In Re Hudson , 13 Wash. 2d 673 ( 1942 )

As a member of this court, I feel impelled by a strong sense of duty to place of record some conclusions I have relative to the instant case, not only because of the great importance of the question involved, but also because of the vital effect this decision will have upon the child involved in this proceeding, as well as the effect of the majority opinion upon future cases concerning unprotected and suffering children who are in urgent need of medical care.

While I appreciate the careful attention given to the case by the writer of the majority opinion, I cannot bring myself to an agreement upon the theory advanced nor the result obtained.

We live in a time of inquiry and innovation, when many things having the sanction of time and many novelties jarring with long accepted theories are proposed. I intend to show, however, that the action of the trial court was, though possibly new in this state, based soundly on time honored reasoning and in keeping with the modern trend toward child protection.

To demonstrate the validity of this conclusion, my opinion will be discussed in two parts. First, was Patricia Hudson a dependent child within the provisions of our juvenile court act? Second, did the juvenile court possess the power to order the performance of the operation notwithstanding the mother's objection?

The majority opinion states that the child's father and mother shirked their "sacred duty." It does not state of what the sacred duty consisted.

It is my opinion that the duty they shirked was twofold. First, a failure to furnish medical and surgical care for their daughter, as well as to follow the advice of the learned men of the medical profession, and, second, the failure to make their parental decision regarding the operation, free from selfish, personal interests. Consequently, I feel that the trial court properly assumed the duty which had theretofore been placed upon the parents and that it, after due and careful consideration, properly ordered the amputation of the child's arm.

Patricia, who is now eleven years of age and the youngest of nine children, has a deformed left arm that has grown to an enormous size. Words cannot well describe this terrible, physical deformity. Her condition may best be described by reference to measurements from a photograph admitted in evidence. Her height takes up 4 1/2 inches of the picture, her waist 9/16th of an inch, her arm at its widest part, 1/2 inch, the hand from the base of the thumb to the outer portion of the hand, 11/16th of an inch, the arm from the point of the index finger to the top of the shoulder 2 1/2 inches (but her height is 4 1/2 inches). The offending arm is ten times the size of the other arm. It will be noted from this description that the overgrown arm is nearly as large as the body. Patricia does not attend the public school, but has a home teacher.

In order to show the condition of the child, the evidence given by members of her family and the doctors who examined her will be set out.

Dwane Hudson, a brother, fifteen years of age, stated:

"Many times when I have been with my sister with that always like it is, it gave me kind of a funny feeling. And then many times she has told me, she said she wished she had the arm off, because then she could wear clothes like the other girls could. And mother wont allow her to wear a skirt or sweater, and that is what she wants done. And she says that this is an awful load on her body, and she wishes it was off. She has cried many times on account of that."

A sister, Mrs. Delpha Clyde, twenty years of age, testified:

"Well, I have always felt that Patty was handicapped. I have a son of my own and I know how mother feels. But I believe if it was my son I would consent, because I think that every child is entitled to a normal life, and her chances apparently are more than 50-50, and I can't see any — I think that she would be so much better off, even though she did not live, than she is handicapped the way she is."

Maude Bucklin, a sister, thirty years old, said:

"Well, only that I never have seen how the child could possibly live a normal life like she is, and if nothing could ever be done, nothing can be done with that arm to bring it down to make it less conspicuous, I would be inclined — well, I think it should be amputated. There is no question. I am willing to take the doctors' word that the chances are better life minus the arm than the way she is."

Leona Salgot, another sister, thirty years of age, gave the following testimony:

"Q. What is your attitude toward this situation? A. Well, I certainly think that the arm should be amputated, if that is the only thing the doctors found they could do. I don't know that any other opinion should be relied on more than theirs, and it seems to me that their opinion should be something that we could count on. And inasmuch as it is impossible for Patty to live a normal life, and anyone who has seen the little child — I live at home, and once in a while she is allowed the freedom of going without her wrap, and if there is a knock on the door she runs like an animal to get in her smock before anyone can see her, because she is so horrified about it. And the truth of Patricia being out of school is because she was jeered at by the other children in the school, and she could not stay there, because the teachers cannot be bothered with a thing like that. And she stayed out of school. And it keeps her out of life, and it will keep her out of everything eventually, because she cannot help taking that with her in life. And as far as her happiness is concerned, I think that anyone knows that a person does not want sympathy but happiness. It is doing something for themselves. Anyone would be more than happy to do for Patricia what we could, but she would not be happy that way. If she knew she could not go about the world for herself and could not be one with other people. That is our attitude for Patricia's welfare and for her happiness. I have tried to think of every angle, what could possibly be done for her if she would live the way she is or if she could have care and could go out in the world with other people, and the only thing I can see is to have the arm taken off and make it possible for her to take her place in society. To a certain extent it would be possible for her, and that is much better than the way she is. In fact, there is no chance for her the way it is. And I do not feel that there is such a lot of risk. The doctors have given her more than a 50-50 chance, and I think if Patricia — I think if Patricia were older I am sure that that is what she would want done."

Claude Hudson, the invalid father, was very indefinite in his testimony, but summed up his conclusions as follows:

"I will tell you, I don't want to stand in the way at all of helping the child at all. I think if anything can be done to help her so that she can go out after she gets grown-up and take her place in life with the rest of the people like the rest of the people can, that she can wear the same kind of clothes, and that she can go out, why I don't want to stand in her way a particle. And another thing, I don't want to take — I don't want to take and hold her back and pin her down. So that I realize in the condition she is in at the present time nothing can be done with her. She has always got to be dependent on somebody. Somebody will have to stay with her and will more or less have to take care of her all her life. That is, she will never be able to be out on her own. . . It is up to — I am leaving it in the Judge's hands. I am leaving it right there. You can take my place Judge. You know your testimony. You know your testimony. And if you and the rest of them think that is the only thing, that is you know more about it than I do."

The girl's mother was decidedly opposed to the performance of the operation. She stated that Patricia had been born with the affliction, and that the arm had grown in size at about the same rate as the remainder of her body. About the only thing which she had attempted to do in order to correct the deformity was to employ a "divine healer" who had treated by prayer alone for a period of approximately four years. The child has never had any medical or surgical treatment for her deformity. Three years prior to the date of the hearing, the mother took her daughter to the orthopedic hospital in Seattle. An amputation was advised but she would not consent.

Dr. Edward LeCocq, a member of the Children's Orthopedic Hospital staff, testified:

"Q. In that capacity have you had occasion to examine Patricia Hudson, the child mentioned in this petition? A. Yes. Q. When did you examine her? A. I examined her, I don't know, a year or two ago, and then again last Tuesday, that is Tuesday of this week. Q. What was the occasion of your examining her a year or so ago? A. She had an enormously enlarged arm, the left upper extremity. Q. How did you happen to be called in to examine her at that time? At whose request was it? A. Well, I think she was brought to the hospital and was assigned to our service there. Q. And then recently when the court directed the child to be placed in the hospital you examined her again? A. Yes. Q. Will you kindly state, doctor, just what you have found to be the child's condition, and what in your opinion is the proper treatment for it? A. Well, this one arm is enormously enlarged. It must be — I should think it would weigh ten times that of a normal extremity. This is true also of the fingers which are present. The fingers have a very limited degree of useful function. The child appears rather frail. I think it is suffering from the effects of this enormously heavy, useless extremity, which she carries around with her, and I believe that for the sake of her general health the extremity should be removed. Q. What is this condition? What is it called? How do you describe it technically? A. Well, it is a congenital condition, apparently some abnormality in the development of the extremity. It is somewhat similar to a case of localized elephantiasis, in which the extremities become gradually enlarged. That is a tropical disease. Q. A what? A. That is a tropical disease. This is not a true elephantiasis, but it is perhaps of that nature. Q. If nothing is done for her, what is the prognosis? A. Well, I feel that the prognosis for life is not nearly as good as it would be if she did not have to nourish this enormous thing with her own little body. And I think that her general condition would be much improved if it is removed. If it is not removed, I think that she is going to remain in such a rather weakened condition that perhaps some infection or intercurrent infection, which might be, say pneumonia, or something of that sort — she would be an easy prey for anything of that sort. The heart, of course, is burdened a great deal by reason of having to pump blood through this large extremity."

Dr. Darrell G. Leavitt, also a member of the staff of the Children's Orthopedic Hospital and who had practiced as a special bone and joint surgeon since 1930 in the city of Seattle, gave the following testimony:

"Q. Doctor, have you had occasion recently to examine Patricia Hudson, the child mentioned in this case? A. Yes, on last Tuesday I saw her briefly. I did not make as complete an examination as I think Dr. LeCocq, because she was directly under his supervision, but he asked me to come in and see the child. And I had previously superficially examined her in the clinic before when she was in. Q. You have heard the description that Dr. LeCocq has made of the child's condition. Is there anything that you wish to add or correct to that testimony? A. I think possibly all that I would do would be to support what he has said in general. This is not an unknown thing at all. It is a thing that we have seen in various portions of the body quite frequently. It may involve a large toe, such as a toe that cannot be put in a shoe. Under those circumstances in my experience I have seen those things trimmed down to a point where function was more nearly normal. Or in such circumstances as this where the deformity was so great, and the weight and the unwieldiness and, as Dr. LeCocq said, the part attracts so much attention, I believe that the risk that would be involved in removing the extremity would be well worthwhile in this girl's own opinion, were she able and old enough to choose. Q. Do you know what the cause of that condition is, doctor? A. Hypertrophy of an extremity can be caused by more than one thing. A localized hypertrophy, where they are congenital, anything that is there present before the child is born, the causes cannot be more than theorized upon usually. However we know that some disturbance or variation in the degree or amount of circulation to the limb or extremity can have a great deal to do with the rate of growth of the extremity. So that inside of this there is a communication between the artery and the vein of an extremity, called a congenital arteriovenous aneurysm, which is an abnormal shooting of blood between the artery and the vein, and the circulation of the extremity is so impaired that there is congestion, and the congestion permits abnormal growth in the size of the bone and the soft tissues. And it is also known in the presence of some of these aneurysms the life of the individual is remarkably shortened often because of the abnormal stress placed upon the circulatory system. Q. Is there any way that that extremity could ever be used? A. No, sir. Q. Does the child have any control over it? A. A slight control over the extremity, but not from the standpoint of putting it to any useful function, it is not practical at all. That is the encumbrance so outweighs the use of the extremity that there is just a preponderance of hindrance. Q. Is there any known method of treatment other than surgery for such a condition as this? A. Not of this condition in this case."

Our juvenile court law, Rem. Rev. Stat., §§ 1987-1 to 1987-18 [P.C. §§ 593 to 610], inclusive, relates to the welfare, care, and disposition of dependent children. The pertinent portions of § 1987-1 define dependent children as:

"For the purpose of this act the words `dependent child' shall mean any child under the age of eighteen years:

"(6) Who is destitute; or

"(7) Whose home by reason of neglect, cruelty, or depravity of its parents or either of them, or on the part of its guardian, or on the part of the person in whose custody or care it may be, or for any other reason, is an unfit place for such child; or . . .

"(13) Whose father, mother, guardian or custodian is an habitual drunkard; or do not properly provide for such child, and it appears that such child is destitute of a suitable home or of adequate means of obtaining an honest living, or who is in danger of being brought up to lead an idle, dissolute or immoral life; or where such child is without proper means of support; . . ." (Italics mine.)

The last portion of § 1987-1 reads:

"For the purpose of this act only, all delinquent and dependent children within the state shall be considered wards of this state and their persons shall be subject to the custody, care, guardianship and control of the court as hereinafter provided."

These sections of the statute give the juvenile court power to extend care to all dependent children.

To determine whether or not Patricia was destitute and thus a dependent child, an investigation of the meaning of the term "destitute" must be made. Among the definitions found in Webster's New International Dictionary (2nd ed. 1940) is this one: "Not possessing the necessaries of life." Another is the following from Black's Law Dictionary (3rd ed. 1933) 567: "Not possessing the necessaries of life and in a condition of extreme want (citing cases)."

That this court is inclined to define the word in a similar manner is indicated by the following quotation from In re Day,189 Wn. 368, 65 P.2d 1049:

"Until the appearance of the father upon the scene, the children, while not destitute in the sense that they were in want of the necessities of life, were proper subjects for the care of the court, if the court should, upon being advised of the facts, deem an investigation advisable."

Medical services are necessary, and a child who is not furnished such services is destitute. This precise question was answered in Esteb v. Esteb, 138 Wn. 174, 244 P. 264,246 P. 27, 47 A.L.R. 110. In that case, the court was troubled with the problem of whether it had the power to compel a divorced father to provide for his minor child's college education, custody having been granted to the mother. The solution, in turn, depended in part upon the meaning of a "necessary." In holding that the court possessed the authority to compel the father to provide for the college education, this definition of a "necessary" was stated:

"Under practically all the authorities those things are necessary which include shelter, food, clothing and medicalattendance, together with an education." (Italics mine.)

Without even employing legal reasoning, surely common sense would demand a conclusion that, if a college education was a necessary, medical and surgical care must perforce be one also.

The annotations found in 71 A.L.R. 227, prove that courts and textbook writers since the days of Lord Coke have concluded that medical and surgical services are necessaries.

"The principal items included under infant's necessaries are his food, clothing, lodging, medical attendance, and education." Madden on Domestic Relations, p. 545.

We find the rule stated in 27 Am. Jur. 762, Infants, § 20:

"Medical and dental services reasonably required by the infant are usually classed as necessaries."

Accord: Strong v. Foote, 42 Conn. 203; Leach v. Williams,30 Ind. App. 413, 66 N.E. 172; French v. Burlingame,155 Mo. App. 548, 134 S.W. 1100; Des Mond v. Kelly, 163 Mo. App. 205,146 S.W. 99; McLean v. Jackson, 12 Ga. App. 51, 76 S.E. 792;Cole v. Wagner, 197 N.C. 692, 150 S.E. 339, 71 A.L.R. 220;Simoneau v. Pacific Electric R. Co., 159 Cal. 494,115 P. 320; In re Dzwonkiewicz's Estate, 231 Mich. 165, 203 N.W. 671;Bishop v. Shurly, 237 Mich. 76, 211 N.W. 75; HomeopathicHospital v. Chalmers, 157 N.Y. Supp. 1000.

Therefore, since Patricia is in need of medical and surgical attendance, a necessary of life, she is destitute within the meaning of Rem. Rev. Stat., § 1987-1 (6), and thus a dependent child. Being a dependent child, the juvenile court possessed the power to order the required medical and surgical treatment.

At this point I desire to call attention to some general rules relative to the parent-child-state relationship. As explained in the majority opinion, there is a dearth of case authority on this subject. Thus, I am compelled to resort to authorities which employ applicable legal principles, although they are not factual parallels. I repeat, however, that in all branches of the law concerning children, the primary question relates to what will best promote their welfare.

The right to the custody of a child is ordinarily in the parents, but it is not an absolute or inalienable right. In reAllen, 139 Wn. 130, 245 P. 919; In re Day, 189 Wn. 368,65 P.2d 1049; Roth Boyle v. House of Refuge, 31 Md. 329;State ex rel. Bethell v. Kilvington, 100 Tenn. 227,45 S.W. 433.

The state, as parens patriae, has a superior right of guardianship over all minors within its jurisdiction. Paine v.Paine, 23 Tenn. 523; State ex rel. Jones v. West, 139 Tenn. 522,201 S.W. 743; Tiffany, Domestic Relations, 461, § 193; 1 Schouler, Marriage, Divorce, Separation and Domestic Relations (6th ed. 1921) 719, § 693; 27 Am. Jur. 823, Infants, § 102; 31 C.J. 990, Infants, § 8.

The state ordinarily refrains from asserting its superior right over the right of parents on the theory that the parent is the most appropriate person to have custody, but, when it appears that the parent is an unsuitable person, the state asserts its right. In re Petition of Ferrier, 103 Ill. 367, 42 Am. Rep. 10;Roth Boyle v. House of Refuge, supra; Bennet v. Bennet,13 N.J. Eq. 114.

In actions relative to the custody of the child, the courts do not recognize any legal right in the parent which will militate against the best interests of the child. Woodruff v. Conley,50 Ala. 304; Kelsey v. Green, 69 Conn. 291, 37 A. 679, 38 L.R.A. 471.

On the other hand, the parent-child-state legal relationship imposes certain duties on the parent. All of these aim at one objective — the welfare of the child. In reAllen, supra; In re Day, supra, and cases cited; In reWilliams, 10 Wn.2d 542, 117 P.2d 202. When the right to custody conflicts with the duty to consider the child's welfare, the latter outweighs the former. In re Day, supra. When this duty is breached, the state, as parens patriae, has the power to invade the right of custody for the purpose of compelling the performance of parental obligations.

"In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such a right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind, the necessity for government has forced the recognition of the rule, that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: `The moment a child is born, it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.' —Mercein v. The People, 25 Wend. 63, 103, McKercher v. Green, 13 Col. App. 271." Wilson v. Mitchell, 48 Colo. 454,111 P. 21, 30 L.R.A. (N.S.) 507.

In regard to the health of children in child custody cases, this was said in 27 Am. Jur. 830, § 108:

"The health and physical condition of the child often controls the court in awarding custody of the child. While instances are perhaps rare where the courts have decreed the custody of a child solely on a consideration of its physical well-being, the health of a child has often been the controlling factor in awarding its custody to a person who otherwise would not be entitled thereto. Thus, the paramount right of the father to the custody of his child has frequently been compelled to yield because the health of the child would be best subserved by leaving it in the custody of the mother. As in the case of controversy between father and mother, so even as between the father and the parents or other relatives of the mother of a child, the courts have not hesitated to deprive the father of his natural right of custody where the health and well-being of the child have seemed to demand such a course."

As illustrative of this concept, see Hussey v. Whiting,145 Ind. 580, 44 N.E. 639, 57 Am. St. 220; Mercein v. People, 25 Wend. (N.Y.) 64, 35 Am. Dec. 653.

Likewise, in an annotation in 48 A.L.R. 137, on "Condition of health of Child as a consideration in awarding custody," this statement was made:

"A review of the cases involving contests before the courts for the custody of minor children discloses that the health and physical condition of a child will often control the court in awarding its custody, the welfare of the child being the paramount consideration."

The point emphasized by these authorities is that if the health and well-being of a child will be best subserved elsewhere than with the parent, the right to custody must bow to the child's welfare.

Although cited by the majority, the following two cases sustain my position. The first is an English case, Oakey v. Jackson, [1914] 1 K.B. 216. This arose under the children act, 1908 (8 Edw. 7, c. 67), which made it an offense for a parent to fail to provide adequate medical care for its child. The following facts were established: that respondent's (the father's) child was and had been suffering from adenoids, a surgical operation being the only remedy; that respondent had neglected and refused to permit the necessary operation; that respondent and his wife did not consider an operation necessary "and did not believe in operation and refused to allow the child to go to the infirmary for the purpose of having the operation performed"; and that "beyond the refusal to allow the operation to be performed no evidence of neglect of the child by the respondent was given," a fact identical with the court's finding in the case at bar. Respondent contended that the act did not contemplate the compulsion of a surgical operation, since it involved a certain amount of danger.

In remitting the case for failure to determine the precise question, the court said:

"We are of opinion that in the present case the justices have not applied their minds to the proper question. They say that they `came to the conclusion that the respondent was under no legal liability to allow the operation to be performed, and that the refusal to allow such operation to be performed did not constitute neglect to provide adequate medical aid within the meaning of the Act.' That begs the question. The parent wasunder a legal liability to allow the operation if the refusal todo so was in the circumstances a failure to provide adequatemedical aid. Whether it is or is not so must depend on the factsof each particular case. A refusal to allow an operation is not necessarily such a failure to provide adequate medical aid as to amount to wilful neglect causing injury to health. The question is one of fact to be decided in each case on the evidence, and the justices in deciding that question must take into consideration the nature of the operation and the reasonableness of the parent's refusal to permit it. On the facts stated inthis case we are of opinion that the justices might very properlyhave convicted the respondent." (Italics mine.)

Another decision appropos of the case at bar is Heinemann'sAppeal, 96 Pa. 112, 42 Am. Rep. 532. Action was instituted in the orphan's court by the grandmother of appellant's two minor sons to obtain their custody. The facts revealed that appellant's wife and three of his five children were stricken with and died of diphtheria. During their illness, appellant refused to call in a physician, or to provide medical treatment, save his own panacea, the exanthematic method of healing. Despite the tragedy, his testimony evinced no change of mind regarding his family's medical care. The grandmother of the two surviving sons petitioned to be appointed their guardian, the proceedings being initiated under an act which permitted the orphan's court to appoint a guardian for a child, "its mother being dead, whose father shall, for any cause, neglect or refuse to provide for it." The trial court appointed the grandmother as guardian.

On appeal, the father maintained that the court had no jurisdiction, since facts of commission or omission had not been averred to justify a forfeiture of the right to custody.

In denying the appeal and in affirming the appointment of the grandmother, the court declared:

"The general rule is, that the father is entitled to the custody of his infant children, that right growing out of his obligation to maintain and educate them. But this is not onaccount of any absolute right in the father, but for the benefitof the infant, the law presuming it to be for its interest to be under the nurture and care of its natural protector, both for maintenance and education. It is a mistake to suppose that the father has an absolute, vested right to the custody of the infant: United States v. Green, 3 Mason 482. When a court is asked to appoint a guardian of the person of a child, it will investigate the circumstances and act according to a sound discretion, the primary object being the good of the child." (Italics mine.)

Later in the opinion, the court said:

"While the evidence reveals that he had no faith in allopathic physicians, it also reveals that he had neglected to call any others for his wife and three children who had died within less than seven months prior to the hearing. He may have been an affectionate husband and father,and have done what he thought was best, yet according to theevidence they were shamefully neglected as regards medicaltreatment." (Italics mine.)

In the light of the statute, the court never questioned the power of the orphan's court to forfeit appellant's right of custody for failure to furnish adequate medical care.

With reference to the two New York cases cited by the majority,In re Vasco, 263 N.Y. Supp. 552, and In re Ratkowitz,25 N YS. 2d 624, which upheld the constitutionality of the children's court act authorizing the court to order necessary medical and surgical care for neglected children, and which approved an order for such care notwithstanding the objection of the parents, certain observations should be made. In the first place, these decisions are authority for the rule that the state has the power to direct that an infant be subjected to medical and surgical treatment despite parental objection when from neglect or for arbitrary reasons such treatment is not furnished. Secondly, in comparison with the juvenile court law, the children's court act grants the court the power in specific language. Yet an examination of our act discloses that the identical power is conferred on the juvenile court, the difference between the two acts being in statutory draftsmanship rather than conference of power. In other words, while both courts possess the power by legislative enactment, the expression of that grant is different. Instead of a specific provision, our legislature in broad but definite language said:

". . . After acquiring jurisdiction over any child, the court shall have power to make . . . any order, which in the judgment of the court, would promote the child's health and welfare. . . ." Rem. Rev. Stat., § 1987-10 [P.C. § 602]. (Italics mine.)

Instead of limiting this power, the various states have expanded and orderly expressed it in the form of juvenile court or children's acts. 14 Boston U. Law Rev. 196; 28 Ill. Law Rev. 556. In Washington, this power is contained in our juvenile court law.

The decision of the majority seems to be based on the reasoning that, under the common law and our juvenile court law, any parent who is of excellent character and morally fit cannot be deprived of the custody of its child; that appellants were of excellent character and morally fit; and that, therefore, appellants cannot be deprived of the custody of their child.

In my estimation, this major premise is an inaccurate statement. Its scope is so restricted that it fails to include a number of parental duties embodied in the fundamental rule underlying all children's laws; the welfare of the child is the paramount consideration. One not included, the one on which this case rests, is the duty of a parent to the child and the state to administer the trust of care, custody, and control solely in theinterests of the child.

The testimony very definitely establishes that the mother, by subordinating Patricia's well-being to her own selfish feelings, breached her parental duty to regard the welfare of the child second to nothing else. In making the decision, the mother's personal feelings toward undertaking the responsibility of an unsuccessful operation or toward enduring remorse over a wrong decision made her oblivious of her daughter's condition. Failing also to regard Patricia's welfare, the father, likewise, breached his parental duty.

Mindful of the fundamental precept of the welfare of the child, the question arises: Whether or not a parent who refuses to permit medical and surgical treatment to a child because he or she does not wish to undertake the responsibility of an unsuccessful operation or to endure remorse over a wrong decision is a fit person to have the custody of the child. Or, expressed in another way, is a parent whose decision, refusing medical and surgical treatment to its child, is derived by subordinating the child's welfare to her biased parental wishes fit to have the custody? In short, it is my belief that, since the essence of all children's laws is to insure the well-being of the child, any parental action which would jeopardize this objective, whether it is immorality, abuse, degradating home conditions, etc., or this instance of parental displacement of the child's interests for personal interests, constitutes such a violation of duty as to forfeit the right of custody.

By allowing their personal interests to affect their judgment in making a vital decision respecting the health and well-being of their daughter, appellants made themselves unfit as parents notwithstanding their excellent character. Therefore, by virtue of Rem. Rev. Stat., § 1987-1 (7) and (13), the juvenile court had the power to declare Patricia Hudson a dependent child; and by virtue of Rem. Rev. Stat., § 1987-10, the court also had the power to enter an order requiring the amputation of the girl's deformed arm.

Finally, two conclusions of the majority remain to be considered. First, the majority call attention to Rem. Rev. Stat., § 6908, as follows:

"We have a penal statute (Rem. Rev. Stat., § 6908 [P.C. § 8828]) which provides that any person who, having a child under the age of sixteen years dependent upon him or her for care, willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter, or medical attendance for the child shall be guilty of a gross misdemeanor."

They then make the statement that the juvenile court law fails to contain a provision regarding the furnishing of medical and surgical care. The purpose of these observations, I assume, is to form a basis to the conclusion that, since the legislature placed the language respecting medical and surgical care in the penal statute, but failed to employ it in the juvenile court law, the court proceeding under the latter has no power to compel such care.

The criminal statute has no bearing on this case.

The object sought to be obtained is the relief of the child through the aid of the courts of this state, not the punishment of a misguided mother. Prosecution under the penal statute would not bring relief to Patricia.

On the other hand, the penal statute does furnish some light on the attitude of the legislature toward the present problem. In the first place, it serves not only to evince a legislative recognition of the parental duty to provide a child with medical and surgical care, but also to deter a breach of this duty. To the child, the only utility of the statute is in the mental constraint it may have on the neglectful parent. That the child's well-being is not aided by incarcerating the parent is palpable. Hence, unless there is a means to obtain medical assistance, the child is in the same unfortunate position as before. The legislature provided, however, for this seeming impasse by enacting, in the year that it passed the penal statute (1913), the juvenile court law. Under this act, the court, through its juvenile powers, steps into the picture, as it were, to surmount the impediment. On the ground of unfitness of the parent or of destitution of the child, the court can declare the child dependent and enter any order which is conducive to its health and well-being.

The second conclusion of the majority is contained in the following language:

"Conceding, arguendo, that the court correctly found that the child is a dependent child, there has been no determination, as the statute requires, of the question of custody and control of the child. Until legally deprived of custody and control of her child, the court may not override her objection to amputation of her child's arm. Until appellant, the child's natural and legal guardian, is deprived of the guardianship, and custody and control of the child awarded to another, the child may not be subjected to a surgical operation without appellant's consent."

The answer to this is twofold. In the first place, since the case at bar is not a child custody action but one to secure medical and surgical care for a dependent child, a formal determination and order of change of custody is unnecessary. The temporary change in custody, the period of Patricia's hospitalization, is perforce implied in the formal order directing the medical and surgical attention. Otherwise, the order would be ineffective and useless. That such a determination as the majority call attention to is required in a proceeding where the primary question involves the actual custody of a child is perhaps correct. But the instant situation, to repeat, is not such a proceeding. On the contrary, the specific purpose here is to secure medical and surgical care for a dependent child. The question of custody is incidental. During the hospitalization period, appellants will be temporarily deprived of their child's custody. In other words, the majority have confused the case at bar with a situation in which the sole or principal object is custody, a formal order being necessary to effect a change.

Finally, after the juvenile court obtained jurisdiction over Patricia, she became a ward of the state, her person being subject to the custody, care, guardianship, and control of the court. Rem. Rev. Stat., § 1987-1. Moreover, appellants having been found to be unfit and neglectful, the court possessed the power to forfeit their right of custody. Inre Brenner, 154 Wn. 400, 282 P. 486. Consequently, at the present time, Patricia, being a dependent child and thus a ward of the state, is under the guardianship and custody of the court. Therefore, since this action is not a child custody case, the majority's argument is not applicable to this factual situation.

Accordingly, then, it is my conclusion that the instant situation comes within subsections (6), (7) and (13) of the juvenile court law (Laws of 1913, p. 520; Rem. Rev. Stat., § 1987-1 (6), (7) and (13)) for the reason that appellants, in refusing medical and surgical treatment for their child, allowed personal and selfish interests to affect their judgment so as to constitute a violation of their parental duty to regard the child's well-being as paramount, this dereliction making them neglectful and unfit as parents; and that the child is destitute because of the lack of proper medical and surgical care. Therefore, in my estimation the juvenile court possessed the power to declare Patricia Hudson a dependent child, to temporarily deprive appellants of their custody, and to enter an order to amputate the child's deformed arm.

The welfare of Patricia Hudson demands that the operation be performed as ordered by the trial court. Patricia is entitled to be put into a condition where she can run and play, attend public school, and take part in school activities. She is entitled to a healthy body, to secure a good education, to take her place in American society, to grow up as a normal American girl, to get married, and to have a home and children. Without an operation all these are denied to her and she is condemned to travel along life's pathway a hopeless cripple, an object of pity dependent upon either private or public charity.

I have no doubt that Mrs. Hudson is a kind and loving mother, intensely interested in the welfare of her children. That fact, however, should not stand in the way of rescuing her child from the dreadful life which she faces. The courts should come to the child's rescue. She has no other friend able to assist her.

The majority's conclusion that medical attention may not be forced upon children without parental consent will have a devastating effect upon the enforcement of other laws enacted for the purpose of protecting the health of our children.

The order should be affirmed.

ROBINSON, C.J., and MAIN, J., concur with SIMPSON, J.