SUPPLEMENTAL AND REPLY BRIEF-WRIT OF MANDAMUS TEXAS SUPREME COURT
In re §
Edward Wernecke §
and § CAUSE NO. 05-0838
Michele Wernecke, §
AND REPLY BRIEF
IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS
James A. Pikl
JAMES A. PIKL, P.C.
P.O. Box 2939
McKinney, Texas 75070
Attorney for Relators
TABLE OF CONTENTS
Index of Authorities iii
1. Texas has not yet adopted a test to be used in situations where parental
rights collide with the state’s parens patriae role in cases concerning
medical treatment of minors. However, many other courts have done so, and Texas should follow the majority trend. 1
2. Texas should adopt the reasoning and balancing test from the Newmark case. 8
1. In the alternative, this Court should vacate the July 8, 2005 order and
remand for another hearing since new evidence is available that may be dispositive of the case under the Hofbauer precedent. 13
4. The State’s Response, while full of misinformation and
inapposite arguments, does not indicate that this Court lacks either the jurisdiction or all necessary information to hear the Petition. 16
Conclusion and Prayer 23
Reply Appendix separate volume
Tab 1 – Letter/opinion of Dr. Ronald E. Hunninghake, M.D. (with resume)
Tab 2 – Letter/opinion of Dr. William M. Wassell, M.D. (with resume)
Tab 3 – Transcript of hearing June 15 and 16, 2005
Tab 4 – Transcript of hearing September 19, 2005
Tab 5 – Motion filed 9/19/05 in trial court (still pending)
Tab 6 – Information from the National Cancer Institute’s website on clinical trials
INDEX OF AUTHORITIES
Bowen v. American Hosp. Ass’n, 476 U.S. 610, 106 S.Ct. 2101,
90 L.Ed. 2d 584 (1986) 4
In re Doe, 19 S.W.3d 346 (Tex. 2000) 6
Cruzan v. Director, Mo. Dept. Of Health,
497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) 7, 11
Custody of a Minor, 379 N.E.2d 1053 (Mass. 1978) 2
In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990) 11, 12
In re Eric B., 189 Cal. App. 3d 996 (1987) 2
In re Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983) 2
Matter of Joseph Hofbauer, 47 N.Y.2d 648, 393 N.E.2d 1009 (1979) 2, 13-16
Holly v. Adams, 544 S.W.2d 367 (Tex. 1976) 4
In re McCoy, 52 S.W.3d 297 (Tex. App. – Corpus Christi 2001, orig. proc.) 23
Michael G.B. v. Angela L.B., 642 N.Y.S.2d 452, 219 A.D. 289 (1996) 3
Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. 2003) 7
Newmark v. Williams/DCPS, 588 A.2d 1108 (Del. 1991) 2, 3, 5. 8, 9, 10, 12, 13
Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) 3
Prince v Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.2d 645 (1944) 7, 8
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) 3
Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed.2d 1655 (1942) 6
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) 4
In re Willman, 24 Ohio App. 3d 191 (1986) 2
Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) 7
Texas Family Code, §161.001(1)(D) 5
Goldstein, Medical Care for the Child at Risk: On State Supervision of Parental Autonomy, 86 Yale L.J. 645 (1977) 5
If merely objecting to state-recommended medical care for a child is enough to render a parent “unfit” (which is exactly what has happened to the Werneckes), then Texas law is in a crisis of foundational, constitutional proportions. This may well be the most important case in the last 20 years of Texas civil jurisprudence.
There are two scenarios that occur in these cases, both of which are addressed: where the patient has no alternative treatments available (part 2), and where she does (part 3). To make that discussion cohesive, this brief first addresses the foundation for both scenarios (part 1).
1. Texas has not yet adopted a test to be used in situations where parental rights collide with the state’s parens patriae role in cases concerning medical treatment of minors. However, many other courts have done so, and Texas should follow the majority trend.
Texas does not presently have a comprehensive test approved by this Court covering situations such as we have in this case. However, courts in other jurisdictions have confronted the exact same situation, and have adopted two different tests for deciding how the important rights of parents to choose their children’s medical care, and the state’s parens patriae interest, may and should co-exist: the ad hoc test and the tripartite balancing test.
The ad hoc test deems a child “neglected” if parents refuse medical treatment recommended by state-approved doctors—and that is pretty much the end of the analysis. Admittedly, this test is easy to administer. However, it also relegates complex and emotional decisions to a Procrustean formula devoid of any sensitivity to the important, substantive rights and interests at stake. Notably, only the Ohio and Tennessee intermediate appellate courts have adopted this approach. This appears to be the approach taken by the County Court at Law in our case as well.
The tripartite balancing test, on the other hand, has been adopted by the highest state courts in Delaware, Massachusetts, and New York, and by the appellate court in California. This test involves examining the underlying, unique facts of every case and balancing (1) the rights of the parents, (2) the parens patriae rights of the state, and (3) the best interests of the child, to arrive at a fact-specific, logical, and fair decision. The following analysis discusses how courts have employed the tripartite balancing test, and shows why it should be adopted as the Texas standard.
(1) The rights of parents.
“Any balancing test must begin with the parental interest.” It is beyond argument that parents of minor children have fundamental, protected, constitutional rights to parent their children, which includes the right to decide what, if any, medical care their children will be provided.
Admittedly, these parental rights are not without limits, but neither are they vaporous. Because we have a constitution to protect citizens from the government, when the fundamental rights of parents clash with the state’s authority to “step in” when harm is predicted, the burdens of proof and standards of application for these doctrines put all of the burdens on the state, and give all of the presumptions and benefits of the doubt to the parents.
According to the U.S. Supreme Court, parents are presumed “fit” unless they are incapable of participating in decision making or have made decisions that evidence a substantial lack of concern for the child’s interests. Here, Katie’s parents have consistently and repeatedly expressed and attempted to address their legitimate concerns about the undisputed, deleterious side effects of the proposed treatment. If nothing else, this is compelling, unrefuted evidence of their deep concern for Katie’s present and future well-being. The Werneckes are not “unfit” parents under any definition of that term.
(2) The rights of minors.
The interests of children—including their rights to enjoy a measure of physical autonomy and to enjoy the physical and emotional nurture and guidance of their parents—cannot be overlooked nor their importance minimized. This Court has previously held that a “best interests” analysis includes consideration of the desires of the child, the emotional and physical needs of the child now and in the future, and the emotional and physical danger to the child now and in the future. What could be more emotionally and physically dangerous than to forcibly take a 13-year-old child from her parents, place her in foster care 250 miles from home, friends, and school, force her against her will to have experimental, life-threatening medical treatment, and then not even allow the child to speak freely to her parents about her circumstances? This entire case shocks the conscience. The state’s averments that they just want “what is best for Katie” are absurd. “Parental autonomy to care for children free from governmental interference satisfies a child’s need for continuity and thus ensures his or her psychological and physical well-being . . . In many circumstances the State is simply not an adequate surrogate for the judgment of a loving, nurturing parent.”
Texas statutes mandate an equal concern for both the emotional and the physical well-being of Texas children. To a greater extent than we are capable of knowing, to arbitrarily favor Katie’s physical health over her emotional health puts both at risk. Katie’s physical and emotional well-being—and where applicable, her expressed preferences—must therefore be taken into account in any thorough, humane analysis of these issues.
Any child, especially one like Katie who is mature enough to understand the consequences of the proposed options regarding treatment and to intelligent weigh those options and articulate a rational reason for her choice, should have her personal preferences given very great—even conclusive—weight. Katie Wernecke, after being advised of the proposed treatments and their consequences, has repeatedly expressed her desire NOT to undergo the treatments being proposed by M.D. Anderson doctors and has articulated rational reasons for her choice. One of Katie’s main concerns is that she will be rendered sterile by the treatments. For the state to force Katie to undergo such harmful treatment against her will violates Katie’s fundamental rights of personal autonomy, freedom from harm inflicted by the state, and her right to bear children.
(3) The rights of the state.
The state has a limited right to protect children from abuse and neglect by unfit parents. “Parens patriae” is a common law doctrine in which power resides in the state for the purpose of allowing it to step in and protect society’s weakest members from those who would do them harm. The parens patriae power is only properly invoked, however, when there is an immediate threat of serious danger to the health or safety of a child. The doctrine of parens patriae is closely akin to the state’s police power, a power that comes into play when the state is protecting anyone from dangers imposed by others. However, neither the police power nor the parens patriae doctrine are unlimited in their scope or effect, and both must be carefully weighed against the constitutionally-protected—and presumed-superior—interests of the individuals involved. The state carries a heavy burden of proving, by clear and convincing evidence, that its actions are absolutely necessary, not merely convenient or arguably and subjectively “better.”
2. Texas should adopt the reasoning and balancing test from the Newmark case.
When the rights of parents and children to be free from governmental interference in their lives collide head-on with the perceived need of the state to “protect” the children from harm, some procedure or test must be established to resolve the conflict. In our case, the rights of the Werneckes to decide what medical treatment Katie will receive has collided with the state’s perceived need to protect Katie from predicted, future “harm” which may be caused by her allegedly “neglectful” parents refusing one particular form of medical treatment. Fortunately, this Court need not write from scratch the recipe for resolving this conflict, as it has come up before in several other cases.
One of the best analyses on this subject is found in the Newmark case. This 1991 opinion out of the Delaware Supreme Court canvasses most of the other jurisdictions that have addressed this issue, and makes a compelling argument for why a 3-part balancing test should be used to resolve it. The opinion also sets out in detail the roadmap used to navigate the competing rights and interests involved, while maintaining a common-sense, constitutionally-sound concern for the human consequences of a proper decision.
In Newmark, three-year-old Colin Newmark was diagnosed with Burkitt’s Lymphoma, a deadly and aggressive form of non-Hodgkin’s pediatric cancer. Colin’s parents were Christian Scientists, and they objected on religious grounds to Colin receiving certain medical treatment—treatment advocated by one of the top cancer treatment centers in the country. According to the trial court, Colin’s parents did not propose any other “factually supported alternative” to the chemotherapy, so the trial court took Colin away and placed him in state custody to get the treatment recommended by the state’s doctors.
When the case reached the Delaware Supreme Court, the parents’ concerns were finally afforded their due regard, and the trial court was reversed. Specifically relevant to our case was the objection by his parents to exposing Colin to the high-risk, low-probability-of-success chemotherapy and radiation treatments being prescribed because the treatment would harm Colin in many significant ways and there was only a 40% chance of Colin surviving if the treatments were done. Interestingly, the “harms” that would befall Colin are the exact same “harms” doctors have told Katie she will experience from essentially the same treatment: sterility, loss of immune functioning, kidney and heart failure, increased chance of developing other cancers, and a statistically-significant chance that the treatment itself will prove fatal. Katie has also only been given between a 25% and a 50% chance of “success” even if the treatments are done.
The Newmark court said “The linchpin in all cases discussing the ‘best interests of a child’, when a parent refuses to authorize medical care, is an evaluation of the risk of the procedure compared to its potential success. This analysis is consistent with the principle that State intervention in the parent-child relationship is only justifiable under compelling conditions.” The Newmark court began its analysis by stating that courts “must first consider the effectiveness of the treatment and determine the child’s chance of survival with and without medical care. [Citations omitted] The court must then consider the nature of the treatments and their effect on the child.”
The Delaware Supreme Court faulted the trial court for “not explicitly considering the competing interests at stake.” Those same interests have not yet been explicitly considered by the trial court in our case, either. Apparently, our trial court neither considered Katie’s expressed preference to not risk the treatment, nor the admittedly-extreme side effects and the low chance of recovery accompanying the treatment. These other factors can supercede any medical testimony about “harm from lack of treatment” or “success rates,” especially as success is defined in the medical profession. The Delaware court cited numerous opinions from other states that have respected a parent’s wishes to decline treatment when the harm from treatment was high and the chances of success were relatively low. “The State’s interest in forcing a minor to undergo medical care diminishes as the risks of treatment increase and its benefits decrease.”
Applying these balancing rules, the Delaware Supreme Court held that the trial court erred in removing Colin from his parents and forcing him to undergo treatment.
The egregious facts of this case indicate that Colin’s proposed medical treatment was highly invasive, painful, involved terrible temporary and potentially permanent side effects, posed an unacceptably low chance of success, and a high risk that the treatment itself would cause his death. The State’s authority in this case, therefore, cannot outweigh the Newmark’s parental prerogative and Colin’s inherent right to enjoy a modicum of human dignity in the short time that was left to him.
In our case, the facts are stunningly similar with the exception that here, Katie is not three years old but 13 years old, and she has expressed her preference NOT to undergo the treatments being recommended due to their high risk, terrible side effects, and low probability of success. Another difference: in the Newmark case the treatment being proposed for Colin “stopped short” of a bone marrow transplant (also sometimes called “peripheral blood stem cell” transplant), whereas in Katie’s case, stem cell transplantation is being proposed, making Katie’s proposed treatment even more intrusive and life-threatening than that which was recommended for Colin Newmark.
No American court, even in the most egregious case, has ever authorized the State to remove a child from the loving, nurturing care of his parents and subject him, over parental objection, to an invasive regimen of treatment which offered, as Dr. Meek defined the term, only a forty percent chance of “survival.”
The Werneckes pray that their daughter is not the first child subjected to such harsh, unfair, and outrageous treatment at the hands of an American court.
3. In the alternative, this Court should vacate the July 8, 2005 order and remand for another hearing since new evidence is available that may be dispositive of the case under the Hofbauer precedent.
If this Court determines that the trial court did not adequately consider all of the interests involved in this case, the Werneckes ask the Court to vacate the offending orders and remand the case to the trial court for another hearing at which all such interests can have their proper airing.
Since June 15, the Werneckes have been able to obtain two separate medical doctors’ opinions that Katie’s condition may be effectively treated by using high-dosage intravenous ascorbic acid and nutritional therapy. This alternative treatment is completely safe, has no debilitating side effects, and has been successfully used on many other cancer patients. It is truly “cutting edge” medicine.
Because of the existence of this alternative treatment, our case is identical to the New York State Hofbauer case. In that case, the New York Court of Appeals affirmed both the trial and appellate courts’ rulings finding the Hofbauers had not neglected eight-year-old Joseph Hofbauer by refusing to subject him to the same dangerous, high-dosage chemotherapy and radiation treatments being proposed for Katie. Joseph’s parents wanted to have his cancer treated with metabolic and nutritional therapy rather than subjecting him to the harm of more “traditional” treatments being prescribed by Joseph’s oncologists. The court perceptively framed the issue as follows:
Whether a child suffering from Hodgkin’s disease whose parents failed to follow the recommendations of an attending physician to have their child treated by radiation and chemotherapy, but, rather, placed their child under the care of physicians advocating nutritional or metabolic therapy, including injections of laetrile, is a “neglected child” within the meaning of New York’s Family Code.
All three levels of New York’s courts answered this question “No.”
The Hobauers (like the Werneckes) agreed that if the alternative treatments proved ineffective, they would allow Joseph to undergo “conventional” cancer treatments if necessary to save their child’s life. However, the Hofbauers (again like the Werneckes), did not want to take their child through a last-resort-style treatment until their child was in a last-resort-style condition. The Hofbauer case is directly on point to our case, and the sound legal reasoning of that case should be adopted by this Court.
Since the Werneckes did not have the medical opinions of Dr. Hunninghake and Dr. Wassell on June 15 and 16, 2005, the transcript of that hearing does not contain their opinions. However, we have included those letter/opinions in the Reply Appendix to show the Court that this case now exactly tracks the fact pattern of the Hofbauer case. The Werneckes anticipate that one or both of these doctors will testify at any future hearing scheduled for that purpose. The reasoning and analysis adopted by the Hofbauer court thus can be—and should be—adopted by Texas courts.
In the alternative to overruling and vacating in its entirety the July 8 and September 20 orders and placing Katie back into the Werneckes’ permanent care and custody, we ask the Court to adopt the Hofbauer analysis as the law of Texas, and vacate or abate those orders pending a new hearing on the alternative treatments now available to Katie and a determination whether Katie should be allowed to pursue them.
4. The State’s Response, while full of misinformation and inapposite arguments, does not indicate that this Court lacks either the jurisdiction or all necessary information to hear the Petition.
The State’s Response is replete with misinformation and false statements relating to the factual background of this case.
For example, the State disingenuously refers to “Katie’s doctors” (plural) as having testified at the June 15 and 16, 2005 hearing. See, e.g., State’s Response, p. 6. In fact, only a single doctor testified at that hearing: Dr. Jehemie Alter. See Reply Appendix, Tab 3.
The Response also attempts to caste vague aspersions on the Werneckes, particularly Edward, by making out-of-context references to Mr. Wernecke’s time spent with Katie (Response, p. 4), Katie’s alleged response to those visits as “upsetting her” (Response, p. 4), and the hearsay, unexplained, and unreliable statements made by DFPS personnel about their “feelings” (Response Appendix, Tabs A and B). Apparently, the State is hoping to get this Court to dislike Mr. Wernecke so that it might be distracted from dealing squarely with the merits.
Even then, the state walks right into the admission that Katie’s parents were deemed “unfit” by the trial court solely because they objected to the medical treatment being suggested by the state’s doctors. Response, p. 15. Otherwise, if the Werneckes are “unfit” for any other reason, why are Katie’s three brothers back with their parents at this very moment, released to their parents’ care by DFPS with the court’s blessing?
Finally, the Response describes the hearing held on September 19, 2005 as if it “gave the [Werneckes] yet one more opportunity to adopt a more cooperative approach.” Response, pp. 5, 13. This is not true. Many things may be said of what occurred during that hearing, but it may not be said that the judge was giving anyone any chance to do or say anything to change his mind; he had made up his mind, and he was merely holding the hearing to announce it. See Reply Appendix, Tab 4. Indeed, that hearing was temporarily recessed but then never resumed, apparently without effect on Judge Lewis’s ruling issued the very next day while the judge was recovering from open-heart surgery.
But pushing aside all of these groundless diversions and hyper-technical arguments, the State presents no cogent response to the Petition or the legal arguments made therein. The State does not criticize or distinguish any of the authorities cited in the Petition, and makes no attempt to argue why the relief sought is not compelled under both the law and the facts of this case. And the state assiduously ignores the emergency nature of the case caused by the ongoing medical treatments Katie is presently being subjected to and which will or may moot the relief the Werneckes seek if it is allowed to continue until the trial court (now with a new judge) gets around to—someday—having a final trial on the merits.
A. There in no reason to abate this proceeding, and a very good reason not to.
The State argues that this proceeding should be abated because Judge Lewis recused himself from the case. However, Texas Rule of Appellate Procedure 7.2(b) only relates to situations where the sitting judge dies, retires, or loses an election (i.e., “leaves office”). It does not relate to a situation where the sitting judge recuses himself in order to avoid potential disqualification for violating the Judicial Code, but still remains on the bench hearing other matters. Judge Lewis has not “left office.” Here, Judge Hester, the Administrative Judge for the Fifth Judicial Region, has already appointed a replacement judge (Hon. Joaquin Villarreal, Senior District Judge) to step into Judge Lewis’s shoes for purposes of handling this case only. Judge Villareal has already scheduled a status conference for November 4, 2005, and a permanency hearing is presently scheduled for November 16, 2005. The case below is moving along.
There is no reason to return the case to the trial court to allow Judge Villarreal to merely “reconsider” Judge Lewis’s order. This would only cause more delay—delay that may render the relief sought in this Petition moot.
On the other hand, if the State would agree to abate the force and effect of the July 8 and September 20 orders while such a remand occurs, then the Werneckes would not be prejudiced by such a remand. However, the State will almost certainly want those orders to remain in place (have their cake) while the remand occurs (and eat it, too). This is a bit like giving a criminal a new trial, but continuing to hold him prisoner in the penitentiary, serving his full sentence, while a new trial is scheduled and takes place. If the Court is inclined to allow Judge Villarreal to “reconsider” the offending orders of July 8 and September 20, the force and effect of those orders must be abated during the period of abatement; after all, Judge Villarreal just might decide differently.
B. The procedural requirements of mandamus have been fulfilled.
The State next criticizes the Werneckes for allegedly not dotting every “i” and crossing every “t” in bringing this Petition before the Court (which, by the way, the Werneckes dispute). Regardless of the technical precision with which the Petition was brought, however, what the State conveniently ignores is the emergency nature of the relief sought, and the dismal state of the record below when the Petition was filed.
For every hour that goes by, the Werneckes are being deprived, irretrievably, of precious Constitutional rights: to equal protection; to freedom of speech and association; to liberty; to parent their daughter as they see fit; to avoid state-imposed harm to their child; and to assist Katie in avoiding—or even discussing with her—what everyone agrees is potentially-life-threatening treatment. Katie is presently—this moment—undergoing dangerous, experimental medical treatment at the hands of the DFPS. If this treatment kills Katie or renders her sterile, disease-ridden, or otherwise irreparably harmed, then the alternative treatments the Werneckes would like to attempt will become impossible, or at least rendered largely irrelevant. Surely, “the rules” were never meant to be the deciding factor on the merits of a Petition of this magnitude and importance. Instead, procedural rules are meant to be instruments for getting the necessary information before this Court, in standardized form, for purposes of facilitating an expeditious and just ruling. It is almost a proverb that any time a party has no real arguments on the merits, it stoops to irrelevant, rules-based nitpicking.
C. The Petition was properly verified.
The State next criticizes the alleged lack of verification of the Petition, referring to Edward and Michele’s Affidavits as “hearsay” and contradictory of other information in the record, namely the affidavit-based recollections of the state’s witnesses. But all affidavits are hearsay, by definition—including those submitted by the State itself in its Response! How exactly is a party to “verify” a Petition if not by affidavit? And how exactly is a party to obtain affidavits from its uncooperative adversaries (such as the doctors presently treating Katie) for purposes of putting in what the State mistakenly implies would be the “best evidence” of the facts otherwise set forth in the verifying affidavit of the Relators? The State never says.
As for the Hunninghake (and now, the Wassell) information, that information is presented in the current form because (a) these doctors have not been allowed to examine Katie due to the State’s refusal to release Katie to the Werneckes’ custody for purposes of having those examinations, and (b) they are not making prognoses, diagnoses, or other factual findings for which verification would be required. The information they offer at this time is general information about the alternative treatment being suggested, and a brief statement that Katie “may be” a candidate for this treatment. If the case is remanded for a new hearing, the Court can expect one or both of these doctors to testify, and hopefully they will be able to do so after being allowed to examine Katie.
D. The consequences of an affirmative ruling on the Petition should not deter the Court’s attention from the issues.
Lastly, the State attempts to “scare” this Court into shirking its duties by painting a dismal picture of what might happen if the Petition is granted and the relief ordered. See Response, pp. 14-15 (“This would strip trial courts across the nation (?) of the ability to protect an entire class of vulnerable children prior to a trial such as that provided by Chapter 161"). Not only is the State’s parade of horribles unlikely to occur, but even if it were, that is no reason for this Honorable Court to dodge its responsibility for adjudicating the issues presented, as the State invites the Court to do. “Fiat justitia, ruat coelum” is (or at least should be) the call of this, the highest Court in the State of Texas.
Finally, mandamus is entirely appropriate in emergency situations such as we have here. As this Court is well aware, a good percentage of petitions for mandamus relief are filed with accompanying motions for emergency relief (as was this one). This Court has already found that one order of the trial court below should be modified, on an emergency basis, pending the outcome of this Petition. The precise reason temporary orders in family-law cases are subject to immediate mandamus review is because family courts issue orders every day that may (and often do) involve compunction to do or not do something, for an indeterminate length of time, and which, if obeyed, would severely and irreparably damage a party in a manner for which there is no adequate remedy on appeal.
What the state argues is that trial courts should have a free hand in issuing any type of “temporary orders” they like, and the parties affected have no chance to challenge them save in an appeal from a final judgment that may takes years to obtain. It is embarrassing that the Attorney General of Texas would advance such an argument. The State’s pleas about this Petition being inappropriate, defective, or premature are fatally flawed and hopelessly obtuse.
CONCLUSION AND PRAYER
There are principled ways to distinguish between cases of true neglect (i. e., lack of concern for a child’s health or when a parent lacks capacity to make reasoned decisions), and cases such as this one—where fit, concerned parents are simply trying to find the optimal medical treatment for their child. Sadly, in our case the state and the trial court were unwilling or unable to draw this distinction.
When a child’s illness may cause death with or without treatment, and modern medicine has not developed a “silver bullet” (such as antibiotics to treat infections), the state cannot be allowed to usurp parental authority and subject a child to an experimental, uncertain, highly-invasive, and potentially-deadly treatment regimen which happens to be currently in vogue with the state’s approved doctors. The Werneckes have not “neglected” Katie’s treatment. On the contrary, they had Katie undergo 5 months of chemotherapy, and were in the process of pursuing alternatives to the dangerous, highly-invasive “follow up” treatments of high-dosage chemo and questionable radiation treatments when they found their parental rights suddenly taken away from them by the state. The Werneckes are model parents who have lovingly and actively involved themselves in the process of caring for their daughter’s well-being—past, present, and future. They are not neglectful parents under any definition of that term.
Since the state-recommended treatment entails significant health risks while offering neither a certainty nor even a substantial likelihood of a genuine cure, it is grossly improper for the state to force Katie and her parents to assume those risks. The weighing of risks and benefits of such a proposed treatment should be—indeed, must be—left to the parents, especially where there is a good chance that Katie will be a candidate for effective, alternative treatment.
Mandamus should issue ordering the trial court to vacate the orders of July 8 and September 20, 2005 in their entirety, and the case should be remanded to the trial court with an order requiring DFPS to immediately return Katie to the care and possession of her parents.
JAMES A. PIKL, P.C.
James A. Pikl
State Bar No. 16008850
P. O. Box 2939
McKinney, Texas 75070
Fax (214) 544-7001
ATTORNEY FOR RELATORS EDWARD AND MICHELE WERNECKE
CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of October 2005, a true and correct copy of the above and foregoing RELATORS’ REPLY BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS was served on the following by hand delivery, telefax, overnight courier, and/or certified mail, return receipt requested:
Linda J. Rhodes-Schauer
615 N. Upper Broadway, Suite 2200
Corpus Christi, Texas 78477-0017
Richard E. Salisbury
Assistant Attorney General
P.O. Box 12548
Austin, Texas 78711-2120
James A. Pikl
IN THE TEXAS SUPREME COURT
In re §
Edward Wernecke §
and § CAUSE NO. 05-0838
Michele Wernecke, §
REPLY BRIEF IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS
Submitted by Relators
IN THE TEXAS SUPREME COURT
In re §
Edward Wernecke §
and § CAUSE NO. 05-0838
Michele Wernecke, §
REPLY BRIEF IN SUPPORT OF
PETITION FOR WRIT OF MANDAMUS
BEFORE ME, the undersigned authority, personally appeared James A. Pikl, known to me to be the person whose signature appears below, and upon his oath deposed and stated as follows: “My name is James A. Pikl. I am attorney of record for Relators Edward and Michele Wernecke. The facts stated in this Verification are within my personal knowledge and are true and correct. Attached to this Verification are true and correct copies of the following documents:
Tab 1 Letter report and resume, Dr. Ronald E. Hunninghake, M.D.
Tab 2 Letter report and resume, Dr. W. M. Wassell, M.D.
Tab 3 Transcript of hearing in trial court, June 15 and 16, 2005
Tab 4 Transcript of hearing in trial court, September 19, 2005
Tab 5 Motion filed 9/19/05 in trial court (still pending)
Tab 6 Information from the National Cancer Institute’s website on clinical trials”
I also hereby affirm that the documents attached to Relators’ original Appendix are true and correct copies of what they are stated to be.
James A. Pikl
SUBSCRIBED AND SWORN TO this 19th day of October 2005, to which witness my hand and seal of office.
Notary Public, State of Texas
 In re Willman, 24 Ohio App. 3d 191 (1986).
 In re Hamilton, 657 S.W.2d 425 (Tenn. Ct. App. 1983).
 Newmark v. Williams/DCPS, 588 A.2d 1108 (Del. 1991).
 Custody of a Minor, 379 N.E.2d 1053 (Mass. 1978).
 Matter of Joseph Hofbauer, 47 N.Y.2d 648, 393 N.E.2d 1009 (1979).
 In re Eric B., 189 Cal. App. 3d 996 (1987).
 Newmark, 588 A.2d at 1115.
 Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Michael G.B. v. Angela L.B., 642 N.Y.S.2d 452, 454, 219 A.D. 289 (1996)(finding a mere “best interest” analysis inappropriate and requiring a finding of extraordinary circumstances and consideration of parental rights before the state can deprive a parent of their superior custody rights).
 The presumption that parents are the appropriate decision-makers for their children is deemed fundamental to our constitutional system of governance. Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). This means that before the state can interfere in the exercise of that right, the state carries a heavy burden to prove the necessity of both the goal and the means of its interference. While a good argument could be made that the state must pass constitutional “strict scrutiny” analysis for every attempted interference with parental authority and rights, in cases involving medical care another, less-burdensome approach could be considered that takes into account the parents’ rights to make medical decisions while still respecting the authority of the state to intervene in truly-necessary circumstances. The “balancing test” proposed in this Brief—as opposed to the “ad hoc” test, or worse, a vague, constitutionally-suspect “best interests” standard alone—provides a principled, more-nuanced way to strike this balance.
 Bowen v. American Hosp. Ass’n, 476 U.S. 610, 106 S.Ct. 2101, 2113, n.13, 90 L.Ed. 2d 584 (1986). If the state takes over the responsibility for medical decision-making under the facts of this case, then all children will basically become wards of the state, contrary to settled jurisprudence that a child is not “a mere creature of the state.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
 Holly v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Admittedly, the Holly case did not concern medical decisions, but if anything, the needs and desires of the child should be more important, not less important, in a case like ours than in a case where two fit parents are merely fighting over which of them gets to be managing conservator (as in Holly). In both cases, the child’s future is being decided, but in a case like ours, the child’s very life is in the balance. Given the importance of the issue, the choices and decisions made by parents must also be given greater consideration—not lesser consideration—in cases like ours than in ordinary custody disputes.
 Newmark, 588 A.2d at 1115-1116, citing Goldstein, Medical Care for the Child at Risk: On State Supervision of Parental Autonomy, 86 Yale L.J. 645, 649 and nn. 13 & 14 (1977).
 See Texas Family Code, §161.001(1)(D)(“the parent-child relationship may be judicially terminated if the parent has knowingly place or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child”)(emphasis added). It cannot be rationally disputed that removing a convalescing 13-year-old girl from the loving, nurturing environment of her family and indefinitely placing her in foster care 250 miles away, and then restricting her parents’ access and even their communications with her, is extremely harmful to her emotional well-being.
 Ironically, in Texas Katie is old enough to have an abortion without her parents’ consent. Texas Fam. Code §33.003(i) allows a minor to have an abortion if the court finds that she is mature enough to understand her options or if notification of her parents would not be in her “best interests” or may result in physical, emotional, or sexual abuse. In re Doe, 19 S.W.3d 346, 350 (Tex. 2000). Since Katie is old enough by statute to make a decision on the ultimate medical-care issue—to end another human life—it is incongruous to argue that she is somehow not old enough to make personal, medical-care decisions about how to treat her own cancer.
 That Katie has had doctors reporting to her the side effects of radiation treatments, see Reply Appendix, Tab 4, pp. 36-37. That Katie has repeatedly and vociferously objected to radiation treatment is undisputed, see Reply Appendix, Tab 3, p. 110. See also Reply Appendix Tab 5, the Motion to Modify Placement, filed by Katie’s attorney (which motion is still pending with the trial court), indicating Katie’s adamant refusal to undergo high-dosage chemotherapy and expressing her desires to be returned to her family.
 Skinner v. Oklahoma, 316 U.S. 535, 541-43, 62 S.Ct. 1110, 86 L.Ed.2d 1655 (1942)(the right to bear children is a protected, Constitutional right; forced sterilization is unconstitutional).
 Wisconsin v. Yoder, 406 U.S. 205, 206, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (discussing the basis for, and restrictions on, any application of parens patriae).
 Prince v Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed.2d 645 (1944)(discussing the concept of the police power and its application to parent/child relations).
 Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 110 S.Ct. 2841, 2853, 111 L.Ed.2d 224 (1990); Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 766 (Tex. 2003)(necessary corollary to parents’ right to make medical decisions for children is the right to refuse medical treatment as well).
 If a court cannot interfere in parental decision-making simply because the judge believes he could make a “better” decision than parents, how much shorter shrift should we give to such a decision made by a government social worker? Prince v. Massachusetts, supra.
 Newmark v. Williams/DCPS, 588 A.2d 1108 (Del. 1991).
 Newmark, 588 A.2d at 1115.
 The testimony of what is considered “success” by the medical community in these situations is stranger than strange: a probability that the patient will “remain alive” for two years after treatment without a recurrence of cancer. Newmark, 588 A.2d at 1119, n. 12. This makes it seem like doctors are choosing how to define “success” based not on genuine recovery from the illness, but based on surviving only a brief time following treatment—treatment that causes debilitating and horrendous side effects that will reside with the patient for the duration of his or her life. Even stranger, if chemotherapy destroys a patient’s immune system and the patient then dies of pneumonia, this is not considered a “failure” of the treatment since, technically, the patient did not die from a recurrence of cancer. This definition would not be considered “success” in any other field of endeavor known to man. It is akin to saying that bad welding on the space shuttle re-entry tiles did not cause the Columbia disaster, it was instead caused by the invasion of super-heated gases into the shuttle upon re-entry when the tiles broke off. Why such an anemic definition of “success” suffices for the medical profession is unknown, but is probably due to the fact that this is the best it can do with such horrendously dangerous and ineffective treatments. This Court should not be mislead by pleasant-sounding words like “success” when doctors are playing fast and loose with semantics solely to make their recommended treatments sound more appealing and effective than they really are.
 Id. at 1117.
 Id. at 1115.
 Id. at 1117; Cruzan, 497 U.S. at 270. See also In re Guardianship of Browning, 568 So.2d 4, 10 (Fla. 1990), holding that incompetent persons have the same rights to refuse treatment as competent persons, and the decision to refuse treatment may be made by the patient’s family members such as parents. It is incongruous to hold that a parent of a vegetative adult child should be allowed to decide to reject life-saving medical treatment for that child, but that the same parent should not be allowed to make identical medical decisions for a minor child. When discussing the surrogate’s obligation to make decisions that the patient would make, the court in Browning said: “One does not exercise another’s right to self-determination or fulfill that person’s right to privacy by making a decision which the state, the family, or public opinion would prefer. The surrogate decisionmaker must be confident that he or she can and is voicing the patient’s decision” (emphasis in original). There is no rational difference between the situation in Browning and our present case.
Here, the Werneckes are making (or trying to make) medical decisions for a legally-incapacitated person, their minor daughter Katie, which they believe are in Katie’s best interests and which Katie would choose for herself if she could. Indeed, their decision about treatment is backed up by Katie’s own repeated refusals to agree to have the proposed treatments. How much better evidence is there that a parent/surrogate is making the correct decision for a patient than to have that decision expressly agreed with by the patient herself? In a manner of speaking, Katie’s own statements about not wanting the treatments are a form of “living will.”
 Newmark, 588 A.2d at 1118.
 Technically, Katie’s proposed treatment is not a true “transplant” because the stem cells proposed for use are from her own blood stream rather than from someone else; this procedure is called a “autologous transplant” or an “autograph.” See http://www.cancerbacup.org.uk/Treatments/ Stemcellbonemarrowtransplants
/GeneralInformation. Possible side effects of this treatment include development of infections, uncontrolled bleeding, nausea, vomiting, fatigue, loss of appetite, mouth sores, hair loss, skin reactions, sterility, cataracts, cancer, damage to liver, lungs and/or heart, and—of course—death. Id. And these side effects are in addition to the side effects from the high-dosage chemotherapy and radiation treatments being proposed.
See http://www.cancer.gov/cancertopics/factsheet/Therapy/bone-marrow-transplant and http://www.nci.nig.gov/cancertopics/pdq/treatment/childhodgkins
/HealthProfessional (the National Cancer Institute’s websites). The latter website says: “The 10-year overall survival rate in this study [patients having stem cell transplants] was 48%. Salvage rates [read: chances of staying alive for 2 years without a relapse] for patients who remained refractory to pretransplant chemotherapy and LD-IFRT are approximately 30% to 50%.” Katie falls in this category.
 Newmark, 588 A.2d at 1119.
 On Thursday, October 13, 2005, trial court Judge Carl E. Lewis recused himself from further participation in this case. The administrative judge of the region has recently appointed a replacement judge, the Hon. Joaquin Villareal, to take over the case.
 Copies of these medical opinions are attached in the Reply Appendix at Tabs 1 and 2. See also references cited at footnote 35 in the Petition, page 19.
 Matter of Hofbauer, 47 N.Y.2d 648, 419 N.Y.S.2d 936, 393 N.E.2d 1009 (1979).
 Hofbauer, 47 N.Y.2d at 652.
 A copy of this hearing transcript, only recently obtained by counsel from the court reporter on October 18, 2005, is found in the Reply Appendix at Tab 3.
 For instance, even though the record of the June 15 and 16, 2005 hearing was ordered earlier in the case, and ordered again in mid-September 2005, the court reporter was unable to produce that transcript until October 18, 2005. A copy is now available, and is being submitted herewith at Reply Appendix, Tab 3. This should take care of the state’s claim that this Court cannot review what happened below for lack of the transcript. We also attach the transcript of the September 19, 2005 transcript to the Appendix for purposes of showing that the state’s characterization of that hearing as giving the Werneckes “a last chance to cooperate” in Katie’s treatment is totally inaccurate. See Reply Appendix, Tab 4.
 It has recently come to the Werneckes’ attention that the treatment regimen the State is presently forcing Katie to undergo is entirely “experimental” in nature. This fact was never explained to the Werneckes. In fact, the prescribed treatments were always referred to as “necessary” and the “only course of treatment available.” Actually, the treatment is part of a Stage II clinical trial program called the “Phase II Pilot Study of Reinduction Chemotherapy With Ifsofamide and Vinorelbine in Children With Refractory or Relapsed Hodgkin’s Lymphoma.” It is not a proven-effective course of treatment for the treatment of Hodgkin’s disease. Therefore, the state has incorrectly framed the issue for decision as involving a proven treatment (the state’s) versus an experimental treatment (the Werneckes’). If the truth be told, it is one experimental treatment versus another experimental treatment. The fact that the State got a leg up on the Werneckes by getting doctors to “approve” its regimen before the Werneckes were able to line up their own doctors does not make the State’s regimen any less experimental in nature—or any more “correct.” See http://www.cancer.gov/clinicaltrials/CPG-AHOD00P1. A copy of this information is provided for the Court’s ease of reference at Reply Appendix, Tab 6.
 See Texas Rule of Civil Procedure 1 (liberal construction required).
 Dr. Hunninghake is mistakenly referred to as “Dr. Hunningbake” in the State’s Response.
 “Let justice be done, though the heavens may fall.”
 See In re McCoy, 52 S.W.3d 297, 301 (Tex. App. – Corpus Christi 2001, orig. proc.).
 See Reply Appendix, Tab 4, p. 13.