Mildred G. et al., Petitioners and Appellants, v. Valerie N., Objector and Respondent.

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Court of Appeal, First District, Division 4, California.

CONSERVATORSHIP of the Person of Valerie N. Mildred G. et al., Petitioners and Appellants, v. Valerie N., Objector and Respondent.

A012215.

Decided: May 10, 1983

Allen H. Fleishman, San Jose, for petitioners and appellants. Quin Denvir, State Public Defender, Paul D. Fogel, Deputy State Public Defender, San Francisco, for objector and respondent.

Respondent Valerie N. is a mentally retarded adult.   Appellants are her natural mother and stepfather.   They petitioned the superior court, sitting in probate, for orders appointing them as conservators of respondent's person and authorizing them to have her sterilized.   The probate court appointed them as conservators of her person;  conducted an evidentiary hearing on their application for authority to have her sterilized;  and made an order denying the application.   They appeal from the order.

PROCEDURAL SEQUENCE

For reasons which will appear, we recite this sequence in chronological detail.   On September 5, 1980, appellants petitioned the probate court for their appointment as conservators of respondent's person “with additional powers.”   They alleged in their petition that respondent “is unable properly to provide for her personal needs” because she is “severely retarded.”   They requested that they be appointed as conservators of her person with the “additional power ․ to authorize the performance on conservatee of a salpingectomy or any other operation or treatment that will permanently sterilize but not unisex [sic ] the conservatee ․ because physicians have informed the petitioners that conservatee's mental retardation is a permanent condition.”

On September 25, 1980, the probate court conducted a hearing on the petition.   Respondent was interviewed in open court by a court-appointed investigator who reported that she (respondent) “had no comprehension of the proceedings.”   The court made a finding to that effect and appointed the public defender to represent respondent.   The public defender informed the court that there was “no objection” to the appointment of conservators as prayed, but that respondent objected to the “additional power” requested.   The court made an order appointing appellants as co-conservators of respondent's person.   Proceedings on their application for the “additional power” were continued.

An evidentiary hearing on the application was conducted on December 10, 1980.   In its support, appellants filed declarations by two physicians and by a counselor who specializes in “behavior management with developmentally disabled clients.”   The court also heard testimony by appellant Mildred G., respondent's mother.   At the conclusion of the hearing, the court orally denied the application for “additional power.”   On the same day (December 10, 1980), the court made a minute order stating:  “ORDER:  Application by Conservators for Additional Power to perform [sic ] surgery upon ․ the Conservatee herein is DENIED.”

On December 22, 1980, appellants filed a notice of appeal “from the Order entered herein on December 10, 1980.”

On June 12, 1981, the probate court signed and filed a formal order in which appellant's “request for special powers” was denied nunc pro tunc as of December 10, 1980.1

On August 18, 1981, appellants filed an “Amended Notice Of Appeal” in which they stated that they appealed “from the Nunc Pro Tunc Order filed on June 12, 1981, denying the special powers requested.” 2

THE EVIDENCE

As previously recited, the evidence received at the hearing conducted on December 10, 1980, included testimony by respondent's mother and declarations by two physicians and a counselor.   The evidence may be summarized and quoted as follows:

Respondent is 25 years old.   She is “severely retarded as a result of Down's syndrome,” and has an IQ of 30.   She lives with appellants in their home.   Her “social behavior in a lot of areas is not acceptable.”   This is particularly true with regard to men and boys, with whom she is “very aggressive” and “very affectionate” physically.   The counselor described this behavior as “inappropriate sexual attention to adult males.”

Appellants had attempted to have respondent take “birth control pills ․, which she rejected and became ill.”   Her mother testified that the use of contraceptive devices was not feasible because respondent “would not know how to apply them,” and that there was no “possibility for an IUD [intrauterine device] at this time” because respondent “won't cooperate” in having a pelvic examination performed.

The mother also testified to her opinions that an IUD was not “medically safe,” that tubal ligation was a “medically safe procedure,” and that there was no “feasible alternative to tubal ligation at this time.”   Asked why she wanted to have respondent sterilized, the mother stated:  “Because I do not wish her to become pregnant, but I would still like her to be able to broaden her social activities somewhat ․  I'm still concerned about her safety also, but that would be one problem that would be eliminated once and for all.”

Both physicians stated in their declarations that they were “aware of the family's desire to have a tubal ligation performed” on respondent, and that the “procedure is advisable and medically appropriate.”   There was agreement among the three declarants that pregnancy would cause “psychiatric harm” to respondent.

REVIEW

Probate Code section 2356, subdivision (d) (hereinafter cited on occasion as “the statute”), effectively prohibits the sterilization of any person who is under conservatorship in proceedings conducted pursuant to the provisions of the Probate Code pertaining to guardianship and conservatorship.3  As will appear in further detail, the statute was not in effect when the order under review was made;  appellants and the probate court ignored this fact and treated the statute as if it were in effect;  and appellants have accordingly presented the principal question on appeal in terms of a contention that the statute is unconstitutional.   As will also appear, the chronology of the proceedings is such that we may affirm the order under review without regard to the constitutional challenge of the statute.   These features of the appeal are discussed in the full chronology which is recited next.

The Background Of The Statute

In Guardianship of Kemp (1974) 43 Cal.App.3d 758, 118 Cal.Rptr. 64, a mentally incompetent ward appealed from an order of the probate court authorizing her guardian to have her sterilized.  (Id., at p. 760, 118 Cal.Rptr. 64.)   This court reversed the order on the grounds that the jurisdiction and powers of a probate court were “wholly statutory”;  that no statute authorized it to order the sterilization of an incompetent ward;  and that the order was therefore invalid for lack of jurisdiction.  (Id., at pp. 761–762, 765, 118 Cal.Rptr. 64.)   We observed that Welfare and Institutions Code section 7254 then established a “comprehensive scheme” for the sterilization of mentally incompetent persons who had been committed to state hospitals, and that “it may be concluded that the Legislature did not intend that sterilization of the mentally retarded was to be carried out without meeting the requirements” of that statute's prescribed “examination, notice, administrative hearings, administrative review, and judicial review.”  (Id., at p. 763, 118 Cal.Rptr. 64.) 4

In Guardianship of Tulley (1978) 83 Cal.App.3d 698, 146 Cal.Rptr. 266, cert. den., 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783, a guardian petitioned the probate court for an order requiring the sterilization of his mentally incompetent ward;  the petition was denied;  and the guardian appealed.  (Id., 83 Cal.App.3d at pp. 700–701, 146 Cal.Rptr. 266.)   The Court of Appeal affirmed, principally on the authority of Kemp.  (See id., at pp. 702–704, 146 Cal.Rptr. 266.)   Avoiding a contention by the guardian that the probate court's refusal to order the sterilization violated the ward's constitutional right of privacy, the Tulley court pointed out that Welfare and Institutions Code section 7254, as it read at the time (see fn. 4, ante ), did not “erect an absolute bar” to the sterilization of mentally incompetent persons if they were “inmates of a mental hospital” and if the “procedural safeguards” prescribed in that statute were met.  (83 Cal.App.3d at p. 705, 146 Cal.Rptr. 266.)

Significant statutory changes were made in two 1979 enactments.   In the first one, the Legislature repealed Welfare and Institutions Code section 7254 effective January 1, 1980.  (Stats.1979, ch. 730, § 156.5, p. 2540;  id., § 188, p. 2552.)   In the second enactment, the Legislature adopted Probate Code section 2356 (including its subdivision (d), the statute at issue here).  (Stats.1979, ch. 726, § 3.01, p. 2453.)   The Legislature thereby followed a recommendation made by the California Law Revision Commission as part of a program for comprehensive changes in the statutes pertaining to guardianships and conservatorships.  (See 14 Cal.Law Revision Com.Rep. (1978) pp. 501, 724–725;  15 Cal.Law Revision Com.Rep. (1980) pp. 451, 699–700.)   The commission pointed out in a contemporaneous comment that the enactment of section 2356, subdivision (d), was “consistent” with Guardianship of Kemp, supra, 43 Cal.App.3d 758, 118 Cal.Rptr. 64, and Guardianship of Tulley, supra, 83 Cal.App.3d 698, 146 Cal.Rptr. 266.  (15 Cal.Law Revision Com.Rep., supra, at p. 700.)

The Effect Of The Statute In The Present Proceedings

The 1979 enactment which added section 2356, subdivision (d), provided that it was not to become operative until January 1, 1981.  (Stats.1979, ch. 726, § 4, p. 2454.)   Although it was consequently not in effect when appellants applied to the probate court for the “power” to have respondent sterilized, they treated it as the principal impediment to the relief prayed and challenged its constitutionality.   The probate court cited it and relied on it when the application was denied on December 10, 1980.   The statute took effect before the formal order denying the application was filed on June 12, 1981, but that order was entered nunc pro tunc as of December 10, 1980.  (See fn. 1, ante.)   It therefore appears that the statute was not in effect at any time pertaining to the order of denial, which means that this court may sustain the order on the authority of Tulley and Kemp alone.  (Guardianship of Tulley, supra, 83 Cal.App.3d 698 at pp. 701–705, 146 Cal.Rptr. 266;  Guardianship of Kemp, supra, 43 Cal.App.3d 758 at pp. 761–763, 118 Cal.Rptr. 64.)

In conjunction with their constitutional challenge of the statute, appellants contended in effect that Tulley and Kemp are no longer authoritative because of the decision by the Supreme Court of the United States in Stump v. Sparkman (1978) 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 3311.   This contention is without merit.   The Stump court held that an Indiana judge who had authorized sterilization of a retarded minor was immune from personal liability under the federal Civil Rights Act of 1871 (42 U.S.C. § 1983).  (435 U.S. at pp. 355–360, 98 S.Ct. at 1104–1106.)   The court explicitly pointed out that the judge had jurisdiction to authorize the sterilization pursuant to Indiana law.  (Id., at pp. 358, 359–360, 364, 98 S.Ct. at 1105, 1106–1107, 1108.)   The decision clearly does not affect the holdings in Tulley and Kemp that the law of California does not vest a probate court with jurisdiction to authorize or order sterilization.   We may therefore follow Tulley and Kemp in the present case, and affirm the order under review, without regard to appellants' constitutional challenge of the statute.

 We are ordinarily enjoined from resolving a constitutional question on an appeal which may be decided on other grounds.  (Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65–66, 195 P.2d 1;  Alice v. Department of Social Welfare (1976) 55 Cal.App.3d 1039, 1045, 128 Cal.Rptr. 374.)   The present appeal may be decided on other grounds solely because the statute was prematurely applied by the probate court, with the consequence that the challenge of its constitutionality is moot.   We may properly resolve a moot point if it involves “an issue of continuing public interest that is likely to recur in other cases [citations] and such resolution is particularly appropriate when it is likely to affect the future rights of the parties before us.  [Citations.]”  (Daly v. Superior Court (1977) 19 Cal.3d 132, 141, 137 Cal.Rptr. 14, 560 P.2d 1193;  see also Libertarian Party v. Eu (1980) 28 Cal.3d 535, 539, 170 Cal.Rptr. 25, 620 P.2d 612;  City of Monterey v. California Coastal Com. (1981) 120 Cal.App.3d 799, 805–806, 174 Cal.Rptr. 798.)  “․ [W]e should not avoid the resolution of important and well litigated controversies arising from situations which are ‘capable of repetition, yet evading review.’  [Citations.]”  (In re William M. (1970) 3 Cal.3d 16, 23, fn. 14, 89 Cal.Rptr. 33, 473 P.2d 737;  City of Monterey v. California Coastal Com., supra, 120 Cal.App.3d at p. 806, 174 Cal.Rptr. 798.)   We find these features here, and we deal with the constitutional challenge accordingly.   For the reasons which follow in the sequence of appellants' arguments, we have concluded that section 2356, subdivision (d), is constitutional.

The Statute And The Right To Privacy

 Appellants contend that the statute is unconstitutional because it denies a conservatee's “fundamental right to privacy.”   Respondent has a fundamental right to choose whether or not to bear a child, and this is a right to privacy which is protected by the Constitution of the United States (Roe v. Wade (1973) 410 U.S. 113, 152–154, 93 S.Ct. 705, 726–727, 35 L.Ed.2d 147;  see Griswold v. Connecticut (1965) 381 U.S. 479, 483–486, 85 S.Ct. 1678, 1681–1682, 14 L.Ed.2d 510) and the Constitution of California.  (Cal. Const., art. I, § 1;  Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779;  People v. Belous (1969) 71 Cal.2d 954, 963–964, 80 Cal.Rptr. 354, 458 P.2d 194, cert. den., 397 U.S. 915, 90 S.Ct. 920, 25 L.Ed.2d 96.)   Only a compelling state interest will justify limitations on the exercise of the right.  (Roe v. Wade, supra, 410 U.S. at p. 155, 93 S.Ct. at pp. 727–728;  People v. Privitera (1979) 23 Cal.3d 697, 702, 153 Cal.Rptr. 431, 591 P.2d 919, cert. den., 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318.)

Appellants treat the constitutional right of privacy as synonymous with “a constitutional right to sterilization.”   The courts of this state have recognized that a competent adult may be sterilized voluntarily (see Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 745–749, 79 Cal.Rptr. 359), but appellants have cited no California authority—and we know of none—supporting their contention that they may in effect compel respondent to be sterilized.   The question presented may therefore be stated as whether the right to sterilization, which is held by a competent person, may validly be denied to one who is incompetent.

Several courts in other jurisdictions have answered this question in the negative.  (See Matter of C.D.M. (Alaska 1981) 627 P.2d 607, 611–612;  Matter of A.W. (Colo.1981) 637 P.2d 366, 374–375;  Matter of Moe (Mass.1981) 385 Mass. 555, 432 N.E.2d 712, 718–720;  In re Penny N. (N.H.1980) 120 N.H. 269, 414 A.2d 541, 542;  In re Grady (N.J.1981) 85 N.J. 235, 426 A.2d 467, 474–475, 481;  Matter of Sallmaier (N.Y.Sup.Ct.1976) 85 Misc.2d 295, 378 N.Y.S.2d 989, 991;  Matter of Terwilliger (Pa.Super.1982) 304 Pa.Super. 553, 450 A.2d 1376, 1380–1382;  Matter of Guardianship of Hayes (Wash.1980) 93 Wash.2d 228, 608 P.2d 635, 638.)   We decline to follow these courts for two reasons.

 In the first place, it was held in each of the cited decisions that the respective trial or probate court was empowered to order sterilization on a jurisdictional basis which is not applicable in this case.   It was held in most instances that the lower court had the authority to order sterilization pursuant to its general, inherent, or equitable powers.  (Matter of C.D.M., supra, 627 P.2d 607 at p. 612;  Matter of A.W., supra, 637 P.2d 366 at pp. 374–375;  Matter of Moe, supra, 432 N.E.2d 712 at pp. 718–719;  In re Grady, supra, 426 A.2d 467 at pp. 479–481;  Matter of Sallmaier, supra, 378 N.Y.S.2d 989 at p. 991;  Matter of Terwilliger, supra, 450 A.2d 1376 at pp. 1380–1382.)   One of the reviewing courts held that this authority was derived from statute.  (In re Penny N., supra, 414 A.2d 541 at pp. 542–543.)   Another held that it was derived from the constitution of the state involved.   (Matter of Guardianship of Hayes, supra, 608 P.2d 635 at pp. 638–639.)   In California, however, jurisdiction and powers of the probate court are “wholly statutory” (Guardianship of Kemp, supra, 43 Cal.App.3d 758 at p. 761, 118 Cal.Rptr. 64) and no statute authorizes it to order sterilization.

The second reason reflects matters of history and social ethics.   The power to sterilize is subject to abuse.  (See Maxon v. Superior Court (1982) 135 Cal.App.3d 626, 632, 185 Cal.Rptr. 516;  Stump v. Sparkman, supra, 435 U.S. 349 at pp. 351–354, 98 S.Ct. 1099 at pp. 1102–1103;  Downs v. Sawtelle (1st Cir.1978) 574 F.2d 1, 4–6, cert. den., 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 256;  Ferster, Eliminating the Unfit—Is Sterilization the Answer?  (1966) 27 Ohio St.L.J. 591, 592–594;  Haldane, Heredity and Politics (1938) 102–105.)   The interests of parents and their children in the subject are by no means identical, and are often opposed:  “The inconvenience of caring for the incompetent child coupled with fears of sexual promiscuity or exploitation may lead parents to seek a solution which infringes their offspring's fundamental procreative rights.”  (Matter of A.W., supra, 637 P.2d 366 at p. 370;  see also A.L. v. G.R.H. (Ind.App.1975) 163 Ind.App. 636, 325 N.E.2d 501, 502.)

Appellants are seeking an “awesome power” to effect an “extreme remedy.”   (Guardianship of Tulley, supra, 83 Cal.App.3d 698 at p. 701, 146 Cal.Rptr. 266.)   The fact that “the parents seek to have the child['s] rights exercised in favor of sterilization, rather than against it, does not affect the character of the right.   They may neither veto nor give valid consent to the sterilization of their child ․”  (Ruby v. Massey (D.Conn.1978) 452 F.Supp. 361, 366.)

 The state obviously has a compelling interest in enacting a statute which preserves and protects a fundamental right of a person in respondent's unfortunate situation, and which is personal to her.   Proof of the desirability of sterilization has been rejected as inadequate in situations similar to the one presented here.  (See Guardianship of Tulley, supra, 83 Cal.App.3d 698 at pp. 700–701, 704–705, 146 Cal.Rptr. 266;  Ruby v. Massey, supra, 452 F.Supp. 361 at pp. 363–364, 366.)  Section 2356, subdivision (d), is not an unconstitutional violation of a conservatee's right to privacy.

The Statute And Due Process

Appellants also contend that the statute deprives respondent of due process of law.   This contention amounts to a restatement of their first argument, in that the right of privacy is a right protected by due process (see Moore v. East Cleveland (1977) 431 U.S. 494, 499, 97 S.Ct. 1932, 1935–1936, 52 L.Ed.2d 531;  Roe v. Wade, supra, 410 U.S. 113 at p. 153, 93 S.Ct. at pp. 726–727) and any limitation of the right may be justified only by a compelling state interest.  (See People v. Privitera, supra, 23 Cal.3d 697 at p. 702, 153 Cal.Rptr. 431, 591 P.2d 919 and cases cited.)

The statute was enacted pursuant to the state's police power, which has been described as follows:  “The police power is the power to govern.   It is the inherent, reserved power of the state to subject individual rights to reasonable regulation in the interest of the general welfare.  [Citations.]  [¶] The state has the sovereign right to protect its citizens and has wide discretion when it exercises its police power for this purpose.   The existence of the police power imposes upon the state the duty to take adequate steps to protect the lives of its residents.  [Citations.]”  (In re Quinn (1973) 35 Cal.App.3d 473, 486, 110 Cal.Rptr. 881, disapproved on another point in State of California v. San Luis Obispo Sportsman's Ass'n (1978) 22 Cal.3d 440, 447–448, fn. 6, 149 Cal.Rptr. 482, 584 P.2d 1088;  see also 5 Witkin, Summary of Cal.Law (8th ed. 1973) Constitutional Law, §§ 435–438, pp. 3734–3738.)

The California Supreme Court has held that “ ‘[i]n the exercise of its police power a Legislature does not violate due process so long as an enactment is ․ reasonably related to a proper legislative goal.   The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to resolve all related ills at once will invalidate a statute.’   [Citations.]”  (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 78, 177 Cal.Rptr. 566, 634 P.2d 917 [italics added by Supreme Court].)

 California has gradually been restricting the circumstances in which involuntary sterilization may be performed.  (See Guardianship of Kemp, supra, 43 Cal.App.3d 758 at p. 762, 118 Cal.Rptr. 64.)   The enactment of the statute concurrently with the repeal of former Welfare and Institutions Code section 7254 is convincing evidence that the Legislature has determined to end the state's participation in the sterilization of incompetent persons.   In light of the actual and potential abuse of this “extreme remedy which irreversibly denies a human being the fundamental right to bear and beget a child” (Guardianship of Tulley, supra, 83 Cal.App.3d 698 at p. 701, 146 Cal.Rptr. 266), the Legislature's determination is “reasonably related to a proper legislative goal.”  (See Hernandez v. Department of Motor Vehicles, supra, 30 Cal.3d 70 at p. 78, 177 Cal.Rptr. 566, 634 P.2d 917.)

The Statute And Equal Protection

 Appellants further contend that the statute operates to deny respondent the equal protection of the laws.   Because the statute does not infringe upon a fundamental right (as discussed supra ), it is presumed to be constitutional and it will be sustained against an equal protection challenge if it rests on a classification which is rationally related to a legitimate state purpose.  (See In re Flodihn (1979) 25 Cal.3d 561, 568, 159 Cal.Rptr. 327, 601 P.2d 559;  In re Kimbler (1979) 100 Cal.App.3d 453, 457, 161 Cal.Rptr. 53; Department of Motor Vehicles v. Superior Court (1976) 58 Cal.App.3d 936, 941, 130 Cal.Rptr. 311.)   In making that challenge here, appellants bear the burden of proving that the statutory differentiation is unreasonable.  (See Board of Medical Quality Assurance v. Superior Court (1980) 114 Cal.App.3d 272, 277, 170 Cal.Rptr. 468.)

 Appellants contend in effect that the statute unreasonably classifies incompetents as different from competent persons, and that it thereby deprives the former of their right to sterilization on the same terms afforded to the latter.   Respondent argues that the statute distinguishes between the two groups on the basis of whether “informed consent” may be given by the person involved.   This distinction is clearly embodied in the statute.   It is rationally related to the state's legitimate concern in limiting sterilization to those who may choose to undergo the procedure with full knowledge of its consequences.   Appellants have failed to meet their burden of establishing a violation of equal protection.   Other contentions made by them need not be reached.

The order under review is affirmed.

FOOTNOTES

1.   With some nonsubstantive corrections by this court, the formal order read in part as follows: “ORDER NUNC PRO TUNC“Petitioners' request for special powers to perform [sic ] a tubal ligation on the conservatee ․ came on for hearing on December 10, 1980.   A formal order denying Petitioners' motion for the special powers was inadvertently not prepared at that time.   Therefore, it is ordered Nunc Pro Tunc that the request of Petitioners is hereby denied for the reasons stated on the record at said hearing.”

2.   The appeal is timely in these circumstances.  (See Cal.Rules of Court, rule 2(c).)   The order is appealable pursuant to Probate Code section 2750, subdivision (e), which provides in pertinent part:  “An appeal may be taken from the making of, or the refusal to make, a judgment, order, or decree doing any of the following: ․  [¶] (e) Authorizing or instructing a ․ conservator ․”  (Italics added.)

3.   Statutory citations are to the Probate Code except where expressly indicated otherwise.   The statute appears in chapter 5 (“Powers and Duties of Guardian or Conservator of the Person,” commencing with § 2350) of part 4 (“Provisions Common to Guardianship, Conservatorship, and Other Protective Proceedings,” commencing with § 1400).   The statute provides:“2356․  [¶] (d) No ward or conservatee may be sterilized under the provisions of this division.”

4.   As will appear in the text, Welfare and Institutions Code section 7254 was repealed in 1979.   We refrain from quoting it for that reason, and because of its length.  (For its language as it read when Kemp was decided, see Stats.1971, ch. 1593, § 441, pp. 3371–3372;  for its language as last amended, see Stats.1977, ch. 1252, § 658, pp. 4609–4610.)

RATTIGAN, Acting Presiding Justice.

POCHÉ and SIMS *, JJ., concur.

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