Courtroom Weekly: Drug treatments and an abortion denied

October 10, 2013

by: the State Court Staff

Courts rule on abortion, heroin, pollution and spanking

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from California News from New Hampshire News from Ohio

Featured case Nebraska high court denies foster child's request for an abortion   Court: Nebraska Supreme Court By Alma Cook In a 5-2 ruling released on October 4, the Nebraska Supreme Court decided to reject a teenage foster child's request for an abortion without parental consent, deciding that she was not mature or well-informed enough to make the decision on her own. The sixteen-year-old from Douglas County asked for a court order allowing an abortion this summer when she discovered she was 10 weeks pregnant. She expressed concerns that, because of her foster parents' strong religious beliefs, she might lose her placement with them if they learned of the pregnancy. Nebraska parental consent law, which used to require minors only to inform their parents of the abortion, was updated in 2011 to require written consent. Exceptions are granted in cases of parental abuse, medical emergencies and instances in which the child demonstrates sufficient maturity to make the decision herself. District 4 Judge Peter Bataillon ruled in the hearing this summer that the girl was not sufficiently mature to qualify for an exception. Despite her being a ward of the state—her biological parents' rights had been terminated prior to the hearing—the district court decided that her foster parents would serve as her guardians in the matter. The decision was the first involving the updated parental consent law. The girl's attorney, Catherine Mahern, was disappointed by the ruling, saying that the court ignored some issues—including allegations of bias on behalf of Judge Bataillon. Mehern said that Bataillon should have recused himself, having demonstrated partiality when he asked the minor if she realized that "when you have the abortion it's going to kill the child inside you". His name (though never confirmed to be the same Peter Bataillon) was also tied to the Omaha anti-abortion group Metro Right to Life in the 1980s. These points were not considered by the high court because the girl never asked Bataillon to recuse himself at the original trial. Mehern commented after the ruling, "Probably the most disturbing aspect of this case was the judge's treatment of this young lady, referring to killing her baby. Who talks to a distressed sixteen-year-old girl like that?" The high court ruled that Bataillon was limited to the state's parental consent law, which doesn't address whether or not children under the protection of the state need parental consent. Judges William Connolly and Michael McCormack dissented.

News from California California court says spanking isn't child abuse   Court: California Sixth District Court of Appeal By Matt Latourelle When Veronica Gonzalez spanked her 12-year-old daughter with a wooden spoon in 2010, little did she know that it would lead to a decision by the California Sixth District Court of Appeal three years later. On October 8, the court ruled that spanking, even if it causes bruises, is not necessarily child abuse. Mrs. Gonzalez's daughter had been getting in a lot of trouble with her parents around the time of the incident. Problems with schoolwork and boys, among other things, led to harsher disciplinary measures. Her father spanked her first with his hand, but then, after coming home late one night, she was spanked by her mother with a wooden spoon. News of the incident spread from the girl's friends to school officials and finally ended up before a county social worker. At a hearing, the presiding officer did not allow the daughter to testify or the mother's intent to be considered and the social worker classified the spanking as child abuse. The Santa Clara County Department of Social Services upheld this decision and sought to get Mrs. Gonzalez entered into the state's child abuse database. On appeal, the court saw things differently. In a precedent-setting decision regarding parental discipline versus child rights, the judges explained that the intent of the parent, as well as the parent's lack of intent to inflict physical harm, factored into their decision to overturn the child abuse finding. The daughter testified that she had been warned of the impending discipline, and other relatives testified that spanking was not the parents' typical course of action. Even though the girl received bruises from the incident, the key for this case was that the parents were not intending to harm their daughter, only to discipline her. Presiding Judge Conrad Rushing wrote in the court's decision: “ We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline. ” The lawyers for the social services department did not share any comments.

News from New Hampshire Exxon asks for trust fund and appeals jury verdict to avoid paying millions to New Hampshire   Court: New Hampshire Superior Courts By Susan Lawrence The state of New Hampshire plans to file an appeal with the state Supreme Court protesting an order issued by the judge in the case. Exxon asked Judge Peter H. Fauver to place $195 million from a jury award the state won in April 2013 into a trust fund. The jury had awarded the state a total of $236 million for groundwater pollution due to defective gasoline. Lawyers for Exxon pressed the judge to approve the trust fund to ensure the money would be spent on cleaning up contaminated groundwater sites. The oil company argued the money should not be used for other purposes or to pay two law firms, from California and Boston, who tried the case on behalf of the state. According to the New Hampshire Attorney General, the jury did not dictate how the state should use the money. The judge agreed to setting up the trust fund, but denied a motion from Exxon to set aside the verdict. Fauver, a retired judge, began hearing the case on January 14, 2013 in the Merrimack County Superior Court. It was the longest trial ever heard in a New Hampshire state court. While the parties took over 3 months to try the case, jurors agreed on a unanimous verdict against Exxon in just 90 minutes. They found Exxon created a defective product by adding MTBE to their gasoline to help it burn more cleanly. According to New Hampshire Attorney General Michael A. Delaney, “ . . . The State sued to hold Exxon Mobil responsible for its share of the clean-up costs, based on the fact that the company supplied over 2.7 billion gallons of MTBE gasoline into New Hampshire, which accounts for nearly thirty percent of the state's gasoline market. ” The verdict and award rank as the largest ever awarded by a jury in the state of New Hampshire. A jury verdict for a similar case in New York was about half the amount of the award for New Hampshire's case. During the trial, Exxon's lawyers claimed groundwater contamination in New Hampshire was caused by owners of gas stations and junkyards. The company also attempted to blame the state for the contamination. Attorneys for Exxon plan to appeal the verdict and claim errors by the judge kept the jury from hearing all the evidence in the case. Until the state Supreme Court rules on Exxon's appeal, the state of New Hampshire will not receive any of the money Exxon owes.

News from Ohio Controversial treatment aimed at keeping heroin addicts drug free   Court: Warren County Court of Common Pleas, Ohio By Jong Son Judge Robert Peeler of the Warren County Common Pleas Court has seen his share of defendants in his courtroom facing charges for petty crimes in connection to their heroin addictions. This year, he has already seen three such defendants who, after their release from jail, died from a heroin overdose. To address this plight, Judge Peeler has decided to try a controversial method to keep criminally charged heroin addicts drug free. These defendants would receive a series of shots of Vivitrol, a drug that is used to block receptors in the brain and prevent a person from feeling the effects of heroin. Vivitrol is the extended-release formulation of the drug naltrexone, and is widely used in clinical settings to help both alcoholics and heroin addicts control their cravings and reduce relapse. Vivitrol was approved by the U.S. Food and Drug Administration (FDA) for the treatment of alcohol dependence in 2006 and approved in its injectable form for opioid addictions in 2010. Judge Peeler’s method of providing drug treatment to prisoners is being studied in several prisons and drug rehabilitation centers around the nation. However, this method is also sparking controversy, mostly due to the cost of the treatment. Vivitrol is administered as a shot once every month, each injection costing about $1,100. Since inmates lose their Medicaid benefits once they are incarcerated, the county is responsible for providing them with healthcare, shifting the financial burden from federal to local jurisdictions. Recently freed prisoners, though, can end up in a limbo where they’re no longer covered through prison, but may have to wait several weeks to re-enroll in Medicaid. If inmates receive their first shot in prison prior to release, this allows them a month’s time—that is, until the next scheduled treatment—to obtain Medicaid benefits that will cover the rest of their injections, as well as set up counselors and other addiction treatment resources. It also means that the county picks up the tab. Warren County Sheriff Larry Sims has called this a waste of taxpayer money. To date, $7.5 million has been spent to run the Warren County jail this year, and an estimated 20 percent of the prison population is composed of heroin users. Warren County Commissioner Dave Young has provided his take on Judge Peeler’s actions, stating: “ In the big picture, I'm always willing to listen to spending some money now to save more money later. I am a fan of trying to get the addicts off of the drugs. If they come back and say we're going to spend $100,000 and all of a sudden we have only 25 percent of the people that this is going to work on and that's going to save us only $15,000 or $20,000 in jail costs, then no. ” Critics point to a 2011 pilot program in which inmates were given Vivitrol to treat heroin addiction that yielded only a 25 percent success rate. Judge Wheeler remains positive, however, explaining that: “ There's a real misperception about whether or not [opiate addiction] is truly a disease. People do not like the symptoms, and they think these people are just voluntarily destroying themselves through their own free will. But the destruction is a symptom of the disease they have. ” Inmates who complete their series of treatments and remain drug free during three years of probation may have their felony charge dismissed.

See also

• Courtroom Weekly