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Court Power on Child Medical Tests Widened

February 26, 1987|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — In the first ruling of its kind in California, a state appellate panel held Wednesday that courts may order medical examinations to protect a minor from the recurrence of a life-threatening disease even if the child's parents object to the treatment.

The three-judge panel, following legal precedents in other states, rejected arguments by parents of a 6-year-old boy who had undergone surgery for eye cancer. The parents had contended that courts could not intervene in the absence of an immediate need for treatment.

"Granted, there was no clear and present showing of cancer in (the boy)," Appellate Justice Marc Poche wrote in an opinion joined by Justices Carl West Anderson and William R. Channell. "But no reason in either law or logic exists to demonstrate why the state . . . should be compelled to hold its protective power in abeyance until harm to a minor child is not only threatened but actual."

The ruling came in the case of a boy identified only as Eric B., whose parents are Christian Scientists now residing in Contra Costa County. Three years ago, while the family was living in Sacramento, Eric developed eye cancer and at the request of his parents his left eye was surgically removed.

Parents' Preferrence

Later, when tests raised the possibility that not all the cancer had been removed, the parents refused recommendations that Eric receive chemotherapy and radiation, saying that they preferred instead that he continue regular visits to an accredited Christian Science practitioner.

A Juvenile Court judge declared the boy to be a dependent child and, while leaving him in the custody of his parents, ordered the recommended treatment, which continued until March, 1985.

At that point, a physician urged a two-year observation period, calling for a series of examinations to guard against recurrence of the disease.

The parents objected, and appealed a special court referee's order that they comply with the physician's recommendations. The parents contended that it violated their constitutional rights and religious beliefs. Since then, the periodic examinations of the boy have been discontinued, with court approval, and he is reported to be in good health.

In its ruling Wednesday, the state Court of Appeal panel noted that California courts had yet to rule specifically whether judges can intervene over parental objections without evidence of an immediate necessity.

But the justices pointed out that courts in other states had ordered vaccinations, tonsil removals and other treatment for minors in the absence of an immediate threat to their well-being.

"The idea that state authority can be mobilized only after the fact is untenable," Poche wrote. " . . . The state, having substantial interests in preventing the consequences caused by a perceived danger, is not helpless to act until that danger has matured into certainty."

Secondary Issue

In another issue raised in the case, the justices rejected the parents' contention that the referee, in ordering medical observation of the youth, had failed to properly apply a state statute that requires courts in such situations to take into account treatment being provided a minor "by spiritual means through prayer alone."

The appellate court said the statute does not preclude the conclusion that spiritual treatment alone was not sufficient to protect against danger to a minor.

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