Green, In re

• Decision Date: 14 December 1971
• Citation: 286 A.2d 681,220 Pa.Super. 191
• Parties: In re Ricky Ricardo GREEN. Appeal of Robert W. SANDERSON, Jr., M.D.
• Court: Pennsylvania Superior Court

Page 681

286 A.2d 681

220 Pa.Super. 191

In re Ricky Ricardo GREEN.

Appeal of Robert W. SANDERSON, Jr., M.D.

Superior Court of Pennsylvania.

Dec. 14, 1971.

Michael Minkin, Asst. Atty. Gen., for appellant.

Elliot B. Platt, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

SPAULDING, Judge:

Ricky Ricardo Green is the 16 year old son of separated parents, Nathaniel and Ruth Green. Mr. Green pays support as directed by court order, and the child lives with his mother, the appellee. Ricky has had two attacks of poliomyelitis, resulting in his present physical ailments: residual poliomyelitis with weakness of all four extremities and trunk muscles, severe obesity, and paralytic scoliosis secondary to muscle paralysis (a curvature of the spine). As a result of these progressively worsening conditions, the child has become bedridden. He is presently a 'sitter', unable to stand or ambulate due to the collapse of his spine. ¹

A spinal fusion was recommended in 1968 by Dr. Donald A. Negel, then chief of the spine service at the State Hospital for Crippled Children at Elizabethtown, Pennsylvania. This recommendation was reiterated by both doctors who testified at the hearing below, Robert W. Saunderson, Jr., M.D., Director of the State Hospital (appellant in this action), and Oscar Corn, M.D., acting head of the Division of Orthopedic Surgery at Hahnemann Medical College and Hospital, and spine consultant to the State Hospital. The doctors agreed that if Ricky's present condition is not remedied by surgery, the effect will be a further deterioration, so that eventually he will not be able to sit up and will become a complete invalid. Their testimony further indicated that the proposed operation was necessary for Ricky's physical well-being, and was the only way to preserve for him some chance of a normal life.

Dr. Corn testified that in order to undertake the recommended operation permission for a blood transfusion is a necessity. He stated that any major surgery necessarily involves some danger, and that blood transfusions in and of themselves entail some danger. However, Dr. Corn further indicated that all precautions are taken to minimize the medically acceptable risks, and that the State Hospital has had great success with surgery of this type. ²

Mrs. Green is a Jehovah's Witness. She has no objection to the operation (R. 25a), but feels strongly that her religious principles prohibit any blood transfusions ³ (R. 25a--26a), which are necessary for surgery. This caused appellant to file a petition to be appointed guardian so that he could consent to the blood transfusions. The petition was dismissed by Judge Hazel H. Brown of the Court of Common Pleas of Philadelphia County, Family Division, from which decision this appeal was promptly taken.

This action was brought by appellant under The Juvenile Court Law, Act of June 2, 1933, P.L. 1433, § 1 as amended, 11 P.S. § 243 et seq. (1965), which provides that the court may '(c)ommit a child to the care, guidance and control of some reputable citizen' if the child is neglected, and such action is in his best interests and welfare. 11 P.S. § 250. A 'neglected child' is defined as including:

A child whose parent . . . neglects or refuses to provide proper or necessary subsistence, education, Medical or surgical care, or other care necessary for his or her health, morals or well-being. (Emphasis added.) 11 P.S. § 243(5) (c).

The court below correctly concluded that '(i)n the opinion of two eminent physicians, the medical care which they advise is both Proper and necessary for the child's health'. (Emphasis added.) R. 33 a. The court implicitly adopted this uncontradicted testimony indicating that the statutory standard for showing neglect has been met. However, despite this finding, the hearing judge refused to appoint appellant guardian so that he could consent to the necessary transfusion. Her opinion states that to allow the transfusion would be contrary to the religious faith of the mother, and while the operation would improve the health of the child, this was not an emergency situation. On this basis she refused to appoint a guardian.

This case places before the appellate courts of Pennsylvania another of the many conflicts between the exercise of First Amendment rights by Jehovah's Witnesses and the Commonwealth's police power to safeguard the welfare of its citizens. The First Amendment of the United States Constitution, as applied to the States by the Fourteenth Amendment, provides that the States shall not limit the free exercise of religion. However, the free exercise clause does not guarantee parents complete control, free of all State authority, merely because the parent asserts that his control is based on religion. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.2d 645 (1944), sets our the often quoted definitive statement of law in this area:

'But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. (Citations omitted.) And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's well being, the state as Parens patriae may restrict the parent's control . . .. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience . . .. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health . . ..' 321 U.S. at 166--167, 64 S.Ct. at 442.

The court below determined that the mother's exercise of control here would undoubtedly expose the child to progressively worsening ill health, but it still refused to assert the State's power by finding the child neglected.

Under the Juvenile Court Law, the courts of this Commonwealth can order the appointment of a guardian for a child where the natural parents refuse to provide necessary medical care. See Marsh's Case, 140 Pa.Super. 472, 14 A.2d 368 (1940). Further, several jurisdictions have recognized that the courts have the power and duty to authorize the use of blood transfusions necessary for the immediate preservation of the life of a child, despite the religious objections of the parents. Jehovah's Witnesses in State of Washington v. King County Hospital Unit No. 1, 278 F.Supp. 488 (W.D.Wash.1967); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962), cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952), cert. denied, 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952). ⁴ The question here, however, is whether the State's interest in the health and welfare of this child is sufficient to overcome the religious objections of the parents where no immediate threat to life exists.

In re Sampson, 65 Misc.2d 658, 317 N.Y.S.2d 641 (Fam.Ct.1970), recently...