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Marzen v. Department of Health and Human Services

decided: August 3, 1987.

THOMAS J. MARZEN, PLAINTIFF-APPELLANT,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 84 C 1225 -- Ilana D. Rovner, Judge.

Bauer, Chief Judge, Easterbrook, Circuit Judge, and Fairchild, Senior Circuit Judge.

Author: Bauer

BAUER, Chief Judge.

The question presented is whether the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requires the defendants to disclose four records from an investigation conducted by the Office for Civil Rights ("OCR") of the Department of Health and Human Services ("HHS") into possible discrimination against "Infant Doe", a child born in Bloomington, Indiana with Down's syndrome and a blocked esophagus. Resolution of this question depends on whether the records are exempt within the meaning of Exemptions 5, 6, 7(A) and 7(C) of FOIA. The district court held that the documents may not be disclosed. 632 F. Supp. 785 (N.D. Ill. 1986). We affirm, but on different grounds.

I.

The baby identified in the documents as Infant Doe was born April 9, 1982, in Bloomington Hospital, Bloomington, Indiana. At birth, the baby was diagnosed as having Down's syndrome and a defective esophagus. Two doctors recommended surgery to correct the blocked esophagus, but the parents decided against surgery or any other treatment, except sedation as necessary. An emergency hearing was held before Judge John G. Baker of the Monroe County Circuit Court. The hospital asked the court to issue a declaratory judgment concerning the proper course of treatment for Infant Doe. Dr. Walter Owens, the delivering physician, testified that he and two other doctors concurred that the recommended course of treatment should be "basic techniques to aid in keeping the child comfortable and free of pain because the possibility of a minimally adequate quality of life was non-existent due to the child's severe and irreversible mental retardation." Dr. James Laughlin, a pediatrician on staff at Bloomington Hospital, disagreed, testifying that he "knew of instances where a child suffering from Down's syndrome had a reasonable quality of life." The infant's father testified that he had been a public school teacher for over seven years, that he had worked with Down's syndrome children, and that he and his wife felt that minimally acceptable quality of life was never present for a child suffering from such a condition.

At the conclusion of the hearing, Judge Baker held that the parents have the right to choose a medically recommended course of treatment for their child. In his written declaratory judgment dated April 12, 1982, Judge Baker appointed the Monroe County Department of Public Welfare ("MCDPW") as guardian ad litem for Infant Doe to determine whether to appeal his judgment. That same day, the six-member Child Protection Team of the MCDPW met at Bloomington Hospital to determine whether to appeal Judge Baker's decision. Also present were four Bloomington doctors who had examined Infant Doe, the parents of another Down's syndrome child, and an attorney for Infant Doe's parents. No minutes or records of this meeting were kept by the MCDPW. After deliberating for about an hour, the members of the Child Protection Team decided not to appeal Judge Baker's decision. Nonetheless, Judge Baker appointed Philip C. Hill, a Bloomington attorney, as guardian ad litem to appeal his ruling. Mr. Hill filed a petition for a temporary restraining order to provide treatment for Infant Doe, which Judge Baker denied.

The county prosecutor then sought an order from the Monroe County Circuit Court, that the MCDPW take immediate custody of Infant Doe and provide emergency treatment. This action was taken pursuant to Indiana Code 31-6-4-10, under which a county prosecutor or county department of public welfare may file a petition to declare a child to be "a child in need of services" (referred to as a "CHINS" petition). Under this statute, a "child in need of services" includes a child "whose physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of his parent, guardian or custodian to supply the child with necessary food, clothing, shelter, medical care, education or supervision." I.C. 31-6-4-10. Dr. Laughlin and Mr. Hill asked the county prosecutor to file the CHINS petition because the MCDPW had already concluded that the parental decision was not wrongful.

The CHINS petition stated that Infant Doe's life was endangered by the refusal of his parents to provide necessary medical care and was supported by affidavits from both Dr. Laughlin and Dr. Schaffer. Finally, Mr. Hill, as guardian ad litem for Infant Doe, and the county prosecutor, sought a writ of mandamus from the Indiana Supreme Court to order the Monroe County Circuit Court to treat the child.

On April 14, 1982, Judge Spencer denied the county prosecutor's petition for an order declaring Infant doe to be "a child in need of services" under the Indiana Law because "the State has failed to show that this child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of his parents to supply the child with necessary food and medical care." Also on that day, the Indiana Supreme Court denied the petition for a writ of mandamus. Infant Doe died at 10:03 p.m. on April 15, 1982. The Indiana Supreme Court sealed all records the next day.

The OCR, pursuant to its responsibility under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, investigated possible violations of that Act by recipients of federal funds. The investigation focused on Bloomington Hospital and the MCDPW, both of which had received HHS funds. The MCDPW supplied documents to the OCR after OCR stressed that the confidentiality of the records would be protected pursuant to OCR regulations, and after the Chief Justice of the Indiana Supreme Court had issued an order allowing the MCDPW to turn the documents over to HHS and ordering HHS to keep them confidential.

OCR's investigation of the Infant Doe incident was completed without a recommendation for the initiation of enforcement proceedings under the Rehabilitation Act. The Bloomington Hospital took the position that "it did everything within its power to obtain authority to see that surgery was provided." The MCDPW took the position that, because the Indiana courts decided that Infant Doe was not a "child in need of services" under Indiana law, they could not be shown to have withheld services discriminatorily.

Two developments occurred which affect the determination of whether the MCDPW achieved compliance with the Rehabilitation Act. First, the Indiana legislature amended its child abuse and neglect law to add to Indiana Code 31-6-4-3 the following:

A child in need of services includes a handicapped child who is deprived of nutrition that is necessary to sustain life, or who is deprived of medical or surgical intervention that is necessary to remedy or ameliorate a life-threatening medical condition, if the nutrition or medical or surgical intervention is ...


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