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In re Matthew V.

Family Court, Kings County

April 27, 2017

In the Matter of Matthew V. A Child under Eighteen Years of Age Alleged to be Abused by Lynette G., Respondent.

          Alan Sputz, Esq. Special Assistant Corporation Counsel Administration for Children's Services Family Court Legal Services

          By: Caroline Irvin, Esq. Andrew Friedman, Esq. Friedman Sanchez LLP

          Counsel for Lynette G. Maria Roumiantseva, Esq. Legal Aid Society, Juvenile Rights Practice Attorney for the Child

          Erik S. Pitchal, J.

         By petition dated April 20, 2017, ACS alleges that the respondent, Lynette G., abused her 13-year-old son, Matthew V. The gravamen of the petition is that Matthew is diagnosed with Ewing sarcoma, the only indicated treatment for which is chemotherapy, and that Ms. G. is unreasonably refusing to consent, putting the child's life at risk.

         With the filing of the petition, ACS sought a court order giving it medical decision-making authority for Matthew. ACS did not seek a remand of the child or the transfer of any other parental or custodial duties, recognizing that as he goes through chemotherapy, the child would be best off remaining in his mother's care. The matter was transferred to the undersigned for the purpose of a hearing on the issue.

         Prior to commencing the hearing, the Court confirmed, on the record, that if the Court were to grant the ACS application, Ms. G. would obey the order and bring the child to chemotherapy appointments despite her objection to them, obviating the need to expand the scope of the hearing to consider a full remand. Also prior to commencing the hearing, the Court ascertained that the child also opposed chemotherapy, and thus the attorney for the child would be opposing the ACS application. Nevertheless, the attorney for the child noted the importance for the child to receive independent counseling from a licensed mental health professional familiar with pediatric cancer issues, so that, in the event the Court granted the ACS application, Matthew could be emotionally prepared to accept the result. Ms. G. indicated that she would consent to such counseling.

         The Court also inquired regarding Matthew's father, and was informed that Mr. V. resides in Florida and is in touch with Matthew and Ms. G. He is also said to oppose the chemotherapy treatment plan.

         The hearing commenced on April 21, 2017, and continued on April 25, with closing arguments delivered on April 27. The record at the hearing consisted of the credible testimony of ACS child protection supervisor Ms. Tonza Smart and Dr. Alice Lee (qualified by stipulation as an expert in pediatric oncology), and the testimony of Ms. G., which the Court found credible in some respects and not credible in others, as detailed below; Petitioner's Exhibits 1 (Memorial Sloan Kettering Cancer Center records) and 2 (ORT dated March 30, 3017); and Respondent's Exhibit A (MRI report dated April 17, 2017), B (hematopathology report dated March 3, 2017), C (pediatrician letter dated April 24, 2017), and D (CT scan report dated April 21, 2017). [1] Based on the record, the Court makes the following findings of fact:

1. The child Matthew V. was born on xxxx, 2003, and is 13-years-old.
2. Matthew and his mother first noticed a pea-sized mass on the left side of his neck in approximately 2014. They thought it was a benign cyst. Over the years, it grew in size, and by December 2016, Matthew was complaining of discomfort when he turned his head to the left.
3. Ms. V. brought Matthew to the emergency department at Morgan Stanley Children's Hospital of New York/New York-Presbyterian ("CHONY"). CHONY staff told the family that, based on imaging, the mass was not a cyst, and surgery was recommended.
4. Dr. Duron performed surgery and excised the mass on January 7, 2017. Pathology examination showed the margins to be clear.
5. However, Dr. Alice Lee, the pediatric oncologist at CHONY also informed Ms. V. that Matthew has Ewing sarcoma. This was based on the genetic testing done on the mass that Dr. Duron removed, which revealed an EWS-ERG fusion. Moreover, a chest CT scan revealed three tiny nodules on his lungs, which were too small to biopsy.
6. Ewing sarcoma is a type of tumor found in soft tissue or bones, which most typically strikes adolescents and young adults. Systemic chemotherapy is the standard treatment for this kind of cancer. When Ewing sarcoma metastasizes, it most commonly spreads to the lungs, other bones, and bone marrow, but it can travel anywhere in the body. CHONY conducted a PET scan to assess the presence of disease elsewhere in his body, and the results were negative. CHONY also conducted a bone marrow biopsy to determine if he had cancer in his bones, and the result was negative.
7. Nevertheless, because of the definitive diagnosis of Ewing sarcoma, Dr. Lee recommended initiation of systemic chemotherapy. She believed the nodules in Matthew's lungs were evidence that the cancer had spread there. Ms. G. was reluctant and wanted a second opinion.
8. Ms. G. arranged for a second opinion at Memorial-Sloane Kettering Cancer Center ("MSKCC"). MSKCC was provided various tissue slides from CHONY to conduct their own examination and testing. As early as March 3, 2017, a hematopathologist at MSKCC, Dr. Wenbin Xiao, examined slides of a bone biopsy conducted by CHONY on January 26, 2017 and found no evidence of metastatic disease.
9. Another MSKCC pathologist, Dr. Cristina Antonescu, reviewed the biopsy slides of the mass that had been removed by CHONY. From her initial histology review, she did not think the cells were completely consistent with Ewing sarcoma. Her first method of genetic testing led her to think that Matthew may have a myoepithelial carcinoma instead, so she performed a different type of genetic testing to be certain.
10. The indicated treatment for myoepithelial carcinoma is quite different than the systemic chemotherapy indicated for Ewing sarcoma. For a myoepithelial cancer, MSKCC would recommend more surgery at the cancer site, to remove a greater area of tissue, as well as possible post-surgical radiation therapy.
11. When Ms. G. brought Matthew for an in-person consultation at MSKCC on March 22, 2017, the pediatric oncologist, Dr. Paul Meyers, informed them of Dr. Antonescu's findings, her plan to perform additional genetic testing on the tumor sample, and the different treatment recommendations depending on the results of that testing. The family also met on March 24, 2017, with Dr. Todd Heaton, the pediatric surgeon, who explained the excision he would ...

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