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In Re Phillip B

Citation. In re Phillip B., 92 Cal. App. 3d 796, 156 Cal. Rptr. 48, 1979)
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Brief Fact Summary.

A petition was brought seeking to declare a child a dependant of the court to ensure that he received surgery recommended by physicians but refused by his parents.

Synopsis of Rule of Law.

Parents have a substantial interest in determining when surgery is appropriate for their children. Such an interest will not be overruled by the state when there are conflicting concerns regarding the dangers of surgery versus its potential benefits.


Phillip was a 12 year old suffering from Down’s Syndrome. At birth his parent’s decided he should live in a residential care facility. He suffers from a congenital heart defect, which if not corrected could damage the lungs to the point of eventual death. At initial diagnosis of his condition, his cardiologist recommended cardiac catheterization, which his parents refused. Four years later the procedure was again recommended, and his parents consented. The procedure revealed the extensive nature of Phillip’s septal defect, and his doctor recommended surgery. A second opinion revealed that the surgical mortality rate was between five and ten percent, and that both Phillip’s Down’s Syndrome and the extensive nature of the disease would increase this risk. Without the operation, he would begin to function less physically until he is eventually severely incapacitated, with a further lifespan at the outside of 20 more years. A petition was filed in juvenile court alleging P
hillip came within a California welfare statute because he was not provided with the necessities of life. The petition requested he be declared a dependant child of the court for the special purpose of ensuring he received the surgery.


Did the court err by finding that it had not been shown that Philip was not provided with the necessities of life?


The decision of the court was not clearly erroneous based on the balance of the potential benefits to be gained by surgery versus the risks involved.
That parental autonomy is constitutionally protected is fundamental. However, it is not absolute. The state, as parens patriae, has a duty to protect children. One of the most basic values to protect is the sanctity of human life.

When parents fail to provide their children with adequate medical care, the state is justified to intervene. However, the state has a serious burden of justification prior to abridging parental autonomy. Several relevant factors must be considered, including: the seriousness of the harm the child is suffering or the substantial likelihood he will suffer serious harm; the evaluation for the treatment by the medical profession; the risks involved in treatment; and the expressed preferences of the child. The underlying consideration is the child’s welfare and if his best interests will be served by the medical treatment.

The trial judge dismissed the petition based on the finding that there was no clear and convincing evidence to sustain it. The appellate court must only determine if there is substantial evidence which will support the conclusion reached by the trier of fact. In this case, evidence revealed that Phillip’s case was more risky than the average based both on his Down’s Syndrome and the advanced nature of his condition. The trial judge cited the inconclusiveness of the evidence to support the petition, and this Court cannot say as a matter of law that there was no substantial evidence to support this finding.


The Court stressed that it only found that the trial court did not err based on the applicable standard and considering testimony regarding the potential dangers of the surgery.

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