Today's Featured Biography
The Honorable Christopher R. Foley is the
Presiding Judge, of the Children’s Division, Milwaukee County Circuit Court
Chris specializes in handling jury trials regarding termination of parental rights. Here's an article about Chris from the JournalSentinel by Crocker Stephenson (1-29-07).
Judge Chris Foley found himself having to decide quickly between conflicting strategies for treating a baby with severe spina bifida.
Tim Krahling was born with severe spina bifida, as shown in a 1987 family Polaroid when he was a few weeks old.
Still, E. Michael McCann, the Milwaukee County district attorney, questioned the method of treatment the child's parents had chosen.
Everything McCann read said that babies born with open spines need immediate surgery to close their backs. Also, children with this form of spina bifida invariably need shunts to drain the fluid collecting in the interior cavities of their brains.
But the boy's parents elected to have the lesion treated with silver nitrate, an antiseptic they hoped would keep infection at bay and promote skin growth.
McCann had the baby examined by an independent neurosurgeon, LaVern Herman. Herman concluded that unless the baby received a shunt as soon as possible and had surgery to close his back, he would die.
McCann insisted on surgery. The parents, supported by their doctors, refused.
On July 30, 1987, a hearing was hastily convened before Circuit Judge Christopher Foley in which McCann sought to have the baby placed in the care of the county so that his back might be closed.
Foley considered himself uniquely qualified to hear the case and, at the same time, uniquely unqualified.
Two years earlier, Democratic Gov. Tony Earl had appointed Foley to the judicial seat held by his retiring father, Leander J. Foley Jr., who wept as he administered the oath of office to his son. The senior Foley then handed his son a small statue of Thomas More, the Catholic jurist beheaded for opposing Henry VIII.
On one hand, Foley was an expert in child custody matters. And, as the young father of two small children, he felt he could bring a deep level of compassion to the crisis facing the infant's parents.
On the other hand, Foley and McCann were distant cousins. Foley had worked for McCann as an assistant district attorney and credited McCann with helping to shape his career. Anyone who knew Foley knew how deeply he admired McCann.
Furthermore, Foley believed as a matter of faith and personal conviction in the innate sanctity of life. He understood that this belief might shade his sympathy away from arguments based on parental rights and quality of life.
But he also believed that, as a judge, he could place his personal morality aside and decide matters according to the law.
Years later, looking back, Foley would say he was not sure he achieved this objectivity in the baby's case.
The swiftness in which the case was hustled into Foley's court also struck the judge as unfair. Just a few hours before the hearing was to begin, Foley grabbed a lawyer walking through Children's Court and asked him to represent the parents. He found another lawyer to represent the baby.
The lawyers needed time to prepare, but Foley's understanding was that the baby's situation was an absolute emergency. The baby might be dying. If there was to be a hearing at all, it had to be now.
And so the hearing began at 6 p.m., lasted deep into the night, then resumed for an hour early the next morning.
The issue before Foley was deceptively simple: Were the parents acting in their child's best interests?
McCann's specialist, Herman, said surgery gave the baby his best chance at life.
The baby's attending physician, neonatologist Gregory Milleville, listed all the problems the child had and would likely develop - spina bifida, hydrocephalus, scoliosis, lung disease, bladder dysfunction, recurrent urinary tract infections, paralysis from the chest down - and concluded, "for this small child, given the magnitude of his defect, and the multiple problems one might expect this infant to have, I believe that aggressive surgical therapy is not in this patient's best interests."
The infant's neurosurgeon, David Dunn, testified that it was up to the parents to decide.
If the parents had asked him to do whatever would most likely prolong their child's life, he would have done the surgery.
"Technically this can be closed," he said. "Whether it's feasible from a moral, intellectual and every other standpoint, that's the question."
If the lesion were treated with only silver nitrate and without a surgical closure, Dunn said, "most likely he will die."
The parents' course of action was the same he would take. If the baby were his child, Dunn said, he would not do the surgery.
The baby's mother, Patty, testified the next day. Foley's impression was that she was a loving mother, overwhelmed but eager to do what she believed was best for her son.
She said Dunn had told her the boy had a better chance of surviving with surgery, but that he, as she put it, "could very well die on the operating table right there."
Even with surgery, Dunn told her "he had absolutely no idea how long he would live and the quality of life would be barely anything."
Milleville told her "he is going to be severely brain damaged, handicapped. And to me he won't have a life."
Foley asked for a few minutes to deliberate. Later he would say that what needed to be done seemed obvious. McCann's case was unassailable.
"I curse my fate for being put in the position of having to make the decision with respect to your baby," Foley told the infuriated parents.
Foley's decision was to them an anathema. The son they had hoped for had been born severely disabled, and now they felt judged to be one of two things: either too foolish to know what to do, or too selfish to do it.
Foley was mindful of their anguish. But it was, he ruled, in the child's best interests to live, and prompt surgery gave the child his best shot.
In the weeks to come, both these findings, which seemed so inescapable at the time, would be challenged.
Foley would reverse his decision.
McCann would be roundly criticized for allowing his personal convictions to override his professional wisdom.
The case, which up to that point had been handled quietly, would explode onto the public arena.
And the boy's parents, having regained the custody for which they had fought, would never bring their son home.
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