STATE v. PERRICONE
37 N.J. 463 (1962)
181 A.2d 751
STATE OF NEW JERSEY (THOMAS J. FINN, SUPERINTENDENT OF B.S. POLLAK HOSPITAL FOR CHEST DISEASES, COMPLAINING WITNESS), PLAINTIFF-RESPONDENT, v. JOHN A. PERRICONE AND RUTH PERRICONE, PARENTS OF JOHN PERRICONE, AN INFANT, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Decided June 4, 1962.
Mr. Hayden C. Covington of the New York Bar argued the cause for appellants ( Mr. Robert M. Wood, of counsel, appearing; Messrs. Meth, Bloom & Wood, attorneys).
Mr. James H. Dowden, Assistant County Counsel of Hudson County, argued the cause for respondent ( Mr. William F. Kelly, Jr., County Counsel, attorney).
The opinion of the court was delivered by SCHETTINO, J.
The Perricones, who are Jehovah's Witnesses, appeal from an order (a) finding them guilty of neglect of their infant son, John, in refusing to grant permission for necessary blood transfusions; (b) appointing Thomas J. Finn, Superintendent of the Berthold S. Pollak Hospital for Chest Diseases, Jersey City, as guardian of the infant and authorizing Mr. Finn to execute the necessary consent for a blood transfusion; and (c) awarding custody and care of the infant to Mr. Finn until further order of the court. While the appeal was pending in the Appellate Division, we certified the matter on our own motion.
The facts are not in dispute. Appellants were the parents of the infant, John Perricone, who was admitted to the Pollak Hospital on March 1, 1961. At that time John was described as "a blue child [,] * * * blue around the lips and on the nail beds, both on fingers and toes, and who showed clubbing of the fingers and the toes, which is evidence of chronic oxygen lack * * *. On further physical examination it was noted that his heart was enlarged primarily on the right side, that the heart rhythm was regular; that the second sound, the left upper chest, which is usually re-duplicated, was single in nature and at this location there was a moderately loud murmur that occurred during the contraction of the heart."
Dr. Martin Frank, one of the two physicians who had attended the child, testified that the infant was in danger of death, that John was "critically ill" and that "the most likely clinical diagnosis involved an abnormal communication between the right and the left side of the major chambers or `ventricles' of the heart [a condition] associated with a narrowing of the out-flow tract of the right heart which created enough resistance to force the blood to flow from right to left and was responsible for the blueness." According to Dr. Frank, the hospital had attempted procedures
The child's condition grew steadily worse during the 36 hours following his admission to the hospital. Dr. Frank stated that: "at the present time this child suffers from oxygen lack, which is a chronic problem and is a result of the reduction of the quantity of blood flowing through his lungs. The treatment which is recommended is that he receive a blood transfusion which will not entirely correct this problem, but will alleviate it * * *. The purpose is to supply red cells which carry oxygen which have a special function and for which, at the present time, there is no known medical substitute." In response to the question of whether the danger of death could be averted to a degree by the use of a blood transfusion, he said, "I think his chances will be improved for survival." It was his opinion also that: "[A]dequate supply of oxygen to the brain, given in time and frequently, assisted by the use of blood transfusions, may prevent severe irreversible damage to the brain and be life-saving." Furthermore, he pointed out that the child had lost 3 1/2 ounces of blood as a result of a catheter used for diagnostic studies when the patient was admitted. The volume of the loss seemed less critical, in the doctor's opinion, than the patient's response to the loss. The latter led Dr. Frank to conclude that the patient's oxygen carrying capacity was poor, and that a blood transfusion was necessary. On cross-examination, Dr. Frank testified the child's chances of dying that very night would be "two or three times greater" if he did not have a blood transfusion.
Dr. Gilbert E. Levinson, the only other doctor who had examined the child, corroborated Dr. Frank's testimony. Transfusions, he asserted, would free the child of possible neurological disability also. On cross-examination he said: "I think without transfusion he has only an outside chance
Appellants produced no medical witness. The father testified that he is a member of Jehovah's Witnesses and that his sole reason for refusing to permit a blood transfusion was based upon passages in their Bible, New World Translation of the Holy Scriptures (1961 ed.). He stated:
"I have dedicated my life to do God's work in accordance with scriptures of the Bible. One of the particular scriptures makes mention of taking of blood or transferring it from one person to another. The one part I have in mind is taken from the book Leviticus, 17th Chapter, Verse 11-12. It states the life of the flesh is in the blood. No soul of you shall eat blood; neither shall any stranger that so joineth meeting you eat blood. From the view point of this scripture and others that point to this, I can assume then, from my position as a dedicated minister of Jehovah's Witnesses, to hold fast to the belief or to the teachings which were set down in the Bible."
Although he knew his son might die without the transfusion, he had not sought advice from other doctors regarding the advisability of a transfusion. And the mother was in full accord with her husband's decisions.
On the basis of these facts the order sought was issued. Yet in spite of the blood transfusions finally administered, the child died.
Both sides urge us not to dismiss the case as moot because of the death of the infant. They strongly emphasize the public importance of a decision which would settle the question so that parents, physicians and hospitals will have proper legal guidance. With this we concur. The public interest requires us to decide the cause. See cases collected in 132 A.L.R. 1185 (1941).
On this appeal the Perricones argue that their constitutional rights of parental care and religious freedom have been violated, that the court was without jurisdiction to take custody of the child from them under N.J.S.A. 9:6-3, 4 and 11 because appellants were not unfit parents, nor "cruel" nor "neglectful" as these terms are there used;
Respondent urges that as this case involved a neglected infant the common law doctrine of "parens patriae" exercised historically by the Chancery Court applies. Respondent also claims that this doctrine has been recognized by the Legislature in N.J.S.A. 9:2-9 et seq. which provides that the Superior Court or the Juvenile and Domestic Relations Court may order that custody be taken from parents when the parents are unfit or neglect to provide proper protection, maintenance and education. Moreover, it urges the view that N.J.S.A. 9:6-1.1 is restricted in application to cases where parents are subjected to criminal prosecution for neglect. On the constitutional religious issue, respondent argues the right to religious freedom must give way when that which the State is charged with protecting, e.g., in this case, a child, is placed in "immediate and present danger."
We first consider appellants' argument that the trial court violated the First and Fourteenth Amendments to the Constitution of the United States and Article I, par. 3 of our State Constitution, by depriving them of freedom of religion and their rights as parents.
Appellants contend that the Scriptures show their good faith and belief in the religious doctrine that life is in the
"As for any man of the house of Israel or some alien resident who is residing as an alien in YOUR midst who eats any sort of blood, I shall certainly set my face against the soul that is eating the blood, and I shall indeed cut him off from among his people." Leviticus 17:10.
"For the soul of every sort of flesh is its blood by the soul in it. Consequently I said to the sons of Israel: `You must not eat the blood of any sort of flesh, because the soul of every sort of flesh is its blood. Anyone eating it will be cut off.'" Leviticus 17:14.
Appellants point out that the proscription of the use of blood as food was declared to the human survivors of the Noachian flood, long before the law was given to Moses. In their Bible they note Genesis 9: " Only flesh with its soul — its blood — YOU must not eat.  And, besides that YOUR blood of YOUR souls shall I ask back. From the hand of every living creature shall I ask back. From the hand of every living creature shall I ask it back; and from the hand of man, from the hand of each one who is his brother, shall I ask back the soul of man."
They state that still a third time was the ban against eating blood proclaimed in the Book of Acts, 15: "28 For the holy spirit and we ourselves have favored adding no further burden to you, except these necessary things, 29 to keep yourselves free from things sacrificed to idols and from blood and from things strangled and from fornication. If YOU carefully keep yourselves from these things YOU will prosper. Good health to YOU !"
It is conceded that appellants' interpretation of these references is in accord with the tenets of their religion and that appellants at all times acted sincerely with the best interests of their child in mind.
In Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 33 L.Ed. 637, 640 (1890), the Supreme Court stated that the First Amendment "was intended to allow every one
Concededly, freedom of religion and the right of parents to the care and training of their children are to be accorded the highest possible respect in our basic scheme. West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Pierce v. Society of the Sisters, etc., 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Daly v. Daly, 21 N.J. 599, 604 (1956). But "neither rights of religion nor rights of parenthood are beyond limitation." Prince v. Massachusetts, 321 U.S. 158, 166,
In Prince the court held that Massachusetts, acting to safeguard the general interest and well-being of its youth, could prohibit a child of a Jehovah's Witness parent from distributing religious pamphlets on the street even though the child was accompanied by her adult guardian. The court observed: "The right to practice religion freely does not include liberty to expose * * * the child * * * to ill health or death." 321 U.S., at pp. 166-167, 64 S.Ct., at p. 442, 88 L.Ed., at p. 653. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their
The facts in the instant case clearly evidence a more compelling necessity for the protection of a child's welfare than those in Prince. And the arguments presented in the above cases are of equal force and effect with respect to Article I, par. 3 of the New Jersey Constitution. We hold, therefore, that neither N.J.S.A. 9:2-9 nor the action of the trial court pursuant to the statute is violative of either the Federal or the State Constitution.
Appellants would have us declare that the trial court lacked jurisdiction under N.J.S.A. 9:6-3, 9:6-4 and 9:6-11 to take temporary custody from the parents of the child and order a blood transfusion because the parents were not guilty of cruelty and neglect of the child by refusing the blood transfusion. They argue that R.S. 9:6-1 defines an abused or neglected child, that the Legislature did not provide that failure to submit the child to medical care recommended by a competent doctor or group of doctors was not proper parental care, that the trial court legislated by judicial fiat and, as the power to legislate does not lie in the hands of a judge but in the Legislature, the order of the court must fall unless it finds authority in the common law of the State of New Jersey.
According to appellants "the common law left the choice and wisdom of particular medical treatment to the discretion of the natural parent," citing as authority In re Vasko, 238 App. Div. 128, 263 N.Y.S. 552 (2d Dept. 1933) and In re Rotkowitz, 175 Misc. 948, 25 N.Y.S.2d 624, 625 (Dom. Rel. Ct., Kings Co., 1941), wherein is stated:
Historically, the jurisdiction here exercised by the trial court was in its character parens patriae, i.e., a sovereign right and duty to care for a child and protect him from neglect, abuse and fraud during his minority. Lippincott v. Lippincott, 97 N.J. Eq. 517, 519-520 (E. & A. 1925); cf. Johnson v. State, 18 N.J. 422, 430 (1955). Parents were under a similar duty to provide reasonable care, protection, maintenance and education for their children. While, absent a statutory provision, a parent could not be convicted of a crime for refusing on religious grounds to provide certain medical aid for his child (Regina v. Wagstaffe, 10 Cox C.C. 530, 32 J.P. 215 (Cent. Crim. Ct. 1868); cf. State v. Watson, 77 N.J.L. 299, 300 (Sup. Ct. 1909)), the common law courts could act to protect the interests of the child, take custody from the parents and appoint a guardian when the parents had failed in their duty or were unfit to be intrusted with the care of the child. Duke of Beaufort v. Berty, 1 P. Wms. 703, 24 Eng. Rep. 579, 580 (Ch. 1721); Wellesley v. Beaufort, 2 Russ. 1,
The principles regarding the State's interest in infants were specifically written into the statute establishing the jurisdiction of the Juvenile and Domestic Relations Court. L. 1929, c. 157, § 1, p. 274. The present provision, N.J.S. 2A:4-2, is worded substantially the same:
"It is hereby declared to be a principle governing the law of this state that children under the jurisdiction of said court are wards of the state, subject to the discipline and entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them."
Ordinarily children are brought within the jurisdiction of a court when proceedings are instituted affecting the person of the infant. 43 C.J.S. Infants § 5, pp. 51-52 (1945); 31 C.J., Infants § 9, p. 990 (1923); 27 Am. Jur., Infants § 101, p. 823 (1940). Cf. In re Cox's Guardianship, 12 N.J. Misc. 536, 539, 173 A. 602 (Prerog. Ct. 1934); Tiffany, Domestic Relations, § 193, p. 461 (3d ed. 1921); 1 Schouler, Marriage, Divorce, Separation and Domestic Relations §§ 743, 794 (6th ed. 1921).
The statute applicable to this matter, N.J.S.A. 9:2-9, reads:
"When the parents of any minor child or the parent or other person having actual care and custody of any minor child are grossly immoral or unfit to be intrusted with the care and education of such child, or shall neglect to provide the child with proper protection, maintenance and education. * * *; it shall be lawful for any person interested in the welfare of such child to institute an action in the Superior Court or the Juvenile and Domestic Relations Court in the county where such minor child is residing, for the purpose
And N.J.S.A. 9:2-10 provides for an order of custody.
We are of the opinion that N.J.S.A. 9:2-9 and R.S. 9:2-10 authorize the action taken by the trial court here. In Hoener v. Bertinato, 67 N.J.Super. 517, 521 (Juv. and Dom. Rel. Ct. 1961), the court held that parents who refused to consent to administering blood transfusions if their baby was born as expected with RH negative blood were neglecting to provide the child with proper protection within the meaning of N.J.S.A. 9:2-9. That portion of the statute appears to be sufficiently broad to cover the instant facts as well. With regard to whether or not a parent is "unfit" to be intrusted with the care of his child, compare Wellesley v. Beaufort, supra.
Respondent concedes that appellants evidenced sincere parental concern and affection for their child. But those are not the controlling factors. Thus, courts have held that the refusal of parents, on religious grounds, to submit their infant child to a blood transfusion necessary to save its life or mental health amounted to statutory neglect, and therefore it was proper to appoint a guardian and to award custody to him for the limited purpose of authorizing transfusions. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769, 30 A.L.R.2d 1132 (Sup. Ct. 1952), cert. denied 344 U.S. 824, 73 S.Ct. 24, 97 L.Ed. 642 (1952); Morrison v. State, 252 S.W.2d 97 (Kan. City, Mo. Ct. App. 1952). See also Cawley, "Criminal Liability in Faith Healing," 39 Minn. L. Rev. 48, 57-64 (1954); Mitchell v. Davis, 205 S.W.2d 812, 12 A.L.R.2d 1042 (Tex. Civ. App. 1947); Heinemann's Appeal, 96 Pa. 112, 42 Am. Rep. 532 (Sup. Ct. 1880). Concededly "neglect" and "neglect to provide * * * proper protection" are not precisely parallel. But both statutory provisions have the welfare of infants as their prime purpose. Moreover, the Legislature has provided that the jurisdiction of the
In appellants' view, N.J.S.A. 9:6-1.1 precludes the conclusion we have just reached. That argument is answered by reference to N.J.S.A. 9:6-1.1 itself:
"The article to which this act is a supplement shall not be construed to deny the right of a parent, guardian or person having the care, custody and control of any child to treat or provide treatment for an ill child in accordance with the religious tenets of any church as authorized by other statutes of this State; * * *." (Emphasis added.)
The "article" referred to is Article I of Chapter 6, a portion of the Protective Welfare Laws prescribing criminal penalties for violation. See N.J.S.A. 9:6-3. In view of the fact that the supplement was part of a statute providing for criminal sanctions, the only reasonable interpretation is that the Legislature intended to protect from criminal prosecution persons acting pursuant to their religious beliefs where the welfare of children is involved. But it does not follow that because such persons are immune from criminal prosecutions, the State is helpless in protecting children. Hoener, supra, 67 N.J. Super., at p. 523.
Even accepting the foregoing, appellants contend that as blood transfusions are not universally recognized as beneficial or safe, the trial court was in error in authorizing the guardian to permit the treatment. We cannot agree with appellants. True, not every refusal to consent to treatment for an infant constitutes evidence of unfitness or neglect to provide proper protection. For example, refusals to permit corrective surgery for a congenital arm deformity (In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (Sup. Ct. 1942))
A result similar to that in Hudson and Tuttendario was reached in In re Seiferth, 309 N.Y. 80, 127 N.E.2d 820, 823 (Ct. App. 1955). In affirming the trial court's refusal to order a corrective operation for an infant's cleft palate, the Court of Appeals weighed the conflicting considerations and recognized the discretion of the trial court. As there was not a preponderance of proof either that the operation would be more helpful if performed immediately or that the child's overall condition would be bettered under the circumstances, the court refused to overrule the parent's wishes. But none of these factors appears in the instant case and in this respect each situation must be dealt with in view of the nature of the operation or treatment and the parent's refusal to permit it. Cf. Oakey v. Jackson,  1 K.B. 216, 220.
Concededly, medicine and surgery are not yet exact sciences and the result of any given operation or treatment cannot be foretold with complete accuracy. However, courts can be guided only by the prevailing medical opinion. Had there been a relevant and substantial difference of medical opinion about the efficacy of the proposed treatment or if there were substantial evidence that the treatment itself
The question arose at oral argument as to why the trial court felt it necessary to appoint a special guardian for the limited purpose of ordering a blood transfusion rather than directly ordering a transfusion. Probably the trial court was motivated by considerations suggested in Labrenz, supra. There, the chief probation officer of the trial court was appointed and directed to consent to the transfusions. The court retained jurisdiction in case further orders were found necessary. On May 4, 1951 the guardian reported to the court that a transfusion had been administered on April 18, 1951, and that the child's health had greatly improved. The court then ordered the child released from the hospital and returned to her parents. However, it refused to discharge the guardian at that time because it felt that periodic medical examinations might be necessary to determine the need for additional transfusions (and if so the guardian could order them without instituting another suit). We think the court here acted properly in appointing a guardian under the facts presented.
In passing we note that the appointment of a special guardian was not intended to reflect adversely upon appellants' general standing and conduct as parents.
Affirmed, no costs.
For affirmance — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For reversal — None.
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