Miscellanous Court Cases

Miscellaneous Court Cases

Bateman v. Valley Clinic
127 Wash. App. 1002, 2005 WL 895818 (Wash. Ct. App. 2005)

The plaintiffs are the parents of a healthy child conceived following an unsuccessful vasectomy. In their wrongful birth claim, the plaintiffs cited   McKinney v. State, 134 Wn.2d 388, 950 P.2d 461 (1998), a case that recognized a cause of action stemming from an adoption agency's negligent failure to disclose a childÍs FAS diagnosis. The Court found that the   McKinney   case was inapplicable to the plaintiff's claim, because while damages for the rearing of an unhealthy child (i.e. one with FAS) may be appropriate, such damages are not appropriate with respect to a healthy child.

California Restaurant Association v. City of Los Angeles
192 Cal. App. 3d 405, 237 Cal. Rptr. 415 (Cal. Ct. App. 1987)

Los Angeles enacted a city ordinance requiring that restaurants and bars post a sign warning that consumption of alcoholic beverages during pregnancy can cause birth defects. The state association of restaurants challenged the validity of the law. The court concluded that the ordinance was valid.

The ordinance contained the following finding:

"[R]ecent research indicates that alcohol consumption during pregnancy may cause irreversible adverse effects on the development of a fetus, resulting in birth defects including mental retardation, facial abnormalities and other defects involving heart and bone structure."

(192 Cal. App. 3d at 407-08).

Commonwealth v. Welch
864 S.W. 2d 280 (Ky. 1993)

Welch had used the illegal narcotic oxycodone during her pregnancy. She was charged with criminal abuse because she had used the drug during the pregnancy. The baby, although testing negative for oxycodone, had allegedly suffered from "neonatal abstinence syndrome."

The question in the case was whether drug use during a pregnancy could constitute a crime against the fetus. The Kentucky Supreme Court held, over a dissent, that such drug use did not constitute a crime against the fetus. This was an abortion-related dispute; underlying the appeal was whether an unborn fetus should be treated as a human being. The ACLU represented Welch.

The majority opinion argued that if what Welch did was a crime, it would also be a crime to drink alcohol while pregnant.

"The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome . . . The Commonwealth replied that the General Assembly probably intended to draw the line at conduct that qualifies as criminal . . . The Commonwealth's approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother's alcoholism, not the act of driving that causes the fetal alcohol syndrome."

864 S.W. 2d at 283. Note that the majority incorrectly assumes that only alcoholics have children with FAS.

The dissent objected that this was a "false issue." "[T]his Court has not business fretting, as has the majority, over whether a pregnant woman could be prosecuted if she ingested alcohol." 864 S.W. 2d at 286. It is unclear whether the dissenters thought that it was obvious that such a woman could be prosecuted, or that it was obvious she could not.

The majority opinion quoted the preamble to a 1992 Kentucky statute that contained the following passage:

"The General Assembly finds that a woman's ability to bear healthy children is threatened by the consequences of alcoholism and drug abuse; as many as ten percent (10%) of all births in the Commonwealth may be affected by alcohol or drug abuse; drug and alcohol use during pregnancy can result in low birthweight, physical deformities, mental retardation, learning disabilities, and other health problems in newborn infants; fetal alcohol syndrome is the leading identifiable cause of mental retardation in the nation and the only one that is totally preventable; drug and alcohol impaired individuals pose extraordinary societal costs in terms of medical, educational, and support services needed throughout the individual's lifetime. "

864 S.W. 2d at 285. (Emphasis omitted).

In the Matter of the Children of Corey Lee Dixon
2003 WL 21152526 (Minn. Ct. App.)

This is a case regarding the termination of the parental rights of the father of four children.

One ground for the termination was that the father had failed to "engage in a support group for Fetal Alcohol syndrome and Fetal Alcohol Effects." 2003 WL 21152526 at * 1. [Such support groups do not even exist in most areas.] This case is from St. Paul, Minnesota.

Dubovsky, ex rel. Estate of Dubovsky v. City of Philadelphia
No. Civ.A.04-CV-467, 2005 WL 113016 (E.D. Pa. 2005)

Plaintiff's adopted son William had FAS and mental health problems. As a teenager, William lived in a full-time residential services program (the "Lodge"). William's mental illness did not improve while at the Lodge and became so acute that he voluntarily signed himself into Friend's Hospital--an institution that provides inpatient and partial hospital services to individuals suffering from mental illness. Upon his discharge from Friend's Hospital, William returned to the Lodge, but failed to receive the one-on-one supervision that was promised to him by the Philadelphia Office of Mental Health and Mental Retardation. Shortly after returning to the Lodge, William wandered away unescorted, was struck by a car and died. Plaintiff filed a Section 1983 suit, claiming that the City's failure to provide William adequate care violated William's due process rights. The court held that the "custodial relationship" exception to the general rule that the Due Process Clause does not afford the right to government protection did not apply because William voluntarily placed himself into a custodial relationship with the government. In addition, the court held that the "state-created danger" exception did not apply in this case because although the City could have minimized the danger William was in, the City did not create that danger. The fact of William's FAS diagnosis was not discussed in the court's decision.

Hornell Brewing Co., Inc. v. Brady
819 F. Supp. 1227 (E.D.N.Y. 1993)

Hornell manufactured and sold a malt liquor which it labeled "The Original Crazy Horse Malt Liquor." Congress was outraged at this label, noting that Crazy Horse was a Sioux chief renowned for urging his people not to drink alcohol. Congress adopted a law forbidding the use of the words "Crazy Horse" on any alcoholic beverage.

Hornell brought this suit attacking the validity of that law, which it argued violated the First Amendment. The court held the law unconstitutional.

The decision is noteworthy because the court recognized that FAS was a very serious problem, especially among Native Americans, and because it was the lawyers for the United States which introduced evidence demonstrating the severity of the problem.

"At the hearing entitled,   Confronting the Impact of Alcohol and Marketing on Native American Health and Culture, which was held before the House Select committee on Children, Youth, and Families in May, 1992, research was presented documenting alcohol related health problems that afflict Native American society. . . . The alcoholism rate among Native Americans is six times higher than that of the general population. . . . Native American infants are twenty times more likely than other United States infants to be born with Fetal Alcohol Syndrome. . . . High rates of alcohol use and abuse among Native American teenagers are also reported. . . . Given the serious nature of these problems, the government does have a substantial interest in preventing further use of alcohol among Native Americans in order to reduce its deleterious effects."

819 F. Supp. at 1235-36.

Schoonover v. State
116 Wash. App. 171, 64 P. 3d 677 (2003)

Schoonover, who has FAS and is mildly retarded, was in foster care from ages 7 to 16. He alleged that during that period the state had failed to provide him with needed treatment, and that the state had also failed to protect him from repeated instances of mental, physical and sexual abuse. 64 P. 3d at 879-80.

The case was dismissed on procedural grounds.

In the Matter of Danielle Smith
128 Misc. 2d 976, 492 N.Y.S. 2d (N.Y. Family Ct. 1985)

The county Department of Social Services brought this action to have Danielle Smith declared a "neglected child." This apparently was a first step toward removing the child, at least temporarily, from the custody of her mother. The action was based solely upon the  prenatal conduct of the mother.

During her pregnancy the mother drank 10 alcoholic beverages on an average of 3 or 4 days a week.

The Department urged, first, that Danielle was a neglected child because her mother's drinking had actually caused FAS. The court concluded that there was insufficient evidence that the child actually had FAS.

The Department also argued that Danielle was a neglected child simply because her mother's drinking had created a   risk  of FAS. The court agreed.

"Although the proof in the instant proceeding is insufficient to establish that the [mother's] abuse of alcohol, during pregnancy, actually caused fetal alcohol syndrome at the time of birth, the Court, nevertheless, holds that such proof was sufficient to establish 'imminent danger' of impairment of physical condition, including the possibility of fetal alcohol syndrome, to the unborn child."

492 N.Y.S. 2d at 334. Under state law creating an imminent danger of impairment was sufficient to support a finding of child neglect.

The court also held that the fetus was a "person" within the meaning of the state Family Court Act.

Toni D. v. Superior Court
2002 WL 1943651 (Cal. App. 5 Dist.)

The county department of social services filed a dependency petition, alleging that the mother (Toni D.) had been guilty of physical abuse of a child because she drank while she was pregnant with C.W.

The child was born prematurely at 26 weeks, and required oxygen and a feeding tube. A neurologist present at the birth testified that the child had a small head, which was a "direct indicator" that the child had an underdeveloped brain. The neurologist in turn attributed this to FAS. The mother had consumed two quarts of beer daily during her pregnancy, as well as using other drugs.

Under the statute relied on by the county, it was required to show that physical injury was caused by a "single act of abuse." The court held that this standard could not be met, because it was "the cumulative effects" of alcohol use, not a single drink, that had interfered with the development of C.W.'s brain.

The court suggested the county might be able to proceed under a different state statute.

Diagnosing FAS based solely on the size of a child's head, even given a mother's history of alcohol abuse, is not consistent with current medical practice.

Walton v. Albany Community Development Agency
279 A.D. 93, 718 N.Y.S. 2d 456 (3rd App. Div. 2001)

This action was brought by the parent of three children allegedly injured by lead based paint in their residence.

The lower court dismissed the claim, reasoning that the children's disabilities might instead have been due to FAS. The appellate court reversed, noting the evidence that the children had indeed had dangerously high levels of lead in their blood. 279 A.D. at 96.

The defendant had offered an affidavit from a neuropsychologist that it is impossible to differentiate the effects of FAS from those of lead exposure. 279 A.D. at 96.

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