|
(Cite
as: 131 Cal.Rptr.2d 122)
Court
of Appeal, Fourth District, Division 3, California.
In
re CHRISTOPHER I., a Person Coming Under the Juvenile Court
Law.
Orange
County Social Services Agency, Plaintiff and Respondent,
v.
Moises
I., Defendant and Appellant,
Tamara
S., Defendant and Respondent.
No.
G031449.
Feb.
24, 2003.
As
Modified on Denial of Rehearing March 10, 2003.
Review
Denied April 23, 2003.
**124
*538
John L. Dodd, Tustin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Benjamin
P. de Mayo, County Counsel, and Jeannie Su, Deputy County
Counsel, for Plaintiff and Respondent.
Donna
P. Chirco for Defendant and Respondent.
Kathleen
Murphy Mallinger, under appointment by the Court of Appeal, for
the Minor.
**125
OPINION
FYBEL,
J.
Christopher
I., born in September 2001, is a dependent of the
juvenile court as a result of suffering severe physical abuse.
In an unpublished opinion, Tamara
S. v. Superior Court (Aug.
21, 2002, G030646),
2002
WL 1939182, we described the abuse.
We concluded there was substantial evidence to support the juvenile
court's findings by clear and convincing evidence that on December
17, 2001, Christopher was violently shaken and thrown against his
crib railing by his biological father, who had shaken Christopher
on prior
*539
occasions;
and
Christopher's biological mother was unable or unwilling to protect Christopher.
In
our earlier opinion, we concluded that the juvenile court was
permitted to order continuation of life-sustaining medical treatment pending
a court hearing.
In October 2002, the juvenile court held a four-day evidentiary
hearing to determine whether removal of life-sustaining medical treatment was
in Christopher's best interests.
Six medical doctors who were familiar with Christopher and his
condition testified in detail.
Three of these doctors were Christopher's treating physicians, two were
independent pediatric neurologists, and one was an independent pediatrician who
specializes in care for children in hospitals and hospices.
Evidence
at the hearing showed that since December 2001, Christopher has
been comatose, hospitalized in intensive care, and dependent on a
ventilator to breathe.
Christopher is neurologically devastated, is in a persistent vegetative condition,
and has no cognitive function.
Christopher has received heroic medical care in a continuous effort
to sustain his life.
Future medical treatment will be futile.
Even if life-sustaining efforts by machine continue, Christopher will succumb
to complications of treatment.
Counsel
appointed for Christopher as well as counsel for Christopher's biological
mother and father (Tamara S. and Moises I., respectively) participated
fully in the hearing.
Written reports of the Orange County Social Services Agency (SSA)
were presented, and a social worker was cross-examined.
Tamara
sought withdrawal of Christopher's life-sustaining medical treatment;
Moises
opposed this request.
Counsel for Christopher, relying on the unanimous views of the
testifying doctors, agreed that withdrawal of treatment was in Christopher's
best interests.
SSA took no position and submitted the issue to the
court.
The
juvenile court determined that it had the authority to consider
withdrawal of Christopher's life-sustaining medical treatment pursuant to the Welfare
and Institutions Code. The juvenile court concluded there was clear
and convincing evidence that it would be in Christopher's best
interests to withdraw life-sustaining medical treatment, except for nutrition, hydration
and pain medication.
Moises appeals.
We
hold (1) the juvenile court has jurisdiction to determine whether
life-sustaining medical treatment for a dependent child should be withdrawn;
(2)
a decision regarding whether withdrawal of life-sustaining medical treatment is
in the best interests of a dependent child requires consideration
of
*540
the factors identified in this opinion;
(3)
the standard of proof for such determination is clear and
convincing evidence;
(4)
an evidentiary hearing with live testimony must be held;
and
(5) the juvenile court must state its findings on the
record, either orally in open court or in a written
order.
We conclude that in this case the juvenile court applied
the correct legal standards and considered the appropriate**126
factors.
Substantial evidence supports its decision.
Therefore, we affirm.
Moises
does not challenge the sufficiency of the evidence, the clear
and convincing standard of proof, or that the issue before
the juvenile court was the best interests of the child.
Instead, Moises argues the juvenile court did not have the
authority to order removal of life-sustaining medical treatment from a
dependent child.
Moises further contends the juvenile court did not have the
authority to make medical decisions concerning a dependent child, for
whom counsel had been appointed, absent the appointment of a
guardian.
Next, Moises contends for the first time on appeal that
we should reverse the juvenile court's order because of SSA's
alleged inadequacies in giving notice pursuant to the federal Indian
Child Welfare Act. Finally, Moises contends the juvenile court erred
in failing to conduct an examination of Tamara's competency or
to appoint a guardian ad litem for her.
For the reasons explained below, and based on the relevant
authorities, we reject all of Moises's arguments as being without
merit.
We
appreciate the significance of our decision to Christopher, now one
and a half years old.
We reach our conclusions with his fate in our minds
and our hearts.
In making his ruling in the juvenile court, Judge Behn
said, ?I
would ask you to keep Christopher in your prayers and
thoughts, as I have done for these last three or
four months.?
We join in Judge Behn's sentiments, and wish Christopher peace
and serenity.
I.
FACTS
A.
Procedural
history
In
December 2001, when Christopher was three months old, SSA took
him into protective custody.
SSA filed a juvenile dependency petition pursuant to Welfare and
Institutions Code section 300, subdivisions (a), (b) and (e), alleging
that:
Moises
had thrown Christopher against a crib, causing serious brain damage;
Moises
had been arrested for child endangerment;
Moises
had violently shaken Christopher on more than one previous occasion;
Tamara
witnessed Moises throw Christopher into the crib and inflict physical
abuse on Christopher;
Tamara
was unable or unwilling to protect Christopher from harm;
and
Christopher was on life support and would be
*541
neurologically devastated if he survived.
(All
further statutory references are to the Welfare and Institutions Code,
unless otherwise indicated.)
SSA
filed an amended petition on April 2, 2002.
The amended petition restated the allegations of the original petition,
and added the following:
neither
Moises nor Tamara had provided any reasonable explanation for Christopher's
injuries;
their
stories were inconsistent with each other and with their own
earlier statements;
and
Christopher's injuries were consistent with ?
?Shaken
Impact Syndrome.?
?
After
a joint jurisdiction and disposition hearing in May 2002, the
juvenile court found the allegations of the first amended petition
to be true by a preponderance of the evidence, and
found that Christopher was properly within its jurisdiction pursuant to
section 300, subdivisions (a), (b) and (e).
Based on these findings, the juvenile court declared Christopher to
be a dependent child of the juvenile court, pursuant to
section 360, subdivision (d).
The
court also found, based on clear and convincing evidence, that
(1) Christopher had been the victim of severe physical abuse
by Moises;
(2)
Tamara knew or reasonably should have known Moises was physically
abusing Christopher;
(3)
it would be detrimental to Christopher to vest custody with
either of his parents;
and
(4) Christopher's best interests would **127
be served by vesting custody with SSA. The juvenile court
also denied reunification services to both Moises and Tamara, and
set a permanency hearing under section 366.26.
Because
Tamara stated during the disposition hearing that she intended to
authorize withdrawal of Christopher's life support, the juvenile court also
ordered that Christopher's life-sustaining medical treatment could not be withdrawn
absent a further evidentiary hearing and court order.
Moises
filed a notice of intent to file a writ petition
challenging the court's findings and orders in setting the permanency
hearing, but he later abandoned that petition.
Tamara
filed a writ petition challenging the order denying reunification services
and prohibiting the withdrawal of Christopher's life-sustaining medical treatment.
In Tamara
S. v. Superior Court, supra,
G030646, we denied Tamara's writ petition.
On
September 12, 2002, Tamara filed a petition with the juvenile
court for an order authorizing a ?Do
Not Resuscitate?
(DNR) order for Christopher and/or removal of Christopher's life-sustaining medical
treatment.
*542
Moises moved to dismiss the petition on the ground Tamara
lacked standing.
The juvenile court denied Moises's motion without prejudice, citing Tamara
S. v. Superior Court, supra,
G030646:
?I
would just point out to everyone before we hear this
that on page 15 of the opinion that affirmed the
decision, the last line, ?We
agree with SSA that the ultimate decision must be made
after a hearing.
So did Judge Behn. Christopher is a dependent child over
whom the juvenile court has jurisdiction.
Therefore, the court has the statutory responsibility to serve Christopher's
best interest.?
[¶]
And this court's feeling is it doesn't matter who brings
the motion.
This court has an obligation to determine whether life sustaining
medical treatment is in Christopher's best interest, and unless you
can show me that I don't have that authority, this
court is going to conduct a hearing.
[¶]
...
[¶]
...
I think anyone has standing to bring a motion because
the ultimate question here is what's in Christopher's best interest.
[¶]
Christopher-evidence was quite clear that Christopher is on a machine.
The doctors testified that they don't know whether Christopher could
sustain life without those machines.
I don't know what's in Christopher's best interest.
We simply had a jurisdictional hearing.
And at this point, I believe mother has standing to
ask the court to make a determination of what's in
Christopher's best interest.
And I really think that's the crux of her motion.
She's framed it in such a way that she's asking
me to give her the authority.
But the basis of the motion is what's in Christopher's
best interest.
And the court believes that the Fourth District has mandated
that I hold a hearing to determine what's in Christopher's
best interest.?
At
the hearing, Tamara presented the testimony of three of Christopher's
treating physicians (Drs. David Hicks, Ragnar Amlie and Gilbert Umnas),
and two independent pediatric neurologists who had examined Christopher and
reviewed his medical records (Drs. Ira Lott and Perry Lubens).
Tamara also introduced as evidence two current photographs of Christopher,
curriculum vitae for Drs. Lott and Lubens, and two interim
SSA reports regarding Christopher.
Christopher's social worker, who authored the interim SSA reports, was
cross-examined by counsel for Moises and counsel for Christopher.
Christopher's
counsel presented the testimony of Dr. David Sine, an independent
physician who specializes in hospital pediatrics**128
and hospice care.
Dr. Sine had examined Christopher and reviewed his medical records.
A report prepared by Dr. Sine was also offered as
evidence.
Christopher's counsel also offered one current photograph of Christopher, and
the curriculum vitae for Dr. Sine.
Moises
offered no witnesses.
He did, however, submit an offer of proof that a
licensed foster mother was willing to become Christopher's foster mother,
legal guardian, or adoptive parent.
*543
SSSA offered no witnesses or evidence, and took no position
on the merits of the petition.
B.
Evidence
regarding Christopher's condition adduced at the hearing
Christopher
is not brain dead.
?An
individual who has sustained either (1) irreversible cessation of circulatory
and respiratory functions, or (2) irreversible cessation of all functions
of the entire brain, including the brain stem, is dead.?
(Health
& Saf.Code, §
7180,
subd. (a).)
The
testifying doctors agreed that Christopher has some lower- and mid-brain-stem
activity, and therefore he is not brain dead.
Christopher's
life is sustained by a ventilator that operates 24 hours
a day to cause his lungs to fill with and
then expel air, and by a gastrointestinal tube (G-tube) that
provides nutrition.
His numerous medications include medications to reduce pain or discomfort.
Christopher's physical existence is ?100
percent?
dependent on technology.
Christopher has no gag reflex, no cough reflex, no sucking
reflex, and no swallowing reflex.
The
testifying doctors all agreed that Christopher is in a persistent
vegetative state, with no cognitive functioning.
Christopher has no hope of any meaningful recovery.
Christopher has shown no signs of improvement since his admission
to a long-term-care facility.
There are no treatments, experimental or otherwise, that might help
him.
Maintenance of Christopher's life-sustaining medical treatment is futile;
his
condition cannot improve, and his current treatment only keeps his
bodily functions operating, without any hope for future cognitive or
neurological improvement.
At
least once a day, and as often as several times
an hour, Christopher suffers an episode of increased tensing or
stiffening of his muscles;
these
episodes are generally in response to some type of outside
stimulus, such as light, sound or touch.
It is becoming more difficult for the doctors to control
these episodes and calm Christopher with medication.
There
was some disagreement among the doctors as to whether Christopher
feels pain.
Dr. Amlie testified Christopher could not feel pain at a
cerebral level, and the tensing and tremoring he experiences in
response to stimuli are spontaneous brain stem activities over which
he has no control or perception.
Dr. Umnas testified he is ?not
certain that [Christopher] experiences pain.?
Dr. Lott testified Christopher experiences ?deep
pain?
but is not suffering from that pain in a cognitive
sense.
Dr. Lubens testified that ?at
some level [Christopher] experiences the discomfort of pain,?
and Christopher's tremors are activated by and in response to
pain.
While Dr. Lubens
*544
stated that, in his opinion, Christopher is experiencing discomfort, it
would not be possible to determine what the ?depth
of the experience?
would be, and it would not be the same type
of discomfort experienced by someone with cognitive functioning.
Dr. Sine testified Christopher's response to uncomfortable stimuli by tensing
was an indication that he experiences chronic pain, while acknowledging
the concept of pain is **129
still not well understood in the medical community.
Christopher's
physical development has also been negatively impacted by his brain
injury.
Christopher's fontanel (or soft spot), which in normal children remains
open until approximately 18 months of age to accommodate growth
of the brain, closed before Christopher's first birthday.
Christopher suffers from microcephaly, a condition in which the top
part of his head is smaller than average, also as
a result of the lack of normal brain functioning.
The
consensus among the testifying doctors was that Christopher will likely
die as a result of some type of collateral problem,
such as lung damage caused by repeated bouts of pneumonia
and bronchitis, which in turn are caused by an inability
to effectively clear Christopher's bronchial tubes and ?chronic
contamination of the airway.?
The use of life-sustaining medical treatment over an extended period
of time has created complications for Christopher, and these complications
will increase and worsen as time goes on.
Dr. Amlie testified, ?He
will have complications to some of the treatment that's been
given and that is supporting him.
And he will eventually succumb to the complications of the
treatment.?
Long-term
use of artificial respiration through a tracheostomy has potential side
effects such as secretions plugging the tube, which may lead
to pneumonia and bacterial infections.
The use of the ventilator may also result in barotrauma,
or the increase in pressure on the chest wall resulting
in air being forced out of the lungs and into
the surrounding tissue.
Long-term
use of the G-tube to provide nutrition increases Christopher's risk
of liver and kidney damage.
Nutrition passing through the G-tube can cause aspiration pneumonia.
Christopher's
lack of any mobility has resulted in hip dysplasia.
His bones have become osteopenic, and acts as seemingly simple
as changing his diaper have resulted in bone fractures.
Christopher
also stores fluid in his skin and has experienced abnormal
weight gain.
Christopher's edema is indicative of his body's inability to effectively
utilize the nutrition being provided by his G-tube.
He also suffers from pulmonary edema, and increasingly needs his
lungs suctioned.
*545
C.
Medical
conclusions
Christopher's
treating doctors and two of the three independent doctors agreed
that continued life-sustaining medical treatment will not benefit Christopher.
The third independent doctor (Dr. Lott) had no opinion regarding
whether maintenance of life-sustaining medical treatment will benefit Christopher.
All the testifying doctors supported removal of life-sustaining medical treatment
or at least a DNR order.
Dr.
Hicks testified:
?I
think it's important for us to decide what is in
Christopher's best interest.
Not in anybody else's best interest, but Christopher's best interest.
And right now I do not believe in his condition,
that remaining on a ventilator, remaining in a level of
possibl[e] discomfort for his whole life would be in his
best interest.?
Dr.
Umnas testified:
?I
don't see any improvements in [Christopher's] status.
He is just being maintained with the mechanical ventilator.
He has no quality of life.
He can't do any activities of daily living.
His eyes are fixed and very sluggish pupils.
He cannot track.
He cannot speak.
He cannot eat or drink on his own or maintain
his own bowel functions on his own.
And I think he is just being maintained by the
ventilator.?
**130
Dr. Lott testified that, as a neurologist, he had no
opinion regarding whether it was in Christopher's best interests to
maintain life-sustaining medical treatment, but also testified that the treatment
?benefit[s]?
Christopher only in the sense that it prevents him from
dying.
Dr. Lott also testified that Christopher has no hope for
improvement and that maintenance of life support will not change
that fact.
?I
don't think the quality of his life is going to
change from what it is now.
There is no evidence of conscious awareness, no reaction of
any adaptive behavior to external stimuli.
There is no evidence of a functioning mind.
I don't think anything is going to change if those
supports are continued.?
Dr.
Lubens echoed Dr. Lott's testimony.
?I
think Christopher is in a hopeless situation.
I think that he can't improve.
I think that the medical treatment that he has is
futile.
The futility of the treatment, it's only keeping him alive.
And the only thing that happens to him when he
is alive, I think, the only thing he does experience
is pain, and some pain and some discomfort at some
very limited level, [in] some very generalized way.
[¶]
I don't think he experiences anything else but pain, or
nothing.
And I think that there is no point to the
treatment.
There is no hope to make him better.
There is no hope for any improvement in the situation
which is futile.?
Dr.
Lubens further testified that continuing Christopher's life-sustaining medical treatment would
be pointless.
?From
a medical standpoint, it's as a
*546
doctor, there should be a point to treatment.
Treatment should have some goal.
Treatment should be to make the person getting the treatment
better.
And doctors treat diseases and disorders in order to make
sick people well.
And I think there is-the only thing we are doing
with Christopher is in a very heroic way maintaining his
life.
But again a life where there is virtually no consciousness.
[¶]
...
[¶]
And it's not a question, I think, in this situation
of can it be done, but should it be done.
I don't think it should be done.?
When
questioned about what would be the harm in maintaining Christopher
on life-sustaining medical treatment, Dr. Sine replied:
?I
feel that that goes completely against the Hippocratic Oath for
physicians on a physician level in that the number one
clause for the Hippocratic Oath is to do no harm.
[¶]
Clearly we're doing harm with Christopher.
We are allowing him to be in pain.
We are allowing him to continue to have complications with
harm and further medical interventions that cause pain.
[¶]
On a layman's perspective, I would say anyone who feels
that we are not causing him harm just needs to
go into the room and look at him and watch
him for five minutes.
And in five minutes, it becomes quite clear that he
is suffering.?
Christopher's
social worker had no recommendation regarding whether life-sustaining medical treatment
should be maintained or withdrawn.
D.
The
court's ruling
Following
the presentation of evidence and argument, the juvenile court judge
read his ruling into the record.
The court found that it had jurisdiction over Tamara's petition,
pursuant to sections 19, 362, subdivision (a), 245.5, and 369.
The court rejected Moises's argument that the court lacked jurisdiction
over the petition brought by Tamara.
The court determined that (1) Tamara's petition was actually a
motion under section 388, which had been brought to consider
new evidence regarding Christopher's life-sustaining medical treatment;
and
(2) Tamara had an interest in Christopher and his well-being
sufficient to permit a section 388 motion, **131
despite the fact that she had lost custody of him.
The
court also rejected Moises's argument that the court had violated
due process by using the procedures set out in the
Superior Court of Los Angeles County, Local Rules.
The
court then made the following findings and rulings:
?The
evidence is clear and convincing as to the following findings:
*547
?One,
Christopher is in a persistent vegetative condition.
?Two,
that he is neurologically devastated.
?Three,
the medical testimony that life sustaining medical treatment is of
no benefit to Christopher.
?The
medical testimony is consistent that life sustaining medical treatment should
be discontinued.
?Five,
Christopher's chances for recovery are zero.
And that there is no miracle drug or experimental treatments
that are available to Christopher.
?Six,
that Christopher's body is 100 percent dependent on life sustaining
medical treatment.
?The
issue thus framed, should Christopher be kept on life sustaining
medical treatment because it's a benefit or does the burden
of that treatment cause suffering and pain that is actually
harmful.
?The
medical testimony was clear and convincing that Christopher reacts to
stimuli that is discomforting and painful.
The testimony was clear that his reactions are:
one,
increased heart rate;
two,
elevated blood pressure;
three,
sweating;
four,
tensing and toning.
Pain medication is necessary to calm Christopher during these events.
?The
testimony indicates that Christopher may not be aware of pain
as we are.
However, his reactions would indicate circumstantially that the pain is
present.
No other reasonable interpretation can be made.
?The
evidence is clear and convincing that Christopher's bones are becoming
brittle and breaking.
That tensing of his body causes joints to dislocate.
Even the changing of his diaper causes a reaction.
Not a day goes by without this evidence of suffering
and pain.
?The
medical evidence is that the condition Christopher finds himself in
will get worse;
that
the events of tensing, pain, and suffering will increase.
?The
medical evidence is Christopher could live for years in this
condition of pain and suffering.
The doctors cannot say what degree of pain Christopher experiences,
but the circumstantial evidence of his reactions would indicate it
is substantial.
?The
court agrees with Dr. Sine that all the life sustaining
medical treatment is doing is keeping the shell of what
Christopher was alive.
Life is
*548
hope, and Christopher has no hope.
He deserved better from his parents than a world of
pain and darkness.
?In
balancing the evidence, it is clear to this court and
this court is convinced that to continue life sustaining medical
treatment is to continue pain and suffering for Christopher.
[1]
?The
court will sign an order authorizing the treating physicians ...
to withhold all treatment other than nutrition, hydration, and pain
medication.?
The minute order provides:
?Orders
and findings as stated on the record.?
Moises **132
timely appealed.FN1
FN1.
Christopher's
counsel asks this court to dismiss Moises's appeal on the
ground Moises is only Christopher's alleged
father and therefore lacks standing to pursue the appeal.
Moises participated fully in the proceedings below through his counsel,
without objection from any of the parties.
Christopher's counsel waived the issue of Moises's standing to participate
in this matter by failing to raise the issue below.
(In
re Cynthia C.
(1997) 58 Cal.App.4th 1479, 1491, 69 Cal.Rptr.2d 1;
In
re Anthony P.
(1995) 39 Cal.App.4th 635, 641, 46 Cal.Rptr.2d 107.)
In any event, in a prior order we made clear
that any argument or objection based on Moises's paternity status
is irrelevant to the issues presented by this appeal.
II.
APPLICABLE
STANDARDS
[2][3]
There
is no reported case in which a California court has
set forth the standards to apply when deciding whether to
withhold or withdraw life-sustaining medical treatment from a child who
is a dependent of the juvenile court.FN2
In
reaching our decision in this case, we have analyzed California
statutes, case law from California and other states, federal case
law, including cases from the United States Supreme Court, treatises
and commission reports.
FN2.
Withdrawal
of life-sustaining medical treatment is not the same as physician-assisted
suicide.
California courts have correctly observed that the ?decision
to allow nature to take its course is not equivalent
to an election to commit suicide with [medical professionals] aiding
and abetting therein.?
(Bouvia
v. Superior Court
(1986) 179 Cal.App.3d 1127, 1144-1145, 225 Cal.Rptr. 297;
see
also Bartling
v. Superior Court
(1984) 163 Cal.App.3d 186, 209 Cal.Rptr. 220.)
A.
What
constitutes life-sustaining medical treatment?
[4]
Reference
to life-sustaining medical treatment includes not only treatments that might
be considered extraordinary, such as machines to maintain breathing or
circulation, but also the provision of nutrition, hydration and medication.
(Cruzan
v. Director, Mo. Health Dept.
(1990) 497 U.S. 261, 288, 110 S.Ct. 2841, 111 L.Ed.2d
224 (conc. opn. of O'Connor, J.) [?Artificial
feeding cannot readily be distinguished from other forms of medical
treatment?];
Conservatorship
of Drabick
(1988) 200
*549
Cal.App.3d 185, 195, fn. 9, 245 Cal.Rptr. 840;
Bouvia
v. Superior Court, supra,
179 Cal.App.3d 1127, 1141, 1145-1146, 225 Cal.Rptr. 297;
Barber
v. Superior Court
(1983) 147 Cal.App.3d 1006, 1016-1017, 195 Cal.Rptr. 484 [?Medical
procedures to provide nutrition and hydration are more similar to
other medical procedures than to typical human ways of providing
nutrition and hydration.
Their benefits and burdens ought to be evaluated in the
same manner as any other medical procedure?];
Gray
v. Romeo
(D.R.I.1988) 697 F.Supp. 580, 586-587 [?Although
an emotional symbolism attaches itself to artificial feeding, there is
no legal difference between a mechanical device that allows a
person to breathe artificially and a mechanical device that artificially
allows a person nourishment?];
Coord.
Council on Life-Sustaining Medical Treatment Decision Making by the Courts,
Guidelines for State Court Decision Making in Authorizing or Withholding
Life-Sustaining Medical Treatment (1991) pp. 52-53, fn.
73 (Guidelines for State Courts);
President's
Com. for Study of Ethical Problems in Medicine and Biomedical
and Behavioral Research, Deciding to Forego Life-Sustaining Treatment:
Report
on Ethical, Medical, and Legal Issues in Treatment Decisions (1983)
pp.
82-90 (President's Commission).)
This
distinction is not at issue in this case because the
juvenile court did not authorize withdrawal of nutrition, hydration**133
or medication from Christopher.
The analysis that follows, however, would apply equally to another
court's decision to withdraw nutrition, hydration or medication from a
dependent child.
B.
The
decision to withhold or withdraw life-sustaining medical treatment is governed
by consideration of the dependent child's best interests.
[5][6]
Courts
deciding whether to withhold or withdraw life-sustaining medical treatment from
persons not legally competent to make their own medical decisions
have employed one of two decisionmaking models:
the
substituted judgment test and the best interests test.
The substituted judgment test permits a surrogate to make decisions
regarding medical care based on what the patient would have
chosen had he or she been competent.
(Superintendent
of Belchertown State School v. Saikewicz
(1977) 373 Mass. 728, 370 N.E.2d 417, 431;
see
also President's Com., supra,
at pp. 132-133;
Guidelines
for State Courts, supra,
at p. 74.)
This model assumes some understanding of the
patient's wants, desires, feelings, and previous mental and physical states.
(In
re A.C.
(D.C.1990) 573 A.2d 1235, 1249-1250;
President's
Com., supra,
at p. 133;
Guidelines
for State Courts, supra,
at p. 74.)
The substituted judgment test is therefore an inappropriate tool for
making medical decisions for patients like Christopher, who has never
been competent to make his own decisions or express his
emotions and feelings on the subject.
(In
re K.I.
(D.C.1999) 735 A.2d 448, 455-456.)
[7][8]
*550
The best interests model is the correct one to use
in this case.
(Barber
v. Superior Court, supra,
147 Cal.App.3d 1006, 1021, 195 Cal.Rptr. 484.)
Under this model, the decisionmaker is guided by a determination
of what medical treatment is in the patient's best interests.
(Ibid.;
President's
Com., supra,
at pp. 134-135;
Guidelines
for State Courts, supra,
at pp. 74-75.)
In the context of juvenile dependency, weighing the best interests
of the dependent child is always the court's paramount concern.
(In
re Kieshia E.
(1993) 6 Cal.4th 68, 84, 23 Cal.Rptr.2d 775, 859 P.2d
1290.)
Therefore, the use of the best interests test when considering
withdrawal of life-sustaining medical treatment from a dependent child is
particularly appropriate in this case.
C.
The
factors to consider when determining whether to withhold or withdraw
life-sustaining medical treatment from a dependent child.
What
factors should the juvenile court consider in determining whether it
is in a dependent child's best interests to withhold or
withdraw life-sustaining medical treatment?
In Barber
v. Superior Court, supra,
147 Cal.App.3d at page 1021, 195 Cal.Rptr. 484, citing to
President's Commission, supra,
at page 135, the Second Appellate District identified the following
factors to be considered in determining whether to withdraw life-sustaining
medical treatment from a previously competent adult who had become
comatose:
?the
relief of suffering, the preservation or restoration of functioning and
the quality as well as the extent of life sustained.?
Barber
v. Superior Court
emphasized that a court must consider the burdens treatment may
cause to the patient in proportion to the benefits it
may provide.
?A
more rational approach involves the determination of whether the proposed
treatment is proportionate or disproportionate in terms of the benefits
to be gained versus the burdens caused.?
(Id.
at pp. 1018-1019, 195 Cal.Rptr. 484.)
The
California Legislature has recognized that medical technology may prolong the
process of dying and that ?continued
**134
health care [that] does not improve the prognosis for recovery
may violate patient dignity and cause unnecessary pain and suffering,
while providing nothing medically necessary or beneficial to the person.?
(Prob.Code,
§
4650,
subd. (b).)
Although
this statute addresses the right of adult patients to make
their own decisions regarding their health care, including the right
to refuse life-sustaining medical treatment, it also provides us with
further guidance regarding the information a court should consider in
deciding whether life-sustaining medical treatment should be withheld or withdrawn
from a dependent child.
The
Superior Court of Los Angeles County enacted a series of
rules listing factors to consider when determining whether continuance or
withdrawal of life-sustaining medical treatment is in the best interests
of a dependent child,
*551
as follows:
?(a)
Evidence about the minor's present level of physical, sensory, emotional
and cognitive functioning;
(b)
The degree of physical pain resulting from the medical condition,
treatment, and termination;
(c)
The degree of humiliation, dependence and loss of dignity probably
resulting from the condition and treatment;
(d)
The quality of life, life expectancy and prognosis for recovery
with and without treatment;
(e)
The various treatment options, and the risks, side effects and
benefits of each of those options;
(f)
Whether the minor's preference has been or can be ascertained.?
(Super.
Ct.
L.A. County, Local Rules, rule 17.4(h).)
A
virtually identical list of factors appears in the Guidelines for
State Courts, a document intended to provide guidance for trial
and appellate courts that preside over cases involving withdrawal of
life-sustaining medical treatment.
(Guidelines
for State Courts, supra,
at p. 75.)
Courts in many jurisdictions throughout the United States have employed
the same, or virtually the same, factors in considering questions
of withholding or withdrawing life-sustaining medical treatment from incompetent patients.
(See
In
re Truselo
(Del.Fam.Ct., Sept. 19, 2000, No. CN00-09299) 2000 WL 33324536 at
p. *12;
In
re K. I., supra,
735 A.2d 448, 465;
In
re Rosebush
(1992) 195 Mich.App. 675, 491 N.W.2d 633, 640;
Matter
of Conroy
(1985) 98 N.J. 321, 486 A.2d 1209, 1232, 1249;
Matter
of Beth Israel Medical Center
(N.Y.Sup.Ct.1987) 136 Misc.2d 931, 519 N.Y.S.2d 511, 517;
In
re Guardianship of Grant
(1987) 109 Wash.2d 545, 747 P.2d 445, 457.)
[9]
We
conclude that a court making the decision of whether to
withhold or withdraw life-sustaining medical treatment from a dependent child
should consider the following factors:
(1)
the child's present levels of physical, sensory, emotional and cognitive
functioning;
(2)
the quality of life, life expectancy and prognosis for recovery
with and without treatment, including the futility of continued treatment;
(3)
the various treatment options, and the risks, side effects, and
benefits of each;
(4)
the nature and degree of physical pain or suffering resulting
from the medical condition;
(5)
whether the medical treatment being provided is causing or may
cause pain, suffering, or serious complications;
(6)
the pain or suffering to the child if the medical
treatment is withdrawn;
(7)
whether any particular treatment would be proportionate or disproportionate in
terms of the benefits to be gained by the child
versus the burdens caused to the child;
(8)
the likelihood that pain or suffering resulting from withholding or
withdrawal of treatment could be avoided or minimized;
(9)
the degree of humiliation, dependence and loss of dignity resulting
from the condition and treatment;
(10)
the opinions of the family, the reasons behind those opinions,
and the reasons why the family either **135
has no opinion or cannot agree on a course of
treatment;
(11)
the motivations of the family in advocating a particular course
of treatment;
and
(12) the child's preference, if it can be ascertained, for
treatment.
*552
This list is not meant to be exclusive, but is
intended to provide a set of factors to be considered,
analyzed and weighed.
Not all of these factors may be applicable in a
given case.
The court is not limited to consideration of only these
factors, and may take other factors into account when appropriate,
especially as medical science and technology develop.
D.
The
court's decision to withhold or withdraw life-sustaining medical treatment must
be supported by clear and convincing evidence.
[10]
What
is the appropriate burden of proof necessary to sustain the
court's findings that withholding or withdrawal of life-sustaining medical treatment
is in a dependent child's best interests?
The Welfare and Institutions Code requires either proof by a
preponderance of the evidence or clear and convincing evidence, depending
on the rights being adjudicated.
A jurisdictional finding requires proof by a preponderance of the
evidence. (§
355,
subd. (a).) Where the stakes are higher, such as where
the court is making a dispositional finding to remove the
child from the parents' home (§
361,
subd. (c)) or where the court is finding that the
child is adoptable and parental rights should be terminated (§
366.26,
subd. (c)(1)), proof must be by clear and convincing evidence.
Given the impact of this decision on Christopher, imposition of
the highest standard within the Welfare and Institutions Code-the clear
and convincing standard of proof-is appropriate.
Moises did not raise an objection on appeal to the
use of clear and convincing evidence as the standard of
proof, and at oral argument Moises's counsel agreed that this
is the appropriate standard.
The
evidentiary standards employed by other courts considering withholding or withdrawal
of life-sustaining treatment from incompetent patients reinforce our belief that
the clear and convincing standard is the correct one.
(Cruzan
v. Director, Mo. Health Dept., supra,
497 U.S. 261, 282, 110 S.Ct. 2841 (opn. of Rehnquist,
C.J.) [Missouri's requirement of clear and convincing evidence of adult
patient's earlier expressed desire to have life-sustaining treatment withdrawn did
not violate due process when patient's parents sought to use
substituted judgment test to withdraw feeding tube after an accident
caused her to be in a persistent vegetative state];
In
re K. I., supra,
735 A.2d at pp. 456, 463-464 [clear and convincing standard
applied because a DNR order would have severe consequences for
life of minor and would deprive mother of right to
make medical decisions for minor];
In
re Truselo, supra,
No. CN00-09299, 2000 WL 33324536 at p. *13;
see
also Guidelines for State Courts, supra,
at pp. 64-66, and cases cited therein.)
The Superior Court of Los Angeles County, Local Rules regarding
withholding or withdrawal of life-sustaining medical treatment also require that
the court's ruling ?be
based upon clear and convincing evidence of the minor's best
interests.?
(Super.
Ct.
L.A. County, Local Rules, rule 17.4(g)(4).)
*553
E.
A
court deciding whether to withhold or withdraw life-sustaining medical treatment
from a dependent child must hear live testimony, evaluate and
weigh the relevant factors, and make its findings on the
record.
[11]
The
factors relied on by the juvenile court in rendering its
decision must be supported by live testimony at an evidentiary
hearing.
The Superior Court of Los **136
Angeles County, Local Rules, rule 17.4(g)(3) requires that live medical
testimony be presented to a court considering withholding or withdrawal
of life-sustaining medical treatment from a dependent child.
Since all the relevant evidence in this case was presented
through live testimony, we need not consider whether proof by
declaration would suffice on some issue.
A court should not simply count how many of the
factors favor withholding or withdrawal of life-sustaining medical treatment and
how many do not;
the
court must engage in an evaluation of all relevant factors,
giving each factor the weight it may deserve, given the
circumstances of the case.
A court must state its findings on the record, either
orally in open court (as the juvenile court did in
this case) or in a written order.
III.
DISCUSSION
A.
Substantial
evidence supported the juvenile court's determination that withdrawal of life-sustaining
medical treatment was in Christopher's best interests.
In
his appellate briefs, Moises did not address whether withdrawal of
life-sustaining medical treatment is in Christopher's best interests.
At oral argument, Moises's counsel agreed there was substantial evidence
to support the juvenile court's conclusions.
It is nevertheless important that this court review the decision
made by the juvenile court regarding the withdrawal of life-sustaining
medical treatment for Christopher.
It is also important to consider Christopher's dependency status, his
current medical condition and treatment, his chances for recovery, and
the acts and wishes of his biological parents.
These matters give context and meaning to the questions of
the juvenile court's jurisdiction over the decision to withdraw Christopher's
life-sustaining medical treatment.
In addition, ?[i]n
light of the important questions raised by this case, this
court has the discretion to render an opinion where the
issues are of continuing public interest and are likely to
recur in other cases.?
(Dority
v. Superior Court
(1983) 145 Cal.App.3d 273, 276, 193 Cal.Rptr. 288.)
The
juvenile court correctly determined that continuation of life-sustaining medical treatment
would not be in Christopher's best interests.
There was substantial evidence to support the court's findings.
(In
re Jacob
*554
S.
(2002) 104 Cal.App.4th 1011, 1017, 128 Cal.Rptr.2d 654.)
The juvenile court considered the applicable factors and found by
clear and convincing evidence that:
Christopher
has no cognitive function, and is in a persistent vegetative
state;
Christopher's
current treatment is of no benefit to him;
no
treatment will change his current condition;
Christopher
is 100 percent dependent on the ventilator and the G-tube;
immobility
caused by Christopher's brain damage is leading to other medical
problems, which will increase over time;
Christopher
may live for many years in his current vegetative condition,
if life-sustaining treatment continues;
and
circumstantial evidence indicates Christopher is in ?substantial?
pain, and is suffering.
The juvenile court's oral recitation of its findings on the
record did not refer to the opinions of Christopher's family
members.
Those opinions, however, are clear from the record, given that
counsel for both Moises and Tamara set forth their respective
clients' positions regarding withdrawal of life-sustaining medical treatment.
The
juvenile court weighed and balanced the factors.
The testimony from Christopher's treating physicians and the independent physicians
who examined him was both compelling and consistent.
Based
on clear and convincing evidence, the juvenile court determined that
continuation**137
of Christopher's life-sustaining medical treatment would not be in
his best interests.
We hold this determination was supported by substantial evidence, and
the juvenile court did not err in reaching its conclusion.
B.
The
juvenile court had the authority to consider and rule on
withdrawal of Christopher's life-sustaining medical treatment.
1.
The
juvenile court has the statutory authority to consider matters relating
to life-sustaining medical treatment for dependent children within its jurisdiction.
The
juvenile court had jurisdiction over Christopher by virtue of section
300.
The evidence presented at the jurisdiction hearing far exceeded that
necessary to establish by a preponderance of the evidence that
Christopher suffered serious physical harm nonaccidentally inflicted by Moises, and
suffered serious physical harm as a result of Tamara's failure
or inability to protect him. (§
300,
subds.(a) and (b).)
The
evidence also showed that Christopher was under the age of
five and had suffered severe physical abuse by Moises, and
that Tamara knew or reasonably should have known Moises was
abusing Christopher. (§
300,
subd. (e).)
?When
a child is adjudged a dependent child of the court
on the ground that the child is a person described
by Section 300, the court may make any
*555
and all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child, including medical treatment, subject
to further order of the court.?
(§
362,
subd. (a).)
[12][13]
A
competent adult has the right to decide what medical care
to receive.
(Cobbs
v. Grant
(1972) 8 Cal.3d 229, 240, 104 Cal.Rptr. 505, 502 P.2d
1.)
A recognized corollary to this right is the right to
refuse medical treatment.
(Barber
v. Superior Court, supra,
147 Cal.App.3d 1006, 1015, 195 Cal.Rptr. 484.)
The right to refuse or withdraw life-sustaining medical treatment is
a subpart (indeed, the most significant one) of the general
right to refuse medical treatment.
(Prob.Code
§
4650,
subd. (a);
Bouvia
v. Superior Court, supra,
179 Cal.App.3d 1127, 1137, 225 Cal.Rptr. 297;
Bartling
v. Superior Court, supra,
163 Cal.App.3d 186, 193-197, 209 Cal.Rptr. 220.)
The juvenile court's authority pursuant to section 362, subdivision (a),
to make decisions regarding medical treatment for dependent children within
its jurisdiction necessarily includes decisions to refuse or withdraw medical
treatment, including life-sustaining medical treatment.
Other
relevant provisions of the Welfare and Institutions Code illustrate the
juvenile court's authority to make all reasonable orders relating to
medical treatment for a dependent child.
No statute restricts that authority.
For
example, section 202 provides that the Welfare and Institutions Code
must be liberally construed to permit the juvenile court to
obtain care-including medical care-in the dependent child's best interests and
consistent with what the parents should have obtained or authorized.
Section 202 provides in relevant part:
?(a)
...
When the minor is removed from his or her own
family, it is the purpose of this chapter to secure
for the minor custody, care, and discipline as nearly as
possible equivalent to that which should have been given by
his or her parents.
This chapter shall be liberally construed to carry out these
purposes. [¶]
(b) Minors under the jurisdiction of the juvenile court who
are in need of protective services shall receive care, treatment
and guidance consistent **138
with their best interest and the best interest of the
public.?
Under
other sections of the Welfare and Institutions Code, the juvenile
court is given the authority to make medical decisions for
dependent children within its jurisdiction.
The juvenile court's authority is triggered in different ways.
(See
§
369,
subds. (a)-(c).) The juvenile court may also direct orders to
the dependent child's parent or guardian, regarding the child's medical
treatment when necessary and proper for the child's best interests.
(§
245.5.)
In the most general sense, section 19 sets forth the
purpose of the entire Welfare and Institutions Code-to ?establish[
]
programs and services
*556
which are designed to provide protection, support or care of
children, ...
to insure that the rights or physical, mental or moral
welfare of children are not violated or threatened by their
present circumstances or environment.?
In
this case, Tamara filed a petition seeking a DNR order
or an order withdrawing Christopher's life support.
The juvenile court determined this petition to be a section
388 motion.
Whether or not the petition was treated as a section
388 motion, Tamara was entitled to bring the matter before
the juvenile court.
Moises argues that only Christopher's counsel, SSA, or a separate
guardian ad litem appointed for Christopher could have initiated this
proceeding.
We agree with the juvenile court that any parent or
another interested party had the right to bring the matter
before the court.
Once the request to withdraw life-sustaining medical treatment was made,
the juvenile court had the responsibility to fulfill its statutory
obligation to protect the best interests of a child within
its jurisdiction.
The juvenile court accepted and exercised its responsibility by rendering
a decision that life-sustaining medical treatment should be withdrawn from
Christopher, following a full evidentiary hearing.
In doing so, the juvenile court acted with care, thoroughness
and sensitivity.
2.
Case
law supports the inherent authority of the juvenile court to
make decisions regarding life-sustaining medical treatment for dependent children within
its jurisdiction.
[14]
?California
law gives persons a right to determine the scope of
their own medical treatment, [and] this right survives incompetence in
the sense that incompetent patients retain the right to have
appropriate decisions made on their behalf.?
(Conservatorship
of Drabick, supra,
200 Cal.App.3d 185, 205, 245 Cal.Rptr. 840.)
The right of an adult or emancipated minor to determine
the scope of his or her medical treatment includes the
right to refuse medical treatment.
(Prob.Code,
§
4650,
subd. (a).)
Christopher
is a minor and not competent to make his own
medical decisions.
Nevertheless, Christopher has the right to have an appropriate decisionmaker
determine whether withdrawal of life-sustaining medical treatment is in his
best interests.
While it would generally be the right of Christopher's parents
to make the determination of what medical treatment (or cessation
thereof) is in his best interests, there are two reasons
why it was appropriate for the juvenile court in this
case to abrogate those rights.
First, Moises and Tamara, by their actions, forfeited their rights
to determine what is and is not in Christopher's best
interests.
(In
re K. I., supra,
735 A.2d at pp. 453-454 [court had obligation to make
decisions regarding issuance of a DNR order, in part, because
parent's neglect had caused court to exercise
*557
jurisdiction over the child].)
There was proof by clear and convincing evidence that Moises's
actions in severely shaking Christopher and throwing him against his
**139
crib rails directly caused Christopher's current vegetative state.
Such proof also showed that Tamara failed to protect Christopher
from Moises, despite witnessing episodes of shaking prior to the
ultimate one.
[15]
Second,
in a situation where the dependent child's two parents have
a fundamental disagreement over what medical care is appropriate, the
juvenile court has the authority to make the decision that
is in the child's best interests.
(In
re K. I., supra,
735 A.2d at p. 454 [District of Columbia took no
position on issuance of a DNR for comatose child with
severe medical problems;
one
of the child's parents sought a DNR, while the other
was willing to undertake any and all medical care to
keep the child breathing].)
[16][17][18]
The
court has an equitable duty to protect the welfare of
the children within its jurisdiction.
?The
state has a ?parens
patriae interest in preserving and promoting the welfare of the
child....?
?
(In
re Sade C.
(1996) 13 Cal.4th 952, 989, 55 Cal.Rptr.2d 771, 920 P.2d
716, quoting Santosky
v. Kramer
(1982) 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d
599.)
The parens patriae power permits a court with jurisdiction over
an individual under a disability to order withdrawal of his
or her life-sustaining medical treatment.
(In
re Quinlan
(1976) 70 N.J. 10, 355 A.2d 647, 665-666.)
As the court explained in In
re Quinlan,
the first significant case considering the rights of the incompetent
with respect to withdrawal of life-sustaining medical treatment, the courts
have a nondelegable responsibility to make these decisions as a
result of their inherent equitable powers.
(Ibid.)
The
juvenile court was therefore authorized to exercise its parens patriae
power to make medical decisions in Christopher's best interests including,
but not limited to, the decision to withdraw life-sustaining medical
treatment.
3.
The
juvenile court was not required to appoint a guardian for
Christopher.
We
reject Moises's argument that the juvenile court was required to
appoint a guardian for Christopher, or to cede to a
legal guardian the right to decide whether to withdraw Christopher's
life-sustaining medical treatment.
[19]
*558
In dependency cases involving child abuse or neglect, California law
requires the appointment of a guardian ad litem for a
minor. (§
326.5.)
FN3
The same statute expressly provides that this role may be
filled by either the attorney appointed by the juvenile court
to represent the minor's interests, or by a court-appointed special
advocate. (§§
317,
326.5;
In
re Charles T.
(2002) 102 Cal.App.4th 869, 125 Cal.Rptr.2d 868.)
If an attorney is appointed to represent the minor's interests,
the juvenile court need not appoint a separate guardian ad
litem.
(In
re Charles T., supra,
102 Cal.App.4th at p. 879, 125 Cal.Rptr.2d 868.)
While the California Rules of Court permit the juvenile court
to appoint a guardian ad litem to **140
represent a dependent child when appropriate under the circumstances, they
do not require such an appointment.
(Cal.
Rules of Court, rule 1438(f).)
FN3.
?The
Judicial Council shall adopt a rule of court effective July
1, 2001, that complies with the requirement of the federal
Child Abuse Prevention and Treatment Act (Public Law 93-247) for
the appointment of a guardian ad litem, who may be
an attorney or a court-appointed special advocate, for a child
in cases in which a petition is filed based upon
neglect or abuse of the child or in which a
prosecution is initiated under the Penal Code arising from neglect
or abuse of the child.
The rule of court may include guidelines to the courts
for determining when an attorney should be appointed rather than
a court appointed special advocate, and caseload standards for guardians
ad litem.?
(§
326.5.)
Dority
v. Superior Court, supra,
145 Cal.App.3d 273, 193 Cal.Rptr. 288 also supports our conclusion
that the juvenile court had the authority to enter the
order from which Moises appeals without appointing a guardian for
Christopher.
In that case, a 19-day-old infant was admitted to a
hospital with a possible seizure disorder.
(Id.
at p. 275, 193 Cal.Rptr. 288.)
The infant's condition deteriorated, and tests performed one week after
admission and then one month later indicated brain death.
(Ibid.)
The infant's doctor recommended removal from the artificial respirator.
(Ibid.)
The infant's parents had been arrested and charged with felony
child neglect or child abuse, and refused to consent to
removal from the respirator.
(Id.
at p. 276 & fn. 2, 193 Cal.Rptr. 288.) An
unidentified person or entity petitioned the court to appoint a
guardian to consent to termination of the infant's life support.
(Ibid.)
The court appointed the Director of the Department of Public
Social Services as temporary guardian.
(Ibid.)
Moises
cites Dority
v. Superior Court, supra,
145 Cal.App.3d 273, 193 Cal.Rptr. 288, in support of his
argument that the juvenile court erred in failing to appoint
a guardian for Christopher.
We disagree with Moises for two reasons.
First, the court specifically pointed out that in the case
of a minor who is the victim of child abuse,
the issue of withdrawal of life-sustaining medical treatment would be
better handled by the dependency court, rather than through a
guardianship proceeding.
?Welfare
and Institutions Code section 300 et seq. would seem to
provide a more appropriate vehicle for expeditiously resolving these problems.?
(Id.
at p. 278, fn. 3, 193 Cal.Rptr. 288.) Moises argues
that
*559
Dority
v. Superior Court
cannot support the dependency court's decision because that case does
not cite to a specific section within the Welfare and
Institutions Code. The lack of a specific statutory reference is
unpersuasive.
The minor's parents were unable to provide for the child's
care because of the abuse they were alleged to have
inflicted on the minor and their subsequent incarceration.
The court properly noted that under these circumstances the minor
could have been made a dependent of the court, in
which case the court would have had the authority to
make the decision regarding withdrawal of life-sustaining medical treatment.
The use of the guardianship proceeding was an alternative to
dependent status, and the court was not called upon to
specify the procedures that would have been used if the
dependency procedure had been implemented instead.
Second,
despite the fact that a guardian was appointed for the
minor in Dority
v. Superior Court,
it was ultimately the court that made the decision to
withdraw life-sustaining medical treatment from the minor.
In
re K. I., supra,
735 A.2d 448, also supports our conclusion.
In that case, the District of Columbia Court of Appeals
was faced with a factual scenario similar to the one
here.
Infant K.I. was comatose and ?
?neurologically
devastated.?
?
(Id.
at p. 450.)
K.I. had been born prematurely, and as a result suffered
from several serious medical problems.
(Id.
at pp. 450-452.)
At the age of six and a half months, K.I.
was removed from her mother's care on grounds that her
mother had neglected K.I. by failing to ensure K.I. received
necessary oxygen and medications, and by failing to ensure K.I.
was properly connected to necessary heart and apnea monitors.
(Id.
at p. 451.)
The family division of the Superior Court of the District
of **141
Columbia obtained jurisdiction over K.I. as the result of a
neglect petition filed against K. I.'s mother.
(Id.
at pp. 451, 453-454.)
The
guardian ad litem appointed for K.I. requested that
the court issue a DNR order.
(In
re K. I., supra,
735 A.2d at pp. 457-458.) The court held an evidentiary
hearing on the guardian ad litem's request.
(Id.
at p. 458.)
The guardian ad litem and one of K. I.'s putative
fathers supported issuance of a DNR order, and the government
took no position.
(Ibid.)
Both K. I.'s treating physician and an expert in pediatric
care and bioethics testified that K.I. was neurologically devastated, capable
of feeling pain and discomfort, unable to respond to other
stimuli or react to her environment, could not comprehend the
world around her, and was incapable of giving or receiving
love.
(Id.
at pp. 458-459.)
Two other physicians testified as experts in pediatrics, and the
director of a northern Virginia hospice testified as an expert
in bioethics.
(Id.
at p. 459.)
One of K. I.'s putative fathers also testified.
(Ibid.)
All of these witnesses agreed that a DNR order should
issue.
*560
(Ibid.)
Only K. I.'s mother and the other putative father opposed
issuance of a DNR order, despite evidence that K.I. had
no hope for recovery and resuscitation attempts would only cause
her pain.
(Id.
at pp. 459-460.)
K. I.'s mother testified ?
?any
amount of pain is worth it as long as K.I.
breathes.?
?
(Id.
at p. 460.)
The
family division of the superior court found, and the court
of appeals affirmed, that issuance of a DNR order required
a ?finding
by clear and convincing evidence both
that it is in K. I.'s best interests to forego
aggressive revival measures, and that [mother's] refusal to consent to
the issuance of the DNR order is unreasonably contrary to
K. I.'s well-being.?
(In
re K. I., supra,
735 A.2d at p. 464.)
The
court also determined it had jurisdiction to enter the DNR
order because K.I. was a child subject to the court's
jurisdiction as a result of her mother's neglect, and therefore
the court's parens
patriae
duty required the court to ?tak[e]
responsibility for [K. I.'s] course of treatment.?
(In
re K. I., supra,
735 A.2d at p. 461.)
The court of appeals affirmed this jurisdictional finding.
(Id.
at pp. 453-454.)
Moises
argues that because the guardian ad litem appointed for K.I.
initiated the hearing to determine whether a DNR order should
issue, In
re K.I.
supports his contention that the juvenile court in this case
lacked jurisdiction to enter the order authorizing withdrawal of Christopher's
life-sustaining medical treatment.
We disagree.
The
District of Columbia requires the appointment of a guardian ad
litem for a minor in every case alleging neglect.
?The
Superior Court shall in every case involving a neglected child
which results in a judicial proceeding, ...
appoint a guardian ad litem who is an attorney to
represent the child in the proceedings.
The guardian ad litem shall in general be charged with
the representation of the child's best interest.?
(D.C.Code,
§
16-2304(b)(5).)
The District of Columbia's statutory scheme is different from California's.
The appointment of a guardian ad litem for K.I. therefore
does not prove that the lack of a guardian in
this case was improper.
An attorney had been appointed for Christopher whose ?primary
responsibility?
under California law was to ?advocate
for the protection, safety, and physical and emotional well-being of
the child.?
(§
317,
subd. (c).)
Under
California's statutory scheme, the appointed attorney serves the same function
as the required guardian ad litem in the District of
Columbia.
Under section 326.5, appointment of a guardian ad litem in
addition to appointment of an **142
attorney under section 317 was not required for Christopher.
Barber
v. Superior Court, supra,
147 Cal.App.3d 1006, 195 Cal.Rptr. 484, also supports our conclusion.
In that case, the court rejected the state's argument that
only a
*561
legal guardian appointed by the court could make the decision
to withdraw life-sustaining medical treatment from an adult in a
persistent vegetative state.
?While
guardianship proceedings might be used in this context, we are
not aware of any authority requiring
such procedure.?
(Id.
at p. 1020, 195 Cal.Rptr. 484.)
The court was careful to note that a requirement that
a legal guardian make the decision to withdraw life-sustaining medical
treatment from an incompetent patient would have to come from
the Legislature.
?In
the absence of legislation requiring such legal proceedings, we cannot
say that failure to institute such proceedings made petitioners' conduct
unlawful.
Whether such proceedings are to be required in the future
is again a question for the Legislature to decide.?
(Id.
at p. 1021, 195 Cal.Rptr. 484.)
Almost 20 years later, the Legislature has not enacted a
statute requiring the use of guardianship proceedings in cases involving
either minors or adults who are no longer competent to
make medical decisions.
We find that telling.
C.
Indian
Child Welfare Act (ICWA)-Title 25 United States Code section 1901
et seq.
1.
Facts
relevant to ICWA analysis.
(a)
The
original record on appeal
[20]
When
the dependency petition was initially filed on December 21, 2001,
SSA did not state that Christopher might be a member
of, or eligible for membership in, a federally recognized Indian
tribe, or that he was of Indian ancestry.
In an interview with a social worker, however, Tamara had
previously stated ?she
was part Indian from the Puma Tribe.?
Moises indicated he had no information as to Christopher's American
Indian heritage.
In
the permanency hearing report, filed August 26, 2002, SSA indicated
that notice had been sent to the Puma Indian tribe
and the Bureau of Indian Affairs (the BIA), but that
no response had yet been received.
A search by SSA of the listings of federally recognized
tribes did not locate a tribe by the name of
Puma. The BIA confirmed that such a tribe was unknown
to that agency.
At
that point, SSA had attempted to communicate with the tribe
identified by Tamara, and had notified the BIA. Tamara then
came up with another possible name of the tribe she
claimed to belong to-Pima.
SSA then checked with the Gila River Indian Community in
Sacaton, Arizona, which maintains the records for the Pima tribe.
On September 9, 2002, the Gila River Indian Community wrote
to SSA, stating, ?Base[d]
on my research for a Christopher I[.] with date of
birth as ...
and Social Security #
...,
the
*562
son of Tamara S [.], which I find no person
on the Gila River Indian Community roll book, base [d]
on the information you provided.?
The actual notification from SSA to the Gila River Indian
Community was not included in the record on appeal.
(b)
Request
for judicial notice;
augmentation
of record
SSA
filed a request for judicial notice with this court on
February 11, 2003, to add documents to the record showing
SSA's additional notices to the BIA and the Pima tribes
sent in January 2003, and the responses of the BIA
and the tribes.
All of the documents attached to the request for judicial
notice were filed in the case in the juvenile court.
(Cal.
Rules of **143
Court, rule 12(a)(1)(A).)
Christopher, through his counsel, joined in the request on February
18, 2003.
Moises had never raised the issue of ICWA compliance by
the time the deadline (absent extraordinary circumstances) for augmenting the
record on appeal passed.
Therefore, SSA could not have known additional material would be
necessary in the appellate record.
It appears from the documents attached to the request for
judicial notice that SSA moved promptly to remedy any alleged
deficiencies in the record.
The
request for judicial notice is denied because the requirements of
Evidence Code sections 452, subdivision (d), and 459, are not
satisfied.
However, on our own motion, in the interests of justice,
we hereby augment the record on appeal with the materials
attached to SSA's request for judicial notice.FN4
(Cal.
Rules of Court, rule 12;
Code
Civ. Proc., §
909.)
?In
all cases where trial by jury is not a matter
of right ...,
the reviewing court may make factual determinations contrary to or
in addition to those made by the trial court....
The reviewing court may for the purpose of making the
factual determinations or
for any other purpose in the interests of justice,
take additional evidence of or concerning facts occurring at any
time prior to the decision of the appeal....
This section shall be liberally construed to the end among
others that, where feasible, causes may be finally disposed of
by a single appeal and without further proceedings in the
trial court....?
(Code Civ. Proc., §
909,
italics added.)
FN4.
The
documents with which we are augmenting the record are the
following:
(a)
a letter from the BIA dated September 6, 2002;
(b)
forms 318 and 319 sent by SSA to the BIA,
the Gila River Indian Community and the Salt River Pima-Maricopa
Indian Community Council on January 22, 2003, and the form
319 sent by SSA to Tamara and to Moises on
January 22, 2003;
(c)
proofs of service, certified mail receipts and facsimile cover pages
from SSA sending the forms 318 and 319 to the
BIA, the Gila River Indian Community, the Salt River Pima-Maricopa
Indian Community Council, Tamara, and Moises;
(d)
a letter from the BIA dated January 24, 2003;
and
(e) letters from the Salt River Pima-Maricopa Indian Community Council
dated January 27, 2003, and from the Gila River Indian
Community dated February 3, 2003.
*563
The extraordinary circumstances of this case justify augmentation of the
record at this time in the interests of justice.
In In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 129 Cal.Rptr.2d 15, as in other
cases, we approved augmentation of the record on appeal, but
in that case there was no objection to the motion
to augment.
(Id.
at p. 1412, 129 Cal.Rptr.2d 15.)
We are not limited to augmenting the record under such
circumstances, however.
The California Legislature, in Code of Civil Procedure section 909,
has granted the express authority exercised here.
In our view, the interests of justice require
that we augment the record in this case because remand
of this matter would be futile and would not be
in Christopher's best interests.
To decline to augment the record in this case would
only serve to prolong Christopher's suffering.
(c)
The
augmented record
On
January 22, 2003, SSA sent notice of the proceedings and
a request for confirmation of Christopher's status as an Indian
child to the BIA, the Gila River Indian Community Council,
and the Salt River Pima-Maricopa Indian Community Council.
These documents identified the names and birthdates (if known) of
Christopher, Tamara, Tamara's parents, and Tamara's grandfather.
The documents further indicated that Tamara's father and grandfather might
be affiliated with the Arizona Pima Indian tribe, although it
was unknown**144
whether they were enrolled in the tribe.
On
January 27, 2003, the Salt River Pima-Maricopa Indian Community confirmed
in writing that Christopher, Tamara, and Tamara's parents were not
enrolled as members of the community, and that Christopher was
?not
eligible for enrollment through any relative listed in the inquiry.?
On
February 3, 2003, the Gila River Indian Community confirmed in
writing that Christopher was not listed as an enrolled member
of the community.
It also confirmed that Tamara, her parents and her grandfather
were not listed as enrolled members, meaning that Christopher was
not eligible for membership.
2.
Summary
of the parties' positions.
Moises
argues that the juvenile court could not authorize withdrawal of
Christopher's life-sustaining medical treatment because, in his view, ICWA has
not been complied with.
SSA argues, to the contrary, that it provided all notices
required under ICWA, and that if there was any error,
it was harmless.
Christopher's counsel joins in SSA's argument.
Tamara makes the same arguments as SSA does, but also
argues her petition to discontinue Christopher's life support did not
trigger the need for further notice under
*564
ICWA, and that even if SSA failed to provide the
proper notice, the juvenile court still had the authority to
enter orders relating to medical care in Christopher's best interests.
3.
Will
more notices serve the purposes of ICWA?
Tamara's
suggestion that her grandfather was a member of some unknown
tribe was sufficient to trigger the notice requirements under ICWA,
title 25 United States Code section 1912(a).
(Cal.
Rules of Court, rule 1439(f);
In
re Antoinette S., supra,
104 Cal.App.4th 1401, 1406, 129 Cal.Rptr.2d 15.)
SSA mailed notices to the BIA and the identified Indian
tribes as described above.
We express serious doubts about whether any more notices would
serve the purposes of ICWA in this case.
ICWA
was enacted in response to ?
?rising
concern in the mid-1970's over the consequences to Indian children,
Indian families, and Indian tribes of abusive child welfare practices
that resulted in the separation of large numbers of Indian
children from their families and tribes through adoption or foster
care placement, usually in non-Indian homes.?
?
(In
re Alexandria Y.
(1996) 45 Cal.App.4th 1483, 1488-1489, 53 Cal.Rptr.2d 679.)
The policy of ICWA is set forth in section 1902
of title 25 of the United States Code:
?The
Congress hereby declares that it is the policy of this
Nation to protect the best interests of Indian children and
to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the
removal of Indian children from their families and the placement
of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing
for assistance to Indian tribes in the operation of child
and family service programs.?
No
one proposes to separate Christopher from an Indian family and
place him with a non-Indian family.
Whether the juvenile court ruled that withdrawal of life-sustaining medical
treatment from Christopher was or was not in his best
interests, the stability and security of any Indian tribe or
Indian family would not be served.
Christopher will never be able to appreciate his alleged Indian
ancestry, nor will he procreate and advance the lineage or
culture of any Indian tribe.
**145
Christopher's situation is hopeless.
He is in a persistent vegetative state, and his condition
is irreversible.
He is suffering. He will continue in this condition indefinitely
only because machines force air into his lungs and nutrition
into his stomach.
We cannot believe that the United States Congress intended that
if SSA failed to give more notice to an Indian
tribe or the BIA under the facts presented in this
case, all orders of the juvenile court
*565
must be reversed.
This conclusion is particularly true in this case, because clear
and convincing evidence has shown that the purposes of ICWA
have been frustrated by Moises's own violent acts.
In
this case, more notices to tribes could not have advanced
the purposes of ICWA. Where giving literal meaning to a
seemingly unambiguous statute would lead to an absurd result or
fail to carry out the manifest purpose of the statute,
we may construe its language differently;
both
the United States Supreme Court and the California Supreme Court
have so held.
(United
States v. American Trucking Assns.
(1940) 310 U.S. 534, 543, 60 S.Ct. 1059, 84 L.Ed.
1345;
Times
Mirror Co. v. Superior Court
(1991) 53 Cal.3d 1325, 1334, fn. 7, 283 Cal.Rptr. 893,
813 P.2d 240;
see
also In
re Charles T., supra,
102 Cal.App.4th 869, 878, 125 Cal.Rptr.2d 868 [?we
must construe the various statutes to avoid absurdity and unreasonable
results?].)
An
interpretation of the relevant statutes here, as argued by Moises,
could do no more than to prolong Christopher's irreversible suffering.
This result would be absurd and would not serve the
purposes of ICWA. The wisdom of Judge Learned Hand illustrates
why in appropriate cases we need to give meaning to
the purpose of a statute.
?Of
course it is true that the words used, even in
their literal sense, are the primary, and ordinarily the most
reliable, source of interpreting the meaning of any writing:
be
it a statute, a contract, or anything else.
But it is one of the surest indexes of a
mature and developed jurisprudence not to make a fortress out
of the dictionary;
but
to remember that statutes always have some purpose or object
to accomplish, whose sympathetic and imaginative discovery is the surest
guide to their meaning.?
(Cabell
v. Markham
(2d Cir.1945) 148 F.2d 737, 739.)
Nothing
in the record on appeal or in the arguments of
counsel suggests that Christopher does, in fact, have any Indian
heritage.
There is no reason consistent with the legislative purpose of
ICWA to require more notice.
4.
Application
of the usual ICWA analysis.
(a)
Even
if we had not augmented the record on appeal, we
would find no error.
Applying
the traditional ICWA analysis to the original record on appeal,
we find no error in SSA's notices.
SSA complied with the requirements of ICWA.
Notice was sent by SSA to the BIA.
In its report filed August 26, 2002, SSA stated it
had notified the Puma Indian tribe, the tribe of which
Tamara claimed to be a member.
In its Interim Review Report filed September 12, 2002, SSA
stated it could not locate any tribe by the name
of Puma.
SSA
*566
did not explain its earlier statement that it notified the
Puma tribe.
The BIA confirmed that the Puma tribe was unknown to
that agency.
When
Tamara later came up with another name of the tribe
she claimed to belong to, SSA then checked with the
Gila River Indian Community in Sacaton, Arizona, which maintains the
records for the Pima Indian tribe.
That organization also had no record of Christopher's membership in
the Pima tribe.
[21]
Substantial
compliance with the notice requirements of ICWA is sufficient.
(In
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421-1422, 285 Cal.Rptr. 507.)
SSA must provide the tribe with notice of the pendency
of the proceedings and the opportunity**146
to intervene in them.
(In
re Suzanna L.
(2002) 104 Cal.App.4th 223, 232, 127 Cal.Rptr.2d 860.)
When the specific tribe cannot be identified, SSA must provide
notice to the BIA. In this case, the Puma tribe
identified by Tamara could not be located, and notice was
sent to the BIA. In doing so, SSA fulfilled its
obligations under ICWA, and there was no error.
The parties have cited us to numerous cases dealing with
compliance with ICWA under the facts of those cases.
But no case cited is really analogous to this case,
and therefore we do not discuss those cases.
(b)
Having
augmented the record on appeal, we find no error in
notice under ICWA.
After
SSA complied with ICWA in September 2002, Moises raised the
issue of ICWA compliance on appeal.
SSA sent notice to the BIA again and to two
Pima tribes.
SSA has provided this court with copies of the notices,
and the responses from the BIA and the tribes. These
materials, with which we have augmented the record on our
own motion, confirm that SSA complied with ICWA's notice provisions.
Moises
argues in his reply brief on appeal that SSA failed
to send notice to yet another tribe identified in the
Federal Register-the Pauma tribe.
We will not turn the process of ICWA notice into
a game, where a party sees how many different but
similar-sounding names of Indian tribes he or she can come
up with.
Lest we forget, the original notice to the BIA suggested
the name of the ?Puma?
tribe.
The purpose of notice to the BIA is to determine
whether a tribe SSA cannot identify exists.
The BIA did not identify the Pauma tribe in response
to SSA's inquiry, and SSA was not required to continue
its search after the results from the Pima tribes came
back negative.
Moises
also argues the matter must be remanded to the juvenile
court to make a factual finding based on the Pima
tribes' responses that Christopher is not an enrolled member and
is not eligible for membership.
Because ?[a]
tribe's determination that the child is or is not a
member of or eligible for *567
membership in the tribe is conclusive?
(Cal. Rules of Court, rule 1439 (g)(1)), any further factual
finding by the juvenile court is unnecessary.
(c)
Any
error was harmless.
In
response to SSA's January 2003 notices (which are a part
of the augmented record), the Sacramento office of the BIA
replied that the Salt River Pima-Maricopa Indian Community and the
Gila River Indian Community Council were not within its jurisdiction,
and should be contacted directly.
In a petition for rehearing, Moises argues that remand is
necessary because this reponse by the BIA was ambiguous. Notice
to the BIA is only required if the identity or
location of a tribe cannot be determined.
SSA identified and located two Pima tribes and provided notices
to them.
SSA's January 2003 notice to the BIA was therefore superfluous.
Even if there were an ambiguity in that notice or
in the BIA's response, it is irrelevant.
[22]
Even
if SSA did not satisfy the notice requirements under ICWA,
it is not jurisdictional error that deprived the juvenile court
of the ability to consider the petition for withdrawal of
life-sustaining medical treatment.
?[V]iolation
of the 10-day period of notice required by ICWA is
not jurisdictional error.
The very fact that notice problems are sometimes deemed harmless
in ICWA cases [citation] indicates such error is not jurisdictional.?
(In
re Antoinette S., supra,
104 Cal.App.4th at p. 1410, 129 Cal.Rptr.2d 15.)
Any
error on the part of SSA in this case would
be harmless.
There is no reason to believe that Christopher is an
Indian child, nor is there any reason to believe more
notices over more time will result in any more information.
Indeed, in the new material provided by SSA, two specific
Pima tribes declined to assert any right to become involved
in these proceedings, and **147
determined that Christopher is not an enrolled member of the
tribe or eligible for membership.
Even if Christopher were an Indian child, his condition would
prevent him from ever being a part of an Indian
family or tribe, participating in the cultural heritage of an
Indian tribe, or appreciating the values of Indian culture.FN5
The
medical evidence presented at the hearing was compelling and consistent.
Moises presented no contrary medical evidence, and there is absolutely
no reason to believe anyone else-Indian tribes included-could produce any
other medical evidence concerning Christopher.
FN5.
Even
if we accepted Moises's arguments regarding ICWA-which we do not-the
appropriate disposition would be to remand to the juvenile court
to ensure that notices arguably required under ICWA were sent.
The order withdrawing life-sustaining medical treatment would become effective as
soon as the statutory time had passed without sufficient competent
evidence provided to the juvenile court that Christopher is an
Indian child.
(In
re Suzanna L., supra,
104 Cal.App.4th at p. 237, 127 Cal.Rptr.2d 860.)
We already know from the augmented record that all arguably
required notices have been sent and that Christopher is neither
a member of any tribe nor eligible for membership.
Remand would be senseless under these circumstances.
*568
D.
The
juvenile court's refusal to appoint a guardian ad litem for
Tamara or to order a psychological evaluation of her was
not in error.
Moises
also contends that the court's failure to grant his request
to appoint a guardian ad litem for Tamara or order
a psychological evaluation of her constitutes reversible error.
We initially question whether Moises may raise this issue on
appeal.
?The
statutes regarding appointment of guardians ad
litem
were enacted to protect minors and insane and incompetent persons.?
(Briggs
v. Briggs
(1958) 160 Cal.App.2d 312, 319, 325 P.2d 219.)
Moises does not cite, and we have not located, any
case in which a competent party challenges a court's order
granting the relief sought by an allegedly incompetent party on
the ground that the winning party was incompetent.
We see no need to ?protect?
Tamara from the relief she herself sought in this case.
If Moises was really arguing that Christopher needed protection from
Tamara, the juvenile court's decision to hold an evidentiary hearing
before life-sustaining medical treatment could be withdrawn, a decision we
agreed with (Tamara
S. v. Superior Court, supra,
G030646), provided whatever protection was needed.
[23][24][25]
Even
if Moises has standing to challenge the court's refusal to
appoint a guardian ad litem for Tamara, we conclude there
was no error in the court's decision that Tamara was
able to understand the proceedings and participate with counsel.
A guardian ad litem may be appointed for a parent
in a dependency proceeding if he or she is determined
to be incompetent under either the standards of Probate Code
section 1801 or Penal Code section 1367.
(In
re Sara D.
(2001) 87 Cal.App.4th 661, 667, 104 Cal.Rptr.2d 909.)
The court's failure or refusal to appoint a guardian ad
litem is reviewed for an abuse of discretion.
(In
re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368, 52 Cal.Rptr.2d 474.)
In
support of his request that a guardian ad litem be
appointed to represent Tamara, Moises argued that Tamara did not
cook, could not navigate the public transportation system, and had
been referred to the county for social services.
The
juvenile court appears to have based its decision not to
grant Moises's request to appoint a guardian ad litem for
Tamara on the standards of Penal Code section 1367, subdivision
(a), which provides in part:
?A
defendant is mentally incompetent for purposes of this chapter if,
as a result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a
defense in a rational manner.?
**148
The juvenile court did not abuse its discretion in determining
whether a guardian ad litem for Tamara was required.
The juvenile court had significant opportunities to consider Tamara's competence
and her ability to
*569
understand the dependency court proceedings and to assist her counsel,
having considered her testimony at the jurisdiction hearing.
The court made a factual finding that Tamara's mental disability
was not sufficiently severe that she would be unable to
understand the proceedings or assist her counsel.
Tamara's counsel supported that conclusion.
The juvenile court and Tamara's counsel were in a far
better position than we are to analyze Tamara's competence.
In
any event, the determination for the juvenile court was whether
Tamara could understand the nature of the proceedings against
her
and cooperate with counsel in protecting her
interests.
(In
re R.S.
(1985) 167 Cal.App.3d 946, 979, 213 Cal.Rptr. 690.)
The evidentiary hearing regarding withdrawal of Christopher's life-sustaining medical treatment
was not a proceeding against Tamara, and her best interests
were not at issue.
The juvenile court did not abuse its discretion in denying
Moises's request on this ground.
Although
the juvenile court did not expressly consider Probate Code section
1801, we find no abuse of discretion under its standards
either.
Probate
Code section 1801 provides in relevant part:
?(a)
A conservator of the person may be appointed for a
person who is unable to provide properly for his or
her personal needs for physical health, food, clothing, or shelter
....
[¶]
(b) A conservator of the estate may be appointed for
a person who is substantially unable to manage his or
her own financial resources or resist fraud or undue influence
....
[¶]
...
[¶]
(e) The standard of proof for the appointment of a
conservator pursuant to this section shall be clear and convincing
evidence.?
There was no evidence, much less clear and convincing evidence,
that Tamara was unable to provide properly for her personal
needs for health, food, clothing or shelter, or that she
was unable to manage her own financial resources.
Given the nature of the proceedings, Tamara's inability to care
for her personal needs or manage her money was not
relevant to the juvenile court's decision, and the juvenile
court did not abuse its discretion.
DISPOSITION
The
order of the juvenile court is affirmed.
|
