Court Cases on Children With FAS/FAE

Court Cases on Children With FAS/FAE

In re Alicia Z.,
784 N.E. 2d 240, 336 Ill. App. 3d 476, 271 Ill. Dec. 22 (App. Ct. 2002)

The appellate court declined to transfer guardianship of girl with FAS to her foster parents, but also declined to order that she be immediately placed in the custody of her biological father.

There was a dispute in this case about whether the child in question, Zayda, actually had FAS. A pediatrician testified that Zayda did have FAS, while a pediatric geneticist concluded that she had neither FAS, FAE, nor ARND. The latter physician testified that if there were evidence that the mother consumed alcohol during pregnancy, that might alter her diagnosis. The trial court had already concluded that the mother did drink during the pregnancy. The child had an IQ of 100; both experts agreed that that did not rule out a diagnosis of FAS. The trial court downplayed the importance of the disagreement about whether the child had FAS/FAE, since both experts agreed that Zayda needed continuing therapy sessions.

Zayda was first diagnosed with FAS in January 2000, when she was less than two. A court "ordered early intervention therapies, developmental classes, and occupational and speech therapy." She was later was "kicked out" of two day care centers for behaving badly, but her ability to extract and use learned information had improved.

The biological father had attended some of the child's therapy sessions, and understood and was attempting to help her deal with her problems.

"[He] used games, puzzles, and toys to teach her to remain focused on tasks. He also calmed Zayda when she became disoriented, frustrated, anxious, and afraid."

In the Matter of C.C.
1997 WL 360676 (Tex. Ct. App.)

The appellate court approves the termination of the father's parental rights with regard to three children, all of whom had FAS. (*4).

The court concluded that one factor militating in favor of termination of parental rights was that the children had "tremendous needs."

A pediatrician who specialized in birth defects

"diagnosed the children with triple hit suite syndrome, a syndrome associated with prenatal exposure to drugs/alcohol. The children have the physical features of Down's Syndrome, physical growth problems, and learning disorders. All three children suffer from growth impairment which indicates their cases are severe."

(*4). The mother at various times had used marijuana, cocaine, and methamphetamine. One child had tested positive for drugs (unspecified) at birth.

In re Adoption of Charles B.
552 N.E. 2d 884, 50 Ohio St. 3d 88 (1990)

Charles B., age 8, suffered from a number of serious problems: leukemia (then in remission), low I.Q., a speech disorder, deficits in fine and gross motor skills, and "possible brain damage (fetal alcohol syndrome.)" (552 N.E. 2d at 884).

The court noted that these problems "make Charles less adoptable than other children his age." (552 N.E. 2d at 885).

There was expert testimony that Charles had "special needs" and "requires an adoptive parent with stability and flexibility, and the willingness to seek needed services." (552 N.E. 2d at 889).

The primary controversy in this case was whether Ohio law permitted the adoption of a child by a homosexual adult. The court held that it did.

In the Matter of the Custody and Parental Rights of M.M.
271 Mont. 52, 894 P. 2d 298 (1995)

The court approves termination of the father's parental rights with regard to M.M., who had been diagnosed with FAS. The decision rested largely on the failure of the father to comply with the terms of a treatment plan.

One element of the treatment plan was that the father "take classes on fetal alcohol syndrome." 894 P. 2d at 299. The treatment plan was prepared by the Lewis and Clark County Department of Family Protective Services.

Adoption of Oliver
554 N.E. 2d 40, 28 Mass. App. Ct. 620 (Appeals Ct. 1990)

The appellate court affirmed a decision dispensing with the mother's consent to Oliver's adoption. This will permit the child's foster parents to adopt Oliver without the mother's agreement.

In reaching this conclusion, the court relied primarily on the special needs of a child, like Oliver, with FAS. The court also gave some weight to the mother's continued use of alcohol.

The description of the facts on which the diagnosis was based included the following:

"[Oliver has] some of the particular facial features of such children, retarded growth, and some neurological dysfunction. He is developmentally and mentally delayed. His psychological testing places him in the borderline retarded range."

(554 N.E. 2d at 43.)

The court described Oliver's special needs in the following passage:

"[I]t will be pivotal to Oliver's development that he live in an enriched environment with constant stimulation, by which the doctor meant that he must have sustained contact with persons willing to take an active interest in his everyday life and willing to encourage him to take responsibility for himself."

(554 N.E. 2d at 43).

Appeal of U.S.W.
541 A. 2d 625 (D.C.Ct.App. 1998)

Appellate court affirms the termination of father's parental rights. The court holds that the father would be unable to meet the special needs of the child caused by FAS and "fetal hydantoin syndrome." 541 A. 2d at 626-27.

The opinion notes that the child's foster parents appear better able to meet the child's needs.

Expert testimony asserted that the child's disabilities will make it harder to find adoptive parents. 541 A. 2d at 626.

People v. W.
222 Mich. App. 160, 564 N.W. 2d 903 (Ct. App. 1997)

W. pled nolo contendere to several counts of unlawful sexual contact with a child.

The sentencing judge was aware that W. had FAS. At the initial sentencing hearing, W.'s defense counsel had and referred to several psychological examinations, but evidently did not actually provide the court with copies of at least some of them. The judge initially sentenced W. to 2-15 years in prison.

Thirteen days later, W.'s attorney filed a motion to alter the sentence, and this time attached the psychologist reports that had not been provided earlier. Two weeks later the trial judge granted the motion, and reduced the sentence to 90 days in jail and 5 years of probation. the judge ordered that W. spend 150 days on the "tether program" and undergo outpatient therapy. 222 Mich. App. at 182-83.

The prosecution appealed. The appellate court held that under Michigan law the trial judge had no authority to modify his original 2-15 year sentence.

This case is important, not because of this legal issue, but because it illustrates the impact at sentencing of a more detailed exposition of the significance of FAS/FAE. The trial judge concluded that that exposition warranted a far lower sentence; the appellate court did not disagree, but held only that the trial judge could not change his mind after he handed down the first sentence.

The dissenting opinion in the appellate court quoted extensively from the materials that persuaded the trial judge to impose the lower sentence (later overturned solely on procedural grounds).

Effect of Imprisonment

The materials on which the trial judge relied in reducing the sentence included in particular an affidavit from Dr. Ann Streissguth. That affidavit identified several distinct reasons why imprisonment was an inappropriate sentence.

(1) "The general objective of punishment will not be met because this individual cannot and will not intellectually connect past conduct with present consequences . . . . [I]n all probability, [he] will never have an acceptable understanding of the reasons he is incarcerated." 564 N.W. 2d at 912

(2) "Rehabilitation will be virtually impossible because if therapy is available at all, it would most likely be cognitive-type group therapy. This would almost certainly have little positive impact on Mr. W. and could actually be counterproductive. For an FAS individual, traditional group therapy generally causes additional confusion in a setting which will already be virtually impossible for him to function in." 564 N.W. 2d at 912.

(3) "Persons with FAS become targets for mental, physical, and sexual victimization within the prison population." 564 N.W. 2d at 912.

(4) Despite the FAS, "[W. has] achieved nearly unprecedented life goals such as his regular job as a dishwasher, no previous court intervention, and no observable secondary psychological problems. . . . If he survives prison, . . . the qualities which have caused him to be an example of how well FAS children can function if raised in a structured and affectionate environment, will be lost or severely minimized." 564 N.W. 2d at 912.

(5) "[I]t is very likely that he will learn and internalize deviant sexual behaviors in the prison setting. Incarcerating Mr. W. makes it much more probable that he will be a repeat sex offender than placing him back into his parents' home." 564 N.W. 2d at 912.

Sexual Offenses

There was a sharp disagreement between state probation officials about the appropriate sentence. The probation officer who actually interviewed W. recommended no prison time at all. Another more senior officer urged a sentence of 3 1/2 years, insisting that W. was a pedophile. 564 N.W. 2d at 911.

Two experts disagreed with that characterization. Dr. Streissguth concluded that the "clinical diagnosis of pedophilia is not likely to be supportable in [W.'s] case, given his level and mode of intellectual functioning." 564 N.W. 2d at 912.

Dr. Steven Miller concluded that W. did not have "sufficient emotional maturity and mental ability to be diagnosed as a pedophile." 564 N.W. 2d at 913. Both Streissguth and Miller concluded that the particular type of activity for which W. had been convicted did not support a diagnosis of pedophilia. 564 N.W. 2d at 912-13; see 564 N.W. 2d at 904-05 and n. 1 (describing conduct).


Dr. Miller concluded that "the organic brain damage caused by Fetal Alcohol syndrome excludes the possibility of . . . premeditation and planning." 564 N.W. 2d at 182. This would be important in a case in which an individual with FAS/FAE was charged with a crime in which premeditation was an element.