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Thursday, August 17, 2000
Ritalin Case Puts Parents, Courts on Collision Course
http://www.nylj.com/stories/00/08/081700a4.htm
BY JOHN CAHER
ALBANY - An educational neglect case in Albany involving a 7-year-old boy whose parents were hauled into court after taking him off Ritalin has sparked a national debate over privacy rights, judicial authority and parental sovereignty.
The Kyle Carroll case is apparently the first in the nation in which parents were pressured - if not outright ordered - by a judge to give their child the controversial stimulant after the school district petitioned the court.
Albany County Family Court Judge Gerard E. Maney has become something of a lightning rod for criticism in a widely reported matter illustrating some of the legal complexities that arise when schools and courts are confronted with a child covered under the Individuals with Disabilities Act (IDEA), 20 U.S.C. 1400.
His ruling has galvanized parental rights advocates who insist that the courts have no business ordering parents to administer a psychotropic drug to their child, even though that is not quite what Judge Maney did in the case.
"It is enormously harmful for the child for Gerard Maney to substitute his judgment, or for a [Child Protective Services] caseworker to substitute his or her judgment, in these circumstances," said Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va. "I don't believe the child welfare law was ever intended to be used this way."
The case, and ensuing debate, involves a boy in the Berne-Knox-Westerlo School District who was diagnosed with attention deficit/hyperactivity disorder, or ADHD.
Kyle Carroll is among some 3.8 million school children, mostly boys, with ADHD, according to the American Academy of Pediatrics, and one of at least a million kids treated with Ritalin. ADHD is a disorder covered under the Individuals with Disability Education Act, which requires school districts to provide educational services in the least restrictive environment that will meet a child's needs.
Upon the recommendation of a psychologist, a doctor prescribed Ritalin (methylphenidate) and, under the mandates of IDEA, teachers crafted an Individualized Education Plan to accommodate Kyle. Ritalin was administered and Kyle became subdued.
But Kyle's parents, Jill and Michael Carroll of Berne, a rural community outside Albany, grew concerned over the side effects their son seemed to be exhibiting - sleeplessness and loss of appetite, both of which have been associated with Ritalin - and informed the school that they wanted to take their son off the drug for a couple of weeks to see if the problems cleared up. That resulted in a visit from an Albany County Child Protective Services worker, and ultimately a petition that landed before Judge Maney.
In court, the school district accused the Carrolls of educational neglect. Michael Carroll was represented by Assistant Public Defender William P. Andrews. Attorney Ruth H. Supovitz of Albany appeared for Jill Carroll.
The law guardian, Pamela J. Joern of Albany, supported the district's position that the family should be required to address Kyle's condition.
"The child was diagnosed with ADHD, not by the school but by a psychologist, and a medical doctor prescribed Ritalin based on the recommendations of the psychologist," Ms. Joern said. "The child took it for a period of time, his behavior improved and the parents unilaterally decided, because of their own beliefs, that they weren't going to give him Ritalin. His behavioral problems returned and interfered with his school performance."
No Hearing Held
There was no fact-finding hearing before Judge Maney. There was no testimony taken and there was no written decision rendered.
Instead, the Carrolls, under at least the theoretical threat of having their child removed from their custody, consented to an adjournment in contemplation of dismissal (ACOD).
"The consent ACOD directed the parents to comply with the doctor's treatment regimen, which was a prescription for Ritalin," Ms. Joern said. "They could get a second opinion, but they couldn't ignore the problem.... This was not a case where a judge directs parents, over their objection, to give a child a prescribed medication. That is just not what happened."
Regardless, media and commentators around the country have weighed in with Brave New World concerns, many of them focusing - unfairly in Ms. Joern's opinion - on the supposed heavy handedness of Judge Maney.
Mr. Wexler said the Albany County Family Court overstepped its bounds by, in effect, compelling a particular medical regimen in a situation that was clearly not life-and-death.
"It is not as if these parents simply refused Ritalin outright," Mr. Wexler noted. "They tried it. They saw that it was having harmful consequences for their child and they did what any responsible, loving parent would do.... It is terribly damaging for children for the state to rush in willy-nilly and substitute its judgment for parents in those situations."
Professor Jeffrey Schaler, a psychologist who teaches Justice, Law and Society in the School of Public Affairs at American University in Washington, D.C., said the consent decree constitutes an inappropriate use of judicial authority.
"I think that parents have a right to not give their kids drugs and this deprives the parents of the liberty of raising a child as they see fit," Professor Schaler said. "If the child is disruptive in class, the school has a right to ask that something be done, but I don't think that is the equivalent to saying they must put a particular chemical in a child's body."
Ritalin, Professor Schaler said, does not address a medical condition the way, say, insulin addresses the condition of diabetes. Rather, he said, it is a "form of social control," an area where judges should not tread.
"What the judge is doing here is engaging in parens patriae," Professor Schaler said. "Invading a child's body or person with a chemical is an invasion of privacy and also a deprivation of due process. It deprives the parents of the liberty of raising their child as they see fit, and deprives the child of the liberty to not be on Ritalin."
Professor Schaler said a more appropriate judicial response would have been to impose on the parents the responsibility of making sure their child is not disruptive in school, and affording them the autonomy to find their own solution.
But Ms. Joern, the law guardian, suggests that is exactly what Judge Maney did. Ms. Joern said the judge ordered the only remedy before him - Ritalin - and left the door wide open for the parents to suggest another medically approved alternative.
Courts Reluctant
Lucia Whisenand, an attorney in Syracuse and former chairwoman of the New York State Bar Association's Children in the Law Committee, noted that courts, including the U.S. Supreme Court, are usually reluctant to intrude in matters of parental discretion.
Ms. Whisenand said the U.S. Supreme Court ruling on June 5 in Troxel v. Granville, a grandparents rights case, is illustrative. In Troxel, the Court reaffirmed the right of parents to raise their children without state interference, absent a showing of harm to the child. However, the divided Court did not clearly identify the appropriate standard for review in determining when an exercise of parental discretion results in the type of harm that can invoke government intervention.
"You have an obligation [as a parent] to provide appropriate food, shelter and medical care," Ms. Whisenand said. "The problem is, what's appropriate?"
Ms. Whisenand said absent "some pretty strong evidence that the child was at great risk if he didn't take the Ritalin," a court is "walking on some pretty thin ice" if it orders ingestion of the drug.
Overtreatment Possible
There continues to be considerable debate over labeling of a child as ADHD-afflicted, and the efficacy of using Ritalin, and nagging concerns that behavioral problems are overly attributed to attention deficit/hyperactivity disorder and overly treated with methylphenidate, according to Karen S. Norlander, of Ruberti, Girvin & Ferlazzo PC in Albany, a former staff attorney with the State Department of Education and former general counsel to Statewide Youth Advocacy.
"You have groups that will absolutely swear by Ritalin and you have groups, including the medical profession, that raise serious questions about any kind of drug for children and the long-term effects," said Ms. Norlander, who is also a former law guardian and 18-B attorney in Family Court, and is now of counsel to a firm that focuses on education law, children and family law.
She said it is "very troubling" for the judicial system to become entangled in the debate, but acknowledges that circumstances often require judges, particularly in family law matters, to delve into areas that some would consider out of judicial bounds.
With the Kyle Carroll case, there is no record from which to seek review by a higher court, and with the consent ACOD, nothing to appeal. So the propriety of Judge Maney's decision will apparently go unreviewed, while the debate over what he did, did not do, should have done or should not have done continues.
Meanwhile, a handful of other cases in which schools are attempting to employ judicial clout to compel use of Ritalin are pending.
Copyright 2000 New York Law Journal.
