State v. Mohamed K. (In re Prince R.)

308 Neb. 415

954 N.W.2d 294

IN RE Interest of PRINCE R., a child under 18 years of age.

State of Nebraska, appellee,

v.Mohamed K., appellant,andAbak R., appellee and cross-appellant.

No. S-20-342.

Supreme Court of Nebraska.

Filed February 12, 2021

Robert Wm. Chapin, Jr., of Chapin Law Office, Lincoln, for appellant.

Patrick F. Condon, Lancaster County Attorney, Lincoln, and Maureen E. Lamski, for appellee State of Nebraska.

Mona L. Burton, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee Abak R.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

The separate juvenile court of Lancaster County adjudicated Prince R. as a child who lacked proper parental care by reason of the fault or habits of his parents, Mohamed K. and Abak R. The juvenile court concluded that the parents failed to ensure that Prince received necessary medical care after he was diagnosed with a rare form of cancer. Mohamed appealed and Abak cross-appealed this determination, but, for reasons we will explain, we affirm.

BACKGROUND

Adjudication Petition and Preliminary Motions.

The State commenced this action on October 21, 2019. In its adjudication petition, the State alleged that Prince, who was born in August 2015, lacked proper parental care by reason of the fault or habits of both Mohamed and Abak. The State asserted that Prince had been diagnosed with alveolar rhabdomyosarcoma of the right forearm with local metastases to the axillary lymph nodes; that the condition was curable with regular chemotherapy and radiation; that without treatment, the condition would be fatal; that Mohamed and Abak, having been informed of Prince's diagnosis and prognosis, intentionally kept him from receiving treatment; and that the actions of Mohamed and Abak placed Prince at a risk of harm.

On the same day the State filed its petition, it filed an ex parte motion for immediate custody of Prince. The juvenile court granted the State's motion. The court later granted motions by the State for Prince to remain in the temporary legal and physical custody of the Nebraska Department of Health and Human Services (DHHS).

Adjudication Hearing.

The juvenile court held a trial on the State's adjudication petition over the course of 4 days in January and February 2020. A summary of the evidence presented follows.

Melissa Acquazzino, a board-certified physician who specializes in treating children with cancer at Children's Hospital and Medical Center (Children's) in Omaha, Nebraska, first saw Prince when he came to Children's in July 2019 with a tumor on his right forearm. Following a biopsy, Acquazzino and others on a pediatric pathology team diagnosed Prince with alveolar rhabdomyosarcoma, a form of cancer. It was later determined that the cancer had spread to the lymph nodes of Prince's armpit. Acquazzino testified that there are only about 350 patients diagnosed with this form of cancer in the United States per year.

Acquazzino informed Mohamed and Abak of Prince's diagnosis. She also informed Mohamed and Abak that Prince would need to receive chemotherapy. Acquazzino recalled that Mohamed and Abak were "distraught." She testified that Mohamed expressed anger at the length of time it took to make the diagnosis as well as a belief that if Prince had received antibiotics earlier, cancer would not have developed.

After additional testing on the tumor tissue, Prince was determined to have what Acquazzino referred to as "intermediate risk" rhabdomyosarcoma. Acquazzino testified that this meant that Prince had about a 60-percent chance of relapse-free, long-term survival if the best available treatment were provided. According to Acquazzino, the best available treatment in Prince's case would include an initial round of chemotherapy followed by either surgery or radiation and then continued chemotherapy for a total treatment duration of about 66 weeks. She testified that an international consortium of children's hospitals to which Children's belonged recognized this course of treatment as the best available and that any other hospital within that consortium would have recommended the same treatment. If Prince did not receive this treatment, Acquazzino said that he would die in 6 months to a year. Acquazzino testified that when patients have a very poor prognosis even if the standard treatment is provided, Children's will offer the option of palliative "comfort care," which is expected to end in the patient's death. Acquazzino testified that was not an option explored in this case given Prince's prognosis.

On July 23, 2019, Acquazzino and Christina Chesters, a social worker at Children's, met with Mohamed and Abak regarding Prince's prognosis and next steps. Acquazzino testified that she outlined the recommended treatment and informed Mohamed and Abak that most patients with Prince's condition will respond to the treatment and achieve long-term survival. Acquazzino also testified that she told Mohamed and Abak that the treatment could involve side effects, which could be managed with medication. Mohamed and Abak also received various printed materials explaining the treatment and possible side effects.

According to Acquazzino, Mohamed and Abak expressed concern at the July 23, 2019, meeting, about the need for chemotherapy. Acquazzino perceived Mohamed and Abak as resistant to the recommended treatment. After Acquazzino told them that this was the best available treatment and that, without treatment, Prince would die, Mohamed and Abak agreed to proceed. Prince began the recommended treatment that night.

Acquazzino testified that Prince's treatment went well initially. His tumor visibly shrank, his side effects were minimal, and he made it to all his appointments. Chesters worked with Mohamed to identify and eliminate any barriers to regular attendance at treatment. As part of that effort, she made financial resources available to pay for car repairs and other bills Mohamed and Abak reported having trouble paying.

After several weeks of treatment, Prince began to experience expected side effects such as nausea, vomiting, and fatigue. Then, in September 2019, Prince started missing some of his scheduled chemotherapy appointments. Chesters testified that she contacted Mohamed after Prince missed one appointment and that Mohamed told her he believed the doctors were giving Prince too much medicine too quickly. According to Chesters, she emphasized to Mohamed that it was very important Prince receive the treatments as scheduled and that the appointments were not optional. The missed appointments were concerning to Acquazzino, because they could lead to the cancer building resistance to the treatment regimen.

The treatment plan called for Prince to begin radiation treatments while continuing chemotherapy in early October 2019. Concerned about the prior missed chemotherapy appointments and whether Mohamed and Abak would bring Prince to the radiation appointments, Acquazzino asked to meet with Mohamed and Abak on October 1, 2019.

Both Mohamed and Abak attended the October 1, 2019, meeting with Acquazzino and Chesters. The meeting lasted about an hour. Acquazzino recalled that, at the meeting, Mohamed and Abak said Prince was being given too much medicine and that Mohamed said the cancer would not kill Prince, but the chemotherapy would. Mohamed and Abak asked that Prince be given less medicine. Acquazzino explained to them that reducing the medication would expose Prince to the same side effects, but would not be as effective at treating the cancer. She also told them that skipping scheduled treatments could lead to the cancer building resistance and becoming more difficult to treat.

Acquazzino testified that during the meeting on October 1, 2019, Mohamed and Abak said that they wanted to get a second opinion. While Acquazzino and Chesters offered to help facilitate a second opinion by making a referral or sending records to another provider, they also emphasized that the situation was time sensitive, so any second opinion would need to be obtained quickly. Acquazzino testified that while any delay in treatment was not ideal, she would have "tolerated maybe a one to two week delay" to get a second opinion because the benefits of improving the relationship with Mohamed and Abak would counter the risk of delaying treatment. According to Acquazzino, Mohamed and Abak did not ask for a referral and said they had to think and talk about whether they were interested in one.

Acquazzino testified that for much of the meeting on October 1, 2019, Mohamed and Abak expressed opposition to beginning radiation treatment. By the end of the meeting, however, Mohamed and Abak committed to bringing Prince to his radiation appointment the next day. After the meeting, Acquazzino and Chesters decided to make a Child Protective Services referral. Acquazzino felt that a referral was appropriate because, based on the discussion at the meeting, she was concerned that Mohamed and Abak would not ensure that Prince continued to receive treatment.

Prince did attend his radiation appointment on October 2, 2019. After that, however, neither parent brought Prince to any further radiation or chemotherapy appointments.

On October 2, 2019, Vildana Parmer, a caseworker at DHHS, was assigned to investigate the concerns expressed in the Child Protective Services referral. Parmer had access to several possible addresses in Lincoln, Nebraska, for Mohamed and Abak and initially tried to make contact with them at those locations. These efforts were unsuccessful, but Parmer did reach Mohamed by telephone on October 4. She testified that she asked Mohamed where Prince and Abak were and that Mohamed told her they were at one of the addresses she already visited. After Parmer informed Mohamed that she had recently visited that address and no one was there, Mohamed told her that Abak and Prince were residing at the People's City Mission (PCM). Parmer then visited PCM and asked an employee there...