Custody of a Minor (No. 3)

393 N.E.2d 836, 378 Mass. 732, 1979 Mass. LEXIS 896
CourtMassachusetts Supreme Judicial Court
DecidedAugust 9, 1979
StatusPublished
Cited by19 cases

This text of 393 N.E.2d 836 (Custody of a Minor (No. 3)) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Custody of a Minor (No. 3), 393 N.E.2d 836, 378 Mass. 732, 1979 Mass. LEXIS 896 (Mass. 1979).

Opinions

Hennessey, C.J.

This is a petition by the parents of a three year old boy for a review and redetermination of the child’s needs for care and protection under G. L. c. 119, § 26. The child has the disease of acute lymphocytic leukemia. After a hearing, a judge in the Superior [733]*733Court continued in effect a prior court order, issued on April 18, 1978, requiring that the child undergo chemotherapy treatments. The judge further ordered that the parents cease administering to the child laetrile, large doses of vitamins A and C, enzyme enemas, and folic acid. The parents’ custody of the child was restricted only to the extent necessary to ensure medical supervision consistent with the order. The parents appealed. We affirm the judgment.1

1. Prior Proceedings.

This matter was before this court once before. Custody of a Minor, 375 Mass. 733 (1978). On that occasion there had been an appeal to the Superior Court from the dismissal in District Court of a care and protection petition brought by the child’s attending physician pursuant to G. L. c. 119, § 24. The filing of that petition followed the parents’ refusal to consent to the continued administration of chemotherapy treatment. On April 18,1978, after a hearing, a judge in the Superior Court found the minor to be in need of care and protection within the meaning of G. L. c. 119, § 24, and issued an order which, inter alia, required the parents to allow the child to undergo chemotherapy treatment under the supervision of any board certified pediatric hematologist of the parents’ choosing within the Commonwealth, and which vested legal custody of the child in the Department of Public Welfare (department), for the limited purpose of ensuring that such medical treatment was administered. On appeal to this court, we affirmed the Superior Court order.

The essence of the matter then before us was that the child was suffering from acute lymphocytic leukemia for which he was then undergoing a long course of chemotherapy and, by September 30, 1977, the disease was in [734]*734a state of remission. Thereafter, the parents, without the knowledge of the attending physician, discontinued the child’s medication. By February of 1978, the disease had recurred. When the parents declined to resume the treatments, the physician, Dr. Truman, sought the assistance of the courts.

In deciding the case we stated, “Essentially, the judge's findings, which we affirm here, are that there is a substantial chance for a cure and a normal life for the child if he undergoes chemotherapy treatment. The uncontradicted medical testimony supports those conclusions, and no evidence of any alternative treatment consistent with good medical practice was offered.” Custody of a Minor, supra at 736. We observed (id. at n.1), that it was only in their brief on appeal that the parents made any attempt to prove the existence of effective alternative treatment programs for children suffering from leukemia. Some statements were made before this court on appeal as to the attributes of the drug popularly known as laetrile but no evidence of this nature was offered or mentioned in the trial proceedings, and it was, of course, not properly before this court.

2. The Present Proceeding.

In the instant case the parents have petitioned the court for a review and redetermination of the current needs of their child. It is their privilege to request such a proceeding not more than once every six months. G. L. c. 119, § 26. A hearing was held in January, 1979, before a judge in the Superior Court. The Attorney General appeared for the department and court-appointed counsel appeared as guardian ad litem for the child. The guardian ad litem supported the department’s position that the chemotherapy should be continued and that the parents should be prevented from administering additional and harmful treatment to the child. We summarize below the judge’s findings of fact.

At the hearing the parents made it clear, for the first time, that they now accept the necessity of having their [735]*735child receive chemotherapy treatment. By their petition they sought legal authority to supplement the chemotherapy with a program of "metabolic therapy” involving the daily administration of enzymes, large doses of vitamins, and the drug amygdalin, more popularly known as laetrile. They also sought to retain full custody of their child, free and clear of the order from the prior proceeding which placed limited custody in the department for the supervision of the child’s medical treatment only.

The hearing was devoted largely to expert testimony concerning the safety and efficacy, or lack thereof, of the proposed metabolic therapy. The parents presented four expert witnesses. None is licensed to practice medicine in this Commonwealth. None claimed expertise, or even experience with, the treatment of blood diseases in general or leukemia in particular. Dr. Ernesto Contreras was educated and is licensed in Mexico; he spent two years at the Sydney Farber Institute in Boston studying diagnostic pathology and oncology; he is a physician and board certified pathologist; since 1963 he has run a cancer clinic in Tijuana, at which metabolic therapy frequently is used. Dr. Bruce Halstead is also a physician and an expert in biological poisons; he received his medical degree in California, and is currently medical director of a California clinic devoted to the treatment of chronic degenerative diseases at which metabolic therapy has been administered since 1977. The other two experts presented by the parents are not physicians. Dr. Harold Manner is a biologist, and is chairman of the biology department at Loyola University in Chicago, where he has conducted laboratory experiments with laetrile for six years. Dr. Dean Burk is a biochemist and president of an organization devoted to cancer research, and for thirty-five years was the head of cytochemistry at the National Cancer Institute.

The department presented five expert witnesses all of whom are physicians, and all include, among their specialities, the study and treatment of blood diseases. Three practice medicine in this Commonwealth. Dr. John

[736]*736Truman is a pediatric hematologist and oncologist; he is currently chief of the pediatric hematology unit at Massachusetts General Hospital; he has been the child’s treating physician since the parents brought their son to Boston. Dr. Emil Frei was a cofounder of the Leukemia Group B, an organization devoted to collaborative research on leukemia, and is currently the director of the Sydney Farber Cancer Institute. Dr. Andrew Cederbaum is the chief of the hematology and oncology divisions at Memorial Hospital in Worcester. The other two physicians presented by the department were Dr. Robert Young, who is presently the chief medical officer for anticancer drugs at the Food and Drug Administration, and Dr. Victor Herbert, who currently runs the division of hematology and nutrition at Bronx Veterans’ Administration Hospital in New York.

The judge found that the child’s leukemia, which had reappeared in February of 1978, following the parents’ cessation of the chemotherapy and which had been brought into remission again following the court-ordered resumption of the treatment, has remained in remission ever since.

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Custody of a Minor (No. 3)
393 N.E.2d 836 (Massachusetts Supreme Judicial Court, 1979)

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Bluebook (online)
393 N.E.2d 836, 378 Mass. 732, 1979 Mass. LEXIS 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/custody-of-a-minor-no-3-mass-1979.