Lulos v. State

548 N.E.2d 173 (1990)

Nicholas LULOS and Alberta Lulos, Guardians of Victoria Angelina Lulos, Appellants, v. STATE of Indiana, Appellee.

No. 02A03-8908-CV-345.

Court of Appeals of Indiana, Third District.

January 11, 1990.

Michael P. O'Hara, Barrett & McNagny, Fort Wayne, for appellants.

Linley E. Pearson, Atty. Gen., William E. Daily, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Appellants Nicholas and Alberta Lulos appeal the Allen Superior Court's denial of an amended petition authorizing a tubal ligation for their incompetent adult daughter. The facts indicate that Victoria Lulos was born July 4, 1968. Nicholas and Alberta Lulos adopted Victoria when she was 2 1/2 months old. Expert medical testimony revealed that Victoria is autistic and mentally retarded. Victoria cannot care for herself in any way and needs constant supervision. Nicholas and Alberta Lulos cared for Victoria in their home for 20 years. The Luloses contemplate placing Victoria in a co-ed group home. Victoria is capable of conception but unable to care for a child. Because of Victoria's self-destructive tantrums, pregnancy would pose a health threat to her and the fetus.

On November 9, 1987, the Allen Superior Court appointed Nicholas Lulos as guardian of Victoria. On November 14, 1988, Nicholas and Alberta Lulos filed an amended petition to have a tubal ligation performed on Victoria. The Luloses argue the Allen Superior Court erred in the following:

"The Court finds that petitioner has failed to sustain his burden of proof by clear and convincing evidence that a life threatening situation exist regarding the relief sought in the petition. Accordingly, the Petition to Have Tubal Ligation performed on incompetent is hereby denied."

IND. CODE § 33-4-4-3 (1988 Ed.) confers original jurisdiction in all civil cases to the circuit court. IND. CODE § 33-5-5.1-4 (1988 Ed.) provides that the Allen Superior Court has the same jurisdiction as the Allen Circuit Court. Neither by statute nor by case law has the broad jurisdiction granted to the Allen Superior Court been circumscribed to foreclose consideration of a guardian's petition for sterilization of an incompetent adult. See Stump v. Sparkman (1978), 435 U.S. 349, 358, 98 S. Ct. 1099, 1105, 55 L. Ed. 2d 331.

IND. CODE § 16-8-12-4(a) (1988 Ed.) permits a judicially appointed guardian to consent to health care for an adult incapable of making decisions regarding health care. IND. CODE § 16-8-12-1(2) (1988 Ed.) defines health care as any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition. IND. CODE § 16-8-12-4(d) (1988 Ed.) states that an individual authorized to consent to health *174 care for another shall act in good faith and in the best interest of the individual incapable of consenting.

P.S. by Harbin v. W.S. (1983), Ind., 452 N.E.2d 969, ruled the Marion Superior Court, Juvenile Division, had jurisdiction to authorize the sterilization of an autistic female child when clear and convincing evidence showed that the medical procedure was in the best interest of the child.

In the present case, the trial court erred by using the wrong standard of proof. The trial court incorrectly required clear and convincing evidence that a life threatening situation existed. The proper standard of proof requires clear and convincing evidence that the judicially appointed guardian brought the petition for sterilization in good faith and the sterilization is in the best interest of the incompetent adult.

Reversed.

STATON, J., concurs.

SULLIVAN, J., concurs with opinion.

SULLIVAN, Judge, concurring.

Appellants seem to take the position that they, as guardians of Victoria, have authority to consent to the sterilization and that this consent may confer upon a health care provider the authority to effect such sterilization without a carefully considered judicial order.[1] The majority opinion seems to adopt this position when it states that "IND. CODE § 16-8-12-4(a) (1988 Ed.) permits a judicially appointed guardian to consent to health care for an adult incapable of making decisions regarding health care."

I am not at all convinced that sterilization under circumstances such as before us constitutes "health care" as defined by I.C. XX-X-XX-X(2). In any event sterilization under Indiana law must, in my view, occur only after an evidentiary hearing, following which the court finds clear and convincing evidence that sterilization is in the best interests of the individual concerned without regard to whether a guardian has consented.

In the case before us the evidentiary hearing was conducted but the court, as correctly noted by the majority, utilized the wrong standard of proof. I therefore concur in the reversal and remand for further proceedings.

NOTES

[1] The State of Indiana by the Attorney General has waived the filing of a brief and states that it is not opposed to the granting of the relief sought by the appellants.