Guardship of Tulley

• Decision Date: 10 August 1978
• Citation: 83 Cal.App.3d 698,146 Cal.Rptr. 266
• Court: California Court of Appeals Court of Appeals
• Parties: GUARDIANSHIP OF Dianne L. TULLEY, an incompetent person. Edwin Alfred TULLEY, Guardian, Petitioner and Appellant, v. Dianne L. TULLEY, Objector and Respondent. Civ. 42514.

Page 266

146 Cal.Rptr. 266

83 Cal.App.3d 698

GUARDIANSHIP OF Dianne L. TULLEY, an incompetent person.

Edwin Alfred TULLEY, Guardian, Petitioner and Appellant, v. Dianne L. TULLEY, Objector and Respondent.

Civ. 42514.

Court of Appeal, First District, Division 2, California.

Aug. 10, 1978.

Frank C. Vorsatz, Paul F. Vorsatz, Vorsatz & Vorsatz, Burlingame, for appellant.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Ezra Hendon, Deputy State Public Defender, San Francisco, for respondent.

KANE, Associate Justice.

Petitioner, Edwin Alfred Tulley, appeals from the trial court's ruling denying his request to order the sterilization of his natural daughter and ward, Dianne L. Tulley (hereafter Dianne or ward). The facts are virtually undisputed, and may be briefly stated as follows:

On January 7, 1975, appellant was duly appointed the guardian of the person and estate of Dianne. On June 17, 1975, appellant filed a petition for instructions, stating Inter alia that the ward was severely disabled because of profound mental retardation; that due to her incapacity she was unable to comprehend her personal needs or to cope with her menstrual cycle; and that it would be in the ward's best interest that she be surgically sterilized.

The matter was set for hearing on June 2, 1977. The evidence received at the hearing provided factual support to the allegations of the petition. Thus, the record showed that Dianne was suffering from cerebral palsy with brain damage. At age 20 she had the intelligence and comprehension of a three-year-old child. As a consequence, she was not only unable to comprehend the normal bodily function of the menstrual cycle, but was also incapable of attending to its attendant sanitary needs.

The medical testimony ruled out the probability that the severe retardation would change to any extent in the future. It was further established that although Dianne was capable of engaging in sexual intercourse, the potential pregnancy resulting therefrom would cause psychiatric harm. Based upon these facts, the medical experts concluded that a hysterectomy operation, which would remove the uterus without "unsexing" the patient, would be the right step to take and would also be in the best interest of the ward. While agreeing that the proposed sterilization would be justified both medically and socially and would serve the best interest of Dianne as well, the trial court felt compelled to deny the petition on the ground that the court was not authorized to approve or order the involuntary sterilization of an incompetent person who is unable to give her consent.

Since the facts of the case are undisputed, the matter to be decided on appeal is purely legal. Stated in broad terms, it calls for a determination whether in the absence of statute the court is authorized to order the involuntary sterilization of a mentally incompetent ward where, as here, the guardian consents to such operation, and the procedure suggested is justified both medically and socially. Appellant assiduously argues that in such an instance the court, even in the absence of specific statutes, should possess the legal authority to order sterilization as a matter of common law and/or as a constitutional mandate. We disagree with appellant and affirm the order.

To begin with, it has been widely recognized that sterilization (even if medically and socially indicated) is an extreme remedy which irreversibly denies a human being the fundamental right to bear and beget a child. Accordingly, the overwhelming majority of courts hold that the jurisdiction to exercise such awesome power may not be inferred from the general principles of common law, but rather must derive from specific legislative authorization. The position of case law is thus clear that in the absence of specific statutory authority the courts may not order the sterilization of a mentally defective person (Sparkman v. McFarlin (7th Cir. 1977) 552 F.2d 172, 175, reversed on other grounds in Stump v. Sparkman (1978) --- U.S. ----, 98 S.Ct. 1099, 55 L.Ed.2d 331; Wade v. Bethesda Hospital (S.D.Ohio 1971) 337 F.Supp. 671, 674; Frazier v. Levi (Tex.Civ.App.1969) 440 S.W.2d 393, 394; Holmes v. Powers (Ky.1968) 439 S.W.2d 579; In Interest of M. K. R. (Mo.1974) 515 S.W.2d 467, 470; 74 A.L.R.3d 1210, 1212-1213).

The California law is in full accord with the aforestated principles. The case in point is Guardianship of Kemp (1974) 43 Cal.App.3d 758, 118 Cal.Rptr. 64, where, similar to the case at bench, respondent, the guardian of his incompetent adult daughter, petitioned the court to authorize and order the therapeutic sterilization of the ward. The petition alleged (and the medical evidence bore out the proposition) that the ward was capable of engaging in sexual activities, but was mentally unable to understand the result and implications of such activity; that the pregnancy of the ward would be an obvious probable result of such action; and that the mental deficiencies of the incompetent mother might be transmitted to any child born to her. The probate court found on the basis of this evidence that the sterilization of the ward was justified and issued an order authorizing the surgical procedure. In reversing the order, the reviewing court pointed out that there is no case law in California authorizing the sterilization of a mentally incompetent ward, nor is there any statute which would specifically confer such power upon the probate court. The only statute that provides for the sterilization of certain mentally disordered or mentally retarded persons is Welfare and Institutions Code, ¹ section 7254, which, however, allows said drastic procedure only with respect to persons committed to mental hospitals and only under the limited conditions specified in the statute. ² In holding that the order of the probate court authorizing sterilization was in excess of its jurisdiction, the court placed special emphasis on the circumstance that the out-of-state authorities almost unanimously proscribed the involuntary sterilization of an incompetent person based on the common law, and that by the enactment of section 7254 the California Legislature strictly limited the scope of legally authorized sterilizations, set up stringent procedural safeguards, and made them Sine qua non to any sterilization carried out by the aid of the court. As the appellate court put it, "in view of the fact that the legislature has prescribed a comprehensive scheme requiring examination, notice, administrative hearings, administrative review, and judicial review, It may be concluded that the legislature did not intend that sterilization of the mentally retarded was to be carried out without meeting the requirements imposed by this statute (Welf. & Inst. Code, § 7254)." (Guardianship of Kemp, supra, 43 Cal.App.3d at p. 763, 118 Cal.Rptr. at p. 67; emphasis added.)

In the case at bench, it stands undisputed that, at the time the petition for instructions was filed and the court order was made, Dianne was not committed or admitted to any state hospital for the mentally disordered or mentally retarded, and also that none of the steps prescribed by section 7254 were followed. The conclusion is thus inescapable that the case falls within the purview of Kemp, and the order denying the approval of sterilization must be sustained for this reason alone.

Appellant nonetheless insists that Kemp is not controlling in the instant case. The gist of appellant's argument is that Kemp was decided on the narrow ground that the superior court, sitting in probate, was of limited jurisdiction which, in the absence of statutory authority, was not empowered to order the guardian to consent to the sterilization of the adult incompetent ward. By contrast, argues appellant, in the case at bench the superior court proceeded as a court of general jurisdiction and thus possessed an inherent and unfettered equity power to serve and promote the interest and welfare of the incompetent (cf. Guardianship of Reynolds (1943) 60 Cal.App.2d 669, 675, 141 P.2d 498), which necessarily included the power to consent to the sterilization operation at issue which was manifestly in the best interest of the ward. Appellant's contention must be rejected for at least...