Hofbauer, Matter of

• Decision Date: 10 July 1979
• Parties: , 393 N.E.2d 1009 In the Matter of Joseph HOFBAUER, a Child Alleged to be Neglected. SARATOGA COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. John HOFBAUER et al., Respondents, Robert P. Whalen, as Commissioner of the New York State Department of Health, et al., Intervenors-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 936

419 N.Y.S.2d 936

47 N.Y.2d 648, 393 N.E.2d 1009

In the Matter of Joseph HOFBAUER, a Child Alleged to be Neglected.

SARATOGA COUNTY DEPARTMENT OF SOCIAL SERVICES, Appellant, v. John HOFBAUER et al., Respondents, Robert P. Whalen, as Commissioner of the New York State

Department of Health, et al., Intervenors-Appellants.

Court of Appeals of New York.

July 10, 1979.

Robert Abrams, Atty. Gen. (Douglas K. McGivney, Sp. Asst. Atty. Gen., and Shirley Adelson Siegel, Asst. Atty. Gen., of counsel), for intervenors-appellants and Francis E. Dorsey, Social Services Atty., for appellant

Leslie F. Couch and Mary Anne Tommaney, Albany, for respondents.

Courtnay W. Hall, Saratoga Springs, Law Guardian, for Joseph Hofbauer

OPINION OF THE COURT

JASEN, Judge.

This appeal involves the issue whether a child suffering from Hodgkin's disease whose parents failed to follow the recommendation of an attending physician to have their child treated by radiation and chemotherapy, but, rather, placed their child under the care of physicians advocating nutritional or metabolic therapy, including injections of laetrile, is a "neglected child" within the meaning of section 1012 of the Family Court Act. This case does not involve the legality of the use of laetrile per se in this State inasmuch as neither party contends that a duly licensed New York physician may not administer laetrile to his or her own patients. Nor is this an action brought against a physician to test the validity of his determination to treat Hodgkin's disease by prescribing metabolic therapy and injections of laetrile. Rather, the issue presented for our determination is whether the parents of a child afflicted with Hodgkin's disease have failed to exercise a minimum degree of care in supplying their child with adequate medical care by entrusting the child's physical well-being to a duly licensed physician who advocates a treatment not widely embraced by the medical community.

The relevant facts are as follows: In October, 1977, Joseph Hofbauer, then a seven-year-old child, was diagnosed as suffering from Hodgkin's disease, ¹ a disease which is almost always fatal if left untreated. The then attending physician, Dr. Arthur Cohn, recommended that Joseph be seen by an oncologist or hematologist for further treatment which would have included radiation treatments and possibly chemotherapy, the conventional modes of treatment. Joseph's parents, however, after making numerous inquiries, rejected Dr. Cohn's advice and elected to take Joseph to Fairfield Medical Clinic in Jamaica where a course of nutritional or metabolic therapy, including injections of laetrile, was initiated.

Upon Joseph's return home to Saratoga County in November, 1977, the instant neglect proceeding was commenced, pursuant to article 10 of the Family Court Act, upon the filing of a petition in Family Court by the Saratoga County Commissioner of Social Services. The petition alleged, in substance, that Joseph's parents neglected their son by their failure to follow the advice of Dr. Cohn with respect to treatment and, instead, chose a course of treatment for Joseph in the form of nutritional therapy and laetrile. A preliminary hearing was held and the court, finding "that there exists the probability of neglect of (Joseph) by his parents," ordered that Joseph be temporarily removed from the custody of his parents and placed in St. Peter's Hospital in Albany.

Thereafter, Joseph's parents made an application to have Joseph returned to their custody. A hearing was duly commenced in December, 1977, but the proceeding was suspended for six months when a stipulation was entered into by the parties returning Joseph to the custody and care of his parents, and authorizing Joseph to come under the care of Dr. Michael Schachter, a physician duly licensed in New York who is a proponent of metabolic therapy. The stipulation further provided that at least one other physician would be consulted regularly, with medical reports to be submitted to the court periodically. ²

At the direction of the Appellate Division, a dispositional hearing on the merits of this case was conducted by Family Court in June, 1978. A review of the testimony adduced at the hearing reveals a sharp conflict in medical opinion as to the effectiveness of the treatment being administered to Joseph. The physicians produced by appellants testified, in substance, that radiation and chemotherapy were the accepted methods of treating Hodgkin's disease and that nutritional therapy was an inadequate and ineffective mode of treatment. In addition, two physicians, who by stipulation examined Joseph during the hearing, testified, in essence, that there had been a progression of the disease and denounced the treatment being rendered to Joseph as ineffective.

Two physicians produced by respondents, however, testified that they prescribed nutritional therapy for cancer patients and considered such therapy as a beneficial and effective mode of treatment, although they did not preclude the use of conventional therapy radiation treatments and chemotherapy in some cases. In addition, a biologist testified as to a study which had been conducted which demonstrated significant regression in cancerous tumors in mice which had been treated with amygdalin (laetrile), vitamin A, and proteolytic enzymes. Dr. Schachter, the attending physician, then testified that in his opinion Joseph was responding well to the nutritional therapy and that both his appetite and energy levels were good. Dr. Schachter further stated that he had consulted with numerous other physicians concerning Joseph's treatment, and that he never ruled out the possibility of conventional treatment if the boy's condition appeared to be deteriorating beyond control. Significantly, Joseph's father also testified that he would allow his son to be treated by conventional means if Dr. Schachter so advised. Both appellants' and respondents' witnesses testified as to the potentially dangerous side effects of radiation treatments and chemotherapy which could include, among other things, fibrosis of the body organs, swelling of the heart, impairment of the growth centers and leukemia.

Family Court, finding that Joseph's mother and father are concerned and loving parents who have employed conscientious efforts to secure for their child a viable alternative of medical treatment administered by a duly licensed physician, found that Joseph was not a neglected child within the meaning of section 1012 of the Family Court Act and dismissed the petitions. On appeal, a unanimous Appellate Division affirmed. Leave to appeal to this court was granted by the Appellate Division. There should be an affirmance.

At the outset, we note that our scope of review is narrow in a case, such as this, coming to us with affirmed findings of fact. This is so because this court is without power to review the findings of fact if such findings are supported by evidence in the record. (Matter of Rochester Urban Renewal Agency (Patchen Post), 45 N.Y.2d 1, 7, 407 N.Y.S.2d 641, 642, 379 N.E.2d 169, 170; Matter of Rothko, 43 N.Y.2d 305, 318, 401 N.Y.S.2d 449, 453, 372 N.E.2d 291, 295; Simon v. Electrospace Corp., 28 N.Y.2d 136, 139, 320 N.Y.S.2d 225, 227, 269 N.E.2d 21, 22; Matter of City of New York (Fifth Ave. Coach Lines), 22 N.Y.2d 613, 620-621, 294 N.Y.S.2d 502, 505-506, 241 N.E.2d 717, 719-720; St. Agnes Cemetery v. State of New York, 3 N.Y.2d 37, 40, 163 N.Y.S.2d 655, 658, 143 N.E.2d 377, 379.) Thus, our review is confined solely to the legal issues raised by the parties. (CPLR 5501, subd. (b).)

Our threshold task in this case is, by necessity, the identification of the standard of neglect against which the facts of this case may be measured. So far as is material for the issue under consideration, a neglected child is defined, by statute, to "(mean) a child less than eighteen years of age whose physical * * * condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent * * * to exercise a minimum degree of care in supplying the child with adequate * * * medical * * * care, though financially able to do so." ³ (Family Ct. Act, § 1012, subd. (f), par. (i), cl. (A).)

A reading of this statutory provision makes it clear that the Legislature has imposed upon the parents of a child the nondelegable affirmative duty to provide their child with adequate medical care. What constitutes adequate medical care, however, cannot be judged in a vacuum free from external influences, but, rather, each case must be decided on its own particular facts. In this regard, we deem certain factors significant in determining whether Joseph was afforded adequate medical care.

It is readily apparent that the phrase "adequate medical care" does not require a parent to beckon the assistance of a physician for every trifling affliction which a child may suffer for everyday experience teaches us that many of a child's ills may be overcome by simple household nursing. We believe, however, that the statute does require a parent to entrust the child's care to that of a physician when such course would be undertaken by an ordinarily prudent and loving parent, "solicitous for the welfare of his child and anxious to promote (the child's) recovery." (See People v. Pierson, 176 N.Y. 201, 206, 68 N.E. 243, 244.) This obligation, however, is not without qualification.

It surely cannot be disputed that every parent has a...