Published February, 2011

Wisconsin v. Abigail, Appeal No. 2010AP2792 (N.W.2d Feb. 10, 2011)

In this case, an HIV positive mother with a low IQ sought to regain custody of her infant daughter. The trial court, using the "best interests of the child" standard, concluded that Abigail's low mental capacity plus her HIV positive status meant that she not only was unable to care for her child but that she posed a potential risk to her. Implied in the court's decision was that, because Abigail did not take the medicine designed to prevent transmitting HIV during pregnancy, she did not fully understand the risks of HIV transmission and thus posed a danger to her daughter. Here the appellate court affirmed the lower court's ruling against Abigail.

Abigail was "admitted" to a hospital two weeks prior to the birth of her daughter, Aaliyah, because she was not taking the medication necessary to reduce the risk of passing HIV on to her daughter. The hospital relied on this and Abigail's low IQ to take action to have Aaliyah removed from Abigail's custody. A year later, the state sought to terminate Abigail's parental rights. In response, Abigail filed a guardianship petition seeking to appoint a friend as Aaliyah's guardian. The petition was denied, and the state continued the parental termination procedures. The trial court, after hearing witnesses testifying to Abigail's low mental capacity and her failure to take antiretrovirals prenatally, found that it was in Aaliyah's best interest for Abigail's parental rights to be terminated.

Abigail, in this appeal, argued that the trial court violated her substantive due process rights. Such violations occur when a state action is arbitrary and interferes with certain fundamental rights. Abigail contended that the state's requirement that she demonstrate her ability to independently care for her child as a condition for Aaliyah's return to Abigail was an impossible requirement for her and thus arbitrary and unfair. The appellate court found that the requirement was in fact only that Abigail show an ability to care for Aaliyah and that she understood Aaliyah's special needs. Since the trial court considered that, with training and service program support, Abigail could gain the ability to care for her child's special needs, the court on appeal found that the requirement was not impossible and not a substantive due process violation.

In supporting the trial court's determination that Abigail was unfit to parent Aaliyah, the court focused on her mental limitations. These limitations, the court found, were dangerous not only because of Abigail's inability to focus or "multitask," but also because she did not fully appreciate the risk of HIV transmission. It is unclear whether the court meant this in reference to a general inability to understand how HIV is transferred or to Abigail's past failure to take the medications designed to reduce the risk of transferring HIV during her pregnancy.

In assessing the hospitalization and confinement of Abigail during and immediately following her pregnancy, it is important to understand that the USPHS guidelines on the treatment of pregnant women and newborns makes it clear that whether and what to take during pregnancy is a woman's decision to make, and that involuntary treatment is inappropriate. See also; New Jersey Division of Youth and Family Services v. L.V., 889 A.2d 1153 (N.J. Super. Ct. Ch. Div. 2005). It appears in this case that Abigail's treatment team and social workers may have acted contrary to available, relevant medical and legal authority on this issue. It is not clear whether the parental rights termination was appropriate in this case, although discrimination against developmentally disabled individuals in custody proceedings is not uncommon.