The Best Interests Standard: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients
The "best interests of the child" standard is the guiding legal standard for child custody disputes and decisions on termination of parental rights. The typical situation in which it is used is in child custody decisions where a judge is called upon to decide in which parent's custody the child's welfare and interests are best served. It is also the leading standard used for a judge's decision whether to terminate parents' rights to the care and custody of their children upon clear and convincing evidence of abuse or neglect.(1) Further, some form of the best interests standard is seen in such diverse areas as guardianship of children,(2) guardian ad litem for estate planning,(3) durable power of attorney for health care decisions and living wills,(4) sterilization,(5) surnames,(6) abortion,(7) and medical treatment of newborns with disabilities.(8)
A growing body of law in which the best interests standard is applied in some form is in decisions involving the withholding or withdrawing of medical treatment from incompetent patients.(9) A discussion of the issues involved in this area is especially timely now that the United States Supreme Court has considered in Cruzan v. Director, Missouri Department of Health its first case involving the constitutionality of "what is in common parlance referred to as a |right to die.'"(10) The decision in these cases generally involves a consideration of whether the incompetent patient's interests are best served by continuing life-sustaining treatment or withdrawing it. At issue is a basic tension involving the patient's personal liberty interests in privacy and self-determination, on the one hand, and the patient's interest in life and the state's interest in the preservation of life, on the other hand.(11)
The purpose of this article is to compare and contrast the use of the best interests standard as applied to children and incompetent patients. In particular, it will compare and contrast its application in termination of parental rights law with its application in termination of medical treatment decisions. The first part will examine the history and development of the standard in relation to children and its use in termination of medical treatment decisions. The second part will compare and contrast judicial involvement in making best interests determinations in these two situations. In particular, it will look at the courts' authority to make these decisions based on the doctrine of parens patriae, which refers to the inherent authority of the state to act as guardian of a person with a legal disability.(12)
This article will argue that the courts' application of the parens patriae doctrine to children is inconsistent with their application of it to persons who are incompetent and in need of life-sustaining treatment or care. A comparison of the courts' exercise of the parens patriae authority in parental rights law and termination of medical treatment decisions illustrates extensive judicial involvement in the former and judicial reluctance in the latter.
That the decision to terminate parental rights falls to the court practically goes without saying. The courts' authority to act as parens patriae is generally imposed, to a greater or lesser extent, by statutory codification.(13) Even so, courts take on the responsibility due to the important interests that have evolved and become well-articulated over time.(14)
In contrast, the lesser developed area of termination of treatment cases reveals a trend among courts to find judicial approval prior to termination of medical treatment as unnecessary and to abdicate the ultimate decision to a third party.(15) While this third party may be court-appointed and neutral,(16) often it is a less neutral family member(17) or close friend. …