Protecting the Child or Denying Parental Rights?

The Sad Case of Justina Pelletier

FRAMINGHAM, Mass. — Justina Pelletier’s family’s spokesman, attorney and others close to her say that the 15-year-old girl has been denied the sacraments and spiritual support while in the custody of the Massachusetts Department of Children and Families (DCF).

"She hasn’t been able to go to Mass or receive Communion in over a year, which is pretty outrageous," said state Rep. Marc Lombardo, R-Billerica, who is one of several Republican lawmakers who lobbied Gov. Deval Patrick to allow Justina — who is staying in a Framingham, Mass., residential facility — to spend Easter with her family.

The state said it worked with Justina’s providers to ensure she was able to observe Easter by participating in religious services and visiting with her family. Massachusetts public-health officials also say that Justina has been able to meet with a "clerical representative" once a week, and they claim that she never requested any other religious services, though her family spokesman says that Justina, the youngest of four daughters from a West Hartford, Conn., family, has not been able to attend Mass in 14 months.

Also, despite a state health official’s contention that Justina has received tutoring, made friends and attended events in the community, her family’s lawyer and spokesman counter that she has not received any education in more than a year and that her already fragile health has deteriorated in the state’s custody.

"This is a girl who comes from an intact, loving family," said Mat Staver, the founder and chairman of Liberty Counsel, which is representing the Pelletier family in court.

"This is a situation that boils down solely to a disagreement among medical facilities," Staver told the Register.

Justina’s case has garnered national media attention and mobilized thousands of people across the country sympathetic to the Pelletier family, which by many accounts is a loving, intact Catholic household that had Justina taken away from them because her parents, Lou and Linda Pelletier, disagreed with a Boston Children’s Hospital physician’s diagnosis that their daughter suffers from a psychosomatic disorder.


Conflicting Diagnoses

In 2011, a Tufts Medical Center physician diagnosed Justina with mitochrondial disease, a genetic medical condition that can cause muscle weakness and pain, gastrointestinal disorders and swallowing difficulties, among other symptoms. Justina received treatment for mitochrondial disease until February 2013, when the Tufts physician advised Justina’s parents to take her to Boston Children’s Hospital after she came down with flu-like symptoms, including severe gastrointestinal pain and difficulty walking.

At the Boston Children’s Hospital Emergency Department, a doctor — about seven months out of medical school — changed Justina’s diagnosis to a somatoform disorder, which is a psychiatric disorder characterized by symptoms that suggest physical illness or injury. The physician ordered a course of treatment based on that diagnosis, which also reportedly sought to preclude Justina’s parents from seeking a second medical opinion. Her parents disagreed with the change in diagnosis and tried to discharge Justina from the hospital.

In response, Boston Children’s Hospital notified the Massachusetts Department of Children and Families, which prevented the Pelletiers from discharging their daughter and taking her back to Tufts Medical Center.

According to DCF, a multi-day custody hearing was held after Boston Children’s Hospital contacted the agency. At the hearing, DCF said, both sides presented evidence, including expert-witness testimony, and all parties, including Justina, had legal representation.

At the conclusion of the hearing, a judge granted custody of Justina to DCF. Over the course of four days in November and December 2013, a "trial on the merits" was then held, where the parties again presented evidence and expert testimony. At the conclusion of the trial, DCF said the judge found the parents "unfit" to care for Justina "by clear and convincing evidence" and ordered that DCF retain custody.


Burden on the Parents

On March 25, a juvenile-court judge said he believed Justina suffered from psychiatric issues, based on his review of the testimony, and awarded permanent custody of Justina to DCF; DCF custody is subject to review every six months. The judge also agreed to allow Justina to be cared for at Tufts, rather than Boston Children’s Hospital, and he chided the Department of Children and Families in Connecticut, where the family resides, for not getting more involved in the custody case.

Staver told the Register that the judge’s order did not cite any statements of fact or conclusions of law to justify the DCF intervention.

"[The judge] is placing the burden on the parents to come back to court and take custody of their daughter back," said Staver, who filed a writ of habeas corpus pleading with the Massachusetts Supreme Judicial Court. The writ asks the state’s high court to release Justina to the custody of her parents.

In an April 1 letter to Republican lawmakers, Gov. Patrick said the judge’s decision was based on a "detailed record of the history of neglect in the (Pelletier) home." State officials also said concerns about the fitness of the Pelletiers to care for Justina predate the family’s involvement with the Massachusetts DCF. In early 2013, DCF officials said Connecticut received a report of abuse/neglect involving Justina and her family and that Connecticut officials supported the allegations of neglect against the family.

Rev. Patrick Mahoney, the head of the Washington-based Christian Defense Coalition and the Pelletier family spokesman, confronted the governor on April 24 in Lowell, Mass. Mahoney said it was "outrageous" that the state was alleging a history of neglect in the Pelletier home without providing any proof in public. Patrick replied that the neglect/abuse reports were "confidential."

Staver said Liberty Counsel plans to file legal action against "state actors" and medical professionals for violations of the Pelletiers’ civil and constitutional rights.

"DCF is an agency that is out of control," Staver said.


Holding Her Hostage?

Critics say DCF — which has also come under intense scrutiny in recent months for how it cares for children in its custody and supervision — has violated Justina’s and her parents’ rights by effectively holding her hostage because of a disagreement over a medical diagnosis. DCF obtained a gag order, and Staver said the agency sought to hold Lou Pelletier, Justina’s father, in contempt of court when he started speaking to the media in February. The agency backed off after Liberty Counsel got involved, Staver said.

Justina’s parents are allowed a one-hour supervised visit with their daughter once a week. Staver said DCF does not allow the parents to photograph Justina or talk to her about her medical treatment. In early April, Staver said Justina was taken to a local emergency room, but the state refused to tell her parents why she was taken to the hospital.

A week after that hospital visit, Staver said DCF tried to amend the parents’ weekly personal visit to Skype-only sessions because of the heavy media attention. Following repeated protests, DCF relented and allowed the visits to resume, Staver said.

DCF officials said the agency’s staff and providers have been receiving threats that present safety concerns. The agency said it had to engage the Massachusetts State Police to escort Justina’s transportation van to and from her visit with her parents on March 28. The state police are investigating those threats.

Meanwhile, in mid-April, the pro-life group Personhood USA released an image of what it said was a note, handwritten by Justina and sourced from her parents, where she allegedly wrote of the facility where she is staying: "They hurt me all the time and more."


DCF Under Fire

Lombardo, the Massachusetts state representative, called DCF a "dysfunctional agency" with a lack of leadership. On April 28, Massachusetts Speaker of the House Robert DeLeo, D-Winthrop, called for the head of DCF, Olga Roche, to resign after three recent deaths of young children who had been in the agency’s supervision. Roche resigned the next day, with Gov. Patrick commenting at a press conference that she "can no longer command the trust of the public or the confidence of her line staff."

"It’s a travesty to see how [DCF] is attacking the Pelletier family and holding Justina captive," said Lombardo, who described the efforts to release Justina from the state’s grasp to be "an uphill battle."

DCF officials said they have worked to return Justina home by developing and sharing a reunification plan with the Pelletier family and reaching out to Connecticut-based care providers to find an appropriate transition home. DCF has also said that the juvenile-court system has the sole authority to release Justina and that Connecticut, per the requirements of the interstate compact on the placement of children, has yet to consent to Justina being placed in that state.

In a statement, DCF said its "primary goal has always been the health and well-being of Justina and finding a solution that would allow her to return to Connecticut. … The department is exploring all options that will allow Justina to return to her home state, where she has the support of her friends, family, school and community."

The state’s official comments did not satisfy Mahoney, the Pelletier family spokesman. In his April 24 exchange with Patrick, which was video-recorded and posted online, Mahoney told the governor: "You need to release her now. We need a reunification plan."

"She can’t even walk, and she is not being educated," Mahoney added.

Patrick said he agreed that Justina belongs in Connecticut and said his administration has asked the courts to send her home.

Patrick also wrote to Republican state lawmakers that he was "very sensitive" about government excess. "I have no intention of allowing the commonwealth to overreach in the case of Justina Pelletier," Patrick wrote.


Church Teaching

While seemingly shocking, Justina’s case in Massachusetts is a high-profile example of how much power the government’s child-protective systems wield, often at the expense of parents’ rights, said Stephen Krason, a professor and director of the political science program at Franciscan University of Steubenville in Ohio.

"You have a system here, as it is now structured, that is incompatible with a Catholic understanding of the rights of parents and the family," Krason told the Register.

"The way the system is organized is to have a monitoring of the family," Krason added. "When I look at the [child-protective system], I frankly cannot see how it can be found compatible with Catholic teaching on the rights of parents. The Church in the United States probably needs to be more attentive to this situation."

In his encyclical Rerum Novarum (Capital and Labor), Pope Leo XIII wrote in 1891 that "civil power" has no right to "enter arbitrarily into the privacy of the home." While some domestic situations may require state intervention, he said the state’s actions have to be limited and respectful of the inherent rights and integrity of the family.

Gravissimum Educationis, the Second Vatican Council’s Declaration on Christian Education, echoed Pope Leo XIII in saying that civil and political authorities "should recognize the duties and responsibilities of parents." And St. John Paul II, writing in Familiaris Consortio (The Role of the Christian Family in the Modern World), taught that the state’s proper role is to assist the family, and it "must not take away from families the functions that they can just as well perform."

But in today’s child-protective systems, the states have almost unchecked power over parents, said Krason, who traces the development of the modern child-protective system to the Child Abuse Prevention and Treatment Act that President Richard Nixon signed into law in 1974. Krason said the law opened the door for states to create sweeping child-protective-service structures with vast authority and legal immunity.

"It winds up being a system that has a totalitarian dimension to it, and parents have very few rights under the system," said Krason, who has studied the child-protective system for the past 25 years and wrote the 2013 book Child Abuse, Family Rights and the Child Protective System: A Critical Analysis From Law, Ethics and Catholic Social Teaching.


‘Huge Overreach’

Lombardo said he and another state lawmaker submitted a resolution calling for Justina to be released to her parents, but he added that he does not expect the resolution to reach the Massachusetts House floor for a vote. He said the government violated Justina’s parents’ constitutional rights to make medical decisions for their daughter.

"DCF stepped in and, in my opinion, made a huge overreach of government power," Lombardo said. "Justina’s parents aren’t rogue parents. They were already following a respected physician’s guidelines, but that still wasn’t good enough for the commonwealth."

Brian Fraga writes from

Fall River, Massachusetts.