Ms. Bernadette Hainley, Asst. District Attorney, for the
Mr. Robert Nagler, Deputy Public Defender, for the Child.
Mr. J. Hilary Billings, Attorney at Law, for the Mother.
Ms. Jane Murphy, Attorney at Law, for the Father.
Ms. Mary Jo Driscoll, for SCF.
*1 THE COURT: The following is the opinion of the Court:
According to statutory law enacted by the legislature,
it is the policy of the State of Oregon to recognize that children are individuals
and that they have legal rights to be free from physical abuse and substantial
neglect of basic needs.
It is also Oregon law that this policy shall be liberally
construed to the end that a child coming within the jurisdiction of the Court
may receive such care, treatment, and control as will lead to the child's welfare
and the protection of the community.
Due to the nature of those proceedings, this Court has
been confronted with the HIV/AIDS scientific debate. The Court could adopt one
or the other of the scientific positions or decline to act because it is unable
to conclude which is more likely correct. The Court declines the latter approach.
This Court finds by a preponderance of competent evidence
that the facts of the petition, as amended, are true.
This Court finds, therefore, that the mother is HIV positive,
that presently the best evidence concludes that the child is HIV negative, that
HIV virus can be transmitted by breast milk, and that HIV is directly related
to HIV infection.
It appears fundamental that the avoidance of the threat
of harm of a substantial risk of introduction of a fatal disease is a protected
right of the child.
When the--while the parents may choose to run that risk
with their child, the law of the State of Oregon gives the State not only the
opportunity to second guess this decision but the responsibility to do so.
It is the order of the Court that under the statutory scheme
of Oregon law, Juvenile Court intervention to prevent breast feeding of the
child in this case is required to protect the best interests of the child.
The Court does not like--take lightly the decision to intervene
in parental decision making. But protection of children from however well-intentioned
but poor decision making is required.
The court order previously entered is to continue without
the medical treatment clause.
Ms. Hainley, would you prepare me an appropriate order?
MS. HAINLEY: I will, your Honor.
THE COURT: We are in recess.
(Excerpt of proceedings concluded.)
STATE OF OREGON )
County of Lane )
I, JAN R. DUIVEN, Certified Shorthand Reporter of the Circuit
Court for the State of Oregon, in and for the County of Lane, do hereby certify
that the foregoing pages 1 of 3, comprise a complete, true, and correct transcript,
to the best of my ability, of the proceedings held in the above-entitled matter
on TUESDAY, APRIL 20, 1999.
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