Eric B., In re

Decision Date25 February 1987
Citation235 Cal.Rptr. 22,189 Cal.App.3d 996
CourtCalifornia Court of Appeals
PartiesIn re ERIC B., a Juvenile. COUNTY OF CONTRA COSTA DEPARTMENT OF SOCIAL SERVICES, Respondent, v. TED B., et al., Appellants. A031383.
Steven R. Matulich, Sacramento, for appellants

Victor J. Westman, County Counsel, Lorraine M. Walsh, Deputy County Counsel, Martinez, for respondent.

POCHE, Associate Justice.

The novel issue presented is whether the juvenile court can order that a dependent minor undergo periodic medical monitoring to detect the possible recurrence of a life-threatening disease notwithstanding objections by the child's parents that such would violate their religious beliefs and constitutional rights.

BACKGROUND

The history and pertinent circumstances behind this appeal can be briefly summarized.

The minor, Eric B., was born on November 22, 1980. His parents are Christian Scientists. In September of 1983 the parents noticed a problem with one of Eric's eyes and took him to a physician. The initial diagnosis was glaucoma, but further testing disclosed that Eric had retinal blastoma; in simple terms, eye cancer. In November, at the express request and authorization of Eric's parents, his left eye was surgically removed. Tests conducted subsequent to the surgery raised the possibility that not all of the cancer had been extirpated. Chemotherapy and radiation were recommended. The parents refused: they preferred to continue Eric's regular visits with an accredited Christian Science practitioner, which had started before the operation.

In January of 1984 Eric was placed in protective custody. The Sacramento County Department of Social Services thereupon filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (a) 1 to have Eric declared a dependent child in order that the treatment recommendations could be implemented. In January and February of that year the juvenile court of Sacramento County conducted a series of hearings at which it heard evidence regarding the extremely high statistical probability that, without medical treatment, the cancer would reappear and that Eric might possibly die. The juvenile court sustained the petition; adjudged Eric a dependent child; placed him in the custody of his parents; and in effect ordered the parents to facilitate Eric's treatment in accordance with a specified program of spinal taps, chemotherapy, and radiation "until further order."

The family moved to Contra Costa County once Eric's treatment regimen commenced at an Oakland hospital. Pursuant to section 375, jurisdiction over Eric was transferred to the Contra Costa juvenile court, which in August of 1984 continued his status as a dependent child. In December of that year the attending physician advised the Contra Costa County Social Services Department that Eric's court-ordered therapy program would terminate around March of 1985. The physician recommended that Eric enter a two-year "observation phase," which would involve the same types of "determinations" and procedures as the current therapy program but would be "done less frequently." 2 The The periodic review hearing was conducted by a referee. A reporter's transcript of the proceedings before the Sacramento County Juvenile Court was received in evidence. The referee heard testimony from the attending physician, Eric's father, and the caseworker. The testimony need not be recounted in detail because its essentials can be reduced to the following: the physician testified that none of the tests performed during Eric's therapy program had revealed the presence or recurrence of cancer. The physician nevertheless believed that Eric would be at risk of such unless the "observation phase" procedures were ordered. He recommended that Eric be "monitored for the first two years off chemotherapy." Eric's father explained why he and his wife opposed continuing conventional medical remedies: "The basis is that we are Christian Scientists. Eric is having Christian Science treatment, and we believe that he should have only Christian Science treatment." The caseworker testified in effect that she had adopted the physician's recommendation in her supplemental report to the court because this was invariable practice of the Social Services Department.

social services caseworker adopted this [189 Cal.App.3d 1001] recommendation in her supplemental report to the juvenile court for its periodic review hearing (see §§ 364, 366.2) scheduled for February of 1985. The caseworker also advised that "[w]ithout the intervention of the Court, the parents continue to state that they would terminate conventional medical treatment" and would instead "continu[e] with their Christian Science treatments."

On February 27, 1985, the referee made an order continuing Eric's dependent child status; directed that Eric's physicial care and custody remain with his parents; and that "the parents follow the treatment and medical procedures recommended by the attending physician." As authorized by section 252, the parents moved for reconsideration of the referee's order by the juvenile court. The motion was denied, following which the parents commenced this timely appeal. 3

REVIEW
I

The parents first contend that the juvenile court lacked jurisdiction to continue Eric's dependency status. They reason that jurisdiction could be established pursuant to section 300 upon a showing that Eric needed medical treatment; but that once the need for immediate treatment disappeared, jurisdiction could not be continued according to section 364. 4 Much of this contention as argued by the parents pertains to the sufficiency of the evidence to support the continuation of the dependency, and so will be dealt with in part II, post. The remainder of the contention amounts to a claim that dependency jurisdiction can be neither initiated nor continued in the absence of a clear and present need for treatment.

The parents have not identified any California decision addressing this precise question. Independent research has discovered nothing on point from this state. There is California authority on an analogous subject which, together with a substantial body of decisions from other jurisdictions on the substance of the parents' contention, are sufficient to defeat the parents' claim.

In In re David B. (1979) 91 Cal.App.3d 184, 154 Cal.Rptr. 63, the issue before the court was whether a mother's parental rights had been properly terminated pursuant to Civil Code section 232 upon a showing of her history of violent behavior toward neighbors and pets. There was no evidence that she had ever displayed violence toward her son. The mother contended that there could not be "a severing of the parental relationship without a showing of actual neglect or mistreatment of the child." Based in part on the rejection of the same contention in In re William L. (1978) 477 Pa. 322, 383 A.2d 1228, cert. den. 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192, the court concluded that parental rights could be terminated in the absence of evidence that a parent's custody entails actual harm to a child. (91 Cal.App.3d 184 at pp. 192-196, 154 Cal.Rptr. 63.) This holding was recently reiterated in In re R.S. (1985) 167 Cal.App.3d 946, 963-965, 213 Cal.Rptr. 690.

It is indisputable that there can be no greater intrusion by the State into the parent-child relationship than bringing it to an absolute end. Yet this has been done without proof of overt harm to the child. Substantial likelihood is sufficient. Given the qualitatively superior nature of the parental interest and the irreversible nature of the State's action in a termination proceeding, there is no reason why the State must make a greater showing in a dependency proceeding in order to effect a decisively less drastic disruption of parental autonomy.

The parents' contention would logically exclude legitimacy to State action which is intended to prevent harm. The idea that State authority can be mobilized only after the fact is untenable. Power is not disabled from dealing with latent risk. The State, having substantial interests in preventing the consequences caused by a perceived danger is not helpless to act until that danger has matured into certainty. Reasonable apprehension stands as an accepted basis for the exercise of State power. This is evident from decisions licensing State action to forestall potential or contingent harm. (See Wisconsin v. Yoder (1972) 406 U.S. 205, 233-234, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 [State may act "if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens"]; accord Kate' School v. Department of Health (1979) 94 Cal.App.3d 606, 620, 156 Cal.Rptr. 529; In re Roger S. (1977) 19 Cal.3d 921, 935, 141 Cal.Rptr. 298, 569 P.2d 1286 [speaking of "the state's interest in limiting parental control when parental action may harm the physical or mental health of the child"]; In re Phillip B. (1979) 92 Cal.App.3d 796, 802, 156 Cal.Rptr. 48, cert. den., sub nom.; Bothman v. Warren B. (1980) 445 U.S. 949, 100 S.Ct. 1597, 63 L.Ed.2d 784 ["The state should examine the seriousness of the harm the child is suffering or the substantial likelihood that he will suffer serious harm"]; see also Comment, Court-Ordered Medical Treatment for Minors: An Alternative Approach to Protect the Child's Best Interests (1985) 7 Whittier L.Rev. 827, 831.) Numerous courts throughout the nation have reached the identical conclusion in situations more directly comparable to the circumstances of this case.

In Mannis v. State (1966) 240 Ark. 42, 398 S.W.2d 206, the issue was whether vaccination of a child could be ordered so that he might attend a private school. The Supreme Court of Arkansas held that a lower court's order for the vaccination was proper despite religious objections by the child's parents. In In re...

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