P.S. by Harbin v. W.S., 983S320

• Decision Date: 02 September 1983
• Docket Number: No. 983S320,983S320
• Citation: 452 N.E.2d 969
• Parties: In the Matter of P.S., a minor child By her next friend, Marjorie HARBIN, Appellant, v. W.S., and P.S., Appellees.
• Court: Indiana Supreme Court

Page 969

452 N.E.2d 969

In the Matter of P.S., a minor child By her next friend,

Marjorie HARBIN, Appellant, v. W.S., and P.S., Appellees.

No. 983S320.

Supreme Court of Indiana.

Sept. 2, 1983.

Kenneth J. Falk, Peter L. Cassady, Donald R. Lundberg, Legal Services Organization of Indiana, Inc., Indianapolis, Jane Cullen, Legal Services Organization of Indiana, Inc., Bloomington, for appellant.

Elisabeth M. Daily, Thomas A. Withrow, Diane Hubbard Kennedy, David J. Bodle, Henderson, Daily, Withrow, Johnson & Gross, Indianapolis, for appellees.

PIVARNIK, Justice.

This cause comes to us on a petition to transfer from the Indiana Court of Appeals. The Marion Superior Court, Juvenile Division, refused to grant a permanent injunction which would bar W.S., and P.S., (parents) from having their minor child, P.S., sterilized. The Court of Appeals, Second District, reversed the trial court's decision and remanded the cause with instructions to grant the injunction. P.S. by Harbin v. W.S., (1982) Ind.App., 443 N.E.2d 67.

Although the Court of Appeals held that the trial court had jurisdiction to hear P.S.'s petition, it also held that P.S., made a prima facie case entitling her to injunctive relief and that it was error to require P.S., not the parents, to show that it was not in P.S.'s best interest to be sterilized. Judge Buchanan dissented from the majority opinion, stating that "the juvenile court has jurisdiction to authorize a sterilization if it is demonstrated by clear and convincing evidence that the medical procedure is in the best interest of the child." Judge Buchanan also felt that the procedural posture of the case should not prevent the Indiana appellate courts from holding that a specific enabling statute is not required to authorize a sterilization.

We agree with the position taken in Judge Buchanan's dissent. Accordingly, we grant transfer and vacate the opinion of the Court of Appeals. Our reasons follow.

P.S. has been diagnosed as an autistic child and from the time she was three years, ten months old, has been under the care and treatment of Dr. Marian DeMeyer. P.S. was developmentally disabled prior to thirty months of age. Between her first and second year, P.S. had no inclination to walk or crawl and talking came very slowly. She began to have erratic sleeping patterns, cried a great deal and had uncontrollable tantrums. There was some headbanging in the early years but more frightening, there was a loss of eye contact and she stopped talking. Dr. DeMeyer initially observed that P.S. had an aversion to emotional contacts with people and did not like physical contact of any kind. She had communicative speech but it was described as echohalic, in that she repeated what she heard other people say. P.S. was extremely irritable at an early age and resisted people who tried to train her and educate her. Although she is toilet trained, her patterns here are still erratic.

The testimony indicated that autism can be caused by damage to the central nervous system, possibly from a measles virus or some other virus to which the mother was exposed during pregnancy. P.S. was not positioned for easy delivery at the time of her birth and delivery was extremely difficult. She was blue at birth. The conditions at P.S.'s birth might have affected her central nervous system. Autism can also be caused by a buildup of phenol alamines or essential amino acids in the blood. This buildup is toxic to the brain. Severe dehydration during the first two years of life can result in autism. In diagnosing autism it is particularly important to obtain a complete family history. There is a genetic component to many cases of infantile autism and consequently the history of presenile dementia. There was evidence that P.S.'s grandmother and aunt are suffering from presenile dementia.

P.S. further suffers from a second neurological condition known as dyspraxia, which makes it difficult for her to carry out most motor activities. She can do some things but it is difficult for her. She cannot copy letters well and is unable to space words properly. Although she has limited ability to read and write, she cannot put a line of letters straight across the paper. She has great difficulty with rhythmic activity such as standing on one leg. Autistic children who also have dyspraxia are extremely difficult to manage, train and treat, especially when hyper-irritability is also present. P.S. also suffers from hyper-irritability. P.S.'s I.Q. has fallen from the 55-65 range down to the 40's. In the last testing by Dr. DeMeyer, P.S. had I.Q. scores in the 20's and 30's. She has decelerated rather than accelerated in this area. Testing of children with learning disabilities is important because part of the hope for their future is that they make accelerated progress in their mental age, particularly verbal age and perceptual motor skills. The medical experts found it significant that P.S. has been decelerating since the age of two years, four months, when she was first tested by Gail Landy at Indiana University Medical Center.

P.S. is self-injurious, destructive, bangs her head on hard surfaces, picks at her fingers and arms until they bleed and plays with the blood. She has a fascination with blood and likes to play in it. She inflicts injury upon herself to draw blood and then picks at the injury to make it bleed so she can play with the blood. She seems impervious to pain. Dr. DeMeyer and others have attempted to control this behavior by helmet and soft cloth restraints so that she could not gouge her face. Padded splints were put on P.S.'s arms so she could not hit herself and finally her wrists were tied so she could not get her arms up to her face. Three separate surgical operations were performed on P.S. by Dr. Robert Heimburger, former head of the Department of Neurosurgery at Indiana University. These operations were intended to control P.S.'s destructive behavior. Dr. Heimburger attempted to bring into balance the excitatory and inhibitory functions of the brain. The surgeries were not successful and Dr. Heimburger is of the opinion that further surgery in that direction would not alleviate the problem. After P.S. had surgery she would lie in bed and bang her head against the wall. She had large open sores on the top of her head, on her wrists and fingers where she had gouged them. She had open sores on her head because she pulled her hair.

P.S. had been treated at the Delaware Training Center (DTC), a residential and educational facility located in Bloomington, Indiana, where the staff works with autistic children. She also went to Noble School for over two years and is currently at Spaulding School. In the opinion of Dr. Heimburger, P.S. will be institutionalized for the rest of her life. While at the Delaware Training Center, P.S. had her hands tied. She was extremely self-destructive, pulling hair, biting, and had open sores on much of her body. Dr. Heimburger testified that despite all the protective mechanisms that could be applied, P.S. would bang her head, rip her skin with her fingernails, and resist restraints in order to hurt her own body. It is his opinion that P.S. has severe non-reversible brain damage. Dr. Heimburger testified that the medications, the operant conditioning, and all the training methods that have been applied, including the surgery, have not been sufficient to decrease P.S.'s excitatory responses so that she could function in society in a reasonable and acceptable manner. Dr. Heimburger described P.S.'s self-destructiveness as extremely severe and does not believe there is any surgery that will help at the present time. He believes that it would be very dangerous for P.S. to menstruate. He stated that she becomes extremely excited when she sees her blood and her self-destructive nature indicates that she tears at her own body in order to produce blood when she is in an excited state. In his opinion this presents a life-threatening situation. Also, he knows of no biological reason why P.S. could not menstruate. Dr. Heimburger stated most women who have P.S.'s type of brain damage have an irregular and heavy flow during their menstrual periods and their excitatory episodes are increased markedly by menstruation, probably on a hormonal basis. There is no inhibition of hormonal flow during these times. As a result, P.S. would be more excitable during the pre-menstrual period as well as during the menstrual period than she is otherwise. Dr. Heimburger thinks that to restrain P.S. and physically abuse her in order to keep her from tearing at herself during the menstrual period would be unacceptable. He believes that it would be devastating to P.S. to experience the first menstrual period.

Dr. DeMeyer was also of the opinion that P.S. would be unable to care for herself during her menstrual cycles. P.S. had been known to draw blood from herself by picking at herself and by gouging herself with a fork. Dr. DeMeyer felt P.S. would become agitated over menstruation and would make an effort to find the source of the blood and attempt to keep it flowing. She felt that due to the pattern that P.S. has shown so far it is very reasonable to feel that P.S. might try to induce bleeding by poking into her vagina or abdomen in an attempt to keep the blood flowing. This, of course, would result in hemorrhaging and infection, and possibly death. Furthermore, the burden of the intensive care required to train P.S. at regular monthly intervals to care for herself during her menstrual periods would interrupt her training in other areas and would irritate her to an extent that would increase her head banging and other self-destructive activities.

In addition to Drs. Heimburger and DeMeyer, everyone who had dealt with P.S. in a professional manner shared the opinion that P.S. would be unable to handle the onset of menses. This included Stine Levy, school psychologist at Delaware Training Center (DTC); Joyce Hemming,...