In re Nikolas E.,
720 A.2d 562 (1998).


Facts: The state filed a child protection petition, seeking custody of D's child, Nikolas, for the limited purpose of approving an aggressive medical treatment for his HIV condition when D declined to approve this treatment. A guardian ad litem (P) was appointed for the child. Both of the child's parents have the condition, and his sister died of complications of AIDS. The state's petition was denied. The state did not appeal. P appeals.

Issue:

1. Must a threat of serious injury be imminent to a minor child before the state can jump in and take over custody of that child to proscribe medical treatment?

2. Was the trial court correct in determining that the state must initially establish by a preponderance of the evidence that D's decision to delay the medical treatment was irrational and unreasonable?


Holding: Yes. Yes. The trial court did not err in requiring a determination as to the rationality and reasonableness of D's decision because it was a factual finding to permit a fair evaluation of conflicting evidence. This finding was not elevated to a statutory requirement. The trial court did not err in requiring that the threat of harm be imminent because the requirement was in the context of whether the child was being subjected to serious risk of harm by merely delaying the decision. The trial court did not add a requirement that the state must prove that no significant harm would ultimately befall the child from the treatment, but used it as one of the factual issues in determining jeopardy.

Analysis: The Department of Human Services initiated an action against appellee mother seeking custody of her son so he could receive medical treatment for HIV that had been recommended by his physician. Appellee did not want to commit at that time to the more aggressive treatment. Appellant guardian ad litem was appointed, and he sought review of the district court's denial of the child protection petition. Appellant argued that the state made a sufficient showing of serious abuse or neglect.