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In re Eli H.

November 28, 2008

IN THE MATTER OF ELI H. A CHILD UNDER EIGHTEEN YEARS OF AGE ALLEGED TO BE NEGLECTED BY BARBARA H. GIDEON H., RESPONDENTS


The opinion of the court was delivered by: Barbara R. Potter, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

NOTICE: IF YOUR CHILD IS PLACED IN FOSTER CARE, YOU MAY LOSE YOUR RIGHTS TO YOUR CHILD AND YOUR CHILD MAY BE ADOPTED WITHOUT YOUR CONSENT.

IF YOUR CHILD STAYS IN FOSTER CARE FOR 15 OF THE MOST RECENT 22 MONTHS, THE AGENCY MAY BE REQUIRED BY LAW TO FILE A PETITION TO TERMINATE YOUR PARENTAL RIGHTS AND MAY FILE BEFORE THE END OF THE 15-MONTH PERIOD.

IF SEVERE OR REPEATED ABUSE IS PROVEN BY CLEAR AND CONVINCING EVIDENCE, THIS FINDING MAY CONSTITUTE THE BASIS TO TERMINATE YOUR PARENTAL RIGHTS.

THE NEXT COURT DATE IS DECEMBER 23, 2008, AT 11:30 A.M.

Petitions filed July 1, 2008, by Petitioner, St. Lawrence County Department of Social Services (hereinafter "DSS"), against Respondents, Gideon H. and Barbara H., allege that the child, E.H. (born 2007) is a neglected child and that they are the persons legally responsible for his care and for that neglect. Notice was given to Respondents pursuant to § 1036 of the Family Court Act. The matters came on for preliminary proceedings July 3, 2008. Respondents were advised of their rights to counsel, to free counsel, and to an adjournment to obtain counsel. Petitioner appeared through its counsel, David Willer, Esq.; Respondent, Gideon H., appeared with his counsel, William Galvin, Esq.; Respondent, Barbara H., appeared with her counsel, Richard Gardner, Esq.; and the child's law guardian, A. Michael Gebo, Esq., was present throughout the proceedings. Respondents denied the allegations of the petitions, and the matters duly came on for a fact-finding hearing on September 19, 2008, and continued on October 3 and October 22, 2008. The Court heard closing arguments at the end of the hearing and reserved decision.

The petition alleges that E.H. is a neglected child pursuant to Family Court Act § 1012 which defines a neglected child as "a child less than eighteen years of age (i) whose physical . . . condition has been impaired or is in imminent danger of being impaired as a result of the failure of his parent . . . to exercise a minimum degree of care (A) in supplying the child with adequate . . . medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so" (Family Court Act § 1012 [f] [1] [A]).

The DSS alleges E.H. "was born with a hole between the lower chambers of his heart, and with a severe blockage between his right ventricle and his pulmonary artery. A shunt was surgically inserted between his aorta and his pulmonary artery to increase the blood flow to his lungs. The shunt is now not large enough for his growing body." E.H.'s physicians have advised Respondents that the shunt has to be replaced because it is not large enough, and the hole in his heart has to be repaired or he will die in early childhood. Respondents have refused to consent to the surgery.

During the trial, the Court heard from the DSS's two (2) expert medical witnesses, Frank Smith, M.D., a licensed pediatric cardiologist, and George Michael Alfieris, M.D., a licensed pediatric cardiothoracic surgeon. Each doctor has treated E.H. and each was a credible witness. E.H. was diagnosed with Tetralogy of Fallot with Pulmonic Atresia after he presented at Canton-Potsdam Hospital as "very blue" at two weeks of age. Dr. Smith estimated he has treated approximately one hundred and fifty (150) children with this diagnosis. Dr. Smith explained in great detail, with diagrams, E.H.'s first operation where a shunt was inserted from his body artery to his lung artery; there also was a repair to connect the two (2) lung arteries (Transcript page 63). He explained how E.H.'s heart looks now and will look after the proposed surgery, and he compared it with a normal heart (see Petitioner's Exhibits ## 3(A), 3(B), and 3(C)). In Dr. Smith's opinion, E.H.'s "prognosis is poor. . . but as he grows, the he'll outgrow the shunt. I would say within the next year there's up to a seventy-five percent change that he will die of this. . . . As the oxygen level goes down, and his blood count goes up, he would be at risk for things like a stroke which would mean loss of circulation to a part of his brian that would render him with neurological nervous system deficits. I think that would be the major risk other than death" (Transcript page 51). As the shunt becomes too small, it will clot up when the blood becomes thicker, and E.H.'s body will produce more blood cells to compensate for the lack of oxygen thereby exacerbating the problem. Dr. Smith testified that in years past the shunt would have been replaced with a bigger one, but that method is no longer the accepted standard of care in the medical profession. Now, the standard of care for someone with E.H.'s diagnosis is to repair the hole and the blockage. He referred to it as a "complete repair".Dr. Smith testified that he examined E.H. in December 2007. At that time, he had an oxygen saturation level of eighty-five (85%) percent. In February 2008—the last time he examined him—it was between seventy-nine (79%) and eighty-four (84%) percent. He explained that the number regarding E.H.'s oxygen saturation level could fluctuate depending on numerous factors including E.H.'s level of activity at the time of the exam or whether he was cold. His level of oxygen saturation was determined through a pulseoximeter and not by checking his red blood cells, which would be more accurate, because it is important to limit the amount of blood drawn. It is Dr. Smith's belief that the longer E.H. is without the "complete repair" surgery, the bluer he will become (oxygen saturation level decreases), and the more risky the operation becomes. He testified "[t]he risk of stroke right around the time of the operation, during the anesthesia and whatnot, could go up" (Transcript page 52).

Respondents consented to E.H.'s first operation which was performed by Dr. Alfieris. During his testimony, he explained the mechanics of the "complete repair" surgery. It involves opening the chest, using a cardio-pulmonary bypass machine, which would bypass blood from the heart and lungs. Once a patient is on the bypass machine it cools the body and organs. A large dose of potassium chloride is given to the patient which then paralyzes the heart, but the "heart does not die." Dr. Alfieris concurred with Dr. Smith's opinion that without the operation, E.H. will ultimately die, and that the complete repair surgery is the only accepted standard of practice. All of the medical professionals treating E.H. believe he is ready for the "complete repair" surgery because as he is outgrowing the shunt, there is a constant decline in saturation and concomitant increase in his red blood cells which decreases his level of saturization and causes an increase in his hemoglobin (see Transcript page 268). In addition, the lower the oxygen level saturization is at the time of the operation, the more risky it becomes that E.H. might die during the operation. According to Dr. Alfieris, if E.H. is operated on before his oxygen level saturization drops below seventy (70%) percent, his chance of survival is between ninety (90%) and ninety-five (95%) percent.

The DSS also called Eric Lynch, a child protective case worker with the St. Lawrence County Department of Social Services. Mr. Lynch testified that he interviewed Respondent, Gideon H., on June 23, 2008, concerning E.H.'s need for further surgery. During his interview, Respondent, Gideon H., indicated he did not consent to E.H.'s surgery because he believes it involves "the stopping and starting" of his heart which is against his religious beliefs. Mr. H. told Mr. Lynch it was a "family decision" and would "call in" both sets of grandparents.

Respondents' Bishop, Elmer Miller, also testified during the proceeding. He was elected the Bishop of Respondents' church in May 2007. Mr. Miller explained that his and Respondents' religious beliefs permit the Church's members to receive medical care including surgery, but it does not permit the type of open heart surgery that E.H. requires "because it stops the heart."

Gideon H. testified on his own behalf. He testified that E.H. was taken to the hospital at two (2) weeks of age because the parents noticed he was bluish. He was transferred to Upstate Medical Center in Syracuse, New York, where he stayed for nine (9) to (10) days. Gideon H. stated that he was informed in April 2008 that E.H. needed another operation, and that his heart would be "stopped" during the surgery. Respondents object to the surgery because it is against their religious beliefs. Gideon H. testified that he believes that "stopping the heart" is too close to taking chances of killing E.H.. Both Dr. Smith and Dr. Alfieris testified that the heart will not be "stopped". Dr. Smith testified the heart would be "slowed" and Dr. Alfieris testified it would be "paralyzed. Gideon H., however, does not want to "put[ ] him down where we think it's too close to taking chances of killing him (Transcript page 291). He quoted scripture from the New and Old Testament for his beliefs including "Let the little children come to me and do not forbid them for of such is the kingdom of heaven" (Petitioner's Exhibit # RA (quoting the Book of Matthew 19, 14, Mark 10, 14, and Luke 18, 16)). He believes the "Good Lord looks deeply in our heart . . . God said I have found David the Son of Jesse a man after my own heart, who will do all my will.' Now we know God see in our heart and we think the heart is our livespirit" (Id). He also was concerned with the possibility that E.H. might need a pacemaker after the surgery (a risk of the surgery) since that device also is against his religious beliefs. Gideon H. testified that E.H. has regular checkups with Dr. Weisman, a pediatrician ...


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