed to take her to court-ordered

appointments. R. 5-6. Smith also failed to heed the court’s caution that Olivia’s weight must

continue to drop. R. 5. In 2010, after Olivia was returned to foster care, Smith began missing

parenting classes. R. 6. On one occasion, Smith attempted to “make Olivia feel at home” with

candy from the gas station. R. 6. Smith clearly failed to provide proper parental care under §

200 (d)(ii) and (iii). Although he appears to have continued to develop a meaningful parental

bond with Olivia, that is not enough to make termination of his parental rights improper under

the totality of the circumstances. Termination was in fact proper given Smith’s parental inability

and lack of proper parental care leading to the cause of Olivia’s dependency. The findings of the

Juvenile Court and Court of Appeal were not in error and should be affirmed.

B. The Juvenile Court did not err when it ordered the termination of David Smith’s

parental rights because the cause of Olivia’s dependency was likely to continue

and likely to cause serious harm to her.

The Juvenile Court did not err when it terminated David Smith’s parental rights because

Smith was the cause of his daughter Olivia’s dependency and that cause was likely to continue

12

and likely to cause harm. R. 9. Smith claims he was not the cause of Olivia’s dependency and

that it would not continue under his care, but no matter what has caused a child’s obesity, parents

are responsible for addressing it. R. 9; Varness, supra, at 403. Parents are in charge of caring for

their children. Karwath, 199 N.W.2d at 150.

After six months in foster care, Olivia lost 22 pounds and her co-morbidities improved.

R. 4-5. The court then returned her to her father’s care. R. 5. Smith failed to take Olivia to

court-ordered appointments. R. 5. After six months with her father, Olivia gained weight again

and was placed back in foster care. R. 6. There, she continued to lose weight and her health and

behavior improved. R. 6. In the Matter of Brittany T., the child also suffered from obesity and

co-morbidities. 48 A.D.3d 995, 996 (N.Y. App. Div. 2008). Upon finding little or no

improvement in her physical condition after state intervention, the family court placed her in

foster care. 48 A.D.3d at 996.

Like Olivia, during her placement, Brittany’s weight stabilized and decreased, and she

was subsequently returned to her parents’ care. Id. After six months, her weight increased again.

Id. The State then sought removal because of the parents’ failure to effectively address

Brittany’s dietary needs. Id. State intervention can be in the best interests of morbidly obese

children because it is the only way to realistically control and reverse potentially life-threatening

behaviors. Ludwig & Murtagh, supra, at 207. Without this intervention, serious harm will

continue.

In the analogous case of In re B.S., state officials placed a malnourished infant in foster

care, after which the child’s health improved drastically—she gained more weight in one month

than in her entire first three months of life. 618 S.E.2d at 698. The court found that the infant’s

13

mother had unjustifiably failed to comply with previously ordered reunification plans and that

termination of parental rights was in the best interest of the child. Id.

Evidence of past conduct may properly be considered in determining whether the harm

would be likely to continue if a child were returned to her parent. In re B.S., 618 S.E.2d at 700.

Smith was a “significant, if not overwhelming, contributor to Olivia’s obesity.” R. 9. He

provided her with the unhealthy, high-fat food which caused her continued weight gain, both

before and after state intervention in Olivia’s case. R. 9. When in Smith’s care, Olivia’s high-fat

diet and weight gain continued. R. 9. Other courts have likewise found that intervention is

necessary in such cases. See In the Interest of LT, 494 N.W.2d at 452-53. When families cannot

or will not take adequate steps to address their child’s obesity, they may be necessarily charged

with medical neglect. Varness, supra, at 403. In her father’s care, Olivia’s obesity, the cause of

her dependency, was likely to continue because the record shows that it did continue. R. 9. The

continued cause of dependency would also have caused serious harm to Olivia for the same

reasons that she was adjudicated a dependent child in the first instance by the Juvenile Court.

Olivia’s obesity caused her to be at risk for irreversible and life-threatening conditions.

R. 8. Beyond physical harm, Olivia’s obesity, caused by her father’s neglect, has also caused

serious emotional and mental harm. “[T]he bullying Olivia endured at school was enough for

her to retreat to the bathrooms for respite, causing her to not only miss school, but to hide alone

in shame due to her father’s neglect.” R. 9. Under his care, Olivia’s condition would continue to

cause serious harm to her as well. Smith’s repeated failure to address Olivia’s condition leads to

the conclusion that his parental rights were properly terminated. Therefore, the findings of the

Juvenile Court and Court of Appeal were not in error and should be affirmed.

14

C. The Juvenile Court did not err when it ordered the termination of David Smith’s

parental rights because the termination was in the best interests of the child.

The Juvenile Court properly terminated David Smith’s parental rights because it was in

the best interests of his daughter, Olivia. The “best interests of the child”3 standard has long

been paramount throughout the United States in juvenile matters. In re Julie Anne, 780 N.E.2d

at 638. This is a mandatory standard which indicates that courts should “consider all relevant

factors” and “physical health factors” in determining a child’s best interests. Id. at 653.

When a child suffers from morbid obesity and other life-threatening conditions, the best

interests of the child may involve asking what the child would want to do if she completely

understood that her life might be shortened by a few decades as a result of the failure to address

treatable conditions. Varness, supra, at 403. In the aforementioned In the Interest of LT, the

court determined that the child’s immediate and long-term best interests demanded her

placement in the custody of the department of human services for residential treatment foster

care because her mother refused to provide the necessary care. 494 N.W.2d at 452-53. “It seems

reasonable to assume that the child would be grateful that someone intervened on her behalf.”

Id. At Olivia’s permanency hearing on her eleventh birthday, she was called to the stand and

asked with whom she wanted to live. R. 7. Olivia said, although acknowledging her love for her

father, that “my new mommy and daddy . . . know how to take care of me and have helped me

become a healthy girl. The kids don’t tease me anymore.” R. 7. Termination of Smith’s

parental rights was in Olivia’s best interests. R. 9.

3The 1989 United Nations Convention on the Rights of the Child is the most universally

recognized human rights agreement in world history, providing that “in all actions concerning

children, whether undertaken by public or private social welfare institutions, courts of law,

administrative authorities or legislative bodies, the best interests of the child shall be a primary

consideration.” Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

15

The state should not wait until a child has a life-threatening condition to intervene.

Varness, supra, at 405. Smith’s parental rights were properly terminated because “there is no

alternative to ensuring that Olivia is not faced with the lifelong risk of death and imminent harm

due to the harmful effects of childhood obesity.” R. 10. Termination of Smith’s parental rights

was proper because he failed to comply with the DCW in improving the health and condition of

his medically neglected child. R. 7. In failing to provide the care Olivia needed, Smith

“relegate[d] [his] child[] to . . . despair.” R. 9. It was in Olivia’s best interests to terminate

Smith’s parental rights so that she could be adopted by her foster family and be raised in a

healthy home environment. R. 9. Finding a statutory basis for termination, the court then

properly determined that it was also under the child’s best interests for parental rights to be

terminated in the Smiths’ case. See R. 8-9. The Juvenile Court properly terminated David

Smith’s parental rights and the Court of Appeal properly affirmed those findings. The lower

courts did not err and should be affirmed.

III. UNDER THE WHITTIER JUVENILE CODE, THE STATE HAS THE RIGHT AND

RESPONSIBILITY TO PROVIDE A CHILD IN ITS CUSTODY WITH “ORDINARY

MEDICAL CARE.” THE ADMINISTRATION OF PSYCHOTROPIC MEDICATION

CONSTITUTED LEGALLY PERMISSIBLE ORDINARY MEDICAL CARE UNDER

THE WHITTIER JUVENILE CODE WHERE, AFTER BEING DECLARED A

DEPENDENT CHILD, OLIVIA SMITH WAS DIAGNOSED WITH DEPRESSION,

BIPOLAR DISORDER, AND ADHD AND ADMINISTERED PSYCHOTROPIC

MEDICATION.

The purpose of Whittier Juvenile Code § 300 is to give the social worker of a child who

is in the legal custody of the State the power to consent to “ordinary medical care” on behalf of

the child. Subsection (b) specifically gives this power to the social worker. Subsection (b)(i)

defines ordinary medical care as “medical examination, medical treatment including minor

surgical procedures and mental health treatment other than inpatient psychiatric hospitalization.”

WHIT. JUVENILE CODE § 300 (b)(i). Subsection (b)(ii) describes the necessary procedure for the

16

administration of medical care that is beyond the definition of “ordinary medical care.” If a

procedure is not ordinary medical care, parental consent is required unless the parent is

unavailable or his or her parental rights have been terminated, in which case a court order is

required for the medical treatment to be administered. WHIT. JUVENILE CODE § 300 (b)(ii).

A. Under Whittier Juvenile Code § 300 (b), the State has the affirmative duty to

provide foster children with proper medical care. The consent of a social worker,

given on behalf of a foster child, is permitted under the Whittier Juvenile Code

because the administration of psychotropic medication is ordinary care.

Section 300 (b) of the Whittier Juvenile Code expressly authorizes the social worker of a

child in legal custody of the State to consent to medical care on the child’s behalf, so long as it is

allowed by law. Consistent with the statute’s purpose to protect and provide children with the

appropriate medical care, the social worker is given the authority to make medical decisions for

the child. This authority has been expressly placed in the hands of the social worker because a

child who is deemed to be a dependent of the State is a minor and therefore is unable to make the

decision on their own. Under normal circumstances, a child’s parent or guardian has the

authority to provide consent on behalf of the child; however, in certain circumstances, when a

parent or guardian’s rights have been terminated, the State removes those rights by giving the

child’s social worker the right and responsibility to provide consent for the minor child.

Conversely, case law holds that prisoners maintain the right to consent to whether or not they

receive certain medical care. Like a foster child, a prisoner is also under the legal custody of a

state. However, the rights an adult prisoner retains compared to the rights of a minor child are

different and therefore produce different results.

In v. Nevada, the United States Supreme Court held that it is unconstitutional to

administer psychotropic medication over a prisoner’s objection. 504 U.S. 127 (1992). The

Court emphasized, however, that a state may involuntarily administer antipsychotic drugs where

17

the state makes a showing of danger to the prisoner or other prisoners without the medication, or

that the medication would be in the prisoner’s best medical interest. 504 U.S. at 135.

In United States v. Williams, the court held that a supervised release condition requiring a

person to take antipsychotic medication violated the United States Sentencing Guidelines

because the medication substantially invaded the prisoner’s liberty interest. 356 F.3d 1045, 1055

(9th Cir. 2004). In that case, the statute only permitted the necessary medication that

“involve[d] no greater deprivation of liberty than is reasonably necessary for the purposes set

forth.” 356 F.3d 1045 at 1056. The court held that mandatory administration of medication is

impermissible and that it was an abuse of the lower court’s discretion to order it without a

showing of medical necessity and because the invasion of the prisoner’s liberty interest

outweighed the medical appropriateness of the medication. Id. at 1056-57.

Nevertheless, such precedent does not apply to a minor child because she does not have

the legal right to consent as an adult does. The child’s parent or guardian makes a minor child’s

medical decisions until the child reaches the age of maturity, unless the parent or guardian’s

rights have been severed. In the present case, the Juvenile Court found on March 2, 2009, that

Olivia was a neglected child under Whittier Juvenile Code § 100 (b) and was therefore removed

from her home, placed in the physical custody of the DCW, and shortly thereafter placed with a

foster family. R. 4. Smith then gave his consent under the Whittier Juvenile Code § 300 (b)

authorizing the State to provide medical care to Olivia. R. 4. Almost two years later, on Olivia’s

eleventh birthday, Smith’s parental were terminated. R. at 7.

Unlike adult prisoners who retain the right to consent to or refuse medical treatment,

Olivia is a minor child whose decisions are made for her until she reaches the age of maturity.

Under Whittier Juvenile Code § 300 (b), White was granted the right to consent on Olivia’s

18

behalf, and the consent provided to administer psychotropic medication was legally permissible.

The findings of the Juvenile Court and the Court of Appeal were proper and should be affirmed.

B. The plain language of Whittier Juvenile Code § 300 (b)(i) clearly and

unambiguously defines ordinary medical care to include all mental health

treatment except for inpatient psychiatric hospitalization. The administration

of psychotropic medication to Olivia Smith constituted ordinary medical care

because it was on an outpatient basis and was not excluded in the statute.

When interpreting a statute, the court must ascertain the intent of the Legislature that

can reasonably be inferred from the language of the statute itself. Sotelo v. Grant Twp., 680

N.W.2d 381, 384 (Mich. 2004). The role of the judiciary is neither to write nor construct

the law; neither does it have the authority to do so when the language and intent of the

statute are unambiguous. Koontz v. Ameritech Services, Inc., 645 N.W.2d 34, 39 (Mich.

2002). Furthermore, if the language of a statute does require interpretation, the court must

identify and follow the legislative intent by reading the statutory language in its entirety and

analyzing the specific words used in their plain and ordinary meaning. Hamed v. Wayne

Cnty., 803 N.W.2d 237, 238 (Mich. 2011).

1. Judicial interpretation is not permitted when the statutory language

is clear and unambiguous.

The language of Wittier Juvenile Code § 300 is clear and unambiguous. Therefore, the

court is not permitted to interpret it, but must instead apply it as written to the facts of each case.

Hamed, 803 N.W.2d at 238. Section 300 (b)(i) defines “ordinary medical care” as medical

examination, medical treatment including minor surgical procedures and mental health treatment

other than inpatient psychiatric hospitalization.” WHIT. JUVENILE CODE § 300 (b)(i). This

language clearly states that all mental health treatment is ordinary medical care, with one

exception: inpatient psychiatric hospitalization. It is clear that the Legislature only intended for

there to be one exception to the rule that the social worker of a child in legal custody of the State

19

has the right to consent to any mental health treatment on behalf of the child. If the Legislature

multiple exceptions to this rule, it would have left room for interpretation or made it apparent

that there were numerous exceptions. The Legislature, however, drafted the statute in such a

way that “ordinary medical care” clearly includes all mental health treatment except for inpatient

psychiatric hospitalization.

Applying this rule, the court in In re G.K. found that the child’s appointed guardian did

not have the statutory rights and responsibilities to authorize or consent to the administration of

psychotropic medication to the child. 993 A.2d 558, 566 (D.C. Ct. App. 2010). There, the

statute clearly and unambiguously stated that psychotropic medication could not be administered

without the consent of a parent or guardian or without a court order granting permission. 993

A.2d at 562. Therefore, the court’s reasoning for not allowing the appointed guardian to

administer psychotropic medication was because only legal custody was transferred and the

statute expressed the Legislature’s intent to leave all rights and responsibilities up to the parents

except for those which were expressly excluded. Id. at 565.

Also, in the case of In the Matter of Martin F., the court found that the State did not have

the authority to administer psychotropic medicine because the applicable statute did not mention

the procedure that needed to be followed for the administration of medical treatment. 820

N.Y.S.2d 759, 778-79 (N.Y. Fam. Ct. 2006). Neither was it the Legislature’s intent to authorize

the use of psychotropic medicine in non-emergency situations over a parent’s objection. Id.

In the instant case, Whittier Juvenile Code § 300 expressly authorizes the social worker

of a child in legal custody to consent to the administration of medical care on behalf of the child.

WHIT. JUVENILE CODE § 300. Section 300 (b) (i) further indicates that medical care includes

mental health treatment except for inpatient psychiatric hospitalization. Unlike in In re G.K., in

20

which the applicable statute expressly excluded psychotropic medicine from ordinary care, the

Whittier Juvenile Code does not exclude psychotropic medication. Therefore, the statute

includes the use of psychotropic medicine as ordinary medical care and Olivia’s social worker

had the legal authority to consent to the administration of psychotropic medication. In addition,

Whittier Juvenile Code § 300 indicates the procedure the State is required to follow, unlike the

statute in In re G.K.. Because Whittier Juvenile Code § 300 clearly authorized Olivia’s social

worker to consent on her behalf and because § 300 (b)(i) lists only one exception, the

administration of psychotropic medication to Olivia was permissible ordinary medical care.

2. The intent of the Legislature must be followed if the statute is ambiguous

and requires interpretation.

When the language of a statute is not clear and is ambiguous, the court ,when interpreting

the statute, must follow the legislative intent. Sotelo, 680 N.W.2d at 384. In general, an “inquiry

must be made of the spirit and purpose of the legislation, which requires examination of the

statutory context of the provision as well as its legislative history.” Mowczan v. Bacon, 703

N.E.2d 242, 244 (N.Y. 1998). The State has an interest in the health and welfare of its children,

and when the State’s interest is great enough or a child’s health or welfare is sufficiently

jeopardized, the State can overrule the rights of the parent or guardian. Diana H. v. Rubin, 171

P.3d 200, 203 (Ariz. Ct. App. 2007) (citing Cochise County No. 566-J, 650 P.2d 459, 463 (Ariz.

1982) (in banc)). Furthermore, a state’s interest in providing treatment that enhances a minor’s

health and welfare overpowers the child’s parent or guardians disallowance of such treatment

when such treatment is in the child’s best interest. Sombrotoo v. Christiana W., 852 N.Y.S.2d 57,

69 (N.Y. 2008).

Here, the intent of the Legislature in enacting Whittier Juvenile Code § 300 was to give

social workers the ability to consent to medical treatments that are in the best interests of the

21

children in their care. The statute cannot be read in a manner that limits the power of the social

worker. If the statute were to be read in the converse, the child’s best interest would be

compromised—in these specific scenarios, the court encounters with children whose parents’ or

guardians’ rights have been terminated. For that reason, the children involved are in the position

where they cannot consent and no one can provide consent on their behalf. The purpose of the

statute is to provide the social worker with the authorization to consent in these situations.

Applying this rule, the court in In the Interest of C.R. found that a child’s temporary

guardian has the statutory authority to consent to ordinary medical care for the child, including

immunizations. 570 S.E.2d 609, 610 (Ga. Ct. App. 2002). Likewise, in the case of In re W.H.,

the court found through clear and convincing evidence that it was in the child’s best interests to

be administered psychotropic medication immediately after being diagnosed with ADHD. 25

A.3d 330, 337-38 (Pa. Sup. Ct. 2011). There, the court was presented with medical examinations

of a child from multiple physicians, as well as evidence of the child’s behavioral patterns both at

home and in the classroom. In re W.H., 25 A.3d at 338. In Karwath, the court found that

evidence indicated that the removal of a child’s adenoids and tonsils was reasonably necessary to

maintain the child’s health and that the need was sufficient to overrule the parent’s objection to

the surgery. 199 N.W.2d at 150. Although no imminent emergency existed, the surgery was in

the child’s best interests and therefore within the State’s duty to maintain a dependent child’s

welfare and health. Id.

However, courts have also found that certain procedures are not within the meaning of

ordinary medical care and are beyond the child’s best interests. In Diana H. v. Rubin, the court

found that the State failed to indicate a compelling interest in immunizing the dependent child

sufficient to outweigh the parent’s objection. 171 P. 3d at 206. In that case, the medical

22

procedure was irreversible and against the parent’s wishes, the health issue was not urgent, and

medical personnel indicated that although one of the conditions was rare, no child in the past

year had suffered any complications from it. Id. at 202, 207. In the case of Department of

Children and Family Services v. G.M., the court stated that even minor surgery is completely

different than medical examinations. 816 So.2d 830, 832 (Fla. Dist. Ct. App. 2002). Because

surgery was not ordinary medical care, a court order was required for its administration. Id.

Initially, the psychotropic medications administered to Olivia were Lexapro for

depression and Depakote sprinkles for bipolar disorder. R. 5. After further examination, Olivia

was also prescribed Adderall for ADHD. R. 6. However, after significant behavioral

improvements, Olivia was taken off of Lexapro and Depakote. R. 6. Analogous to In re W.H,

Olivia was examined by a doctor who prescribed psychotropic medication to help with the

child’s behavior disorders. Furthermore, at the time Olivia was placed on these medications, she

had recently been diagnosed as morbidly obese and was in imminent danger of multiple life-

threatening diseases: type-2 diabetes, liver disease, and cardiovascular disease. R. 2.

Additionally, Olivia showed signs of behavioral problems and expressed feelings of depression

and sadness. R. 3-5. A main source of Olivia’s depression was the constant teasing she endured

at school. R. 3-4. Therefore, it was in the her best interests to be administered medications that

could help stabilize her overall health.

Unlike the procedure in Diana H, the administration of psychotropic medication is not

irreversible and does not have a long-term effect on the parent-child relationship. The

medications that Olivia was administered are common behavior medications, and a child can be

taken off of them at any point. In Olivia's case, upon further examination, she was taken off of

Lexapro and Depakote when her health and behavior improved. R. 6. The medication

23

administered to Olivia was not a major surgery like in Department of Children and Family

Services v. G.M., but was rather a prescription for common medications given to children with

behavioral problems. Julie M. Zito, et. al, Psychotropic Medication Patterns Among Youth in

Foster Care, 121 PEDIATRICS, e157 (2008). Therefore, the psychotropic medications administered

were within the realm of ordinary medical care and their administration was permissible under

the Legislature’s intent to authorize medical care in the best interests of the child. The findings

of the Juvenile Court and the Court of Appeal were proper and should be affirmed.

CONCLUSION

Olivia Smith was properly adjudicated a dependent child under Whittier Juvenile Code

§ 100 because she suffered serious physical harm as a result of her father’s failure to provide her

with appropriate food. Furthermore, David Smith’s parental rights were properly terminated

under Whittier Juvenile Code § 200 because his lack of proper parental care for Olivia caused

her dependency and that cause was likely to continue and likely to cause further harm to her.

Whittier Juvenile Code § 300 clearly authorizes the State to consent to medical treatment.

Additionally, the administration of psychotropic medication is ordinary medical care, and

therefore the administration of psychotropic medication to Olivia Smith while she was in the

legal custody of the State of Whittier was permissible.

Wherefore, for the aforementioned reasons, the Respondent respectfully asks that this

Honorable Court affirm the Court of Appeal and hold that the findings and orders of the Jenning

County Juvenile Court were not in error.

Respectfully Submitted,

_______________________

Team #102

Counsel for Respondent

24

APPENDIX

A-1

STATUTORY PROVISIONS

WHIT. JUVENILE CODE § 100– Conditions of Abuse or Neglect

Any child who comes within any of the following descriptions is within the jurisdiction

of the juvenile court which may adjudge that person to be a dependent child of the

court: . . .

(b) The child has suffered, or there is a substantial risk that the child will suffer, serious

physical harm or illness, as a result of the failure or inability of his or her parent or

guardian to adequately supervise or protect the child, or the willful or negligent failure

of the child's parent or guardian to adequately supervise or protect the child from the

conduct of the custodian with whom the child has been left, or by the willful or

negligent failure of the parent or guardian to provide the child with adequate and

appropriate food . . ..

WHIT. JUVENILE CODE § 200(a), (b)(v), (c), (d) – Termination of Parental Rights

(a) In considering the termination of parental rights, the court shall first determine

whether there is present clear and convincing evidence of parental misconduct or

inability. The court determines parental misconduct or inability by finding that:

(i) The child is a dependent of the court, as such term is defined in Whittier

Juvenile Code § 100;

(ii) The lack of proper parental care or control by the parent in question is the

cause of the child's status as dependent;

(iii) Such cause of dependency is likely to continue or will not likely be

remedied; and

(iv) The continued cause of dependency is likely to cause serious physical,

mental, emotional, or moral harm to the child.

(b) In determining whether the child is without proper parental care and control, the

court shall consider, without being limited to, the following: . . .

(v) Physical, mental, or emotional neglect of the child or evidence of past

physical, mental, or emotional neglect of the child . . ..

(c) If there is clear and convincing evidence of such parental misconduct or inability, the

court shall then consider whether termination of parental rights is in the best interest of

the child, after considering the physical, mental, emotional, and moral condition and

needs of the child who is the subject of the proceeding, including the need for a secure

and stable home.

A-2

(d) Where the child is not in the custody of the parent who is the subject of the

proceedings, in determining whether the child is without proper parental care and

control, the court shall consider, without being limited to, whether the parent without

justifiable cause has failed significantly for a period of one year or longer prior to the

filing of the petition for termination of parental rights:

(i) To develop and maintain a parental bond with the child in a meaningful,

supportive manner;

(ii) To provide for the care and support of the child as required by law or judicial

decree; and

(iii) To comply with a court ordered plan designed to reunite the child with the

parent or parents.

WHIT. JUVENILE CODE § 300 – Custodial Responsibilities

(a) Any child who is adjudged a dependent of the court shall also be in the legal custody

of the State.

(b) When a child is in the legal custody of the state, the child’s social worker may

consent to medical care on behalf of the child which is otherwise permitted under law.

(b) “Legal custody” denotes those rights and responsibilities associated with the day to

day care of the children. It includes the right to the care, custody and control of the

child. It includes the duty to provide food, clothing, shelter, education, and ordinary

medical care, and to train and discipline.

(i) “Ordinary medical care” shall mean medical examination, medical treatment

including minor surgical procedures and mental health treatment other than

inpatient psychiatric hospitalization.

(ii) All other medical procedures shall require parental consent; where

consent cannot be obtained because the parent is unavailable or because parental

rights have been terminated, a court order shall be required.

A-3