Case Summary: This case involved a critically injured infant, who was born on May 3, 2001 and hospitalized on September 2, 2001. Father is in jail on assault and related charges in connection with Michael's injuries. DuPont Hospital for Children filed a Petition for Guardianship in the Court of Chancery requested that Mother be appointed as sole guardian in order to make medical decisions for Michael - including the entry of a "do not resuscitate" (DNR) Order. Father opposed this petition. Counsel for DuPont, John Parkins, Esquire, assisted OCA in having Kathryn Laffey, Esquire appointed pro bono as attorney guardian ad litem for Michael. At the initial hearing, Father objected to Chancery Court's jurisdiction to hear this matter, and suggested that a neutral third party be appointed as guardian. V.C. Lamb entered a temporary order appointing Mother guardian for the purpose of entry of a DNR order, but did not authorize her to withdraw life support.
     After obtaining an independent medical evaluation, the attorney GAL filed a Motion to De-Escalate Treatment, specifically requesting that Mother be given the authority to consent to the withdrawal of life support. After a hearing on October 2, 2001, the Chancery Court appointed Mother as permanent guardian, and authorized her to make all medical decisions, including the withdrawal of life support. V.C. Lamb followed and cited the evidentiary standard and burden of proof set forth by Judge Ableman in In re: Nicholas Truselo. This matter was immediately appealed by Father to the Supreme Court. The Supreme Court ordered an expedited briefing schedule, and concluded the case in its entirety within two weeks. Limited stays were granted during the appeal.
     On appeal, Father argued that Family Court had exclusive jurisdiction over a guardianship matter involving an abused child. After oral argument, the Supreme Court held that Chancery Court and Family Court have concurrent jurisdiction over guardianship matters. The Court wrote an extensive historical analysis of the relevant constitutional, statutory and case authority. The court held that the statutory authority given to Chancery by 12 Del. C. § 3901 expressly grants Chancery Court jurisdiction in guardianship matters, including minors, and 10 Del. C. § 925(16) grants Family court the same authority in the "general jurisdiction" statute. In reading the legislative history of the Family Court enabling act, and finding no express language or intent to divest the Court of Chancery from continuing to exercise jurisdiction in these matters, the Supreme Court affirmed the exercise of Chancery Court's jurisdiction.
     In a footnote referencing the new Family Court guardianship statute signed into law on July 10, 2001, the Supreme Court suggested that 13 Del. C. § 2322(9) requires all guardianship petitions to state dependency/neglect grounds against each parent. In this case, there was no evidence of lack of care by Mother. Michael was removed from life support on October 24, 2001, and died minutes later. His Father awaits trial for murder by abuse or neglect.

     From the Child's Perspective: Death of a child as a result of abuse or neglect is one of the most painful aspects of child welfare. Decisions to prolong the life of an infant who has little to no chance of recovery is heart-wrenching. OCA has had the unfortunate opportunity to be involved in two of these cases in the last year - Michael's and Nicky Truselo's. From the child's perspective, what is most inspiring is the passion and dedication that attorneys and judges involved in these tragedies exhibit on behalf of these children. While the Supreme Court decision clarified the concurrent jurisdiction of Family Court and Court of Chancery in guardianship matters, this case should be recognized for the Court's sensitivity to the important task at hand, and to the urgency with which Michael needed a decision about his fate. By way of example, the appeal in this case was filed on a Thursday. Full briefing was completed by the following Tuesday. Oral argument was scheduled and heard the next day. Six days later the Court issued a decision. The best interests of Michael required an expedited hearing, and the Court wholeheartedly placed Michael's needs first in its procedural handling of this case.
      This Office is also grateful and impressed by the dedication of the attorneys involved. First, thanks to John Parkins, Esquire, who works for Richards, Layton and Finger, and who made it possible for Kathryn Laffey, Esquire, to be appointed on behalf of Michael. John went the extra mile because it was the right thing to do for this child. OCA cannot say enough about the time, dedication and energy Kathy put into this case on behalf of Michael. She visited this child, his family and his doctors. She secured an independent medical evaluation of Michael, and filed the Motion to withdraw life support. She also engaged the pro bono services of David Ferry, Esquire, on behalf of Mother. Dave would later assist the family in securing monies to give Michael a proper burial.
     Kathy represented Michael's interests in the Court of Chancery and then on appeal to the Supreme Court. And as difficult a position as she was in, in asking the Court to end Michael's life, she helped Michael find peace. These attorneys gave of themselves, their time and their families to make a difference for a child. Their selfless acts are in the highest tradition of the Delaware Bar and OCA applauds them.

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