In Re Eric B.
POCHE, J.
The novel issue presented is whether the juvenile court can order that a dependent minor undergo periodic medical monitoring to detect the possible recurrence of a life-threatening disease notwithstanding objections by the child‘s parents that such would violate their religious beliefs and constitutional rights.
BACKGROUND
The history and pertinent circumstances behind this appeal can be briefly summarized.
The minor, Eric B., was born on November 22, 1980. His parents are Christian Scientists. In September of 1983 the parents noticed a problem with one of Eric‘s eyes and took him to a physician. The initial diagnosis was glaucoma, but further testing disclosed that Eric had retinal blastoma;
In January of 1984 Eric was placed in protective custody. The Sacramento County Department of Social Services thereupon filed a petition pursuant to
The family moved to Contra Costa County once Eric‘s treatment regimen commenced at an Oakland hospital. Pursuant to
The periodic review hearing was conducted by a referee. A reporter‘s transcript of the proceedings before the Sacramento County Juvenile Court was received in evidence. The referee heard testimony from the attending physician, Eric‘s father, and the caseworker. The testimony need not be recounted in detail because its essentials can be reduced to the following: the physician testified that none of the tests performed during Eric‘s therapy program had revealed the presence or recurrence of cancer. The physician nevertheless believed that Eric would be at risk of such unless the “observation phase” procedures were ordered. He recommended that Eric be “monitored for the first two years off chemotherapy.” Eric‘s father explained why he and his wife opposed continuing conventional medical remedies: “The basis is that we are Christian Scientists. Eric is having Christian Science treatment, and we believe that he should have only Christian Science treatment.” The caseworker testified in effect that she had adopted the physician‘s recommendation in her supplemental report to the court because this was invariable practice of the social services department.
On February 27, 1985, the referee made an order continuing Eric‘s dependent child status; directed that Eric‘s physicial care and custody remain with his parents; and that “the parents follow the treatment and medical procedures recommended by the attending physician.” As authorized by
REVIEW
I
(1) The parents first contend that the juvenile court lacked jurisdiction to continue Eric‘s dependency status. They reason that jurisdiction could be established pursuant to
The parents have not identified any California decision addressing this precise question. Independent research has discovered nothing on point from this state. There is California authority on an analogous subject which, together with a substantial body of decisions from other jurisdictions on the substance of the parents’ contention, are sufficient to defeat the parents’ claim.
In In re David B. (1979) 91 Cal. App.3d 184 [154 Cal. Rptr. 63], the issue before the court was whether a mother‘s parental rights had been properly terminated pursuant to
It is indisputable that there can be no greater intrusion by the state into the parent-child relationship than bringing it to an absolute end. Yet this has been done without proof of overt harm to the child. Substantial likelihood is sufficient. Given the qualitatively superior nature of the parental interest and the irreversible nature of the state‘s action in a termination proceeding, there is no reason why the state must make a greater showing in a dependency proceeding in order to effect a decisively less drastic disruption of parental autonomy.
In Mannis v. State (1966) 240 Ark. 42 [398 S.W.2d 206], the issue was whether vaccination of a child could be ordered so that he might attend a private school. The Supreme Court of Arkansas held that a lower court‘s order for the vaccination was proper despite religious objections by the child‘s parents. In In re Rotkowitz (1941) 175 Misc. 948 [25 N.Y.S.2d 624], and Matter of Jensen (1981) 54 Ore.App. 1 [633 P.2d 1302], the courts ordered that an operation be performed to correct a physical deformity, notwithstanding parental objection and the lack of immediate medical necessity. In In re Karwath (Iowa 1972) 199 N.W.2d 147, the Supreme Court of Iowa upheld a lower court order that the adenoids and tonsils be removed from children over a parent‘s religious objections. The court specifically rejected the parent‘s argument that “a showing of medical crisis demonstrating an immediate threat to life and limb is essential” before the state could act. (Id. at pp. 149-150.)
An even more decisive line of authority deals with situations where, over parents’ religious objections, courts have acted to prevent possible harm to unborn infants by ordering blood transfusions for the mother (Raleigh Fitkin-Paul Morgan Mem. Hosp. v. Anderson (1964) 42 N.J. 421 [201 A.2d 537], cert. den., 377 U.S. 985 [12 L.Ed.2d 1032, 84 S.Ct. 1894]; see Jefferson v. Griffin Spalding County Hospital (1981) 247 Ga. 86 [274 S.E.2d 457] [transfusion and caesarean section authorized if needed]) or for the child once it is born. (Hoener v. Bertinato (1961) 67 N.J. Super. 517 [171 A.2d 140].)5 In each of these cases there was no evidence that any actual harm was being inflicted on the unborn child. Yet in each instance, and over parental objection, the state acted to prevent the possibility of harm.
The unusual circumstances of this case lend a plausibility to the parents’ claim that might otherwise be lacking. Granted, there was no clear and present showing of cancer in Eric. But no reason in either law or logic exists to demonstrate why the state, with the substantial interests it is entitled to assert on its own behalf as well as for a child, should be compelled to hold its protective power in abeyance until harm to a minor child is not only threatened but actual. The purpose of dependency proceedings is to prevent risk, not ignore it. We therefore reject the parents’ contention that, as a matter of law, the juvenile court lacked jurisdiction to continue Eric‘s dependency. (See State v. Perricone, supra, 37 N.J. 463 at pp. 474-478 [181 A.2d 751, 757-759], where a substantially similar contention was rejected.) As previously mentioned, the parents’ claim includes an evidentiary element. This aspect we consider next.
II
(2) The parents contend that no substantial evidence supports the referee‘s finding that Eric‘s best interests required continuation of the dependency.
The referee‘s finding is to be reviewed according to familiar rules. We have only to determine whether the finding is supported by substantial evidence, whether contradicted or undisputed. Any conflicts in the evidence are to be
(3) This is not all. “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.” (In re Phillip B., supra, 92 Cal. App.3d 796 at p. 802.) (4) Finally, we recognize that the juvenile court is vested with a “very extensive discretion in determining what will be in the best interests of a child,” and that its determination will not be reversed save for clear abuse of that discretion. (In re Robert D., supra, 151 Cal. App.3d 391 at p. 396.)
(5) The only qualified medical testimony came from Eric‘s attending physician. He was asked “what would be your prognosis for Eric if he was not monitored?” He responded: “[W]e feel there is about a 25 percent chance he might have a recurrence and about a five to ten percent chance he might have a second tumor.... So ... [t]here is maybe a 40 percent chance he would die if there‘s nothing monitored and nothing done about it.” Eric‘s father testified that, unless ordered by the court, he would not have Eric monitored but would instead rely exclusively on “only Christian Science treatment.”6
It is undisputed that Eric has already had one bout with cancer. The testimony of the attending physician supports the conclusion that Eric faced a not insignificant danger of future risk from a recurrence of this life-threatening disease. The testimony of Eric‘s father supports the reasonable inference that, if this danger actualized while Eric was not being monitored but was receiving “only Christian Science treatment,” the disease
The finding also comports with the factors identified in In re Phillip B. Eric faced an appreciable risk of harm from a deadly disease. Medical opinion testimony was uncontradicted on this point. The risks entailed by the monitoring are minimal, although a certain amount of physical discomfort might be expected. The parents concede that Eric is too young to express his own preference regarding Christian Science or conventional medical treatment.
Our conclusions are that the referee‘s finding is supported by substantial evidence (In re Phillip B., supra, 92 Cal. App.3d 796 at p. 802; In re David B., supra, 91 Cal. App.3d 184 at p. 197) and that it cannot be characterized as an abuse of his “very extensive discretion in determining what will be in the best interests of a child.” (In re Robert D., supra, 151 Cal. App.3d 391 at p. 396.)
III
(6) One argument which the parents have asserted at all stages of the dependency proceedings is that California recognizes “the validity of treatment by spiritual means alone.” The centerpiece of their position is
(7) This is more or less what the referee did. In announcing his decision the referee expressly stated “I do consider 300.5,” but because it was “not enough ... that prayer treatment ... should be the only course of treatment,”9 he concluded that Eric‘s best interests would be served by continuing the dependency in order that he could be monitored. We hold that the referee gave proper effect to
(8) The parents contend that the referee denied them due process of law in several aspects of the process by which his decision was reached. They are in effect asserting that they were denied their constitutional right to an impartial tribunal. (See Schweiker v. McClure (1982) 456 U.S. 188, 195 [72 L.Ed.2d 1, 7-8, 102 S.Ct. 1665]; Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242-243 [64 L.Ed.2d 182, 188, 100 S.Ct. 1610]; Lois R. v. Superior Court (1971) 19 Cal. App.3d 895 [97 Cal. Rptr. 158].)
They first attack the referee‘s statement that he would not allow Eric to be treated exclusively by spiritual means absent a showing that it would be 100 percent effective. This they construe to mean that the referee refused to follow
The parents’ next claim that the referee “misunderstood” the evidence presented. They protest the referee‘s statements that: (1) the Christian Science practitioner who was treating Eric (and who testified at the Sacramento proceeding) claimed an 80-85 percent likelihood of a cure from Christian Science treatment; and (2) the parents delayed in getting treatment for Eric once his affliction was discovered. The parents’ first objection is correct: the practitioner made no such claim. The referee‘s second comment appears to have been based upon a medical report which is not a part of the record on appeal and which in any event was made in reference to the initial dependency finding by the Sacramento Juvenile Court. Both comments are of minimal significance and thus would not justify reversal by any standard of prejudice. (
Finally, the parents claim that the referee misconstrued the quantum of risk necessary for continuance of the dependency. This point was considered and rejected in parts II and III, ante. In this connection we note Justice Cardozo‘s celebrated statement equating due process with “the very essence of a scheme of ordered liberty” (Palko v. Connecticut (1937) 302 U.S. 319, 325 [82 L.Ed. 288, 292, 58 S.Ct. 149]), which is commonly cited as one formulation of what is encompassed by the concept of due process. (See, e.g., Roe v. Wade (1973) 410 U.S. 113, 152-153 [35 L.Ed.2d 147, 176-177, 93 S.Ct. 705]; Nash v. City of Santa Monica (1984) 37 Cal.3d 97, 116 [207 Cal. Rptr. 285, 688 P.2d 894], app. dism. (1985) 470 U.S. 1046 [84 L.Ed.2d 807, 105 S.Ct. 1740].) The United States Supreme Court stated that in this type of clash between parents and the state “the very concept of ordered liberty precludes allowing every person to make his own standards on
V
The parties have raised various other contentions, all of which are ancillary to the issues already examined. We do not reach these additional arguments because they would not alter our conclusion that there exists no basis for overturning the order of the referee.
The order is affirmed.
Anderson, P.J., and Channell, J., concurred.
Notes
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We note parenthetically that when the minor‘s condition later became a threat to his life an order for the operation was upheld notwithstanding the statute. (People in Interest of D.L.E. (Colo. 1982) 645 P.2d 271.) The same was the case in State v. Perricone, supra, 37 N.J. 463 [181 A.2d 751] and Matter of Jensen, supra, 633 P.2d 1302.