NBC News and news services
updated 6/14/2005 8:30:52 PM ET 2005-06-15T00:30:52

A federal judge ruled Tuesday that the federal courts could not intervene in the case of a family resisting the use of radiation treatment to arrest their teenage daughter's cancer.

This forces the matter back to the state courts, forcing Michele and Edward Wernecke to present reasons why the state should return their 13-year-old daughter Katie to the family and medical testimony for other alternatives to radiation treatment.

At Tuesday's federal hearing, Judge Janice Jack ruled that it is not in her jurisdiction for to intervene. “Just because you anticipate things will not go your way, it’s not an abstention. Because you get a ruling that is not in your client's favor does not give you the jurisdiction to come to federal court.”

Court battle resumes Wednesday
So, the Wernecke family will go back to the state court in Corpus Christi on Wednesday morning.

The Wernecke family's attorneys brought the case to the federal court because they feared that the state judge would not properly hear all the evidence at the scheduled Wednesday hearing and already had his mind made up.

On June 9, Texas child welfare officials seized Katie from her parents, saying they were blocking radiation treatment that doctors said she needed.

During a court hearing, the Werneckes asked juvenile court Judge Carl Lewis to bar doctors from providing radiation therapy for Katie, who is now in a Houston hospital, until a hearing to determine whether she will stay in state custody.

They said their daughter’s cancer is in remission and they object to her getting the radiation treatment after undergoing a round of chemotherapy.

Subject of Amber Alert
Recently, authorities issued an Amber Alert to gain temporary custody of Katie after receiving an anonymous tip about possible neglect. She was found with her mother at a family ranch, about 80 miles west of Corpus Christi near Freer, on Saturday.

She remains at the University of Texas M.D. Anderson Cancer Center in Houston, where she is undergoing tests, officials said. State Child Protective Services says her life could be in danger without further cancer treatment.

Michele Wernecke was arrested on charges of interfering with child custody and was released Monday after posting $50,000 bond.

The Werneckes’ three sons were placed in a foster home.

'It's my body'
Speaking June 9 on NBC’s “Today” show, Michele Wernecke said her daughter’s illness is unique and should be treated as such.

“I think they should treat her for what her body calls for and not standard protocol. Nobody will look at that,” she said. “Not every cancer is the same. Nobody understands that. Her body is not standard, and her cancer is not standard.”

The couple, members of the Church of God, have said they oppose blood transfusions unless they were from Katie’s mother. But the couple’s attorney, Daniel Horne, said religion wasn’t at issue in the fight over cancer treatment.

Rather, they believe doctors haven’t been upfront about Katie’s care and have not answered all their questions about the side effects of the radiation.

“This issue is about parental rights, not about religious rights,” Horne said. “They just want to be informed of her treatment. They want to be involved in this.”

Katie was diagnosed with cancer in January. In a videotaped statement recorded by her parents, Katie said she’s feeling better. “I don’t need radiation treatment. And nobody asked me what I wanted. It’s my body,” she said.

Officials on Wednesday reached an agreement to let Edward Wernecke and the couple’s sons visit Katie on Friday, the day before her 13th birthday.

NBC’s Bethany Thomas and The Associated Press contributed to this report.

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