Phillip B., In re

• Decision Date: 08 May 1979
• Citation: 92 Cal.App.3d 796,156 Cal.Rptr. 48
• Court: California Court of Appeals Court of Appeals
• Parties: In re PHILLIP B., a Person Coming Under the Juvenile Court Law. Richard W. BOTHMAN, etc., and Phillip B., Plaintiffs and Appellants, v. WARREN B. et al., Defendants and Respondents. Civ. 44291.

Page 48

156 Cal.Rptr. 48

92 Cal.App.3d 796

In re PHILLIP B., a Person Coming Under the Juvenile Court Law.

Richard W. BOTHMAN, etc., and Phillip B., Plaintiffs and Appellants, v. WARREN B. et al., Defendants and Respondents.

Civ. 44291.

Court of Appeal, First District, Division 4, California.

May 8, 1979.

As Modified on Denial of Rehearing June 7, 1979.

Hearing Denied July 19, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Timothy A. Reardon, William D. Stein, Deputy Attys. Gen., San Francisco, for plaintiffs-appellants.

Leonard P. Edwards, San Jose, for defendants-respondents.

Robert A. Baines, Directing Atty., Santa Clara County Bar Assn., San Jose, amicus curiae on behalf of plaintiffs-appellants.

S. L. Stagnitto, San Jose, amicus curiae on behalf of defendants-respondents.

CALDECOTT, Presiding Justice.

A petition was filed by the juvenile probation department in the juvenile court, alleging that Phillip B., a minor, came within the provision of Welfare and Institutions Code section 300, subdivision (b), ¹ because he was not provided with the "necessities of life."

The petition requested that Phillip be declared a dependent child of the court for the special purpose of ensuring that he receive cardiac surgery for a congenital heart defect. Phillip's parents had refused to consent to the surgery. The juvenile court dismissed the petition. The appeal is from the order.

Phillip is a 12-year-old boy suffering from Down's Syndrome. ² At birth his parents decided he should live in a residential care facility. Phillip suffers from a congenital heart defect a ventricular septal defect ³ that results in elevated pulmonary blood pressure. Due to the defect, Phillip's heart must work three times harder than normal to supply blood to his body. When he overexerts, unoxygenated blood travels the wrong way through the septal hole reaching his circulation, rather than the lungs.

If the congenital heart defect is not corrected, damage to the lungs will increase to the point where his lungs will be unable to carry and oxygenate any blood. As a result, death follows. During the deterioration of the lungs, Phillip will suffer from a progressive loss of energy and vitality until he is forced to lead a bed-to-chair existence.

Phillip's heart condition has been known since 1973. At that time Dr. Gathman, a pediatric cardiologist, examined Phillip and recommended cardiac catheterization to further define the anatomy and dynamics of Phillip's condition. Phillip's parents refused.

In 1977, Dr. Gathman again recommended catheterization and this time Phillip's parents consented. The catheterization revealed the extensive nature of Phillip's septal defect, thus it was Dr. Gathman's recommendation that surgery be performed.

Dr. Gathman referred Phillip to a second pediatric cardiologist, Dr. William French of Stanford Medical Center. Dr. French estimates the surgical mortality rate to be five to ten percent, and notes that Down's Syndrome children face a higher than average risk of postoperative complications. Dr. French found that Phillip's pulmonary vessels have already undergone some change from high pulmonary artery pressure. Without the operation, Phillip will begin to function less physically until he will be severely incapacitated. Dr. French agrees with Dr. Gathman that Phillip will enjoy a significant expansion of his life span if his defect is surgically corrected. Without the surgery, Phillip may live at the outset 20 more years. Dr. French's opinion on the advisability of surgery was not asked.

I

It is fundamental that parental autonomy is constitutionally protected. The United States Supreme Court has articulated the concept of personal liberty found in the Fourteenth Amendment as a right of privacy which extends to certain aspects of a family relationship. (United States v. Orito (1973) 413 U.S. 139, 142, 93 S.Ct. 2674, 37 L.Ed.2d 513 (right of privacy includes right of marriage, procreation, motherhood, child rearing, and education); Roe v. Wade (1973) 410 U.S. 113, 152-153, 93 S.Ct. 705, 35 L.Ed.2d 147 (right of privacy extends to child rearing and education); Wisconsin v. Yoder (1972) 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (parental right to determine child's religious upbringing); Eisenstadt v. Baird (1972) 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (right to obtain contraceptives); Griswold v. Connecticut (1965) 381 U.S. 479, 485-486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (right to marital privacy); Skinner v. Oklahoma (1942) 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (right to marriage and procreation); Pierce v. Society of Sisters (1925) 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (liberty of parents to direct education of their children); Meyer v. Nebraska (1923) 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (liberty of parents to raise child).) "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." (Prince v. Massachusetts (1944)321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645.)

Inherent in the preference for parental autonomy is a commitment to diverse lifestyles, including the right of parents to raise their children as they think best. Legal judgments regarding the value of childrearing patterns should be kept to a minimum so long as the child is afforded the best available opportunity to fulfill his potential in society.

Parental autonomy, however, is not absolute. The state is the guardian of society's basic values. Under the doctrine of Parens patriae, the state has a right, indeed, a duty, to protect children. (See e. g., Prince v. Massachusetts, supra, 321 U.S. 158 at p. 166, 64 S.Ct. 438.) State officials may interfere in family matters to safeguard the child's health, educational development and emotional well-being.

One of the most basic values protected by the state is the sanctity of human life. (U.S.Const., 14th Amend., § 1.) Where parents fail to provide their children with adequate medical care, the state is justified to intervene. However, since the state should usually defer to the wishes of the parents, it has a serious burden of justification before abridging parental autonomy by substituting its judgment for that of the parents.

Several relevant factors must be taken into consideration before a state insists upon medical treatment rejected by the parents. The state should examine the seriousness of the harm the child is suffering or the substantial likelihood that he will suffer serious harm; the evaluation for the treatment by the medical profession; the risks involved in medically treating the child; and the expressed preferences of the child. Of course, the underlying consideration is the child's welfare and whether his best interests will be served by the medical treatment.

Section 300, subdivision (b), permits a court to adjudge a child under the age of 18 years a dependent of the court if the child is not provided with the "necessities of life."

The trial judge dismissed the petition on the ground that there was "no clear and convincing evidence to sustain this petition."

The rule is clear that the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (See 6 Witkin, California Procedure (2d ed. 1971) Appeal, § 245, p. 4236.) The "clear and convincing evidence" standard of proof applies only to the trial court, and is not the standard for appellate review. (See Crail v. Blakely (1973) 8 Cal.3d 744, 750, 106 Cal.Rptr. 187, 505 P.2d 1027.)

Turning to the facts of this case, one expert witness testified that Phillip's case was more risky than the average for two reasons. One, he has pulmonary vascular changes and statistically this would make the operation more risky in that he would be subject to more complications than if he did not have these changes. Two, children with Down's Syndrome have more problems in the postoperative period. This witness put the mortality rate at five to ten percent, and the morbidity would be somewhat higher. When asked if he knew of a case in which this type of operation had been performed on a Down's Syndrome child, the witness replied that he did, but could not remember a case involving a...