In re Christopher I.

131 Cal.Rptr.2d 122

106 Cal.App.4th 533

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.

Court of Appeal, Fourth District, Division 3.

February 24, 2003.

As Modified on Denial of Rehearing March 10, 2003.

Review Denied April 23, 2003.

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.

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 In an unpublished opinion, Tamara S. v. Superior Court (Aug. 21, 2002, G030646), 2002 WL 1939182, we described the abuse.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 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 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 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 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 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.

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, [f] Christopher...