Cook v. State
| Decision Date | 07 April 1972 |
| Citation | 9 Or.App. 224,495 P.2d 768 |
| Parties | , 53 A.L.R.3d 954 Nancy Rae COOK, Appellant, v. STATE of Oregon, Respondent. |
| Court | Oregon Court of Appeals |
Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Gary D. Gortmaker, Dist. Atty., Salem, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
This is an appeal from an order of the circuit court which affirmed an order of the State Board of Social Protection after trial De novo 1 in the circuit court.
On May 21, 1971, the State Board of Social Protection entered an order for plaintiff's sterilization based on findings:
'* * *
'(2) That in the judgment of a majority of the Board the condition of the examinee is such that procreation by the examinee would produce a child or children: * * * (b) who would become neglected or dependent children as a result of the parent's inability by reason of mental illness or mental retardation to provide adequate care.
'(3) That in the judgment of the majority of the Board there is no probability that the condition of the examinee investigated and examined will improve to such an extent as to avoid the indicated consequences as set forth in paragraph
(2) hereof.
'* * *.'
Plaintiff contends that the trial court erred in denying her motion that the state elect between mental retardation and mental illness as the basis for sterilization and that the trial court erred in affirming the Board's order. The remaining assignment of error alleges that ORS 436.070(1)(b) is unconstitutional because it discriminates against indigents in violation of the equal protection provisions of the state and federal constitutions. ORS 436.070 provides:
'(1) The investigation, findings and orders of the board * * * shall be made with the purpose in view of avoiding the procreation of children:
'* * *
'(b) Who would become neglected or dependent children as a result of the parent's inability by reason of mental illness or mental retardation to provide adequate care.
'* * *.'
Plaintiff is a 17-year-old girl with a history of severe emotional disturbance. At age 13 she was declared a ward of the court and was taken out of her home under circumstances which indicate that she had been physically and sexually abused by her family for some period of time. During the last four years she has been placed in two foster homes, juvenile detention home, F. W. Dammasch State Hospital and Hillcrest School of Oregon. The longest period in any one place was one and one-half years at Dammasch. Her behavior has vacillated between periods of stability that lasted up to three months and aggressive hostility expressed in verbal or physical threats towards others, self-inflicted injury, and running away. A petition was filed with the Board of Social Protection 2 after appellant engaged in a series of indiscriminate and impulsive sexual involvements while she was in the hospital.
A psychiatrist who specializes in child guidance has followed plaintiff's care since she became a ward of the court. His uncontradicted testimony was that she would never be able to provide the parental guidance and judgment which a child requires even though she might be able to master the skills necessary to take physical care of herself and a child. He based this conclusion on the girl's lack of emotional control, her consistent low scores in areas of judgment on psychological tests, and the likelihood that she would abuse a child. He said the prognosis is poor because the presence of brain damage makes her condition inherently unstable despite continuous medication. He testified further that both mental illness and mental retardation are contributing factors and are interrelated.
Because of their interrelated nature, plaintiff's condition could not be intelligently considered without reference to both mental illness and mental retardation. The statute provides for, and the plaintiff was accorded, counsel at public expense, adequate notice and opportunity to be heard. The statute thus satisfies the due process clause. The trial court's denial of the motion to elect was proper.
Plaintiff asserts that the trial court erred in affirming the board action which ordered sterilization. We interpret this as asking that this court review De novo the board's actions and findings. The law does not provide for De novo review in this case. ORS 436.130 (repealed, Oregon Laws 1971, c. 734, § 21) (see n 1), which provides for appeal of sterilization orders, stipulates that
'* * * Such cases shall be tried * * * in the same manner as other appeals in actions at law.'
In law actions the court's findings of fact are treated as a jury's verdict, to be set aside '* * * only when the court can say affirmatively that there is no evidence to support it * * *.' Fields v. Western Union Telegraph Co., 68 Or. 209, 212, 137 P. 200, 201 (1913). Here, as recounted above, there was more than adequate medical testimony to support the Board's findings.
It is now necessary to determine whether the statute denies plaintiff equal protection of the laws.
In Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927), the United States Supreme Court upheld a Virginia sterilization law. Sterilization was considered beneficial to the patient and to society because it allowed people to be discharged from state institutions, to return to the community, and to become self-supporting.
The only other case involving sterilization laws to come before the United States Supreme Court was Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The purpose of the Oklahoma law was to prevent criminal traits from being inherited by ordering the sterilization of those who had been thrice-convicted of various specified felonies. The law was held unconstitutional as a violation of equal protection because there was no rational basis for distinguishing those felonies which...
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Moore's Sterilization, In re
...because of his own mental illness or mental retardation, the state has sufficient interest to order sterilization.' Cook v. State, 9 Or.App. 224, 495 P.2d 768 (1972). The people of North Carolina also have a right to prevent the procreation of children who will become a burden on the 'It ca......
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Moe, Matter of
...as a valid exercise of governmental authority"). But see Sterilization of Moore, 289 N.C. 95, 221 S.E.2d 307 (1976); Cook v. State, 9 Or.App. 224, 495 P.2d 768 (1972). No compulsory sterilization or sterilization based on discredited eugenic theories is involved here, however. The issues pr......
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Truesdell, Matter of, 8226SC482
...the procreation of children who will become a burden on the State. 289 N.C. at 102-103, 221 S.E.2d at 312, citing Cook v. State, 9 Or.App. 224, 495 P.2d 768 (1972) and In re Cavitt, 182 Neb. 712, 157 N.W.2d 171 (1968). As to the latter ground, the Court relied upon the United States Supreme......
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Truesdell, Matter of
...Eberhardy, 102 Wis.2d 539, 307 N.W.2d 881 (1981); Matter of Guardianship of Hayes, 93 Wash.2d 228, 608 P.2d 635 (1980); Cook v. State, 9 Or.App. 224, 495 P.2d 768 (1972). Therefore, we hold that the petitioner who seeks sterilization pursuant to G.S. 35-43 must satisfy the standards listed ......