Court approves termination of the parental rights of the mother, who has FAS.

The mother at age 37 possessed "the distinctive facial abnormalities of the disorder," as well as "congenital neuro-cognitive impairment in her ability to organize events and its impact on the higher cognitive functions such as anticipating and making connections between events."

The mother had since the age of 16 been receiving SSI benefits. "Because of her condition and abilities, [the mother] has only had marginal employment on an intermittent basis during her life." (*1).

There was evidence of a number of incidents of sexual and other abuse of the child involved.

The appellate court declined to transfer guardianship of girl with FAS to her foster parents, but also declined to order that she be immediately placed in the custody of her biological father.

There was a dispute in this case about whether the child in question, Zayda, actually had FAS. A pediatrician testified that Zayda did have FAS, while a pediatric geneticist concluded that she had neither FAS, FAE, nor ARND. The latter physician testified that if there were evidence that the mother consumed alcohol during pregnancy, that might alter her diagnosis. The trial court had already concluded that the mother did drink during the pregnancy. The child had an IQ of 100; both experts agreed that that did not rule out a diagnosis of FAS. The trial court downplayed the importance of the disagreement about whether the child had FAS/FAE, since both experts agreed that Zayda needed continuing therapy sessions.

Zayda was first diagnosed with FAS in January 2000, when she was less than two. A court "ordered early intervention therapies, developmental classes, and occupational and speech therapy." She was later was "kicked out" of two day care centers for behaving badly, but her ability to extract and use learned information had improved.

The biological father had attended some of the child's therapy sessions, and understood and was attempting to help her deal with her problems.

"[He] used games, puzzles, and toys to teach her to remain focused on tasks. He also calmed Zayda when she became disoriented, frustrated, anxious, and afraid."

Christopher April was born in 1984, and adopted by the plaintiffs in 1985. In 1991 the parents sued the adoption agency for "wrongful adoption." The trial court concluded that Louisiana law recognized a claim for wrongful adoption; the appellate court did not reach that issue.

Instead, the court of appeal concluded that the parents had waited too long to sue. The court held that, at the least, the parents had reasonable notice that they might have a cause of action when their pediatric neurologist told them that the child had FAS. The court's opinion suggested the parents were on notice years earlier that the child had serious neurological problems, and that it might not matter that they only learned later that FAS was the cause. (629 So. 2d at 1298). Under Louisiana law the parents were required to file suit within one year of the date when they knew that they had a claim, which they had not done.

The earliest signs of possible FAS were that the child had a small-head (microcephalic), and had a seizure when he was 8 months old. (629 So. 2d at 1296-97).

When the child was two and in day care, the school noted that he was "extremely hyper" and referred his parents to the local board of education. Based on that evaluation, and a finding that his speech development was slow, the school system placed the child in special education at the age of three. (629 So. 2d at 1297). The mother first began to suspect FAS after she read The Broken Cord, and saw the movie of the same name.

Another physician, Dr. Diane Africk, also diagnosed the child as having FAS. "Dr. Africk did not undertake any treatment because none is available." (629 So. 2d at 1297.)

577 N.W. 2d at 577 n. 1. It is not correct to say that FAE is a "less severe" version of the FAS symptoms. Some FAS symptoms (by definition) are entirely absent (i.e. certain characteristic facial features), but other primary and secondary disabilities may be the same or worse.

577 N.W. 2d at 577.

577 N.W. 2d at 581.

577 N.W. 2d at 581. The court did not address this argument.

577 N.W. 2d at 577.

577 N.W. 2d at 580-81. This sounds like a decision to impose an exceptionally long sentence precisely because of Bonner's limited capacity, which is precisely the opposite of what the state Supreme Court indicated should be the result of such a limitation.

577 N.W. 2d at 577. So far as appears from the record, nothing was done to alert police in the town to which Bonner was headed. It also appears, despite the three prior minor adult offenses, that Bonner was not on probation and therefore not subject to the control of a probation official in these circumstances.

In sum, when he arrived at the bus terminal, Bonner was a disabled and disturbed young man with a long history of minor offenses who was clearly headed for more serious trouble. When his father attempted to intervene, the police responded by facilitating Bonner's departure--and the offenses that inevitably followed. Although it is unclear how much police knew at the time, the events in this case illustrate how police understanding of FAS/FAE could be important in preventing criminal offenses.

In the Matter of Brett
142 Wash. 2d 868, 16 P. 3d 601 (2001)

After Brett was convicted of murder, his trial attorney asked for a one month delay to obtain a diagnosis regarding FAS/FAE. The motion was denied, and after a sentencing hearing the jury imposed the death penalty.

On direct appeal Brett challenged the denial of the requested delay, objecting that it prevented him from obtaining such a diagnosis. The Washington Supreme Court in 1995 rejected that argument and upheld Brett's sentence. 892 P. 2d at 63-65.

Brett then brought a state post-conviction proceeding, in which he asserted he had been denied the effective assistance of counsel because his trial attorney had failed to obtain such a diagnosis prior to trial. In 2000 the trial attorney was disbarred. 16 P. 2d at 609 n. 2. In 2001 the Washington Supreme Court held that Brett had been denied the effective assistance of counsel, and overturned his death sentence.

This was a lawsuit about a child with organic brain damage. Part of his brain, the corpus callosum, was far smaller than it should be, a condition known as agenesis of the corpus callosum. The child was in the custody of her grandmother. The grandmother asserted that the condition had been caused by the child's DPT vaccination; if that were the cause, the federal government would be liable for the child's injuries.

The Department of Health and Human Services argued that the condition was "probably caused by fetal alcohol exposure." Footnote 5. The mother was a known alcoholic. The case is significant because the government recognized that FAS can cause injury to the corpus callosum.

The court did not decide what had caused the condition.

The appellate court approves the termination of the father's parental rights with regard to three children, all of whom had FAS. (*4).

The court concluded that one factor militating in favor of termination of parental rights was that the children had "tremendous needs."

A pediatrician who specialized in birth defects

(*4). The mother at various times had used marijuana, cocaine, and methamphetamine. One child had tested positive for drugs (unspecified) at birth.

Loran Cole was sentenced to death after being convicted of first degree murder, kidnapping, robbery and sexual battery. After unsuccessful appeals, Cole brought a petition for writ of habeas corpus and challenged his conviction by arguing, among other things, ineffective assistance of counsel on the basis that (1) his counsel failed to request jury instructions for two statutory mental mitigators (that the capital felony was committed while under the influence of extreme mental or emotional disturbance, and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired -see Fla. Stat. § 921.141(6)(b), (f)), and (2) his counsel failed to subject Cole to a competent, neuropsychological exam. It is not clear from the court's opinion whether Cole specifically raised the possibility of FAS in connection with these claims.

As to claim (1), the court agreed with the state court;s finding that, while Cole did establish the mitigating factors of organic brain damage and mental illness, he failed to establish that such brain damage or mental illness affected his judgment regarding his criminal acts. Therefore, the court concluded that any error by counsel in not raising the statutory mental mitigators did not affect the outcome of the penalty phase. (The state court's opinion described testimony by experts to the effect that Cole exhibited signs of mental illness and organic brain damage, but noted that there was no independent evidence of brain injury or FAS).

As to claim (2), the court concluded that counsel conducted extensive investigations concerning Cole's mental state and did in fact hire several experts, including a neurospychologist who concluded that Cole was "neuropsychologically" sound; counsel therefore decided to not obtain a written report or call him as a witness. Counsel also hired a forensic psychologist, who explored various factors that could have caused Cole's brain damage, including possible head injuries or FAS.

Finding Cole's claims to be without merit, the court dismissed Cole's petition.

Davies pled guilty to murder and several other crimes. We was sentenced to consecutive terms in prison totalling 108 years. He appealed the length of the sentence.

Davies argued that he should have received a shorter sentence because he had FAE. Indiana Law states that one of the mitigating factors at sentencing is whether "the defendant's capacity to appreciate the criminality of the defendant's conduct or to conform that conduct to the requirements of law was substantially impaired as a result of mental disease or defect." 758 N.E. 2d at 988 (Emphasis added).

The sentencing judge recognized that Davies had FAE, but gave that factor only minimal weight in his sentencing decision. The sentencing judge explained that the FAE was

758 N.E. 2d at 983. The report of Davies' expert

Davies' expert witness was a Dr. Paul Guastadisegni, who was described as a "neuropsychologist who frequently works with children suffering from fetal alcohol syndrome and FAE." 758 N.E. 2d at 988 n. 10.

The court of appeals concluded that the sentencing judge did not abuse his discretion in giving only minimal weight to FAE as a mitigator.

This case grew out of a series of prosecutions, now largely discredited, of adults alleged to have engaged in sexual acts with young children. Devereux, who was one of those prosecuted, brought a civil lawsuit for damages against several of the officials involved.

Devereux asserted among other things that the case against him had been built in part by police officials who knowingly induced unreliable testimony from a minor whom they knew had FAS. Devereux asserted that individuals with FAS can easily be induced to give false testimony. (263 F. 3d at 1078). The majority opinion did not address this argument, since the child in question had ultimately recanted her accusations. The majority upheld the dismissal of the suit.

Judge Kleinfeld, in a separate opinion concurring in part and dissenting in part, quoted from a book about FAS which described the effects of FAS/FAE as including "inappropriate social behavior, memory deficits . . . lack of judgment, lack of remorse for misbehavior, lying . . . unusual aggressiveness, and wide variations in learning abilities at different times." (263 F. 3d at 1087). He would have permitted the case to go to trial, because on his view a jury could infer that at least one or more defendant officials knew they had induced false testimony from a suggestible witness.

URL:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6F24126F497E100088256ABE0050E3BE/$file/9735781.pdf?openelement

Dobyne was convicted of murder and sentenced to death. Prior to his trial Dobyne filed a motion for funds to hire a neurologist. Dobyne offered evidence that he had FAS, and sought appointment of the neurologist to confirm that diagnosis.

The trial court denied the motion, and the Alabama Supreme Court affirmed. The appellate court reasoned that Dobyne had failed to show that there was a "reasonable probability" that appointment of the neurologist would have affected the outcome of the case.

The trial judge did provide funds to hire a "mitigation investigator" to conduct a full investigation of his background, including the fact that his mother had abused alcohol. 672 So. 2d at 1358. Dobyne subsequently obtained a letter from a clinical psychologist (how he paid for this is not clear) noting that Dobyne had a history of FAS. The letter recommended two evaluations: (1) a neuropsychological evaluation, to be done by the psychologist, and (2) a neurological evaluation. The court agreed to funds for only the first.

The psychologist whom the court funded

672 So. 2d at 1358. The evaluation concluded that Dobyne had, and described, "functional deficits that were related to neurological conditions." 672 So. 2d at 1358.

The court concluded that appointment of a neurologist would have been unlikely to affect the outcome of the case because that expert would have been redundant. The neuropsychological tests alone met Dobyne's trial needs.

672 So. 2d at 1358. The court reasoned

672 So. 2d at 1359.

This decision is squarely inconsistent with the decision in Cherry v. State, 781 So. 2d 1040 (Fla. 2000), holding that neuropsychological evidence of FAS was insufficient because the defendant had failed to offer physical evidence of brain damage. That decision held essential the very evidence which this decision holds is entirely unnecessary. Both decisions appear to be incorrect. Neuropsychological assessment is a sufficient method of diagnosis, and in the past one of the primary methods of diagnosis. On the other hand, a defendant should be offered the opportunity to obtain neurological evidence, which a jury may find more persuasive, particularly if the prosecution does not agree that FAS is present.

Nonetheless, the fact that in this case first an investigator and then a psychologist were funded by the court to look into FAS represents a better response than occurs in many cases.

Elledge pled guilty to rape and murder and was sentenced to death. Elledge moved for post conviction relief, claiming, among other things, ineffective assistance of counsel. The trial court denied post conviction relief and Elledge appealed.

Elledge contends that he was denied effective assistance of counsel because trial counsel relied on mental health experts who were not board-certified, were improperly prepared, and who provided conflicting testimony. While one expert, Dr. Schwartz, testified that Elledge displayed signs of organic brain damage and fetal alcohol syndrome, Dr. Caddy, another expert, did not agree with Dr. Schwart's conclusions. While the trial court noted the discrepancy and found that Dr. Caddy's testimony diminished Dr. Schwart's credibility, the appelate court explained that "the thrust of the trial court's deconstruction of these mental health experts was not that they provided inconsistent testimony, but that their diagnoses were contradicted by the facts of the case and other episodes in Elledge's history." 911 So.2d at 72. In this regard, the trial court appears to have focused on whether Elledge was generally capable of exercising control over his violent impulses, in addition to any specific diagnosis. Based on the record, the appelate court held that Elledge could not viably assert that trial counsel's presentation and preparation of the mental health experts prejudiced his defense.

The decision erroneously states that FAE "is not as severe" as FAS. (851 P. 2d at 1363).

Francis was convicted of murder and sentenced to death. He brought this post-conviction proceeding, alleging that he was denied the effective assistance of counsel at trial. Francis argued that his trial attorney had failed to offer as mitigation evidence proof that Francis had FAS.

The state judge who held a hearing on this claim ruled that Francis did not have FAS. This is one of the few cases in which the parties litigated and a court decided whether a particular individual had FAS. The evidence offered by each side is not described in detail. The witness called by Francis, a psychiatrist, had interviewed Francis, and based his diagnosis of FAS "primarily on Francis' facial characteristics." 529 So. 2d at 673. The prosecution's rebuttal expert, also a psychiatrist, testified that discussions between Francis and the trial judge at Francis' earlier trial "was grossly inconsistent with somebody who is brain damaged." 529 So. 2d at 673. Francis had an IQ in the normal range.

The appellate court rejected the ineffectiveness claim on the ground that there was not a "reasonable probability" that Francis would have avoided the death penalty if evidence regarding FAS had been introduced. 529 So. 2d at 673-74 and n. 9. This was based in part on the fact that the judge who rejected Francis' claim for post-conviction relief was the same judge who had earlier sentenced him to death.

A dissenting opinion noted that impairment due to brain damage was a mitigating factor under Florida law. 529 So. 2d at 678.

G.A.R.B., a minor, was charged with second-degree murder. He challenged his "certification as an adult", which meant that G.A.R.B. would be tried as an adult.

In opposing that certification, counsel for G.A.R.B. argued that FAS was a mitigating factor. The appellate court upheld the decision of the district court that no mitigating factors were present. "[W]hile it has been suspected that G.A.R.B. may have been born with FAS, this diagnosis has never been established." 2004 WL 51814 at *2.

In this case, defendant was convicted of capital murder and sentenced to death. On direct appeal, the Court of Criminal Appeals affirmed. The defendant petitioned the United States Supreme Court for a writ of certiorari, pursuing a claim of mental retardation. The Supreme Court vacated decision of Court of Criminal Appeals and remanded for reconsideration.

During the initial punishment phase, some evidence of mental retardation was introduced, including that defendant had always been slower than other children, he could not stack blocks at the age of 5, he was in special education classes through the eighth grade, he could not handle regular classes in ninth grade, and did not advance beyond tenth grade. Testimony was introduced that the defendant plays like an eight-year-old boy and associates with young children, that he can not count change, tell time from a traditional clock, read a menu, use public transportation or engage in various other daily activities, nor could he follow multi-step instructions. It was testified that the defendant did know how to use a phone, operate a microwave, load and unload a dishwasher, brush his teeth, use a pencil, read, and that he did pass the written driver's license test. It was noted by one witness that mathematics were largely beyond his ability but that he did have expressive verbal skills. A number of psychologists testified for the defendant, indicating IQ scores which varied from 51 to 84, depending on the test administered. One doctor concluded that defendant possessed adaptive behavior deficits in seven different areas: (1) independent functioning (eating, dressing, and transportation), (2) economic activity (handling money), (3) language development, (4) self-direction (excessive passivity), (5) socialization (ability to interact with others), (6) social engagement, and (7) functional academics. Another psychologist stated that appellant's physical appearance was typical of FAS or FAE. (She also stated that defendant exhibited characteristics that resembled other genetic disorders such as XXY, Kleinfelter Syndrome, YYX, Extra Y Chromosome, or Fragile X Syndrome.)

Rebuttal testimony was offered by the state to the effect that the defendant had "pretty average" adaptive skills and acted "pretty normally," and that his IQ was right around 70. The state's witnesses on the issue of Hall's mental retardation included many lay witnesses, including teachers, co-workers and corrections officers.

The appellate court concluded that the lower courts conclusion that Hall was not mentally retarded was supported by the record and therefore affirmed.

A dissenting opinion criticizes the lower court's reliance on lay testimony in determining whether Hall was mentally retarded. The dissent notes, "Lay persons often have unrealistic ideas about what mentally retarded persons look like and how they act. There is a wide range of abilities encompassed by the term 'mentally retarded'..." The dissent also observes: "Persons with limited mental ability often do extremely well in structured environments, and I cannot think of a more structured environment than death row." (These comments by the dissent are particularly apropos in the case of many persons with FAS).

In 1979 Harris was convicted of murder and sentenced to death. In 1990 he filed a federal habeas corpus action seeking to overturn that sentence.

At the original 1979 trial Harris' attorney did not raise any issues regarding FAS, and was evidently unaware that Harris might have FAS. Harris' trial attorney retained two psychiatrists to go over the case, but neither of them raised the possibility that Harris might have FAS. In the 1990 federal habeas corpus action, Harris offered diagnoses from three different physicians, all of whom agreed that Harris had FAS.

A dissenting opinion by Judge Noonan urged that Harris should have been afforded a hearing on his claims. Noonan argued that with the assistance of more competent experts, who had identified FAS as the likely diagnosis, Harris' attorney in 1979 might have been able to convince the jury that the prosecution's diagnosis of Harris was inaccurate.

This case appears to illustrate several important problems.

First, the medical experts retained for the 1979 trial were both psychiatrists. There is no distinct category for FAS/FAE in the Diagnostic and Statistical Manual of Mental Disorders (DSM) on which psychiatrists generally rely. Some Canadian judges do not regard psychiatrists as competent to diagnose whether a defendant has FAS. Thus, although two of the three experts who in 1990 diagnosed Harris with FAS were psychiatrists, it is possible that the reason this diagnosis was missed in 1979 was that Harris' attorney had consulted the wrong type of medical expert. Unless a defense attorney both can recognize symptoms of possible FAS, and understands what type of expert to retain to evaluate that problem, an FAS diagnosis and defense (or mitigation factor) may well be overlooked.

Second, the key prosecution witness at the sentencing hearing, also a psychiatrist, diagnosed Harris as having "antisocial personality No. 304.8", relying on the second edition of the DSM. The prosecution psychiatrist testified that there were eleven characteristics of such a "sociopath." That list, quoted below, includes many classic symptoms (underlined) of FAS. the witness stated that

URL:

http://www.ce9.uscourts.gov/web/sdocuments.nsf/0/2ed1d19f0f60a9cd8825684900698d1a?OpenDocument
(Not full text of case, but it is mentioned in Capital Punishment Handbook for 9th Circuit)

This was an action to terminate the paternal rights of Stacie M. in her son Jonathan. The mother had FAS; the court relied on her difficulties in deciding to terminate her rights.

The opinion contains a detailed description of the effect of FAS on children:

1998 WL 764142 at *2. The quotations are from Wiley Karr-Morse, Ghosts from the Nursery (1997).

The mother's behavioral problems are described in this opinion and in In re Dalilah Rose N., 1996 WL 745838 (Ct. Super.).

Kearse was convicted of murder and sentenced to death. At the sentencing hearing Kearse attempted to prove, as a mitigating factor, that he had FAE. The trial judge concluded that the existence of FAE had not been proven.

Natasha was born with FAS. The court holds that the mother is guilty of neglect, even though the mother has never had custody of the child. Natasha was born with severe medical problems, and at all times was in the Neonatal Intensive Care Unit of the hospital. Her mother continued to drink, and the court concluded the mother would be unable to deal safely with the child's precarious physical condition.

The plaintiff agency (unidentified) offered expert testimony that FAS can be caused "either by episodic binge drinking or the regular intake of 2 or 3 ounces of alcohol per day." 146 Misc. 2d at 3. The mother testified she drank 4 ounces every other day while pregnant. 146 Misc. 2d at 6. [Is this 2, 3 or 4 ounces of beer, or whiskey, or the net ounces of pure alcohol in the drinks? The opinion is unclear.]

The mother had been warned that drinking might harm the baby and her own liver; her response was to cut down rather than to totally stop drinking. She explained: "I tried to stop drinking alcohol completely and it couldn't be done . . . . Because its hard . . . . Hard to stop drinking just like that." 146 Misc. 2d at 7.

The court reasoned that because of the severity of the child's medical condition, the child would be in danger if the mother drank. It then concluded that the fact she drank during the pregnancy was evidence she would do so later.

146 Misc. 2d at 7. This assumption of continuity of alcohol use seems inconsistent with Morris v. Dept. of Social and Health Services, 2003 WL 220958 (Wash. App. Div. 1) and with some cases regarding ineffectiveness of counsel, which assert that knowledge that a mother drank (even excessively) at some point in her life is not sufficient to give counsel reason to believe she might have drunk during her pregnancy.

The Millers sued DSHS for wrongful adoption, alleging the agency breached its statutory obligation to disclose the health and social history of the child they adopted. The jury found that DSHS was negligent in failing to disclose information required by law, but concluded that the Millers would have adopted the child even if the disclosures had been made. 2003 WL 220958 at *1.

The trial court excluded expert testimony that the child had FAE. The expert was a Dr. Robert Galack, who had treated the child at the Fairfax Psychiatric Hospital. Galack knew that the mother drank before and after the pregnancy (by then 13 years earlier), but had no specific evidence that she drank during the 9 months of the pregnancy. Galack thought that that was sufficient to infer that she drank during the pregnancy.

The appellate court held that any inference that the mother drank during pregnancy was pure speculation, and that the diagnosis of Dr. Galack was therefore inadmissible.

2003 WL 220958 at *8. This reasoning seems in conflict with the analysis in In the Matter of Natasha Milland, 146 Misc. 2d 1, 7-8 (Family Ct. N.Y. County 1989).

This decision highlights the need to inquire quite specifically about alcohol use during the pregnancy in question.

Murphy was convicted of murder and sentenced to death. He urged in this post-conviction proceeding, among other things, that he had been denied the effective assistance of counsel because his trial attorney failed to develop and offer evidence that Murphy had FAS/FAE.

The court held that any such failure by the trial attorney was not serious enough to constitute ineffective assistance under the standard set in Williams v. Taylor, 529 U.S. 362 (2000).

54 P. 2d at 564. The court declined even to conduct an evidentiary hearing on the ineffectiveness claim, holding both (1) that the actions of the trial attorney did not fall below "professional norms" and (2) that there was not a "reasonable probability" that the outcome would have been different if evidence of FAS (and other mitigating evidence) had been introduced. The second assertion, common in FAS ineffectiveness claims, was (as usual) unexplained.

The court's analysis of the sufficiency of the trial attorney's actions appears to rest at least in part on a misunderstanding of the relevant science. (1) Murphy's birth mother assertedly told the attorney she only drank two beers a day; the court seems to have assumed, incorrectly, that this was too little alcohol consumption to cause any harm. 54 P. 2d at 565 n. 8. See also id. (Mother told attorney her drinking during the pregnancy was "minimal"). (2) The attorney talked with a physician and they noted the "absence of any visible characteristics of Fetal Alcohol Syndrome." 54 P. 2d at 565 n. 8. But that would not rule out FAE; if they meant only that those characteristics were not present when Murphy was an adult, their absence would not even rule out FAS. (3) The attorney stated that family members "never contradicted" the mother's assertion that her drinking was "minimal"; it is unclear whether the attorney asked the family members, or whether the family members knew what the mother had said.

Later the mother's sister described the mother as an alcoholic during the pregnancy. This case highlights the risk in relying solely on the birth mother for information about whether or not she drank during the pregnancy.

A neurologist hired for purposes of the post-conviction proceedings concluded that Murphy had FAS/FAE. The court dismissed this diagnosis on the ground that the neurologist "apparently" relied solely on the conflicting evidence about how much the mother drank. 54 P. 2d at 564 n. 8. This aspect of the opinion highlights the importance of making clear what information an expert relied on in making a diagnosis.

The defendant was convicted of murder and sentenced to death. On appeal he argued that the sentencing judge should have recognized as a mitigating consideration the fact that, because of FAS, Nelson lacked the capacity to appreciate the criminality of his acts.

In rejecting that contention, the appellate court noted that "there was no documentation that Nelson actually suffered from fetal alcohol syndrome." 850 So. 2d at 531.

[This may be a case in which there was insufficient evidence to support an FAS-based mitigation argument.]

The appellate court affirmed a decision dispensing with the mother's consent to Oliver's adoption. This will permit the child's foster parents to adopt Oliver without the mother's agreement.

In reaching this conclusion, the court relied primarily on the special needs of a child, like Oliver, with FAS. The court also gave some weight to the mother's continued use of alcohol.

The description of the facts on which the diagnosis was based included the following:

(554 N.E. 2d at 43.)

The court described Oliver's special needs in the following passage:

(554 N.E. 2d at 43).

Mr. and Mrs. Price sued the state of Washington alleging wrongful adoption.

When the child was only a year old state officials diagnosed him as having neurological disorders. This was not disclosed to the parents, and after the adoption the child's pediatrician for several years detected no problems. At the age of 5 the child was diagnosed as hyperactive. At 8 or 9, a psychologist diagnosed the child as having "conduct disorder." As he grew older, his conduct become more destructive and uncontrollable. He was placed on numerous medications, without success. Finally, at the age of 14, the child was diagnosed by specialists at the Oregon Health Sciences University as having FAE.

The main issue on appeal was whether the parents had waited too long to sue. Although the Prices by 1991 clearly knew that the child had neurological problems, and suspected FAS/FAE, the court concluded that it was not until 1994 that the parents had learned enough that they were on notice of their claim against the state.

Among other things, the state officials had been told by the child's mother that during the pregnancy the mother had been drunk, although the sister had not actually seen the mother in the act of drinking. 980 P. 2d at 307. The court concluded the sister's observations were sufficient to put the state on notice. 980 P. 2d at 311.

Ray was convicted of murder and sentenced to death. At the sentencing hearing Ray offered testimony by a Dr. Samuel Benson, a psychiatrist specializing in psychopharmacology. Benson tested Ray's brain functioning with an EEG and a CAT scan. Based on the results, and unspecified information obtained from interviews and school and medical records, Benson concluded that Ray had a number of different conditions, including FAS. Benson said the overall diagnosis was "organic personality syndrome." 13 Cal. 4th at 332.

This diagnosis played no role in the issues on appeal. It is not clear how the prosecution responded to this evidence.

Sexual Offenses

Sentencing

Symptoms of FAS/FAE

This is a lawsuit brought by the parents of a child who suffered from a number of different conditions, including FAS and Attention Deficit Hyperactivity Disorder. The suit asserted that Maine state officials had failed to provide certain benefits under the Early and Periodic Screening, Diagnosis and Treatment provision of the federal Medicaid Act. Those benefits include screening, case management and in-home mental health services.

The decision certified the case as a class action. No decision was made on the merits of the dispute

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