Terwilliger, Matter of

• Decision Date: 24 September 1982
• Citation: 304 Pa.Super. 553,450 A.2d 1376
• Parties: In the Matter of Mildred J. TERWILLIGER, an alleged incompetent. Appeal of Mildred J. TERWILLIGER.
• Court: Pennsylvania Superior Court

Page 1376

450 A.2d 1376

304 Pa.Super. 553

In the Matter of Mildred J. TERWILLIGER, an alleged incompetent Appeal of Mildred J. TERWILLIGER.

Superior Court of Pennsylvania.

Argued April 26, 1982.

Filed Sept. 24, 1982.

Sharon L. Smith, Brookville, for appellant.

David G. Matson, Brookville, for Melvin and Florence Terwilliger, participating parties.

Lawrence A. Frolik, Pittsburgh, submitted a brief on behalf of American Civil Liberties, participating party.

Eva Borsody Das and Ilene W. Shane, Philadelphia, submitted a brief on behalf of Developmental, participating party.

Before BECK, MONTEMURO and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Jefferson County, Orphans' Court Division, appointing a guardian for Mildred J. Terwilliger and authorizing said guardian to give consent to the sterilization of his ward.

We vacate and remand for proceedings consistent with this Opinion.

The scenario of this case began to unfold with the filing of a Petition for Appointment of Guardian of The Person of Mildred J. Terwilliger by Melvin L. and Florence K. Terwilliger, the parents of the ward. In said Petition, Melvin sought to have Mildred declared incompetent and to have himself appointed as guardian for the purpose of consenting to Mildred's sterilization by means of a tubal ligation. The court, after a hearing, granted both requests by Order dated May 8, 1981. Thereafter, Mildred's court-appointed counsel appealed the Order. Moreover, pursuant to a Petition For Supersedeas filed by counsel for Mildred, the lower court stayed its May 8, 1981, Order pending the outcome of the appeal. See Pa.R.App.P. 1732, 1733 and 1736. Additionally, Mildred's counsel also secured the appointment of Carol Holland as her guardian ad litem.

The issue raised on appeal for our consideration, which all parties concede is one of first impression in this Commonwealth, is whether the trial court had the power to authorize a guardian to consent to the sterilization of a person adjudged incompetent. Inextricably tied to such an issue is the determination of whether there was sufficient evidence presented by the petitioning parties to justify the lower court's ruling that tubal ligation was warranted.

On the question of jurisdiction, we observe that the petition for the appointment of a guardian was filed in the Orphans' Court division of the Court of Common Pleas of Jefferson County. The authority of said court, to entertain such a petition, is specifically set forth in 20 Pa.C.S.A. § 712 (Supp.1982-83) and reads:

§ 712. Nonmandatory exercise of jurisdiction through orphans' court division

The jurisdiction of the court of common pleas over the following may be exercised through either its orphans' court division or other appropriate division:

(1) Title to real estate. The determination of the persons to whom the title to real estate of a decedent or of the creator of an estate or trust has passed by devise or descent or by the terms of the trust instrument where jurisdiction of such estate or trust is exercised through the orphans' court division: Provided, That nothing herein shall be construed to restrict the provisions of section 711 of this code (relating to mandatory exercise of jurisdiction through orphans' court division in general) relating to distribution of real estate in an estate or trust.

(2) Guardian of person. The appointment, control and removal of the guardian of the person of any incompetent.

(3) Other matters. The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans' court division in general) and also matters not enumerated in that section.

(4) Powers of attorney. All matters pertaining to the exercise of powers of attorneys in fact or agents acting under powers of attorney as provided in Chapter 56 (relating to powers of attorney) when the principal is or may be deceased, disabled or incapacitated. (Emphasis added)

Based on the preceding, jurisdiction to hear the instant matter was not restricted solely to the orphans' court, but could have been pursued in another "appropriate division" of the court of common pleas. Id.; see also In re Estate of R. L. L., 487 Pa. 223, 409 A.2d 321 (1979). Thus, it cannot be gainsaid that under 42 Pa.C.S.A. § 931 (1981) the courts of common pleas, "hav[ing] unlimited original jurisdiction of all actions and proceedings," have been vested with the mantle of authority to rule on the petition for the appointment of a guardian. Moreover, under 42 Pa.C.S.A. § 323 (1981), captioned "Powers," and dealing with the general structure and authority of the courts of this Commonwealth, it is set forth that:

"Every court shall have power to issue, under its judicial seal, every lawful writ and process necessary or suitable for the exercise of its jurisdiction and for the enforcement of any order which it may make and all legal and equitable powers required for or incidental to the exercise of its jurisdiction, and, except as otherwise prescribed by general rules, every court shall have power to make such rules and orders of court as the interest of justice or the business of the court may require."

Consequently, it appears that neither by statute nor case law has the jurisdiction granted to the courts of common pleas, in particular the orphans' court division, been circumscribed to foreclose consideration of a petition seeking authorization for a guardian to consent to an incompetent's sterilization. See Stump v. Sparkman, 435 U.S. 349, 356-358, 98 S.Ct. 1099, 1104-1105, 55 L.Ed.2d 331, 338-340 (1978).

Having reached the conclusion that the orphans' court was a proper forum for ruling on the petition in question, we must now decide, as a necessary corollary thereto, whether the relief granted (authority to consent to the performance of a tubal ligation) had any basis in law, be it statutory or judicial. Initially, we observe, and all parties agree, that no statute exists in Pennsylvania that specifically authorizes a guardian to consent to a sterilization operation on behalf of his or her ward.

Although a court-appointed "guardian" is vested with the "care and management of the person ... under legal disability[,]" 46 P.S. § 601(47) (1969); see Daniels v. Metropolitan Life Insurance Co., 135 Pa.Super. 450, 5 A.2d 608 (1939), the appointee, being an officer of the court, is always under the court's control and is subject to its directions as to the person of the ward. See generally Beaver's Estate, 121 Pa.Super. 159, 182 A. 744 (1936); In re Shenk, 5 Lanc.Rev. 361 (1950). This has been interpreted by some courts to mean:

"... that prior judicial approval is required before a guardian may consent to administering or withholding of proposed extraordinary medical treatment. E.g., Guardian of Roe, --- Mass. ---, Mass.Adv.Sh. (1981) 981, 421 N.E.2d 40; In the Matter of Spring, [380 Mass. 629, 405 N.E.2d 115 (1980) ]; Superintendent of Belchertown State School v. Saikewicz, [373 Mass. 728, 370 N.E.2d 417 (1977) ]. Since sterilization is an extraordinary and highly intrusive form of medical treatment that irreversibly extinguishes the ward's fundamental right of procreative choice, we conclude that a guardian must obtain a proper judicial order for the procedure before he or she can validly consent to it. Guardians and parents, therefore, absent statutory or judicial authorization, cannot consent to the sterilization of a ward in their care or custody." In re Matter of Moe, 385 Mass. 555, ---, 432 N.E.2d 712, 716-717 (1982).

We agree with the aforesaid on the basis that the Commonwealth, acting in its role as parens patriae, has the right and the duty to act to protect its weaker members. See In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) (termination of parental rights); see also In re Green, 273 Pa.Super. 397, 417 A.2d 708 (1980) (involuntary commitment); Commonwealth v. Johnson, 211 Pa.Super. 62, 234 A.2d 9 (1967) (juvenile proceedings); Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965) (child support); Commonwealth ex rel. Tate v. Shovlin, 205 Pa.Super. 370, 208 A.2d 924 (1965) (proceedings under the mental health act).

Despite the fact that the doctrine of parens patriae has been subject to criticism, see, e.g., In re Gault, 387 U.S. 1, 16, 87 S.Ct. 1428, 1437-38, 18 L.Ed.2d 527 (1967), there is general agreement that the state is not precluded from acting to protect its citizenry and to require both parents and children to act in ways beneficial to society. In re William L., supra, 477 Pa. at 338, 383 A.2d at 1236. As stated by our Supreme Court:

"The state's responsibility to protect its weaker members authorizes interference with parental autonomy and decisionmaking in appropriate circumstances. The moral and practical importance of this authority was set forth by Chief Justice Maxey in Commonwealth ex rel. Children's Aid Society v. Gard:

'Societies which like the relator are entrusted by the sovereign with power over the lives of infants should ever bear in mind that consideration for the sensibilities of children and solicitude for their well-being is the hallmark of an humane individual and of a civilized state.'

362 Pa. 85, 99, 66 A.2d 300, 307 (1949)." Id. at 338, 383 A.2d at 1236.

The parens patriae power of our courts derives from the inherent equitable authority of the sovereign to protect those persons within the state who cannot protect themselves because of a legal disability. See 67A C.J.S. Parens Patriae at 159 (1978). Consistent therewith, it is acknowledged that a court's authority is at its widest reach when acting as an equity court to protect the person or property of an incompetent, In re Matter of C. D. M., 627 P.2d 607 (Alaska, 1981); In re Grady, 85 N.J. 235, 426 A.2d 467 (1981), and has been described as "plenary and potent to afford whatever...