Maine agency backtracks on do-not-resuscitate order, but legal case is proceeding



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PORTLAND, Maine — The child welfare agency that won the right to make medical decisions on behalf of a brain-injured infant is backtracking, saying it will defer to the wishes of the child's teenage mother.

But the teenager who's fighting the state's do-not-resuscitate order has no intention of dropping her appeal to the state supreme court, which will hear arguments this month, her lawyer said Tuesday.

Unless the state's highest court weighs in, "there will remain an open legal question" over whether the government is violating parents' constitutional rights when it wins the authority to make life-or-death medical decisions for a child who is in temporary state custody, attorney Scott Hess said in a statement.

Maine Department of Health and Human Services Commissioner Mary Mayhew said in a statement that her agency will not exercise its authority if the do-not-resuscitate order is upheld. That would be a reversal for the agency, which had asked for — and received — the authority to impose the order.

"If the higher court upholds the previous decision that a parent's rights can be overridden by the department, this administration will not exercise that misplaced authority," Mayhew said.

The 18-year-old mother, Virginia Trask, originally agreed to the do-not-resuscitate order after her then-6-month-old daughter was severely injured in December in what police described as an assault by the youngster's father. The baby cannot see or hear, must be fed through a tube, and suffers severe ongoing health problems.

Trask changed her mind when the girl was removed from life support, placed in her arms, then opened her eyes and began breathing. But child welfare officials pressed for the do-not-resuscitate order anyway.

The state judge who gave child welfare officials authority to make medical decisions found that "neither parent can be counted on to be physically or emotionally available to make the necessary informed decision when needed." The mother also had previously expressed an interest in reuniting with the father, who's awaiting trial next month on charges of aggravated assault, according to court documents. If the baby dies, charges against the father could be upgraded.

Upon learning of the matter, Maine Gov. Paul LePage expressed support for allowing the mother to make medical decisions as long as her parental rights remain intact under state law. He also called for a full review of how the department handled the case.

State attorneys who supported the request to intervene were guided by a similar case in which the state was granted temporary power to make medical decisions on a child's behalf, said Timothy Feeley, spokesman for the attorney general's office.

"The attorneys of the Child Protection Division worked closely for many months with numerous members of DHHS to address the interests of the child in this matter consistent with the law. We look forward to working with the department to ensure the interests of the child continue to be fully represented," he said.

For now, the injured baby remains in foster care, and Trask retains visitation rights.

Hess said it's important for the supreme court to resolve the legal issue.

"Although Governor LePage and his administration has decided to support her position, for which she is of course grateful, there is no guarantee the next administration will do the same," he said. "In addition, the administration's support for my client's position does not invalidate the existing court order."

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