Child Welfare

Court blocks breast-feeding by HIV positive mother - In re Tyson, 1999 WL 997489 (Or.Cir. Apr 20, 1999)

Ms. Bernadette Hainley, Asst. District Attorney, for the State.
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.

DUIVEN, J.

*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.)

CERTIFICATE

STATE OF OREGON  )     

                 )  ss.

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.

Or.Cir.,1999.