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State v. Perricone

Decided: June 4, 1962.


For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Schettino, J.


The Perricones, who are Jehovah's Witnesses, appeal from an order (a) finding them guilty of neglect of their infant son, John, in refusing to grant permission for necessary blood transfusions; (b) appointing Thomas J. Finn, Superintendent of the Berthold S. Pollak Hospital for Chest Diseases, Jersey City, as guardian of the infant and authorizing Mr. Finn to execute the necessary consent for a blood transfusion; and (c) awarding custody and care of the infant to Mr. Finn until further order of the court. While the appeal was pending in the Appellate Division, we certified the matter on our own motion.

The facts are not in dispute. Appellants were the parents of the infant, John Perricone, who was admitted to the Pollak Hospital on March 1, 1961. At that time John was described as "a blue child [,] * * * blue around the lips and on the nail beds, both on fingers and toes, and who showed clubbing of the fingers and the toes, which is evidence of chronic oxygen lack * * *. On further physical examination it was noted that his heart was enlarged primarily on the right side, that the heart rhythm was regular; that the second sound, the left upper chest, which is usually re-duplicated, was single in nature and at this location there was a moderately loud murmur that occurred during the contraction of the heart."

When the infant was admitted, Mrs. Perricone consented to the performance of such surgical operations as the physicians of the hospital thought necessary for the boy's welfare. Although this consent had no restrictions, the infant's "Progress Record" contained the notation: "Parents are Jehovah Witnesses -- request no usage of blood transfusions." The physicians sought to treat John without the use of blood transfusions until they thought such transfusions were essential. At that point they requested permission from the Perricones to administer blood. When permission was denied, Mr. Finn applied through County Counsel to the Assignment Judge of Hudson County "to have a special guardian appointed for this child for the express and sole purpose of having the necessary medical attention given to the child in the form of blood transfusions, which the physicians believe to be necessary." Respondent was afraid that another court would not have jurisdiction over appellants as they resided in Union County while the hospital was in Hudson County. The Assignment Judge referred the cause for trial to Judge Morris Barison of the Juvenile and Domestic Relations Court of Hudson County. The complaint was oral; formal pleadings and notice were waived. The trial started on March 3, 1961 at 8:30 P.M. and ended at 11:30 P.M. Appellants were there represented by counsel who moved to dismiss the proceedings on the ground the court lacked jurisdiction under N.J.S.A. 9:2-9 but the objection was overruled.

Dr. Martin Frank, one of the two physicians who had attended the child, testified that the infant was in danger of death, that John was "critically ill" and that "the most likely clinical diagnosis involved an abnormal communication between the right and the left side of the major chambers or 'ventricles' of the heart [a condition] associated with a narrowing of the out-flow tract of the right heart which created enough resistance to force the blood to flow from right to left and was responsible for the blueness." According to Dr. Frank, the hospital had attempted procedures

other than blood transfusions to treat the child "but none of these [is] as effective as the blood itself would be."

The child's condition grew steadily worse during the 36 hours following his admission to the hospital. Dr. Frank stated that: "at the present time this child suffers from oxygen lack, which is a chronic problem and is a result of the reduction of the quantity of blood flowing through his lungs. The treatment which is recommended is that he receive a blood transfusion which will not entirely correct this problem, but will alleviate it * * *. The purpose is to supply red cells which carry oxygen which have a special function and for which, at the present time, there is no known medical substitute." In response to the question of whether the danger of death could be averted to a degree by the use of a blood transfusion, he said, "I think his chances will be improved for survival." It was his opinion also that: "[A]dequate supply of oxygen to the brain, given in time and frequently, assisted by the use of blood transfusions, may prevent severe irreversible damage to the brain and be life-saving." Furthermore, he pointed out that the child had lost 3 1/2 ounces of blood as a result of a catheter used for diagnostic studies when the patient was admitted. The volume of the loss seemed less critical, in the doctor's opinion, than the patient's response to the loss. The latter led Dr. Frank to conclude that the patient's oxygen carrying capacity was poor, and that a blood transfusion was necessary. On cross-examination, Dr. Frank testified the child's chances of dying that very night would be "two or three times greater" if he did not have a blood transfusion.

Dr. Gilbert E. Levinson, the only other doctor who had examined the child, corroborated Dr. Frank's testimony. Transfusions, he asserted, would free the child of possible neurological disability also. On cross-examination he said: "I think without transfusion he has only an outside chance

for surviving," and even if under the circumstances the child did not die, his mentality would be impaired.

Appellants produced no medical witness. The father testified that he is a member of Jehovah's Witnesses and that his sole reason for refusing to permit a blood transfusion was based upon passages in their Bible, New World Translation of the Holy Scriptures (1961 ed.). He stated:

"I have dedicated my life to do God's work in accordance with scriptures of the Bible. One of the particular scriptures makes mention of taking of blood or transferring it from one person to another. The one part I have in mind is taken from the book Leviticus, 17th Chapter, Verse 11-12. It states the life of the flesh is in the blood. No soul of you shall eat blood; neither shall any stranger that so joineth meeting you eat blood. From the view point of this scripture and others that point to this, I can assume then, from my position as a dedicated minister of Jehovah's Witnesses, to hold fast to the belief or to the teachings which were set down in the Bible."

Although he knew his son might die without the transfusion, he had not sought advice from other doctors regarding the advisability of a transfusion. And the mother was in full accord with her husband's decisions.

On the basis of these facts the order sought was issued. Yet in spite of the blood transfusions finally administered, the child died.

Both sides urge us not to dismiss the case as moot because of the death of the infant. They strongly emphasize the public importance of a decision which would settle the question so that parents, physicians and hospitals will have proper legal guidance. With this we concur. The public interest requires us to decide the cause. See cases collected in 132 A.L.R. 1185 (1941).

On this appeal the Perricones argue that their constitutional rights of parental care and religious freedom have been violated, that the court was without jurisdiction to take custody of the child from them under N.J.S.A. 9:6-3, 4 and 11 because appellants were not unfit parents, nor "cruel" nor "neglectful" as these terms are there used;

and that N.J.S.A. 9:6-1.1, providing that parents shall not be denied the right to treat or provide treatment for an ill child "in accordance with the religious tenets of any church," was violated by the court order. They contend also that it is not within the competency of courts to say what is or what is not reasonable in reference to religious beliefs. And on summation and at oral argument they advanced the argument that the use of blood transfusions in the treatment of disease is still of doubtful if not of harmful value. Any doubts, they say, should be resolved in favor of the parents' judgment.

Respondent urges that as this case involved a neglected infant the common law doctrine of " parens patriae " exercised historically by the Chancery Court applies. Respondent also claims that this doctrine has been recognized by the Legislature in N.J.S.A. 9:2-9 et seq. which provides that the Superior Court or the Juvenile and Domestic Relations Court may order that custody be taken from parents when the parents are unfit or neglect to provide proper protection, maintenance and education. Moreover, it urges the view that N.J.S.A. 9:6-1.1 is restricted in application to cases where parents are subjected to criminal prosecution for neglect. On the constitutional religious issue, respondent ...

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