Appeal in Cochise County Juvenile Action No. 5666-J, Matter of

• Decision Date: 23 December 1981
• Docket Number: No. 2,CA-CIV,2
• Citation: 650 P.2d 467,133 Ariz. 165
• Parties: In the Matter of the APPEAL IN COCHISE COUNTY JUVENILE ACTION NO. 5666-J. 4165.
• Court: Arizona Court of Appeals

Page 467

650 P.2d 467

133 Ariz. 165

In the Matter of the APPEAL IN COCHISE COUNTY JUVENILE ACTION NO. 5666-J.

No. 2 CA-CIV 4165.

Court of Appeals of Arizona,

Division 2.

Dec. 23, 1981.

Robert K. Corbin, Atty. Gen., by Jay W. McEwen, Asst. Atty. Gen., Tucson, for appellant Arizona Dept. of Economic Security.

Greenwood, Ryan, Herbolich & Atonna, Ltd. by James B. Greenwood and Wallace R. Hoggatt, Bisbee, for appellees juveniles and their parents.

HOWARD, Judge.

The state has brought this appeal to challenge the juvenile court's dismissal of its petition for adjudication of dependency in this action. We reverse and remand for proceedings in accordance with this opinion.

On March 20, 1981, appellee mother took her six-year-old son to the emergency room of the Copper Queen Community Hospital in Bisbee, Arizona. He was not breathing, and was pronounced "dead on arrival" after efforts to restore life functions failed. The emergency room physician, Dr. McCleave, noted the following abnormal conditions of the boy on his initial assessment: (1) His pupils were fixed and dilated, and the corneas of his eyes were clouded over. This would indicate that the oxygen supply to the brain had been stopped long enough to cause brain damage and the eyes had been open and unblinking for a period of time. (2) His lips were chapped, and his skin was dry and cracked. This suggested that dehydration had been going on for some time. (3) There was foul-smelling fecal matter in the boy's mouth which is indicative of prolonged or severe vomiting. (4) The most remarkable irregularity, however, was the boy's abdomen which the doctor described as being the size of a basketball.

The medical examiner, Dr. Froede, determined an autopsy that the cause of death was "septicemia and peritonitis secondary to perforation of a strangulated inguinal hernia." This occurs when part of the intestine pokes out through a defect in the abdominal wall and gets caught. Intestinal obstruction may then occur which will cause a decrease in blood supply to the area, tissue death, and eventually rupture of the bowel. Digestive material then pollutes the abdominal cavity causing infection which eventually invades the bloodstream and the whole abdominal area. This condition leads to cardiac arrest and death.

In the very early stages of this process, the hernia may be "reduced" or pushed back into the abdominal cavity without surgery. If surgery is required, it is initially fairly safe and simple unless performed late in the progression of symptomatology. The various symptoms which would become manifested during this progression would include acute pain, steady dehydration, fever, persistent vomiting, unusual abdominal swelling and finally shock, coma, and death. Both doctors stated that estimating the actual duration of the boy's illness was very difficult, but the malady could have lasted weeks depending on the nature of the intestinal obstruction. The boy never attended school after March 3, 1981.

Because of the circumstances surrounding the boy's death, Dr. McCleave notified the Arizona Department of Economic Security concerning the case, and two DES caseworkers visited appellee-parents' home in Miracle Valley on March 31, 1981. At that time the mother told the caseworkers that she had not obtained medical help for her deceased son, would not seek medical help for any of her other children, and would not allow anyone else to take the children to a doctor because she believed miracles would adequately safeguard her children.

DES thereafter filed a petition in the Superior Court of Cochise County to have appellees' seven children adjudged dependent children. This petition did not seek to remove the children from their parents' custody. It sought only to insure that proper medical care would be provided for the surviving children.

A hearing on this petition was held on July 23, 1981, to determine if the children were, in fact, "dependent children" as defined in A.R.S. § 8-201(10). At the close of the state's case, a motion to dismiss was granted following findings of fact that the children were well fed, well clothed, attended school with regularity and had a home which was clean and well kept. While this may be true, we disagree with the court that there was insufficient evidence in this case for a finding of dependency under Arizona statutes.

As we read the statutes, every child in Arizona is entitled to a home where the parent or guardian is willing to seek medical attention for him should he become sick or injured. When the mother in this case states that she will not seek medical attention for her children should they become ill, she is saying that she is unwilling to exercise reasonable care as required by A.R.S. § 8-201(2) and (10), and the state has a right to intervene.

According to A.R.S. § 8-201(10) a dependent child means a child who is adjudicated to be:

"(a) In need of proper and effective parental care and control and has no parent or guardian, or one who has no parent or guardian willing to exercise or capable of exercising such care and control.

(b) Destitute or who is not provided with the necessities of life, or who is not provided with a home or suitable place or abode, or whose home is unfit for him by reason of abuse, neglect, cruelty, or depravity by either of his parents, his guardian, or other person having his custody or care." (Emphasis added)

Child abuse is defined in A.R.S. § 8-201(2) as:

"... the infliction of physical or mental injury or the causing of deterioration of a child and shall include failing to maintain reasonable care and treatment or exploiting or overworking a child to such an extent that his health, morals or emotional well-being is endangered." (Emphasis added)

A fair reading of these statutes would be that they are intended to insure that children are properly cared for by their parents. This care encompasses a parental duty to provide children with the necessities of life, including medical attention. State v. Williams, 4 Wash.App. 908, 484 P.2d 1167 (1971); Matthews v. State, 240 Miss. 189, 126 So.2d 245 (1961); 67A C.J.S. Parent & Child § 70 (1978). Indeed, the Supreme Court has recently stated that among parental obligations in regard to their children is "a 'high duty' to recognize symptoms of illness and to seek and follow medical advice." Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). The Court noted that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. Parham v. J. R., supra. See also Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).

It is important that the passive conduct involved here not be confused with the absence of abuse. In this case, not doing something (failing to maintain reasonable care by not providing medical attention) is abuse. The standard used is "at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote it recovery, deem it necessary to call in the services of a physician." State v. Williams, supra; People v. Edwards, 42 Misc.2d 930, 249 N.Y.S.2d 325 (1964). According to the past acts and statements of the mother, we know that that time will never come for her children, and therefore we know that should they become injured or ill and in need of medical services, they will be abused.

The problem involved here seems to be the fact that medical attention, unlike other necessities such as food and shelter, is needed only on a sporadic basis. Certainly if a parent would state that she intends to withhold food or shelter from her children, and it is demonstrated that the parent had done so in the past with a death occurring, the state would have a right to intervene.

Indeed, when a child is in need of continuous medical attention and the parents have failed to provide medication or to follow prescribed treatments, the courts have intervened. A court permanently removed three children from a home in In re Welfare of Price, 13 Wash.App. 437, 535 P.2d 475 (1975) without any signs of brutality for failure to provide medication and attention to two children who had primary tuberculosis. The third child had no disease process. In People in the Interest of D. K., 245 N.W.2d 644 (S.D.1976) a court removed a child with a congenital defect from a home based on the fact that he was without the care necessary to his health and welfare, that his mother failed to provide for his special medical needs, and that his mother did not feed him the diet prescribed by his doctor. This, according to the court, constituted lack of proper parental care absent any finding of abuse. See also Custody of a Minor, 375 Mass. 733, 379 N.E.2d 1053 (1978), where a court ordered that a child with leukemia should receive chemotherapy treatments overriding a mother's desire to rely on diet manipulation and prayer.

Appellees argue that the state has not proven that any of the children are in a life-threatening situation concerning their health, and therefore the state may not intervene. First we note that none of the children have been examined to find out what the state of their health may be. Second, it is unclear that children who may at any time become sick or injured without any provision for medical assistance are not in jeopardy health-wise. And third, assuming arguendo that their lives are not immediately in danger, it seems clear that it is unwise to allow intervention only after a child has been seriously injured as a result of inadequate living conditions or supervision. The statutes speak in terms of "reasonable care" of "health" and "emotional well-being" not emergency situations or life and death situations only. In Matter of Gregory S., 85 Misc.2d 846, 380 N.Y.S.2d 620 (1976), a school doctor found the oldest of three children to be suffering from a hernia, cavities, and "fractured teeth". The...