Truesdell, Matter of

• Decision Date: 07 May 1985
• Docket Number: No. 429PA83,429PA83
• Citation: 329 S.E.2d 630,313 N.C. 421
• Parties: In the Matter of Sophia Renee TRUESDELL (appealed by Mecklenburg County Department of Social Services).
• Court: North Carolina Supreme Court

Page 630

329 S.E.2d 630

313 N.C. 421

In the Matter of Sophia Renee TRUESDELL (appealed by Mecklenburg County Department of Social Services).

No. 429PA83.

Supreme Court of North Carolina.

May 7, 1985.

Ruff, Bond, Cobb, Wade & McNair by Moses Luski, Charlotte, for petitioner-appellant.

Haywood, Carson & Merryman by Eben T. Rawls, Charlotte, for respondent-appellee.

Moore, Van Allen and Allen by C. Steven Mason, Raleigh, for amicus curiae, Mrs. Carole Seate.

Karen Sindelar and R. Bradley Miller, Raleigh, for amicus curiae, Governor's Advocacy Council for Persons with Disabilities.

Deborah Greenblatt, Raleigh, for amicus curiae, Carolina Legal Assistance, Inc.

Blanchard, Tucker, Twiggs, Earls & Abrams by Irvin B. Tucker, Raleigh, for amicus curiae, North Carolina Ass'n for Retarded Citizens.

Shelley T. Eason and Eric R. Spence, Raleigh, for amicus curiae, North Carolina Ass'n for County Directors of Social Services, Inc.

FRYE, Justice.

FACTS

Petitioner, Mecklenburg County Department of Social Services (hereinafter DSS), filed a petition on 30 March 1977, amended on 18 June 1980, pursuant to G.S. 35-36, et seq., requesting the sterilization of respondent, Sophia Renee Truesdell. DSS, in its original and amended complaint, sought the sterilization on the ground that "because of a physical, mental, or nervous disease or deficiency which is not likely to materially improve, the respondent would probably be unable to care for a child or children." Additionally, petitioner alleged in its petition "that the respondent is a mentally retarded person and sterilization would be in the public good and in the best interest of the mental, moral, and physical improvement of the respondent, ..."

A guardian ad litem was appointed for respondent on 30 May 1980 by District Court Judge William A. Jones. On 27 June 1980, the guardian ad litem filed an objection to the petition for sterilization. Following a hearing on the matter, Judge Jones denied the petition, after construing the statute and concluding as a matter of law "that before an order of sterilization can be entered there must be a finding, inter alia, by clear, strong, and convincing evidence, that the respondent is likely to engage in sexual activity," citing and relying upon North Carolina Association for Retarded Children v. State of North Carolina, 420 F.Supp. 451 (M.D.N.C.1976). Also, the court specifically found that there was no evidence that respondent was likely to engage in any sexual activity with any male and made further findings which indicated the lack of a substantial risk of exposure to sexual activity. DSS, pursuant to G.S. 35-44, duly gave notice of appeal, and a trial de novo was held in Superior Court on 30 November 1981 before Judge Kenneth A. Griffin.

During this de novo hearing in Superior Court, Edward C. Holscher, M.D., qualified as an expert in psychiatry and child psychiatry and Charles E. Warner, M.D., qualified as an expert in the field of medicine with an emphasis in pediatrics. The testimony given by these experts was directed to the question of whether respondent's condition met the statutory elements required by G.S. 35-43, and both felt that sterilization by hysterectomy was in the best interest of Sophia. Daisy Vance, Sophia's caretaker, and other staff members and personnel from Sophia's school for the mentally handicapped also testified. The following facts are undisputed: Sophia, who is profoundly retarded, was 18 years of age as of 6 June 1981, with a mental age of three to five years and an I.Q. of 30. Her level of intellectual functioning will not materially improve over time. Sophia is unable to exist without significant assistance from others. Her well being and comfort will always depend upon the willingness of others to protect her and tend to her basic needs. There is no indication that Sophia is infertile. Her regular monthly menstruation makes it reasonable to assume that she ovulates and is fertile. Sophia's mental retardation renders her unable to care for the needs of a child or children.

The evidence in the record also tended to show that Sophia rides the bus to and from the Metro school for the mentally retarded. The bus picks her up and returns her to her doorstep. She never leaves home or school except in the company of school authorities, her foster mother, or an adult approved by her foster mother. She never There was no evidence of Sophia having been sexually active or sexually exploited at school. Daisy Vance did testify that she had observed Sophia rubbing her genital area several years ago and that she had prevented Sophia from continuing such sexual activity since that time. There was testimony that one young man had viewed Sophia as his "girlfriend" and would sometimes hug her. But there were no other reports from school personnel that Sophia masturbated or rubbed her genitals while at school.

runs away from home. She is extremely retiring, shy, and quiet. She does not talk to strangers and does not have friends or social contacts. Her teacher testified that Sophia stays to herself and only moves when asked to. Sophia has not been observed removing her clothes inappropriately during school or engaging in any sexual activity with any other class members at the school.

Testimony indicated that Sophia's menstrual period posed problems for her and her caretaker because Sophia was unable to tell when her menstruation began, and she would pull her pad down and stain her sheets and bed. Testimony was introduced about Sophia's ability to utilize various alternative forms of birth control and also how a hysterectomy would affect her and whether such a surgical procedure was the most desirable method of birth control.

After making thirty-three specific findings of fact relative to the foregoing, Judge Griffin denied the petition, stating in his order:

BASED UPON THE FOREGOING FINDINGS OF FACT THE COURT CONCLUDES AS A MATTER OF LAW THAT Respondent is subject to NCGS Sec. 35-43; that she suffers from a mental disease or deficiency, not likely to materially improve, which renders her unable to care for a child or children; that sterilization would be in the best interest of Respondent. Notwithstanding these conclusions the Court further concludes that the decision in N.C. ASSOCIATION FOR RETARDED CHILDREN v STATE OF NORTH CAROLINA, 430 [sic] F Supp 451 (MDNC 1976) precludes it from granting Petitioner's request for sterilization.

EXCEPTION NO. 1

Said decision indicates that before a sterilization may be granted there must be a showing that Respondent is "likely to engage in sexual activity without using contraceptive devices." In the instant case there is no evidence that Respondent is likely, at present, to engage in sexual activity.

Although the petition was denied and judgment was in favor of respondent, the trial judge requested petitioner's attorney to prepare the order, containing findings of fact and conclusions of law. Respondent promptly filed objections to the findings of fact but did not set forth formal cross assignments of error in the record on appeal. Petitioner gave timely notice of appeal to the Court of Appeals. That court agreed that clear and convincing evidence had been presented that Sophia's condition satisfied the preliminary requisite elements of G.S. 35-43, i.e., that Sophia Truesdell is a mentally retarded person subject to the sterilization statutes with a physical, mental or nervous disease or deficiency that is not likely to materially improve and would probably be unable to care for a child or children.

However, the Court of Appeals, persuaded by the reasoning of the court's decision in North Carolina Association for Retarded Children v. State of North Carolina, 420 F.Supp. 451 (M.D.N.C.1976), held that petitioner failed to prove by clear, strong, and convincing evidence that Sophia was substantially likely to voluntarily or otherwise engage in sexual activity likely to cause impregnation. Furthermore, the court interpreted G.S. 35-43 to include constitutional standards consistent with a strict scrutiny analysis and certain other "constitutional 'best interests' " standards substantially identical to those developed by other jurisdictions. The Court of Appeals held that all these standards must be proved by clear and convincing evidence Based on these grounds, the Court of Appeals unanimously affirmed the trial court's denial of the petition for sterilization. In addition, the court reversed in part and remanded the case to the trial court to correct certain findings of facts and conclusions of law not inconsistent with its opinion. From this unanimous decision, petitioner appeals to this Court pursuant to G.S. 7A-30(1).

before a petition for sterilization could be granted. In addition to the sexual activity requirement, three of these requisite standards were not, in the court's opinion, proved by petitioner.

I.

The primary issue on this appeal is whether the trial court erred in applying the construction of G.S. 35-43 contained within the court's decision in North Carolina Association for Retarded Children v. State of North Carolina, 420 F.Supp. 451 (M.D.N.C.1976), that is, before sterilization may be granted under this statute, DSS must show that respondent would be "likely to engage in sexual activity without using contraceptive devices." Id. at 456. Also to be resolved is whether the Court of Appeals was incorrect in requiring that certain standards, which include specific sexual activity, must be met by the petitioner before a sterilization petition could be granted. Although we modify in some respects the opinion of the Court of Appeals, we basically agree with its rationale and holding. Therefore, our answer to the foregoing questions is no.

Article 7 of Chapter 35 of the General Statutes of North Carolina is entitled "Sterilization of Persons Mentally Ill and Mentally Retarded." Section 35-37 of that article states in relevant part:

The ......