APPEAL from an order of the Children's Court of Erie County (WYLEGALA, J.), entered May 10, 1954, in Erie County, which denied an application of appellant for an order declaring the infant to be a neglected child and temporarily transferring custody of him to the Commissioner of Social Welfare of Erie County for the purpose of consenting to the performance of such medical, surgical and dental services as might be necessary for the infant.
Elmer R. Weil, County Attorney (George M. Nelson and Wortley B. Paul of counsel), for appellant.
William G. Conable and Whitney W. Gilbert for respondents.
This is an appeal by the petitioner, a deputy commissioner of the Erie County Health Department, from an order of the Children's Court of Erie County denying the prayer of the petition. The petition sought transfer of custody of a twelve-year-old boy from his parents to the Commissioner of Social Welfare 'for the purpose of consenting to the performance of such medical, surgical and dental services as may be necessary'. The summons is directed to Martin Seiferth, Jr., and his parents. The boy is afflicted with a congenital harelip and cleft palate which seriously detract from his appearance and his chances for a useful, productive life. His father for unsubstantial reasons refuses to consent to medical treatment to correct this condition, and the court below has declined to order an operation. That disposition of the case, we believe, represents an abuse of discretion.
The child has a continuous cleft running from the upper lip and teeth through the roof of the mouth. This produces a marked speech defect, and the teeth are in a state of disrepair and decay. The lip can be repaired. Later, surgery could be used to close as much of the palate as possible, with benefit to the boy's speech. The risk in such an operation is negligible. It is too late, however, to use surgery on the front part of the palate, which would require dental appliances. According to
the medical testimony, 'a very worthwhile improvement could be made'. This treatment should be given as soon as possible because the boy will soon enter adolescence and because results become less favorable as the patient advances in age.
The child's mother did not testify, and her views on the matter are unknown. The father stated that he was not basically opposed to an operation but thought the time was not right. He would consent if the child 'in a few years' should decide in favor of treatment. He preferred to rely on 'forces in the universe', which would enable Martin to cure himself of his own accord. A surgeon's work would so interfere with the body that 'in order to recover the individual would have to remedy the surgeon's distortion first and then go back to the primary task of healing the body'. This is a philosophy or theory of healing, not a religion of any kind. A small group of believers, without a leader or literature, meet and exercise the forces. Asked if it would not contribute to the boy's happiness if the defect were corrected, his father replied, 'It would make a great deal of difference if it were done now. The child, of course, is exposed to criticism from many parts.' However, he thought Martin had overcome ridicule by pleasantness and enjoyed a happy home life. He further noted that, having been taught that physicians are unnecessary, Martin feared them.
The court below placed the responsibility of decision upon the child himself. Physicians explained the operations to him. He was shown photographs and listened to voice records. He stated that, without interference from his father, he had decided to try for some time longer to close the cleft palate and harelip through 'natural forces'. The court below, therefore, denied the petition but stated that 'had this proceeding been instituted before this child acquired convictions of his own, on the same evidence as presented in the present case, the order for medical surgery would have been granted without hesitation'. The court refused to find that the surgery could be performed 'without any dangerous mental reaction to the infant', but concluded that the parents refused, when able to do so, to provide necessary medical and dental services and speech training within the meaning of paragraph (e) of subdivision 4 of section 2 of the Children's Court Act.
Paragraphs (e) and (g) of subdivision 1 of section 6 of the Children's Court Act confer upon the Children's Court jurisdiction of 'neglected' and 'physically handicapped' children. A neglected child is one under sixteen years of age whose
parent 'neglects or refuses, when able to do so, to provide necessary medical, surgical, institutional or hospital care for such child' (§ 2, subd. 4, par.[e]). A physically handicapped child is one under twenty-one years of age 'who, by reason of a physical defect or infirmity, whether congenital or acquired by accident, injury or disease, is or may be expected to be totally or partially incapacitated for education or for remunerative occupation, as provided in the education law, or is or may be expected to be handicapped, as provided in the public health law.' (Children's Court Act, § 2, subd. ; Education Law, § 4401; Public Health Law, § 2581.) The one definition stresses the cause (parental neglect), the other stresses the result (incapacitation). Obviously, a physically handicapped child may also be neglected. Section 24 of the Children's Court Act applies to both classes: 'Whenever a child within the jurisdiction of the court and under the provisions of this act appears to the court to be in need of medical or surgical care or therapeutic treatment, hospital care, necessary appliances and devices or of special educational training * * * a suitable order may be made for the treatment or education or both of such child in its home, a hospital, or other suitable institution'. This section contemplates medical treatment over the opposition of the parents. (Matter of Vasko,
238 App.Div. 128.) If they consented, no order would be necessary. The statute is not simply a means by which financially incapable parents may procure county aid, for they may be ordered to pay part or all of the expenses. Furthermore, there need be no 'emergency'. (Matter of Rotkowitz, 175 Misc. 948.) This section is expressly discretionary with the court, and if it applied only where life ...