Lovato v. District Court In and For Tenth Judicial Dist.

• Decision Date: 15 October 1979
• Docket Number: No. 79SA407,79SA407
• Citation: 601 P.2d 1072,198 Colo. 419
• Parties: Rosalie LOVATO, a/k/a Rosalie Trujillo and Laurence A. Ardell and Mickey W. Smith, as Guardians Ad Litem of Jerry Trujillo, Petitioners, v. The DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT, State of Colorado and the Honorable Donald E. Abram, one of the District Judges in and for the Tenth Judicial District, State of Colorado, Parkview Episcopal Hospital, Thomas K. Reichert, M. D., Jerry (NMI) Trujillo, Lawrence Nash Baros and the Pueblo County Department of Social Services, Respondents.
• Court: Colorado Supreme Court

Page 1072

601 P.2d 1072

198 Colo. 419

Rosalie LOVATO, a/k/a Rosalie Trujillo and Laurence A.

Ardell and Mickey W. Smith, as Guardians Ad Litem of Jerry Trujillo, Petitioners, v. The DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT,

State of Colorado and the Honorable Donald E. Abram, one of

the District Judges in and for the Tenth Judicial District,

State of Colorado, Parkview Episcopal Hospital, Thomas K.

Reichert, M. D., Jerry (NMI) Trujillo, Lawrence Nash Baros

and the Pueblo County Department of Social Services, Respondents.

No. 79SA407.

Supreme Court of Colorado, En Banc.

Oct. 15, 1979.

Carl W. Gellenthien, Pueblo, for petitioner Rosalie Lovato, a/k/a Rosalie Trujillo.

Laurence A. Ardell, Pueblo, guardian ad litem, Mickey W. Smith, Pueblo, guardian ad litem, petitioners pro se.

Petersen & Fonda, Thomas T. Farley, Pueblo, for respondent Parkview Episcopal Hospital.

Stephen A. Reed, Asst. County Atty., Peublo, for respondent Pueblo County Dept. of Social Services.

No appearance for other respondents.

GROVES, Justice.

This is an original proceeding to review the order of the respondent district court directing the guardians ad litem of a child to execute a document authorizing the treating physician of the child and the hospital involved to remove all life support devices if in the doctor's opinion the child was legally dead, as defined by the court. The court stayed execution of its order for 10 days in order to permit review of the decision. We issued a rule to show cause and a stay of execution of the order. Later, we discharged the rule and stay, with opinion to follow. This is the opinion.

One of the petitioners, Rosalie Lovato, is the mother of Jerry Trujillo, who was 17 months old on August 14, 1979. At 6:00 a. m. on August 23, 1979 Jerry was discovered at his mother's apartment in Pueblo, Colorado, gagging, spitting up mucous, having difficulty breathing and unresponsive. He was taken to the respondent Parkview Episcopal Hospital. The child had been grossly abused and was not breathing. He had a faint pulse. A mechanical respirator was applied.

On August 23rd the mother was arrested for alleged abuse of the child and the Pueblo County Department of Social Services (Social Services) conducted a preliminary investigation of the family situation. The investigation resulted in the filing by Social Services in the respondent court of a report and a request for an order allowing the filing of a petition in dependency or neglect, for temporary custody, protective orders and the appointment of a guardian ad litem for Jerry. ¹

A shelter hearing pursuant to section 19-2-101, Et seq., C.R.S.1973 (now in 1978 Repl. Vol. 8), was initiated on August 24th to determine the type of temporary care necessary for the child. Both Jerry's parents appeared and were advised of their legal rights in connection with the hearing. It there appeared that the respondent Jerry (NMI) Trujillo, the father of the child, had lost all parental rights. Because the mother indicated that she desired to be represented by counsel, counsel was appointed for her and the shelter hearing was continued until August 29th.

At the shelter hearing on August 29th the court placed temporary custody of the child with Social Services, permitted it to file a petition in dependency or neglect, and appointed petitioners Ardell and Smith as guardians ad litem for the child. Social Services filed a motion requesting a hearing to determine whether the child should be maintained on the mechanical respirator, and the court set the motion for hearing on September 4th. On August 31st the court appointed an independent neurologist to examine the child and to testify regarding his condition.

On September 4th the child's attending physician (the respondent Reichert), his consulting neurologist and the court-appointed neurologist testified. Their testimony detailed the child's medical condition and supported the conclusion of each that prior to the date of the hearing the child had suffered total brain death caused by extensive brain damage resulting from head trauma.

Their clinical examinations of the child revealed the following: he had sustained multiple bruises, was completely comatose, was not breathing spontaneously, and his respiration was maintained entirely by artificial means. His heart was beating and his blood pressure was approximately 6 0/40. He had no spontaneous muscular movements, no reflexes, including stretch of tendon reflexes, and no response to even the most intense pain or other stimuli. Corneal reflexes were absent. His pupils were dilated and fixed, showing no response to light. There were no signs of involuntary physical activity such as swallowing, blinking, yawning and pharyngeal reflexes. Electroencephalogram (EEG) tests were given on August 24th, 27th and 31st. Each showed a complete lack of brain function.

The doctors testified that, while clinical and laboratory criteria used to diagnose brain death are less certain with respect to young children than to older persons, nevertheless more than sufficient time had elapsed to allow a definitive and accurate diagnosis of total and irreversible cessation of brain function.

The experts' prognoses were: that the child's physiological condition would deteriorate rapidly; that his vital functions, which were being maintained by the respirator, would nevertheless deteriorate and ultimately cease; that, even if the child were maintained on the respirator, cardiac arrest would occur within a month or so; and that he would never regain a cognitive state nor ever have spontaneous respiration. Their recommendation to the court was that the respirator and any other artificial mechanisms supporting the vital functions of the child's body be discontinued since the child had suffered brain death.

In the order of September 4th, the trial court found, based on the uncontradicted medical testimony, that: (1) the child had sustained cerebral death as evidenced by total lack of brain activity in both the cortex and the brain stem and by complete absence of both behavioral response and response to stimuli in any manner; (2) the cerebral death was irreversible; and (3) nothing, including maintenance of the child on the respirator, could be done to re-establish spontaneous brain function or respiration.

The court found that each of Jerry's parents was unable and not available to act as a parent. It determined that it had the statutory right to take jurisdiction over such a matter in the shelter hearing and to issue orders for the protection, support or medical treatment of the child.

Following these findings of fact, the court identified the major issue before it as the definition of death in Colorado. It concluded that the legal definition of death in Colorado is that state which occurs when it is determined by a physician, based on reasonable medical standards, that there is no spontaneous brain function and either spontaneous respiratory function or spontaneous circulatory function cannot be restored by resuscitation or supportive maintenance.

The court ordered the guardians ad litem of Jerry to execute a document authorizing the treating physician and Parkview Hospital to remove all extraordinary devices, such as the respirator, if in the doctor's opinion the legal standard of cerebral death set forth by the court had been met. As mentioned, the court stayed execution of its order to provide time for this court to act.

I

The mother claims that the respondent court, acting as a juvenile court, exceeded its jurisdiction and abused its discretion when it ordered discontinuance of life support systems and resuscitative efforts. To support that claim she advances several contentions, which may be summarized as follows: First, the order terminated the parent-child legal relationship in violation of state and federal constitutional provisions guaranteeing her right to privacy and due process and prohibiting cruel and unusual punishment, and in violation of sections 19-1-106 and 19-3-111 and 113, C.R.S.1973 in the Children's Code. Second, the court order defining and applying the definition of brain death in these circumstances invaded the province of the legislature and contravened Colorado's adoption of the common law pursuant to section 2-4-211, C.R.S.1973.

We do not agree with these contentions.

The juvenile court's September 4th order included a finding that jurisdiction existed under the Children's Code (sections 19-1-101, Et seq., C.R.S.1973). We agree. The General Assembly declared the purpose of the Children's Code to be, Inter alia, to secure for each child such care as will best serve his welfare and the interests of society and to remove a child from the custody of his parents only when his welfare and safety would otherwise be endangered. Section 19-1-102, C.R.S.1973. Furthermore, the General Assembly gave to the juvenile court exclusive jurisdiction over any child in need of supervision or who is neglected or dependent, to determine the legal custody of a child, to appoint a guardian or custodian of such a child, and to issue temporary orders providing for medical or surgical treatment as the court deems is in the best interests of a child under its jurisdiction. Section 19-1-104, C.R.S.1973.

We believe the facts of this case exemplify a set of circumstances contemplated by the General Assembly when it enacted the Children's Code and provided for juvenile court jurisdiction. We hold, therefore, that the court had jurisdiction and its action was proper.

The mother builds much of her argument on the assumption that the court terminated her legal parental relationship with her son. We can find no such order in the record, nor can we find even an implied termination of her parental rights. Under the circumstances here before us, the court properly ordered custody of the child be taken from the mother and given to the Department of Social Services. Contrary to petitio...