The juvenile court concluded that it had authority to consider withdrawal of a child's life-sustaining medical treatment under the Welfare and Institutions Code and found by clear and convincing evidence that it would be in the child's best interests to withdraw such treatment.

In December 2001, when the child was three months old, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition alleging that the father had thrown the child against a crib, causing serious brain damage; the father had been arrested for child endangerment; the father had violently shaken the child on more than one previous occasion; the mother witnessed the father throw the child into the crib and inflict physical abuse on the child but was either unable or unwilling to protect the child from harm; and the child was on life support and would be neurologically devastated if he survived. In April 2002, SSA filed an amended petition restating the original allegations and that neither parent had provided any reasonable explanation for the child's injuries, their stories and statements were inconsistent, and the child's injuries were consistent with "shaken impact syndrome."

In May 2002, the juvenile court adjudged the child a dependent, concluded that it would be detrimental to vest custody with either of his parents, and denied reunification services to both parents. A permanency plan hearing was set pursuant to section 366.26. Because the mother stated during the disposition hearing that she intended to authorize withdrawal of the child's life support, the juvenile court also forbid the withdrawal of the child's life-sustaining medical treatment absent a further evidentiary hearing and court order. The mother filed a writ petition challenging the order denying reunification services and prohibiting withdrawal of the life-sustaining medical equipment. In Tamara S. v. Superior Court (Tamara S.) (Aug. 21, 2002; G030646), the Court of Appeal concluded that the juvenile court was permitted to order continuation of life-sustaining medical treatment pending a court hearing and denied her writ petition. The mother later filed a petition with the juvenile court for an order authorizing a "do not resuscitate" (DNR) order for the child and/or removal of his life-sustaining medical treatment. The father's motion to dismiss the petition, on the ground that the mother lacked standing, was denied by the juvenile court. The juvenile court reasoned that since the ultimate question concerned what was in the best interests of the child, the mother had standing.

In October 2002, the juvenile court held a four-day evidentiary hearing to determine whether removal of life-sustaining medical treatment was in the child's best interests. Evidence at the hearing showed that since December 2001 the child had been comatose, hospitalized in intensive care, and dependent on a ventilator to breathe. All of the testifying doctors agreed that the child had some lower and mid-brain stem activity and, thus, was not brain dead. However, they also agreed that the child was in a persistent vegetative state, with no cognitive functioning. His physical existence was "100 percent" dependent on technology. Future medical treatment would be futile; he had no hope for cognitive or neurobiological improvement. All of the doctors supported removal of life-sustaining medical treatment or at least a DNR order.

The rest of the participants had the following reactions: The mother sought withdrawal of the child's life-sustaining medical treatment. The father opposed withdrawal. Counsel for the child, relying on the unanimous views of the testifying doctors, agreed that withdrawal of treatment was in the child's best interests. SSA took no position and submitted the issue to the court.

Following the presentation of evidence, the juvenile court determined that it had authority to consider withdrawal of the child's life-sustaining medical treatment under the Welfare and Institutions Code. It further concluded that there was clear and convincing evidence that it would be in the child's best interests to withdraw life-sustaining medical treatment, except for nutrition, hydration, and pain medication. The father appealed, contending that the juvenile court did not have the authority to make medical decisions concerning a dependent child, for whom counsel had been appointed, absent the appointment of a guardian. The father further contended, for the first time on appeal, that reversal was required because of SSA's alleged inadequacies in giving notice under the Indian Child Welfare Act (ICWA). Finally, the father argued that the juvenile court erred in failing to conduct an examination of the mother's competency or to appoint a guardian ad litem for her.

The Court of Appeal concluded that (1) the juvenile court had jurisdiction to determine whether life-sustaining medical treatment for a dependent child should be withdrawn; (2) a decision regarding whether withdrawal of life-sustaining medical treatment is in the best interests of a dependent child required consideration of certain factors; (3) the standard of proof for such a determination is clear and convincing evidence; (4) an evidentiary hearing with live testimony must be held; and (5) the juvenile court must state its findings on the record, either orally in open court or in a written order. The appellate court further concluded that the juvenile court applied the correct legal standards and considered the appropriate factors and that substantial evidence supported its decision.

Since this was an issue of first impression, the appellate court turned to other authority to determine what standards to apply in deciding whether to withhold or withdraw life-sustaining medical treatment from a child who is a dependent of the juvenile court. It first looked for guidance in determining what decision-making model to use in deciding whether to withhold or withdraw life-sustaining medical treatment from persons not legally competent to make their own medical decisions. Under the best interests model, a decision-making model used to address this issue concerning persons not legally competent to make their own medical decisions, the decision-maker is guided by a determination of what medical treatment is in the patient's best interests. Given the context of dependency, where weighing the best interests of the dependent child is always the court's paramount concern, the appellate court concluded that the decision to withhold or withdraw life-sustaining medical treatment should be governed by consideration of the child's best interests.

The appellate court next examined what factors the juvenile court should consider in determining whether it is in a dependent child's best interests to withhold or withdraw life-sustaining medical treatment. After examining statutory law, case law, local rules of court, and state court guidelines, the appellate court concluded that a court should consider the following factors: (1) the child's present levels of physical, sensory, emotional, and cognitive functioning; (2) the quality of life, life expectancy, and prognosis for recovery with and without treatment, including the futility of continued treatment; (3) the various treatment options and the risks, side effects, and benefits of each; (4) the nature and degree of physical pain or suffering resulting from the medical condition; (5) whether the medical treatment being provided is causing or may cause pain, suffering, or serious complications; (6) the pain or suffering to the child if the medical treatment is withdrawn; (7) whether any particular treatment would be proportionate or disproportionate in terms of the benefits to be gained by the child versus the burdens caused to the child; (8) the likelihood that pain or suffering resulting from withholding or withdrawal of treatment could be avoided or minimized; (9) the degree of humiliation, dependence, and loss of dignity resulting from the condition and treatment; (10) the opinions of the family, the reasons behind those opinions, and the reasons why the family either has no opinion or cannot agree on a course of treatment; (11) the motivations of the family in advocating a particular course of treatment; and (12) the child's preference, if it can be ascertained, for treatment. The appellate court emphasized that the list was not meant to be exclusive, but was intended to provide a set of factors to be considered, analyzed, and weighed. Not all of the factors may apply in a given case.

The appellate court further concluded that, given the impact of the decision on the child under the circumstances, imposition of the highest standard within the Welfare and Institutions Code—the clear and convincing standard of proof—was appropriate. In addition, the factors relied on by the juvenile court in rendering its decision must be supported by live testimony at an evidentiary hearing. However, since all of the relevant evidence in the case was presented that way, the appellate court noted that there was no need to consider whether proof by declaration would suffice on some issues. After evaluating the evidence, the court must state its findings on the record, either orally in open court or in a written order.

In light of the foregoing standards, the appellate court concluded that substantial evidence supported the juvenile court's determination that withdrawal of life-sustaining medical treatment was in the child's best interests. The juvenile court considered the applicable factors and found, by clear and convincing evidence, that the child had no cognitive function and was in a persistent vegetative state; his current treatment was of no benefit to him; he was completely dependent on technology; immobility caused by the brain damage was leading to other medical problems, which evidence indicated would increase over time; and circumstantial evidence indicated that the child was in "substantial" pain and was suffering. The juvenile weighed and balanced the factors and considered the opinions of both parents, the physicians, and the child's counsel. Therefore, the appellate court concluded that the juvenile court did not err in reaching its conclusion.

The appellate court further held that the juvenile court had statutory authority to consider matters relating to life-sustaining medical treatment for dependent children within its jurisdiction. It noted that the juvenile court had jurisdiction over the child due to the father's nonaccidental infliction of physical harm and the mother's failure or inability to protect him. (§§ 300(a), (b).) When a child is adjudged a dependent child of the court under section 300, the court may make "any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child, including medical treatment, subject to further order of the court" (§ 362(a); emphasis added). The appellate court reasoned that such authority necessarily included decisions to refuse or withdraw medical treatment, including life-sustaining medical treatment. It noted other statutes to the same effect. (See § 245.5 [the juvenile court may direct orders to the dependent child's parent or guardian regarding the child's medical treatment when necessary and proper for the child's best interests].) It further noted that no statute restricted that authority. It also found that case law supported the juvenile court's authorization to exercise its parens patriae power to make medical decisions in the child's best interest, including the decision to withdraw life-sustaining medical treatment. It first noted that California law gives people a right to determine the scope of their own medical treatment. Although the child is a child and not competent to make his own medical decisions, he has the right to have an appropriate decision-maker determine whether withdrawal of life-sustaining medical treatment is in his best interests. While such right would usually belong to a child's parents, the appellate court noted two reasons why it was appropriate for the juvenile court to abrogate those rights under the circumstances. First, both parents, by their actions, forfeited their rights to determine what is and is not in their son's best interests. Second, in a situation where the dependent child's two parents have a fundamental disagreement over what medical care is appropriate, the juvenile court has the authority to decide what is in the child's best interests. (In re K.I. (D.C. 1999) 735 A.2d 448, 454.)

The father argued that the juvenile court was required to appoint a guardian for the child or to relinquish to a legal guardian the right to decide whether to withdraw the child's life-sustaining medical treatment. The appellate court rejected such an argument. Although section 326.5 requires the appointment of a guardian ad litem for a child in dependency cases involving child abuse or neglect, either an attorney appointed by the juvenile court to represent the child's interests or a Court Appointed Special Advocate may fill this role. While rule 1438(f) of the California Rules of Court permits the juvenile court to appoint a guardian ad litem to represent a dependent child when appropriate, such an appointment is not required. Because, under California's statutory scheme, the appointment of a guardian ad litem in addition to the appointment of an attorney under section 317 is not required, the appellate court concluded that the father's arguments to the contrary had no merit.

The father further argued that the juvenile court could not authorize withdrawal of his son's life-sustaining medical treatment because ICWA was not complied with. SSA argued that it provided all notices required under ICWA, and that if there was any error, it was harmless. The child's counsel joined SSA's argument. The mother also joined in SSA's argument, but further contended that even if SSA had failed to provide the proper notice, the juvenile court still had the authority to enter orders relating to medical care in her son's best interests.

Sometime after the dependency petition was initially filed, the mother informed a social worker that she was part Indian and from the Puma Tribe. In the permanency plan report, SSA indicated that it had sent notice to the Puma Indian Tribe as well as the Bureau of Indian Affairs (BIA), but no response had been received. A search revealed that there were no federally recognized tribes by that name. The mother then came up with the possible name of Pima. The Pima Tribe did exist and notice of the pending proceedings was sent to BIA, the Gila River Indian Community (who maintained the records for the Pima Tribe), and the Salt River Pima-Maricopa Indian Community Council. The documents identified the names and birthdates (if known) of the child, the mother, the mother's parents, and the mother's grandfather. It further indicated that the mother's father and grandfather might be affiliated with the Arizona Pima Indian Tribe, although it was unknown whether they were enrolled in the tribe. Both communities confirmed in writing that none of the persons aforementioned were enrolled members and that the child was not eligible for membership. Although such information was not included in the record on appeal, the appellate court concluded that the "interests of justice" required it to augment the record in order to examine such documents. While the appellate court found that ICWA's notice requirements were triggered by the mother's suggestions that her grandfather was a member of an unknown tribe, it doubted that any more notices would have served the purposes of ICWA under the circumstances. It noted that no one proposed to separate the child from an Indian family and place him with a non-Indian family. Whether the juvenile court ruled that withdrawal of life-sustaining medical treatment from the child was or was not in his best interests, the stability and security of any Indian family would not be served; the child would never be able to appreciate his alleged Indian ancestry, nor would he procreate and advance the lineage or culture of any Indian tribe.

Regardless of whether notice served the purpose of ICWA under the circumstances, the appellate court concluded that SSA complied with the notice provisions of ICWA. SSA sent notice to BIA when it could not locate the Puma Tribe. When the mother alleged that her family was affiliated with the Pima Tribe, SSA sent notice to BIA again as well as to the Pima Tribe. The appellate court further concluded that any error on the part of SSA under the circumstances was harmless. Even if SSA did not satisfy the notice requirements under ICWA, it was not a jurisdictional error that would deprive the juvenile court of the ability to consider the petition for withdrawal of life-sustaining medical treatment. Moreover, there was no reason to believe that the child was of Indian heritage, nor was there any reason to believe that more notices would result in any more information. Even if the child were an Indian child, his medical condition would prevent him from ever becoming part of an Indian family.

Finally, the father contended that the juvenile court's failure to grant his request to appoint a guardian ad litem for the mother or order a psychological evaluation of her constituted reversible error. A guardian ad litem may be appointed for a parent in dependency proceedings if he or she is determined to be incompetent under either the standards of Probate Code section 1801 or Penal Code section 1367. The appellate court concluded that there was no error in the juvenile court's decision that the mother's mental disability was not sufficiently severe that she would be unable to understand the proceedings or assist her counsel. Therefore, the juvenile court did not abuse its discretion in finding that the appointment of a guardian ad litem for the mother was unnecessary.