The best interests standards: a comparison of the state's parens patriae authority and judicial oversight in best interests determinations for children and incompetent patients.

• Author: Griffith, Daniel B.

The Best Interests Standard: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients

The "best interests of the child" standard is the guiding legal standard for child custody disputes and decisions on termination of parental rights. The typical situation in which it is used is in child custody decisions where a judge is called upon to decide in which parent's custody the child's welfare and interests are best served. It is also the leading standard used for a judge's decision whether to terminate parents' rights to the care and custody of their children upon clear and convincing evidence of abuse or neglect.(1) Further, some form of the best interests standard is seen in such diverse areas as guardianship of children,(2) guardian ad litem for estate planning,(3) durable power of attorney for health care decisions and living wills,(4) sterilization,(5) surnames,(6) abortion,(7) and medical treatment of newborns with disabilities.(8)

A growing body of law in which the best interests standard is applied in some form is in decisions involving the withholding or withdrawing of medical treatment from incompetent patients.(9) A discussion of the issues involved in this area is especially timely now that the United States Supreme Court has considered in Cruzan v. Director, Missouri Department of Health its first case involving the constitutionality of "what is in common parlance referred to as a |right to die.'"(10) The decision in these cases generally involves a consideration of whether the incompetent patient's interests are best served by continuing life-sustaining treatment or withdrawing it. At issue is a basic tension involving the patient's personal liberty interests in privacy and self-determination, on the one hand, and the patient's interest in life and the state's interest in the preservation of life, on the other hand.(11)

The purpose of this article is to compare and contrast the use of the best interests standard as applied to children and incompetent patients. In particular, it will compare and contrast its application in termination of parental rights law with its application in termination of medical treatment decisions. The first part will examine the history and development of the standard in relation to children and its use in termination of medical treatment decisions. The second part will compare and contrast judicial involvement in making best interests determinations in these two situations. In particular, it will look at the courts' authority to make these decisions based on the doctrine of parens patriae, which refers to the inherent authority of the state to act as guardian of a person with a legal disability.(12)

This article will argue that the courts' application of the parens patriae doctrine to children is inconsistent with their application of it to persons who are incompetent and in need of life-sustaining treatment or care. A comparison of the courts' exercise of the parens patriae authority in parental rights law and termination of medical treatment decisions illustrates extensive judicial involvement in the former and judicial reluctance in the latter.

That the decision to terminate parental rights falls to the court practically goes without saying. The courts' authority to act as parens patriae is generally imposed, to a greater or lesser extent, by statutory codification.(13) Even so, courts take on the responsibility due to the important interests that have evolved and become well-articulated over time.(14)

In contrast, the lesser developed area of termination of treatment cases reveals a trend among courts to find judicial approval prior to termination of medical treatment as unnecessary and to abdicate the ultimate decision to a third party.(15) While this third party may be court-appointed and neutral,(16) often it is a less neutral family member(17) or close friend.(18) Indeed, the ultimate decision seems to fall to the court only upon default.(19) Only two state supreme courts, those of Massachusetts(20) and Illinois,(21) have holdings requiring court intervention prior to termination, and the holding in Massachusetts, while not overturned, has been found unpersuasive by subsequent decisions.(22) The United States Supreme Court in Cruzan v. Director did not specifically address the issue. Moreover, the tendency among courts has been to authorize a surrogate to exercise the patient's right to refuse treatment. Only the highest courts of Missouri(23) and New York(24) have held in favor of preserving the patient's life.

While the contrast in court involvement between cases affecting children and those affecting incompetent patients may be understood because the interests involved are different, a deeper analysis is required. Not all of the opinions allowing the termination of life-sustaining treatment have been so well reasoned as to assure that the patient's best interests are served or at least that his wishes clearly and convincingly establish a desire to terminate treatment. Whether because of a hopeless prognosis, quality-of-life considerations that discount the state's interest in life, or an overemphasis on the patient's liberty interests, courts, as observed by the Missouri Supreme Court in Cruzan v. Harmon, "invariably find that the patient's right to refuse treatment outweighs the state's interest in preserving life."(25) In the courts' zeal for protecting the patient's liberty interests, they have overlooked other important interests that warrant the same judicial protection afforded the child.

The Best Interests Standard: History and Development

Articulation of Parens Patriae

The doctrine of parens patriae(26) has its origin in England and applied to the king and the prerogative of the crown to protect those subjects who could not protect themselves.(27) Though originating in medieval England, with the guardianship over the person and property of people with disabilities being vested in the lord of the manor,(28) this duty was assumed in the fourteenth century by the crown, which delegated the responsibility to the chancellor.(29) Thus, the chancery courts, with the chancellor acting as the "supreme guardian," assumed the duty of protecting "all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns."(30) In the early eighteenth century(31) English chancery courts derived their parens patriae power to protect children from their power to protect lunatics and began exercising this power in private custody disputes in the early nineteenth century.(32)

In the United States, ultimate authority to protect individuals who cannot protect themselves was vested in the people, and jurisdiction over these individuals was assumed by the courts of equity.(33) The parens patriae power emanates from the state's traditional role as sovereign and guardian of persons under legal disability.(34) The power formerly vested in the royal sovereign has now been transferred to each state. The Supreme Court has recognized this as part of a long-standing tradition.(35)

This parens patriae power is particularly relevant to guardianship law. The inherent authority formerly vested in equity courts is now codified in state guardianship laws.(36) Courts retain the duty to supervise guardians to assure that the guardians act in the best interests of their wards.(37) Guardians are themselves officers of the court and are always under the court's control and subject to its direction as to the person of the ward.(38) As such, the guardian is in an inferior relationship to the court, which is the "superior guardian" and has jurisdiction over the guardianship.(39) The guardian "is the delegatee of the state's parens patriae power."(40) His authority is civil in origin, not personal, and he has no authority outside that vested by civil authority.(41)

In the context of termination of parental rights, parens patriae has undergone a great shift from its unlimited exercise by the state in the nineteenth and early twentieth centuries to greater constitutional and procedural protections for the parents and the family today.(42) In general, state intervention into the family relationship is increasingly subordinated to requirements of due process and its analysis of the constitutionally protected interests of the parents, the family, and the child.(43)

Under the parens patriae doctrine, the state seeks to protect family autonomy(44) and the parents' right to the companionship, care, custody, and management of their children.(45) The state recognizes the parents' liberty interest in the custody of their children(46) and presumes that they will act in the best interests of their children.(47) The state seeks to protect family autonomy because it promotes significant state interests such as preparing children to become productive members of society, developing religious and cultural diversity among citizens, and fulfilling support obligations that would otherwise fall to the state.(48)

The state balances these interests with, but not necessarily against,(49) the interests of the child. The state's parens patriae power over children is limited by the presumption that the child cannot act in his own best interest due to incapacity and immaturity(50) and the recognition that "the child is not the mere creature of the State."(51) Therefore, because the state's power to intervene conflicts with a parent's fundamental right to custody, it may act as parens patriae only upon a showing that such authority is necessary because the child's parent or custodian is unfit, unable, or unwilling to care for the child.(52) Further, the state's parens patriae authority is limited by the requirement that it act solely to further the best interests of the child.(53)

In the context of termination of treatment cases, parens patriae differs at the outset...