By Adam D. Schmaelzle, Esq.
First off, this is obviously a very hot-button issue right now, so I just want to start out by saying these two things:
Number one: Parents have an absolute constitutional right to parent their children;
Number two: The Commonwealth’s greatest concern regarding custody issues is the “best interests of the child”.
The reason I mention these two points is because it seems to me that the focus of this case has shifted from the issue of whether or not Justina Pelletier’s parents are fit enough to care for their child, to whether or not the Commonwealth of Massachusetts has overstepped its boundaries by taking permanent custody of Justina. I watched an interview last night on Fox News where Justina’s father, Lou Pelletier, spoke about the issue. I thought that Mr. Pelletier was very well spoken and seemed very intelligent. However, the focus of the interview seemed to be on the fact that it didn’t seem fair that Justina was stuck in a hospital in Massachusetts rather than being back home in Connecticut. In my opinion, the interview ignored the focal point of the real issue, and distracted the viewer. Mr. Pelletier should have spent more time defending his ability to care for his child and less time comparing hospitals to German war criminals.
Having dedicated a large portion of my life to the care and protection of children, I have to say that I cannot possibly pick a side in this case without seeing an actual copy of the Department of Children and Families investigation report, watching the actual trial, or seeing the evidence that was supported.  After watching a concerned and outraged father publicly voice his desire to get his daughter back home, I was reluctant to agree with the State. I mean, who wouldn’t get angry about a father losing his child to a state agency when they step in and say that they can do a better job. But knowing the process by which the Commonwealth decides whether or not to take custody of a child, I have to question Justina’s parents ability to care for this child.
Regarding the issue of whether or not the Commonwealth should get involved in the care and protection of a child, who is in Massachusetts, but is a resident of another state, I would say ABSOLUTELY yes.  When it comes to protecting the welfare of a child, immediacy is the only option.  When a child is potentially in danger, the State of Massachusetts will act as quick as possible to protect that child from harm. For instance if a report is filed where the immediate removal of a child is necessary to protect the child from serious abuse or neglect, the court will issue an emergency order to take immediate custody of the child for up to 72 hours, until a hearing before the court (known as a 72 hour hearing) is held to determine whether the parents should be granted any type of custody beyond 72 hours. M.G.L. Ch. 119 §24.
In this case, a report was filed while Justina was in a Massachusetts hospital. Meaning, the well-being of the child, in the care of her parents, was questioned by someone who wasn’t a judge, or DCF, or any state agency, but merely a mandated reporter who was concerned about Justina while she was in the State of Massachusetts.  DCF then did an initial investigation and decided that if this child was being cared for by her parents, she would be in great danger. All of this was followed by a trial where extensive medical records and psychiatric and medical testimony was presented.  At the conclusion of all of this, Judge Joseph Johnston still found, by clear and convincing evidence that Justina Pelletier would be in danger if she were back in the care and custody of her parents.
But why Massachusetts? Why here? Is big bad Massachusetts trying to take everyone’s kids from other states? What kind of sense does that make? If you are asking the same question, I urge you to read Judge Johnston’s decision (The link is at the bottom of this page).  The State had a decision to make. Do we let this child go back to her parents who could potentially place her in danger, or do we take control and see if Connecticut will take over and keep Justina out of harm’s way?  From the start, Massachusetts has been trying to get Justina back to Connecticut, but Connecticut did not want to get involved. Doesn’t it seem a little funny that the Commonwealth of Massachusetts, a Gaurdian Ad Litem, a mandated reporter, the Department of Children and Families, and medical experts who offered testimony at trial were able to find by clear and convincing evidence that Justina needed care and protection, but Connecticut wanted nothing to do with the issue? Why couldn’t Connecticut do its own investigation to determine whether or not Justina needed its help?  Nevertheless, we are now stuck with a situation where a father is screaming to the media how it isn’t fair for Massachusetts to keep his child when she is from Connecticut, and Massachusetts is continuously making efforts to place Justina in programs in Connecticut to help her. Meanwhile all of those programs are refusing to do so because of all the media attention this case is attracting.
I just want to flip this situation for a second and ask; what if the State released Justina because of this “outcry” back to her parents, and then she subsequently died?  Would the patrons of Connecticut be upset with Massachusetts for not protecting her safety and well-being? Or would they have accepted the father’s argument that it just isn’t fair for her to be in Massachusetts whether or not Connecticut gives a damn about the children of its state.
Is the State intruding on a parent’s right to make medical decisions for their child? Possibly.
This argument is not a new one.  Charges have been getting filed for years against parents whose children have died because the parent decided to use holistic treatments to care for their child who clearly needed modern-day medicine to survive even a minor condition.  When that child died and his/her parents screamed “FREEDOM OF CHOICE”, were they right?
Should a parent be allowed to choose an alternative way of treatment for a child when another form of treatment has a greater likelihood of success? Possibly.
There have been many exemptions to child abuse and neglect laws for religious purposes.
Either way, regardless of whether or not Justina ends up back in Connecticut, or whether Connecticut even wants to “deal” with the “hassle” of child protective custody, I truly hope Massachusetts continues to push back against the media and continues to make those hardball decisions when it comes to the safety and well-being of a child.
Judge Johnston’s Decision