Penny N., In re
| Decision Date | 22 April 1980 |
| Docket Number | No. 79-406,79-406 |
| Citation | 414 A.2d 541,120 N.H. 269 |
| Parties | In re PENNY N. |
| Court | New Hampshire Supreme Court |
Janina Stodolski, Manchester, by brief, guardian ad litem for penny N.
Sulloway, Hollis & Soden, Concord (Dorothy M. Bickford, Concord, waived brief and oral argument), for the parents.
The question raised in this interlocutory transfer by Copadis, J., is whether the probate court has jurisdiction over a case involving sterilization of a minor incompetent. We hold that it does.
The following facts are taken from a report filed by the minor's guardian ad litem in Hillsborough County Probate Court. Penny N., a fourteen-year-old girl, suffers from Downs Syndrome, severe psycho-motor retardation, heart disease and impaired hearing. Her intelligence level, that of a two-year-old, is unlikely to improve. She cannot speak or clothe and feed herself, and she is not toilet trained. Finally, she suffers from severe psychological problems that her doctors believe will be aggravated if she begins menstruation.
Penny N.'s doctors have apparently advised her parents that a hysterectomy should be performed in the near future. The doctors have refused to go forward, however, without a court order granting Penny's guardians permission to authorize the operation. As a result, Penny's parents have petitioned the Hillsborough County Probate Court for their appointment as guardians for the purpose of signing a surgery consent form. The court appointed an independent guardian ad litem to investigate and report to the court. The guardian's report recommended sterilization. Before deciding the appointment issue, the court transferred without ruling the following question of jurisdictional law pursuant to Supreme Court Rule 9: "Does the Probate Court have the necessary authority to appoint a Guardian for the sole purpose of signing a medical consent for a hysterectomy if it is found to be in the best interest of the ward?"
In our opinion the transferred question, as formulated, does not precisely fit the facts of this case. There is no need to appoint Penny's parents as her guardians. RSA 463:4 provides in part:
Parents' Rights. The father and mother of every unmarried minor child are joint guardians of the person of such child . . . .
(Emphasis added.) Furthermore, this court has recognized that parental rights relating to custody and care of minor children occur naturally in our society and are prior to the State itself. State v. Robert H., 118 N.H. 713, 393 A.2d 1387 (1978). It cannot be denied that parents have the duty to recognize a child's symptoms of illness and to seek and follow medical advice. Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1978). It is proper that this duty should fall primarily to parents. The law has long recognized that usually "natural bonds of affection lead parents to act in the best interests of their children." Id. at 602, 99 S.Ct. at 2504; 2 J. Kent, Commentaries on American Law 190. Because RSA 463:4 and our common law require the conclusion that Penny's parents are already her guardians, we read the transferred question to inquire whether in this case the probate court has jurisdiction to authorize Penny's guardians to consent to her sterilization. The answer is yes.
In 1979, the legislature enacted RSA ch. 464-A, which replaced RSA chs. 462 and 464 and substantially revised this State's guardianship law. RSA 464-A:25 I(c) provides that the guardians of incapacitated persons "may give any necessary consent or approval to enable the ward to receive medical . . . care," but "no guardian may give consent for . . . sterilization . . . unless the procedure is first approved by order of the probate court." As we have said, Penny's parents are her guardians. It is also clear that Penny is an "incapacitated person" within the meaning of the statute. RSA 464-A:2 XI. The probate court, therefore, has jurisdiction in this case.
Though RSA ch. 464-A places the issue of...
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