Conservatorship of Valerie N.
| Decision Date | 21 October 1985 |
| Docket Number | S.F. 24745 |
| Court | California Supreme Court |
| Parties | , 707 P.2d 760, 54 USLW 2261 CONSERVATORSHIP OF the Person of VALERIE N. MILDRED G., as Conservator, etc., et al., Petitioners and Appellants, v. VALERIE N., Objector and Respondent. |
Allen H. Fleishman and Fleishman & Jensen, Santa Clara, for petitioners and appellants.
Frank O. Bell, Jr., and Quin Denvir, State Public Defenders, Paul D. Fogel and Ezra Hendon, Deputy State Public Defenders, for objector and respondent.
Eric R. Gelber, Sacramento, and Carolyn Schneider as amici curiae on behalf of objector and respondent.
Mildred and Eugene G., her mother and stepfather, are coconservators of the person of their adult developmentally disabled daughter Valerie. 1 They appeal from a judgment of the probate court denying their petition for authorization to have a tubal ligation (salpingectomy) performed on Valerie. The primary purpose of the proposed operation is habilitation. Any therapeutic benefit would be incidental. The probate court, while agreeing with appellants that the procedure was medically safe and would enhance the quality of Valerie's life, concluded that it lacked jurisdiction to grant the petition.
We are asked to determine whether section 2356, subdivision (d), 2 upon which the trial court relied, precludes the sterilization of a severely retarded conservatee 3 in all circumstances and, if so, whether application of that prohibition to Valerie denies her the benefits of state and/or federal constitutional guarantees of privacy, equal protection, and due process.
We shall conclude that the Legislature, in enacting subdivision (d) of section 2356, while contemporaneously repealing Welfare and Institutions Code section 7254, intended to discontinue the longstanding, but discredited, practice of eugenic sterilization, 4 and to deny guardians and conservators authorization to have the procedure performed on their wards and conservatees. The judgment must be affirmed because the record does not support a conclusion that sterilization is necessary to Valerie's habilitation and does not support the trial court's implicit conclusion that less intrusive means by which to avoid conception are unavailable to Valerie. We shall also conclude, however, that the present statutory scheme denies incompetent developmentally disabled persons rights which are accorded all other persons in violation of state and federal constitutional guarantees of privacy. Our affirmance of the judgment therefore is without prejudice to a renewed petition and hearing at which the requisite showing may be made.
Valerie was born on July 13, 1955, apparently a victim of Downs Syndrome as a result of which she is severely retarded. Her IQ is estimated to be 30. She is now 29 years old. She lives with her mother and stepfather. Although she has no comprehension of the nature of these proceedings, she has expressed her wish to continue to have her parents care for her. Her parents' long range plan for Valerie is that she will move to a residential home should they become mentally or physically unable to care for her. She has received therapy and training for behavior modification which was not successful in eliminating her aggressive sexual advances toward men. Her parents are attempting to prepare her for the time when they can no longer care for her, and to broaden her social activities as an aspect of this preparation. They have concluded that other methods of birth control are inadequate in Valerie's case.
On September 5, 1980, appellants filed their petition to be named conservators of Valerie's person in the Santa Clara County Superior Court pursuant to section 1820. In the same petition they sought the additional power to authorize "a Salpingectomy or any other operation that will permanently sterilize" Valerie. The petition was supported by the declaration of Valerie's personal physician who stated that the tubal ligation procedure is "advisable and medically appropriate."
On September 25, 1980, after review of a court investigator's report which stated that Valerie had no comprehension of the proceedings, could not complete an affidavit of voter registration, and gave no pertinent response when asked if she objected to being disqualified from voting, the probate court granted the petition insofar as it sought appointment of appellants as coconservators. The court continued the hearing on the request for additional powers, however, and appointed counsel to represent Valerie. 5
On December 10, 1980, when the hearing resumed, appellants submitted a declaration by a physician who had treated Valerie from the time she was 10 years old. He stated that in his opinion a tubal ligation procedure was "advisable and medically appropriate in that a potential pregnancy would cause psychiatric harm to VALERIE." A second declaration, this by a licensed marriage, family and child counselor having a masters degree in developmental psychology, was also submitted. This declarant had worked with Valerie on a weekly basis for a year during 1977-1978. She believed that a tubal ligation was "an appropriate means of guarding against pregnancy," and had observed that Valerie acted "affectionately" toward adult men and made "inappropriate" sexual advances toward them. This declarant was of the opinion that because Valerie's parents had found it necessary to be overly restrictive in order to avoid a possible pregnancy which would have "severe psychologically damaging consequences" to Valerie, close monitoring had severely hampered Valerie's ability to form social relationships. She also believed that the level of Valerie's retardation meant that no alternative birth control methods were available that would ensure against pregnancy.
Valerie's mother testified that Valerie had not been sexually active, apart from masturbation, because she had been closely supervised. She was aggressive and affectionate toward boys. On the street she approached men, hugged and kissed them, climbed on them, and wanted to sit on their laps. Valerie had been given birth control pills in her early teens, but she rejected them and became ill. Her doctor then recommended the tubal ligation. Valerie was unable to apply other methods of birth control such as a diaphragm, and would not cooperate in a pelvic examination for an intrauterine device which the witness believed was unsafe in any event.
No evidence was offered by counsel representing Valerie, although he did argue that less drastic alternatives to sterilization should be used, and also questioned the jurisdiction of the probate court to authorize the surgery. It was conceded that the court had the power to authorize an abortion should Valerie become pregnant. 6
No evidence was offered to establish that Valerie is capable of conceiving, and other than the opinions of her mother and the family counselor no evidence was offered to establish that alternative less intrusive methods of birth control are unavailable.
The trial judge then denied the request for additional powers, explaining he believed both that sterilization was in order and that subdivision (d) of section 2356 was unconstitutional, but was obliged to follow Guardianship of Tulley (1978) 83 Cal.App.3d 698, 146 Cal.Rptr 266, which had held that the probate court lacks jurisdiction to authorize the sterilization of a conservatee.
The parties agree that section 2356 bars nontherapeutic sterilization of conservatees. Because that section provides that the procedure may not be authorized "under the provisions of this division," however, we invited additional briefing addressed to whether the Lanterman Developmental Disabilities Services Act (Welf. & Inst.Code, § 4500 et seq.) afforded an alternative source of authority. The parties argue that it does not. We conclude that the history of section 2356 supports the parties.
In 1909, California enacted this state's first statute permitting sterilization of developmentally disabled individuals. That authority extended only to persons committed to state institutions or prisons, and provided: "Whenever in the opinion of the medical superintendent of any state hospital, or the superintendent of the California Home for the Care and Training of Feeble-Minded Children, or of the resident physician in any state prison, it would be beneficial and conducive to the benefit of the physical, mental or moral condition of any inmate of said state hospital, home, or state prison, to be asexualized, then such superintendent or resident physician shall call in consultation the general superintendent of state hospitals and the secretary of the state board of health, and they shall jointly examine into all of the particulars of the case with the said superintendent or resident physician, and if in their opinion, or in the opinion of any two of them, asexualization will be beneficial to such inmate, patient, or convict, they may perform the same; ..." (Stats.1909, ch. 720, § 1, pp. 1093-1094.)
That law was repealed in 1913, and replaced with authority to "asexualize" committed mental patients and developmentally disabled persons prior to their release from state institutions, and developmentally disabled minor and adult patients in state hospitals. 7 In 1917 section 1 of the statute was amended to make it applicable to developmentally disabled adults. It then provided that prior to discharge a person "who is afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeble-mindedness, those suffering from perversion or marked departures from normal mentality or from disease of a syphilitic nature," might be asexualized. (Stats. 1917, ch. 489, § 1, p. 571.) No hearing procedure was provided and no judicial approval was required under any of these...
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