P.S. by Harbin v. W.S.

• Decision Date: 08 December 1982
• Docket Number: No. 2-281A39,2-281A39
• Citation: 443 N.E.2d 67
• Parties: P.S., A Minor Child By Her Next Friend, Marjorie HARBIN, Appellant (Plaintiff Below), v. W.S. and P.S., Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 67

443 N.E.2d 67

P.S., A Minor Child By Her Next Friend, Marjorie HARBIN Appellant (Plaintiff Below), v. W.S. and P.S., Appellees (Defendants Below).

No. 2-281A39.

Court of Appeals of Indiana,

Second District.

Dec. 8, 1982.

Kenneth J. Falk, Peter L. Cassady, 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, Henderson, Daily, Withrow, Johnson & Gross, Indianapolis, for appellees.

SULLIVAN, Judge.

The Appellant, P.S. (the child), by her next friend, filed a complaint for permanent injunctive and declaratory relief against the Appellees, W.S. and P.S. (parents), who were planning to have her sterilized. The trial court granted a temporary restraining order with extensions, but, after a consolidated hearing on the merits of the preliminary and permanent injunctions pursuant to Ind.Rules of Procedure, Trial Rule 65(A)(2), refused to grant a permanent injunction. This Court stayed the trial court's order pending appeal.

We reverse.

The child presented a number of issues for review. In view of our disposition, however we need only address the following issue: did the trial court err in placing the burden of proof on the child to establish that she should not be sterilized.

The child is a physically healthy female born August 8, 1968. At the time of the judgment of the trial court in this cause, she was twelve years old. She suffers from "moderate" mental retardation, autism and dyspraxia. She is self-destructive and is capable of inflicting substantial harm to her person and environment. She has lived with her parents all her life; for two years, however, she spent five days each week in Bloomington, Indiana at the Developmental Training Center.

The child is continent to a certain extent, but has frequent accidents. She has some self-care capabilities: she can dress herself, brush her hair and teeth, wash and bathe herself and regulate the bath water. However, because of her sometimes intractable nature, her performance of these tasks is not consistent. At the time of trial, she was not yet menstruating.

The child, as part of her self-destructive behavior, manifests a fascination with blood. She picks at her fingers and rubs her arms against sharp objects until they bleed. Unless she is bandaged, she will rub her arms and hands against the floor to open the scabs so that they will bleed anew. There was testimony at trial that the onset of menstruation might cause a severe reaction, and that the child might even attempt to continue the blood flow after it stopped.

During the trial of this cause, the child was transferred to a residential facility for autistic children in New Hampshire. Much of the testimony regarding her capabilities, training, and ability to deal with her menstrual period, however, came from staff at the Developmental Training Center in Bloomington. This facility, until recently, was confined to the treatment of children under twelve. Concededly, the staff at the Center had little experience in training autistic children to cope with menstruation.

In preparation for the child's transfer to New Hampshire and their first long-term separation, her parents decided to have her sterilized. They consulted numerous physicians and other persons regarding their decision. None thought sterilization was improper at that point. The surgery was scheduled to be performed without judicial authorization and without the child's consent. Prior to the planned date, however, the child, by her next friend, instituted this action to enjoin the parents from having the hysterectomy performed.

This case comes to us in a unique posture. In all other recorded cases, the parents or guardians petitioned the court for authority to perform a sterilization. Here, however, the parents take pains to note that their appellate position rejects the necessity of judicial authorization for the operation. ¹ Rather, they contend that the parents' duty to seek medical treatment for their child coupled with the power granted by statute to consent for their child to medical treatment permit them to consent to the sterilization of their child. See I.C. 16-8-3-1 (Burns Code Ed. 1973); I.C. 16-8-4-2.

Parents traditionally have had the power to authorize appropriate medical care for their children, see A.L. v. G.R.H. (1975) 163 Ind.App. 636, 325 N.E.2d 501, cert. denied, (1976) 425 U.S. 936, 96 S.Ct. 1669, 48 L.Ed.2d 178. Nevertheless, cases are legion in which the courts have held that traditional parental rights do not include the right to sterilize, even if the child is mentally handicapped. Id. at 638, 325 N.E.2d at 502. See also Ruby v. Massey (D.Conn.1978) 452 F.Supp. 361; Wade v. Bethesda Hospital (S.D.Ohio 1971) 337 F.Supp. 671, motion for reconsideration denied, 356 F.Supp. 380; Hudson v. Hudson (Ala.1979) 373 So.2d 310; Guardianship of Tulley (1978) 83 Cal.App.3d 698, 146 Cal.Rptr. 266 cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783; Matter of S.C.E. (Del.Ch.1977) 378 A.2d 144; Holmes v. Powers (Ky.1968) 439 S.W.2d 579; In re M.K.R. (Mo.1974) 515 S.W.2d 467; In re Penny N. (1980) 120 N.H. 269, 414 A.2d 541; Application of A.D. (1977) 90 Misc.2d 236, 394 N.Y.S.2d 139, aff'd, (1978) 64 A.D.2d 898, 408 N.Y.S.2d 104; Matter of Guardianship of Eberhardy (1980) 97 Wis.2d 654, 294 N.W.2d 540. As the Supreme Court of Colorado noted:

"Simply allowing the parents or guardians of the mentally retarded person to substitute their decision and consent to sterilization for that of the incompetent person is not an adequate solution to the problem. Consent by parents to the sterilization of their mentally retarded offspring has a history of abuse which indicates that parents, at least in this limited context, cannot be presumed to have an identity of interest with their children. The inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution which infringes their offspring's fundamental procreative rights. See Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978) ...." In re A.W. (Colo.1981) 637 P.2d 366, 370 (footnotes and additional citations omitted).

Accord, Ruby v. Massey, supra, 452 F.Supp. 361; In re Hayes (1980) 93 Wash.2d 228, 608 P.2d 635.

This case does not involve ordinary medical treatment or radical surgery immediately necessary to preserve the life of the child. This operation would irreversibly deny to a human being a fundamental right, the right to choose whether to beget a child. Carey v. Population Services International (1977) 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675. See also Skinner v. Oklahoma (1942) 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. Whatever may be the merits of permanently depriving this child of that right, the case has not reached us in a posture suitable for determining whether the parents have met their burden to show that their child should be sterilized.

Indeed, several courts have held that, absent a statute, they have no jurisdiction, despite the breadth of their equity powers, to authorize a sterilization. See Wade v. Bethesda Hospital, supra (court of limited jurisdiction); Hodson v. Hodson, supra; Guardianship of Tulley, supra; Guardianship of Kemp (1974) 43 Cal.App.3d 758, 118 Cal.Rptr. 64, 74 A.L.R.3d 1202 (court of limited jurisdiction); In re S.C.E., supra; Holmes v. Powers, supra; In re M.K.R., supra; Frazier v. Levi (Tex.Civ.App.1969) 440 S.W.2d 393 (court of limited jurisdiction). Nevertheless, in most recent cases courts have held that they may authorize the sterilization of an incompetent under appropriate circumstances, even in the absence of a statute. Matter of C.D.M. (Alaska 1981) 627 P.2d 607; Matter of A.W. (Colo.1981) 637 P.2d 366; In re Penny N., supra, 120 N.H. 269, 414 A.2d 541; In re Grady (1981) 85 N.J. 235, 426 A.2d 467; Matter of Guardianship of Eberhardy, supra, 102 Wis.2d 539, 307 N.W.2d 881. The courts in these cases rested their determination upon the breadth of their parens patriae equity jurisdiction and pointed to other cases in which a court, in substituting its judgment for that of an incompetent, had authorized various actions. See Hart v. Brown (1972) 29 Conn.Supp. 368, 289 A.2d 386 (kidney transplant); Strunk v. Strunk (Ky.App.1969) 445 S.W.2d 145 (kidney transplant); Superintendent of Belchertown State School v. Saikewicz (1977) 373 Mass. 728, 370 N.E.2d 417 (refusal to submit profoundly retarded man to chemotherapy); In re Schiller (Ch.Div.1977) 148 N.J.Super. 168, 372 A.2d 360 (amputation of leg); In re Quinlan (1976) 70 N.J. 10, 355 A.2d 647, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (discontinuance of life support systems); State v. Perricone (1962) 37 N.J. 463, 181 A.2d 751, cert. denied, 371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (blood transfusion over objections of injured or sick child's parents).

Nevertheless, we need not determine whether a court exercising original and exclusive juvenile jurisdiction would have subject matter jurisdiction to authorize the sterilization of an incompetent minor upon the petition of the parents. But see Stump v. Sparkman, supra, 435 U.S. at 357-59, 98 S.Ct. at 1105-06 (in which the Supreme Court held that an Indiana circuit court as a court of general jurisdiction had jurisdiction to entertain and act upon a petition to sterilize). See also A.L. v. G.R.H., supra, (in which the Vanderburgh Superior Court, vested by statute (I.C. 33-5-43-5) with juvenile jurisdiction, considered and denied a parent's petition to sterilize). ² Instead, we must only determine whether the court here had jurisdiction to hear the complaint of the child. We conclude that it did.

I.C. 31-6-2-1(a) (Burns Repl.1980) provides in part: "A juvenile court has exclusive original jurisdiction ... in the following: ... (8) Proceedings to...