Lulos v. State

548 N.E.2d 173, 1990 Ind. App. LEXIS 1, 1990 WL 1765

• Court: Indiana Court of Appeals
• Decided: January 11, 1990
• Docket: 02A03-8908-CV-345
• Status: Published

Opinions

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 2½ 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 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.