220 Pa. Super. 191 | Pa. Super. Ct. | 1971
Opinion by
Ricky Ricardo Green is the 16 year old son of separated parents, Nathaniel and Ruth Green. Mr. Green pays support as directed by court order, and the child lives with his mother, the appellee. Ricky has had two attacks of poliomyelitis, resulting in his present physical ailments: residual poliomyelitis with weakness of all four extremities and trunk muscles, severe obesity, and paralytic scoliosis secondary to muscle paralysis (a curvature of the spine). As a result of these progressively worsening conditions, the child has become bedridden. He is presently a “sitter”, unable to stand or ambulate due to the collapse of his spine.
A spinal fusion was recommended in 1968 by Dr. Donald A. Nagel, then chief of the spine service at the State Hospital for Crippled Children at Elizabeth-town, Pennsylvania. This recommendation was reiterated by both doctors who testified at the hearing be
Dr. Corn testified that in order to undertake the recommended operation permission for a blood transfusion is a necessity. He stated that any major surgery necessarily involves some danger, and that blood transfusions in and of themselves entail some danger. However, Dr. Corn further indicated that all precautions are taken to minimize the medically acceptable risks, and that the State Hospital has had great success with surgery of this type.
Mrs. Green is a Jehovah’s Witness. She has no objection to the operation (R. 25a), but feels strongly that her religious principles prohibit any blood transfusions
This action was brought by appellant under the Juvenile Court Law, Act of June 2, 1933, P.L. 1433, §1, as amended, 11 P.S. §243 et seq. (1965), which provides that the court may “[cjommit a child to the care, guidance and control of some reputable citizen” if the child is neglected, and such action is in his best interests and welfare. 11 P.S. §250. A “neglected child” is defined as including: “A child whose parent . . . neglects or refuses to provide proper or necessary subsistence, education, medical or surgical care, or other care necessary for his or her health, morals or well-being.” (Emphasis added.) 11 P.S. §243(5) (c). The court below correctly concluded that “[i]n the opinion of two eminent physicians, the medical care which they advise is both proper and necessary for the child’s health.” (Emphasis added.) R 33a. The court implicitly adopted this uncontradicted testimony indicating that the statutory standard for showing neglect has been met. However, despite this finding, the hearing judge refused to appoint appellant guardian so that he could consent to the necessary transfusion. Her opinion states that to allow the transfusion would be contrary to the religious faith of the mother, and while the operation would improve the health of the child, this was not an emergency situation. On this basis she refused to appoint a guardian.
Under the Juvenile Court Law, the courts of this Commonwealth can order the appointment of a guardian for a child where the natural parents refuse to provide necessary medical care. See Marsh’s Case, 140 Pa. Superior Ct. 472, 14 A. 2d 368 (1940). Further,
In re Sampson, 317 N.Y.S. 2d 641 (Fam. Ct. 1970), recently answered this question in the affirmative in an almost identical situation. The case involved a 15 year old boy who required an admittedly dangerous operation for the partial correction of a facial deformity. His mother was a Jehovah’s Witness and opposed the necessary blood transfusions. The court held that despite the fact that there was no immediate threat to the child’s life, the operation would be less risky and of more benefit if performed immediately. Therefore, it found the boy neglected within the meaning of the New York Family Court Act, which is very similar to our statute. After reviewing the decisions involving emergency situations, the court concluded
Therefore, since his mother refuses to allow the surgery necessary for his health and well-being, we hold that Ricky Ricardo Green is neglected under the Juvenile Court Law, supra.
The order of the court below is reversed and the case is remanded for the appointment of a guardian consistent with this opinion, to provide necessary medical or surgical care.
Curvature presently measures 94° which severely cramps and depresses the capacity of his lung and cardiac systems.
In People ex rel. Wallace v. Labrenz, 411 Ill. 618, 625, 104 N.E. 2d 769, 773 (1952), cert. denied, 344 U.S. 824 (1952), the Court noted that blood transfusions in and of themselves have “only such attendant risk as is inescapable in all of the affairs of life”. On this basis they distinguished In re Tuttendario, 21 Pa. Dist. 561 (Phila. Quarter Sess. 1912), which dealt with operations involving “substantial risk of life”.
Several other witnesses also testified as to the religious beliefs of the Jehovah’s Witnesses and why they prohibited the transfusions. (B. 26a to R. 30a). See also the excellent review of these beliefs as they relate to blood transfusions in In re Sampson, 317 N.Y.S. 2d 641, at 645-646 (Family Court 1970).
See also those eases Involving emergency situations where transfusions were ordered for adults who objected on religious grounds: Application of the President and Directors of Georgetown College, 331 F. 2d 1000 (D.C. Cir. 1964), cert. denied sub. nom., Jones v. President and Directors of Georgetown College, Inc., 377 U.S. 978 (1964) ; Raleigh-Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A. 2d 537 (1964), cert. denied, 377 U.S. 985 (1964).
We in no way import that this mother failed in her duty to the child in any other respect.